evidence or to prepare an answer to it, although if time were given he could, and the accused would thus be very much prejudiced. I take it the intention is that if a witness were produced suddenly at the trial whose evidence was of an important nature, the Judge himself would see that unless the prisoner had an opportunity to answer the evidence so given in some way, it would be very injurious to him. In such a case it is open to question whether the Judge should discharge the Jury or simply postpone further hearing of the case. As to the second clause I do not see any strong reason for it. The Crown, I think, ought to call the witnesses whose names are on the back of the indictment, and this is now the practice.

Mr. CHAPLEAU.--Sometimes a new witness is called up through the deposition of another witness whose name is on the back of an indictment, and the prosecutor, in calling up this new witness, might be said to take the defence by surprise. In this case one of two things is always open to the Judge. He might say that he could not accept that evidence, or he might say: We have no objection to granting a brief adjournment. But a difficulty might arise for the Judge in a case where a man of means or high position finds that he has not a "friendly jury," finds that he is in a tight place, and with the great means at his command he may be able to produce witnesses who will give affidavits, and the Judge will either have to say that in his opinion those witnesses should be heard, and discharge the Jury, or adjourn the case until the next term, or else run the risk of being accused of doing an injustice to the prisoner.

Mr. MASSON.-I think the argument presented by the Minister of Customs, instead of weakening my view, strengthens it. I do not think that any difficulty will arise in the application of this provision. The Crown must either produce a witness they did not produce before, and the defence must be taken by surprise, or the Crown must have failed to call a witness as to whose testimony they had given notice and whose name they had placed on the indictment. In either of these two cases the accused may be taken at a great disadvantage. In a case of murder in which I acted for the accused, an investigation was held before a Coroner and before a bench of Magistrates. Before the Coroner a woman was called and gave evidence, in the course of which she stated that she knew nothing about the matter. This woman was not called before the Magistrates. In the meantime the detectives came into the case, and, by the means detectives use, they learned something, and she subsequently came forward and gave the convicting evidence. There is a case in which the defence was taken by surprise. Our information was that she knew nothing about the case, and would not be a witness. The first intimation we received was the appearance of her name on the back of the indictment, but as to what she was to say we knew nothing; and without her evidence I doubt whether the party would have been convicted. There are many such cases, especially where detectives have been called in to work up the evidence. Their aim is to keep all the evidence they have obtained, and one of their methods of action is to have false statements of the evidence about to be given

published in the press. Thus the prisoner comes to trial entirely in the dark as to the network of evidence which has been woven around him. The only answer would be to suppose that all this evidence was undoubtedly true. From my experience of the evidence worked up by detectives, I am not prepared to say that all of it is undoubtedly true, and I hold that a prisoner should have an opportunity of rebutting it. It is impossible to be prepared to rebut it until the evidence is known, and when such cases arise it is only justice to say that a man on trial for his liberty or his life should be given the opportunity and time to meet it. I think we can safely trust that discretionary power in the hands of the Judges without doing violence to the administration of justice.

Mr. LAURIER.-The amendment in this case is one based more on suppositions than on real facts. The hon. gentleman who has just spoken has cited one fact from his practice, but even that solitary case is not very conclusive. The hon. gentleman stated, and it was the only argument I have heard in favour of the amendment, that it is the practice in civil cases. But there is a wide difference between civil and criminal cases. The hon. gentleman must be aware from his experience at the bar, that when a man is put on trial it is ordinarily the event of his life. He has prepared for it during days and weeks, and when the trial occurs he is fully prepared, to make his defence. If he is not fully prepared, the invariable tactics pursued are to appeal to the court for a further postponement of the trial. When at length the trial is fixed he is ready to meet it with all the means available. The argument of the Minister of Customs is unanswerable, that if this amendment is adopted it must inevitably lead to numerous miscarriages of justice.

