ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13-90000386-0000

DATE: 20130621

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

SHENIF BHANJI

Applicant

Ian Bell, for the Crown

Anthony De Marco, for the Shenif Bhanji

HEARD: June 4 to 7, and 10 to 14, 2013

Thorburn J.

Application to Exclude Evidence

I. Relief Sought

I. Relief Sought

1Shenif Bhanji and his co accused Gifton Nicely are charged with possession of cocaine for the purpose of trafficking.

2On December 29, 2010, Shenif Bhanji was the driver of his sister’s black Volkswagen Jetta license plate BHMF630. Nicely was in the passenger seat. When the vehicle stopped at a red light, police detained Bhanji and Nicely. Moments after they were removed from the vehicle, police found cocaine on the front passenger seat and a cocaine ball between the front driver’s seat and the front console area of the vehicle.

3Bhanji seeks to exclude evidence of the drugs seized from the vehicle on the grounds that police had no reasonable and probable grounds to arrest him or to search the vehicle.

2. The Issues

2. The Issues

4The issues to be decided are:

(i) Did the police have reasonable and probable grounds to arrest Bhanji and search the vehicle he was driving?

(ii) Was the warrantless search of the vehicle reasonable?

(iii) If the answer to either (a) or (b) is yes, should the evidence be excluded on the basis that it would bring the administration of justice into disrepute pursuant to section 24(2) of the Charter of Rights and Freedoms?

3. The Evidence

3. The Evidence

5Nicely was the main target of a police investigation conducted from December 14 to 29, 2010.

6A search warrant was issued to search two addresses frequented by Nicely on December 29, 2010. Bhanji did not challenge the sufficiency of the search warrant and, therefore, no cross-examination was conducted on the affidavit filed in support of the warrants. The Information filed in support of the warrants asserted that police believed Nicely was involved in drug trafficking and that he might be in possession of a firearm.

7On December 29, Officer Reid ordered a takedown of the vehicle and arrest of the two occupants of the vehicle.

8Officer Reid testified that his decision was based on the following:

(a) Police received information from two confidential sources that Nicely was believed to be in possession of a firearm and dealing cocaine. In his affidavit in support of the warrants, Officer Chant stated that the confidential sources had provided information to police on numerous prior occasions wherein arrests and convictions had resulted;

(b) On December 15, a surveillance team of police officers followed Nicely. Officers Reid and Tsianos believed Nicely conducted a number of hand to hand drug transactions that evening. This conclusion was based on their experience as police officers during which they witnessed over 100 hand to hand drug transactions;

(c) The officers noted that some of those drug transactions were conducted in or near a Volkswagen Jetta license plate BHMF630;

(d) Officer Reid testified that, “On the 15th….at 22:52 observed POI Number One [believed to be Nicely] looking into his lap, unzipping his jacket, reaching inside for something. 22:53, interior light comes on in the vehicle and at that point the vehicle moves and makes a U-turn and drives away quickly.” Officer Reid testified that he has an independent recollection (though no police note) that the driver was a light-skinned male. At that stage he estimated that he was between 50 and 80 feet away. He said he was close enough to see Bhanji’s face;

(e) Officer Tsianos testified that he also observed the driver of the Volkswagen Jetta on December 15. He said the driver of the Volkswagen Jetta was lighter skinned than Nicely, and heavier set. He testified that he was approximately one half car length away when he made that observation;

(f) Officer Tucker described the driver of the Volkswagen Jetta on December 15 as a white male who appeared to be of Middle Eastern descent in his early thirties. He shared this description with the surveillance team (including Officer Reid) by calling out the description over the police radio[1] and participating in a debriefing;

(g) Four search warrants were issued on December 28, to search two residences frequented by Nicely for drugs and a possible firearm. The warrants were issued based on the information from the confidential sources and the surveillance;

(h) On the evening of December 29, Bhanji was driving the Volkswagen Jetta owned by his sister with license plate BHMF630. Gifton Nicely was in the front passenger seat;

(i) At approximately 22:43 on December 29, Officer Reid saw an unknown male approach the passenger side of the Volkswagen Jetta vehicle and put his hands in the window. After a few seconds, the male pulled his hands out of the vehicle, and was fixated on what was in his hand. He then put what he had in his right hand into his right pocket. Officer Reid believed this to be a drug transaction. Thereafter the Volkswagen Jetta driven by Bhanji drove away;[2]

(j) Officer Reid testified that “when the arrest was ordered, Mr. Bhanji as it turned out, was sitting in a vehicle, driving a vehicle where a hand-to-hand drug transaction took place within probably two feet of him…in the vehicle that he had care and control of”; and

(k) Officer Reid said he believed the driver of the Volkswagen Jetta at the time of the arrest was the same person who drove that vehicle on December 15 during which one transaction was done from the front passenger window.

