Perjury (s. 131) Charges in Canada: Offences, Defences, Punishments

Perjury in Canada

131 (1) Subject to subsection (3), 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.

What is Perjury?

In Canada, perjury is the offence of willfully telling an untruth in a court after having taken an oath or affirmation.

Perjury is a serious offence in Canada, it may only be tried as an indictable offence. It is criminalized under section 131 of the Canadian Criminal Code.

There are multiple elements within the act of perjury. One commits perjury when they:

• give evidence
• under oath or solemn affirmation
• before a person who is authorized by law to permit it to be made before him
• false evidence (specified in the indictment); and
• they knew it was false when he or she gave the evidence; and
• they gave the evidence with the intent to mislead.

All of these requisites must be met for a finding of perjury to be made. For example, perjury does not include a suspect who gives a false sworn statement to a police investigator because no law specifically provides for the police to take the suspect’s oath during an investigation (see: R v Boisjoly, 1972 SCR 42, CanLII 153).

The maximum penalty in Canada for committing perjury is 14 years imprisonment as per section 132 of the Criminal Code. However, there is no minimum penalty.

Examples

Some examples of perjury might include:

• Making false statements to a court as a witness testifying on the stand.
• Making false statements to a court via submission of a written affidavit.
• Making false statements during a deposition.

Defences

Every case is different. Defences that may be available in one case may not be available in another. The strength of any defence rests on the evidence against you and the precise details of the allegations.

Generally, defences to perjury include showing a lack of mens rea or actus reus (meaning the mental and physical elements of the offence are not made out).

This might include demonstrating:

• that you truly believed your statements were accurate;
• that you did not have a proper understanding of the question(s) asked;
• that you made a statement that was not protected under an oath or solemnly affirmed (i.e., it was not made in connection to a judicial proceeding which requires by law, an oath or affirmation to be made);
• that you had no intent to mislead the court; etc.

Note that Charter defences are more difficult to come by in cases of perjury. Investigations into perjury aren’t typical of violating one’s Charter rights. Moreover, an individual, while generally protected by section 13 of the Canadian Charter of Rights and Freedoms against incriminating oneself in any other proceeding, does not garner that same protection as section 13 of the Charter makes a blatant exception for instances of perjury. Nevertheless, Charter defences are available where the facts of one’s case demonstrate an infringement against one or more of your Charter-protected rights.

Punishments

Perjury is usually a very fact-specific offence, which means that the penalty can vary significantly. Regardless, perjury is a serious crime as it is a straight indictable offence and can carry with it severe penalties. If convicted of perjury, even if it is your first offence, you are likely to face jail time and receive a criminal record. The courts put considerable weight on principles of deterrence and denunciation in passing down sentences for perjury.

There is no minimum sentence associated with perjury, however, the maximum sentence for perjury is 14 years imprisonment.

Overview of the Offence

Perjury is covered under s. 131(1) of the Criminal Code of Canada:

Essentially, this section encapsulates the elements discussed above here.

Furthermore, section 131(1.1) ensures to include perjury committed via unconventional modes of reporting to a court or judicial process such as video conferencing:

This applies to statements made in both judicial and extrajudicial proceedings as noted in section 131(2) of the Criminal Code:

Additionally, as noted in sections 131(1) and (1.1), a finding of perjury is subject to section 131(3) which states that:

For example, an affidavit for which the legislator has not permitted, authorized or required, is in short an affidavit which has no legal meaning or scope and would be exempt from the perjury offence (see: R v Boisjoly, 1972 SCR 42, CanLII 153).

For the Crown to secure a conviction for perjury, the actus reus and the mens rea of perjury must be proven beyond a reasonable doubt.

In R v Calder, 1960 [SCR] 892, Justice Cartwright summarized the elements of this offence as requiring proof beyond a reasonable doubt that:

• the evidence specified in the indictment (the indictment is the formal charge or document laying out the charge) was false in fact (actus reus);
• that the accused when he or she gave it knew that it was false (mens rea); and
• that he or she gave it with intent to mislead the court (mens rea).

