SUPREME COURT OF CANADA
Date: 20141010 Docket: 35644
Between:
Samir Mohamed
Appellant
and
Her Majesty The Queen
Respondent
Coram: Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.
Reasons for Judgment: (paras. 1 to 4)
Cromwell J. (Abella, Rothstein, Moldaver and Karakatsanis JJ. concurring)
r. v. mohamed, 2014 SCC 63, [2014] 3 S.C.R. 280
Samir Mohamed Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Mohamed
2014 SCC 63
File No.: 35644.
2014: October 10.
Present: Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.
on appeal from the court of appeal for alberta
Criminal law ― Charter of rights ― Search and seizure ― Right to counsel ― Remedy ― Trial judge failing to consider whether s. 8 breached in addition to s. 10(b) ― Independent s. 8 breach would not have changed s. 24(2) analysis ― Canadian Charter of Rights and Freedoms, ss. 8 , 10(b) , 24(2) .
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , ss. 8, 10( b ), 24(2) .
APPEAL from a judgment of the Alberta Court of Appeal (Berger and McDonald JJ.A. and Hughes J. ( ad hoc )), 2013 ABCA 406 , 90 Alta. L.R. (5th) 354, 295 C.R.R. (2d) 233, 566 A.R. 58, 597 W.A.C. 58, [2014] 3 W.W.R. 250, [2013] A.J. No. 1261 (QL), 2013 CarswellAlta 2311, affirming the accused’s convictions for drugs and firearms offences. Appeal dismissed.
Shawn Beaver and Alexandra Seaman , for the appellant.
James C. Martin and Louise M. Proulx , for the respondent.
The judgment of the Court was delivered orally by
[ 1 ] Cromwell J. ― This appeal as of right comes to us on the dissent of Berger J.A. in the Alberta Court of Appeal. The question is whether the trial judge’s failure to identify a s. 8 breach in addition to the admitted breach of s. 10 ( b ) justifies considering the trial judge’s s. 24(2) analysis afresh on appeal.
[ 2 ] In our view it does not. Assuming, without deciding, that there was a s. 8 breach on these facts, it is clear that the trial judge conducted her s. 24(2) analysis on the basis that the s. 10 ( b ) breach resulted in the appellant producing the joint and lump of marihuana. As she put it, “While [the police officer] gave evidence that she would have arrested Mr. Mohamed if he had not got out of the car at her request, and I have found that she had grounds to do so, it is not a certainty that the exhibits of marihuana would have been discovered otherwise. The production of the joint and the lump of marihuana were clearly as a result of [the officer’s] prompting of Mr. Mohamed ” (A.R., vol. I, p. 57 (emphasis added)). It is thus clear that the trial judge’s s. 24(2) analysis would not have been different had she found an independent s. 8 breach.
[ 3 ] In light of that conclusion, our view is that there is no basis to interfere on appeal with the trial judge’s weighing of the various factors under the s. 24(2) analysis.
[ 4 ] The appeal is dismissed.
Judgment accordingly.
Solicitors for the appellant: Beaver, Leebody, Frank & Simic, Edmonton.
Solicitor for the respondent: Public Prosecution Service of Canada, Calgary.