Buckley c. R., 2016 QCCS 4432
[9] The offence of obstructing a peace officer is described in the following manner under s. 129 a) and e) of the Criminal Code:
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, (…)
is guilty of (…)
(e) an offence punishable on summary conviction.
[10] The actus reus or prohibited conduct of the offence of obstructing a peace officer is comprised of either a positive act or an omission (when there is a legal duty to do something) that makes it more difficult for the officer to carry out his duties (R. v. Moore, 1978 CanLII 160 (SCC), [1979] 1 SCR 195; R. v. Gagné, 1987 CanLII 508 (CAQ) aff. 1989 CanLII 57 (SCC), [1989] 1 SCR 1584; R. v. Lavin, 1992 CanLII 3337 (CAQ); R. v. Gunn, 1997 ABCA 35; R. v. Tortolano, (1975) 1975 CanLII 1248 (ON CA), 28 CCC (2d) 562 (CAO); R. v. Landry, 2005 CanLII 57159 (CSQ); R. v. Virani, 2011 BCSC 1032).
[11] S. 129 of the Criminal Code requires that the peace officer who was obstructed was in the execution of his duty. A police officer is in the execution of his duty if (1) he acts within the general scope of any recognized police duty under statute law or common law and (2) if, in the circumstances of this case, he uses the powers associated with the police duty in a justifiable and lawful manner (R. v. Sharma, 1993 CanLII 165 (SCC), [1993] 1 SCR 650; R. v. Knowlton, 1973 CanLII 148 (SCC), [1974] SCR 443; R. v. Noel (1995), 1995 CanLII 1105 (BC CA), 101 CCC (3d) 183 (BCCA); see also: R. v. MacDonald, 2014 SCC 3 (CanLII), [2014] 1 SCR 37; R. v. Clayton, 2007 SCC 32 (CanLII), [2007] 2 SCR 725; R. v. Dedman, 1985 CanLII 41 (SCC), [1985] 2 SCR 2).
[12] The mens rea or requisite mental element of the offence is an intent to resist or obstruct the peace officer with that purpose in mind while doing so (R. v. Bédard, 2009 QCCA 1473).
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