mary trials" powers must not be guided by them to the exclusion of the power here given of summary conviction by two justices and the general authority given by sec. 604 to police magistrates to exercise the powers of two justices. There is a conflict of opinion as will be seen by the following cases, which leaves the question still unsettled. In R. v. Crossen (1899), 3 Can. Cr. Cas. 153 (Man.), it was held by the Court of Queen's Bench of Manitoba that this offence could only be tried by a "magistrate" having the powers of two justices as set forth in sec. 771 by following the procedure as to "summary trials," and that, where the charge was brought before an official empowered to proceed on a "summary trial" only upon the consent of the accused, the "summary convictions" clauses of the Code did not enable such official to proceed summarily as a justice of the peace. That decision is followed in R. v. Carmichael (1902), 7 Can. Cr. Cas. 167 by Judge Weatherbe, now chief justice of Nova Scotia. It is opposed however to the British Columbia cases of R. v. Nelson (1901), 4 Can. Cr. Cas. 461 and R. v. Jack (No. 2) (1902), 5 Can. Cr. Cas. 304, 9 B.C.R. 19. In R. v. Nelson, Mr. Justice Drake held that the accused can be tried under the summary convictions clauses, before a police magistrate and that the provision of this clause (now sec. 169) of the Code is not limited by Code secs. 773 and 778 as to summary trials. In R. v. Jack (No. 2) (1902), 5 Can. Cr. Cas. 304, Mr. Justice Walkem, of the Supreme Court of British Columbia, held that the offence of obstructing a peace officer in the performance of his duty, where an assault upon the officer is not also charged, may be summarily tried either by two justices of the peace or a police magistrate under the summary convictions part of the Code by virtue of sec. 169; and that the latter section is not controlled by the provisions of secs. 773 and 781 as to the summary trial of the like offence before a magistrate with the consent of the accused. In the opinion of Walkem, J., the punishment on summary conviction is limited to that specified in sec. 169. Section 781 providing a different punishment on a trial before a magistrate with the consent of the accused would have no application where the procedure under the summary convictions clauses was followed. Semble, if the charge were for an assault of the officer in the performance of his duty, secs. 773 and 781 would then apply and not sec. 169. In the Province of British Columbia the magistrate has absolute jurisdiction to proceed under the summary trials part (LV.) by sec. 784 (3) without the consent of the accused, and to award both fine and imprisonment under sec. 776. Distress for rent.]-It has always been lawful for a tenant before the goods seized under a distress warrant have been impounded to resist their seizure, or to rescue them if there is no rent due. But it is a general rule that no rescue can be made of a distress after the goods are impounded, for then they are in the custody of the law. Am. & Eng. Encyc., 2nd ed., vol. 9, p. 656. And see Rex v. Bradshaw (1835), 7 C. & P. 233, 236; Reg. v. Brenan (1854), 6 Cox Cr. Cas. 381; Reg. v. Pigott (1851), 1 Ir. C.L. Rep. 471, 478. It is therefore necessary for the prosecution to prove that rent was due and in arrear before a conviction can be made under this section for the offence of wilfully obstructing a lawful distress. On such a charge evidence is admissible for the defence in proof that no rent was due. R. v. Harron (1903), 7 Can. Cr. Cas. 543, 6 O.L.R. 668. Definition of perjury. Subornation. Evidence. Misleading Justice. 170. Perjury is 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. 2. Subornation of perjury is counselling or procuring a person to commit any perjury which is actually committed. 3. Evidence in this section includes evidence given on the voir dire and evidence given before a grand jury. 55-56 V., c. 29, s. 145. Judicial proceeding.]—An examination for discovery is a "judicial proceeding" as defined by this section, but the court has a discretion to refuse to hear a charge of perjury alleged in respect of civil proceedings while such proceedings are pending. R. v. Thickens (1906), 11 Can. Cr. Cas. 274. False oath before de facto legal tribunal.]-It is perjury under the Code to give false testimony before a justice of the peace holding a judicial proceeding under a provincial law, although the justice was by the terms of that law disqualified from hearing the charge because he was not a resident of the county in which the alleged offence took place. Drew v. The King, 6 Can. Cr. Cas. 424, 33 Can. S.C.R. 228, affirming Drew v. The King, 6 Can. Cr. Cas. 241. Materiality.]