Appeal Court overturns drug conviction over unlawful detention

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.