Perjury (Offence): Difference between revisions

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Revision as of 07:38, 14 February 2020


Perjury
s. 131 of the Crim. Code
Election / Plea
Crown Election Indictment
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Indictable Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum 14 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to perjury are found in Part IV of the Criminal Code concerning "Offences Against the Administration of Law and Justice".

Pleadings
Offence
Section		 Offence
Type		 Crown Election Defence Election
s. 536(2)		 Preliminary Inquiry
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).

Release
Offence(s) Appearance Notice
by Peace Officer
s. 497		 Summons
by Judge or Justice
s. 508(1), 512(1), or 788		 Release by
Peace Officer
on Undertaking
s. 498, 499, and 501		 Release By
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] Template:ReleaseProfileOnlyBail

Template:ReleaseOnlyBail

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 weapon, being 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)).

And, regardless of Crown election, if the offence alleged was one:

  • where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
  • where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
  • where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
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
Offence(s) Wiretap
Eligible
s. 183		 Dangerous Offender
Designated Offence
s. 752		 Serious Personal
Injury Offence
s. 752		 AG Consent Required Serious Criminality
Offence
s. 36 IRPA
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.

Offence Wording

Perjury

131. (1) Subject to subsection (3) [perjury – application to statements], every one commits perjury who, with intent to mislead, makes before a person who is authorized by law to permit it to be made before him a false statement under oath or solemn affirmation, by affidavit, solemn declaration or deposition or orally, knowing that the statement is false.

Video links, etc.

(1.1) Subject to subsection (3) [perjury – application to statements], every person who gives evidence under subsection 46(2) of the Canada Evidence Act, or gives evidence or a statement pursuant to an order made under section 22.2 of the Mutual Legal Assistance in Criminal Matters Act, commits perjury who, with intent to mislead, makes a false statement knowing that it is false, whether or not the false statement was made under oath or solemn affirmation in accordance with subsection (1) [perjury – offence], so long as the false statement was made in accordance with any formalities required by the law of the place outside Canada in which the person is virtually present or heard.

Idem

(2) Subsection (1) [perjury – offence] applies, whether or not a statement referred to in that subsection is made in a judicial proceeding.

Application

(3) Subsections (1) [perjury – offence] and (1.1) [perjury – video links, etc.] do not apply to a statement referred to in either of those subsections that is made by a person who is not specially permitted, authorized or required by law to make that statement.

R.S., 1985, c. C-46, s. 131; R.S., 1985, c. 27 (1st Supp.), s. 17; 1999, c. 18, s. 92.
[annotation(s) added]

– CCC

Punishment

132. Every one who commits perjury is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
R.S., 1985, c. C-46, s. 132; R.S., 1985, c. 27 (1st Supp.), s. 17; 1998, c. 35, s. 119.

– CCC

Template:DraftCharge

Proof of the Offence

Proving perjury under s. 131 should include:[1]

  1. ☐ identity of accused as culprit
  2. ☐ date and time of the incident
  3. ☐ jurisdiction (incl. region and province)
  4. ☐ obtain evidence of prior hearings
    1. ☐ obtain transcript of prior hearings
    2. ☐ have transcript certified by presiding judge
    3. ☐ provide notice to culprit of intention to produce
  5. ☐ prove contents of hearings (through the clerk of the original trial)
    1. ☐ jurisdiction, date and time of prior hearing
    2. ☐ identity of culprit as a witness
    3. ☐ the clerk swore the culprit
    4. ☐ that the culprit gave testimony to a fact
      <have all documents filed with the court>
  6. ☐ there was a contradiction between the testimony in the prior hearing #1 and prior hearing #2
  7. ☐ the culprit knew that they were contradictory at the time
  8. ☐ the culprit intended to be contradictory at the time
  1. ↑ Calder v The Queen, 1960 CanLII 73 (SCC), [1960] SCR 892, per Judson J
    R v Akinyemi, 2014 ONCJ 213 (CanLII), per De Filippis J, at para 34

Tender Exhibits

  1. evidence of prior hearings:
    1. transcript of prior hearings
    2. subpoena clerk of original trial to bring all documents related to trial
    3. provide notice to accused of intention to produce
  2. 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.[1]

  1. ↑ 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.[1]

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.[2]

False evidence includes dishonest or deliberate loss of memory.[3]

  1. ↑ R v Akinyemi, 2014 ONCJ 213 (CanLII), per De Filippis J, at para 34
  2. ↑ R v Reyat, 2012 BCCA 311 (CanLII), per Finch J
  3. ↑ Wolf v The Queen, 1974 CanLII 161 (SCC), [1975] 2 SCR 107, per Laskin CJ

Form of Charge

Section 585 states:

Sufficiency of count charging perjury, etc.

