Lavin had a radar detector in his car and when he saw a police car pull behind him he removed it from his car and put it in his pocket. When the officer pulled him over and asked him to hand over the detector, Lavin refused. He was charged with obstructing a peace officer in the execution of his duty, pursuant to s.129 of the Criminal Code. Lavin was convicted at the provincial court level.
- Can a non-action, or omission, constitute an obstruction pursuant to s.129 of the Criminal Code?
Appeal allowed with costs.
Tyndale, writing for the majority, held that because this section states that a guilty party must "willfully" obstruct the officer, it requires a positive action (such as concealment) or an omission to do something that one has a duty to do. They say that neither was present in this case and therefore there was no "willful" obstruction.
Tourigny, in the dissent, held that the act of concealment is a continuous act, and that guilty intention arose when the man was questioned by the police officer. Although the action and intention did not occur at the same time, this was a continuous action as found in Fagan v Metropolitan Police Commissioner.
- An omission to act will only entail criminal liability where there is a common law or statutory duty to act.
- A "willful" obstruction requires a positive act, or an omission from something that one has a duty to do.