9In cross examination, Officer Reid initially said that on December 29 he did not know Bhanji’s identity and the name was not known to him. Later in the cross-examination he said his decision to order a takedown was based on the fact that,

a) Bhanji was the driver of the vehicle on December 29,

b) search warrants were issued to search premises frequented by Nicely,

c) a black male had in his view, engaged in a drug transaction putting his hands in the vehicle Bhanji was driving on December 29, and

d) he had seen Bhanji in the Volkswagen Jetta on December 15.

10This was the first time he said he had seen Bhanji in the Volkswagen Jetta on December 15. Officer Reid said that he had never been asked this question before. Bhanji had waived his right to a Preliminary Inquiry and although Nicely did have a Preliminary Inquiry, this was not the focus of questioning at that Preliminary Inquiry.

11A police report dated December 27 identified Bhanji as a person who resided at the address of the registered owner of the vehicle and identified him as the possible driver of the vehicle. A picture of Bhanji was attached to the report.

12At approximately 23 hours on December 29, 2010, the Volkswagen Jetta was stopped at a red light. Officer Tsianos testified that he approached the vehicle with his gun drawn, opened the door of the car and saw Bhanji fiddling with the arm rest area as he opened the door. Officer Tsianos testified that he ordered Bhanji to show his hands and because Bhanji failed to comply with the command, he holstered his gun and pulled Bhanji out of the car with both hands. Bhanji sustained a small cut to the left side of his head.

13Bhanji and Nicely were taken from the vehicle and arrested for possession of cocaine.

14After Nicely was removed from the vehicle, 15.19 grams of cocaine was visible on the front passenger seat where Nicely had been sitting. Officer Tsianos testified that he found a cocaine ball weighing 9.12 grams in the small space between the front driver’s seat where Bhanji had been sitting and the front console.

15Officer Morgan claims that when he searched the vehicle he was concerned about officer safety because he knew there was a possibility Nicely was carrying a firearm and noted that firearms are transferable.

4. Positions of the Parties

4. Positions of the Parties

The Applicant’s Position

The Applicant’s Position

16Bhanji concedes that police had reasonable grounds to detain the vehicle and two occupants and ask each of the occupants “a few questions” for the purposes of investigation. However, he takes the position that police lacked reasonable and probable grounds to arrest Bhanji for the following reasons:

(i) Officer Reid’s testimony that Bhanji was the same person who drove the Volkswagen Jetta on December 15 is not credible as:

a) He first testified that the name Bhanji was not known to him before the night of the arrest;[3]

b) He then said he had not seen Bhanji before December 29 but “other officers, I believe, had identified him….I believe there’s a notation here [officer looks at his notes] identifying him as POI Number Two… on the 15th at 22:56;”[4]

c) Officer Reid then said that on December 15 “I see the driver in the car” when “he turns the interior light on [in the vehicle] at 22:53.”[5] Officer Reid was between 50 and 80 feet away and his attention was primarily focused on Nicely. He believed the male was a light skinned male the same skin colour as Bhanji and the male was heavier than Bhanji appears today. (Bhanji’s sister testified that he is about 25 pounds lighter today than he was in December 2010 although she left for Dubai in November 2010); and

d) Officer Reid had no notation that he observed the male driver of the Volkswagen Jetta on December 15. Officer Reid was unable to describe any distinctive features of the driver he says he observed on December 15.