Mr. MASSON.-The hon. gentleman has truly said that it is usually the event of a man's life to be put on trial. But he cannot possibly prepare to meet evidence of which he has had no notice, and evidence entirely different from that which he was called upon to meet before the investigating magistrate.

Mr. TISDALE.-I confess that, looking at the carefully prepared clause, it seems to me that what the English Commissioners wish to provide against, is not so much the taking advantage of a prisoner who has had every chance to be prepared, but against the Crown taking advantage of an ordinary prisoner. The prisoner must satisfy the Court that the Crown have been guilty of unfairness, and the Court must judge of that fairness. The prisoner must either show that the Crown had neglected to call a witness that, under all the fair circumstances of a criminal trial under British practice they should have called, or that they produced a witness which they should not have produced. It is limited to these two things. Those Hon. Gentlemen who have prosecuted a good deal must not forget, although they sometimes do, that a man is innocent until he is proved guilty, and that he should have the fairest possible trial in the world. I have seen eminent American lawyers of large experience in criminal cases, who, when they visited the Courts in England and saw great criminal trials conducted there, expressed them

selves as lost in admiration at the fairness of these trials. While we are proud of our Courts in Canda, yet we have not the experience or the opportunity, and I am glad to say not the quantity of crime— because our population is smaller, perhaps to investigate as have these eminent jurist in England. When these great criminal lawyers and jurist of Great Britain lay down such a principle, they must have had very strong reasons for it. I will most certainly support keeping this in the Bill. Though I have nothing like the experience these English lawyers have, yet I have acted sometimes as prosecutor and sometimes as defending counsel, and I lean to the old principle that a prisoner who is on trial for his life or his reputation, shall have the best of it if possible, if there is any question which side shall have the best of it.

Mr. DAVIES (P. E. I.)—I think the hon. gentleman did not do justice to the argument presented by the Minister of Customs which seemed to me to be a very strong one. Here is a Judge sitting on the bench and a man whose life is at stake is being tried. The man has had a fair Jury empannelled, and he did not object at first, but as the trial goes on he sees he has very little chance of success; and suppose he submits his own affidavit, or the affidavit of his attorney that he is taken by surprise, the Judge has only to decide on that. In civil cases the Judge may say: You can make an application for a new trial if you do not get justice, but in that criminal case no new trial can be had, and the onus is thrown on the Judge to say he does not believe the affidavit.

Mr. McLEOD.-It does not strike me that the affidavit has anything to do with it. The Act says "if the Court is of opinion," &c. The Judge hears the evidence that is given by the witness, and he simply forms his opinion from that. It does not necessarily place the Judge in any more difficult position than that in which he is placed continually in criminal trials. He takes the responsibility of that and there is no appeal from his decision. These are responsibilities attached to the office of Judge, and this is merely giving him larger jurisdiction to protect the prisoner. A Judge may see that the accused is being very injuriously prejudiced by the production of a witness of which he knew nothing, and yet he sits there powerless, and must let the prisoner suffer in consequence of that. This section puts the Judge in a position to protect the prisoner. Even if it does place the Judge in a worse position than he is in at present, then I submit that it is the duty of the Judge to take that responsibility. We should not legislate in such a way as to relieve a Judge from responsibility, but we should see that the prisoner has a fair and proper trial I am strongly impressed in favour of the section because it has been enunciated by distinguished English lawyers. For

Mr. OUIMET.-This would happen in almost every case. the preliminary examination it is only necessary that there should be one or two witnesses examined to make out a primâ facie case, sufficient to justify the Magistrate in committing. Then, when the trial comes on and the accused produces his witnesses, sometimes a large number of new witnesses who were not heard in the preliminary

case.

investigation, are called. That is the reason why the general practice has been to put on the back of the indictment the name of every witness who has to be heard during the trial. If this clause is adopted in its present form, there will not be one case in a dozen in which the accused will not be in a position to produce an affidavit stating that he was taken by surprise, because he did not know in advance what would be said by every witness to be called in the If there is any reason for this clause, it is only in the first case mentioned, that is, when a new witness is sprung upon the defence without notice; but the placing of the name of the witness on the back of the indictment is, I think, a sufficient notice in every case. If a glaring injustice were to result from that, that would be one of those extreme cases for which we could provide; but the second part of the clause is entirely useless, and would just lead to endless litigation and practical miscarriage of justice in five out of six cases.

