La preuve circonstancielle peut démontrer l'intention spécifique d'un accusé de commettre une entrave à la justice

R v Kaiswatum, 2019 SKCA 7

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[53]           The sole issue at the trial was whether the Crown had proven the necessary mens rea to make out an attempt to obstruct justice. The Crown conceded it was required to prove Mr. Kaiswatum verbalized a sound with the specific intention to obstruct, pervert or defeat the course of justice, in keeping with the decision of this Court in R v Yazelle, 2012 SKCA 91, 399 Sask R 249 [Yazelle], which explains the mens rea required to prove the offence of obstruction of justice:

[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). …

(Emphasis added)

[54]           Although it is correct to say there is no direct evidence of Mr. Kaiswatum’s specific intention, there was most certainly indirect evidence, in the totality of the circumstances, from which the trial judge could infer Mr. Kaiswatum’s intention, as he did. These circumstances included the initial inquiry made by Mr. Kaiswatum as to whether the accomplice could see the courtroom, the nature of the sound itself, and the implausible explanation for that sound offered by Mr. Kaiswatum when challenged about it.

[55]           In R v Villaroman, 2016 SCC 33, [2016] 1 SCR 1000, the Supreme Court addressed circumstantial evidence and made the following statements:

[35]      At one time, it was said that in circumstantial cases, “conclusions alternative to the guilt of the accused must be rational conclusions based on infer­ences drawn from proven facts”: see R. v. McIver, 1965 CanLII 26 (ON CA), [1965] 2 O.R. 475 (C.A.), at p. 479, aff’d without discussion of this point 1966 CanLII 6 (SCC), [1966] S.C.R. 254. However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149, at para. 28. Requir­ing proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by consider­ing all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof be­yond a reasonable doubt.

[36]      I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus , a reasonable doubt “is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence”: para. 30 (emphasis added). A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

[37]      When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: R. v. Comba, 1938 CanLII 14 (ON CA), [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff’d 1938 CanLII 7 (SCC), [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: R. v. Bagshaw, 1971 CanLII 13 (SCC), [1972] S.C.R. 2, at p. 8. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evi­dence or the absence of evidence, not on speculation.

[38]      Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.

(Underlining in original, italics emphasis added)

[56]           Here, the trial judge found that there was no “possible rational explanation” for the utterance other than Mr. Kaiswatum was intending to obstruct the proceedings and Mr. Kaiswatum’s explanation was a “lie”. Although not referenced, the trial judge expressed this conclusion with an evident eye to the case law just reviewed as to when circumstantial evidence is sufficient to establish proof beyond a reasonable doubt.

[57]           There is nothing remarkable in a trier of fact drawing an inference that an accused had the necessary mens rea based on the voluntary commission of the actus reus, along with any other circumstances that may be relevant. In R v Abdullah, 2010 MBCA 79, 323 DLR (4th) 275, the court observed as follows:

[51]      The specific intent of attempting to obstruct justice often must be inferred from the conduct of an accused and its surrounding circumstances. This inference is easily made where the conduct at issue is obviously detrimental to the administration of justice. …

[58]           The trial judge rejected, as not credible, Mr. Kaiswatum’s explanation for the noise he made and then, in the totality of the surrounding circumstances, found Mr. Kaiswatum had the intent to obstruct justice. There is no basis, within the strictures of R.P., to interfere with the trial judge’s decision in this regard. I therefore dismiss Mr. Kaiswatum’s appeal from his conviction for attempting to obstruct justice.

Le fait d'avoir posé un acte entravant la justice dans un autre but est un moyen de défense valable

R. v. Robinson, 2012 BCSC 430

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[22]           The mens rea requires specific intent so that an accused must in fact have intended to act in a way tending to obstruct justice (R. v. Hawkins, 2002 BCCA 3 at para. 5, 48 C.R. (5th) 21). It is a defence if the act was done for another purpose (R. v. Hearn (1989), 1989 CanLII 3938 (NL CA), 48 C.C.C. (3d) 376 (Nfld. C.A.) aff’d 1989 CanLII 14 (SCC), [1989] 2 S.C.R. 1180). It is not enough if Robinson’s actions were accidental or the result of mistake or a simple error in judgment (Watson at para. 17). Robinson must have known that what he was doing when he told Swallow that he took two shots of vodka post-accident would obstruct or interfere with the investigation of his impairment and that he intended that it would do so.

La mens rea requise pour commettre l’infraction d’entrave à la justice nécessite la preuve d’une intention d’entraver la justice qui va au-delà de l’intention de poser un geste qui a pour effet d’entraver la justice. Il n’est pas suffisant de démontrer que l’accusé a fait quelque chose ou a omis de faire quelque chose qui a pu avoir un effet sur le cours de la justice

R v Nelson, 2016 SKCA 127

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[2]               It is not in dispute s. 139(2) establishes a specific intent offence. Before one can be found guilty of obstructing or attempting to obstruct justice, the Crown must prove beyond a reasonable doubt the accused acted specifically to obstruct justice. A simple error of judgment or an inadequate exercise of discretion does not constitute the requisite mens rea for the criminal offence of obstructing justice (R v Beaudry, 2007 SCC 5 at para 52, [2007] 1 SCR 190). This Court has repeatedly held the mens rea for obstruction of justice involves proof of an intention to obstruct justice beyond just an intention to do an act which has the effect of obstructing justice (see: R v Ross, 2013 SKCA 45 at para 35, 414 Sask R 108; R v Yazelle, 2012 SKCA 91 at para 4, 399 Sask R 249). It is not sufficient that the accused did something or failed to do something which may have some effect on the course of justice. The accused must have wilfully committed an action or inaction which had a tendency to obstruct or pervert the course of justice and must have intended to obstruct or pervert the course of justice in behaving in this way (see: R v Easu, 2009 SKCA 31 at para 48, 324 Sask R 95 and R v Alsager, 2016 SKCA 91 at paras 45-57).

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.

Une fausse déclaration délibérée fournie à la police durant l'enquête policière peut équivaloir à de l'entrave à la justice

R. v. Theriault, 2020 ONSC 3317 

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[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. (6^th) 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.

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.).

La mens rea de l'infraction d'entrave à la justice

R v Yazelle, 2012 SKCA 91

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[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.