



COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Mammadov, 2014 ONCA 328

DATE: 20140428

DOCKET: C54199

Weiler, Feldman and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mehman Mammadov

Appellant

Sonya Shikhman, for the appellant

Daniel Guttman, for the respondent

Heard: April 22, 2014

On application for leave to appeal the Summary Appeal
    Court decision entered on July 25, 2011 by Justice
Faye E.
    McWatt
of the Superior Court of Justice dismissing the appeal from the conviction
    entered on August 12, 2009 by Justice Wright of the Ontario Court of Justice,
    sitting without a jury.

ENDORSEMENT

A.

overview

[1]

The applicant seeks leave to appeal the dismissal of his appeal by the
    summary appeal court judge from his conviction for impaired driving. In order
    to obtain leave, the applicant must raise a pure question of law. Even if a
    pure question of law is raised, the putative issues must either have
    significance to the administration of justice beyond the particular case or
    demonstrate a clear error on a matter of law such that leave is essential to
    maintain confidence in the justice system:
R v. R.R.
[2008] O.J. No.
    2468, at para. 37.

[2]

In his factum, the appellant submits that the trial judge committed two
    errors. The first is that the trial judge erred in not granting a stay under s.
    24(1) of the Charter for the conceded violation of the appellants right to be
    free from unreasonable search and seizure. The second is that the charges ought
    to be been stayed because there was a violation of the appellants right to be
    tried within a reasonable time under s. 11(b) of the
Charter
. The
    second argument was abandoned prior to the hearing of this appeal.

[3]

In order to appreciate the issues, it is helpful to provide a brief
    summary of the facts and the trial judges decision.

B.

Facts and decision at first instance

[4]

On March 29, 2009, at about 12:30 a.m., an eyewitness saw the appellant
    driving southbound in the northbound lane on Yonge Street. The eyewitness also
    saw the appellant crash into a traffic sign when he tried to drive across the
    traffic island dividing the southbound and northbound lanes. The eyewitness
    then saw the appellant leave his car, walk across the roadway, throw items into
    a nearby wooded area, and then return to his car. The eyewitness called police
    and waited for them to arrive. When P.C. Cohen arrived, the appellant left his
    car and tried to run away. His attempt to run proved unsuccessful, partly
    because the appellant was intoxicated. P.C. Cohen arrested the appellant and
    took him to 32 Division, where he provided two breath samples.

[5]

After the investigation was completed, the appellant was strip searched
    and lodged in the cells at 32 Division until police deemed him sober enough to
    be released. The strip search had nothing to do with the process by which the
    evidence against the appellant was gathered or with the investigation. Rather,
    P.C. Cohen was worried that the appellant was carrying something that the
    appellant might use to harm himself.

[6]

However, Sgt. Brasco, the officer in charge, testified that once he made
    the determination to lodge an individual in cells, that person would be
    subjected to a strip search as a matter of routine. Upon learning this, the
    Crown properly conceded a violation of s. 8 of the
Charter
. The
    appellant then acknowledged that he had been impaired but submitted that he was
    entitled to a stay of the charge pursuant to s. 24(1).

[7]

The trial judge refused to grant a stay and convicted the appellant. She
    was alive to the requirement that a stay is only appropriate in the clearest
    of cases where the prejudice to the accuseds right to make full answer and
    defence cannot be remedied or where irreparable prejudice would be caused to
    the integrity of the justice system if the prosecution continued. In this case the
    decision whether to grant a stay turned on the latter requirement.

[8]

The trial judge stated that the strip search had no impact on the
    fairness of the appellants trial or his ability to make full answer and
    defence. It had nothing to do with the process by which evidence against him
    was gathered. No evidence was obtained as a result of the violation.

[9]

In connection with whether irreparable prejudice would be caused to the
    integrity of the justice system if the prosecution were to continue, the trial
    judge considered the gravity of the breach and the manner in which the search
    was conducted.

[10]

Dealing
    with the manner in which the search was carried out, the trial judge commented
    that the search was carried out in a private room where the appellant was given
    the opportunity to remove his clothing himself and the procedure followed by
    the officers ensured that the appellant was never completely naked. P.C. Cohen
    was clearly sensitive to the intrusive nature of a strip search and took
    whatever steps he could to minimize the inherent traumatic effects that flowed
    from a strip search.

[11]

With
    respect to the gravity of the breach, the trial judge noted that a systemic
    search such as that conducted here was a flagrant violation of the accuseds s.
    8 rights. She added, It is equally significant to my analysis that this is not
    a case in which the police lacked the reasonable and probable grounds to
    conduct a search of Mr. Mammadov. She observed that a concern for the
    appellants safety could reasonably arise from the following circumstances: (1)
    he had disposed of unknown items at the scene of the collision; (2) he had
    tried to flee; (3) he was severely impaired; and (4) he vomited twice while in
    custody.

C.

ARgument and analysis

[12]

It
    is the additional portion of the trial judges reasons referred to in the
    paragraph above that the appellant submits discloses an error of law, an error
    of law that he contends tainted the trial judges conclusion to refuse to grant
    a stay.

[13]

The
    appellants argument on this point may be summarized as follows. The trial
    judge did not properly apply the test in
R. v. Golden
[2001] 3 S.C.R.
    679, which holds at para. 97 that only if there is objective evidence to
    justify a strip search of an accused person can one be conducted. The appellant
    submits that, as the trial judge did not allude to the test in
Golden
,
    she did not look for objective confirmation of Cst. Cohens subjective concern
    for the appellants safety. The circumstances articulated by the trial judge
    only gave rise to a generalized concern for the appellants safety and did not
    amount to objective evidence of the likelihood that the appellant had secreted
    anything with which he could harm himself.

[14]

We
    do not agree that the circumstances described by the trial judge can be placed
    in such watertight compartments. In this particular case we think that they
    amount to the same thing. The cumulative circumstances set out by the trial
    judge gave rise to a concern for the appellants safety and amounted to
    reasonable and probable grounds to strip search him. They therefore meet the
    objective standard required by
Golden
.

[15]

The
    summary appeal court judge found no error in the approach taken by the trial judge.

[16]

We
    see no error of law. The trial judge did not err in principle in exercising her
    discretion to refuse to grant a stay. Therefore there is no basis for granting
    leave to appeal.

D.

Disposition

[17]

The application for leave to appeal is dismissed.

K.M. Weiler J.A.

K. Feldman J.A.

E.E. Gillese
    J.A.


