Obstruction of Justice & Obstruction of a Peace Officer

Obstruction of Justice and Obstruction of a Peace Officer are broad offences that capture a variety of conduct that a member of the public might not recognize as obviously criminal. Because of this, these charges can be especially difficult for an individual to defend without the assistance of knowledgeable counsel.

What is the Difference Between Obstruction of Justice and Obstruction of a Peace Officer

The offences of Obstruction of Justice and Obstruction of a Peace Officer have substantial overlap, but also important differences. Broadly speaking, Obstruction of Justice is the more general of the two offences, while Obstruction of a Peace Officer relates specifically to conduct in relation to police and certain other public officers.

Any intentional attempt to “obstruct, pervert or defeat the course of justice” is a crime. Example of Obstruction of Justice Include (but are far from limited to):

• Paying/indemnifying or agreeing to pay/indemnify a surety;
• Accepting payment/indemnification as a surety;
• Threating or bribing jurors/witnesses;
• Accepting a bribe as a juror/witness; and
• Destruction of Evidence.

The offence of Obstruction of a Peace Officer criminalizes:

(a) resisting or wilfully obstructing a public officer or peace officer in the execution of their duty or any person lawfully acting in aid of such an officer;

(b) omitting, without reasonable excuse, to assist a public officer or peace officer in the execution of their duty in arresting a person or in preserving the peace, after having reasonable notice that he is required to do so, or

(c) resists or wilfully obstructing any person in the lawful execution of a process against lands or goods or in making a lawful distress or seizure.

Example of circumstances that have been found to constitute Obstruction of a Peace Officer are:

Refusing to identify oneself to a police officer when stopped for running a red light (Moore v The Queen, 1978 CanLII 160 (SCC), [1979] 1 SCR 195).

Pointing out undercover officers in the course of police duties (Regina v Westlie, [1971] BCJ No. 643, 2 WWR 417, 2 CCC (2d) 315).

Pushing into an area cordoned off by police against their instructions (R v Knowlton, [1974] SCR 443).

What are the Potential Sanctions for Obstruction of Justice and Obstruction of a Peace Officer

Most criminal code offences can be prosecuted either by indictment or summary election. Per s. 787 (1), unless indicated otherwise, the maximum penalty for a summary conviction offence is 2 years less a day imprisonment and/or a $5,000 fine.

Obstruction of Justice

For Obstruction of Justice involving paying/indemnifying a surety or accepting payment/indemnification as a surety the maximum penalty is 2 years imprisonment if prosecuted by indictment or a summary conviction if the Crown [prosecution] proceeds by summary election.

For all other cases of Obstruction of Justice, the maximum penalty is 10 years imprisonment if prosecuted by indictment or a summary conviction if the Crown [prosecution] proceeds by summary election.

Obstruction of a Peace Officer

For Obstruction of a Peace Officer the maximum penalty is 2 years imprisonment if prosecuted by indictment or a summary conviction if the Crown [prosecution] proceeds by summary election.

What Defences are Available for Obstruction of Justice or Obstruction of a Peace Officer

As in every case, the defences that may be available to you depend on the specific facts of your case.

The following list includes some defences that may be available in Obstruction of Justice or Obstruction of a Peace Officer:

Factual Innocence: If the Crown [prosecution] is unable to prove the essential elements of your charge beyond a reasonable doubt, they will have failed to discharge their burden. The specific elements the Crown has to prove will vary depending on the offence you are charged with.

If, for example, you are charged with Obstruction of Justice for Paying/Indemnifying a Surety, the Crown must prove:

• the identity of the offender;
• the date and time of the incident and jurisdiction;
• That the accused wilfully attempted in any manner to obstruct, pervert or defeat the course of justice by
  1. Indemnifying a surety in any way; or
  2. Promising to indemnify a surety in any way.

Duress: The defence of duress may be invoked when someone commits an offence under compulsion by threats of death or bodily harm. For this defence to apply, the threat and crime must be closely connected in time, and the accused must have no safe avenue of escape.

Necessity: The defence of necessity may be invoked in emergency-type situations. In R v Latimer, 2001 SCC 1, the Supreme Court of Canada set out the three factors that must be present for the defence of necessity to succeed in a case:

• The accused must be in a situation of imminent peril or danger;
• The accused must have had no reasonable legal alternative to breaking the law; and
• The harm inflicted by the accused must be proportional to the harm avoided by the accused.

Violation of Charter Rights: Under the Canadian Charter of Rights and Freedoms, individuals are afforded specific rights, including:

• the right against unreasonable search and seizure;
• the right to not be arbitrarily detained;
• the right to be informed promptly of the reasons for arrest;
• the right to retain and instruct counsel without delay; and
• the right to be tried within a reasonable time.

A successful Charter challenge may also result in a stay of proceedings, or evidence from your case being excluded.

Alternative Outcomes

In some instances, it is possible that your charge(s) may be resolved without going to trial or pleading guilty. The availability of these alternative outcomes depends on a number of factors; each case is fact-specific. The following is a list of examples of alternative outcomes in a criminal case:

Withdrawal of Charge(s): The Crown may decide to withdraw a defendant’s charge(s) where:

• The Crown does not believe they have a reasonable prospect of conviction at trial, due to various reasons; or
• It is not in the public interest to prosecute.

Stay of Proceedings: A stay of proceedings effectively stops a legal proceeding in its tracks. There are two types of stays of proceedings, a judicial stay and crown stay of proceedings. A judicial stay is a rarely granted remedy which permanently ends a prosecution (see e.g. Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 at para 83). The Crown may also choice to stay a proceeding. The difference between a Crown stay of proceedings and a withdrawal is that, with a stay of proceedings, the Crown may decide to continue the proceedings at a later date.

Diversion: Diversion (often referred to as “Direct Accountability” or “DAP”) is an alternative way of resolving charges in the criminal justice system, and provides offenders with an opportunity to take accountability for their actions without incurring a criminal record. Diversion is usually reserved for minor offences and first-time offenders. To successfully complete a diversion program involves some form of upfront work by the defendant, including but not limited to:

• A written apology letter;
• Charitable donation(s);
• Community service/volunteer hours;
• Counselling and/or programming; and
• Restitution/compensation.

Next Steps

The information above provides a general overview of Obstruction of Justice or Obstruction of a Peace Officer charges. However, no two cases are alike. Every case is fact-specific and ranges in complexity, depending on the issues at play.

Are you charged with an Obstruction of Justice or Obstruction of a Peace Officer offence? Contact our office today at 416-924-5969 to learn more about how we can help you. Our team of lawyers is prepared to conduct a thorough review of your situation and develop an approach tailored to your needs. Obtaining proper legal representation is the first step in preparing a successful defence.