r v. LIBAN MOHAMUD, 2017 QCCQ 19223

R. c. Mohamud 2017 QCCQ 19223 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF GATINEAU TOWN OF GATINEAU « Criminal and Penal Division » No: 550-01-091721-169 DATE: December 7, 2017 ______________________________________________________________________ BY THE HONOURABLE ANOUK DESAULNIERS J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutor v.

LIBAN MOHAMUD Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Liban Mohamud is charged with the possession of a small quantity of crack cocaine. In related files, he is also charged with two breaches of probation and one breach of an undertaking. [ 2 ] The accused submits that the evidence against him was obtained in breach of his constitutional rights under sections 7 , 8 and 9 of the Canadian Charter of Rights and Freedoms (the Charter ).

He is seeking the exclusion of this evidence pursuant to section 24(2) of the Charter . 1. Background [ 3 ] On the evening of March 6, 2016, around 10:25 PM, Officers Gagnon-Hamel and Benoît were parked in a marked police cruiser in the parking lot of the Couche-Tard convenience store located at the corner of Fournier Boulevard and Beriault Street in Gatineau. They observed a grey Honda Civic exiting the same parking lot and turning onto Beriault Street without using its flashers. A few seconds later, the vehicle turned onto Fournier Boulevard without using its flashers.

Two men were in the car. [ 4 ] Officer Gagnon decided to intercept the vehicle to check on the state of the driver, under the authority of the Highway Safety Code . [ 5 ] The car pulled over normally, and Officer Gagnon-Hamel walked up to the driver’s window, while Officer Benoît went to the passenger’s window. [ 6 ] Officer Benoît spoke to the accused, who was in the front passenger seat.

After a short interaction between the two, which I will examine in more detail hereafter, the accused gave his name to the officer. [ 7 ] Officer Benoît noticed two unopened cases of beer on the back seat of the car, on the passenger side or near the center of the seat. [ 8 ] Officer Benoît then went to check the accused’s name on his patrol car’s computer system.

He learned that the accused was bound by an undertaking prohibiting him from possessing any alcohol. [ 9 ] Seeing that there were cases of beer on the back seat of the car occupied by the accused, Officer Benoît proceeded to arrest him for breach of undertaking. [ 10 ] During the search of the accused incident to this arrest, Officer Benoit pulled back on the elastic at the waistband of the accused’s pants, and noticed a yellow bag located between the accused’s buttocks. [ 11 ] The accused was then brought to the police station, where he was searched and the drugs were seized. 2. Analysis

[ 12 ] The accused’s motion for the exclusion of evidence is threefold. [ 13 ] First, the accused submits that Officer Benoît required him to provide his name in breach of the Charter protection against self- incrimination. The accused thus asks that the evidence obtained following the breach be excluded because its admission in the proceedings would bring the administration of justice into disrepute. [ 14 ] Second, the accused submits that the search conducted on him on the roadside was in breach of the

section 8 Charter right because of the manner in which it was conducted. [ 15 ] Third, if the Court finds that evidence against the accused was obtained in a manner that infringed on his constitutional rights, the Court must also consider whether this evidence should be excluded under section 24(2) of the Charter . [ 16 ] Let us begin with the first question, which concerns whether the accused was illegally compelled to provide his name. 2.1 The Protection Against Self-Incrimination [ 17 ] Both parties agree that the accused was under no legal obligation to provide his name to Officer Benoît. [ 18 ] Officer Benoît testified that he asked the accused if he wanted to provide his name, but told him that he was not obliged to do so since he had not committed any offence.

According to Officer Benoît, he always asks passengers where they are going, what they did that evening, and their name. [ 19 ] Officer Benoît did not specify how exactly he conveyed to the accused that he did not have to give him his name, what words were used and how he made sure the accused understood. The Crown’s evidence on this issue was

summary, to say the least. [ 20 ] According to Officer Benoît, after he asked the accused if he wanted to provide his name and informed him that he was under no obligation to do so, the accused responded that he knew his rights very well and that his name is Liban Mohamud. [ 21 ] This version is improbable.

It seems unlikely that the accused would spontaneously raise the issue of his rights, only to immediately move on to waive his right to silence and provide his name to the officer. [ 22 ] Instead, the Court finds that the accused was generally quite reluctant to assist the police during what he felt was a violation of his rights. This was illustrated, inter alia , by the accused’s refusal to hand the plastic bag over to Officer Benoît when it was discovered in his possession.

