The Queen vs. Michel Laliberté.

which should have been given by the Court appealed from was to have reversed not affirmed the conviction, and not to grant a new trial, for under the law, as it now stands, they had no power to do so

This man has been put in jeopardy by this trial, for an offence which is still a capital felony, and he has been convicted, perhaps, because the learned Judge refused to allow him to ask a certain question of the prosecutrix. Therefore, the conviction, being bad, cannot be sustained, and he ought not again to be put in jeopardy by us, unless there is express authority given us to place him in that position. In the present state of legislation upon the subject, and the uniform practice, as far as I am advised, not to have a venire de novo awarded in treason or felony, when on a case reserved the Court decides in favor of a criminal, I think we should not make an order for the affirmance of the conviction or for granting a new trial, but "otherwise" that our order should be to reverse the judgment which has been given on the indictment and order the prisoner's discharge.

As I have already stated, I do not think that by the clause in the Supreme and Exchequer Court Act referred to, the Dominion Parliament intended this Court to grant new trials in cases of treason or felony when questions were reserved by a Judge at the trial for the consideration of a Superior Court, unless such right existed independent of such section; and as it does not now exist in Quebec by virtue of any other law, as far as I am advised, this Court ought not to order a new trial.

In any event there must be grave doubts if such a power exists, and we are authorised to make an order "otherwise" than affirming the conviction or granting a new trial. We obey the Statute, and do what “the justice of the case requires " by reversing the judgment

The Queen vs. Michel Laliberté.

which has been given in the matter by the Court of Queen's Bench.

I may here observe that the provisions as to cases reserved for the consideration of the Court for Crown cases reserved in England under Imp. Stat. 11 & 12 Vict. ch. 78, are the same in effect as those contained in the Cons. Stat. U. C. ch. 112 & Cons. Stat. L. C. ch. 77, the 36 sect. of the latter Statute being repealed as to reserving cases for the consideration of the Superior Courts of Law in Ontario, and of the Court of Queen's Bench in Quebec.

RITCHIE, J.:

I think the conclusion to be arrived at from a consideration of all the authorities is that the prisoner's counsel had a legal right to put the first question objected to, and rejected by the learned Judge, and that the counsel for the prosecution had no right to object to the question; that if the witness herself objected to answer, I think it was in the discretion of the Judge to compel an answer; and that on the question being put, it was discretionary with the Judge to intimate to the witness that she might or might not answer it.

I think the answer of the witness when given must be accepted, and is not open to be contradicted by evidence on the part of the prisoner.

Under the peculiar circumstances of this case, viz: of prisoner's contention, as admitted on the argument, that the connection was with consent, and in view of the witness having, without objection, answered generally that the connection complained of was the first time any person had had carnal connection with her, it became, in my opinion, practically very important

The Queen vs. Michel Laliberté.

that the prisoner should have been allowed to sift the witness as to the accuracy of such previous connection by putting the question proposed.

It is right, I think, to say that the witness does not appear to have objected to the question, or to have been at all unwilling to answer it, and it is obvious, had the prosecuting counsel not objected, and the Judge had not ruled the question out, she might have been only too glad to avail herself of the opportunity of denying the imputation and of vindicating her character, thus, by the question proposed, inferentially assailed. Be this as it may, I think on a trial jeopardizing the life of the prisoner, as this did, he was deprived of a right the law gave him, and was thereby prevented from making full defence, and, therefore, without attempting an inquiry into the extent of the injury he sustained, or speculating on the benefits he might or might not have received by the answering or refusing to answer the question when propounded, I think it sufficient to say the law gave the prisoner the right to put the question, and the learned Judge having deprived him of that right his trial was not according to law, and his conviction on such a trial cannot be sustained.

STRONG, J.

I am of opinion that the learned Judge who tried the case ought to have permitted the prisoner's counsel, on the cross-examination of the prosecutrix, to put the question which was objected to by the Crown Counsel, and that the Counsel for the prosecution had no right to interpose the objection which he made to it. The result of the English authorities is, that the question was one which might be put to test the credit of the witness, but that the prosecutrix

The Queen vs. Michel Laliberté.

might, if she objected to answer it, in the discretion of the Judge, be excused from doing so, on the ground that it tended to degrade and harass her.

It is said by a text writer of high authority on the law of evidence, (1) that "cases may arise where the Judge, in the exercise of his discretion, would very properly interpose to protect the witness from unnecessary and unbecoming annoyance." Another author of repute, Best on Evidence, (2) lays it down that though in strictness the Courts can compel a witness to answer such a question; yet, in their discretion, they will not do so, as the end of the cross-examination is obtained by putting the question and the refusal of the witness to answer. These writers state, I think, correctly the conclusion from reported cases. Here, however, the learned Judge did not permit the question to be put, and, therefore, deprived the prisoner not only of the chance of obtaining an affirmative answer, but also of the obvious practical advantage which might have resulted to him from a refusal to answer. Had the question been put, and the witness, on claiming protection herself been excused from answering, the exercise of discretion of the Judge could not be reviewed on a case reserved under the Statute, but must have been considered as conclusive.

Formerly there existed in England a reason for according to a witness an absolute privilege from answering such a question as that propounded to the prosecutrix, inasmuch, as a party guilty of an act of incontinence could have been made liable to penal consequences by a prosecution in the Ecclesiastical Court. This reason it seems, never had any force in the Province of Quebec, and it has long ceased to exist in England; though in

(1) Taylor, 4. Edt. Sec. 1314, 1315. (2) 6th Lond. Edt. Sec. 130.

The Queen vs. Michel Laliberté.

1812, when Rex v. Hodgson, (1) was decided it was applicable, and appears to have been one of the grounds of the decision, for Baron Wood there held the witness not bound to answer, as it tended to criminate her.

As to the question which was put to the witness Provencher, that was, without doubt, properly overruled on the authority of Reg. v. Cockroft (2), and Reg. v. Holmes, (3) and upon the very well settled principle that a witness cannot be contradicted in matters foreign to the issue, which on the trial of this indictment was, as Mr. Justice Ramsay points out, not whether the prosecutrix was unchaste, but whether the prisoner had had connection with her by violence.

The proper order to be made on the present appeal will, I think, be to reverse the judgment of the Court below, to direct the conviction to be quashed and the prisoner to be discharged. A new trial is out of the question, for Section 38 of the Supreme and Exchequer Court Act directs that this Court shall, in the alternative of a reversal, give the judgment which the Court below ought to have given, and since the repeal of Section 63, ch. 77 of the Consolidated Statutes of Lower Canada, the Court of Queen's Bench could not have granted a new trial. Section 49 of the Supreme Court Act which authorizes this Court to grant a new trial must be read in such a way as to make it consistent with section 38 already referred to, and this requires us to hold that the power to grant new trials is confined to cases in which the Court appealed from could have made such an order.

(1) R. & R. C. C. p. 211; (2) 11 Cox. C. C. C. 410; (3) L. R. 1 C. C. 334.