IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110802

Docket: X072638

Registry:
New Westminster

Between:

Aresh Virani

Appellant

And

Her Majesty the
Queen

Respondent

Before:
The Honourable Mr. Justice N. Brown

On appeal from
decision of Provincial Court Judge of

February
5, 2010 (2010 BCPC 0014)

Reasons for Judgment

Issues and facts on
appeal

[1]            
The accused was convicted in British Columbia Provincial Court on
February 5, 2010, of wilfully obstructing a peace officer, Constable Beare, in
the execution of that peace officer’s duty, contrary to s. 129(a) of the Criminal
Code, R.S.C. 1985, Chap. C-46.

[2]            
The basic facts are not in issue.

a)       January 1, 2009 at about
1:25 PM, Constables Beare and Roy were on duty as peace officers for the
Greater Vancouver Transportation Authority Police Service [Transit Police]. For
the purposes of the Offence Act, R.S.B.C. 1996, c. 338, and the Criminal
Code, transit police officers are peace officers.

b)       The officers boarded a
SkyTrain car leaving New Westminster station. They intended to check for proof
of payment of fares.

c)       Constable Roy asked Mr.
Virani to produce proof of fare. He ignored him. After the constables the
checked other passengers in the car, Constable Roy returned to Mr. Virani and
again asked him to produce "his ticket." Mr. Virani replied, "I
am a child of the world," and asked to know which law said he had to
produce a fare, adding that he had not broken any law. Constable Roy told him
he would have to leave the train at the next station if he did not provide a
valid fare.

d)       When the train arrived at
the next station, Sapperton, Constable Beare stood by the open car door and
held it as Constable Roy ordered Mr. Virani to leave the train. Mr. Virani
replied that he was not going to get off. Cst. Roy cautioned Mr. Virani if he
did not get off, he could be arrested for obstruction. Constable Roy repeated
his order to Mr. Virani that he had to leave the train. He took hold of Mr.
Virani by his right arm. At that point, Mr. Virani shouted, "you just
assaulted me” and added, "I will not get off because I did not break any
law and I do not know under what authority you can tell me to leave the
train." The car door began to chime. The chime sounded because if the
train did not proceed within 10 seconds, the whole system would shut down. This
would require a restart of the train. The trial judge found that as this
“particular car contained a lot of passengers, including some quite young and
others quite elderly, the constables did not want to fight with Mr. Virani
inside the car.” They decided to proceed to the next station and deal with
matters there. Cst. Beare let the door close and the train proceeded to the
next station.

e)       The trial judge found Mr.
Virani had deliberately tried to “exacerbate the situation by shouting out to
the passengers that he been assaulted” (para 24).

f)        The trip to the next station,
Braid Street, took 1.15 minutes. The constables stayed with the appellant. They
repeated their explanations of their authority. He continued to voice his intent
not to comply.

g)       When the train arrived at
Braid Street Station, the constables each took one of the appellant’s arms and
forcibly escorted him from the train. He was told he was under arrest for
obstructing a peace officer. The appellant did not significantly resist when
the officers applied physical force to remove him from the train.

h)       Once off the train,
Constables Roy and Beare placed Mr. Virani against an adjoining wall and tried
to handcuff him. Unable to do so, Constable Beare called for backup and, until
it arrived, the constables held Mr. Virani against the wall. During this time,
Mr. Virani was briefly searched. The constables seized a kitchen knife they
found tucked into the back waistband of his pants. After backup arrived, Mr.
Virani was handcuffed. A further search located Mr. Virani’s wallet and
identification inside.

i)        Constable Roy issued a
violation ticket to Mr. Virani for failing to provide proof of payment of fare,
a Promise to Appear on the charge of obstructing a peace officer pursuant to
section 129 of the Criminal Code, and a 24-hour ban from SkyTrain property, pursuant
to s. 6(1)(c) of the Greater Vancouver Transit Conduct and Safety Regulation,
B.C. Reg. 87/99 [Transit Conduct Regulations].

j)        Given conflicts she found
between the evidence of the two constables, the trial judge could not find the
constables had asked Mr. Virani to identify himself while still on the train.

k)       As noted in paragraph 25
of the trial judge’s reasons, she found that throughout all the appellant’s
dealings with the officers, he was actively uncooperative.

Decision appealed

[3]            
After analyzing the law on obstruction, the trial judge went on to find:

[24]      In this case, Mr. Virani refused to comply with the
requests of the two constables to show proof of payment of fare, and then
adamantly refused to leave the car of the Skytrain when ordered to do so,
challenging the authority of the officers repeatedly despite being advised on
several occasions of the requirements of the Regulation. In addition, I
find that he deliberately tried to exacerbate the situation by shouting out to
the other passengers that he had been assaulted. I am left in no doubt that all
of these actions were directed at hindering or frustrating the officers’
efforts to have him comply with the Transit Conduct and Safety Regulation.

Analysis:

[25]      Throughout all of Mr. Virani’s dealings with the
two constables, I find he was actively uncooperative. He refused to acknowledge
their authority to perform their duties to inspect for proof of payment of
fare; he refused to leave the train when directed to do so; he tried to disrupt
the peace of the other occupants of the train by shouting that he had been
assaulted when he had not been; he resisted the police efforts to handcuff him
after the knife had been found. Had he simply left the car when ordered to and
as required to, at Sapperton Station, and had he identified himself upon
request, he undoubtedly would have just been given a violation ticket and been
removed from the Skytrain property without any further difficulty. His actions,
and his actions alone, resulted in the confrontation outside the train on the
platform.

[26]      Counsel has argued that he should have simply been
issued a violation ticket while still on the Skytrain for not paying for a
fare, and been allowed to go on his way – perhaps still on the Skytrain. As
such, he therefore could not have been forced to leave the car. By remaining
in the car – a fare-paid zone – without proof of payment of fare, Mr. Virani
was committing a continuing offence. It would be an absurd result that he
should have been left to continue his journey to his destination in this
situation, unless he left the train and purchased a fare so as to be able to
lawfully re-enter the train and ride it further.

[27]      While it is true that the Greater Vancouver
Transit Conduct and Safety Regulation does not expressly authorize the
removal of a person who fails to comply with the rules, I am satisfied that
that authority is implicit in the duty of the police officers to “enforce…the
laws of British Columbia” and to “generally maintain…order in the area” as
set out above.

[28]      I further accept that Cst. Roy and Cst. Beare acted
appropriately in removing him from the train at the time they did, so as to
avoid a fight or other physical confrontation within the train itself with
numerous people around. This is even more important in retrospect when
considering that, throughout these dealings, Mr. Virani was in possession of a
knife tucked inside his clothing and close at hand. While the constables did
not know of the presence of the knife while inside the car, as trained police
officers they must always be vigilant for the presence of weapons both for
their own safety and for the safety of those around them.

Conclusion:

[29]      For the reasons set out above, I find that, as
police officers, Csts. Beare and Roy were authorized to remove Mr. Virani from
the Skytrain car, by force if necessary, and that in doing so, they were acting
in execution of their duty. I further find that Mr. Virani’s actions inside
the train constituted obstruction within the meaning of section 129 of the
Criminal Code, and that given his refusal to leave the train when ordered to do
so, he was then engaged in a continuing offence and subject to arrest without
warrant. As a result, I find him guilty of the offence as charged.

[Emphasis
added]

[4]            
The resistance elements of s. 129 of the Code were apparently not
in play at the trial.

Issues on Appeal

a)       Do the
actions of the appellant, arrested for obstruction pursuant to s. 129 of the
Criminal Code after his refusal to leave a SkyTrain upon request of a peace
officer, amount to de facto obstruction under s. 129?

b)       Did the
trial judge err in determining the appellant’s refusal to leave the train upon
request of the constable constituted both the provincial offence of refusing to
comply with the request to leave the property and a continuation of that
offence?

c)       Given
the facts of the case, in law was it open to the trial judge to convict the
appellant of criminal obstruction?

