Obstruction of a Peace Officer (Offence)
|Obstruction of a Peace Officer|
|s. 129 of the Crim. Code|
|Election / Plea|
summary proceedings must initiate within 6 months of the offence (786(2))
Sup. Court w/ Jury (*)
|Types of Release||Release by Officer, Officer-in-charge, or Judge|
|Avail. Disp.||Discharge (730)|
Conditional Sentence (742.1)
|Maximum||six months jail and/or a $5,000 fine|
|Avail. Disp.||same as summary|
|Maximum||2 years incarceration|
Offences relating to obstruction of a peace officer are found in Part IV of the Criminal Code concerning "Offences Against the Administration of Law and Justice".
|Crown Election||Defence Election|
|s. 129 [obstruction of a peace officer]||Hybrid Offence(s)||Yes||Yes, if Crown proceeds by Indictment|
On Attendance Notice
On a Promise to Appear
Undertaking or Recognizance
a Judge or Justice
on a PTA, Undertaking or Recog.
|Direct to Attend |
for Fingerprints, etc.
Identification of Criminals Act
s. 2 ID Crim. Act
When charged under s. 129, the accused can be given an attendance notice without arrest under s. 496 or a summons. If arrested, he can be released by the arresting officer under s. 497 on an attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. He can also be released by a justice under s. 515.
If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:
- while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
- "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
- where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
- where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
A peace officer who charges a person under s. 129 of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.
For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
The Criminal Codes states:
Offences relating to public or peace officer
129. Every one who
- (a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer,
- (b) omits, without reasonable excuse, to assist a public officer or peace officer in the execution of his duty in arresting a person or in preserving the peace, after having reasonable notice that he is required to do so, or
- (c) resists or wilfully obstructs any person in the lawful execution of a process against lands or goods or in making a lawful distress or seizure,
is guilty of
- (d) an indictable offence and is liable to imprisonment for a term not exceeding two years, or
- (e) an offence punishable on summary conviction.
R.S., c. C-34, s. 118; 1972, c. 13, s. 7.
Proof of the Offence
Proving obstruction of a peace officer in execution of duty under s. 129(a) should include:
Proving obstruction of a peace officer by failing to assist under s. 129(b) should include:
Proving obstruction of any person executing process under s. 129(c) should include:
Interpretation of the Offence
Executing His Duties
An officer cannot be obstructed where he is not in execution of his duties. Where the officer is acting outside of his "lawful authority" he cannot be in execution of his duties.
It is not necessary for the Crown to prove that the officer was engaged in the execution of a specific duty.
An "off-duty" peace officer can still be in the execution of his duties, effectively becoming "on-duty", regardless of whether he is not in uniform or not "on-shift". It does not matter whether the officer believes he is on duty. It is whether the person is "acting in the course and scope of what should be [his] duties, or are [his] duties" then he meets the definition.
"Obstruct" means "to impede; to interpose impediments to the hindrance or frustration of some act or service; such as to obstruct an officer in the execution of his duty".
There is no substantial difference between "resist" and "obstruct". They both involve the interference with the police officer engaged in his duty. They simply create two different means of committing the offence. The mens rea for both actions are the same.
A false name corrected after 15 minutes was insufficient.
The offence is not intended to capture acts that amount to a "lapse of judgment" that is "quickly corrected."
The greatest determiner is whether the officer's investigations were interfered with.
Notifying other people of the presence of the police can be a form of obstruction.
Destroying or hiding evidence may be obstruction.
Lack of Cooperation vs Obstruction
Mere uncooperativeness during an arrest is not enough to be an obstruction. There must be some "active physical resistance" against the arrest. This can include pulling away from the arresting officer while being restrained.
"Passive resistance" where there is an "absence of any degree of physical resistance" is not obstruction. Holding onto a steering wheel while police try to remove the person from a car is not passive resistance.
Failure to Identify Oneself
Absent a law to the contrary, there is no obligation to provide information, including a name, to the police. Generally, a person cannot obstruct a peace officer by refusing to answer questions.
A person must identify himself where the officer is in a position to arrest that person or issue a summons to him.
A failure of a person to identify himself in circumstances such as an inquiry of a cyclist suspected of a provincial offence "causes a major inconvenience and obstruction of the police in carrying out their duties" and consequently obstructed the officer. The giving of a false name is "even worse".