585. No count that charges

(a) perjury,
(b) the making of a false oath or a false statement,
(c) fabricating evidence, or
(d) procuring the commission of an offence mentioned in paragraph (a), (b) or (c),

is insufficient by reason only that it does not state the nature of the authority of the tribunal before which the oath or statement was taken or made, or the subject of the inquiry, or the words used or the evidence fabricated, or that it does not expressly negative the truth of the words used.
R.S., 1985, c. C-46, s. 585; 1992, c. 1, s. 60(F).

– CCC

Corroboration

Section 133 requires corroborative evidence in order to sustain a conviction for perjury under s. 131.

Corroboration

133. No person shall be convicted of an offence under section 132 on the evidence of only one witness unless the evidence of that witness is corroborated in a material particular by evidence that implicates the accused.
R.S., 1985, c. C-46, s. 133; R.S., 1985, c. 27 (1st Supp.), s. 17.

– CCC

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".[1]

The corroboration rule does not apply where the evidence is purely circumstantial.[2] Accordingly, a conviction can be made using business records without the need for corroboration.[3]

  1. ↑ R v Reyat, 2012 BCCA 311 (CanLII), per Finch J, at para 48
  2. ↑ 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
  3. ↑ e.g. see R v Akinyemi, 2014 ONCJ 213 (CanLII), per De Filippis J

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
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

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
Maximum Penalties
Offence(s) Crown
Election		 Maximum Penalty
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
Offence(s) Crown
Election		 Discharge
s. 730		 Suspended
Sentence
s. 731(1)(a)		 Stand-alone
Fine
s. 731(1)(b)		 Custody
s. 718.3, 787		 Custody and
Probation
s. 731(1)(b)		 Custody and
Fine
s. 734		 Conditional
Sentence (CSO)
s. 742.1
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.

Principles

Primary Objectives in Sentencing

For charges of perjury or any other attempts to pervert the cause of justice, denunciation and deterrence must be emphasized.[1]

Anyone convicted of perjury should expect a "severe punishment".[2]

Degrees of Seriousness

Perjury is serious because "it strikes at the heart of the justice system and undermines the administration of justice".[3]

The offence is particularly grave given that it is easy to commit and hard to prove.[4]

Perjury can be broken down into three levels of gravity based primarily on the purpose or effect of the perjured evidence:[5]

  1. perjured evidence leads to the conviction of an innocent person;
  2. perjured evidence was given in hope of procuring the acquittal of a guilty party; and
  3. perjured evidence was given as self-protection or protection of others.
Factors

Factors that are relevant to sentencing include:[6]

  1. the relative seriousness of the offence with respect to which the perjured testimony was given;
  2. the effect, if any, on the outcome of the trial by reason of the perjured evidence;
  3. whether the testimony dealt with a vital part of the evidence;
  4. whether the perjured evidence led to the implication of an innocent person in a crime, which would ordinarily be a most aggravating factor;
  5. 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.[7]

The fourth factor should also consider whether it also caused "serious inconvenience" or embarrassment to the innocent party.[8]

  1. ↑ R v Adams, 2010 NSCA 42 (CanLII), per Bateman JA, at para 52
  2. ↑ R v Hansen, 2018 ONCA 46 (CanLII), per curiam, at para 5
  3. ↑ R v Hansen, 2016 ONSC 3583 (CanLII), per Braid J, at para 36 appealed to other issues at 2018 ONCA 46 (CanLII)
  4. ↑ Hansen, supra
  5. ↑ R v Reyat, 2014 BCCA 101 (CanLII), per Saunders JA, at para 28
    R v Kusnezoff, 1991 CanLII 1968 (BC CA), [1991] BCJ No. 421 (C.A.), per Lambert JA
  6. ↑ Reyat, supra
    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
  7. ↑ 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.")
  8. ↑ 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")

Ranges

see also: Perjury (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 131 [perjury]
General Sentencing Orders
Order Conviction Description
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 Conviction Description
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 His Majesty the King on application of the Crown. NB: does not apply to summary offences.
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. NB: does not apply to summary offences.

See Also

References
v • e
 
Administration of Justice Offences
Offences / Sentencing
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