View source for Obstruction of a Peace Officer (Offence)

{{Currency2|February|2018}}
{{LevelZero}}{{HeaderOffences}}

{{OffenceBox
|OffenceTitle=Obstruction of a Peace Officer
|OffencePage=Obstruction of a Peace Officer
|Section=129
|Act={{OBCCC}} 
|CrownElection={{OBHybridElection}}
|Jurisdiction={{OBJurisdictionAll-Under14}}
|Bail={{OBBailAll}}
|SummaryDisp={{OBDispAll}}
|SummaryMin={{OBMinNone}}
|SummaryMax={{OBSConviction}}
|IndictableDisp={{OBDispSame}}
|IndictableMin={{OBMinNone}}
|IndictableMax={{OBTime|2 years}}
}}

==Overview==
{{OverviewIV|obstruction of a peace officer}}

; Pleadings

{{PleadingsHeader-N}}
{{PleadingsHybridList-N|s. 129 {{DescrSec|129}} | {{Yes}} | {{Yes-IfCrown}} | {{No-Under14}} }}
{{PleadingsEnd}}

{{PleadingsHybridElection-Under14|s. 129 {{DescrSec|129}}}}

; Release
{{ReleaseHeader}}
|s. 129 {{DescrSec|129}} || {{ReleaseProfile-Hybrid}} 
|-
{{ReleaseEnd}}

{{ReleaseOptions-Hybrid|s. 129 {{DescrSec|129}}}}

:''<u>Reverse Onus Bail</u>''
{{ReverseOnusCirc}}

:''Fingerprints and Photos''
{{IDCriminalAct|s. 129 {{DescrSec|129}}}}

; Publication Bans
{{GeneralPubBan}}

; Offence Designations
{{DesignationHeader}}
|-
|s. 129 {{DescrSec|129}} || {{XMark}} <!--wire--> || {{XMark}} <!--DO-->||{{XMark-Under10}} <!--SPIO--> || {{XMark}} <!--consent--> || {{XMark}}
{{DesignationEnd}}
{{SeeBelowForAncillary}}

==Offence Wording==
The Criminal Code states:
{{quotation3|
; 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
<br>
:(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.
|{{CCCSec2|129}}
|{{NoteUp|129}}
|{{Terms-
|"peace officer" (s. 2)
}}
}}

===Draft Form of Charges===
{{seealso|Draft Form of Charges}}
{{DraftHeader}}
|-
| 129(a)
| obstruction of a peace officer
|"{{ellipsis1}}, did resist or willfully obstruct Cst. [name], a [peace officer or public officer] in the execution of his or her duty, to wit: [conduct], contrary to section 129(a){{CCC}}."
|-
| 129(b)
| fail to assist a peace officer
|"{{ellipsis1}}, did omit, without reasonable excuse, to assist Cst. [name], a public officer or peace officer in the execution of his or her duty, in arresting a person or in preserving the peace, after having reasonable notice that he is required to do so contrary to section 129(b){{CCC}}."
|-
| 129(c)
| execution of process &ndash; personal property 
|"{{ellipsis1}}, did resist or willfully obstruct [name] in making a lawful distress or seizure contrary to section 129(c){{CCC}}."
|-
| 129(c)
| execution of process &ndash; land or goods
|"{{ellipsis1}}, did resist or willfully obstruct [name] in the lawful execution of a process against land or goods contrary to section 129(c){{CCC}}."
{{DraftEnd}}

