COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mammadov, 2014 ONCA 328

DATE: 20140428

DOCKET: C54199

Weiler, Feldman and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mehman Mammadov

Appellant

Sonya Shikhman, for the appellant

Daniel Guttman, for the respondent

Heard: April 22, 2014

On application for leave to appeal the Summary Appeal Court decision entered on July 25, 2011 by Justice Faye E. McWatt of the Superior Court of Justice dismissing the appeal from the conviction entered on August 12, 2009 by Justice Wright of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

A.           overview

[1]          The applicant seeks leave to appeal the dismissal of his appeal by the summary appeal court judge from his conviction for impaired driving. In order to obtain leave, the applicant must raise a pure question of law. Even if a pure question of law is raised, the putative issues must either have significance to the administration of justice beyond the particular case or demonstrate a clear error on a matter of law such that leave is essential to maintain confidence in the justice system: R v. R.R. [2008] O.J. No. 2468, at para. 37.

[2]          In his factum, the appellant submits that the trial judge committed two errors. The first is that the trial judge erred in not granting a stay under s. 24(1) of the Charter for the conceded violation of the appellant’s right to be free from unreasonable search and seizure. The second is that the charges ought to be been stayed because there was a violation of the appellant’s right to be tried within a reasonable time under s. 11(b) of the Charter. The second argument was abandoned prior to the hearing of this appeal.

[3]          In order to appreciate the issues, it is helpful to provide a brief summary of the facts and the trial judge’s decision.

B.           Facts and decision at first instance

[4]          On March 29, 2009, at about 12:30 a.m., an eyewitness saw the appellant driving southbound in the northbound lane on Yonge Street. The eyewitness also saw the appellant crash into a traffic sign when he tried to drive across the traffic island dividing the southbound and northbound lanes. The eyewitness then saw the appellant leave his car, walk across the roadway, throw items into a nearby wooded area, and then return to his car. The eyewitness called police and waited for them to arrive. When P.C. Cohen arrived, the appellant left his car and tried to run away. His attempt to run proved unsuccessful, partly because the appellant was intoxicated. P.C. Cohen arrested the appellant and took him to 32 Division, where he provided two breath samples.

[5]          After the investigation was completed, the appellant was strip searched and lodged in the cells at 32 Division until police deemed him sober enough to be released. The strip search had nothing to do with the process by which the evidence against the appellant was gathered or with the investigation. Rather, P.C. Cohen was worried that the appellant was carrying something that the appellant might use to harm himself.

[6]          However, Sgt. Brasco, the officer in charge, testified that once he made the determination to lodge an individual in cells, that person would be subjected to a strip search as a matter of routine. Upon learning this, the Crown properly conceded a violation of s. 8 of the Charter. The appellant then acknowledged that he had been impaired but submitted that he was entitled to a stay of the charge pursuant to s. 24(1).

[7]          The trial judge refused to grant a stay and convicted the appellant. She was alive to the requirement that a stay is only appropriate “in the clearest of cases” where the prejudice to the accused’s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the justice system if the prosecution continued. In this case the decision whether to grant a stay turned on the latter requirement.

[8]          The trial judge stated that the strip search had no impact on the fairness of the appellant’s trial or his ability to make full answer and defence. It had nothing to do with the process by which evidence against him was gathered. No evidence was obtained as a result of the violation.

[9]          In connection with whether irreparable prejudice would be caused to the integrity of the justice system if the prosecution were to continue, the trial judge considered the gravity of the breach and the manner in which the search was conducted.

[10]       Dealing with the manner in which the search was carried out, the trial judge commented that the search was carried out in a private room where the appellant was given the opportunity to remove his clothing himself and the procedure followed by the officers ensured that the appellant was never completely naked. P.C. Cohen was clearly sensitive to the intrusive nature of a strip search and took whatever steps he could to minimize the inherent traumatic effects that flowed from a strip search.

[11]       With respect to the gravity of the breach, the trial judge noted that a systemic search such as that conducted here was a flagrant violation of the accused’s s. 8 rights. She added, “It is equally significant to my analysis that this is not a case in which the police lacked the reasonable and probable grounds to conduct a search of Mr. Mammadov.” She observed that a concern for the appellant’s safety could reasonably arise from the following circumstances: (1) he had disposed of unknown items at the scene of the collision; (2) he had tried to flee; (3) he was severely impaired; and (4) he vomited twice while in custody.

C.           ARgument and analysis

[12]       It is the additional portion of the trial judge’s reasons referred to in the paragraph above that the appellant submits discloses an error of law, an error of law that he contends tainted the trial judge’s conclusion to refuse to grant a stay.

[13]       The appellant’s argument on this point may be summarized as follows. The trial judge did not properly apply the test in R. v. Golden [2001] 3 S.C.R. 679, which holds at para. 97 that only if there is objective evidence to justify a strip search of an accused person can one be conducted. The appellant submits that, as the trial judge did not allude to the test in Golden, she did not look for objective confirmation of Cst. Cohen’s subjective concern for the appellant’s safety. The circumstances articulated by the trial judge only gave rise to a generalized concern for the appellant’s safety and did not amount to objective evidence of the likelihood that the appellant had secreted anything with which he could harm himself.  

[14]        We do not agree that the circumstances described by the trial judge can be placed in such watertight compartments. In this particular case we think that they amount to the same thing. The cumulative circumstances set out by the trial judge gave rise to a concern for the appellant’s safety and amounted to reasonable and probable grounds to strip search him. They therefore meet the objective standard required by Golden. 

[15]       The summary appeal court judge found no error in the approach taken by the trial judge.

[16]       We see no error of law. The trial judge did not err in principle in exercising her discretion to refuse to grant a stay. Therefore there is no basis for granting leave to appeal.

D.           Disposition

[17]       The application for leave to appeal is dismissed. 

“K.M. Weiler J.A.”

“K. Feldman J.A.”

“E.E. Gillese J.A.”