ONTARIO COURT OF JUSTICE

CITATION: R. v. Khare, 2019 ONCJ 107

DATE: 2019 02 26

COURT FILE No.: 17-3770

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

SUNJEET KHARE

Before Justice A.D. Dellandrea

Heard on December 10, 2018

Reasons for Judgment released on February 26, 2019

Mr. M. Park............................................................................................ counsel for the Crown

Ms. A. Abbasi...................................................... counsel for the accused Sunjeet Khare

DELLANDREA J.:

[1] Mr. Khare stands charged with two counts of possession of a controlled substance following his arrest on March 27, 2017. Cst. Gill of the Peel Police saw Mr. Khare in the driver’s seat of a vehicle which was parked on a quiet residential street. When the defendant exited the vehicle, the officer observed certain items on the floor mat of the driver’s seat which he believed to be drug paraphernalia, namely: tin foil, empty pen casings, and a lighter. The defendant was arrested and searched. A syringe was located in his pants pocket, and a small quantity of two substances which were later confirmed to be heroin and crystal meth were found in the change purse which had been on the floor of the driver’s seat.

[2] The hearing was conducted as a blended voir dire and trial, and focused on two Charter, and one substantive issue.

(1) The applicant submits that Cst. Gill lacked reasonable grounds for his arrest, rendering his arrest and detention unlawful and contrary to s. 9 of the Charter;

(2) By consequence of what is argued to be an unlawful arrest, the applicant submits that there was no lawful authority for the search of the applicant or the vehicle, which was conducted in the absence of a warrant. It is argued that this amounts to a breach of the applicant’s rights under s. 8; and that the evidence seized should be excluded pursuant to s. 24(2) as a result of the cumulative impact of both of these suggested breaches.

(3) The defendant argues that even if I were to dismiss the Charter application and admit the evidence, the Crown’s case cannot achieve the required threshold of proof beyond a reasonable doubt, as it failed to establish that Mr. Khare had knowledge or control of the controlled substances which were found in the change purse within the vehicle.

[3] On behalf of the Crown, Mr. Park argued that the officer’s grounds for his arrest of the applicant were adequately supported by reasonable belief, in all of the circumstances, which include the officer’s experience in dealing with drug offences. He submits that there was consequently no breach of s. 9 and the search which immediately followed was entirely permissible as a lawful search incident to arrest.

[4] On the substantive issue of proof, the Crown argues that even though the defendant was not the registered owner of the vehicle, the circumstantial evidence of his presence in the driver’s seat, proximate to where the drugs were found, supports the inference of his knowledge and control in order to establish his guilt.

Foundational principles

[5] On the Charter application, the defendant as applicant bears the burden of establishing the breaches alleged on a balance of probabilities, and if established, on the 24(2) application for exclusion.

[6] However, Mr. Khare is presumed innocent. There is no burden on him to disprove his guilt or to establish his innocence. The ultimate burden in this case remains with the Crown to prove all of the elements of each offence beyond a reasonable doubt.

Issue 1: Did Cst. Gill have reasonable grounds to arrest Mr. Khare for possession of a controlled substance?

[7] In the early morning hours of March 27, 2017, Cst. Gill of the Peel Police discovered Mr. Khare sitting in the driver’s seat of a parked vehicle on a dead end residential street. Mr. Khare appeared to be slouched over in the seat, or sleeping. The officer stopped to investigate.

[8] Mr. Khare appeared to jerk or startle from his sleep upon seeing the bright lights of the officer’s cruiser ahead of his, and quickly disembarked from the vehicle and stood beside it, leaving the driver’s door open. Cst. Gill noted that Mr. Khare appeared confused or drowsy, and unsteady on his feet. The officer looked inside the driver’s side door, past Mr. Khare, and observed a number of items on the floor of the driver’s seat: several small pieces of tinfoil, empty plastic pen casings, a lighter, as well as a small red change purse.

[9] On the basis of having observed these items, which the officer believed from his experience to be drug paraphernalia, he arrested Mr. Khare for possession of a controlled substance, pursuant to s. 4(1) of the Controlled Drugs and Substances Act.

[10] The officer was cross-examined by Ms. Abbasi on two main issues essential to his grounds for belief that Mr. Khare was in possession of drugs: (1) his vantage point, or opportunity to observe the items in the alleged location; and (2) the validity of the inference on which the officer relied in forming his grounds, namely, that tin foil, pen casings and a lighter were paraphernalia associated with the possession and use of heroin.

