The depositions on oath of a witness legally taken are evidence against him, should he be subsequently tried on a criminal charge, except so much of them as consists of answers to questions to which he has objected as tending to criminate him, but which he has been improperly compelled to answer. The exception depends upon the principle "Nemo tenetur seipsum accusare," but does not apply to answers given without objection, which are to be deemed voluntary.

The witness's knowledge of the law enabling him to decline to answer criminating questions must be presumed ("Ignorantia juris non excusat ").

The statute (11 & 12 Vict. c. 42, s. 18), requiring magistrates to caution the accused with respect to statements he may make in answer to the charge, is not applicable to witnesses asked questions tending to criminate them.

By the Consolidated Statutes of Lower Canada, c. 77, s. 57, it is provided that when any person has been convicted of any felony at any criminal term of the Court of Queen's Bench, the court before which the case has been tried may, in its discretion, reserve any question of law which has arisen on the trial for the consideration of the Court of Queen's Bench, on the appeal side thereof, and may thereupon postpone the judgment until such question has been considered and decided by the said Court of Queen's Bench. By section 58, the said court shall thereupon state in a case, to be signed by the presiding judge, the question or questions of law, with the special circumstances upon which the same have arisen.

The said Court of Queen's Bench shall have full power and authority at any sitting thereof on the appeal side, after the receipt of such case, to hear and finally determine any question therein; and thereupon to reverse, amend, or affirm any judgment which has been given on the indictment on the trial of which such question arose, or to avoid such judgment and order an entry to be made on the record, that in the judgment of the said Court of Queen's Bench the party convicted ought not to have been convicted, or to arrest the judgment, or to order the judgment to be given thereon at some other criminal term of the court, if no judgment has before that term been given, as the said Court of Queen's Bench is advised, or make such other order as justice requires.

The present appeal was from a judgment of the appeal side of the Court of Queen's Bench, for the Province of Quebec, Canada, on a case reserved for the court by Badgley, J., under the powers of the above statute, on the trial of the respondent for arson.

The case so reserved was as follows:

"The prisoner, Edward Coote, was indicted for arson of a warehouse in his occupation, and belonging to Alexander Roy.

"The indictment contained four counts: The first with intent to defraud the Scottish Provincial Insurance Company; second, to defraud the Royal Insurance Company; the third, to defraud generally; and the fourth, to injure generally; upon his plea of not guilty, he was tried before the Court of Queen's Bench, at the criminal term of the said court, holden by me at Montreal, in this present month, before a competent jury, empanelled in the usual manner, and, after evidence adduced by the crown and by the prisoner, was found guilty, the jury returning a general verdict of guilty.

"In the course of the adduction of the evidence for the crown, two depositions made and sworn to by the prisoner, with his signature subscribed to each, taken by the fire commissioners at their

investigation into the cause and origin of the fire at his warehouse, before any charge or accusation against him or any other person had been made, were produced in evidence against him, and which, after having been duly proved, were submitted to the jury as evidence against him, after the objection previously made by the prisoner to their production in evidence, and after his said objection had been overruled by me, — after the conviction of the prisoner, and before sentence was pronounced by me thereon, he moved the court by two motions filed in court in the terms following:"

The case then set out the two motions, of which the first is immaterial, as Badgley, J., rejected it, and reserved no question respecting it; the second was in the following terms:

"Motion on behalf of the said Edward Coote, that judgment upon the said indictment, and upon a verdict of guilty thereon, rendered against him, be arrested, and that the said verdict be quashed and set aside, and the said defendant, to wit, the said Edward Coote, be relieved therefrom, for, among others, the following reasons:

Twenty-one reasons were then set out, the only ones material to the present appeal being in effect that the two depositions were inadmissible in evidence, because the said fire commissioners, before whom they were taken, had no authority to administer an oath, or take such depositions, and such depositions were not admissible as statements made by the prisoner, because they were not made freely and voluntarily and without compulsion or fear, and without the obligation of an oath.

The case then stated the rejection of the first motion, and that he, the said judge, though himself considering the reasons given insufficient to support the second motion, yet as doubts might be held by the Court of Queen's Bench as to the legal production of the said depositions, reserved it, and held it over for decision with reference to the admission of the said depositions by the Court of Queen's Bench, appeal side.

