PMO Scandal: A closer look at Criminal Code section 423.1(1)

Editor's Note: This article is a quick overview for the reader and should not be construed as professional legal advice.

The Leader of the Opposition, as well as five former Attorneys General, have extraordinarily called on the RCMP to investigate allegations surrounding the recent SNC-Lavalin scandal.

These calls specifically mention Criminal Code sections 139(2) and 423.1(1).

Here is a closer look at one of those sections. Check out the companion to this article, PMO Scandal: A closer look at Criminal Code section 139(2).

The letter of the law

423.1 (1) No person shall, without lawful authority, engage in any conduct with the intent to provoke a state of fear in...
(b) a justice system participant in order to impede him or her in the performance of his or her duties...
(3) Every person who contravenes this section is guilty of an indictable offence and is liable to imprisonment for a term of not more than fourteen years.Criminal Code section 423.1

The obvious three elements of this offence from the text of this section are:
1. conduct with intent to provoke fear and impede in the performance of duties;
2. a subject who fits within the definition of "justice system participant"; and
3. no lawful authority for the conduct.

How do courts interpret this section?

Interestingly, the interpretation of this section is specifically discussed in another section of the Criminal Code:

718.02 When a court imposes a sentence for an offence under... 423.1(1)(b), the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of this offence.Criminal Code section 718.02

Accordingly, in R v Armstrong (2008 BSCS 1693, aff'd 2012 BCCA 248), a BC trial court held that this section should be interpreted broadly in light of its purpose: "to acknowledge the unique role and circumstances of justice system participants and the potential for harm to the general performance of their duties occasioned by violence and threats".

In doing so, the court found that someone who is guilty of this crime only needs to be able to foresee that their conduct would be “sufficient to impede the official in the general performance of his or her duties”.

The decision was upheld on appeal.

How do courts determine whether the intimidation was intended?

In another BC case, R v Bergeron (2013 BCSC 443, aff'd 2015 BCCA 177), the trial court held that it was enough for an accused to know that a state of fear that would impede in the performance of duties would be a "substantially certain consequence" of their actions.

The decision went further to specifically say that "it does not matter whether he actually wanted to produce that result [of intimidating the justice system participant] or whether he was indifferent to it".

The "intimidation" in that case was a side-effect, and not the main goal, of retaliatory actions that the accused took against a Crown who had been involved in previous prosecutions against the accused.

Is the Attorney General a justice system participant under the Criminal Code definition?

Yes.

justice system participant?means
(a) a member of the Senate, of the House of Commons, of a legislative assembly or of a municipal council...Criminal Code section 2

What does it mean for there to be "lawful authority"?

In statutes, "lawful authority" often means "authorized under another statute", i.e. a legal principle known as statutory authority.

For example, a public official properly performing their duties might still have the (foreseeable) effect of "intimidation" as defined by s. 423.1.

The words "without lawful authorization" in this section would excuse such public officials from being charged for a proper execution of their duties, i.e. prevent them from being charged for exercising their proper authority as conferred by statute.

Does this section require actual violence or the threat of actual violence?

In R v Gaete (2011 ONSC 2957), the accused was acquitted by an Ontario trial court because there was no threat of actual violence.

There used to be a s. 423.1(2) that specified additional requirements to establish the offence under s. 423(1).

However, that subsection was repealed on April 23, 2015, under the Victims Bill of Rights Act, S.C. 2015, c. 13 (see page 12). It was a part of the legacy of victim-focused criminal law reforms left by former Attorney General Peter MacKay.

As the section reads now, there is no longer any mention of a requirement for violence or threat of violence in order to establish the offence under s. 423.1.

Practical Implications

It does seem that charges could be laid against at least a few individuals based on an examination of this section and the testimony of former Attorney General Jody Wilson-Raybould.

However, there is also a strong possibility that a court, for one reason or another, might not find that there was a violation of this section of the Criminal Code.

No legal question can be answered with certainty before it has gone to the Supreme Court, and it might be difficult to convince Canadians that an adequate answer has been given until that happens.