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Obstruct Police

A supplement to the OPVTA production

Obstruct Police Volume # 126 February, 2011.

Section 129(a) of the Criminal Code states: every one who resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in the aid of such an officer is guilty of an offence. This section is often referred to as obstruct police. Although it is not long in its wording, it nonetheless causes much debate and confusion with many front-line officers with what constitutes obstruct. There is no definition in the Criminal Code for the term obstruct a key element in committing the offence. Officers are well aware of the offence of obstruct police when it relates to someone physically interfering with him or her making a lawful arrest. However, it is not as clear in other circumstances. It is under these situations that the charge of obstruct police is often misapplied. Therefore, the purpose of this training paper and accompanying Ontario Police Video Training Alliance (OPVTA) program (through the use of scenarios), is to focus on the more confusing area of the obstruct police. In other words, we will examine the legal issues of this Criminal Code offence that is neither too simplistic nor obvious in nature.

Elements of the Offence

For our purposes, the relevant section reads: 129(a) C.C. - Every one who wilfully obstructs a peace officer in the execution of his duty is guilty of Three elements that must be proven for a conviction under section 129(a) of the Criminal Code: 1. There was an obstruction. 2. The peace officer was in the execution of his/her duty. 3. The person obstructing did so wilfully. 1

R. v. Westlie (1971) 2 C.C.C. (2d) 315 (B.C.C.A.) considered the elements of Section 129(a) of the Criminal Code. Two of the judgments, that of Branca J.A. and Robertson J.A., set out these elements in point form. Both were consistent but slightly differently expressed. Subsequent decisions have preferred the three points of Robertson J.A. at p. 326:

This Training package was created by Mauro Succi, Coordinator of Advanced Patrol Training, Ontario Police College.

2 The first two elements relate to the accused's conduct (actus reus), whereas the third requirement relates to his or her intent (mens rea). For our purposes, these elements have been adopted in the Ontario courts. 2

Legal Analysis
As mentioned from the out-set, there is no precise legal definition of obstruct as the word is used in the Criminal Code. Previous court decisions illustrate that courts have had difficulty measuring the interaction between individuals and peace officers and drawing the line between innocent and culpable conduct. 3 As a starting point, many courts have relied on the word obstruct as defined in Blacks Law Dictionary. It states: To hinder or prevent from progress, check, stop, also to retard the progress of, make accomplishment difficult and slow... to impede; to interpose impediments to the hindrance or frustration of some act or service, as to obstruct an officer in the execution of his duty. 4 The definition that more closely approximates the meaning of obstruct in the context of the Criminal Code is impede or affect. The basic problem with this or any definition is a matter of degree. In the words of Justice Fradsham: All momentary lapses of good judgment exhibited by humans when they are dealing with police cannot criminalize any and all activity that causes some small, transitory extra effort on the part of a police officer. Every occupation, including that of peace officer, carries with it some inherent difficulties. In the case of peace officers, one of those is dealing with those members of the public who are inconsiderate, rude and sometimes simply scared. These people will often do things that add to the burden of an officer. However, only when those individuals cause a problem of consequences for the officer should their conduct be characterized as criminal. 5 On the other hand, Justice Robertson did not entirely agree with this analysis: His Honour seems to be saying that certain obstructive behaviour on behalf of an accused are part of the routine duties of the police, and are to be accepted by the Courts as not capable of being an obstruction. I do not agreeJudge Fradshams reasoning ignores the clear meaning of Mr. Justice Spences quote which is to the opposite effect, that is, an individuals refusal to identify himself or herself in certain circumstances constitutes a major inconvenience to the police carrying out their proper dutiesClearly, it was not the intention of Mr.
2 3

R. v. Tortolano et al. (1975) 28 CCC (2d) 562 (O.C.A.) R. v. Gunn (1997) 113 C.C.C. (3d) 174 (Alta. Court of Appeal) 4 Blacks Law Dictionary Fifth Edition 5 R. v. Whalen (1993) A.J. 613 This Training package was created by Mauro Succi, Coordinator of Advanced Patrol Training, Ontario Police College.

3 Justice Spence to impose upon the Crown a requirement to prove a major inconvenience to the police to establish an obstruction for the purposes of Section 129(a)If failure to provide proper identification to the police when lawfully required to do so is a major inconvenience and obstruction to police then surely the giving of a false name is even worse. If, as a result of providing the police the false name the police commence an investigation under that name, then in my view, the offence of obstruct police is made out. It matters not that the police would have routinely performed the same investigation (for example, checking a name and a date of birth in a computer) if the accused had given them his correct name. The point is he did not and as a result the officers investigation was affected, in that he has now commenced an investigation under a false name The act must obstruct the peace officer in the execution of his or her duty. If it obstructs it to any degree, then the offence is made out. To add a further qualification that the obstruction must result in major inconvenience is to impose a question of magnitude of the crime as opposed to a question of simply the commission of the crime. 6 Regardless of these differing opinions with the word obstruct, there seems to be little disagreement with the courts with what constitutes the other two elements: wilfully and lawful execution of their duty.

