Category Archives: Obstruction

Whereas an investigative detention “does not impose an obligation on the detained individual to answer questions posed by the police”, the accused has a duty to provide his or her name to the police where the arrest is valid and the accused knows that he or she is under arrest

R. v. Pauli 2014 SKQB 246 – two members of the Saskatoon Police Service attended the appellant’s residence in response to an emergency 9-1-1 call. The 9-1-1 call was placed by the appellant’s daughter. The information relayed by the appellant’s daughter to 9-1-1 was that her father had strangled her mother and pushed her mother into the bathtub. Officers were dispatched to the scene. Upon gathering information at the home from the appellant’s wife and considering the 9-1-1 call, the officers formulated reasonable grounds to arrest Mr. Pauli for assault. The female officer attempted to handcuff the appellant, but he resisted. This triggered a scuffle that ultimately involved both officers, the appellant, his wife, and the family cat. The appellant was eventually handcuffed and taken outside the home. The appellant remained uncooperative and refused to provide his name to the officers. The female officer attempted to read the appellant his Charter warnings, but the appellant would not respond as to whether or not he understood his rights. The appellant was subsequently taken to the police station, where he continued to refuse to identify himself. The appellant was eventually identified at the station by another police officer.

At trial, the appellant faced three charges. He was charged with assault, contrary to s. 266 of the Criminal Code; assaulting a peace officer contrary to s. 270(1)(b) of the Criminal Code; and, wilful obstruction of a peace officer contrary to s. 129(a) of the Criminal Code. The Crown elected to proceed summarily on all three charges. At trial, the Crown did not proceed with the charge of assault in relation to Count 1. On Count 2, the trial judge found the appellant not guilty of assaulting a peace officer, but guilty of the included offence of obstruction under s. 129(a). This conviction related to the appellant’s resistance when the female officer attempted to arrest him. The trial judge also convicted the accused on the charge of obstruction on Count 3. This conviction related to the appellant’s refusal to provide his name to the police upon his arrest. Accordingly, the appellant was convicted of two counts of obstruction.

The appellant’s appeal to the SKQB related to his conviction for wilful obstruction for failing to provide his name or personal information upon arrest. The appellant’s ground of appeal, as set out in his memorandum of argument, was that the trial judge erred in concluding that the appellant had an obligation to identify himself to police such that his refusal to do so constituted obstruction contrary to s. 129(a) of the Criminal Code.

Since Rice v. Connolly, [1966] 2 All E.R. 649 (Q.B.), the law appears settled that in general, absent a law to the contrary, citizens are not obligated to provide information, even their name, to the police.  In that case, Lord Parker, C.J. noted at p. 651:

“Wilful” in this context in my judgment means not only “intentional” but also connotes something which is done without lawful excuse … Accordingly, the sole question here is whether the appellant had a lawful excuse for refusing to answer the questions put to him. In my judgment he had. It seems to me quite clear that though every citizen has a moral duty or, if you like, a social duty to assist the police, there is no legal duty to that effect, and indeed the whole basis of the common law is that right of the individual to refuse to answer questions put to him by persons in authority, and a refusal to accompany those in authority to any particular place, short, of course, of arrest.

 In R. v. Bonnycastle, [1969] 4 C.C.C. 198, 68 W.W.R. 407 (B.C.C.A.) at para. 5, McFarlane J.A. stated:

The duty of a peace officer to make enquiries must not be confused with the right of a person to refuse to answer questions in circumstances where the law does not require him to answer.

More recently, the British Columbia Court of Appeal confirmed that generally, a person cannot be convicted of obstruction by refusing to provide their identification. In R. v. Greaves, 2004 BCCA 484, 189 C.C.C. (3d) 305, at para. 49, Lowry J.A. noted:

Generally, a person cannot then be convicted of obstructing a police officer in the execution of duty for simply refusing to say or establish who he or she is when asked to do so: Rice v. Connolly, [1966] 2 All E.R. 649 (Q.B.); and R. v. Guthrie (1982), 21 Alta. L.R. (2d) 1, 69 C.C.C. (2d) 216 (C.A.). The law in this respect is no different after Mann. Iacobucci J. noted that “[a]bsent a law to the contrary, individuals are free to do as they please” ([paragraph] 15). He further stated that recognition of a police power to conduct investigative detentions “does not impose an obligation on the detained individual to answer questions posed by the police” ([paragraph] 45).

