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CONTEMPT OF COURT IN LOWER CANADA.
Our professional brethren in the Lower Province may be congratulated, if such a subject can be the subject of congratulation, upon the very thorough knowledge they must almost necessarily have acquired lately of that branch of legal lore known as Contempt of court. The subject is somewhat extensive, using the term in its general sense, but in the sense in which it has come so prominently before the people of Lower Canada, it is happily little heard of.
In fact so little does it affect us in this part of the Dominion of Canada, that it would seem unnecessary to notice it, but we cannot well ignore what is taking place in legal matters within the courts of Lower Canada, particularly where the points involved are not in their nature of a character having reference to that part of its laws which have no bearing
The Ramsay contempt case, as it is called in Lower Canada, has again entered its ugly appearance in court. This time in a Court of Error and Appeal, under the name of Ramsay plaintiff in error v. The Queen, defendant in error, on a writ of error from a judgment of
Mr. Justice Drummond, holding the Court of Queen's Bench, Crown side, at the last term of the court, for the district of Montreal, on a rule for a contempt of the Court of Queen's Bench by Mr. Ramsay, in publishing two arti
cles in the Montreal Gazette of the 27th and 29th of August last.*
It was submitted, amongst other things, by the plaintiff in error, that, as no man can be a judge in his own cause, and as Mr. Justice Drummond was himself the complainant, he was precluded from sitting or giving any judgment on the rule. Before going into the merits of the case, Mr. Ramsay objected to the competency of Mr. Justice Drummond to sit in the case, on the grounds that he gave final judgment in the court below, and that he was the party complainant in this case; but the court were, and we should think very properly, unanimously against him on these points. The first point was urged under the wording of the statute, and the second bore an impression of reason, owing to the unhappy manner in which the judge had conducted himself throughout the proceedings antecedent to this appeal.
Mr. Ramsay, on same day, applied, with tho consent of the Attorney-General, for leave tə appeal to the Privy Council. This being refused (Mondelet, J., dissenting,) he moved, with the like consent, to discharge the inscription, contending that the court could not interfere, that the Crown was dominus litis; that it had been declared by the court that morning that it was not Mr. Justice Drummond; that it was the Queen, who was represented by the Attorney General, (citing The Queen v. Howes, 7 A. & E. 60.) The court, however, refused to recognise the right of the Attorney General to abandon a proceeding for contempt (Mondelet, J., dissenting). Leave to appeal from this was also refused.
The question then remained to be discussed, whether or not a writ of error would lie from a judgment for contempt. The court was not unanimous upon this point, the majority holding that it would not, and Mondelet, J., thinking that it would, and arguing forcibly enough the impropriety of the same individual being, as he might be, he contended in cases of this kind, the accuser, witness and
judge, and his judgment final and irreversible.
But we think he travelled out of the record,
and his remarks favoured of what is vulgarly termed "claptrap" when he said, "For my. self I want no such privilege; not only as a citizen but as a judge I invite the scrutiny of the public eye. If I am honest, I have nothing
*See p. 2 U. C. L. J., N. 8. 283.
CONTEMPT OF COURT IN LOWER CANADA.
to fear; and if I am dishonest, the sooner I am found out the better."
But whilst upholding the right of free judgment and fair criticism as to the acts and conduct of persons holding judicial positions, we must be very watchful that such criticism is fair, and not pushed to such lengths as to bring the judicial office, as distinguished from the individual holding that office, into contempt, and that remarks should not be made, which, however true they may be in themselves, are calculated to diminish the respect due to the laws, or to lessen the confidence of the public in their due and just administration.
