Our justice system is one of the pillars of our society. That is why obstruction of justice is a criminal offence. In concrete terms, obstruction of justice consists of voluntarily attempting to “obstruct, divert or thwart the course of justice”. It is therefore to obstruct, to obstruct the proper administration of justice and this, intentionally.
For example, the refusal to take an oath when an individual is called to testify, the introduction into evidence of documents that are known to be falsified or the attempt to influence a juror are obstructions of justice.
Elements of the infringement
The prosecution will have to prove beyond a reasonable doubt the elements of the offence, namely the actus reus (material element) and the mens rea (the mental element).
News reus
The actus reus of the offence is conduct that tends to interfere with the course of justice. It will vary depending on whether the obstruction occurs in the course of the legal proceedings or not.
Cases where obstruction of justice occurs in the course of court proceedings
This could include, through threats, bribes or any other means of bribery:
- dissuade or attempt to dissuade a person from testifying;
- influence or attempt to influence a person in his or her conduct as a juror;
- find a way to refrain from testifying or to do or refrain from doing anything as a juror;
It should be noted that the person who commits these three acts will be presumed to have tried to obstruct justice. He will be able to rebut this presumption by proving, for example, that he was trying to dissuade a witness from giving testimony that he knew to be false.
The actus reus of obstruction of justice also includes indemnifying a surety or, as a surety, agreeing to be indemnified. A surety is a person who promises the court to supervise an accused person while the accused is on bail, and agrees to pay the court a sum of money if the accused person does not comply with his or her conditions of release. In this case, it will not be possible to rebut the presumption of obstruction of justice.
Cases where obstruction of justice does not arise in the course of court proceedings
At that time, obstruction is possible by any act that is intended to wilfully obstruct, divert or thwart the course of justice. This would be the case, for example, of a police officer who voluntarily writes a false report to manipulate the conclusions of the police ethics commissioner.
In R. c. A.P., the accused’s half-brother was accused of sexual touching of the complainant that allegedly occurred a few years earlier, when she was nine years old. The accused had taken her to a family member in her home country, where she had stayed for four years before being able to return to the country. The Court found that he had wilfully concealed the child and attempted to prevent her from acting as a witness in the criminal investigation by making her unavailable, which constituted obstruction of justice.
Mens rea
Mens rea is the specific intention to engage in conduct that interferes with the course of the
justice. This intention thus relates to the consequences of his actions: the offender must have sought a benefit from obstructing justice, or a motive for doing so. An error of good faith or judgment is not sufficient to speak of obstruction. It is important to note that it is not necessary for the commission of the act to succeed, the presence of the specific intention is sufficient.
In R. c. Cecere, the accused, a public officer, had taken documents relating to an organized crime investigation outside his safe workplace, even though he was prohibited from doing so. He is alleged to have voluntarily disclosed a document to a friend of his son, but did not disclose documents relating to the ongoing investigation. The Court found that the accused was guilty of breach of trust and wilfully disclosing a private communication, but that he could not be convicted of obstruction of justice because he did not possess the mens rea. Indeed, she acknowledged a lack of loyalty, but was not convinced beyond a reasonable doubt of his specific intention to obstruct justice, since he had not acted and had not disclosed these specific documents to the investigation.
Sentences
The sentence will depend on the obstruction of justice that is committed. In the event that, during the legal proceedings, one attempts to compensate a surety or, as a surety, to agree to be compensated, the maximum penalty will be imprisonment for 2 years. In all other cases, the maximum sentence of imprisonment will be 10 years.
If you are charged with obstruction of justice, it is crucial to get legal representation by a competent criminal lawyer quickly.
Contact us now for a consultation.