Relevant statutes

[5]            
The relevant provincial legislation and Criminal Code provisions are:

A.    Criminal Code
Section 129: Obstructing a Peace Officer

Section 129 of the Criminal Code states:

129. Every one who

(a) 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 an officer,

 is guilty of…

(e) an offence punishable on
summary conviction.

B.    Offence Act: Section 133

133 If, in any proceeding,
matter or thing to which this Act applies, express provision has not been made
in this Act or only partial provision has been made, the provisions of the Criminal
Code relating to offences punishable on summary conviction apply, with the
necessary changes and so far as applicable, as if its provisions were enacted
in and formed part of this Act.

C.    Criminal Code
Section 25(1)

25. (1) Every one who is required or authorized by law
to do anything in the administration or enforcement of the law

(b) as a peace officer
or public officer,

is, if he acts on reasonable grounds, justified in doing what
he is required or authorized to do and in using as much force as is necessary
for that purpose.

D.    Criminal Code
Section 495

(2) A peace officer shall not arrest a person without
warrant for

(a) an indictable offence
mentioned in section 553,

(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 believes on reasonable
grounds 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 court in order to be dealt with according to law.

E.    The South Coast British Columbia Transportation
Authority Act Greater Vancouver Transit Conduct and Safety Regulation B.C. Reg.
87/99

Definitions

1.         In this regulation:

"Act" means the South Coast British Columbia
Transportation Authority Act;

"fare paid zone" means any transit property to
which access is restricted by sign to those persons who possess proof of
payment;

"proof of payment" means a valid transfer, valid
fare receipt or other valid evidence of payment established under the tariff;

"tariff" means the applicable fare structure from
time to time established by the authority;

"transit employee" means an employee of

(a) the authority,

(b) a subsidiary of the authority,

(c) an agent or contractor of the
authority, or

(d) an agent or contractor of a
subsidiary of the authority;

"transit property" means property that is used to
provide transit services and that is owned or controlled by

(a) the authority,

(b) a subsidiary of the authority,

(c) an agent or contractor of the
authority, or

(d) an agent or contractor of a
subsidiary of the authority;

"transit vehicle" means any vehicle operated by or
on behalf of the authority or one of its subsidiaries for the transportation of
passengers, goods or both.

Application

2.         Sections 3, 4 and 8 (1) to (3) (h) do not apply to
transit employees acting in the course of duty.

Requirement to pay fare

3.         A person boarding a transit vehicle that is not a
fare paid zone must

(a)        in the presence of a
transit employee pay the fare required by the tariff, or

(b)        present proof of payment
to a transit employee.

Fare paid zones

4 (1)     A person entering a fare paid zone must

(a)        pay the fare required by
the tariff and obtain proof of payment, or

(b)        possess proof of
payment.

(2)        A person must, while in a fare paid zone, retain
the proof of payment and produce it for inspection at the request of a transit
employee.

Proof of payment not transferable

5 (1)     Except as may be permitted by the tariff, a proof
of payment is not transferable.

(2)        A person must not use a proof of payment unless it
was purchased for his or her use at the fare required of him or her by the
tariff.

(3)        Except as permitted by the tariff, a person who is
not a transit employee must not sell, trade, barter or otherwise transfer or
attempt to sell, trade, barter or otherwise transfer any proof of payment to
any person without the prior authorization of the authority.

Requirement to obey signs and rules

6 (1)     If the authority or one of its subsidiaries makes
rules, or posts order or convenience of persons while they are on, entering or
leaving a transit vehicle or other transit property, a transit employee may require,
as a condition of allowing any person to enter or remain on the transit vehicle
or transit property, that the person obey the signs or comply with the rules.

(2)        If a person does not obey a sign or comply with
the rules when required to do so by a transit employee acting in accordance
with subsection (1), any transit employee may do any of the following:

(a) refuse that person permission
to enter the transit vehicle or other transit property;

(b) order that person to leave the
transit vehicle or other transit property;

(c) order that person not to enter
any transit property or not to enter specified transit properties for a period
not exceeding 24 hours from the time the order was made.

Restrictions on access to transit property

7          A person must not, unless authorized to do so,

(a) park or operate a vehicle on
transit property,

(b) enter or remain on or in
tracks, docks, bridges, guideways, tunnels, roads or rights of way that are
used or intended for use only by transit vehicles, or

(c) go on or through any transit
property other than a portion of it provided by the authority or one of its
subsidiaries as public access to a transit vehicle.

Public safety and protection of property

8 (1)     …

(2)        …

(a) …

(b) …

(3) A person must not

…

(c) prevent or interfere with
the operation of a transit vehicle,

(e) impede a transit employee in
the operation of a transit vehicle,

(f) prevent or delay the closing of
a transit vehicle door,

…

Offence

9 (1)     A person who contravenes section 3, 4 (1) or (2), 5
(2) or 7 (a) or (c) or 8 (2) commits an offence and is liable on conviction to
a fine not exceeding $150.

(2)        If permission to enter a transit vehicle or other
transit property is refused under section 6 (2) (a), a person who enters the
transit vehicle or other property despite the refusal commits an offence and is
liable on conviction to a fine not exceeding $150.

(3)        A person who disobeys an order under section 6 (2)
(b) to leave a transit vehicle or other transit property commits an offence and
is liable on conviction to a fine not exceeding $150.

(3.1)     If an order to not enter any transit property or to
not enter specified transit properties for a period not exceeding 24 hours was
made under section 6 (2) (c), a person who enters any transit property or specified
transit properties despite the order commits an offence and is liable on
conviction to a fine not exceeding $150.

(4)        A person who
contravenes section 5 (3), 7 (b) or 8 (1) or (3) (a), (b), (c), (d), (e), (f),
(g) or (h) commits an offence and is liable on conviction to a fine not
exceeding $500.

Overview of parties’
positions

[6]            
The appellant relies on R. v. Sharma, [1993] 1 S.C.R. 650 [Sharma],
and other like-minded authorities. He says they stand for the principle the
court cannot convict a person of Criminal Code obstruction merely
because they have infringed a provincial or municipal legislation and have
failed to stop doing so after a peace officer has told them to do so. The
appellant, Mr. Virani, says the facts in Sharma and other cases he cited
correspond to his own, and these facts cannot uphold a conviction for
obstruction.

[7]            
Facts Mr. Virani says his case shares in common with these cases include:

1)       absence of a duty to obey an officer’s order the common law or a
statute say has to be obeyed

2)       specific penalties ordained for the same conduct that led to the
obstruction charge and

3)       a mere refusal by the offender to obey; in Mr. Virani’s case, by
his refusing to produce proof of fare and to get off the train as ordered.

[8]            
Mr. Virani does not dispute that transit officers have authority to
arrest him and to remove him forcibly him from the train in conjunction with
their having to find out his identity. They could also do so if he refused to
get off the train after an officer ordered him to. When the officers did forcibly
remove him from the train, however, he says he did not obstruct officers in their
performance of that duty in any notable way.

[9]            
Briefly, the respondent Crown [the respondent] says the officers’ orders
to Mr. Virani to get off the train link directly to their attempts to enforce
the fare rules. And, in their performance of that duty, the officers had
authority to order Mr. Virani off the train. The respondent further argues Mr.
Virani’s conduct amounted to more than a mere refusal; and it affected the
officers in performing their duty. Therefore, the Crown says it had proved
criminal obstruction. The respondent further says Mr. Virani’s resisting of the
officers’ efforts to remove him from the train displays further evidence of
obstruction. Finally, the respondent says Sharma does not prevent a
peace office from arresting an offender under s. 495 of the Code to
prevent them from continuing to commit the offence.