Whilst admitting the apparent impropriety urged by Judge Mondelet, as to the same person acting in a variety of capacities, it is equally clear that Judge Badgley went to the root of the matter when he said, “Arguing from the mere reason of the thing, it is a plain consequence, that contempts would necessarily fail of their effect, and the authority of courts of justice would become contemptible, if their judgments could in such matters be subjected to revision by any other tribunal." The same view of their matter was years ago taken by that eminent jurist, Chancellor Kent, (referred to by the Lower Canada Law Journal, from which we take it,) when, in criticising a proposed penal code for Louisiana, which contained a provision for the trial of matters of contempt by a jury, he said, "Under such a state of law, no one would be afraid to offend; the delay of punishment and the manner and chances of escaping it, would disarm the expected punishment of all its terrors, nor could the insulted court or judge ever think of the attempt to cause the infliction of punishment under so many discouragements. It would be idle for the law to have the right to act, if there be a power above it which has a right to resist. In criminal matters penal law must enforce satisfaction for the present acts and security for the future; in other words it must have a remedy and a penalty. How could there be either a remedy or a penalty, if the judgment of contempt was subject to review by any other tribunal.”
Apart from this, the weight of authority appears to be against the allowance of any appeal in matters of contempt, and such was the opinion of the court in the present case; and so the matter stands at present, unless indeed, as is remarked by our Lower Canada contemporary,
the Judicial Committee of the Privy Council see fit to entertain an appeal from the judgment of the court. For our part, indeed, we hope that this unpleasant episode respecting legal life in this Canada of ours may not be further agitated in the English courts, and that however interesting the points in dispute may be in themselves, they may be considered settled as they now stand.
That such a state of things as have resulted in the cause celebre of Ramsay, plaintiff in error, v. The Queen, defendant in error, exhibits, could not well occur in this part of Canada, we may well be thankful for. That such a boast may be as true of the future as it has been of the past, should be the constant aim and exertion of all those, who, on the bench or at the bar, or in the study of the laws, desire the welfare of their country. The heritage left to us by those able, courteous, and high-minded men who set the standard of the profession in Upper Canada cannot be too highly prized; and he who first, whether by his conduct on the bench or at the bar brings discredit upon their teaching, will, we doubt not, meet the universal contempt, which such conduct would deserve.
The Bench of Lower Canada is not (with some honourable exceptions) what it ought to be. The conduct of Lower Canada judges has, on more than one occasion, caused Canadians to blush; and we regret to say that people abroad know no distinction between the Bench of Upper and Lower Canada, and so in their ignorance cast upon the Bench of Canada, the obloquy which appertains to that of the Lower Province alone.
The prosecution of Governor Eyre in England appears to have come to nothing, the Grand Jury having thrown out the bill. The address to that body by Chief Justice Erle is said to have been an effort worthy of that learned judge, and to have occupied some six hours in its delivery. The necessity for the protection of persons acting honestly in the difficult position such as that in which this well abused Governor was placed has had its proper weight.
Our readers will observe that Mr. Harrison's Municipal Manual has been completed, and is now ready for delivery in a bound form.
ORDERS OF COURT OF CHANCERY.
ORDERS OF COURT OF CHANCERY. The following Orders were promulgated on, and bear date the 1st April, 1867.
1. Every paper to be filed in the office of the Registrar at Toronto is to be distinctly marked at or near the top or upper part thereof, on the outside, with the name of the city or town in which the bill is filed; and the Registrar is not to file any paper which is not so marked.
2. In ordinary suits for foreclosure or sale against infant heirs or devisees of the mortgagor, or of the assignee of the mortgagor, where no defence is set up in the infant's answer, the cause is not to be set down to be heard in Court by way of motion for decree; but after the infant's answer is filed, or after the time for filing the same has expired, the plaintiff is to file affidavits of the due execution of the mortgage, and of such other facts and circumstances as entitle him to a decree, and is to apply for the decree in Chambers, upon notice to the infant's solicitors.
3. A defendant may claim, by answer, any relief against the plaintiff which such defendant might claim by a cross bill.
4. All exhibits put in at the hearing of a cause, are to be marked thus: "In Chancery [short title]. This exhibit (the property of -) is produced by the plaintiff (or defendant C., as the case may be), this day of 186-. A. B." (the Registrar or DeputyRegistrar.)
5. Every decree or order is to be bespoken, and the briefs and other documents required for preparing the same are to be left with the Judges' Secretary, within seven days after the decree or order is pronounced or finally disposed of by the Court.
