PMO Scandal: A closer look at Criminal Code section 139(2)

Editor's Note: This article is a quick overview for the reader and should not be construed as professional legal advice.

The Leader of the Opposition, as well as five former Attorneys General, have extraordinarily called on the RCMP to investigate allegations surrounding the recent SNC-Lavalin scandal.

These calls specifically mention Criminal Code sections 139(2) and 423.1(1).

Here is a closer look at one of those sections. Check out the companion to this article, PMO Scandal: A closer look at Criminal Code section 423.1(1).

The letter of the law

139 (1) Every one who wilfully attempts in any manner to obstruct, pervert or defeat the course of justice in a judicial proceeding [by bribing a surety or accepting a bribe as a surety is liable to up to two years imprisonment.]
(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.
Criminal Code section 139

The obvious two elements of this offence from the text of this section are:
1. a wilful attempt to obstruct, pervert, or defeat the course of justice; and
2. an attempt not in a manner described in section (1) regarding the bribing of sureties.

How broad is the term "course of justice"?

This question was answered by the Supreme Court in R v Wijesinha ([1995] 3 SCR 422). Subsection (1) specifically mentions the obstruction of "the course of justice in a judicial proceeding", but subsection (2) is not written as specifically and refers to the general course of justice more broadly than judicial proceedings.

The Supreme Court held that the "course of justice" must include investigations, and more specifically, representations that might have "a tendency to frustrate or deflect a prosecution or disciplinary proceeding before a judicial tribunal which the accused contemplates may possibly be instituted, even though the possibility of instituting that prosecution or disciplinary proceeding has not been considered by the police or the relevant law enforcement agency".

This means that obstruction of justice under s. 139(2) is not limited to ongoing court cases, but seems to include even potential investigations and prosecutions that have not yet been considered.

Is it necessary for the course of justice to have actually been obstructed, perverted, or defeated?

The Supreme Court in R v Beaudry (2007 SCC 5) ruled that a mere attempt to obstruct justice is enough to establish this offence, but only if the accused knew that their action "tended to defeat or obstruct the course of justice", beyond a "simple error of judgment".

In that case, a police officer was convicted for obstructing justice under s. 139(2) for deliberately failing to take a breath sample from a fellow cop, "who he had reasonable grounds to believe had been operating a motor vehicle while intoxicated".

Where the accused is an official, like in the above mentioned case, there must have been conduct that "cannot be characterized as a legitimate exercise of [their] discretion" and they must have intended "to act in a way tending to obstruct, pervert or defeat the course of justice".

Intent to interfere with criminal proceedings does "tend to obstruct justice", as the Supreme Court found in R v Barros (2011 SCC 51), even if those criminal proceedings are not, in the end, actually interfered with.

How serious must an offence of obstructing justice be?

The seriousness of an obstruction of justice would likely reflect more in sentencing than in finding whether or not the crime was committed.

In R v Kotch (1990 ABCA 348), the Alberta Court of Appeal upheld an obstruction of justice conviction against a lawyer who tried to bribe the store where his client had been caught shoplifting.

What if the attempt to obstruct justice never had any hope of success?

This was the precise question in a Newfoundland case that was eventually affirmed by the Supreme Court.

In R v Hearn ([1989] N.J. No. 28, aff'd [1989] S.C.J. No. 129), a lawyer and his client accused of drunk driving, came up with a false excuse that was so bad that it did "not have the potential for success".

The Newfoundland Court of Appeal ruled that it did not matter whether an attempt to obstruct justice is successful or even whether it ever had any potential to succeed.

For example, if one was accused of obstructing justice by attempting to improperly influence an official, it would not matter whether that official ever would have given in.

The Supreme Court upheld that decision by declining to hear an appeal.

What if the obstruction of justice is accidental?

There must be a "willful attempt" at obstruction of justice, so an innocent action in good faith that happens to have the unintended consequence of obstructing justice would not be enough for a criminal charge.

In R v Clark (2012 MBQB 246), rookie police officers in a Manitoba trial were acquitted from charges of obstructing justice. They had accidentally prepared false notes and reports.

There is a slight distinction to be made here though. Ignorance of the law is not a valid excuse in our legal system. For example, if those police officers had said that they prepared false notes but did not know that it was illegal to do so, they would not have deserved an acquittal.

Practical Implications

It does seem that charges could be laid against at least a few individuals based on an examination of this section and the testimony of former Attorney General Jody Wilson-Raybould.

However, there is also a strong possibility that a court, for one reason or another, might not find that there was a violation of this section of the Criminal Code.

No legal question can be answered with certainty before it has gone to the Supreme Court, and it might be difficult to convince Canadians that an adequate answer has been given until that happens.