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Definition of perjury.

Subornation.

Evidence.

Misleading Justice.

170. Perjury is an assertion as to a matter of fact, opinion, belief or knowledge, made by a witness in a judicial proceeding as part of his evidence, upon oath or affirmation, whether such evidence is given in open court, or by affidavit or otherwise, and whether such evidence is material or not, such assertion being known to such witness to be false, and being intended by him to mislead the court, jury or person holding the proceeding.

2. Subornation of perjury is counselling or procuring a person to commit any perjury which is actually committed. 3. Evidence in this section includes evidence given on the voir dire and evidence given before a grand jury. 55-56 V., c. 29, s. 145.

Judicial proceeding.]—An examination for discovery is a "judicial proceeding" as defined by this section, but the court has a discretion to refuse to hear a charge of perjury alleged in respect of civil proceedings while such proceedings are pending. R. v. Thickens (1906), 11 Can. Cr. Cas. 274.

False oath before de facto legal tribunal.]—It is perjury under the Code to give false testimony before a justice of the peace holding a judicial proceeding under a provincial law, although the justice was by the terms of that law disqualified from hearing the charge because he was not a resident of the county in which the alleged offence took place. Drew v. The King, 6 Can. Cr. Cas. 424, 33 Can. S.C.R. 228, affirming Drew v. The King, 6 Can. Cr. Cas. 241.

Materiality.]-Under the Code, the giving of false evidence constitutes perjury, whether such evidence is material or not, if the false assertion were known to such witness to be false, and intended by the witness to mislead the court, jury, or person holding the proceeding.

Statutory declaration.]—A false statement, made in a statutory declaration administered under the "Canada Evidence Act," may be the subject of a charge akin to perjury under Code sec. 175, for the object of sec. 36 of the Evidence Act, was to provide a means by which certain statements not authorized to be made on oath could be verified.

At common law.]-It has always been an offence at common law for a competent witness upon oath in a judicial proceeding, before a court of competent jurisdiction, to give evidence material to the issue, which he believes to be false. The common law, however, stopped there and took no notice of false statements, whether made upon oath or not, made under other conditions. The perjury had also to be in a judicial proceeding before a competent tribunal. R. v. Townsend, 10 Cox C.C. 356; R. v. Row (1864), 14 U.C.C.P. 307; R. v. Baker, [1895] 1 Q.B. 797. And it was therefore formerly the law that false evidence given upon an examination in the absence of the authority competent to hold such examination was not perjury. R. v. Lloyd, L.R. 19 Q.B.D. 213; R. v. Gibson, 7 Revue Legale (Que.) 573.

Known to be false.]-The false oath must be taken deliberately and intentionally, for if done from inadvertence or mistake it cannot amount

to voluntary and corrupt perjury. 1 Hawk., ch. 69, sec. 2. Where perjury is assigned on an affidavit, the part on which the perjury is assigned may be explained by reference to the remainder of the affidavit. 1 Sid. 419.

The evidence of the false statement must be clear and precise and not ambiguous. R. v. Bird, 17 Cox C.C. 387.

Intended to mislead.]—Although an "intent to mislead" is an essential ingredient of the offence, a charge which does not specifically allege such intent may be sufficient if it gives to the accused notice that he is charged with having "falsely, wilfully and corruptly" sworn to, or solemnly declared a statement to the effect and in the words set forth. R. v. Skelton (1898), 4 Can. Cr. Cas. 467; 2 N.W.T. Rep. 210, 215; R. v. Dewar, 2 N.W.T. Rep. 194; Cr. Code, sec. 852 (3).

Contradictory evidence.]—If 'the evidence adduced in proof of the crime of perjury consist of two opposing statements of the prisoner and nothing more, he cannot be convicted; for if only one was delivered under oath, it must be presumed, from the solemnity of the sanction, that that declaration was the truth, and the other an error or a falsehood, though the latter being inconsistent with what he has sworn may form important evidence, with other circumstances, against him. 1 Greenleaf on Evidence, 259. And if both the contradictory statements were delivered under oath, there is still nothing to shew which of them is false, where no other evidence of the falsity is given.

If a person swears one thing at one time, and another at another, he cannot be convicted where it is not possible to tell which is the true and which is the false. R. v. Jackson, 1 Lewin C.C. 270. Nor is it a necessary consequence that a person has committed perjury when he has sworn on both occasions to conflicting statements, for there are cases in which a person might very honestly and conscientiously swear to a particular fact from the best of his recollection and belief, and from other circumstances at a subsequent time be convinced that he was wrong, and swear to the reverse, without meaning to swear falsely either time. Ibid., per Holroyd, J.

