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then we never allow it to influence our mind, of course if a Judge has refused the evidence improperly, the Divisional Court as a rule does not send the case back for a new trial, but the Court often says, "We will sit on such a day, you can bring the evidence you desired the Judge to hear and we will hear it here." We hear the evidence and determine the case then and there, without sending it back with all the risk, expense, inconvenience, annoyance and trouble of a new trial. (Applause.) If there is a row about the pleadings because even yet we have some people who talk about pleadings, though pleadings are pretty nearly defunct in our Courts, we know them by name and know them by sight, but we pay very little attention to them if there is any row about the pleadings we say, “Very well, we will amend the pleadings." If a lawyer says, "If that amendment had been made in the Court below, we should have had other evidence," we may say, "Very well, what day will suit you? We shall hear your witnesses." One of our substantial rules and one of the rules more beneficial than perhaps fifty of the other rules is this, all amendments are to be made which are necessary in order that judgment shall be given according to the very right and justice of the case. (Applause.) No case in Ontario fails from defect of form that is one of our rules. Again, no disregard of forms laid down, or disregard of the time under which certain proceedings should be taken, no disregard of terminology, according to our practice, bars a man who has a right, of his right. Disregard of form does not nullify the proceedings.
Then if the Divisional Court is thought by either party to have made a mistake, there is an appeal to the Court of Appeal composed of five Judges. Those appeals are heard by the full Court of five Judges, but are not very common.
The more common practice is to appeal from the trial Judge direct to the Court of Appeal, skipping the Divisional Court; and those are not so very common either. These appeals from the trial Judge to the Court of Appeal direct may be heard by three Judges of the Court of Appeal or all the five. I will read you from the article which I wrote some years ago of the appeals in 1908. "In 1908, 1,153 cases were tried by the High Court, 180 of these were appealed to the Divisional Court and 130 dismissed, 37 allowed, 10 varied and 2 still undisposed of. The appeals direct from trial to the Court of Appeal were 62; 28 were dismissed, 14 allowed, 8 varied, 12 remained undisposed of." Because even at that late date people tried to settle their cases.
All appeals from the County Court, which has jurisdiction up to six or eight hundred dollars, come to the Divisional Court, as appeals from the High Court of Justice comes to the Divisional Court. County Court Judges are members of our Bar of ten years' standing. They are appointed by the Dominion Administration for life. The practice is precisely the same as in the High Court. Of all the cases in the Divisional Court, 544 in all, including the 180 from trials, only 43 appeals to the Court of Appeal, of which 23 were dismissed, II allowed, 3 varied. The above figures are derived from the report of the Inspector of Legal Offices. From the Court of Appeal to the Supreme Court at Ottawa in 1908 are reported in the Supreme Court Reports, 9 cases, 7 dismissed, 2 allowed (there maybe, no doubt are, some cases not reported, but very few).
From the Court of Appeal, important cases may be taken to the Supreme Court of Canada. Rarely is there an appeal from the Divisional Court to the Court of Appeal;
still rarer is there an appeal from the Court of Appeal to the Supreme Court of Canada, which is an entirely different Court. If you practice in Canada you had better have your pleadings in proper shape before you get to the Supreme Court of Canada because that being a different Court, it takes the pleadings as brought to it from the inferior Court. From the Court of Appeal to the Supreme Court at Ottawa in 1908 there were reported in the Supreme Court Reports nine cases, seven dismissed, two allowed. In very rare cases there are also appeals from our Court of Appeal which are taken across the Atlantic instead of going to the Supreme Court of Canada and particularly in constitutional cases (because I am going to withdraw what I said about the Constitution a minute or two ago) — an appeal is taken to the Judicial Committee of the Privy Council in Downing street, Westminster. We have a kind of constitution (although we do not call it that) by the British North America Act. The subjects of legislation are divided between the provinces and the Dominion, and sometimes we have disputes as to whether the Dominion has the right to pass legislation upon a particular subject, or whether the province has a right to pass legislation upon that particular subject; we do not, however, generally talk about "constitutional" and "unconstitutional," but we use the terminology "ultra vires" and "intra vires." Occasionally and, as I have said, particularly where a question of ultra vires is concerned, an appeal is taken to the Privy Council. I have given an account of the Privy Council in an address to the Missouri Bar Association, printed in 44 American Law Review, page 161. In the Privy Council in 1908 are reported six appeals from the Court of Appeal, of which five were allowed and one dismissed; there was also an appeal from the Supreme
Court in an Ontario case which was allowed. From issue of the writ of summons to the final disposition by the Privy Council there is no need for two years to elapse. So much for the civil practice.
On the criminal side the story is somewhat historical. When Canada was conquered in 1759 the French law was universal; it was of course based upon the Roman law, the Civil Law. As soon as the British conquered Canada, the English criminal law was introduced and the English criminal law has continued from that time to the present. The criminal law is under the jurisdiction not of the provinces, but of the Dominion Parliament composed of members from all the provinces. It is true that Provincial Legislatures have power to make certain quasi criminal offenses — for example, the watering of milk and that sort of thing which are quasi civil and quasi criminalthose are within the jurisdiction of the province, although the Dominion may make anything a crime. The other day I said to a lawyer who was arguing to me about a certain matter being ultra vires, "If the Dominion Parliament saw fit they could make it a crime punishable by capital punishment for a man to chew tobacco." The Dominion has power to make anything a crime; it has absolute jurisdiction over criminal law and criminal procedure; but not over the constitution of Courts of criminal jurisdiction. The Courts of criminal jurisdiction are constituted by the provinces; so that (speaking generally) the same Court which tries civil cases is the Court which tries criminal
Before 1892 we had the English criminal law as modified by the statutes of the provinces before Confederation and by the Parliament of Canada after Confederation; but in 1892 Sir John Thompson, the then Prime Minister,
having been a Judge himself in Nova Scotia, saw the propriety of codifying the criminal law and accordingly, with the assistance of able lawyers in the Houses of Parliament on both sides of politics, he in 1892 drew up a code of the criminal law. The Judicature Act of 1881 very nearly proved the death of some of the old equity men and common law men also in the Province of Ontario; but that was nothing to the dismay which spread in the ranks of the lawyers who practiced in the criminal Courts, when the Code of 1892 was passed. The distinction between felonies and misdemeanors was abolished. Every crime was made an indictable offense. All the beautiful little pitfalls and holes that old criminal lawyers used to know so well about in indictments, etc., are filled up and done away with. Parliament provided that the indictment might be in the simplest form, so long as it set out and explained to the alleged criminal what it was he was charged with. If the indictment used the words of the statute that was enough. For instance, an indictment for murder is never more than three lines long, and it would read like this, “The jury for our Lord the King present that John Smith on the 7th of September, 1911, at the City of Toronto, murdered Tom Jones." That is all there is about it. There are no pitfalls in the criminal law.
If a person is charged with a crime, an investigation is made by a magistrate, sometimes by a coroner. Under the old practice, of course, the finding at the coroner's inquest could be laid before a petit jury. That is no longer our law. Everything of a criminal nature which is to be tried by the High Court comes before a grand jury. The accused first comes before a Magistrate; he has the right to have his full defense gone into, witnesses called and examined; and if at the conclusion the Mag