[11] On behalf of Mr. Khare, Ms. Abbasi submitted that the officer’s evidence on each point was flawed. She argued that his evidence was inconsistent with respect to his vantage point, and would not have allowed him to have observed the items where the officer claimed they were, on the driver’s floor. She also submitted that the each of the three objects seen are essentially benign household items which are legal to possess and from which no subversive purpose associated to drug use could reasonably be drawn.

[12] The Crown argues that the officer’s testimony was clear, consistent and credible. It is submitted that his stated grounds were abundantly supported by his evidence with respect to both his subjective grounds for belief, as well as their objective reasonableness.

a) Vantage point

[13] Cst. Gill testified after Mr. Khare quickly exited the vehicle, he left the driver’s door open, and stood beside it. He stood mostly still but his upper body was swaying somewhat. The officer testified that he had a clear view of the driver’s seat, floor board and centre console. It was at that moment that Cst. Gill said he observed the items in question on the driver’s side floor.

[14] In cross, the officer confirmed that Mr. Khare was standing between the open door of the driver’s side and the driver’s seat. Ms. Abbasi suggested it would not have been physically possible for him to see the floor of the car with the defendant in that position. The officer disagreed, indicating that he was more than an arm’s length away from the defendant, towards the rear of the suspect vehicle, on an angle, such that he had “no difficulty” seeing within the car, past the defendant, who was physically smaller than him. He repeated that Mr. Khare was swaying slightly at the time of his observations, such that he had a “clear view of everything inside.”

[15] I accept Cst. Gill’s evidence that he was able to see the items where they were located on the floor of the vehicle as he approached to speak with the defendant. No more than two minutes elapsed between when the officer parked and exited his cruiser and his seeing the items, and arresting the defendant. During this period of time the officer was focusing on Mr. Khare, as he was yet unaware of his physical status or his relationship to the vehicle. Cst. Gill testified in a candid, straightforward and professional manner. He expressed confidence in his observations and findings, and made reasonable concessions about the limitations of his evidence where they existed. He was a very credible witness. I have no difficulty finding that he observed the tinfoil, lighter and pen casings where he described seeing them.

b) Reasonable grounds to believe that the defendant was in possession of a controlled substance

[16] The officer described Mr. Khare’s appearance when he hurriedly exited the car in these words: unsteady, out of it, very confused, drowsy, slow-moving with slurred speech and red rimmed watery eyes. He said Mr. Khare was “either very tired or dazed…he had slurred speech…he looked how I am every morning when I wake up for the first couple minutes.”

[17] It was then that Cst. Gill saw several small pieces of tinfoil, along with a number of empty pen casings and a lighter on the floor of the car from which the defendant had just emerged.

[18] The officer testified that he had come across these items, in combination, in “countless” drug investigations. He was aware from this experience that heroin is often placed on the tinfoil and burned with the lighter to make a liquid, and the empty pen casings are often used to ingest the substance nasally. Cst. Gill testified that he had come across these things approximately 10-15 times per year during his 4 year career. He also explained that he had learned of the items’ use from some of the people he had arrested during previous drug investigations.

[19] The red change purse was in the immediate area of these three other items. It had no particular significance to the officer in terms of his grounds aside from its proximity to the other items.

[20] Cst. Gill acknowledged that it was not a high-crime area, that the vehicle was not parked illegally, and there had been no complaints about suspicious vehicles prompting him to investigate Mr. Khare. The officer approached, asked Mr. Khare whose car it was, then looked within and saw the items in question.

[21] The basis for his grounds were limited to: Mr. Khare’s condition (dazed, confused, red rimmed eyes slurred speech) and his proximity to three items (pen casings, lighter, tinfoil) which the officer believed to be associated with the use of heroin.

[22] Ms. Abbasi argues that the officer’s subjective grounds for belief that the items seen are associated with the possession or use of heroin are not objectively reasonable. She argues that the purported inference is itself unreasonable given the lawful nature of each of the items, and further submits that even if I were to accept the inference of association between the items to heroin, that the presence of paraphernalia alone is insufficient to objectively support reasonable grounds to believe that an individual is in possession of a controlled substance.

