ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13146/12

DATE: 2013-08-16

BETWEEN:

HER MAJESTY THE QUEEN

Crown / Respondent

– and –

AHMAR KIRMANI

Defendant / Applicant

N. Young, for the Crown / Respondent

K. Wells, for the Defendant / Applicant

HEARD: August 12, 13, 14, & 15/2013

Justice B. Glass

CHARTER APPLICATION BY AHMAR KIRMANI

Introduction

[1] The Defendant is the Applicant for Charter relief requesting that the Charter infringements are such that the evidence and statements be excluded from reception at the trial.

[2] On January 5, 2012, Constable Reeves of the Durham Regional Police was on patrol in an unmarked police van when he followed a vehicle driven by the Applicant on Thickson Road in Whitby, Ontario. The officer claimed to detect the strong odour of fresh marihuana. There was no other motor vehicle in the area; so, he concluded the odour came from the Mr. Kirmani’s vehicle.

[3] Mr. Kirmani was driving within the speed limit and not committing any driving offence.

[4] Constable Reeves called the communications centre for the Durham Regional Police to check on the licence plate of the Applicant’s vehicle for a drug investigation.

[5] Constable Reeves stopped the Applicant and requested his driver’s licence and ownership. While at the vehicle, Constable Reeves could not smell marihuana; however, he noted 3 air fresheners hanging from the driver’s seat into the rear of the vehicle. There was another air freshener hanging from the rear view mirror. There was no outstanding matter for Mr. Kirmani when the licence check was done through the communication centre. Constable Reeves had proceeded to ask questions of Mr. Kirmani. Did he have anything that he should not have in the vehicle? The Defendant said he did not.

[6] Constable Reeves described the air fresheners as masking agents used by drug dealers in his experience.

[7] The officer returned to his vehicle and called for Constables Smith and Corner to attend to assist.

[8] When the other officers attended, Constable Smith did not smell marihuana. Constable Corner when at the area of the trunk of Mr. Kirmani’s vehicle smelled marihuana. He told Constable Reeves that he had detected the smell of the substance. There had been up to a 10-minute wait for the other officers to arrive.

[9] Constable Reeves told Mr. Kirmani to get out of the vehicle. He asked whether there were drugs in the vehicle. Constable Reeves was intending to search the Defendant anyway. He was forming his grounds to arrest. The officer did not provide the Defendant with a police caution nor advise him of his right to retain and instruct counsel. He did not advise Mr. Kirmani what charge was being laid. Mr. Kirmani pulled a small bottle from his pocket with some marihuana in it and handed it to the officer. There were 2.5 grams of marihuana in the bottle. It was closed so that no smell emanated from it.

[10] Constable Reeves did not provide the police caution or advice about the right to retain and instruct counsel because he was more concerned for a large quantity of narcotics.

[11] The other two officers then searched the vehicle. Constable Corner found a loaded handgun in the console.

[12] Then, Constable Reeves provided the caution and advice about retaining counsel and arrest for the firearm. Mr. Kirmani wanted to speak to his lawyer. However, Constable Reeves continued to ask questions about the gun and elicited answers from the Defendant.

[13] Mr. Kirmani was transported to the police station by a uniformed officer. The vehicle was seized and transported to the police station. The police had the vehicle for 2 weeks. No drug was found in the vehicle.

[14] The Defence application focuses on infractions of sections 7, 8, 9, 10(a) and 10(b) of the Charter. Basically, there was no infraction of the Highway Traffic Act. The Defendant provided his driver’s licence and vehicle ownership upon request. There was no odour of drugs emanating from the vehicle when Constable Reeves attended at the driver’s window. There was no drug visible to the officer. There was no foundation to arrest. Constable Reeves had no ground to question Mr. Kirmani at the vehicle and no foundation to search the Defendant or his vehicle. The suggestion by Constable Reeves that he detected a strong odour of marihuana when driving in his police vehicle on Thickson Road with his windows up in January on a cold night is alleged by Ms. Wells to be a fabrication. The application alleges that the evidence and statements of the Defendant were obtained contrary to the provisions of these sections of the Charter. The infractions are significant and should be excluded from evidence at the trial pursuant to section 24(2) of the Charter.

