False Affidavits (s. 138) Charges in Canada: Offences, Defences, Punishments
What is a false affidavit charge?
A false affidavit charge is covered under s. 138 of the Criminal Code found in Part IV. Part IV covers “Offences Against the Administration of Law and Justice.”
A false affidavit charge occurs when a person uses a “phony” affidavit. The accused may be the affiant, signing a document saying that it is an affidavit or statutory declaration when the document was not so sworn or declared, or swearing a document that they are without authority to administer the oath or declaration. This offence also prohibits the use or offer for use of such documents if the person offering the document knows that the writing was not properly sworn or declared.
It is not necessary to prove that the contents of such writings are false, only that it is not what it appears to be, namely a properly sworn or declared document.
Utilizing a false affidavit is a hybrid offence with a Crown election. This means that depending on the circumstances of your case the Crown can elect to proceed by indictment or summarily. If an accused is prosecuted by indictment, there is a Defence election of court under s. 536(2) of the Criminal Code.
Examples
Some examples of a false affidavit charge may include the following:
- A lawyer commissions an affidavit that has been previously signed by their client, where that client is not in the presence of the lawyer;
- A lawyer uses an affidavit in a court proceeding that they know was not sworn in front of the person writing the affidavit; and
- A person creates and swears an affidavit in front of someone who is not authorized to do so, such as somebody pretending to be a lawyer.
Defences
The defences available to a false affidavit charge are entirely dependent on the facts of your case.
Some defences to a false affidavit charge may include:
- The affidavit was properly commissioned in front of someone who is authorized to do so by law;
- The affidavit was commissioned remotely under Administering Oath or Declaration Remotely, O Reg 431/20; and
- The accused did not have the intent to commission the affidavit improperly.
Punishment
A false affidavit charge is a hybrid offence, which entails a maximum punishment as follows:
- Imprisonment for a term not exceeding 2 years.
Punishments for a false affidavit charge under s. 138 of the Criminal Code depends on whether the Crown elects to pursue the charge as an indictable offence or summarily. There are no mandatory minimum penalties for this offence. The maximum is no more than 2 years of incarceration if prosecuted by indictment. If prosecuted summarily, the maximum punishment is no more than 6 months of incarceration and/or a $5,000 fine.
Overview of the Offence
According to s.138 of the Criminal Code:
138 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than two years or is guilty of an offence punishable on summary conviction 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.
The Guilty Act (Actus Reus)
The actus reus for a false affidavit conviction under s.138 of the Criminal Code is established by proof, beyond a reasonable doubt, of the following:
- The deliberate act of signing, commissioning or using an affidavit when the affidavit was not, by law, sworn properly.
The Guilty Mind (Mens Rea)
The mens rea for a false affidavit conviction under s.138 of the Criminal Code is established by proof, beyond a reasonable doubt, of the following
- The accused had the intent to falsely sign or commission the affidavit.
Defences
How to Beat a False Affidavit Charge
Every case is different. The availability and strength of any defence depends entirely on the specific facts of your case. The strength of any available defence rests on the evidence against you and the precise details of the allegations. However, the following are some possible defences that may be used when fighting a making a false affidavit charge.
Factual Innocence: The Affidavit Was Properly Commissioned
The strongest defence against a false affidavit charge under s. 138 of the Criminal Code is that the affidavit was properly commissioned by someone who is authorized to do so by law. If you can show that the facts and the evidence support that the subject affidavit was signed while in the presence of a lawyer or notary public, you may have a strong defence that you were factually innocent.
Factual Innocence: Remote Declaration
On August 1, 2020, Administering Oath or Declaration Remotely, O Reg 431/20 came into force in Ontario. This regulation allowed for affidavits to be sworn electronically if the affiant and the commissioner are able to see, hear and communicate with each other.
If you have sworn an affidavit remotely, and not in the physical presence of the commissioner, you may have a defence to conviction under s. 138 of the Criminal Code. In your affidavit, you must include wording that indicates that you have sworn the affidavit under the regulation, as well as the location of both the affiant and the commissioner.
Honest but Mistaken Belief
If you can show that you had an honest, but mistaken, belief that the affidavit was commissioned properly, you may have a defence to conviction under s. 138 of the Criminal Code.
In R. v. Chow, a lawyer was wrong in concluding that a meeting with his client was sufficient to allow the lawyer to later commission an affidavit at his office. While the lawyer was mistaken, the court found that he held an honest but mistaken belief that this was a permissible method of swearing an affidavit. The court found that the accused lawyer did not have the requisite mens rea for the false affidavit charge, and his conviction was quashed.