[10]        
Counsel for Mr. Virani adverted to a worrying prospect that every time a
citizen disobeyed a peace officer’s order to stop their infringing of a
provincial law or city bylaw, they would automatically expose themselves to an
obstruction charge. He referred to this as “Criminal Code creep.” He says
that before police resort to the Code, they have to exhaust enforcement
measures contained in the law the offender is breaking. Otherwise, this would lead
to unwarranted expansion of police powers and a misuse of the intended purposes
of s. 129, something the courts should firmly resist.

[11]        
In response to this, the respondent pointed out that after Mr. Virani
entered the paid fare zone of SkyTrain, he had stepped not onto an ordinary
sidewalk, for example, but onto the “highly regulated soil” of transit services.
He referred to factual and legal circumstances that distinguish this case from Sharma
and other like decisions. He pointed out the trial judge made specific findings
of fact. Unless they are clearly wrong, unsupported by evidence, or otherwise
unreasonable, they are entitled to deference on appellate review: R. v.
Clark, [2005] 1 S.C.R. 6 [Clark], para. 9. The respondent says there
was enough evidence, given the judge’s findings, to support Mr. Virani’s
conviction.

[12]        
The respondent further says the officers were lawfully engaged in
enforcing the regulation’s fare provisions. They authorized them to order Mr. Virani
off the train, and Mr. Virani was required to obey the order. The respondent
argues, in sum, “the appellant’s conviction was lawful because of his conduct and
the arrest powers legally available to the transit officers.” The respondent points
out, as well, I need not agree with all the trial judge’s reasoning to uphold
Mr. Virani’s conviction; and that on the facts found by the trial judge, and on
the law, rightly considered, her verdict was correct and I ought to confirm it.

[13]        
Counsel for Mr. Virani said arguments at trial became unnecessarily
complicated. He urges the case needed only straightforward application of Sharma.
This submission is attractive, but Mr. Virani was a more active agent than
Sharma and he had had a duty under the Transit Conduct Regulations to obey the
officers’ orders to get off the train.

[14]        
Because the officers arrested Mr. Virani for his conduct on the SkyTrain
car, focus here will rest on his conduct there, not on the station platform. Therefore,
although the officers discovered a knife on Mr. Virani after they took him onto
the station platform, this cannot figure into his earlier conduct that led to
his forcible removal from the train and the obstruction charges. Even so, Mr.
Virani’s carrying a knife reveals cloaked risks transit police face, and must
be conscious of, when they execute their duties.

Obstruction Discussion

[15]        
The trial judge carefully analyzed the nature and extent of the
officer’s police authority. The appellant does not dispute the transit officers
had all the powers of a police service within the province. They may exercise
these powers as peace officers for the purposes of both the Offence Act,
and the Code, including sections 25 and 495.

[16]        
The trial judge instructed herself on the legal test of obstruction as
follows:

[22] Section 129 of the Criminal Code reads as follows:

129. Every one who

(a) 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 an officer,

is guilty of…

(e) an offence punishable on summary conviction.

In considering what constitutes “obstruction,” it was described
in the case of R. v. Lavin (1992), 76 C.C.C. (3d) 279 (Que C.A.), as follows:

…wilful obstruction requires either some positive act, such
as concealment of evidence, or an omission to do something which one is legally
obliged to do; and that neither requirement is fulfilled in this case.

Although this statement arises from the dissenting judgment,
it has been widely cited with approval. In the case of R. v. Porter, 2004 BCSC
1520, Justice Dorgan noted:

93.       According to R. v. Lavin (1992), 76 C.C.C. (3d) 279
(Que. C.A.), wilful obstruction requires either some positive act, such as
concealment of evidence, or an omission to do something which one is legally
obliged to do.

94        To constitute obstruction, the positive act must
also have some actual obstructive effect on the execution of the officer’s
duty. In R. v. Moore (1977), 36 C.C.C. (2d) 481, aff’d 43 C.C.C. (2d) 83
(S.C.C.), the Court held that an obstruction "frustrates or makes more
difficult the execution of a peace officer’s duty." In R. v. Soltys
(1980), 56 C.C.C. (2d) 43 (B.C.C.A.), the Court adopted the Black’s Law
Dictionary definition of "obstruct":

To impede; to interpose impediments to the hindrance or
frustration of some act or service; as to obstruct an officer in the execution
of his duty.

95        It is not necessary,
however, for the actions of the accused to have completely frustrated the
officer in the execution of his or her duty: R. v. Tortolano (1975), 28 C.C.C.
(2d) 562.

[17]        
Counsel offered no specific criticism of the trial Judge’s instructions
to herself on the law of obstruction. Even so, counsel introduced some
additional authorities.

A.    R.
v. Westie

[18]        
In R. v. Westlie (1971), 2 C.C.C. (2d) 315 (BCCA) [Westlie],
two plain-clothes police officers were patrolling the downtown east side of
Vancouver on foot, arresting beggars. The appellant followed them about, loudly
calling out their police identities and activities. Upholding conviction, the
Court of Appeal said the prosecution must show the accused 1) obstructed a
constable 2) the obstruction affected the constable in their executing of a police
duty and 3) the obstruction was wilful. The duty engaged in by the officer at
the time need not be a specifically defined one; a general police duty is
enough. The accused need not know specifics of the duty engaging the officer. But
for a conviction they must know the officer is engaged in a duty of some
kind: R. v. Noel (1995), 63 B.C.A.C. 191. Physical interference
or resistance are not essential elements of obstruction. A person’s words can
be obstructive, as they were in Westlie.

[19]        
The appellant points, as well, to para. 2 of Noel, where Wood J.
A. remarked that most often the officer will caution a person they are
obstructing them, removing any doubt in the mind of the obstructing person the
officer is engaged in a duty. I note an officer had cautioned Mr. Virani he
could be arrested for obstruction.

[20]        
Mr. Virani submits the crucial findings of fact the trial judge
made about his conduct are that he verbally refused to comply with the order to
get off the SkyTrain; and that when the officers removed him, he did not
physically resist, at least not in a way that merits concern. He says that absent
a duty to obey, a mere verbal refusal to comply with a peace officer’s order, even
if made when the officer is engaged in a specific duty, cannot support a
conviction of obstruction. This aspect of the appellant’s submissions is best
discussed later. Meanwhile, dealing with the specific point about the suggested
passivity of Mr. Virani’s conduct, this ignores the trial judge’s finding the
appellant was actively uncooperative and her other related findings.

[21]        
The SkyTrain car was carrying numerous passengers. Mr. Virani refused
to recognize the officers’ authority to perform their duty of inspecting for
proof of payment of fare – even though the officers’ explained the bases of
their authority. When an officer touched Mr. Virani’s arm to direct him off the
train, Mr. Virani shouted out the officers had assaulted him, which was not
true.

[22]        
The evidence showed signage on SkyTrain property showed passengers they had
entered a paid fare only zone. The trial judge also found that when the
officers ordered Mr. Virani, to leave the train, he firmly refused. Out of their
concern for the passengers’ safety, the officers did not want to have to fight Mr.
Virani in the car; and they wanted to see him off the train before dealing
further with him. But if the officers had continued holding the car door open
for Mr. Virani to get off, the system would have automatically shut down. It would
then have to be restarted. This would have delayed passengers, and, presumably,
kept them, the officers, and Mr. Virani, all in proximity for some further
time. The officers had to let the door close and put off the arrest.

[23]        
Whether an accused person’s words and other conduct have affected a
peace officer in their executing of a specific duty is a question of
mixed fact and law for the judge, considering all the circumstances, to decide.

