Mr. DAVIES (P. E. I.)-It seems to me that the English Bill merely removed from the category of doubtful points the question whether a man was a competent witness or not, but it did not purport to extend the crime of perjury in any sense. The latitude now allowed in cross-examination is enormous. Most counsel recognize the responsibilities of their position and do not put witnesses on the rack unnecessarily, but some are not actuated by the highest considerations, and the witness may be examined in reference to his private life or the moral character of others and in regard to matters without any relevancy to the questions at issue. It is worthy of consideration whether, if a man is asked totally immaterial questions as to his private life or his conduct many years before, he should be put on the same status in regard to his answers, if he makes untrue answers, as if he were replying to questions affecting the issue before the Court.

Mr. MILLS (Bothwell).-According to the common law rule, one who had not been a proper witness would not have been responsible for perjury on account of anything he testified. The English Bill proposed that he should be made responsible for his testimony as far as his testimony was material to the issue, just as if he had been a proper and pertinent witness.

Sir JOHN THOMPSON.-I was not undertaking to discuss critically the wording of the English Bill, which has not become law, but my impression is that it goes further than my hon. friends think. As to the latitude of cross-examination, it has practically no limit so far as it tests the credibility of the witness who is testifying, and, if a witness is examined in reference to matters immaterial to the issue but which are material to his own credibility, it should be lef. to the Court to punish him for perjury if he makes a false statement. The decision depends, in ninety-nine cases out of a hundred, upon the credibility of the witnesses, and very often the Court is misled by the evidence given, and it has been very difficult to arrive at what was the distinction at common law between what testimony was relevant or material and what was not.

Mr. MASSON.-Under our late statute, it was no longer necessary to prove that the statement alleged to be false, was material. That, I think, is just as far as the words of the statute can reasonably be interpreted. I agree with the Minister of Justice that if a statement is made on cross-examination that affects the credibility of the witness, it is just as important that what he says affecting his own credibility, and that gives weight to his evidence, should be true, that the material facts referring to the issue shoud be true.

as

Mr. DAVIES (P. E. I.)—The 5th section of the Act 32 and 33 Victoria says." All evidence and proof whatsoever, whether given or made orally or by or in any affidavit, declaration or examination shall be deemed or taken to be material." The Hon. Gentleman says that every statement a man makes upon oath should be subject to the same penalties, whether the statement has reference to the material issue before the Court or not. Now supposing a man is called to give evidence on a question of fact and the lawyer cross-examining

him, goes into his private life, and asks questions that no witness should be liable to be asked; some notable cases have occurred in England where questions affecting not only the character of the witness but of third parties, have been asked, cruel and brutal questions. I am not so sure that this Parliament is legislating correctly, when we put an answer to an impertinent question of that kind on the same footing as an answer which a man ought to make in Justice and in law, truly on his oath.

Mr. MASSON.—I agree that they should not be dealt with in the

same manner.

Mr. DAVIES (P. E. I.)—They are by this Bill.

Mr. MASSON.—They are put in the same category; but the heinousness of the offence is greatly different, it is in the same class of crimes. What impressed me was, that a witness, speaking inadvertently, under surprise, might make mistatements that would subject him to a prosecution for perjury, when, in fact, the man may never have intended to make a false statement. Of course, the intent would be a matter for the Jury to consider, and it might be a very difficult matter for them to consider. As to the example cited by the Hon. Member for Prince Edward Island where a person is asked as to his own character, I do not consider that a serious objection, because if his own character is open to suspicion, it is right that the Court should know it.

Sir JOHN THOMPSON.—I contend with the greatest confidence that the meaning of the section is exactly the meaning of the clause in the Revised Statutes. It is always a question of law as to whether a statement is material or not, presuming of course that the facts are not disputed. When Parliament says that evidence shall be deemed to be material, no witness, no Judge, no Court can deem it otherwise, no matter what evidence comes up. I think that is clear, and it has been so decided over and over again. But as regards the latitude of cross-examination I think what the hon. member for Queens. P.E.I., has said is correct. We can doubtless recall, in our experience, many cases of witnesses who have been subjected to injurious and cruel cross-examination, but we have to consider not the feelings of witnesses nor their interests,-because these must always be left to the Guardianship of the Tribunal,-but we have to consider the necessity of arriving at the ends of Justice. If a witness even in a moment of temper or anger, under provocation, under irritation-and it is a ground of reproach for any counsel thus to irritate a witness-if, even under these circumstances, he states what is false, with a deliberate intention of misleading and deceiving the Court, he ought to be amenable to the penalties for perjury.

On section 146.

Section postponed.
On section 149. (1)

(1) See Art. 151, ante,

Mr. DAVIES (P.E.I.)-This is a new offence altogether; I do not understand exactly what it is.

Sir JOHN THOMPSON.-It is an analogous offence to making a false statement. It is fabricating circumstances which coincide with the statement made by a witness. There is an illustration given in the report, in which a person was charged with firing a pistol with intent to kill. The defence was that the pistol was not loaded and the discharge was only intended to frighten. Evidence was given that a pistol ball had been found in a tree, in the line from the spot where the accused fired It was afterwards discovered that the ball had been placed in the tree by those interested in the prosecution, in order to supply a missing link in the evidence. In the cases of evidence regarding firearms having been recently discharged and such matters, the fabrication of evidence is not very uncommon, although grave cases, like the one mentioned in the report, are somewhat rare.

Mr. DAVIES (P.E.I.)-I fail to grasp the distinction between this new offence and subornation of perjury.

Sir JOHN THOMPSON.-There would be no subornation of perjury in a case such as quoted.

