Court Information

Ontario Court of Justice (East Region)

Her Majesty the Queen v. Mohamed Ali Yussuf

Before: Justice David M. Paciocco – Ottawa, ON

Reasons for Decision

Released: March 21, 2014

Counsel

For the Crown: M. Boyce

For the Accused: Mohamed Ali Yussuf on his own behalf and in absentia

I. Introduction

[1] This is my decision in the trial of Mr. Mohamed Ali Yussuf, who was tried before me on 17 March 2014 on a charge of wilfully obstructing a peace officer in the course of his duties. That charge arises from an incident alleged to have happened on 3 September 2012. The trial proceeded in an unusual fashion.

A. The Identification of the Accused for Arraignment

[2] Anyone charged with an offence has an obligation upon appearing to make their presence known to the presiding judge: R. v. Anderson (1983), 49 A.R. 122 (C.A.). Mr. Yussuf did not answer to the charge as the accused, and although this is not the charge before me, he clearly impeded the course of justice. He entered the court in response to a page for Mr. Yussuf, and identified himself as representing Mr. Yussuf. He introduced himself only as "Mohamed" and refused to provide a legal name. Unaware at the time that "Mohamed" was Mr. Yussuf I advised "Mohamed" that I could not recognize him as Mr. Yussuf's representative in this summary conviction prosecution unless he furnished me with this legal name. He refused, demanding that I confirm that I am a duly sworn judge who will respect his natural rights. During the course of our exchange he told me that he was not Mr. Yussuf and was not the accused before the Court but insisted on representing Mr. Yussuf.

[3] Although by this point I began suspecting this gentleman was in fact the accused person and that he was therefore before the court giving the court jurisdiction over his person, I did not feel that I could have him arraigned on the charges without acceptance by him that he was indeed the person accused, or alternatively proof that he was indeed the individual required by law to answer the charges. Nor did I wish to issue a bench warrant against Mr. Yussuf for not attending at his trial, given my suspicion that the person before the court was him. Instead, I undertook steps to attempt to confirm who was present in the courtroom, something that was described in R. v. Anderson, supra at para. 16, as "good practice" rather than a matter of judicial duty.

[4] I therefore had Duty Counsel paged into court in an effort to ensure that "Mohamed" had the legal information needed to guide his conduct. Duty Counsel was unavailable. I therefore opted to conduct an inquiry by inviting the Crown to call evidence from any of the police officers involved to assist in determining whether the person before me was the individual expected to answer the charges. "Mohamed" remained in court while this was being done.

[5] The Crown called Cst. Hany Rizkalla as a witness. Cst. Rizkalla identified "Mohamed" as Mohamed Ali Yussuf, the person he had charged with the offences before me.

[6] During Cst. Rizkalla's evidence in-chief, Duty Counsel became available and arrived in court. In "Mohamed's" presence I outlined for Duty Counsel what was transpiring and requested her assistance in meeting with "Mohamed" to ensure he understood his rights and obligations. I also requested that she assist "Mohamed" in understanding the meaning and consequences of contempt of court. I did this because at that point I had a foundation for believing that "Mohamed's" behaviour was contemptuous, and I wanted to encourage a more productive exchange without resorting to a contempt citation. Mr. Mohamed agreed to meet with Duty Counsel, Ms. Guidolin, and did so for approximately 20 minutes.

[7] Upon his return after meeting with Duty Counsel I permitted "Mohamed" to cross-examine Cst. Rizkalla and to make submissions, even though "Mohamed" had not demonstrated any standing to do so. At the end of this process, and being satisfied on the evidence before me that "Mohamed" was indeed the person expected to answer the charge, I instructed that he be arraigned. The Crown indicated that it would not be proceeding against Mr. Yussuf on a charge on the information of possession of marijuana, so he was arraigned solely on the count of obstruct justice.

[8] When it was read to him Mr. Yussuf claimed not to understand the charge, even though it was apparent he did. I had attended very carefully to Mr. Yussuf's demeanour, lucidity and ability to engage me and the officer during cross-examination and had no concerns about his fitness to stand trial or his comprehension. I had explained the charge to him, as well as the criminal process including the process of arraignment. Despite his protests I therefore instructed that a plea of not guilty be entered on his behalf.

B. The Trial in Absentia

[9] The Court recessed for lunch after Mr. Yussuf's arraignment and I ordered Mr. Yussuf to re-attend after he told me that he could not be back because he had to take his aunt to the doctor's. He offered no evidence supporting this claim, and had not mentioned it at any point before it was apparent the trial would be proceeding. Mr. Yussuf had been complaining from the outset that the trial should not proceed because only three of four officers were in attendance. Before the lunch recess I explained to Mr. Yussuf that he could apply for an adjournment and invited him to do so.

