The Queen vs. Michel Laliberté.

Superior Court for the Province of Quebec, at the Village of Arthabaskaville, in the District of Arthabaska.

At the trial, the Prosecutrix, Philomène Michaud, on her cross-examination, after having described the details of the violence committed on her person by the prisoner, declared that it was the first time she had had carnal connection with a man.

This statement was made by her, without objection on her part or on the part of the Crown prosecutor.

In reply to another question she answered, that she was acquainted with D'Assise Malhoit and Baptiste Malhoit. She was then asked the question, "Do you remember your being in the milk-house of Clovis Guilmette with the two Malhoits, one after the other?" The Crown prosecutor objected to this question as illegal, and the Court sustained the objection.

Joseph Provencher was a witness called for the defence. The prisoner's Counsel proposed to ask him the following question, "Did you ever see Philomène Michaud with D'Assise Malhoit and Baptiste Malhoit? If you have, please state on what occasion, and what they were doing?" The Court refused to allow the question as illegal.

The Court, in the conflict of decisions on the matter in the English Courts, reserved for the consideration of the Court of Queen's Bench, for the Province of Quebec, in appeal, the question of the legality of the two ques→ tions, and requested the opinion of the Court in regard thereto.

The Court deferred pronouncing judgment on the verdict rendered against the Defendant, and ordered him to be imprisoned in the common gaol of the district until the first day of the next term for the sitting of the Court to receive judgment, or until otherwise discharged according to law.

The Queen vs. Michel Laliberté.

The matter Came before the Court of Queen's Bench, for the Province of Quebec, on the appeal side,* sitting in the City of Quebec, on the 15th December, 1876; and they rendered judgment, affirming the ruling of the Judge at the trial; Ramsay, J., dissenting as to the ruling on the first question.

The Defendant appealed from that decision under the 49th section of the Supreme and Exchequer Court Act.

26th of January, 1877.

Mr. W. Laurier, of the Quebec Bar, for the prisoner, and Mr. W. H. Felton, of the Quebec Bar, on behalf of the Crown.

The authorities cited in argument were: Rex v. Hodgson, (1); Reg. v. Robins, (2); Rex v. Barker, (3); Rex v. Martin, (4); Rex v. Clarke, (5); Reg. v. Dean, (6); Verry v. Watkins, (7); Andrews v. Askey, (8); Reg.v. Cockcroft, (9); Reg. v. Holmes,; (10) 2 Starkie, Ev. (11); Philipps on Ev. (12); Taylor on Ev., (13); Best on Ev., (14); Russ. on Crimes, (15); Roscoe, (16); Taschereau Criminal Acts, (17); 3 Greenleaf on Ev., (18).

3rd February, 1877.

THE CHIEF JUSTICE: The case of Rex v. Hodgson, (19); is the leading case on the subject. The prisoner was convicted before Baron Wood at the Yorkshire Summer Assizes, in the year 1811, for committing a rape on Harriet Halliday.

• Present:-Monk, Ramsay, Sanborn, and Tessier, J.J.

(1) 1 R. & R. 211; (2) 2 Moo. & Rob. 612; (3) 3 C. & P. 589; (4) 6 C. &. P. 562; (5) 2 Starkie N. P. C. 241; (6) 6 Cox C. C. 23; (7) 7 C. & P. 308; (8) 8 C. & P. p. 7; (9) 11 Cox C. C. 410; (10 L. R. 1 C.C. 334; (11) p. 700; (12) 8 Lond. Edt. 489 & 914; (13) 2 Edt. 1122, 1137, 1314, 1319; (14) 244, 287; (15) 1 p. 925; (16) p. 880; (17) 1 p. 311; (18) 3 p. 214; (19) 1 R. & Ryan, 211.

The Queen vs. Michel Laliberté.

After the prosecutrix had given her evidence in support of the prosecution, she was cross-examined by the prisoner's counsel, who put these questions to her.

