Monday, November 20, 2006

R. v. Plumber - The power to resist an unlawful arrest

The Ontario Court of Appeal has reaffirmed the limited powers of arrest available to police officers under Highway Traffic Act, RSO 1990 c.H in its 2-1 decision in R. v. Plumber released on November 14th.

[1] This appeal principally concerns the power of arrest under the Highway Traffic Act, R.S.O. 1990, c. H. 8 (the “Act”). The appellant was charged with assaulting a peace officer in the execution of his duty and assault with intent to resist arrest. Both charges turned on the legality of the arrest. If an arrest is unlawful, the officer is not in the execution of his or her duty and the citizen is entitled to resist the arrest.

[2] In this case, the police officer purported to arrest the appellant because he failed to identify himself as required by the Act. The Act, however, carefully circumscribes the arrest power. In particular, the power of arrest does not arise because a motorist refuses to produce his or her licence. Rather, where the person refuses to produce the licence, the officer is entitled to arrest without warrant under s. 217 of the Act only where the person has also refused to give reasonable identification “when requested by a police officer”: Highway Traffic Act, s. 33(3). In my view, the circumstances authorizing an arrest did not arise in this case and the arrest was not legal. It follows that this appeal should be allowed and the charges against the appellant dismissed.
The facts involved a cabbie who not only refused to produce a licence when pulled over on a traffic stop, he produced a tape recorder and proceeded to unleash profanities at the police officer. When the officer went to arrest the cabbie for failure to produce a licence, the cabbie resited. Rosenberg J.A. at paragraph 46-48:

[46] As the appeal judge observed, s. 33 imposes positive legal duties on drivers to identify themselves. But, those duties are only triggered in the specific circumstances set out in ss. 33(1) and (3). In this case, while the s. 33(1) duty was triggered, the s. 33(3) duty was not. The appeal judge said in his reasons:

A demand for the licence followed by a second demand and supplemented by a warning that the person will be arrested if s/he fails to identify herself/himself will be sufficient to trigger the arrest power in s. 217(2).

However, in this case the warning Constable Allcroft gave to the appellant was tied to the failure to produce his licence, ownership and insurance, not to a failure to provide alternative identification by way of his name and address. Thus, the arrest power was not triggered.

[47] On the version of events as testified to by the officer there can be little doubt that, had the request for alternative identification been made, the appellant would have refused to comply. But, that is not the point. The arrest power is a limited one and it can only be triggered if the officer had reasonable and probable grounds to believe that the appellant had contravened s. 33(3). Reasonable and probable grounds imply objective and subjective components: R. v. Storrey (1990), 53 C.C.C. (3d) 316 (S.C.C.) at 324. The officer not only had to believe that the appellant had committed an offence under s. 33(3), but that belief had to be reasonable. On the facts known to the officer, the appellant did not contravene s. 33 and therefore the officer did not have grounds to make the arrest. Without the request, an essential element of the contravention was not made out.

Since the police officer did not have grounds to make the arrest, the arrest itself was illegal. An illegal arrest is permitted by law to be resisted. Any individual has the power of arrest under the common law and as a result any individual has the power to resist an illegal arrest, even if the arresting person is a police officer. Because the police officer had no jurisdiction or authority to arrest, the act of the arrest was an assault by the officer upon the cabbie. The charges against the cabbie arising out of the arrest were dismissed.

It is doubtful that the police officer will be charged with assault.

(It is not recommended that you resist arrest by a police officer as the legality or illegality of the arrest will not be determined until after the fact.)

cross post: little tobacco