



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 appellants
    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 appellants boxer shorts and saw what he thought was the butt or the
    magazine of a gun. He then unzipped the appellants 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
    appellants car. She found a debt list, cash, a grinder, and several cell
    phones near the drivers 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
    appellants 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 appellants 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 judges 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 appellants 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 appellants 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 Crowns concessions are appropriate and we accept them.

[13]

Given the Crowns concessions, all that remains lawful is the police
    search of the appellants car. The appellant accepts that, in accordance with
    this courts decision in
R. v. Stonefish
, 2019 ONCA 914, the police search
    of the appellants 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 Courts 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 Lauzons 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 appellants s. 7 and
    10(b)
Charter
rights.

[18]

The warrantless search of the appellants cellphone involved the police
    reviewing the appellants 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 appellants shorts. The trial judge
    considered the strip search degrading and unjustified and reduced the length
    of the appellants sentence by 100 days as a result. The delay in providing the
    appellant with his right to counsel seriously undermined the appellants right
    to silence and resulted in him providing incriminating evidence. The search of
    the appellants 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 appellants
    arrest for smoking a marijuana joint. These violations had a significant impact
    on the appellants
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 appellants 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 appellants 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.


