I. INTRODUCTION 1 II. THE FORM OF THE CHARGE 1 III. PROOF OF THE TECHNICAL ELEMENTS 5 V. THE BEST DEFENCE? 13 VI. SENTENCE 15

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1 PROCEDURE IN PERJURY TRIALS TABLE OF CONTENTS Page No. I. INTRODUCTION 1 II. THE FORM OF THE CHARGE 1 III. PROOF OF THE TECHNICAL ELEMENTS 5 A. "JUDICIAL PROCEEDING" 5 B. THE OATH 6 C. EVIDENCE IN SUPPORT OF THE CHARGE 7 D. ENTERING THE TRANSCRIPT IN WHOLE OR IN PART 10 IV. THE EVIDENCE 10 A. THE SUBSTANTIVE OFFENCE 10 B. INTENT TO MISLEAD 11 C. PROOF OF THE FALSITY 12 D. CORROBORATION 12 V. THE BEST DEFENCE? 13 VI. SENTENCE 15

2 SECTION 120 ET SEQ. - PERJURY 1. INTRODUCTION Pursuant to Bill C - 18, The Criminal Law Amendment Act, S.C., 1985, C19, Sections 120 to 123 of the Criminal Code have been replaced with the following provisions: 120 (1) Subject to subsection (3), everyone 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 disposition or orally, knowing that the statement is false.. (2) Subsection (1) applies whether or not a statement referred to therein is made in a judicial proceeding. (3) Subsection (1) does not apply to a statement referred to in that subsection that is made by a person who is not specially permitted, authorized or required by law to make that statement Everyone who commits perjury is ~ilty of an indictable offence. and is liable to imprisonment for a term not exceeding fourteen years, but if he commits perjury to procure the conviction of a person for an offence punishable by death, he is liable to a maximum term of imprisonment for life No person shall be convicted of an offence Under Section 121 on the evidence of only one witness unless the evidence of that witness is corroborated in a material particular, by evidence that implicates the accused (1) Subject to subsection (2), everyone who, not being specially permitted, authorized or required by law to make a statement under oath or solemn affirmation, makes such a statement, by affidavit, solemn declaration or deposition or orally before a person who is authorized by law to permit it to be made before him, knowing that the statement is false, is guilty of an offence punishable on summary conviction. (2) Subsection (1) does not apply to a statement referred to in that subsection that is made in the course of a criminal investigation. The underlining in Section 120 indicates the important changes and the elements of the offence. 11. THE FORM OF THE CHARGE As we are mainly concerned with perjury in the course of judicial proceedings, - 1 -

3 the following form should be acceptable to both the Crown and the Defence: A.B. of Saskatoon, Saskatchewan, stands charged: That s(he) did, on or about the day of A.D. 19 at the City of Saskatoon, in the Province of Saskatchewan, with intent to mislead, make a false statement, to the effect: That he did not shoot C.D. on the day of A.D. under oath, before Mr. Justice E.F. and a jury, in the Court of Queen's Bench for Saskatchewan, knowing that the said statement was false and did thereby commit perjury, contrary to Section 120 and 121 of the Criminal Code of Canada. Initially, relying on Section 514, the prosecution would be justified in not providing the details suggested. However, Section 516 of the Criminal Code is a very important means of assisting defence counsel and provides: "516 (1) The Court may, where it is satisfied that it is necessary for a fair trial, order the prosecutor to furnish particulars and, without restricting the generality. of the foregoing, may order the prosecutor to furnish particulars (a) of what is relied upon in support of a charge of perjury, the making of a false oath or of a false statement, fabricating evidence or counselling or procuring the commission of any of those offences (e) further describing any writing or words that are the subject of charge; (f) further describing the means by which an offence is alleged to have been committed; or (g) further describing a person, place or thing referred to in an indictment. " Therefore, the following specific particulars may be in order: 1. What were the words which are the subject of the charge; s. 5l6(1)(e) 2. Was the false statement a) under oath, b) by solemn affirmation, c) by affidavit, d) by solemn declaration, e) by disposition, f) orally or a combination thereof; Section 5l6(1)(f) - 2 -

