Obstruction of Justice & Obstruction of a Peace Officer in Ontario

Confusion often arises between the crimes of “obstruction of justice” and “obstruction of a police officer”, both of which are offences under the Criminal Code of Canada.

“Obstructing justice” is governed by Section 139 of the Criminal Code, which defines the offence as wilfully attempting “in any manner to obstruct, pervert or defeat the course of justice in a judicial proceeding”.

This is very different from “Obstruction of a Peace Officer”, a separate offence dealt with under Section 129 of the Criminal Code, as we shall see below.

Let’s consider these two separate criminal offences in more detail.

Obstruction of justice charges are primarily filed against individuals who act dishonestly in their dealings with law enforcement at any stage of an investigation or prosecution, especially when it influences a judicial proceeding. In the UK, the offence is often termed “perverting the course of justice”.

“Obstruction” in this sense generally means making it more difficult for the police to carry out their duties.

Importantly, for a conviction to result, the attempt to obstruct justice must be wilful and result in at least a risk that, without any further action, an injustice will result. The attempt to obstruct justice does not need to be successful for charges to be filed.

Deliberately giving a false statement to police or knowingly providing false evidence could be considered obstruction of justice, as could bribing or threatening witnesses to give incorrect evidence, bribing or threatening jurors or preventing witnesses from speaking by threat or coercion.

Penalties for obstruction of justice in Ontario

Like many criminal offences in Canada, obstructing justice is a hybrid offence that can be prosecuted either by indictment or summary election, depending on how serious the offence is deemed. The context is very important in such cases.

The maximum penalty for a summary conviction offence is two years less a day of imprisonment and/or a $5,000 fine. The maximum penalty for an indictment is a prison term of up to 10 years.

Most obstruction of justice offences are prosecuted by indictment but those involving paying/indemnifying a surety or accepting payment/indemnification as a surety are prosecuted by summary conviction in Ontario.

Resisting or intentionally obstructing a police officer in the lawful execution of his duty is generally considered a less serious offence than obstructing justice.

Obstructing a peace officer refers to anyone who “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”.

The offence also covers omitting, without reasonable excuse, to assist a public officer or peace officer in the execution of his duty, and resisting or wilfully obstructing any person in the lawful execution of a process against lands or goods or in making a lawful distress or seizure.

Obstruction of a Peace Officer is often prosecuted summarily, resulting in up to two years less a day of imprisonment. However, more serious cases can be prosecuted by indictment.

Again, the context of cases is very important when prosecuting and sentencing. In many cases, with legal representation, a person may avoid jail time but may still face a criminal record, probation, and/or a fine.

Although they are separate offences, the defences for obstructing justice and obstruction of a peace officer may overlap.

The precise defence used will depend on the specific facts of the case, which is why it is essential to sit down with a criminal defence lawyer as soon as possible after being charged. However, we commonly employ one of the following arguments to defend clients accused of these charges…

• Factual innocence: a conviction can only result if the Crown prosecution can prove the essential elements of the charge beyond a reasonable doubt. This varies with the charge type but may include the identity of the offender, the date/time of the incident/jurisdiction, and proof that the accused wilfully attempted in any manner to obstruct, pervert or defeat the course of justice.
• Duress: if someone commits an offence under compulsion by threats of death or bodily harm, this may be a valid defence if it can be shown that the threat and crime were closely connected in time and the accused had no safe avenue of escape.
• Necessity: the defence of necessity may apply if the accused is in a situation of imminent peril or danger, had no reasonable legal alternative to breaking the law, and the harm inflicted by the accused was proportional to the harm avoided by the accused.
• Violation of Charter Rights: as with most criminal offences in Canada, if law enforcement made mistakes with the investigation, arrest or charging process, evidence may be deemed inadmissible and the case dismissed due to Charter Rights violations.

If an individual is under a legal obligation to provide identification, giving a false name or failing to provide identification may be considered obstruction of a police officer. A good example might be if a driver is stopped on suspicion of speeding or impaired driving.

If, however, a police officer demands identification without the legal authority to make that request, it may be argued that the officer was not acting “in the lawful execution of their duty” as required by section 129 of the Criminal Code. In such cases, it would not amount to obstruction of a peace officer, and charges would be unlikely to follow.

In some obstruction cases in Ontario, it may be possible to resolve the charge(s) without going to trial or pleading guilty. This is another reason why it is essential to go over the facts of the case with a qualified criminal defence lawyer before deciding on a defence strategy.

Depending on the circumstances and your criminal record, your defence lawyer can push for the following types of alternative outcomes:

• Withdrawal of charge(s): the Crown may decide to withdraw charges if there is no reasonable prospect of conviction at trial or it is not in the public interest to prosecute.
• Stay of proceedings: this is where legal proceedings are paused, either by a judicial stay (which permanently ends a prosecution) or a Crown stay (which is temporary).
• Diversion: this provides offenders with an opportunity to take responsibility for their actions without incurring a criminal record (usually only available for minor offences and first-time offenders). This alternative outcome often requires offenders to apologize for their actions, make a charitable donation, perform community service, undergo counselling, and/or pay restitution or compensation.

Offenders with experienced legal representation usually have a better chance of qualifying for an alternative measures program in criminal cases.

To understand your legal options if you have been charged with obstruction of justice or obstructing a peace officer in Ontario, speak to a criminal defence lawyer in Ottawa during a free consultation.