The Guilty Act (Actus Reus)

The act that must occur for there to be a viable claim of perjury is the existence of a false statement made under oath or solemn affirmation. False statements are evasive and deliberately misleading in nature. The Crown must prove that the statement produced was false by submitting evidence which contradicts the statement(s) in question. For example, in R v Pammett, 2017 ONCA 658 (CanLII), the defendant, while testifying in a trial involving his daughter’s boyfriend, was asked what nicknames that boyfriend had. He omitted “Carlito”, the nickname which linked the boyfriend to the offence at issue. Later in his testimony, he even used that nickname to identify the boyfriend, but quickly retracted it. Although he did not specifically deny that he knew the nickname to apply to the boyfriend, the evidence he gave amounted to the same thing and was therefore perjury.

The court, as per R v McCallum, 1970 CanLII 594 (SKQB), has established that if it is found that the accused gave false evidence, with knowledge of the facts, it was with an intention to deceive; people only lie to mislead. Additionally, where an accused knows about certain evidence and denies any knowledge, an intent to mislead is established (see: Farris v The Queen, 1965 CanII 201 (ONCA))

Furthermore, as per R v Prashad, 2004 CanLII 34382 (ONCA) the Crown does not need to prove that the accused lied about a matter which is actually fact, only that he gave evidence that he knew to be dishonest with an intent to mislead the court.

The Guilty Mind (Mens Rea) 

The mental element for establishing a finding of perjury is included in the wording of the statute. The words “with intent to mislead” and “knowing that the statement is false” encapsulates the requisite mental element for a finding of guilt. Perjury is a specific intent crime which means that a prosecutor must prove, beyond a reasonable doubt, that the defendant intended to mislead the court by giving a false statement he or she knew was false. The crux of this offence is the intent to mislead the court. One who wishes to mislead the court works to put the administration of justice in disrepute. Criminalizing perjury is meant to offset the collateral damage which can arise from such acts or intentions.

Justice Judson in R v Besner, 1975 CarswellQue 14, 33 CRNS 122 pointed out that where the most that can be found against the accused is that evidence he gave was in error then this affords no basis for the inference of the requisite knowledge and intent.

The Crown must prove not only that an accused lied, but that he or she did so for the purpose of misleading the court. The accused need not actually mislead the court, only intend to do so. The intent to mislead can be inferred from the evidence (see: R v Evans, 1995 CanLII 16088 (MBCA)). 

Mere carelessness or even recklessness in giving testimony on collateral matters, without any intent to mislead and give false evidence, does not amount to the offence of perjury (see: R v Besner, 1975 CarswellQue 14, 33 CRNS 122).

Recanting earlier testimony will not negate an intent to mislead. In R v Zazulak, 1993 ABCA 254 (CanLII), a police officer originally lied to protect the police force. Weeks later, in further testimony, he admitted to lying. A conviction was entered on appeal.

Perjury Defences

How to Beat a Perjury Charge

The availability and strength of any defence depends entirely on the specific facts of your case. Defences for this kind of offence will reside mainly in refuting the existence of the requisite mens rea and actus reus elements.

As aforementioned, this might include:

• that you truly believed your statements were accurate;
• that you did not have a proper understanding of the question(s) asked;
• that you made a statement that was not protected under an oath or solemnly affirmed (i.e., it was not made in connection to a judicial proceeding which requires by law, an oath or affirmation to be made);
• that you had no intent to mislead the court; etc.

Evidence-Based Defence

These kinds of defences are notably evidence-based. For example, to demonstrate that you believed your statements, you’d likely have to confer evidence which would prove that at the point your statement was made, you were under the impression that what you were stating was true.

Your Statement Was Not Made Under Oath

To prove that your statement was not made under oath or solemnly affirmed, you’d likely need to consult a lawyer who will analyze the environment and conditions under which your statement was made. This again is very fact dependent. A lawyer can decipher whether you were sworn under oath or solemnly affirmed as well as inquire into whether or not the nature of the proceeding for which you provided the statement legally bound you against committing perjury (i.e., was the proceeding covered by section 131 of the Criminal Code?). This can be a complicated analysis given that there is no statutory requirement as to the method of swearing in a witness, nor is there a specific set of words required for an oath to be properly administered.

You Did Not Intend to Mislead the Court

You may also demonstrate that while you might have lied, you did not intend to mislead the court. This defence only exists in exceptional cases because to deduce evidence that you lied for reasons alternative to misleading the court will require very firm proof suggesting otherwise. This was affirmed by the Supreme Court of Canada in the case R v Hébert, 1989 CanLII 114 (SCC).