[24]        
The respondent, replying to Mr. Virani’s submission the obstruction
offence is  wrong in law because, in the end, the officers had not been
prevented from removing him from the train, relies on R. v. Tortolano
(1975), 28 C.C.C. (2d) 562 (Ont. C.A.) [Tortolano], at para 12-13. In Tortolano,
Dublin J.A. stated he did not read Westlie as holding a judge could not
convict of obstruction unless the accused’s conduct totally prevented the
officer from executing their duty. The prosecution’s burden is to show the
conduct affected an officer in their executing of a police duty.

[25]        
And, as noted by the trial judge, in R. v. Soltys (1980), 56
C.C.C. (2d) 43 (B.C.C.A), the court referred to definitions of “obstruct” in
Black’s Law Dictionary, 5^th edition, which included, “to impede, to
interpose impediments to the hindrance or frustration of some act or service,
as to obstruct an officer in the execution of his duty.”

[26]        
On the narrow question of whether Mr. Virani’s conduct affected the
officers in the executing of their duties and thus obstructed them, the trial
judge made findings, supported by evidence, on which she could conclude, based
on the law of obstruction, this had occurred.

Decisions on obstruction
and refusing to obey

A.    R.
v. Semeniuk

[27]        
While the judge could reasonably decide Mr.Virani’s conduct affected the
officers in their executing of a specific duty, other important questions need
further consideration. These include whether Mr. Virani had a duty to obey the
officer’s order to get off the train, and whether Transit Conduct Regulations’
ordaining of a $300 fine for disobeying the order prevents a conviction for
obstruction. This requires a comparison with Sharma as well as a number
of other cases.

[28]        
Mr. Virani says the trial judge’s decision markedly expanded the reach
of s. 129 and the powers of the police. He points out that unless a statute or
the common law imposes a duty on a person to act, they have no matching duty to
help police officers execute their duty. Without such duty, an obstruction
cannot be wilful: R. v. Semeniuk (1955), 111 C.C.C. 370 (Alb.
Dis. Ct.) [Semeniuk]; R. v. Lavin (1992), 76 C.C.C. (3d) 279 (Que.
C.A.) [Lavin]; and Sharma, as well as other authorities.

[29]        
In Semeniuk, two patrolling officers saw a car parked in a rural field,
bordering a highway. Looking into it, they found the car occupied by the
accused, his wife and another couple. A search produced a case of beer and five
bottles of beer, uncased. The accused refused the officer’s request he unlock
the glove box. Using keys to the glove box police had taken from the accused’s
belongings after his arrest, police searched again and found two more bottles
of hard liquor in the glove box. The accused pleaded guilty to an Alberta Liquor
Control Act offence but contested the Criminal Code obstruction charge, which
turned solely on his refusal to obey the order to unlock the glove box. The
appellant argued that since there was no overt action on his part, he had not
obstructed the officer. Nothing in the provincial liquor control statute obligated
the accused to aid the officer in his search.

[30]        
The court found that, absent a common law or statutory duty, citizens had
no duty to help officers discover evidence and officers had no legal right to
insist citizens obey their order. Therefore, the appellant’s refusal did not
give any basis for an obstruction charge. See also Lavin, where a driver
refused to hand over a radar-warning device to an officer who had noticed it on
the sunscreen of the appellant’s car. At para. 11 of Lavin, the majority
found wilful obstruction requires “either some positive act, such as
concealment of evidence, or an omission to do something which one is legally
obliged to do.” Sharma and other authorities confirm a common law or
statutory obligation to comply with a peace officer’s order must be present. It
is only logical the legitimizing ground of the peace officer’s authority to
command must be an individual’s legal duty to obey.

[31]        
Relying then on R. v. Fraser, 2002 NSPC 6 [Fraser]; R.
v. Sutherland, 2002 NWTSC 41 [Sutherland]; R. v. Bentley (2003),
W.C.B. (2d) 205 (Que. Cour municipale) [Bentley]; R. v. Hayes (2003),
174 O.A.C. 185 [Hayes]; Sharma and some other cases, Mr. Virani points
out that the same conduct the trial judge decided had offended s. 129 of the
Code also form offences under the Transit Conduct Regulations. Section 9(1) sets
out the offence of failing to produce proof of paid fare, and s. 9(2) the
offence of failing to obey an order to leave the transit vehicle. The penalty
for each offence is a fine of up to $150, thus exposing Mr. Virani to a total
maximum penalty of $300.

[32]        
The appellant further suggests the officers were not powerless to act in
these circumstances. He says they failed to use ancillary Code tools at
their disposal, found under s. 495 of the Code, and says they should
have taken further enforcement steps that would have then enabled them to issue
tickets to the appellant for his breach of the regulations. Mr. Virani does not
dispute that had he refused to give his identity, the officers, to find it out,
could have legally arrested him under s. 495 of the Code, employing such
force as was reasonably necessary in the circumstances. Before taking that step
however, the officers had first to ask him to identify himself so they could
issue him a ticket for failing to produce proof of purchase. As noted earlier,
though, the trial judge could not find the officers, when on the SkyTrain with
Mr. Virani, sought identification evidence from him. Even so, Mr. Virani
argues, the officers could still have sought it from him after they had
escorted him onto the station platform.

[33]        
Once the officers had identified him, Mr. Virani agrees they could have
charged him under sections 3(b) and 6(2)(b) of the Transit Conduct Regulations.
On conviction, the court could fine him up to $300; his compliance with the law
thus ensured. Relying on Sharma, Mr. Virani says the legislature laid
down these more moderate penalties for his actions. These same actions cannot
then give a reason for his obstruction conviction, especially if he faced no
common law or statute that required him to obey the officers’ orders.
Therefore, he submits, the judge should not have convicted for obstruction.

B.    R.
v. Fraser

[34]        
Counsel point out few appellate cases with facts where an accused has
refused to obey a command made under some legal authority. Mr. Virani relied on
Fraser.

[35]        
In Fraser the appellant Fraser was unhappy about the federal
Department of Fisheries and Oceans [DFO] refusal to issue him a license. He decided
to go a DFO office. He told the supervisor he intended to stay there "as
long as it took." After closing hours, he refused to leave; the supervisor
called the police. The police attended. Despite the supervisor’s directions to
leave, followed by one by the police officer, to leave, he refused. For
"refusing to leave", the officer arrested Fraser for obstruction. He
did not resist arrest.

[36]        
The trial judge found that except by his having prevented staff from
closing and going home at the end of business hours, Fraser had not interfered
with operation of the DFO office. The question for the court was whether,
before his arrest under the Protection of Property Act, R.S.N.S. 1989,
c. 363, Fraser, in his mere refusing to leave the building as directed, had
committed the offence of obstructing the police officer.

[37]        
The Protection of Property Act gave the DFO supervisor the right
to direct Fraser to leave the property. Section 4 made it an offence for Fraser
to remain when he had no legal justification for doing so, after he had been directed
to leave. Section 6 gave an officer who believed it necessary to prevent a continuation
of the offence the power to arrest Fraser and hold him in custody. (Section 6 follows
in the same vein as the s. 495 Code grant of powers of arrest to a peace
officer in order to prevent a continuation of an offence).

[38]        
In para. 2 of Fraser, the judge distinguished obstruction cases that
involve a public disturbance – where someone is blocking traffic, disturbing a
residential neighbourhood or has breached the peace and order of the community.
In such cases, resort to either section 31(1) of the Criminal Code or to
the common law duties and powers of the police is possible; i.e. “those necessary
to ensure that the public peace would be kept and to prevent crime and to
detect crime and bring offenders to justice and generally to protect from
criminal injury" – as set out in Rice v. Connolly, [1966] 2 All ER
649 (Engl. Div. C) [Rice], and R. v. Dedman (1985), 20 C.C.C. (3^rd)
97 (S.C.C.). I note the trial judge in Mr. Virani’s case relied in part on the
general police duties and powers, but I respectfully cannot see them applying
here, at least so far as events on the car had developed.