[10] After the lunch recess Mr. Yussuf brought an adjournment application. Mr. Yussuf's foundation was that the Crown had undertaken before a pretrial judge, and a judge assigned at his first trial, to have Cst. Myo present, yet Cst. Myo did not come because of "personal matters." I was advised by Mr. Yussuf that Cst. Myo gave the same explanation for missing the first trial date – "personal matters" - thereby requiring an adjournment of that trial. I explained to Mr. Yussuf that I could not grant the adjournment in spite of this unless Cst. Myo's evidence was material to his defence. In an effort to determine whether it was I asked the Crown to give Mr. Yussuf a copy of Cst. Myo's "Investigative Action" report outlining his role in the events, as Mr. Yussuf had not brought his disclosure with him. Mr. Yussuf agreed to have this document filed as an exhibit in the adjournment application. The "Investigative Action" showed that Cst. Myo's expected evidence related to the possession of marijuana charge, which was not being proceeded with. Cst. Myo's role was to search Mr. Yussuf's vehicle after he was arrested, and the Crown affirmed that the alleged obstruction of a peace officer in fact occurred prior to Cst. Myo's arrival on scene. I therefore denied the adjournment, with reasons, explaining that the trial would continue.

[11] The Crown called Cst. Rizkalla as its first witness on the trial proper. Before the Crown could ask any questions Mr. Yussuf protested my ruling denying the adjournment and he asked to speak to a lawyer. I offered him a brief recess to speak to Duty Counsel. He indicated he wanted to find a lawyer, and motioned to the hallway. It was 1:53. I told him I would give him until 2:00 to see if he could find someone even though this was not something he was entitled to given that he had gone through a pretrial process indicating that he would be representing himself, and having had a lengthy meeting with Duty Counsel. I took a recess to facilitate his desire to try to find a lawyer to discuss what had happened.

[12] At 2:00, the appointed time for his re-attendance, Mr. Yussuf did not return. He did not respond to successive pages by the Clerk, including an all-floors page. The Crown sent officers throughout the courthouse to find him without success. At 2:10 the Crown moved to try Mr. Yussuf in absentia.

[13] The tenor of the Ontario Court of Appeal decision in R. v. Jenkins 2010 ONCA 278, [2010] O.J. No. 1517 is that trial courts should order trials in absentia reticently, even though, as the British Columbia Court of Appeal noted in R. v. Tarrant [1994] B.C.J. No. 1600 at paras. 16-18, an accused who absconds during trial cannot later be heard to complain that he has been deprived of his right to be heard. Bearing the caution expressed in Tarrant in mind I granted the order pursuant to section 803(2)(b) of the Criminal Code of Canada.

[14] First, the necessary conditions imposed by section 803(2)(b) were met - Mr. Yussuf was being tried summarily, and had failed to appear upon the resumption of his trial after the adjournment I had ordered.

[15] Second, I concluded that it was in the interests of justice to proceed in absentia in spite of the strong preference for adjourning a matter and issuing a bench warrant in cases even of voluntary non-attendance. My decision to go ahead was based on a combination of the delay, the investment that had already been made in moving the matter along, the nature of the charge and potential consequences, and the need to maintain the integrity and repute of the administration of justice.

[16] In terms of delay, the charge was becoming stale – dating back to the 3rd of September 2012, some 19 months ago. It was also clear to me that Mr. Yussuf was trying to avoid having the matter heard. He had failed to appear on 27 September 2012 in answer to the charge, requiring a bench warrant to be issued. He had also been ordered on 4 October 2012 to appear before court with identification, and yet refused to identify himself before me, resulting in a significant loss of court time.

[17] In terms of the cost of putting things over, three police officers were present and had waited all morning for the trial to begin, at significant public cost. And as indicated, considerable court time had already been expended trying to move the case forward in spite of Mr. Yussuf's lack of co-operation.

[18] I considered that, while any criminal charge is serious and any deprivation of liberty is a manifest incursion into someone's liberty interest, the charge Mr. Yussuf was being tried on was, in terms of penalty and process, the least serious form of criminal offence in the Criminal Code, carrying a maximum sentence of 6 months incarceration, and typically involving no incarceration or a short period of custody. Had the offence been one of the more serious offences in the Criminal Code I would have been far less inclined to proceed as I did.

[19] In terms of the repute of the administration of justice, it was apparent that Mr. Yussuf left because of my refusal to grant his adjournment request and in the face of my expressed direction that he re-attend for the trial that would be taking place in the afternoon. He demonstrated little respect for the court process, making it clear to me that if the matter was simply put over, the difficulties that were experienced on this trial date were apt to be repeated at a future trial date in front of another judge. Through his behaviour, I concluded that Mr. Yussuf's behaviour had to be dealt with decisively.

[20] The option of a trial in absentia recognizes that where an accused effectively waives his right to make full answer and defence by absconding, a trial judge is able to ensure that the Crown case is presided over and adjudicated fairly. I therefore ordered that the trial proceed in absentia.

II. The Evidence

[21] Cst. Rizkalla testified that on 3 September 2012 he and Cst. Turbull were returning to the Elgin Street station at the end of their shift on "bicycle patrol." They were heading southbound on Elgin St. At the Queen Street intersection Cst. Rizkalla noted Mr. Yussuf driving a motor vehicle that pulled up beside Cst. Rizkalla, who was waiting on his bicycle for the light to change. It was approximately 17:27, rush hour in Ottawa. The vehicle was in the centre lane and Mr. Yussuf was talking on a blackberry telephone. The driver's side window was open. Cst. Rizkalla intended to give Mr. Yussuf a warning. He caught Mr. Yussuf's attention and asked him if he knew it was illegal to talk on the phone while driving. Cst. Rizkalla testified that Mr. Yussuf responded in an arrogant manner, saying "really" or words to that effect, and brushing him off. Cst. Turbull, who was also called by the Crown, gave a different account. He testified that when Cst. Rizkalla confronted Mr. Yussuf, Mr. Yussuf responded that he did not know it was illegal to talk on the phone while driving. Cst. Turbull, who could not hear all of the conversation, also formed the impression however that Mr. Yussuf was sloughing things off.

