Supreme Court of Canada
Moore v. The Queen, [1979] 1 S.C.R. 195
Date: 1978-10-17
Richard Harvey Moore Appellant;
and
Her Majesty The Queen Respondent.
1978: June 6, 7; 1978: October 17.
Present: Martland, Ritchie, Spence, Pigeon, Dickson, Beetz and Estey JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Criminal law—Obstructing peace officer—Cyclist seen committing traffic infraction—Police officer asking cyclist for identification with intention of giving traffic ticket—Cyclist refusing to give name—Motor-vehicle Act, R.S.B.C. 1960, c. 253, ss. 2, 58, 63, 127, 128, amended 1975 (B.C.), c. 46, ss. 121, 173(1)—Police Act, 1974 (B.C.), c. 64, ss. 17(1), 22, 30—Summary Convictions Act, R.S.B.C. 1960, c. 373, s. 101—Criminal Code, R.S.C. 1970, c. C-34, s. 450(2).
The accused went through an intersection, in the City of Victoria, against a red light on his bicycle. A peace officer employed with the Victoria City Police, who was on duty and observed the infraction, stopped the accused and, with the intention of giving him a traffic ticket, asked for identification. The accused refused to give his name and address. As a result, he was charged with unlawfully and wilfully obstructing a peace officer in the execution of his duty, contrary to s. 118 of the Criminal Code. At trial, the trial judge directed the jury that there was no evidence of obstruction of the police officer and the jury, accordingly, returned a verdict of acquittal. On appeal by the Crown, this verdict was reversed and a new trial directed. From that decision the accused appealed to this Court.
Held (Dickson and Estey JJ. dissenting): The appeal should be dismissed.
Per curiam: The appellant was not in breach of s. 58 of the British Columbia Motor‑vehicle Act when he refused to give his name and address to the constable. The argument that although a bicycle is neither a “motor-vehicle” nor a “vehicle” under the definitions in s. 2, nevertheless s. 58 of the Act applied thereto because of other sections was rejected.
Per Martland, Ritchie, Spence, Pigeon and Beetz JJ.: A bicylce is a “cycle” within the definition in s. 121 of the Motor-vehicle Act, R.S.B.C. 1960, c. 253, as amended by 1975 (B.C.), c. 46, and, therefore, by the provisions of s. 173(1) the appellant was under the same
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duties as the driver of a vehicle. The driver of a vehicle, in reference to traffic signals, is governed by the provisions of ss. 127 and 128 of the Motor-vehicle Act. Therefore, under the provisions of ss. 127 and 128, the appellant was prohibited from proceeding against the red light.
It being the duty of a municipality, under s. 17(1) of the Police Act, 1974 (B.C.), c. 64, to provide policing “for the purpose of adequately enforcing municipal by-laws, the criminal law, and the laws of the Province, and of generally maintaining law and order, within the municipality”, the constable was carrying out those duties on this occasion, as directed by s. 30 of the said statute.
The actions of the appellant were not within any of the four classes of actions set out in s. 63 of the Motor-vehicle Act so that section gave no power to the constable to arrest the appellant without a warrant. The provisions of the Criminal Code as to summary convictions are applicable in British Columbia by virtue of s. 101 of the Summary Convictions Act, R.S.B.C. 1960, c. 373. The said provisions of the Criminal Code as to summary convictions of relevance here are those contained in s. 450(2) of the Criminal Code.
In accordance with those provisions, the constable could only have arrested the appellant for the summary conviction offence of proceeding against a red light if it were necessary to establish his identity. The constable, therefore, in requesting the appellant to identify himself, was carrying out the duty of enforcing the law of the Province in this summary conviction matter by attempting to identify the accused person so that he might proceed to lay an information or take the more modern form permitted under the said Summary Convictions Act of issuing a ticket.
Accordingly, the officer was under a duty to attempt to identify this wrong-doer and the failure to identify himself by the wrong-doer did constitute an obstruction of the police officer in the performance of his duty.
Neither the provisions of the Bill of Rights nor the topic of individual freedom generally were applicable in this case. There is not even minimal interference with any freedom of a citizen who is seen committing an infraction by a police constable in the police constable simply requesting his name and address without any attempt to obtain from that person any admission of fault or any comment whatsoever.
