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What is Perjury?

Section 13 of the Canadian Charter of Rights and Freedoms stipulates that “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”.

In short, when a witness (including the accused) testifies under oath in Court, the truth seeking function is paramount and thus even where the evidence may incriminate the witness, he or she is protected by operation of Section 13 of the Canadian Charter of Rights and freedoms and section 5 of the Canada Evidence Act (CEA).

5. (1) No witness shall be excused from answering any question upon the ground that the answer to such question may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person.

 5. (2) Where with respect to any question a witness objects to answer upon the ground that his answer may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person, and if but for this Act, or the Act of any provincial legislature, the witness would therefore have been excused from answering such question, then although the witness is by reason of this Act, or by reason of such provincial Act, compelled to answer, the answer so given shall not be used or receivable in evidence against him in any criminal trial, or other criminal proceeding against him thereafter taking place, other than a prosecution for perjury in the giving of such evidence.


Truth seeking in Court to be Protected

 This is a powerful protection designed to ensure that evidence under oath is delivered truthfully. Also, section 13 of the Charter and section 5 of the CEA exist to protect the innocent. The combined operation of these laws work to ensure those actually responsible for the commission of an offence are encouraged to testify about their wrongdoing without fear that the evidence heard in court can be used against them.  The protection, however, occurs only “in court”.

In some criminal cases in Calgary and throughout this Country purely innocent people are prosecuted.  This a frightening situation for any criminal defence lawyer in Calgary and elsewhere; for though there are many accused who are not guilty of a charge and still vulnerable to wrongful conviction, pure innocence dramatically increases the stakes.  In some cases the accused has a witness who can exonerate him or her because they were actually the party who committed the crime. In these circumstances, defence counsel must ensure the witness receives independent legal advice.  Also, in these circumstances, the witness should not speak to anybody about his or her involvement in the crime except to his or her lawyer or under oath, in court.

This is so because if the witness confesses outside of solicitor-client privilege or a proceeding where section 13 of the Charter and section 5 of the CDSA apply, the confession could be used in a criminal prosecution.  Fortunately, the Charter and the CEA provide a strong legal protection.  Unfortunately, though this may provide an accused who awaits trial some solace that he or she has a defence, it does little to mitigate the accused’s legal costs, stress and/or restricted liberty (on bail) while awaiting trial.  The issue is exacerbated if the accused is in custody.

Perjury is not the same as being disbelieved

 It is important to recognize, however, that the ONLY way evidence under oath can be used against the declarant is if it can be proven beyond a reasonable doubt that the witness gave false evidence while under oath in Court.  The penalty for perjury is high -- ranging up to 3 years or more in a Federal Penitentiary (see R. v. Sager, [1987] SCCA 36.   Accordingly, the consequences for perjury are significant.  The significant consequences are to deter persons from giving false evidence.

Notice, however, there is a difference between “perjury” and a trier fact merely dis-believing a witness or making a finding of falsehood. That a trial judge, for example, declares that he or she does not believe a witness does not mean that the witness perjured or that the disbelief can be proven beyond a reasonable doubt.  “Fact finding” in court is not the same as real evidence (circumstantial or direct) capable of proving a case to the criminal standard of proof. Accordingly, As the Supreme Court of Canada stated in R. v. Nedelecu, [2012] 3 SCR 311: “The protection afforded by s. 13 is not lost when a witness gives what is perceived to be dishonest testimony”.  In other words, the perception of dishonest testimony is not the same as actual dishonest testimony.

Perjury is a serious crime, requiring a serious defence lawyer

Perceptions on the part of judge’s and juries play a significant role in criminal justice. That persons have a “perception” does not mean their perception is true.  Sadly, this means that there are very likely many cases of conviction based on erroneous perceptions. 

Charged with perjury? Perhaps the wisest decision you will make is hiring the right criminal defence lawyer to help with your case. Though there are many proven criminal defence lawyers in Calgary and throughout Alberta, there are pretenders. Deciding who is skilled, experienced and proven can be a difficult task.

In making your decision you should not be convinced based on a website alone.  You should not be persuaded based on Google Reviews alone (for many of them are clearly dubious).

A “five star” lawyer online is not necessarily a “5 star” lawyer when it counts.  You should not decide against a lawyer because of a bad review; for remember that sometimes even the best defences fail and people are unreasonably aggrieved. 

Make your decision by interviewing a number of criminal defence lawyers.  Use your common sense to decide. Remember, there are some very good lawyers who do not advertise or have websites.

David Chow asks that you give him a chance to earn your business. Call 403.452.8018 for a free telephone consultation. David is a proven Calgary criminal defence lawyer who has run hundreds of trials and successfully defended thousands of clients. Peruse this website to learn about the criminal law or read commentary about issues in criminal law.

Please note: for various reasons, including preserving the sanctity of solicitor-client privilege, David Chow’s office is open by appointment ONLY.

 Call: 403.452.8018

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