section 138

INTRODUCTION AND BRIEF DESCRIPTION

This section deals with false affidavits or statutory declarations and imposes a penalty of up to two years imprisonment.

SECTION WORDING

138 Every one 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, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

EXPLANATION

Section 138 of the Criminal Code of Canada deals with the offence of making or using a false affidavit or statutory declaration. An affidavit is a written statement made under oath, while a statutory declaration is also a written statement but not necessarily made under oath. This offence can be committed in three ways: by signing 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; by using or offering 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 by signing as the 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. This offence is considered serious and is punishable by imprisonment for a term not exceeding two years. The section aims to ensure the integrity of legal processes by deterring individuals from making or using false statements under oath. It is also intended to protect against the risk of false or misleading evidence being presented in court or used in other legal proceedings. Overall, section 138 of the Criminal Code of Canada is an important provision that preserves the integrity of the legal system and upholds the principle of accountability before the law.

COMMENTARY

Section 138 of the Canadian Criminal Code criminalizes the act of falsely swearing an affidavit or statutory declaration. This is an important provision aimed at maintaining the integrity of the legal system and ensuring that legal documents are accurate and truthful. The section also serves to deter individuals from committing perjury, which can have serious consequences for the administration of justice. Subsection (a) of section 138 criminalizes the act of signing a writing that purports to be an affidavit or statutory declaration that was not actually sworn before the person who signed it. In other words, if someone signs a document that is meant to be a legal statement made under oath, but did not actually witness the affiant make that statement under oath, that person has committed an indictable offense. This provision aims to prevent individuals from pretending to take oaths or declarations in order to lend authenticity to a written statement where there is actually none. Subsection (b) is concerned with individuals who use or offer for use a writing that they know was not properly sworn or declared, or did not derive from an authorized person. This offense is similar to the one covered in subsection (a), with the key difference being who has committed the offense. In this case, the focus is on individuals who might be seeking to introduce an affidavit or statutory declaration into court that they know to be false or inaccurate. Finally, subsection (c) focuses on an individual who signs a writing that purports to be an affidavit or statutory declaration that was not actually sworn or declared by that individual. This offense is aimed at individuals who might falsely represent themselves as having made a statement under oath when they haven't. This could occur when someone claims to have been present at the swearing-in of a statement, but in fact, was not sworn in themselves. Overall, section 138 is an important provision in the Criminal Code of Canada aimed at ensuring that legal documents are truthful and accurate. False swearing of an affidavit or statutory declaration can undermine the integrity of the legal system, and this provision serves to deter and punish such behavior. The provision carries a maximum sentence of two years' imprisonment if an individual is convicted of the offense, making it clear that the Canadian legal system takes these offenses seriously. In conclusion, section 138 of the Criminal Code of Canada is an essential provision that aims to ensure the reliability and integrity of affidavits and statutory declarations. By discouraging false swearing and perjury, the provision serves the broader goal of preserving the fairness and legitimacy of the Canadian legal system, and ultimately helps to maintain trust in our judicial institutions.

STRATEGY

Section 138 of the Criminal Code of Canada outlines offences related to the signing or use of false affidavits or statutory declarations. These documents are often used as evidence in legal proceedings, and their falsification can be a serious crime. When dealing with this section of the Criminal Code, there are several strategic considerations that should be taken into account. First, it is important to understand the nature of the offence. Section 138 sets out three different types of offences, each with its own requirements and elements of proof. Offences under (a) and (c) involve signing a false affidavit or statutory declaration, while (b) involves using or offering to use such a document. In each case, the accused must have knowledge of the falsity of the document or lack of authority to administer an oath. The penalties for offences under Section 138 can be significant, with a maximum sentence of two years imprisonment for an indictable offence. Additionally, a conviction for this offence can have serious consequences for a person's reputation and future career prospects. As such, it is important to consider carefully any potential exposure to liability under this section and take steps to mitigate risk. One key strategy is to ensure that all affidavits and statutory declarations are properly prepared and executed. This may involve seeking legal advice or assistance from professionals with experience in this area. Proper preparation and execution can help to ensure that the documents are accurate and admissible, and can help to avoid accusations of falsification or misuse. Another strategy is to maintain accurate records of all affidavits and statutory declarations that are signed or used. This can help to provide evidence of the authenticity of the documents and can be used to refute any accusations of falsification or misuse. It is also important to ensure that all records are maintained in a secure and organized manner, in order to prevent loss or tampering. When dealing with Section 138 of the Criminal Code, it is also important to understand the potential sources of liability. Liability can arise not only from signing or using false documents, but also from failing to take appropriate steps to prevent others from doing so. As such, it may be important to implement appropriate policies and procedures to ensure that all personnel are aware of the risks and take appropriate steps to mitigate them. Finally, it may be helpful to seek legal advice in cases where there is uncertainty or ambiguity regarding the requirements of Section 138. Consultation with legal professionals can help to clarify obligations and provide guidance on best practices for compliance. This can help to mitigate risk and ensure that all necessary precautions are taken to protect against liability.