Bypassing Serious Criminal Offences

"The possession of loaded prohibited weapons is a serious offence, undoubtedly, and there is a strong societal interest in adjudicating cases of this sort on their merits. On balance, I do not think this search was carried out in good faith once the accused's identity was established.
"The course of events here displays an ongoing ignorance or neglect of the accused's Charter rights and in the circumstances of this case, the administration of justice, in my view, would be brought into disrepute if the shotgun and ammunition, the products of an illegal search, were admitted into evidence."
Ontario Superior Court Justice Charles Hackland

Once again, the administration of justice puzzlingly submits to the imperative within Canada of individual Charter rights. Someone accused of a crime, a misdemeanor, any action that could be construed as criminal, illegal, must be informed of their rights; no search of private property may be undertaken in the absence of a legally issued search warrant in this, our just society.

While these guarantees are entirely laudable, there are obvious occasions when they impede, not further justice.

And this appears to be a case in point. Although Justice Hackland found that Ottawa police had no business searching Mahmoud Alia's car, they did so on the basis of well-informed intuition and suspicion that arose out of the man's behaviour. In the process, discovering a sawed-off shotgun and ammunition hidden under the back seat of his vehicle.

But since the judge viewed the search illegal it will be removed from evidence, wiping out the Crown's case against the man. This is justice served.

The justice held that the two Ottawa police officers who had stopped Mahmoud Alia demonstrated "willful and reckless" disregard for his Charter rights. Moreover, he found that the two constables had given conflicting accounts of the arrest and their reasons for conducting a search. Constable Jerome Belanger had testified that he and Constable Scott Lawrence, seated in an unmarked police cruiser were alerted to Alia's reckless driving by the squealing of his tires.

Following him, they witnessed the Toyota Camry driven by Mahmoud Alia running a stop sign and speeding, then realized one of his front headlights was non-operational. All notable traffic violations requiring citations under the Highway Safety Traffic Act.  Constable Belanger described a "rude and belligerent" Alia giving the officers a false name, claiming his driver's licence to be in the mail. The officers searched the car where they found the driver's licence and traffic tickets.

One of the constables resumed the search of the vehicle to confirm the identity of the man who claimed his name to be Mohammed Abdi, rather than the Mahmoud Alia, that appeared on the driver's licence. "In my respectful opinion, what occurred here was that the officers adopted an aggressive approach to the accused in this otherwise routine traffic stop -- I refer to drawing of Const. Belanger's sidearm and restraints employed -- likely because the accused was being rude and belligerent", noted the judge.

"The search was initially proper given the false identity furnished by the accused, however, that justification disappeared once the accused driver's licence and corroborating documentation was retrieved by Const.Lawrence from the vehicle.
"Once the shotgun and ammunition was found under the rear car seat, they were forced to consider and record in their notes what justification existed for the warrantless search. They arrived at very different theories as to the justification for the search", reasoned Justice Hackland.

Holding that the arrest for careless driving was "questionable", and that the police had failed to inform Alia why they were arresting him, or to give him proper warning required under the Charter; "crucial", given the "confusing" circumstances around the arrest. The two constables, said the judge, had not provided the man with the proper Charter cautions until after they discovered the shotgun, and had by then already violated his rights.

Case dismissed.

Thugs free to behave in a criminal manner, to have illegal weapons in their possession, to operate motor vehicles in a dangerous manner, but their Charter rights upheld in a court of law which sees virtue in dismissing evidence that would hold them to account under the law.