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Thursday, July 12, 2012

Wilful Obstruction of Police Officer: Defined

 Refusing to identify oneself, is it a right or considered a criminal charge of wilful Obstruction of Police Officer

Unless a Police Officer witnessed you commit a crime according to the Criminal Code of Canada, violate a provision of a Provincial Act, or contravene a Municipal bylaw, there is no legal obligation to identify oneself to the Police.

Reference: R. v. Lansdell, 2009 ABPC 355 (CanLII), <http://canlii.ca/t/27wx6>

[42]            Two important cases that need to be considered relating to wilful obstruction of police officer in circumstances where individuals refuse to identify themselves to police officers : R. v. Moore 1978 CanLII 160 (SCC), [1979] 1 S.C.R. 195 (S.C.C.)(Moore) and R. v. Guthrie (1982), A.R. 435 (Alta. C.A.)(Guthrie).

[43]            In Moore, an officer stopped the accused after he drove his bicycle through a red light.  The officer intended to give him a traffic ticket for that infraction.  The accused refused to give his name and address to the officer.  The trial judge instructed the jury that there was no evidence of obstruction.  The British Columbia Court of Appeal allowed the Crown appeal and ordered a new trial.  The Supreme Court dismissed the accused’s appeal.  Spence J. wrote the majority judgment.

[44]            Spence J. observed that The Summary Convictions Act (British Columbia) applied s. 450(2) [ now s. 495 (1)(b)] of the Code to offences committed under British Columbia statutes.  This Code section allowed the police to release the individual if the public interest in certain factors can be satisfied without retaining the individual in custody.  Included in those public interest factors was “the need to establish the identity of the person.”

[45]            At p. 203 ‑ 4 Spence J. observed:

In accordance with those provisions, Constable Sutherland could only have arrested Moore for the summary conviction offence of proceeding against a red light if it were necessary to establish his identity.  The constable, therefore, in requesting the appellant Moore to identify himself, was carrying out the duty of enforcing the law of the Province in this summary conviction matter by attempting to identify the accused person so that he might proceed to lay an information or take the more modern form permitted under the said Summary Convictions Act of British Columbia of issuing a ticket.

I am of the opinion that the Court of Appeal of British Columbia was correct in finding that when the appellant Moore refused to accede to the constables request for his identification he was obstructing that constable in the performance of his duties.  As did the members of the Court of Appeal, I am confining my consideration of this matter to the actual circumstances which occurred, that is, that a constable on duty observed the appellant in the act of committing an infraction of the statute and that that constable had no power to arrest the accused for such offence unless and until he had attempted to identify the accused so that he might be the subject of summary conviction proceedings.

I also agree, with respect, with the learned members of the Court of Appeal that this conclusion in no way opposes or ignores the judgment of the Queens Bench in Rice v. Connolly.  In that case, the appellant was seen by police officers behaving suspiciously.  On being questioned, he refused to say where he was going or where he had come from.  He refused to give his full name and address, although he did give a name and the name of a road which were not untrue.  He refused to accompany the police to a police box for identification purposes saying, if you want me, you will have to arrest me.  He was acquitted by the Court of Appeal upon a charge of obstructing the police.  It is paramount to note that the appellant there had not committed any offence in the presence or view of a police officer.  He had simply been acting in what the constable regarded as a suspicious manner.  I view the situation very differently when a person is actually seen by the constable committing an offence.

Therefore, for the reasons which I have outlined above, I am of the opinion that the officer was under a duty to attempt to identify the wrong‑doer and the failure to identify himself by the wrongdoer did constitute an obstruction of the police officer in the performance of his duties.

I add that in coming to this conclusion I have not forgotten the provisions of the Bill of Rights nor the topic of individual freedom generally but I am of the opinion that there is not even minimal interference with any freedom of a citizen who is seen committing an infraction by a police constable in the police constable simply requesting his name and address without any attempt to obtain from that person any admission of fault or any comment whatsoever.  On the other hand, the refusal of a citizen to identify himself under such circumstances causes a major inconvenience and obstruction to the police in carrying out their proper duties. So that if anyone were engaged in any balancing of interest, there could be no doubt that the conclusion to which I have come would be that supported by the overwhelming public interest.

[46]            Ms. Myers, counsel for the accused,  takes solace in the reasoning of McClung J.A. in Guthrie where he opined at paras. 8 - 9:

We view the right of silence in response to police interrogation, custodial or otherwise, as too firmly established within the common law to be unseated by mere judicial erosion. It must await statutory impetus as exampled in the Immigration Act, R.S.C. 1970, c. 325, s. 19(2), the Customs Act, R.S.C. c. 58, s. 239, s. 233(2) of the Criminal Code (leaving the scene of an accident) and the various provincial enactments concerning the investigation of highway traffic accidents. See Ratushny, Self-Incrimination in the Canadian Criminal Process (1979), page 144. To this extent the result in Moore v. The Queen, supra may be said to turn on the inferral of an obligation to speak out drawn from a peace officer's power of arrest without warrant in summary conviction offences as recited in Criminal Code s. 450.

The common law right of silence in an interrogative setting is separably supported in recent judgments issued within the Supreme Court of Canada. Lamer, J., in Rothman v. The Queen (1981), 35 N.R. 485, 59 C.C.C. 30, would locate it within freedom of speech. Dickson, J., writing in minority in Moore v. The Queen, supra, noted that the proposition took root in two other fundamental common law principles, namely; the presumption of innocence and privilege against self- crimination, although as made clear in R. v. Marcoux and Solomon, 4 N.R. 64, 1975 CanLII 10 (SCC), [1976] 1 S.C.R. 763 the latter is now relegated to simple privilege against testimonial compulsion. Additionally, and the point is made by Dr. Glanville Williams, if silence in the absence of a statutory compulsion to answer were obstruction all such statutory imperatives would be unnecessary. Demanding Name and Address (1950) 66 Law Quarterly Review 465.

