ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 14-90000060-0000
DATE: 20140530
BETWEEN:
HER MAJESTY THE QUEEN
Crown/Respondent
– and –
FARZAD HENAREH
Defendant/Applicant
Counsel:
K. Yeh, A. Francis, for the Crown/Respondent
J. Struthers, for the Defendant/Applicant
HEARD: March 17,18,19, 2014
J. Wilson J.
REASONS FOR JUDGMENT
Overview
[1] Mr. Farzad Henareh is charged with conspiracy to traffic in cocaine and in marijuana with Bayan Mirian and Asid Khan from November 15, 2011, to November 21, 2011, and trafficking in cocaine and marijuana on November 16, 2011.
[2] Mr. Henareh was one of 37 individuals arrested following a ten month drug investigation called Project Gladiator. As part of this broad based drug investigation conducted in the Durham region, Project Gladiator obtained surveillance authorization which included wiretaps, as well as three general warrants permitting the installation of probes in select premises, tracking devise on select vehicles, and camera surveillance.
[3] It is alleged that on November 16, 2011, Mr. Henareh was the driver in a drug transaction for Bayan Mirian, one of the prime targeted suspects in Project Gladiator. The Crown also alleges that Mr. Henareh sold cocaine and marijuana to Asid Khan, a resident of Kingston, Ontario, on behalf of Mr. Mirian and collected $7000.00 in payment.
[4] Counsel have agreed the evidence heard will apply to both the Charter application brought by Mr. Henareh and the trial proper.
[5] The Crown called the supervising officer of the Project Gladiator as their only witness, Detective Gillis. Det. Gillis explained the overall operation of the investigation. The surveillance documents relevant to this case were entered into evidence with the consent of the defence. These included the relevant wiretap documents, the intercepted text messages and phone calls exchanged between Mr. Mirian and Mr. Khan, and between Mr. Mirian and Mr. Henareh on November 16, 2011, as well as video surveillance of Mr. Henareh entering and exiting Mr. Mirian’s apartment on November 13, 2011.
[6] On consent, the notes of the officers involved in the surveillance operation on November 16, 2011, were entered as exhibits without calling the officers as witnesses. Similarly, the notes from the OPP officer that stopped a white Mazda vehicle belonging to Mr. Mirian, license number BMNF357, on November 16, 2011, to obtain the driver’s license of Mr. Henareh to identify him were entered as an exhibit on consent. The defence did not call any evidence.
[7] I commend both counsel for this practical approach and commend the case management judge for streamlining this matter so effectively.
The Global Garafoli Application
[8] Justice Fuerst granted the wiretap authorizations, and three general warrants allowing broad investigative powers. A global application was launched challenging the three general warrants. The application was ultimately unsuccessful. Defence counsel agreed to be bound by the global challenge to the general warrants which was unsuccessful.
The Charter Application
The defence position
[9] The defence challenges the Highway Traffic Act stop used to identify Mr. Henareh as the driver of Mr. Mirian’s vehicle by requesting his driver’s license. The defence argues that the stop was a ruse orchestrated with the OPP by Det. Gilles on November 16, 2011. There was no valid Highway Traffic Act purpose to the stop. The sole purpose of the stop on November 16, 2011, was to ascertain the identity of the driver who the police believed had just completed a drug transaction with Mr. Khan. The defence seeks to exclude the identity of Mr. Henareh from evidence, as the stop was in breach of his Charter rights of self-incrimination.
[10] As a result of a conversation that was intercepted on November 15, 2011, from Mr. Mirian’s telephone, the police were aware that there was a planned transaction between Mr. Mirian and an unknown drug purchaser from Kingston. Based upon the interceptions and surveillance, the police were aware that there had been two previous drug transactions involving a driver going to Kingston to conduct a transaction on behalf of Mr. Mirian.
[11] On November 16, 2011, Det. Gilles was advised by the officer monitoring the surveillance that Mr. Mirian was again sending a runner/driver to Kingston to conduct the drug transaction. Det. Gilles wanted to identify both the driver sent by Mr. Mirian, as well as the Kingston drug purchaser. He arranged for surveillance of Mr. Mirian’s vehicle which had a tracking device installed pursuant to the General Warrant. Mr. Mirian’s vehicle was driven by an unknown person who was communicating with Mr. Mirian during the interaction with Mr. Khan with text messages until the conclusion of the alleged drug transaction.
[12] Det. Gilles contacted the OPP on November 16, 2011, briefly explained the broad based nature of the criminal investigation, and asked the OPP to conduct a stop of Mr. Mirian’s vehicle pursuant to the Highway Traffic Act, to establish the identity of the driver. The stop was to take place after the alleged drug transaction. The officers were advised that although the driver was a suspect in a recent drug transaction, the stop was to be brief, and the driver was not to be arrested and there was to be no search conducted. Det. Gilles merely wanted to identify the runner/driver.
[13] Shortly after 23:00 on November 16, 2011, the OPP officer stopped the vehicle driven by Mr. Henareh and requested his driver’s license to establish his identity. The defence seeks to have this evidence of identity contained in the driver’s license excluded as a breach of the accused’s rights pursuant to sections 7, 8, 9, and 10(a) and (b) of the Charter. The defence argues that on a section 24(2) Charter analysis, the evidence of identity obtained by the driver’s license should be excluded as the stop was clearly a ruse that violated Mr. Henareh’s Charter rights.
