R. v. Mian (M.H.),

• Jurisdiction: Federal Jurisdiction (Canada)
• Judge: McLachlin, C.J.C., LeBel, Abella, Rothstein, Moldaver, Karakatsanis and Wagner, JJ.
• Citation: (2014), 580 A.R. 1,2014 SCC 54
• Court: Supreme Court (Canada)
• Date: 12 September 2014

R. v. Mian (M.H.) (2014), 580 A.R. 1; 620 W.A.C. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] A.R. TBEd. SE.003

Mohammad Hassan Mian (appellant) v. Her Majesty The Queen (respondent) and Attorney General of Alberta (intervenor)

(35132; 2014 SCC 54; 2014 CSC 54)

Indexed As: R. v. Mian (M.H.)

Supreme Court of Canada

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

September 12, 2014.

Summary:

The accused was charged with possession of cocaine and possession of the proceeds of crime (currency). He argued that he had been arbitrarily detained (Charter, s. 9), subjected to an unreasonable search and seizure of his person and vehicle (s. 8), was not promptly informed of the reason for his detention (s. 10(a)) and was denied his right to counsel (s. 10(b)). The accused applied under s. 24(2) of the Charter to have all evidence obtained in the searches excluded.

The Alberta Court of Queen's Bench, in a judgment reported (2011), 516 A.R. 368, allowed the application. The accused was not arbitrarily detained nor was he subjected to an unreasonable search and seizure. However, his Charter right to be informed promptly of the reason for his detention and his right to counsel were infringed. The combined effect of the extremely serious and deliberate breach of the accused's Charter rights, and the impact on the accused's protected interests, outweighed society's interest in the adjudication of the case on the merits. The court excluded the evidence under s. 24(2). The Crown appealed.

The Alberta Court of Appeal, in a judgment reported (2012), 536 A.R. 308; 559 W.A.C. 308, allowed the appeal and ordered a new trial. The trial judge erred in relying on irrelevant and inadmissible evidence derived from defence counsel's impermissible cross-examination of one police witness (lead investigator) as to the veracity of another police witness (who arrested the accused). Based on that inadmissible evidence, the trial judge rejected the credibility of the lead investigator, found that he attempted to mislead the court, and relied on that attempt to mislead the court as part of his reasons for excluding the evidence under s. 24(2). A new trial was required because the verdict would not necessarily have been the same but for the error. The accused appealed.

The Supreme Court of Canada allowed the appeal and restored the trial judge's acquittal. The Court of Appeal erred in exercising its rare power to raise a new issue on appeal that was not raised by the parties and ordering a new trial on that basis. The trial judge did not err in finding the Charter breaches, excluding the evidence and granting an acquittal.

Civil Rights - Topic 3142

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Arrest or detention - Right to be informed of reasons for (Charter, s. 10(a)) - The lead officer in charge of a homicide investigation reasonably believed that the accused, based on wiretaps and surveillance, had just taken part in a drug transaction as the supplier of a large amount of cocaine - The lead officer directed patrol officers to stop the accused's vehicle and find appropriate grounds to search it without disclosing the information that he relayed to them - The lead officer did not want to compromise the surveillance that remained ongoing respecting the homicide investigation - If they could not find appropriate grounds, the lead officer advised that he had reasonable and probable grounds to arrest the accused for possession of cocaine - The patrol officers stopped the accused purportedly to check to ensure that the rental car the accused was driving was not stolen - A pat down search of the accused incidental to the accused's arrest yielded nothing but cash - There was nothing in plain view in the vehicle - The lead officer advised the patrol officers to search the vehicle, as his surveillance team had seen the accused apparently hiding something in the passenger seat area - The patrol officers searched the vehicle, finding a large amount of cocaine under the passenger seat - The accused was not advised of why he was stopped and arrested until 22 minutes later - A further 2-5 minutes passed before the accused was advised of his right to counsel - The trial judge held that the accused's Charter right to be advised promptly of the reason for his detention and arrest was violated (Charter, s. 10(a)), as was his right to counsel (s. 10(b)) - There was no evidence that complying with the accused's Charter rights would compromise the other investigation - The combined effect of the extremely serious and deliberate breach of the accused's Charter rights, and the impact on the accused's protected interests, outweighed society's interest in the adjudication of the case on the merits - The court excluded the evidence under s. 24(2) - The Supreme Court of Canada held that the trial judge did not err in finding the Charter breaches or in excluding the evidence - See paragraphs 71 to 90.

