Samir Mohamed Appellant v. Her Majesty The Queen, 2014 SCC 63

SUPREME COURT OF CANADA Citation: R. v. Mohamed, 2014 SCC 63, [2014] 3 S.C.R. 280 Date: 20141010 Docket: 35644 Between: Samir Mohamed Appellant and Her Majesty The Queen Respondent Coram: Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ. Reasons for Judgment: (paras. 1 to 4) Cromwell J. (Abella, Rothstein, Moldaver and Karakatsanis JJ. concurring) r. v. mohamed, 2014 SCC 63, [2014] 3 S.C.R. 280 Samir Mohamed Appellant v. Her Majesty The Queen Respondent Indexed as: R. v. Mohamed 2014 SCC 63 File No.: 35644. 2014: October 10.

Present: Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ. on appeal from the court of appeal for alberta Criminal law ― Charter of rights ― Search and seizure ― Right to counsel ― Remedy ― Trial judge failing to consider whether s. 8 breached in addition to s. 10(b) ― Independent s. 8 breach would not have changed s. 24(2) analysis ― Canadian Charter of Rights and Freedoms, ss. 8 , 10(b) , 24(2) . Statutes and Regulations Cited Canadian Charter of Rights and Freedoms , ss. 8, 10( b ), 24(2) .

APPEAL from a judgment of the Alberta Court of Appeal (Berger and McDonald JJ.A. and Hughes J. ( ad hoc )), 2013 ABCA 406 , 90 Alta. L.R. (5th) 354, 295 C.R.R. (2d) 233, 566 A.R. 58, 597 W.A.C. 58, [2014] 3 W.W.R. 250, [2013] A.J. No. 1261 (QL), 2013 CarswellAlta 2311, affirming the accused’s convictions for drugs and firearms offences. Appeal dismissed. Shawn Beaver and Alexandra Seaman , for the appellant. James C. Martin and Louise M. Proulx , for the respondent.

The judgment of the Court was delivered orally by [ 1 ] Cromwell J. ― This appeal as of right comes to us on the dissent of Berger J.A. in the Alberta Court of Appeal. The question is whether the trial judge’s failure to identify a s. 8 breach in addition to the admitted breach of s. 10 (

b) justifies considering the trial judge’s s. 24(2) analysis afresh on appeal. [ 2 ] In our view it does not. Assuming, without deciding, that there was a s. 8 breach on these facts, it is clear that the trial judge conducted her s. 24(2) analysis on the basis that the s. 10 (

b) breach resulted in the appellant producing the joint and lump of marihuana. As she put it, “While [the police officer] gave evidence that she would have arrested Mr. Mohamed if he had not got out of the car at her request, and I have found that she had grounds to do so, it is not a certainty that the exhibits of marihuana would have been discovered otherwise. The production of the joint and the lump of marihuana were clearly as a result of [the officer’s] prompting of Mr. Mohamed ” (A.R., vol. I, p. 57 (emphasis added)).

It is thus clear that the trial judge’s s. 24(2) analysis would not have been different had she found an independent s. 8 breach. [ 3 ] In light of that conclusion, our view is that there is no basis to interfere on appeal with the trial judge’s weighing of the various factors under the s. 24(2) analysis. [ 4 ] The appeal is dismissed. Judgment accordingly. Solicitors for the appellant: Beaver, Leebody, Frank & Simic, Edmonton. Solicitor for the respondent: Public Prosecution Service of Canada, Calgary.