Joint affidavit.]—A joint affidavit made by the defendant and one D. stated: "Each for himself maketh oath and saith that he this deponent is not aware of any adverse claim to or occupation of said lot." The defendant having been convicted of perjury on this latter allegation, it was held that there was neither ambiguity or doubt in what each defendant said, but that each in substance stated that he was not aware of any adverse claim to or occupation of said lot. R. v. Atkinson (1866), 17 U.C.C.P. 295. And it has been held that a statutory declaration made jointly by several persons that they know certain alleged facts is to be construed as a statement by each of them severally that he knows the matters alleged. R. v. Skelton (1898), 4 Can. Cr. Cas. 467 (N.W.T.).

Witness

171. Every person is a witness within the meaning of the last preceding section who actually gives his evidence, whether defined. he was competent to be a witness or not, and whether his evidence was admissible or not.

Judicial

2. Every proceeding is judicial within the meaning of the last preceding section which is held in or under the authority proceeding. of any court of justice, or before a grand jury, or before either the Senate or House of Commons of Canada, or any committee

l'erjury. False statement under oath within Canada.

False oath, etc., in verification of statement.

Subscribing affirmation as affidavit.

of either the Senate or House of Commons, or before any legis lative council, legislative assembly or house of assembly or any committee thereof, empowered by law to administer an oath, or before any justice, or any arbitrator or umpire, or any person or body of persons authorized by law or by any statute in force for the time being to make an inquiry and take evidence therein upon oath, or before any legal tribunal by which any legal right or liability can be established, or before any person acting as a court, justice or tribunal, having power to hold such judicial proceeding, whether duly constituted or not, and whether the proceeding was duly instituted or not before such court or person so as to authorize it or him to hold the proceeding, and although such proceeding was held in a wrong place or was otherwise invalid. 55-56 V., c. 29, s. 145.

172. Every one is guilty of perjury who,

(a) having taken or made any oath, affirmation, solemn
declaration or affidavit where, by any Act or law in force
in Canada, or in any province of Canada, it is required
or permitted that facts, matters or things be verified, or
otherwise assured or ascertained by or upon the oath,
affirmation, declaration or affidavit of any person, wil-
fully and corruptly, upon such oath, affirmation, declara-
tion or affidavit, deposes, swears to or makes any false
statement as to any such fact, matter or thing; or,
(b) knowingly, wilfully and corruptly, upon oath, affirma-
tion or solemn declaration, affirms, declares or deposes
to the truth of any statement for so verifying, assuring
or ascertaining any such fact, matter or thing, or purport-
ing so to do, or knowingly, wilfully and corruptly takes,
makes, signs or subscribes any such affirmation, declara-
tion or affidavit as to any such fact, matter or thing, if
such statement, affidavit, affirmation or declaration is
untrue in whole or in part. 55-56 V., c. 29, s. 148.

Oath to voter.]-A person applying for a ballot at a Dominion election in the name of another person entitled to vote may be convicted of perjury in taking the oath of identity with that person, although the Elections Act authorizes the administration of the oath of qualification to an "elector" only, and that term must be held to include, for the purposes of administering such oath and prosecuting the personator, the person representing himself at the polls as an elector. R. v. Chamberlain, 10 Man. R. 261.

Declaration under provincial law.]-Perjury is not proved in respect of a solemn declaration that there was "no lawful hindrance" to depon

ent's proposed marriage by shewing that the deponent knew the girl to be under twenty-one and that her parent's consent had not been obtained as required by the provincial law, if the marriage was valid notwithstanding the absence of such consent. The King v. Moraes (1907), 12 Can. Cr. Cas. 145.

173. Every person who wilfully and corruptly makes any Making false false affidavit, affirmation or solemn declaration, out of the pro- of the proaffidavit out vince in which it is to be used but within Canada, before any vince but person authorized to take the same, for the purpose of being within used in any province of Canada, is guilty of perjury in like manner as if such false affidavit, affirmation or declaration were made before a competent authority in the province in which it is used or intended to be used. 55-56 V., c. 29, s. 149.

Canada.

174. Every one is guilty of an indictable offence and liable Penalty for to fourteen years' imprisonment who commits perjury or sub- perjury or ornation of perjury.

subornation.

2. If the crime is committed in order to procure the convic- Increased in tion of a person for any crime punishable by death, or certain imprisonment for seven years or more, the punishment may be imprisonment for life. 55-56 V., c. 29, s. 146.

Perjury defined.]-See sec. 170.

Form of indictment.]—Code form No. 64 contains two examples of indictments for perjury, which by sec. 1152 are valid in the cases for which they respectively provide, and may be varied to suit the case.

