If you are facing resisting arrest charges, you need a criminal defence lawyer in Toronto to look at your case as soon as possible.
Resisting arrest is 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. This could include if you try to avoid being arrested by running away, hiding, or fighting the police.
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.
In order to be found guilty of resisting arrest in Canada, the Crown Prosecutor is required to prove beyond a reasonable doubt each of the following elements:
- You resisted a peace or public officer who was attempting to arrest you;
- The arrest was lawful;
- You knew they were an officer engaged in a lawful duty; and
- The resistance was wilful.
Strategic Criminal Defence is a top Google-rated criminal defence firm in Toronto, with over 500 5-star reviews. Our firm, and our experienced legal team, have defended clients in over 10,000 criminal cases. Leveraging our extensive network of lawyers and decades of experience, we craft defence strategies to help those accused of resisting arrest beat the charge.
The lawyers at Strategic Criminal Defence are both highly experienced and dedicated to defending your rights and future in the face of these charges. Contact a Toronto Resisting Arrest lawyer today by calling (647) 986-8077.
Key Takeaways
- To resist arrest, you have to actively fight back, not just passively refuse to cooperate.
- Peace officers include police, RCMP, customs officers, mayors, pilots, bailiffs, and many other officials.
- The Crown has to show that the arrest was legal, that you knew they were an officer, and that you were willfully resisting.
- Jail time is unlikely for most cases, but it goes up if there was a lot of force, a criminal organization was involved, or the person had already been convicted.
- The worst punishments are up to 2 years in jail, 3 years of probation, fines, and bans on guns for up to 10 years.
- If you are found guilty, you will have a permanent criminal record that will affect your ability to get a job, move to a new country, and travel.
How can a Resisting Arrest lawyer in Toronto help?
As we start preparing your defence by examining police actions and the evidence against you, there are certain defence strategies that can be used to aid your cause.
Some of these include:
- Assembling documents, photographs, texts, etc. that contradict the allegation and support your defence;
- Gathering evidence from witnesses that support your version of events;
- Identifying mistakes in the actions of the police, such as Charter breaches.;
- Uncovering administrative/systemic errors, such as “Jordan delay,” non-disclosure, lost or destroyed evidence, etc.; and
- Finding weaknesses or “holes” in the Crown’s case that may make it difficult or impossible for them to establish the elements of the offence.
Resisting Arrest in the Criminal Code of Canada
According to section 129 of the Criminal Code of Canada:
Offences relating to public or peace officer
129 Every one who
(a) 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,
(b) 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
(c) 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,
Examples of Resisting Arrest Offences
In Toronto, here are some actions that could lead to resisting arrest charges:
- Running away when a police officer attempts to arrest you during a traffic stop
- Physically struggling or fighting with officers who are trying to handcuff you
- Hiding from police when they have a warrant for your arrest
- Pulling away or tensing up when an officer tries to detain you during an investigation
Depending on how an incident unfolds, police may also lay related charges such as failing to stop for police or, where force is alleged, assaulting a peace officer.
Consequences of a Resisting Arrest Offence
The likelihood of going to jail for a charge of resisting arrest is low.
However, the risk of jail time increases dramatically where:
- The resisting was a significant use of force;
- The resisting was done for the benefit of a criminal organization; or
- You have prior convictions.
The potential penalties can range anywhere from a discharge (i.e. a finding of guilt, but no criminal conviction), to a fine and/or probation, to a period of jail time.
For an overview of how sentences are determined and what factors courts consider, learn more about criminal sentencing in Toronto.
For a standard resisting arrest conviction, you can expect:
- Up to two years in jail;
- Up to three years of probation;
- A fine of several thousand dollars; and
- A ban from owning or possessing any weapons or firearms for up to 10 years.
The potential sentences available to you will depend on a variety of factors, including the type and degree of resistance, your criminal history, and other applicable personal factors.
In addition to the immediate penalties resulting from a conviction for resisting arrest, it can have wide-ranging negative consequences on your future. You may have trouble finding employment, especially in roles that require working with children, the elderly, or other vulnerable sectors of society. The lifelong criminal record that results from a conviction can also cause problems with immigration and travel.