Rice v. Connolly, [1966] 2 All E.R. 649, distinguished.
Per Dickson and Estey JJ., dissenting: Any duty to identify oneself must be found in either common law or
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statute, quite apart from the duties of the police. A person is not guilty of the offence of obstructing a police officer merely by doing nothing, unless there is a legal duty to act. Omission to act in a particular way will give rise to criminal liability only where a duty to act arises at common law or is imposed by statute.
There was no statutory duty on a cyclist caught committing a traffic infraction to divulge his name and address. While, as held by the majority, the constable, under the relevant statutory provisions, could have arrested the accused for the offence of proceeding against a red light if it were necessary to establish his identity, it was not accepted that as a consequence the accused was guilty of the further, and much more serious, offence of obstructing the constable in the performance of his duties by refusing to divulge his name and address.
There is no duty at common law to identify oneself to police, and the refusal to so identify oneself cannot constitute obstruction of the police. A person cannot “obstruct” by refusing to answer a question unless he is under a legal duty to answer. The argument that because a duty rested upon constables to investigate crime and enforce provincial laws, an “implied” or “reciprocal” duty rested upon a person, suspected of an infraction, to give his name and address, and refusal to do so amounted to such frustration as to constitute the offence of obstructing the police in the execution of their duty was rejected. Only if the police have a lawful claim to demand that a person identify himself, does the person have a corresponding duty to do so.
Regina v. Patrick (1960), 32 C.R. 338; Hatton v. Treeby, [1897] 2 Q.B. 452; Rice v. Connolly, supra; Ingleton v. Dibble, [1972] 1 All E.R. 275; Regina v. Carroll (1959), 31 C.R. 315; Regina v. Bonnycastle, [1969] 4 C.C.C. 198; Elder v. Evans, [1951] N.Z.L.R. 801, referred to.
APPEAL from a judgment of the Court of Appeal for British Columbia[1], allowing an appeal by the Crown from the accused’s acquittal on a charge of obstructing police contrary to s. 118 of the Criminal Code. Appeal dismissed, Dickson and Estey JJ. dissenting.
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B.A. Crane, Q.C., for the appellant.
R.M. Lang, for the respondent.
The judgment of Martland, Ritchie, Spence, Pigeon and Beetz JJ. was delivered by
SPENCE J.—This is an appeal from the judgment of the Court of Appeal for British Columbia pronounced on June 7, 1977.
The appellant had been acquitted after his trial before His Honour Judge Millward and a jury upon an indictment charging him:
THAT at the City of Victoria, County of Victoria, Province of British Coumbia, on the 19th day of April, 1976, he did unlawfully and wilfully obstruct a Peace Officer, to wit, Constable Sutherland, in the execution of his duty as such Peace Officer, contrary to the Criminal Code of Canada.
The appellant was acquitted by a verdict directed by the learned trial judge at the close of the Crown’s case. The facts are outlined in an admission by counsel for Moore which I quote:
If it please, your Honour, I have certain admission of facts to make to expedite matters. Firstly, I am instructed to admit that on or about the 19th of April 1976, at or about 9:10 a.m., the Accused, Richard Harvey Moore, was southbound on Government Street at Pandora and at that intersection proceeded through a light which had not yet turned green and was, in fact red when he proceeded through on his ten-speed bicycle. That is the extent of my admission of fact.
and are further dealt with by Carrothers J.A. in his reasons for judgment as follows:
Constable Sutherland, a peace officer with the Victoria City Police, in uniform and on a motorcycle, observed this infraction on the part of Moore and set about to “ticket” Moore. The constable and Moore proceeded side by side on their respective cycles, with Moore sometime taking elusive action by riding his bicycle on the sidewalk, with the constable repeatedly requesting Moore to “pull over and stop” and Moore lewdly rebuffing each such request with an obscene demand to leave him alone as he was in a hurry. I attach no importance to the particular salacious vulgarity used by Moore in rejecting the policeman’s request to stop as it has been used by the unimaginative so excessively and indiscriminately as to have lost its literal quality, but
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there is no doubt that it constituted flat refusals on the part of Moore to stop as requested by the policeman.