Lawful Execution of Duty

While a police officer does not have to be involved in the investigation of a specific crime to be "in the execution of his duty," more is required than merely being "on duty. 7 In Noel, the British Columbia Court of Appeal confirmed that an officer will be engaged in execution of his duty if, at any given time while on duty, a peace officer's activities fall within the duties and responsibilities of a peace officer described by statute or common law. In addition to this, it is imperative that the peace officer must demonstrate that he/she is lawfully in the execution of their duty. For example, a peace officer is not acting lawfully when seeking to enforce a non-existent law, even if the officer honestly believed it did exist. 8 In Houle, the altercation started after the officer had intended to issue a summons under the mistaken belief that a regulation existed. Unknown to the officer, this same regulation had been rescinded a few days before. The Alberta Court of Appeal quashed the conviction for obstruct police. The court stated, I would not interpret police duties and powers as extending the duties to the enforcement of non-existent law. I would not extend the duties to embrace actions taken in ignorance of the law an ignorance which does not excuse the citizen and should protect the peace officer. To extend the duty to the extent contended for by the Crown would have that effect. In another example, two police officers attended a residence in an apartment building. They believed the resident, Bowen-Courville, had a connection to a suspect, Gibbons, involved in a
6 7

R. v. Walcott (2006) Ont. C.J. R. v. Noel (1995) 101 C.C.C. (3d) 183 (B.C.C.A.) 8 R. v. Houle (1985) 24 C.C.C. (3d) 57 (Alta.C.A.) This Training package was created by Mauro Succi, Coordinator of Advanced Patrol Training, Ontario Police College.

4 possible theft of a motor vehicle. They were there to ask Bowen-Courville about his whereabouts. The officers did not have a warrant for his arrest. In fact, they did not expect the suspect to be there. One of the officers knocked on the front door. Three people were standing back from the doorway when the door opened, one being the suspect wanted for the theft. One of the officers attempted to grab him but the suspect broke loose and ran in the direction of the balcony. The apartment was on the fourth floor. The officers pursued him and caught up to him on the balcony. A commotion followed which involved the suspect and Bowen-Courville. While the officers restrained him, Bowen-Courville jumped onto the back of one of the officers. Bowen-Courville was pepper sprayed and placed under arrest for obstruct police and subsequently charged. As already mentioned, the officer must be acting lawfully. Conversely, when the arrest is unlawful, it cannot be argued that the officer was lawfully in the execution of his duty as confirmed by the Judge in this decision: When the officer, from the doorway, grabbed for Gibbons, the purpose was to take him into custody and to arrest and charge him with an indictable offence in relation to the theft or possession of the vehicle which was parked in front of the apartment. The action of grabbing for Gibbons inside the apartment was an entry to the appellant's (Bowen-Courville) dwelling-place. The chase through the apartment to the balcony was the result of the failed attempt to arrest Gibbons inside the door in the appellant's apartment. For the entry to be lawful, the exigent circumstances must exist before the dwelling-place is entered. The confusion which followed the entry of the police to the appellant's apartment may not be relied upon in a retrospective way to justify a warrantless entry to a dwelling-place which occurred without "exigent circumstances" at the time of entry... It follows that the entry and arrest were unlawful and that any finding that the police were engaged in the execution of their duty is untenable. The appellant may well have been guilty of assault but not of obstruction of a peace officer in the execution of his duty. 9

Wilful Obstruction (mens rea)

A review of the various court decisions supports the conclusion that a general intent is required for the wilful obstruction to occur. Most courts have based their analyses on an interpretation of the word wilful. In Goodman, 10 after reviewing various sections in the Criminal Code which contained the word, Justice Robertson concluded that its definition should follow from the seriousness of the crime. The Justice held that obstructing a police officer in the execution of his or her duty is a crime of relatively low significance; therefore, requires a lower form of criminal intent. This interpretation was affirmed twenty years later by the same court in Westlie (supra).

R. v. Bowen-Courville (2006) O.C.J. [(for full details of this court decision - refer to Advanced Patrol Training (APT) Collection of Case Law Decisions, 2010)] 10 R. v. Goodman (1951) 99 C.C.C. 366 (B.C.C.A.) This Training package was created by Mauro Succi, Coordinator of Advanced Patrol Training, Ontario Police College.

