Monday, December 5, 2016

Resist Arrest

No one likes to be arrested.  Sometimes people use strong language in response to being arrested.  Some people are very rude on being arrested.  While imprudent (you should always be polite when dealing with the police) such conduct is not criminal in itself.  Remember, even if you are really upset at being arrested the police are just doing their job and they deserve respect and not insults!  But again, being rude is not criminal.

What is criminal is resisting arrest.  The Criminal Code provides:

129. Every one who

(a) resists or wilfully 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

(d) an indictable offence and is liable to imprisonment for a term not exceeding two years, or

(e) an offence punishable on summary conviction.


Put in a nutshell, "resistance" involves applying force to a police officer, or doing something which requires force or energy which prevents or interferes with the officer's arrest.  Mere non-cooperation does not amount to the offence.  

For example, in a case from the 1970s a man was arrested but refused to accompany the police. As a result, the police lifted the accused up under each arm and carried him to the police truck. The accused did not exert any direct physical force on the police; despite that he was charged with resist arrest.  The trial judge stated:

[T]he word resist is more properly descriptive of acts of opposition to the efforts of the officer demonstrated by direct activity of a physical sort on the part of the accused. He must be shown to have employed some degree of force. In other words, 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. His conduct, without such positive resistance, may very well amount to obstruction of the officer, but it does not, in my opinion, amount to resistance under the section.

The offence of resisting a peace officer requires more than being uncooperative: it requires active physical resistance. 

Does this mean that on being arrested it makes sense to go limp and force the police to carry you to jail? 


Even if non-cooperation does not amount to a criminal act it makes sense to cooperate with the police regardless of whether you are, or are not, guilty.  If you are innocent, then cooperation is proper and appropriate and if you are guilty being difficult just makes things worse.  Note, however, that cooperation does not mean you should answer questions from the police until you have spoken to a lawyer and received some advice over what you should or more likely should not say.  

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