As a result of this occurrence, Moore was charged upon an indictment, as I have said above, but he was not charged with failing to stop at a stop light only with obstructing a peace officer in the performance of his duty. The obstruction which the Crown put forward as constituting the offence was the failure of the appellant to give his name when requested to do so by the police constable.
The relevant sections of the provincial statutes with which I shall deal hereafter are as follows: Firstly, the Motor-vehicle Act, R.S.B.C. 1960, c. 253. Section 2 contains definitions of “motor‑vehicle” and “vehicle”, as follows:
“motor-vehicle” means a vehicle, not run upon rails, that is designed to be self-propelled or propelled by electric power obtained from overhead trolley-wires;
…
“vehicle” means a device in, upon, or by which a person or thing is or may be transported or drawn upon a highway, except a device designed to be moved by human power or used exclusively upon stationary rails or tracks.
Section 58 of the said Motor-vehicle Act provides:
58. Every person driving or operating or in charge of a motor-vehicle on any highway who refuses or fails
(a) to stop his motor-vehicle when signalled or requested to stop by any police officer or constable who is in uniform or who displays his police badge conspicuously on the outside of his outer coat; or
(b) to state correctly his name and address and the name and address of the owner of the motor-vehicle when requested by any peace officer or constable to state the same
is guilty of an offence.
It will be seen plainly that a bicycle is neither a “motor-vehicle” nor a “vehicle” of any kind under the provisions of the aforesaid definition. A bicycle is plainly not self-propelled and, therefore, cannot be a “motor-vehicle” and it is a device designed to be moved by human power and, therefore, it cannot be a “vehicle” at all. Much argument was
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spent in the Court of Appeal for British Columbia and in this Court in an attempt to say that although a bicycle was neither a “motor-vehicle” nor a “vehicle” s. 58 of the Motor-vehicle Act applied thereto because of other sections with which I shall deal hereafter. As the Courts below, I am quite unable to accept any such submission and I have come to the conclusion, with respect, that the Court of Appeal for British Columbia was quite correct in holding that the appellant was not in breach of s. 58 of the Motor-vehicle Act when he refused to give his name to the constable.
I turn next to the question of whether the appellant was guilty of an offence when he proceeded into the intersection of Government Street and Pandora when facing a red traffic light. Section 121 of the Motor-vehicle Act, as amended by 1975 (B.C.), c. 46, provides as follows:
“cycle” means a device having any number of wheels that is propelled by human power and on which a person may ride
and s. 173(1) of the Motor-vehicle Act provides:
In addition to the duties imposed by this section, a person operating a cycle upon a highway has the same rights and duties as a driver of a vehicle.
The appellant Moore was riding a bicycle. A bicycle is a device having any number of wheels, to wit, two, and self-propelled by human power and a person may ride on it, as Moore was riding. Therefore, it is a “cycle” within the definition and, therefore, by the provisions of s. 173(1) Moore was under the same duties as the driver of a vehicle. The driver of a vehicle, in reference to traffic signals, is governed by the provisions of ss. 127 and 128 of the Motor‑vehicle Act, which provide, in part:
127. Except where otherwise directed by a peace officer, every driver of a vehicle and every pedestrian shall obey the instructions of an applicable traffic-control device.
128. (6) When a red light alone is exhibited at an intersection by a traffic-control signal,
(a) the driver of a vehicle approaching the intersection and facing the red light shall cause the vehicle to stop before entering the marked crosswalk on the near
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side of the intersection, or if there is no such marked crosswalk, then before entering the intersection, and, subject to the provisions of clause (b), shall not cause the vehicle to proceed until a traffic-control signal instructs him that he is permitted to do so;
Therefore, the appellant Moore was, by the provisions of the Motor-vehicle Act, prohibited from proceeding against this red light.
Constable James Lawrence Sutherland was a peace officer employed with the Victoria City Police. Sections 17(1), 22 and 30 of the Police Act, 1974 (B.C.), c. 64, provide:
17. (1) Subject to subsection (3), it is the duty of every municipality having a population of more than five thousand persons to provide, in accordance with this Act and the regulations, policing for the purposes of adequately enforcing municipal by-laws, the criminal law, and the laws of the Province, and of generally maintaining law and order, within the municipality.
