QUICK TAKEAWAY
Resisting Arrest: You can be charged with resisting arrest if you physically resist a peace officer when they are lawfully seeking to apprehend you or if you fail to assist a peace officer in an arrest without having a reasonable excuse. A conviction can result in a jail term of up to two years, but the onus is on the prosecution to show the arrest was lawful and necessary.
Table of Contents:
What is Resisting Arrest?
Resisting arrest occurs when a person interferes in a peace officer'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.
Who is Considered a Peace Officer?
The Criminal Code defines a peace officer as:
- a mayor, warden, reeve, sheriff, deputy sheriff, sheriff’s officer and justice of the peace;
- a member of the Correctional Service of Canada, such as a warden or any other officer or permanent employee of a prison;
- a police officer or other people employed for the preservation and maintenance of the public peace;
- a designated officer participating in an integrated cross-border operation in relation to activities governed by the Customs Act, the Excise Act or the Excise Act, 2001.
- an officer carrying out duties in relation to the Immigration and Refugee Protection Act;
- a fishery guardian as described by the Fisheries Act;
- a pilot in command of an aircraft; and
- officers and non-commissioned members of the Canadian Forces who have been given the powers of peace officers.
Can I Lawfully Resist Arrest?
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.
For example:
- In 2021 in Edmonton, a provincial court judge found an Edmonton constable guilty of an "unnecessary and gratuitous" assault on an "unresisting" Indigenous man. According to R v. Partington, the man had been stopped for riding his bicycle on a sidewalk without a bell, a bylaw infraction. When he tried to flee police, an officer gave chase and pinned him to the ground and a second officer “aggressively” drove his knee into his back as he was arrested. In finding the second officer guilty of assault, “the time which must be considered in evaluating the legitimacy of the use of force is the time at which the force is used … [this was] a gratuitous assault on an unresisting suspect.”
- In Winnipeg in 2019, a man was charged with two charges of assaulting a police officer and one charge of resisting arrest after police responded to a report of a break-in involving a man with a weapon. According to the judgment in R. vs. Anobis, the man was tasered and punched by police during the arrest. Citing “significant concerns with the evidence” police gave about the incident, a provincial judge cleared the man of all charges a year later.
Punishment for Resisting Arrest?
If the Crown prosecutes this charge as an indictable offenceIndictable offences are more-serious criminal offences the maximum punishment cannot exceed two years, with less severe penalties given if the charge is treated as a summary convictionUsed for lesser offences.
OttawaLawyersNear Me
Brett McGarry Criminal Law
Murray Fakih Criminal Defence Professional Corporation
Kimberley A. Pegg Barristers
Mitchell R Rowe Barrister & Solicitor
Edelson Foord Law
Robins Naik LLP
Glossary of Legal Terms
Indictable offence
Indictable offences are the most serious offences under the Criminal Code and they come with more serious punishments, up to a maximum penalty of life in prison.
Summary conviction
Summary convictions are used for lesser offences with penalties, fines and short jail time. They reflect the majority of offences as defined in the Code.
