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Achieving-Justice

Jail for lying in court

Is lying really an important milestone in childhood development? If so, we come by it honestly!

It’s certainly common among adults, ranging from little white ones up to real doozers.

It is difficult to catch someone in a lie. And consequences are usually minimal.

Our justice system relies on the honest testimony of witnesses. If lying is just as easy in the courtroom, and void of consequences, our justice system would be in shambles.

There are procedures that make lying much more difficult in a courtroom, cross-examination being one.

But a good liar, weaving their story around known facts, can go undetected. To dissuade those who thing they might get away with dishonesty in the courtroom, we have made lying under oath a criminal offence. And the courts apply suitably severe sentences.

The case of R. v. Chima, 1994 CarswellAlta 480, is an example. It was a landlord/tenant dispute.

Part of the dispute had to do with damaged linoleum. The landlord, Mr. Chima, presented an estimate of $2,763.81 for linoleum replacement. When specifically questioned about whether or not he had paid to have the linoleum replaced, he testified that he had, which was a lie.

It was a ridiculous thing to lie about. Whether or not he had actually followed through with replacing the linoleum was unlikely to have had an impact on the outcome of the case. The sentencing judge noted “…one must fairly conclude that there is no evidence that the accused benefited from his crime.”

Mr. Chima had no criminal record.

With no criminal record and an inconsequential lie, you might have expected Mr. Chima to face a “slap on the wrist.”

The judge in Chima quoted from two previous cases where perjury was committed in the context of criminal prosecutions.

From one: “Perjury is under ordinary circumstances a most serious offence. It undermines the very cornerstone of the administration of justice in our courts.”

And from another: “Perjured testimony strikes at the very heart of the judicial system. The court has always taken a most serious view of such offences and lengthy sentences are the usual course.”

The judge considered whether the crime was less serious because it arose in a civil rather than a criminal trial. He concluded that it was not: “The commission of perjury, whether in a civil or criminal case, visits the same type of damage on the judicial system. The system is absolutely dependent upon the honest evidence of those testifying under oath or affirmation.”

Mr. Chima was sentenced to 12 months in jail.

Perjury is treated just as seriously in pre-trial proceedings.

In R. v. Foster, 1982 CarswellSask 186, a chief executive officer lied during an examination for discovery in a wrongful dismissal lawsuit and was sentenced to eight months imprisonment.

And in R v. Lukasik, 1982 CarswellAlta 184, a 30-year-old mother of four was sentenced to 9 months in prison for making false accusations of attempted rape against an innocent party during an preliminary hearing.

If you are ever called on to testify as a witness in a court proceeding, please take your oath (or solemn affirmation) seriously. Justice depends on it. And you face very serious consequences if you give perjured testimony.



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You can't escape court

You can run. You can hide. But if your witness testimony is required to meet the ends of justice, you cannot escape the courtroom.

I’ve issued subpoenas to many witnesses, but had never encountered a witness who evaded service.

My client was in a classic “he said she said” nightmare about what happened in a collision between herself, on a bicycle, and a motorist.

The motorist had given the true version of events to an ICBC adjuster (who has since retired) shortly after the collision. I knew that because of notes of that discussion within the ICBC file materials.

That version of events changed over time. He was elderly, and the shifting story can be explained by his deteriorating memory.

The ICBC file notes were not enough. I needed that former adjuster to attend the trial and tell the court what the motorist had said.

He had agreed to talk to me by telephone. And he impressed me as someone for whom justice was important. I did not expect difficulty getting him to attend the trial.

But when the process server showed up at his home to serve the subpoena, he ran and hid.

He ran from the back porch to the garage, locked the door and did not answer when the process server called out to him.

Later, he ran back to the house with a ball cap covering his face. The process server could see through a window that he had entered the laundry room, shut off the light and then crawled across the floor to avoid being seen.

What a turkey!

He probably didn’t know that if a witness is evading service, the court will allow service in a different way. I obtained an order allowing service by taping the subpoena to the front door of the residence.

