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Consider the situation where a person commits perjury by falsely asserting a material fact in court that goes against your case.1

In Canada, could you sue the perjurer? Suppose you lost your job, ostensibly due to the accusation and trial. Could you sue the perjurer?

Consider further that the police failed to uncover inconsistencies that would have impugned the credibility of that witness.

In Canada, do police officers have a duty to investigate witnesses that the prosecution will use? Could you sue the police/state if they fail to uncover inconsistencies?

1. For example, some people think this might have happened in Jian Gomeshi's trial. (Adrian Humphreys. After the Ghomeshi verdict: Could his accusers be charged? How will it affect future sex assault cases?. The National Post. March 24, 2016)

  • Surely investigators have to investigate the credentials of the accusers before they prosecute? – Neil Meyer Apr 11 '16 at 17:37
  • I made a substantial edit to focus on what seem to be the legal questions you want answered. Did I understand/rephrase your questions properly? – user3851 Apr 11 '16 at 17:40
  • I'm sorry I'm not a hundred percent certain of the working of this site. Are you not allowed to cite real life examples? – Neil Meyer Apr 11 '16 at 17:40
  • you can, but they can sometimes distract from the actual legal question that you want answered. In your case, the specific real life example was causing you to make assumptions about how people would act, and that made your question confusing and seemingly based on flawed assumptions. I hope that I captured the underlying legal questions that you had. – user3851 Apr 11 '16 at 17:42
  • OK I would just like to have the Ghomeshi case mentioned. Also the fact that had a penchant for Howard Stern like controversies on his radio shows may make his case for a vendetta easier. – Neil Meyer Apr 11 '16 at 17:54
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Canada has inherited the English common law, which allows you to sue for damages if a tort has been committed. I will focus on that, without considering the various other legal consequences of a wrongful prosecution (eg. criminal perjury charges, disciplinary action against police or prosecutors, ex gratia payments, or statutory remedies in Canadian legislation).

At common law, you can't sue a witness for giving false evidence. Witnesses are are immune from civil liability for anything that they say in court, because otherwise the threat of litigation might deter them from giving truthful evidence. The rule was discussed by the Nova Scotia Court of Appeal in Elliott v Insurance Crime Prevention Bureau [2005] NSCA 115. Cromwell JA said [117]:

The immunity, of course, does not exist to protect wrongdoers, but it will sometimes do so. For the immunity to be effective, witnesses must be protected from all law suits, not only unmeritorious ones. This protection of witnesses from the risk of suit is seen as more important than righting a wrong in a particular case. Moreover, to achieve its objective, the immunity must be clear: People must know in advance whether they are protected or not ... The immunity, therefore, is a blunt instrument, barring all claims in the interests of the broader administration of justice.

As far as common law doctrines go, though, this area is a little unsettled: the Supreme Court of the United Kingdom limited the immunity for expert witnesses in Jones v Kaney [2011] UKSC 13; [2011] 2 AC 398, departing from centuries of authority. But Jones v Kaney has not yet been adopted in Canada. See Walker v John Doe [2014] BCSC 830.

Against a police officer or prosecutor, the ancient tort of malicious prosecution remains available in Canada. See Miazga v Kvello Estate [2009] 3 SCR 339. However, unfortunately for wrongly-prosecuted persons, it is difficult to establish because the plaintiff must prove that the prosecution was:

  1. initiated by the defendant;
  2. terminated in favour of the plaintiff;
  3. undertaken without reasonable and probable cause; and
  4. motivated by malice or a primary purpose other than that of carrying the law into effect.

In Miazga, the Supreme Court of Canada set aside a judgment for the plaintiff in a malicious prosecution action which had been affirmed by the Court of Appeal. The Supreme Court held that the courts below, having concluded that the prosecution was undertaken without reasonable cause, were wrong to conclude that the fourth element of malice had been established.

2

In Canada, could you sue that person?