==Proof of the Offence==
{{ElementHeader}}
{{ElementLeft}}

{{Proving|obstruction of a peace officer in execution of duty|129(a)}}<ref>
{{CanLIIRx|Quinones|fqbvb|2012 BCCA 94 (CanLII)}}{{perBCCA|Hinkson JA}} (3:0){{atL|fqbvb|9}}</ref>
{{InitialElements}}
# {{box}} the complainant was a [[Criminal Code and Related Definitions|peace officer or public officer]] within the meaning of s. 2;
# {{box}} the culprit knew that the complainant was a peace officer (e.g. could see the officer's uniform, utterance of officer);
# {{box}} the culprit "resists or wilfully obstructs a public officer" or "any person lawfully acting in aid of such an officer";
# {{box}} the peace officer was engaged in lawful duty at all relevant times<ref>
{{CanLIIRx|Bowen-Courville|1q9g9|2007 CanLII 736 (ON SC)}}{{perONSC|Hockins J}}</ref>
## {{box}} If the officer was undertaking an arrest, there were reasonable grounds to do so and that the arrest was properly made.<ref>e.g. See {{CanLIIRx|Chervinski|fvxtw|2013 ABQB 29 (CanLII)}}{{perABQB|Hall J}}</ref>
# {{box}} the obstruction was willful

{{ElementRight}}

{{Proving|obstruction of a peace officer by failing to assist|129(b)}}
{{InitialElements}}
# {{box}} the complainant was a [[Criminal Code and Related Definitions|peace officer or public officer]] within the meaning of s. 2;
# {{box}} the culprit knew that the complainant was a peace officer (e.g. could see the officer's uniform, utterance of officer)
# {{box}} the culprit "omits, without reasonable excuse, to assist a public officer or peace officer" who is "arresting a person" or "preserving the peace",
# {{box}} the complainant gave the culprit "reasonable notice that [the culprit] is required to" assist;
# {{box}} the peace officer was engaged in lawful duty at all relevant times;
## {{box}} If the officer was undertaking an arrest, there were reasonable grounds to do so and that the arrest was properly made.<ref>e.g. See {{supra1|Chervinski}}</ref>
# {{box}} the obstruction was willful

{{ElementLeft}}

{{Proving|obstruction of any person executing process|129(c)}}
{{InitialElements}}
# {{box}} the culprit "resists or wilfully obstructs any person"
# {{box}} the person is "in the lawful execution of a process against lands or goods or in making a lawful distress or seizure"

{{ElementRight}} 
{{ElementEnd}}

{{reflist|2}}

==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.<ref>
{{CanLIIRP|Wilhelm|g656v|2014 ONSC 1637 (CanLII)|OJ No 1176}}{{perONSC|Hill J}}{{atL|g656v|104}}<br>
</ref>

It is not necessary for the Crown to prove that the officer was engaged in the execution of a ''specific'' duty.<ref>
{{CanLIIRP|Westlie|gdbgg|1971 CanLII 1166 (BCCA)|[1971] BCJ No 643 (BCCA)}}{{perBCCA|McFarlane JA}}{{atL|gdbgg|2}}<br>
</ref>

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.<ref>
See {{CanLIIRx|Jones|5gnn|2002 BCPC 423 (CanLII)}}{{perBCPC|Angelomatis J}}{{atL|5gnn|22}}
</ref>

{{Reflist|2}}

===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."<ref>
{{CanLIIRP|Soltys|23lx3|1980 CanLII 332 (BCCA)|56 CCC (2d) 43 (BCCA)}}{{perBCCA|MacDonald JA}}{{atp|45}} citing Black's Law Dictionary<br>
</ref>

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.<ref>
{{CanLIIRP|Glowach|2fz74|2011 BCSC 241 (CanLII)|277 CCC (3d) 89}}{{perBCSC|Arnold-Bailey J}}{{atL|2fz74|23}}
</ref>

Obstruction must involve an act that "make[s] it more difficult for the police to carry out their duties."<ref>
{{CanLIIRx|Khan|fx2k0|2013 ONCJ 194 (CanLII)}}{{perONCJ|Knazan J}}<br>
{{CanLIIR-N|Whalen|, [1993] AJ No 618}}
</ref>
But an act causing mere inconvenience is not enough.<ref>
{{CanLIIR-N|McGregor|, [2005] OJ No 5836}}{{at-|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.")<br>
{{CanLIIRP|Johnny|g70bj|2014 BCPC 97 (CanLII)|BCJ No 1023}}{{{perBCPC|Morgan J}}{{atL|g70bj|33}} = brief inconvenience not enough<br>
{{CanLIIRP|Darlington|h2qg6|2001 ABPC 141 (CanLII)|[2001] OJ No 3410}}{{perABPC|Fraser J}} - required more than a fleeting or momentary diversion<br>
</ref>

