Wolf v. The Queen, [1975] 2 SCR 107

Supreme Court of Canada

Wolf v. The Queen, [1975] 2 S.C.R. 107

Date: 1974-06-28

Jergen Anton Wolf Appellant;

and

Her Majesty The Queen Respondent.

1974: May 28; 1974: June 28.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION

Criminal law—Perjury—Accused testifying he could not remember events described by him in statement to police—Whether false evidence, known by accused to be false, given with intent to mislead Court—Criminal Code, R.S.C. 1970, c. C-34, s. 120.

Courts—Stare decisis—Uniformity among Provincial Appellate Courts required only as result of decisions of Supreme Court of Canada.

The accused was assaulted by two men and shortly thereafter he described to a police officer the details of what had occurred. The next day he dictated to two detectives a statement again describing the assault. He read over the statement and signed each page. In consequence of the foregoing, the two men were charged that “with intent to wound, they did unlawfully cause bodily harm to [the accused]”. At the time of their preliminary inquiry, and before it began, one of the detectives who was present at the taking of the statement from the accused showed him a typewritten copy which he was asked to read, and then the detective asked if “everything was alright”, to which the accused replied “yes”. When called to give evidence at the preliminary inquiry, the accused said that he could not remember the events described in the statement. In the result, the case against the two men was dismissed. A charge of perjury against the accused was then laid and following his trial he was convicted. On appeal, a majority of the Alberta Appellate Division affirmed the conviction and the accused then appealed to this Court. The only question to be considered was whether the false evidence, which the accused knew to be false, was given with “intent to mislead the Court” within the meaning of s. 120 of the Criminal Code.

Held: The appeal should be dismissed.

This was not a case of mere error, honestly made. The circumstances amply justified a conclusion that the failure of recollection was dishonest and deliber-

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ately asserted to prevent the Court from arriving at a decision upon credible evidence. The contention that the accused by answering that he could not remember could not be said to have any intent to mislead the Court when there was no other evidence against which his failure of recollection could be measured was rejected.

Colder v. The Queen, [1960] S.C.R. 892, applied; R. v. Patterson (1967), 61 W.W.R. 379; R. v. Glenfield, [1934] 3 W.W.R. 465, overruled.

APPEAL from a judgment of the Supreme Court of Alberta, Appellate Division[1], dismissing the appellant’s appeal from his conviction for perjury. Appeal dismissed.

A.M. Harredence, Q.C., for the appellant.

R.B. Nelles, for the respondent.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—This appeal, from the affirmation by a majority of the Alberta Appellate Division of a conviction of perjury, raises an important question as to the meaning of the words “with intent to mislead” in s. 120 of the Criminal Code and, in that connection, raises also the question of the correctness of R. v. Patterson[2], a decision of the Saskatchewan Court of Appeal. McDermid J.A., who dissented from the majority, did so on the ground that he felt that in the interests of the uniform administration of the criminal law he should follow the Patterson case, notwithstanding that he considered that it was wrongly decided. Acting upon propositions advanced by Harvey C.J.A. in R. v. Glenfield[3], McDermid J.A. was of the view that he should follow a decision of another provincial appellate Court, albeit in his opinion erroneous, when this resulted in an acquittal of an accused, so long as he did not consider that decision to be clearly wrong.

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In my opinion, R. v. Glenfield should not be taken as establishing any governing rule as between or among provincial appellate courts. A provincial appellate court is not obliged, as a matter either of law or of practice, to follow a decision of the appellate court of another province unless it is persuaded that it should do so on its merits or for other independent reasons. The distinction drawn by Harvey C.J.A. between a decision of another provincial appellate court which is felt to be wrong and a decision thereof which is felt to be clearly wrong is not one that commends itself either for its logic or its utility. Indeed, at the time the Glenfield case was decided, the Criminal Code, R.S.C. 1927, c. 36, provided by s. 1025(1), as enacted by 1920 (Can.), c. 43, s. 16, for an appeal in cases of indictable offences to the Supreme Court of Canada, with leave, where there was conflict with the decision of another provincial appellate court in a like case. This provision, repealed by 1948 (Can.), c. 39, s. 42, is somewhat inconsistent with the policy which the Glenfield case reflected so far as uniformity of the criminal law was regarded from the standpoint of provincial appellate court decisions. The only required uniformity among provincial appellate courts is that which is the result of the decisions of this Court.

