more than provide material reasonably suitable for a sidewalk, and for the necessary repairs, and of such a character as was adapted for the use of pedestrians during the greater portion of the year, and that the corporation was not bound to consider, and not bound to provide against exceptional circumstances arising from the elements over which they had no control, and he found for the defendants. From this judgment the plaintiff appealed; but the Queen's Bench Divisional Court, after argument, dismissed the appeal, holding unanimously that the defendants were not liable.

The following authorities were cited: Pictou v. Geldert, (1893) App. Cas. 524; Pratt v. Stratford, 16 Ont. A.R. 5; Yeomans v. County of Wellington, 4 Ont, A.R. 301; Brant v. Hammersmith R. W. Co., L.R. 4 H.L. 171; Caledonia R. W. Co. v. Ogilvie, 2 MacQ. H. L. (Sc.) 229; Garfield v. Toronto, 22 Ont. A.R. 128; Raleigh v. Williams (1893) App. Cas. 540; Johnson v. Columbia, 6 Sup. Ct. Rep. U.S. 924; City of Detroit v. Beckman, 34 Mich. 125. Con. Mun. Act, 1892, s. 531; 57 Vict., c. 150, s. 13; 59 Vict., c. 51, s. 20.

COURT FOR CROWN CASES RESERVED.

The recent decision of the Chancery Divisional Court in The Queen v. Hammond (p. 164), seems to emphasize what appears to be a blot on the administration of justice in criminal cases in Ontario. Under the Criminal Code, s. 3 (e) the Court for the disposition of Crown cases reserved in Ontario, is any Division of the High Court of Justice. But a Divisional Court of the High Court is a fluctuating tribunal composed from time to time of different judges-now of the judges of the Queen's Bench Division, now of judges of the Chancery Division, and yet again of Judges of the Common Pleas Division, and each of these tribunals, it is held, are so far separate and independent tribunals as that none of them is bound by any decision of either of the other two, so that it is quite possible that three different and conflicting decisions may be given by them severally on the same ques

tion of law. Two absolutely conflicting and irreconcilable decisions have even now been given by the Judges of the Queen's Bench Division and the Judges of the Chancery Division on the point of law arising on the construction of the Canada Evidence Act, 1893 (56 Vict., c. 31), s. 5.

That section provides that "No person shall be excused from answering any question upon the ground that the answer to such question may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any other person: provided, however, that no evidence so given shall be used or receivable in evidence against such person in any criminal proceeding thereafter instituted against him, other than a prosecution for perjury in giving such evidence."

The Judges of the Queen's Bench determined, in The Queen v. Williams, 26 O.R. 583, that the evidence of a person called as a witness before a coroner, is admissible against him on his subsequently being prosecuted for a criminal offence, unless, at the time of giving his evidence, he expressly claimed to be excused from giving evidence on the ground that his evidence might criminate him. The majority of the Judges of the Chancery Division (Boyd, C., and Robertson, J.) on the other hand have held in The Queen v. Hammond, that the evidence is inadmissible against the witness on any subsequent criminal prosecution, whether he claimed to be excused from giving evidence before the coroner or not. Meredith, J., however, dissented, and agreed with The Queen v. Williams. It appears, therefore, that there is a numerical majority of Judges in favour of the latter decision, but in arriving at their judgment in that case, the Judges of the Queen's Bench Division overruled the prior decision of Meredith, C.J. C.P., at nisi prius, in The Queen v. Hendershott, 26 O,R. 678. There are therefore Armour, C.J. Q.B., and Falconbridge, Street, and Meredith, JJ., in favour of The Queen v. Williams and the Chancellor, and Meredith, C.J. C.P., and Robertson, J., in favour of the view taken in the Queen v. Hammond. Considering the momentous interests at stake it must be confessed that this is not a satisfactory method of

administering the criminal law, and it is needless to say that it is a somewhat unpleasant reflection that if the case reserved in The Queen v. Hammond had been argued before the Judges of the Queen's Bench Division, it would probably have resulted in the affirmance of the conviction of the prisoner upon evidence, the admissibility of which, in any view of the case, must now be considered at all events as doubtful.

The life of a human being in any civilized community ought not to be exposed to any such hazard; and it is entirely contrary to the genius of the modern British criminal law that it should be so uncertain in so material a matter.