[22] Cst. Rizkalla testified that he decided to approach the driver's door, and left his bike in front of the vehicle and approached from the left or driver's side to obtain documents and conduct further conversation. He wanted to be able to run Mr. Yussuf's driving record and see whether Mr. Yussuf's attitude was going to change before deciding whether to proceed with a charge. Cst. Rizkalla testified that as he approached the window, Mr. Yussuf rolled the window up, leaving but a three-inch crack. Cst. Rizkalla was concerned that he could not hear well and asked Mr. Yussuf to roll the window down. Mr. Yussuf did not do so, saying "It is open enough". The fact that the window was rolled up by Mr. Yussuf is confirmed by Cst. Turnbull.

[23] Cst. Rizkalla asked Mr. Yussuf for his driver's licence and vehicle documents. Mr. Yussuf did not comply but asked why he was being pulled over in the first place. Cst. Rizkalla explained again that it is illegal under the Highway Traffic Act to talk on the phone while driving, and asked again for the documents. Mr. Yussuf told Cst. Rizkalla that he did not have a driver's licence and did not have any identification with him. Cst. Rizkalla asked him to identify himself verbally. Mr. Yussuf refused, again asking why he needed to give Cst. Rizkalla his information or his name. Cst. Rizkalla explained that under the Highway Traffic Act any driver has to properly identify themselves or they can be arrested. At this point Mr. Yussuf locked the door and asked why he would be arrested.

[24] Cst. Rizkalla described the conversation as "circular," and decided that Mr. Yussuf had no intention of co-operating or identifying himself. Cst. Rizkalla realized that he may have to arrest Mr. Yussuf. Cst. Rizkalla and his partner were on bicycles so he asked for backup. While waiting for backup Cst. Rizkalla continued to try to get Mr. Yussuf to identify himself. This had been going on for some time, and the flow of traffic was being affected.

[25] Ultimately Cst. Rizkalla asked Mr. Yussuf to step out of the vehicle but Mr. Yussuf did not comply, and continued to question the officer. Cst. Rizkalla had noticed that every time he was asked for documents Mr. Yussuf looked at the glove box. Cst. Rizkalla asked again, and when Mr. Yussuf looked away, Cst. Rizkalla thrust his arm into the small gap at the top of the window releasing the lock. As he was doing this, Mr. Yussuf tried to close the window with Cst. Rizkalla's arm still inside. Cst. Rizkalla managed to open the door by the handle and told Mr. Yussuf to exit as he was under arrest. At this point Mr. Yussuf did so and he was arrested for "obstruct police" and failing to identify himself. Cst. Rizkalla testified that this occurred at 17:28.

[26] Cst. Blake testified that when he arrived on scene at 17:29 in a police vehicle, Mr. Yussuf was in handcuffs being belligerent and demanding to know why he had been stopped and why the officer needed his name. Mr. Yussuf was placed in his car, and it was in Cst. Blake's car that the rights were read by Cst. Rizkalla. Cst. Blake confirmed that during this process Mr. Yussuf was not co-operating, indicating he did not understand even though things were explained to him several times. He described Mr. Yussuf as engaging in a circular discussion, being repeatedly told he was being arrested for not identifying himself, and promising to identify himself if he was told why he was arrested.

[27] Cst. Blake took custody of Mr. Yussuf at 17:35. He ultimately told Mr. Yussuf that there was no point in refusing to identify himself as they would find out who he was through prints or mug shots. Mr. Yussuf then identified himself as "Mohamed Yussuf," spelling his surname incorrectly with an "a." He refused to give his date of birth. Cst. Blake tried to run Mr. Yussuf on the police system with this information but failed to secure a response. Cst. Blake testified that Mr. Yussuf was being belligerent. He transported Mr. Yussuf to the cells, arriving at 17:57.

[28] Both Cst. Rizkalla and Cst. Blake were present when Mr. Yussuf was being paraded before the desk sergeant at the station. Each testified that when Mr. Yussuf was told that everything was being videotaped, he gave the name "Mohamed Yussuf" and his date of birth. This enabled Cst. Rizkalla to run Mr. Yussuf's name. Upon retrieving a mug shot associated with that name and date of birth, he immediately recognized that he had dealt with Mr. Yussuf before. Cst. Rizkalla testified that the man who had been in court during the morning of the trial, was the same man arrested on 3 September 2012, Mohamed Yussuf. A copy of a "mug shot" including identification information was secured by Cst. Rizkalla from the police computer system and made an exhibit before me. Cst. Rizkalla also reviewed past mug shots of Mr. Yussuf, including the one that he had viewed on 3 September 2012, and affirmed his identification.

III. Findings

[29] I have considered the foregoing evidence. All of the officers were credible. I accept that they were telling me the truth and furnished an accurate account of events subject to two modest caveats.

