Do Not Commit Perjury on Affidavits

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A party before a tribunal may submit an affidavit as evidence to help a tribunal member or a judge determine the facts in a matter. A trademark owner is required to submit an affidavit to the Registrar of Trademarks when responding to a Section 45 notice or when opposing a trademark application.

Let Right Prevail

The justice system’s motto is “Let Right Prevail.” Making a false affidavit is an attempt to deceive a tribunal or influence the course of justice by misstating facts and it is a criminal offence under section 131 of the Criminal Code.

Lawyers Must Not Mislead a Court or a Tribunal

When opposing interests are not represented. . .. the lawyer must take particular care to be
accurate, candid and comprehensive in presenting the client’s case so as to ensure that the
tribunal is not mislead.

RELEVANT RULE FROM THE LSUC RULES OF PROFESSIONAL CONDUCT

4.01(2) When acting as an advocate the lawyer shall not do anything:

(b) dishonest or dishonourable;

(e) knowingly attempt to deceive a tribunal or influence the course of justice by misstating facts or law, suppressing what ought to be disclosed, or otherwise assisting in any fraud, crime or illegal conduct;

(f) knowingly misstate the contents of a document, the testimony of a witness, the substance of an argument or the provisions of a statute or like authority;

(g) knowingly assert as true a fact when its truth cannot reasonably be supported by the evidence or as a matter of which notice may be taken by the tribunal

Perjury in an Affidavit

It is perjury to make a false statement on an affidavit, whether in a court proceeding or in a trademarks office matter, is a criminal offence under section 131 of the Criminal Code.

Taking an oath, knowing that the statement is false, is guilty of an offence punishable on summary conviction,  under section 134 of the Criminal Code.

Fabricating evidence, with intent that it shall be used as evidence in a judicial proceeding, existing or proposed, by any means other than perjury or incitement to perjury is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years, under section 137 of the Criminal Code.

And making a fake affidavit is also an offence, under section 138 of the Criminal Code.

The details of the elements of each of the offences related to perjury, under the Criminal Code of Canada (R.S.C., 1985, c. C-46) are listed here for your convenience. Click the link to get the most up-to-date versions of the the Criminal Code of Canada.

Misleading Justice

Perjury
  •  (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.

  • Video links, etc.

    (1.1) Subject to subsection (3), every person who gives evidence under subsection 46(2) of the Canada Evidence Act, or gives evidence or a statement pursuant to an order made under section 22.2 of the Mutual Legal Assistance in Criminal Matters Act, commits perjury who, with intent to mislead, makes a false statement knowing that it is false, whether or not the false statement was made under oath or solemn affirmation in accordance with subsection (1), so long as the false statement was made in accordance with any formalities required by the law of the place outside Canada in which the person is virtually present or heard.

  • Idem

    (2) Subsection (1) applies, whether or not a statement referred to in that subsection is made in a judicial proceeding.

  • Application

    (3) Subsections (1) and (1.1) do not apply to a statement referred to in either of those subsections that is made by a person who is not specially permitted, authorized or required by law to make that statement.

  • R.S., 1985, c. C-46, s. 131;
  • R.S., 1985, c. 27 (1st Supp.), s. 17;
  • 1999, c. 18, s. 92.
Punishment

 Every one who commits perjury is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

  • R.S., 1985, c. C-46, s. 132;
  • R.S., 1985, c. 27 (1st Supp.), s. 17;
  • 1998, c. 35, s. 119.
Corroboration

 No person shall be convicted of an offence under section 132 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.

  • R.S., 1985, c. C-46, s. 133;
  • R.S., 1985, c. 27 (1st Supp.), s. 17.
Idem
  •  (1) Subject to subsection (2), every one 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.

  • Application

    (2) Subsection (1) does not apply to a statement referred to in that subsection that is made in the course of a criminal investigation.

  • R.S., 1985, c. C-46, s. 134;
  • R.S., 1985, c. 27 (1st Supp.), s. 17.

 [Repealed, R.S., 1985, c. 27 (1st Supp.), s. 17]

Witness giving contradictory evidence
  •  (1) Every one who, being a witness in a judicial proceeding, gives evidence with respect to any matter of fact or knowledge and who subsequently, in a judicial proceeding, gives evidence that is contrary to his previous evidence is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years, whether or not the prior or later evidence or either is true, but no person shall be convicted under this section unless the court, judge or provincial court judge, as the case may be, is satisfied beyond a reasonable doubt that the accused, in giving evidence in either of the judicial proceedings, intended to mislead.

