Her Majesty the Queen v. Omar Muhammad Omar

(Ontario) (Criminal) (As of Right)


Constitutional law - Canadian charter (Criminal), Enforcement, Execution - Constitutional law - Charter of rights - Enforcement - Exclusion of evidence - Respondent’s s. 8, 9 and 10(b) Charter rights infringed - Trial judge refusing to exclude the evidence obtained in breach of the respondent’s Charter rights - Court of Appeal allowing appeal and entering acquittals - Whether Court of Appeal erred in excluding the evidence under s. 24(2) of the Charter - Application of R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.


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The respondent was convicted of various firearms offences and of possession of cocaine for the purpose of trafficking. He was stopped by two police officers and asked to identify himself while walking down the street late at night with an acquaintance. While one officer sat in the police car and ran their names through the Canadian Police Information Centre, the other officer remained with the respondent and his acquaintance and directed them more than once to keep their hands out of their pockets. When the officer standing with the men saw the barrel of a gun in the respondent’s pocket, the respondent was tackled, the gun was seized and the respondent was arrested. A search incident to arrest revealed he was carrying four rounds of ammunition. A search conducted at the station yielded a clear plastic bag containing cocaine. The trial judge found that the respondent’s s. 8, 9 and 10(b) Charter rights had been infringed, but she refused to exclude the evidence on the basis that the police had acted in good faith and had not believed that they had detained the respondent. On appeal, the only issue was whether the trial judge had erred in refusing to exclude the evidence. A majority of the Court of Appeal allowed the appeal and entered acquittals on all counts. In its view, the police had no lawful justification for detaining the respondent, they had no excuse for not knowing that they were violating his Charter rights, and this was not a case like R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, in that they were not operating in circumstances of considerable legal uncertainty. Brown J.A., dissenting, would have dismissed the appeal.