The perjury charge in the present case arose in the following circumstances. The accused was with a married woman in her apartment in the early hours of February 2, 1972, when the husband, from whom she was separated, broke in and chased the accused out the back door. A constable arrived at the apartment at about 2 a.m. and began a search for the accused and the husband. The two turned up at the apartment at about 4:50 a.m., with the accused looking as if he had been assaulted. The constable drove him to a hospital for treatment, and during the drive and again after being treated the accused described in detail what occurred after the angry husband entered the apartment. He said he had been caught near the apartment and assaulted, then taken by the husband and another person by car to a yacht club area where he was again assaulted by the husband

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who used a hammer on him. The accused told of the hammer being thrown away in a certain location and one was later found there. Next day, the estranged wife picked up the accused at the hospital and they returned to her apartment where the accused dictated to two detectives a statement again describing the assault. He read over the statement and signed each page. Before dictating the statement the accused described the assault to the detectives.

In consequence of the foregoing, the husband and his associate were charged that “with intent to wound, they did unlawfully cause bodily harm to [the accused]”, an offence under Criminal Code s. 228. At the time of their preliminary inquiry on March 20, 1972, and before it began, one of the detectives who was present at the taking of the statement from the accused showed him a typewritten copy which he was asked to read, and then the detective asked if “everything was alright”, to which the accused replied “yes”. When called to give evidence at the preliminary inquiry, the accused said that he could not remember being at the married woman’s apartment on the particular morning and he could not remember the events of the day. He did remember being in hospital and being treated for injuries, but could not remember how he got them; and although he admitted knowing the two persons who were charged under s. 228, he could not remember seeing them in the morning of February 2, 1972. In the result, the case against the two was dismissed. The charge of perjury against the accused was then laid.

The charge alleged that he committed perjury by falsely swearing that he did not remember seeing either the husband or his associate on the morning of February 2, 1972, and that he did not remember having been given a beating that morning, knowing this to be false and with intent to mislead the Court. Section 120 of the Criminal Code reads as follows:

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Every one commits perjury who, being a witness in a judicial proceeding, with intent to mislead gives false evidence, knowing that the evidence is false.

It is common ground that the accused gave evidence that was false and that he knew that it was false. The only question to be considered here is whether this was done “with intent to mislead the Court”.

Counsel for the appellant contended that the accused by answering that he could not remember could not be said to have any intent to mislead the Court when there was no other evidence against which his failure of recollection could be measured. The Court, it was submitted, could not be misled when there was nothing before it to lead it into error. In short, the submission is that the failure to give any affirmative response by asserting a want of recollection of events, which the accused had described in out of court oral and written statements, cannot involve an intent to mislead the Court when there was no other evidence to give concreteness to the lapse of memory. Reliance was placed upon R. v. Patterson in support of these contentions.

In R. v. Patterson, there was a similar failure of recollection by a witness at a preliminary inquiry. He had been interviewed by two police officers on January 30, 1966, in connection with a shooting death that had occurred the previous day and had a conversation with them about the involvement of one Newman in the shooting. When asked at the time to give a written statement, the accused replied “You know me better than that”. At Newman’s preliminary inquiry about seven weeks later the accused was called as a witness, and when asked about his conversation with the police officers he said that he could not recall any such conversation. In his words at the time, “I forgot anything… if I said anything I forgot anything I did say”. His appeal from a conviction of perjury was allowed by the Saskatchewan Court of Appeal in reasons delivered by Culliton C.J.S. with whom Hall J.A. agreed and in concurring reasons by Maguire J.A., Culliton C.J.S. concluded that the

