When inadmissible evidence has been inadvertently admitted it is the duty of the judge to caution the jury against acting on it.34

In trials for certain offences statements made in the presence of the accused are admissible for the purpose of corroborating the story of the injured party, but where such evidence is admissible the judge must warn the jury that such statements are not evidence of the facts contained in them unless the accused has by words or conduct accepted them as his own.35

Section 4 of the Canada Evidence Act prohibits comment by the judge or the prosecuting counsel upon the failure of the prisoner or his wife to give evidence at the trial on their own behalf. This is a statutory prohibition applicable to Canada only. English law prohibits comment by the prosecuting counsel but not by the judge.

The Canadian cases on the interpretation of this section are numerous and it has been strictly interpreted.37 The Court of Appeal in Alberta recently decided that the prohibition extends to the use by the judge of words which would tend to give the jury the impression that they might draw an inference of guilt from the silence of the prisoner at the trial on a particular point, knowledge of which was entirely confined to the prisoner himself;38 it is not the particular words used by the judge but the effect his words might have on the jury that is important. If the comment is once made the error cannot be cured by any subsequent direction of the judge to disregard its and the prohibition extends to comment upon the failure of the prisoner to give evidence at the preliminary hearing. But when a prisoner at the close of the trial gives evidence on his own behalf the judge may properly direct the jury that they may draw inferences unfavourable to the prisoner from the fact of his previous silence11 but in this particular case the question of a violation of sec. 4 of the Canada Evidence Act does not appear to have been raised, and on the whole it appears to have been an unusual case. It is distinguished from R. v. Mah Hong Hing in the judgment of Macdonald, C.J.A.2 In cases where the prosecution has established a prima facie case and the onus of making some reasonable explanation of the facts proved by the prosecution has been thrown upon the accused it seems that the

34 R. v. Gibson, 16 Cox, 181.

40

35 R. v. Norton, 5 C.A.R. 65; R. v. Christie, 10 C.A.R. 141 at p. 145; R. v. Schraba, 31 M.R. 275.

36 Can.. 56 Vic., Cap. 31.

37 Rex v. Corby, 1 C.C.C. 457.

38 Rer v. Gallagher, 37 C.C.C. 83.

39 Rex v. Coleman, 2 C.C.C. 523: Rex v. Romano, 24 C.C.C. 30.

40 Rex v. Mah Hong Hing et al, 33 C.C.C. 195 at p. 197.

"Rex v. Higgins, 7 C.C.C. 68.

42 Rex v. Mah Hong Hing et al (supra).

43

judge may comment upon the failure of the accused to give any explanation, though it is possible that the permission to comment is limited to those cases where the prisoner could call as witnesses to make the explanation persons other than himself. Rex. v. Gallagher and Rex v. Aho are difficult to distinguish and the law on the particular point is still in doubt. Crown counsel and a fortiori the judge may comment on the failure of the accused to call witnesses whom he has announced his intention of calling."

47

THE FACTS.

The law places the responsibility of deciding all questions of fact upon the jury. The jury determines all matters relating to the credibility of witnesses and the sufficiency of the evidence to prove the alleged facts. A judge, therefore, must not put himself in the position of the jury as regards the decision of facts15-he must not assume and take for granted that the evidence is sufficient to prove the facts16 neither must he comment on the facts in such a manner as to lead the jury to believe that any matters of fact are for him and not for the jury to decide. There is a certain amount of difficulty in determining what is comment sufficient to take the decision of questions of fact out of the hands of the jury, for it is the judge's duty to sum up the evidence, analysing that brought forward on the one side and on the other, pointing out to the jury in particular those alleged facts which are relevant to the respective cases of the prosecution and the defense. In the performance of this duty a judge is not prohibited from giving his own opinion of the sufficiency of the evidence, the credibility of the witnesses, and in general his own opinion of the guilt or innocence of the accused of the particular crime charged. It is deemed to be in the best interests of justice that the jury should have the assistance of the trained legal mind of the judge in the elucidation of the problems which they have to decide. The experience and knowledge of the judge cannot but be of great value to the jury in assisting them to arrive at a true conclusion of the facts placed in evidence before them.48 At the same time it is the duty of the judge to make it clear to the jury that they are not bound to accept his views but are quite at liberty and indeed it is their duty to come to their own conclusion regardless of any expressed opinion

43 Rex v. Aho, 8 C.C.C. 453: Rex v. May, 23 C.C.C. 470.

Rex v. Brindamour, 11 C.C.C. 315.

