QUICK TAKEAWAY
Fabricating Evidence: Fabricating evidence is covered in Part IV of Offences Against the Administration of Law and Justice and, like any effort to subvert justice, is dealt with harshly by the courts. It is closely tied in with perjury, which is knowingly giving false evidence in a judicial proceeding while under oath with the intent of misleading a judge or a jury. If you fabricate any evidence that is to be used in a judicial proceeding with the intent to mislead you can be imprisoned for up to 14 years under s.137 of the Criminal Code of Canada. It should be noted there have been cases of fabricating evidence on both sides of a case with lawyers and police officers facing charges.
Table of Contents:
What is Fabricating Evidence?
Section 137 of the Criminal Code states that anyone who "with intent to mislead, fabricates anything with intent that it shall be used as evidence in a judicial proceeding" can face prosecution.
Fabricating evidence includes the act of creating false information in an attempt to sway the verdict of a court case. This could include anything that may be introduced as evidence in a judicial proceeding.
Fabricating evidence can occur as a way to avoid prosecution or in an attempt to falsely convict someone. This could include false police notes or reports. Perpetrators can be anyone sympathetic to either side of a case, such as a doctor who files an untrue medical report that supports an accused's testimony. The offence can occur in any court of law. If you submit fabricated financial reports during a divorce proceeding or a civil trial, for instance, you can face prosecution.
The offence is not limited to ongoing or pending trials. For example, a Nova Scotia man was arrested after he claimed he found child pornography on a computer that once to belonged to a woman. He had demanded money from the woman. Police said although there was no pornography found on the computer, the man had attempted to make it appear there was and he was charged with fabricating evidence and extortion.
Treated as an Indictable Offence
If you have been charged with fabricating evidence, the Crown prosecutor will proceed as an indictable offenceIndictable offences are more-serious criminal offences. Indictable offences are reserved for more serious crimes and they come with harsh sentences intended to act as a deterrent to would-be offenders. If you are convicted of fabricating evidence, you will likely be imprisoned.
What is Needed to Convict
For the Crown prosecutorLawyers who prosecutes charges on behalf of the Crown to win a conviction, the court must be satisfied beyond a reasonable doubtThe standard that must be exceeded to find someone guilty that you falsified information with the intention to deceive. One of the essential elements that must be proven is that you intentionally and/or knowingly committed the offence.
Penalties for Fabricating Evidence
Under the Criminal Code, anyone who fabricates evidence “by any means other than perjuryLying to court or police under oath or incitement to perjury is guilty of an indictable offence and liable to imprisonment for a term not exceeding 14 years.” Fabricating evidence is considered a miscarriage of justice, so courts will focus on denunciation and deterrence in sentencing. Among the aggravating factors a judge may consider is the effect of the evidence on the outcome of the trial and whether the evidence led to the implication of an innocent person.
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Alice Barton LL.B.
Tyler Macdonald, Criminal Defence Lawyer
Fleet Street Law
Ruby Shiller Enenajor DiGiuseppe, Barristers
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Cynthia Fromstein Barristers
Glossary of Legal Terms
Crown prosecutor
Lawyers who act for the federal, provincial and territorial governments and prosecute people accused of crimes on behalf of the Crown.
Indictable offence
Indictable offences are the most serious offences under the Criminal Code and they come with more serious punishments, up to a maximum penalty of life in prison.
Perjury
Lying to court or to police under oath or solemn affirmation, knowing the statement is false.
Reasonable doubt
The Supreme Court of Canada has said that reasonable doubt “falls much closer to absolute certainty than to proof on a balance of probabilities” and “that something less than absolute certainty is required, and that something more than probable guilt is required."
