The Court of Appeal for Ontario overturned two separate cases Tuesday, citing improper police procedures.
The first of these cases was heard in October. It was brought by Peter James McSweeney appealing convictions for possession and distribution of child pornography. McSweeney contended that the trial judge improperly admitted evidence of statements he made before and after his arrest based on a claim that he was not actually detained at the times he made said statements. This case relied on the determination of whether McSweeney was detained at the time of his interviews with the police because, if he was, the detective on the case failed to inform him of his rights relevant to counsel and self-incrimination.
The appellate court determined that the trial judge misapplied the Charter standard for determining if McSweeney was detained at the time he made incriminating statements. Instead of applying an objective standard, thereby determining if his state at the time would be considered psychological detention by a reasonable person, she applied a subjective one by assessing what would have been McSweeney’s state of mind.
While some more minor infringements of standards of conduct may not result in a case being overturned, the Court of Appeal in this case stated that the “infringement in this case was serious and amounts to wilful disregard of the appellant’s […] rights.” This determination was particularly based on the detective in the case ignoring McSweeney’s clear implication that he wished to speak to a lawyer. The court also considered societal interests, but stated that because the exclusion of this evidence would not entirely hinder the Crown’s case and the infringement of McSweeney’s rights was so impactful to his case, a new trial was necessary.
The second overturned case was originally heard in December 2019 addressing the case of Bilaal Mohammed’s convictions for firearm offenses, possession of property “obtained by crime, and possession of cannabis for the purpose of trafficking.” Mohammed was arrested during a routine traffic stop because a probationary constable smelled marijuana coming from the car. While he was given a “soft” or “informal” caution during this arrest, she did not advise him on the availability of legal aid. Mohammed was strip searched twice during his detainment as well, the one of which was in public in what the Court of Appeal called “a highly invasive manner.”
Another issue arose in this case when the same constable conducted a search of the appellant’s cellphone without a warrant. The Court of Appeal stated that “each of the breaches is very serious” and the “breaches are so egregious that the evidence must be excluded, despite the lawfulness of the search of the car.”
The court determined that the case must be overturned based on the violations of Mohammed’s rights:
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.
For this case, the Court of Appeal did not order a new trial, but set aside the convictions and entered verdicts of acquittal.