[39]        
In Fraser, the Protection of Property Act gave police
specific authority to arrest a person refusing to obey a direction to leave. The
trial judge wondered whether this grant of authority to arrest should make a
difference in the result and whether because of the Supreme Court’s decision in
Sharma, specific authority to arrest Fraser’s refusal to leave could
transform his mere refusal into an obstruction. Fraser distinguishes various
obstruction cases, including R. v. Johanson, [1947] 4 D.L.R. 337
(S.C.C.) [Johanson], and Hayes. The judge noticed a common
feature in the various cases: usually, either the governing statute or the
arrest rules of the Code allowed the constables to arrest the offender. He
decided, having considered Sharma, that in those cases where the police
have an arrest power, and they have directed the accused to leave, an accused’s
mere refusal before their arrest could constitute an obstruction. In other
words, he found Sharma does not stand against holding that a refusal in those
circumstances could become an obstruction. I agree with this understanding of Sharma.
In some such circumstances, a mere refusal could become an obstruction. Conviction
would depend, of course, on the combined presence of all essential ingredients
of obstruction.

[40]        
In Sharma, the court had concerns the police had improperly engineered
an excuse to arrest the defendant. Justice Iaccobucci states at para. 33:

The police cannot circumvent the
lack of an arrest power for a violation of the by-law by ordering someone to
desist from the violation and then charging them with obstruction.

[41]        
At para. 27, Iabbobucci J. noted that where there is an arrest power,
police have a tool available to stop a violation, thus leaving no reason for
concern about effective law enforcement.

[42]        
 One of the differences between Fraser and this case is the
judge’s finding that when the officer directed Fraser to leave the premises, he
was not executing a police duty. Under The Protection of Property Act, Fraser
had to leave if directed, but the direction did not have to come from the
occupier of the property; they could authorize someone else to give it. Because
the officer was not executing a police duty, his direction was no different
from one given by a civilian. This is one of the key findings in Fraser.

[43]        
Mr. Virani points out s. 6 of the Transit Conduct Regulations state any
transit employee has authority to order a person to leave a transit
vehicle or transit property. I see no significance in this factual element
shared with Fraser (i.e. that an employee could direct an illegal
occupier to leave a property). The fact transit police are Transit Authority
employees and that civilian employees can order someone off transit property
does not lessen the authority of transit officers when they do so. They are
peace officers. Anyone obstructing them when they are executing a police duty
could be guilty of obstruction, depending on the facts. An employee could order
an individual to leave a transit vehicle, but if they wished to see them arrested,
they would have to call on a peace officer. As it is, the evidence shows the
officers made their identities as peace officers known to Mr. Virani, and he
has not challenged their authority to make an arrest under s. 495 of the Code,
at least in certain circumstances.

[44]        
The respondent points to another difference between this case and Fraser:
The Protection of Property Act does not make it an offence “not to
comply with the direction given by a police officer, or conversely imposing a
positive obligation on a person to comply with such a direction”: Fraser, para.
33. After Fraser had refused to follow the directions, the judge
concluded the police:

[34]      …were perfectly justified under s. 6 of the
Protection of Property Act to arrest him and to detain him where it appeared
necessary to prevent the continuation of the offence. However, Mr.
Fraser did not obstruct the police officers in the execution of their duty,
merely by refusing to leave at their direction, when such was in essence the
direction of the occupier being reiterated by the police. That being said,
his arrest was justified under s. 6 of the Protection of Property Act (although
this was not the reason given for it). His conduct after arrest posed no
difficulties whatsoever.

[Emphasis
added]

[45]        
The respondent therefore submits Fraser is distinguishable.
First, s. 6(1) of the Transit Conduct Regulations authorizes the transit
authority to make rules and require a person, as a condition of their entering
or remaining on a transit vehicle, to obey the signs or comply with the rules.

[46]        
Sections 3(a) and (b) state a person boarding a transit vehicle must pay
the fare and present proof of payment to a transit authority. Section 4(1)(a)
and (b) state a person entering a fare paid zone must pay the fare, obtain
proof of payment and present proof of payment to a transit authority when
requested to do so.

[47]        
Section 6(2)(b) authorizes any transit employee to order a person who
does not obey a sign or comply with the rules when ordered to do so by a
transit employee, acting in accordance with s. 6(1), to leave the transit
vehicle. Section 9(3) makes disobeying a s. 6(2)(b) order an offence.

[48]        
The respondent says the officers in this case, unlike the officer in Fraser,
were executing a core duty. As part of their core duty of enforcing the
Transit Conduct Regulations, they ordered the appellant off the train. A
civilian transit employee could do that as well; but as they would not be a
peace officer, there could be no obstruction conviction for disobeying them.

[49]        
The court in Fraser ultimately concluded:

[35]      As a matter of
practice and policy it is better to require that a police officer invoke the
particular powers assigned to him or her as a police officer by
the Protection of Property Act by arresting and/or detaining an
individual before putting individual in legal jeopardy of a criminal charge of
obstruction by his mere refusal to leave premises.

[50]        
In Sharma, the appellant was a flower seller. Under a municipal
bylaw, the officer charged him with exposing goods for sale on the street
without a license. Because he had not obeyed the officer’s direction to pack up
and move on, the officer charged him with criminal obstruction. The trial judge
convicted him and both his appeals below were unsuccessful. As it turned out,
the Supreme Court of Canada [SCC] found the bylaw itself ultra vires.
The SCC agreed, however, with the dissenting views of Arbour J. A., as she then
was. She said that even if the court found the bylaw valid, the police could
not get around their lack of a power to arrest Sharma for infringing the bylaw by
using his mere refusal to stop doing so as the basis for a criminal obstruction
charge.

[51]        
At the appeal level, Arbour J. A. said at pp. 170-171, as quoted at para
23 of Sharma:

…The general duty to enforce municipal by-laws must be read
subject to the limited enforcement powers contained in the by-laws themselves,
in the Provincial Offences Act or in any other relevant legislation, as
well as in the common law powers incidental to them, such as the power to
search as an incident to a valid arrest.

Here the legislature has not seen fit to provide for a
mechanism by which the conduct prohibited by s. 11 of the by-law can be
immediately brought to a halt. A police officer may invite a person to
desist. He or she may issue a new summons if the offence is being repeated. However,
the continuation of such conduct, absent circumstances amounting to a breach of
the peace or interfering with the authority of the police officer to issue the
summons, cannot amount to obstruction, in my opinion, even after the
alleged offender has been warned to stop his activities.

[Emphasis
added]

[52]        
Arbour J.A. noted s. 326 of the Municipal Act, R.S.O. 1980, c.
302, had specifically addressed the problem of continuing bylaw infractions by
giving the court authority to make an order prohibiting continuation or
repetition of the offence.

[53]        
As an aside, I note a street vendor continuing to sell at the same
location, perhaps over several days or weeks after the police had ordered them
to stop, is different from the fluid and complex offending conduct the transit
officers were dealing with. The Transit Conduct Regulation does not give the
Court authority to forbid further offences by an offender who has continued to disobey
police orders. It does give them authority to order someone off the train—and their
use of this authority need not be secondary to their duty of fare enforcement.

