Court of Appeal for Ontario

Date: 2004-01-27 Docket: C37471

Re: Her Majesty the Queen (Respondent) – and – Paul Hickey (Appellant)

Before: Sharpe, Armstrong and Blair JJ.A.

Counsel: Graham F. Pinos, Q.C. for the appellant Shawn Porter for the respondent

Heard: January 26, 2004

On appeal from the conviction and sentence imposed by Justice M.A. Scott of the Superior Court of Justice dated October 15 and December 1, 1999.

Appeal Book Endorsement

[1] We see no merit in the appeal against the conviction for impaired driving and dangerous driving. In our view, the summary conviction appeal judge did not err in dismissing the appeal on those counts on the ground that there was evidence before the trial judge capable of supporting the conviction and that the case essentially turned on credibility.

[2] However, we accept the appellant’s submissions that the court below erred in law with respect to the count of assault with intent to resist arrest on which Rosenberg J.A. granted leave to appeal. In our view, on the facts found by the trial judge, there was no assault. The appellant was attempting to disengage from physical contact with the police officers who were attempting to arrest him and exerting considerable physical force against him. The act of pulling his arm away from the police officers did not, in law, amount to an assault. The appellant’s action almost certainly amounted to an offence under s. 129 of the Criminal Code, but not assault resisting arrest, the offence charged.

[3] The appeal against sentence is moot and was not pursued.

[4] Accordingly we grant leave to appeal in the impaired driving and dangerous driving counts but dismiss those appeals. The conviction for assault resisting arrest is set aside.