Obstruction of a Peace Officer (Offence)

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Obstruction of a Peace Officer
s. 129 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 6 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-charge, or Judge
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum six months jail and/or a $5,000 fine
Indictable Dispositions
Avail. Disp. same as summary
Minimum None
Maximum 2 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

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".

Pleadings

Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
s. 129 [obstruction of a peace officer] Hybrid Offence(s) Yes Yes, if Crown proceeds by Indictment

Offences under s. 129 are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Release

Offence(s) Attendance Notice
Without Arrest

s. 496
Summons
Without Arrest
s. 497
Release By
Arresting Officer
On Attendance Notice
s. 497
Release By
Officer-in-Charge
On a Promise to Appear
Undertaking or Recognizance
s. 498
Release By
a Judge or Justice
on a PTA, Undertaking or Recog.

s. 515
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 129 OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

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 a 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.

Publication Bans
For all offences 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.

Offence Designations
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

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.


CCC

Proof of the Offence

Proving obstruction of a peace officer in execution of duty under s. 129(a) should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the complainant was a peace officer or public officer within the meaning of s. 2;
  5. the culprit knew that the complainant was a peace officer (e.g. could see the officer's uniform, utterance of officer);
  6. the culprit "resists or wilfully obstructs a public officer" or "any person lawfully acting in aid of such an officer";
  7. the peace officer was engaged in lawful duty at all relevant times[2]
    1. If the officer was undertaking an arrest, there were reasonable grounds to do so and that the arrest was properly made.[3]
  8. the obstruction was willful

Proving obstruction of a peace officer by failing to assist under s. 129(b) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the complainant was a peace officer or public officer within the meaning of s. 2;
  5. the culprit knew that the complainant was a peace officer (e.g. could see the officer's uniform, utterance of officer)
  6. the culprit "omits, without reasonable excuse, to assist a public officer or peace officer" who is "arresting a person" or "preserving the peace",
  7. the complainant gave the culprit "reasonable notice that [the culprit] is required to" assist;
  8. the peace officer was engaged in lawful duty at all relevant times;
    1. If the officer was undertaking an arrest, there were reasonable grounds to do so and that the arrest was properly made.[4]
  9. the obstruction was willful

Proving obstruction of any person executing process under s. 129(c) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "resists or wilfully obstructs any person"
  5. the person is "in the lawful execution of a process against lands or goods or in making a lawful distress or seizure"
  1. R v Quinones, 2012 BCCA 94 (CanLII) at para 9
  2. R v Bowen-Courville 2007 CanLII 736 (ONSC)
  3. e.g. See R v Chervinski, 2013 ABQB 29 (CanLII)
  4. e.g. See Chervinski, supra

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 authoirty" he cannot be in execution of his duties.[1]

It is not necessary for the Crown to prove that the officer was engaged in the execution of a specific duty.[2]

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.[3]

  1. R v Wilhelm, 2014 ONSC 1637 (CanLII) at para 104
  2. R v Westlie [1971] BCJ No. 643 (BCCA)(*no link) at para 2
  3. See R v Jones, 2002 BCPC 423 (CanLII) at para 22

Obstruction

"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".[1]

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.[2]

Obstruction must involve an act that "make[s] it more difficult for the police to carry out their duties".[3] But an act causing mere inconvenience is not enough.[4]

A false name corrected after 15 minutes was insufficient.[5]

The offence is not intended to capture acts that amount to a "lapse of judgment" that is "quickly corrected."[6]

The greatest determiner is whether the officer's investigations were interfered with.[7]

Notifying other people of the presence of the police can be a form of obstruction.[8]

Destroying or hiding evidence may be obstruction.[9]

Lack of Cooperation vs Obstruction
Mere uncooperativeness during an arrest is not enough to be an obstruction.[10] There must be some "active physical resistance" against the arrest.[11] This can include pulling away from the arresting officer while being restrained.[12]

"Passive resistance" where there is an "absence of any degree of physical resistance" is not obstruction.[13] Holding onto a steering wheel while police try to remove the person from a car is not passive resistance.[14]