The offence is not intended to capture acts that amount to a "lapse of judgment" that is "quickly corrected."<ref>
{{supra1|Cole}} ("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.")
</ref>

The greatest determiner is whether the officer's investigations were interfered with.<ref>
e.g. see {{supra1|Johnny}}<br>
</ref>

; Warning Others of Police
Notifying other people of the presence of the police can be a form of obstruction.<ref>
{{CanLIIRP|Westlie|gdbgg|1971 CanLII 1166 (BCCA)| (1971) 2 CCC 315}}{{TheCourtBCCA}}
</ref>
Telling a person to leave knowing the police were about to arrest them.<Ref>
{{CanLIIRP|Gunn|2dd2d|1997 ABCA 35 (CanLII)|113 CCC (3d) 174}}{{perABCA|Picard JA}}{{fix}}<br>
see also {{CanLIIRP|Long|gdgts|1969 CanLII 989 (BC CA)|[1970] 1 CCC 313}}{{perBCCA|Davey CJ}}
<br>
</ref>

; Entering Secure Areas
A person knowingly attempting to enter areas that are secured by police in the course of their investigation can amount to obstruction.<Ref>
{{CanLIIRP|Bentley|1t978|2003 CanLII 55414 (QC CM)}} per Discepola J{{AtL|1t978|20}}
</ref>

; Destroying or Hiding Evidence
Destroying or hiding evidence may be obstruction.<ref>
{{CanLIIRP|Akrofi|6hqf|1997 CanLII 1851 (ON CA)|113 CCC (3d) 201}}{{perONCA|Robins JA}}</ref>

; Lack of Cooperation vs Obstruction
Mere uncooperativeness during an arrest is not enough to be an obstruction.<ref>
{{CanLIIRP|Kennedy|gvsv0|2016 ONCA 879 (CanLII)|345 CCC (3d) 530}}{{perONCA|Benotto JA}}{{atL|gvsv0|36}}<br>
</ref>
There must be some "active physical resistance" against the arrest.<ref>
{{ibid1|Kennedy}}{{atL|gvsv0|36}}<br>
{{CanLIIRP|Alaimo|htz4c|1974 CanLII 1552|, 27 CCC (2d) 491 (Ont. C.J.)}}{{perONCJ|Opper J}}<br>
{{CanLIIRP|Stortini|htxmb|1978 CanLII 2552|, 42 CCC (2d) 214 (Ont. C.J.)}}{{perONCJ|Greco J}}<br>
{{CanLIIRP|Bentley|1t978|2003 CanLII 55414 (QC CM)|[2003] Q.J. No 16091 (C.S.)}}<br>
</ref>
This can include pulling away from the arresting officer while being restrained.<ref>
{{supra1|Kennedy}}{{atL|gvsv0|36}}<br>
</ref>

"Passive resistance" where there is an "absence of any degree of physical resistance" is not obstruction.<ref>
{{supra1|Bentley}}<br>
{{supra1|Kennedy}}{{atL|gvsv0|33}}<br>
</ref>
Holding onto a steering wheel while police try to remove the person from a car is not passive resistance.<ref>
{{supra1|Bentley}}
</ref>

; Giving a False Name
A false name corrected after 15 minutes was insufficient.<ref>
{{CanLIIRP|Cole|2765l|2009 CanLII 72331 (ONSC)|[2009] OJ No 5838}}{{perONSC|Kiteley J}}<br>
see also {{supra1|Whalen}}
</ref>

