The home of this offence, in Canada, is §139 of Canada's Criminal Code. There, the conduct which can lead to a conviction, if proven beyond a reasonable doubt, is defined.
Thus, obstructing justice or, as it is otherwise known, obstruction of jusice, is where a person:
“... wilfully attempts in any manner to obstruct, pervert or defeat the course of justice in a judicial proceeding (existing or proposed), 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....”
The Code also includes, under obstructing justice, intimidating, bribing or otherwise corrupting someone in respect to their evidence or interfering with a juror.
Examples of obstruction of justice are:
- Paying a person to give false evidence;
- Threatening or actually assaulting a person because they operated in a police investigation;
- Lying to police officer including giving a false name, the circumstances of the crime, the identity of the driver at the moment of a motor vehicle accident;
- Removing parking tickets from under windshield wiper; or
- Hiding or destroying evidence.
In one high-profile case, a female juror, Gillian Guess was convicted of obstruction of justice and sentenced to 18 months in jail for maintaining an intimate relationship with the accused, Peter Gill.
When the Guess case went before the Court of Appeal of British Columbia (2000 BCCA 547), the Court referred to an Australian decision, R. v. Meissner (1994), 130 A.L.R. 547 (High Court of Australia), stating that this was "a helpful dissertation on ... this offence":
"The offence of attempting to pervert the course of justice has been authoritatively defined, in this court and elsewhere, as "the doing of some act which has a tendency and is intended to pervert the administration of public justice".
"That definition has the advantage that, while stressing the mental element of the offence (as one would anticipate in any definition of an "attempt" offence), it makes plain that the offence is not committed unless the act which is done with the necessary intent can be objectively said to have a tendency to pervert the course of justice.
"The definition is, however, arguably too restrictive in that it would seem not to cover the situation where what is involved is an attempt to do, rather than "the doing of", "some act" having the requisite "tendency".
"Moreover, the definition is essentially unhelpful in explaining what satisfies the strong language in which the central notion of the offence is expressed, namely, "to pervert" the course of justice. Attempts have been made - some helpfully, others "somewhat confusingly" - to elucidate that central notion by the use of synonym.
"In my view, the most that can usefully be said is that the notion of "pervert[ing]" the course of justice involves no more than an adverse interference with the proper administration of justice."
The elements of obstruction of justice are similar to, but different from obstructing a peace officer, perjury and public mischief. Those crimes have their own definitions within the Code.
A unique feature of this particular offense is that it covers attempts to obstruct justice; not just successful obstructions.
As previously stated, it also covers obstruction of judicial proceedings not yet engaged, or even judicial proceedings which might otherwise have little prospect of success, as well as protecting the proceedings of administrative tribunals such as Law Society disciplinary proceedings.
The words “obstruct, pervert or defeat” have been subjected to judicial scrutiny. In R v Yarlasky, the Ontario Court of Appeal stated that the following is necessary for a conviction of obstruction of justice:
“... that the accused must have done enough for there to be a risk, without any further action by him or her, that injustice will result, and the attempt by the accused to obstruct justice must have been wilful. A defence of honest mistake of fact is a defence to the charge of obstruction of justice.”
In R v Murray 186 DLR 4th 128, the Ontario Superior Court of Justice had occasion to consider this offence in the context of the infamous Paul Bernardo case. Bernardo:
"... was charged with attempting to obstruct justice by concealing (indescribably horrible) videotapes which he removed from his client's home on the client's instructions. Shortly after the accused removed the videotapes, his client was charged with first degree murder and related offences in the deaths of two teenaged girls. The accused retained the tapes for 17 months without disclosing the existence of the tapes to the Crown. The tapes were eventually turned over to the police by counsel who took over the case from the accused. The tapes were used by the Crown at the murder trial."
But Murray was acquitted when the judge said that there subsisted in his mind a reasonable doubt - not as to the actus reus but as to Murray's mens rea.