-Under the Code, the giving of false evidence constitutes perjury, whether such evidence is material or not, if the false assertion were known to such witness to be false, and intended by the witness to mislead the court, jury, or person holding the proceeding. Statutory declaration.]-A false statement, made in a statutory dec laration administered under the "Canada Evidence Act," may be the subject of a charge akin to perjury under Code sec. 175, for the object of sec. 36 of the Evidence Act, was to provide a means by which certain statements not authorized to be made on oath could be verified. At common law.]-It has always been an offence at common law for a competent witness upon oath in a judicial proceeding, before a court of competent jurisdiction, to give evidence material to the issue, which he believes to be false. The common law, however, stopped there and took no notice of false statements, whether made upon oath or not, made under other conditions. The perjury had also to be in a judicial proceeding before a competent tribunal. R. v. Townsend, 10 Cox C.C. 356; R. v. Row (1864), 14 U.C.C.P. 307; R. v. Baker, [1895] 1 Q.B. 797. And it was therefore formerly the law that false evidence given upon an examination in the absence of the authority competent to hold such examination was not perjury. R. v. Lloyd, L.R. 19 Q.B.D. 213; R. v. Gibson, 7 Revue Legale (Que.) 573. Known to be false.]—The false oath must be taken deliberately and intentionally, for if done from inadvertence or mistake it cannot amount to voluntary and corrupt perjury. 1 Hawk., ch. 69, sec. 2. Where perjury is assigned on an affidavit, the part on which the perjury is assigned may be explained by reference to the remainder of the affidavit. 1 Sid. 419. The evidence of the false statement must be clear and precise and not ambiguous. R. v. Bird, 17 Cox C.C. 387. Intended to mislead.]—Although an "intent to mislead" is an essential ingredient of the offence, a charge which does not specifically allege such intent may be sufficient if it gives to the accused notice that he is charged with having "falsely, wilfully and corruptly" sworn to, or solemnly declared a statement to the effect and in the words set forth. R. v. Skelton (1898), 4 Can. Cr. Cas. 467; 2 N.W.T. Rep. 210, 215; R. v. Dewar, 2 N.W.T. Rep. 194; Cr. Code, sec. 852(3). Contradictory evidence.]—If the evidence adduced in proof of the crime of perjury consist of two opposing statements of the prisoner and nothing more, he cannot be convicted; for if only one was delivered under oath, it must be presumed, from the solemnity of the sanction, that that declaration was the truth, and the other an error or a falsehood, though the latter being inconsistent with what he has sworn may form important evidence, with other circumstances, against him. 1 Greenleaf on Evidence, 259. And if both the contradictory statements were delivered under oath, there is still nothing to shew which of them is false, where no other evidence of the falsity is given. If a person swears one thing at one time, and another at another, he cannot be convicted where it is not possible to tell which is the true and which is the false. R. v. Jackson, 1 Lewin C.C. 270. Nor is it a necessary consequence that a person has committed perjury when he has sworn on both occasions to conflicting statements, for there are cases in which a person might very honestly and conscientiously swear to a particular fact from the best of his recollection and belief, and from other circumstances at a subsequent time be convinced that he was wrong, and swear to the reverse, without meaning to swear falsely either time. Ibid., per Holroyd, J. Joint affidavit.]—A joint affidavit made by the defendant and one D. stated: "Each for himself maketh oath and saith that he this deponent is not aware of any adverse claim to or occupation of said lot." The defendant having been convicted of perjury on this latter allegation, it was held that there was neither ambiguity or doubt in what each defendant said, but that each in substance stated that he was not aware of any adverse claim to or occupation of said lot. R. v. Atkinson (1866), 17 U.C.C.P. 295. And it has been held that a statutory declaration made jointly by several persons that they know certain alleged facts is to be construed as a statement by each of them severally that he knows the matters alleged. R. v. Skelton (1898), 4 Can. Cr. Cas. 467 (N.W.T.). 