At the time, the accused voiced his disapproval of the search, claiming it was illegal, and he refused to comply with the officer’s request to give him the bag. [ 23 ] The accused’s version seems more likely. He confirms that he informed the officer he was aware of his rights. But he says he then refused to provide his name, knowing that he was under no obligation to do so. Officer Benoit then allegedly grabbed the accused’s arm and asked him to step out of the vehicle. Once the accused was outside the car, the police officer asked him again to give his name.

The accused says he complied at that time, feeling he had no other choice. [ 24 ] This was an objectively reasonable perception, in the circumstances, and the accused’s compliance with the demand, after the officer pulled him out of the car for initially refusing to provide his name, cannot be truly voluntary. [ 25 ] The facts of this case differ from those in R. v. Desjardins , [1] on which the Crown relies.

In Desjardins , the accused was properly informed that he was under no obligation to identify himself, and he was not subject to any compulsion to comply. [2] [ 26 ] The facts in the case at bar also differ from those in R. v. Le , [3] where the accused did not testify and the court concluded that he failed to demonstrate that the police had deprived him of his right to choose freely whether to identify himself. [4] [ 27 ] The Court finds that Officer Benoit compelled the accused to provide his name, which engages the accused’s liberty interest under

section 7 of the Charter . The Court finds that the accused successfully demonstrated, on a balance of probabilities, that his constitutional protection against self-incrimination was infringed. 2.2 The Protection Against Unreasonable Searches [ 28 ] Let us turn to the second question: Did the roadside search of the accused infringe on the protection against unreasonable searches provided in

section 8 of the Charter ? [ 29 ] To this question, the Court answers affirmatively. [ 30 ] In order for any search to be justified as incident to a person’s arrest, the arrest itself must be lawful.

The Court’s earlier finding that the accused was illegally compelled to provide his name raises concern about the legality of his subsequent arrest for breach of undertaking. [ 31 ] But even if we were to put aside the issue of the lawfulness of the accused’s arrest, the manner in which the accused was searched incident to his arrest also raises some serious concerns. [ 32 ] Officer Benoît testified that, to ensure his own safety, he pulled on the elastic located at the waistband of the accused’s pants to make sure that the accused was not carrying any weapon or sharp object.

He pulled the elastic band back by 5 to 10 centimeters to make sure nothing was concealed in that area. [ 33 ] In R.v. Golden , [5] the Supreme Court of Canada examined the legality of a search performed in a manner very similar to the case at bar.

[ 34 ] In Golden, a police officer conducted a “pat down” search incident to an arrest and did not find any weapons or narcotics. The officer then decided to conduct a visual inspection of the person’s buttocks and pulled back their pants and underwear, revealing a plastic bag lodged between the person’s buttocks. [ 35 ] The majority of the Court stated: In addition to searching for evidence related to the reason for the arrest, the common law also authorizes police to search for weapons as an incident to arrest for the purpose of ensuring the safety of the police, the detainee and other persons.

However, a “frisk” or “pat- down” search at the point of arrest will generally suffice for the purposes of determining if the accused has secreted weapons on his person. Only if the frisk search reveals a possible weapon secreted on the detainee’s person or if the particular circumstances of the case raise the risk that a weapon is concealed on the detainee’s person will a strip search be justified.

Whether searching for evidence or for weapons, the mere possibility that an individual may be concealing evidence or weapons upon his person is not sufficient to justify a strip search. [6] [ 36 ] Officer Benoît, while searching the accused, did not physically feel the plastic bag lodged between the buttocks of the accused. Instead, the bag was discovered when Officer Benoît, while patting the waistband for dangerous objects, also visually inspected inside the accused’s pants and looked at his buttocks area.

That is when he noticed the plastic bag, which was situated so far below the pants’ elastic band, which Officer Benoît was patting down, that he did not himself attempt to reach for the bag when he noticed it. [ 37 ] As such, the facts of this case differ from those in R. v. Desrosiers , [7] where the police proceeded at first with a regular pat-down search of the accused incident to his arrest.

It is only after having felt a “bump” near the belt area, inside the accused’s pants, that the police pulled back on the said pants as well as the elastic of his underwear and seized a plastic bag in the accused’s boxer shorts. [8] [ 38 ] Pulling a person’s pants back to perform a visual inspection of this person’s private areas goes beyond was is usually involved in a pat-down or frisk search.

