Fortier v. The King

KERWIN J.-The appellants were convicted after a trial before Mr. Justice Pr6vost and a jury on the following charge:- Que depuis le ou vers le premier janvier mil neuf cent vingt-eept, jusqu'au ou vers le vingt-trois mars, mil neuf cent trente cinq, A6 Qu6bec, dans le district de Qu6bec, aux Trois-Rivibres, dans le district des Trois- Rivires, A Montrial, dans le district de Montr6al, et ailleurs dans la province de Qu6bec,-Joseph Herman Fortier, Pierre Wilfrid Fortier, et Pierre Clestin Falardeau, tous trois de la cit6 de Qu6bec, ont ensemble et avec d'autres personnes inconnues, complot6 par la supercherie, le mensonge et d'autres moyens frauduleux, pour frauder le public et les porteurs d'obligations de la Compagnie P. T. L6gard Limitie, corporation l6gale ayant son principal sihge d'affaires i Qu6bec, et les actionnaires et cr6anciers de la dite compagnie, et entre autres Peter alias Pierre L6gar6, dame B6atrice L6gar-Miller, Findlays Ltd, et autres, et Ia Cie P. T. L6gar6 suadite, commettant ainsi par 1. le crime du complot pour frauder, contre la forme du statut en tel cas fait et pourvu.

The Court of King's Bench (in appeal) unanimously affirmed the conviction, and the appellants now seek leave to appeal to the Supreme Court of Canada under section 1025 of the Criminal Code. They must show that the judgment in the Court of King's Bench conflicts with the judgment of some other court of appeal in a like case.

It is suggested that such a judgment is Brodie v. The King (1).

Upon comparing that decision with that of the Court of King's Bench, it is quite apparent that there is no conflict. In the Brodie case the accused were charged Ke . with having conspired together and with others, during a K certain period, and at a named place, " thereby committing the crime of seditious conspiracy."

Here the accused are charged with having conspired together and with others, during a certain period, and at named places,

A They are not charged with having committed a crime in the abstract like " murder " or " theft "; the offence is charged in such a way as to lift it from the general to the particular. It is argued that the formal charge should have alleged that the conspiracy was to defraud the public and those named of $

(naming the sum) or at least of "money."

I do not agree that the judgment in the Brodie case says or infers that in such a charge as is here under consideration any such allegation is necessary. I think attention might very well be called to the concluding paragraph of that judgment.

It is then contended that the decision of the court below is in conflict with The King v. Sinclair (2), a judgment of the Supreme Court of the Northwest Territories. The matter there came before the court on a case stated by the trial judge and all it determined (so far as the point under consideration is concerned) was that the charge, with the particulars, did not disclose any offence under section 394 of the Criminal Code (now section 444 and the section under which the present charge is laid).

At pages 23-24, Wetmore J. states:- Two members of the court concurred in these reasons. Newlands J., speaking for himself and one other member of the court, expresses a similar view in somewhat different language.

This judgment does not conflict with that from which is sought to appeal in the present case as the charge here does not allege or suggest a conspiracy to do anything of the kind referred to in the judgment in the Sinclair case. Counsel for the accused objected to the definition of a conspiracy to defraud, given by the trial judge and approved by the Court of King's Bench, but unless they are able to show that in so defining, the Court has decided contrary to a judgment of some other court of appeal in a like case, there is no jurisdiction to grant leave to appeal. The Sinclair case (1) was the only one to which they referred as being such a judgment, and for the reasons just stated I am of opinion that that judgment is not one in a like case.

The third ground upon which. the accused sought leave to appeal was that the case for the defence was not put to the jury. I disposed of this contention at the hearing as it is obvious that the judgment in this case could not upon that point be in conflict with any other court. The position is not that there has been dissent in the court below upon a question of law; and while the principle is well established that the trial judge is to place the defence properly before the jury, and there are many cases exemplifying the rule, the Court of King's Bench, in the present case, has come to the conclusion that this was done. The application is refused.

Motion refused. OGAWA v. FUJIWARA

APPEAL by the defendant from the judgment of the Court of Appeal for British Columbia (1), affirming the judgment of the trial judge, Manson J. (2), and maintaining the plaintiffs' action for damages arising out of an automobile accident, the defendant being found negligent in cutting in sharply in front of the plaintiff's car immediately after passing it.

H. R. ROSS

THEODORE

REOPEL

LYLAR

REOPEL

APPEAL by the defendant from the judgment of the Court of Appeal for British Columbia (1), reversing the judgment of the trial judge, D. A. McDonald J., and maintaining the respondents' action for damages caused by an automobile accident.

The infant plaintiff, a boy ten years old, alighted from the right door of a motor car and going behind the car proceeded to cross the street, an arterial highway, and while doing so was struck by a motor car driven by defendant. The trial judge dismissed the action, finding that defendant was not travelling at an excessive speed and that the real cause of the accident was the boy's own negligence in placing the defendant in a position from