On section 150. (1)

Sir JOHN THOMPSON.-The offence mentioned in this section is one which we ought to mark with a special punishment. This kind of conspiracy is closely analogous to perjury It ought to be a special offence to enter into conspiracy to rob a man of his life and liberty. That tends to the misleading of justice, and it ought to be made punishable just as perjury is.

Mr. DICKEY.—If you conspire to make a false charge against a man that would cause him to be sentenced to death or imprisonment for life, the punishment would be imprisonment for life. In section 231 it will be found that imprisonment for conspiracy to murder as the Bill was drafted, was 10 years, and that was made 14 years in committee. It seems to me that is quite as serious an offence as the conspiracies mentioned here.

Sir JOHN THOMPSON.-A sentence of 14 years is almost equivalent to life, and I move that it be reduced to 14 years. Amendment agreed to.

On section 151. (2)

Mr. MULOCK.--This provision, imposing a penalty on Magistrates for taking affidavits which they have no jurisdiction to take, has been very much disregarded. I think it is a law that ought not to be on the Statute-book, so far as punishment by imprisonment is concerned. Justices of the Peace are not learned in the law, and it has always been their practice to take affidavits in good faith. I think the only punishment imposed should be a pecuniary fine. After all, the affidavit would be a nullity.

(1) See Art. 152, ante.

(2) See Art. 153, ante.

Sir JOHN THOMPSON.-The policy of this section is apparent on its face namely, to prevent the taking of oaths on trifling occasions. This was greatly on the increase. Every time a man was injured or thought he was or had any complaint, he rushed off and made an affidavit; and although the Act does not prevent by any means all extra-judicial oaths, it has suppressed a vast number of them. The frequency with which statutory declarations have come into use shows that the Act has had good effect. Of course the penalty of imprisonment will not be imposed on a Magistrate who acted in good faith or even in ignorance of the law.

Mr. MULOCK.-Does the ignorance of the law excuse him?

Sir JOHN THOMPSON.-It will save him from imprisonment. We leave that to the discretion of the Court, as we do every penalty. When we remember that the Act has been in force fifteen or sixteen years and nobody has been imprisoned improperly, we have reason to feel confidence in the exercise of discretion by the Judges. I think the fact that imprisonment may be inflicted has prevented many violations of the law by Magistrates.

Mr. MULOCK.-I move that the words " imprisonment not exceeding three months" be struck out.

Amendment negatived.

On section 154. (1)

Mr. DAVIES (P. E. I)-Why make this a criminal matter?

Sir JOHN THOMSON.-In the public interest a private individual ought not to be allowed to discontinue a penal action, and for his own advantage enable an offender to escape. The reasoning is the same as against compounding a felony.

Mr. DAVIES (P. E. I.)-Many actions are brought under the election law in the heat of excitement, shortly after an election, for penalties, which the parties afterwards do not want to go on with and which is not desirable, in the public interests, should be gone on with.

Mr. MASSON.-I think the provision that they may be settled with the consent of the Court is quite sufficient to meet that case.

Sir JOHN THOMPSON. The clause is taken from the law of the Province of Quebec, and I should like to hear, from the gentlemen from that province what their views are about it.

Mr. LAURIER.-I share altogether the views expressed by my hon. friend beside me (Mr. Davies, P.E.I.) and I might call attention to a class of penalties in our province, which are always very odious. For instance, there is a provision, that if partnerships are not registered within a certain time, a penalty of $200 is thereby incurred. The Courts have taken every means to set aside and dismiss such actions. Very often these actions are taken in a fit of anger. A partnership may sue a debtor, and the debtor out of revenge may take action for the penalty of non-registration.

(1) See Art. 155, ante.

Mr. MASSON.-I move that all the words after "liable" be struck out, and the following inserted :-" To a fine not exceeding the penalty compounded for."

On section 160,

Mr. MILLS (Bothwell).-If there is no further crime committed than the escape, it seems to me to be a natural thing, and not a moral offence, for a man to endeavour to regain his liberty.

Sir JOHN THOMPSON.-We have a great many places of detention in Canada which are very insufficiently guarded and secured, and it is a great assistance to the officers that the prisoners can be informed that the mere fact of escaping is an offence in itself. It may be more effective as a prevention than a cure, because we are never able to get a conviction in the case of the man who does escape.

On section 171. (1)

Mr. DAVIES (P. E. I.)—We have got along very well without importing this old and crude and misunderstood law on blasphemy. There has been no instance to justify Parliament in adopting this new offence.

Sir JOHN THOMPSON.—It is an old offence, and when we are specifying offences and describing punishment for them, we must define this offence or treat it as no offence at all, which we would hardly be disposed to do.

Mr. DAVIES (P. E. I.)-We live in an age of religious liberty, and a man should be allowed a deal of latitude in expressing his opinions on this subject.

Mr. CURRAN.-Does the hon. gentleman think that any more liberal language could he used than is used in this section?

Mr. DAVIES (P. E. I.)-I would leave it as it is.

Sir JOHN THOMPSON.-We are not any more stringent in this section than the common law, and we are putting in a fair qualification about blasphemous libels, and one consistent with modern experience and modern liberty of speech. This protects from punishment any one who expresses in good faith and in decent language his arguments upon any religious subject whatever.

On section 177,

Mr. DAVIES (P. E. I.)-Is there any definition of what constitutes an indecent Act?

Sir JOHN THOMPSON.-No.

Mr. DAVIES (P. E. I.)—This section leaves a very large discretion in the hands of two Justices of the Peace. They might put a very curious construction upon the words "indecent act"

(1) See Art. 170, ante.