COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mohammed, 2020 ONCA 9

DATE: 20200107

DOCKET: C62973

Brown, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bilaal Mohammed

Appellant

Howard L. Krongold, for the appellant

Jeffrey Pearson, for the respondent

Heard: December 19, 2019

On appeal from the convictions entered on May 26, 2016 by Justice Paul Bélanger of the Ontario Court of Justice.

REASONS FOR DECISION

[1] The appellant appeals convictions for several firearm offences, possession of property obtained by crime, and possession of cannabis for the purpose of trafficking. He has already served his sentence.

[2] At the conclusion of the hearing we allowed the appeal with reasons to follow. These are the reasons.

[3] The convictions flow out of what began as a routine traffic stop. The appellant was driving through the Town of Alfred, near Ottawa. Two Ontario Provincial Police officers, PC Stephanie Fortin-Provost, a probationary constable, and PC Marc Lauzon, who was training her, stopped the appellant’s car in the parking lot of a closed LCBO because its license plate light was out.

[4] PC Fortin-Provost approached the car and noticed smoke coming from the car that smelled like marijuana. As a result, she arrested the appellant and gave him what the Crown describes as a “soft caution” — an informal caution falling short of the caution that should have been given. The appellant was not advised of the availability of legal aid or of access to duty counsel.

[5] The appellant was given a pat-down search and nothing was found. Following this, PC Lauzon strip searched the appellant in the parking lot. He looked down the appellant’s boxer shorts and saw what he thought was the butt or the magazine of a gun. He then unzipped the appellant’s pants and dropped them to his ankles, but no gun was found. Following this search the appellant was placed in the rear seat of the police car, and PC Fortin-Provost searched the appellant’s car. She found a debt list, cash, a grinder, and several cell phones near the driver’s seat, and in a backpack on the rear seat she found two ziplocked bags of marijuana, a scale, and ammunition.

[6] PC Fortin-Provost advised PC Lauzon of what she had found, and he questioned the appellant about whether he had a gun. He told the appellant that if he turned over what he had in his pants, he would be released. The appellant admitted that he had a loaded gun, and PC Lauzon asked him to retrieve it. When he could not do so, PC Lauzon used his knife to cut the gun from the appellant’s pant leg. The appellant was arrested and cautioned after the gun was found. The appellant was then strip searched again at the police station, a search the Crown characterizes as a “body cavity” search.

[7] While at the police station, PC Fortin-Provost conducted a warrantless search of the appellant’s cellphone, reviewing old messages and taking pictures of messages she considered relevant to drug trafficking.

[8] The appellant was convicted of carrying a concealed weapon; unauthorized possession of a firearm; unauthorized possession of a firearm in a motor vehicle; possession of a prohibited or restricted firearm with ammunition without a license; possession of property obtained by crime; and possession for the purpose of trafficking.

[9] The appellant challenges the trial judge’s ruling to admit evidence obtained during his roadside strip search, his interrogation without counsel, the search of his vehicle, and the search of his cellphone.

[10] The Crown concedes that the seizures of the handgun and marijuana were temporally and contextually connected to breaches of the appellant’s ss. 7, 8, and 10(b) Charter rights. These breaches include:

• failing to formally caution the appellant following his arrest;

• failing to advise the appellant of the availability of legal aid or duty counsel;

• questioning the appellant for over twenty minutes before he could consult with counsel;

• strip searching the appellant; and,

• searching the appellant’s cellphone without a warrant.

[11] The Crown concedes, further, that the trial judge erred in his s. 24(2) analysis. In particular, he failed to consider all of the Charter breaches that occurred and failed to apply the analysis required by R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. The Crown also concedes that text messages collected from the cellphone search should have been excluded from trial.

[12] The Crown’s concessions are appropriate and we accept them.

[13] Given the Crown’s concessions, all that remains lawful is the police search of the appellant’s car. The appellant accepts that, in accordance with this court’s decision in R. v. Stonefish, 2019 ONCA 914, the police search of the appellant’s vehicle was lawful and that the firearm and marijuana would not be excluded on this account.

[14] The Crown acknowledges that the breaches in this case are serious, but takes the position that it was practically inevitable that the gun would be found. The appellant had to be searched after the bullets were found in the car and the gun would have been found pursuant to that lawful search.

[15] In our view, each of the breaches is very serious. Taken as a whole, the breaches are so egregious that the evidence must be excluded, despite the lawfulness of the search of the car.

The seriousness of the breaches

[16] The first strip search was plainly not authorized by law. It is clear from the Supreme Court’s decision in R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, that a lawful arrest does not automatically confer the authority to strip search someone, even incident to the arrest. PC Lauzon’s actions must be understood in this light. He wrongly believed that he could strip search every male he arrested for any kind of drug offence routinely, despite s. 8 of the Charter — a factor that the Crown acknowledges exacerbates the serious nature of the breach. To make matters worse, the strip search was conducted in public, and in a highly invasive manner.

[17] The appellant was questioned by the police for 20 minutes without being provided the right to counsel. This involved informational and implementational breaches of the right to counsel. The appellant was not told of his right without delay and was not given a chance to exercise it. He was induced to incriminate himself and admitted to having a gun in his pants as a result. The police persuaded the appellant to turn over the gun on the false promise that he would be released. These were serious breaches of the appellant’s s. 7 and 10(b) Charter rights.

[18] The warrantless search of the appellant’s cellphone involved the police reviewing the appellant’s incoming and saved messages and photographing eight messages that were used as evidence of drug trafficking. This search was in violation of s. 8 of the Charter, as made clear by the Supreme Court in R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, with which the police should have been familiar.

The impact of the breaches

[19] The Crown submits that the impact of the breaches was not significant because the evidence was not discovered as a result of the breaches.

[20] We disagree. The impact of the breaches on the appellant was significant regardless of the discovery of the evidence, both individually and in sum. The strip search was conducted in public and was highly invasive. Among other things, PC Lauzon looked down into the appellant’s shorts. The trial judge considered the strip search “degrading and unjustified” and reduced the length of the appellant’s sentence by 100 days as a result. The delay in providing the appellant with his right to counsel seriously undermined the appellant’s right to silence and resulted in him providing incriminating evidence. The search of the appellant’s cellphone was a significant intrusion into his privacy.

[21] In summary, this was not a case of a simple mistake that resulted in evidence being discovered. This was a series of serious rights violations, committed in apparent ignorance of well-established law, arising out of the appellant’s arrest for smoking a marijuana joint. These violations had a significant impact on the appellant’s Charter-protected interests.

The public interest in adjudicating the case on its merits

[22] Plainly, there is a strong interest in the adjudication of this case on the merits. The appellant was charged with drug trafficking and serious firearms offences, and the evidence in this case is cogent and reliable. However, in all of the circumstances of this case, the public interest in adjudication on the merits is outweighed by the seriousness of the breaches of Charter rights and their impact on the appellant’s protected interests. The police misconduct was extremely serious. It involved the significant violation of not one but several constitutional rights, all governed by well-established caselaw. Admitting the evidence connected to these breaches would bring the administration of justice into disrepute in the long term, despite the lawfulness of the search of the appellant’s car and its connection to evidence that might have been discovered lawfully in any event. Accordingly, all of the evidence must be excluded.

[23] The appeal is allowed, the convictions are set aside, and verdicts of acquittal are entered.

“David Brown J.A.”

“Grant Huscroft J.A.”

“Gary Trotter J.A.”