COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gyimah, 2014 ONCA 592

DATE: 20140818

DOCKET: C53305

Sharpe, Simmons and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Anthony Gyimah

Appellant

Julian K. Roy, for the appellant

Dena Bonnet, for the respondent

Heard and released orally: August 12, 2014

On appeal from the conviction entered on April 1, 2009 by Justice G.S. Lapkin of the Ontario Court of Justice, dated April 1, 2009.

ENDORSEMENT

[1] We reserved our decision on leave to appeal and permitted Mr. Roy to argue the merits of the appeal. Despite his very capable submissions, at the end of the day, we are not persuaded that leave to appeal should be granted.

[2] The issues raised involve questions of mixed fact and law. The authorities on causing a disturbance make it clear that consideration of the context lies at the heart of the analysis: see R. v. Lohnes, 1992 CanLII 112 (SCC), [1992] 1 S.C.R. 167 at para. 15:

“The lawful jangling of the street musician at an urban intersection at noon may become criminal if conducted outside a citizen’s bedroom window at three o’clock in the morning.

[3] The appellant was shouting on a residential street late at night and one resident eventually came to his balcony and said “knock it off”. In our view, it was open to the trial judge to find the offence of causing a disturbance had been made out.

[4] We see no merit in the argument that the appellant was psychologically detained when he pushed one of the officers. The appellant’s own evidence was that he freely walked to his house. The officers’ evidence was that when the appellant asked them to get out of his way, they parted so that he could pass between them.

[5] Accordingly, leave to appeal is dismissed.

“Robert J. Sharpe J.A.”

“Janet Simmons J.A.”

“G. Pardu J.A.”