R v Yazelle, 2012 SKCA 91
[1] The offence of attempting to obstruct justice pursuant to s. 139(2) of the Criminal Code is a substantive offence (see: R. v. May (1984), 1984 CanLII 3489 (ON CA), 13 C.C.C. (3d) 257 (Ont. C.A.)) and one of specific intent (see: R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at para. 52, and R. v. Charbonneau (1992), 1992 CanLII 2979 (QC CA), 74 C.C.C. (3d) 49 (Que. C.A.)). The sole issue arising in the appeal is whether, in acquitting Christopher Gene Yazelle of obstruction, the trial judge misapprehended the mens rea requirement of the offence.
[4] The Crown does not dispute that obstruction is a specific intent offence. While it had initially submitted that, in this case, the mens rea of the offence of obstruction is manifest upon proof of the actus reus of the offence, the Crown agreed in oral argument that the requisite mens rea requires proof of an intention to obstruct justice, not just an intention to do an act which has the effect of obstructing justice (see: R. v. Beaudry; R. v. Abdullah, 2010 MBCA 79, 259 C.C.C. (3d) 193, at paras. 38-39; and R. v. Esau, 2009 SKCA 31, 324 Sask. R. 95). Nevertheless, due to the natural consequence of the actus reus in this case (i.e., a refusal to testify), the Crown says the only inference available is that Mr. Yazelle intended to obstruct justice. As to the question of law alone which is necessary to found the Crown’s appeal, the Crown submits the trial judge erred by conflating motive and intent to improperly conclude that a specific intent to obstruct had not been made out on the evidence before the court.
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