Resisting Arrest

Resisting arrest occurs when a person interferes in a peace officerPeople involved in upholding justice's attempt to perform a lawful arrest. You have to display more than just passively uncooperative behaviour. You must show active physical resistance. It should be noted that the onus is on the officer to show they were properly carrying out their duties by trying to put you under arrest.

Section 129 of the Criminal Code lists three occasions when this charge may be laid.

• If you resist or wilfully obstruct a public officer or peace officer in the execution of their duties, or if you wilfully obstruct any other person lawfully acting in aid of such an officer.
• If you omit without "reasonable excuse" to assist a public officer or peace officer in arresting a person or in preserving the peace.
• If you resist or wilfully obstruct any person in the lawful execution of a process against lands or goods or in making a lawful distress or seizure.

Section 2 of the Criminal Code defines a peace officer to include the following categories:

• a mayor, warden, reeve, sheriff, deputy sheriff, sheriff's officer, and justice of the peace;
• a member of the Correctional Service of Canada designated as a peace officer pursuant to Part I of the Corrections and Conditional Release Act, and a warden, deputy warden, instructor, keeper, jailer, guard, and any other officer or permanent employee of a prison other than a penitentiary as defined in Part I of the Corrections and Conditional Release Act;
• a police officer, police constable, bailiff, constable, or other person employed for the preservation and maintenance of the public peace or for the service or execution of civil process;
• a designated officer as defined in the Integrated Cross-border Law Enforcement Operations Act when participating in an integrated cross-border operation or engaging in an activity incidental to such an operation;
• an officer within the meaning of the Customs Act, the Excise Act, or the Excise Act, 2001, or a person having the powers of such an officer, when performing any duty in the administration of any of those Acts;
• an officer authorized under subsection 138(1) of the Immigration and Refugee Protection Act;
• a person designated as a fishery guardian under the Fisheries Act when performing duties under that Act, and a person designated as a fishery officer under the Fisheries Act when performing duties under that Act or the Coastal Fisheries Protection Act;
• the pilot in command of an aircraft registered in Canada under the Aeronautics Act, or leased without crew and operated by a qualified person under that Act, while the aircraft is in flight; and
• officers and non-commissioned members of the Canadian Forces appointed under section 156 of the National Defence Act or employed on duties prescribed by the Governor in Council as necessitating peace officer powers.

It is always a good idea to cooperate with police and not physically resist if they want to arrest you. Keep in mind that officers may make an arrest as long as they are satisfied a person has or is about to commit an offence. However, there have been cases where the courts have found officers were not justified in their actions.

In resisting-arrest cases, important issues can include whether the officer was acting lawfully, whether the person was actively resisting, whether the force used was reasonable in the circumstances, and whether the evidence about the arrest is reliable. These issues depend heavily on the specific facts, including what happened before, during, and after the arrest.

If the Crown prosecutes this charge as an indictable offenceA more serious type of Canadian criminal offence. the maximum punishment cannot exceed two years, with less severe penalties given if the charge is treated as a summary convictionUsed for lesser offences.

Section 129 also covers resisting or wilfully obstructing a person in the lawful execution of a process against lands or goods, or in making a lawful distress or seizure (s. 129(c)) — a civil-enforcement situation rather than an arrest. This page focuses on the arrest-related scenarios.

Assaulting a peace officer (s. 270) is a separate and more serious offence. Failures to attend court or to comply with release conditions are dealt with under s. 145. See the related offences for this page.