R. v. Hickey
The convictions for impaired driving and dangerous driving were upheld because there was evidence capable of supporting them and the issues were primarily credibility matters for the trial judge; the conviction for assault resisting arrest was set aside because the appellant's act of pulling his arm away while...
Source-derived case information.
- Citation
- C37471
- Parties
- Respondent: Her Majesty the Queen; Appellant: Paul Hickey
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 27 January 2004
- Procedural Posture
- Criminal Appeal / Court of Appeal Decision on Convictions and Sentence Appeal
- Outcome
- Appeal dismissed in part and allowed in part: impaired driving and dangerous driving convictions upheld; conviction for assault resisting arrest set aside; sentence appeal moot.
- Legal Topics
- Impaired Driving, Dangerous Driving, Assault Resisting Arrest, Resisting Arrest (s.129 Criminal Code), Appeal on Credibility Findings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Her Majesty the Queen
Respondent
Paul Hickey
Appellant
Procedural Posture
Criminal Appeal / Court of Appeal Decision on Convictions and Sentence Appeal
Legal Issues
- 1 Whether evidence supported convictions for impaired driving and dangerous driving
- 2 Whether appellant's act of pulling his arm away amounted to assault with intent to resist arrest
- 3 Whether the summary conviction appeal judge erred in law
Ratio Decidendi
The convictions for impaired driving and dangerous driving were upheld because there was evidence capable of supporting them and the issues were primarily credibility matters for the trial judge; the conviction for assault resisting arrest was set aside because the appellant's act of pulling his arm away while officers exerted force did not, on the facts found, constitute assault though it may have constituted an offence under s.129 of the Criminal Code.
Court Disposition
Appeal dismissed in part and allowed in part: impaired driving and dangerous driving convictions upheld; conviction for assault resisting arrest set aside; sentence appeal moot.
Orders
- Grant leave to appeal in the impaired driving and dangerous driving counts but dismiss those appeals.
- Set aside the conviction for assault resisting arrest.
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Hickey Collection Decisions of the Court of Appeal Date 2004-01-27 Docket numbers C37471 Judges Sharpe, Robert J.; Armstrong, Robert Patrick; Blair, Robert Ashley Subject Criminal Decision Content DATE: 20040127 DOCKET: C37471 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) - and - PAUL HICKEY (Appellant) BEFORE: SHARPE, ARMSTRONG and BLAIR JJ.A. COUNSEL: Graham F. Pinos, Q.C. for the appellant Shawn Porter for the respondent HEARD & ENDORSED: January 26, 2004 On appeal from the conviction and sentence imposed by Justice M.A. Scott of the Superior Court of Justice dated October 15 and December 1, 1999. APPEAL BOOK ENDORSEMENT [1] We see no merit in the appeal against the conviction for impaired driving and dangerous driving. In our view, the summary conviction appeal judge did not err in dismissing the appeal on those counts on the ground that there was evidence before the trial judge capable of supporting the conviction and that the case essentially turned on credibility. [2] However, we accept the appellant's submissions that the court below erred in law with respect to the count of assault with intent to resist arrest on which Rosenberg J.A. granted leave to appeal. In our view, on the facts found by the trial judge, there was no assault. The appellant was attempting to disengage from physical contact with the police officers who were attempting to arrest him and exerting considerable physical force against him. The act of pulling his arm away from the police officers did not, in law, amount to an assault. The appellant's action almost certainly amounted to an offence under s. 129 of the Criminal Code, but not assault resisting arrest, the offence charged. [3] The appeal against sentence is moot and was not pursued. [4] Accordingly we grant leave to appeal in the impaired driving and dangerous driving counts but dismiss those appeals. The conviction for assault resisting arrest is set aside.