Although a pre-Charter decision of the Supreme Court of Canada, many of you have probably read or heard of R. v. Moore, [1979] 1 S.C.R. 195, 43 C.C.C. (2d) 83 in which the SCC considered a similar question as to this case before the SKQB. The accused in Moore drove his bicycle through a red light, but was caught in the act by a police officer. The officer stopped the accused and asked for his identification, with the intention of writing him a traffic citation. The accused refused to give his name and address and was charged with obstruction. The Supreme Court of Canada, in Moore, concluded that the accused was not subject to a statutory obligation to provide his identity to the police as provincial traffic laws requiring motorists to provide such identification did not apply to the accused, as he was riding a bicycle.

However, Spence J., for the majority in Moore, noted that the accused had committed the offence in plain sight of the police officer. Justice Spence stated that the police officer, in asking the accused for his name, was “carrying out the duty of enforcing the law of the province in this summary conviction matter by attempting to identify the accused person so that he might proceed to lay an information or… a ticket.” Spence J. held:

I am of the opinion that the Court of Appeal of British Columbia was correct in finding that when the appellant Moore refused to accede to the constable’s request for his identification he was obstructing that constable in the performance of his duties. As did the members of the Court of Appeal, I am confining my consideration of this matter to the actual circumstances which occurred, that is, that a constable on duty observed the appellant in the act of committing an infraction of the statute and that that constable had no power to arrest the accused for such offence unless and until he had attempted to identify the accused so that he might be the subject of summary conviction proceedings.

In Moore, supra, the Supreme Court found that the accused’s failure to identify himself constituted obstruction.  A similar situation was addressed in R. v. Hudson (1990), 83 Sask.R. 177, [1990] S.J. No. 205 (QL) (Q.B.) (aff’d. (1990), 87 Sask.R. 288, [1990] S.J. No. 476 (QL) (C.A.)). In Hudson, a Saskatoon City Police special constable observed the accused violate a city bylaw by allowing his dog to run loose on public property. The constable identified himself and asked the accused to provide his name and address. The accused refused, on the basis that the officer would write him a citation if he acceded to the demand. The accused was charged with obstruction, and was convicted at trial. On summary appeal to the Court of Queen’s Bench, Baynton J. held that an obligation to disclose his identity had been imposed on the accused by Moore, supra, and that Moore remained good law in the Canadian Charter of Rights and Freedoms era. On appeal to the Saskatchewan Court of Appeal, the Court of Appeal upheld the decision on different grounds, explicitly declining to consider the Moore issue.

The appellant in Pauli asserted that an arresting officer must actually see an accused commit a crime before that accused is obliged to reveal his or her identity. In other words, an accused who is arrested on the basis of reasonable grounds, but who is not directly observed by police to commit an offence, has no obligation to disclose his or her identity.  The Honourable Madam Justice C.L. Dawson said:

I am of the view there is no distinction between whether an officer bases an arrest on his/her actual observation of the accused committing an offence, or on reasonable and probable grounds to believe that the accused has committed an offence. In either circumstance, the officer is empowered to make an arrest. Correspondingly, in both situations, the accused has a duty to provide his or her name to the police, where the arrest is otherwise valid and the accused knows that he or she is under arrest.

In the case at bar, Cst. Krowchenko arrested the appellant for assault. The appellant knew why he was being arrested. The arrest was lawful, and was based on reasonable and probable grounds. Once arrested, the appellant had an obligation to reveal his identity. The case law has established an obligation on the part of an accused to disclose his or her identity, upon lawful arrest. To require otherwise is to unnecessarily impede the police in the course of their duties.

The trial judge committed no error when he found the appellant guilty of obstruction by refusing to provide his name after the appellant had been legally arrested.

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