Mr. MASSON.-I still submit that the possibility of the Crown being prejudiced at the trial could easily be provided against by the Crown giving 24 or 48 hours' notice of the evidence they intended to produce. They do not need to give it in detail, but such as is given in a statement of particulars in a civil case. Then the prisoner would consider before the trial began whether he would make his application then or whether he would wait and if he did not make it before the trial, having had such notice, the judge would refuse his application if made after the trial began.

Mr. OUIMET.-In trials of professional thieves, for instance, you would never get a conviction if the accused had in advance the name of every witness, and the substance of what he was going to

say.

Mr. LAURIER.—We have been in the habit so far of following British legislation in criminal matters; but in this case we would be anticipating British legislation. It is true, we have the report of the British Law Commissioners, which is a very high authority, but it is not law, and it is the experience of every one, except, perhaps, my hon. friend from Grey, (Mr. Masson), that no substantial injustice has occurred. It seems to me that is a good argument why we should wait until the practice is changed in England before we change it in Canada.

Mr. MILLS (Bothwell). I suppose this provision has been suggested by some of those cases in England in which innocent persons were convicted upon the evidence of persons who formed conspiracies against them, and were subjected to very serious punishment, I think in one case to transportation for life; and in another case a person suffered imprisonment for 20 years before he obtained evidence to prove his innocence, and Parliament had to compensate him for the loss he sustained. It seems to me that the only effect of this provision would be to compel the prosecuting counsel to inform the defendant in a larger degree than at the present time what he intends to establish, in order to avoid the very thing that this clause if carried, authorizes the postponement of the trial. If that were

the effect, the trial on the whole would be a fairer trial than it would be if the law is left as it is. I do not know that in many cases such serious hardship arises under the present law, because by appeal to the Executive, redress can be obtained; but that appeal after all converts the Executive into a Court in which the decisions of the Courts are reviewed and new evidence taken. The Home Secretary is doing that every day. There are two circumstances which contribute to it-the taking of the prisoner by surprise at the trial, and the question arising as to his mental soundness. these two classes of cases appeals to the Secretary of the Home Department are rendered necessary; and I suppose the object of this provision is largely to take from the Executive Department of the Government this duty, and vest it in the courts, where, after all, it more properly belongs.

In

Committee rose and reported progress.

MONDAY, 27th June 1892.

(In the Committee.)

On section 687, sub-section 2.

"Provided that if a witness whose deposition has been taken and signed in the manner aforesaid is absent from the province, and it is made to appear that his attendance at the trial cannot be had, the Court may, in its discretion, allow such deposition to be likewise read as evidence for the prosecution."

Mr. MULOCK-There is a good deal of objection to this clause. The examination at the preliminary investigation is not as thorough as that at the trial.

Sir JOHN THOMPSON.-The ground on which the joint committee recommended it, was, that it was, after all, leaving the matter to the discretion of the Judge as to whether he would receive it or not. If it appeared that the witness had not been cross-examined or the prisoner not defended, and so forth, the Judge would practically refuse to admit it.

Mr. MULOCK.—I would leave discretion to the Judge, if there has been cross-examination, but not otherwise. As a matter of principle, we should not admit the doctrine that depositions should be admissib.e as evidence in the absence of the witness, where he has not been cross-examined.

Sir JOHN THOMPSON.—I will not press the clause. I think it is highly doubtful.

Dropped.

On section 727.

Mr. MULOCK.-That does not meet the whole case It admits that interference with the Jury may produce substantial injury, but there shall be no relief unless discovery takes place before the verdict.