CAPCJ / ACJCP

Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog

Offences-Attempting to Obstruct the Course of Justice

In R. v. Morrow, 2021 SCC 21, May 19, 2021, the accused was convicted of the offence of attempting to obstruct the course of justice. The accused had been charged with the offence of criminal harassment in relation to his former girlfriend.  He was released on a recognizance that included a condition prohibiting him from having contact with her.

The evidence at the trial indicated that after being released, the accused went to the complainant’s home and “told her how she could contact the Crown’s office to get the charges against him dropped. He also grabbed the complainant and forcibly kissed her. The complainant testified that she felt pressured and scared and did not want to kiss the appellant, but went along with it to get him out of the house” (see 2020 ABCA 407, at paragraph 1).

The accused’s appeal to the Alberta Court of Appeal was dismissed.  In dismissing the appeal, the majority concluded as follows (at paragraphs 16 and 17):

The gravamen of this offence is the doing of any act for the purpose of, or which has a tendency to, obstruct justice. Dissuading someone from testifying or from pursuing criminal charges can be such an act. The context of the act, the circumstances under which it occurred, and the relationship between the parties, both past and present, all inform a trial judge’s assessment of whether obstruction has been made out. Deference is owed to a trial judge, who had the benefit of hearing the testimony, assessing the credibility of that testimony, and understanding how the alleged obstruction occurred, in his assessment of the intention behind the impugned conduct. See R v Esau, 2009 SKCA 31 at para 50.

The appellant submits that there was no criminal intent in providing the complainant here with information as to how she could withdraw the charges. However, it was for the trial judge to determine whether the attempt to persuade the complainant to drop the charges and the provision of information as to how she could go about doing that amounted to improper pressure and therefor represented an attempt to pervert justice. The context clearly supports the inference made by the trial judge. The appellant knew that he had just recently been charged with harassing the complainant and that he had signed a recognizance promising not to contact her. Despite this, he went to her home to pressure her to drop the charges. He was persistent and refused to leave the home for over two hours. He sexually assaulted her. The complainant testified she was afraid. The trial judge inferred that the appellant knew his attendance at the complainant’s home would have a significant impact on her and concluded that his actions were undertaken with intent to dissuade the complainant from proceeding with the prosecution. The inference that the appellant applied pressure on the complainant for an improper purpose was available on the record. No palpable and overriding error has been demonstrated.

The accused appealed to the Supreme Court of Canada.  The appeal was dismissed. In a brief oral judgment, a majority of the Supreme Court stated:

A majority of the Court is of the view that the appeal should be dismissed, substantially for the reasons of the majority of the Court of Appeal at paras. 16 and 17 of its judgment. As the majority observed, the record clearly supports the inference drawn by the trial judge that Mr. Morrow’s conduct represented an attempt to dissuade the complainant, by corrupt means, from giving evidence. Mr. Morrow knew he had recently been charged with criminal harassment and that he was bound not to contact the complainant. Despite this, he attended her home uninvited and engaged her in a prolonged and distressing discussion about the process for withdrawing the charges and her reasons for bringing them. The complainant testified that the exchange made her feel “[p]ressured to please” Mr. Morrow and to get him out of the house (A.R., vol. II, at p. 30). Shortly thereafter, Mr. Morrow sexually assaulted her, which served to exacerbate her concerns. On the basis of this evidence, it was open for the trial judge to find that Mr. Morrow’s intention was to apply pressure on the complainant and ultimately to manipulate her into dropping the charges against him. The fact that Mr. Morrow may have also been motivated by a desire to rekindle his relationship with the complainant did not undermine the availability of this finding.

There was also evidence that contradicted Mr. Morrow’s position that he was simply responding to a request for information. The complainant made no such request to Mr. Morrow and she did not expect, nor was she interested in, the information he provided.

In these circumstances, and having regard to the fact that survivors of domestic abuse are particularly vulnerable to acts of intimidation and manipulation, the trial judge’s verdict was reasonable. There is no basis for appellate intervention.