Obstructing Justice (s. 139) Charges in Canada: Offences, Defences, Punishments

What is obstructing justice?

Obstructing justice, also known as obstruction of justice, is a non-violent offence classified as an “offence against the administration of law and justice.” It criminalizes deliberate acts which seek to obstruct (or in other words interfere or hinder) the pursuit of justice.

Obstructing justice is covered under s. 139 of the Criminal Code of Canada (the “Code”) and is generally divided into two categories:

• Obstructing justice in relation to sureties; and
• Obstructing justice not related to sureties.

Charges of this nature are often laid against those who work in the justice system or have been charged with a crime. For example, a judges’ secretary pled guilty to the offence after she opened and viewed a wiretap request that by happenstance was for her fiancé. She then told her fiancé what she had learned, thereby obstructing justice. In another instance, a man acquitted of killing a girl in a motor vehicle incident was charged with obstruction of justice because he lied to police and told them it was his girlfriend driving, not him.

Though the offence is non-violent, it is still considered a serious offence in Canada, and in certain instances can lead to imprisonment.

Examples

Obstructing justice is a wide-ranging offence. Some common examples include:

• A police officer destroying a key piece of evidence in an investigation;
• Offering a bribe to prevent someone from testifying in court;
• Offering a bribe to a police officer; and
• Lying to the police about an investigation.

Defences

Every case is different. Defences that may be available in one case may not be available in another. The strength of any defence rests on the evidence against you and the precise details of the allegations.

There are many defences to obstructing justice that can be used including showing a lack of mens rea or actus reus (meaning the mental and physical elements of the offence are not made out) and showing that your Charter rights were egregiously breached during the investigation.

Punishments

Obstructing justice is a hybrid offence, meaning that the Crown can elect to proceed by way of indictment or summary offence. This choice will impact the severity of the punishment you are given, with indictment being the more severe of the two.

Although the Code does not provide minimum sentences. The maximum sentences are outlined as follows:

• For obstructing justice related to sureties the maximum penalty is:
  • Indictment: No more than 2 years imprisonment.
  • Summary: Up to 2 years less a day imprisonment.

• For obstructing justice not related to sureties:
  • Indictment: No more than 10 years imprisonment.
  • Summary: Up to 2 years’ less a day imprisonment.

Overview of the Offence

The relevant provision for obstructing justice in the Code is:

It is critical to remember that in Canada it is your constitutionally protected right to be presumed innocent until proven guilty. This means that the Crown must prove all elements of the offence beyond a reasonable doubt for you to be convicted. If doubt can be raised that you did not complete the physical or mental components of the offence (as described below) the Crown will not be able to secure a conviction against you.

The Guilty Act (Actus Reus)

The actus reus (physical element) for obstructing justice required to prove the offence beyond a reasonable doubt is:

• Any act that has the risk of obstructing, perverting, or defeating the course of justice.

It is important to remember that the accused does not necessarily need to be successful in obstructing, perverting, or defeating the course of justice, there need only be a risk that this could occur as a result of the accused’s actions.

The Guilty Mind (Mens Rea)

In addition to the actus reus, the Crown must also prove beyond a reasonable doubt the mental element of the offence. Obstructing justice requires that wilfully intended to obstruct, pervert or defeat the course of justice in a judicial proceeding.

To provide an example, if you provided a statement to the police that turned out to be false, but you honestly believed the information you provided was accurate, the offence is not made out and the Crown will be unable to proceed with its charge.

Obstructing Justice Defences

As previously mentioned, every case is different. There is no single defence that can be applied to every allegation of obstructing justice. That said, there are numerous defences available that when used effectively can significantly and positively affect the outcome of a case.

In general, the best defences are:

• Factual Innocence: This is usually the strongest defence because the facts and the evidence do not support your being responsible for the act.
• No Mens Rea/Actus Reus: A common defence available in obstructing justice cases is that you did not intend to obstruct, pervert, or defeat the court of justice. A basic example would be if you provided the police with information, you honestly believed was accurate, even though it is later determined that it was not.
• Violation of Constitutional Rights: The Canadian Charter of Rights and Freedoms(the “Charter”) sets out your rights before and after your arrest. If the police fail to abide by these rights, it could aid in your defence.

While the Crown must prove the elements of the offence beyond a reasonable doubt, you bear the responsibility of raising certain defences at trial. The burden of proof remains high for this kind of prosecution. This means that there are many successful defence strategies that our experienced defence lawyers can employ, depending on the circumstances of your case.