…
22. (1) A board may establish a municipal police force consisting of a chief constable and such other constables and employees as the board considers necessary for the purpose of providing policing within the municipality.
(2) The duties and functions of a municipal force are, under the direction of the board,
(a) to enforce, within the municipality, municipal by-laws, the criminal law, and the laws of the Province; and
(b) to generally maintain law and order within the municipality.
30. (1) Subject to subsection (2) and section 24(2), a municipal constable and a special municipal constable has, subject to the direction of the board, jurisdiction within the municipality of the board that appointed him to exercise and carry out the powers, duties, privileges, and responsibilities that a police constable or peace officer is entitled or required to exercise or carry out at law or under any Act.
It being the duty of a municipality to provide policing “for the purpose of adequately enforcing municipal by-laws, the criminal law, and the laws of the Province, and of generally maintaining law and order, within the municipality”, the constable
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was carrying out those duties on this occasion, as directed by s. 30 of the said statute.
Section 63 of the Motor-vehicle Act provides:
63. Every officer or constable of the Royal Canadian Mounted Police, or of the police force of any municipality, may arrest without warrant
(a) any person driving a motor-vehicle upon which no number-plate issued by the Superintendent under this Act is displayed whom the officer or constable finds committing any act in violation of any of the provisions of this Act or of the regulations;
(b) any person whom the officer or constable finds committing any act in violation of section 138;
(c) any person whose driver’s licence is under suspension or has been cancelled, or whose right to obtain a licence is suspended under the provisions of this Act, and whom the officer or constable finds driving a motor-vehicle on any highway;
(d) any person driving a motor-vehicle who is not insured as required by this Act or who does not hold a valid and subsisting motor-vehicle liability insurance card or financial responsibility card,
and may detain the person arrested until he can be brought before a Justice to be dealt with according to law.
The actions of Moore were not within any of those four classes of actions so that s. 63 of the Motor-vehicle Act gave no power to Constable Sutherland to arrest Moore without a warrant. The provisions of the Criminal Code as to summary convictions are applicable in the Province of British Columbia by virtue of s. 101 of the Summary Convictions Act, R.S.B.C. 1960, c. 373, which provides:
101. Where, in any proceeding, matter, or thing to which this Act applies, express provisions has not been made in this Act or only partial provision has been made, the provisions of the Criminal Code relating to offences punishable upon summary conviction apply, mutatis mutandis, as if the provisions thereof were enacted in and formed part of this Act.
The said provisions of the Criminal Code as to summary convictions of relevance here are those contained in s. 450(2) of the Criminal Code which provides:
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450. (2) A peace officer shall not arrest a person without warrant for
(a) an indictable offence mentioned in section 483,
(b) an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction, or
(c) an offence punishable on summary conviction,
in any case where
(d) he has reasonable and probable grounds to believe that the public interest, having regard to all the circumstances including the need to
(i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, or
(iii) prevent the continuation or repetition of the offence or the commission of another offence, may be satisfied without so arresting the person, and
(e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend in court in order to be dealt with according to law.
In accordance with those provisions, Constable Sutherland could only have arrested Moore for the summary conviction offence of proceeding against a red light if it were necessary to establish his identity. The constable, therefore, in requesting the appellant Moore to identify himself, was carrying out the duty of enforcing the law of the Province in this summary conviction matter by attempting to identify the accused person so that he might proceed to lay an information or take the more modern form permitted under the said Summary Convictions Act of British Columbia of issuing a ticket.
I am of the opinion that the Court of Appeal of British Columbia was correct in finding that when the appellant Moore refused to accede to the constable’s request for his identification he was obstructing that constable in the performance of his duties. As did the members of the Court of Appeal, I am confining my consideration of this matter to the actual circumstances which occurred, that is, that a constable on duty observed the appellant in the act of committing an infrac-
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tion of the statute and that that constable had no power to arrest the accused for such offence unless and until he had attempted to identify the accused so that he might be the subject of summary conviction proceedings.