[30] The first caveat relates to the contradiction between Cst. Rizkalla and Cst. Turbull over what Mr. Yussuf said when asked if he knew it was illegal to talk on the phone while driving. In my view, this contradiction does not "discredit" either officer. They remember events differently. What matters is that they both agree that Mr. Yussuf was sloughing Cst. Rizkalla off, an attitude that is consistent with the general behaviour testified to by all three officers on Mr. Yussuf's part that afternoon. I therefore believe Cst. Rizkalla when he testified that he assessed Mr. Yussuf's response and demeanour and decided, as he was entitled to, to pursue the matter further before choosing to leave things with a warning.

[31] The second caveat arises because based on Cst. Rizkalla's own time-line, the entire interaction between Cst. Rizkalla and Mr. Yussuf between the first observation and arrest had to be under two minutes, a time-frame that does not seem capable of accommodating the repeated efforts described by Cst. Rizkalla to try to get Mr. Yussuf to identify himself before his arrest. I am satisfied because of the time frame offered by Cst. Rizkalla, and confirmed in part by Cst. Blake, that things happened quickly and the decision to arrest Mr. Yussuf was taken without the full delay implicit in Cst. Rizkalla's narrative. Most of the circular conversation about why Mr. Yussuf was being required to identify himself took place after he was arrested as Cst. Blake was arriving and while Cst. Blake was present. This does not, in my view, affect the credibility of Cst. Rizkalla. As a result of his frustrating dealing with Mr. Yussuf, Cst. Rizkalla was left with an inaccurate impression about the length and intensity of the pre-arrest exchange.

[32] Even though I accept the evidence of each of the officers subject to these two caveats, I want to explain in more detail the most significant findings that I am making beyond a reasonable doubt.

[33] First, I find that Mr. Yussuf was observed in the car talking on the phone, and Cst. Rizkalla confronted him over this and that Cst. Rizkalla was not content with Mr. Yussuf's answer. He approached the car and Mr. Yussuf rolled the window up to within a few inches of being closed. I accept this because it is all confirmed by Cst. Turnbull. I have no reason to believe that the officers colluded in any way in their evidence. Indeed, Cst. Turnbull did not offer testimony on a number of matters that he could have, had his intention simply been to support Cst. Rizkalla and, as indicated, his recollection of Mr. Yussuf's response does not mirror Cst. Rizkalla's testimony.

[34] Second, I accept that Mr. Yussuf refused to lower the window when asked. This is behaviour consistent with the attitude described in the evidence of all three officers that afternoon. Again, this detail is supported by Cst. Turnbull.

[35] Third, I accept that Mr. Yussuf was asked to produce his licence and documents and indicated he had none. I accept that he was asked this because that is the ordinary course of affairs, and because his failure even to produce a licence provides confirmation for Cst. Rizkalla's testimony that Mr. Yussuf said he did not have a licence.

[36] I also accept that Mr. Yussuf demanded to know why he should have to produce the documents and that this was explained to him by Cst. Rizkalla. His insistence that afternoon on having an explanation that would satisfy him is confirmed by Cst. Blake's evidence.

[37] I am also satisfied that Mr. Yussuf was told that he could be arrested for not producing the documents or identifying himself verbally. Again, this is the conversation one would expect.

[38] And I accept that Mr. Yussuf locked the door at this point and I accept that he was told to get out of the car and did not do so. I also accept that Cst. Rizkalla reached into the window to unlock the car door and that Mr. Yussuf tried to roll up the window while Cst. Rizkalla did so. I make these findings beyond a reasonable doubt, again, because this evidence from Cst. Rizkalla, taken in context of events, has a ring of truth to it. Mr. Yussuf was defiant throughout the afternoon, and was not going to be instructed on what to do. There is nothing implausible in the account.

[39] The question, then, is whether these acts and omissions by Mr. Yussuf, constitute the offence charged.

IV. The Law

[40] Section 129(a) of the Criminal Code of Canada, the provision Mr. Yussuf is charged with offending, provides in relevant part:

129. Everyone who

(a) … wilfully obstructs a … peace officer in the execution of his duty….

is guilty of … an … offence

It is customary to break the elements of an offence down into the actus reus or physical act requirements of an offence, and the mens rea or mental elements of an offence, and it is helpful to do so here. In spite of the simplicity of the charge and its routine application, there remains some dispute over what has to be proved to secure a conviction. I will begin with the actus reus.

Actus Reus

[41] The first and most obvious component of the actus reus relates to the conduct of the accused. Although criminal offences tend to require some designated positive act by the accused, where the language of the offence contemplates guilt by omission the offence can be committed by omission provided the omission alleged to constitute the actus reus of the offence is a failure to perform an act that the accused was under a duty to do. In R. v. Moore, [1979] 1 S.C.R. 195 the Supreme Court of Canada held that the offence of obstructing a peace officer in the execution of his duties contrary to section 129(a) can be committed either by an act of the accused or by an omission to fulfil a legal duty imposed on the accused. In R. v. Moore, for example, Mr. Moore was convicted of this offence for failing to identify himself to a peace officer when Mr. Moore was under a legal duty to do so. The officer had observed Mr. Moore committing a traffic offence and was therefore under a duty to identify and ticket Mr. Moore. The Court reasoned that this necessarily led to a reciprocal duty on Mr. Moore to identify himself to facilitate the ticketing.

