What if someone threatens to sue someone for testfying falsely?

R. v. Pare, 2010 ONCA 563 deals with the surprising common situation where someone threats to sue a potential witness for testifying. Does that amount to an attempt to obstruct justice?

This case turns on the meaning to be attached to s. 139(3)(a) of the Criminal Code, which provides that every one who, in a judicial proceeding, "dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence" shall be deemed to wilfully attempt to obstruct the course of justice.  The gist of the offence is the use of corrupt means to influence a witness. 

Attempting to persuade a witness to change their testimony, even to change the testimony to what the accused believes is the truth, is an offence where the means of persuasion is corrupt. 

Offering money to a complainant in a criminal case to change her testimony is a classic example of corrupt means.  See R. v. Kotch (1990), 61 C.C.C. (3d) 132 (Alta. C.A.) at 136.

The Court holds such a threat may or may not be improper depending on the intent:


[12]          It was somewhat clearer that the respondent had instructed Mr. Harcus to tell Ms. Z that if she persisted in her false complaint he would sue her.  The more difficult question is whether the respondent had the specific intent to threaten Ms. Z.  In other words was this an improper attempt to intimidate the witness by corrupt means or merely an attempt at persuasion?  In some circumstances a threat to exercise legal rights by instituting a civil suit could amount to a corrupt means depending upon the accused's intent.