Ontario Court of Justice

Court File No.: Central East - Newmarket 1211-998-18-3511

Date: 2020-01-16

Between:

Her Majesty the Queen

— AND —

Mustafa Nahid

Before: Justice P.N. Bourque

Counsel:

• Mark R. Miller, for the Federal Crown
• Aswani Datt, for the Defendant

Heard: In Writing

Reasons for Judgment

Released on January 16, 2020

Overview

[1] In the late afternoon of September 26, 2018, the defendant was stopped for suspicion of being a suspended driver and being the subject of a warrant for his arrest. As a result of the interaction at the roadside and a subsequent search of his motor vehicle, the defendant is facing a charge of possession of cocaine for the purpose of trafficking.

[2] The defendant has brought Charter challenges alleging an unlawful search. The defendant is also asserting that I should have a reasonable doubt as to whether he was in any type of "possession" of the drugs found in his car.

[3] The defendant admits that the amount of cocaine seized in this investigation (40 grams) would lead to the irresistible conclusion that whomever was in possession of this cocaine would be doing so for the purpose of trafficking.

Crown Evidence

Gillian Clarke

[4] …is a Halton Regional Police officer who joined the force in 2016.

[5] She was driving in the curb lane and saw a vehicle behind her which had some small damage to the front. She noted the plate and after checking CPIC and the MTO databases, discovered that the owner of the vehicle was a suspended driver (3 times over) and there was an outstanding warrant for his arrest for several fraud and forgery charges.

[6] At 15:12 hours, she stopped the vehicle and approached. There was a male driver and a male passenger in the front seat. She spoke to the driver and he acknowledged he was the registered owner of the vehicle, but he said he left his driver's licence at home. He handed over the ownership which was in his name. The defendant identified himself verbally.

[7] At 15:15, she arrested the defendant for the outstanding warrant and the drive under suspension. The defendant was given rights to counsel and cautioned. Officer Reynolds had attended and had questioned the passenger who subsequently left the scene. This officer did not have any dealings with the passenger.

[8] At 15:25, the defendant was searched by Officer Norton (a male officer), and he found several U.S. dollar bills which the officer believed was counterfeit.

[9] The officer then decided to search the vehicle. The officer stated in-chief that it was for any evidence in relation to the fraud charge as she had arrested him on the warrant and she believed he had counterfeit currency on his person. She also said that it was an "inventory" search as the car was being seized as the defendant was being taken into custody and the passenger had left the scene. In her notes, she only made reference to the search being based upon the arrest and the counterfeit notes and made no reference to the inventory search.

[10] The officer looked briefly and found a health card in the name of the defendant and a health card of another unidentified person. Officers Norton and Reynolds then took over the search and he reported to her that he found a large 8 inch by 11 inch Ziploc bag with a substance that was eventually tested as cocaine. The officer re-arrested the defendant for possession of cocaine for the purpose of trafficking and was re-read rights to counsel and cautioned. The defendant was taken to the station.

[11] The officer indicated that she did not question the defendant further. She stated however, that at the station, the defendant, unprompted, stated: "That white powder I think I understand where it came from, I had a guy in my car last week and he is from Hamilton and name is Alladin and I know he is a dealer".

[12] The officer, under cross-examination was asked whether she made any efforts to seek out either the passenger in the vehicle, or the person whose name was on the health card or the person referred to by the defendant as "Alladin". The officer believed that Officer Reynolds "ran" the passenger when she was at the roadside and this officer simply searched to see if the other health card was reported as "stolen", which it was not.

[13] The officer was extensively cross-examined about her grounds for searching the motor vehicle. The officer as pointed out above did not put in her notes that she was doing an "inventory" search, although she believed it was a justification for the search. She also resisted the notion that she could have ascertained at the roadside that the bills, while not real, were obviously not designed to be misleading and there was print on them that they were not real. She testified that the statement about them not being real were in "fine print" and not obvious until she took a better look at them at the station. She acknowledged that if she knew the true status of the bills at the roadside, she would not have searched the vehicle.

[14] She ultimately stated that she formed her reasonable grounds to arrest the defendant for the drug charge because this was his personal vehicle and there was a large quantity of drugs in his vehicle and they were within reach of him while in the driver's seat.

