Is refusing to answer police questions obstruction?

No. Every person has the right to silence and cannot be convicted of obstruction for exercising it. Actively misleading police by giving a false name or false information is a different matter and can support a charge.

What if the arrest was unlawful?

Section 129 requires that the officer be acting in the lawful execution of duty. If the detention, entry or arrest was unlawful, that element cannot be proven and the charge should fail. This is why the lawfulness of the police conduct is examined closely in these prosecutions.

Is asking a witness not to testify an offence?

It can be. Attempting to dissuade a witness from testifying, or to change their evidence, falls squarely within section 139 and is treated seriously. Contact with a witness should be made only through counsel.

Specialized Prosecutions

Obstruction Of Justice Lawyer in Canada

An obstruction of justice lawyer defends charges under Criminal Code, ss. 129 (obstructing a peace officer) and 139 (obstructing justice). This page sets out what the offence covers, what the Crown must prove, the penalties on conviction and the defences that are commonly available, then lists criminal defence firms you can contact.

Criminal Code, ss. 129 (obstructing a peace officer) and 139 (obstructing justice)·hybrid offence

What Obstruction of Justice covers in Canadian criminal law

Two distinct offences are commonly grouped under this heading. Section 129 makes it an offence to wilfully obstruct, resist or fail to assist a peace officer in the execution of their duty. Section 139 is the broader offence of wilfully attempting in any manner to obstruct, pervert or defeat the course of justice.

For section 129 the Crown must prove the officer was acting in the lawful execution of duty. If the underlying detention, arrest or entry was unlawful, the officer was not in the execution of duty and the charge fails. That makes the lawfulness of the police conduct the central battleground.

Section 139 covers conduct such as fabricating evidence, dissuading a witness, offering an inducement to change testimony, and interfering with a judicial proceeding. Where it relates to a judicial proceeding under section 139(2) it is a straight indictable offence carrying a ten-year maximum.

What the Crown must prove

The Crown carries the burden of proving every element beyond a reasonable doubt. A reasonable doubt on any one of them means an acquittal.

For section 129, that the person was a peace officer acting in the lawful execution of their duty
That the accused obstructed, resisted or wilfully failed to assist
That the conduct was wilful, not merely uncooperative or passive
For section 139, an act tending to obstruct, pervert or defeat the course of justice
A specific intent to obstruct, pervert or defeat the course of justice

Penalties and consequences on conviction

A maximum of two years on indictment under section 129, and ten years under section 139(2)
Custody where the conduct involved interfering with a witness
Probation and conditions restricting contact with witnesses and complainants
A criminal record for an offence against the administration of justice, which is treated seriously on future bail applications
Professional discipline where the accused holds a licence

Common defences

The officer was not acting in the lawful execution of duty, defeating a section 129 charge
Passive non-cooperation, such as declining to answer questions, which is not obstruction
Absence of the specific intent required under section 139
Exercising the right to silence or the right to counsel cannot constitute obstruction
Charter challenges to an unlawful detention, arrest or entry under sections 8 and 9
Factual disputes resolved by body-worn camera or bystander video

Obstruction of justice lawyer: frequently asked questions

Is refusing to answer police questions obstruction?: No. Every person has the right to silence and cannot be convicted of obstruction for exercising it. Actively misleading police by giving a false name or false information is a different matter and can support a charge.
What if the arrest was unlawful?: Section 129 requires that the officer be acting in the lawful execution of duty. If the detention, entry or arrest was unlawful, that element cannot be proven and the charge should fail. This is why the lawfulness of the police conduct is examined closely in these prosecutions.
Is asking a witness not to testify an offence?: It can be. Attempting to dissuade a witness from testifying, or to change their evidence, falls squarely within section 139 and is treated seriously. Contact with a witness should be made only through counsel.

Find an obstruction of justice lawyer

These criminal defence firms handle Criminal Code matters and can advise on Obstruction of Justice charges. Confirm the scope of a firm’s practice before retaining counsel.