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Crown had failed to establish the “intent to mislead, that is… intent to lead the Court into error or to cause the Court to err”. He elaborated this conclusion as follows (at p. 156 of [1968] 2 C.C.C.):

Clearly the appellant did not intend to assist the Court and it may properly be said that his attitude was of hostility and his intent one of obstruction. Such states of mind, however, do not constitute an intent to mislead. Here the appellant said nothing—he gave no evidence upon which the Court could draw any inference or reach any conclusion. As a matter of fact, he neither admitted nor denied making a statement to the police officers but confined his testimony to the statement that if he had done so, he had now forgotten. Such a statement, even if false, is a negative one and cannot be construed as the giving of false evidence with the intent to mislead the Court.

Maguire J.A. stated that he confined himself to the particular facts and that “the particular testimony forming the basis of the charge of perjury was not evidence admissible on the issue of the guilt of the accused then under trial, and the prosecution has failed to establish the intent to mislead, necessary to constitute the offence”.

In my opinion, the Patterson case is indistinguishable on its facts and in its principle from the present case, and I hold it to have been wrongly decided. The distinction that Maguire J.A. would draw between evidence that is admissible on the issue of guilt and evidence that is not so admissible is not in itself a tenable one when regard is had to s. 107 of the Criminal Code, defining “evidence” for the purpose of that part of the Criminal Code which contains the perjury section as “an assertion of fact, opinion, belief or knowledge whether material or not and whether admissible or not”. Conceivably, it may be appropriate in a particular case as precluding an inference that there was an intent to mislead. It should be noted too that the fact that in a particular case the Court could not

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be or would not be misled does not alone preclude a finding that there was an intent to mislead. I am in agreement with Cartwright J., as he then was, in Calder v. The Queen[4], at p. 897, that “it may well be that if there were evidence to support findings that the appellant had given evidence false in fact knowing it to be false the tribunal of fact, in the absence of other evidence as to his intention, could properly draw the inference that in so doing he intended to mislead the Court”. In the Calder case, the accused was an innocent bystander who, under subpoena, became a witness in a divorce case, and he erred in his recollection of events occurring more than a year before. It was held that mere error afforded no basis for finding that he either knowingly gave false evidence or intended to mislead the Court.

The present case, like the Patterson case, is not one of mere error, honestly made. The circumstances of each, with almost the same lapse of time between the statements given and the judicial proceeding at which the accused was a witness (reinforced in the present case by the fact that the statement was written and was confirmed by the accused just before the preliminary inquiry began) amply justify a conclusion that the failure of recollection was dishonest and deliberately asserted to prevent the Court from arriving at a decision upon credible evidence. I do not see how by merely being negative (according to the assessment made in the Patterson case) a person charged with perjury can, on that ground alone, escape conviction when his negative evidence (“I can’t remember”) has been found to have been false and knowingly so.

It may be that drawing an inference of an intent to mislead is more difficult where “can’t remember” evidence is given or “I forget” evidence is given than where a witness lies about a fact about which he gave an out-of-court statement or alters the narrative previously given by

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positive falsification or variation. This does not, however, go to a different legal measure on the question of culpability. The law of perjury, a necessary sanction in the administration of justice, would become toothless if a calculated lapse of memory was enough to defeat it. The quest for truth, so far as a court can discern it from evidence, can be as easily frustrated by false negative evidence as by false positive evidence. In this sense the falsity has positive consequences in either event.

There may be cases in which knowing falsification will not support an inference of intent to mislead, but this is not one of them. The Calder case indicates that to falsify knowingly is not invariably enough for a conviction of perjury, and I take the same view. In this respect, the point made in the Patterson case, that in Canada (as distinguished from other jurisdictions) proof of an intent to mislead is necessary to conviction, is worth restatement. It is the ratio of the Patterson case that is unacceptable.

I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: Harradence, Waite & Co., Calgary.

Solicitor for the respondent: R.B. Nelles, Calgary.