R. v. Theriault, 2020 ONSC 3317
[234] In terms of the offence of attempt to obstruct justice, s. 139(2) of the Criminal Code makes it an offence for a person to wilfully attempt in any manner to obstruct, pervert or defeat the course of justice. The attempt must be wilful and it must result in at least a risk that, without any further action, an injustice will result; see R. v. Yarlasky, 2005 CanLII 3936 (ON CA), [2005] O.J. No. 606 (Ont.C.A.). It is not required that the attempt be successful or even possible; see R. v. Hansen, 2016 ONSC 548, aff’d 2018 ONCA 46 and R. v. David (2009), 2009 CanLII 37705 (ON SC), 68 C.R. (6th) 139 (Ont.S.C.J.) at paras. 24-26. The “course of justice” includes the investigative stage of the process; see R. v. Wijesinha, 1995 CanLII 67 (SCC), [1995] 3 S.C.R. 422 at paras. 27-34 and R. v. Spezzano (1977), 1977 CanLII 1371 (ON CA), 34 C.C.C. (2d) 87 (Ont.C.A.). A knowingly false statement given to police during the course of an investigation can amount to attempt to obstruct justice. The falsity of the statement can be based on a material omission.
[235] However, in the absence of a duty to provide information, mere omission standing alone is generally not sufficient to make out the offence of obstruct justice. The statement as a whole must be assessed in context. If, by virtue of a material omission, the statement made to an investigator is false in the sense that it has the tendency to obstruct, defeat or corrupt the ends of justice, the actus reus of the offence has been established. If the statement, including the omission, was given with the requisite intent to obstruct, defeat or corrupt the ends of justice, the offence is complete; see R. v. Hoggarth (1956), 1956 CanLII 515 (BC CA), 25 C.R. 174 (B.C.C.A) and R. v. Beaudry, 2007 SCC 5 at para. 52.
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