The Crown position
[14] The Crown argues first, that there was a dual purpose to the stop of the vehicle driven by Mr. Henareh, which included a valid Highway Traffic Act purpose to check Mr. Henareh’s driver’s license, coupled with a stop for the purposes of a criminal investigation.
[15] Alternatively, even if there was no dual purpose and there was no genuine Highway Traffic Act aspect to the stop, the stop was permitted in the circumstances to obtain the identity of Mr. Henareh. The Crown argues that it had reasonable and probable grounds to arrest Mr. Henareh, but that they chose to simply identify the driver to avoid compromising the entire Gladiator Project investigation. A brief detention to obtain the identity of a suspect by requesting proof of identity such as a driver’s license is permitted and does not engage Charter rights including the right to counsel, and the right to be informed of the reason for the detention.
[16] In the final alternative, the Crown argues that if there was a Charter breach, it was a minimal infringement of rights and the evidence of the information contained on the driver’s license of Mr. Henareh should be admitted into evidence applying the test in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, and section 24(2) of the Charter.
The Facts
[17] Det. Gilles testified that the investigation in Project Gladiator was an offshoot of another investigation called Project Shrik. The police received information that Sung Chang, known on the street as “King Kong” was taking over the territory of another high level drug trafficker who was arrested and incarcerated in Project Shrik. The permitted surveillance and wiretaps mushroomed into Project Gladiator as other drug suppliers and purchasers were identified as a result of this surveillance.
[18] Bayan Mirian is an alleged supplier of cocaine and became a “Principal Known Person” and suspect in Project Gladiator in the General Warrant granted by Justice M. Fuerst on September 23, 2011, as amended on September 29, 2011.
[19] The Project Gladiator warrants allowed wiretap interceptions of ten principal known persons including Bayan Mirian, living at 550 Queens Quay West, unit 927, Toronto, Ontario. There was a further list of another eighteen known persons. Mr. Henareh was not on that list. Interceptions were permitted at the residence of Mr. Mirian and for Mr. Mirian’s rented Mazda vehicle, including the installation of a tracking device and authorization to search the vehicle.
[20] As well, interceptions were permitted for two of Bayan Mirian’s contact numbers, including his mobile phone numbers for 647-680-1785 and, as well as any other phone used by the named group. Mr. Mirian’s other telephone line was 416-400-9189 was also the subject of the permitted wiretap.
[21] The intercepted incoming phone calls from the unknown drug purchaser from Kingston to Mr. Mirian came from a telephone number 613-929-4854.
[22] In one of the two earlier alleged drug transactions that occurred on November 13, 2012, conducted by an unknown driver on behalf of Mr. Mirian with the unknown purchaser in Kingston, the driver was using a cell phone registered in the name of Ben Bergy. This same phone was used to communicate with Mr. Mirian on November 13, 2011, and was used by Mr. Henareh on November 16, 2011.
[23] This cell phone registered to “Ben Bergy” is a prepaid phone, and the subscriber information contains an address of 2980 Don Mills Rd., Toronto ON, postal code L4G 3B9. The postal code is for Aurora, not for the Don Mills address. Mr. Henareh’s driver’s license confirms an Aurora address. It is not clear from the evidence whether this cell phone is owned by Mr. Henareh, or owned by Mr. Mirian and used by Mr. Mirian for his drivers.
[24] These various telephone numbers feature extensively in the text and phone communications between Mr. Mirian and Mr. Khan setting up the drug sale by Mr. Mirian to Mr. Khan, as well as the communications between Mr. Mirian and Mr. Henareh on November 16, 2011, surrounding the drug transaction that is alleged to have taken place on that day in Kingston, Ontario.
[25] A surveillance camera installed in the hallway outside the apartment of Mr. Mirian on November 11, 2011, captured Mr. Henareh coming and going from Mr. Mirian’s apartment on three occasions on November 13, 2011. A conversation that involved Mr. Henareh took place in Mr. Mirian’s apartment on November 13, 2011, made reference to Mr. Mirian’s car. As well, Mr. Henareh was asked “whether he was ready,” and whether he needed a bag. The Crown did not establish that any of the conversations involving Mr. Henareh specifically referred to drugs.
[26] In one of the later videos on November 13, 2011, Mr. Henareh left carrying a bag at 18:48. It is suggest by the Crown that Mr. Henareh was the driver that conducted the drug transaction on behalf of Mr. Mirian later that evening on November 13, 2011, returning to Mr. Mirian’s apartment after allegedly returning from Kingston at 1:10 on November 14, 2011.
[27] I note however, that the alleged drug transaction that occurred on November 13, 2011, is not within the time frame of the alleged conspiracy, and there is no charge that Mr. Henareh trafficked in drugs on November 13, 2011.
[28] The allegations of the conspiracy specified in the indictment took place between November 15, to November 21, 2011, and the allegation of trafficking took place on November 16, 2011.
(Complete decision continues exactly as in the source, including all paragraphs through [233], concluding with the acquittals and the formal release text.)
J. Wilson J.
Released: May 30, 2014
COURT FILE NO.: 14-90000060-0000
DATE: 20140515
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Crown/Respondent
– and –
FARZAD HENAREH
Defendant/Applicant
REASONS FOR JUDGMENT
J. Wilson J.
Released: May 30, 2014