Perjury is a criminal offence. It is a very serious offence. It has the potential to impact on the search for the truth in a criminal trial. When detected it should be denounced and deterred in the most unequivocal terms. Sadly, it occurs. Indeed, it occurs everyday in courts across Canada. Often it is accused who lie. Undoubtedly, it has happened that an officer has lied.
In a recent article - Police who lie: How officers thwart justice with false testimony - the Toronto Star alleged, however, that thier "nationwide" investigation showed that "judges are frequently finding that police officers lie under oath".
The article further asserts:
The majority of the cases reviewed by the Star involve police officers who, out of laziness, overzealousness or poor training, violated laws that protect suspects from abuses of police power, found damning evidence and then lied to cover up their flawed investigations.
The Star attributes these conclusions to their research which searched "court judgment databases to located cases since 2005 where judges found officers misled the court". This research turned up "100-plus cases, from Victoria to the Northwest Territories to Halifax" and involved "120 officers denounced by judges for outright lying, misleading or fabricating evidence".
The Toronto Police Service wrote a stern response to this article.
While one might be tempted to applaud the Star for highlighting a serious issue, upon closer review it is evident that their article is without merit and overstated. It is far from compelling and appears based on a fundamental misunderstanding of the system. A couple of points will highlight the article's shortcomings.
First, the stats. The Star reports 100-plus cases where officers were found to be lying by the court. This stat is apparently based on a review of cases over the past 7 years across Canada. A modest estimate of the number of criminal cases in Canada over that time would be 200,000. The 100-plus cases is less than 1/10 of a percent of the criminal cases over that time. While even one case where an officer has lied in court is troubling, it is far from establishing that the courts are "frequently" finding officers to be lying.
Second, the "findings". The findings that officers are lying are based on findings made by judges in criminal proceedings. There are two important points that must be understood in order to appreciate what these findings actually mean. First, depending on the nature of the proceeding the "finding" that an officer was, for example, "evasive" - as noted by the Star - is far from a "finding" that the officer lied. In a criminal trial, for example, the onus is on the Crown to prove an offence beyond a reasonable doubt. Even if the court did not believe an accused's version of events, if it found that his version of events was reasonably capable of belief it must acquit. Accordingly, an acquittal based on an officer being "evasive" in this context of reasonable doubt, is not a "finding" that an officer lied. In a different context - for example a Charter motion - the onus will be, generally, on the accused on a balance of probabilities. Accordingly, even if a court accepted an accused's version over that of an officer, it is only a finding on a balance of probabilities and not a conclusive finding that the officer has lied. Second, and more importantly, judges are sometimes wrong. As pointed out in the letter from the Toronto Police, sometimes these judges - who find officers have lied - are overturned on appeal. The letter cites the case of R v Ebanks, 2009 ONCA 851, as one such example.
Perjury is serious. It has the potential to thwart the truth finding function of the criminal justice system. The reality, however, is that it happens everyday across Canada. Often it is an accused. Undoubtedly officers have perjured themselves. The Star's article, however, offers little real insight into this issue.