SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-13-90000513-0000
DATE: 2014/09/25

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

MAJESTY THE QUEEN

– and –

PANKAJ BEDI

Accused

Kandra Aird, for the Crown

James Miglin, for the Accused

HEARD: June 30, July 2-4, July 7-11, 2014

REASONS FOR DECISION

(Ruling on a Voir Dire, s. 8 of the Charter)

B.A. ALLEN J.:

THE CHARGES AND DEFENCE APPLICATION

[1] The defendant, Pankaj Bedi, faces charges under the Controlled Drugs and Substances Act for possession of heroin, Oxycodone and cocaine for the purpose of trafficking. He was also charged under the Criminal Code with possession of proceeds obtained from crime, and unlawful possession of ammunition and a weapon, a taser. There is no dispute about the nature of the drugs seized or that the drugs would be possessed for the purpose of trafficking.

[2] There were three search warrants executed in this case – one on a place of business/workplace, and the others on the accused’s vehicle and his home. There was also a warrantless body search of Mr. Bedi in the workplace. Mr. Bedi asserts that on October 1, 2012 the police violated his rights under s. 8 of the Charter of Rights to be secure from unreasonable search and seizure when they entered his workplace and searched the store and his person and vehicle and his home.

[3] A search subject to a warrant is presumptively reasonable and a warrantless search is presumptively unreasonable. The burden to prove reasonableness is on the defence on an application under s. 8 involving a search warrant and the Crown has the burden to prove reasonableness with a warrantless search.

[4] Mr. Bedi asks the court under s. 24(2) of the Charter to exclude the drugs and money found on his person and in his car and the ammunition and taser found in his home on the basis of the Charter violations.

FACTUAL BACKGROUND

[5] On October 1, 2012 members of the Toronto Police drug squad received information from a confidential informant that Mr. Bedi was dealing drugs from his workplace at a Daisy Mart. Officer Spencer was the “road boss” and Officer Warrener was assigned to close surveillance.

[6] Officer Edgar, the affiant on the warrant application, passed on information to the surveillance team from Officer Van Hoogenhvize who acted as handler for a confidential informant (“the CI”). The information contained a description of Mr. Bedi and an allegation he was trafficking heroin. Three target locations connected to drug trafficking were provided: a Daisy Mart located in a plaza on the southwest corner of 14th Avenue and Box Grove Bypass in Markham, Ontario where Mr. Bedi was employed; a grey Toyota parked in front of the store entrance and Mr. Bedi’s residence at 14 Toscana Drive in Whitby, Ontario.

[7] Officer Edgar was tasked to prepare three warrants. The plan was to first conduct surveillance and then with the investigative findings, to search the three target locations. Several officers were assigned to execute the searches, among them Officer McLane, Officer Spencer, Officer Warrener and Officer Gajaraj.

The Hand-to-Hand Transaction

[8] Officer Warrener arrived at the parking lot for the Daisy Mart on October 1 at 8:20 a.m. Officer Warrener testified he parked and saw Mr. Bedi in front of the Daisy Mart unloading goods from his vehicle. The vehicle was parked with its rear end facing the store entrance which faces south. He relayed a description of Mr. Bedi and his observations to Officer Edgar. Officer Warrener testified he set up observation south of the Daisy Mart near the southeast intersection of 14th Avenue and Box Grove Bypass about 100 ꞌ to 120 ꞌ from where Mr. Bedi’s car was parked. He testified he had an unobstructed view of the front of the store and Mr. Bedi’s car.

[9] Officer Warrener gave the following evidence:

[10] At about 8:50 a.m. he saw Mr. Bedi exit the store and walk to the rear passenger side of his vehicle on the west side of the car. He then saw a black male wearing a black leather jacket come from the east and walk westward across the lot towards the Daisy Mart. Mr. Bedi then left the store and met the black male near the passenger side on the west side of the vehicle to the west of the entrance. Officer Warrener radioed the description of the unknown male as a male black, 6′, wearing a black leather jacket. He then saw an exchange of something occur between Mr. Bedi and the black male.

[11] Officer Warrener concluded what he observed was a hand-to-hand drug deal. He gave the following details in testimony:

[12] Mr. Bedi and the black male were face-to-face with the black male standing immediately southwest of Mr. Bedi. He could see Mr. Bedi’s right shoulder and the black male’s left shoulder. He testified each of them reached out with their right hands. The black male’s hand was closer to Officer Warrener and he could see the back of the black man’s hand during the transaction. He saw the inner side of Mr. Bedi’s right hand which was in a cupped formation. Officer Warrener saw their hands come together on one occasion for a second and it appeared to him that something passed between them although he could not see what had been exchanged. The black male walked away immediately after the transaction and Mr. Bedi re-entered the store immediately thereafter.

[13] Officer Warrener concluded what he saw was a drug deal from his 5-years’ experience on the drug squad where he had previously observed at least 15 hand-to-hand transactions. He said in his experience people do not normally meet, do quick transaction-like-hand gestures and part company swiftly unless the interaction involves an unlawful exchange of something.

[14] At about 8:57 a.m. Officer Spencer radioed to Officer Edgar Officer Warrener’s observation of the hand-to-hand transaction to be included in the warrant application.

[15] Officer Warrener indicated he saw Mr. Bedi leave the store at 9:06 a.m. and resume unloading his car. He stated that Mr. Bedi went in and out of the store on several more occasions from about 10 a.m. until just after 12 p.m. to smoke cigarettes.

[16] That is the evidence Officer Warrener gave in chief about the hand-to-hand transaction. The defence challenged Officer Warrener’s evidence which raised questions in my mind about the credibility of his observation of the drug deal. I will address my concerns and the implications of my findings later when I deal with the grounds for the searches.

(The judgment continues with the same paragraphs and wording as in the source decision, including all legal analysis, application of the Debot criteria, findings regarding Officer Warrener’s credibility, the Garofoli review of the Information to Obtain, and the s. 24(2) Charter analysis.)

DISPOSITION

[158] The 3.86 grams of heroin, 2.84 grams of powder cocaine and 3.30 grams of oxycodone, and the $5,060 and $900 amounts shall be excluded. The taser and 251 rounds of ammunition shall also be excluded.

B.A. Allen J.

Released: September 25, 2014