When a lie is a crime

Avoid lying (to police). It could be a crime.

Police stop you and ask your name. You lie.

The question: have you committed the offence of obstruct peace officer?

An Ontario appeal court recently tackled this question and provided the following answer: it depends.

“Two-second” computer check

Using her police radio she ran a “two-second” computer check on the information and determined it was false. In the meantime, another police officer had arrived with photographs of scoopers who had been issued trespass notices for soliciting passengers for unlicensed taxis. When he located a photo of Mr. Khan, an arrest was made and Mr. Khan was charged with “obstruct police.” The entire investigation took about two minutes.

Lying to police not always a crime

The trial judge convicted Mr. Khan. While noting that lying to the police, on its own, does not constitute obstruction, he found him guilty because the female officer “did something (computer check) she would not have done had Mr. Khan not lied.” He rejected the defence argument that Mr. Khan’s conduct had merely a trifling and transitory impact on the police.

At the heart of Mr. Khan’s appeal was the meaning of the word “obstruct” and whether any interference with the duty of a police officer, however fleeting, sufficed. It was the first time that an Ontario appeal court had faced this question since the statute was enacted in the early 1950s.

Criminal Code does not define “obstruct”

Section 129(a) of the Criminal Code provides that everyone who “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 officer” commits an indictable offence or an offence punishable on summary conviction. The Criminal Code does not define the term “obstruct.”

The appeal court (Superior Court of Justice) stated in its November 14, 2014, ruling, that to establish guilt the Crown must prove (1) that there was an obstructing of police, (2) that the obstructing affected the officer in the execution of a duty he was then executing, and (3) that the person obstructing did so willfully.

Obstruct police a “result crime”

The court noted that the harm that the section is meant to prevent is the result of the accused’s conduct. The focus is not simply on the conduct of the accused; the accused’s conduct must affect the duty the police officer is performing. The offence, therefore, is a “result crime” rather than a “conduct crime.”

While it is true that Mr. Khan’s lie was a hindrance, did it rise to the level of unlawful obstruction?

De minimis principle applies

The court observed that criminalizing all obstructive conduct however minor the effect on police would lead to absurd results. Take the case of an officer engaged in an arrest who asks a suspect to empty his pockets, the court said. If the suspect does not comply, thus requiring the officer to empty the suspect’s pockets, would that not constitute obstruction? The question then is where to draw the line.

In interpreting the term “obstruct” and in determining the degree to which the performance of a police duty need be impeded to make out the offence, courts must be guided by the de minimis principle embodied in the legal maxim “de minimis non curat lex” (the law does not concern itself with trifles).

More than fleeting diversion required

While there is no requirement that the interference with the police duty go on for a long time, the court found that to establish obstruction it must cause more than a fleeting or momentary diversion or expenditure of effort. The court granted Mr. Khan’s appeal and sent the matter back for a new trial where the correct test could be applied. (The Crown subsequently did not reprosecute.)

As an aside the court noted that in a case where the lie does not cause the officer to carry out any investigation that she would not otherwise have done, no offence is committed as the performance of the officer’s duty has not been obstructed.

In making this observation, the court cited R. v. McGregor, a 2005 Ontario case, where police stopped an unplated vehicle. There were a number of young people in the car and the accused was going to be ticketed for not wearing a seat belt. She gave a false name but produced no identification. The police officer testified that she always attempted to verify someone’s identity in the absence of photo identification and that in this case she made one telephone call in an attempt to do so. The accused promptly admitted that she had lied about her identity.

For more on Obstruct Police, see cases.