MISLEADING JUSTICE.

145. Perjury.-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. Evidence in this section includes evidence given on the voir dire and evidence given before a grand jury.

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

3. Every proceeding is judicial within the meaning of this section which is held in or under the authority of any court of justice, or before a grand jury, or before either the Senate or House of Commons of Canada, or any committee of either the Senate or House of Commons, or before any Legislative Council, Legislative Assembly or House of Assembly or any committee thereof, empowered by law to administer an oath, or before any justice of the peace, or any arbitrator or umpire, or any person or body of persons authorised 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 whicn 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 authorise it or him to hold the proceeding, and although such proceeding was held in a wrong place or was otherwise invalid

4. Subornation of perjury is counselling or procuring a person to commit any perjury which is actually committed.

146. Every one is guilty of an indictable offence and liable to fourteen years' imprisonment who commits perjury or subornation of perjury.

2. If the crime is committed in order to procure the conviction of a person for any crime punishable by death. or imprisonment for seven years or more, the punishment may be imprisonment for life R.S.C., c. 154, s. 1.

See article 221, post.

The Royal Commissioners say that, in framing the section of their draft code relating to perjury, they proceeded on the principle that the guilt and danger of perjury consist in attempting by falsehood to mislead a tribunal de facto exercising judicial functions and that it seemed to them "not desirable that a "person who has done this should escape from punishment, if he can shew some "defect in the constitution of the tribunal which he sought to mislead, or some "error in the proceedings themselves."

The words " and whether such evidence is material or not," forming part of the first paragraph of the above article do not appear in the corresponding section of the English Draft Code; and our law is thus made in positive terms, altogether different, on this point, from the law of England, under which the false swearing, to constitute perjury, must not only be in a judicial proceeding before a competent tribunal, but the evidence, or that part of it which is charged as false, must have been material to the matter which at the time of the swearing was in issue in such judicial proceeding. (1)

On this point a good deal of discussion took place in the Committee of the House of Commons at Ottawa. See Extra Appendix post).

The effect of the above article, 145, seems to be to make it perjury to swear or affirm, in any judicial proceeding, (valid or invalid), to any verbal or written statement of a matter of fact, opinion, belief or knowledge, whether material, or admissable, or not, and which the deponent or affirmant knows to be false, and is intended by him to mislead justice.

The false statement to constitute perjury under this article must be sworn or affirmed in some judicial proceeding. False oaths, aflirmations and solemn declarations, taken or made in other matters than judicial proceedings, are dealt with under article 147. See also the special provisions of article 148, (post).

With regard to false evidence in judicial proceedings the following are some instances of those who have been held guilty or not guilty of perjury in that respect :—

ILLUSTRATIONS.

It has been held that one commits perjury,

(a.) who makes, in any, civil or criminal case, a false affidavit upon oath or affirmation in support of a plea or in support of a motion for new trial; or in aid of a petition for a writ of habeas corpus or in support of an information or complaint charging a criminal offence against another to procure his arrest; (2)

(b.) who being offered as bail or other surety swears or affirms falsely so as to qualify himself; (3)

(c.) who, as a juror, swears falsely as to his competency; (4)

A proceeding before a local marine board sitting under the Merchants Shipping Act 1854 and having power to suspend or cancel the certificates of the masters and mates of ships has been held to be a judicial proceeding. (5)

The administering of an oath by a returning officer to a voter at a civic election has been held not to be a judicial proceeding. (6)

The offence of perjury cannot be founded on a mere oath of office, Hawkins says. "The notion of perjury is confined to such public oaths only as affirm or deny some matter of fact contrary to the knowledge of the party, and "therefore it doth not extend to any promissory oaths whatsoever. From which

it clearly follows that no officer public or private who neglects to execute his office, in pursuance of his oaths, or acts contrary to the purport of it, is "indictable for perjury in respect of such oath; yet it is certain that his offence "is highly aggravated by being contrary to his oath, and therefore that he is "liable to the severer fine on that account." (7)

Oaths and affirmations.— “ An oath has been "solemn asseveration, uttered in an appeal to the

defined to be a person's

preme Being under the

(1) R. v. Townsend, 10 Cox, 356; Arch. Cr. Pl. and Ev., 21 Ed. 934.

