Recently with an increase of public demonstrations in Toronto there has been some discussions about obstructing a police officer in the execution of their duties. But what does this actually mean? Well, the Toronto Police Service have released their official definition of obstruction, and it’s surprisingly straightforward and not exactly in accordance with the criminal code. In short, obstruction is anything that gets in the way of officers doing their job. So if you’re trying to help out by getting out of the way or providing information, you’re not obstructing. But if you’re being uncooperative or hindering an investigation in any way, then you may be guilty of obstruction. Keep this in mind next time you run into a cop on the streets of Toronto.
Section 129 – Obstruction of a Peace Officer
In the Criminal Code, the offences relating to Obstruction of a Police Officer, or more causally referred to as Obstruct Police, are found under Part IV: Offences Against the Administration of Law and Justice.
People are often charged with obstruction charges when they deliberately lie to police or interfere with a public officer while they are in the execution of his duties. Specifically, someone can face charges if:
- They lie to a police or peace officer – the lie must be deliberate with the intention to mislead
- Impeded any public officer, police officer or peace officer that is lawfully executing process against property
- They use force to resist or stop a police officer or peace officer from the execution of their duty
- They resist or willfully obstruct an public officer or peace officer
- They fail to assist a police officer under certain circumstances
This article discusses the most commonly charged type of obstruction, section 129(a).
Section 129 – Everyone 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.
The Crown Attorney prosecuting an Obstructing a Peace Officer charge can decided to proceed by way of summary conviction or treat it as an indictable offence depending on the severity of the allegations. Also, the maximum sentence is two years upon conviction. A criminal defence lawyer will be able to explain the possible sentencing ranges for this offence under the criminal code.
For a Judge to find a person guilty of obstruction a police officer or peace officer they must find that all three of the following elements were present:
- That there was an obstruction;
- That obstruction affected the officer in the execution of their duties; and,
- That the person either resisted or willfully obstructs – you cannot accidentally obstruct an officer.
There are many ways in which to charge a person with obstruction an officer if it interferes with the officer ability to carry out their duties. A defence lawyer will be able to explain in more detail what is obstruction of a police, but some common examples of Obstructing a Peace Officer include:
- Undermining a police investigation – by intentionally drinking after an auto accident to mask prior drinking. Or interfering with police questioning of suspects or witnesses
- Destroying evidence – wiping away fingerprints or shredding documents
- Continue an offence after being ordered to stop. – such as continuing to block traffic or perhaps not turning the music down after being warned by police.
- Preventing an arrest – blocking police as they attempt to arrest a person or even refusing to surrender wrists to be handcuffed
- Fleeing police – refusing to stop for police or running away after arrested
- Refusing to identify oneself – Refusing to provide a name or giving a false name
- Lying to police – lying about the incident or making false allegations
Proof of Offence
To prove the offence of obstruction in court the prosecutor must prove the following elements of the offence, beyond a reasonable doubt to a Judge.
- Identity of the accused
- Date and Time of the incident
- Jurisdiction of the offence
- Accused knew that the complainant was a peace officer
- In uniform
- Utterance of officer
- Peace officer was engaged in lawful execution of his duty at all relevant times
- Reasonable grounds exited to arrest/investigate
- The accused obstructed the officer
- The obstruction was willful and intentional
The first three elements are necessary to secure a conviction. They are very easy for the Crown to prove and often are uncontentious facts or points of evidence. It is the remaining elements that tend to be litigated in obstruct trials.
A police officer in Ontario is a peace officer. Broadly speaking, any person employed by the government in a law enforcement capacity is usually considered a peace officer in Canada.
If the officer was in uniform most Judges would accept that the accused person knew, or should have known, that the complainant was an officer. Also, the officer stating, or verbally identifying themselves as an officer is often sufficient to prove that the accused person knew that was an officer. Certainly, the circumstances surrounding the identification of the officer will be considered by a Judge when determining if the accused person could reasonably have known that the complainant was an officer.
Engaged in Lawful Execution of their Duty
Another important element that the Crown needs to prove is that the officer was at all times in the lawful execution of their duties. Sometimes an officer, intentionally or accidentally, oversteps their authority and are no longer in the lawful execution of their duties. This becomes a salient issue at trial if the officer violated a person’s Charter Rights and as a result of that violation led them to an investigation.
The presiding judge would need to determine if the officer was acting in good faith. If not, then it can reasonably be argued that an officer was not engaged in their lawful duties when they were obstructed.
- 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. See v. Wilhelm, 2014 ONSC 1637 (CanLII), per Hill J. at para 104
- Not necessary for the Crown to prove that the officer was engaged in the execution of a specific duty.
Obstruction of a Police Officer or Peace Officer – Criminal Charges
What constitutes an obstruction is often what is litigated most in these types of trials. The officer’s perception of the obstruction tends to be the central issue. Blacks Law Dictionary defines obstruction as to impede; to interpose impediment to the hindrance or frustration of some or service. This very broad definition allows liberal interpretations of what an officer could consider to being an obstruction of their duties. Of notes, the Criminal Code of Canada does not define Obstruction.
When trying to determine if an obstruction occurs there are principles that have been established by Judges that criminal lawyers consider:
- An obstruction must involve an act that makes it more difficult for the police to carry out their duties
- But it is not obstruction if that act merely causes inconvenience to the officer. The act must have caused the officer more than a fleeting or momentary diversion, or expenditure of effort. See R. v. McGregor,  O.J. No. 5836 at para 13
- The greatest determiner is whether it interferes with the officers’ investigations. A brief inconvenience is not enough. R. v. Johnny, 2014 BCPC 97 (CanLII), at para 33
- The act requires more than something which merely makes the officer’s job more difficult
- 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
- If the police officer is injured during the obstruction, the accused may instead face assault charges. Assaulting a peace officer carries harsher sentencing. Depending on the circumstances sentencing can range from a maximum of 6 months to 14 years.
Intention to Obstruct – Mens Rea
To be convicted a Judge must believe that the accused person intentionally and willfully meant to obstruct a public officer or peace officer. A criminal defence lawyer will be able to explain in great detail what constitutes the intention to obstruct a police in the execution of their duties.
- An obstruction charge is not intended to capture acts that amount to a momentary lapse of judgment that was quickly corrected
- Mere uncooperativeness during an arrest is not enough to be an obstruction. R. v. Kennedy, 2016 ONCA 879 (CanLII) at para 36
- 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
Defending Obstruction of a Peace Officer Charges in Toronto
Obstructing a Peace Officer in Toronto can result in serious consequences, ranging from a criminal record to serving up to two years in jail. If you, or a loved one, are facing Obstruction charges you need to consult with a criminal defence lawyer.
William Jaksa is a Toronto criminal lawyer with over a decade of experience dealing with cases like yours. Contact Jaksa today for a consultation.