Applicable legal principles

[23] The reasonable grounds standard does not require proof of a prima facie case or proof beyond a reasonable doubt. The test is met where, based on all of the circumstances known to the officer, "credibly-based probability" replaces suspicion: R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1166; Hunter et al. v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, at p. 167; R. v. Dhillon, 2016 ONCA 308.

[24] Our Court of Appeal recently considered the interplay of an officer’s subjective grounds for belief to arrest without warrant, and the objective reasonableness requirement within s. 495(1)(b) in Canary, 2018 ONCA 304. Writing for the Court, Justice Fairburn explained the correct approach, as follows, at paragraph 30:

Facts known to an officer at the time of arrest should not be considered within individual silos. The question is not whether each fact, standing alone, supports or undermines the grounds for an arrest. The question is whether the facts as a whole, seen through the eyes of a reasonable person who has the same knowledge, training and experience as the arresting officer, make the arrest objectively reasonable.

[25] The question here then, is not whether or not there are alternative, innocent explanations for the presence of the three impugned items in an individuals’ possession which would point away from the inference of their being in possession of a controlled substance.

[26] The correct question is whether or not a reasonable person, with all of Cst. Gill‘s experience, training and knowledge would have held the same belief: that these items were associated with heroin use, and supported the reasonable belief that the person had controlled substances in their possession.

[27] The Supreme Court of Canada in R. v. MacKenzie has directed that as a matter of law, a trial judge must appreciate the significance of police experience and training when evaluating the probative value of evidence, in particular, when considering the reasonable grounds asserted for investigative detention or arrest[^1]. With his signature clarity, Justice Moldaver explained the rationale for this approach:

Officer training and experience can play an important role in assessing whether the reasonable suspicion standard has been met. Police officers are trained to detect criminal activity. That is their job. They do it every day. And because of that, "a fact or consideration which might have no significance to a lay person can sometimes be quite consequential in the hands of the police". Sights, sounds, movement, body language, patterns of behaviour, and the like are part of an officer's stock in trade and courts should consider this when assessing whether their evidence, in any given case, passes the reasonable suspicion threshold.

[28] The approach mandated by MacKenzie does not direct that police training and experience be blithely accepted by the courts. Mere hunches or intuition grounded in the officer’s experience will not suffice. Reasonable suspicion or grounds are objective standards which much stand up to independent scrutiny. As Moldaver, J. explained:

In sum, while it is critical that the line between a hunch and reasonable suspicion be maintained to prevent the police from engaging in indiscriminate or discriminatory practices, it is equally vital that the police be allowed to carry out their duties without undue skepticism or the requirement that their every move be placed under a scanning electron microscope[^2].

[29] In assessing whether reasonable grounds existed for the applicant’s arrest under the CDSA, I have assessed the objective reasonableness of the stated grounds through the lens of a reasonable person standing in the shoes of Cst. Gill.

[30] I find that Cst. Gills’ grounds for belief that the tinfoil, lighter and pen casings were specifically associated with heroin use and possession was a reasonable one, which were properly supported by his knowledge, training and experience. The evidence which I accept in support the officers grounds include:

(1) Cst. Gill’s testimony that these three items, in combination, were consistent with their discovery in at least 30-45 previous drug investigations that he had personally participated in;

(2) His experience of having spoken with some of the people who he had arrested in the past for drug offences, who had shared information with him about how these particular items were used to facilitate the ingestion of heroin;

(3) His observation of the defendant in the early morning hours, slouched over or asleep at the wheel of a vehicle;

(4) The defendant’s hurried, startled exit from the vehicle upon waking; and,

(5) The defendant’s physical appearance, including his swaying, slurred speech, stunned affect, and red watery eyes.

[31] In Brown[^3], the objective reasonableness of the officer’s grounds for arrest under s. 4 of the CDSA were found by the Court of Appeal to have been deficient. In that case, the officer had not observed any physical items which resembled drugs or drug paraphernalia, but rather, had relied only on the way the accused had held his hands and interacted in public with another person, which to the officer, was suggestive of an effort to conceal drugs. The Court in Brown held that the police officer in that case had relied on improper speculation in forming his grounds. Brown is distinguishable on this basis, as I have held that Cst. Gill’s grounds were properly founded on his own body of knowledge and experience with respect to the relationship between these particular items of paraphernalia and the use of heroin, absent any speculation.

