prejudice to his case which might be created by evidence or admission of a former conviction. The substantive charge is a violation of some of the provisions of the Act, a charge upon the trial of which evidence of other offences would be inadmissible, and the accused is not to be put in a worse position in that respect because of the charge of a previous conviction or previous convictions; and that purpose should and would be given effect to quite as effectually in ex parte proceedings as in the presence of the accused; in ex parte proceedings the magistrate is empowered to hear and determine the case as fully and effectually, to all intents and purposes, as if the accused were personally present. If personally present, no evidence or admission of the former conviction would be admissible until guilt of the subsequent offence was proved and found; if absent, the like course of procedure in regard to the admission of such evidence would be applicable and should be applied, and of course a plea of guilty, or an admission of a former conviction, would be impossible the trial would proceed as if there had been a plea of not guilty as to the substantive offence, and as to the former conviction, each at the proper time.

Thus, reasonably, I hope and think, effect can, and should, be given to each enactment, and therefore I can find no reason for acting as if they were inconsistent the one with the other, and less for creating repugnancy.

No one would deprecate more than I, reading into either enactment any words which would change its meaning, even for a good and useful purpose; but I would the more deprecate reading into the enactment in question such words as and no person shall be proceeded against in his absence" (as must be done to make any expressed conflict) and at the same time protesting against reading into it such words as "if present," though not necessary as the enactment stands; but would, most of all, deprecate reading out of the statutes the whole of the provisions respecting proceeding ex parte, in the teeth of the legislative injunction that such procedure "and no other" shall be employed; and without any sort of substantial reasonable purpose in doing so, but with the effect of shortening the arm of justice so that any such offender might stand beyond its reach and laugh at its impotence.

It is said that the cases are opposed to this view of the matter, but upon consideration of them it will be found that that is not so; that the very opposite is the fact. In Regina v. Edgar (1887), 15 O.L.R. 142, in Regina v. Brown, 16 O.L.R. 41, and in Rex v. Nurse, 7 O.L.R. 418, the accused was present at the trial, and yet there was a conflict of opinion as to the imperative need of complying with the provisions of the Liquor License Act. These cases throw no light on the question involved in this case. On the other hand, Regina v. Kennedy, 17 O.R. 159, is one in which a Divisional Court sustained a conviction of a third offence in the absence of the accused and without compliance with the provisions of the Liquor License Act: and in a quite recent case-Warilow's, 17 O.L.R. 643, 664 the very question arose, and, after a full discussion of it, and of the cases bearing upon it, a Divisional Court unanimously adjudged that a conviction made in the absence of the accused, and without any of the formalities provided for in, the Liquor License Act, was valid; that the accused might be proceeded against in his absence. The attention of Middleton, J., could not have been called to this case; the result before him must have been different if it had.

The Nova Scotia case, so often referred to, is not a decision to the contrary. It was decided under very different legislation; in which there were no such imperative words as I have quoted from the Ontario Summary Convictions Act; on the contrary, it was provided that the summary convictions enactment might be proceeded under "so far as no provision is hereby made for any matter or thing which may be required to be done in regard to such prosecution;" so that one might, without inconsistency, agree with the Nova Scotian Court, and hold that the judgment in appeal should be reversed; and, if this were not so, the decision of the New Brunswick case, or rather the opinions of the Judges expressed therein, would off-set the Nova Scotian decision.

But, let it be assumed that the two enactments are ever so repugnant the one to the other: which is to prevail? That question is answered, in unmistakable language, by the Legislature, in the Ontario Summary Convictions Act, an Act especially passed for the

purpose of governing the mode of procedure in such cases as this, and all others, in summary proceedings under the statutes of the Province; and there it is enacted that the procedure therein provided "and no other" shall be taken, unless, in any Act thereafter passed imposing the penalty or punishment, "it is otherwise declared." The two enactments are contained in the same statutebook and were passed at the same time. How can it, in the face of such language, be held that the provisions of that enactment should give way to those of the Liquor License Act? The latter could be saved only if it were (1) a subsequent enactment, and (2) if it were "declared" in it that the provisions of the Ontario Summary Convictions Act should not apply; and, plainly it seems to me, neither of these requirements exists. So that, if one or other of the provisions must go to the wall altogether, the Legislature has peremptorily said that, in regard to procedure, it must be the Liquor License Act; but, as I have before said, there is, in my opinion, no occasion for destroying one or the other; both can very well exist together.