But he didn’t show up to the trial as directed by the subpoena.

He also might not have known that failing to attend as directed by a subpoena can come with consequences. I was left with no alternative but to request a warrant to be issued for his arrest.

The happy ending to this story is that the ICBC defence lawyer agreed to admit the key evidence I needed from that witness so the warrant became unnecessary.

Witnesses are absolutely critical to justice, which is why we have procedures that will go to the extreme of arresting an important witness and bringing them before the court to testify.

That extreme end of the process is rarely necessary in a personal injury trial.

And if an important witness is arrested, spends a bit of time in jail awaiting processing and is hauled into court to give evidence, how helpful to do think that witness might want to be? They might feel inclined to be dishonest in the witness box as a punishment for forcing them to be there.

Dishonesty in the witness box is a criminal offence. An offence that comes with consequences that go far beyond a slap on the wrist.

Next week, I will provide examples of sentencing decisions where witnesses have lied under oath.



Road recipe for disaster

This is the last of a three-part series about blind hazards arising when traffic in lanes to your left comes to a stop.

It’s a road recipe for disaster because other road users might try to cross in front of (or between) the stopped vehicles and your vision is likely blocked by those stopped vehicles.

You, and the other road users, are on a blind collision course.

You might well have “right of way,” but your roadway rights are always tempered by the obligation to exercise caution in dangerous circumstances.

And then there’s section 158(2)(a) of the Motor Vehicle Act, which provides that “…a driver of a vehicle must not cause the vehicle to overtake and pass another vehicle on the right when the movement cannot be made safely”.

I am going to provide you with three examples of how courts have assessed degrees of fault when these hazardous circumstances have led to collisions.

In Zaborniak v. Smerdal, 2014 BCSC 1367, a driver had moved into the right of two lanes to pass a bus that had stopped at an intersection to turn left. The passing vehicle had cautiously slowed to 20-30 km/h, but was still assessed 40 percent at fault for colliding with an oncoming left-turning vehicle:

“The fact that the plaintiff was driving below the speed limit did not make it safe to overtake and pass the bus. The plaintiff’s assumption that any left turning traffic would observe the rules of the road does not relieve her of responsibility. On approaching an intersection, such as the congested intersection at 177B Street and 56A Avenue, a driver must be able to see it fully in order to proceed safely into it.”

In Kirby v. Loubert, 2018 BCSC 498, Mr. Kirby faced a green light as he approached an intersection in the curb lane when the two lanes beside him were at a stop. His vehicle collided with an oncoming left-turning vehicle. Even though he faced a green light, Mr. Kirby was still assessed 25 percent at fault:

“Given that traffic in the two lanes to his left was at a standstill, blocking his view of anything in the intersection, I find that reasonable care required him to move past that stopped traffic into the intersection with caution, reducing his speed below the speed limit. Had he done so, I find it probable that he would have been able to come to a stop, albeit a sudden one, before colliding with the defendant's SUV. Instead, he proceeded at full speed.”

And finally, there is a Court of Appeal decision in Fabellorin v. Peterson, 1994 CarswellBC 278. A curb-lane driver was assessed two-thirds at fault for colliding with a jaywalking pedestrian. Traffic in the next two lanes had stopped to allow the nanny with a three-year-old in hand to cross. The court had this to say:

“Section 160 (now section 158) imposes a heavy onus on the driver of a vehicle attempting to pass other vehicles on the right. More especially is this so when the vehicles ahead have stopped or slowed on the roadway other than at an intersection or a crosswalk when there is no apparent reason for their doing so. The very fact that they have done so should alert the driver of the overtaking vehicle, intending to pass, that there must be some reason for the drivers ahead of him to have acted as they did and this should have alerted the overtaking driver to exercise extra caution to ensure that he or she can pass on the right safely.”

Each of these collisions would have been avoided if each road user had exercised appropriate caution in these dangerous circumstances that arise all the time on our roadways. Please use this column trilogy as a topic of discussion with those close to you and contribute to being a road safety solution.





