Obstruction of a Peace Officer (Offence): Difference between revisions

Obstruction of a Peace Officer
	s. 129 of the Crim. Code
Election / Plea
Crown Election	Hybrid; summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction	Prov. Court; Sup. Court w/ Jury (); Sup. Court w/ Judge-alone (); * Must be indictable.
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	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable Dispositions
Avail. Disp.	same as summary
Minimum	None
Maximum	2 years incarceration
Reference
	Offence Elements; Sentence Digests;

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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)	Preliminary Inquiry
s. 129 [obstruction of a peace officer]	Hybrid Offence(s)		(* only if Crown proceeds by Indictment)	(under 14 years max)

Offences under s. 129 [obstruction of a peace officer] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Release

Offence(s)	Appearance Notice by Peace Officer s. 497	Summons by Judge or Justice s. 508(1), 512(1), or 788	Release by Peace Officer on Undertaking s. 498, 499, and 501	Release By a Judge or Justice on a Release Order s. 515 to 519	Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act
s. 129 [obstruction of a peace officer]

When charged under s. 129 [obstruction of a peace officer], the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

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 weapon, being 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)).

And, regardless of Crown election, if the offence alleged was one:

where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));

Fingerprints and Photos

A peace officer who charges a person under s. 129 [obstruction of a peace officer] 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 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.

Offence Designations

Offence(s)	Wiretap Eligible s. 183	Dangerous Offender Designated Offence s. 752	Serious Personal Injury Offence s. 752	AG Consent Required	Serious Criminality Offence s. 36 IRPA
s. 129 [obstruction of a peace officer]			(under 10 years max)

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

Offence Wording

The Criminal Code 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 (CanLII), (DOJ)

Note up: 129

Defined terms: "peace officer" (s. 2)

Draft Form of Charges

See also: Draft Form of Charges

		Pre-ambles
		"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section	Subject of Offence	Draft Wording
129(a)	obstruction of a peace officer	"..., 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) of the Criminal Code."
129(b)	fail to assist a peace officer	"..., 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) of the Criminal Code."
129(c)	execution of process – personal property	"..., did resist or willfully obstruct [name] in making a lawful distress or seizure contrary to section 129(c) of the Criminal Code."
129(c)	execution of process – land or goods	"..., did resist or willfully obstruct [name] in the lawful execution of a process against land or goods contrary to section 129(c) of the Criminal Code."

Proof of the Offence

Proving obstruction of a peace officer in execution of duty under s. 129(a) should include:^[1] ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the complainant was a peace officer or public officer within the meaning of s. 2; ☐ the culprit knew that the complainant was a peace officer (e.g. could see the officer's uniform, utterance of officer); ☐ the culprit "resists or wilfully obstructs a public officer" or "any person lawfully acting in aid of such an officer"; ☐ the peace officer was engaged in lawful duty at all relevant times^[2] ☐ If the officer was undertaking an arrest, there were reasonable grounds to do so and that the arrest was properly made.^[3] ☐ the obstruction was willful	Proving obstruction of a peace officer by failing to assist under s. 129(b) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the complainant was a peace officer or public officer within the meaning of s. 2; ☐ the culprit knew that the complainant was a peace officer (e.g. could see the officer's uniform, utterance of officer) ☐ the culprit "omits, without reasonable excuse, to assist a public officer or peace officer" who is "arresting a person" or "preserving the peace", ☐ the complainant gave the culprit "reasonable notice that [the culprit] is required to" assist; ☐ the peace officer was engaged in lawful duty at all relevant times; ☐ If the officer was undertaking an arrest, there were reasonable grounds to do so and that the arrest was properly made.^[4] ☐ the obstruction was willful
Proving obstruction of any person executing process under s. 129(c) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit "resists or wilfully obstructs any person" ☐ the person is "in the lawful execution of a process against lands or goods or in making a lawful distress or seizure"

↑ R v Quinones, 2012 BCCA 94 (CanLII), per Hinkson JA (3:0), at para 9
↑ R v Bowen-Courville, 2007 CanLII 736 (ON SC), per Hockins J
↑ e.g. See R v Chervinski, 2013 ABQB 29 (CanLII), per Hall J
↑ 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 authority" 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]

↑ R v Wilhelm, 2014 ONSC 1637 (CanLII), OJ No 1176, per Hill J, at para 104
↑ R v Westlie, 1971 CanLII 1166 (BCCA), [1971] BCJ No 643 (BCCA), per McFarlane JA, at para 2
↑ See R v Jones, 2002 BCPC 423 (CanLII), per Angelomatis J, 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]

The offence is not intended to capture acts that amount to a "lapse of judgment" that is "quickly corrected."^[5]

