after hearing the evidence for the Crown, withdrew the case from the jury and discharged the prisoner, on the ground that the Crown had failed to produce sufficient evidence, by not producing any record of the hearing or the result thereof in the police court where the perjury was alleged to have been committed. The question stated for the consideration of the Court was, "Was I right in withdrawing the case from the jury on the above ground?"

TORONTO, October 13, 1909.

E. Bayly, K.C., for the Crown. Although the information charging Whitty with perjury was not put in at the trial of the defendant, yet the shorthand notes and the magistrate's evidence were put in and were sufficient: Rex v. Yaldon (1908), 13 Can. Cr. Cas. 489, 17 O.L.R. 179, 181, 184; The Queen v. Hughes (1879), 4 Q.B.D. 614.

Moss, C.J.O., referred to Rex v. Legros (1908), 14 Can. Cr. Cas. 161, 17 O.L.R. 425.

Bayly, K.C.: The evidence was not objected to when given, and it was too late to object at the close of the case.

In

J. W. Roswell, for the prisoner. The occasion must be proved by the best evidence. The information must be produced. Rx v. Yaldon the best evidence obtainable was produced. also Regina v. Dillon (1877), 14 Cox C.C. 4; Rex v. Drummond, (1905), 10 Can. Cr. Cas. 340, 10 O.L.R. 546; Archbold's Criminal Pleading, 23rd ed., pp. 315 and 1064.

TORONTO, December 31, 1909.

OSLER, J.A.: The proceeding in which the alleged perjury was committed was commenced by information, and it is difficult to understand why the proper and well-known course of procedure in proving it by production of the information was not followed.

The cases of Rex v. Drummond, 10 Can. Cr. Cas. 340, 10 O.L.R. 546, Rex v. Legros, 14 Can Cr. Cas. 161, 17 O.L.R. 425, and Regina

v. Dillon, 14 Cox C.C. 4, cited by Mr. Roswell, shew that the omission was fatal to the prosecution, and that the prisoner, for lack, it may be, only of the formal but necessary evidence of the former proceeding in which the alleged perjury was committed, was properly acquitted. See also Rex v. Eugene Brooks (1906), 11 Can. Cr. Cas. 188, 11 O.L.R. 525; The Queen v. Gibson (1887), 18 Q.B.D. 537; The Queen v. Moore (1892), 61 L.J.M.C. 80— which are strong to shew that the objection to the defect in the proof was properly taken, or that it was not too late to take it, as it was taken here, at the close of the case for the Crown.

The answer to the question submitted must therefore be in the affirmative.

MACLAREN, J.A.:-This is a case reserved at the request of the Crown by the Chairman of the Sessions for the county of Peel.

The defendant was indicted for perjury alleged to have been committed at a preliminary examination before Robert Crawford, police magistrate, of a charge of perjury against one Hugh Whitty.

According to the stated case, Crawford appeared as a witness at the trial of the defendant at the Sessions, in the present case, and proved that an information was laid before him against Hugh Whitty on a charge of perjury, and that on the investigation of such charge the accused, Farrell, was duly sworn and gave evidence. The stenographer by whom the evidence was taken down also gave evidence to the same effect, and it was further proved by them that Whitty was committed for trial. After further evidence as to the commission of the offence of perjury, the Crown closed its case, and, on objection raised by counsel for the accused Farrell, the Chairman withdrew the case from the jury, "on the ground that the Crown had failed to produce sufficient evidence, by not producing any record of the hearing or the result thereof in the police court where the perjury was alleged to have been committed." He now asks this Court, "Was I right in withdrawing the case from the jury on the above ground?"

By sec. 170 of the Criminal Code, perjury is defined as "an assertion as to a matter of fact, opinion, belief or knowledge, made

by a witness in a judicial proceeding as part of his evidence, upon oath or affirmation, whether such evidence is given in open court, or by affidavit or otherwise, and whether such evidence is material or not, such ́assertion being known to such witness to be false, and being intended by him to mislead the court, jury or person holding the proceeding."

Section 171 (2) provides (omitting words inapplicable to this case): "Every proceeding is judicial within the meaning of the last preceding section which is held before any justice authorised by law or by any statute in force for the time being to make an inquiry and take evidence therein upon oath or before any person acting as a

.

having power to hold such judicial proceeding

justice

whether the proceeding was duly instituted or not before such person so as to authorise him to hold the proceeding, and although such proceeding was held in a wrong place or was otherwise invalid.”

