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Under the Weight of the State

  • January 16, 2020
  • Clayton Rice, K.C.

On January 7, 2020, the Ontario Court of Appeal released two unanimous opinions involving serious violations of the Charter of Rights by the police. In one case, the court reversed convictions for child pornography offences and ordered a new trial. In the other, convictions for drug and firearm offences were overturned and acquittals entered.

1. R v McSweeney

In R v McSweeney, 2020 ONCA 2 nine police officers with the Durham Regional Police arrived at Peter McSweeney’s house with a search warrant early in the morning. They were looking for computers and other electronic devices. The family remained in the living room during the search accompanied by a police officer. McSweeney made two statements to the police; one at the residence and one later at the police station.

The first statement happened when an officer asked McSweeney to come out to the porch. He was not cautioned. He told the officer he didn’t want to say anything “until I talk to people that could either help me, or not help me.” The officer said: “You’re talking about a lawyer.” McSweeney replied: “Sure.” The conversation continued when the officer said: “[I]f you think there’s someone in the house I should be questioning, I want you to tell me.” McSweeney then said: “[W]e both know…that…it’s…myself.”

The second statement was made at the police station after McSweeny was cautioned and spoke to duty counsel. He maintained that he wanted to remain silent until the officer eventually asked: “[A]ny chance that anybody else in the house is involved?” McSweeney replied: “Absolutely not.” The other people in the house were his wife and children.

In convicting McSweeney of possession and distribution of child pornography Justice Mary Devlin of the Ontario Court of Justice held that he was not detained during the search of his home. His right to counsel under s 10(b) of the Charter was therefore not engaged. Justice Devlin also found that since the first statement was Charter compliant, there was no basis to find that it tainted the second statement at the police station.

Writing for the unanimous panel of the Ontario Court of Appeal, Chief Justice G.R. Strathy held, at para 35, that the trial judge erred in failing to conduct an objective inquiry into whether McSweeney was psychologically detained. Justice Devlin had treated the analysis “largely as a subjective inquiry, asking whether there was evidence of the appellant’s state of mind.” The correct objective question was whether McSweeney had “no choice but to comply”.

Chief Justice Strathy went on to conclude, at paras 45-6 and 51, that McSweeney was “singled out for focused investigation” while his family was unnecessarily sequestered in the living room at 6:03 a.m. “This would cause a reasonable person,” Chief Justice Strathy wrote, “to feel the weight of the state in their home, the most private of places.” McSweeney had therefore been detained at least from the point when the officer asked him to go to the porch and Charter s 10(b) was violated. (See: R v Wong, 2015 ONCA 657, 127 OR (3d) 321)

There was, then, a temporal, contextual and causal nexus between the first and second statements. The passage of time was not sufficient to sever the link. At the beginning of the recorded statement at the police station, the officer described it as “a continuation of an earlier statement”. The officer also used the “implicit threat” in both statements that he would interview the children if McSweeney was not forthright. Chief Justice Strathy emphasized, at para 72, that the officer “was plainly using the appellant’s desire to shield his children from the details of the offence to extract more information from him.” Informing McSweeney of rights at the police station, and providing access to duty counsel, did not cleanse the taint of the initial Charter breach. Both statements were excluded from evidence as part of the same interrogation process. (See: R v Wittwer, 2008 SCC 33, [2008] 2 SCR 235)

McSweeney’s convictions were therefore overturned and a new trial was ordered.

2. R v Mohammed

In R v Mohammed, 2020 ONCA 9 Justice Paul Belanger of the Ontario Court of Justice convicted Bilaal Mohammed of multiple firearm and drug offences. It had all started as a routine traffic stop when Mohammed was driving through the parking lot of a closed liquor store in Alfred, near Ottawa. The licence plate light on his vehicle was out.