45 Rex v. West, 4 C.A.R. 179.

48 Rex v. Brindamour, 11 C.C.C. 315 at p. 322.

"R. v. Leary, 9 C.A.R. 68; R. v. Collins, 1 C.C.C. 48; R. v. Brennan, 4 C.C.C. 41.

48 Arnold v. The King-Emperor, 24 Cox 297; Commonwealth v. Magee, 12 Cox 549.

49

by the judge. The judge must, of course, be careful not to misstate the facts.50

THE EFFECT OF ERROR.

The failure of the judge to include in his charge any of those matters which have been laid down as proper to be included or the inclusion of any of those things which should not be included is not necessarily going to result in the appeal being allowed by an Appellate Court when the matter is brought before them. The point upon which the appeal is brought may be decided in favour of the accused but the appeal will in general not be allowed unless in the opinion of the Court of Appeal some substantial wrong was caused to the accused by the error."1

53

In England the Court of Criminal Appeal acts by virtue of the Criminal Appeal Act.52 In Canada appeals are brought to the provincial Appellate Courts and to the Supreme Court of Canada if there is one dissenting judgment in the Provincial Court by virtue. of secs. 1018-1021 of the Criminal Code. In England the Court has no power to order a new trial, it has only two alternatives, viz., to allow the appeal and quash the conviction or dismiss the appeal, but the judges of the Court have frequently expressed their opinion that it would be advantageous were they to have the power to order a new trial. In Canada the Court has power to order a new trial and the consequence is that as a general rule a new trial is ordered in cases where if the appeal were brought in England on the same grounds the conviction would be quashed.54

Errors are of different kinds, and the principle applicable to one kind will not necessarily apply to another but all errors in the judge's charge are matters of law for which appeals may be brought.55

A misdirection of law is a serious matter and will almost always be a ground for allowing the appeal unless the Crown can show and the onus is on it to do so, that with a correct direction the jury must inevitably have returned the same verdict.56

The principle which the Courts have applied to appeals brought

19 R. v. Moke, 28 C.C.C. 297; R. v. Campbell, 33 C.C.C. 364; R. v. Ventricini, 17 C.C.C. 183 at p. 185.

50 R. v. DeMarco, 17 C.C.C. 497.

1 R. v. Beecham, 16 C.A.R. 26, R. v. Parkin, No. 2, 31 M.R. 477.
527 Edw. VII. Cap. 23.

53 But now see amendments to Criminal Code, S. Can. 1923, Cap. 41.

54 R. v. Duckworth, 26 C.C.C. 314; R. v. Lew, 1 D.L.R. 99.

Rivet v. The King, 25 C.C.C. 235 (now only important on the question

of obtaining leave to appeal).

56 R. v. Cohen & Baieman, 2 C.A.R. 197, R. v. Monk, 7 C.A.R. 119 at p. 123; R. v. Vanbuskirk et al., 35 C.C.C. 203.

on the ground of non-direction of law is that laid down in the Cohen & Bateman case.57