I also agree, with respect, with the learned members of the Court of Appeal that this conclusion in no way opposes or ignores the judgment of the Queen’s Bench in Rice v. Connolly[2]. In that case, the appellant was seen by police officers behaving suspiciously. On being questioned, he refused to say where he was going or where he had come from. He refused to give his full name and address, although he did give a name and the name of a road which were not untrue. He refused to accompany the police to a police box for identification purposes saying, “if you want me, you will have to arrest me”. He was acquitted by the Court of Appeal upon a charge of obstructing the police. It is paramount to note that the appellant there had not committed any offence in the presence or view of a police officer. He had simply been acting in what the constable regarded as a suspicious manner. I view the situation very differently when a person is actually seen by the constable committing an offence.
Therefore, for the reasons which I have outlined above, I am of the opinion that the officer was under a duty to attempt to identify the wrong-doer and the failure to identify himself by the wrongdoer did constitute an obstruction of the police officer in the performance of his duties.
I add that in coming to this conclusion I have not forgotten the provisions of the Bill of Rights nor the topic of individual freedom generally but I am of the opinion that there is not even minimal interference with any freedom of a citizen who is seen committing an infraction by a police constable in the police constable simply requesting his name and address without any attempt to obtain from that person any admission of fault or any comment whatsoever. On the other hand, the refusal of a citizen to identify himself under such circumstances causes a major inconvenience and obstruction to the police in carrying out their proper duties. So that if anyone were engaged in
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any balancing of interest, there could be no doubt that the conclusion to which I have come would be that supported by the overwhelming public interest.
I would dismiss the appeal.
The judgment of Dickson and Estey JJ. was delivered by
DICKSON J. (dissenting)—These proceedings originated in a minor traffic infraction in the City of Victoria, British Columbia. The issue raised, however, is an important one having to do with police power of interrogation and the right of citizens to remain silent. That right has always been regarded as absolute and as being firmly anchored to two fundamental common law principles: the presumption of innocence and the privilege against self-incrimination. Explicit statutory provisions may impose a duty upon a person to identify himself to police officers in certain situations, but in this appeal the Court is being asked to impose such a duty in the absence of any statutory underpinning whatever. In more stark terms, the question is whether a person committing a petty traffic offence exposes himself to a criminal charge of “obstructing” and a maximum penalty of two years’ imprisonment, if he refuses to give his name and address to a police officer.
The appellant went through an intersection against a red light on his bicycle. A motorcycle policeman, observing the infraction, stopped the appellant and, with the intention of giving him a traffic ticket, asked for identification. The appellant refused to give his name and address. As a result, he was charged with unlawfully and wilfully obstructing a peace officer in the execution of his duty. The point is whether the failure of the accused to identify himself when requested to do so by the constable was evidence to go to the jury of the offence of wilfully obstructing a police officer in the execution of his duty, contrary to s. 118 of the Criminal Code.
The General Principle
Any duty to identify oneself must be found in either common law or statute, quite apart from the
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duties of the police. A person is not guilty of the offence of obstructing a police officer merely by doing nothing, unless there is a legal duty to act. Omission to act in a particular way will give rise to criminal liability only where a duty to act arises at common law or is imposed by statute: 11 Hals. (4th ed.) p. 15. This idea was expressed by Mr. Justice Schroeder in Regina v. Patrick[3], at p. 343:
Counsel for the appellant submitted that to sustain a charge of obstructing a peace officer in the execution of his duty, it was necessary for the Crown to prove either a positive act of interference, or a refusal to perform some act required to be done by a statute. …It not having been shown that the appellant was under any duty or obligation to communicate to the peace officer the information required of him under the provisions of either s. 221(2) of the Criminal Code, or s. 110(1) of The Highway Traffic Act, the Crown has failed to bring home to the appellant the commission of a criminal offence. This is sufficient to dispose of the appeal.
The point under discussion is dealt with at some length by Dr. Glanville Williams in an article entitled “Demanding Name and Address” appearing in (1950), 66 Law Quarterly Review, at p. 465. The general principle of the common law is stated:
…neither a private person nor a constable has any effective power to demand the name and address of a person on the ground that he has committed an offence or is under a civil liability.
