Obstructing Justice (Offence): Difference between revisions

Obstructing Justice
	s. 139(1) and (2) of the Crim. Code
Election / Plea
Crown Election	Hybrid / Indictable; summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction	Prov. Court; Sup. Court w/ Jury (); Sup. Court w/ Judge-alone (); * Must be indictable.
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	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable Dispositions
Avail. Disp.	same as summary
Minimum	None
Maximum	2 or 10 years incarceration
Reference
	Offence Elements; Sentence Digests;

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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)	Preliminary Inquiry
s. 139(1) [obstructing justice relating to sureties] s. 139(2) [obstructing justice]	Hybrid Offence(s)		(* only if Crown proceeds by Indictment)	(under 14 years max)

Offences under s. 139(1) [obstructing justice relating to sureties] or s. 139(2) [obstructing justice] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Release

Offence(s)	Appearance Notice by Peace Officer s. 497	Summons by Judge or Justice s. 508(1), 512(1), or 788	Release by Peace Officer on Undertaking s. 498, 499, and 501	Release By a Judge or Justice on a Release Order s. 515 to 519	Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act
s. 139(1) [obstructing justice relating to sureties] s. 139(2) [obstructing justice]

When charged under s. 139(1) [obstructing justice relating to sureties] or 139(2) [obstructing justice] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

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 weapon, being 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)).

And, regardless of Crown election, if the offence alleged was one:

where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));

Fingerprints and Photos

A peace officer who charges a person under s. 139(1) [obstructing justice relating to sureties] or (2) [obstructing justice] 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 criminal or regulatory prosecutions, 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

Offence(s)	Wiretap Eligible s. 183	Dangerous Offender Designated Offence s. 752	Serious Personal Injury Offence s. 752	AG Consent Required	Serious Criminality Offence s. 36 IRPA
s. 139(1) [obstructing justice relating to sureties]
s. 139(2) [obstructing justice]

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 person who intentionally attempts in any manner other than a manner described in subsection (1) [obstructing justice – re surety] to obstruct, pervert or defeat the course of justice is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or

(b) an offence punishable on summary conviction.

Idem

(3) Without restricting the generality of subsection (2) [obstructing justice – other conduct], 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., 1985, c. C-46, s. 139; 2019, c. 25, s. 43.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 139 (1), (2) and (3)

Draft Form of Charges

See also: Draft Form of Charges

		Pre-ambles
		"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section	Subject of Offence	Draft Wording
139(1)	indemnifying a surety	"..., did wilfully attempt to obstruct, pervert or defeat the course of justice in a judicial proceeding, by indemnifying or agreeing to indemnify [name of surety], a surety, to wit: [conduct], contrary to section 139(1) of the Criminal Code.
139(1)	surety accepting a fee	"..., being a surety, did accept or agree to accept a fee or indemnity from or in respect of [name of accused], a person who is released or is to be released from custody, contrary to section 139(1) of the Criminal Code.

Proof of the Offence

Proving obstructing justice, sureties under s. 139(1)(a) or (b) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit "wilfully attempts in any manner to obstruct, pervert or defeat the course of justice" by either: ☐ "indemnif[ies] or agree[s] to indemnify a surety" in any way; or ☐ "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 ☐ the act is done in a "judicial proceeding".	Proving obstructs, perverts or defeats justice under s. 139(2), (3) should include: ☐ the culprit attempts "to obstruct, pervert or defeat the course of justice"; ☐ the prohibited conduct was in any manner other than described in s. 139(1); ☐ where judicial proceedings are existing or proposed, the obstruction will be deemed if the culprit: ☐ "dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence"; ☐ "influences or attempts to influence by threats, bribes or other corrupt means a person in his conduct as a juror"; or ☐ "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 course of justice"

The meaning of the phrase "course of justice" includes conduct during the initial "investigative stage" into criminal and regulatory matters.^[1]

The "course of justice" will include proposed or contemplated judicial proceedings.^[2]

"judicial proceedings"

The types of proceedings are those that are before a decision-making body whose authority is "derived from statute", and is required to act "in a judicial manner."^[3]

It will include:

all proceedings as defined in s. 118;^[4]
law society disciplinary proceedings^[5]
parole board proceedings^[6]

Conduct

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”.^[7]

The acts include an attempt to affect a police investigation.^[8]

Attempts to interfere with witnesses can be obstruction. Examples include:

Attempting to have a witness who gave a statement to police to change the statement.^[9]
An offer of financial support to pay a medical bill in exchange for not testifying against another person's trial is obstruction.^[10]
An offer to make a charitable donation to a store in exchange for the withdraw of of charges against another person.^[11]
A communication asking that a witness be intimidated, including on a matter on appeal^[12]

Consequence of Conduct

The accused need only have to create a risk that an injustice will occur.^[13]

Mens rea

The mens rea of s. 139 requires a specific intent to do the act which would result in an obstruction of justice.^[14] It is not enough to merely prove an intention to do the act resulting in the obstruction without the intent to do so.^[15]

It is no defence that the actions were an error in judgment or a mistake.^[16] However, error in judgement alone is not enough and there must be an specific intent to "obstruct, pervert or defeat" the course of justice.^[17]

It is a valid defence to do the act for some other purpose.^[18]

Success Not Necessary

The offence is made out even if the accused fails to succeed or fails to complete the attempt to commit the offence.^[19]

