Musings —02.25.2019 09:00 AM—
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),  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.
#LavScam legal: I think some folks in Ottawa are in legal peril. Why, #cdnpoli? To lay Obstruction of Justice Charge, need:
• a pending federal judicial proceeding;
• defendant knew of it;
• defendant had corrupt intent to interfere with/attempt to interfere with proceeding.
— Warren Kinsella (@kinsellawarren) February 25, 2019