5 Subsequently, these cases confirm that nothing more need be proven to satisfy the mental element of wilfully as stated under s. 129 of the Criminal Code. 11

Other Case Developments

It is well recognized in law that in the absence of a legal duty to act under statute or at common law, there is no duty on the part of a citizen, even a suspect, to assist police officers in discovering evidence. In R. v. Semeniuk [ONCA 111 C.C.C. (3d) 370] the accused was not guilty of obstruction simply by refusing to unlock the glove compartment of his vehicle upon the command of a police officer where the glove compartment contained liquor in violation of the Liquor Control Act. Similarly in R. v. Lavin (supra), the defendant was not guilty of obstruction merely by refusing to hand over an illegal radar detector where there had been no attempt at concealment of the evidence. Regarding the common law situations of peace and order, in certain cases, persons have been convicted of obstruction of a police officer when they refused an order to disperse. In such cases the accused was part of a crowd disturbing the peace and order of the community by blocking traffic, disturbing a residential neighbourhood, or otherwise breaching the peace of community. In these situations, police would be acting under s. 31(1) of the Criminal Code, 12 or were invoking their duties under common law which have been generally defined in the past as being those "necessary to ensure that the public peace would be kept and to prevent crime and to detect crime and bring offenders to justice and generally to protect from criminal injury. 13 In R. v. Sharma [1993 1 S.C.R. 650], the Supreme Court of Canada decided a case of a street vendor who disobeyed a police officer's order to remove his items from the sidewalk. The police officer was seeking to enforce a municipal by-law (licences for street vendors). The accused was selling flowers in the municipality when he was approached by the officer. The officer informed him that exposing goods for sale on the street without a licence violated a municipal by-law. He was issued a summary offence ticket and told to pack up his display and move on.
The Yukon Territorial Court in 1995 reviewed the authorities and found that willful obstruction requires a general intent. Chief Judge Faulkner rejected the accused's argument that his intoxication was a defence: R. v. Grandish, [1995] Y.J. No. 63 (QL). In R. v. Gunn (1997) 113 C.C.C. (3d) 174 (Alta. C.A.), the Alberta Court of Appeal stated that it constitutes an error of law in holding that the crime of wilfully obstructing a police officer in the execution of his duty requires a specific intent, and on that basis reversed the trial decision. In R. c. Rousseau (1982) C.S. 461 (Qu.S.C.), the Superior court concluded that the infraction of obstruction requires a general intent. Wilfully, deliberately and conscientiously, obstructing a peace officer and doing an act towards the said police officer acting in the execution of his duty, knowing that said act will likely obstruct, be harmful and disturb this police officer to accomplish his duty constitutes the infraction. For further support for general intent of willfully obstruct refer to the following cases: R. v. Edmunson, (1975) W.W.D. 180 (B.C.C.A.) and Lavin v. Que. (A.G.), (1990) 77 C.R. (3d) 251 (Qu. Sup. Ct.). (1) Every peace officer who witnesses a breach of the peace and every one who lawfully assists the peace officer is justified in arresting any person whom he finds committing the breach of the peace or who, on reasonable grounds, he believes is about to join in or renew the breach of the peace. See, for instance, R. v. Watkins (1985) 7 C.C.C. (2d) 513, R. v. Jarvie, (1981) 18 Alta. L.R. (2d) 36; R. v. Lykkemark, (1982) 18 Alta. L.R. (2d) 48; Rice v. Connolly (1966) 2 All E.R. 649 (Q.B.);
13 12 11

This Training package was created by Mauro Succi, Coordinator of Advanced Patrol Training, Ontario Police College.