[54]        
Writing for the SCC at para. 33 of Sharma, Iacobbucci J.
concluded Arbour J.A. was correct in holding the police could not get around the
lack of an arrest power for a violation of the bylaw "by ordering someone
to desist from the violation and then charging them with obstruction." The
Provincial Offences Act and the Municipal Act had set specific
moderate penalties for repeated infractions and there was no statutory remedy
for bringing the offending conduct to an immediate halt. Iacobbucci J. stated:

[33]      … The officer had no authority, either at common
law or under statute, to arrest the appellant for failing to comply with an
order to desist from conduct prohibited by the bylaw. Johansson v. The
King., supra, has no application in the absence of a statutory duty of
obedience to police officers. The police constable in this case indeed has
an obligation to enforce the by-law. The legislature defined the enforcement
power as ticketing the offender, and the appellant did not obstruct the
constable in the performance of his duty. The power of arrest cannot be
derived as a matter of common law from the officer’s duty to enforce the by-law
given the legislature’s definition of what such enforcement entails. The words
of Arbour J.A., at p. 170, are apt:

In my view, the deliberate
legislative choice not to permit arrest for this kind of municipal offence
cannot be circumvented by a police officer ordering the accused to desist from
the conduct constituting infringement of the by-law, thereby exposing the accused
to liability for the Criminal Code offence of obstruction and thus triggering
the arrest powers contained in s. 495 of the Code…

[Emphases
added]

[55]        
I agree with the respondent that Sharma does not say that in all
noncriminal offences where someone continues to engage in specifically
prohibited conduct, it has become improper to arrest them to prevent their
continuing of the offence. If the offender owes a duty of obedience; and they
have obstructed an officer in their performing of a police duty, such as issuing
a ticket or ordering them off the train, the officer can arrest them to prevent
the continuation of an offence. Even if legislation gives a specific penalty,
such as a fine, if the conduct has obstructed the officer in their performance
of a duty, a judge can convict for obstruction. But before further considering this,
and other questions, I will consider some additional authorities referred to by
counsel.

C.    R v.
Hayes

[56]        
In Hayes, the accused was riding his motorcycle. Stopped at a
police road check, he repeatedly refused the officer’s request he remove his
helmet for inspection. He was charged with obstruction. The Ontario Court of
Appeal allowed the accused’s appeal from conviction because, although s. 82(1)
of the Highway Traffic Act, R.S.O. 1990, c. H-8, gave officers authority
to require riders hand over their helmet for inspection, if the rider refused, ss.
82(3), 82(3) and 82(4) set an enforcement mechanism. The court rejected the
Crown’s attempt to distinguish Sharma on the ground that, unlike the
officer in Sharma, the officer had been frustrated in the performance of
his duty:

[42]      … 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 a
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 issue written notice for a vehicle
inspection, the offensive obstruct police officer could be made out.
However, since the officer did not attempt to enforce his power to inspect the
helmet under s. 82(3) 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.

[Emphases
added]

[57]        
Mr. Virani submits Hayes is in on all fours with this case. He says
the transit officers did not try to use the enforcement procedure of confirming
his identity and then issuing him with a ticket – or of arresting him, if
necessary, to find out his identity. The Transit Conduct Regulations, besides, give
a specific penalty for both his refusing to show proof he had purchased a
transit ticket and for his disobeying the officers’ orders to leave the train. He
submits the regulations state how officers are to enforce the regulations and
the penalties for violating them.

[58]        
In Lavin, the trial judge had found the appellant guilty of
refusing to hand over his radar detector. Tyndale J.A., said at p. 281, said:
"I am not aware of any provision of law by which he was obliged to agree
with the officer’s request to give him the detector. If he is under no
obligation, surely he had the right to refuse and did not thereby obstruct the
officer." At p. 282, the Court then confirmed that for an obstruction to
be wilful, the accused must have failed to do something they were legally
obliged to do: see also Bentley.

Respondent’s further
submissions

[59]        
The respondent accepts that before an offender’s continuing infringement
of provincial or municipal statute can become a s. 129 obstruction, a potential
statutory arrest power must be present. The respondent submits, however, that this
and all other necessary ingredients are in Mr. Virani’s case and his conviction
accords with principles in the SCC cases of Sharma, R. v. Moore, [1979]
1 S.C.R. 195 [Moore], and Johanson.

[60]        
The respondent stressed that Mr. Virani was in a fare paid zone and the
officers were clearly trying to enforce the fare regulations. He repeatedly
refused their requests he provide proof of a paid fare. Then, after his
repeatedly refusing to show proof of fare, the officers ordered him off the
train; which he also refused.

[61]        
The respondent referred to Moore, supra, a case in which a
Victoria, B. C. cyclist had run a red light. Based on the cyclist’s refusal to
give his name to the officer, who wanted to ticket him for the traffic
infraction, the Supreme Court upheld his conviction for criminal obstruction. Section
58 of the Motor Vehicle Act, R.S.B.C. 1960, c. 253 – now s. 73(2) of the
Motor Vehicle Act, R.S.B.C. 1996, C-318 – made guilty of an offence a person
who failed, when requested by any peace officer to state correctly their own name,
and the name and address of the owner of the motor vehicle. (The majority found
this obligation extended to cyclists). The court noted the officer had no power
to arrest Moore without warrant, but could do so under s. 450(2) of the 1970 Code,
now s. 495, if reasonably necessary to find out his identity or to
prevent the continuation of the offence. As Spence J. in Moore stated at.
203:

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
infraction of the statute and that that constable had no power to arrest the
accused for such offense unless and until he had attempted to identify the
accused so that he might be the subject of summary conviction proceedings.

[62]        
The majority distinguished Rice because the constable there had
not seen the accused committing any offence before he had demanded the accused
identify himself.

[63]        
Dickson J. and Estey J. dissented, partly because they found s. 58 did
not apply to cyclists, and partly because they had decided the cyclist owed no
statutory duty to give his identity. They held also that while the constable could
arrest the cyclist if it were necessary to find out his identity, his refusal
to give his name and address to the constable did not then make him guilty of
the much more serious charge of obstruction: para. 30.

[64]        
Mr. Virani submits the minority position is harmonic with Sharma. But
the respondent points out Moore has never been overruled; and on its
facts, the minority position never adopted. Unfortunately, the SCC does not
comment on Moore in Sharma. But in her Court of Appeal dissenting
judgment Arbour J. A. did; pointing out Spence J. had “uncovered” that the
constable had a specific statutory duty to try to identify the wrongdoer; and
“because of that, found Moore’s failure to identify himself constitutes obstruction:”
R. v. Sharma, 62 C.C.C. (3d) 147 (Ont. C.A.), at p. 19. She also
dismissed the notion that the general duty of the police to maintain law and
order, enforce municipal bylaws, the criminal law and the Municipal Act,
R.S.O. 1980, c. 198, was enough to uphold Sharma’s obstruction conviction.

[65]        
In my view, Moore stands for this: when an officer sees someone
commit an offence and the law they are enforcing requires the lawbreaker to
give their name and address to the officer, their refusal to do so can become a
s. 129 obstruction. (This principle is unrelated to the power of arrest granted
by s. 495 of Code to a peace officer should it become necessary on
reasonable grounds to establish identity.)

[66]        
The Supreme Court referred in Sharma to Johanson, an earlier
Supreme Court decision, briefly mentioned earlier in the reasons here. Arbour
J. A. had distinguished Johanson because the bylaw under which the court
in Johanson had confirmed the conviction contained a specific
requirement of "obedience to police officers:” Sharma, para. 24.
The Supreme Court confirmed this distinction, saying Johanson “had no
application in the absence of a statutory duty of obedience to police officers:”
para. 33. (The portions of the bylaw quoted in Johanson, however, do not
have words that flag a duty of obedience to police, so it is unclear what specific
language Abour J. A. had in mind).

[67]        
In Johanson, members of a trade union were striking. About one
hundred members, wearing union labels and holding tin cans to solicit money from
passersby, were standing on various street corners of the city. The Vancouver
bylaw stated:

No person shall stand or loiter on any street in such a
manner as to obstruct or impede or interfere with traffic thereon.