An indictment or charge for perjury in which it is alleged that the accused committed perjury by falsely, wilfully and with intent to mislead the magistrate, swearing to a certain statement, involves a charge that the accused knew such statement to be false and will not be quashed for failure to more specifically charge such knowledge. R. v. Doyle (1906), 12 Can. Cr. Cas. 69.

Where the statutory form of indictment is not followed but the indictment contains all the averments which the statute requires, the addition of other unnecessary averments does not invalidate it. R. v. Coote (1903), 8 Can. Cr. Cas. 199, 10 B.C.R. 285.

In R. v. Cohon (1903), 6 Can. Cr. Cas. 386, the Supreme Court of Nova Scotia held that a charge of perjury is defective as not disclosing a crime, if it does not allege that the statement was sworn to knowing the same to be false, or if such is not the necessary inference from what is alleged, apart from the declaration in the charge that the accused "thereby committed wilful and corrupt perjury."

But the decision of the Cohon Case is in conflict with the Quebec decisions under the statute preceding the Code. It has been held in the latter province that an indictment following the statutory form is sufficient if it charges that the accused "committed perjury" by swearing that (specifying the false oath), without including a specific statement that it was so done knowing the same to be false. R. v. Bain (1877), Ramsay's Cases (Que.) 192; R. v. Bownes, Ramsay's Cases (Que.) 192. See sec. 862 as to statements now unnecessary in counts for perjury.

cases.

Where a prosecutor has been bound by recognizance to prosecute and give evidence against a person charged with perjury in the evidence given by him on the trial of a certain suit, and the grand jury has found an indictment against the defendant, the court will not quash the indictment because there is a variance in the specific charge of perjury contained in the information and that contained in the indictment, provided the indictment sets forth the substantial charge contained in the information. R. v. Broad (1864), 14 U.C.C.P. 168; and see secs. 852-855.

A count charging the accused with having committed perjury at an inquest before a coroner is not invalid by reason of the fact that the tribunal was a coroner and a jury. R. v. Thompson (1896), 4 Can. Cr. Cas. 265, 2 Terr. L.R. 383.

Evidence.]-D. being charged with perjury, in the assignments of perjury and in the negative averments certain facts sworn to by D. in answering to faits et articles on the contestation of a saisie ârret or attachment were distinctly negatived, in the terms in which they were made. It was held that under the general terms of the negative averments it was competent for the prosecution to prove special facts to establish the falsity of the answers given by D. in his answers on faits et articles, and the conviction could not be set aside because of the admission of such proof. Downie v. R. (1888), 15 Can. S.C.R. 358.

In a prosecution for perjury where it appears that the false oath was taken before a justice receiving the complaint of an offence committed within his jurisdiction, and acting in the matter within his jurisdiction, it is unnecessary to offer further evidence that he had authority to administer an oath. R. v. Callaghan (1860), 19 U.C.Q.B. 364.

A charge of perjury cannot be sustained against a boy under fourteen without proof of guilty knowledge of wrong doing. Code sec. 18 has not changed the common law which presumed against guilty knowledge where the accused was under the age of fourteen. The King v. Carvery, 11 Can. Cr. Cas. 331.

It is not essential to the offence of perjury that the notary or other official should have uttered the words of obligation in administering the oath; such words used by the deponent and accompanied by a request that the affidavit already signed by the deponent should be certified as sworn, will be sufficient. Re Collins (No. 2), 10 Can. Cr. Cas. 73.

A plea of aufrefois acquit to a charge of perjury in taking the oath of identity at a polling booth is not supported by a record of acquittal on a charge of personating an elector at the same time and place, although the oath of identity and the alleged personation were in regard to the same elector. A verdict for personation could not have been received under an indictment for perjury in taking the oath of identity, although the facts constituting personation must necessarily be shewn in order to prove the perjury. The King v. Quinn, 10 Can. Cr. Cas. 412.

Proof of judicial proceedings.]—Evidence of any proceeding or record whatsoever of, in, or before any British or Canadian court or before any justice of the peace or any coroner in any province of Canada, or in any court of record in the United States may be made by an exemplification or certified copy thereof, purporting to be under the seal of such court, or under the hand or seal of such justice or coroner, as the case may be, without any proof of the authenticity of such seal or of the signature of such justice or coroner, or other proof whatever; and if any such court, justice or coroner, has no seal, or so certifies, then by a copy purporting to be certified under the signature of a judge or presiding magistrate of such court or of such justice or coroner, without any proof of the authenticity of such signature or other proof whatsoever. Can. Evid. Act, sec.

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