Kevin Norton

[15] …is a Halton Regional Police Officer and has been since 2012.

[16] He was on uniform patrol in a marked cruiser when he had a dispatch to attend and assist Officer Clarke. He attended and was told by Clarke that she had the defendant under arrest for warrants on fraud and forgery and fails to appear. He was tasked to search the defendant and he did so. He discovered a number of $100 denomination U.S. bills that he believed to be counterfeit. The officer could not say why they were counterfeit but he said that "they did not look right". He was extensively cross-examined about this and he stated that he only found out back at the station that the bills were obviously fake, and the expert at the station did not feel that without some evidence that someone was actually trying to pass them off as real, that they would be classed as counterfeit. The officer believed that the reference in his notes to "fake" bills was the same to him as saying that they were counterfeit. He did resist very strongly the assertion by defence counsel that the bills were so obviously bogus that they could be classified as "Monopoly money".

[17] He believed that gave him grounds to search the defendant's vehicle and he did.

[18] He located several documents under the front passenger seat. He was informed by P.C. Reynolds that she found a bag with white powder which was located in the pocket pouch on the back of the passenger seat. He ended up taking possession of it and he weighed it. He stated it was 1.4 ounces although in his notes he made the notation that it was 1.4 grams. He stated this was an error.

[19] Ultimately he was of the opinion that he believed he had the grounds to search the vehicle because they were entitled to investigate further the allegations of fraud and the existence (in his mind at the time) of the "counterfeit" bills. He did not state that he was searching the vehicle for the purpose of an inventory search.

Jillian Reynolds

[20] …is a Halton Region Police officer with 3 years of experience. She responded to a request at 15:11 to attend the scene and she arrived at 15:13. At that time she saw the defendant being arrested by P.C. Clarke. She stood nearby for officer safety but she agreed with the other officers that the defendant was cooperative at all times with the police. She spoke to the passenger of the vehicle who was identified by an Ontario Photo ID card as Adis Balagic. He queried the officer about getting a ride to the home address of the defendant. The officer responded that he would have to wait until an officer came free. He eventually just walked away from the scene.

[21] The officer checked CPIC and determined that the passenger had no criminal record and there were no warrants out for his arrest. She did not question him further about any issues at the scene and did not seek him out after the cocaine was found in the back of his seat in the car.

[22] At 15:25, she went to her cruiser to make notes and to call for a tow for the vehicle. She is unsure as to who told her to do it and why, but she did not say that she did it under her own volition. I can only assume, with some confidence, that either Officer Clarke or Officer Norton tasked her to do so.

[23] She remembers being asked to relieve P.C. Clarke with the search of the motor vehicle, and she did so, searching the trunk and the back seat area. She did not say that she made any observations about anything in the car, when she was outside. She stated that when she was searching the back seat area, she located a large plastic bag which had white powder in it. She left it for P.C. Norton to take care of.

[24] She had no dealings with the defendant and agreed that the location of the bag of cocaine was within reach of anyone sitting in the front passenger seat (as Adis Balagic was located when she came up to the car).

Joshua Pateman

[25] …is Halton Regional Police Detective Constable and is on the drug squad. He took possession of the drugs after the arrest, weighed them and sent them for analysis. They analyzed as cocaine.

[26] The Defence called no evidence.

Charter Application: Has the Crown Proven on a Balance of Probabilities that This Was a Lawful Warrantless Search?

[27] The defence admits that the officer had reasonable and probable grounds to arrest the defendant for the Highway Traffic Act offences and for the outstanding warrant. He admits that the search of his person was incident to his arrest. He asserts however that the search of his automobile was unlawful and cannot be justified either as a search incident to arrest or as an inventory search under the Highway Traffic Act.

The Law

[28] The case of R. v. Bhanji, 2013 ONSC 4286, has been cited to me by both counsel as an accurate statement of the law of warrantless search and seizure incident to an arrest:

[27] Section 8 of the Canadian Charter of Rights and Freedoms provides that, "Everyone has the right to be secure against unreasonable search or seizure." An assessment must be made as to whether in a particular situation the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement.