[42] The precise conduct specified by section 129(a), of course, is an act obstructing a peace officer in the course of his duty, or alternatively, an omission by the accused that obstructs a peace officer in the course of his duty. For clarity of analysis, each of the elements contained in that description warrant independent treatment.

[43] First, the conduct must, by its nature, "obstruct" a peace officer in the course of his duties. In R. v. Gunn 1997 ABCA 35, [1997] A.J. No. 44 at para. 18 (Alta.C.A.), it was said that "there is not, and likely cannot be, a precise legal definition of "obstructs'" in section 129(a). In R. v. Tortolano, [1975] O.J. No. 1055 (Ont.C.A.), however, Justice Dubin endorsed the definition of "obstructing" that had been adopted in an English decision, Hinchliffe v. Sheldon, [1955] 3 All E.R. 406 at 408:

"Obstructing" means, for this purpose, making it more difficult for the police to carry out their duties.

I am therefore proceeding on the basis that any act or omission to carry out a duty that makes it more difficult for a peace officer to carry out his duty qualifies as an obstruction. As Tortolano holds, it is not necessary for the act of obstruction to succeed in frustrating a peace officer. If the effect of the act is to make it more difficult for the officer to carry out their duties, an obstruction has occurred within the meaning of the section.

[44] Second, and as indicated, for the purpose of the charge particularized in this case the Crown must prove that the person obstructed is a "peace officer."

[45] Third, the peace officer must be "in the execution of his duties" when obstructed. It is not enough that the officer is "on duty" when he is obstructed. As the language of the section makes clear, he must be "in the exercise of his duty" when obstructed: R. v. Tortolano, supra at para. 11. Nor is it enough that the peace officer believes "she has the authority to carry out her duties. There must be a lawful basis, or a legal substratum, for her actions": R. v. Gunn, supra at para. 25. So in R. v. Sharma, [1993] S.C.J. No. 18 the accused was not guilty of the offence after obstructing the efforts of a peace officer to arrest him, as the officer had no lawful authority to do so.

Mens Rea

[46] What then of the mens rea elements? Many provisions of the Criminal Code are entirely silent about the mental state that is required, leaving it to be implied, but section 129(a) is not silent. It requires that the accused "wilfully obstruct" a peace officer in the course of their duties. This expressed mens rea does not, however, settle the meaning of the term. Criminal statutes are read contextually and purposively. The term "wilfully" therefore means different things in different provisions of this enactment. Sometimes the term modifies the act of the accused in the sense that the act must be wilful or intentional as opposed to accidental. Sometimes the term animates a consequence, meaning that it is the consequence must be intended. And for Part XI of the Criminal Code of Canada the term "wilful" is defined by section 429(1) to include the concept of recklessness: R. v. Buzzanga (1979), 49 C.C.C.(2d) 369 (Ont.C.A.).

[47] Unfortunately the import of the expression "wilfully obstructs" has itself been obscured in Canadian law by an ongoing debate over whether section 129(a) is a "specific intent" or "general intent" offence. In my view this is not a helpful way to interpret the section. The concepts of specific intent and general intent were created to distinguish between those offences that can be defended on the basis of simple intoxication (specific intent offences), and those defences that cannot (general intent offences.) While it is possible to make generalizations about what specific intent offences usually look like, there is no tight definition of a specific intent offence that catches all of its members. This is because the characterization of offences is a matter of "social policy" rather than simply technical character: R. v. Daviault, [1994] 3 S.C.R. 63 at 123, and see the authorities cited in R. v. Gunn, supra at para. 39. Ultimately the characterization of an offence as "specific" or "general" can be made only after its elements are identified, not as an aid to construction, and even then the characterization of the offence can be open to debate. In my view, it is more helpful in interpreting the provision by simply applying the ordinary canons of interpretation in light of the established case law.

[48] There is no controversy on the authority interpreting section 129(a) that the act or omission of the accused must be intentional as opposed to accidental. R. v. Guthrie (1982), 69 C.C.C.(3d) 216 (Alta. C.A.) accepts this, as do many other decisions. The frequently cited decision of R. v. Gunn, supra at 187 therefore describes the mens rea for obstructing a peace officer as a low form of mens rea that "is present when an accused knows what he or she is doing, intends to do it, and is a free agent," in other words, the accused must intend the act or omission that amounts to the obstruction. I agree that all of this is needed. However this does not, in my view, follow from the term "wilfully." It comes from the practice of treating accident as non-culpable and from the voluntariness requirement for criminal culpability. The need for the physical act or omission of the accused to be wilful in the sense of the act of a free agent who knows what he is doing and intends their act or omission is implied, even where the term "wilfully" is absent. More importantly, the word "wilfully" appears in section 129(a) in the phrase "wilfully obstructs." It modifies not the act of the accused but the effect of the act of the accused, the "obstruction." Interpreting the words by giving them their natural meaning in the context in which they are used makes it apparent, in my view, what must be willed is the outcome of making it more difficult for the police to carry out their duties.

