DATE: 20011227 DOCKET: C36714

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. TROY WADE (Appellant)

BEFORE:

McMURTRY C.J.O., ROSENBERG and MacPHERSON JJ.A.

COUNSEL:

James Lockyer,

for the appellant

J. Sandy Tse,

for the respondent

HEARD:

December 20, 2001

RELEASED ORALLY:

December 20, 2001

On appeal from his conviction by Justice N. D. McRae on June 6, 2001 and from the sentence imposed on June 11, 2001.

E N D O R S E M E N T

[1] We are not persuaded that the trial judge erred. In our view, there was articulable cause as described in R. v. Simpson (1993), 12 O.R. (3d) 182 (C.A.) being a reasonable suspicion that the detainee was implicated in the crime. The tip from the complainant who had identified himself by name, address and phone number, was detailed, compelling and current. There were sufficient similarities between the scene as described by the complainant and the scene confronting the officers to constitute a reasonable suspicion that the appellant had committed a serious crime involving a firearm. These were objective factors. This was not a mere intuition or hunch based only on subjective factors. In view of the dissimilarity in the clothing, there were not grounds to arrest but the officers did not effect an arrest but merely did a pat-down search. The arrest was made only after a firearm was discovered.

[2] Accordingly, the appeal from conviction is dismissed, except that the conviction on Count 1 is stayed in view of the rule against multiple convictions. We have not been persuaded there is any basis to interfere with the sentence, given the seriousness of the offence. Accordingly, while leave to appeal sentence is granted, the appeal is dismissed.

(signed) "R. Roy McMurtry C.J.O."

(signed) "M. Rosenberg J.A."

(signed) "J. C. MacPherson J.A."