(2) S. v. Roberts, 11 Humph. 539; S. v. Chandler, 42 Vt. 446; White v. S.

1 Sm. & M. 149; Pennaman v. S., 58 Ga. 336.

(3) C. v. Hatfield, 107 Mass. 227.

(4) C. v. Stockley, 10 Leigh 678.

(5) R. v. Tomlinson, L. R. 1 C. C. R. 49.

(6) Thomas v. Platt, 1 U. C., Q. B. 217; Burbridge Dig. Cr. L. 134, 135.

(7) 1 Hawk. P. C. Curw. Ed. p. 431.

"sanction of his religion, that a thing stated or to be stated by him is true, "made to a civil officer authorised to receive it; and an affirmation is a modern

statutory device whereby those whose consciences are offended by such an appeal to God place themselves without it in the like civil position with those who have taken the oath. It is similar to the oath but omits the appeal to the Deity, and substitutes the word · affirm' for the word 'swear.'" (1)

Under the Canada Evidence Act 1893 secs. 23 and 24, (2) a witness who objects, on grounds of conscientious scruples, to take an oath may, instead of being sworn, solemnly affirm to tell the truth; and his evidence is to have the same effect and render him liable to the same punishment for perjury as if he

were sworn.

Proof. The proof necessary to convict a person accused of having committed perjury must necessarily be something more than the evidence of a single, witness; or it would be simply one oath against another, and therefore where there is only one witness to swear to the falsity of the statement charged as perjury the evidence of that one witness must be confirmed by proof of circumstances strongly corroborating it, as for instance, by the production and proof of a letter written by the accused contradicting his sworn testimony in question. Article 684 provides that the evidence of one witness shall not be sufficient to convict "unless such witness is corroborated in some material particular by "evidence implicating the accused." (3)

The material particular in which corroboration is necessary is the falsity of the statement alleged as the perjury. The other facts such as the judicial proceeding in which the statement in question was sworn to or affirmed, the administering and taking of the oath or affirmation, and the making of the statement under oath or affirmation may be proved in the same manner and by the same evidence as in any ordinary case.

If in two causes, or in one at different examinations, or at one examination, a witness swears to two opposite and irreconcilable things he commits perjury by that one, of the two statements, which is false but not by that one which is true. And though what he said when he told the truth may be shewn in evidence against him on an indictment for the false statement, still there must be testimony over and above his own contradictory statements as to which of them is false. (4)

Perjury is committed only where there is the intent to testify falsely; and where professional advice is honestly acted upon it may negative this intent. Thus, where a lawyer reduces a man's oral statement to writing and the latter having confidence in the former swears to the writing under the impression that it does not differ in meaning from the oral words, there is no perjury, though in fact it does differ and is wrong. (5) And if through a mistake of one who draws up an affidavit or through a misreading of it to the deponent, or from any other cause the latter in good faith believes its contents to be what they are not, he does not become a perjurer by swearing to a falsehood therein, while understanding it to be something else which is true. (6)

If a man swears to a thing of which consciously he knows nothing. he commits perjury; for the declaration of a witness is that he knows the truth of what he says, that is, that it is to his knowledge that what he says is true,-and if he is really conscious that he does not know it he means to swear falsely. (7)

Section 4 of the R. S. C.. c. 154, is unrepealed, and is as follows:

(1) 2 Bish. New Cr. L. Com. s. 1018.

(2) See The Canada Evidence Act 1893, post.

(3) See Article 684 post.

(4) Reg. v. Hughes, 1 Car & K. 519.

(5) U. S. v. Stanley, 6 McLean, 409; U. S. v. Conner, 3 McLean, 583; 2 Bish. Cr. L. Com., s 1046.

(6) Jesse v. S., 20 Ga. 156, 169.

(7) Byrnes v. Byrnes. 102 N. Y. 4, 9.

