R. v. Boisjoly, [1972] SCR 42

Supreme Court of Canada

R. v. Boisjoly, [1972] S.C.R. 42

Date: 1971-04-27

Her Majesty The Queen Appellant

and

Jean-Paul Boisjoly Respondent.

1970: June 11, 1971: April 27.

Present: Fauteux C.J. and Abbott, Martland, Ritchie and Pigeon JJ.

ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC

Criminal law—False statement in extrajudicial proceedings—Answers to questions subsequently recorded in document—Document signed and certified by affidavit—Affidavit not qualifying as one permitted, authorized or required by law—Criminal Code, 1953-54 (Can.), c. 51, s. 114.

At the request of a police officer, the respondent, against whom no charge had been laid, went to the offices of the police and answered questions put to him about a news item published in a daily newspaper, to the effect that a witness in a criminal trial had stated that he wished to change a false testimony he was incited by the respondent to give at the preliminary hearing. The respondent denied having taken any part in the matter, and then signed a document in which his answers had been recorded, and certified its accuracy by affidavit taken by an officer who held a commission of justice of the peace solely for the purpose of administering oaths. The respondent was charged under s. 114 of the Criminal Code with making a false statement. He was convicted at trial but was acquitted by the Court of Appeal. The Crown was granted leave to appeal to this Court. The appellant contends that as the law does not prohibit certifying such a statement by affidavit, we must conclude that it permits it, since whatever is not prohibited by law is permitted. Furthermore, the provisions of s. 37 of the Canada Evidence Act and of s. 35(21) of the Interpretation Act, necessarily imply such permission.

Held: The appeal should be dismissed.

In the circumstances of this case, the statement made by the respondent was not within the meaning of and having regard to the true purpose of s. 114 of the Code, a statement which the person making it was “permitted, authorized or required by law” to make, by affidavit or orally under oath. In the definition of this indictable offence, the legislator

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does not have in mind any extrajudicial statement whatever, made for any and every purpose, by affidavit or orally under oath. The legislator does not recognize as an ingredient of the indictable offence mentioned in s. 114, affidavits which he has not permitted, authorized or required, in short, affidavits which have no legal meaning or scope.

Section 37 of the Canada Evidence Act and s. 35(21) of the Interpretation Act do not support the Crown’s claims.

APPEAL by the Crown from a judgment of the Court of Queen’s Bench, Appeal Side, province of Quebec[1], setting aside the respondent’s conviction on a charge of making a false statement. Appeal dismissed.

M. Bourassa, Q.C., for the appellant.

Claude Armand Sheppard, for the respondent.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—Appellant, having been granted leave to do so, appeals against a unanimous judgment of the Court of Appeal of the. Province of Quebec¹. This judgment acquits respondent of the indictable offence described in s. 114 of the Criminal Code, with which he was charged at trial, and of which he was convicted.

114. Every one who, not being a witness in a judicial proceeding but being permitted, authorised or required by law to make a statement by affidavit, by solemn declaration or orally under oath, makes in such a statement, before a person who is authorised by law to permit it to be made before him, an assertion with respect to a matter of fact, opinion, belief or knowledge, knowing that the assertion is false, is guilty of an indictable offence and is liable to imprisonment for fourteen years.

The circumstances leading to the foregoing charge are not in question. Following a news item published in a Montreal daily, to the effect that a witness in a criminal trial had stated that he wished to change a false testimony he was incited by Boisjoly to give at the preliminary inquiry, an officer of the Quebec Provincial Police, Inspector Armand Houle, contacted Boisjoly and asked him if he had any objection to coming to

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the offices of the Police to answer questions about the news item. Boisjoly, against whom no charge had been laid, went to the offices of the Police and answered questions put to him by officers Thibault and Lawton. He denied having taken any part in the matter, then, having been invited to do so by the officers, he signed a document (Exhibit P-3) in which his answers had been recorded, and certified its accuracy by affidavit taken by Inspector Houle. The latter, incidentally, then held a commission of justice of the peace solely for the purpose of administering oaths.

Eventually the authorities came to the opinion that, in the circumstances, Boisjoly had knowingly made false statements, and brought the aforementioned charge against him. He was found guilty at his trial but was acquitted by the Court of Appeal, for the following reasons, given on behalf of the Court by Casey J.:

As Appellant points out C.C. 114 does not contemplate any affidavit; it contemplates only those that are “permitted, authorised or required by law.” This means statements that are required for one purpose or another and that the relevant provision of the law allows the person involved to make in this manner. These are affidavits that have legal significance and as examples I suggest the provisions relating to Bulk Sales (C.C. 1569), to the nomination of candidates for office in the City of Montreal (Charter sec. 256) and to the sworn declaration that must accompany certain applications under the Highway Code (sec. 64).