Civil Rights - Topic 3608

Detention and imprisonment - Detention - Right to be informed of reasons for - [See Civil Rights - Topic 3142].

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - [See Civil Rights - Topic 3142].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 3142].

Courts - Topic 2103

Jurisdiction - Appellate jurisdiction - Issues - [See both Criminal Law - Topic 4985].

Criminal Law - Topic 4985

Appeals - Indictable offences - Powers of Court of Appeal - Power re grounds not raised on appeal - An accused was acquitted on drug charges after evidence was excluded for serious breaches of his Charter rights - The Crown appealed solely on the grounds of the Charter breaches and exclusion of the evidence - At trial, without objection by the Crown, the accused had impermissibly cross-examined one police witness on the veracity of another police witness - On appeal, the Court of Appeal raised this issue on its own and asked for submissions - The Court of Appeal held that the trial judge materially erred in considering irrelevant and inadmissible evidence and, since the verdict would not have necessarily been the same but for reliance on the impugned evidence, ordered a new trial - The Supreme Court of Canada restored the acquittal - The court stated that "an appellate court will be found to have raised a new issue when the issue was not raised by the parties, cannot reasonably be said to stem from the issues as framed by the parties, and therefore would require that the parties be given notice of the issue in order to make informed submissions. Issues that form the backdrop of appellate litigation will typically not be 'new issues' under this definition. Exercising the jurisdiction to ask questions during the oral hearing will not constitute raising a new issue, unless, in doing so, the appellate court provides a new basis for reviewing the decision under appeal for error." - This was not one of those "rare" circumstances where a Court of Appeal could exercise its discretion to raise a "new issue" on appeal because there was "good reason to believe" that not raising the issue would risk an injustice (i.e., good reason to believe the result would realistically have differed had the error not been made) - The court stated that "It will only be in rare cases that counsel on both sides will have failed to identify an issue that would realistically have affected the result." - Failing to raise the new issue would not risk an injustice where the error was not material and the result would not have been different but for the error - There was no indication that the trial judge relied on the impugned question and, even if he did, it had no material bearing on the outcome - See paragraphs 28 to 67.

Criminal Law - Topic 4985

Appeals - Indictable offences - Powers of Court of Appeal - Power re grounds not raised on appeal - The Supreme Court of Canada provided general guidelines to govern the procedure to be used when an appellate court exercised its discretion to raise an issue on appeal that was not raised by the parties - The court stated that "First, notification of the new issue may occur before the oral hearing, or the issue may be raised during the oral hearing. If the issue is raised during the oral hearing, it may be necessary to grant an adjournment to ensure a full and fair hearing. ... If the issue is raised prior to the oral hearing, the parties may request an adjournment of the hearing and an extension of the filing deadlines for further written argument. At all times, the court should raise the issue as soon as is practically possible after the issue crystallizes so as to avoid any undue delay in the proceedings. Second, I agree ... that the notification should not contain too much detail, or indicate that the court of appeal has already formed an opinion; however, it must contain enough information to allow the parties to respond to the new issue. ... Finally, I agree ... that the requirements for the response will depend on the particular issue raised by the court. Counsel may wish to simply address the issue orally, file further written argument, or both. ... the underlying concern should be ensuring that the court receives full submissions on the new issue. If a party asks to file written submissions before or after the oral hearing, in my view, there should be a presumption in favour of granting the request. The overriding consideration is that natural justice and the rule of audi alteram partem will have to be preserved." - The court rejected the submission that "where a new issue is raised, the judge or panel that raised the new issue should recuse itself and the panel should be reconstituted as necessary" - See paragraphs 56 to 60.