The greatest determiner is whether the officer's investigations were interfered with.^[6]

Warning Others of Police

Notifying other people of the presence of the police can be a form of obstruction.^[7] Telling a person to leave knowing the police were about to arrest them.^[8]

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.^[9]

Destroying or Hiding Evidence

Destroying or hiding evidence may be obstruction.^[10]

Lack of Cooperation vs Obstruction

Mere uncooperativeness during an arrest is not enough to be an obstruction.^[11] There must be some "active physical resistance" against the arrest.^[12] This can include pulling away from the arresting officer while being restrained.^[13]

"Passive resistance" where there is an "absence of any degree of physical resistance" is not obstruction.^[14] Holding onto a steering wheel while police try to remove the person from a car is not passive resistance.^[15]

Giving a False Name

A false name corrected after 15 minutes was insufficient.^[16]

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.^[17] Generally, a person cannot obstruct a peace officer by refusing to answer questions.^[18]

A person must identify himself where the officer is in a position to arrest that person or issue a summons to him.^[19]

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.^[20] The giving of a false name is "even worse."^[21]

↑ R v Soltys, 1980 CanLII 332 (BCCA), 56 CCC (2d) 43 (BCCA), per MacDonald JA, at p. 45 citing Black's Law Dictionary
↑ R v Glowach, 2011 BCSC 241 (CanLII), 277 CCC (3d) 89, per Arnold-Bailey J, at para 23
↑ R v Khan, 2013 ONCJ 194 (CanLII), per Knazan J
R v Whalen, [1993] AJ No 618(*no CanLII links)
↑ R v McGregor, [2005] OJ No 5836(*no CanLII links) , 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), BCJ No 1023{, per Morgan J, at para 33 = brief inconvenience not enough
R v Darlington, 2001 ABPC 141 (CanLII), [2001] OJ No 3410, per Fraser J - required more than a fleeting or momentary diversion
↑ 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 CanLII 1166 (BCCA), (1971) 2 CCC 315, per curiam
↑ R v Gunn, 1997 ABCA 35 (CanLII), 113 CCC (3d) 174, per Picard JA(complete citation pending)
see also R v Long, 1969 CanLII 989 (BC CA), [1970] 1 CCC 313, per Davey CJ
↑ R v Bentley, 2003 CanLII 55414 (QC CM) per Discepola J, at para 20
↑ R v Akrofi, 1997 CanLII 1851 (ON CA), 113 CCC (3d) 201, per Robins JA
↑ R v Kennedy, 2016 ONCA 879 (CanLII), 345 CCC (3d) 530, per Benotto JA, at para 36
↑ Kennedy, ibid., at para 36
R v Alaimo, 1974 CanLII 1552, , 27 CCC (2d) 491 (Ont. C.J.), per Opper J
R v Stortini, 1978 CanLII 2552, , 42 CCC (2d) 214 (Ont. C.J.), per Greco J
R v Bentley, 2003 CanLII 55414 (QC CM), [2003] Q.J. No 16091 (C.S.)
↑ Kennedy, supra, at para 36
↑ Bentley, supra
Kennedy, supra, at para 33
↑ Bentley, supra
↑ R v Cole, 2009 CanLII 72331 (ONSC), [2009] OJ No 5838, per Kiteley J
see also Whalen, supra
↑ R v Pauli, 2014 SKQB 246 (CanLII), 2 WWR 402, per Dawson J, 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 CanLII 948 (BCCA), [1969] 4 CCC 198 (BCCA), 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), 189 CCC (3d) 305, per Lowry JA, at para 49
↑ R v Legault, 1998 CanLII 3877 (BC SC), [1998] 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), [1979] 1 SCR 195, per Spence J
↑ Khan, supra

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]

↑ R v Wilhelm, 2014 ONSC 1637 (CanLII), OJ No 1176, per Hill J, at para 100

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

Offence(s)	Victim Notice of Agreement s. 606(4.1) [SPIO]	Victim Queried for Interest in Agreement s. 606(4.2) [5+ years]	Victim Notice for Restitution s. 737.1	Victim Notice of Impact Statement s. 722(2)
s. x [x]

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	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 129 [obstruction of a peace officer]	Indictment Election	2 years incarceration

Offences under s. 129 [obstruction of a peace officer] are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).

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 [obstruction of a peace officer]	any

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 [obstruction of a peace officer]	Where there is a conviction under s. 129 [obstruction of a peace officer] 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 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 discretionary 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 has smaller minimum amounts (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 His Majesty the King on application of the Crown. NB: does not* apply to summary offences*.
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. NB: does not* apply to summary offences*.

Record Suspensions and Pardons

Convictions under s. 129 [obstruction of a peace officer] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)