[49] I am therefore of the view that, as was stated in R. v. Blackwell 2007 BCSC 1240 at para. 110, "the conduct prescribed [by section 129(a)] is conduct that is intended to obstruct the individual officer in the execution of his duty at the time." In other words, the offence is only committed by those who act intentionally and do so intending to make it more difficult for the police to execute their duty. With respect, I therefore disagree with the conclusion expressed in R. v. Bentley, 2003 CarswellQue 1994 (Que. Cour municipal, Ville de Montreal) where it was said that "it is sufficient that the offender have the general intent to do an act which has, in fact, obstructed the peace officer." This aggressive reading of the section does not, in my view, serve its purpose of preventing offences against the administration of law and justice. I understand that headings do not govern, but this offence is catalogued under the general heading of "Corruption and Disobedience," while other offences in Part IV of the Criminal Code of Canada shelter under the headings "Misleading Justice" and "Escapes and Rescues." The offences in this part tend to involve efforts to impede the proper application and enforcement of the law. Conduct that is intentional and that only happens to obstruct a peace officer does not seem to be in keeping with the theme. In terms of harmony with the balance of the Criminal Code of Canada I also find it difficult to understand why, as a matter of policy, the offence of obstructing justice that can impede the very trial of a matter would link the mens rea to the consequence of obstructing, but this offence would not: See R. v. Abdullah 2010 M.J. No. 270 (Man.C.A.); R. v. Belliveau (1978), 42 C.C.C.(2d) 423 (N.B.S.C.(A.D.)), and R. v. Charbonneau [1992] J.Q.No. 497 leave to appeal refused 1992 SCCA 239. Nor does the more aggressive reading of the provision invite results that easily commend themselves. To take a simple example, if someone intends to run for a bus across the path of a police officer who is chasing a suspect, carelessly believing they can make it before the officer arrives, and a collision occurs impeding the ability of the officer to catch the subject, the clumsy commuter should not in my view be susceptible to successful criminal prosecution. Nor is the obligation to prove the intention to obstruct an unattainable imposition on the Crown. As explained in R. v. Abdullah with reference to the offence of "obstruction of justice," this mens rea can typically be inferred from context. In my view, when section 129(a) is properly interpreted it is the obstruction that must be wilful or intended.

[50] On analysis, there is even more to the mens rea than this. I agree with Pringle J. in R. v. Velasquez [2006] O.J. No. 4908, that to be guilty of this offence, the accused must know or be wilfully blind that the person they are obstructing is a peace officer. This follows implicitly from general mens rea principles. Few criminal provisions express the need for the accused to know that the necessary conditions to an offence are present, yet "knowledge" or "wilful blindness" that such conditions obtain is generally implied as a necessary mens rea component. In R. v. Prue, [1979] 2 S.C.R. 547 the Supreme Court of Canada held that for the criminal offence of driving while prohibited, the element of knowledge had to be read in as a matter of the general principles of mens rea, and in R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299 at 1309 Justice Dickson, as he then was, said "Where the offence is criminal, the Crown must establish a mental element, namely that the accused who committed the prohibited act did so intentionally or recklessly, with knowledge of the facts constituting the offence, or with wilful blindness toward them." There are, of course, exceptional cases where Parliament makes clear that knowledge or wilful blindness of a factual condition of an offence is not required (such as where there is a "reasonable steps" requirement imposed by the provision), but there is no indication to the contrary here. What makes it workable given the obvious problems in expecting a prosecutor to prove the state of someone's knowledge is that absent an air of reality that there was a mistaken belief about the relevant fact, knowledge need not be litigated. This element of the offence is mediated through the "mistake of fact" defence and an evidential burden on the accused: see R. v. Pappajohn, [1980] 2 S.C.R. 120 at 148.

[51] The final mens rea consideration relates to section 129(a)'s actus reus requirement that the "peace officer" is "in the execution of his duty". I agree with R. v. Gunn, supra that what the accused must know are the facts relating to what the peace officer is doing. They need not know what the legal consequences of those facts are, since a failure to appreciate that an officer is acting in the execution of his duty is a mistake of law which, because of general principle expressed in section 19 of the Criminal Code of Canada, can give no solace to an accused.

Elements of the Offence

[52] I am therefore of the view that the elements of the offence that must be proved relating to the obstruction of peace officer in the execution of his duty therefore require that:

Element 1 - There must be peace officer who is in the execution of a lawful duty as a peace officer;

Element 2 - The accused person must know or be wilfully blind to the fact that this person is a peace officer and must know or be wilfully blind to the act the officer is executing;

Element 3 - The alleged obstructive conduct must be an intentional act by the accused person, or an intentional omission by the accused person constituting a failure by the accused to comply with a legal duty;

Element 4 - That act or omission must make it more difficult for a peace officer to carry out their duties; and

Element 5 - The accused person must intend to make it more difficult for the police to execute their duty.

[53] In this case, the Crown has particularized the charge it is prosecuting. Its specific allegation is that:

"Mohamed Ali Yussuf on or about the 3rd day of September in the year 2012 at the City of Ottawa in the East/De L'est Region did wilfully obstruct Cst. Rizkalla, a peace officer in the execution of his duty, contrary to section 129, clause (a) of the Criminal Code of Canada."

I cannot therefore convict Mr. Yussuf on the basis of the testimony that he misled Cst. Blake as to the spelling of his name, obstructing the search that Cst. Blake conducted. This case turns on the dealings between Mr. Yussuf and Cst. Rizkalla.

