Difference between revisions of "Perjury (Offence)"
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* [[Pre-Trial and Trial Motions Checklist]]
* [[Pre-Trial and Trial Motions Checklist]]
Latest revision as of 12:38, 14 February 2020
|s. 131 of the Crim. Code|
|Election / Plea|
Sup. Court w/ Jury (*)
|Types of Release||Judicial Release Only|
|Maximum||14 years incarceration|
- 1 Overview
- 2 Offence Wording
- 3 Proof of the Offence
- 4 Interpretation of the Offence
- 5 Participation of Third Parties
- 6 Sentencing Principles and Ranges
- 7 Ancillary Sentencing Orders
- 8 See Also
Offences relating to perjury are found in Part IV of the Criminal Code concerning "Offences Against the Administration of Law and Justice".
|Crown Election||Defence Election
|s. 131 [perjury]||Indictable Offence(s)||(14 years max)|
Offences under s. 131 [perjury] are straight indictable. There is a Defence election of Court under s. 536(2) to trial to trial in provincial court, superior court with a judge-alone (with or without a preliminary inquiry) or superior court with judge-and-jury (with or without a preliminary inquiry).
by Peace Officer
by Judge or Justice
s. 508(1), 512(1), or 788
s. 498, 499, and 501
a Judge or Justice
on a release order
s. 515 to 519
|Direct to Attend |
for Fingerprints, etc.
Identification of Criminals Act
s. 2 ID Crim. Act
|s. 131 [perjury]|
When charged under s. 131 [perjury] , the accused cannot be given a summons under s. 497 or released by police under s. 498 and so must be held in custody when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by release order of a judge or justice pursuant to s. 515. A young person will be subject to a maximum penalty of 3 years under s. 42(15) of the Youth Criminal Justice Act and so may be given an appearance notice or a summons without a s. 495 arrest, and if arrested, can be released by a peace officer under s. 497 on an appearance notice. The young person can also be released by order of a judge or justice under s. 515.
- Reverse Onus Bail
If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:
- while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
- "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
- where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
- where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
- Fingeprints and Photos
A peace officer who charges a person under s. 131 [perjury] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.
- Publication Bans
For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.
- Offence Designations
|AG Consent Required|
|s. 131 [perjury]|
Offences under s. 131 [perjury] are designated offences eligible for wiretap under s. 183.
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Draft Form of Charges
Proof of the Offence
Proving perjury under s. 131 should include:
- evidence of prior hearings:
- transcript of prior hearings
- subpoena clerk of original trial to bring all documents related to trial
- provide notice to accused of intention to produce
- any other documents in possession of the clerk of original trial related to it
Note that in certain jurisdictions the judge may certify the record, while others can be certified by a clerk or court reporter under provincial legislation.
- e.g. Court Officials Act (NS)
Interpretation of the Offence
Perjury is an inchoate offence as it is an attempt to mislead through giving false evidence.
Section 133 intends to prohibit the conviction of the accused on the basis of evidence from a single witness claiming the accused lied. However, where the case is entirely circumstantial, the crown does not need to corroborate the evidence.
False evidence includes dishonest or deliberate loss of memory.
Form of Charge
Section 585 states:
Section 133 requires corroborative evidence in order to sustain a conviction for perjury under s. 131.
The purpose of s. 133 is to "protect an accused from false testimony of a single witness swearing against him". Two testimonies should not be pitted against each other in a contest of "oath against oath".
- R v Reyat, 2012 BCCA 311 (CanLII), per Finch J, at para 48
Neveu c R 2004 CanLII 31404 (QC CA), (2004), 184 CCC (3d) 18 (Que. C.A.), per curiam, at para 19
R v Wilson, 2011 ONSC 3385 (CanLII), per Code J, at paras 24, 27 & 28
Reyat, supra, at paras 48 to 51
- e.g. see R v Akinyemi, 2014 ONCJ 213 (CanLII), per De Filippis J
Participation of Third Parties
- Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).
A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.
- On Finding of Guilt
Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".
Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.
