R. v. Kyling, [1970] SCR 953

Supreme Court of Canada

R. v. Kyling, [1970] S.C.R. 953

Date: 1970-06-26

Her Majesty the Queen Appellant;

and

Werner Kyling Respondent.

1970: June 12, 26.

Present: Fauteux C.J. and Abbott, Martland, Ritchie and Pigeon JJ.

ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC

Criminal law—Trial—Nonsuit—Inciting to perjury—Trial without a jury—Acquittal at close of case for prosecution—Appeal by Crown—Corroboration—Proof of falsity of facts to be stated under oath—Criminal Code, 1953-54 (Can.), c. 51, ss. 115, 407.

The respondent was acquitted by a judge sitting without a jury on a charge of inciting to perjury. The evidence established that a prisoner at the penitentiary handed over to a police officer a letter written by the respondent, containing suggestions with regard to testimony which the prisoner had been summoned to give in a criminal case. After the close of the evidence for the prosecution, the defence counsel asked the Court to order a nonsuit on the ground, inter alia, that sufficient evidence to support a conviction had not been presented. By a majority judgment, the Court of Appeal affirmed the acquittal. The Crown appealed to this Court.

Held: The appeal should be allowed and a new trial directed.

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The record of the case shows that the trial judge did order a nonsuit. This was therefore a decision on a question of law on which the prosecution had a right of appeal.

Corroboration is not required to constitute proof of incitement to perjury.

The letter was evidence against the respondent in its entirety since the writer was the respondent himself. It is difficult to see why the document could not be at the same time evidence of the falsity of the facts which the third party was incited to state under oath, and evidence of the inciting itself. The document did not give rise merely to a suspicion but to an inference.

APPEAL by the Crown from a judgment of the Court of Queen’s Bench, Appeal Side, province of Quebec[1], affirming the acquittal of the respondent. Appeal allowed.

Louis Guy Robichaud, Q.C., and Bernard Fournier, for the appellant.

Ivan Sabourin, Q.C., and André Régnier, Q.C., for the respondent.

The judgment of Fauteux C.J. and of Abbott and Ritchie JJ. was delivered by

THE CHIEF JUSTICE—Being in substantial agreement with the reasons for judgment of my brother Pigeon, I would dispose of the appeal as he proposes.

The judgment of Martland and Pigeon JJ. was delivered by

PIGEON J.—This appeal by the Crown is from a majority decision whereby the Court of Queen’s Bench of the Province of Quebec[2] dismissed the appeal of the Crown from a judgment acquitting the respondent on a charge of inciting to perjury. With the consent of the accused, the trial was held before a judge sitting without a jury. After the close of the evidence for the prosecution, the defence counsel asked the Court to order a non-suit on the grounds that sufficient evidence to support a conviction had not been presented. In fact, all that the evidence had

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established was that a prisoner at the penitentiary had handed over to a police officer a letter written by the accused, containing suggestions with regard to testimony which the prisoner had been summoned to give in a criminal case. The contention that this does not constitute proof of incitement to perjury rests on two propositions:

(1) corroboration was required;

(2) the suggested statements had to be proved false, i.e. in conflict with the facts.

The first reason given by the majority for dismissing the appeal was that the decision of the trial court was not really a nonsuit, but rather an acquittal on the merits, for an insufficiency, not an absence, of evidence. It was rightly pointed out that whereas the absence of any evidence is a question of law, the insufficiency of the evidence is essentially a question of fact. The right of appeal by the prosecution, however, is only on a question of law.

With respect, I must observe that the record of the case shows that the trial judge did order a nonsuit. He stated this explicitly in his judgment and in his report to the Court of Appeal; this is also borne out by the transcript. It is true that at the close of the argument, after stating that he would reserve judgment on the motion, the judge told the defence counsel: [TRANSLATION] “if you would rather offer a defence nevertheless, you can be heard this afternoon, if that is convenient to you.” The immediate reply to this suggestion was, as related by Casey J.: [TRANSLATION] “I am so convinced, your lordship. I will not press the matter further at this stage.” But counsel for the defence then proceeded to elaborate on his answer, and concluded it by saying: [TRANSLATION] “And with respect, I feel duty bound to ask for an acquittal because there is no evidence, not a shred of evidence.” In view of this last statement, and of the fact that, after it, the judge stated that he would reserve judgment on the motion for nonsuit and subsequently rendered judgment accordingly, it is impossible to hold that the nature of the proceeding was altered in the course of the argument. In my opinion, the

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same must be said of what Hyde J. relates concerning the exchange between the trial judge and the Crown prosecutor, before the decision to reserve judgment was announced. Regarding the contents of the judge’s report, I must respectfully point out that an absence, not an insufficiency, of evidence is meant in the following reason: [TRANSLATION] “the Crown did not adduce the evidence necessary to show that the charge is well founded”.

In The King v. Morabito[3], this Court held that a nonsuit pronounced on a motion by the defence after the close of the case for the Crown is a decision on a question of law, namely the absence of evidence. This rule was also held applicable to summary proceedings by the judgment in Feeley et al. v. The Queen[4]. I have found nothing in the 1955 Criminal Code that might imply a change in the principles underlying these judgments, nor has anything to this effect been brought to our attention.

Turning now to the two grounds urged by counsel for the respondent on the merits of the nonsuit, it must be said, first, that nothing shows that corroboration is required. Section 115 of the Criminal Code has reference only to the offences mentioned in ss. 113 and 114, i.e. perjury and a false solemn declaration. Obviously, it also applies to subornation of perjury, seeing that under s. 21 the suborner is a party to the perjury; but here there was no perjury, and the charge is not one of subornation, which implies that perjury was committed, but of inciting to commit a perjury that was not in fact committed. This is, in other words, a lesser offence created by s. 407 and punishable as an attempt to commit the offence, not as the offence itself.

Counsel for the respondent has not succeeded in showing a valid reason for extending the requirement for corroboration beyond the specific provisions of the Criminal Code in this respect. No such rule is to be found in the law prior to codification. Taylor on Evidence (11^th ed.,

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1920, para. 959), dealing with this requirement before the adoption of the Perjury Act of 1911 (1-2 Geo. V, c. 6) refers to perjury only. Of course, like other authors, he points out that the Perjury Act laid down this requirement for all offences contemplated in that Act, including that of inciting to perjury, but this is not what our Code enacts.

As regards the proof of the falsity of the facts which the letter incited the prisoner to state under oath, it must be pointed out that the writer in this case was the accused himself: thus the document is evidence against him in its entirety. Under our present system, an accused may admit any fact alleged against him (Criminal Code, s. 562). It is difficult to see why the document could not be at the same time evidence of the falsity of the facts which the third party was incited to state under oath, and as evidence of the inciting itself. This document does not give rise merely to a suspicion, as the learned trial judge seems to have thought, but to an inference. Since I must hold that a new trial is necessary, I refrain from further comment.

For the foregoing reasons, I am of the opinion that the judgment of the Court of Appeal and the verdict of acquittal should be set aside, and a new trial of the respondent as charged should be directed.

Appeal allowed.

Solicitors for the appellant: L.G. Robichaud and B. Fournier, Montreal.

Solicitor for the respondent: I. Sabourin, St. Jean.