L'entrave à la justice en lien avec de prêter serment avant de rendre témoignage

R. v. Abdullah (G.) et al, 2010 MBCA 79

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38               When a person does not fulfill their duty to testify there can be consequences.  Often it is a citation or charge for contempt of court, as was the case in Lamer, Henry, Ayres, Neuburger and Jacob.  While a finding of contempt followed by a sentencing is the usual consequence, it is not the only one.  A person who is obliged to testify, but refuses to be sworn or affirmed to give evidence, can also be charged with obstruction of justice pursuant to s. 139(2) of the Code, as was the case here.  In such event, the Crown must prove beyond a reasonable doubt the elements of the offence (the actus reus and the mens rea), which were explained by Charron J. in Beaudry (at para. 52):

 

….  To sum up, the actus reus of the offence will be established only if the act tended to defeat or obstruct the course of justice ….  With respect to mens rea, it is not in dispute that this is a specific intent offence ….  The prosecution must prove beyond a reasonable doubt that the accused did in fact intend to act in a way tending to obstruct, pervert or defeat the course of justice.  ....

 

 

39               Being a specific intent offence, the accused must not only intend to act in a way that tends to obstruct, pervert or defeat the course of justice, but he must specifically intend to obstruct, pervert or defeat the course of justice by his acts.  See Beaudry, Charron J.’s reasons at paras. 54, 74, and Fish J.’s reasons at para. 85.  What this means is that the acts in question must have been done with the purpose of perverting or obstructing the course of justice (R. v. May (1984), 1984 CanLII 3489 (ON CA), 13 C.C.C. (3d) 257 (Ont. C.A.), R. v. Graham (1985), 1985 CanLII 3644 (ON CA), 20 C.C.C. (3d) 210 (Ont. C.A.), aff’d 1988 CanLII 94 (SCC), [1988] 1 S.C.R. 214, and R. v. Hoggarth (1956), 1956 CanLII 515 (BC CA), 119 C.C.C. 234 (B.C.C.A.)) or with knowledge or awareness that the acts in question would or might lead to a perversion or obstruction of justice (R. v. Guess, 2000 BCCA 547, 148 C.C.C. (3d) 321, leave to appeal to S.C.C. dismissed, [2000] S.C.C.A. No. 628 (QL)).

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.  In this case, the accused stated that they did not want to testify because of safety concerns for their families and because they did not want to be branded as rats within their gang.  These are both clearly motives.  The accused also offered, as a reason for not testifying, that they did not want to lie and that the videotaped statements were false.  I will deal with this later.

41               Intention should also not be confused with desiring or wanting a particular outcome.  A person can intend a particular outcome, in the sense that he or she knows or foresees it, even if he or she does not want or desire that it occur.  This is stated as follows by Martin J.A. in R. v. Buzzanga and Durocher (1979), 1979 CanLII 1927 (ON CA), 49 C.C.C. (2d) 369 at 384-85 (Ont. C.A.), and adopted by Hall J.A., with the concurrence of the rest of the court, in Guess (at para. 30):

… [A]s a general rule, a person who foresees that a consequence is certain or substantially certain to result from an act which he does in order to achieve some other purpose, intends that consequence.  The actor’s foresight of the certainty or moral certainty of the consequence resulting from his conduct compels a conclusion that if he, none the less, acted so as to produce it, then he decided to bring it about (albeit regretfully), in order to achieve his ultimate purpose.  His intention encompasses the means as well as to his ultimate objective.

 

42               In Beaudry, the Supreme Court upheld the conviction of a police officer for obstructing justice where the issue at trial focussed on whether the police officer’s exercise of discretion in not laying a charge against a fellow officer raised a reasonable doubt about his intent to obstruct justice.  Charron J. explained that when an accused’s exercise of discretion is at issue (at para. 52):

 

….  [a] simple error of judgment will not be enough.  An accused who acted in good faith, but whose conduct cannot be characterized as a legitimate exercise of the discretion, has not committed the criminal offence of obstructing justice.