Ottawa Citizen

Evidence in home invasion case disallowed

‘There is no way to sugar-coat or gloss over these infringeme­nts’

- GARY DIMMOCK gdimmock@ottawaciti­­n

Key evidence in a home invasion case has been tossed out after a judge said Ottawa police unlawfully arrested, and unreasonab­ly searched and detained, a suspect for 16 hours without grounds in what he described as a “gratuitous insensitiv­ity” to the young man’s Charter rights.

“There is no way to sugar-coat or gloss over these infringeme­nts. Our system is designed to ensure that citizens are not arbitraril­y arrested. ... It is designed to respect the presumptio­n of innocence. Here, the police held a man for 16 hours without grounds or legitimate purposes,” Ontario Superior Court Justice Rick Leroy ruled in a Feb. 9 decision.

Soulieman Mohammed, now 23, was pulled over in the early hours of July 1, 2011 when an Ottawa police officer noticed he was driving with no headlights on. The Honda wasn’t licensed and its plate, registered to another car, had expired back in 2008.

Unlike his two passengers who declined to identify themselves, Mohammed was co-operative. Police found bags of marijuana stuffed in the passengers’ underwear, but Mohammed was clean and denied knowing his passengers had weed that had been packaged in 32 small bags for street sale.

Still, police arrested Mohammed on drug-traffickin­g charges, towed his car and sent him to the police cellblock, where he was held at length because there was no detective available. Judge Leroy said Mohammed never should have been jailed, saying that possession of marijuana for the purpose of traffickin­g is not a crime that merits detention.

Once in the cellblock, the police went through evidence seized from the car and linked it to a June 28, 2011 home invasion. The evidence included computers, cellphones and a wallet.

The judge ruled that because Mohammed’s arrest was unlawful, the ensuing search and detention were also unreasonab­le, and threw out key evidence in the Crown’s case.

The judge said the officer had no grounds to arrest Mohammed on drug-traffickin­g charges in the first place.

He said it was the bad arrest that tainted everything that came afterward, including statements the suspect made to police, which were also excluded from Crown evidence this week.

“I do not accept that an ordinary prudent and cautious person in the officer’s position would conclude that (Mohammed) was probably guilty of possession for the purpose of traffickin­g. There are too many innocent explanatio­ns.

“The prospect for conviction based on the known evidence was non-existent. The constable drew unsupporta­ble inferences to get to reasonable and probable grounds to arrest (Mohammed). He concluded knowledge, consent and control without any logically connecting evidence,” Judge Leroy wrote.

The judge said the community has an interest in a legal system that operates within the law, and said that the admission of evidence in this case would bring the administra­tion of justice into disrepute.

“What is most troubling about this case is both the ignorance of and disregard for basic Charter rights demonstrat­ed by some of the officers involved,” said Michael Purcell, the defence lawyer who filed the successful applicatio­n to exclude the tainted evidence from trial.

“These rights are simple, guaranteed and essential knowledge for all police officers.”

Mohammed is charged with two counts of forcible confinemen­t, unlawfully being in a dwelling, one count of conspiracy to commit an indictable offence, possession of a weapon and two counts of uttering threats. He returns to court in April but it’ll be difficult for the Crown to prosecute him now that the key evidence has been excluded from trial.

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