Resisting Arrest Lawyers in Victoria

What is Resisting Arrest?

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.

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

In the Code, peace officers and public officers are widely defined, and include:

• City 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.

The word “resists” has been found to require more than just passive resistance, usually requiring some degree of force opposing the actions of the officer. For example, simply refusing to stand up or walk to the police car may be insufficient.

The word “duty” is equally wide in the case law, but must be a lawful duty, and typically involves an officer making an arrest. For example, it would not be resisting if an officer had no reasonable grounds to make an arrest.

Another common variation of this offence is Obstructing a Peace Officer or, if the resistance included an assault, Assaulting a Peace Officer.

Investigation of Resisting Arrest Charges in Victoria

An investigation of a resisting arrest allegation in Victoria 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, 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 Process and Conditions for Resisting Arrest Charges in Victoria

How do I get myself or a loved one out on bail for resisting arrest charges in Victoria?

If you have been charged with resisting arrest, it is not uncommon for police to release you at the scene on a release order. Police will provide you with a Promise to Appear document outlining your charges, and any required appearances you must make. This document may also include conditions that you are required to follow while on release.

However, a formal bail hearing may be required to secure your release, particularly if you have a criminal record, or if the allegations are more serious.

The bail hearing must be held within 24 hours, a period that starts from the moment of arrest or detention rather than the time when you are brought to the district office or Courthouse.

On a weekday, you will be transferred from the district office to the Victoria Courthouse for your bail hearing.

The address of the Courthouse is as follows:

Victoria Courthouse
850 Burdett Ave
Victoria, BC V8W 1B4
(250) 356-1478

If you are arrested after approximately 3 p.m., you will be held at the detachment until the following morning, at which time you will be transported to the Courthouse for your bail hearing. Your hearing will be conducted in front of a Provincial Court Judge.

If you are arrested on Friday after approximately 3 p.m., or if you are arrested on a weekend, your bail hearing will be conducted at the detachment via telephone with a Justice of the Peace from the Justice Centre.

Loved ones are not able to contact you while you are detained. The police will not release any information to friends or family due to privacy laws. Your lawyer is the only person allowed to contact you. Once the police have verified your lawyer’s details, they will pass on information about your whereabouts, if requested.

Because of these difficulties while you are held in custody, it is best to appoint a competent defence lawyer as soon as possible to manage the legal processes and communicate with loved ones. After an arrest, the police must provide you with the opportunity to call a lawyer in private and, if that happens, stop questioning you.

Once you retain one of our experienced criminal defence lawyers, we will begin working to secure your release on bail.

We will immediately do the following:

1. Call the district office where you are being held, or the Victoria Courthouse if you have been transported, and speak to you.
2. Contact the Prosecutor assigned to the bail hearing to start negotiating your release.
3. Order and secure a copy of the police information package that details the allegations against you in advance of the bail hearing. This allows the lawyer to make meaningful representations to the court about why you should be released on bail.
4. Conduct either an in-person or teleconference bail hearing to secure your release.

When you attend your bail hearing, the Judge will consider the following factors:

• Is detention necessary to secure your attendance in court?
• Is detention necessary to protect the public from a substantial risk of re-offence?
• Is detention necessary in all the circumstances to maintain confidence in the administration of justice?

Although it is unlikely that you will be denied bail for this type of charge, tight restrictions may nevertheless be applied to your release. Rest assured, we will work to not only secure your release but also to ensure the least restrictive set of bail conditions (including the minimum cash deposit).

In order for our lawyers to secure less stringent conditions, the Judge will need to be satisfied that you will attend court as required and that you pose no significant risk of harm to the public.

Our lawyers are often successful at persuading the Crown Prosecutor in charge of bail to let our clients out. If we can’t convince the Prosecutor, we can conduct a formal bail hearing and work to convince the Court. Even if you are ultimately detained, we can appeal that decision on very short notice through a bail review, which is conducted at the Supreme Court of British Columbia.

Where can I pay for bail for resisting arrest charges in Victoria?

If you or a loved one are charged with resisting arrest in Victoria and granted bail, you may be required to provide a cash deposit to secure release. You can pay bail at any court registry (courthouse) in British Columbia. If you live in Vancouver, you can pay bail there for someone detained in Victoria.

The Victoria court registry is open from 8:30 – 4:30, Monday to Friday.

The contact details of the registry office at the Victoria Courthouse are as follows:

Victoria Courthouse
850 Burdett Ave
Victoria, BC V8W 1B4
(250) 356-1478

To pay your own bail, you can make a payment after your hearing, assuming you have sufficient funds with you to do so.

How do I change my release conditions for resisting arrest charges in Victoria?

Release on bail with resisting arrest charges may include restrictions that impact your day-to-day life.