Whether she had not before had connection with other persons, and whether she had not before had connection with a particular person named. The counsel for the prosecution objected that she was not obliged to answer these questions, but it was contended by the prisoner's counsel that in a case of rape she was. The learned Judge allowed the objection on the ground that the witness was not bound to answer these questions as they tended to criminate and disgrace herself, and said that he thought there was not any exception to the rule in a case of rape.

The prisoner's counsel called witnesses, and amongst others offered a witness to prove that the girl had been caught in bed about a year before this charge with a young man, and offered the young man to prove he had had connection with her.

The counsel for the prosecution objected to the admissibility of this sort of evidence of particular facts not connected with the present charge, as they could not come prepared to answer them. The case was first considered on the 2nd December, 1811, by all the Judges (except Mansfield, C.J., Macdonald, C.B., Grose, J, and Lawrence, J., who were absent), and was postponed for consideration to Hilary term, 30th January, 1812, when, all the judges being present, they determined that both the objections were properly allowed.

If we look closely at the statement of the case, we will see that the objection taken on the questions being asked her was that she was not obliged to answer those questions, not that she could not be asked them; and the learned judge allowed the objection on the ground

The Queen vs. Michel Laliberté.

that the witness was not bound to answer these questions as they tended to criminate and disgrace herself. All that the Judges decided in that case was, that both objections were properly allowed.

In Reg. v. Robins, (1); before Coleridge, J., in 1843, the prosecutrix having denied on cross-examination that she had had connection with several men who were named, and who were brought into Court and shewn to her at the time she was questioned, the counsel for the defence called these persons to prove they had had connection with her.

Greenwood, for the prosecution, objected that such evidence was inadmissible, and cited Rex v. Hodgson, and referred to Rex v. Barker, (2); and Rex v. Martin, (3). Coleridge, J., after consulting Erskine, J., said neither he nor that learned Judge had any doubt on the question. It is not immaterial to the question whether the prosecutrix has had this connection against her consent, to show that she has permitted other men to have connection with her, which, on her cross-examination, she has denied.

This case does not seem to be sustained by the subsequent decisions.

The case of Rex v Barker, (4); went to show that the prosecutrix was a common prostitute, and such evidence had long been held to be material.

The case of Rex v. Martin, (5); was tried before Mr. Justice Williams in 1834. The prisoner's counsel proposed to ask the prosecutrix whether on the Whit Sunday before the alleged offence, the prisoner, Aaron Martin, had not had intercourse with her by her own. consent.

(1) 2 Moody & Rob. 512; (2) 3 C. & P. 589 ; (3) 6 C. & P. 562; (4) 3 C. & P. 589; (5) 6 C. & P. 562.

The Queen vs. Michel Laliberté.

The counsel for the prosecution objected to the question, and relied on Rex v. Hodgson, and Rex v. Clarke, (1). Williams J., said he was one of the counsel in R. v. Hodgson. The question in the present case was as to previous intercourse with the prisoner, and the question there was as to intercourse with other men. He received the evidence and added: “I must say that I never could understand the case of Rex v. Hodgson. The doctrine that you may go into general evidence of bad character of the prosecutrix, and yet not cross-examine as to specific facts, I confess, does appear to me to be not quite in strict accordance with the general rules of evidence."

In Rex v. Clarke, (2); in 1817, Holroyd J., said: "It is clear that no evidence can be received of particular facts, and such evidence could not have been received, although the prosecutrix had been cross-examined as to those facts, because her answers upon those facts must have been taken as conclusive. With respect to such facts the case is clear. Then with respect to general evidence; such evidence has been held admissible in all cases where character is in issue, and, therefore, the only question is whether the character of the prosecutrix is involved in the present issue. In the case of an indictment for a rape, evidence that the woman had a bad character previous to the supposed commission of the offence is admissible, but the Defendant cannot go into evidence of particular facts.

Rex v. Clay, (3). Evidence of the general character of the prosecutrix was admitted, such as that she had been reputed a prostitute, by Patterson J. At first he (1) 2 Starkie N. P. C. 241; (2) 2 Starkie's Reports 244; (3) 5 Cox C. C 146.