What are the Defences for Perjury?

What you say in the witness box in court is protected to some degree in Canada and you are encouraged to speak the truth even if it incriminates you.

However, if you take the oath in court and say “I swear to tell the truth, the whole truth, and nothing but the truth” and you then knowingly make a false statement, you could be prosecuted for perjury.

What is perjury

You could also face a charge of perjury for falsifying information that is material to certain other types of official legal proceedings.

If you find yourself in this difficult situation, the possible penalties include a prison sentence and a lifelong criminal record. However, all is not lost. An experienced criminal defence lawyer usually has at least one of several viable defences available to help you avoid these harsh consequences.

Common defenses for a perjury charge

According to Section 131 of the Canadian Criminal Code:

“…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.”

To be found guilty of perjury, therefore, a false statement must be made intentionally. Following are the five most common defences to a perjury charge in Canada:

The statement was true

One of the most robust defences to perjury is if you can prove that the “false statement” was, in fact, true. It is sometimes termed an “absolute defence”.

If, for instance, you were asked under oath whether you had ever been convicted of a crime in California and you answered “no” but you were convicted of a crime in Nevada, the prosecutor could accuse you of making a misleading statement about your criminal past. It could not result in a perjury conviction, though, because you answered the question truthfully (even if you intended to mislead the court with your answer).

The false statement was not made knowingly

To be perjury, the false statement must be made knowingly, i.e., with the intention to mislead the court. If you can prove that you were not aware that you made a false statement, you cannot be convicted of perjury.

The prosecution has the burden of proof to show that you intentionally made the false statement.

The statement was immaterial

A perjury conviction can only be secured if the false statement was made knowingly under oath AND it is “material” to the legal investigation at hand. If the statement has no major impact on the case, it cannot lead to a charge of perjury.

So, if you are giving evidence against another member of staff who is charged with fraud and deliberately mislead the court under oath by saying that you were not at work on a particular day because you were sick but, in fact, you were seen in a bar that day, although the statement is false, it is immaterial to the legal matter at hand. So, it could not lead to a perjury conviction.

The statement was recanted or corrected

If you make a false statement that you retract or correct before it has materially impacted the legal investigation at hand, you cannot be convicted of perjury. If you recant or correct the statement after it has already impacted the proceeding, it may not be a valid defence.

The viability of the defence may also depend on the jurisdiction where the perjury charge is brought. If a recantation cannot be used as a defence, it is usually at least taken into consideration if it was withdrawn promptly.

The “perjury trap”

Sometimes, a defendant can claim that the prosecutor called him/her to be a witness solely because he/she would be likely to lie under oath, committing perjury. In such cases, where it is claimed that the prosecutor doesn’t need the testimony for any other purpose than to lure the witness into committing perjury, it may be a valid defence.

However, the prosecutor will deny the claim and proving that the prosecutor has set a “perjury trap” can be challenging.

The biggest problem is the fact that a prosecutor’s hopes that the witness will lie doesn’t make it happen. If the questions asked of the witness are related to the issue under investigation or raised in a lawsuit, the prosecutor can easily claim that no trap was set. So, making a deliberately false statement may still be classed as perjury.

Note that certain defences like double jeopardy do not apply in perjury cases. So, if you are tried for a crime, you can later be charged with perjury if you were found to intentionally mislead the court during the trial for that crime.

Note also that false testimony given after a prosecutor has granted a witness immunity from prosecution (usually a low-level informant) may also still be prosecuted as perjury.

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