Court of Appeal for Ontario

Date: 20220210 Docket: C66471

Before: Feldman, MacPherson and Thorburn JJ.A.

Between: Her Majesty the Queen, Respondent and Abdoulkarim Mohamed, Appellant

Counsel: Howard L. Krongold, for the appellant Allyson Ratsoy, for the respondent

Heard: January 18, 2022 by video conference

On appeal from the convictions entered on February 2, 2018 by Justice Célynne S. Dorval of the Ontario Court of Justice.

MacPherson J.A.:

A. Introduction

[1] Following a trial in the Ontario Court of Justice, the trial judge convicted the appellant of possessing 2 grams of marijuana, 20 grams of crack cocaine for the purpose of trafficking, and a knife for a purpose dangerous to the public peace.

[2] At trial, the appellant brought an application alleging that police breached his rights under ss. 7, 8, 9 and 10(b) of the Charter and seeking exclusion of the evidence obtained as a result of these breaches pursuant to s. 24(2) of the Charter. The trial judge found that the police did not breach any of the appellant’s Charter rights and dismissed the application for the exclusion of the evidence obtained by virtue of the search.

[3] The appellant appeals from the Charter ruling and the convictions entered for the three offences.

B. Facts

(1) The parties and events

[4] In the late evening (around 11:30 p.m.) of March 23, 2016, two police constables were on patrol in their cruiser in Ottawa. They responded to a call about a sexual assault by “two intoxicated Somalian males” [1] inside unit 10 of a residential building. Upon arriving at the building, the police saw the appellant, a black man, in the lobby of the building. As one of the police officers “ran or rushed” towards the building, the man came out and started to walk away. When one of the officers asked to speak to the man, the man stopped and spoke to the officer. The officer asked him which apartment he was coming from and the man responded that he was coming from unit 10.

[5] At 11:30 p.m., the first constable placed the appellant under arrest for sexual assault and break and enter and read him the standard police caution and his Charter s. 10(b) right to counsel. He searched the appellant incident to arrest and found a four inch knife and two grams of marijuana. This constable advised the appellant that he would be charged with possession of marijuana and possession of a knife for an unlawful purpose.

[6] Soon after the arrest, the second constable took custody of the appellant. He noted that the appellant was exhibiting indicators of intoxication. The second constable led the appellant to the police cruiser, went over the reasons for arrest, and “made certain he understood his rights to counsel and caution”. According to the second constable, the appellant replied: “I want a lawyer. I don’t want to talk to you no more”.

[7] The second constable ran a Canadian Police Information Centre check and learned that about two weeks earlier the appellant was found in possession of three grams of marijuana, had admitted to hiding drugs between his buttocks, and that in 2014 he was convicted of trafficking in crack cocaine.

[8] As the second constable, accompanied by a third constable, drove the appellant to the police station, the appellant was, according to the second constable, very talkative. He was voluble and rambling and engaged in “a very, very circular conversation and largely one-sided conversation where he would express for me that … he needed a break and that he was a good guy and minimizing the recency and severity of his previous drug contacts and … so on”.

[9] As they approached the police station, the second constable asked the appellant whether he was hiding any contraband, such as weapons or drugs, on his person. He testified that he did this with everyone “as a matter of practice”.

[10] The second constable then turned his attention to the search that police would conduct in the cellblock. He told the appellant that the cellblock search would be more thorough than the roadside pat-down search and encouraged him “that if I missed anything, any drugs, weapons or contraband, that he should be honest with me in advance so that I can let the cellblock staff know.”

[11] In response to the second constable asking the appellant about whether police missed anything on the accused’s person, the appellant fell silent for about a minute. The second constable inferred from this that the appellant was hiding something on his person:

That was the only time where Mr. Mohamed stopped talking, and it was – it was a pronounced silence. There was no 10 second, 15 second pause and then back to the same conversation loop. It was mouth shut and clearly thinking about what I said for the first time in my entire interaction with him. And that spoke volumes to me that, you know, I’m thinking, I’m starting to think I’ve missed something and that [the first constable] missed something because the change in behaviour was so marked.

[12] The other officer in the police cruiser, the third constable, testified that he remembered the second constable “asking [the appellant] at some point if [he] had any drugs on him”. In response, “the accused became very quiet and stopped answering any question, any further questions”.

[13] Although the second constable cited several reasons for believing that the appellant was secreting drugs on his body, “the single biggest indicator” for him was the appellant’s change in behaviour and silence when the second constable asked him whether he was hiding drugs on his person.