Cases Noticed:

R. v. Grant (D.), [2009] 2 S.C.R. 353; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 18].

Cusson v. Quan et al., [2009] 3 S.C.R. 712; 397 N.R. 94; 258 O.A.C. 378; 2009 SCC 62, refd to. [para. 30].

R. v. G.W., [1999] 3 S.C.R. 597; 247 N.R. 135; 181 Nfld. & P.E.I.R. 139; 550 A.P.R. 139, refd to. [para. 31].

Greenlaw v. United States (2008), 554 U.S. 237, refd to. [para. 38].

R. v. Brouillard, [1985] 1 S.C.R. 39; 57 N.R. 168, refd. to. [para. 39].

R. v. Sussex Justices (ex parte McCarthy), [1924] 1 K.B. 256, refd to. [para. 39].

Jones v. National Coal Board, [1957] 2 All E.R. 155 (C.A.), refd to. [para. 40].

R. v. Sheppard, [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 40].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 40].

R. v. Phillips (M.A.) (2003), 320 A.R. 172; 288 W.A.C. 172; 2003 ABCA 4, affd. [2003] 2 S.C.R. 623; 311 N.R. 94; 339 A.R. 50; 312 W.A.C. 50; 2003 SCC 57, refd to. [para. 44].

R. v. E.M.W., [2011] 2 S.C.R. 542; 417 N.R. 171; 305 N.S.R.(2d) 1; 966 A.P.R. 1; 2011 SCC 31, refd to. [para. 44].

Kourtessis et al. v. Minister of National Revenue et al., [1993] 2 S.C.R. 53; 153 N.R. 1; 27 B.C.A.C. 81; 45 W.A.C. 81, refd to. [para. 50].

Sylvan Lake Golf & Tennis Club Ltd. v. Performance Industries Ltd. and O'Connor (No. 2), [2002] 1 S.C.R. 678; 283 N.R. 233; 299 A.R. 201; 266 W.A.C. 201; 2002 SCC 19, refd to. [para. 51].

R. v. Kociuk (R.J.) (2011), 270 Man.R.(2d) 170; 524 W.A.C. 170; 2011 MBCA 85, refd to. [para. 66].

Canada (Minister of Citizenship and Immigration) v. Harkat - see Harkat, Re.

Harkat, Re, [2014] 2 S.C.R. 33; 458 N.R. 67; 2014 SCC 37, refd to. [para. 70].

Ruby v. Royal Canadian Mounted Police et al., [2002] 4 S.C.R. 3;  295  N.R.  353; 2002 SCC 75, refd to. [para. 70].

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192, refd to. [para. 74].

R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273, refd to. [para. 74].

R. v. J.M.H., [2011] 3 S.C.R. 197; 421 N.R. 76; 283 O.A.C. 379; 2011 SCC 45, refd to. [para. 75].

R. v. Côté (A.), [2011] 3 S.C.R. 215; 421 N.R. 112; 2011 SCC 46, refd to. [para. 77].

Counsel:

Daniel J. Song, Darin D. Sprake and Anna M. Konye, for the appellant;

David Schermbrucker and Ronald C. Reimer, for the respondent;

Jolaine Antonio, for the intervenor.

Solicitors of Record:

Sprake Song and Konye, Vancouver, B.C., for the appellant;

Public Procecution Service of Canada, Edmonton, Alberta, for the respondent;

Attorney General of Alberta, Calgary, Alberta, for the intervenor.

This appeal was heard on April 15, 2014, before McLachlin, C.J.C., LeBel, Abella, Rothstein, Moldaver, Karakatsanis and Wagner, JJ., of the Supreme Court of Canada.

On September 12, 2014, Rothstein, J., delivered the following judgment in both official languages for the Court.