Law Times

Law Times • December 10, 2018 Page 5 www.lawtimesnews.com Case has strongly worded dissent Court of Appeal orders acquittals SHANNON KARI For Law Times T he Ontario Court of Appeal has ordered ac- quittals for a young man originally convicted in Windsor, Ont. of illegal pos- session of a handgun and drug charges and stressed that police cannot claim to have acted in "good faith" to justify an igno- rance of the law. "It is fundamental to our so- cial order that the police, like all other state actors, perform their duties in accordance with the law and respect Charter rights," wrote Justice Robert Sharpe in R. v. Omar. "No doubt, being able to de- tain people at will, would make the task of policing easier. How- ever, our law provides that, in the absence of lawful grounds, individual liberty and the right to be able to walk down the street unimpeded prevails over law en- forcement," added Sharpe, with Justice David Paciocco concur- ring in the decision issued Dec. 4. The case also features a strongly worded dissent from Justice David Brown that sug- gested his colleagues were ap- plying their legal analysis in a "rarefied environment" and not taking into account the reality of drug and gun crime in major urban centres. The majority and dissenting opinions in Omar focused on the s. 24(2) analysis set out by the Supreme Court of Canada in R. v. Grant in 2009 and when evidence should be excluded be- cause of a Charter breach. "I am, of course, aware of the grave problem caused by illegal guns and drugs in our society," stated Sharpe. "It is also worth recalling that there is no 'fire- arms exception' requiring that guns obtained in breach of Char- ter rights be admitted into evi- dence," he added. Catriona Verner, who repre- sented the appellant in Omar, says the decision is sending a message to police who engage in the arbi- trary detention of individuals. "The Supreme Court in Grant said it was a close call but did not exclude the evidence because po- lice had not been told what was an arbitrary detention. "Now they know," says Vern- er, a criminal defence lawyer at Lockyer Campbell Posner LLP in Toronto. "You can't stop a young black man, late at night, simply for walking down the street," she says. The court heard that Omar Muhammad Omar was walking with a friend in November 2015, around 1 a.m., in a not very pop- ulated area. Two Windsor police officers were on patrol in the neighbour- hood and had been advised to "be on the lookout" for a suspect who had robbed two Mac's Milk stores in the previous week. The suspect was described as a white man, about 200 pounds and 25 to 30 years old. Omar is of slight build and was 20 years old at the time of his arrest. Police shone a bright "alley" light on the two men and then approached them and demanded they provide identification. They were questioned for about five minutes and then one of the of- ficers noticed the barrel of a gun in Omar's jacket pocket. A small amount of cocaine was also found after he was arrested. Ontario Superior Court Jus- tice Pamela Hebner found that the detention was arbitrary and a Charter violation. She admitted the evidence in her 24(2) analysis because she concluded that the officers were acting in good faith since they "subjectively believed" they had not detained the young men. "The suspect was described as a large white guy on a bicycle wanted for robberies on the other side of town," says Verner. She also notes that this arrest was at a time when there was a province-wide debate over police being allowed to engage in street checks, also known as "carding." In fact, the day after Omar's arrest, the chief of police in Windsor held a news conference and praised the work of his of- ficers. Chief Al Frederick stated that it would be "outrageous" for police to have to tell people who engage in "suspicious circum- stances" that they can walk away and not answer questions. A lack of knowledge on what constitutes an arbitrary deten- tion should not be tolerated by the courts, stated Sharpe in the majority ruling. "A purely subjective approach would encourage police igno- rance," he added. In his dissent, Brown stated that the wish of communities to live free of gun violence is a "nec- essary component" of the rule of law and should be a significant factor in the 24(2) analysis. "The lethal problem posed by illegal handguns often seems re- mote from our judicial lives: we tend to live in safe residential ar- eas," he noted. "We judges must never forget the impact that our decisions have on the day-to-day reality in which most of our fellow Cana- dians live — and from which we are by and large insulated," he wrote. 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Visit www.store.thomsonreuters.ca or call 1-800-387-5164 for a 30-day, no risk evaluation CONNECT INSTANTLY TO ONTARIO'S LEGAL COMMUNITY Untitled-5 1 2018-12-04 3:37 PM I am, of course, aware of the grave problem caused by illegal guns and drugs in our society. Justice Robert Sharpe Catriona Verner says a recent Ontario Court of Appeal decision is sending a message to police who engage in the arbitrary deten- tion of individuals.

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