Judgment of the Court
J.-The appellant, de Bortoli, was accused of perjury. Three different counts were laid against him in the indictment. He was charged with having falsely and with intent to mislead justice deposed and sworn that:- 1. He had not worked for one Joe Esposito;
2. He had not given evidence during the year 1926 with regard to Joe Esposito dealing in liquor;
3. He did not know whether or not Joe Esposito had kept intoxicating liquor for sale between the 1st January and the 21st May, 1926.
The jury found him guilty on the third count.
De Bortoli appealed on several grounds. They were all dismissed by the Court of Appeal of British Columbia. After the argument was concluded, the Chief Justice, who presided, declared that he would dismiss the appeal and would deliver his reasons later. Then the other members of the court proceeded in turn to give their reasons, two of the judges (Martin and McPhillips JJA.) being in favour of allowing the appeal, the two others (Galliher and M. A. Macdonald JJA.) concurring with the Chief Justice.
The president of the court then announced: " The appeal is dismissed."
In due course, came to be signed the formal judgment in which there is apparent neither dissent nor direction indicating that, in the opinion of the court, any question raised upon the appeal was "a question of law on which it would be convenient that separate judgments should be pronounced by the members of the Court."
(Crim. Code, s. 1013 (5) ).
This Court. in Gouin v. The King (1), has already indicated that the direction required by ss. 5 of s. 1013 of the Criminal Code " must be evidenced by the order of the Court and should be plainly expressed."
It is further the unmistakable effect of our decision in Davis v. The King (2)
rnn- Since Davis v. The King (1), s. 1024 was amended 16 Geo. V, c. 38, s. 27) and its language establishes still more clearly that no appeal in criminal matters can be taken to this Court except on a " question of law on which there has been dissent in the Court of Appeal." This amendment only confirmed the uniform interpretation which this Court had given to the former section. Moreover, as was stated in the Davis Case (1), this Court could not " acquire jurisdiction by a learned judge of the court of appeal pronouncing a dissent which the statute forbids to be pronounced."
It follows that, upon the record in the present case, and having regard to the requirements of sections 1013 and 1024, an appeal to the Supreme Court of Canada was not open to the appellant.
The absence of the requisite direction under subsection 5 of section 1013 was, however, not brought to our attention and we have heard counsel on the merits of the case. We may therefore add that, had there been jurisdiction, the result could not, in our view, have been different from that reached by the Court of Appeal of British Columbia. The ground of appeal was misdirection.
The learned trial judge, when giving, at the conclusion of his address to the jury, a short recapitulation of each count in the indictment, by a slip of the tongue, misdescribed the third count, the substance of which he had, but a moment before, correctly stated to the jury. The three judges who concurred in dismissing the appeal were of opinion that, notwithstanding this misstatement, no substantial wrong or miscarriage of justice had actually occurred. The two other judges thought differently.
It is at least doubtful whether, even had a dissent been regularly and legally pronounced, a difference of opinion on such a question should be considered as a dissent upon a question of law. It is not necessary, however, to decide that point in this case, since a careful examina- S.C.R.