Ontario Court of Justice

Date: 2020-12-18 Location: Newmarket

Between:

Her Majesty the Queen

— and —

Jabir Khan

Ruling on ss 8, 9 Charter Application – Reasonable Grounds

Evidence and Submissions Heard: November 16, 17, 2020

Delivered: 18 December, 2020

Counsel:

• Mr. Kevin Stewart, counsel for the Crown
• Mr. Steven Hinkson, counsel for the defendant

KENKEL J.:

Introduction

1On December 30, 2018 a jewellery store in the Markham Mall was robbed by six men wearing coveralls, masks and hoodies. They were armed with sledgehammers. One was armed with a firearm and he fired a shot during their escape. One suspect was arrested outside the mall. One of the sledgehammers left at the scene had DNA matched to Nathaniel Nelson. Further investigation led to a Part VI wiretap authorization in relation to the robbery in March of 2019. Mr. Nelson was a target of that authorization.

2One of the objects of the ongoing investigation was to locate the firearm used in the robbery. On May 28, 2019, surveillance officers were advised by a wiretap monitor that he believed Mr. Nelson was about to transfer a firearm to a third party. The officers observed Mr. Nelson and his girlfriend attend a vehicle briefly. Mr. Nelson called the driver shortly afterwards warning that he might have been followed. The driver of the vehicle was Mr. Khan. He was arrested and a sawed-off shotgun was found in the back area of his commercial van. Four rounds of ammunition were located in a sock.

3The police had information about Mr. Khan that formed part of their grounds to arrest. That information was ruled inadmissible in a prior application. The defence submits that on the remaining evidence, the police did not have reasonable grounds to arrest Mr. Khan and search his vehicle. The Crown submits that the admissible evidence provides a sufficient basis for the arrest and the search.

Charter ss 8, 9 – Reasonable Grounds to Arrest and Search

4"To establish reasonable and probable grounds for arrest, a police officer must subjectively believe that a person has committed or is about to commit an indictable offence, and the police officer must be able to justify that belief on an objective basis, meaning that a reasonable person placed in the position of the police must be able to conclude that there were reasonable and probable grounds. The police need not demonstrate anything more than reasonable and probable grounds. Specifically, the police need not establish a prima facie case for conviction." R v Wu, 2015 ONCA 667 at para 49, R v Storrey, 1990 CanLII 125 (SCC), [1990] SCJ No 12.

5The assessment of reasonable grounds is conducted through the lens of a reasonable person "standing in the shoes of the police officer" with that officer's training and experience – Wu at para 50. Exculpatory or neutral information cannot be disregarded, but the obligation to take all factors into account does not require that the police conduct further investigation to rule out alternate explanations. All the circumstances must be considered, not isolated factors shorn of context. R v Leppanen, 2015 ONSC 2973 at para 38.

Analysis

6The arresting officer Detective Constable (DC) Lai was involved in the investigation of the robbery and had been involved in prior surveillance at Mr. Nelson's address. He was aware that a firearm had been used during the robbery and that investigators were seeking to locate that firearm in addition to other evidence related to the robbery. DC Lai was also aware that the wiretap of Mr. Nelson's conversations had previously revealed discussions about movement of a firearm out of Mr. Nelson's building at 550 Birchmount in Toronto.

7DC Dority had experience monitoring intercepted communications. In early May of 2019 he listened to a series of intercepts where another party discussed with Mr. Nelson that he'd had a fight with his girlfriend, and she might tell police he had a gun. The word "gun" was used. That was not the first time guns had been discussed between Mr. Nelson and that person. They discussed the fact that Mr. Nelson wanted to get rid of his too.

8In subsequent conversation with another party, Mr. Nelson used coded language that the officer interpreted as referring to a gun given his experience. They discussed a "ping" in his house, (or "ting" as it sounded on the audio) that was one item in context that appeared to refer to a handgun and not something that would be expressed as a quantity (stuff) such as drugs.

9There were further coded discussions in May about Mr. Nelson's need to move the item out of his house. They talked about storing what the officer believed was a firearm in a bag at a location outside. Mr. Nelson told the other party not to describe the bag that would be used, "They don't need to know what bag you're bringing". There was another conversation between Mr. Nelson and his girlfriend about distracting her mother while he entered their apartment. That call came after another discussion about firearm transfer.