6. In case any decree or order is not bespoken, and the briefs and other documents are not left within the time prescribed by the next preceding rule, the decree or order is not to be drawn up without leave being obtained on an application in Chambers.
7. The plaintiff, on applying for a decree on præcipe, is to produce to the Registrar an office copy of the bill, in addition to the papers required by Order 4 of the General Orders of 10th January, 1863.
8. Decrees, Special Orders and Reports are to be divided into convenient paragraphs, and such paragraphs are to be numbered consecutively.
9. Upon every office copy of a decree served, pursuant to section 2 of Order 6, of the General Orders of June, 1853, there is to be endorsed a memorandum in the form or to the effect following, that is to say: "Take notice, that from the time of the service hereof, you (or, as the case may be, the infant or person of unsound mind) wil. be bound by the proceedings in this cause in the same manner as if you (or the said infant or person of unsound mind) had been originally made a party to the suit;
and that you (or the said infant or person of unsound mind) may, upon service of notice upon the plaintiff, attend the proceedings under the within decree; and that you (or the said infant or person of unsound mind) may, within fourteen days after the service hereof, apply to the Court to vary or add to the said decree. A. B., of the City of Toronto, in the County of York, Plaintiff's Solicitor."
10. Where any person required to be served with an office copy of a decree, pursuant to section 2 of Order 6 of the General Orders of June, 1853, is an infant, or a person of unsound mind not found so by inquisition, the service is to be effected upon such person or persons, and in such manner as the Master before whom the reference under the decree is being prosecuted shall direct.
11. At any time during the proceedings before any Master under a decree, the said Master may, if he thinks fit, require a guardian ad litem to be appointed for any infant, or person of unsound mind not found so by inquisition, who has been served with an office copy of the decree.
12. Guardians ad litem for infants, or persons of unsound mind not found so by inquisition, who shall be served with an office copy of a decree, are to be appointed in like manner as guardians ad litem to answer and defend are appointed in suits on bill filed.
13. Trustees, agents, and other persons in a fiduciary situation, are not to bid under the general order giving parties liberty to bid; but liberty in the case of such persons is only to be obtained on a special application.
14. Upon every order of revivor served in pursuance of the order of 6th June, 1862, there is to be endorsed a memorandum in the form or to the effect following, that is to say: "Take notice, that if you desire to discharge this order, you must apply to the Court by motion or petition for that purpose, within fourteen days after the service hereof upon you. The original bill in this cause is filed in the office of the Registrar (or Deputy Registrar) at -;" and if the service is after a decree directing a reference to a Master, add, "and the reference under the decree in this cause is being prosecuted in the office of the Master, at
15. No certificate for an increased counsel fee, or for two counsel fees, is to be granted ex parte, unless the certificate is applied for within thirty days after judgment is given. Any application afterwards is to be on notice, and at the expense of the party applying.
16. To secure uniformity of taxation, no bill of costs exceeding $30 is hereafter to be taxed by the Accountant, Registrar, or Judges' Secretary, except in cases of decrees on præcipe, and under the second of these Orders, where there is no reference; and any costs heretofore directed to be taxed by the Accountant, Registrar, or Judges' Secretary, are to be
ORDERS IN COURT OF CHANCERY.-TESTIMONY OF PERSONS ACCUSED OF CRIME.
taxed by the Taxing Officer, if the amount clained exceeds that sum, notwithstanding anything to the contrary in the order in that behalf contained.
17. Where two or more defendants defend by different Solicitors under circumstances that, by the law of the Court, entitle them to but one set of costs, the Taxing Officer, without any special order, is to allow but one set of costs; and if two or more defendants defending by the same Solicitor separate unnecessarily in their answers, the Taxing Officer is, without any special order of the Court, to allow but one answer.
18. When, after the date of this order, a guardian ad liten is appointed on the application of the plaintiff to an infant, or to a person of unsound mind not so found by inquisition, no costs are to be taxed to the guardian; but in lieu thereof, the plaintiff is to pay to the guardian a fee of $15, and his actual disbursements out of pocket; and the plaintiff, in case he is allowed the costs of the suit, is to add to his own bill of costs the amount he so pays. But the Court may, in special cases, direct the allowance of taxed costs to a guardian ad litem. These Orders are to come in force on Monday, the 8th day of April, instant.