This could include conditions to refrain from:

• Staying out beyond a certain time (i.e. curfew),
• Breaking any laws,
• Using drugs or alcohol,
• Possessing weapons,
• Leaving your house (i.e. house arrest),
• Visiting certain places, and/or
• Travelling.

The Judge may also impose some additional conditions such as:

• Residing where approved,
• Reporting to probation,
• Attending counselling, and/or
• Maintaining or seeking employment.

A variety of factors will be considered when determining your precise restrictions, including:

• Your criminal history,
• Your physical and mental condition,
• The nature of the alleged resistance,
• The likelihood that you will flee,
• Your history of drug/alcohol usage,
• Whether you have stable employment,
• Whether you have stable living arrangements, and
• Whether you have ties to the community.

If you have already been released, at least for the short term, it is critical that you make arrangements to abide by your conditions until they can be changed. Breaching the terms of your release can result in further charges or a revocation of your bail, as well as a forfeiture of any cash paid to secure your release. It is important to take these conditions seriously.

Once the matter is in court, we can work with the Crown Prosecutor to alter your conditions. This includes either adding exceptions to some of the conditions or eliminating them altogether.

If your court date is far away and you cannot wait until then, we can arrange to have the matter dealt with sooner. Our first priority is always to stabilize your release conditions. That way, you will not feel pressured to plead guilty because of the restrictive terms of your release. Once the conditions are manageable and minimally intrusive to your daily routine, we can focus 100% of our attention on defending the case.

Penalties for Resisting Arrest Charges in Victoria

In resisting arrest cases, the likelihood of going to jail if convicted is relatively low.

However, the risk of jail time increases dramatically where:

• The resisting incorporated 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 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. Furthermore, a community-based sentence may be obtained even where the Crown is seeking jail time.

Rest assured, our lawyers will work hard to defend you so that you are not saddled with the consequences that stem from a resisting arrest conviction. In fact, we can canvass a range of sentencing options with the Prosecutors that will either leave you with no criminal record or impose minimal restrictions on your liberty after sentencing. To learn more about potential non-criminal resolutions, please visit our Resolutions page, or read our FAQ on resolutions and other sentencing options.

Defending Resisting Arrest Charges in Victoria

What are the best defences to resisting arrest charges in Victoria?

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 depends 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.

How can I help defend resisting arrest charges in Victoria?

If you have been charged with resisting arrest in Victoria, the following can help your lawyer build a strong defence:

• Provide your lawyer with a statement about what happened;
• Collect and maintain all documents and records about the event;
• Gather a list of witnesses that may support your version of events; and
• Log any relevant texts, emails, phone calls or photographic evidence.

As soon as you are released on bail, you should start to gather any information that may be of use to your lawyer. What information is relevant will depend on the facts in your case. If you are uncertain what information may be relevant, you should contact one of our lawyers immediately to create a plan of action for gathering information.

If you are truly proactive about the matter, consider doing the following:

• Secure proof of employment;
• Secure reference letters;
• Enroll in counselling (anger management/substance abuse/parenting);
• Secure a record of prescriptions; and
• Secure a record of any mental health conditions you suffer from.

These steps can be very helpful to building an effective defence (or convincing the Prosecutor to drop the charges altogether).

What can a lawyer do to help me defend against resisting arrest charges in Victoria?

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.

Further Reading

Below are a few notable cases dealing with various aspects of resisting arrest charges:

In R v Kennedy, 2016 ONCA 879, the accused was arrested for robbing a pharmacy. While being questioned by police, he consistently ignored orders and pulled away from officers when they attempted to place him under arrest. In confirming his conviction, the court of appeal noted that while his actions were minimal, they met the standard of “active use of force” required to constitute resistance.

In R v Bentley, [2003] Q.J. No 16091 (QCCM), the accused was pulled over and was asked to exit the vehicle. He declined and when the police attempted to remove him, he placed his hands on the steering wheel and held tight, refusing to move. Despite not using force directed at the officers, the court found that his actions constituted more than passive resistance as “he used physical force to prevent his removal.”

In R v Jacquot, 2010 NSPC 13, the accused attended the scene of his wife’s car accident when he entered into an argument with an officer. When the officer reached out to place him under arrest for obstruction, the accused ‘flailed’ his arms, requiring the officer to take him to the ground. In convicting him, the court noted that the accused’s physical actions constituted the minimum force for resisting.

What’s Next?

Most of the information above relates to simple resisting arrest cases, which still can be complex and fact-specific. Charges that involve a unique type of officer, an action that may not fit neatly under the definition of resisting, or resisting a land or goods seizure under section 129(c) can involve further complexities.

We have tried our best to provide a general outline of what you can expect if you find yourself in this situation, but this is just the tip of the iceberg.

To learn more about how we can help, please contact our team of Resisting Arrest Lawyers. We will conduct a thorough review of your situation and tailor a precise strategy that targets your successful defence.