R v Soltys (1980), 1980 CanLII 332 (BC CA), 56 CCC (2d) 43 (BCCA) at p 45 citing Black's Law Dictionary
- R v Glowach, 2011 BCSC 241 (CanLII) at para 23
R v Khan, 2013 ONCJ 194 (CanLII)
R v Whalen,  A.J. No. 618(*no CanLII links)
R v McGregor,  O.J. No. 5836 at para 13 ("It goes on to say the officer was inconvenienced by the accused, but there must more than causing the officer fleeting or momentary diversion, or expenditure of effort.")
R v Johnny, 2014 BCPC 97 (CanLII), at para 33 = brief inconvenience not enough
R v Darlington  O.J. No.3410, 2001 ABPC 141 (CanLII) - required more than a fleeting or momentary diversion
R v Cole, 2009 CanLII 72331 (ON SC),  O.J. No. 5838
see also Whalen, supra
- R v Cole, supra ("parliament did not intend the full weight of the law to be brought to bear on such an accused for such a lapse of judgment that was quickly corrected.")
e.g. see Johnny, supra
- R v Westlie (1971) 2 CCC 315, 1971 CanLII 1166 (BC CA)
- R v Akrofi, 1997 CanLII 1851 (ON CA), (1997) 113 CCC (3d) 201 (Ont. C.A.)
R v Kennedy, 2016 ONCA 879 (CanLII) at para 36
Kennedy, ibid. at para 36
R v Alaimo (1974), 27 CCC (2d) 491 (Ont. C.J.), 1974 CanLII 1552 (ON CJ)
R v Stortini (1978), 42 CCC (2d) 214 (Ont. C.J.), 1978 CanLII 2552 (ON CJ)
R v Bentley,  Q.J. No. 16091 (C.S.), 2003 CanLII 55414 (QC CM)
Kennedy, supra at para 36
Kennedy, supra at para 33
- Bentley, supra
R v Pauli, 2014 SKQB 246 (CanLII) at para 22 (" appears settled that in general, absent a law to the contrary, citizens are not obligated to provide information, even their name, to the police")
R v Bonnycastle,  4 CCC 198 (BCCA), 1969 CanLII 948 (BC CA), per McFarlane JA, at para 5, ("The duty of a peace officer to make enquiries must not be confused with the right of a person to refuse to answer questions in circumstances where the law does not require him to answer.")
R v Greaves, 2004 BCCA 484 (CanLII), per Lowry JA, at para 49
R v Legault, 1998 CanLII 3877 (BC SC),  BCJ No. 1309 (BCSC), per Lamperson J. at para 8 ("...absent some statutory provision to the contrary, a person must only identify himself or herself to a police officer if that police officer is in a position to arrest that person or to issue some form of summons to him.")
- R v Moore, 1978 CanLII 160 (SCC),  1 SCR 195
- Khan, supra
R v Wilhelm, 2014 ONSC 1637 (CanLII) at para 100
- Section 2 defines "peace officer".
Participation of Third Parties
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).
A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.
On Finding of Guilt
Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".
Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.
Sentencing Principles and Ranges
|s. 129 [obstruction of a peace officer]||Summary Election||six months jail and/or a $5,000 fine|
|s. 129 [obstruction of a peace officer]||Indictment Election||2 years custody|
Offences under s. 129 are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration. If prosecuted by summary conviction, the maximum penalty is six months jail and/or a $5,000 fine.
These offences have no mandatory minimum penalties.
s. 718.3, 787
All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).
There are no statutory requirements that the sentences be consecutive.
Ancillary Sentencing Orders
|Weapons Prohibition Orders||s. 129||
General Sentencing Orders
|Non-communication order while offender in custody (s. 743.21)||any||The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.|
|Restitution Orders (s. 738)||any||A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.|
|Victim Fine Surcharge (s. 737)||any||A mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay, and the minimum amounts are smaller (15%, $50, or $100).|
General Forfeiture Orders
|Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01))||any||Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.|
|Fine in Lieu of Forfeiture (s. 462.37(3))||any||Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.|
|Forfeiture of Weapons or Firearms (s. 491)||any||Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.|
|Forfeiture of Offence-related Property (s. 490.1)||any||Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.|