[15] The Crown position is that the officer believed he smelled marihuana and had grounds to stop, arrest and search the Defendant. Further, the search of the vehicle was incident to arrest. Any Charter infraction is basically minor so that the evidence of the drugs and the handgun should be tendered in evidence. The Crown is content to exclude comments made by the Defendant because he had not been advised of his charges and he had not spoken to his lawyer. The statements included a video interview with the representative of the gun investigation unit. The marihuana would have been discovered in any event; so, it should be admitted.

[16] The Crown disputes excluding the gun from evidence on the basis that the search of the vehicle was valid.

[17] The Crown takes the position that the detention of the accused man was brief and could not bring the administration of justice into disrepute.

Issues

[18] Were sections 7, 8, 9, 10(a) and 10 (b) of the Charter breached?

[19] If any were, how serious were they?

[20] Should there be any sanction for any Charter breach found by the court?

[21] Has the administration of justice been brought into disrepute?

Analysis

[22] The core of this application is narrowed to one of a question of credibility of the officers regarding the detection of marihuana as stated by Constable Reeves and Constable Corner. The events occurred close to midnight in early January, 2012 with the windows of the police vehicle being closed. There was no likelihood of smelling marihuana as stated by Constable Reeves. No other vehicle was in the vicinity at the time of Constable Reeves’s passage on this road. No other person was observed.

[23] The officer at best assumed that an odour of fresh marihuana came from the vehicle he was following. No marihuana was found in the vehicle. The 2.5 grams of marihuana was in a closed glass bottle from which no odour came. If the officer did smell marihuana while driving on Thickson Road, the odour had to come from another source than the vehicle of the Defendant. There is no evidence that the odour of marihuana came from another source. The alternative is that the officer did not smell marihuana but rather just said he detected the odour. The situation is complicated with Constable Corner saying that he could smell marihuana when at the trunk of the Defendant’s vehicle where it was stopped on Chatsworth Drive in Whitby. This was at a time when Constable Reeves did not smell marihuana. Further, the third officer was Constable Smith, who was right there and did not smell marihuana. When the trunk was opened for the search, no marihuana was located. Nor was any found inside the vehicle.

[24] Much emphasis was placed on the air fresheners found inside the vehicle. These air fresheners were small Christmas tree shaped objects that were inside the vehicle of Mr. Kirmani. One was hanging from the rear view mirror. Three were hanging in the back seat area of the vehicle.

[25] The officers described the air fresheners as masking agents commonly used by drug dealers to hide the odour of the product.

[26] When the officer stopped and requested that Mr. Kirmani produce his driver’s licence and vehicle ownership, there was no odour of marihuana detected. There was no odour of marihuana when the officer approached the Defendant’s vehicle upon stopping him. At that point, the officer was detaining Mr. Kirmani. I am satisfied that Constable Reeves did not allow the Defendant to leave. He had to wait while the other two officers travelled to the site. There was no foundation to detain the accused man.

[27] Either Constable Reeves has a major problem with his olfactory senses so as to mistakenly think he smelled marihuana or he made up the explanation that he detected a strong odour of fresh marihuana. The same also applies to Constable Corner. Constable Reeves stated that he did not have any problem with his sense of smell.

[28] Constable Reeves continues at this application to say that he is convinced that there was marihuana in that vehicle even though none was found. The police had the vehicle for two weeks and found no drug. He could not have smelled marihuana. The same applies to Constable Smith.

[29] The bottom line is that there was no marihuana in Mr. Kirmani’s vehicle other than the small amount in the closed glass bottle. This is not a mistaken smell of this illicit drug.

[30] The only conclusion one can reach is that there was no odour of fresh marihuana coming from the vehicle. Therefore, there was no foundation for detaining Mr. Kirmani after he provided his driver’s licence and vehicle ownership documentation to Constable Reeves. To then question the driver and to justify an arrest followed by a search of the vehicle was an infringement of sections 7, 8, 9 of the Charter.

