Court of Appeal for Ontario

Date: 2020-02-10 Docket: C65529

Judges: Rouleau, Benotto and Harvison Young JJ.A.

Between:

Her Majesty the Queen Respondent

And

Jeffery Antwi Appellant

Counsel:

Michael Dineen and Gabriel Catner, for the appellant Scott Wheildon, for the respondent

Heard and released orally: February 4, 2020

On appeal from the convictions entered on May 3, 2018 by Justice Nancy J. Spies of the Superior Court of Justice.

Reasons for Decision

[1] The appellant appeals his conviction for possession of cocaine for the purpose of trafficking and possession of proceeds of crime.

[2] Police officers responded to an emergency call about a possible gun shot on the tenth floor of a building. When they arrived at the building, they saw the appellant and a woman emerge from the elevator. Believing the appellant was holding the woman at gunpoint, the officers intercepted and detained the appellant as he was exiting the lobby.

[3] Concerned that he had concealed a weapon, the police officers detained the appellant and attempted a pat down search. The appellant stiffened and tried to pull away, in effect, resisting the search. The appellant did not respond to the officer’s enquiry as to whether he in fact had a weapon.

[4] The officers, believing that they had grounds to arrest the appellant, arrested him for wilfully obstructing a peace officer. They placed him under arrest and discovered the cocaine and money in the search incident to arrest.

[5] The appellant advances two principal grounds of appeal. The first is that the trial judge took the appellant’s refusal to answer police questions as supporting the reasonable basis for his arrest for wilful obstruction of a peace officer in the execution of his duty. This, it is submitted, would constitute an error of law.

[6] The second basis for appeal is that there were insufficient objective grounds to arrest the appellant for wilful obstruction of a peace officer in the execution of his duties.

[7] The appellant submits that because the court cannot take into account the failure to answer police questions, the only remaining basis for arrest is the appellant’s alleged stiffening and attempt to pull away as the police attempted their pat down search. The video, in the appellant’s submission, does not show any such resistance or attempt to pull away. According to the appellant, by the time the pat down search was conducted, there was no objective basis for the officer’s concern that the appellant may have had a gun.

[8] In our view, the appeal should be dismissed.

[9] As for the first ground of appeal, the trial judge’s reference to the failure to answer questions is part of the larger context considered by the trial judge in assessing the conduct of the appellant, as described by the officers, specifically that the appellant stiffened and tried to pull away as the officers attempted the pat down search.

[10] With respect to the second ground of appeal, the trial judge found that there was active resistance and that the appellant tried to pull away as the officers attempted the pat down search. This pat down search was, in the trial judge’s view, reasonably required for the officers’ safety. She was satisfied that the officer’s actions were reasonable. These are findings of fact that are supported by the evidence of the officers, including the officer’s testimony that he believed that the gun had been hidden on the appellant’s person, the video, and the circumstances surrounding the events, including the 911 call.

[11] For these reasons, the appeal is dismissed.

“Paul Rouleau J.A.”

“M.L. Benotto J.A.”

“A. Harvison Young J.A.’