A credit to justice system

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The trial of two Winnipeg police officers on charges of obstruction of justice, based on a Crown attorney's evidence they admitted fabricating evidence to build a case against a suspected drug dealer, awaits the presiding judge's decision. But it already has shown the standards that apply to the bad guys also apply to the good guys.

Federal Crown attorney Erin Magas testified she had to drop charges against an alleged drug trafficker. She said the officers changed their original story about how and why they came to follow a 20-year-old man into a Redwood Avenue house, without a warrant, where they found cocaine and cash, and arrested him. She testified they admitted their original report, that they were on patrol when they witnessed a four-man fight in the home's backyard that led them to chase one of the fleeing combatants into the home, was false. The officers, on the other hand, maintain they and Magas had a "simple misunderstanding" about what they related to her in a pre-trial meeting.

In Canada, obstruction of justice prosecutions against police officers are rare. Convictions are rarer still.

Unlike the United States, where both federal and many state laws govern obstruct-justice charges, obstruction of justice is exclusively a federal offence under the Criminal Code, and it can be tricky to prove.

It's a crime where two classes of conduct are potentially in play.

The first class is the easy one. It's composed of acts forbidden by the express language of the Criminal Code. It includes threatening, or bribing, or attempting to bribe, witnesses or jurors. The Code section conveniently lists these, and other, examples of obstruction of justice.

The second class is the problematic one. It consists of acts not expressly prohibited, but wrong enough to be caught by the crime's broad, almost omnibus, definition. It criminalizes any act by anyone "who willfully attempts in any manner to obstruct, pervert or defeat the course of justice." An abstract definition, but, given the right fact scenario, still readily susceptible of charge, proof and conviction.

And its net is wide. In 1998, it caught besotted Vancouver juror, Gillian Guess. She was convicted of obstruction of justice and sentenced to 18 months in jail plus one year of probation for sleeping with accused double-murderer Peter Gill while she sat on the jury during his eight-month trial. The case was a cause célèbre. But it was also a precedent-setting example of the elastic reach of obstruction of justice.

The key to successful prosecution of an obstruction of justice charge is proof the attempt to obstruct justice was "wilful," which the law pretty much interprets as synonymous with being intentional. An error or an honest mistake of fact, however seriously it interferes with the administration of justice, shouldn't result in a conviction.

Despite the case against the two Winnipeg police officers being a difficult prosecution, falling as it does squarely in the problematic second class of obstruction charge, it was ultimately a healthy exercise all around. The criminal law sets limits on what citizens can do to each other. But it likewise prescribes limits on what police can do to citizens who happen to be suspects. Regardless of outcome, if the prosecution of these officers proves nothing else, it proves the same standards that apply to the bad guys apply to law-enforcement officers. And that's a credit to our criminal justice system.

Republished from the Winnipeg Free Press print edition June 13, 2012 A10