



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Allison, 2013
    ONCA 461

DATE: 20130704

DOCKET: C53618

Laskin, Tulloch and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dalbert Bryan Allison

Appellant

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 judges 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 polices 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 polices
Charter
infringing conduct was
    serious.

[5]

In our view, the trial judges finding on the polices 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 appellants demeanor: The appellant looked
    shocked when he first saw the police.

·

The polices perception: The police believed, albeit apparently
    mistakenly, that on seeing the officers the appellant put his hand to his
    waist.

·

The appellants flight: The appellant fled by bike immediately on
    seeing the police.

·

The polices questioning: The trial judge found that the polices
    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
    judges s. 24(2) ruling.

[7]

Accordingly, the appeal is dismissed.

John Laskin J.A.

M.H. Tulloch J.A.

G.R. Strathy J.A.


