Last month, the Ontario Court of Appeal released its decision in R. v. Theriault, a high-profile case involving an off-duty police officer and his younger brother assaulting a young Black man, blinding him in one eye. Both the Crown and the defendant appealed the lower court decision which convicted the undercover officer for assault and sentenced him to nine months in jail. Both the defendant and the Crown appealed. The Crown appealed the acquittal of Theriault’s younger brother as well as Theriault’s acquittals of the more serious charge of aggravated assault as well the charge of obstruction of justice. This week we’re going to take a closer look at the obstruction of justice. What does it typically entail, and when does it apply?

Obstruction of Justice versus Interfering with Police

Obstruction of justice is governed by Section 139 of the Criminal Code, and is defined as wilfully attempting “in any manner to obstruct, pervert or defeat the course of justice in a judicial proceeding”. If found guilty, the charge comes with a term of imprisonment of up to 10 years. Section 139(3) in particular indicates that the following activity would quality as obstructing justice:

  • dissuading or attempting to dissuade a person by threats, bribes or other corrupt means from giving evidence;
  • influencing or attempting to influence by threats, bribes or other corrupt means a person in his conduct as a juror; or
  • accepting or obtaining, agreeing to accept or attempting 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.

As can be seen from the above, the charge primarily applies to dishonest activity that influences a judicial proceeding, such as bribing witnesses to give incorrect evidence, preventing witnesses from speaking by threat or coercion, or bribing or threatening jurors.

It is not, as many people may assume, concerned with interfering with police activities or in their duties (also known as “Obstruction of a Peace Officer”. This is another offense altogether, which is prohibited by Section 129 of the Criminal Code (where the maximum prison term is “only” 2 years).

In terms of the offence of attempt to obstruct justice under section 139, the attempt must be wilful and it must result in at least a risk that, without any further action, an injustice will result; It is not required that the attempt be successful or even possible. It is also notable that the “course of justice” includes the investigative stage of the process. This means that a knowingly false statement given to the police, or even a deliberate, material (i.e. important) omission, during the course of an investigation can amount to attempt to obstruct justice.

Obstructing Justice Outside the Courtroom

In the Theriault case, the two brothers were charged with attempting to obstruct justice by lying to or misleading members of the Durham Regional Police Service under Section 139 of the Code, rather than Section 129 which specifically deals with obstructing police officers. The Theriault brothers were each acquitted of the section 139 charges, with the judge finding that some aspects of the statements they provided to police were “probably false, but probably false is not enough” to prove the charge beyond a reasonable doubt (something which was affirmed on appeal).

To find an example of the threshold to demonstrate the charge, we’ll look at another recent case where the accused was actually convicted of obstructing justice in the “course of justice”. The recent case of R. v. Somers in British Columbia provides such an example.

Accused Influences Complainant to Recant on Multiple Occasions

In the Somers case, the accused was convicted of no less than ten offences in relation to repeated acts of violence against his intimate partner. Despite the ten convictions, it was the Crown who appealed the trial decision because it was not satisfied that the convicted man’s sentence took into account his attempt to obstruct justice.

On the night of August 7th, 2013, Somers had assaulted and threatened the complainant in her apartment. The attempt to obstruct justice came later when Somers asked the complainant to write a letter to the police indicating that “nothing untoward” had happened on the night of August 7, 2013. Somers actively participated in drafting the “false recantation” letter in question. And if that wasn’t enough, he also actively participated in creating additional false recantation letters that were sent to the Crown attorney in charge of prosecuting the case. Finally, he insisted that the complainant accompany him to the Crown’s office in person in an attempt to convince the Crown to drop the charges against him.

The Crown was successful in its appeal, with the Court adding an additional 18 months to Somers’ sentence in light of his repeated attempts to obstruct justice. As can be seen from this example, the mere attempt to obstruct justice in itself was deemed worthy of a conviction and corresponding punishment. The attempt was not required to be successful, as it is the attempt to prevent the justice of a trial from being carried out which is the punishable offence. Section 129. Interfering with police did not apply at all because the attempts to obstruct justice did not involve interfering with a police officer in the course of their duties. Instead, the accused focused on dishonestly influencing, cajoling and/or threatening a witness/complainant.

Aggravating Factors for Sentencing

The Somers case serves to illustrate that being convicted of obstructing justice can often be considered an aggravating factor in determining the length of one’s sentence. In other words, it can result in a longer sentence. Further, a conviction for obstruction of justice requires clear and unambiguous proof that the accused made attempts to obstruct the course of justice, which could not be established in theTheriault case.

Our criminal defence lawyers can advise on how best to protect your rights and defend you in court, including for any criminal charges involving the activities of police. We defend individuals charged with a variety of offences, including police interference and the obstruction of justice. Contact Hicks Adams LLP in downtown Toronto to discuss the options available to help you through this time. Call us at 416-975-1700 or contact us online to schedule a confidential consultation.