Even though an Ontario Court of Appeal panel found that a Barrie man’s rights were infringed during a traffic stop, he failed to convince a panel of judges to reverse a lower court’s decision.
Zaki Pera appealed his March 2018 convictions for possession of heroin for the purpose of trafficking, possession of a loaded prohibited firearm and breach of probation.
At issue was a traffic stop on April 16, 2017 conducted by a Barrie police officer.
Using information from an informant, the officer stopped Pera’s car looking for a gun. But because of “safety concerns,” the officer instead told Pera he was investigating a possible probation violation, according to the appeal court decision released Thursday.
Pera had a bag of cannabis along with a prescription authorizing its use. The officer detected a "slow lethargic tone" of speech and had Pera perform a standard field sobriety test, which he passed.
Another officer then noticed an oxycodone prescription bottle, not in Pera’s name, visible in the car. While he was at the police station, his girlfriend claimed the bottle.
Officers then obtained a search warrant to go through Pera’s car. Officers discovered a loaded 9mm Ruger handgun, 13.14 grams of a heroin/fentanyl mixture and 50.02 grams of crack and powder cocaine.
The original trial judge rejected his lawyer’s arguments that his right to be free from arbitrary detention as well as his right to be informed promptly of the reasons for detention were breached.
Pera’s lawyer argued before three appeal court justices that the trial judge erred in failing to find that the police breached his Charter rights during the stop in order to get incriminating evidence against him, and that the judge further erred in failing to exclude evidence of a gun and drugs found in the car.
"The deliberate breaches consisted of lying about the true nature of the stop and manufacturing a false basis for the (standard field sobriety test) demand and (Pera's) continued detention," the appeal court's decision states.
The Court of Appeal panel did find the officer breached Pera’s rights by not informing him that he was being investigated for possession of a firearm.
The challenge for the appeal court was balancing the impact of that breach. The test is weighing the seriousness of the conduct of the breach, its impact and society’s interest.
Despite finding that the officer breached Pera’s rights by failing to tell him he was being investigated for possession of a firearm, the court of appeal panel consisting of justices Janet Simmons, David M. Paciocco and Benjamin Zarnett found “no basis for interfering with the trial judge’s conclusion that there was no indication that the police did not act in good faith and therefore that any breach was not serious.”
The panel dismissed Pera’s appeal.