Resisting arrest in Canada is a serious offence with significant legal and personal implications. Understanding the roles of public and peace officers, the legal consequences of resisting arrest, the nuances of unlawful arrests, and the appropriate actions to take during such encounters is crucial.
Under Section 129 of the Criminal Code of Canada, resisting or willfully obstructing a public officer or peace officer in the lawful execution of their duties is a criminal offence. This charge may be prosecuted as either an indictable offence or a summary conviction offence, depending on the circumstances.
Potential Penalties of Resisting Arrest
• Indictable Offence: Up to two years in prison.
• Summary Conviction: A fine of up to $5,000, imprisonment of up to two years less a day, or both.
The determination of whether an offence is prosecuted as indictable or by summary conviction depends on factors such as the severity of resistance, the use and extent of force, and the accused’s prior criminal history.
Who Are Peace Officers and Public Officers in Canada?
The terms peace officers and public officers in Canada encompass a wide range of individuals authorized to maintain public peace and enforce laws. These include:
· Police officers
· Bailiffs
· Constables
· Sheriffs
· Members of the Correctional Service of Canada designated as peace officers
· The pilot in command of an aircraft registered in Canada while the aircraft is in flight
· Officers of customs or excise
· Canadian Forces officers
· Royal Canadian Mounted Police (RCMP) officers
These individuals are vested with the authority to enforce laws, maintain public safety, and carry out arrests when necessary.
Unlawful Arrests
An arrest is deemed unlawful if it lacks reasonable grounds or if law enforcement officers fail to adhere to proper procedures. For instance, an arrest may be considered unlawful if:
· Officers fail to identify themselves
· Officers do not state that the person is under arrest
· Officers use excessive force beyond what is necessary for the arrest.
However, it is important to understand that resisting arrest carries risks. If the arrest is later deemed lawful, resistance itself could lead to criminal charges. While the law provides avenues to challenge unlawful arrests, these avenues should be pursued through legal channels rather than physical resistance at the moment.
What to Do If You Believe You Are Being Unlawfully Arrested
If you suspect that your arrest is unlawful, it is crucial to approach the situation cautiously:
• Remain Calm and Compliant – Even if you believe the arrest is unlawful, resisting can lead to additional charges and escalate the situation.
• Document the Encounter – Take note of badge numbers, patrol car numbers, and any other relevant details during or immediately after the arrest. If possible, try to obtain video or audio recordings of the encounter.
• Seek Legal Counsel Immediately – Contact an experienced criminal defence lawyer as soon as possible. A legal professional can assess the situation, determine whether the arrest was lawful, and advise on the best course of action.
Do You Need Legal Help?
Resisting arrest in Canada carries serious legal and non-legal consequences that can significantly impact an individual’s personal and professional life. Understanding the roles and authority of public and peace officers, recognizing what constitutes an unlawful arrest, and knowing the appropriate steps to take are essential for protecting one’s rights.
If faced with an arrest—whether lawful or unlawful—seeking immediate legal counsel is crucial to navigating the legal system effectively. At Collett Read LLP, our highly experienced criminal defence team has a proven track record of successfully defending clients facing complex legal challenges. We provide strategic, results-driven representation to protect your rights, challenge any unlawful actions, and work toward the best possible outcome for your case.
Give us a call at (905) 541-2228 or fill out a consultation form to get in contact today.