Section 67, City of Vancouver
by-law no. 2849

[68]        
An officer approached the appellant union member and told him to move
along. The appellant moved back two steps, then stepped back to the same spot. Later,
the officer, having returned to the scene from a trip to police headquarters,
found him back in the same spot. The appellant did not comply with the
officer’s request to put the tin can away and move on and the officer charged him
with obstruction. At para. 30, Estey J. said, "it is the duty of a
policeman to enforce the bylaws of the city and it is an offence for any person
to wilfully obstruct a policeman in the enforcement of the bylaw. Moreover,
words alone will constitute an obstruction.” On finding the appellant’s actions
did not violate the loitering bylaw however, the court acquitted the appellant.

[69]        
The respondent does not treat this passage as a cornerstone of its
argument, but relies on it. Mr. Virani outright dismisses its significance. He
says the respondent plucked out a few 64-year-old obiter words which are clearly
out of step with modern case law. I note however, that Sharma distinguished
but did not overturn Johanson. I see Johanson limited to cases
where the person infringing the bylaw has a duty of obedience. The respondent
says Mr. Virani owed a duty of obedience.

Discussion

[70]        
 I do not agree with all the judge’s reasoning that led her to convict
Mr. Virani.  For example, I respectfully disagree that Mr. Virani, by his remaining
in a fare-paid zone without proof of paid fare, was committing a continuing
offence that warranted his arrest. Neither can I see the general police duties and
powers of arrest applying in this case.

[71]        
The first focus in this case should be on whether Mr. Virani owed a duty
of obedience. Then, assuming he does, the next focus should be on whether his
manner of refusing affected the officers’ executing of their duty. The duties
most relevant to the obstruction charge in this case is the officers’ trying to
execute their objective of getting Mr. Virani off the train. When coming to her
verdict, the judge was right to consider the officers’ concerns about the
safety of other passengers and the various facets of Mr. Virani’s conduct which
she found had obstructed the officers’ executing of their duty.

[72]        
For this appeal, so long as I can find the evidence before the trial
judge, and the correct legal principles, correctly applied, support the
verdict, I need not agree with the entire reasoning of the judge. In addition, I
see no reason, in this case, why I should not defer to the trial judge’s
factual findings.

[73]        
After Mr. Virani had refused to leave the train, if the officers
believed on reasonable grounds that to prevent his continuing to disobey their
order to get off the train they needed to arrest him; and if the officers also
believed, on reasonable grounds, that if they did not arrest Mr. Virani, he
would fail to attend court, 495(1)(b) of the Code gave the officers
authority to arrest him.  Given Mr. Virani’s refusal to cooperate in any way,
and his refusals to obey their orders to get off the train, the officers had sufficient
grounds to arrest Mr. Virani under s. 495(1)(b) and as well, in my view, under
s. 495(1)(a)

[74]        
The officers’ authority to do so was unchallenged; as was their authority
to arrest Mr. Virani to establish his identity – had they asked him to do so,
and had he refused to identify himself.

[75]        
 When the officers eventually removed Mr. Virani from the train, he did
not notably resist the officers, so he did not obstruct the officers’ executing
of that part of a specific duty. Had he done so, or resisted his arrest then, no
one questions Mr. Virani would subject himself to a possible criminal
obstruction or resistance charge, depending on the facts.

[76]        
A conviction for obstruction in this case must rest chiefly first, on
whether Mr. Virani owed a duty of obedience; and second, on whether the events
that occurred leading up to Mr. Virani’s arrest without warrant affected the
officers’ executing of their duty as peace officers. There is no question the
officers, in their enforcing of the fare regulations, were enforcing a police
duty; they made this clear to Mr. Virani. It is equally clear the officers, in their
ordering Mr. Virani off the train, and then in their trying to remove him from
the train after he disobeyed their order to get off, were enforcing a police
duty. After some further discussion of authorities cited by counsel, I will discuss
this further.

[77]        
This case is distinguishable in several respects from the helpful Fraser
decision. The judge in Fraser found that while the Protection of
Property Act, R.S.N.S. 1989, c. 363, specifically gave police the power to
arrest a person refusing to leave premises when directed, the officer had not
given his direction to Fraser in the capacity of a police officer: para.
32. The judge made the same point again at para. 34, where he said Fraser did
not obstruct the officer’s execution of duty “merely by refusing to leave at
their direction, when such was in essence the direction of the occupier
reiterated by the police” [emphasis added].

[78]        
That was not so here. When the officers asked Mr. Virani to produce his
proof of fare and then ordered him off the train, they were engaging in one of
their core police duties. They were transit employees, but they requested as
peace officers.

[79]        
Further, as noted earlier, the trial judge found Mr. Virani’s conduct
involved more than a mere refusal to leave the property, and I defer to these
findings. In Sharma, the flower seller did no more than disobey the officer’s
direction to pack up and move on and the bylaw did not require the seller to
obey the officer’s direction. Sharma did not obstruct the constable in his
executing of a police duty.

[80]        
The only way the bylaw provided to prevent Sharma’s continuing to
infringe was for the constable to issue him a ticket; and to seek, as part of
Sharma’s sentence, an order he stop infringing the bylaw. In this case, the
transit officers had authority to order Mr. Virani to get off the train, and he
was duty bound to obey their order. They do not have to exercise this authority
contiguously with their enforcement of fare regulations; they could order a
passenger off the train for disobeying other conduct or safety rules or, for
example, harassing others on the train.

[81]        
Sharma and the other cases cited on the point stand solidly against
any peace officer engineering a person’s continuing infringement of noncriminal
legislation to bootstrap a criminal obstruction charge. As mentioned earlier,
however, I agree with Crown Sharma does not stand for a rule that says where
a person continues to engage in unlawful but noncriminal conduct, it is
inherently wrong for a judge to convict for obstruction. If the legislation gives
police authority to order a person to stop infringing a law, and that law requires
the person to obey, their refusal can, if it is intentionally obstructive, expose
them to an obstruction conviction. But where the law has set a penalty, such as
a fine, and the lawbreaker has not enlarged their conduct from merely
refusing to obstructive conduct, the officer must use the process and penalties
set by the law. In those cases, a mere refusal cannot found an obstruction
conviction. Officers are not without remedy to deal with a mere refusal because
they can arrest the individual to find out their identity, if they need to, and
then issue a ticket. If they still need to find out their identity, they could
further detain them to find it out or to ensure their attendance in court. If
the lawbreaker has a legal duty to obey, as Mr. Virani did, an officer can also
arrest the person to prevent their continuation of the offence and then issue
them a ticket for failing to obey.

[82]        
That is my understanding of how Sharma should apply in this case.

[83]        
In Hayes, the legislation defined the enforcement power as ‘ticketing
the offender.’ The Ontario Court of Appeal found that because the officer had
not used the legislation’s enforcement process, “which would have required him
to give the appellant a written notice for inspection,” the motorist had not
obstructed the constable in their executing of that duty. In other words, the
appellant had not interfered with an attempt by the officer to write a ticket. The
appellant was therefore not guilty.

[84]        
Mr. Virani submits that in his case, the officers similarly did not
complete the enforcement procedure available to them. He says the officers were
entitled to ask for his name and address and, had he refused, they could have
arrested him, because it would have been necessary then to find out his
identity. They did not seek his identity, however, and so cannot then say he
obstructed them in executing a duty they never took on. Further, he says while
they were entitled to use force to remove him from the train, he did not resist
or obstruct them in that regard. And, he says, his actions before did not
obstruct them in their performance of any duty.