V. Disposition

[54] There are two potential paths to a conviction on the facts that I have found, through Mr. Yussuf's refusal to identify himself, or through his acts and omissions pending his ultimate arrest.

The Refusal to Identify

[55] There can be no meaningful controversy that elements 1 and 2 of the offence are met. Cst. Rizkalla testified to being a peace officer and no realistic issue can be taken with that. I also find that Cst. Rizkalla was acting in the lawful execution of his duty when he sought to have Mr. Yussuf identify himself. That authority existed under sections 33(1) and 33(3) of the Highway Traffic Act R.S.O. 1990, c. H-8, after Mr. Yussuf was observed violating the distracted driving provisions of that statute.

[56] I have no doubt that Mr. Yussuf knew that Cst. Rizkalla was a peace officer. Cst. Rizkalla was on uniformed bike patrol at the time. And in spite of his persistent demands to know why he was being investigated, Mr. Yussuf, who was engaging with Cst. Rizkalla, knew that Cst. Rizkalla was demanding to see a licence or to receive a verbal identification.

[57] Mr. Yussuf's conduct relating to his identification was, of course, by omission. This omission can ground a prosecution since Mr. Yussuf had a legal duty to identify himself to Cst. Rizkalla. The duty existed in this case irrespective of the common law duty to identify oneself after being observed committing an offence by a peace officer outlined in R. v. Moore, supra. Mr. Yussuf was under an expressed statutory legal duty pursuant to section 33(3) of the Highway Traffic Act to do so.

[58] It is also obvious that Mr. Yussuf's omission to identify himself was intentional. He simply refused to comply with a clear and lawful direction.

[59] On its face, Mr. Yussuf's refusal to identify himself also obstructed Cst. Rizkalla. As in Moore, Cst. Rizkalla could not ticket Mr. Yussuf or run his name to decide whether to ticket him until Mr. Yussuf complied with his duty. It also took Cst. Rizkalla far longer to process Mr. Yussuf than if he had co-operated. Indeed, instead of simply ticketing Mr. Yussuf on site which could have been done had Mr. Yussuf given his name, Cst. Rizkalla had to arrange for and affect his arrest and transportation. This omission by Mr. Yussuf made it more difficult for Cst. Rizkalla to carry out to execute his duty.

[60] Finally, it is also obvious that Mr. Yussuf intended to make it more difficult for Cst. Rizkalla to do his duty. Mr. Yussuf was being obstreperous and confrontational and was not going to co-operate with Cst. Rizkalla.

[61] Even though the elements of the offence of obstructing Cst. Rizkalla in the execution of his duty appear to be present based on Mr. Yussuf's failure to identify himself there is a complicating issue. It arises because the Highway Traffic Act arguably furnishes the means necessary for Cst. Rizkalla to fulfill his duty to process Mr. Yussuf for his act of distracted driving, notwithstanding Mr. Yussuf's refusal to give his name. Specifically, Cst. Rizkalla could have charged Mr. Yussuf for refusing to identify himself contrary to section 33(3) of the Highway Traffic Act, and then immediately arrested him without warrant under the authority of section 217(2) of that Act and after establishing his identity in that way, charge him with the initial offence.

[62] The issue of the impact of this legal option on Mr. Yussuf's guilt arises because of the Supreme Court of Canada decision in R. v. Sharma, supra and the Ontario Court of Appeal decision in R. v. Hayes, [2003] O.J. No. 2795. In Sharma a police officer purported to arrest Mr. Sharma for obstruction of justice after Mr. Sharma failed to comply with an order to desist in conduct that the officer believed to be contrary to a municipal by-law. The Supreme Court of Canada set aside Mr. Sharma's conviction for that offence because the by-law was ultra vires, undermining any claim that the officer was in the execution of his duties. Justice Iacobucci went on however to say that even if the by-law had been valid, the accused would have been acquitted. A broad reading of his obiter dictum is that since the legislation under which the by-law was created had the means of enforcement - namely ticketing the offender – the officer should have used this means of executing his duty instead of resorting to a criminal charge of obstruction. This obiter reasoning can also be read more narrowly. A key factor in Sharma was that by arresting the accused for obstruction the officers had effectively created a power to arrest for a by-law infraction that was not contemplated by the regulatory statute the officers were enforcing. Unlike Sharma, however, the decision in R. v. Hayes, supra is not prone to both a broad and a narrow reading. Indeed, it instructs that Sharma should be given its broader reading.

[63] In Hayes the accused was acquitted of obstruction of justice for refusing to fulfill his legal duty to hand his motorcycle helmet over to a police officer for inspection upon demand, as required by section 82(1) of the Highway Traffic Act. This obstructed the ability of the officer to execute his duty of inspection. Still, Mr. Hayes was acquitted because "the Highway Traffic Act provided an enforcement mechanism for precisely the same misconduct that forms the basis of the charge of obstruct police":

Under s.82(3), a person who fails or refuses to submit their vehicle and its equipment to an inspection is subject to a fine of not more than $1,000. In other words, the legislature defined the enforcement mechanism for failing to submit for inspection as a fine under the HTA. The officer did not even attempt to use this enforcement mechanism, as he was empowered to do, which would have required him to give the appellant written notice for an inspection (s.82(4)). Thus, the appellant did not obstruct the police in the performance of his duty. If the appellant had interfered with the officer's attempt to use written notice for a vehicle inspection, the offence of obstruct police could have been made out. However, since the officer did not attempt to enforce his power to inspect the helmet under s.83(2) by issuing the written notice as required by s.82(4), as in Sharma, he was not entitled to invoke the far more serious offence of obstruct police or the Criminal Code arrest powers.

