Obstructing Justice (Offence)

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. Preliminary inquiry also available.
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;

< Criminal Law/Sentencing
< Offences

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

Template:PleadingsHybridList Template:PleadingsIndictableList

Offence Section	Offence Type	Crown Election	Defence Election s. 536(2)

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)	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)	Template:ReleaseProfileAll
s. 139(2)	Template:ReleaseProfileOnlyBail

When charged under s. 139(1), 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.

Template:ReleaseOnlyBail

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));

Fingeprints and Photos

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 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

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: ☐ 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 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 to create 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 an 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]

↑ R v Robinson, 2012 BCSC 430 (CanLII), per Dillon J at para 21
↑ R v Graham, (1985), 20 CCC (3d) 210 (Ont. C.A.), 1985 CanLII 3644 (ON CA), per Howland CJ aff’d 1988 CanLII 94 (SCC), [1988] 1 SCR 214, per Estey J
↑ R v Spezzano, 1977 CanLII 1371 (ON CA), (1977), 34 CCC (2d) 87 (Ont. C.A.), 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 Hawkins, 2002 BCCA 3 (CanLII), per Hollinrake JA, at para 5
cf. see R v Gunn, 1997 ABCA 35 (CanLII), (1997), 113 CCC (3d) 174, per Picard JA
↑ R v Yazelle, 2012 SKCA 91 (CanLII), per Caldwell JA
↑ R v Hearn, 1989 CanLII 3938 (NL CA), per Goodridge CJ aff'd 1989 CanLII 14 (SCC), [1989] 2 SCR 1180 (SCC), per Wilson J
↑ Watson, supra at para 17
↑ Hearn, supra
↑ eg. R v Soltys, 1980 CanLII 332 (BC CA), (1980), 56 CCC (2d) 43 (BCCA), per MacDonald JA
R v Magagna, 2003 CanLII 655 (ON CA), (2003), 173 CCC (3d) 188 (Ont. C.A.), per curiam
R v Robinson
↑ R v Pare, 2010 ONCA 563 (CanLII), per Rosenberg JA
↑ R v Gosselin et al., 2011 ONCJ 314 (CanLII), per McKay J

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	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
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
s. 139(2)	N/A

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

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*.