[28] The common law power of search incident to arrest requires neither a warrant nor independent reasonable and probable grounds because the arrest itself requires reasonable and probable grounds. The three main purposes of search incident to arrest are ensuring the safety of the police and public, protection of evidence from destruction, and discovery of evidence to be used at trial. There must be some reasonable prospect of securing evidence of the offence for which the accused is being arrested.

[29] Automobiles are legitimate objects of search incident to arrest. They attract no heightened expectation of privacy that would justify an exemption from the usual common law principles referred to above.

[29] The Court of appeal decision in R. v. Ellis, 2016 ONCA 598, is instructive on the issue of the search under the Highway Traffic Act. In that case, while the court found that the search of the motor vehicle incident to arrest was not lawful (there being no nexus between the search for evidence and the charge for which he was arrested), the court did find that the impounding of the vehicle under s.221(1) was valid (as the car had been "abandoned") and thus once in police custody, the police could conduct an inventory search, even if the police were also looking for other things.

Findings of Fact

[30] I find that Officer Clarke had reasonable and probable grounds to arrest the defendant for the outstanding warrants, and for the Highway Traffic Act offences of driving under suspension.

[31] The officer clearly had made no decision to search anything other than the defendant, as a search incident to arrest. It was clear that she changed her mind and ultimately decided (along with the other officers) to search the vehicle as well, after the search of the defendant.

[32] The question is whether the finding of the bogus bills on the person of the defendant then gave the officers a right to expand the search incident to arrest to include the motor vehicle. In coming to a decision on this issue, I must determine if the officer's immediate concern about the bogus bills was a legitimate one. Unfortunately, none of the so-called bogus bills were kept by the police. In addition, they did not take a picture of them. I therefore am deprived of the opportunity to make observations of the status of the bogus bills. Both officers testified that the bills did not "look right", but none of them can say why. There was evidence that a more thorough search at the station led them to find words printed on the bills which clearly convey the meaning that the money is not real. One officer referred to it as "fine print".

[33] What does assist me in the assessing the officer's understanding in this matter is that no officer had any belief (or expressed any belief) that the defendant was connected to drug trafficking or drug possession. In other words, it cannot be said that the officers were using the finding of the bogus money as some sort of "cover story" so they could actively search for drugs or evidence of drugs in the car.

[34] Ultimately, am I satisfied as to the bone fides of the officers' collective subjective belief that the money could be legally counterfeit and based on the fact that the officer's knew of his outstanding charges of fraud and forgery, then they had the right to search the car on arrest for any evidence which could relate to those charges or any possible charges arising from the finding of the bogus money?

[35] The fact that the defendant was ultimately not charged with any offences related to the finding of the bogus money, while impacting my factual finding, is explained by the subsequent review of the money at the station and the consultation with an officer more experienced in these issues.

[36] I find that the officers wish to search the vehicle for some prospect of finding some evidence which may relate to the arrest for the charges which were the subject of the outstanding warrants was based on bona fide concerns and was not done for any other purpose other than perhaps an inventory search, which I will deal with below. I also find that that there was some prospect (especially taking into account the fact they believed the defendant had bogus (counterfeit) money in his possession, of finding some evidence in relation thereto.

[37] The second factual finding is the issue of the inventory search under the powers in s.221 of the Highway Traffic Act. The officer was arresting the defendant for the offence of drive under suspension and on the outstanding warrants. The only other person available to take control of the vehicle had left the scene.

[38] The officer did not put the inventory search in her notes as one of the reasons for the search yet she gave it as a reason in her evidence. Do I come to the finding that this was some sort of after the fact justification, and therefore not a valid reason, or it impacts negatively on the credibility of the officer? There is the evidence of Officer Reynolds to consider when she stated that she was tasked to call for a tow, (at 15:25) it was about the same time that P.C. Norton was searching the defendant. In other words, it was before Norton and Clarke were considering the bogus money. That is some evidence that tow could certainly have been for the Highway Traffic Act purpose.

[39] As a final matter, it was suggested that the inclusion of Reynolds in the search without a full briefing as the grounds as developed by Clarke and Norton was improper. I take the view that Reynolds was being tasked to do this by Clarke and thus would be invested with the same authority.

