Les principes applicables à l'infraction d'entrave à la justice

R. v. Matthew Melo, 2014 ONSC 1364

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[22]      For me to find Mr Melo guilty of obstructing justice, Crown counsel must prove, beyond a reasonable doubt, each of the following essential elements of the offence:

i.              that Mr Melo is guilty of the conduct alleged, (i.e., that he withheld evidence pertaining to a firearms investigation);

ii.            that his conduct had a tendency to obstruct, pervert or defeat the course of justice; and

iii.           that Mr Melo intended, by his conduct, to obstruct, pervert or defeat the course of justice.

[23]      By way of general principles applicable to the determination of such issues, I note that they include the following:

•         Although “the course of justice” in this context includes judicial proceedings, either existing or proposed, it is not limited to such proceedings.  The offence under s.139(2) also includes attempts by a person to obstruct, prevent or defeat a prosecution which he contemplates may take place, notwithstanding that no decision to prosecute has been made; see R. v. Spezzano (1977), 1977 CanLII 1371 (ON CA), 34 C.C.C. (2d) 87 (C.A.).

•         The term “course of justice” also includes an investigatory stage which may lead to a prosecution:  R v. Wijesinha, 1995 CanLII 67 (SCC), [1995] 3 S.C.R. 422.

•         Although framed in the language of an “attempt”, s.139(2) in fact creates a substantive offence, the gist of which is the doing of an act which has a tendency to prevent or obstruct the course of justice and which is done for that purpose; see R. v. May (1984), 1984 CanLII 3489 (ON CA), 13 C.C.C. (3d) 257 (Ont.C.A.), leave to appeal to the S.C.C. refused, [1984] 2 S.C.R. vii.

•         It is not necessary that the tendency materialized; see R. v. Graham (1985), 1985 CanLII 3644 (ON CA), 20 C.C.C. (3d) 210 (Ont.C.A.), affd 1988 CanLII 94 (SCC), [1988] 1 S.C.R. 214.  The gravamen of the offence under s.139(2) is the wilful attempt to obstruct justice, and it does not matter that the attempt was not only unsuccessful but could not have been successful; see R v. Hearn (1989), 1989 CanLII 3938 (NL CA), 48 C.C.C. (3d) 376 (Nfld.C.A.), affd 1989 CanLII 14 (SCC), [1989] 2 S.C.R. 1180.

•         The offence nevertheless requires the specific intention to obstruct justice; see R. v. Charbonneau (1992), 1992 CanLII 2979 (QC CA), 74 C.C.C. (3d) 49 (Que.C.A.).