Although at the provincial court level, the principles discussed in this latest post have great merit. In R. v. Chanyi 2016 ABPC 7, Provincial Court Judge J.T. Henderson ruled that the accused cannot be convicted of obstruction of a peace officer in the execution of his duty contrary to s. 129(a) of the Criminal Code for refusing to produce vehicle documentation when being investigated for a minor accident, since such refusal is punishable under a provincial motor vehicle statute. Chanyi was charged with obstruction of a peace officer in the execution of his duty contrary to s. 129(a) of the Criminal Code, refusal to comply with a demand to provide a sample of his breath contrary to s. 254(5) of the Criminal Code, and with impaired driving contrary to s. 253(1)(a) of the Criminal Code.
Ms. Derhami was driving home from work in the City of Edmonton when she was involved in a minor motor vehicle collision which occurred when a white Ford F-150 truck struck her vehicle from behind. Ms. Derhami attempted to obtain the usual insurance information from the other driver and when she was not successful in getting this information, she called 911 to seek police assistance. An officer arrived at the scene of the collision and, after a brief conversation with Ms. Derhami, he approached the truck. The officer noted that there was only one person in the truck, a male who was in the driver’s seat (Chanyi). When he arrived at the truck, the officer noted that the ignition was on and the engine was running. The driver’s side window was partially up. The officer asked Chanyi to shut the engine off. No response was received. Instead, Chanyi simply continued to stare out the front windshield of the truck, without acknowledging the presence of police. The officer repeated his request 6 or 7 times before Chanyi finally shut off the engine, removed the keys from the ignition, and jammed the keys forcefully onto the seat beside him. When the truck was shut off, the officer asked Chanyi to provide his driver’s licence, registration and insurance. Chanyi did not comply with this request, but instead continued to look forward with his hands on the steering wheel. Chanyi then became angry, he was belligerent and began swearing. He then advised the officer that he would not provide the documents.
The officer called for backup to attend to assist in dealing with the driver. Shortly after placing the call, a second police vehicle arrived. The two officers then approached the truck and again asked Chanyi to provide his documentation. Chanyi was also warned at this time that if he did not provide the documents, he would be arrested for obstruction. Once again, Chanyi refused to produce the documentation. As a result, an officer opened the door of the truck and both officers pulled Chanyi from the truck. Once out of the truck, Chanyi became limp and the police officers eased him to the ground. During this process, Chanyi was not fighting with police and he was not resisting. When Chanyi was on the ground, an officer advised him that he was under arrest for obstruction. The officer then assisted Chanyi to his feet. During this process, the officer noticed that Chanyi was unsteady on his feet. The officer also noted that he had bloodshot eyes, had saliva on the side of his mouth, and noticed a smell of alcohol (liquor) when Chanyi spoke. While this was occurring, Chanyi continued to be belligerent. Based on the information he had accumulated to this point, the officer formed the opinion that the ability of Chanyi to operate a motor vehicle was impaired by alcohol and as a result, he arrested Chanyi for impaired driving. Before placing Chanyi in the back seat of the vehicle, a frisk search was conducted and the officer located Chanyi’s driver’s licence in his pocket. While this was taking place, Chanyi told the officer, “I’m not telling you nothing”.
The officer read the standard Charter rights. When asked if he understood those rights, Chanyi made a number of unresponsive statements including: “Do I understand that you are a sack of shit? Is that your question officer? Yes, I understand that you are a fucking sack of shit”. In response to the breath demand, Chanyi responded, “Please, can I breathe”, “Come on man, I am a fucking Canadian man, what is wrong with you”, “you fucking animals”, “of course, just get me the fuck out of this fucking car man”. After more of this behaviour back at the station, Chanyi refused to provide a sample of breath.
Fast forward, the Judge ruled that the officer did not have objectively reasonable grounds to demand a breath sample from the accused and therefore the s. 8 Charter rights of the accused were violated (I won’t get into that decision in this post). This post will discuss whether a charge of obstruction was available to the officer in this case? The officer was investigating a motor vehicle collision when he first encountered the accused. He was lawfully seeking information and documentation from the accused pursuant to s. 69(1) of the Traffic Safety Act, RSA 2000, c.T-6, as amended (the “TSA”), but had no grounds to believe that any Criminal Code offences had been committed. The accused had an obligation to identify himself to the officer and to provide the vehicle documents referred to in s. 69(1) of the TSA. Failing to do so constituted an offence under s. 157(1) of the TSA and made him subject to arrest under s. 169(2)(f) of the TSA and potentially liable to penalties under s. 7 of the Provincial Offences Procedure Act, RSA 2000, c. P-34.