The fire commissioners, before whom the depositions were taken, are appointed under the provisions of two statutes of the Provincial Legislature of Quebec (31 Vict. c. 32, and 32 Vict. c. 29), under which acts they are empowered to investigate the origin of any fires occurring in the cities of Quebec and Montreal, to compel the attendance of witnesses and examine them on oath, and to commit to prison any witnesses refusing to answer without just

cause.

The criminal law of England was introduced into Lower Canada at the time of the cession to the English, A. D. 1763, and the criminal law of England of that date still continues in force in the Province of Quebec, Canada, except as it has been altered by Canadian statutes or imperial statutes applicable to Canada.

Previous to the year 1869 a statutable provision (Consolidated Statutes of Lower Canada, c. 77, s. 63) was in force, by which a power was vested in the Court of Queen's Bench, appeal side, if at the hearing of a case reserved they were of opinion that the conviction was bad, for some cause not depending on the merits of the case, to declare the same by its judgment, and direct that the party co

victed should be tried again as if no trial had been had in such case; but by a subsequent statute (32 & 33 Vict. c. 29, s. 80), passed by the Legislature of the Dominion of Canada shortly after the establishment of that confederation, for the purpose of assimilating the criminal procedure throughout the various provinces of the Dominion, that section was expressly repealed, and there were at the time of the respondent's trial statutable provisions giving right to a new trial in criminal matters, or regulating motions in arrest of judgment in criminal proceedings in force in the Province of Quebec, Canada.

On the 15th day of December, 1871, the reserved case came on for argument in the Court of Queen's Bench, appeal side, before Duval, C. J., and Caron, Drummond, Badgley, and Monk, JJ., and on the 15th day of March, 1872, the court gave judgment in the following terms: "After hearing counsel as well on behalf of the prisoner as for the crown, and due deliberation had, on the case transmitted to this court from the Court of Queen's Bench, sitting on the crown side at Montreal, it is considered, adjudged, and finally determined by the court now here, pursuant to the statute in that behalf, that an entry be made on the record to the effect that in the opinion of this court the production of the depositions made by the prisoner before the fire commissioners at Montreal was illegal, and, therefore, that the evidence adduced on the part of our Sovereign Lady the Queen does not justify the verdict, which is hereby quashed and set aside.

"But this court, considering that the conviction is declared to be bad from a cause not depending upon the merits of the case, does hereby order that the said prisoner, Edward Coote, be tried anew on the indictment found and now pending against him, as if no trial had been had in the case, and that for the purpose of standing such new trial, he be bound over in sufficient recognizance to appear on the first day of the next ensuing term of the Court of Queen's Bench, sitting on the crown side, at Montreal, and thereafter from day to day until duly discharged."

From this judgment Badgley and Monk, JJ., dissented.

On the 15th day of March, 1872, an application was made by the Attorney-General for the Province of Quebec, Canada, on behalf of the crown, to the said Court of Queen's Bench, for leave to appeal to her Majesty in her Privy Council, and such leave was refused.

On the 10th day of May, 1872, special leave was granted by her Majesty in Council to appeal from the said judgment of the said Court of Queen's Bench of the 15th day of March, 1872.

Sir John B. Karslake, Q. C., & Bompas, for the appellant. The depositions were properly received in evidence by the judge before whom the indictment was tried. They were admissible although made on oath, and although made by the prisoner as a witness whose attendance might have been compelled. At the time the depositions were taken no charge had been made against the prisoner, and he had the right of refusing to answer questions tending to criminate him. The prisoner answered voluntarily, and Badgley,

J., states that he "frequently exercised his privilege of refusing to answer certain questions." It was not necessary that the fire commissioners should caution the prisoner that statements made by him on the inquiry might be used in evidence against him. The statute (11 & 12 Vict. c. 42, s. 19) relates only to proceedings before magistrates, and caution given to accused persons. There was no ground for moving in arrest of judgment; nor had the court power to grant a new trial, for the statute empowering the court to grant a new trial (Consolidated Statutes of Lower Canada, c. 77, s. 57) was repealed by 32 & 33 Vict. c. 29, s. 80, which gives no such power. They cited the authorities given in the judgment post, and further, 1 Taylor on Evidence, 743; Rosc. Crim. Evidence, 62; Joy on Confessions, 62, 68; Reg. v. Gillis, 17 Ir. C. L. Rep. 512.