6 He was given a brief grace period to follow this directive. The officer told the accused that when he returned, if he was still selling goods, that he would face a criminal charge of obstruct police. The accused refused to move. Accordingly he was charged with the offence. The high court eventually found the vendor not guilty of obstruction. The main reason for the acquittal was that neither the by-law nor the Provincial Offences Act contained any arrest authority to prevent the continuation of the offence. While the Court recognized that police officers have general common law and statutory duties to preserve the peace, prevent crime, apprehend criminals and enforce municipal by-laws, the municipality had made a decision that an offender could not be arrested if he or she continued to commit the offence: Here the legislature has not seen fit to provide a mechanism by which the conduct prohibited in s. 11 of the by-law can be immediately brought to a halt. A police officer may invite a person to desist. He or she may issue a new summons if the offence is being repeated. However, the continuation of such conduct, absent circumstances amounting to a breach of the peace or interfering with the authority of the police officer to issue a summons, cannot amount to obstruction, in my opinion, even after the alleged offender has been warned to stop his activities. In R. v. Waugh [1994 ONSC 2455 Canlii], the accused, who was observed parking in a restricted area at an airport for which he did not have a permit, was found guilty of obstruction of a police officer by his continuous refusal to identify himself. Unlike Sharma, the governing legislation gave the police various powers, including a power of arrest. Firstly, the Federal Airport Traffic Regulations required the driver of a motor vehicle on an airport to comply with any directions given to him by a constable. Furthermore, every person on an airport was specifically obliged to produce to a constable upon demand any licence or permit. Also, the Highway Traffic Act required that every person unable to surrender a licence must, when requested by the police officer, give a reasonable identification. Finally, the Highway Traffic Act included a power of arrest. In R. v. Waugh (different case with the same name) [2010 ONCA 100 Canlii], the Ontario Court of Appeal upheld two convictions of obstruct police. Both convictions arose out of incidents in which the vehicle he was driving was properly stopped by police for road safety purposes. On each occasion Waugh failed to produce proof of valid insurance and was uncooperative with police. On appeal, the defence raised a number of issues; however, the main submission was that the police officers were not engaged in the lawful execution of their duties at the time of the original arrests. Therefore, the accused could not have obstructed the officers. This argument rested on two matters. First in relation to the first incident the defence argued that, having properly served Waugh with valid provincial offence notices, the police had no further authority to impound the uninsured vehicle. It follows that they had no authority to require Waugh to get out of the vehicle. He could therefore not have been obstructing the police by failing to do so. Secondly in relation to the second incident defence argued that the police had no authority (a) to impound the vehicle, for the same reasons set out above, or (b) to seize
This Training package was created by Mauro Succi, Coordinator of Advanced Patrol Training, Ontario Police College.

7 the licence plate because the vehicle was uninsured and they had no basis for believing in the circumstances that the licence plate had been improperly obtained. Lastly, the police are not entitled to enforce the provisions of the Highway Traffic Act through the obstruct provisions of the Criminal Code. First Incident The officer was on foot patrol when he saw a rusted Pontiac vehicle that appeared to be in poor condition and did not have a front licence plate. He instructed the driver, Waugh, to stop and pull over. The accused was unable to produce either a drivers licence, a valid vehicle permit, or proof of valid insurance. The officer believed (correctly, as it turned out) that the vehicle was uninsured. He advised Waugh that the vehicle would be impounded and a tow truck was summoned. A CPIC check revealed that Waugh had three previous convictions for operating a vehicle without insurance. The accused refused to get out of the car. Instead, he locked himself in and asked that a supervisor be called. The officer did in fact contact the supervisor. While waiting, the officer served Waugh with several provincial offence notices. Shortly thereafter, while still waiting for the supervisor to arrive, Waugh started the car and began to drive away. Pursued by the police, he ultimately turned off the road and parked the car in a private laneway about 250 metres away from the point where he had been stopped. Since the vehicle was parked on private property and not on a highway, the police were unable to tow it away. Waugh was then charged with the offence of obstruct police on the basis that he had failed to follow the police instructions not to move the vehicle and had prevented them from properly towing the uninsured vehicle. The accused explained that once he had received the offence notices he thought he was free to drive off. Second Incident This same officer was again on foot patrol, this time in a different location. Again, he noticed a vehicle approaching that appeared to be in poor condition (it was rusted, the suspension was not proper, and the vehicle was leaning to one side) and it lacked a front licence plate. He signaled for the vehicle to stop. And again, the vehicle was driven by the accused, Waugh. And yes, once again, Waugh was uncooperative. This time, Waugh refused to stop when initially requested to do so. As the officer approached the vehicle to instruct the driver to pull over, Waugh put the vehicle in motion, and drove around the officer, and proceeded along the street. The officer repeatedly called for the accused to stop, but he proceeded to turn into a laneway designated by the city as a fire route. Eventually, he did stop, but not before driving within an arms length of the police officer who was tapping on the hood, telling the driver to stop. This time Waugh was able to produce a valid drivers licence and vehicle ownership permit, but he did not produce proof of insurance. It is important to know that this same officer had stopped the accused on one other occasion since the first incident which resulted in the officer later learning that Waugh continued to operate a motor vehicle without insurance. 14

The officer had stopped Waugh on one other occasion since the March 3, 1999 incident (on April 4, 1999) when Waugh was again unable to provide proof of insurance. He therefore recognized Waugh from his previous experiences and suspected that the vehicle was uninsured. Following the March 3 incident, the officer had made some inquiries at the Ministry of Transportation and the Financial Services Commission. These inquiries revealed that Waugh had obtained his vehicle validation sticker by pretending to be insured by a company Your Own Insurance Company that did not exist.


This Training package was created by Mauro Succi, Coordinator of Advanced Patrol Training, Ontario Police College.

