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A split-second decision to resist arrest can lead to life-altering consequences. It’s a gamble with potentially devastating stakes. But what does the law actually say? And when does your right to question authority cross the line into the criminal offence of resisting arrest?
This article provides a comprehensive overview of resisting arrest laws in Canada, including charges, penalties, and possible defences, to help you understand your rights and legal options. Given the gravity of resisting arrest charges, securing experienced legal representation is crucial to navigating the complexities of the legal system and striving for the best possible outcome.
Resisting arrest is governed by Section 129 of the Criminal Code of Canada. It outlines several actions that can lead to a charge of resisting arrest, namely:
This charge is laid when an individual resists or wilfully obstructs a public officer or peace officer in the execution of their duty. It also applies to anyone resisting or obstructing another person lawfully acting in aid of such an officer.
Omitting to Assist an Officer
This occurs when an individual, without reasonable excuse, fails to assist a public officer or peace officer in the execution of their duty in arresting a person or preserving the peace, after having reasonable notice of being required to do so.
Resisting or Obstructing Lawful Execution of a Process
This charge is applicable when an individual 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.
Additionally, it is important to recognize similar offences, such as obstructing or assaulting a peace officer, which have their own specific legal implications.
Assault with intent to resist arrest is a specific criminal offence in Canada. It occurs when an individual assaults a peace officer or another person with the intention of resisting or preventing their own lawful arrest or that of another person. This offence is covered under Section 270 of the Criminal Code of Canada.
To be charged with assault with intent to resist arrest, the following elements must be present:
In all these circumstances, the intent to resist arrest plays a crucial role. The law treats these actions with significant gravity, recognizing the potential risks and threats to the safety of law enforcement officers and the integrity of the legal process.
Generally speaking, peace officers are individuals who have been given certain powers and authorities by law to maintain public order, enforce laws, and ensure the safety and security of the community.
The Criminal Code of Canada in Section 2 outlines several categories of peace officers, including:
These roles involve various responsibilities, such as preserving the peace, enforcing laws, making arrests, conducting investigations, and ensuring compliance with legal regulations.
Resisting arrest is a serious offence in Canada with significant legal consequences. It’s also a hybrid offence, meaning it can be prosecuted either as a summary offence or as an indictable offence. The severity of the sentence depends on the classification of the offence and specific aggravating factors.
Factors Influencing Sentences:
Penalties for a Summary Offence:
For first-time offenders, jail time is unlikely. Instead, alternatives such as a discharge (which means guilt without a criminal conviction), fines, or probation may be considered.
Penalties for an Indictable Offence:
Long-term Consequences:
Impact on Daily Life: A criminal record's lasting impact can affect various aspects of life, including social relationships and community involvement.
To secure a conviction for resisting arrest in Canada, the Crown Prosecutor must prove each element of the offence beyond a reasonable doubt:
Resisting a Peace or Public Officer
First, the prosecution must demonstrate that the accused deliberately and purposefully resisted a peace officer or public officer. This resistance must involve more than passive non-cooperation and requires active physical and intentional resistance against the officer.
Lawfulness of the Arrest
Second, the Crown must prove that the arrest was lawful. This involves showing that the officer acted within the scope of their official duties when the resistance occurred and had reasonable and probable grounds to believe that the accused committed an offence. This typically means they observed the accused committing a crime or had evidence linking the accused to a crime. If the arrest was not lawful, the charge of resisting arrest cannot stand, and the accused should be acquitted.
Knowledge of the Officer's Status
Third, the prosecution must show that the accused knew the individual they were resisting was a peace officer or public officer engaged in their lawful duty. If the officer was in plain clothes or did not identify themselves, this could be a crucial point in the defence.
Wilful Resistance
Finally, the Crown must prove that the accused’s actions were intentional. Accidental or unintentional actions do not meet this criterion. The prosecution must show that the accused deliberately resisted the arrest.
By establishing these elements, the Crown aims to demonstrate that the accused knowingly and intentionally resisted a lawful arrest by a recognized peace officer.