No. Perjury is a crime but unlike most crimes there is no corresponding civil tort under which you can seek damages.

the police failed to uncover inconsistencies that would have impugned the credibility of that witness

This is not the job of the police. A criminal trial is conducted between the prosecution (plaintiff in a civil trial) and the defence.

The prosecution do not want their witnesses to commit perjury because a) they are officers of the court and it is their job (theoretically) to make sure the right person is convicted and that they have proved their guilt and b) if a witness lies and is caught it can destroy any chance of a conviction or give rise to an appeal.

It is the defence's job to attack the credibility of the prosecution's witness. Catching them in a lie is an awesome way to do this. Due to the rules of discovery the defence knows who the prosecution's witnesses are and, in general terms, what their evidence is. If they take the stand and contradict what they said in their prior statements it is the defence's job to challenge them on this.

do police officers have a duty to investigate witnesses that the prosecution will use? Could you sue the police/state if they fail to uncover inconsistencies?

No and no. That said, the police and prosecutors must be satisfied that they have sufficient evidence that a conviction is a possibility.

  • The problem I have here is I cannot believe that the police of Canada, with all the resources available to it cannot uncover the emails that the defence did. Surely the police must at least ask the people they accuse if there is any reason for them to not believe the witness. – Neil Meyer Apr 12 '16 at 7:04
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    @NeilMeyer Why do you think there is an expectation to do so? They provide what they discover. Also, the defence is not required to provide the evidence they have to the Crown, but the Crown is required to provide the evidence they have to the defence. – Zizouz212 Apr 12 '16 at 11:42
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Hmm... your question is confusing, but there are a few misunderstandings I'd like to first address:

  1. You can't sue over criminal matters

    You can only sue for damages generally. If you got hurt due to the action of someone else, then you can sue them for damages. Example: a dog owner let's his dog free in a park without a leash, and the dog knocks you over, breaking your knee.

  2. Consider further that the police failed to uncover inconsistencies that would have impugned the credibility of that witness.

    Ummm... Not sure if I understand correctly. The police will investigate over crimes, and "breaches" of the law. They will not investigate a person, only to submit something similar to a "credibility" report. If I have a criminal record, will my testimony in court be worthless? If I'm a CEO of an organization, will my testimony automatically have more credibility?

    The answer is no. All persons in a courtroom are under oath. They are expected to tell the truth, and nothing but the truth.

  3. In Canada, do police officers have a duty to investigate witnesses that the prosecution will use? Could you sue the police/state if they fail to uncover inconsistencies?

    In Canada, the police have no duty to investigate witnesses that the Crown will call. It is simply not their responsibility.

    In a court room, inconsistencies can be surfaced through impeachment of the witness - that is, if an inconsistency is found, you then make note of this to the court. Here's an example:

    Witness: I wouldn't say I was annoyed. I was fine.
    Examining Lawyer: You were fine?
    Witness: Yes.
    Examining Lawyer: Sir, you remember making a sworn statement to the police after the incident?
    Witness: Yes.
    *Examining Lawyer: I'm reading your statement from paragraph 6: "When he pushed me, I was so upset. I was in a rage."

    This duty ultimately falls with the examining lawyer in the courtroom. If they fail to point out inconsistencies, you can't sue the state.

Since you appear to be interested in the R vs Ghomeshi case, there's a few things in which to make note.

  • Perjury requires a deliberate intent to mislead.

    Therefore, you have to mislead the court with the evidence or the testimony that you introduce. Inconsistencies aren't necessarily deliberate, since they generally pertain to the credibility, or reliability of the witness. It does not always reveal an intent to mislead.

  • Could the accusers be charged?

    Of course they could. But it's the Crown's discretion to prosecute. They don't have to.

  • The man lost his job over this trail. Would that not count as damages? – Neil Meyer Apr 12 '16 at 7:00
  • @NeilMeyer You can sue for defamation, but I doubt that they will let you use a lot of that testimony - there are tons of rules which may disallow it, and then add on top of that things such as publication bans. He would sue the witness, not the court, or the Crown. – Zizouz212 Apr 12 '16 at 20:29

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