Obstructing Justice (Offence)

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Obstructing Justice
s. 139(1) and (2) of the Crim. Code
Election / Plea
Crown Election Hybrid / Indictable
summary proceedings must initiate within 6 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-charge, or Judge
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)
Minimum None
Maximum six months jail and/or a $5,000 fine
Indictable Dispositions
Avail. Disp. same as summary
Minimum None
Maximum 2 or 10 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to obstructing justice are found in Part IV of the Criminal Code concerning "Offences Against the Administration of Law and Justice".

Pleadings

Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
s. 139(1) [obstructing justice, sureties] Hybrid Offence(s) Yes Yes, if Crown proceeds by Indictment
s. 139(2) [obstructing justice] Indictable Offence(s) N/A Yes

Offences under s. 139(1) are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Offences under s. 139(2) are straight indictable. There is a Defence election of Court under s. 536(2).

Release

Offence(s) Attendance Notice
Without Arrest

s. 496
Summons
Without Arrest
s. 497
Release By
Arresting Officer
On Attendance Notice
s. 497
Release By
Officer-in-Charge
On a Promise to Appear
Undertaking or Recognizance
s. 498
Release By
a Judge or Justice
on a PTA, Undertaking or Recog.

s. 515
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 139(1) OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 139(2) X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 139(1), the accused can be given an attendance notice without arrest under s. 496 or a summons. If arrested, he can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. He can also be released by a justice under s. 515.

When charged under s. 139(2), the accused cannot be released by police under s. 497 or 498 and so must be held in custody when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by an order of a judge or justice pursuant to s. 515. A youth will be subject to a maximum penalty of 3 years under s. 42(15) of the Youth Criminal Justice Act and so may be given an attendance notice or a summons without a s. 496 arrest, and if arrested, can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. The youth can also be released by an order of a judge or justice under s. 515.

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

A peace officer who charges a person under s. 139(1) or (2) of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans
For all offences there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offences under s. 139 are designated offences eligible for wiretap under s. 183.

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

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.

R.S., c. C-34, s. 127; R.S., c. 2(2nd Supp.), s. 3; 1972, c. 13, s. 8.


CCC

Proof of the Offence

Proving obstructing justice, sureties under s. 139(1)(a) or (b) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "wilfully attempts in any manner to obstruct, pervert or defeat the course of justice" by 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; and
  5. the act is done in a "judicial proceeding".

Proving obstructs, perverts or defeats justice under s. 139(2), (3) should include:

  1. the culprit attempts "to obstruct, pervert or defeat the course of justice";
  2. the prohibited conduct was in any manner other than described in s. 139(1);
  3. where judicial proceedings are existing or proposed, the obstruction will be deemed if the culprit:
    1. "dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence";
    2. "influences or attempts to influence by threats, bribes or other corrupt means a person in his conduct as a juror"; or
    3. "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."

Interpretation of the Offence

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]

The offence is made out even if the accused fails to succeed or fails to complete the attempt to commit the offence.[6]

It is no defence that the actions were an error in judgment or a mistake.[7]

However, it is a valid defence to do the act for some other purpose.[8]

Consuming alcohol post-accident in order to thwart and investigation into an impaired driving allegation has been found to amount to obstruction.[9]

It is no defence for the accused to attempt to persuade the witness to change his testimony to what the accused honestly believes is the truth.[10]

An attempt by a family member to persuade a suspect to not take a voluntary polygraph test or voluntary interview, without some form of coercion, is not an offence under s. 139(2).[11]

  1. R v Robinson, 2012 BCSC 430 (CanLII) at para 21
  2. R v Graham, (1985), 20 CCC (3d) 210 (Ont. C.A.) aff’d 1988 CanLII 94 (SCC), [1988] 1 SCR 214
  3. R v Spezzano, 1977 CanLII 1371 (ON CA), (1977), 34 CCC (2d) 87 (Ont. C.A.)
    R v Dosanjh, 2006 BCPC 449 (CanLII), [2006] BCJ 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 (CanLII) at para 5
    c.f. see R v Gunn, 1997 ABCA 35 (CanLII), (1997), 113 CCC (3d) 174
  5. R v Yazelle 2012 SKCA 91 (CanLII)
  6. R. v Hearn, 1989 CanLII 14 (SCC), [1989] 2 SCR 1180 (SCC)
  7. Watson, 2010 ONSC 6765 (CanLII) at para 17
  8. R v Hearn, (1989), 48 CCC (3d) 376 (Nfld. C.A.) aff’d 1989 CanLII 14 (SCC), [1989] 2 SCR 1180
  9. eg. R v Soltys, 1980 CanLII 332 (BC CA), (1980), 56 CCC (2d) 43 (BCCA)
    R v Magagna, 2003 CanLII 655 (ON CA), (2003), 173 CCC (3d) 188 (Ont. C.A.)
    R v Robinson
  10. R v Pare, 2010 ONCA 563 (CanLII)
  11. R v Gosselin et al., 2011 ONCJ 314 (CanLII)

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt
Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence

Maximum Penalties

Offence(s) Crown
Election
Maximum Penalty
s. 139(1) [obstructing justice, sureties] Summary Election six months jail and/or a $5,000 fine
s. 139(1) [obstructing justice, sureties] Indictment Election 2 years custody
s. 139(1) [obstructing justice] N/A 10 years custody


Offences under s. 139(1) are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration . If prosecuted by summary conviction, the maximum penalty is summary conviction .

Offences under s. 139(2) are straight indictable. The maximum penalty is 10 years incarceration .

Minimum Penalties
These offences have no mandatory minimum penalties.

Available Dispositions

Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 139(1) any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 139(2) N/A OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.

Principles

Ranges

see also: Obstructing Justice (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

Order Conviction Description
DNA Orders s. 139(2)

General Sentencing Orders

Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay and the minimum amounts are smaller (15%, $50, or $100).

General Forfeiture Orders

Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

See Also

References