Obstruction of Justice and Accessory after the Fact
Just checking on the formal definitions of obstruction of justice and accessory after the fact.
Here is the formal definition of obstruction of justice from the Canadian criminal code, Part IV, Offense Against the Administration of Law and Justice, Misleading Justice, Obstructing Justice:
139. (3) Without restricting the generality of subsection (2), every one shall be deemed wilfully to attempt to obstruct, pervert or defeat the course of justice who in a judicial proceeding, existing or proposed,
(a) dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence;
(b) influences or attempts to influence by threats, bribes or other corrupt means a person in his conduct as a juror; or
(c) accepts or obtains, agrees to accept or attempts to obtain a bribe or other corrupt consideration to abstain from giving evidence, or to do or to refrain from doing anything as a juror.
A proposed judicial proceeding. Let's say I have evidence that a crime has been committed, say forged documents, and I make it known that I'm about to call the police. In other words, the act of calling the police implicity constitutes a proposal that a judicial proceeding be initiated. Then someone offers me money on the condition that I do not call the police. Potentially some guilty party will now avoid paying for his crimes (I say "potentially" because until the police complete the investigation, we can't be certain that a crime has indeed been committed). Is that obstruction of justice under the code?
What if the person who makes the offer is knowingly protecting a specific person who might be charged at the guilty party? Does that change things?
Interestingly, it is the attempt that is illegal, regardless of whether it succeeds at preventing the wheels of justice from turning.
One question is whether calling the cops counts as part of a judicial proceeding:
“judicial proceeding” means a proceeding
(a) in or under the authority of a court of justice,
(b) before the Senate or House of Commons or a committee of the Senate or House of Commons, or before a legislative council, legislative assembly or house of assembly or a committee thereof that is authorized by law to administer an oath,
(c) before a court, judge, justice, provincial court judge or coroner,
(d) before an arbitrator or umpire, or a person or body of persons authorized by law to make an inquiry and take evidence therein under oath, or
(e) before a tribunal by which a legal right or legal liability may be established,
whether or not the proceeding is invalid for want of jurisdiction or for any other reason;
Is a police investigation considered a judicial proceeding? Are police acting under the authority of a court of justice?
Or is there another part of the Criminal Code that says you can't offer money to people in return for not reporting a what might be a criminal act?
Or is it legal in Canada to make that part of a contract? Especially if one party has already indicated that they are considering calling the police because of strong suspicions held that a crime has been committed?
Interesting questions.
And then there is accessory after the fact:
23. (1) An accessory after the fact to an offence is one who, knowing that a person has been a party to the offence, receives, comforts or assists that person for the purpose of enabling that person to escape.
So providing any kind of assistance to help a specific person avoid being caught by the police is illegal. But for it to be a crime, it requires knowing someone is guilty of a crime, and not merely being suspicious, at least as I read this.
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Comments
I'm no lawyer, but I deal with legalese in contracts every day. The way I read that is that technically, Pretlove was not obstructing justice.
You're pinning the whole arguement on the $15,000 payback equalling a bribe. Pretlove could make the arguement that he was offering restitution on Pawluck's behalf. The riding association was missing $15,000. He offered to pay the $15,000 back to the riding association. No bribe was offered. IMHO.
Think of it this way. You have a kid who steals a pack of gum from the store. You find out and drag him/her back, make the kid appologize to the shop keeper and you pay for the pack of gum. Is the shop keeper obliged to call the police still? And have you commited an offense of obstruction of justice? Not at all. It is the shop keeper's discretion whether or not to accept the restitution or report the shoplifting.
Likewise it was the discretion of the riding association whether or not to accept the restitution or call the police. They chose to call the police.
Posted by: Reid at July 20, 2007 02:20 PM
...Liberals:
"Justice, what justice?"
(with apology to Sgt. Schultz...)
Posted by: tomax7 at July 20, 2007 03:18 PM
Mr. Reid
The only weak point of your presentation is the shopkeeper. He owns the store and the goods and was personally affected by the loss.
The person paying for the gum, if a parent could be blamed, *cough*, or in the case of "you" paying, well with your own money is fine, again, who owns the money, or accountable for its distribution.