Applicable Charter Defences

Additionally, the Canadian Charter sets out your rights and freedoms before and after your arrest. If the police or other actors in the justice system fail to abide by these rights, either deliberately or inadvertently, it could aid in your defence. If any of your Charter rights have been violated before or after your arrest, you may be able to have some or all of the evidence that the Crown is relying on to secure a conviction excluded under s.24(2) of the Charter.

Perjury Punishment

Perjury is a serious offence in Canada and is considered a straight indictable offence.

In other words, the Crown cannot opt to proceed with the charges summarily. The maximum penalty for a conviction of perjury is 14 years imprisonment. There is no minimum sentence for a finding of perjury; nevertheless, precedents set by the court demonstrate that a term of imprisonment is likely even for a first-time offender.

As per sections 730(1) and 742.1(c) of the Criminal Code, a judge cannot grant a discharge or a conditional discharge for the offence of perjury. This is because these sections specify that offences bearing penalties of a maximum of 14 years imprisonment are ineligible for this type of sentencing consideration. As per section 487.04 of the Criminal Code, in cases of perjury, the court may — on application — order the offender to provide bodily samples for the national DNA databank. Reasons for such an order must be provided. Finally, as per section 737 of the Criminal Code, a Victim Surcharge Fine may also be imposed.

As mentioned previously, the sentences for this type of offence can range greatly.

• On the lower end, sentences can range from 30 days imprisonment to approx. 3 months.
• On the higher end, courts have imposed terms of imprisonment ranging from 6 – 9 years. These are typically more sophisticated operations and perjury is usually just one charge among others.

When configuring a sentence for perjury, the court is likely to consider factors such as:

• the relative seriousness of the offence for which the perjured information was provided for;
• the impact that the perjured information might have had or did have on the outcome of the trial or proceeding;
• whether the testimony or information was pivotal evidence in the trial or proceeding;
• whether the perjured evidence implicated an innocent person in a crime;
• whether the perjury was pre-meditated, etc.

Frequently Asked Questions

How does the court prove perjury? 

In order to prove that a person has committed perjury, the Crown must demonstrate to the court – beyond a reasonable doubt – that:

• the evidence specified in the indictment (the indictment is the formal charge or document laying out the charge) was false in fact;
• that the accused when he or she gave it knew that it was false; and
• that he or she gave it with intent to mislead the court (see: R v Calder, 1960 [SCR] 892).

What is the definition of perjury?

In its simplest terms, perjury is the act of wilfully being dishonest about facts or misrepresenting facts while sworn under oath or solemn affirmation with the intent to mislead the proceeding at hand.

Is perjury a summary or indictable offence in Canada?

Perjury in Canada is a straight indictable offence carrying with it no minimum penalty but a maximum penalty of 14 years imprisonment.

Published Decisions

R v King, 2019 ONSC 2166 (CanLII)

The accused was a jailhouse informant in a first-degree murder case who misrepresented – during a preliminary hearing – his true history as an informant, claiming he had never been a jailhouse informant in the past and that he had never testified in court before. Mr. King was sentenced to 2 years imprisonment for his acts of perjury.

You can read the full case here.

R v Millington, 2015 BCSC 1380 (CanLII)

Millington was one of the four police officers in the highly reported and publicized Robert Dziekanski case where Millington and the three other police officers tasered Mr. Dziekanski to death at the Vancouver International Airport upon his arrival from Poland. Mr. Millington was found to have committed perjury when testifying about the series of events leading up to Mr. Dziekanski’s death. He was sentenced to 30 months imprisonment.

You can read the full case here.

R v Webster, 2014 CanLII 66459 (NLSC)

Mr. Webster was a Fish and Wildlife Officer for the Government of Newfoundland and Labrador’s Department of Natural Resources. Mr. Webster and another officer wrote Mr. Patrick Fleming a ticket for operating his all-terrain vehicle outside an approved area, contrary to section 5 of the Motorized Snow Vehicles and All-Terrain Vehicles Regulations. At Mr. Fleming’s trial, Mr. Webster lied about the facts of the case. The sentencing judge greatly considered all of the aggravating and mitigating factors relevant to the case, including Mr. Webster’s personal life and circumstances, and passed down a sentence of 6 months imprisonment.

You can read the full case here.