[32] The officer’s grounds to arrest the defendant for possession of a controlled substance were reasonable. They arose following his observation of not just one item, which in his experience, was associated with the use and possession of heroin, but three such items, in combination. The officer’s experience and training amply supported the objective reasonableness of his grounds. The applicant has failed to demonstrate that his arrest was arbitrary. The application under s. 9 of the Charter is dismissed.

Issue 2: Search incident to arrest

[33] I have found that the grounds of Mr. Khare’s arrest under the CDSA were supported by reasonable grounds. The arrest was therefore lawful. It follows that the searches which followed were authorized by common law which permits the search of a lawful detainee incident to arrest. Searching the contents of the driver’s side of the car as well as the defendant’s pockets was directly connected to the purpose for the arrest. The arrest arose from the discovery of the very items on the floor themselves. There is no suggestion that the searches were done unreasonably. The search conformed with the proper boundaries of this authority. The applicant has failed to establish that the search and seizure of the impugned items, including the change purse in which the drugs were found, was contrary to s. 8 of the Charter.

Issue 3: Right to counsel

[34] The defendant’s Notice of Application was limited to his claims under s. 8 and 9, as well as for associated relief under s. 24(2). However, at the conclusion of Cst. Gill’s evidence in chief, Ms. Abbasi gave oral notice of her intention to argue that additional conduct by the arresting officer related to rights to counsel suggested an ongoing pattern of disregard for the defendant’s Charter rights.

[35] It was argued that by questioning Mr. Khare before having placed him under arrest, the officer breached the applicant’s rights under s. 10(a), and further, that the 40 minute delay between the applicant’s arrest and his being given an opportunity to speak to counsel amounted to a breach of the implementational component of his rights under s. 10(b).

[36] Cst. Gill had only a brief interaction with Mr. Khare, of between 1-2 minutes, before he observed the items which engaged his reasonable grounds and prompted his decision to arrest the defendant. The only question the officer asked the defendant is: “is this your car.” Mr. Khare responded that it was not, it was a friend’s. Mr. Khare was not detained during this brief interaction during which the single question put to him by the officer was aimed at gathering information to explain the overall situation, which the officer had only just discovered. The officer was not eliciting information of an incriminating nature from the defendant. There was no obligation on the officer to provide Mr. Khare with his rights to counsel until he was either under detention or arrest. This is precisely what occurred in the moments immediately following Cst. Gill’s observations, and arrest. There was no breach of the defendant’s rights under s. 10(a) of the Charter.

[37] After providing the applicant with his rights to counsel and caution, Mr. Khare was lodged in the rear of Cst. Gill’s cruiser. Mr. Khare had advised Cst. Gill that his friend was coming and he wanted his friend to get his car back. The officer remained on scene for an additional 20 minutes, making efforts to locate the registered owner of the vehicle, at the applicant’s request. He also completed his search of the vehicle. After conducting queries to confirm the information provided by Mr. Khare about the registered owner, Cst. Gill eventually succeeded in locating and speaking with him in person by knocking on his door, which was the property immediately adjacent to where the vehicle was parked.

[38] While the efforts undertaken by the officer to locate the registered owner resulted in a slight delay in the implementation of the applicant’s right to counsel, these efforts were undertaken at Mr. Khare’s request, and for his benefit. Far from exhibiting a pattern of systemic disrespect for the defendant or his Charter rights, the officer was acting in good faith in seeking to facilitate the return of the vehicle to its rightful owner prior to clearing the scene with the defendant, without needing to have the car seized and towed. The officer did not engage in any questioning of the defendant during this period of time. The applicant has failed to establish a breach under s. 10(b) of the Charter.

Issue 4: Knowledge and control of controlled substances

[39] The final issue to be determined is whether the evidence in its totality is sufficient to prove Mr. Khare’s guilt beyond a reasonable doubt.

[40] Ms. Abbasi argues that the Crown has failed to establish that Mr. Khare had the requisite knowledge and control of the two controlled substances which were located inside the small change purse within the vehicle. She submits that the circumstantial evidence of the defendant’s position within the driver’s seat of a vehicle which was not his own is insufficient to support an inference of his knowledge and control over the items which were located on the floor of the driver’s seat.

[41] The Crown argues that the evidence of Mr. Khare’s original position within the driver’s seat, when he was slouched or slumped over as if sleeping, support the inference of his knowledge and control over the items on the floor area. These items included the small change purse within which the two controlled substances were located.