In this case, the Liberal Party do not privately own the money per se as say a common Joe Smuck would. Nor was there any tangible goods exchanged in the event.
It is like robbing Peter to pay Paul, or Quebec Hydro to pay a BC TEL accounting error.
Unless, of course this payment was for "service rendered"...
Posted by: tomax7 at July 20, 2007 03:25 PM
Tomax:
I don't think that matters. The riding association executive was elected by the rank and file members to act on their behalf. As a member of a political party myself all the riding association requires is a quorum of the executive and then a majority vote of that quorum to conduct any business on behalf of the association.
If they had chosen to accept the offer of restitution, there is nothing that the rank and file could have done other than vote in a new executive at the next AGM.
And back to the shopkeeper... there's nothing that says he has to be the sole owner of the business. When I was going to university I was an assistant manager of a convenience store owned by a very large corporation. The manager, and myself as assistant, were authorized by the corporation to act on their behalf in matters such as shoplifting. We did not have to start phoning up the chain of command, or contact each and every share holder for that matter, to see if they wanted a prosecution.
That Snickers bar that was stolen wasn't owned by the individual store, it was owned by each and every share holder of that corporation. But I still had the discretion as to whether or not to call the police. I didn't HAVE to call them.
Plus, there doesn't need to be an exchange of tangible goods. Had that kid brought back the package of gum, un-opened, then he/she could have just returned what they had stolen. I made the assumption that they would have opened the gum and thus restitution would have to be made in equal monetary value.
If $15,000 was stolen from the riding association, then an offer of restitution of $15,000 is appropriate. N'est pas? Where that money for the restitution was obtained (as long as it was not illegal means) is irrelavent. Pretlove could have chosen to give it or loan it to Pawluck. There's nothing that says Pawluck has to pay it back herself. Just like the parent paying for the gum on their child's behalf.
Posted by: Reid at July 20, 2007 03:39 PM
Thanks for the insight Reid. But can you comment on the condition attached to the "offer of restitution" that the police not be involved? How does that factor into this?
Posted by: Steve Janke at July 20, 2007 04:00 PM
Let me expand. If I'm constrained by the conditions of the offer not to call the police, and then I find that I've underestimated the amount taken, or that some other malfeasance had occurred, I might be in a bind depending on how vague the "don't call the cops" condition is. The point of calling the police is to understand whether a crime has been committed and to determine the scope of the crime.
Does it matter if the restitution was offered only after the threat of police involvement was made?
Does it matter if the money came from the government? In other words, since parties are paid by Elections Canada based on their performance in the last election, does this constitute tax money being stolen? Or does it stop being tax money once it is given over to the parties? But then they are *political* parties, and the money wasn't given as payment for services, but as a means of continuing the political process.
You could really get twisted up into knots over this sort of thing.
Posted by: Steve Janke at July 20, 2007 04:06 PM
Steve -
139 would not be applicable here. An "existing" proceeding is one that is underway, a "proposed" is one that is scheduled but not yet commenced. The earliest that a judicial proceeding would come in to being is when an information is sworn ( i.e. charges are placed before a court).
You're not far off though. Look a few sections further in the Code to 141. Except it's not the person who offers " valuable consideration" who commits the crime but rather the person who accepts the money to cover up the crime that would be charged ( if they did so without the consent of the AG).
Posted by: Nbob at July 20, 2007 04:40 PM
Certainly it doesn't seem like that statutes define this situation as illegal. Which brings it back to a political question -- what does it say about the Liberal Party that there is an attempt to cover up a theft of this magnitude?
Posted by: Steve Janke at July 22, 2007 11:25 AM
I agree Steve. I don't think it's illegal. But it's highly unethical in my opinion. It underscores the depths of corruption within the Liberal Party. Rather than try and clean up their act they continue to sweep things under the rug.
Back to your original question though (as I hate to leave a problem unsolved)...
I think that the "restitution" agreement should be pretty clear. For example it would say something like "repayment of all funds missing" which wouldn't preclude them from getting more in the future if more was found to have been taken. Also, I don't think the language would be along the lines of "absolving of any and all crimes found now or in the future." If I was the one seeking the restitution I'd make sure the language of any agreement didn't tie my hands for future unknown actions.
Posted by: Reid at July 23, 2007 09:26 AM
 
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