[47]            These comments must be put in their proper context.  In Guthrie, the accused was stopped by police officers who were suspicious of his presence in the police parking lot because there had been previous break‑ins of police vehicles.  The officers asked her why she was in the parking lot and informed that she would be detained until she identified herself.  She refused.

[48]            The provincial court judge felt obliged to convict Ms. Guthrie because of Moore.  McClung J.A. held that the trial judge was not bound by Moore because there the accused was not found committing a criminal offence: see para. 7.

[49]            Moore and Guthrie can be reconciled.  In Guthrie the police did not have the basis for a lawful arrest, and no triggering obligation pursuant to a Code section to identify the person detained.  In Moore, the officer had the basis for a lawful arrest because he found the accused “committing an offence” and a need to identify the accused arose.  A refusal in the latter situation gives rise to a wilful obstruction while in the former circumstances it does not.


It is important to actually read those decisions fully because  the dissenting Supreme Court of Canada Opinion actually presents a strong argument that the Police cannot charge one with Obstruction of Police Officer by simply refusing to identify oneself.

Reference: Moore v. The Queen, 1978 CanLII 160 (SCC), [1979] 1 SCR 195, <http://canlii.ca/t/1z76c>

Power of Arrest
But law enforcement, for that reason, does not grind to a halt. There is no possibility of frustrating the enforcement of provincial law by refusing to identify oneself since the police have the clear power of arrest in these circumstances for the primary offence, to establish the identity of the accused or to assure his attendance in court. It is beyond dispute that the accused was prohibited by the provisions of the Motor-vehicle Act from proceeding against the red light, an act which he has admitted. Constable Sutherland was carrying out his duties under the Police Act, 1974 (B.C.), c. 64, when he stopped the accused and asked his name and address. Although Constable Sutherland had no power under s. 63 of the Motor-vehicle Act to arrest the accused without a warrant, additional powers of arrest contained in s. 450(2) of the Criminal Code were available. These provisions of the Code are made applicable by virtue of s. 101 of the Summary Convictions Act, R.S.B.C. 1960, c. 373. The most important result follows, as Mr. Justice Spence concludes, that Constable Sutherland could have arrested the accused for the offence of proceeding against a red light if it were necessary to establish his identity. However, with great respect, I cannot agree that, as a consequence, the accused was guilty of the further, and much more serious, offence of obstructing the constable in the performance of his duties by refusing to divulge his name and address.

No Common Law Duty
There is no duty at common law to identify oneself to police. As was stated by Lord Parker in Rice v. Connolly[5], at p. 652:
[Page 209]
It seems to me quite clear that though every citizen has a moral duty or, if you like, a social duty to assist the police, there is no legal duty to that effect, and indeed the whole basis of the common law is the right of the individual to refuse to answer questions put to him by persons in authority, and to refuse to accompany those in authority to any particular place, short, of course, of arrest.
The case stands for the proposition that refusal to identify oneself to the police could not constitute obstruction of the police. The Court distinguished a refusal to answer, which is legal, from a “cock and bull” story to the police, which might constitute obstruction. No other distinction was made. Lord Parker said, p. 652:
In my judgment there is all the difference in the world between deliberately telling a false story, something which on no view a citizen has a right to do, and silence or refusing to answer, something which he has every right to do.
In Ingleton v. Dibble[6], a distinction was drawn between a refusal to act, on the one hand, and the doing of some positive act, on the other. Bridge J. (with whom Lord Widgery C.J. and Ashworth J. concurred) said, at p. 279:
In a case, as in Rice v. Connolly, where the obstruction alleged consists of a refusal by the defendant to do the act which the police constable has asked him to do—to give information, it might be, or to give assistance to the police constable—one can see readily the soundness of the principle, if I may say so with respect, applied in Rice v. Connolly, that such a refusal to act cannot amount to a wilful obstruction under s. 51 unless the law imposes on the person concerned some obligation in the circumstances to act in the manner requested by the police officer.
The legal position in England and Wales has been described in these terms in Police Powers in England and Wales (1975), by Leigh, at p. 195:
And in general it still remains the rule that a citizen has a right to be as unco-operative as he pleases, provided that he does not impede the course of justice by knowingly giving false information to the police.
[Page 210]
In the Ontario case of Regina v. Carroll[7], the facts, as disclosed in the headnote, were these. The accused was charged with unlawfully and wilfully obstructing a police constable while engaged in his duties as a peace officer, contrary to s. 100(a) of the Criminal Code, 1953-54 (Can.), c. 51. The accused, in company with three other men, was proceeding along a highway at an early hour in the morning. The constable heard them whistling and yelling and he advised them to be quiet and go home. Three of the party followed his advice. The accused remained. The constable asked him to produce his identification but the accused refused to do so and proceeded on his way. The constable caught up to him and again asked accused to identify himself. An argument and struggle followed and the accused was arrested. He was later charged with obstructing a police officer and was convicted. He appealed. The conviction was quashed. It was held that under the circumstances, the accused was not under any duty to identify himself as requested.
The Crown conceded in this Court that no such obligation was to be found in the common law. From whence then comes such a duty? Where does one find the legal compulsion to answer? A person cannot “obstruct” by refusing to answer a question unless he is under a legal duty to answer.

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