Page images

istrate thinks there is no is no case, he is dismissed although the prosecutor may demand to be bound over to prosecute, in which case he comes before the next Court of competent jurisdiction. If the Magistrate thinks a case has been made out, he commits for trial.

[ocr errors]
[ocr errors]

Save in the case of treason, murder and a few others, within twenty-four hours of a person being committed to jail he must be brought before the County Court Judge. The County Court Judge is a Judge of inferior jurisdiction, but he must have been a barrister for ten years before his appointment and ought to know as much law as a High Court Justice and many of them do. Upon being brought before the County Court Judge, the alleged criminal is told in simple language with what he is charged. He is told, Now, you have a right to be tried by a jury before the next Court of competent jurisdiction" (mentioning the Court, when it is to be held, etc., so that the prisoner will know), "or you may be tried by me forthwith without a jury." In nine cases out of ten the innocent man, and in quite a number of cases the guilty man, thinks he might just as well take his chances with a Judge as with a jury; and so he is tried by the Judge. A simple form of charge is drawn up, and the Judge tries him; that is all there is to it. So you see, this practice of

[ocr errors]

Speedy Trials" as we call it, relieves the High Court of Justice of nearly all the criminal cases with the exception of murder and a few others. We have not had treason for some years in Canada and we are not likely to have another crop for some time. If, however, the accused elects to be tried by a jury, the case is brought before a grand jury (in Ontario of thirteen). Seven may find a bill. The bill is drawn up in the form I have described.

The trial is before a jury of twelve; they must be unanimous either one way or the other. If a jury cannot

agree I almost always discharge them and call another, right there and then, and get done with it. Some Judges prefer rather to postpone the case to the next assize and in the meantime commit the man to jail or let him out on bail. If a mistake is made at the trial, or a lawyer thinks a mistake is made in the trial- these are not quite synonymous expressions, you know if it is supposed (that is better) (laughter) that a mistake has been made during the trial on questions of law, the lawyer may ask the Judge to reserve the case for the Court of Appeal upon that question of law, or the Judge may do it upon his own motion without being requested to do so. The Judge may refuse; that refusal is subject to appeal. If he has granted the case, that goes to the Court of Appeal, and the Court of Appeal of five Judges determines that question of law and whether the Judge was right. In most cases I am glad to say it has been found he was right, and so the appeal goes by the board. There is a provision in our Code which has never so far as I know been called upon; and that is this: in case the conviction be affirmed by the Court of Appeal by a divided Court there is an appeal to the Supreme Court of Canada. That has never yet so far as I know been called into practice: our Court of Appeal have always been unanimous.

This is the simple, every-day practice which has been found very advantageous and beneficial. I have never in all my thirty years's experience at the Ontario Bar and on the Bench taken more than thirty minutes to find a jury, even in a murder case. I have never yet and I have defended lots of them and I have hanged quite a number; I do not mean that I did it with my own hands — I trust that I should not hesitate to do it if it were my duty; greater men than I have been charged with having exer


We allow

An expert

cised that function none of the men that I defended got hanged I am thankful to say, though there are two or three in Kingston penitentiary to welcome me when I chance to go there (laughter)—I have never yet in all my experience (except in one case) seen it take as much. as four days to try a murder case. In murder cases before me I have never been more than a day and a quarter, and in most cases less than a day. five expert witnesses on each side and that is all. witness unless he has examined the prisoner himself is, of course, simply going to give opinion evidence. We bring him in Court to listen to the evidence. If he requests it he may take the man and examine him and then give an opinion. We do not have six or eight pages of a hypothetical question. The expert is asked simple, particularized questions. Our insanity law is simple. I see that my judgment was affirmed by the Court of Appeal since I came to this city in a case where a man was charged with murder. The man waited for another on the street and shot him. The first doctor for the defense was called and was asked, "Was this man insane?" "Yes, insane." "In what form?" "An incurable form of insanity, paranoia in an advanced stage." "Did he know the nature and quality of his act?" Certainly."" Did he know that what he was doing was wrong?" was wrong?" "What do you mean by wrong?" says the doctor. I said, "Wrong in the sense of being against the law." He says, "Yes, undoubtedly." "What then was his mental condition?" "He knew what he was doing, he knew it was against the law, but he had an irresistible impulse to do that act, his power of inhibition was gone and he could not help shooting the man." The other doctors agreed. I charged the jury, "If you believe what these doctors say, or rather unless on your


oath you think you know better than these doctors, then it is your duty to find a verdict of guilty. We are an iron people and we have an iron law. We must enforce the law as we find it. You have no more right to change the law than I have, and I have no more right to change the law than your minister has a right to take the word 'not' out of some of the commandments and tell you to obey the commandment as so amended to go and lie, steal and murder. Our law is, if a man, however insane he may be, knows what he is doing and knows that that is against the law, it makes no difference that he is insane-he must not be found not guilty on the ground of insanity. Our law says to a man who alleges he has an irresistible impulse, 'I shall hang a rope up in front of your nose and see if that won't help you some.' (Applause.) We are not troubled much with expert witnesses. (Laughter.) If an expert witness attempts to give an opinion as to what ought to be done with the accused, he is checked that is none of his business, it is not for him or for me, it is for the Executive to say.

[ocr errors]

Our civil practice we have found very convenient, very speedy. Please do not imagine I am up here to boast about my own country or find fault with any other but we have found our civil practice very speedy, and a man can have his case tried just about as soon as he wants to. In ninetynine cases out of a hundred the delays are due either to the client or to lawyers who do not want to have the case tried. They are skirmishing for a settlement or looking out for something else. There is no reason why a case should not be tried within six months of the writ or less. The first case that ever came before me for determination that went to the Privy Council, I heard in April, and in June of the following year it had gone through all the Canadian Courts,

and had been finally determined by the Privy Council. There is no reason why any case should not be concluded in our country in less than eighteen months. There is no reason why a man who has met with an accident should not have his case tried anywhere throughout the country in less than six months. The practice, as I have said, we have found convenient.

There are two ideas which are the basis of the practice of law in different countries: one is that the Courts are a sort of umpire sitting up on the watch to see that the two men fight out this dispute according to the rules of the game. It is not a matter of very great importance whether a man gets his rights or not, but it is a matter of enormous importance that the smarter man should get a verdict. That is the old idea. The other idea is that a man should get his rights even although the record gets in a shocking state. You remember when they talked about the English Common Law Procedure Act, Baron Parke said, "Think of the state of the record'." Rec'ord I suppose I ought to call it on this continent, "Think of the state of the record." That was the old idea. The learned Baron suffered greatly. It is fair to say he had a new lease of life when he moved in the House of Lords as Lord Wensleydale.

You will, no doubt, remember Sir William Erle, when Baron Parke said, "My monument is to be found in the sixteen volumes of Meeson and Welsby," replying, “Parke, if there had been seventeen, the people of England would have risen up and wiped out the Courts entirely." (Wise's Index had not then been published, and so the Courts escaped extinction.)

The other theory is that Courts are instituted to do justice between man and man, to see that every one gets his rights irrespective of the way in which his lawyer asks for

« PreviousContinue »