  • Evidence in specific cases

    (1.1) Evidence given under section 714.1, 714.2, 714.3 or 714.4 or under subsection 46(2) of theCanada Evidence Act or evidence or a statement given pursuant to an order made under section 22.2 of the Mutual Legal Assistance in Criminal Matters Act is deemed to be evidence given by a witness in a judicial proceeding for the purposes of subsection (1).

  • Definition of “evidence”

    (2) Notwithstanding the definition “evidence” in section 118, “evidence”, for the purposes of this section, does not include evidence that is not material.

  • Proof of former trial

    (2.1) Where a person is charged with an offence under this section, a certificate specifying with reasonable particularity the proceeding in which that person is alleged to have given the evidence in respect of which the offence is charged, is evidence that it was given in a judicial proceeding, without proof of the signature or official character of the person by whom the certificate purports to be signed if it purports to be signed by the clerk of the court or other official having the custody of the record of that proceeding or by his lawful deputy.

  • Consent required

    (3) No proceedings shall be instituted under this section without the consent of the Attorney General.

  • R.S., 1985, c. C-46, s. 136;
  • R.S., 1985, c. 27 (1st Supp.), ss. 18, 203;
  • 1999, c. 18, s. 93.
Fabricating evidence

 Every one who, with intent to mislead, fabricates anything with intent that it shall be used as evidence in a judicial proceeding, existing or proposed, by any means other than perjury or incitement to perjury is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

  • R.S., c. C-34, s. 125.
Offences relating to affidavits

 Every one who

  • (a) signs a writing that purports to be an affidavit or statutory declaration and to have been sworn or declared before him when the writing was not so sworn or declared or when he knows that he has no authority to administer the oath or declaration,

  • (b) uses or offers for use any writing purporting to be an affidavit or statutory declaration that he knows was not sworn or declared, as the case may be, by the affiant or declarant or before a person authorized in that behalf, or

  • (c) signs as affiant or declarant a writing that purports to be an affidavit or statutory declaration and to have been sworn or declared by him, as the case may be, when the writing was not so sworn or declared,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

  • R.S., c. C-34, s. 126.
Obstructing justice
  •  (1) Every one who wilfully attempts in any manner to obstruct, pervert or defeat the course of justice in a judicial proceeding,

    • (a) by indemnifying or agreeing to indemnify a surety, in any way and either in whole or in part, or

    • (b) where he is a surety, by accepting or agreeing to accept a fee or any form of indemnity whether in whole or in part from or in respect of a person who is released or is to be released from custody,

    is guilty of

    • (c) an indictable offence and is liable to imprisonment for a term not exceeding two years, or

    • (d) an offence punishable on summary conviction.

  • Marginal note:Idem

    (2) Every one who wilfully attempts in any manner other than a manner described in subsection (1) to obstruct, pervert or defeat the course of justice is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

  • Marginal note:Idem

    (3) Without restricting the generality of subsection (2), every one shall be deemed wilfully to attempt to obstruct, pervert or defeat the course of justice who in a judicial proceeding, existing or proposed,

    • (a) dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence;

    • (b) influences or attempts to influence by threats, bribes or other corrupt means a person in his conduct as a juror; or

    • (c) accepts or obtains, agrees to accept or attempts to obtain a bribe or other corrupt consideration to abstain from giving evidence, or to do or to refrain from doing anything as a juror.

  • R.S., c. C-34, s. 127;
  • R.S., c. 2(2nd Supp.), s. 3;
  • 1972, c. 13, s. 8.

Suborning Perjury

The term “suborning perjury” is currently used in the USA and elsewhere, but it was part of Canada’s Criminal Code in 1892. It is still a crime, under section 134 of the Criminal Code of Canada (R.S.C., 1985, c. C-46).

Criminal Code, 1892, c. 29

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

David Michaels

David Michaels, J.D., B.Eng., CHRM is a legal blogger (and a trained attorney) who holds certificates in Canadian Trademark Law (2012) and Canadian Patent Law (1996) from McGill University. He has worked in the area of trademark law in Canada since 1995 and in the USA since 1993. David is a brand consultant, a writer, an eCommerce entrepreneur, and an aeronautical engineer. http://ca.linkedin.com/in/davidtmichaels/ Warning & Disclaimer: The pages, articles and comments on trademarkpro.ca do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the author's notes of the current state of trademark law and should not be attributed as opinions of the author, his employer, clients or the sponsors of trademarkpro.ca. The author does not warrant that these notes are up-to-date. Trademark law is constantly changing and it varies between jurisdictions and even within jurisdictions. This website should not be relied upon.

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