Conclusion on Charter Application

[40] I find that the police had a legitimate interest in searching the vehicle incident to arrest in that with all the information before them there was some reasonableness of their belief that some information concerning the offences arrested for may be in the vehicle.

[41] I also find that the seizure and search under the highway traffic act were also proper and appropriate and thus any items discovered as a result would be lawfully admitted into evidence.

[42] I therefore find that the Crown has discharged its burden on a balance of probabilities, that the search was valid and therefore the Charter rights of the defendant were not infringed.

Decision on the Merits

[43] The evidence of the cocaine, being admitted into evidence and the issue of its possession (by whomever) was for the purpose of trafficking, I must decide whether the Crown has proven all of the essential elements of the offence beyond a reasonable doubt.

Reasonable Doubt

• The burden of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence;

• The burden of proof rests on the prosecution throughout the trial and never shifts to the accused;

• Reasonable doubt is not a doubt based upon sympathy or prejudice;

• Rather, it is based upon reason and common sense;

• It is logically connected to the evidence or absence of evidence;

• It does not involve proof to an absolute certainty, it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and

• More is required than proof that the accused is probably guilty – a (Judge) jury which concludes only that the accused is probably guilty must acquit.

[44] The crucial element still to be decided is whether the drugs were in the "possession" of the defendant. Possession can take many forms and can be sole possession, joint possession or constructive possession.

[45] The evidence tending to show that the drugs were in his possession are as follows:

• (i) the drugs were found in an automobile owned by him;

• (ii) the drugs were found in an automobile that he was operating;

• (iii) the drugs were found in a place that he was in close proximity to

[46] The evidence which may cast doubt on the whether he was in possession of the drugs are as follows:

• (i) the drugs were found in a location of the car which was open to access of anyone inside the car. That is they were not in any locked compartments (glove box, trunk or other location);

• (ii) there was another person in the vehicle when it was stopped and that person was closer in proximity to the drugs that the defendant;

• (iii) the passenger did not remain at the scene, although there is no evidence that his leaving was for any improper purpose;

• (iv) there was no other drug paraphernalia located on the defendant or in the car;

• (v) the charges outstanding against the defendant do not involve the use or sale of drugs;

• (vi) there were no other indices of drug trafficking such as lists, or large amounts of cash. (I specifically find that the bogus money found on the defendant does not constitute cash or any other proceeds from the sale of drugs); and,

• (vii) the defendant was cooperative with the police throughout.

[47] With regard to the statement by the defendant to the police, it is an exculpatory statement which was not made under oath. I was frankly surprised that it was led by the Crown without any qualification, as the defendant could not have tendered that statement without giving testimony.

[48] While it gives a possible explanation for why the drugs were found in his car, it still does not address the issue of them being in his possession notwithstanding how they got there. In that sense I don't accept it as a statement that R. v. W.(D.) would apply. Even if it did apply, the defendant did not subject himself to cross-examination. Therefore, for the purpose of my assessment of whether the Crown has proven its case beyond a reasonable doubt, I give it little, if any, weight.

[49] Both counsel have cited cases to me where a motor vehicle is found to have drugs in it, and there is a passenger as well as the defendant driver in the motor vehicle. It is hard to discern any overriding principals to them other than it is important to look at all of the circumstances surrounding the case including whether there are any other indicia of drug dealing either in the vehicle or in the history of any of the participants.

[50] What is lacking in this case, is that there is little evidence of knowledge and control. Even accepting all of the Crown's arguments, there is no other evidence that he knew it was there. It was in a pocket out of his line of sight. It was not in an area exclusively under his control (trunk or other locked compartment). While there is an inference because of his ownership and control of the vehicle that it was in his possession, such an inference does not in my opinion lead to the inexorable conclusion that he had real, joint or constructive possession of the drugs.

Conclusion

[51] Being left with a doubt which is not without reason, with regard to the possession of the drugs found in his car, I must therefore find the defendant not guilty of the offence as charged.

Released: January 16, 2020

Signed: "Justice P.N. Bourque"