In this case Appellant was asked for certain information. He could have refused. Instead he complied and gave answers that do not, by any stretch of the imagination, qualify as statements that are permitted, authorized or required by law.

The only importance that I attach to the facts of this case, particularly those relating to the manner in which P-3 was prepared and signed and to the manner in which Houle appeared at the last minute is that they give us an example of the informality that is so often present in matters of this sort. They may also explain why in so many cases affidavits are treated with little if any respect.

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Thus, the question of law forming the basis of this appeal is whether the statement made by Boisjoly, in the circumstances mentioned above, is or is not, within the meaning of and having regard to the true purpose of s. 114 of the Criminal Code, a statement which the person making it is “permitted, authorised or required by law” to make, by affidavit or orally under oath.

In support of the affirmative, appellant relies on the word “permission” in the French version, or “permitted” in the English version. It contends that as the law does not prohibit certifying such a statement by affidavit, we must conclude that it permits it, since, it is said, whatever is not prohibited by law is permitted. Furthermore, contends the appellant, the provisions of s. 37 of the Canada Evidence Act, and of s. 35(21) of the Interpretation Act, necessarily imply such permission.

I do not think appellant’s claims can be accepted as valid, in the light of the historical and legal context of the question to be determined.

We must at this point observe that if it may be generally correct to assert that all that is not prohibited by law is permitted, it follows that it is also equally correct to say that any permission given by the legislator implies a measure of exception to a rule or principle in effect. Otherwise, we would have to conclude that the legislator had acted to no purpose in permitting what was already permitted. This is certainly not the case with respect to the right to use the oral oath, the affidavit or the solemn declaration to attest the truth of a statement of fact.

We must first remember that originally, understanding and acceptance of the religious obligation resulting from the oath was a condition of the competence of any witness; and that with time the rigidity of this rule was relaxed to allow, first of all, different religious forms of attestation, and eventually, on certain conditions or in certain specified cases, the solemn affirmation. In Kenny’s Outlines of Criminal Law, 19th ed., page 511, at number 584, the matter is stated thus:

584. The value added to testimony by its being given under supernatural sanctions is frequently so

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great that the law formerly made it essential to the competency of every witness that he should know and accept the religious obligation of an oath. Increased intercourse with the East led in the seventeenth century to the recognition of Mohammedans, and in the eighteenth to that of Hindus, as satisfying this condition, and being entitled to be sworn with their own sacred ceremonies. But now, even in the case of adult witnesses, the requirement of an oath is no longer universal; for, by the Oaths Act, 1888, ‘every person objecting to be sworn, on the ground either that he has no religious belief or that the taking of an oath is contrary to his religious belief, shall be permitted to make his solemn affirmation in all places and for all purposes where an oath shall be required by law’.…

The provisions of the Imperial and Canadian statutes noted below, which have dealt with the point, indicate, among other things, one of the historical reasons, and one of the quite affirmative meanings, of the word “permitted” or “permis”, which is not used by the legislator in the negative sense ascribed to it by appellant. Thus, in these or similar terms, it is provided that a witness “shall be permitted to make a solemn affirmation instead of an oath,” or, as we see in the French version, “qu’une affirmation solennelle est permise au lieu d’un serment.”

1. Imperial Statutes:

An Act to allow Quakers and Moravians to make Affirmation in all Cases where an Oath is or shall be required—(1833) 3 &4 William IV, c. 49, see s. II.

The Common Law Procedure Act, 1854—(1854) 17 & 18 Victoria, c. 125, see s. XX.

Common Law Procedure Amendment Act (Ireland), 1856—(1856) 19 & 20 Victoria, c. 102, see s. XXIII.

An Act to give relief to Persons who may refuse or be unwilling, from alleged conscientious Motives, to be sworn in Criminal Proceedings—(1861) 24 & 25 Victoria, c. 66, see s. 1.

An Act to allow Affirmations or Declarations to be made instead of Oaths in all Civil and Criminal Proceedings in Scotland—(1865) 28 & 29 Victoria, c. 9, see s. 2.

An Act to remove some Defects in the Administration of the Criminal Law—(1867) 30 & 31 Victoria, c. 35, see s. 8.

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2. Canadian statutes:

An Act for putting a legislative Interpretation upon certain terms used in Acts of Parliament, and for rendering it unnecessary to repeat certain provisions and expressions therein, and for ascertaining the date and commencement thereof, and for other purposes—(1849) 12 Victoria, c. 10, see s. 13.

