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APPEALS - Powers of appellate court - New trial

Tuesday, May 21, 2019 @ 9:20 AM  

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Appeal by the Crown from the summary dismissal of drugs and firearms charges against the accused. The police received a 911 call regarding a road-rage incident involving firearms. Two officers went to the area where they observed a truck with two occupants, including the accused, similar to the description given by the caller. They observed one of the occupants go to a restaurant washroom before returning to the truck. They spoke to the occupants, checked their names for outstanding warrants and told them they were free to go. When one officer subsequently went to use the washroom, he found a bullet in the urinal. The officers went back to the truck and arrested the accused. They searched the truck and found a crack pipe and crystal methamphetamine. They found crack cocaine on one accused. During a subsequent search of the truck, the police found an assault rifle, ammunition and more than two kilograms of drugs. The trial judge found the police did not have reasonable and probable grounds to arrest the accused, that the accuseds' Charter rights were violated by the arrest and the search incident to arrest, and excluded the evidence seized by the police. The Crown conceded when the officers initially approached the truck and spoke to the accused, they were detained for investigative purposes and should have been advised of their s. 10 Charter rights.

HELD: Appeal allowed; new trial ordered. The trial judge failed to assess the totality of the circumstances when he considered the reasonableness of the officers’ beliefs that there were grounds to arrest. He dealt with the evidence in a piecemeal fashion and failed to consider the cumulative effective of all the facts and circumstances known to the officers at the time of the arrest. He failed to consider the facts and circumstances from the officers’ perspective. The trial judge’s characterization of the discovery of the bullet as a red herring was a failure to recognize the connection between the bullet and the firearms incident under investigation. The officers’ belief the accused was involved in a firearms incident was objectively reasonable. The trial judge erred in finding the arrests breached s. 9 of the Charter. The searches of the truck and the accused were within the scope of the police common law power to search incident to arrest. The trial judge erred in finding the warrantless searches breached s. 8 of the Charter. All the evidence excluded by the trial judge was found after the accused were arrested and properly advised of their s. 10 rights. The admission of the evidence would not bring the administration of justice into disrepute. Admitting the evidence would have changed the outcome of the trial as the charges would not have been summarily dismissed.

R. v. Omeasoo, [2019] M.J. No. 97, Manitoba Court of Appeal, F.M. Steel, H.C. Beard and J. leMaistre JJ.A., April 12, 2019. Digest No. TLD-May202019003