[31] Further, the police did not comply with sections 10(a) and 10(b) of the Charter in a proper manner. He was told eventually that he was under arrest for the gun possession. Although he was told eventually that he had the right to retain and instruct counsel before talking with a police officer, that was an empty compliance with this Charter right because Mr. Kirmani did want to talk to his lawyer first and was not able to do so.

[32] The investigation was taken over by the police unit in charge of illegal guns and gangs. An officer from that unit talked with Mr. Kirmani without properly cautioning the accused man and without waiting until he could speak to his lawyer. The name of the lawyer was known because Mr. Kirmani had provided it. There is no evidence that the gun unit officer thought the Defendant had spoken to his lawyer or that he was waiving his right. On the contrary, that interviewing officer appears to have proceeded with a disregard for the Charter rights of Mr. Kirmani.

[33] There can be only one conclusion. There was no foundation for this arrest even for the small amount of marihuana in the bottle. He should not have been questioned. This was not idle conversation between a police officer and the Defendant. This was a mission to find drugs, commonly called a fishing expedition. Constable Reeves was looking for drugs. He was determined to get a look inside the vehicle. If one creates a reason for searching a vehicle, he has no foundation. The fact that a loaded handgun was found might have been a surprise. Just because police find some major evidence when conducting an illegal search does not make all well.

[34] This is an example of a warrantless search and seizure without a reasonable explanation for doing so. R. v. Collins, (1987), 1987 84 (SCC), 33 C.C.C. (3d) 1 addressed this issue.

[35] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, and R. v. Harrison, [2009] S.C.C. 34, the Supreme Court of Canada focused extensively on Charter breaches. The seriousness of the Charter infringement, the impact upon the Defendant’s Charter-protected interests, and society’s interest in the processing of the case on its merits are to be considered by trial courts when reviewing alleged Charter infringements.

[36] With Mr. Kirmani’s case, I find that the answers to these considerations lead to a conclusion that this was a major infraction of a person’s position. Police services are not to have an unfettered hand at pulling people off the street without any foundation. In R. v. Sterling-Debney, [2013] O.J. No. 3170, Durno J. at paragraph 127 and following noted that the violations there were not blameless, inadvertent or negligent, but rather the breaches were blatant and displayed a wilful disregard for Charter right without extenuating circumstances. I find that to be so with Mr. Kirmani’s situation.

[37] In this case, the location of a loaded handgun in the vehicle driven by Mr. Kirmani could have a major impact upon him. Although one does not expect the same degree of privacy as in one’s residence, a person should be free to drive without being detained unlawfully and unreasonably. I conclude these breaches with Mr. Kirmani were not fleeting nor do I find that the evidence was discoverable by a legal means. This is not a minor type of case. The gun charge can result in a minimum prison sentence. The admission of the evidence conveys the wrong message to the public. I note that Durno J. had a similar conclusion in R. v. Sterling-Debney (supra) when considering the impact of the infringement on the Charter-protected interests of the person.

[38] There is no doubt that society might think at first that finding the gun is important and justifies improper police conduct so that the case should be tried on the merits of the Defendant illegally having a loaded handgun; however, society in Canada has endorsed this country having a Charter of Rights and Freedoms that carries meaning. If a police officer is allowed to ignore Charter protections and process criminal allegations on the basis that the end justifies the means of getting the evidence, there would be no need for a Charter of Rights and Freedoms because the document would not carry any meaning. To admit the evidence and compromise the integrity of the justice system in these circumstances would bring the administration of justice into disrepute. A similar assessment was made by Durno J. in R. v. Sterling-Debney (supra).

[39] The infractions here violate sections 7, 8, 9, 10(a) and 10(b) of the Charter.

[40] The breaches are serious to the point that the evidence gathered and statements made should be excluded from the trial.

Conclusion

[41] The evidence and statements are excluded from presentation at the trial of the Defendant pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms.

Justice B. Glass

Released: August 16, 2013