Is this not the distinction that can properly be drawn between the two cases to which my hon. friend referred, namely the act of our not carrying forward clause 1044 allowing costs against the accused in criminal proceedings, on the one hand, and yet allowing the successful defendant in prosecution for defamatory libel to get costs against the prosecutor? I have already stated the commission's reasons for dropping section 1044 of the present code.
I suggest that the distinction between these two cases is this. Where A libels B, B has the choice of two courses of action. One is to take a civil suit for damages against A. The other is to lay an information against A for defamatory libel. If the proceedings which ensue are a civil action the defendant A, if he succeeds, will get costs. If the proceedings are a prosecution for defamatory libel he would not get costs against the unsuccessful plaintiff but for the clause we are discussing. Thus it will be seen that the basis for the present clause is that where a person has been libelled and chooses the method of laying an information for defamatory libel, if he does not succeed in proving his case, he should reimburse the accused for the expense to which this prosecution for defamatory libel has put the accused. I think this is a proper provision.