Identity
Depending on the circumstances of your case, a possible defence to a false affidavit charge may be to raise an identity defence. In this case, for this defence to be raised successfully, you will have to prove that you were not the person who falsely signed or commissioned an affidavit.
Punishments
The Criminal Code provides for a possible maximum term of imprisonment of no more than 2 years for those convicted of a false affidavit charge.
Persons found guilty of a false affidavit charge are eligible for sentencing entailing a discharge, suspended sentence, stand-alone fine, custody, custody with a fine or probation or a conditional sentence order.
Beyond any immediate jail and/or probation sentence you receive, there is also a discretionary DNA Order.
This is authorized as a secondary offence listed under s. 487.04 (c), (d) or (e), and the DNA order can be authorized regardless of if the Crown proceeds summarily or by indictment.
Frequently Asked Questions
What are the consequences for lying on an affidavit?
Providing false information in an affidavit, in signing an affidavit that purports to be properly declared but is not, can result in the accused going to jail. If the Crown proceeds by indictment, a false affidavit charge carries a maximum sentence of no more than two years in jail. If the Crown proceeds summarily, the maximum jail sentence is 6 months. Therefore, there is a possibility that you can go to jail for a false affidavit charge.
What is an affidavit and what is its purpose?
An affidavit is a written statement that is confirmed by an oath or affirmation. Affidavits are typically used as a legal document, which will contain a sworn statement of facts relevant to a particular legal matter. The contents of an affidavit must be true, accurate and complete to the best efforts of the person swearing the affidavit’s knowledge and belief.
How do you write an affidavit?
When writing an affidavit, you should include a heading with reference to court or tribunal, the name of the matter, and a title which indicates that it is your affidavit.
You need to begin your affidavit by including your name, your relationship to the matter, along with the date and place you are swearing the affidavit. You then would write the ‘body’ of the affidavit, where you provide your knowledge of the facts in the matter. After the body, you should include a statement swearing that the contents of the affidavit are true to your best knowledge or belief.
Finally, you would sign the affidavit in the presence of someone who is, by law, able to commission an affidavit, such as a lawyer or notary public. The commissioners will also sign the affidavit to certify that the affidavit was sworn before them.
Published Decisions
Law Society of Alberta v Amantea, 2020 ABLS 14
A Calgary real estate lawyer was accused of signing and swearing affidavits of individuals when he had not witnessed the person making the affidavit sign it.
A client asked this lawyer whether he could sign and swear affidavits made by the client’s daughter. The plan was for the daughter to sign the affidavits, and then the client would bring the affidavits to the lawyer so that he could sign it. The lawyer agreed to this plan.
The Law Society of Alberta determined that there were reasonable and probable grounds to believe that the lawyer had committed a criminal offence under section 138(a) of the Criminal Code.
The lawyer was ultimately suspended by the Law Society for one month and made to pay over $10,000 in costs.
You can read the full decision here.
R v. Chow, 1978 CanLII 1809 (SK CA)
The accused in this case was a lawyer who was working on a real estate transaction. The lawyer met with his client in person, and asked his client whether he had witnessed the signing of certain transfer documents that were not present at the meeting. The client confirmed that he had seen the signings, so the lawyer went back to his office and commissioned the documents.
The court in this matter held that the lawyer incorrectly but honestly believed that his actions were permissible. For that reason, the appeal court found that he did not have the requisite mens rea for a false affidavit conviction.
You can read the full decision here.
R. v. Stevenson, 1980 CanLII 2930 (ON CA)
Two police sergeants were tasked with investigating the murder of a Toronto lawyer. They gathered evidence which led them to believe that a man and his wife were behind the murder. The two created an affidavit in the name of the man’s wife which said that the man had threatened the life of the deceased, as well as her own. The two sergeants attended the man’s home and utilized the affidavit to receive a confession from the man.
The court considered whether the police sergeants using the affidavit to gain a confession was considered using a false affidavit under section 138(b) of the Criminal Code. The court found that this was a “use” of a false affidavit under section 138(b), and this finding was upheld on appeal.
You can read the full decision here.
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Michael Oykhman
Managing Partner
Michael Oykhman is a senior lawyer and founder of Strategic Criminal Defence, a full-service criminal law firm with central law offices across Western Canada and Ontario.
My professional experience consists of countless court appearances and thousands of successful defences and satisfied clients. Over the last 10 years, I have worked to build a law office where all the lawyers share our collective experience, resources, and passion to help people. Our team approach to legal representation is client–rather than only law–centred. We look for opportunities to add value to our clients through strategic thinking and creative solutions.
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