"4. Any judge of any court of record, or any commissioner before whom any inquiry or trial is held, and which he is by law required or authorized to hold, may, if it appears to him that any person has been guilty of wilful and corrupt perjury in any evidence given, or in any affidavit, affirmation, declaration, deposition, examination, answer or other proceeding made or taken before him, direct such person to be prosecuted for such perjury, if there appears to such judge or commissioner a reasonable cause for such prosecution,-and may commit such person so directed to be prosecuted until the next term, sittings or session of any court having power to try for perjury, in the jurisdiction within which such perjury was committed, or permit such person to enter into a recognizance, with one or more sufficient sureties, conditioned for the appearance of such person at such next term. sittings or session, and that he will then surrender and take his trial and not depart the court without leave,—and may require any person, such judge or commissioner thinks fit, to enter into a recognizance conditioned to prosecute or give evidence against such person so directed to be prosecuted as aforesaid."

147. False oaths.-Every one is guilty of an indictable offence and liable to seven years' imprisonment who, being required or authorized by law to make any statement on oath, affirmation or solemn declaration, thereupon makes a statement which would amount to perjury if made in a judicial proceeding.

See remarks under articles 145 and 146.

148. Other false oaths.-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, wilfully and corruptly, upon such oath, affirmation, declaration or affidavit, deposes, swears to or makes any false statement as to any such fact, matter or thing; or

(6.) knowingly, wilfully and corruptly, upon oath, affirmation, 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 purporting so to do, or knowingly, wilfully and corruptly takes, makes, signs or subscribes any such affirmation, declaration or affidavit, as to any such fact, matter or thing,—such statement, affidavit, affirmation or declaration being untrue, in the whole or any part thereof. R.SC., c. 154, s. 2.

149. False oath made out of a province.-Every person who wilfully and corruptly makes any false affidavit, affirmation or solemn declaration, out of the province in which it is to be used but within Canada, before any person authorized to take the same, for the purpose of being used in any province of Canada, is guilty of perjury in like manner as if such false affidavit, affirmation or decla

ration were made before a competent authority in the province in which it is used or intended to be used. R.S.C., c. 154, s. 3.

150. False statements.-Every one is guilty of an indictable offence and liable to two years' imprisonment who, upon any occasion on which he is permitted by law to make any statement or declaration before any officer authorised by law to permit it to be made before him, or before any notary public to be certified by him as such notary, makes a statement which would amount to perjury if made on oath in a judicial proceeding.

In reference to this provision the English Commissioners say:

"It may be doubtful whether this is at present even a common law mis"demeanor; but we feel no doubt thal it ought to be made indictable.”

151. Fabricating evidence.-Every one is guilty of an indictable offence and liable to seven years' imprisonment who, with intent to mislead any court of justice or person holding any such judicial proceeding as aforesaid, fabricates evidence by any means other than perjury or subornation of perjury.

Fabricating evidence is an offence which is not so common as perjury, but which does occur and is sometimes detected. An instance occurred a few years ago on a trial for shooting at a man with intent to murder him, when "the defence was that though the accused did fire off a pistol, it was not loaded "with ball, and the only intent was to frighten. Evidence was given that a

pistol ball was found lodged in the trunk of a tree nearly in the line from where the accused fired to where the prosecutor stood. It was afterwards "discovered that the ball had been placed in the tree by those concerned in the

prosecution, in order to supply the missing link in the evidence. Such an "offence is as wicked and as dangerous an offence as perjury, but the punishment "as a common law offence, (if irrespective of conspiracy, it be an offence), is "only fine and imprisonment." Royal Commissioners' Report.

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66

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152. Conspiring to bring false accusations.—Every one is guilty of an indictable offence who conspires to prosecute any person for any alleged offence, knowing such person to be innocent thereof, and shall be liable to the following punishment:

(a.) To imprisonment for fourteen years if such person might, upon conviction for the alleged offence, be sentenced to death or imprisonment for life;

(b.) To imprisonment for ten years if such person might, upon conviction for the alleged offence, be sentenced to imprisonment for any term less than life.

153. Administering oaths without authority.-Every justice of the peace or other person who administers, or causes or allows to be administered, or receives or causes or allows to be received any oath or affirmation touching any matter or thing whereof such justice or other person has not jurisdiction or cognizance by some law in force at the time being, or authorized or required by any such law is guilty of an indictable offence and liable to a fine not exceeding fifty dollars, or to imprisonment for any term not exceeding three months.

2. Nothing herein contained shall be construed to extend to any