↑ R v Wijesinha, 1995 CanLII 67 (SCC), [1995] 3 SCR 422, per Cory J, at para 27 ("The proceedings of a court, or indeed those of most administrative tribunals, will almost invariably commence with an investigation. Investigation is necessary to determine if a crime or wrong has been committed. It is the essential first step in any judicial or quasi‑judicial proceeding which may result in a prosecution. In the ordinary course of events, one who perverts the course of an investigation also perverts the course of justice."), at para 28
↑ R v Spezzano, 1977 CanLII 1371 (ON CA), 34 CCC (2d) 87, per Martin JA
↑ Wijesinha, ibid., at para 46
↑ Wijesinha, ibid.
see also Definition of Judicial Officers and Offices
↑ Wijesinha, ibid.
↑ R v Heater, 1996 CanLII 1265 (ON CA), 111 CCC (3d) 445, per Houlden JA
↑ R v Robinson, 2012 BCSC 430 (CanLII), per Dillon J, at para 21
↑ R v Spezzano, 1977 CanLII 1371 (ON CA), 34 CCC (2d) 87, per Martin JA
R v Dosanjh, 2006 BCPC 449 (CanLII), [2006] BCJ No 2637, per Ellan J, at para 59
R v Watson, 2010 ONSC 6765 (CanLII), [2010] OJ No 5341, per Belobaba J, at para 15
↑ R v Patterson, 2003 CanLII 30300 (ON CA), 174 CCC (3d) 193, per Gillese JA, at paras 6366
R v Kotch, 1990 ABCA 348 (CanLII), 61 CCC (3d) 132, per McClung JA at p. 136
↑ R v Mian, 1993 CanLII 5304 (NB CA), 354 APR 299, per curiam
↑ Kotch, supra
↑ R v GrahamGraham, 1985 CanLII 3644 (ON CA), 20 CCC (3d) 210, per Howland CJ
R v Roy, 2004 CanLII 14611 (ON CA), 185 OAC 239, per curiam
↑ R v Graham, 1985 CanLII 3644 (ON CA), 20 CCC (3d) 210, per Howland CJ aff’d 1988 CanLII 94 (SCC), [1988] 1 SCR 214, per Estey J
↑ R v Hawkins, 2002 BCCA 3 (CanLII), 48 CR (5th) 21, per Hollinrake JA, at para 5
cf. see R v Gunn, 1997 ABCA 35 (CanLII), 113 CCC (3d) 174, per Picard JA
↑ R v Yazelle, 2012 SKCA 91 (CanLII), 399 Sask R 249, per Caldwell JA
↑ Watson, supra, at para 17
↑ R v Beaudry, 2007 SCC 5 (CanLII), [2007] 1 SCR 190, per Charron J
↑ R v Hearn, 1989 CanLII 3938 (NL CA), 48 CCC (3d) 376, per Goodridge CJ aff'd 1989 CanLII 14 (SCC), [1989] 2 SCR 1180 (SCC), per Wilson J
↑ Hearn, supra

Other Examples

Impaired Driving

Consuming alcohol post-accident in order to thwart an investigation into an impaired driving allegation has been found to amount to obstruction.^[1]

Testimony and Witnesses

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.^[2]

Where there is a falsified statement to the police, it is essential that the Crown establish that the purpose of giving the statement was to obstruct the course of justice.^[3]

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).^[4]

Others

Inteference with by-law officers by removing or destroying tags placed on parked cars amounts to obstruction in the course of justice.^[5]

↑ eg. R v Soltys, 1980 CanLII 332 (BCCA), 56 CCC (2d) 43, per MacDonald JA
R v Magagna, 2003 CanLII 655 (ON CA), 173 CCC (3d) 188, per curiam
R v Robinson
↑ R v Pare, 2010 ONCA 563 (CanLII), 268 OAC 118, per Rosenberg JA
↑ R v Hoggarth, 1956 CanLII 515 (BCCA), 119 CCC 234, per Davey J ("the purpose of the statement which formed the foundation of this charge was to obstruct the course of justice, and, of course, if the statement was not given for that specific purpose the Crown has failed to prove an essential ingredient of the offence.")
↑ R v Gosselin et al., 2011 ONCJ 314 (CanLII), per McKay J
↑ R v Zeck, 1980 CanLII 2849 (ON CA), 53 CCC (2d) 551, per Howland CJ

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

Offence(s)	Victim Notice of Agreement s. 606(4.1) [SPIO]	Victim Queried for Interest in Agreement s. 606(4.2) [5+ years]	Victim Notice for Restitution s. 737.1	Victim Notice of Impact Statement s. 722(2)
s. 139(1) [obstructing justice relating to sureties]
s. 139(2) [obstructing justice]

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 relating to sureties]	summary election	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 139(1) [obstructing justice relating to sureties]	indictable election	2 years incarceration
s. 139(2) [obstructing justice]	summary election	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 139(2) [obstructing justice]	indictable election	10 years incarceration

Offences under s. 139(1) [obstructing justice relating to sureties] are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) .

Offences under s. 139(1) [obstructing justice] are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) .

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) [obstructing justice relating to sureties]	any
s. 139(2) [obstructing justice]	summary election
s. 139(2) [obstructing justice]	indictable election

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) [obstructing justice]	For conviction under s. 139(2), a DNA order is discretionary as a secondary designated offence listed under s. 487.04 (a) or (b). [obstructing justice]

General Sentencing Orders

Order	Conviction	Description
Non-communication order while offender in custody (s. 743.21)	any	The judge has the 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 discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (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 His Majesty the King on application of the Crown. NB: does not* apply to summary offences*.
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. NB: does not* apply to summary offences*.

Record Suspensions and Pardons

Convictions under s. 139(2) [obstructing justice] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".