The accused relied on the decision of the Supreme Court of Canada in R. v. Sharma,  1 S.C.R. 650. In Sharma, the accused was employed as a flower vendor in Toronto and was displaying his flowers for sale on a public street. A municipal By-law required that such merchants have a licence to carry on this type of business. The accused did not have the licence contemplated by the By-law. On discovering this, a police officer gave the accused a violation ticket and instructed him to pack up his goods and move on. The accused was told that he would be arrested for obstruction if he continued with the unauthorized sale of the flowers. When the police officer returned sometime later, the accused and his merchandise were still present. He was arrested and charged with obstruction. At trial he was convicted of the offence under the By-law and also of obstruction. Intermediate appeals were unsuccessful and the accused appealed to the Supreme Court of Canada. The Supreme Court unanimously concluded that the Municipal By-law was ultra vires and therefore ordered that the By-law conviction be set aside. Similarly, the Court concluded that an acquittal should be entered in relation to the obstruction because the acts constituting the obstruction were based on the interference with the police officers duty in relation to enforcing a By-law which was ultra vires.
Sharma was applied by the Ontario Court of Appeal in R. v. Hayes (2003), 65 O.R. (3d) 787. In Hayes, the accused was a motorcyclist who was stopped by a police officer at a stop check which had been set up to target members of a motorcycle club which was holding its summer gathering in the area. One of purposes of the stop was to ensure highway safety by checking for compliance with highway traffic legislation. Police asked the accused to remove his helmet for inspection. He refused to do so. The officer warned him that he would be charged with obstructing a peace officer if he did not comply. He persisted in his refusal, and was arrested and charged with obstruction. The Court in Hayes noted that the accused had an obligation under the Provincial highway traffic legislation to remove his helmet and turn it over to police for examination. The penalty for non-compliance was a $1,000 fine. Furthermore, the legislation provided an enforcement mechanism by which police could provide written notice for an inspection. The Court set aside the conviction for obstruction and entered an acquittal because the statutory obligation to submit the helmet for inspection addressed precisely the same misconduct that formed the basis of the charge of obstruction.
More recently, Justice Paciocco in R. v. Yussuf, 2014 ONCJ 143 considered the law as described in Sharma and in Hayes. In Yussuf, the accused was stopped by police for distracted driving — driving while talking on a cell phone. He refused to identify himself as was required by the Ontario Highway Traffic Act. As a result, he was arrested for obstruction. The Court noted that police could have fulfilled their duty by simply charging Mr. Yussuf with refusing to identify himself contrary to section 33(3) of the Highway Traffic Act, and then immediately arresting him without warrant under the authority of section 217(2) of that Act and after establishing his identity in that way, charge him with the initial offence. The ONCJ said that Mr. Yussuf’s refusal to identify himself was to be remedied by charging him and arresting him contrary to the Highway Traffic Act, not the Criminal Code.
The Crown cited the decision of the Ontario Court of Appeal in R. v. Waugh, 2010 ONCA 100 in support of its position that an obstruction charge was appropriate and available to the officer. However, Waugh discussed the appropriateness of an obstruction charge where the interfering conduct of the accused person goes beyond “precisely the same conduct” that is prohibited or mandated by the Provincial legislation or the By-law.
In the end, Judge Henderson in Chanyi concluded that the decision of the Supreme Court of Canada in Sharma, and the authorities which interpret Sharma, make it clear that when police are exercising their duty pursuant to Provincial legislation or a By-law and where that legislation provides for a means of enforcement, then a suspect who simply refuses to comply with police demands that he do what the legislation provides, cannot be properly subject to an obstruction charge pursuant to s. 129(a) of the Criminal Code. Instead of invoking a criminal sanction, police are restricted to pursuing the means of enforcement specified in the Provincial legislation or the By-law. However, if in their attempts to pursue the specified means of enforcement, police are interfered with by the actions of the suspect, then an obstruction charge is appropriate provided that the conduct complained of is not “precisely the same conduct” as that prohibited or required by the legislation. The Judge decided that in these circumstances, police did not have the authority to proceed with the Criminal Code charge of obstruction contrary to s. 129(a). Instead police were restricted to the enforcement provisions of the TSA which included arrest under s. 169 of the TSA and a violation ticket for non-compliance with the obligation to produce the required documentation.
As officers, we have to know our regulatory legislation thoroughly, as well as the Criminal Code, and that is not a simple task. Similar provisions exist in other provinces in these types of situations (e.g. ss. 232 and 248 of the HTA, PE; ss. 97 and 261 of the MVA, NS; ss. 127 MVA, NB, and 119 POPA, etc., to name but a few).