4 3. Was it a judicial proceeding; Section 516(1)(g), 120(2) 4. Who was the "person"; 516(1)(g). Any other particulars that may be necessary could be requested under Section 516(1) (a). However, there is authority for drafting the charge without the details suggested above. essential el~ment Firstly, it has been held that althougq intent is an to the charge, those specific words are not necessary if it is alleged "falsely, wilfully and corruptly" (or words to that effect): R. v. Skelton, 4 C.C.C. 467 '(NWTSC); R. v. Doyle, 12 C.C.C. 69 (N.S. Co. Ct.). Furthermore, it is unnecessary to allege that the accused had knowledge of the falsity if the information alleges "wilfully and with intent to mislead": R. v. Yee Mock, [1913] 4 W.W.R (Alta'. S.C.); R. v. Bain, 13 Cdn. Apr. 174; R. v. Morrison, [1916] 26 C.C.C. 26 (N.S.C.A.). As mentioned above, the exact words are unnecessary so long as the information alleges words to the effect and then specifies a tribunal, time, place, and charges "unlawfully committed perjury": R. v. LeGros, 14 C.C.C. 161 (O.C.A.). However, where there is a SPecific averment, it must be proven: R. v. Bird 17 Cox C.C The new Section 120 resolves many issues of whether or not the perjury was in a judicial proceeding or otherwise. In this instance, with proper particulars, the existing law will be helpful. In so far as perjury alleged - 3 -

5 iq non-trial situations, reference should be made to Foster v. R. (1982), 69 C.C.C. (2d) 484' (Sask. C.A.), where it was clearly held that an Examination for Discovery is a judicial proceeding whether or not the Deputy Local Registrar is present. The Saskatchewan Court of Appeal, in R. v. Struk (1970), 4, C.C.C. 183, and Judge Maher, in R. v. McCallum (1970), 73 W.W.R.' 169, hold that it is unnecessary to allege that the accused knew the evidence to be false. In some circumstances, the alleged perjurer will not have given evidence in a Court, but would have done so in some other judicial proceeding or in an extra-judicial proceeding and in those circumstances, an alternative court may be in order. As to whether or not the proceeding is a judicial or extra-judicial proceeding, reference should be made to Re Schumiatcher (1961), 36 C.R. 174 to 176 (S.C.C. in Chambers). In this case, Mr. Justice Judson held that the Saskatchewan Securities Corrunission is in fact a judicial proceeding. On the other hand, in R. v. Orford, [1943] S.C.R. 103, the Supreme Court of Canada held that a statement under The Bulk Sales Act was not in a judicial proceeding and an offence under Section 122 was not an included offence. In R' v. Dupuis (1941), 76 C.C.C. 347 (Que. C.A.), the Court held that false statements in an Examination in aid of execution is an included proceeding. In R. v. Wilson (1977), 2 W.W.R. 520, the Alberta Court of Appeal held that an Affidavit, when filed, became part of'a judicial proceeding according to the Rules of Court. For a discussion of false statements in extra-judicial proceedings and a review of Sections 120 to 122, see R. v. Hewson (April 26, 1977), 28 W.C.B. 277 (Ont. C.A.)

6 111. PROOF OF THE TECHNICAL ELEMENTS A. "JUDICIAL PROCEEDING" Obtaining this particular may be one of the most important steps to defending a perjury charge! Under the previous law, the prosecution could easily establish this element with a certificate under Section 121(2). The Saskatchewan Court of Appeal approved this method in R. v. Monette, unreported, (January 8,1974), but, at the same time, indicated an alternative. Therefore, under the new law, it is not' so easy and the following cases will be of assistance. In R. v. Cherar; [1930] 2 W.W.R. 498 (Alta. C.A.), the Court held that the original information was essential to prove a judicial proceeding and that the evidence of the Provincial Court Judge and Stenographer cannot prove 'this element, without it. See also R. v. Menard (April 20/80), 4 W.C.B. 467 (Ont. C.C.). Simil~rly, where the alleged perjury takes place in a civil proceeding a Certified Copy of the Writ of Summons and Statement of Defence is sufficient evidence of a judicial proceeding: R. v. Gurditta, [1927] S.C.R. 80; R. v. Elliott (1970),9 C.C.C. (2d) 207 (Alta. C.A.). Where exemplified copies of the proceedings are used, notice is not required: R. v. Kobold, [1927] 3 W.W.R. 294 (Man. C.A.); but see Sections 23 & 28 of The Canada Evidence Act. Finally, although it is preferable to produce the original documents and depositions, parol evidence may be admissible: R. v. Rhodenizer (1948), 5 C.R. 461 (N.S.S.C.); - 5 -