; Failure to Identify Oneself
{{seealso|Warrantless Arrests}}
Absent a law to the contrary, there is no obligation to provide information, including a name, to the police.<ref>
{{CanLIIRP|Pauli|g8ntl|2014 SKQB 246 (CanLII)|2 WWR 402}}{{perSKQB|Dawson J}}{{atL|g8ntl|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")<br>
{{CanLIIRP|Bonnycastle|gc4vh|1969 CanLII 948 (BCCA)|[1969] 4 CCC 198 (BCCA)}}{{perBCCA|McFarlane JA}}{{atL|gc4vh|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.")
</ref>
Generally, a person cannot obstruct a peace officer by refusing to answer questions.<ref>
{{CanLIIRP|Greaves|1hv67|2004 BCCA 484 (CanLII)|189 CCC (3d) 305}}{{perBCCA|Lowry JA}}{{atL|1hv67|49}}<br>
</ref>

A person must identify himself where the officer is in a position to arrest that person or issue a summons to him.<ref>
{{CanLIIRP|Legault|1f6qb|1998 CanLII 3877 (BC SC)|[1998] BCJ No 1309 (BCSC)}}{{perBCSC|Lamperson J}}{{atL|1f6qb|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.")<br>
</ref>

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.<ref>
{{CanLIIRP|Moore|1z76c|1978 CanLII 160 (SCC)|[1979] 1 SCR 195}}{{perSCC-H|Spence J}} 
</ref>
The giving of a false name is "even worse."<ref>
{{supra1|Khan}}
</ref>

{{reflist|2}}

===Kienapple===
{{seealso|Kienapple Principle}}
A conviction for obstruction of peace officer and [[Assault Peace Officer (Offence)|assault peace officer]] arising from the same event will violate the Kienapple rule.<ref>
{{CanLIIRP|Wilhelm|g656v|2014 ONSC 1637 (CanLII)|OJ No 1176}}{{perONSC|Hill J}}{{atL|g656v|100}}<br>
</ref>

{{reflist|2}}

==Participation of Third Parties==
{{seealso|Role of the Victim and Third Parties|Testimonial Aids for Young, Disabled or Vulnerable Witnesses}}

; Testimonial Aids
{{3rdPTestimonyAids}}

; On Finding of Guilt
{{VictimHeader}} <!-- Sections / Notice of Agree / Notice of Restitution / Notice of VIS -->
|s. x {{DescrSec|x}} || || ||
|-
{{VictimEnd}}{{RestitutionNotice}}

{{VISNotice}}

==Sentencing Principles and Ranges==
{{seealsoSentencing}}

; Maximum Penalties
{{SProfileMaxHeader‎}}
{{SProfileMax|s. 129 {{DescrSec|129}} | {{Summary}} |{{summaryconviction}} }}
{{SProfileMax|s. 129 {{DescrSec|129}} |Indictment Election|{{Max2Years}}}}
{{SProfileEnd}}

{{MaxPenaltyHybrid|s. 129 {{DescrSec|129}}|'''{{Max2Years}}'''|'''{{summaryconviction}}'''}}

; Minimum Penalties
{{NoMinimumPenalties}}

; Available Dispositions
{{SProfileAvailHeader}}
|s. 129 {{DescrSec|129}}|| any || {{SProfileAll}}
|-
{{SProfileEnd}}

{{AllDispositionsAvailable}}

; Consecutive Sentences
{{NoConsecutive}}

===Principles===

===Ranges===
{{seealsoRanges|Obstruction of a Peace Officer}}

==Ancillary Sentencing Orders==
{{seealso|Ancillary Orders}}
	
; Offence-specific Orders
{{AOrderHeader}}
{{AOrder1|[[Weapons Prohibition Orders]] |s. 129 {{DescrSec|129}} |
* {{Section110|s. 129 {{DescrSec|129}}}} }}

{{AOrderEnd}}

; General Sentencing Orders
{{GeneralSentencingOrders}}

; General Forfeiture Orders
{{GeneralForfeitureOrders}}

==Record Suspensions and Pardons== 
{{RecordSuspension|s. 129 {{DescrSec|129}} }}

==History==
{{seealso|List of Criminal Code Amendments|Table of Concordance (Criminal Code)}}

==See Also==
* [[Defence of Property]]
; References
* [[Pre-Trial and Trial Motions Checklist]]

{{OffencesNavBar/Admin}}