violation of Charter rights

Two Convictions Overturned in Ontario Due to Rights Violations by Police

Written on Behalf of Affleck & Barrison LLP

As we begin the new decade, in two separate Ontario court decisions, police violations of the accused’s rights resulted in quashing convictions for child pornography and weapons offences.  The Ontario Court of Appeal found that the breaches of the convicted individuals’ Charter rights by police brought the administration of justice into disrepute.

THE CASE OF PETER MCSWEENEY

Peter McSweeney (“McSweeney”) was convicted in October 2017 of child pornography offences partly based upon incriminating statements he made to police.

In May 2016, nine police officers arrived at McSweeney’s home with a search warrant.  Durham Regional Police Detective Jeff Lockwood spoke with McSweeney on his porch and began questioning him without reading him his rights.  McSweeney provided a self-incriminating statement and he was then arrested and taken to the police station.

McSweeney again incriminated himself after stating that he wished to remain silent after talking to a lawyer.

During the trial, Judge Mary Teresa Devlin allowed McSweeney’s statements to be entered as evidence despite the defence objecting.  Justice Devlin ruled that McSweeney was not detained when he gave a self-incriminating statement on the porch and therefore the officer was not obliged to advise him of the right to speak to a lawyer.

At the Court of Appeal, the judges found that a “reasonable observer” would have believed that McSweeney was detained at home and also found that the questioning at the police station was improper.

Justice Strathy, writing on behalf of the two other justices hearing the appeal, stated:

The state conduct was willful and in disregard of the appellant’s asserted Charter rights.  It had a serious impact on those rights and on his attempt to exercise them.

As a result of this decision, the appeal court allowed the appeal, quashed the convictions and ordered a new trial.

THE CASE OF BILAAL MOHAMMED

In May 2016, Bilaal Mohammed (“Mohammed”) was convicted of several firearm offences, possession of property obtained by crime, and possession of cannabis for the purpose of trafficking.  At the time of his appeal, he had already served his sentence.

During a routine traffic stop, Mohammed was pulled over by provincial police in a parking lot near Alfred, Ontario for a broken license-plate light.  The officer smelled marijuana and gave Mohammed a “soft caution” (an informal caution) and did not  advise him of his right to speak to a lawyer.

Mohammed was strip-searched in the parking lot, to the point of having his pants dropped to his ankle.  Police did not find a gun.  During the search of his car, police found some cash, a debt list, a grinder, a scale, several cellphones, some cannabis and ammunition.

Mohammed was asked if he had a gun and was told that if he turned it over he would be released.  He admitted that he had a loaded gun strapped to his pant leg.  He was arrested, advised of his rights and taken to the police station, at which point his cellphone was searched.

At his trial, Mohammed was convicted of various offences for which he appealed.  He challenged the trial judge’s 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. 

At the appeal, the Crown agreed that failing to initially advise Mohammed of his rights, questioning him before he was able to talk to a lawyer, as well as the strip search and the search of Mohammed’s phone without a warrant were serious Charter breaches.

The judges that heard the appeal agreed with the Crown and stated “each of the breaches is serious.  Taken as a whole, the breaches are so egregious that the evidence must be excluded.”

The appeal court ruled that the first strip search was not authorized by law.  Furthermore, it was conducted in public in a highly invasive fashion.  Mohammed’s section 7 and 10(b) Charter rights were breached as he was questioned without being provided the right to counsel and he was persuaded to turn over the gun on false pretenses.  Finally, the warrantless search of Mohammed’s cellphone used as evidence of drug trafficking was in violation of section 8 of the Charter.

The three justices on the appeal court panel wrote:

This was a series of serious rights violations, committed in apparent ignorance of well-established law, arising out of the appellant’s arrest for smoking a marijuana joint.  These violations had a significant impact on the appellant’s Charter-protected interests.

The Court of Appeal excluded all of the evidence, allowed the appeal and set aside the convictions.

If you have been charged with a criminal offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  For your convenience, we offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.