Judgment was delivered by Sir ROBERT P. COLLIER. Edward Coote, the respondent, was convicted of arson, subject to a question of law reserved by Badgley, J. (the judge who presided at the trial), for the consideration of the appeal side of the Court of Queen's Bench, in pursuance of c. 87, sect. 57, of the Consolidated Statutes of Lower Canada. The question reserved was, whether or not the prosecutor was entitled to read as evidence against the prisoner depositions made by him under the following circumstances: An act of the Quebec Legislature appointed officers named "fire marshals," for Quebec and Montreal respectively, with power to inquire into the cause and origin of fires occurring in those cities, and conferred upon each of them "all the powers of any judge of session, recorder, or coroner, to summon before him and examine upon oath all persons whom he deems capable of giving information or evidence touching or concerning such fire." These officers had also power, if the evidence adduced afforded reasonable ground for believing that the fire was kindled by design, to arrest any suspected person, and to proceed to an examination of the case and committal of the accused for trial in the same manner as a justice of the peace. Upon an inquiry held in pursuance of this statute as to the origin of a fire in a warehouse, of which Coote was the occupier, he was examined on oath as a witness. No copy of his depositions accompanies the record, but their lordships accept the following statement of Badgley, J., as to the circumstances under which they were taken: "Among the several persons examined respecting that fire was Coote himself, upon two occasions at an interval of three or four days between his two appearances, on each of which he signed his deposition taken in the usual manner of such proceedings, and which was attested by the commissioners. Upon both occasions he acted voluntarily and without constraint; there was no charge or accusation against him or any other person; he was free to answer or not the questions put to him, and frequently exercised his privilege of refusing to answer such questions. Some days after the date of the latter deposition, and after the final close of the inquiry, Coote was arrested upon the charge of arson of his premises and duly committed for trial." At his trial the abovementioned depositions were duly proved, and admitted in evidence, after being objected to by the counsel for the prisoner. The ob

jection taken at the trial appears to have been that to constitute such a court as that of the fire marshal was beyond the power of the provincial legislature, and that consequently the depositions were illegally taken. Subsequently other objections were taken in arrest of judgment, and the question of the admissibility of the depositions was reserved. It was held by the whole court (in their lordships' opinion rightly), that the constitution of the court of the fire marshal, with the powers given to it, was within the competency of the provincial legislature; but it was further held by a majority of the court that the depositions of the prisoner were not admissible against him, because they were taken upon oath, and because he was not cautioned that whatever he said might be given in evidence against him, after the manner in which justices of the peace are required to caution accused persons, by an act of the British Parliament adopted in this respect by the colonial legislature. The court held the conviction to be bad, but inasmuch as the objection to it was not founded on the merits of the case, made an order directing a new trial. Their lordships are unable to concur in what appears to be the view of one of the judges of the Court of Queen's Bench, that the law on the subject of the reception in evidence against a prisoner of statements made by him upon oath is so unsettled that every judge is at liberty in every case to act upon his own individual opinion. It is true that doubts have from time to time arisen on this subject, and that conflicting dicta, and indeed, decisions, may be found upon it; but, in their lordships' opinions, all such doubts have been set at rest by a series of recent decisions, not indeed promulgating any new laws, but declaring what the law has always been if properly understood. In the case of Rex v. Haworth (4 C. & P. 254), a deposition on oath made by the prisoner as a witness against a person named Sheard, on a charge of forgery, was received in evidence by Park, J., against the prisoner, on an indictment of forgery. In Reg. v. Goldshede & another (1 C. & K. 657), Denman, J., admitted against the defendants, on a charge of conspiracy, answers which they had made on oath in a suit in chancery. In Reg. v. Sloggett (Dear. C. C. 656), the prisoner was examined in the Court of Bankruptcy, under an adjudication against him, and answered questions tending to criminate himself without objection. At a certain stage of his examination he was told by the commissioner to consider himself in custody. On a case reserved, it was held by the Court of Criminal Appeal that so much of his examination as was taken before his committal to custody was evidence against him. In that case, Jervis, C. J., observes: "The test is whether he may object to answer. If he may, and does not do so, he voluntarily submits to the examination to which he is subjected, and such examination is admissible as evidence against him." In Reg. v. Chidley & Cummins (8 Cox C. C. 365), Cockburn, C. J., admitted a deposition made by Cummins, when Chidley alone was accused of the offence for which they were afterwards both tried. The learned editor of the 4th edition of Russell on Crimes (vol. 3, p. 418), thus reports a case of Reg. v. Sarah Chesham: "Where the prisoner was indicted for administering poison with intent to mur