Interpretation Act—(1859) 22 Victoria, c. 5, see ss. 6-13.

Criminal Code, 1892—(1892) 55-56 Victoria, c. 29, see s. 150.

The Canada Evidence Act, 1893—(1893) 56 Victoria, c. 31, see ss. 23 and 24. Canada Evidence Act—(1906) R.S.C., c. 145, see ss. 14 and 15.

Canada Evidence Act—(1927) R.S.C., c. 59, see ss. 14 and 15.

Canada Evidence Act—(1952) R.S.C., c. 307, see ss. 14 and 15.

It is not inappropriate to note that under ss. 22 and 24 of The Canada Evidence Act (1893), 56 Vict., c. 31 and ss. 14 and 15 of the Canada Evidence Act, the option or permission granted to a witness or deponent to attest the truth of a statement of fact by a solemn affirmation, rather than on oath, is not absolute, but subject to certain conditions which qualify it and limit its extent.

Thus we see that the word “permis” and the word “permitted” imply the existence of an exception to a general principle whereby, legally, the oath is the rule and the solemn affirmation the exception.

Though pertinent to consideration of the principal premise on which appellant’s case is founded, these observations on the right to elect between the oath and the solemn affirmation do not reach to the heart of matter: this is whether, in s. 114, in the definition of this indictable offence, related to that of perjury and, like the latter, punishable by imprisonment for fourteen years, the legislator has in mind any extrajudicial statement whatever, made for any and every purpose, by affidavit or orally under oath, or whether he is considering merely those which he permits, authorizes or requires to be so attested.

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In 1769, in the 4th volume of his Commentaries on the Laws of England (cf. p. 137 of the reprint made in 1966 of the first edition), Sir William Blackstone writes:

The law takes no notice of any perjury but such as is committed in some court of justice having power to administer an oath; or before some magistrate or proper officer invested with a similar authority, in some proceedings relative to a civil suit or a criminal prosecution; for it esteems all other oaths unnecessary, at least, and therefore will not punish the breach of them. For which reason, it is much to be questioned how far any magistrate is justifiable in taking a voluntary affidavit in any extrajudicial matter, as is now too frequent upon every petty occasion; since it is more than possible that by such idle oaths a man may frequently, in foro conscientiae, incur the guilt, and at the same time evade the temporal penalties, of perjury.

Subsequently, in 1835 in England, and in 1874 in Canada, the legislator took action against the custom which had emerged of administering and receiving oaths and affidavits voluntarily taken and made in proceedings which are not the object of a judicial inquiry, or in any way required or authorized by any statute. Legislation was introduced to put an end to the practice: see the Imperial statute, (1835) 5-6 William IV, c. 62, s. XIII, and the Canadian statute (1874) 37 Victoria, c. 37, ss. 1 and 2. It is worth setting out here the text of s. XIII of the Imperial statute:

XIII. And whereas a practice has prevailed of administering and receiving oaths and affidavits voluntarily taken and made in matters not the subject of any judicial inquiry, nor in anywise pending or at issue before the justice of the peace or other person by whom such oaths or affidavits have been administered or received: And whereas doubts have arisen whether or not such proceeding is illegal: For the more effectual suppression of such practice and removing such doubts, be it enacted, that from and after the commencement of this Act it shall not be lawful for any justice of the peace or other person to administer or cause to allow to be administered, or to receive or cause or allow to be received, any oath, affidavit, or solemn affirmation touching any matter or thing whereof such justice or other person hath not jurisdiction or cognizance by some statute

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in force at the time being: Provided always, that nothing herein contained shall be construed to extend to any oath, affidavit, or solemn affirmation before any justice in any matter or thing touching the preservation of the peace, or the prosecution, trial, or punishment of offences, or touching any proceedings before either of the Houses of Parliament or any committee thereof respectively, nor to any oath, affidavit, or affirmation which may be required by the laws of any foreign country to give validity to instruments in writing designed to be used in such foreign countries respectively.

In the English version, our 1874 Canadian statute has the heading Unnecessary Oaths Suppression. We can see there the language of Backstone in the above quotation. The statute reproduces, with some variations, the preamble, the main provision and the reservation of s. XIII of the 1835 Imperial statute. When our criminal law was codified in 1892, these provisions of the 1874 statute were quite substantially reproduced in s. 153 of the Criminal Code to become eventually and again with a few variations, subs. 1 of s. 179 of the Code prior to that currently in force. It is appropriate to reproduce the English version of s. 179(1):

179. Every justice or other person 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, 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 not authorized or required by any such law; but nothing in this section contained shall be construed to extend to any oath or affirmation before any justice in any matter or thing touching the preservation of the peace, or the prosecution, trial or punishment of any offence, or to any oath or affirmation required or authorized by any law of Canada or by any law of the province wherein such oath or affirmation is received or administered, or is to be used, or to any oath or affirmation, which is required or authorized by the laws of any foreign country to give validity to an instrument in writing or to evidence designed or intended to be used in such foreign country.