8 In this incident, the officer informed Waugh that he would seize his licence plate (a dealer plate) which was displayed inside the vehicle on the rear window. He also informed Waugh that his car would be impounded, and a tow truck was summoned. After some resistance, Waugh got out of the vehicle through the passenger side door and then quickly slammed the door, locking the keys inside the car, thus preventing the police from seizing his licence plate. Again, Waugh was arrested for the offence of obstruct police. The main issue on appeal was whether police officers, in the exercise of their legitimate duties under the Highway Traffic Act, have the authority to cause a vehicle to be removed from the highway, or to seize its licence plates at the roadside, when they reasonably believe the vehicle is uninsured. If they do not, then Waugh could not have been guilty of obstructing them in the execution of their duties. Statutory Power The Court of Appeal agreed with defence that the police power to impound a vehicle reasonably believed to be uninsured does not derive from statute. Nothing in the Highway Traffic Act or the Compulsory Automobile Insurance Act, gives that authority to the police. Common Law However, the Ontario Court of Appeal agreed with the Crown that the Police Services Act expressly provide the police with authority to impound a vehicle reasonably believed to be uninsured. The police had the authority to stop and impound Mr. Waughs vehicle based on powers inherent in the execution of their common law duties. Those duties include the preservation of the peace, the prevention of crime and the protection of life and property, from which is derived the duty to control traffic on the public roadsthe thrust of these duties is reflected in s. 42 of the Police Services Act as well.

The Court of Appeal arriving at this conclusion relied on what is commonly referred to as the Waterfield test. 15 In the Courts opinion, the test was met and the police acted
reasonably and prudently: The officer and his companion officers were attempting to enforce the provisions of the Compulsory Automobile Insurance Act, acting on a reasonable belief, in both incidents, that Mr. Waughs vehicle was not insured. They were also acting pursuant to their common law duty to protect the life and property of the public and to ensure the safety of the roadways. The first branch of the test is satisfied. Was the use of the power justifiable in the circumstances, as required by the second branch? In my opinion, it was. An uninsured vehicle has no right to be on a public highway in Ontario. The police had a reasonable belief that Mr. Waughs vehicle was uninsured. What were they to do? If they permitted the uninsured vehicle to continue

R. v. Waterfield, (1963) All E.R. 659 (C.C.A.), at p. 661 - in determining the extent to which the police are authorized by common law to interfere with the liberty and property of individuals. The Waterfield test is case specific but involves ascertaining: (a) whether the police conduct in question falls within the general scope of any duty imposed by statute or recognized at common law; and (b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty.

This Training package was created by Mauro Succi, Coordinator of Advanced Patrol Training, Ontario Police College.

9 to be driven on the highway, they ran the risk of an accident occurring and of someone being seriously injured or killed without the benefit of the safety network envisaged by the Compulsory Automobile Insurance Act. If they did not permit the vehicle to be driven away and it remained on the highway without being towed it would constitute a hazard. The ability to impound the vehicle and have it towed away, in the circumstances, is a reasonable exercise of the police common law duty to prevent crime (the commission of further insurance-related driving offences), to protect the life and property of the public, and to control traffic on the public roadsThat regime, and the role compulsory insurance plays in it, can only be reasonably protected if the police have the authority to cause uninsured vehicles to be removed from public highways and towed to safety in certain circumstancesThese factors outweigh the concern for caution in extending police powers through resort to their common law duties in circumstances such as these. Accordingly, since the police were engaged in the lawful execution of their duties when attempting to impound the accuseds vehicle in both instances, it was a question of fact whether his actions sufficiently frustrated the police efforts to constitute the offence of willfully obstructing the police. Both trial judges concluded they did, and the summary conviction appeal judge was correct in not interfering with their conclusions.

Using the Criminal Code Indirectly to Enforce Provincial Legislation The police charged Waugh with obstruction in relation to the second incident on two bases. First, he failed to stop his vehicle when instructed to do so. But secondly, he intentionally locked his keys in the vehicle, thus preventing the officers from seizing his licence plate and investigating its validity. As a result of the previous contact with the accused, and further investigation, the officer was aware that the accused had obtained his vehicle permit by certifying that he was insured by a non-existent insurance company. The officer had a reasonable belief, therefore, that the vehicle plate or its validation sticker may have been obtained by false pretences. On that basis, the Court of Appeal concluded that the officer was entitled to seize the plate that was located in the rear window of the accuseds vehicle in order to investigate whether the plate or validation sticker had been obtained by means of a false statement in a certificate of insurance used to obtain it, contrary to subsection 13(2) of the Compulsory Automobile Insurance Act. 16 Lastly, subsection 14(1) of the Highway Traffic Act permits a police officer to seize a vehicle licence plate or evidence of validation of a permit if the officer has reasonable grounds to believe the number plate or evidence of validation of a permit was obtained by false pretences. Hence,