58

The principle which Appellate Courts in Canada will apply when deciding appeals brought on the ground of errors in the judge's charge other than misdirection or nondirection of law is more difficult to determine. Trivial errors and irregularities will not avai the accused The judge's charge must be read as a whole, and if it appears from the whole of the charge that the jury were properly directed and invited to consider the material evidence and facts the appeal will be dismissed. It also seems that the onus is on the accused to show that the writ caused him some substantial wrong.5" "Summings-up are not to be criticized because particular expressions are found in them."60 "An expression of opinion by the judge of the prisoner's guilt, though to be deprecated, must be taken with the context and is not necessarily a ground for quashing a conviction."1 The accused must show to the satisfaction of the Court not only that there was error but that the error was such as would be likely to influence the jury in arriving at their verdict. There are some cases which seem to indicate that there is no real distinction between different kinds of errors and that the fundamental principle to be applied is the same in all cases. In Allen v. The King it was held that the Judges on an appeal are only vested with a discretion which they may exercise only when the irregularities are so trivial that it may safely be assumed that the jury would not be influenced by them. In Rex v. Duckworth it was held that the Court should never allow the conviction to stand unless it comes to the conclusion that the jury would certainly have convicted if the error had not been made. But following the doctrine of Channel, J. in the Cohen & Bateman case it is submitted that it is not essential that the Court should be of the opinion that the jury must necessarily have returned the same verdict had there been no error.

63

62

If it is reasonably probable that the jury would have returned the same verdict; if aside from any question of error, the evidence is such as would warrant any jury in coming to the same conclusion, no substantial wrong was caused to the accused by the error, even though

5 R. V. Ahlers, 24 Cox 623. R. v. Theriault (sup.).

59 R. v. Stoddart (sup.).

R. v. Hill, 13 C.A.R. 130. R. v. Romano, 24 C.C.C. 30.

eo R. v. Mason & Soper, 1 C.A.R. 194.

61 R. v. Randles. 1 C.A.R. 194.

62 R. V. Anon, 11 C.A.R. 283: R. v. Hill, (supra); R. v. Vanbuskirk, (supra).

Allen v. The King. 18 C.C.C. 1: R. v. Duckworth. (supra); R. v. Murray & Mahoney, 28 C.C.C. 247 at p. 260.

they may have been influenced by it, and the conviction will be sustained."*

The violation of sec. 4 of the Canada Evidence Act has been held to be such as to cause the accused substantial wrong and must result in a new trial in all cases."5

If the judge decides facts instead of leaving them to the jury the result must be a new trial.66

The omission at the trial of objection to the particular error or of any request to the judge to amend his charge will not prevent the accused from appealing the case on the ground of such error, neither will it influence a Court of Appeal in deciding whether or not the accused is entitled to a new trial by reason of such error.67

Manitoba Law School.

G. A. CHILDREN.

EXTRADITION.

The large number of recent extradition cases has brought this subject into prominence, which is one excuse for this brief article. Another is that extradition is terra incognita to many of the profession in general practice.

The law of Extradition is a direct encroachment on an English common law principle, further exemplified by the memorable words of Magna Charta, "Nullus liber homo capitatur . nisi per legale judicium parium suorum" (No freeman shall be taken or imprisoned unless by the lawful judgment of his peers). The right of personal liberty of the subject, if he does not transgress a substantive Law of the Realm or infringe the legal rights of others, was at common law uncontrovertible, and the person so restrained of his liberty had access to the courts to protect him from any violation of that right. Extradition, however, being the outgrowth of a general system for the better enforcement, by the comity of nations, of the criminal law generally, it has been necessary to undermine by statute and treaty

4 R. v. Gorges, 11 C.A.R. 259; R. v. Letain. 29 C.C.C. 389: R. v. Schraba, 31 M.R. 275; R. v. Parkin. No. 2, 31 M.R. 477; R. v. Duckworth (supra), R. v. Wunn, 7 C.A.R. 139.

65 R. v. Mah Hong Hing (supra).

66 R. v. West, 4 C.A.R. 179; R. v. Beeby, 6 C.A.R. 140.

R. v. Blythe, 15 C.C.C. 224 R. v Walker, 16 C.C.C. 77; R. v. Paul,

19 C.C.C. 339; R. v. Theriault, 2 C.C.C. 444.