Obstruction of justice Lawyers in Canada

Section 129 lists three kinds of conduct. The first is resisting or wilfully obstructing a public officer or peace officer in the execution of his duty, or any person lawfully acting in aid of such an officer. The second is omitting, without reasonable excuse, to assist a public officer or peace officer in the execution of his duty in arresting a person or in preserving the peace, after having reasonable notice that assistance is required. The third is resisting or wilfully obstructing any person in the lawful execution of a process against lands or goods, or in making a lawful distress or seizure.

Section 139 is about the course of justice. Under section 139(1), the offence is wilfully attempting in any manner to obstruct, pervert or defeat the course of justice in a judicial proceeding by indemnifying a surety, or, for a surety, by accepting a fee or indemnity from or for a person who is released or is to be released from custody. Section 139(2) covers a person who intentionally attempts in any manner, other than a manner described in subsection (1), to obstruct, pervert or defeat the course of justice.

Section 139(3) adds examples. Without restricting subsection (2), a person is deemed wilfully to attempt to obstruct, pervert or defeat the course of justice who, in a judicial proceeding that exists or is proposed, dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence. The same subsection names influencing or attempting to influence a juror by threats, bribes or other corrupt means, and accepting or obtaining a bribe to abstain from giving evidence or to do or refrain from doing anything as a juror.

The Crown is the prosecutor. Section 11(d) of the Canadian Charter of Rights and Freedoms gives a person charged with an offence the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. The Crown is the side that has to prove the charge.

The parts of each offence come from the words of the section. For section 129, the conduct is resisting or obstructing, the person obstructed is a public officer or peace officer, and the officer is in the execution of his duty. Section 129 uses the word wilfully for obstructing. Sections 139(1) and 139(3) use the word wilfully, and section 139(2) uses the word intentionally. These words concern what the person had in mind. What they require in a particular case is a question for the court.

The wording differs between the three kinds of conduct in section 129. For an officer, the section refers to the execution of his duty. For a process against lands or goods, it refers to the lawful execution of the process. A lawyer can explain which wording applies to the charge.

Both sections are hybrid offences. A hybrid offence can be prosecuted as an indictable offence or as an offence punishable on summary conviction.

Under section 129, an indictable offence carries imprisonment for a term not exceeding two years. Under section 139(1), an indictable offence also carries imprisonment for a term not exceeding two years. Under section 139(2), an indictable offence carries imprisonment for a term of not more than 10 years.

On summary conviction, section 787(1) applies unless the law provides otherwise. It sets a fine of not more than $5,000, imprisonment of not more than two years less a day, or both.

The sections read for this page set no minimum term. A maximum is a limit set by law. It does not say what sentence a court would give in any case.

The wording of section 129 makes the officer's conduct part of the charge, because the section applies to obstruction of an officer in the execution of his duty. The wording of section 139 makes the person's purpose part of the charge, because it requires a wilful or intentional attempt. Both are decided on the evidence.

Charter rights apply from the start. Section 8 gives everyone the right to be secure against unreasonable search or seizure. Section 9 gives everyone the right not to be arbitrarily detained or imprisoned. Section 10(b) gives everyone, on arrest or detention, the right to retain and instruct counsel without delay and to be informed of that right.

Section 24(2) says evidence obtained in a manner that infringed Charter rights shall be excluded if admitting it would bring the administration of justice into disrepute. A charge under section 129 involves an interaction between a person and an officer, so a lawyer can say whether any of these Charter issues arises in a particular case.

In Ontario, every charge under the Criminal Code starts in the Ontario Court of Justice, and about 95% of charges are completed there. The Superior Court of Justice can try any indictable offence but generally tries only the most serious ones.

A person who is arrested may be taken before a justice for a release decision. Under section 515, the justice shall make a release order without conditions unless the prosecutor shows cause why detention in custody is justified or why another order under that section should be made. Section 493.1 says the person making the decision gives primary consideration to release at the earliest reasonable opportunity and on the least onerous conditions. Section 11(e) of the Charter protects the right not to be denied reasonable bail without just cause.

After a conviction on indictment, an appeal goes to the court of appeal. A person may appeal as of right on a question of law alone. Other grounds need leave, and so does an appeal against sentence. After a summary conviction, the defendant may appeal under section 813. In Ontario, that appeal goes to the Superior Court of Justice sitting in the region, district or county or group of counties where the adjudication was made, under section 812.

Legal Aid Ontario may pay for a lawyer if the person qualifies and is charged with a crime that could mean jail on conviction, or is 12 to 17 and charged under the Youth Criminal Justice Act. Duty counsel is a lawyer at the courthouse for that day. Duty counsel can advise on rights, ask to delay a court date, act at a bail hearing, help with a guilty plea, speak at sentencing, and meet the Crown, for people who qualify and have no lawyer.

A legal aid certificate pays a roster lawyer, one approved to take legal aid clients, for the length of the criminal case. Applications are online or by phone at 1-800-668-8258.

The Law Society of Ontario keeps a public Lawyer and Paralegal Directory, where a lawyer's licence can be looked up. The Ontario lawyers on this site are listed by city. Nothing on this page ranks or recommends any of them.