Section 13 of that Act states as follows: (1) Every person making an application for the issuance, validation or transfer of a permit for a motor vehicle shall certify, in the form prescribed by the regulations, that the motor vehicle is insured under a contract of automobile insurance and the Registrar, despite subsection 7(7) of the Highway Traffic Act, shall not issue, validate or transfer the permit for the motor vehicle, where such certificate of insurance is not provided to the Registrar. (2) No person shall knowingly make a false statement in the certificate of insurance required under subsection (1). This Training package was created by Mauro Succi, Coordinator of Advanced Patrol Training, Ontario Police College.


10 the Court of Appeal agreed with the lower court ruling that the offence of obstruct police was made out. In essence, this is what the officers were attempting to do on second incident when Waugh quickly jumped out the passenger side of his vehicle (the opposite side from where the police were standing) and locked the doors with the keys inside, thus frustrating their attempts to seize the plate. As a result, the Court of Appeal dismissed the appeals and affirmed the convictions. In R. v. Sanderson [2003 ONCA 20263 Canlii], the complainant watched the hockey game on television with her boyfriend, Sanderson, and Sandersons friends. Throughout the evening and after the friends departure, the complainant and Sanderson argued about the complainants dog. After the complainant had gone to bed, she heard the accused threaten to kill the dog. He got a hammer and chased the dog. When the complainant tried to restrain Sanderson, he pushed her to the floor. The complainant ran, shoeless and in her pyjamas to a nearby apartment. The neighbour accompanied the complainant back to Sandersons house to get the dog and her personal belongings. Another altercation took place. Sanderson threatened to burn the complainants property. The complainant called 911. Four officers arrived and decided to accompany the complainant to Sandersons house to allow her to get her belongings safely (she had clothes, cosmetics and furniture in the house). At Sandersons house, she used a key to gain entry. Once inside, the police gave Sanderson the option of voluntarily accompanying them to the station for questioning, or waiting until they obtained a warrant to arrest him for assaulting the complainant. Sanderson told the officers to get a warrant. Sanderson swore at the police and repeatedly told them to leave his house. The officers replied that they would leave as soon as the complainant had collected her belongings. The complainant wanted to enter the bedroom to collect her clothes. Sanderson blocked her entry. The officers asked Sanderson to move and he refused. Sanderson was warned that he would be arrested for obstruct police if he persisted. Sanderson still did not move. He was arrested and charged with obstruct police. The question raised on appeal was the lawfulness of the officer on the property of the accused. The appeal raised two issues: (1) (2) Was the police entry into the respondents house lawful? If the answer to (1) is Yes, was the police conduct inside the house lawful?

If yes to both, then the offence of obstruct police would have been appropriate. The Ontario Court of Appeal agreed the officers were acting lawfully and ordered a conviction on the charge of obstruct police. The police testified that they accompanied the complainant to the respondents residence to prevent her belongings from being burned and to assist her in removing them from the dwelling. These were entirely legitimate purposes and, as explained in the previous section, rendered lawful the police entry in the dwelling. The steps the police took inside the dwelling were directed to precisely the same purposes. If the respondent had moved out of the bedroom doorway, the complainant, under the watchful eye of the police, could have safely removed her belongings (one purpose fulfilled) which in turn would have given the respondent no opportunity to burn them (the second purpose fulfilled). The police were
This Training package was created by Mauro Succi, Coordinator of Advanced Patrol Training, Ontario Police College.

11 fulfilling their common law and statutory duties of protecting property and assisting a victim of crime. The first stage of the Waterfield analysis has been met. The police had been called to assist a distraught young woman in the middle of the night who, after being assaulted twice, had been forced to flee her boyfriends residence, without any shoes, and wearing only her pyjamas. There have been significant and commendable changes in recent years in the response of Canadian police to domestic violence situations. There is now a much greater recognition by the police of both the extent and the seriousness of the problem, and the consequences for victims in the community, when the police fail to respond. Police officers are often the first persons called to respond in situations of domestic violence. In my view, it is very much in the public interest that the police, in the discharge of their public duties be willing and able to assist victims of domestic violence with leaving their relationships and their residences safely and with their belongings. That is precisely what the police did in the present case. The actions of the police in the respondents residence were geared to a justifiable use of their powersWhen the respondent refused to allow the complainant to enter the bedroom, the police were justified in ordering the respondent to move, and in arresting him for obstruction when he refused to comply. I disagree with these suggestions about proper police behaviour in the context of a volatile domestic dispute. The suggestion that the police might have advised the complainant to do nothing until the morning ignores the facts that she had been assaulted to an extent that the police noticed a scratch mark under her eyes, that it was the middle of the night and she had only pyjamas, and that an angry boyfriend had just attacked her dog and threatened to burn all of her belongings. A suggestion by the police that neither they nor the complainant do anything until the morning would have been unhelpful and inappropriate. I described the police entry into the respondents residence as logical, laudable and lawful. The same words apply to their conduct inside the dwelling.

