02.25.2019 09:00 AM

#LavScam legal: why I think some folks in Ottawa may have obstructed justice

A reporter and I went back and forth on the issue today.  He had written there was no chance of a criminal charge.  I disagreed.

I told him the actus reus of the offence of obstructing justice, under s. 139, is that the act simply needs “the tendency to defeat or obstruct the course of justice”.(See: R. v. Robinson, 2012 BCSC 430 at 21). “The tendency.” That’s a pretty low bar, no?

That’s not all, as they say: the accused need only have only created a risk that an injustice will occur. (See: R. v. Graham, (1985), 20 C.C.C. (3d) 210 (Ont. C.A.), which was affirmed before the Supremes at 1988 CanLII 94 (SCC), [1988] 1 S.C.R. 214).  And, anticipating what the likely accused may say, it’s no defence that the actions were an error in judgment or a mistake. (See R. v. Yazelle 2012 SKCA 91 (CanLII)).  Won’t work.  Neither will saying – as they’ve done, over and over – that jobs were at stake.  They’d get laughed out of the courtroom (no case law needed).

I’ve felt from the start that this thing will end up in Court.  Acquittal or not, R. v. Duffy demonstrates why that may be unhelpful in an election year.


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    Dave Bainard says:

    Start arresting and confiscating passports.

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    Joseph says:

    Mens rea – check
    Actus re – check
    There are two other requirements professor and I can’t recollect off hand, but something that sounds like commit or concurrence I believe.
    If you could be so kind as to edify.

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      Warren says:

      Not sure what you mean

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        Joseph says:

        Ok found it.
        The other two are conduct and concurrence.
        Pretty sure there is objective evidence to support them but my knowledge of written law would make me ill equipped to describe how.
        Perhaps you could fill in the details for this ignorant bumpkin.

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    Ron Benn says:

    Reporters are often asked, off the record of course, to present a case for the politicos who feed them. No need for research, no fact checking required, just copy and paste journalism.

    So, thank you Mr. Kinsella for providing a “legal review” of the case, as contrasted with the spin regurgitated by the journalist.

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    Cyndie Paul-Girdwood says:

    In this particular situation, who would be the defendant(s)? Also, would this occur as a result of the RCMP laying charges?

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      Warren says:

      Do you actually expect me to name people and get sued? No thanks. Feel free to do so on your own web site, however.

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        Ronald O'Dowd says:

        A solicitor she ain’t.

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    the salamander says:

    .. True enough.. and aint it ironic that the law and such cases are likely the principal deciding factors for a Prosecuter ! And the likelihood of a conviction of course.

    We in the salamander horde maintain the Lavalin imbroglio may, without any ironclad testimony or evidence, written, recorded, contemporaneous notes, email, docs.. pertinent of course .. become a ‘she said – they said’ political and legal standoff.

    We maintain that Ms Wilson-Reubould could and should create a chronology with names and dates, with whom she met, discussed, conversed, was lobbied, was ‘urged’ by, or there were ‘attempts to press her’ or ‘was pressed’ or experienced ‘heavy pressure upon her’.. (note – in italics are courtesy of Globe and Mail 2nd or 3rd hand hearsay evidence evolved & published per ”anonymous political insider’ sources – To describe as ‘hearsay’ perhaps Warren could opine how a judge might rule re such as ‘evidence’)

    She could then bisect said list or chronology with two lines. A RED line to represent the legal cutoff date or stage where there could be no overrule of the Director of Prosecution, Ms Roussel.

    A 2nd BLUE line (the offside line) she could use under any meeting she felt was either after the cutoff, or simply asking her to flout law, or attempt obstruction. That’s a big thick line by the way.. It too gets right to Warren’s point of law. Does it indicate collusion on the part of the Attorney General ? No. Far from it. It may be the hinge this nonsense swings on though. Would it represent ‘Obstruction’ ? Bet the farm on it..

    Simultaneously, the Norman Criminal Case – remarkably similar re all the same names and roles etc.. ran head on into one Ms Marie Henein.. and a judge who immediately spoke aloud in an open court, supporting her claim and evidence (zero hearsay) of delay, avoidance, relectance or oh no say it aint so – Obstruction or Collusion by Government and Prosecution to prevent Discovery Evidence being in the hands of Mr Norman’s Defense.

    What a 2nd can of worms..

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    whyshouldIsellyourwheat says:

    “I hope you can see your way clear to letting this go, to letting Flynn go,” Trump told Comey, “He is a good guy. I hope you can let this go.”

    How many people in the Trudeau government had a similar or even more forceful conversation with Wilson-Raybould about SNC-Lavalin? After the DPP had made her decision?

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    Vancouverois says:


    In this case, it’s looking more and more like that would not happen.

    Or rather, *should* not happen.

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    Ronald O'Dowd says:

    Well, I think legal proceedings — such as they are — in Israel are highly instructive. I expect developments in Canada to move at a similar pace.

    In my case, I’m definitely not betting the farm.

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    Mike Jeffries says:

    If this is ‘much ado about nothing’ WHY the resignations Justin? Why?
    The simpleton that I am understands that resignations are never about nothing Justin!

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    JamesHalifax says:

    I remember Duffy-gate like it was yesterday…….

    Fat dude expenses things that are really outside of the pale; though all completely legal. The Prime Minister of the Day thinks it stinks, and demands that it get paid back to the taxpayer.
    Fat dude can’t….he bought a bunch of Krispee Kremes and hasn’t got a nickle to his name (so he says).
    Prime Minister at the time has a friend and staffer who is a billionaire. The amount is peanuts; pocket change to him, so he cuts a cheque to keep the Boss from knowing his orders weren’t obeyed.
    Press was on it non-stop for several years………

    Conservative Scandal – Conservative Prime Minister demands that taxpayers not be taken advantage of. Rich dude pays the difference from his own pocket…and turns out, the fat dude didn’t do anything (legally) wrong.

    Why do Conservative Scandals involve conservatives paying out of pocket, whereas LiBeral scandals always involve corruption, graft, back-scratching and bag men?

    Hey…at least our PM has nice hair and good teeth. that has to count for something.

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      Derek Pearce says:

      Let me remind you of a little something called Airbus before you get too smug.

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