DATE: 20001220

DOCKET: C31869

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) –and– GIFTON NICELY (Appellant)

BEFORE: FINLAYSON, WEILER and ABELLA JJ.A.

COUNSEL: Matthew McGarvey, for the appellant

Bradley Reitz, for the respondent

HEARD: November 9, 2000

On appeal from the conviction imposed by Justice Bruce C. Hawkins, sitting without a jury, dated October 28, 1998 and from the sentence imposed by Justice Hawkins dated November 6, 1998.

E N D O R S E M E N T

[1] The appellant was convicted of possession of cocaine for the purpose of trafficking. He was sentenced to 15 months incarceration. He appeals from his conviction and, if leave is granted, his sentence. The issue on this appeal is whether the appellant was unlawfully stopped and searched and, if so, whether the fruits of that search, namely 16.66 grams of crack cocaine should be excluded.

[2] Two undercover officers saw the appellant engage in hand contact with a male person in an area believed by the police to be frequented by drug traffickers. These observations aroused the suspicions of the undercover officers. They admitted that they had no grounds to arrest the appellant. Nonetheless, the undercover officers approached the appellant. The appellant struck one of the undercover officers in the face as they were starting to identify themselves. The officer, however, decided “to give the appellant the benefit of the doubt” and not to arrest him for assault. The officer told the appellant to settle down, put his arm on him, and told him, “We are going to have a chat.” One of the officers ushered the appellant off the sidewalk towards a building. The appellant was questioned by police with respect to his identification and immigration status. The officer had a policing function respecting immigration status pursuant to s.103 of the Immigration Act. The officer’s stated purpose in asking the appellant questions about his immigration status was to ascertain if he could obtain some basis for holding him in order to search him. After the appellant gave the officers a name, one of them radioed the Street Crime Unit of the police to obtain immigration information concerning the name the appellant had given. During this time, the appellant remained in the presence of the other officer. When the information came back that the appellant was not a person known to the Immigration authorities, he was arrested on a purported violation of the Immigration Act. During the search in connection with his arrest, crack cocaine was found on the appellant. At his trial, the appellant challenged the admissibility of the cocaine on the basis of ss.8, 9 and 10(b) of the Charter. Subject to admissibility, possession of cocaine was admitted but the purpose of trafficking was not. The trial judge found no violation of the appellant’s Charter rights and the cocaine was admitted. He also accepted that the purpose of possession was trafficking and so convicted the appellant.

[3] At the appellant’s trial on the matter in appeal, the police officer admitted he was wrong in his interpretation of the law relating to immigration status and there is no reason on this record to believe the appellant was not legally in this country. Furthermore, we have no idea to whom the Street Crime Unit spoke and why it was significant that the name given by the appellant was not known to the Immigration authorities.

[4] The trial judge held that an 18-month sentence would be appropriate but imposed a fifteen-month sentence in recognition of his three-month pre-trial custody on a one-to-one basis.

[5] The appellant says that stopping him was illegal, his arrest was illegal and accordingly the search incident to his arrest was also illegal. We agree that the appellant was detained prior to his arrest. The police had assumed control over the movements of the appellant when they commanded him, “We are going to have a chat”, moved him from the sidewalk and left him in the presence of the one police officer while checking on his identity. The trial judge erred in holding that the appellant was not arbitrarily detained. The actions of the police cannot be justified under any powers of the police at common law. Nor, in the circumstances, was there any statutory basis for the appellant’s detention under the Immigration Act. The Crown has not satisfied us that the appellant would have made the relevant statements concerning his identity and immigration status had he not been detained or had he been advised of his right to counsel upon being detained. The appellant’s arrest was illegal. The appellant’s statements concerning his identity and immigration status are not probative of the appellant’s guilt on this charge. Those statements were, however, used as the pretext for the appellant’s arrest so that the police could search him. It was that search which produced the incriminating evidence. Absent the violation of the appellant’s Charter rights, the evidence from the search would not have been obtained. In interfering with the appellant’s fundamental right to move about within the community as they did, it can scarcely be said that the police were acting in good faith. The evidence must be excluded under section 24(2) of the Charter. At that stage, the police did not have a basis in law to detain the appellant. The police violated the appellant’s s.10(b) right to counsel and his rights under s.8 were also consequently violated. In our opinion, the evidence under s.24(2) of the Charter must be excluded.

[6] The appeal is therefore allowed, the conviction quashed and an acquittal entered.

Signed: “G.D. Finlayson J.A.”

“K.M. Weiler J.A.”

“R.S. Abella J.A.”