Ontario Criminal

Charter of Rights

Overholding detention to accommodate shift scheduling breached s. 9 of Charter

Accused, charged in seven-count indictment with offences relating to robbery, applied to exclude in-custody statements to police and stolen wallet he possessed when arrested. Accused was charged with one count of possession of weapon, two counts of uttering threats, two counts of forcible confinement, one count of being unlawfully in dwelling house and one count of conspiracy to commit indictable offence. Accused alleged he was over held during period immediately following his arrest and until his first statement; that he was not taken before justice within 24 hours, and was over held again after his statement to detective. Accused submitted delay in processing him was unreasonable. Accused was interrogated through noon hour next day of his arrest and interrogating detective decided not to charge accused with regards to marijuana charges on which he was originally arrested. Accused was detained on those drug charges according to Crown for 16.5 hours. Application allowed; statement and wallet excluded from evidence. Court accepted that from police perspective, circumstances of offences were not urgent and services of drug unit detective in middle of night served little purpose. It was relatively minor drug arrest. Officer in charge should have released accused on his recognizance. Possession of marijuana for purpose of trafficking is not crime that, of itself, merits continued detention. Instant circumstances fell into paradigm for timely release in accordance with legislation. Accused was detained overnight to accommodate combination of police service policy and unavailability of detective. Policy was laudable so long as resources were in place to honour Charter and Criminal Code requirements. Investigation was essentially done. Overholding detention to accommodate shift scheduling is unreasonable and breached accused’s s. 9 right to not be arbitrarily detained. Accused was not taken before justice of peace pursuant to s. 503 of Code or within 24 hours of arrest. That too was arbitrary detention. But for arbitrary detention, accused would not have been exposed to seizure and tracing of wallet and inculpatory statement under interrogation with detective. There was direct cause and effect. Cumulative breaches weighed balance in favour of exclusion.

R. v. Mohammed (Feb. 9, 2015, Ont. S.C.J., Rick Leroy J., File No. Ottawa 11-10307) 119 W.C.B. (2d) 484.

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