[14] Ultimately, once they arrived at the police station, the second constable obtained authorization for a strip search from the cellblock sergeant. During a rectal search, the police discovered a package containing 20 grams of crack cocaine which was packaged in a way consistent with trafficking.

(2) The trial judge’s decision

[15] The trial judge held that the appellant was not detained during his initial interaction with the first constable at or very near the residential building that was the focus of the original call to the police. The trial judge found that the appellant’s arrest at this location was lawful.

[16] The trial judge also determined that both the initial search of the appellant incident to arrest and the strip search at the police station were reasonable.

[17] Based on these three findings – detention, arrest, search – the trial judge concluded: “I have found no breach of the defendant’s Charter rights and the Application for exclusion of evidence is denied.” It followed that she convicted the appellant of the three offences for which he had been charged.

C. Issues and Analysis

[18] The Crown concedes that the police infringed the appellant’s Charter rights in two respects. In its factum, the Crown frames its concession in this fashion:

The only points at which the appellant’s Charter rights were breached occurred in the police car when [the second constable] asked him whether he had drugs on his person, and at the station when his silence in response to that question was used as a ground to justify the strip search. These breaches, while serious and troubling, had little effect on the appellant’s Charter-protected interests because the grounds for the strip search were numerous and compelling quite apart from the change in demeanour.

[19] The Crown’s concessions, which I accept, mean that the police infringed two of the appellant’s Charter rights during their interaction with him on the night in question – his right “to retain and instruct counsel without delay and to be informed of that right” and his right “to be secure against unreasonable search or seizure” as protected in Charter ss. 10(b) and 8 respectively.

[20] The question then becomes whether the evidence the police obtained as a result of their investigation, arrest and search of the appellant – 20 ounces of crack cocaine – should have been excluded at the trial because of s. 24 of the Charter, which provides:

24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[21] The test for determining whether evidence obtained in violation of an accused’s Charter rights should be excluded from the trial is still the one set out by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, at para. 71:

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits.

[22] In my view, the two components of the police misconduct in this case were serious. Indeed, I observe that in its factum the Crown respondent describes the two Charter violations as “serious and troubling”.

[23] When the first constable arrested the appellant, he immediately advised the appellant of his right to counsel. So did the second constable when the appellant was placed in the police cruiser. Once in the cruiser, and having been advised of his right to counsel, the appellant told the second constable: “I want a lawyer. I don’t want to talk to you no more.” The second constable did not accept this statement. He continued to engage the appellant in conversation, including asking him if he was hiding weapons or drugs on his person. As well, the second constable used the appellant’s silence in response to this question as “the single biggest indicator” to justify a strip search at the police station. The 20 grams of crack cocaine were found in that search.

[24] As Trotter J.A. said recently in R. v. Pileggi, 2021 ONCA 4, at para. 71:

Once a detainee has been informed of his rights under s. 10(b) of the Charter, and that person indicates that they wish to retain counsel, the police have a “duty to hold off questioning or otherwise attempting to elicit evidence from the detainee”: R. v. McCrimmon, 2010 SCC 36, [2010] 2 S.C.R. 402, at para. 17.

In the present case, the police did not do this. Their conduct amounted to a serious violation of two Charter rights.

[25] The second Grant factor – the impact of the breach on the Charter-protected interests of the accused – also favours the appellant. The appellant stated explicitly that he wanted to consult a lawyer. The second constable ignored this clear request and asked the appellant a question about possession of drugs and weapons. The second constable’s perception of the appellant’s silence in relation to this question, after several minutes of voluble discourse during the ride in the police cruiser, led directly to the decision to strip search the appellant at the police station and to the discovery of the crack cocaine. There is nothing peripheral here about the impact of the police conduct on the appellant’s Charter-protected interest.

[26] The third Grant factor – society’s interest in the adjudication of the case on the merits – favours the respondent.

[27] Balancing the three Grant factors, I conclude that the combination of a serious Charter breach in the realm of an accused’s right to silence and the impact of that breach on the police decision to strip search the appellant justify an ultimate decision to exclude the improperly obtained evidence in this case. As in most other cases, if both of the first and second Grant factors support exclusion of the evidence, the third Grant factor rarely will trump them: see R. v. McGuffie, 2016 ONCA 365, at para. 63, and R. v. Hillier, 2021 ONCA 180, at para. 42.

D. Disposition

[28] I would allow the appeal and enter acquittals on the three charges.

Released: February 10, 2022 “K.F.” “J.C. MacPherson J.A.” “I agree. K. Feldman J.A.” “I agree. Thorburn J.A.”

Footnotes

[1] In the Facts part of these reasons, all references in quotations are from the trial judge’s reasons for judgment.