Court of Appeal for Ontario

Date: 20220920 Docket: C69718

Judges: Benotto, Miller and Coroza JJ.A.

Between:

His Majesty the King Respondent

and

Amanuel Mengesha Appellant

Counsel:

Omar Abou El Hassan, for the appellant Marie Comiskey, for the respondent

Heard: September 12, 2022

On appeal from the conviction entered by Justice Paul B. Kane of the Superior Court of Justice on February 24, 2021, with reasons reported at 2021 ONSC 1809, and the sentence imposed orally on March 22, 2021.

Reasons for Decision

[1] The appellant was convicted of drug trafficking, firearm and weapons offences. He appeals his convictions, alleging that the firearm, drugs and cash seized by police should have been excluded because they were obtained in a manner that violated his rights under ss. 7, 8, 9, 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms.

[2] The trial judge found that the appellant’s rights were violated but did not conduct a s. 24(2) analysis, concluding that the incriminating evidence was not discovered as a result of the breaches. The Crown concedes that this was an error of law. The s. 24(2) threshold does not require a causal relationship between the breach and the discovery of the evidence: R. v. Phalah, [2004] 188 C.C.C. (3d) 289, at para. 45; R. v. Whittwer, 2008 SCC 33, [2008] 2 S.C.R. 35, at para. 21. The Crown concedes, and we agree, that the discovery of the gun immediately arose from the appellant’s interaction with the police, and that a s. 24(2) analysis is necessary.

[3] Consequently, the s. 24(2) analysis is to be done by this court: R. v. Keshavarz, 2022 ONCA 312, 413 C.C.C. (3d) 263, at para. 58.

[4] The facts are straightforward.

[5] Constable Valin responded to a call from an off-duty police colleague saying that a group of males were congregating by the Rideau Canal and smoking marijuana. Constable Valin came to the site and saw the appellant. He smelled burning marijuana and told the group that it was illegal to possess marijuana. He then detained the appellant for investigative purposes. The appellant provided identification and Constable Valin asked him to show him the contents of the fanny pack he was wearing. The appellant refused. Constable Valin told the appellant that if he did not show him, he would arrest him. The appellant still refused and was placed under arrest. He was searched, during which a folding knife, small bags containing what is now known to have been cocaine and fentanyl, and cash were found. He was then arrested for possession of a concealed knife and read his right to counsel and a warning pursuant to s. 524 of the Criminal Code, R.S.C. 1985, c. C-46. Meanwhile, another officer saw the appellant toss the fanny pack into nearby bushes. It contained a loaded handgun.

[6] The trial judge found that the initial detention was justified and the demand for identification was not an unreasonable search. However, the trial judge determined that the attempt to search the fanny pack prior to arrest breached the appellant’s ss. 7 and 8 Charter rights. Further, the appellant was not told the reason for his detention, nor informed of his right to counsel, in violation of ss. 10(a) and (b) of the Charter. The trial judge found that there were reasonable and probable grounds to arrest the appellant, so the arrest and the search incident to arrest were justified.

[7] In short, the detention and the arrest were lawful, but during the two-minute interval between the detention and arrest, the appellant’s Charter rights were violated.

[8] In order to assess the impact of these breaches, if any, on whether the evidence should have been included, we turn to the three factors in the Grant analysis.

(1) The severity of the breaches

[9] The appellant submits that, as the trial judge stated, the breaches were severe. An experienced police officer breached several of the appellant’s Charter rights. The respondent submits that the breaches were moderated by the fact that they occurred in a short, two-minute time span between a lawful detention and a lawful arrest.

[10] We agree that the breaches were serious. The officer not only breached the appellant’s rights, but told him he would be arrested for possession of marijuana if he did not comply with the request to view the contents of the pack. Although the police officer would have been entitled to search had he arrested the appellant, he had no right to demand that the appellant submit to search on threat of arrest. This aggravates the seriousness of the breaches.

(2) The impact of the breaches on the appellant’s Charter protected interest

[11] The appellant submits that the impact of the breaches must be viewed in the context of the investigation of a minor offence, which would be legalized within a few months. Thus, the impact is serious.

[12] We do not agree that the impact was significant. There was no connection between the breach and the discovery of the evidence. Although not a threshold requirement, this factors into the analysis. The evidence would have been discovered in any event.

(3) Society’s interest in an adjudication on the merits

[13] The appellant acknowledges the scourge on society of guns and opioids, but submits that society’s interest in having a legal system that is beyond reproach points toward exclusion.

[14] We do not agree that society’s interest in adjudication weighs toward exclusion. On the contrary, the guns, fentanyl, and cocaine represent a serious and ongoing problem for society. Collectively, they amount to a significant danger to the community. The damage caused to families, innocent law-abiding citizens, and the social fabric cannot be overstated. Society looks to the courts to recognize the day-to-day danger caused by drugs and firearms.

[15] These offences are so serious that, when the three factors are balanced, the evidence must be included. Exclusion would bring the administration of justice into disrepute.

[16] The breaches were serious but moderated by the fact that they occurred during a period of two minutes between the lawful detention and lawful arrest. The impact of the breaches was minimal because there was no connection between the breach and the discovery of the evidence. The most significant issue is the importance to the administration of justice. There was a loaded firearm in a public place. The courts have referred to fentanyl as a public enemy. These facts weigh heavily on society’s interest in a trial on the merits.

[17] The evidence is admitted under s. 24(2) and the conviction appeal is dismissed. The sentence appeal is dismissed as abandoned.

“M.L. Benotto J.A.” “B.W. Miller J.A.” “S. Coroza J.A.”