s. 129(a) constitutes one offence of “resists or willfully obstructs” where “resist” and “obstruct” are alternate means of committing an offence: R. v. Glowach, 2001 BCSC 241 (CanLII).
The offence of resisting a peace officer requires more than being uncooperative: it requires active physical resistance.
R. v. Kennedy, 2016 ONCA 879
Criminal Code, Section 129 (a)
Every one who resists or willfully 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 [an indictable or summary offence] [emphasis mine].
The Actus Reus of the Offence of Resisting a Police Officer
In order to prove a charge of resisting arrest, the actions of the accused must constitute “active resistance” and not “passive resistance”.
Further, the officer must be acting in execution of his/her duty.
Conduct, without such active resistance may, conceivably, amount to obstruction of the officer, but it does not amount to resistance under section 129.
Active physical resistance= the active use of force
In R. v. Alaimo (1974), 27 C.C.C. (2d) 491 (Ont. C.J.), the court concluded the offence requires a direct confrontation between the subject and the police and at least a minimal degree of force exercised.
In R. v. Stortini (1978), 42 C.C.C. (2d) 214 (Ont. C.J.), the conduct of the accused must amount to more than what has in the past been referred to as passive resistance, that is, resistance without some degree of force or violence, regardless of how minimal, before it can be said that the accused has committed the offence of resisting. Sortini, who refused to accompany the police officers after he was advised he was under arrest, and was lifted up under each arm by police and carried to the police vehicle did not commit the offence of resist police officer. Key to this finding is the fact that Stortini did not exert any direct physical force on the officers.
Similarly, in R. v. Bentley,  Q.J. No. 16091 (C.S.), the accused was unresponsive when directed to remove the keys from the ignition of his car and exit the vehicle. After repeating the request and gaining no compliance, police forcefully removed the accused from his vehicle. During his removal, he placed his hands firmly on his steering wheel as an indication that he had no intention of leaving the car. At para. 33, the court interpreted “passive resistance” as the “absence of any degree of physical resistance” and held that it did not constitute resistance for the purposes of s. 129 of the Criminal Code. However, the court held that the accused’s acts did not constitute passive resistance as “he use[d] physical force to prevent his removal”: para. 51. In the result, the accused was acquitted as he had been charged with obstruction, and not with resisting.
In R. v. Marcocchio, 2002 NSPC 7, 213 N.S.R. (2d) 86, at para. 113, the court reached a similar conclusion that acts of positive physical resistance amounting to so-called ‘forcible means’ offered by an accused to a police officer in the execution of his duty constitutes the sort of resistance that is contemplated by s. 129 of the Criminal Code. On the other hand, conduct which is often referred to as ‘passive resistance’ which is to say resistance without some degree of applied force, is generally found to be outside the scope of s. 129 and not punishable by criminal sanction.
In R. v. M.L.M., 2007 ABCA 283, 52 M.V.R. (5th) 52, the accused was detained by officers while seated in his car. He failed to comply with orders to put his hands on the dashboard and instead started the vehicle, put it in reverse and stepped on the gas. The appellant argued that, while his conduct amounted to non-cooperation, it did not constitute resistance because there was no direct physical confrontation with the officers. In dismissing the appeal, at para. 9, the court concluded that the accused’s actions were more than passive resistance and constituted an “active use of force” against the peace officer.
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