In R. v. Ramos [2010 ONCJ Canlii 303] the main issue was whether giving a false name constitutes the offence of obstruct police. It began when two uniformed police officers stopped the accused who was riding a bicycle. The officers stopped Ramos because he was riding his bicycle without any illuminated lights. They investigated him for an infraction of the Highway Traffic Act. The officers asked the accused to identify himself. He gave the name of John Lee but could not provide any documentary identification. While investigating the legitimacy of the identification, one officer noted a bulge in the accuseds pocket. When asked what it was, the accused produced a pruning saw. This looked like a knife to the officer. The accused was placed under arrest for carrying a concealed weapon. The officers later learned that he had given them a false name. The Crown submitted that the police officers were indeed obstructed. The officers were investigating a Highway Traffic Act offence and demanded Ramos identity as they had the authority to do. The false identity provided lead to a significant amount of investigation by the police. Thus, it is contended that the officers were obstructed in their investigation by the accused. The defence countered that Ramos conduct does not amount to the criminal offence
This Training package was created by Mauro Succi, Coordinator of Advanced Patrol Training, Ontario Police College.

12 of obstruct police. Defence argued that where there is a more moderate means of enforcing a regulatory offence, the charge of obstruct police under the Criminal Code is not available. While the police could demand a cyclists identity under the Highway Traffic Act, the failure on the part of the accused to properly comply with this section, did not convert what was essentially a regulatory offence into a criminal one. Essentially, there is already a penalty provision under the provincial legislation. 17 The court disagreed with the defence submissions and convicted Ramos of obstruct police. In Mr. Ramos case, this power of arrest has specifically been provided for by the legislature. Where the police find a person in charge of a bicycle contravening the H.T.A. or relevant municipal bylaw, the police are authorized to arrest the person if that person fails to give his or her correct name and address. Quite obviously the legislature was of the view that without such basic information, the police would be unable to investigate and enforce these laws against cyclists. To permit them to leave the scene without complying would be contrary to public safety and the administration of justice. Thus, the police are given the power of arrest to require compliance. To say the police should simply ticket and resort to a general penalty of a fine is absurd if the cyclist is able to refuse to identify him/herself and to ride anonymously away with impunityIn summary, Mr. Ramos situation is legally distinguishable from the cases relied on by the defence. Here, the provincial legislature has specifically provided for a power to arrest a cyclist who fails to provide correct identification in order to compel such information and to prevent an unidentified cyclist from leaving the scene of an offence. In such a case, the police officer is in the execution of his duty when he is engaged in an investigation under s. 218 and the criminal charge of obstructing a peace officer is available. In R. v. Hayes [2003 ONCA Canlii 3052], the accused was riding his motorcycle when he was stopped at a police road-check. The police were operating the road-check to target members of a motorcycle gang, who were holding their annual summer gathering in the area. One purpose of the stop, among others, was to ensure highway safety by checking for compliance with the Highway Traffic Act legislation. One of the reasons the accused was stopped was because his motorcycle was loud and could be heard from half a kilometre away. The police examined his motorcycle, and in particular inspected his mufflers to determine whether they contained noise baffles. The officers also asked him to remove his helmet so that they could inspect it. Hayes repeatedly refused this request. According to the officer, Hayess helmet did not appear very safe. There was scaling or chips on the back and the chinstrap appeared weathered. The officer wanted to inspect the safety sticker on the inside. The officer cautioned him that he would be charged with obstruct police if he did not comply, but he persisted in his refusal. The officer

218 (1) A police officer who finds any person contravening this Act or any municipal by-law regulating traffic while in charge of a bicycle may require that person to stop and to provide identification of himself or herself. (2) Every person who is required to stop, by a police officer acting under subsection (1), shall stop and identify himself or herself to the police officer. (3) For the purposes of this section, giving ones correct name and address is sufficient identification. (4) A police officer may arrest without warrant any person who does not comply with subsection AND under (6) - There is a penalty provision of a fine for contravening the Act. This Training package was created by Mauro Succi, Coordinator of Advanced Patrol Training, Ontario Police College.