Sentencing Principles and Ranges
- Maximum Penalties
|s. 131 [perjury]||N/A||14 years incarceration|
Offences under s. 131 [perjury] are straight indictable. The maximum penalty is 14 years incarceration.
- Minimum Penalties
These offences have no mandatory minimum penalties.
- Available Dispositions
s. 718.3, 787
|s. 131 [perjury]||N/A|
If convicted under s. 131 [perjury] a discharge is not available under s. 730(1) as it is "an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life".
Offences under s. 131 [perjury] are ineligible for a conditional sentence order under s. 742.1(c), when prosecuted by indictment, as the maximum period of incarceration is 14 years or life.
- Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.
- Primary Objectives in Sentencing
For charges of perjury or any other attempts to pervert the cause of justice, denunciation and deterrence must be emphasized.
Anyone convicted of perjury should expect a "severe punishment".
- Degrees of Seriousness
Perjury is serious because "it strikes at the heart of the justice system and undermines the administration of justice".
The offence is particularly grave given that it is easy to commit and hard to prove.
Perjury can be broken down into three levels of gravity based primarily on the purpose or effect of the perjured evidence:
- perjured evidence leads to the conviction of an innocent person;
- perjured evidence was given in hope of procuring the acquittal of a guilty party; and
- perjured evidence was given as self-protection or protection of others.
Factors that are relevant to sentencing include:
- the relative seriousness of the offence with respect to which the perjured testimony was given;
- the effect, if any, on the outcome of the trial by reason of the perjured evidence;
- whether the testimony dealt with a vital part of the evidence;
- whether the perjured evidence led to the implication of an innocent person in a crime, which would ordinarily be a most aggravating factor;
- whether the perjury was planned and deliberate or the result of a sudden temptation in the course of giving evidence.
The second factor should also take into account not only the impact but also the outcome intended by the accused.
The fourth factor should also consider whether it also caused "serious inconvenience" or embarrassment to the innocent party.
- R v Adams, 2010 NSCA 42 (CanLII), per Bateman JA, at para 52
- R v Hansen, 2018 ONCA 46 (CanLII), per curiam, at para 5
R v Hansen, 2016 ONSC 3583 (CanLII), per Braid J, at para 36 appealed to other issues at 2018 ONCA 46 (CanLII)
- Hansen, supra
R v Reyat, 2014 BCCA 101 (CanLII), per Saunders JA, at para 28
R v Kusnezoff, 1991 CanLII 1968 (BC CA),  BCJ No. 421 (C.A.), per Lambert JA
R v Jordan, 1986 ABCA 168 (CanLII), (1986) 47 Alta. L.R. (2d) 85, per Laycraft JA at 87-88
R v Van Straten, 1994 ABCA 340 (CanLII), per McDonald JA, at para 6 R v Hansen, 2016 ONSC 3583 (CanLII), per Braid J, at para 37
- Van Straten, supra, at p. 193 ("We would add a sub-factor to factor 2, namely that, even if the perjured evidence did not in the result have an effect on the outcome of the trial (or application, in this case), an important factor to be considered is the effect which the perjuring witness intended to have upon the outcome.")
- Van Straten, supra, at p. 194( "...we have here another instance in which an item in Laycraft, C.J.A.’s list should have a sub-factor added, namely ‘whether the perjured evidence led, if not to the implication of an innocent person in a crime, at least to serious inconvenience and even embarrassment on the part of an innocent person")
- see also: Perjury (Sentencing Cases)
Ancillary Sentencing Orders
- Offence-specific Orders
|DNA Orders||s. 131 [perjury]||
- General Sentencing Orders
|Non-communication order while offender in custody (s. 743.21)||any||The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.|
|Restitution Orders (s. 738)||any||A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.|
|Victim Fine Surcharge (s. 737)||any||A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).|
- General Forfeiture Orders
|Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01))||any||Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.|
|Fine in Lieu of Forfeiture (s. 462.37(3))||any||Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.|
|Forfeiture of Weapons or Firearms (s. 491)||any||Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.|
|Forfeiture of Offence-related Property (s. 490.1)||any||Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.|