CITATION: R. v. Walker, 2007 ONCA 104

DATE: 20070219

DOCKET: C45735

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – WILLIAM WALKER (Appellant)

BEFORE: BLAIR, LANG and MacFARLAND JJ.A.

COUNSEL:

Alan D. Gold and Matthew Barteaux for the appellant

John McInnes for the respondent

HEARD & RELEASED ORALLY: February 9, 2007

On appeal from the decision of the summary conviction appeal court dated July 5, 2006 by Justice Ian V.B. Nordheimer of the Superior Court of Justice dismissing the appeal from the conviction entered on October 18, 2004 by Justice Annemarie E. Bonkalo of the Ontario Court of Justice.

E N D O R S E M E N T

[1] This is an appeal from the summary conviction appeal judge, Nordheimer J., who dismissed an appeal from the trial judge, Bonkalo J., who had convicted the appellant police officer, William Walker, on a charge of assault causing bodily harm.

[2] We see no error in the reasons of the summary conviction appeal judge that would permit us to interfere with his decision.

[3] In our view, whether the fact of detention is determinative or not, the finding that there was a detention was fact specific. Since it was open to the trial judge to find a detention on the evidence before her, the summary conviction appeal judge was correct not to interfere with that determination.

[4] As well, given the findings of the trial judge, it was open to the summary conviction appeal judge to conclude that there were no reasonable grounds for the appellant to arrest the complainant.

[5] Even if there was a “disturbance,” in common parlance, there was no “disturbance” within the meaning of the Criminal Code in this case. The trial judge found that the appellant had no right to continue investigating or questioning the complainant. While the complainant’s loud and rude protestations may have been “disturbing” to some, they did not constitute reasonable grounds for the appellant whose improper actions instigated the exchange to believe there was a criminal disturbance.

[6] As the summary conviction appeal judge said at paragraph 34:

It would have the proverbial “chilling effect” on the rights of citizens to object to such abuse by police officers if the consequences of objecting were to be for the objectors to then find themselves charged with a criminal offence such as causing a disturbance. In so concluding, I do not mean to condone the conduct of the complainant regarding the manner in which he chose to express his objections. I, like the trial judge, find his use of insulting language towards the officer disturbing. However, it remains the fact that, however objectionable the conduct of the complainant may have been, on the facts before the trial judge she was entitled to find, as a fact, that it did not rise to the level of causing a disturbance nor could the appellant reasonably have concluded that it did.

[7] Accordingly, the appeal is dismissed.

“R.A. Blair J.A.”

“S.E. Lang J.A.”

“J. MacFarland J.A.”