13 finally arrested and charged him with obstruct police. A lower court convicted the accused of the offence. The Ontario Court of Appeal set aside the conviction and acquitted the accused. The Court of Appeal did agree with a lower court ruling that the motorcycle helmet falls squarely within the meaning of equipment under the Highway Traffic Act. 18 However, there cannot be an obstruction without the officer first addressing the refusal as per the condition under sections 82(3) and (4) of the Highway Traffic Act. Under 82(3), a person who fails or refuses to submit their vehicle and its equipment to an inspection is subject to a fine of not more than $1,000. In other words, the legislature defined the enforcement mechanism for failing to submit for inspection as a fine under the Highway Traffic Act. The officer did not attempt to first use this enforcement mechanism, as he was empowered to do, which would have required him to give the appellant a written notice for an inspection as required by 82(4). Therefore, the appellant did not obstruct the police in the performance of his duty. If the appellant had interfered with the officers attempt to issue written notice for a vehicle inspection, the offence of obstruct police could have been made out. However, since the officer did not attempt to enforce his power to inspect the helmet under 82(3) by issuing the written notice as required by 82(4), [which are to be read together], he was not entitled to invoke the far more serious offence of obstruct police. Note: For further Case Law Developments refer to R. v. D.S.N [2010 NSPC 17 Canlii], R. v. Fraser [2002 NSPC 6 Canlii], R. v. Dubien [2000 QCCM 21536 Canlii], R. v. David [2006 ONSC 37705 Canlii], R. v. Bull [1999 ABPC 171 Canlii], R. v. R.J.L. [2002 ABPC 48 Canlii], and R. v. Marchand [1993 BCSC 1108 Canlii].

In considering all of these court decisions, common themes appear to emerge. Firstly, for a conviction, the obstruction itself must go beyond a mere annoyance, non-cooperative, abusive behaviour that officers will often encounter. However troublesome or inconveniencing the conduct might be, it does not constitute an obstruction unless it is a non-cooperative behaviour that falls under statute obligation or common law authority.

82(1) Every police officer and every officer appointed for the purposes of carrying out the provisions of the Act may require the driver or owner of any motor vehicle or motor assisted bicycle to submit the motor vehicle or motor assisted bicycle, together with its equipment and any trailer attached thereto, to the examinations and tests that the police officer or officer may consider expedient. (2) Where any such vehicle, equipment or trailer is found to be in a dangerous or unsafe condition, the police officer or officer making the examination or tests may require the driver or owner of the vehicle to proceed to have the vehicle, equipment or trailer placed in a safe condition and may order the vehicle or trailer to be removed from the highway and may prohibit the operation of the vehicle or trailer on the highway until the vehicle, equipment or trailer has been placed in a safe condition. (3) Every person who refuses or fails to comply with a requirement made under subsection (1) is guilty of an offence and on conviction is liable to a fine of not more than $1,000. (4) Subsection (3) does not apply unless the police officer or officer has given to the person a written notice in the prescribed form requiring the person to submit the motor vehicle or motor assisted bicycle, together with its equipment and any trailer attached thereto, to examination and tests.


This Training package was created by Mauro Succi, Coordinator of Advanced Patrol Training, Ontario Police College.

14 Secondly, it must be a clear obstruction of a police officer in the execution of his duty and not merely obstruction of a police officer who happens to be on duty. In other words, it must be demonstrated that the officer was engaged in some lawful activity that is part of their duties. Lastly, it must be shown that the obstruction was done so wilfully. Therefore, it is important, when possible to: 1. Warn the accused that by continuing to do what he or she is doing is an obstruction, 2. State why it is an obstruction (e.g. Sir, you are interfering with me making a lawful arrest, or Madam, you are preventing me from lawfully conducting this investigation), and lastly, 3. Inform that he or she will be arrested for the offence if the behaviour continues. In closing, officers are to be reminded that an obstruct police should be rarely relied upon when there is a non-compliance, in particular in situations that may end up in a physical altercation and in such confrontations, only as a last ditch effort for the accused to comply. As already mentioned, in situations that are not necessarily physical or obvious, there is often a fine line as to what constitutes an obstruction that even the courts have had difficulty grappling with. In the end, as with most situations, it falls upon the officer to make a determination of when an accused has crossed that line and committed the offence of obstruct police that warrants an arrest and possibly a charge. On this final point, when determining whether or not that line has been crossed, it is prudent to keep in mind the decision by Justice Fradsham: I am satisfied that in order for an accused to be guilty of obstruction, he or she, without lawful excuse, must have done something that affected the work of the police officer. It must have caused the officer to expend more than trifling additional effort. It need not have completely thwarted the work of the police officer, but it must result in more than a fleeting or momentary diversion or expenditure of effort. Each case will be decided on its own facts. (Whalen supra)

This Training package was created by Mauro Succi, Coordinator of Advanced Patrol Training, Ontario Police College.