Everyone’s heard the phrase “I swear to tell the truth, the whole truth, and nothing but the truth”. This lies at the heart of the judicial system in Canada and, if abused, can lead to a charge of perjury.
When this phrase is sworn in court, everything a person says afterward is either the truth or perjury.
It was traditionally applied only during criminal trials in courtrooms. Nowadays, however, perjury can be committed in situations outside of the criminal courtroom, such as in family law court cases, depositions in civil lawsuits, or even in sworn statements made to the Social Security Administration.
For those accused of perjury, the consequences can be harsh, with prosecution, prison, and impeachment possible depending on the circumstances. You may recall a famous impeachment case against President Clinton for perjury.
What is perjury?
Perjury is essentially the crime of lying under oath.
So, if a person makes a statement in a court or certain other proceedings that he/she knows is not true, a charge of perjury can be brought. The statement must be “material” to the subject of the proceeding, i.e., it must have some relationship to the lawsuit, investigation, or inquiry being conducted.
Under Canadian law, it is also a criminal offence to persuade or cause another person to commit perjury (this is called “suborning perjury”).
Perjury is considered a serious criminal offense because the fundamental role of the justice system is to establish the truth. If that process is interfered with, the system does not take it lightly.
The crime of perjury is dealt with in Section 131 of the Canadian Criminal Code as follows:
“…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.”
The truth-seeking function of a person’s testimony is considered essential, even if the evidence may incriminate the witness. Witnesses are, therefore, protected to a large extent in this respect by Section 13 of the Canadian Charter of Rights and Freedoms Canadian Charter:
“a witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence”.
Remember, perjury only happens under oath (a promise to tell the truth), requires a statement (silence cannot be considered perjury) and there must be intent to mislead the investigation (a lapse of memory is not perjury).
These elements must all be proven beyond a reasonable doubt for a conviction of perjury to be handed down in court. Perjury is not the same as not being believed or doubts voiced about the truth of evidence delivered in court.
If the evidence provided by a witness is unreliable because of any other reason than an intent to mislead, it is not enough for a perjury conviction.
A judge may even state that the evidence provided by the witness and the version of events related is not reliable but this does not automatically mean that the witness will be the subject of a criminal case for perjury.
The bar is set suitably high for proving claims of perjury. Actual dishonest testimony in criminal cases is difficult to prove beyond a reasonable doubt.
Truth-seeking and witness protection in court
The main reason why perjury is taken so seriously in Canada is the truth-seeking nature of the justice system. The laws, together with Section 13 of the Charter, are designed to ensure that people who provide evidence under oath speak truthfully.
Both a person responsible for the commission of an offence and a witness providing evidence for an investigation into a crime are encouraged to testify about it without fear that the evidence heard in court can be used against them for other criminal charges. This protection is afforded “in court” only.
Innocent people are frequently prosecuted and this is a terrifying situation to find yourself in. The court is meant to be the place where the truth comes out.
There have been criminal cases in Alberta where the defendant has a witness who can exonerate him/her because the witness was the person who committed the crime.
In such cases, the witness must be advised to seek independent legal advice and should not speak to anybody about his/her involvement in the crime except to a lawyer (where there is lawyer-client confidentiality) or under oath in court (because of the protection afforded when speaking under oath).
If the witness confesses outside of these protections, he or she could be prosecuted for the crime.
Call us to arrange a confidential consultation
To speak with Cory Wilson or arrange a free, no-obligation consultation with Wilson Criminal Defence, call 403-978-6052 or email us here.