One of the police officers smelled marihuana, arrested Mohammed and gave him a “soft caution” – an informal caution short of the constitutional requirement. A second officer strip searched Mohammed in the parking lot. When he looked down Mohammed’s boxer shorts, he thought he saw the “butt” of a gun or a “magazine”. A gun was not found. Mohammed was placed in the police vehicle and a search of his car turned up several cell phones and a backpack containing bags of marihuana, a scale and ammunition.

The officer asked Mohammed if he had a gun and told him he would be released if he turned over what was in his pants. Mohammed admitted he had a loaded handgun and the officer used a knife to cut it from his leg. He was then arrested and cautioned. A second strip search, characterized as a body cavity search, took place at the police station. The police also searched his cellphone without a warrant and took photographs of text messages considered relevant to drug trafficking. Justice Belanger admitted all the evidence at trial.

On appeal, the Crown conceded that the seizures of the handgun and marihuana were temporally and contextually connected to violations of Mohammed’s right to counsel and right to be secure against unreasonable search and seizure under ss 8 and 10(b) of the Charter. The constitutional violations included: (1) failing to formally caution Mohammed following his arrest; (2) failing to advise him of the availability of legal aid or duty counsel; (3) questioning him for over twenty minutes before he could consult with counsel; (4) the strip search; and, (5) the search of the cellphone without a warrant.

The Crown also conceded that the trial judge erred in the exclusion analysis under Charter s 24(2) by failing to conduct the Grant analysis. Lastly, the Crown conceded that the text messages collected in the warrantless search of the cell phone should also have been excluded at trial. It appears that the police did not comply with the requirement of taking detailed Fearon notes of the cellphone search. All that remained lawful, then, was the search of Mohammed’s car. (See: R v Grant, 2009 SCC, [2009] 2 SCR 353; R v Fearon, 2014 SCC 77, [2014] 3 SCR 621; and, R v Stonefish, 2019 ONCA 914)

Mohammed accepted, on appeal, that the search of the vehicle was lawful and the firearm and marihuana would not be excluded from evidence for that reason. The Crown took the further position that “it was practically inevitable that the gun would be found.” The Ontario Court of Appeal, however, unanimously held, at para 15, that the Charter violations were “so egregious” that the evidence had to be excluded “despite the lawfulness of the search of the car.”

The panel emphasized, at paras 16-8, that the first strip search was “plainly not authorized by law.” It was conducted in public by an officer who “wrongly believed that he could strip search every male he arrested for any kind of drug offence routinely”. Mohammed was induced to incriminate himself on “the false promise that he would be released” if he turned over the gun. And the warrantless search of the cellphone violated the Fearon rules “with which the police should have been familiar.” It was therefore inadequate for the trial judge, who described the strip search as “degrading and unjustified”, to have simply reduced Mohammed’s sentence by one hundred days. “This was a series of serious rights violations,” the panel held at para 21, “committed in apparent ignorance of well-established law, arising out of the appellant’s arrest for smoking a marijuana joint.”

Mohammed’s convictions were set aside and the court entered verdicts of acquittal.

3. Conclusion

It is difficult to understand why cases like McSweeney and Mohammed have been frequently cropping up in recent years. Warrantless strip searches and violations of the right to counsel during the execution of search warrants are all too common. Inadequate training does not justify the police conduct in these cases. And indifference to the constitutional obligations imposed on law enforcement is worse. The Supreme Court of Canada’s landmark opinions on strip searches and the right to counsel were decided decades ago. (See: R v Golden, 2001 SCC 83, [2001] 3 SCR 679; and, R v Prosper, [1994] 3 SCR 236)

Mark Halfyard of Daniel Brown Law LLP in Toronto, counsel for McSweeney, has drawn attention to another “recurring problem” in these cases. “The police hold all the informational power in many interactions with private citizens,” Halfyard said. “Really, the police should be telling people and making sure that they understand what the scope of those rights are because there’s an informational deficit there.” (See: Amanda Jerome. Ontario Court of Appeal condemns police searches that infringed Charter rights. The Lawyer’s Daily. January 16, 2020)

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