(ii) Officer Tsianos’ testimony is not credible for the following reasons:

a) It is implausible that, fearing Nicely might be carrying a loaded firearm, he would have left his own firearm in its holster and taken Bhanji out of the vehicle with both hands;

b) Bhanji’s sister testified that once the vehicle was in motion for a given distance, the car doors automatically locked. Bhanji’s counsel therefore submits Officer Tsianos would not have been able to open the car door from the outside; and

c) Bhanji’s sister testified that there is rubber around the doorwell on the driver’s side of the vehicle and neither she nor her husband has ever hit their head. Thus, Bhanji argues, it is unlikely Bhanji would have hit the left side of his head as he was pulled from the car. Bhanji’s counsel says it is more likely that he was hit on the side of his head with the butt of Officer Tsianos’ gun.[6]

(iii) Police did not have reasonable and probable grounds to believe Bhanji was party to the offence of drug trafficking as:

a) they could not establish that Bhanji was the person who was with Nicely on December 15 and if he was, that he knew drug transactions were taking place; and

b) even if police observed a hand to hand transaction as an unknown black male put his hands into the Jetta Volkswagen vehicle and put something into his pocket minutes before the arrest on December 29, there is no evidence Bhanji was part of that transaction.

17Moreover, the search of the vehicle was unlawful for the following reasons:

a) It was conducted without consent, without a search warrant and as an incident to Bhanji’s unlawful arrest;

b) There were no exigent circumstances or police safety issues that would justify a warrantless search of the vehicle as both occupants had been removed from the vehicle before the search of the vehicle began and there was no firearm in plain view; and

c) Any exigent circumstances created by Bhanji putting something down in his seat were created after he was unlawfully detained.

18Bhanji asserts that but for the arbitrary arrest and unlawful search, police would never have discovered the drugs found in the vehicle.

19Bhanji’s counsel claims that this case involves one of the systemic concerns that section 24(2) of the Charter is aimed at alleviating, namely that the officers knowingly breached the accused’ Charter rights and there were no exigent circumstances. For these reasons, Bhanji suggests the drugs seized during the search of the vehicle should be excluded from evidence at his trial.

The Crown Position

The Crown Position

20The Crown’s position is that police had reasonable and probable grounds to arrest Bhanji on December 29 as, earlier that evening, Nicely conducted a drug transaction from the front passenger window of the vehicle he was driving.

21Moreover, on December 15 police had observed Nicely conduct other hand to hand drug transactions. At times on December 15, he was driven in the same Volkswagen Jetta and one of the transactions was done through the front passenger window of the vehicle. The driver on both occasions was a light skinned male who appeared to be Middle Eastern, in his early thirties.

22On the basis of the above information, the search of the vehicle was a valid search incident to arrest.

23Even if the search was not incident to arrest, the decision on the part of police to search the vehicle was reasonable as, instead of showing his hands to police when asked, Bhanji put his hands down where police could not see them, drugs were visible on his seat as soon as Nicely left the vehicle, and police had obtained a warrant to search for a firearm and drugs in two locations frequented by Nicely and guns are easily transportable.

24Finally, there is a societal interest in having this matter heard on the merits as without this evidence, the trial could not proceed.

5. Analysis of the Law

25Section 9 of the Charter provides that, “Everyone has the right not to be arbitrarily detained or imprisoned.” Detention within the meaning of section 9 refers to a “significant physical or psychological restraint.”[7] Psychological detention is established where the individual has a legal obligation to comply with the demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.

26An arrest is lawful when a police officer subjectively believes there are reasonable grounds to arrest and those grounds are objectively reasonable.[8] The objective person is a person with the knowledge that the police had.[9]

27Section 8 of the Charter 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.[10]

28The 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.[11] 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.[12]

29Automobiles 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.[13]

30A warrantless search may also be valid where there are exigent circumstances necessitating immediate police action such as an imminent danger of the loss, removal, destruction or disappearance of evidence.[14] Where exigent circumstances are cited, it must be impracticable to obtain a warrant.[15]

31Section 24(2) of the Charter provides that where evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, its admission would bring the administration of justice into disrepute.

32The purpose of s. 24(2) of the Charter is to maintain confidence in the administration of justice. The court must determine whether, on a balance of probabilities, the admission of the evidence obtained by the Charter breach would bring the administration of justice into disrepute.[16]

33The first factor involves a determination as to whether the admission of evidence would send a message to the public that courts condone serious state misconduct. “The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct” by the exclusion of evidence linked to the conduct.[17]

34Extenuating circumstances, such as the need to prevent the disappearance of evidence or concerns regarding imminent harm, and good faith on the part of police, may serve to diminish the concern that the police conduct would bring the administration of justice into disrepute. On the other hand, evidence that the conduct was part of a pattern of abuse tends to support exclusion.[18]

35The second factor is the impact of the breach on the Charter-protected interests of the accused. This factor requires an evaluation of the extent to which the breach undermined the protected rights of the accused.[19] If the search or seizure takes place in an area where the individual enjoys a high expectation of privacy, or in a manner that demeans his dignity, the breach is more serious.[20]

36The third factor is society’s interest in the adjudication of the case on its merits. The judge must determine whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion.[21]

37The reliability of the evidence and its importance to the prosecution’s case are relevant factors to consider. So too is the public interest in discovering the truth.[22]

6. Analysis and Conclusion

6. Analysis and Conclusion

38It is agreed that police had the right to detain the occupants of the Volkswagen Jetta to ask them questions.