P. M. VANKOUGHNET, C.
TESTIMONY OF PERSONS ACCUSED OF
On the twenty-sixth day of May, 1866, the Legislature of Massachusetts enacted, that, "in the trial of all indictments, complaints, and other proceedings against persons charged with the commission of crimes or offences, the person so charged shall, at his own request, but not otherwise, be deemed a competent witness; nor shall the neglect or refusal to testify create any presumption against the defendant." In these few words, with very little discussion and with no great amount of inquiry, the Commonwealth of Massachusetts enters upon what to some appears merely an experiment, and to others a thorough revolution, in the administration of criminal law. Whether it should be designated as an experiment or a revolution, it cannot be said to have been called for by any generally acknowledged necessity, or to be intended for the purpose of reforming any practical abuse or defect that had been a matter of general complaint. On the contrary, if there has been any one thing in which the old rules of the common law were successful in their practical working, it was in the protection of persons accused of crimes against the danger of being unjustly convicted. Here, if anywhere, was to be found a justification of the cry of the old barons, "Nolumus leges Angliæ mutare." It is a just and well
founded boast of the common law, that, under its humane provisions, the risk of convicting a man of a crime of which he is not guilty is reduced to its very lowest expression.
Under the law of Massachusetts, as it stood until May 26, 1866, the great practical defence of every person accused of a crime was, first, the presumption of his innocence; and secondly, the certainty that he could not be compelled to furnish evidence against himself. The law not only presumed him to be innocent, but allowed him to keep his own secrets. He was not called upon to explain any thing, or to account for any thing. He was not to be subject to cross-examination. He had nothing to do but to fold his arms in silence, and leave the prosecutor to prove the case against him if he could. The penitentiary could not open "its ponderous and marble jaws" to devour him, unless his guilt was made out affirmatively beyond reasonable doubt. The verdict of "Not guilty" was perfectly understood to mean precisely the same as the Scotch verdict of "Not proven." No better protection to innocence could ever be devised. The only reasonable reproach ever urged against the system has been that it sometimes let the guilty escape.
It will be found, we think, on examination, that this experiment, or this revolution (whichever term may best describe this new statute), must inevitably and very greatly impair both of these defences against a criminal prosecution. It substantially and virtually destroys the presumption of innocence; and it compels an accused party to furnish evidence which may be used against himself.
If the statute merely provided in general terms that the person 66 charged with any crime or offence should be deemed a competent witness" on the trial of the indictment, its cruelty and injustice would be manifest at once. man can doubt that it would be utterly unconstitutional, and would be held to be so, in all the courts, without even the slightest hesi tation. It is for this reason, that the statute contains the fallacious and idle words, "at his own request, but not otherwise," and the equally idle and fallacious words, that "his neglect or refusal to testify shall not create any presumption against the defendant." We take the liberty to call these words "idle and fallacious," because the option which is given to the accused party is practically no option at all. In its actual workings, it will be found that this new statute will inevitably compel the defendant to testify, and will have substantially the same effect as if it did not go through the mockery of saying that he might testify if he pleased.
Let us suppose that a person is on trial on a criminal charge, and that the same evidence which was sufficient to cause the Grand Jury to find a true bill against him is brought for ward at the trial. There will be some plausi bility in the evidence; otherwise, no bill would have been found. There will be some show
TESTIMONY OF PERSONS ACCUSED OF CRIME.
