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R. v. Mian, 2014 SCC 54 (CanLII)

Present:  McLachlin C.J. and LeBel, Abella, Rothstein, Moldaver, Karakatsanis and Wagner JJ


                   The accused was charged with possession of cocaine for the purpose of trafficking and possession of currency obtained by the commission of an offence.  The trial judge determined that the accused’s rights under s. 10(a) and (b) of the Charter were breached because the constables waited 22 minutes to inform him of the reasons for his arrest and an extra 2 to 5 minutes to inform him of his right to retain and instruct counsel.  The trial judge noted that defence counsel cross-examined the detective who instructed constables to arrest and search the accused.  During this cross-examination, defence counsel confronted the detective about the testimony of another Crown witness, which differed from the detective’s concerning the grounds to arrest and search the accused.  Ultimately, all evidence was excluded and the accused was acquitted.  

…                    Held:  The appeal should be allowed and the acquittals restored.  

                   There is also no basis to overturn the trial judge’s conclusion that the accused’s s. 10 Charter rights were breached.  The trial judge found as a fact that there was insufficient evidence to support the assertion that immediate compliance with s. 10 of the Charter would have compromised the ongoing investigation.  As Crown appeals from acquittals are restricted to questions of law, findings of fact can only be undermined in limited situations, not applicable in this case.  There were no exceptional circumstances to justify the delay by the police in complying with their s. 10 informational duties and therefore no reason to disturb the trial judge’s conclusion that s. 10(a) and (b) of the Charter were infringed.  Furthermore, in view of the deferential standard of review on appeal and because the Crown’s arguments with respect to the trial judge’s s. 24(2) findings amount to an attack on the trial judge’s findings of fact, the trial judge’s order to exclude the evidence under s. 24(2) of the Charter should also not be interfered with.

Jim O'Neil, LL.B.

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