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CONTROLLED DRUGS AND SUBSTANCES - Possession for the purpose of trafficking

Friday, January 25, 2019 @ 8:35 AM  

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Appeal by Omar from his convictions for various firearms offences and possession of cocaine for the purpose of trafficking. The appellant was found in possession of a loaded handgun, ammunition and cocaine when the police stopped him and another man as they walked along a street late at night. The police had shone a spotlight on the men and asked them to come over to their cruiser, where they asked for identification, asked several questions and demanded the appellant make his hands clearly visible. The trial judge found the stop was a breach of the appellant’s s. 9 Charter right, the search violated his s. 8 Charter right, and he had been denied his s. 10(b) Charter right to be informed of his right to counsel without delay. She refused to exclude the evidence on the basis the police acted in good faith and did not believe they had detained the appellant.

HELD: Appeal allowed; the appellant was acquitted on all counts. The trial judge erred in assessing the seriousness of the police’s Charter-infringing conduct. She gave unwarranted weight to the subjective good faith of the officers. It should have been apparent to a properly trained and legally informed police officer that the appellant was detained without lawful justification. Given the error in assessing the seriousness of the police’s Charter-infringing conduct, the trial judge’s ultimate balance of the R. v. Grant factors was not owed deference. On a fresh s. 24(2) analysis, the evidence against the appellant was excluded. The impact of the breaches on the appellant was significant. Society’s interest in an adjudication on the merits favoured admission but a proper balancing of the Grant factors favoured exclusion. Dissenting reasons were provided.

R. v. Omar, [2018] O.J. No. 6346, Ontario Court of Appeal, R.J. Sharpe, D.M. Brown and D. Paciocco JJ.A., December 4, 2018. Digest No. TLD-January212019010