Therefore, even if you intend on accepting responsibility for this type of offence, it is worthwhile to explore your options and consider all the potential penalties. Often, good representation can result in no criminal record. A community-based sentence, such as a conditional sentence order (house arrest), may be obtained even where the Crown is seeking jail time.
Resisting Arrest Offence Defences
In resisting arrest cases, the defences that may be available to you depend on the facts of your case.
In general, the best defences are:
- Factual Innocence: This is usually the strongest defence because the facts and the evidence do not support you being there, resisting arrest, or other basic elements of the offence. This could include:
- No mental intent: A common defence available in resisting arrest cases is that you did not intend to resist the officer. A basic example would be if you unintentionally pulled away from the officer when they moved to arrest you.
- “Mistake of Fact”: A conviction for resisting arrest must rest on the fact that you knew it was a peace or public officer that you were resisting. If the complainant was not in uniform or did not identify themselves as an officer, the requisite knowledge would be absent. For example, you could not be convicted of resisting arrest if you resisted the actions of an undercover officer who did not identify themselves.
- Identity: In some circumstances where the offence was not recorded by surveillance footage, or the footage is poor quality, you may be able to raise an identity defence. For example, authorities could have made a mistake in identifying you as the perpetrator based on the poor quality of the footage. In order to effectively raise this defence, you may need corroborative evidence, such as an alibi to where you were at the time of the offence.
- Violation of constitutional rights: The Canadian Charter of Rights and Freedoms sets out your rights before and after your arrest. If the police fail to abide by these rights, it could aid in your defence.
- “Unlawful Arrest”: This defence may arise if an arrest is made unlawfully. If an officer is overstepping their authority or unreasonably acting beyond their scope of duty by making an unlawful or unreasonable arrest, you are not legally required to comply. For example, if an officer does not advise you of the reason for making an arrest, it is an unlawful arrest, and you would not be convicted for being uncooperative.
The Crown is required to prove that you not only resisted an officer engaged in a lawful arrest, but that you intended to resist them. While the Crown must prove beyond a reasonable doubt that you committed the offence, you may bear some responsibility in raising certain defences at trial.
The availability and strength of any defence depend entirely on the specific facts of your case.
Our lawyers have significant experience assessing the availability and strengths of various potential defences in resisting arrest cases, as well as presenting any and all available defences to the Court at trial. Even if you believe that you will be found guilty, it is important that you obtain a legal opinion about defences that may be available to you.
Resisting Arrest Charge Investigation
An investigation of an alleged resisting arrest charge in Toronto is typically initiated by the peace officer alleged to have been resisted. Because peace officers and public officers are often vested with powers authorizing arrest, a charge can flow directly from the alleged resisting and may rely solely on the statement of the officer.
Resisting arrest relates to the impeding of an officer performing a lawful duty, therefore police typically take such matters seriously and will investigate the incident fully. This may include interviewing all witnesses, reviewing any video surveillance, seizing any evidence involved, photographing the scene, and obtaining medical records, if relevant.
After the police have gathered their evidence, they will arrest you if they believe you are the perpetrator. If you are not present at the scene, police will track you down or issue a warrant for your arrest.
After you have been charged, police will provide a package with all the evidence they collected, known as the “disclosure package,” to the Crown Prosecutor. You will have the right to access this disclosure package to see the evidence against you. Once you retain one of our lawyers, we will assist you in obtaining the disclosure package, and we will review it with you to assess the strengths and weaknesses of the Crown’s case, as well as any legal defences that may be available to you.
Bail Conditions for Resisting Arrest Charges
If you are arrested for resisting arrest, you will likely be let go on bail until your court date. However, you will have to follow conditions until your case is over during this release.
- The court will often tell you to “keep the peace and be of good behaviour.” This means that you shouldn’t break any new laws. You will also need to be on time for all of your court dates.
- You might not be able to go back to a public place or business if you resisted arrested there.
- If your resistance was very violent or if you’ve been charged with similar crimes before, you may have to follow stricter rules.
- You might have had to follow a curfew, check in with a bail supervisor on a regular basis, or not be able to drink or do drugs.
- You likely won’t be able to own any weapons if you used or threatened to use them during the arrest.
You could get new charges and lose your bail if you break any of the conditions of your release.