7 R. v. Farrel, [1909] 15 C.C.C. 283 (O.C.-A.); R. v. Cherar, supra. You will also note in R. v. Monette, supra, the Court of Appeal discusses the latter method of proving a judicial proceeding. B. THE OATH Proving that the accused was sworn may be shown through the evidence of the Court Reporter or Police officer who was present at the trial: R. v. Pfahler, 39 C.R. 397 (O.C.A.); R. v. Fritsch (January 19,1977),18 W.C.B. 7 (Alta. S.C.); R. v. Elliott (1972),9 C.C.C. (2d) 207 (Alta. C.A.). Alternatively, the Clerk of the Court producing the original Record declaring that the accused was sworn is sufficient: R. v. Landry, 40 C.C.C. 16 (Que. Q.B.); R. v. Cummiskey, 54 C.C.C. 306 (P.E.I.S.C.). The following cases support the proposition that the oath is sufficient so long as the accused does not object to it and it binds the accused, despite the fact that it does not satisfy the faith of the witness: R. v. Curry, [1913] 48 S.C.R. 532; R. v. Kline, [1937] 2 D.L.R. 269 (Alta. S.C.); R. v. Lai Ping, [1904] 8 C.C.C. 467 (a.c.c.a.); R. v. Aa Wooey, 8 C.C.C. 25 (B.C.S.C.); R. v. Pah Mah Gay, [1860] 20 U.C. Q.B. 195; R. v. Shajoo Ram, [1915] 8 W.W.R. 613 (S.C.C.); See also R. v. Koleman, 2 C.C.C. 523, which holds that oaths may be - 6 -

8 administered by an acting officer. Finally, sufficiency of the oaths remains to be determined by the Trial Judge: R. v. Lee Tuck, [1912] 2 W.W.R. 605 (Alta. S.C.) C..EVIDENCE IN SUPPORT OF THE CHARGE This may be the most difficult aspect of the technical matters which have to be proven.' This aspect of the case appears to be subject to the best evidence rule. In Turner v.' R. (1981), 27 C.R. (3d) 73, the Saskatchewan Court of Appeal sets-out in clear terms the procedure to prove the previous testimony. In effect, compliance with the recording of evidence by The Sound Recording Machine Act is sufficient. 'In the alternative, the tape recording of the trial may in itself, be admitted. The operative section of the Criminal Code is Section 468 and Section 736(3), which provides three different means of recording the evidence: a) By a stenographer appointed by the Justice holding the Preliminary Inquiry; b) In the form of a deposition (Form 27); c) By a sound recording apparatus authorized under Provincial Legislation for use in civil cases. Accordingly, where the tape recorder is the only means of making a record of the proceeding, The Recording of Evidence by The Sound Recording Machine Act, must be complied with. Pursuant to Section 4, the Record which is created by a sound recording machine (Section 3) must be certified by the Judge or person in charge of the sound recording machine. When Section 4-7 -

9 is complied with, the Record becomes prima facie evidence that it is the record of the evidence. However, in order to create a record that has the same effect,as original evidence, Section 5 must be complied with by the Court Reporter or Stenographer swearing an Affidavit. It appears from R. v. McCallum, unreported, (May 20, 1970), J.C.M., that Judge Maher ruled that this was the best evidence. This is in line with the proposition in R. v. Chastakoff, [1936] 2 W.W.R. 441 (Sask. C.A.). In this case, the Saskatchewan,Court of Appeal held that in absence of reasons why the depositions taken down by th~ two Justices of the Peace hearing the case are not available, there is no foundation for allowing secondary evidence of their record. In the event that compliance with the recording of evidence by The SoUnd Recording Machine Act.cannot be complied wi th, it is respectfully submitted that on the basis of R. v. Rutherford, [1923] 2 W.W.R. 963 (Sask. C.A.), that a Transcript may be allowed into evidence if the Court Reporter swears to the accuracy of the questions and answers. In this connection, you should also note the reference to the transcript in R. v. Monette, referred to above. A further alternative would be to enter the tape into evidence simply as a tape recording. In this case, the Provincial Court Judge would have to identify the voices, and testify as to the authenticityof the recording. Thereafter, the Court would have to be satisfied that it was a true and accurate recording of what was said without deletions or additions : R. v. Sommervill (1963), 3 C.C.C. 258 and 259. Where the trial takes place in a higher court, or an indictment, reference should again be made to Sections 468 through Sections 575 of the Criminal Code. Of course. in that instance the transcript, duly certified by the Court - 8 -

