R. v. Hébert

THE COURT -- The trial judge, pursuant to s. 17 of the Criminal Code, R.S.C. 1970, c. C-34, acquitted appellant Hébert on a charge of perjury. He was also acquitted on a charge of obstructing justice. The Crown appealed from both acquittals. We all agree with the Court of Appeal (1986), 3 Q.A.C. 251 that in so doing the trial judge erred, as the facts of the case at bar do not support a defence based on s. 17 of the Criminal Code .

Hébert argued in the Court of Appeal that there was no mens rea and that, in this regard, he had been deprived of his right to a full answer and defence. The Court of Appeal rejected this argument, allowed one of the appeals and found Hébert guilty of perjury. On the other hand, his acquittal on the second count was upheld. Hébert appealed to this Court from the count of perjury and the Crown cross-appealed from the acquittal on the count of obstructing justice. We are all of the view that the appeal and the cross-appeal should be allowed.

While appellant Hébert admitted that he deliberately lied in giving testimony, he nonetheless stated that he had no intent to mislead in so doing but that, quite the contrary, he intended that the way in which he testified would result in his not being believed and was designed solely to attract the judge's attention so he could tell the judge about the threats which had been made against him.

In concluding that [TRANSLATION] "Whatever reasons prompted respondent to make a deceptive statement, he could not do so in the case at bar without intending to mislead the court" (pp. 254-55), the Court of Appeal did not take into account this defence by appellant, and the trial judge also made no ruling on it.

For there to be perjury there has to be more than a deliberate false statement. The statement must also have been made with intent to mislead. While it is true that someone who lies generally does so with the intent of being believed, it is not impossible, though it may be exceptional, for a person to deliberately lie without intending to mislead. It is always open to an accused to seek to establish such an intent by his testimony or otherwise, leaving to the trial judge the task of assessing its weight. The trial judge did not allow the accused to complete his evidence in this regard, probably because he knew he was going to acquit him on other grounds; that acquittal however was properly set aside on appeal.

For these reasons the ends of justice in the case at bar require that we allow both appeals and that a new trial be ordered on both counts.