



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Mohamed, 2022 ONCA 117

DATE: 20220210

DOCKET: C66471

Feldman, MacPherson and Thorburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Abdoulkarim Mohamed

Appellant

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 appellants
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 dont 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 accuseds 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, Im
    thinking, Im starting to think Ive 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 appellants 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 judges 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 appellants 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
    defendants
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
    appellants
Charter
rights in two respects. In its factum, the Crown
    frames its concession in this fashion:

The only points at which the appellants
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
    appellants
Charter
-protected interests because the grounds for the
    strip search were numerous and compelling quite apart from the change in
    demeanour.

[19]

The Crowns concessions, which I accept, mean
    that the police infringed two of the appellants
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 accuseds
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 societys 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) societys 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 dont 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 appellants 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] 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
    constables perception of the appellants 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 appellants
Charter
-protected
    interest.

[26]

The third
Grant
factor  societys
    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 accuseds 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.





[1]

In the Facts part of these reasons, all references in
    quotations are from the trial judges reasons for judgment.