of a case against him. The court, the prosecutor, the defendant, and the jury all understand that he can testify if he will. In fact, it is difficult to see how the presiding judge can possibly avoid informing him (if he is without counsel) of this privilege which the law gives him. How can he possibly do otherwise than testify? How can he be silent? Or, if he should see fit to be silent, of what practical value to him will be the presumption of innocence? How can the jurors avoid the feeling that the reason why he does not testify is because he cannot explain the suspicious appearances of his case, and because he dares not subject himself to the risks and perplexities of a cross-examination? If he has counsel, it is, if possible, even worse and worse; for the feeling will be that his counsel are afraid to put him on the stand. It will be found, in practice, that the defendant, in every case in which there is any apparent plausibility in the charge, will, at his own request," be made a witness; and the request will be made because he cannot help it. He will volunteer under the strongest compulsion, under a necessity that is wholly irresistible. The moment he takes the stand as a witness, the presumption of innocence, that bridge which has carried thousands safely across the roaring gulf of the criminal law, is reduced to a single and a very narrow plank, he must then stand or fall by the story which he can tell.
But it will be said, that the statute provides, in express terms, that his neglect or refusal to testify shall not create any presumption against him. This is an attempt, on the part of the Legislature, to cure the inhumanity of the "experiment," and would answer the purpose admirably if it could be done by any amount of "provided, nevertheless." The difficulty is, that the jurors all know that the defendant has the privilege (as it is called) of making himself a witness if he sees fit; and they also know that he would if he dared. They will, and they must, draw every conceivable inference to his disadvantage if he do not. His neglect or refusal to testify will, and inevitably must, create a presumption against him, even if every page of the statute-book contained a provision that it should not. The statutes might as well prohibit the tide from rising, or try to arrest the course of the heavenly bodies, as to prevent a juror from putting upon the defendant's silence the only interpretation that it will bear. The juror cannot fail to see that the defendant must know whether he is guilty or not; must know all about his own connection with the case; must know where he was and what he was doing at the time in controversy; must be able to explain every thing that bears against him; must be not only ready, but most eager, to do so, if he is in fact innocent of the charge, and yet that he refuses to do so. There is but one construction to be put on such refusal; and no statute can be devised that will prevent that construction from having its full effect.
The inevitable effect of the statute will be, that, "in the trial of all indictments, complaints, and other proceedings against persons charged with the commission of crimes or offences," the defendant will request to be himself a witness. This will be the invariable course of things in every criminal case which makes any show of plausibility, or exhibits evidence of any force or weight at all against the defendant. The necessity which has been pointed out will press equally and irresistibly on all. The innocent will be ready and the guilty will be compelled to ask the privilege, and all will use it. Passing over the question (though by no means a trivial one) of what value testimony will be that is given under such fearful and overpowering temptation to perjury, let us ask attention to the predicament in which a guilty man will be found." Suppose the evidence against him to be formidable, he may understand, or be advised, that silence would be better for him than anything he can possibly say; yet under the pressure of this terrific statute, he must go upon the stand as a witness. Ruin stares him in the face if he do not; and, if he does, what becomes of the constitutional provision that no man shall be compelled to furnish evidence against himself? Can he decline to answer on the ground that his answer might tend to criminate him? Has he not thrown overboard all his defensive armour? Is he not to be stretched on the rack of cross-examination? Will not all his secrets be wrung out of him by the torture of question after question? Plainly, the result must be that he will be compelled either to furnish evidence against himself, or to defend himself by lies "gross as a mountain;" an alternative to which the Constitution gives us no right to subject even a felon. We then should see the spectacle of smooth, ingenious, and plausible liars wriggling ingeniously, and perhaps with success, out of the toils in which clumsier, and perhaps better, men are hopelessly involved."
It is occasionally said, however, that it is of no consequence, or, on the whole, it is a good result rather, if the new statute facilitates the conviction of the guilty, and diminishes their chance of escape. Is it right, however, to compel the guilty to furnish evidence against themselves? Are we so fond of perjury, that we insist on forcing every man who really does not wish to go to the penitentiary or house of correction, and yet is guilty, to swear that he is innocent? Is not his plea of "Not guilty" enough? It is idle, however, to waste words on this part of the case. The Constitution says that no man shall be required to furnish evidence against himself. The statute, practically and in its effect, compels the guilty man either to furnish evidence against himself, or resort to a refuge of lies.
But suppose the defendant to be innocent. He may be wholly innocent of the particular crime laid to his charge, and yet very far short of being a saint or an angel. He may have