Canadian Criminal Law/Offences/Obstructing Justice

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Obstructing Justice
s. 139 of the Crim. Code
Election / Plea
Crown Election Hybrid
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Maximum 6 months jail or $5,000 fine
Indictable Dispositions
Avail. Disp. same as summary
Maximum 2 years jail
References
Offence Elements
Sentence Principles
Sentence Digests

Legislation[edit]

Obstructing justice
139. (1) Every one who wilfully attempts in any manner to obstruct, pervert or defeat the course of justice in a judicial proceeding,

(a) by indemnifying or agreeing to indemnify a surety, in any way and either in whole or in part, or
(b) where he is a surety, by accepting or agreeing to accept a fee or any form of indemnity whether in whole or in part from or in respect of a person who is released or is to be released from custody,

is guilty of

(c) an indictable offence and is liable to imprisonment for a term not exceeding two years, or
(d) an offence punishable on summary conviction.

Idem
(2) Every one who wilfully attempts in any manner other than a manner described in subsection (1) to obstruct, pervert or defeat the course of justice is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Idem
(3) Without restricting the generality of subsection (2), every one shall be deemed wilfully to attempt to obstruct, pervert or defeat the course of justice who in a judicial proceeding, existing or proposed,

(a) dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence;
(b) influences or attempts to influence by threats, bribes or other corrupt means a person in his conduct as a juror; or
(c) accepts or obtains, agrees to accept or attempts to obtain a bribe or other corrupt consideration to abstain from giving evidence, or to do or to refrain from doing anything as a juror.

CCC

Proof of the Offence[edit]

s. 139(1) - sureties

  1. identity of accused
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the accused either:
    1. "indemnif[ies] or agree[s] to indemnify a surety" in any way or
    2. "accept[s] or agree[s] to accept a fee or any form of indemnity" of a person released or to be released from custody
  5. the accused "wilfully attempts in any manner to obstruct, pervert or defeat the course of justice"
  6. the act is done in a "judicial proceeding"


s. 139(3) - obstructs, perverts or defeats

  1. identity of accused
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. there was an ongoing proceeding
  5. the accused did any act other than acts contemplated by s. 139(1), that has the risk of obstructing, perverting or defeating the course of justice (e.g. directly giving false evidence, or indirectly by threats or bribe)
  6. the accused intentionally did the act
  7. the accused knew or was wilfully blind to the consequence of his act in creating the risk

Interpretation[edit]

The actus reus of the offence of obstructing justice under s. 139 is the “act that has the tendency to defeat or obstruct the course of justice”.[1]

The accused need only have only creates a risk that an injustice will occur.[2]

The acts include an attempt to affect a police investigation[3]

The mens rea of s. 139 requires a specific intent to do the act which would result in an obstruction of justice.[4] It is not enough to merely prove an intention to do the act resulting in the obstruction without the intent to do so.[5]

It is no defence that the actions were an error in judgment or a mistake.[6]

However, it is a valid defence to do the act for some other purpose.[7]

Consuming alcohol post-accident in order to thrwart and investigation into an impaired driving allegation has been found to amount to obstruction.[8]

See also: R. v. Hearn, 1989 Carswell Nfld 99 (Nfld. C.A.) 1989 CanLII 266; R. v. Reynolds, 2011 Carswell Ont. 6911 (ONCA)2010 ONCA 576

  1. R. v. Robinson, 2012 BCSC 430 at 21
  2. R. v. Graham, (1985), 20 C.C.C. (3d) 210 (Ont. C.A.) aff’d 1988 CanLII 94 (SCC), [1988] 1 S.C.R. 214
  3. R. v. Spezzano (1977), 34 C.C.C. (2d) 87 (Ont. C.A.); R. v. Dosanjh, 2006 BCPC 449 (CanLII), [2006] B.C.J. No. 2637 at para. 59; R. v. Watson, 2010 ONSC 6765 (CanLII), [2010] O.J. No. 5341 at para. 15
  4. R. v. Hawkins, 2002 BCCA 3 at para. 5
  5. R. v. Yazelle 2012 SKCA 91 (CanLII)
  6. Watson 2010 ONSC 6765 at 17
  7. R. v. Hearn, (1989), 48 C.C.C. (3d) 376 (Nfld. C.A.) aff’d 1989 CanLII 14 (SCC), [1989] 2 S.C.R. 1180
  8. eg. R. v. Soltys 1980 CanLII 332 (BC CA), (1980), 56 C.C.C. (2d) 43 (B.C.C.A.)
    R. v. Magagna 2003 CanLII 655 (ON CA), (2003), 173 C.C.C. (3d) 188 (Ont. C.A.)
    R. v. Robinson, 2012 BCSC 430