R. v. Bentley, 2003 CanLII 55414 (QC C.M.)
[12] Sec. 129 of the Criminal Code uses the term “resist” and “obstructs” in the same paragraph. It will be helpful to examine these two concepts and to determine whether they constitute two separate offences or whether they are two ways of committing the same offence.
A) OBSTRUCTION
[13] The prosecution must prove the following essential elements in order to constitute an obstruction:
a) peace officer
b) in the execution of a duty
c) wilfully obstructs.
[14] The defence, and the evidence confirms this, admits that they were police officers in the execution of a duty.
[15] Does the evidence establish the mental element of “wilfully” obstructs?
i) "wilfully"
[16] The notion of "wilfully obstructs a public officer" denotes a voluntary act, committed deliberately and consciously as opposed to an involuntary or accidental gesture, acted out by a person who realises the consequences of his gesture ("objective foreseeability of the result") or should reasonably foresee such consequences taking into account his intellectual ability ("subjective foreseeability").
[17] In R. v. Vukorepa, Justice Taliano defines the term "wilfully" as follows:
"... wilful is defined as something that is done deliberately. It is not accidental it is not without purpose. It is something done of one's own free will and not compulsory. It is the act of doing something in a particular way".
[18] It is therefore not necessary to form a specific intent to act in such a way as to specifically obstruct the peace officer's duty. It is sufficient that the offender have a general intent to do an act which has, in fact, obstructed the peace officer:
« L'entrave d'un agent de la paix est une offense d'intention générale, dont la composante factuelle est simplement d'avoir posé un geste, d'avoir adopté un comportement qui rend plus difficile - pas nécessairement qui empêche - mais qui rend plus difficile, plus onéreux l'activité, le travail de l'agent de la paix." »
ii) "obstructs"
[19] In most cases the accused performs a physical act which obstructs a peace officer in the execution of his duty.
[20] Obstruction is not, however, limited to a physical contact with a peace officer. This concept is wide enough to encompass an unlimited number of acts or circumstances including “non-physical” obstruction. For example:
R. v. Gunn a lawyer told his client, who was about to be legally arrested, to leave the premises. The Alberta Court of Appeal decided that this constituted an obstruction.
R. v. Warrell the judge concluded that a police officer has the power to establish a secure area around his police car when proceeding to arrest an individual. Attempts to enter this area constitutes obstruction.
R. v. Westlie, notifying people of a police presence constitutes an obstruction.
R. v. Akrofi destroying or hiding evidence constitutes an obstruction.
[21] An obstruction can also occur when one does not comply with a police officer’s order or request. However, in such cases the order or request must be authorized by a clear provision of a statute (a by-law or the Criminal Code) or a common law power to issue the request or order or a common law duty to comply with the order or request.
[22] Naturally, common law powers are judge made powers based on policy to enable the police to preserve the public peace, as it relates to the protection of life and property, effectively investigate and prevent crimes.
[23] When police base their power on a statute the statute must specifically provide a legal duty to obey the order or request. If not it can be inferred that the legislator has consciously decided not to grant such a power.
[24] A good example of this principle can be found in R. v. Sharma, where the police officer alleged that he was acting on a municipal by-law when he orders a street vendor to remove his wares. The court concluded that his refusal did not constitute an obstruction since the statute did not contain any arrest powers or power to order removal or any obligation to comply.
[25] On the contrary in Daniluk v. The King, the statute in question did contain a duty to comply with a police officers order and the refusal to comply constitutes an obstruction.
[26] Thus, in R. v. Semeniuk and R. v. Lavin defendants were found not guilty of obstruction since there was no statutory or common law duty to obey an order in the statute on which the police were acting.
[27] Examples of common law powers can be found in :
R. v. Welygan, obstruction for having refused to comply with a police officer’s request to leave the room where the complainant was being interviewed.
R. v. Rosehart, while responding to a call regarding a stolen car, the defendant begins to flee on foot ignoring a police call to stop. He is found guilty of obstructing.
R. v. Watkins, court concluded that there was an obstruction in the refusal to obey a police order to disperse in five minutes since the order to disperse was based on the common law power to preserve the peace.
R. v. Rousseau the court decided that one’s refusal to move out of a secure area at the request of a police officer constituted an obstruction.
R. v. Bouchard et al: instead of obeying an order to disperse the defendants sit passively on the street and interlock arms. The judge found defendants guilty of obstruction most probably because of the act of interlocking arms which constitutes more than mere passive resistance.
R. v. Trépanier, police respond to a complaint of loud music in a dwelling. Defendant refuses to obey an order to open his door. Superior court concludes that defendant had no statutory obligation to open the door. The Court of Appeal grants the appeal and concludes that it is an obstruction.
B) RESIST
[28] There is a wide range of case law dealing with the concept of obstruction, but few cases dealing with the concept of “resists”.
[29] In R. v. Alaimo the court found that the concept of resisting a peace officer requires some direct confrontation with and some small degree of force by the defendant against a peace officer. A charge of resisting by disobeying a police warning was dismissed.
[30] R. v. Marcocchio echoes the same basic reasoning:
“Acts of positive physical resistance amounting to so-called «forcible means » offered by an accused to a police officer... constitutes the sort of resistance that is contemplated by s. 129... resistance without some degree of applied force, is generally found to be outside the scope of s. 129...”
[31] Also R. v. Stortini:
“,,, the word resist is properly descriptive of acts of opposition to the efforts of the officer demonstrated by direct activity of a physical sort... it must be shown that the accused employed « forcible » means to prevent the execution of an endeavour in which force is employed against him.”
[32] It is, however, not necessary that physical force be used directly against the police officer:
R. v. Martin. Defendant struggled for 15 minutes with police who were trying to place him in a police car.
R. v. Nukon defendant found guilty for struggling to avoid being arrested.
R. v. Hutton, defendant determined not to voluntarily enter the police vehicle « maximum effort » was needed to force him into the vehicle.
[33] Naturally, based on the above definition, passive resistance, that is absence of any degree of physical resistance against a police officer does not constitute resistence. In R. v. Stortini, defendant refused to accompany police officers to the police car. He was lifted and carried to the car. No physical force was used by defendant, thus he was found not guilty of resisting.
[34] In R. v. Stortini, the judge underlines the fact that the charge alleged «resist» and not «obstruct». Quare: whether a charge of obstruction could have succeeded? One must keep in mind however, the following passage (not necessarily the prevailing case law) in R. v. Fix:
... passive resistance seems to me you are saying that because the resistance is passive that it’s not resistance... section does not talk about passive or active resistance... it doesn’t matter whether the resistance was passive or active. “
C) RESIST - OBSTRUCT: TWO OFFENCES?
[35] This Court has not found any Superior court case law on this point. A few provincial courts have however, examined this point.
[36] R. v. Alaimo, the judge concluded that “resisting” and “obstructs” are two separate offences. He did so however mainly by reasoning that the two concepts require a different intent. “Wilfully obstruct” requiring a specific intent and “... absence of the word “wilfully” before the word “resists” would seem to dispense with the intentional aspect of the offence of “resisting”. In subsequent cases it was decided that “obstruct” is a general intent offence.
[37] In R. v. Cardinal the judge seems to disagree with R. v. Alaimo:
“... the two words are so similar in meaning that the gravamen of the wrongful act... [is the same] namely: interference with a peace officer executing his duty... they can be alleged in the alternative count.”
[38] The judge seems to suggest that the charge could be amendment from “obstruct” to “resist”, furthermore in the circumstances of the case he felt that it was not necessary to amend it.
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