Our lawyers have significant experience assessing the availability and strengths of various potential defences in obstructing justice cases, as well as presenting any and all available defences to the court at trial. Even if you believe that you will be found guilty, it is important that you obtain a legal opinion about defences that may be available to you.

Obstructing Justice Punishments

The Code outlines the maximum punishment for obstructing justice. Although a term of imprisonment is not common, it is possible. Both obstructing justice related to sureties and obstructing justice not related to sureties are considered hybrid offences, meaning the Crown may decide to proceed summarily or by indictment. Indictment being the more serious of the two.

• For obstructing justice related to sureties the maximum penalty is:
  • Indictment: No more than 2 years imprisonment.
  • Summary: Up to 2 years less a day imprisonment.

• For obstructing justice not related to sureties:
  • Indictment: No more than 10 years imprisonment.
  • Summary: Up to 2 years’ less a day imprisonment.

The sentence you will receive depends on a variety of factors including:

• The impact the act had on the judicial proceeding; and
• Your criminal history.

In addition to the immediate penalties resulting from a conviction for obstructing justice, it can have wide-ranging negative consequences on your future. You may have trouble securing employment in the field of your choice. This is especially the case for roles that involve working with government agencies such as the police. The lifelong criminal record that results from a conviction can also hinder immigration and travel.

Therefore, even if you intend on accepting responsibility for this type of offence, it is worthwhile to explore your options and consider all the possible penalties. Often, good representation can result in no criminal record. Furthermore, a community-based sentence may be obtained even where the Crown is seeking jail time.

Rest assured, our lawyers will work hard to defend you so that you are not saddled with the consequences that stem from a criminal conviction for obstructing justice. In fact, we can canvass a range of sentencing options with the Crown that will either leave you with no criminal record or impose minimal restrictions on your liberty after sentencing. To learn more about potential non-criminal resolutions, please visit our Resolutions page, or read our FAQ on resolutions and other sentencing options.

Frequently Asked Questions

What type of offence is obstructing justice?

Obstruction of justice is a non-violent offence classified under the Code as an “offence against the administration of law and justice.”

What is the most common form of obstruction of justice?

There is no single form of obstruction of justice that can be considered the most common. That said, there are several that are seen more often.

These include:

• Lying to the police;
• Threatening or dissuading a witness from testifying; and
• Hiding or destroying evidence.

Can you go to jail for obstructing justice?

Yes. Although every offence is different and must be considered in the context of the circumstances of the charge and the personal circumstances of the accused, the Code indicates that a term of imprisonment for the offence can be handed down.

Maximum terms of imprisonment are laid out as follows:

• For obstructing justice related to sureties (s. 139(1)) the maximum penalty is:
  • Indictment: No more than 2 years imprisonment.
  • Summary: Up to 2 years less a day imprisonment.

• For obstructing justice not related to sureties (s. 139(2)):
  • Indictment: No more than 10 years imprisonment.
  • Summary: Up to 2 years’ less a day imprisonment.

Published Decisions

R v Murray, [2000] OJ No. 2182

The accused, Mr. Murray was infamous for his defence of Paul Bernardo. During the investigation, Mr. Murray went to his clients home and removed videotapes that depicted criminal acts committed by his client and wife. These tapes were retained for 17 months and not disclosed to the Crown or police. The accused was found not guilty of attempting to obstruct justice as the court found that although his concealment of the tapes had the “tendency” to obstruct justice, he may have believed he did not have an obligation to disclose them before trial, therefore he lacked the necessary intention to be found guilty.

You can read the full decision here.

R v Mills, Dion, 2017 CanLII 57833 (NL PC)

The accused was charged with two counts of attempting to obstruct justice for attempting to dissuade his former wife and son from giving evidence against him. The accused left a voicemail on his ex-wife’s telephone stating that if she or his son gave evidence, he would take her to court and report her for fraud leaving her behind bars and their son without anyone to take care of him. The Court reviewed the voicemail in the context of the current charges the accused was facing and determined that he was clearly trying to intimidate his ex-wife and persuade their son to not give evidence against him. The accused was found guilty on both counts.

You can read the full decision here. 

R v Gourlay, 2018 BCSC 884

The accused was found guilty of failing to stop his vehicle and offer assistance after an accident causing death and obstructing justice. While driving one evening, the accused was momentarily distracted and struck a woman with his vehicle causing her immediate death. Although he did not see the woman before or after, he acknowledged the impact should have led him to stop and determine what had happened. Following a media release issued by police the accused washed his vehicle and swapped out the front signal light which had been damaged to disguise the vehicle. Although there were no aggravating factors, the accused was sentenced to two months imprisonment for obstructing justice.

You can read the full decision here.