Instead, such a search meets the definition of a strip search adopted in Golden : The rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person’s private areas, namely genitals, buttocks, breasts (in the case of a female), or undergarments. [9] [ 39 ] In the present case, the police officer “rearranged” some of the accused clothing by pulling his pants back, and performed a visual inspection of his buttocks. [ 40 ] The Court is satisfied that the accused was subjected to a strip search incident to his roadside arrest.

The Court notes that a similar conclusion was reached in R. v. Desrosiers , supra at para. 29 . [ 41 ] In R. v. Golden , the Supreme Court of Canada also stated: In Cloutier, supra, this Court concluded that a common law search incident to arrest does not require additional grounds beyond the reasonable and probable grounds necessary to justify the lawfulness of the arrest itself: Cloutier, supra, at pp. 185-86. However, this conclusion was reached in the context of a “frisk” search, which involved a minimal invasion of the detainee’s privacy and personal integrity.

In contrast, a strip search is a much more intrusive search and, accordingly, a higher degree of justification is required in order to support the higher degree of interference with individual freedom and dignity. In order to meet the constitutional standard of reasonableness that will justify a strip search, the police must establish that they have reasonable and probable grounds for concluding that a strip search is necessary in the particular circumstances of the arrest. [10] [ 42 ] Officer Benoît did not identify any reasonable grounds why a strip search, as opposed to a regular “frisk” search, was required.

Instead, he testified that he routinely conducts searches incident to arrest in this manner. [ 43 ] The accused was under arrest for a minor offence of breach of undertaking in relation to possessing alcohol.

No evidence was adduced to support the proposition that the officer’s safety was particularly at risk and that a higher degree of interference with the accused’s privacy and dignity was warranted. [ 44 ] For these reasons, and regardless of the issue of the legality of the accused’s arrest, the Court concludes that the accused’s search incident to his arrest was conducted in an unreasonable manner and infringed on his

section 8 Charter protection. 2.3 The Exclusion of Evidence Under Section 24(2) [ 45 ] The Court must now turn to the issue of whether or not the evidence obtained in breach of the accused’s Charter rights should be excluded pursuant to section 24(2) of the Charter . [ 46 ] In R .v. Grant , [11] the Supreme Court of Canada clarified the criteria relevant to determining when, in “all the circumstances”, admission of evidence obtained by a Charter breach “would bring the administration of justice into disrepute”.

When faced with an application for exclusion under s. 24(2) , a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to three factors: (1) the seriousness of the Charter -infringing state conduct, (2) the impact of the breach on the Charter -protected interests of the accused, and (3) society’s interest in the adjudication of the case on its merits. [ 47 ] With respect to the first factor, the Court must consider the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. [ 48 ] Officer Benoît’s conduct of compelling the accused to identify himself was deliberate.

[ 49 ] Also, the roadside strip search of the accused incident to his arrest for a minor breach of undertaking was deliberate and severe state conduct.

Strip searches are inherently humiliating and degrading and, for this reason, they cannot be carried out simply as a matter of routine policy. [ 50 ] This situation was further exacerbated when the accused’s detention was extended following the discovery of the plastic bag and the accused was brought to the police station, asked to strip off his clothes and made to participate in the seizure of the bag. [ 51 ] The Court must dissociate itself from such state conduct. [ 52 ] With respect to the second factor, the Court notes that the evidence obtained, i.e. the accused’s name and the plastic bag containing cocaine, was very closely linked, in causation and time, to the breaches of the accused’s liberty and privacy interests. [ 53 ] With respect to the third factor, the Court notes that evidence obtained following the infringements of the accused’s Charter protection against self-incrimination and unreasonable searches is essential to the Crown’s case for the breach of undertaking and possession of cocaine charges. [ 54 ] However, these being fairly minor charges, the Court notes that society does not have a very strong interest in seeing these charges being adjudicated on their merits. [ 55 ] Also, the evidence, although reliable, would not have been discovered without the Charter breaches. 3.

Conclusion [ 56 ] In conclusion, the Court finds that the accused has shown, on a balance of probabilities, that admitting the evidence obtained by breaching the accused’s liberty and privacy interests would bring the administration of justice into disrepute. [ 57 ] Accordingly, the Court orders that this evidence be excluded from the proceedings. FOR THESE REASONS, THE COURT ORDERS the exclusion of the evidence obtained in breach of the accused’s Charter rights. __________________________________ ANOUK DESAULNIERS, J.C.Q.

Mtre Brigitte Gendron Counsel for the prosecutor Mtre Pierre-Olivier Lemieux Counsel for the accused Date of hearing: September 28, 2017