Dr. Williams refers to the case of Hatton v. Treeby[4] as an illustration of this principle. The head-note reads:
A constable who sees a person riding a bicycle at night without a proper light, contrary to the provisions of s. 85 of the Local Government Act, has no power to stop him for the purpose of ascertaining his name and address.
The constable in that case called on the rider to stop, in order to ascertain his name and address. On the rider failing to do so, the constable caught hold of the handlebar of the bicycle, whereby the
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rider was thrown to the ground. The rider summoned the constable for assault. The justices found that the constable did not know the name or address of the rider, and could not have ascertained his name or address in any other way than by stopping him, and that in so stopping him he used no more force than was necessary. They were of opinion that, as the rider was committing an offence punishable on summary conviction within view of the constable, the latter was justified in stopping him as he did in order to prevent a continuance of the offence and to ascertain his name and address. They accordingly dismissed the complaint, subject to a case for the opinion of the Court. The appellate Court held that the constable had no power to stop the bicycle rider at common law and the only question was whether he had statutory authority to do so. It was found that there was no statutory authority for the constable acting as he did. In the result the constable was convicted of assault.
No Statutory Duty
It appears to me impossible to extract from the statutory provisions of the British Columbia Motor-vehicle Act, R.S.B.C. 1960, c. 253, a duty on a cyclist, caught riding through a red light, to identify himself. Section 58 of the Act specifically places a duty on a person driving a “motor-vehicle” to state correctly his name and address when requested to do so by a peace officer. This in itself appears to recognize the absence of any such duty where there is no statutory requirement. Section 58 does not apply to persons operating either “vehicles” (as defined in s. 2) or bicycles, and there is no other provision in the Motor-vehicle Act, or any other relevant statute, placing such a duty on a cyclist caught committing a summary conviction offence under the Motor-vehicle Act.
I have had the advantage of reading the reasons of Mr. Justice Spence and I am in full agreement, for the reasons stated by him and by the Court of Appeal of British Columbia, that the accused was not in breach of s. 58 of the Motor-vehicle Act, when he refused to give his name and address to the constable.
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At trial, the Crown took the position that the obligation on the part of the accused to respond to the police officer’s questions lay within the confines of the Motor-vehicle Act. That argument was pursued unsuccessfully in the British Columbia Court of Appeal and in this Court. There is simply no statutory duty on a cyclist committing a traffic infraction to divulge his name and address.
Power of Arrest
But law enforcement, for that reason, does not grind to a halt. There is no possibility of frustrating the enforcement of provincial law by refusing to identify oneself since the police have the clear power of arrest in these circumstances for the primary offence, to establish the identity of the accused or to assure his attendance in court. It is beyond dispute that the accused was prohibited by the provisions of the Motor-vehicle Act from proceeding against the red light, an act which he has admitted. Constable Sutherland was carrying out his duties under the Police Act, 1974 (B.C.), c. 64, when he stopped the accused and asked his name and address. Although Constable Sutherland had no power under s. 63 of the Motor-vehicle Act to arrest the accused without a warrant, additional powers of arrest contained in s. 450(2) of the Criminal Code were available. These provisions of the Code are made applicable by virtue of s. 101 of the Summary Convictions Act, R.S.B.C. 1960, c. 373. The most important result follows, as Mr. Justice Spence concludes, that Constable Sutherland could have arrested the accused for the offence of proceeding against a red light if it were necessary to establish his identity. However, with great respect, I cannot agree that, as a consequence, the accused was guilty of the further, and much more serious, offence of obstructing the constable in the performance of his duties by refusing to divulge his name and address.
No Common Law Duty
There is no duty at common law to identify oneself to police. As was stated by Lord Parker in Rice v. Connolly[5], at p. 652:
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It seems to me quite clear that though every citizen has a moral duty or, if you like, a social duty to assist the police, there is no legal duty to that effect, and indeed the whole basis of the common law is the right of the individual to refuse to answer questions put to him by persons in authority, and to refuse to accompany those in authority to any particular place, short, of course, of arrest.