39I find that on a balance of probabilities, there were reasonable and probable grounds for the police to believe Bhanji was party to the offence of drug trafficking and therefore to arrest him based only on the following evidence:

(i) At the time of the arrest and search of the vehicle, police were aware of the affidavit of Officer Chant in support of the Information to Obtain a search warrant granted on December 28. The affiant states that he had information from two reliable confidential sources that Nicely was a drug dealer and he knew that at times Nicely was driven in a Volkswagen Jetta license plate BHMF630;

(ii) Bhanji was the driver of the Volkswagen Jetta license plate BHMF630 on December 29.

(iii) Police observed a male approach the front passenger window of the Volkswagen Jetta on December 29.

(iv) The officers who conducted surveillance that evening testified that they had seen over 100 hand to hand drug transactions before and, based on this experience, they believed Nicely and the male who approached his window were conducting a hand to hand drug transaction.

(v) There was no evidence to contradict this as Bhanji called no evidence to address the testimony given by the officers as to the circumstances of his detention and arrest.

(vi) Bhanji must have known about the drug transaction as it was conducted from the seat next to his in the very same vehicle. Bhanji was party to the transaction by providing Nicely with transportation.

40The evidence obtained as a result of surveillance conducted on December 15th is not necessary for me to conclude that police had reasonable and probable grounds to arrest Bhanji and search the vehicle. However, it strengthens the Crown’s position that police had reasonable and probable grounds to arrest Bhanji. That additional evidence is as follows:

(i) Officers Tsianos, Reid and Tucker saw the same Volkswagen Jetta picking up or dropping off Nicely on December 15.

(ii) Officer Reid testified that he believed Nicely conducted approximately six hand to hand drug transactions on December 15. One of those transactions was conducted from the front passenger window while the driver of the Volkswagen Jetta was in the vehicle.

(iii) Officer Tucker told members of the surveillance team on December 15 that the driver of the Volkswagen Jetta he saw that night, was a light skinned Middle Eastern male in his early thirties. This description is consistent with Bhanji’s physical characteristics.

(iv) Officer Reid said he also saw the driver of the Volkswagen Jetta on December 15.

(v) Bhanji’s sister testified that when she was in Canada she resided with her parents and brother and her father and brother were permitted to use her vehicle when she was away.

41Officer Reid’s evidence as to whether he had identified Bhanji prior to the time of his arrest evolved during his cross examination as noted in the outline of evidence above. However, the initial question was whether he knew Bhanji’s identify not whether he saw a person who matched Bhanji’s description. Moreover, Officer Reid had no occasion to review this evidence earlier as Bhanji waived his right to a Preliminary Inquiry and Nicely’s Preliminary Inquiry did not focus on this line of questioning.

42More importantly, I find that even if Officer Reid did not reasonably believe Bhanji was the person who drove the Volkswagen Jetta on December 15, nothing turns on this as the evidence of what the officers saw on December 29 along with the information contained in the Information to Obtain a Search and information from other officers set out above, is sufficient to have given police reasonable and probable grounds to effect the arrest. They had some reasonable grounds to believe Bhanji was driving Nicely and watched a drug transaction take place in the vehicle he was driving while he was in it. Police therefore had some reasonable grounds to believe he was party to the offence of trafficking drugs.

43Given my finding that Bhanji was lawfully arrested, the search of the vehicle was a valid search incident to that arrest as the search was conducted for the purpose of seizing the cocaine in plain view on Nicely’s seat and searching for other drugs that were found in the crevice between the driver’s seat and the front console. There is therefore no need to consider whether the evidence should be excluded pursuant to section 24(2) of the Charter.[23]

44However, I find that even if there were an unlawful detention and search of the vehicle, the evidence should not be excluded as I do not believe its admission would bring the administration of justice into disrepute.