[85]        
I accept the trial judge’s statement she could not find the officers had
asked Mr. Virani identify himself on the train. The trial judge rightly focused
on Mr. Virani’s refusal to get off the train and considered how his behaviour
affected the officers’ execution of their duties in that regard. The officers did
not have to ask Mr. Virani to identify himself formally before escorting him
off the train. It was open to the trial judge to find Mr. Virani had been
uncooperative throughout his engagement with the transit police and, in the
circumstances, asking him to identify himself was not a necessary prelude to
their forcing him off the train. It was open to the trial judge to consider the
officers’ concerns about the safety of the other passengers.

[86]        
In this case, the officers’ ordering Mr. Virani off the train was itself
a method of enforcement available to them. Their order to get off the train is
linkable both to their enforcing of the fare regulations and to Mr. Virani’s continuing
offence of disobeying the order. Further, as part of their enforcement duties,
the officers had to consider first the security and safety of all the
passengers. If a transit passenger‘s disobedience of an officer’s order
potentially affects the safety of other passengers, their conduct can inherently
affect a transit officer’s execution of their duty to ensure, within their
capacity, the safety of all the passengers. This an overlying concern of the
Transit Conduct and Safety Regulations. As such, passenger safety concerns
influence how the officers execute their duties as transit police officers. I
agree, therefore, with the emphasis the trial judge placed on this aspect of
Mr. Virani’s conduct. (Though as mentioned earlier, in the circumstances of
this case, I do not see any need to resort to the general police duties and
powers to dispose of this case).

[87]        
I agree with Mr. Virani that when one of the officers first ordered him
to get off the train and cautioned him he could be charged with obstruction, he
could not be guilty of it then. The officers had not asked him to give his identity
and he had not thus far obstructed the officers’ executing of their duty of
obtaining his name and address. At that point, Mr. Virani’s actions constituted
a mere refusal to comply with the orders of the officers, and he had not yet done
anything to affect the officers in the execution of their duties. He was not,
therefore, arrestable for obstruction at that point.

[88]        
I turn now to look closer at the question of whether Mr. Virani had a legal
duty to obey the order to get off the train and whether he obstructed the
officers in their execution of that police duty.

[89]        
Mr. Virani’s duty to obey the officer’s order to get off the train is effectively
set out in s. 6 of the Transit Conduct Regulation and the offence, under
section 9(3), of disobeying an order. Further, the offence of disobeying an
order, in and of itself, logically implies a duty to obey; else, there would no
legitimate foundation for imposition of any penalty. Absent such duty to obey,
there can be no obstruction for disobeying the order. (Besides, as discussed
earlier, unless a peace officer gives the order, there can be no obstruction
conviction). The regulations do not specifically authorize a warrantless
arrest, but s. 495 of the Code grants authority to arrest Mr. Virani to
prevent his continuing refusal to get off the train.

[90]        
Neither does the fact the Transit Conduct Regulations specify a fine for
a passenger’s refusal forbid an obstruction conviction in every case– if the
offender’s conduct goes beyond a mere refusal to conduct that has, on the
facts, obstructed the officer in their executing of a police duty. That is, in
my view, a correct reading of Sharma and the other cases.

[91]        
Although the trial judge decided she could not find Mr. Virani
obstructed the transit police as they were escorting him off the train, it remained
open for her to find his earlier described behaviour was obstructive.

[92]        
I find it was also open to the judge to consider the fact of the officers’
having to delay their arrest of Mr. Virani until Braid Street Station, over a
minute away. Their holding the door open a few seconds longer would have caused
a system shut down, delaying all the other passengers. Shutting the car door
left the officers in continued proximity with Mr. Virani and the many
passengers. While the officers’ worry over a system shut down resulted from Mr.
Virani’s refusing, and, standing alone, would not necessarily justify an
obstruction conviction, it informs the complex circumstances and safety
concerns the officers faced. The context in which Mr. Virani’s conduct unfolded
heightens the significance and the potential seriousness of his actions from
the perspective of the officers. While the judge found Mr. Virani had done more
than merely refuse, it takes just a few moments to envisage that on a crowded SkyTrain
car, even a determined mere refusal to obey could produce a potentially unsafe situation.
It was open to the trial judge to consider the context in which Mr. Virani’s
conduct occurred, with regard both to any circumstantial heightened
significance of his conduct and to its effect on the officers’ executing of their
duties. The officers’ having to shut the car door and delay their arrest of Mr.
Virani is relevant.

[93]        
The factual context of this case differs from the other cases presented,
which involve a constable dealing one-on-one with an individual who is merely
refusing to comply with a request or order. Mr. Virani indeed stood on heavily
regulated soil, understandably so. Many thousands of passengers ride on the SkyTrain,
which has no drivers or conductors and only the intermittent presence of
transit police. They must consider the safety of other passengers in a
confined, sometimes crowded, space. Confrontations between transit police and a
passenger challenging their authority could lead to serious emergent incidents.
The trial judge’s comments show she considered the officers’ concerns about a
fight breaking out in the car and the attendant risks to passengers. Mr. Virani
was obviously aware of the sensitive nature of the officers’ position, as he
falsely called out to other passengers the officers had assaulted him. This
could have led to the complicating involvement of others, and it was open to
the trial judge to consider this. This was not a case of someone simply stating
a refusal, delaying until the next station and then stepping off after the
officer touches their arm. A trial judge has to draw, beyond any reasonable
doubt they have, the dividing line between foolish unintentional conduct and intentional
criminally obstructive conduct. The trial judge had evidence to distinguish
between the two in this case, and given that, and allowing for application of
what I see as the correct guiding principles, I cannot say she drew it incorrectly.

[94]        
In summary, where, under the noncriminal law in play, a person owes a
duty of obedience to a peace officer, as in this case, a criminal obstruction
conviction becomes possible. A mere refusal to obey does not give grounds for a
conviction, especially whether the law gives a penalty for a mere refusal. A
mere refusal in emergent circumstances could give exception to this. The
accused person must intentionally refuse to do something the legislation
requires of them. The manner of their refusing must affect, though not
necessarily finally frustrate, the officer in executing their duty. The accused
person must know the officer is executing a police duty and intend their
actions to affect the officer’s executing of it.

[95]        
These bounds preserve a legislative intent to ordain moderate noncriminal
penalties for conduct such as a mere refusal to produce proof of fare or to
obey a transit officer’s order to get off a train. If the accused person’s response
to a lawful order exceeds the bounds of mere refusal however, and is intended
to affect an officer’s executing of their duty, their actions have exceeded
what the legislative scheme in this case contemplates; and an obstruction
conviction becomes possible.

[96]        
Further, in my view, the context in which the accused’s person’s conduct
has occurred, for example, as in a crowded transit car, and the perceived risk their
conduct may pose to others, could amplify the obstructiveness of their conduct.

[97]        
These conclusions respect, in my view, the principles laid down in Sharma
and the other authorities discussed. And, given the trial judge’s findings
of fact, Mr. Virani’s conviction does not constitute a contrived justification
for his arrest for obstruction, bootstrapping or “Criminal Code creep.”

[98]        
The prosecution does not have to show Mr. Virani completely thwarted the
officers’ execution of their duty; only that he inhibited or affected them in
some way in their execution of it. The judge had evidence before her upon which
she could conclude that before the officers escorted Mr. Virani off the train,
his conduct was more than a mere refusal and had affected the officers in the
execution of their duties. Mr. Virani had a duty to obey the officers’ order to
leave the train. His conduct, as found by the trial judge, was sufficient to
allow her to find Mr. Virani’s actions were criminally obstructive.

[99]        
As noted earlier, I cannot endorse all of the trial judge’s careful
reasoning. I would, however, conclude, pursuant to s. 686(1)(b) of the Code,
that given the findings of the trial judge and applying the correct legal
principles, it was open to her to reach the verdict she did.

[100]    
Therefore, I dismiss the appeal.

“N.
Brown J.”