10On May 28th, 2019 DC Dority heard more coded conversation that again appeared to be about a firearm. Mr. Nelson said he "needed it gone ASAP". Another party asked Mr. Nelson where "it" was and he said "it's around. Then there was a discussion about how long it would take to get "shorty". The other party said he'd come to Mr. Nelson's building soon. That party called when he arrived at the building. He said to tell "shorty" to come down. The officer agreed in cross-examination that "shorty" is often used as a slang term meaning woman. Mr. Nelson told the person to watch their surroundings. They arranged to meet. DC Dority considered all of the evidence to that point and formed the belief that a firearm was about to be transferred to a person meeting with Mr. Nelson at 550 Birchmount Avenue in Toronto. All of this information was provided to DC Lai.

11DC Lai and other officers immediately attended 550 Birchmount and made further observations:

• The officers arrived to see Mr. Nelson standing beside a vehicle. A female was in the van then got out. After a brief meeting the vehicle left the parking lot. Mr. Nelson and the woman went back to the apartment building.

• The driver was the only occupant of the van.

• Officers observed Mr. Nelson and his girlfriend looking around the area after meeting with the van in an apparent attempt at countersurveillance. They stood at the entranceway to the building and scanned the parking lot area.

12Moments after Mr. Nelson met with the vehicle, DC Dority advised that Nelson phoned the driver of the vehicle to alert him that he may have been followed out of the parking lot. That call was consistent with the firearm transfer meeting that had been described in the prior call, consistent with Mr. Nelson's countersurveillance actions after the meeting and consistent with precautions that would be taken in relation to a transfer of an illegal firearm.

13Based on all of the above information, DC Lai concluded that the observations of Mr. Nelson, and his girlfriend, the observation of the brief meeting with a vehicle and the communication with the vehicle afterward all were consistent with the belief of PC Dority that a firearm transfer had taken place. He concluded there were reasonable grounds to arrest. The vehicle was stopped, and the driver Mr. Khan was arrested. DC Lai handed Mr. Khan over to DC Boulay to continue the arrest and provide right to counsel information and cautions.

14The defence notes that the officers arrived after Mr. Nelson was at the side of the vehicle. They did not witness Mr. Nelson or his girlfriend carrying anything from the building. That information was not obtained until after the arrest when the building elevator video was obtained. Detective Constable Dority's notes use the word "may" in relation to the transfer of the firearm.

15The use of the word "may" in DC Dority's notes does not reasonably detract from the belief conveyed to the other officers that a firearm was about to be transferred given the history of direct and coded conversations involving Mr. Nelson and the contents of the conversations that led to the arrest of Mr. Khan.

16The officers arrived at Mr. Nelson's building while Mr. Nelson and his girlfriend were meeting with Mr. Khan. If the arrest were based on observations made at the scene only, I agree with the defence that the countersurveillance actions of Mr. Nelson and his girlfriend after meeting with the van would raise suspicion, but nothing more. In this case though, the officers had information about Mr. Nelson's involvement in a robbery where a firearm was used and weeks of wiretap conversations discussing the movement of a gun in direct and coded terms. There was a specific plan by Mr. Nelson to move the item they believed was a gun away from his building at the exact time they attended, and their observations were consistent with such a transfer, as were the actions of Mr. Nelson after the meeting and his subsequent call to the driver.

17The defence submits that without other information obtained about Mr. Khan, the police would not have focused on his vehicle in the parking lot. As DC Kalonomos explained, while the officers did have information that a person was going to meet Mr. Nelson, they didn't know if that person was going to arrive in an Uber, a taxi, on foot or in a vehicle. The police had to focus on Mr. Nelson as their known source of the transaction and they would have watched any person or vehicle he met with. As DC Boulay said in re-examination, it made no difference who was driving the vehicle that met with Mr. Nelson given the information about the meeting that had been discussed in the wiretapped conversations.

18As with any offence, the officers did not have to directly witness the transfer of the firearm in order to have reasonable grounds to arrest. DC Lai and the other officers were entitled to rely upon all of the information and observations obtained during the investigation to the point where they decided to arrest. The evidence did not need to amount to proof beyond a reasonable doubt at that point or even a prima facie case. It did have to amount to more than a mere suspicion or hunch.

19Considering the circumstances and the admissible evidence as a whole, I find the Crown has proved that the officers' subjective belief that they had grounds to arrest Mr. Khan was objectively reasonable. The search of the vehicle including the driver's immediate surroundings in the context of that arrest was necessary and lawful.

Conclusion

20The Crown has proved the arrest of Mr. Khan was not arbitrary but based on reasonable grounds. The search of the vehicle was reasonable and justified in the circumstances of the arrest. The seizure of the sawed-off shotgun and ammunition from Mr. Khan's vehicle was lawful.

Delivered: 18 December, 2020