171. Every person is a witness within the meaning of the Witness last preceding section who actually gives his evidence, whether defined. he was competent to be a witness or not, and whether his evidence was admissible or not. Judicial 2. Every proceeding is judicial within the meaning of the last preceding section which is held in or under the authority proceeding. of any court of justice, or before a grand jury, or before either the Senate or House of Commons of Canada, or any committee Perjury. False statement under oath within Canada. False oath, etc., in verification of statement. Subscribing affirmation as affidavit. of either the Senate or House of Commons, or before any legislative council, legislative assembly or house of assembly or any committee thereof, empowered by law to administer an oath, or before any justice, or any arbitrator or umpire, or any person or body of persons authorized 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 legal tribunal by which any legal right or liability can be established, or before any person acting as a court, justice or tribunal, having power to hold such judicial proceeding, whether duly constituted or not, and whether the proceeding was duly instituted or not before such court or person so as to authorize it or him to hold the proceeding, and although such proceeding was held in a wrong place or was otherwise invalid. 55-56 V., c. 29, s. 145. 172. Every one is guilty of perjury who, (a) having taken or made any oath, affirmation, solemn Oath to voter.]-A person applying for a ballot at a Dominion election in the name of another person entitled to vote may be convicted of perjury in taking the oath of identity with that person, although the Elections Act authorizes the administration of the oath of qualification to an "elector" only, and that term must be held to include, for the purposes of administering such oath and prosecuting the personator, the person representing himself at the polls as an elector. R. v. Chamberlain, 10 Man. R. 261. Declaration under provincial law.]-Perjury is not proved in respect of a solemn declaration that there was "no lawful hindrance" to depon ent's proposed marriage by shewing that the deponent knew the girl to be under twenty-one and that her parent's consent had not been obtained as required by the provincial law, if the marriage was valid notwithstanding the absence of such consent. The King v. Moraes (1907), 12 Can. Cr. Cas. 145. of the pro 173. Every person who wilfully and corruptly makes any Making false false affidavit, affirmation or solemn declaration, out of the pro- affidavit out vince in which it is to be used but within Canada, before any vince but person authorized to take the same, for the purpose of being within used in any province of Canada, is guilty of perjury in like Canada. manner as if such false affidavit, affirmation or declaration were made before a competent authority in the province in which it is used or intended to be used. 55-56 V., c. 29, s. 149. 174. Every one is guilty of an indictable offence and liable Penalty for to fourteen years' imprisonment who commits perjury or sub- perjury or ornation of perjury. subornation. 2. If the crime is committed in order to procure the convic- Increased in tion of a person for any crime punishable by death, or certain imprisonment for seven years or more, the punishment may be imprisonment for life. 55-56 V., c. 29, s. 146. Perjury defined.]-See sec. 170. Form of indictment.]-Code form No. 64 contains two examples of indictments for perjury, which by sec. 1152 are valid in the cases for which they respectively provide, and may be varied to suit the case. An indictment or charge for perjury in which it is alleged that the accused committed perjury by falsely, wilfully and with intent to mislead the magistrate, swearing to a certain statement, involves a charge that the accused knew such statement to be false and will not be quashed for failure to more specifically charge such knowledge. R. v. Doyle (1906), 12 Can. Cr. Cas. 69. Where the statutory form of indictment is not followed but the indictment contains all the averments which the statute requires, the addition of other unnecessary averments does not invalidate it. R. v. Coote (1903), 8 Can. Cr. Cas. 199, 10 B.C.R. 285. In R. v. Cohon (1903), 6 Can. Cr. Cas. 386, the Supreme Court of Nova Scotia held that a charge of perjury is defective as not disclosing a crime, if it does not allege that the statement was sworn to knowing the same to be false, or if such is not the necessary inference from what is alleged, apart from the declaration in the charge that the accused "thereby committed wilful and corrupt perjury." But the decision of the Cohon Case is in conflict with the Quebec decisions under the statute preceding the Code. It has been held in the latter province that an indictment following the statutory form is sufficient if it charges that the accused "committed perjury" by swearing that (specifying the false oath), without including a specific statement that it was so done knowing the same to be false. R. v. Bain (1877), Ramsay's Cases (Que.) 192; R. v. Bownes, Ramsay's Cases (Que.) 192. See sec. 862 as to statements now unnecessary in counts for perjury. cases. |