CITATION: R. v. Okash, 2009 ONCA 37

DATE: 20090115

DOCKET: C48316

COURT OF APPEAL FOR ONTARIO

Doherty, MacPherson and Lang JJ.A.

BETWEEN:

Her Majesty the Queen

Appellant

and

Abdi Okash

Respondent

Maureen McGuire, for the appellant

Nicholas A. Xynnis, for the respondent

Heard: January 13, 2009

On appeal from the acquittal entered by Justice Hryn of the Ontario Court of Justice dated December 7, 2007.

APPEAL BOOK ENDORSEMENT

[1] The trial judge made a finding that the Crown had not established the reasonableness of the “safety” search conducted as an incident of the arrest based entirely on what he regarded as an irreconcilable conflict in the police evidence. That conflict concerned the pre-arrest briefing and whether the lead officer told the arresting officers that the respondent was known to carry a gun. One of the arresting officers testified he was unaware of that fact. The lead officer testified that he gave the arresting officers this information.

[2] The trial judge erred in law in deciding the s. 8 issue by failing to consider relevant evidence: see R. v. Harper (S.C.C.). The officers at the scene of the arrest gave evidence of their observations at the scene that precipitated a quick “safety” search of the upstairs. That evidence, if accepted, justified the search.

[3] The conflict with the evidence of the lead officer described above was at best neutral and arguably supportive of the credibility of the arresting officers’ evidence concerning the reason for their search. The trial judge’s failure to consider this body of evidence constitutes reversible error.

[4] We agree with counsel for respondent that there was evidence from a defence witness which could lead to a finding that the search was unjustified and in breach of s. 8. The trial judge did not address this evidence. There must be a new trial.

[5] The appeal is allowed and a new trial ordered.