10 Reporter is sufficient: see particularly Section 468(5) of the Criminal Code. In many cases, the transcript is incomplete for failure of the Tape Recorder to function, or alternatively, the acoustics are poor. In such a case, having the transcript entered as evidence, you may be allowed to supplement it with the oral testimony of the Provincial Court,Judge. This has been the case where the Provincial Court Judge was previously required to make notes of the proceedings: R. v. Prasl.loski (No.2), 16 C.C.C. 139 (B.C.C.A.); See also R. v. Yaldon, 13 C.C.C. 489 (O.C.A.). It appears that the Provincial Court Judge may use his notes to refresh his memory, like any other witness: R. v. Child,S Cox C.C. 197; R. v. Morgan, 6 Cox C.C However, in this connection, you might refer to Re J.L. Clendenning and The Belleville Police Commissioners, December 23, 1976, 13 W.C.B. 119 '(Onto Div. Ct.), where it was held that the trial judge is not compellable regarding matters arising in his capacity as a trial judge. He is, however, compellable regarding collateral matters to the trial or elsewhere. The Crown may be allowed to call oral evidence through a witness present at the original trial: R. V. Rowley, 1 Mood Ill; R. v. Munton, 3 C.P. 498; R. v. Browne, 3 C and P

11 D. ENTERING '!HE TRANSCRIPT IN WHOLE OR IN PART It appears that the whole Transcript must be read into evidence, rather than only the portion of the accused's evidence: R. v. Brewer, [1921] 2 W.W.R. 100 (Alta. C.A.); R. v. Jones, 170 E.R.- 75; R. v. Koot, [1903] 10 B.C.R I would suggest that it would be more helpful to the Crown to have the full Transcript go in as evidence, particularly where the alleged perjurer gave evidence which conflicted with previous testimony. This is especially true when he is a Defence witness and present when the Crown witnesses gave their evidence. This seems to be the suggestion of Judge Maher in R. v. McCallum, supra. On the other hand, entering the whole Transcript will assist the Defence if an argument based on res judicata or issue estoppel is pursued: R. v. Grdic, infra. IV THE EVIDENCE A. THE SUBSTANTIVE OFFENCE In most cases, the alleged perjurer swears falsely to a fact which is in direct conflict with other Witnesses, or, alternatively, it can be proven to be false through direct evidence to the contrary. However, in some instances, it is a case of intentional forgetfulness, and in such cases, this would amount to perjury: R. v. Wolf, [1974] 6 W.W.R. 368 (S.C.C.), overruling R. v. Patterson, 61 W.W.R. 379 (Sask. C.A.)

12 B. INTENT 'TO MISLEAD The Alberta Courts have been particularly helpful in cases of perjury and again, in R. v. Cieslenski, [1924] 1 W.W.R. 82, the Alberta Court of Appeal holds that the alleged perjured statement must be made wilfully and corruptly. That Court considers the matter again- in R. v. Kovacs, [1974]3 W.W.R. 562 and states that elements of perjury are as follows: a) That the evidence is false;" b) Knowledge of that falsity; c) Intent to deceive. On the last element, the Court says, at page 566, that an accused who swears to false evidence with knowledge of the falsity is presumed to have deceived the Court, as people only lie for the purpose of misleading. Further assistance can be found in R. v. Calder, [1960] S.C.R. 897, where the Court holds that intent to mislead may be inferred from the circumstances. Similarly, in R. v. Wolf, supra, at page 373, the Supreme Court of Canada upholds the proposition in Patterson, 61 W.W.R. 379, which states that the Crown must prove misleading the Court. On the other hand, see R. v. Regnier (1955), 21 C.R. 374 (Ont. C.A.), which holds that the evidence need not mislead the Court if it is found that it was so intended: R. v. Cieslenski, supra; R. v. Safrouik, [1935] 3 W.W.R. 477; R. v. LePalme, 13 Cdn. Abr