The "judicial proceeding" must be legally proved, as well as the statement of the witness and its falsity. As stated by Hawkins, J., in The Queen v. Hughes, 4 Q.B.D. 614, at p. 628, "perjury cannot be committed by a witness who is sworn in a non-existing cause." And a cause or proceeding, the existence of which is not. legally proved, must be taken to be non-existing, in any proceeding where such proof should have been made. The reserved case states, and the evidence of the magistrate Crawford, which is made a part of it, shews, that the proceeding at which the alleged perjury was committed was a preliminary inquiry based upon an information in writing. The best evidence of this information, and that it was such a document as the law authorised the magistrate to make the foundation of such a preliminary inquiry, and to take evidence upon under oath, would be the information itself. There is no evidence that it could not be produced, nor anything to justify the admission of secondary evidence to prove the contents of the information or the proceedings; so that the parol evidence was inadmissible and insufficient.

Such would also have been my opinion if the matter were res

integra. In addition, I consider that we are compelled to this conclusion by former decisions of this Court which are binding upon us.

The case of Rex v. Drummond, 10 Can. Cr. Cas. 340, 10 O.L.R. 546, is on all fours with the present case, except that there the perjury was alleged to have been committed at a trial at the Assizes instead of at a preliminary inquiry, as here. This, in my opinion, makes no difference, save that in that case, instead of producing the record of the trial, secondary evidence by a certificate under sec. 691 of the Code might have been produced. There Osler, J.A., says, at p. 548: "One well-established requirement in the trial of such an indictment for perjury as the present is the legal proof of the trial at which the alleged perjury was committed. Another, equally well established, is that, such trial being matter of record, it is to be proved by the production of the record of the former trial, that is to say, the sworn or exemplified copy of the indictment and of the verdict and judgment thereon, or by some authoritative document which the law has declared to be a sufficient substitute therefor." And Maclennan, J.A., says at p. 551: "The fact of the murder trial was an essential part of the case against defendant, and had to be proved." The other members of the Court concurred, and the conviction was quashed and a new trial

ordered.

In Rex v. Legros, 14 Can. Cr. Cas. 161, 17 O.L.R. 425, the perjury charged was alleged to have been committed at a summary trial for theft. Only oral evidence of the proceedings at the trial was This Court held that the formal record of the trial should

given.

have been produced or proved in the ordinary way, and that there was, thereore, not sufficient evidence to justify the conviction.

The principle of these cases is applicable; the information in the present case taking the place of the indictment in the Drummond case, and the charge in the Legros case. See also to the same effect Regina v. Dillon, 14 Cox C.C. 4.

No authority was cited to us nor have I been able to find any which would justify the admission of secondary evidence as to the information and proceedings if it had been objected to when it

was offered. So that in that event the well-known rule as to the production of the best evidence should have been followed. See Regina v. Coles (1887), 16 Cox C.C. 165; Archbold, 23rd ed., p. 1053; Roscoe, 13th ed., p. 681; Phipson, 3rd ed., p. 497; Rex v. Yaldon, 13 Can. Cr. Cas. 489, 17 O.L.R. 179, at p. 182; Rex v. Legros, 17 O.L.R. 425, at p. 427.

But it is said that, even assuming that the secondary evidence should not have been received if objected to, yet it became good evidence when not objected to at the time of its reception, and that objection at the close of the case for the prosecution came too late.

Doe d. Phillip v. Benjamin (1839), 9 A. & E. 644, Goslin v. Corry (1844), 7 M. & G. 342, and Reed v. Lamb (1860), 6 H. & N. 751, are cases where this doctrine was laid down by eminent Judges, and they are cited in its support by leading text-writers. It is to be noted that they are all civil jury cases, and that the same rule is not applied in non-jury cases: see Jacker v. International Cable Co. (1888), 5 Times L.R. 13; Webb v. Ottawa Car Co. (1903), 2 O.W.R. 62, at p. 63; McLennan v. Gordon (1905), 5 O.W.R. 98, at p. 101.

Is the same rule applicable in criminal cases? In many of the reports of criminal cases, where the admission of secondary evidence was held to be fatal, it does not clearly appear at what stage the objection was first made. In Rex v. Drummond, supra, neither the stated case nor the report makes this clear. In the stated case the trial Judge refers to the objection after his summary of the evidence, but does not say at what point it was made by counsel for the defendant. In Rex v. Legros, supra, the defendant was represented by counsel, but the case does not even state that the objection was raised by him at any stage. In Regina v. Dillon, 14 Cox C.C. 4, the prisoner was undefended, and the trial Judge declined to receive the testimony of the clerk of the justices as to the nature of the information, and said the information must be produced or evidence given of its destruction. In Regina v. Coles, 16 Cox C.C. 165, the objection was taken when the evidence was offered; as also in The Queen v. Brittleton (1884),