It is always an anomalous thing for judges of co-ordinate jurisdiction to arrive at diametrically opposite conclusions on the same question of law, and while it is bad enough in civil cases, it appears to be tenfold worse in criminal cases, as to which the law ought always to be as certain as human ingenuity can make it, and it therefore appears to be a matter urgently demanding the attention of the Dominion Government whether some remedy for the present condition of affairs cannot be found.

In England the importance of securing, as far as possible, certainty on questions of criminal law seems to be recognized. There the court for crown cases reserved is a tribunal composed of all of the Judges of the Queen's Bench Division, or any five or more of them. This tribunal has an inherent identity, although its membership may fluctuate, and the uncertainty consequent on conflicting decisions is thus avoided, and it may be well worth consideration whether it would not be better in Ontario to provide that the court for crown cases reserved should be composed of the whole of the Judges of the High Court, or at all courts of at least seven of them, and that its decision should be binding on the court, however it may be composed.

The difficulty of securing unanimity of opinion among judges where they are at liberty to form independent conclusions untramelled by previous decisions, is well illustrated by two recent cases, Hawke v. Dunn (1897), I Q,B. 579, (noted ante vol. 33, p. 578), and Powell v. Kempton Park (1897),

2 Q.B. 242 (noted ante vol. 33, p. 762) where five of the Judges of the Queen's Bench Division in a Crown case reserved arrived at one conclusion as to the meaning of a statute, and five of the Judges of the Court of Appeal in a civil proceeding arrived at a diametrically opposite conclusion as to its meaning. The criminal law in England, however, we apprehend, would be regarded as settled by the decision of the Criminal Court, and not by that of the Civil Court, notwithstanding its superior authority as a Court of Appeal. The anomaly of two courts for the administration of the criminal law arriving at opposite conclusions on the same point of law is at all events avoided there.

The present condition of things in Ontario is not only open to the serious objection that the law in one of its most important branches is liable to be rendered uncertain, but it is open to the further objection that the uncertainty of the law renders the administration of justice unnecessarily costly and burthensome to the public. In this very case of The Queen v. Hammond, the Judge at the trial admitted the evidence objected to, on the authority of the decision in The Queen v. Williams, and now the very heavy expense of a further trial has to be borne by the public. The counsel for the Crown, moreover, was placed in a position of great embarrassment. Had he neglected to offer the evidence in question he would have laid himself open to a charge of serious ne glect of duty, and yet in offering tnis important evidence he had to take upon himself the equally serious risk of incurring the enormous expense involved by a third trial of the prisoner.

On the abstract merits of the question involved in the conflicting decisions which have been referred to, it may not be inopportune to offer some observations. With regard to the question which of the two Courts has correctly interpreted the statute, it would be presumptuous for me to offer any opinion, but it may be worth while to discuss what the law on the point ought to be. The fundamental principle of the criminal law that no man ought to be compelled to accuse himself is one that ought to be jealously

guarded, but it must be remembered that that principle has never been held to prevent a person from being found guilty on his own confession. Very often a prisoner after pleading guilty is permitted to withdraw his plea and substitute one of not guilty, but a confession freely and voluntarily made is perfectly good evidence. The fact that such a confession may be used against the person making it, is necessarily a wholesome deterrent against persons confessing to crimes of which they are really guiltless in order to shield the person who is really guilty. Now it is very important that this deterrent should not be lightly removed. The decision in The Queen v. Hammond may lead to this unpleasant result, that if A. B. is accused of a murder which he really has committed, his friend C. D. may step into the box, in order to shield him from the consequence of his crime, and swear in the most positive and unequivocal and circumstantial manner that he, C. D., committed the murder, with no other danger to be apprehended to himself than a prosecution for perjury. In the face of such evidence it may be very difficult to induce a jury, even with the most circumstantial proof of guilt, to find a verdict against the real criminal.

This seems to be by no means an improbable case, and the annals of the criminal law would disclose many instances in which a false confession of this kind has been made to shield another. The law as interpreted in The Queen v. Hammond may, it is to be feared, open the door to that kind of testimony, and especially as the terror of incurring the risk of having such evidence used against the party giving it is altogether removed.

It is submitted that the section of the Evidence Act under discussion needs reconsideration, and that more ample safeguards should be provided than there are at present, against the manufacture of false evidence in order to shield the guilty.

GEO. S. HOLMESTED.