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2….

In short, this section among other things makes the justice of the peace who administers an oath touching a matter over which he has no jurisdiction, and of which he cannot have cognizance under a statute requiring an oath, guilty of an indictable offence. To the provision of s. 179(1) is added a reservation to prevent its being interpreted so as to paralyze the taking of proceedings necessary to keeping the peace—which does not include the attestation by affidavit of a statement like that which Boisjoly made in the aforementioned circumstances—or the prosecution, trial or punishment of an offence, or so as to affect cases where oaths or affirmations are required or authorized by any law of Canada, or by any law of the province wherein such oaths or affirmations are received, administered or made, or are to be used, or oaths or affirmations required or authorized by the law of a foreign country, for the purposes mentioned in the section.

We thus find in these provisions of s. 179(1), as in those from which they are derived, that it is always in the same spirit that the legislator considers the oaths which are not permitted, authorized or required, in short, unnecessary or useless oaths or oaths which have no legal meaning or scope.

In the last revision of the Code s. 179 became s. 118 of the present Code; the provisions of s. 179(1) were dropped. While it may be correct to assert that by doing so Parliament wished to relieve individuals affected by these provisions of the implied obligation to verify in every case where they are called on to administer an oath or solemn affirmation, whether they may validly do so, this does not mean that by dropping the penal sanction laid down in s. 179(1), Parliament was thereby seeking to validate a practice hitherto condemned over the centuries. The legislator is not presumed to substantially alter the law beyond what he states explicitly in precise words or by necessary implication. This is all the more since, in the present case, the provisions of s. 114 are explicit. They refer to everyone who “being permitted, authorised or required by law to make a statement by affidavit…”. The words “by law” qualify equally the words “permitted, authorised

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or required”. The spirit of the law has not changed. The legislator does not recognize as an ingredient of the indictable offence mentioned in s. 114, affidavits which he has not permitted, authorized or required, in short, affidavits which have no legal meaning or scope.

Finally we must consider the provisions of s. 37 of the Canada Evidence Act, and those of s. 35(21) of the Interpretation Act, which in appellant’s view allow the oaths. Section 37 reads as follows:

37. Any judge, notary public, justice of the peace, police or stipendiary magistrate, recorder, mayor or commissioner authorized to take affidavits to be used either in the provincial or Dominion courts, or any other functionary authorized by law to administer an oath in any matter, may receive the solemn declaration of any person voluntarily making the same before him, in the form following, in attestation of the execution of any writing, deed or instrument, or of the truth of any fact, or of any account rendered in writing:

I, A.B. solemnly declare…

In my opinion the purpose of these provisions is not to authorize the individuals mentioned to take affidavits or administer oaths, but to authorize such persons, who are already vested with the power to administer oaths or take affidavits, to also receive solemn declarations for the purposes, and in the form, prescribed. We cannot find in these provisions an intention of the legislator to recognize as being contemplated by s. 114—an offence carrying a penalty of fourteen years’ imprisonment—affidavits that are not permitted, authorized or required, and have no legal meaning or scope in themselves.

Section 35(21) of the Interpretation Act provides that:

35. (21) “oath” includes a solemn affirmation or declaration, whenever the context applies to any person and case by whom and in which a solemn affirmation or declaration may be made instead of an oath; and in like cases the expression “sworn” includes the expression “affirmed” or “declared”;

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These provisions in fact have no other purpose than to extend the normal meaning of the expression “oath” and the expression “sworn”, so as to include the words “affirmation” or “solemn declaration” and the words “affirmed” or “declared”, respectively. It is also to be noted that these provisions do not operate inversely, and that moreover they remain subject to those of s. 2(1) (a) of the same Act, which makes them inapplicable in so far as they are inconsistent with the intent or object of the Act to which it is sought to apply them.

In my opinion, ss. 37 and 35(21) do not support appellant’s claims.

In short, for the foregoing reasons and conclusions, the effect of which I feel it is advisable to limit to the circumstances of this case, I would, with respect, find that the Court of Appeal correctly quashed as being unfounded in law the conviction against respondent. I would dismiss the appeal.

Appeal dismissed.

Solicitor for the appellant: M. Bourassa, Montreal.

Solicitor for the respondent: B. Grenier, Montreal.