Welfareville - Notebook - The law: Criminal Code

§ Obstructing justice

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Obstructing justice

139. (1) Every one who wilfully attempts in any manner to obstruct, pervert or defeat the course of justice in a judicial proceeding,

by indemnifying or agreeing to indemnify a surety, in any way and either in whole or in part, or
where he is a surety, by accepting or agreeing to accept a fee or any form of indemnity whether in whole or in part from or in respect of a person who is released or is to be released from custody,

is guilty of

an indictable offence and is liable to imprisonment for a term not exceeding two years, or
an offence punishable on summary conviction.

(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.
(3) Without restricting the generality of subsection (2), every one shall be deemed wilfully to attempt to obstruct, pervert or defeat the course of justice who in a judicial proceeding, existing or proposed,

dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence;
influences or attempts to influence by threats, bribes or other corrupt means a person in his conduct as a juror; or
accepts or obtains, agrees to accept or attempts 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.

R.S., c. C-34, s. 127; R.S., c. 2(2nd Supp.), s. 3; 1972, c. 13, s. 8.

R. v. Yazelle, 2012 SKCA 91 (CanLII) , subjective nature of s.139(2) mens rea:

[40] Intention is not to be confused with motive. Motive is the reason why someone does something. It is possible to have a specific intention for doing an act that is different from the motive for that same act. If a person robs a bank to pay for medical treatment, the intention would be to commit the offence of robbery, while the payment of the medical expenses would be the motive. Motive is not an element that the Crown must prove, so it is important to differentiate between the required intention, which forms a part of the offence that the Crown must prove, and motive, which does not. R. v. Abdullah

A truly subjective test seeks to determine what was actually in the mind of the particular accused at the moment the offence is alleged to have been committed. In his very useful text, Professor Stuart puts it in this way in Canadian Criminal Law (2nd ed.), at pp. 123-24 and at p. 125:

What is vital is that this accused given his personality, situation and circumstances, actually intended, knew or foresaw the consequence and/or circumstance as the case may be. Whether he "could", "ought" or "should" have foreseen or whether a reasonable person would have foreseen is not the relevant criterion of liability.

...

In trying to ascertain what was going on in the accused's mind, as the subjective approach demands, the trier of fact may draw reasonable inferences from the accused's actions or words at the time of his act or in the witness box. The accused may or may not be believed. To conclude that, considering all the evidence, the Crown has proved beyond a reasonable doubt that the accused "must" have thought in the penalized way is no departure from the subjective substantive standard. Resort to an objective substantive standard would only occur if the reasoning became that the accused "must have realized it if he had thought about it".
[Emphasis in original.] R. v. Hundal, 1993 CanLII 120 (SCC), [1993] 1 S.C.R. 867, at pp. 882-83

R. v. Wijesinha, [1995] 3 S.C.R. 422