The case stands for the proposition that refusal to identify oneself to the police could not constitute obstruction of the police. The Court distinguished a refusal to answer, which is legal, from a “cock and bull” story to the police, which might constitute obstruction. No other distinction was made. Lord Parker said, p. 652:
In my judgment there is all the difference in the world between deliberately telling a false story, something which on no view a citizen has a right to do, and silence or refusing to answer, something which he has every right to do.
In Ingleton v. Dibble[6], a distinction was drawn between a refusal to act, on the one hand, and the doing of some positive act, on the other. Bridge J. (with whom Lord Widgery C.J. and Ashworth J. concurred) said, at p. 279:
In a case, as in Rice v. Connolly, where the obstruction alleged consists of a refusal by the defendant to do the act which the police constable has asked him to do—to give information, it might be, or to give assistance to the police constable—one can see readily the soundness of the principle, if I may say so with respect, applied in Rice v. Connolly, that such a refusal to act cannot amount to a wilful obstruction under s. 51 unless the law imposes on the person concerned some obligation in the circumstances to act in the manner requested by the police officer.
The legal position in England and Wales has been described in these terms in Police Powers in England and Wales (1975), by Leigh, at p. 195:
And in general it still remains the rule that a citizen has a right to be as unco-operative as he pleases, provided that he does not impede the course of justice by knowingly giving false information to the police.
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In the Ontario case of Regina v. Carroll[7], the facts, as disclosed in the headnote, were these. The accused was charged with unlawfully and wilfully obstructing a police constable while engaged in his duties as a peace officer, contrary to s. 100(a) of the Criminal Code, 1953-54 (Can.), c. 51. The accused, in company with three other men, was proceeding along a highway at an early hour in the morning. The constable heard them whistling and yelling and he advised them to be quiet and go home. Three of the party followed his advice. The accused remained. The constable asked him to produce his identification but the accused refused to do so and proceeded on his way. The constable caught up to him and again asked accused to identify himself. An argument and struggle followed and the accused was arrested. He was later charged with obstructing a police officer and was convicted. He appealed. The conviction was quashed. It was held that under the circumstances, the accused was not under any duty to identify himself as requested.
The Crown conceded in this Court that no such obligation was to be found in the common law. From whence then comes such a duty? Where does one find the legal compulsion to answer? A person cannot “obstruct” by refusing to answer a question unless he is under a legal duty to answer.
An “Implied” or “Reciprocal” Duty?
It was strongly urged in argument before us that because a duty rested upon constables to investigate crime and enforce provincial laws, an “implied” or “reciprocal” duty rested upon a person, suspected of an infraction, to give his name and address, and refusal to do so amounted to such frustration as to constitute the offence of obstructing the police in the execution of their duty.
The Crown perforce had to fall back upon the proposition that because there was duty upon the police officer to inquire before exercising the power to arrest under s.450 of the Code, there was a reciprocal duty upon the alleged culprit to respond. The alleged duty, as I understand the
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argument, is to be limited to divulging name and address, when caught in the commission of an offence and prior to arrest.
The notion of “found committing” or “within his view” is not unknown. The concept has been resorted to on occasion to give a power of arrest where the offence is committed in the presence of the arrester. But even here the application of the concept is not without problems. In an article “Arrest: a General View”, [1966] Crim. L.R. 639, at p. 645, the following appears:
The difficulty with this formula is two fold—first, there has been no consistency in the judicial approach to the interpretation of the section, courts holding variously that reasonable suspicion that an offence has been committed is sufficient, or that in fact the arrested person must be guilty to justify the arrest. The second problem is that to confine the power in this way deprives the officer of a power in many situations where it is necessary to arrest, for no apparent reason. Thus a person who, having caused an accident by his dangerous driving, refuses to stop, cannot be arrested unless the accident has actually been witnessed by the officer. It seems equally absurd that a person who throws a brick through a shop window can be arrested if the officer sees him do it, but not if the officer is around the corner and hearing the crash of the glass, sees the offender, perhaps the only possible culprit, or if the offence is witnessed by a private person who calls the police.
Although the idea of “within his view” has been applied to arrests, its application is relation to a duty to disclose identity is novel and bizarre. It runs counter to all authority. The right to remain silent, enunciated in Rice v. Connolly, does not admit of such erosion. There is nothing in the language nor in the facts of that case to suggest that the broad principle ceased to have application in the event of a police officer witnessing an infraction.
