COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Blackwood, 2013 ONCA 219

DATE: 20130408

DOCKET: C54667

Sharpe, Watt and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marvin Blackwood

Appellant

Michael Dineen, for the appellant

Rosella Cornaviera, for the respondent

Heard: March 21, 2013

On appeal from the conviction entered by Justice Julie A. Thorburn of the Superior Court of Justice on June 10, 2010, with reasons reported at 2010 ONSC 6141.

ENDORSEMENT

[1] The appellant was convicted of five counts relating to the possession of a loaded firearm and five counts related to assaulting police and resisting arrest. The central issue at trial and the central issue on this appeal is the appellant’s contention that the police violated his ss. 8, 9 and 10(b) Charter rights and that evidence that he was carrying a loaded firearm should have been excluded under s. 24(2).

[2] The appellant was a passenger in a motor vehicle stopped by the police for making an illegal right turn. He was asked for and provided identification. The trial judge found that his removal from the vehicle amounted to an arbitrary detention contrary to s. 9. However, she also found that the search of the appellant following a physical altercation with the police was not unreasonable because the appellant’s resistance to the arbitrary detention was offensive rather than defensive and because he had used more force than was necessary against the police. It followed, in her view, that the search of his person that revealed a loaded handgun was not unreasonable. She found no breach of s. 10(b) as the appellant had been detained for only a few seconds and the police had no opportunity to advise him of his right to counsel because of the physical altercation. The trial judge further found that in any event the evidence should not be excluded pursuant to s. 24(2).

Adequacy of reasons

[3] We are not persuaded by the appellant’s argument that the trial judge misapprehended the evidence or that she failed to give adequate reasons to explain why she rejected his evidence and accepted that of the police.

[4] The unusual feature of this case is that there are four different sets of reasons to be considered.

[5] Following her initial Charter ruling, the appellant asked the judge to reconsider her reasons on the basis of the transcript of the voir dire that had only recently become available. In her initial ruling, the trial judge found that the appellant had pushed the officer causing him to fall to the ground: R. v. Blackwood, [2009] O.J. No. 5393 (S.C.). The transcript revealed that the appellant’s push had knocked the officer off-balance and that when the officer lunged forward toward the appellant, the appellant went down with the officer and fell over top of him. The trial judge considered the transcript but concluded that the fact that the officer had simply lost his balance without the appellant causing him to fall to the ground did not affect her central finding that the appellant had initiated an unjustified assault against the police officer and used excessive force: R. v. Blackwood, 2010 ONSC 1360.

[6] The appellant then asked the trial judge to recuse herself and declare a mistrial because of a reasonable apprehension of bias. Again, this was based upon what the appellant contended was a fundamental misunderstanding of the evidence. The trial judge gave detailed reasons dismissing that motion: R. v. Blackwood, 2010 ONSC 2202.

[7] Finally, the trial judge gave reasons for conviction in which she again reviewed the evidence, including the conflicting versions given by the appellant and the two police officers as to the altercation giving rise to the charge of assaulting police and resisting arrest: R. v. Blackwood, 2010 ONSC 6141.

[8] We are entitled to consider the reasons for the initial Charter ruling, the reasons for refusing to reconsider the Charter ruling, and the reasons for refusing the recusal and mistrial motions as those reasons all relate to the same issue and were prompted by motions brought by the appellant himself. Whether those reasons are read separately or as a whole and together with the reasons for conviction, a clear and consistent chain of reasoning is revealed.

[9] First, the trial judge found the facts in the appellants’ favour with respect to his removal from the car. She ruled that he had been arbitrarily detained. Many of the appellant’s submissions as to the implausibility of the officers’ accounts of what occurred relate to the issue of whether there was an arbitrary detention. We agree with the respondent that as the trial judge found that the appellant was arbitrarily detained, he cannot succeed on this appeal on the basis of any shortcoming in her reasons for finding in his favour on that issue.

[10] Second, with respect to the search of the appellant, the trial judge identified the central issue to be whether or not the appellant had used excessive force in resisting the police once he was removed from the vehicle. She identified the difference between the version offered by the appellant and the version offered by both officers as to what started the altercation. The appellant claimed Officer Haynes had required the appellant to put his hands on the car and that the appellant had “swatted” at Officer Haynes’ arm. Both officers denied that the appellant was asked to put his hands on the car and testified that the appellant had pushed Officer Haynes hard with both hands causing Officer Haynes to lose his balance and leading to the altercation that followed. During that altercation, Officer Haynes and the appellant fell to the ground. When the other officer joined the fray, the appellant bit him three times for which that officer had to seek medical attention. Officer Haynes then choked the appellant and handcuffed him, leading to the search when the appellant was found to be carrying a loaded handgun.

[11] The trial judge considered the conflicting versions given by the appellant and the police officers as to this incident and rejected the appellant’s version of having done nothing more than “swatted” at Officer Haynes’ arm.

[12] In our view, the trial judge’s reasons provide adequate explanation for her finding that the appellant, although arbitrarily detained, used excessive force. She was faced with two conflicting versions of whether the appellant reacted to the arbitrary detention with excessive force and she explained why she preferred the evidence of the two police officers. We cannot agree that her reasons for doing so were based upon any misapprehension of the evidence or that her reasons fail to provide a basis for appellate review. The appellant’s submission, ably advanced by Mr. Dineen, in the end amounts to an invitation to retry this aspect of the case and that we cannot do.

Section 10(b) right to counsel

[13] The trial judge found that the police had no opportunity to advise the appellant of his right to counsel as it was a matter of seconds between the time he stepped out of the car and the time the altercation broke out. We cannot agree that that finding was unsupported by the evidence or that it reveals any error of law.

Exclusion of evidence pursuant to s. 24(2)

[14] Finally, we see no error in the trial judge’s conclusion that in any event, the evidence of the loaded firearm should not be excluded pursuant to s. 24(2) of the Charter.

Disposition

[15] Accordingly, the appeal is dismissed.

“Robert J. Sharpe J.A.”

“David Watt J.A.”

“Alexandra Hoy J.A.”