Upon yet another ground the learned Judge, in my opinion, erred in interfering with the conviction. Whatever might have been thought of the provisions of the Liquor License Act now in question before the recent amendment of them, I cannot but think they must now be deemed to be but directory. Before that amendment there was a marked conflict of opinion upon the question; the weight of judicial opinion being probably against its imperative character; that must have been the opinion of the Queen's Bench Division which decided Wallace's case, 4 O.R. 127, for otherwise the conviction must have been quashed; and it was also, no doubt, the view of the dissenting Judge, for, if not, his opinion that the conviction should be quashed would have been based upon that ground also; again in Brown's case, 16 O.R. 41, Armour, C.J., expressed the opinion that the enactments in question were directory only, Street, J., concurring. The Judges comprising the Court which considered Wallace's case were more than ordinarily qualified to deal with such a question; against that there was the unanimous judgment of a Chancery Divisional Court in Nurse's case, 7 O.L.R.

418, following Edgar's case, 15 O.L.R. 142, a judgment of a single Judge the late Mr. Justice Rose. In Nurse's case the Wallace case was not referred to, and so the Court fell into the error of saying that Brown's case was the only one in which any opinion that the enactment was directory only had been expressed. I need not again refer to the Nova Scotia and New Brunswick cases.

It is not needful to say upon which side in that conflict one would have stood; but I may say that, in my opinion, more attention might well have been given, in some of them, to the purposes of the legislation.

Before the recent enactment the provision was that the magistrate should "in the first instance" inquire concerning the subsequent offence only, and, if the accused were found guilty of it, he should "then, and not before," proceed in regard to previous convictions. The negative words "and not before" had been, of course, much relied upon as indicating the imperative character of the enactment; by that recent legislation-9 Edw. VII. ch. 82, sec. 20— those words "and not before" were struck out; the words of the section are: "The paragraph numbered 1 in section 101 of the Liquor License Act is amended by striking out the words and not before' in the third line."

No one can doubt that the one purpose of this enactment was to settle the vexed question in favour of the directory character of the enactment. What other reasonable purpose can be suggested? Is there then any good reason why effect should not be given to such intention? Having regard again to the purposes of sec. 101, I have no difficulty in answering the question in the negative.

Two cases have been decided since the amendment of the Act, in each of which this question was involved. In Rex v. Teasdale (1910), 20 O.L.R. 382, the amendment of the Act does not seem to have been brought to the attention of the Court. In Rex v. Graves, 21 O.L.R. 329, although it eventually was decided upon another ground, this question was fully considered by Riddell, J., whose conclusion was, that, since the amendment at all events, the enactment must be considered directory only. I agree with him in his conclusion and in the reasoning by which it was reached. I would, therefore, allow the appeal.

MAGEE, J.A.:-Ever since the Consolidated Statutes of Canada 1859, ch. 103 (based on 16 Vict. ch. 178), there has been a provision in the law relating to summary convictions generally, that if at the day and place appointed for hearing a complaint, the defendant did not appear, and it was proved that the summons had been duly served, the Justice or Justices of the Peace might proceed to hear and determine the case in his absence, or might issue a warrant to secure his presence and adjourn the hearing until his apprehension (sec. 32), and that "in case the defendant be present at the hearing, the substance of the information or complaint shall be stated to him, and he shall be asked if he has any cause to shew why he should not be convicted" (sec. 37), and, if he thereupon admitted the truth, and shewed no cause or no sufficient cause, the Justice or Justices should convict him (sec. 38), and, if he did not admit the truth of the information or complaint, the Justice or Justices should proceed to hear the evidence (sec. 39), and determine the matter (sec. 41).

This provision for ex parte hearing, if the defendant disobeyed the summons, applied to all cases of summary convictions, and it would be applicable whether the defendant was charged with a first or a second offence. After Confederation it was embodied also in subsequent Dominion consolidating Acts (32 & 33 Vict. ch. 31, secs. 7 and 32, R.S.C. 1886, ch. 178, sec. 39, Criminal Code, 1892, sec. 853), and is now in the Criminal Code of 1906, of which secs. 718, 721, 726, correspond in substance with those of 1859 which I have referred to.

In cases where a previous conviction was charged there was not in these Acts relating to summary convictions any such provision as there was in the case of indictable offences triable by a jury (Criminal Code, 1906, sec. 963), for postponing any allusion to the previous offence until after the jury had found the accused guilty of the subsequent one. That order of procedure, adopted in fairness to the accused so that the jury might not be prejudiced against him by an idea of his former guilt, has little such advantage when he is to be tried by a magistrate, who knows of the alleged earlier shortcomings from the sworn information, and may himself have made the conviction.