Ap­peal Court over­turns drug con­vic­tion over un­law­ful de­ten­tion

The Hamilton Spectator - - LOCAL - THE HAMIL­TON SPEC­TA­TOR

On­tario’s top court has over­turned a man’s drug traf­fick­ing con­vic­tion on the grounds that he was un­law­fully de­tained by a Hamil­ton po­lice of­fi­cer dur­ing his ar­rest.

Zwe­lakhe Mh­longo was con­victed of pos­ses­sion of co­caine for the pur­pose of traf­fick­ing in April 2014 fol­low­ing a ve­hi­cle stop for a High­way Traf­fic Act of­fence two years prior.

He filed an ap­peal based on the trial judge’s de­ci­sion not to ex­clude the co­caine and cash seized as ev­i­dence.

While the trial judge found Mh­longo’s char­ter rights around un­law­ful search and seizure and the right to coun­sel had been breached, he did not find that to be the case for ar­bi­trary de­ten­tion.

But in a rul­ing re­leased by the On­tario Court of Ap­peal Fri­day, Jus­tice Robert Blair dis­agreed with that judge’s find­ing.

“It is (a) pal­pa­ble and over­rid­ing er­ror, in my view, to find … that the ap­pel­lant was not de­tained for crim­i­nal in­ves­tiga­tive pur­poses prior to his phys­i­cal de­ten­tion and sub­se­quent ar­rest,” he wrote in his rul­ing, which was en­dorsed by Jus­tices Glo­ria Ep­stein and James MacPher­son.

Ac­cord­ing to the rul­ing, Mh­longo was a pas­sen­ger in a rental car that was pulled over for sus­pected unau­tho­rized li­cence plates around 7:15 p.m. on July 27, 2012.

The driver of the car was ar­rested af­ter po­lice ran a search and con­firmed the li­cence plates didn’t be­long to the ve­hi­cle. The of­fi­cer also ran checks on Mh­longo and the other pas­sen­ger, and found Mh­longo had a crim­i­nal record.

The of­fi­cer asked his col­league to de­tain Mh­longo be­cause “al­though he had no spe­cific crime in mind at the time,” he sus­pected “some­thing else might be go­ing on be­sides the HTA of­fence.”

Be­fore Mh­longo could be de­tained, the po­lice of­fi­cer saw him walk to­ward a ve­hi­cle parked next to the rental car and “make a down­ward mo­tion with his hand.”

Ac­cord­ing to the rul­ing, Mh­longo was hand­cuffed just be­fore 8 p.m. so the of­fi­cer could get what he be­lieved had been thrown un­der the car, which ended up be­ing two bags of co­caine.

Mh­longo was ar­rested and pat­ted down, at which point an iPhone, Black­Berry and $420 in cash were found on him.

The rul­ing spells out that, ac­cord­ing to the Supreme Court of Canada, a po­lice of­fi­cer can de­tain a per­son to in­ves­ti­gate a crim­i­nal of­fence “if there are rea­son­able grounds to sus­pect in all the cir­cum­stances that the in­di­vid­ual is con­nected to a par­tic­u­lar crime and that such de­ten­tion is nec­es­sary.”

“No such grounds ex­isted here,” Blair wrote.

Mh­longo’s de­ten­tion turned from law­ful to “ar­bi­trary” once the driver of the car was ar­rested, he con­tin­ued.

This took place around 7:25 p.m., and Mh­longo wasn’t ad­vised of his right to coun­sel un­til 8 p.m.

“I view the un­law­ful de­ten­tion of the ap­pel­lant for pur­poses of a crim­i­nal in­ves­ti­ga­tion … as well to­ward the se­ri­ous end of the breach spec­trum, and the fail­ure to pro­vide the ap­pel­lant with his right to coun­sel for more than half an hour af­ter the com­mence­ment of that un­law­ful de­ten­tion as even fur­ther along that spec­trum,” Blair wrote.

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