Court of Appeal for Ontario

Citation: R. v. Allison, 2013 ONCA 461

Date: 2013-07-04

Docket: C53618

Before: Laskin, Tulloch and Strathy JJ.A.

Between

Her Majesty the Queen

Respondent

and

Dalbert Bryan Allison

Appellant

Counsel:

Mark Halfyard, for the appellant

Susan G. Ficek, for the respondent

Heard and released orally: June 25, 2013

On appeal from the conviction entered on February 7, 2011 by Justice Julie Alexandra Thorburn of the Superior Court of Justice, sitting without a jury.

Endorsement

[1] The appellant, Dalbert Allison, was convicted of several weapons offences. The case turned on a Charter application in which the appellant sought to exclude the gun that the police had seized. The trial judge found that the appellant had been arbitrarily detained contrary to s. 9 of the Charter but that the evidence seized was admissible under s. 24(2) of the Charter.

[2] On appeal, the appellant contends that the trial judge erred in her s. 24(2) ruling. The Crown contends that the trial judge erred in her s. 9 ruling. The Crown argues that the police were justified in detaining the appellant for investigative purposes. Alternatively, the Crown asks that we uphold the trial judge’s s. 24(2) ruling.

[3] We do not need to decide whether the trial judge erred in finding a breach of s. 9. Assuming her finding was correct, we are all of the view that she did not err in holding that the evidence was admissible under s. 24(2) of the Charter.

[4] The third prong of Grant obviously favours admissibility. The gun was reliable evidence. Assuming the second prong of Grant favours exclusion, the s. 24(2) ruling turns on the first prong of Grant. The trial judge found that the police’s conduct was neither egregious nor abusive and that the police acted in good faith. Mr. Halfyard, in his typically candid submission, acknowledges that to succeed on this appeal, he has to overturn this finding and show that the police’s Charter infringing conduct was serious.

[5] In our view, the trial judge’s finding on the police’s conduct was reasonably supported by the following considerations taken together.

• The context: The police were patrolling a high crime area where there had been a fatal shooting two days earlier.
• The change in the appellant’s demeanor: The appellant looked shocked when he first saw the police.
• The police’s perception: The police believed, albeit apparently mistakenly, that on seeing the officers the appellant put his hand to his waist.
• The appellant’s flight: The appellant fled by bike immediately on seeing the police.
• The police’s questioning: The trial judge found that the police’s question of the appellant “Why did you run?” was innocuous.
• The period of detention: The appellant was detained only briefly before telling the police that he had a gun.

[6] In the light of these considerations, we see no error in the trial judge’s s. 24(2) ruling.

[7] Accordingly, the appeal is dismissed.

“John Laskin J.A.”

“M.H. Tulloch J.A.”

“G.R. Strathy J.A.”