DATE: 20051108

DOCKET: C40234

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – GEORGE MACKAY (Appellant)

BEFORE:

ROSENBERG, MOLDAVER and SHARPE JJ.A.

COUNSEL:

Timothy E. Breen

for the appellant

Rick Visca

for Attorney General of Canada

HEARD:

October 25, 2005

On appeal from the conviction imposed by Justice J.D. Bark of the Ontario Court of Justice dated June 6, 2003.

E N D O R S E M E N T

[1] We are satisfied that this conviction can only be sustained if the conduct of the police immediately before they found hashish in the appellant’s truck constituted a valid and properly executed “investigative detention”.

[2] At his trial, the appellant served notice of a Charter application alleging that the police did not have reasonable and probable grounds to stop and detain the appellant and that his ss. 8 rights were violated. The Crown’s response asserted that the police had reasonable and probable grounds to arrest the appellant and made no mention of investigative detention. However, on the day of trial, the Crown abandoned the position that there were reasonable and probable grounds for arrest and advanced for the first time the argument that there had been a valid investigative detention.

[3] In his brief reasons accepting the Crown’s position, the trial judge found that the police had a sufficient basis to conduct an investigative detention but he did not consider the propriety of the duration of the detention or the manner in which the investigation was conducted.

[4] It would be difficult to fault the trial judge for this shortcoming in view of the way in which the case was presented and as he did not have the benefit of the decision of the Supreme Court of Canada in R. v. Mann (2004), 2004 SCC 52, 185 C.C.C. (3d) 308 or R. v. Elias (2005), 2005 SCC 37, 196 C.C.C. (3d) 481. However, we are not satisfied that had the trial judge considered the issue in the light of those cases, the result would have necessarily been the same.

[5] Unfortunately, the record is insufficient to enable us to determine the issue. Accordingly, in the unusual circumstances of this case, the appropriate remedy is to allow the appeal, set aside the conviction and order a new trial. At the new trial it will, of course, be open to the appellant to raise any Charter issue properly arising from the circumstances including the issue of the application of the right to counsel to an investigative stop: see R. v. Mann at para. 22; R. v. Elias.

“M. Rosenberg J.A.”

“M.J. Moldaver J.A.”

“Robert J. Sharpe J.A.”