45The decision on the part of police to arrest Bhanji and search the vehicle was not serious Charter infringing state conduct and was done in good faith:

a) There were reasonable and probable grounds to arrest Nicely for drug trafficking and to search the vehicle incident to that arrest.

b) Seconds after Nicely was taken from the vehicle, the drugs on the seat he had been sitting in, were clearly visible. At that point, Bhanji and Nicely were both arrestable for possession of illegal drugs.

c) Based on the Information to Obtain a Search Warrant, police reasonably believed Nicely could be carrying a firearm and therefore had grounds to search the vehicle. (The Information to Obtain a search warrant contains information from two confidential sources that Nicely could be in possession of a firearm.)

d) The uncontradicted evidence of Officer Tsianos, is that, as he approached the vehicle and shouted “Show me your hands”, Bhanji put his hands down where Officer Tsianos could not see them.

e) Bhanji was not subject to discriminatory police practices nor did he suffer any serious physical injury.

46Thus, even if Bhanji were arrested prematurely, this does not bring the administration into disrepute such that the evidence ought to be excluded.

47Finally, the drugs found are highly reliable evidence, essential to a determination on the merits. I say this mindful that society also requires a legal system that is beyond reproach. The police conduct pertaining to Bhanji’s detention and search and seizure of the drugs was not part of an institutional pattern of abuse of Charter rights. I find that a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would not bring the administration of justice into disrepute.

48For the above reasons, I find there was no Charter violation, and even if there were a Charter violation, the evidence should not be excluded. The Application to exclude the cocaine found in the Volkswagon Jetta is therefore denied.

Thorburn J.

Released: June 21, 2013

COURT FILE NO.: 13-90000386-0000

DATE: 20130621

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Respondent

– and –

SHENIF BHANJI

Applicant

Ruling

Thorburn J.

Released: June 21, 2013

Footnotes

1. 1Officer Reid was part of the debriefing session at the end of the shift on December 15, 2010.
2. 2Officer Reid had a note in his police book that on December 29 “Driver, POI number 2 stays in car waiting out front” while POI number 1 engaged in what he believed to be a street drug transaction.
3. 3Page 3 of the Transcript of the Cross Examination of Officer Reid on this Application
4. 4Page 6 of the Transcript of the Cross Examination of Officer Reid on this Application
5. 5Page 21 of the Transcript of the Cross Examination of Officer Reid on this Application
6. 6Neither Bhanji nor Nicely testified on this Application and there is therefore no evidence to contradict the officer’s testimony.
7. 7R. v. Grant, 2009 SCC 32, 245 C.C.C. (3d) 1, at para. 44.
8. 8R. v. Lawes, 2007 ONCA 10, 2007 OONCA 10, [2007] O.J. No. 50, at para 4.
9. 9R. v. Johnson 2006 18353 (ON CA), [2006] 213 O.A.C. 395 (C.A.), at paras. 5 to 7.
10. 10Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145 at pages 159-168.
11. 11Cloutier v. Langlois, 1990 122 (SCC), [1990] 1 S.C.R. 158, at para 59.
12. 12Ibid, at para. 61.
13. 13R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51, at para. 15
14. 14Grant, [1993] 3 S.C.R. 233, at para. 30
15. 15R. v. Silveira, 1995 89 (SCC), [1995] 2 S.C.R. 297, at paras. 51 and 113.
16. 16Grant, supra note 7 at para. 68.
17. 17Ibid. at para 72.
18. 18Ibid. at para. 75.
19. 19Ibid. at para. 76.
20. 20Ibid. at para. 78.
21. 21Ibid. at para. 82, citing R. v. Kitaitchik, (2002), 2002 45000 (ON CA), 166 C.C.C. (3d) 14 (Ont. C.A.), at para. 47.
22. 22Ibid. at para. 81.
23. 23I distinguish the case of R. v. Raphael, 2010 ONSC 5709, [2010] O.J. No. 5916, referred to me by counsel for Bhanji to assert his contention that the arrest was unlawful. The facts in that case were notably different. Unlike the case before me, the court in Raphael found that “The officers who testified all conceded that Mr. Raphael’s arrest was based solely on the information provided by the informant as communicated to D.C.Chant and ultimately to them by other officers.” Moreover, unlike the case before me, in Raphael, D.C. Chant did not know if the informant had been used by the police before and whether he was reliable. Finally, unlike the case before me, no search warrants had been issued.