R. v. Hébert, [1989] 1 S.C.R. 233

André Hébert Appellant

v.

Her Majesty The Queen Respondent

and between

Her Majesty The Queen Appellant

v.

André Hébert Respondent

Indexed as: R. v. Hébert

File Nos.: 20136, 20134.

1989: February 2; 1989: February 23.

Present: Lamer, Wilson, La Forest, L'Heureux-Dubé and Sopinka JJ.

On appeal from the Court of Appeal for Quebec

Criminal law -- Perjury -- Admission by accused that he deliberately lied while giving evidence -- Trial judge not allowing accused to complete evidence required to show no intent to mislead the court -- New trial ordered.

Criminal law -- Defence of compulsion -- Perjury -- Defence of compulsion not applicable to present circumstances -- Criminal Code, R.S.C. 1970, c. C-34, s. 17.

Appellant gave false evidence at a preliminary inquiry and was charged with perjury and obstructing justice. At trial, appellant admitted that he had deliberately lied but stated that he had no intent to mislead the court. He relied on s. 17 of the Criminal Code and alleged that he had given false evidence under compulsion by death threats made against him. The trial judge applied s. 17 and acquitted appellant on the charge of perjury. Appellant was also acquitted on the charge of obstructing justice. The Court of Appeal reversed the acquittal on the first count and affirmed the acquittal on the second. The Court found that s. 17 of the Code was not applicable in the case at bar since the threats, the risk of death and the offence were not concomitant. A death threat which a person can easily escape and can render unenforceable when giving evidence will not be a basis for invoking the excuse of compulsion provided for in s. 17. The Court also found that there was no reasonable doubt as to appellant's specific intent to mislead the court. Appellant appealed from his conviction for perjury and respondent cross‑appealed from the acquittal on the charge of obstructing justice.

Held: The appeals should be allowed and a new trial ordered.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1970, c. C-34, s. 17 [am. 1974-75-76, c. 105, s. 29; rep. & repl. 1980-81-82-83, c. 125, s. 4].

APPEALS from a judgment of the Quebec Court of Appeal (1986), 3 Q.A.C. 251, quashing the acquittal of the accused on a charge of perjury and affirming his acquittal on a charge of obstructing justice. Appeals allowed and new trial ordered.

Robert La Haye, for the appellant Hébert.

Daniel Brunet, for the Crown.

//The Court//

English version of the judgment delivered by

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.

Appeals allowed and new trial ordered.

Solicitors for the appellant Hébert: La Haye, Carbonneau, Chartrand & Dicaire, Montréal.

Solicitor for the Crown: Daniel Brunet, Montréal.