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Citizen entitled to reasonably resist unlawful arrest

November 29, 2021  By Mike Novakowski

A woman, twice unlawfully arrested by police, could not be convicted of resisting arrest nor of assaulting the officers effecting it because she was not legally required to submit. In R. v. Gibbons, 2021 NUCA 17, the accused’s family members phoned police for help in removing her from her father’s home. She was intoxicated on both occasions and was peacefully on the front step outside the home when police arrived.

During the first event, Gibbons’ father merely wanted his daughter taken elsewhere. Although police tried to find her another place to stay, Gibbons was arrested – but not told why – and taken to the police station. While there, she collapsed to the floor and struggled with officers as they tried to remove excess layers of her clothing. She was not told why she needed to remove her clothing, nor was she asked to remove it herself. At one point, Gibbons kicked an officer in the head.

During the second event, about eight months after the first, police were again summoned to Gibbons’ father’s home. They found her smoking with a man who was bound by a probation condition not to have contact with her. Both were arrested and, when Gibbons did not immediately descend the steps, she was grabbed by the arm and pulled down. She began to yell, strike out with her arms and legs, ripped an officer’s radio from his vest and swung it around. She resisted officers’ attempts to handcuff her and kicked at them when she was placed in the back of the police vehicle.

Gibbons went on trial in the Nunavut Court of Justice. Concerning the first event, she pled guilty to resisting arrest and, following trial, was convicted of assaulting a police officer. The trial judge accepted she had been arrested for mischief and taken to cells to be lodged until sober. Given her guilty plea to resisting arrest, the trial judge concluded the police were acting lawfully in arresting her and taking her into custody, and therefore she could not use the self-defence provisions of s. 34(1) Criminal Code as a legal basis to resist the arrest. And, even if self-defence applied, Gibbons’ resistance was not reasonable. “[The accused] played a significant role in bringing about the use of force by forcefully resisting her lawful arrest for an extended period of time,” said the trial judge. “She had other options available to her to bring an end to the situation. She needed to simply stop struggling and fighting.”


As for the second event, she was found not guilty of resisting arrest and assaulting the police officers. The judge concluded that the police did not have reasonable grounds to effect the arrest when they found her quietly smoking on the front step of her father’s residence. However, she was found guilty of two counts of simple assault. The judge found the accused should have stopped struggling, even in the face of an unlawful arrest, and instead ought to have awaited a review of her detention and a judicial determination as to the actions of the police.

“While these type of nuisance complaints are undoubtedly burdensome for the police, their response must nevertheless remain lawful.” – Justice Schulz

Gibbons appealed her convictions to the Nunavut Court of Appeal, submitting she was acting in self-defence on both occasions and her actions in resisting both unlawful arrests were reasonable. The Crown acknowledged there was no legal requirement that a citizen acquiesce to an unlawful application of force merely because that force is being exerted by a police officer.

The Court of Appeal held, in both events, that Gibbons was arrested and taken to the police station solely because she was intoxicated, and police did not know what else to do with her. Neither arrest was justified on the evidence. “While these type of nuisance complaints are undoubtedly burdensome for the police, their response must nevertheless remain lawful,” said Justice Schulz. She continued:

Should an arrest be made, it must be on reasonable and probable grounds that an offence has been or is being committed, and not because they do not know what else to do with an intoxicated individual who is the subject of a nuisance complaint. Further, once the police assert physical control over that intoxicated individual, that control must be lawful and reasonable in all of the circumstances. That is not what happened in either of these two incidents; the arrests were unlawful. The [accused] was also not told why she was being arrested, why she was being stripped of her clothing, or why she was being manhandled by police. In such circumstances, she was not required to simply stop, submit and passively acquiesce to their unlawful actions while hoping for a better outcome sometime down the road. [para. 27]

As to the first event, “at best, Ms. Gibbons was arrested for being outside on her father’s property or because no one could be found to take her in, or both, but neither objectively or subjectively establishes reasonable and probable grounds to arrest for mischief, and each seems wholly inconsistent with s. 495 of the Criminal Code.” Since the arrest was unlawful, Gibbons was entitled to resist it, and she acted reasonably and not excessive in her efforts, including the kick to the officer’s head while she struggled against the attempts to remove her clothing. It is not a requirement of self-defence that Gibbons submit to the police and thereby end the need for force against her.

In the second event, Gibbons’ arrest was unlawful and therefore the police were not acting in the lawful execution of their duties. Gibbons did not have “a legal duty to be quiet, passive, submissive, and simply to acquiesce during an unlawful assault upon her person, because the assault was being perpetrated by uniformed police officers.” In this situation, the police did not have grounds to arrest Gibbons and did not inform her of the reason for it. She was entitled to resist this unlawful arrest and transport to the police station, and did not use excessive force in doing so.

Gibbon’s appeal was allowed, her guilty plea was set aside, all her convictions were quashed, and acquittals were substituted.

Mike Novakowski is Blue Line’s case law columnist.

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