Court of Appeal for Ontario

Date: 20230519 Docket: C69800

Benotto, Miller and Paciocco JJ.A.

Between

His Majesty the King Respondent

and

Jabir Khan Appellant

Counsel: Carter Martell, for the appellant Rebecca De Filippis, for the respondent

Heard: May 10, 2023

On appeal from the conviction entered on January 21, 2021, by Justice Joseph F. Kenkel of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was convicted after a trial of possessing a restricted firearm and occupying a vehicle knowing there was a firearm in it. He appeals his convictions on the grounds that the trial judge erred in failing to conduct a s. 24(2) analysis with respect to the firearm. He also argues that the trial judge materially misapprehended several pieces of evidence, and, consequently, the verdict was unreasonable.

[2] For the reasons that follow, the appeal is dismissed.

Background facts

[3] In the spring of 2019, as part of their investigation into an armed robbery of a jewelry store, the police obtained a Part VI authorization to intercept the private communications of Nathaniel Nelson and 20 other named suspects. One object of the investigation was to locate the firearm used in the robbery. The police also obtained, without a production order, the appellant’s telephone subscriber information, namely his name and address, after intercepting an innocuous conversation between him and Mr. Nelson. The police ostensibly obtained this information pursuant to an assistance order provided at the time of the authorization to intercept. The subscriber information enabled the police to obtain a photograph of the appellant, and to learn the make and model of his vehicle.

[4] Through Mr. Nelson’s intercepted communications, the police formed the belief that Mr. Nelson had a firearm and was arranging to give it to the appellant. Ultimately, the night of May 28 was to be the hand-off.

[5] In the evening of May 28, a team of surveillance officers went to Mr. Nelson’s residence and saw him and his girlfriend go to the appellant’s vehicle in the parking lot. When the appellant left the parking lot, the police followed him. Shortly after, the police pulled up behind him, arrested him and searched him and the vehicle. They found a shotgun and four shotgun rounds in a duffle bag.

Trial rulings and decision

[6] The appellant filed two Charter applications, alleging:

1. that the police breached his s. 8 rights by obtaining, without a production order, the subscriber information connected to his phone number; and
2. that, contrary to s. 9, the police lacked grounds to arrest him and therefore had no authority to search his van.

[7] The trial judge allowed the first application and excluded the appellant’s name, address, and license plate number pursuant to s. 24(2). He then excised this information from his assessment relating to the second Charter application of whether the police had reasonable and probable grounds for the appellant’s arrest. The s. 9 application was blended with the trial. The trial judge ultimately dismissed the second application finding that, even without considering the subscriber information, there were reasonable and probable grounds to arrest and conduct the search incident to arrest. The appellant takes no issue with this finding, acknowledging that there were reasonable and probable grounds for arrest and search.

New issues on appeal

[8] The appellant and the Crown each raise new issues on appeal. The appellant submits that the trial judge should have excluded the firearm as a result of the s. 8 breach because of the unconstitutional “manner in which” the firearm was seized. He argues that the police relied on the information they had unconstitutionally obtained about his identity when searching his car and seizing the firearm. He therefore says that on a fresh s. 24(2) analysis the admission of the firearm would bring the administration of justice into disrepute.

[9] At trial, the only remedy the appellant sought for the s. 8 breach was the exclusion of the subscriber information itself. No application was brought to the trial judge to exclude the firearm as a result of the unreasonable seizure of the subscriber information. It is an issue raised for the first time on appeal. This is inappropriate and we reject it.

[10] It is therefore unnecessary to address the Crown’s countervailing submission that the trial judge erred in the s. 8 ruling by excluding the subscriber information. It is best that we do not do so. It is an issue of sufficient importance that we will refrain from commenting on it where it is unnecessary to do so to resolve the appeal.

Appellant’s other submission

[11] The appellant also submits that the trial judge’s determination was otherwise in error because he misapprehended evidence, including when he said the firearm was “not wrapped” in the duffle bag. In fact, it appears from photographs of the scene to have been mixed in with clothing of some sort.

[12] We would not give effect to this submission, or to any of the other alleged misapprehensions or unreasonable inference arguments. The suggestion that the trial judge made a material misapprehension of evidence or drew unreasonable inferences does not accord with his thorough and compelling reasons for rejecting the appellant’s evidence. In short, the trial judge was “unable to find that Mr. Khan was a credible witness” because his evidence was “illogical”, “did not make sense”, and “[his] evidence as to his lack of knowledge about the bag and its contents was inconsistent with the audio surveillance evidence and circumstantial evidence at trial”. He explained his reasoning for these findings:

• The appellant’s testimony that he was carrying a small amount of cocaine was inconsistent with transporting a large duffle bag. Mr. Nelson was concerned about surveillance and would not have selected a big red duffle bag to transport “some cocaine”.
• The appellant’s testimony that Mr. Nelson chose to tell him he was transporting cocaine rather than a firearm did not make sense. The appellant would soon discover the true contents in any event.
• The conversation between the appellant and Mr. Nelson arranging the pickup indicates that the appellant had knowledge of the duffle bag and its contents. Mr. Nelson and the appellant used code words that referred to a single item – “it”, “that”, “ting” or “ping” – which is inconsistent with a quantity of something like drugs.

[13] We see no error or misapprehension of evidence.

[14] The appeal is dismissed.

“M.L. Benotto J.A.”

“B.W. Miller J.A.”

“David M. Paciocco J.A.”