Court of Appeal for Ontario
Before: Sharpe, Armstrong and Watt JJ.A.
Between:
Her Majesty The Queen Respondent
and
James Jeanes Appellant
Counsel: Philip K. Casey and Constance Baran-Gerez for the appellant Susan Flick for the respondent
Heard & released orally: January 27, 2009
On appeal from the judgment of Justice C.N. Herold of the Superior Court of Justice dated March 1, 2006.
ENDORSEMENT
1The central issue on this appeal is whether the appellant was arbitrarily detained by an off-duty police officer when the police officer observed a distinctive boot tread on the appellant’s shoe that linked him to a series of break and enters.
2On the voir dire, the police officer testified that he had not arrested or restrained the appellant but that in a friendly and conversational tone he said to the appellant “I would like to see the bottom of your boot”. The appellant offered no evidence to challenge the police officer’s evidence or to support the contention that he had been subject to a physical or psychological restraint.
3The trial judge made the following findings with respect to this interaction. He found that the police officer “calmly approached Mr. Jeanes, identified himself by name as a police officer and asked if he could see the tread pattern. He did not order Mr. Jeanes to show it to him. Mr. Jeanes voluntarily complied not once but twice with this request.”
4On the evidence, it was open to the trial judge to make these findings and to conclude that the appellant had voluntarily complied with a non-coercive request and that he had not been subject to any significant physical or psychological restraint nor had there been any violation of his bodily integrity or reasonable expectation of privacy. Those findings are fatal to the appellant’s contention that the rights guaranteed by ss. 8, 9 and 10 of the Charter were violated.
5Accordingly, the appeal is dismissed.
“Robert J. Sharpe J.A.”
“R.P. Armstrong J.A.”
“David Watt J.A.”