Gurdita v. The King

MOTION for leave to appeal to the Supreme Court of Canada, under section 102 a of the Criminal Code, from the judgment of the Court of Appeal for British Columbia (1) upholding the conviction of the appellant for perjury in the trial of a civil action. The material facts of the case are stated in the judgments now reported.

Smellie K.C. for the motion.

Ritchie K.C. contra.

December 14, 1926. C.J.C.-Motion for leave to appeal under s. 1024 (a) of the Criminal Code on the ground that the judgment sought to be appealed from conflicts with a judgment of the Ontario Appellate Division in a like case. In the case at bar one of the grounds of appeal to the Appellate Division was that

The alleged perjury was committed in the trial of the civil action of Brama v. Gurditta. At the trial of the perjury charge the clerk of assize proved from the entries in his court record that Gurditta had been sworn as a witness and had given evidence on the trial of the civil action. The court stenographer proved the evidence given by Gurditta at that trial. Counsel for the Crown put in evidence, as exhibit I, the record prepared for the use of the judge at the trial pursuant to rule 454, consisting of a certified copy of the endorsement upon the writ of summons and of the statement of defence, being the whole of the pleadings. The clerk of assize gave evidence that the case of Brama v. Gurditta, in which this record was used, was tried at the assize held before Mr. Justice Morrison on the 22nd of February, 1926, on which date the indictment charges the S.C.R.

perjury was committed. The judgment disposing of the civil action does not appear to have been put in evidence. In the judgment of the Appellate Division in the present proceeding Mr. Justice Martin, delivering the opinion of cJ.c.

the court, held, on the authority of Regina v. Scott (1), that it had been sufficiently established that Gurditta had given the evidence on which the perjury charge rests in a judicial proceeding, i.e., upon the trial before Mr. Justice Morrison of the civil action of Brama v. Gurditta of which the record was put in evidence.

This conclusion is said to conflict with the decision of the Ontario Appellate Division in Rex v. Drummond (2), the judgment of another court of appeal which conflicts with the judgment appealed from. 'My reasons for not regarding the case of Rex v. Drummond (1) as " a like case" I have already stated.

The motiofi will be refused.

Motion dismissed.