Mounting a strong defence against resisting arrest charges is crucial due to the serious consequences a conviction can entail. An effective defence can potentially reduce penalties or lead to an acquittal. The cornerstone of many resisting arrest defences is proving that the initial arrest itself was illegal. More defences include:
A key defence against resisting arrest charges is demonstrating that the accused did not know the person attempting the arrest was a peace or public officer. For a conviction, the Crown must prove that the accused was aware of the officer's status. This defence is particularly valid in situations where the officers were not in uniform or failed to identify themselves clearly.
Another effective defence is arguing that the accused did not intend to resist arrest. For a conviction, the Crown must prove that the resistance was wilful and deliberate. If the actions of the accused were unintentional or misinterpreted as resistance, this lack of intent can be a valid defence. For example, if the accused's movements were reflexive or due to confusion, it can be argued that there was no deliberate attempt to resist the arrest.
The defence of mistaken identity can be particularly effective in resisting arrest cases. This defence argues that the accused was wrongly identified as the person resisting arrest. This can occur in situations where identification is based on poor-quality surveillance footage or unreliable eyewitness testimony. Providing an alibi or corroborative evidence that places the accused elsewhere at the time of the incident can strengthen this defence and cast doubt on the prosecution's case.
A fundamental defence against resisting arrest charges is proving that the initial arrest was unlawful. For the charge to stand, the arrest must have been lawful, meaning the officer had reasonable and probable grounds to make the arrest. If the arresting officer overstepped their authority, did not identify themselves, or failed to provide a valid reason for the arrest, the accused's resistance may be justified. In such cases, resisting an unlawful arrest does not constitute a criminal offence, and the charges should be dismissed.
Defending against resisting arrest charges can involve demonstrating that the accused's constitutional rights were violated. Under the Canadian Charter of Rights and Freedoms, individuals are entitled to certain protections, such as being informed of the reasons for their arrest and the right to contact counsel.
If these rights were infringed during the arrest process, it could lead to evidence being deemed inadmissible and potentially result in the dismissal of charges. Highlighting violations of constitutional rights underscores the importance of fair treatment and legal compliance by law enforcement officers.
Securing bail for resisting arrest charges is a crucial step in the legal process. Understanding how bail works and the conditions that may be imposed can help in navigating this phase effectively.
Release at the Scene: In some cases, police may release the accused at the scene with a release order, also known as a Promise to Appear. This document outlines the charges, specifies required court appearances, and may include conditions to follow while on release such as travel restrictions or no-contact orders.
When a Bail Hearing is Required: A formal bail hearing might be necessary if the accused has a criminal record or if the allegations are particularly serious. The bail hearing must be held within 24 hours of arrest or detention or as soon as practicable, starting from the moment of arrest or detention.
Bail Hearing Process: During the bail hearing, the accused is taken to the Toronto Police Service Division, which is responsible for the alleged crime. A criminal defence lawyer can provide guidance and support, keep the accused’s family informed, present arguments for release, and negotiate the conditions of bail. The court will then determine if bail will be granted and under what conditions.
Conditions of Release: Several conditions may be imposed upon release, such as restrictions on travel, no-contact orders with certain individuals, and mandatory check-ins with authorities. Adhering to these conditions is crucial until the case is resolved to avoid further legal complications.
Understanding the bail process and the potential conditions of release underscores the importance of seeking experienced legal representation to ensure the best possible outcome.
Resisting arrest is a serious charge that can have severe consequences. If you or someone you know is facing such charges, it is crucial to seek the advice of an experienced criminal defence lawyer as soon as possible. An experienced lawyer can provide the necessary guidance and representation to navigate the complexities of the legal system and work towards achieving the best possible outcome for your case.
Pyzer Criminal Lawyers is dedicated to ensuring clients have the best chance of being acquitted. With a deep understanding of legal issues and criminal charges, our team is committed to upholding clients' rights and fighting vigorously for their best interests. We offer effective, affordable, and comprehensive legal representation and are steadfastly committed to securing the best possible results for each case.
