When Do You Have The Right To Resist An Arrest?

August 20, 2021

When Do You Have The Right To Resist An Arrest?

The Canadian Law acknowledges that citizens have the right to resist arrest if the arrest itself is unlawful. However, it is a “do so at your own risk” situation since officers generally don’t arrest an individual without reasonable grounds.

Before we move on to the conditions under which you have the right to resist arrest, it is imperative to understand what resisting arrest means. According to Canadian law,

The act of physically resisting the attempts of a peace officer to detain or arrest you. This offence requires more than mere passive uncooperative behaviour, it requires active physical resistance.

Canadian Criminal Code

The Canadian Criminal Code under section 34 allows individuals to commit an offence “for the purpose of defending or protecting themselves” or another person from threats of force. However, the amount of force used should be proportionate to the nature of the threat. In addition to this, individuals are restricted from claiming self-defence against law enforcement, unless the law enforcement officer is acting “unlawfully.”

Section 34 of the Canadian Criminal Code states:

A person is not guilty of an offence if:

  1. they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
  2. the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
  3. the act committed is reasonable in the circumstances.

Section 129 of the Criminal Code of Canada states the offence of resisting arrest as follows:

Anyone who is guilty of:

  1. 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,
  2. omits, without reasonable excuse, to assist a public officer or peace officer in the execution of his duty in arresting a person or in preserving the peace, after having reasonable notice that he is required to do so, or
  3. resists or wilfully obstructs any person in the lawful execution of a process against lands or goods or in making a lawful distress or seizure,
  4. an indictable offence and is liable to imprisonment for a term not exceeding two years, or
  5. an offence punishable on summary conviction.

For clarification, in the Criminal Code, peace officers and public officers are widely defined, and include:

  • Toronto police officers
  • RCMP
  • Canadian Forces officers
  • Customs officers
  • Mayors
  • Pilots
  • Bailiffs
  • Wardens, and more.

When Can Someone Resist An Arrest?

It is upon the prosecution to decide whether the officer was in the execution of their duties when the arrest was made or not. If the individual being arrested is on trial for resisting his/her arrest the officer has to prove an arrest was required and justified, even if they were acting in the course of their duties.

In previous cases, courts have established that an officer may make an arrest as long as they are satisfied a person has or is about to commit an offence. This is justified even if it is proven that there was no offence.

In a case trial conducted in 1975, a judge, while dealing with a similar situation, said, “Our law has not, as I understand it, deprived a citizen of his right to resist an unlawful arrest. His resistance may be at his own risk if the arrest proves to be lawful, but so too must the police officer accept the risk of having effected a lawful arrest. Of course, even if the resisted arrest is unlawful, the person resisting may still become culpable if he uses excessive force.”

Similarly, in a 2009 case, a man was charged with assaulting two police officers after one of the officers laid a hand on his shoulder. The judge said,

“According, (the accused) was entitled to resist the unlawful assault by the officer, as long as he did not provoke the assault, and as long as the force he used was not intended to cause death or grievous bodily harm to the officer, and was no more than was necessary to enable him to defend himself.”

Verdict

Hence, even if you think an arrest is unlawful you will most likely be arrested at the time, despite being right. It is better to not risk resisting an arrest. If you are not guilty, it will be proven so in the courts.

However, if you have already resisted a trial, it is better to hire a criminal lawyer.

About Slaferek Callihoo

Slaferek Callihoo lawyers are highly proficient at strategizing effective cases and have ample experience in dealing with criminal offences. Our experts create strategies that can lead to case dismissal, reduced charges, reduced penalties, and more. To get in touch with us today, click here.

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