[42] There is no direct evidence of Mr. Khare’s possession of either controlled substance in this case. Neither item was located on his person or within items of his personal property. Both substances were located in a small container (a red change purse) which was located on the floor of the driver’s seat of a vehicle in which he was found sitting. The Crown’s case against Mr. Khare is therefore an entirely circumstantial one.

[43] The Supreme Court of Canada’s decision in Villaroman (2016 SCC 33) directs the correct analytical approach for the assessment of a circumstantial case.

[44] As Villaroman explains, what makes circumstantial evidence unique, and uniquely challenging, is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences available on the evidence other than guilt, then the Crown's evidence will not meet the proof beyond the reasonable doubt standard.

[45] The circumstantial evidence relevant to the controlled substances alleged to have been possessed by the defendant is as follows:

(1) Mr. Khare was seated in a slouched position in the driver’s seat when first seen by Cst. Gill, and appeared to be sleeping;

(2) When Mr. Khare saw the officer he quickly exited the vehicle and appeared dazed, had slurred speech and red watery eyes;

(3) Almost immediately upon exiting the vehicle, Mr. Khare told Cst. Gill that the car was his friend’s and that his friend was nearby or coming to get it;

(4) The change purse was on the floor of the driver’s seat, in the same area as a number of empty pen casings and a lighter;

(5) Cst. Gill testified that the interior of the car was quite messy, and that there were other articles strewn within the vehicle besides the items which he seized from the driver’s area; and,

(6) Cst. Gill seized additional items from the vehicle, besides the items that he described initially seeing in the drivers’ area. Among these was a blue box, in which four pen casings which were seized as exhibits had been placed, and sealed collectively as an exhibit.

[46] Cst. Gill candidly acknowledged in his testimony that he could not recall seeing the blue box before it was presented to him in the exhibit bag in court for inspection. He admitted that this was an improper practice – to bundle up exhibits, particularly in the absence of any form of labelling to explain their association, if any. He disagreed with the suggestion that the pen cases had been inside the box in the vehicle, but admitted that he wasn’t aware of where the box had been located, or whether all four of the pen casings within it had been in the front driver’s seat.

[47] This portion of Cst. Gill’s evidence was significant. While he was confident that he had seen more than one pen casing in the front driver’s seat area, which he attributed to Mr. Khare in forming his grounds for belief in support of his arrest, the officer’s uncertainty with respect to the total number of pen casings seized from within the vehicle, and their location, allowed for the possibility that others had been located in the passenger or rear compartments. The strength of the inference of Mr. Khare’s knowledge and control over both the pen casings and the drugs located immediately next to them would be quite different if the only evidence of any drug paraphernalia had been seized from the area in which he sat. However such is not the evidence.

[48] The assessment of circumstantial evidence also requires consideration of the absence of evidence, in this case of knowledge and control. Here, there was no evidence capable of associating Mr. Khare in any way to the change purse – such as a piece of identification or some other item related to himself within it.

[49] Also there was no evidence that Mr. Khare had operated the vehicle, that it was ever running, or that Mr. Khare was in possession of its keys. There is no evidence about how long he had been in the car, or why.

[50] The undisputed evidence is that the vehicle belonged to someone else, the registered owner, whom Mr. Khare knew, and appeared to be waiting for. There were more items strewn within the vehicle, beyond the impugned items seen by Cst. Gill at the defendant’s feet. Among these items was a box and potentially other pen casings into which all of the casings had been placed.

[51] Other reasonable possibilities exist which could explain the existence of the impugned items, most obviously the possibility that the items were not Mr. Khare’s, since they were in another’s vehicle, and he was not aware of them.

[52] After considering all of the evidence, including the absence of evidence capable of strengthening the suggested inference of the defendant’s knowledge and control over the items contained in the change purse seized from the car following his arrest, I am not satisfied that the Crown has established these necessary elements of proof beyond a reasonable doubt.

[53] I therefore find the defendant, Mr. Khare, not guilty of both offences.

[54] The charges are dismissed.

Released: February 26, 2019

Justice A.D. Dellandrea

[^1]: R. v. MacKenzie, 2013 SCC 50, at para. 62; see also R. v. Bush, 2010 ONCA 554, at para. 61; R. v. Whyte, 2011 ONCA 24; R. v. Golub, 1997 6316 (ON CA), [1997] O.J. No. 3097 (C.A.). at para 18 [^2]: .MacKenzie, at para 64 – 65. [^3]: Brown, 2012 ONCA 225