Seized firearm excluded from evidence after Court finds police gave misleading testimony

Sole dispute between Crown and defence was whether accused was lawfully detained

Seized firearm excluded from evidence after Court finds police gave misleading testimony
Hussein Aly, Rusonik O’Connor Robbins Ross Gorham and Angelini LLP

After four officers were found to have mislead the court, fabricating a story to justify a man’s investigative detention, the loaded, prohibited handgun they found on him will be excluded from evidence in his trial.

In  R. v. Hamid, 2021 ONSC 3227, released April 30, Sami Hamid was charged with possession of the weapon and one related offence. His arrest occurred during the execution of a search warrant on the 30th floor of a Toronto apartment building. Hamid brought an application to exclude the seized evidence, alleging ss. 8, 9 and 10 Charter breaches.

“It’s another unfortunate example of the police deciding to fabricate an account rather than use legitimate investigative techniques to detect crime,” says Hussein Aly, who acted for the accused and is partner at Rusonik O’Connor Robbins Ross Gorham and Angelini LLP, in Toronto.

“The Courts cannot be seen as condoning or supporting police officers who are prepared to ignore their obligations under the Charter and then fabricate a basis for unlawfully detaining and searching individuals and then come to Court, take an oath and mislead the Court about what happened,” said Superior Court Justice Nancy Spies. “The conduct of these officers seriously undermines the administration of justice and this Court must distance itself from that conduct and condemn that conduct.”

The Crown had submitted that the accused and another person had exited the elevator and walked towards the unit where the search warrant was being conducted. As they approached, a person from inside the unit, who was under arrest and handcuffed, yelled at the two men in a language the officers did not understand, and one of the men responded.

The police had testified that from where he was seated, the person yelling from inside the apartment had a “straight shot” view through the apartment door to the accused in the hallway. Detective Constable Chris Miller told the Court he was standing in the hallway, speaking on the phone, and Detective Constable Adam McKnight was inside, searching the apartment. Officer Miller took it the two approaching men were connected with the gun offence under investigation and were being warned of the police presence. He hung up the phone, walked towards the two men, explained he was a police officer and did not know who they were, so he was putting them under investigative detention.

The accused was advised of his right to counsel and patted down, for safety purposes, during which the officers found the gun, according to the Crown’s evidence.

Crown and defence agreed on the applicable legal principles and how the law should be applied to the facts, said Justice Spies. The focus of the dispute was whether the officers lawfully detained the accused after he stepped off the elevator. The Crown “fairly conceded” that the alleged yelling between the suspects in the apartment was a “necessary component” in that detention being lawful, said Justice Spies.

Aly says he called “several” witnesses who testified there was no yelling from inside the apartment and the hallway. He also obtained video footage from the elevator, which showed the accused leaving the elevator, stopping and, before the elevator door closed, two legs appearing behind him. Justice Spies found these were Officer Miller’s legs and that this was the point at which he detained the accused.

“And the reason that was important was, from the time he got off the elevator to the time he was detained was six seconds,” says Aly. “So six seconds wouldn’t have allowed for all of those things to have happened that the police claim happened that gave them grounds to detain him.”

The defence also showed that the door to the apartment had a self-closing hinge. Unless the door was propped open or held open by an officer, of which there was no evidence, it must have been closed, says Aly.

“If the door had been closed, there'd be no way for the person inside of the apartment to look into the elevator and see their buddy outside and yell out to them,” he says.

Justice Spries found Officer Miller had mislead the Court about how he established grounds to detain the accused. The “inescapable conclusion,” given their evidence, is that the other three officers who testified had done so as well, she said.

“Clearly, the four officers who testified before me made a joint decision to fabricate the story,” said Justice Spries.

The accused’s application asserting Charter breaches was granted and all evidence seized from him, including the firearm, were excluded from trial.

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