Did you cause that accident?

You’re cruising up the curb lane. Traffic next to you comes to a stop. Do you smile as you sail past or immediately go on high alert?

Stopped traffic in a lane next to you can both create and conceal a hazard.

The potential hazard is another road user seizing the opportunity to cross in front of that stopped traffic. And to continue into your lane directly in front of your vehicle.

Your view of that other road user, and their vision of you, is likely blocked by the stopped traffic.

But you’re not facing a stop sign or a red light. Isn’t it up to that other road user to ensure it’s safe before entering your lane?

Driving with the attitude that right of way is the be all and end all is the anti-thesis of defensive driving. And does not measure up to the legal duties we owe other road users.

The case of Lutley v. Southern, 2011 BCCA 299, illustrates that point.

Ms. Lutley had been cruising along the curb lane on Oak Street, a six-lane thoroughfare in Vancouver.

Ms. Southern came up a side street from Ms. Lutley’s left side and faced a stop sign.

Oak Street traffic faces a flashing green light at that intersection. Pedestrians can push a button to change it to red to allow them to cross.

A pedestrian did just that. And five lanes of Oak Street traffic stopped. There was no one in the sixth, curb lane.

Ms. Southern arrived at the intersection around the same time as the light changed back to flashing green. But she took advantage of the still stopped traffic to cross Oak Street as well.

Those who had stopped for the pedestrian kindly waited for Ms. Southern to make it across.

The light had already been flashing green for a few seconds as Ms. Lutley approached the intersection in the curb lane.

Ms. Southern’s vehicle just about made it. The front passenger side bumper of Ms. Lutley’s vehicle collided with the rear passenger side of Ms. Southern’s vehicle.

Appeals are heard by a panel of either three or five judges. This appeal was heard by three.

Mr. Justice Chiasson did a careful (and very interesting) analysis of rights of way and concluded that Ms. Southern (the one facing the stop sign) actually had the right of way over Ms. Lutley.

But because Ms. Southern failed to exercise sufficient caution entering the open curb lane she was tagged with 15% liability:

“A dominant driver passing through an intersection who is confronted with a new risk, a seemingly empty curb lane the view of which is obstructed – must proceed with some caution."

But Mr. Justice Donald writing for the two judge majority found the two drivers roughly equally at fault, with this commentary on right of way:

“[55]  Both drivers proceeded in the intersection at lane six without knowing whether it was safe to do so. Neither could see the approach of the other. They were both careless in causing the accident.

["56]  With all due respect for the contrary view, I do not think the apportionment of fault in this case depends on the statutory provisions governing the right of way. Each party can assert a right of way but, on the facts, neither exercised the common law duty of care in a situation requiring caution.

Bottom line: exercise caution regardless of whether or not you think you have right of way.



More Achieving Justice articles

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About the Author

Paul Hergott began practicing law in 1995, in a general litigation practice. Of the various areas of litigation, he became most drawn to, and passionate about, pursuing fair compensation for injured victims. This gradually became his exclusive area of practice.

In 2007, Paul opened Hergott Law, a boutique personal injury law firm in the Central Interior, serving personal injury clients from all over British Columbia. Paul’s practice is restricted to acting only for the injured victim, never for ICBC or for other insurance companies.

Paul became a weekly newspaper columnist in January of 2007, when his first column entitled “It’s not about screwing the Insurance Company” was published. 

Please feel free to email or call Paul (1.855.437.4688) with legal issues you might like him to write about in his column, or to offer your feedback about something he has written.

Email:   [email protected]
Firm website:  www.hlaw.ca
Achieving Justice Legal Blog:  http://www.hlaw.ca/category/all-columns/
One Crash is Too Many Road Safety Campaign: www.onecrashistoomany.com
Google Plus:  https://plus.google.com/+HlawCanada/posts
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Twitter:   twitter.com/Hergott_Law



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The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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