13 Reference should be made to the case of Sesner v. Regina (1975), 33 C.R.N.S. 122, where the Court holds that answering questions recklessly is a defence to a charge of perjury. C. PROOF OF THE FALSITY This particular element of the case may be shown by circumstantial evidence: R. v. Natanson, [1927] 2 W.W.R. 127 (Sask. C.A.); R. v. Pearson, 7 C~R. 15 (Que.); R. v. Patterson, 59 W.W.R. 109 (Sask.), overruled on other grounds in R. v. Wolf, supra. D. CORROBORA'PION This particular element of the case has been discussed on two occasions by~ the Saskatchewan'Court of Appeal: R. v. Pattyson, [1973] 5 W.W.R. 203; R. v. Peterson, 3 W.W.R. 345; and 55 S.C.R The rules as to corroboration are the same as in other cases except that in some instances, the corroboration is required of the perjured fact as a whole and not to every detail or constituent part: R. v. MacKenzie, [1930] 2 W.W.R. 602 (Sask. C.A.). In R. v. Elliott, (1972), 9 C.C.C. (2d) 207 (Alta. C.A.), the Court holds that Section 123 requiring corroboration does not apply where two witnesses give evidence showing the alleged falsity. See also: R. v. Lee, 1 Russel C.R. (8th) 478; R. v. Boulter, 5 Cox C.C. 543; ~. v. Threlfall, 10 C.A.R. 112, at

14 Where the charge is one of inciting to commit perjury, corroboration is not required: R. v. Kyling, [1970J 14 C.R.N.S Of course, corroboration is not required to prove the procedural matters mentioned above: Lefebrve v. Regina, 2 C.R. 215; R. v. Pearson, supra; R. v. Peterson, supra. +t has been held that an accused giving evidence in his own defence with material differences, may amount to corroboration: R. v. Nash, 6 W.W.R On the matter of corroboration, see Courval v. Regina, 25 C.R. at 239 and R. v. Zapia (1975), 27 C.C.C. (2d) 448 (O.C.A.). v. '!HE BEST DEFENCE? 'The Supreme Court of Canada recently ruled (5-4) that the prosecution is estopped from re-litigating an issue decided in favour of an accused in a previous trial by laying a perjury charge, unless it is tendering evidence which was not available by the exercise of reasonable diligence at the time of the first trial - even if the Crown was taken by surprise at the first trial: Grdic v. R. (1985), 46 C.R. Od) 1 (S.C.C.) 'The majority proceeded on the assumption that an acquittal was equivalent

15 to a finding of innocence, rather than "not proven". On the main issue: See also R. v. Linnen (1981), 61 C.C.C. (2d) 13 (Sask. D.C.); R. v. Gordon, [1980] 3 W.W.R. 655 (Alta. Q.B.). At the time of preparing this paper, a decision on this point in pending in the Saskatchewan Court of Appeal: R. v. Yuzik. The root of this proposition seems to be in the English House of Lords decision in D.P.P. v. Humphreys, [1976] 2 All E.R. 497, and was recently considered in R. v. Gushue, [1980] 1 S.C.R In Gushue, the defence did not succeed because, four years after his acquittal on a murder charge, the accused told the police that he had shot the deceased - even though he had previously testified otherwise. There remains the question of the application of the doctrine of res judicata and issue estoppel, where the accused was convicted in 'spite of his evidence at the first trial. On the basis of Kienapple v. R., [1975] 26 C.R. 1, the prosecution may successfully argue that the charges are not made up of the same or substantially the same elements and therefore, two convictions may stand. However, in the same case, it was held that "the relevant inquiry so far as res judicata is concerned, is whether the same cause or matter, rather than the same offence is comprehended by two or more offences." In R. v. Dooley, [1978] 6 W.W.R. 79, the Saskatchewan Court of Appeal expanded the definition to whether the same or substantially the same evidence was adduced. Furthermore, both cases clearly hold that "res judicata is not

16 a defence raised by a special plea, but is raised by a plea of not guilty. If, at the trial, it was found that the evidence of the accused's guilt was substantially the same as that adduced upon by trial in a prior indictment upon which he was found not guilty, then he should not be found guilty on the second indictment". But, as ~ndicated above, the identity of offences supports the Crown's proposition. It can hardly be said that, for example, the offence of murder has the same elements as the offence of perjury. Does this mean that the successfuf liar escapes both the original charge and the perjury charge while the unconvincing accused stands convicted of both? VI. SENTENCE In Saskatchewan, a first offender is likely to receive a sentence of eight to nine months incarceration: Foster v. R. (1982), 69 C.C.C. (2d) 484 (Sask. C.A.); R. v. Kobzey, [1979] 1 Sask. R. 7 (C.A.)