Two convictions overturned in Ontario over rights violations by police

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Police violations of the accused’s rights in two Ontario cases resulted in quashed convictions for child pornography and weapons offences on Tuesday.

In separate decisions, Ontario’s top court ruled the breaches were serious enough to bring the administration of justice into disrepute.

In the first case, the court ordered a new trial for Peter McSweeney, who was convicted in October, 2017, of child pornography offences based in part on self-incriminating statements he made to police.

Court documents show nine police officers went to Mr. McSweeney’s home in Whitby, Ont., on an early morning in May, 2016. They arrived with a search warrant after receiving a report that someone had uploaded pornographic images from an account registered to that address.

At one point, Durham Regional Police Detective Constable Jeff Lockwood asked Mr. McSweeney to head to the porch and, without advising him of his rights, questioned him.

In one exchange, Mr. McSweeney made a self-incriminating statement, after which he was arrested. Questioning continued at the police station, and despite Mr. McSweeney saying he wished to remain silent after talking to a lawyer, he again incriminated himself.

At trial, Ontario court Justice Mary Teresa Devlin allowed the accused’s statements as evidence over defence objections. Justice Devlin ruled the suspect was not detained when he confessed on the porch, and the officer was therefore not obliged to advise him of his right to speak to a lawyer immediately.

The Appeal Court disagreed, finding a reasonable observer would have considered Mr, McSweeney to have been under detention at home. In addition, the questioning at the police station was improper, the court ruled.

“The state conduct was wilful and in disregard of the appellant’s asserted charter rights,” the higher court concluded. “It had a serious impact on those rights and on his attempt to exercise them.”

The court ordered a new trial, saying the now-excluded confessions were important but not critical to the prosecution.

Separately, the court entered an acquittal in the case of Bilaal Mohammed, who was convicted of firearms and other offences in May, 2016.

Evidence was that provincial police stopped him in a parking lot near Alfred, Ont., for a broken licence-plate light. The officer smelled marijuana and decided to investigate further, without advising Mr. Mohammed of his right to speak to a lawyer.

One officer strip-searched Mr. Mohammed in the parking lot, dropping his pants to his ankles. Police found nothing untoward. However, a search of his car turned up some cash, several cell phones, some cannabis and ammunition.

Officers then asked if he had a gun, and he said he did, strapped to his pant leg. The officers arrested him, advised him of his rights, and took him to the police station, where they searched through his cellphone.

Justice Paul Belanger convicted Mr. Mohammed of weapons and other offences related to the items police found in the car.

Mr. Mohammed appealed, arguing evidence obtained during the strip search and the searches of his car and phone should have been excluded. The prosecution agreed police violated Mr. Mohammed’s rights by failing initially to advise him of his rights and questioning him for more than 20 minutes before he was able to talk to a lawyer.

The Crown conceded the strip search and search of his phone without a warrant were also serious charter breaches.

“The Crown’s concessions are appropriate and we accept them,” the Appeal Court said in acquitting Mr. Mohammed. “In our view, each of the breaches is very serious. Taken as a whole, the breaches are so egregious that the evidence must be excluded.”