Obstruction charges are difficult to prove as they require the Crown to show the accused intended the obstruction, says Glen Luther.
A lawyer and University of Saskatchewan law professor says an obstruction of justice charge faced by a Regina lawyer will likely be difficult to prove in court.
“Certainly, that is a notoriously difficult offence to prove,” said Glen Luther, whose areas of specialty include criminal law and procedure, police powers and evidence law, among other areas.
This week, the Regina Police Service announced it had laid an obstruction of justice charge against Sharon Fox, alleging she improperly disclosed information in 2019 that had interfered in an ongoing police investigation.
Fox hit back with a brief statement, saying she had been charged “for doing my job as criminal defence lawyer.”
“I will not be intimidated by the police into withholding information from my client when it would be unethical to do so,” she said. “I look forward to having my position vindicated in court.”
While details of the allegation have not yet been made public, Luther said in general, such charges are difficult to prove in court. They are also fairly rare. Of the couple of Canadian cases he was immediately aware of involving lawyers, acquittals resulted.
The issue, he said, involves what’s known as mens rea, or the element of the charge requiring the Crown to prove intent.
“Obstruction has a very high mens rea or guilty mind standard …,” Luther said. “They have to prove that the lawyer intended to obstruct them and that’s going to be very difficult, I think — but we don’t (have) enough information to know.”
Assuming the material in question is disclosure provided to defence by the Crown — a normal process in which opposing legal counsel provide each other with various information they’ve accrued about a case — Luther said there are rules in place for how a defence lawyer is to handle that disclosure.
“When you receive information from your opponent, the courts have held that there’s an implied undertaking to use it only for the purposes of that litigation …,” he said. “The Crown tends to also put what they call trust conditions on the defence when they provide the disclosure, so there will be a letter from the Crown to the defence lawyer and the terms of that letter are highly important.”
Luther said terms of the Crown’s conditions may vary, and added there has been some debate in this area as to what conditions can be legally placed on defence counsel.
Common conditions he’s familiar with include not disclosing the information to others and for defence counsel to be present as their client reviews the material, so ensuring they aren’t left alone with it.
Luther said even if a lawyer breaks a trust condition, while it might get them in trouble with the Law Society, it shouldn’t be enough on its own to merit a criminal obstruction conviction.
He added it’s also important to remember that an accused has a constitutional right to see the information against him or her — meaning their lawyer has an obligation to show it to them.
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