[64] In effect, the Ontario Court of Appeal in Hayes reads Sharma as holding that if an accused person is being processed under regulatory legislation and that regulatory legislation provides an enforcement mechanism for the impugned act of obstruction, a criminal charge of obstructing a peace officer in the course of their duties is inappropriate. The officer must use the regulatory means he was given.

[65] Indeed, an important observation about the Hayes case is that even Mr. Hayes' refusal to hand over the helmet made things more difficult for the officer by delaying things and requiring a ticket to be issued, no prosecution for obstruction of justice was permissible. Therefore the fact that Mr. Yussuf's refusal to give his verbal identification delayed Cst. Rizkalla and made it more difficult for Cst. Rizkalla to address Mr. Yussuf's distracted driving violation does not change things. As I understand the authority, Mr. Yussuf's refusal to identify himself was to be remedied by charging him and arresting him contrary to the Highway Traffic Act, not the Criminal Code of Canada.

Acts and Omissions Pending the Arrest

[66] Do the other events surrounding the ultimate arrest of Mr. Yussuf support a conviction contrary to section 129(a)?

[67] First, Mr. Yussuf locked the door when Cst. Rizkalla told him that he could be arrested for failing to identify himself. Without question this act was intended by Mr. Yussuf to make it more difficult for Cst. Rizkalla to arrest him, should it come to that. Given that Cst. Rizkalla was not in the process of arresting Mr. Yussuf when this happened, however, he was not executing his duty to arrest at the time. Moreover, until an arrest begins there is no legal obligation on individuals to refrain from taking steps to avoid arrest should it ultimately occur. The act of locking the door cannot form the foundation for the offence.

[68] Then there is Mr. Yussuf's refusal to step out of the car when he was told to do so, and finally, there was Mr. Yussuf's act of rolling his car window up on Cst. Rizkalla's arm in an effort to impede Cst. Rizkalla effort to open the door.

[69] There is no doubt in my mind that by this point, even though Cst. Rizkalla had not yet pronounced words of arrest, he was in the process of arresting Mr. Yussuf. It is why he told him to get out of the car, and why he tried to distract Mr. Yussuf into looking at the glove box so that Cst. Rizkalla could get his arm in the window opening. Cst. Rizkalla's strategy in approaching things as he did was understandable. Had he told Mr. Yussuf that he was being arrested before getting access to him there was a real risk based on Mr. Yussuf's behaviour that he would not have co-operated, perhaps even by driving away leaving the bicycle-bound officers without the immediate means to effect the arrest. Cst. Rizkalla was acting in the lawful execution of his duties as a peace officer in adopting the strategies that he did to affect Mr. Yussuf's lawful arrest.

[70] I also have no doubt that Mr. Yussuf knew that Cst. Rizkalla, a peace officer, wanted him out of the car to arrest him and that he put his arm in the window so that he could unlock the door to gain access to Mr. Yussuf. By that point Mr. Yussuf had been warned that he could be arrested if he did not identify himself, yet he remained obstinate in not furnishing his identification. He therefore had knowledge of the actions of Cst. Rizkalla, which I have found to have been in the execution of his duties.

[71] I am also satisfied beyond a reasonable doubt that the reason Mr. Yussuf did not get out of the car and tried to shut the window was in an effort to make the arrest more difficult, if not impossible, for Cst. Rizkalla. His omission to get out of the car was intentional, as was his act of attempting to close the window.

[72] The latter conduct, attempting to close the window, is an act capable of supporting an obstruction conviction if the other elements of the offence are satisfied. The former conduct, the failure to get out the car on command, is an omission and can only support an obstruction conviction if Mr. Yussuf was under a legal duty to co-operate. As I have found, Mr. Yussuf knew he was being arrested. The arrest of a person involves a demand by the officer that they are taking control over the subject, coupled with a symbolic act of touching. It is an offence to resist or obstruct an officer engaging in a lawful arrest. This consequence imports, in my view, a corollary affirmative legal duty on the subject not to resist or obstruct the arrest. The failure by Mr. Yussuf to exit the car when told to do so to facilitate the arrest violated that duty, making it a culpable omission capable of supporting a conviction, if the other elements of the offence are satisfied.

[73] That omission and the act – refusing to exit the car on demand and attempting to roll up the window to prevent the officer's entry to the car - clearly made things more difficult for Cst. Rizkalla. He was obstructed by Mr. Yussuf in the lawful execution of his duty, namely affecting an arrest under the Highway Traffic Act.

[74] Since all of the elements of the offence are proved beyond a reasonable doubt, based on his refusal to exit the car when told to do so and his attempt to roll up the window to prevent entry, I am finding Mr. Yussuf guilty of the offence of obstructing Cst. Rizkalla in the execution of his duty, contrary to section 129(a) of the Criminal Code of Canada.

Released: 21 March 2014

The Honourable Justice David M. Paciocco