A limited obligation to respond, effective only when the policeman is an eyewitness, introduces into the criminal law, which should rest upon
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“broad, plain, intelligible” principles a qualification unsound in principle and unworkable in practice.
The fact that a police officer has a duty to identify a person suspected of, or seen committing, an offence says nothing about whether the person has the duty to identify himself on being asked. Each duty is entirely independent. Only if the police have a lawful claim to demand that a person identify himself, does the person have a corresponding duty to do so. As McFarlane J.A. said in R. v. Bonnycastle[8], at p. 201, the duty of a peace officer to make inquiries must not be confused with the right of a person to refuse to answer questions in circumstances where the law does not require him to answer.
The Legislature deliberately imposed a duty to identify upon the drivers of motor vehicles—perhaps because of their more lethal nature—but chose not to impose such duty on the drivers of other vehicles such as bicycles. The Legislature must be taken to have intended to relieve bicycle riders of the duty. To require the riders of bicycles to give their names and addresses would be tantamount to amending the Motor-vehicle Act. It would also appear that Parliament, in providing in ss. 450(2) and 452(1)(f)(i) of the Criminal Code for arrest and detention for the purpose of establishing identity, did not recognize a duty to identify oneself existing apart from statute, breach of which would expose the offender to a charge of “obstructing”. Examples from English legislation of statutory obligation to disclose identity to police constables, unnecessary if the obligation existed otherwise, are to be found in the Protection of Birds Act, 1954, 2 & 3 Eliz. 2, c. 30, s. 12(1)(a); Dangerous Drugs Act, 1965, 13 & 14 Eliz. 2, c. 15, s. 15; Representation of the People Act, 1949, 12 & 13 Geo. 6, c. 68, s. 84(3); Road Traffic Act, 1960, 8 & 9 Eliz. 2, c. 16, s. 228; Prevention of Crime Act, 1953, 1 & 2 Eliz. 2, c. 14, s. 1(3).
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The criminal law is no place within which to introduce implied duties, unknown to statute and common law, breach of which subjects a person to arrest and imprisonment.
The “reciprocal duty” argument advanced by the Crown in this case was considered by Dr. Glanville Williams in the article to which I have referred. Dr. Williams effectively disposed of the argument in words which I should like to adopt, p. 473:
The question may be asked whether the power of the police to demand name and address is in effect generalized by the statutes creating the offence of obstructing the police in the execution of their duty—so that refusal to comply with the demand amounts to an obstruction. At first sight it would seem that a good case could be made out for an affirmative answer. Although it is not the duty of the police to prosecute every crime, it can be said to be their duty to make inquiries into crimes with a view to prosecution. The courts have held that interference with the police when they are collecting evidence of an offence constitutes an obstruction. Moreover, it has been decided that an obstruction may take place merely by a nonfeasance, where there is a refusal to comply with the lawful orders of the police. Notwithstanding these authorities, it is submitted that the refusal by an offender to give his name and address does not constitute an obstruction, for at least two reasons. First, if it were an obstruction, all the statutes making it an offence to refuse to give name and address in specific situations would have been unnecessary. When, for example, Parliament passed the Public Order Act in 1936, it must have been thought that the police had no general power to demand name and address. Secondly, it is a fundamental principle of English law that an accused person cannot be interrogated or at least cannot be forced to answer questions under a legal penalty if he refuses; this principle is absolute, and does not admit of exception even for a demand of name and address, unless a statute has expressly created an exception. To say that the police have a duty to gather evidence, and therefore that a criminal’s refusal to give his name and address is an obstruction, is far too wide, because the same premise would yield the conclusion that a criminal’s refusal to confess to the crime is an obstruction.
The views expressed by Dr. Williams were adopted in the New Zealand case of Elder v. Evans[9].
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I would allow the appeal, set aside the judgment of the Court of Appeal and restore the judgment at trial.
Appeal dismissed, DICKSON and ESTEY JJ. dissenting.
Solicitors for the appellant: Gowling & Henderson, Ottawa.
Solicitor for the respondent: The Attorney General of British Columbia.