Failure to Identify Oneself

See also: Warrantless Arrests

Absent a law to the contrary, there is no obligation to provide information, including a name, to the police.[15] Generally, a person cannot obstruct a peace officer by refusing to answer questions.[16]

A person must identify himself where the officer is in a position to arrest that person or issue a summons to him.[17]

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.[18] The giving of a false name is "even worse".[19]

  1. R v Soltys (1980), 1980 CanLII 332 (BC CA), 56 CCC (2d) 43 (BCCA) at p 45 citing Black's Law Dictionary
  2. R v Glowach, 2011 BCSC 241 (CanLII) at para 23
  3. R v Khan, 2013 ONCJ 194 (CanLII)
    R v Whalen, [1993] A.J. No. 618(*no link)
  4. R v McGregor, [2005] 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 [2001] O.J. No.3410(*no link) - required more than a fleeting or momentary diversion
  5. R v Cole, 2009 CanLII 72331 (ON SC), [2009] O.J. No. 5838
    see also R v Whalen, supra
  6. 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.")
  7. e.g. see R v Johnny
  8. R v Westlie (1971) 2 CCC 315(*no link)
  9. R v Akrofi, 1997 CanLII 1851 (ON CA), (1997) 113 CCC (3d) 201 (Ont. C.A.)
  10. R v Kennedy, 2016 ONCA 879 (CanLII) at para 36
  11. Kennedy at para 36
    R v Alaimo (1974), 27 C.C.C. (2d) 491 (Ont. C.J.)
    R v Stortini (1978), 42 C.C.C. (2d) 214 (Ont. C.J.)
    R v Bentley, [2003] Q.J. No. 16091 (C.S.)
  12. Kennedy at para 36
  13. Bentley, supra
    Kennedy, supra at para 33
  14. Bentley, supra
  15. 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, [1969] 4 CCC 198 (BCCA) (*no link) at para 5, per McFarlane J.A. ("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.")
  16. R v Greaves, 2004 BCCA 484 (CanLII) at para 49
  17. R v Legault, 1998 CanLII 3877 (BC SC), [1998] BCJ No. 1309 (BCSC). 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.")
  18. R v Moore, 1978 CanLII 160 (SCC), [1979] 1 SCR 195
  19. R v Khan

Kienapple

See also: Kienapple Principle

A conviction for obstruction of peace officer and assault peace officer arising from the same event will violate the Kienapple rule.[1]

  1. R v Wilhelm, 2014 ONSC 1637 (CanLII) at para 100

Misc Definitions

Case Digests

  • R v Tidball 2012 SKPC 28 (CanLII) -- not guilty -- arresting for intoxication, arrest not valid

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

Testimonial Aids
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

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence

Maximum Penalties

Offence(s) Crown
Election
Maximum Penalty
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.

Minimum Penalties
These offences have no mandatory minimum penalties.

Available Dispositions

Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 129 any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

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).

Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.

Principles

Ranges

see also: Obstruction of a Peace Officer (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

Order Conviction Description
Weapons Prohibition Orders s. 129
  • Where there is a conviction under s. 129 for an offence not otherwise referred to in s. 109, where "violence against a person was used, threatened or attempted" or "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", a discretionary prohibition order of any of these items is permitted under s. 110 regardless of Crown election where "it is desirable, in the interests of the safety of the person or of any other person".
      • Duration: The Order is for no more than 10 years starting at release from custody or at sentencing where custody is not ordered. If there is a prior conviction for an offence eligible for a s. 109 Order, the duration must be life. If violence is "used, threatened or attempted against" their past or present intimate partner, a child or parent of the said partner, or a person who resides with the said partner or the offender, the duration can be up to life in duration.
      • If the judge declines to make an Order or not order all the possible terms, "the court shall include in the record a statement of the court's reasons for not doing so." (s. 110(3))

General Sentencing Orders

Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has 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 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 Conviction Description
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(!) 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.

See Also

References