ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-20062
DATE: 2014/12/18
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MOHAMMAD HASIB NEYAZI
Accused
Véronique Rousseau, for the Crown
Neil Weinstein, for the Accused
HEARD: May 14, 2014
RULING on motion TO EXCLUDE
Justice Patrick Smith
Table of Contents
OVERVIEW
THE FACTUAL BACKGROUND
Karen Jones
Diane Gagnon
Constable Bennett
Constable Jones
CATSA agent
The “search order”
Opening the blue bag
Mr. Neyazi’s ethnicity
ISSUES
ANALYSIS
Was the search of the accused’s bag unreasonable within the meaning of s. 8?
Stage one: is there a reasonable expectation of privacy to checked luggage?
Stage two: “lawfulness” under s. 8
Upon detention, were the accused’s s. 10(b) rights violated?
Defence position
Crown position
Governing legal principles
Were CATSA or the police’s actions motivated by racial profiling in violation of the accused’s s. 7 and s. 15 rights?
Defence position
Crown position
Governing legal principles
If the answer to any of the above questions is yes, should the evidence be excluded pursuant to s. 24(2) of the Charter?
Step one: seriousness of Charter infringing conduct
Step two: actual impact of breach on the protected interests of the accused
Step three: society’s interest in an adjudication of the case on its merits
DISPOSITION
OVERVIEW
[1] The accused, Mohammad Hasib Neyazi, pleaded not guilty to: (i) possession for the purpose of trafficking contrary to s 5(2) of the Controlled Drug and Substances Act, S.C. 1996, c. 19; and (ii) being at large on a recognizance and breaching a term to keep the peace and be of good behaviour contrary to s. 145(3) of the Criminal Code, R.S.C., 1985, c. C‑46.
[2] On September 20, 2012, the accused attempted to board a domestic flight from Ottawa to Thunder Bay. Despite having cleared four separate security screens, the accused’s checked luggage was opened and physically searched—revealing 4,504 oxycodone tablets.
[3] The accused brought a motion to challenge the admissibility of the evidence seized by the police, alleging violations of ss. 7, 8, 10(b) and 15 of the Canadian Charter of Rights and Freedoms. A voir dire was conducted to address the allegations.
[4] For the reasons to follow, the motion to exclude the evidence is granted. The Charter rights of the accused were violated and the admission of the evidence would bring the administration of justice into disrepute.
THE FACTUAL BACKGROUND
Karen Jones
[5] On September 20, 2012 at approximately 10:30 a.m. Mr. Neyazi entered the Ottawa International Airport with a single blue suitcase. He proceeded to the Porter Airlines check-in counter and purchased a one-way ticket for the 11:00 a.m. flight to Thunder Bay.
[6] Karen Jones, a Porter ticket agent, described Mr. Neyazi as being nervous and looking around as if he were being watched. She characterized her brief interaction with Mr. Neyazi as “unusual,” stating that he seemed “different,” and that it left her with a feeling that “something wasn’t quite right.”
[7] Mr. Neyazi paid cash for the ticket and checked a locked blue suitcase weighing eight kilograms. Ms. Jones noticed that the bag was relatively light for its large size.
[8] After Mr. Neyazi left the check-in counter, Ms. Jones contacted Diane Gagnon of the Canadian Air Transport Security Authority (“CATSA”), believing Mr. Neyazi posed a security threat. She asked CATSA personnel to give the blue suitcase a “good going over.”
[9] When questioned about why she notified CATSA, Ms. Jones replied, “Something didn’t feel right.” She indicated the following factors as the basis for her concern:
▪ Mr. Neyazi’s nervous behaviour, including looking behind himself and over his shoulder;
▪ cash purchase of a one-way ticket only one hour before flight departure; and,
▪ he was young male.
[10] When asked whether Mr. Neyazi’s Middle Eastern heritage was a factor in arousing her suspicion, Ms. Jones testified that Mr. Neyazi’s ethnicity was not a factor.
[11] Ms. Jones testified that she regularly interacts with members of the public from different racial and cultural backgrounds, and after eight years as an airline agent, this was the first time she had ever felt suspicious about a passenger.
[12] When questioned about the information she gave to Ms. Gagnon about the accused, Ms. Jones stated that she did not mention Mr. Neyazi’s ethnic or racial background. Ms. Jones testified that she informed Ms. Gagnon that a nervous young male had purchased a one-way ticket with cash at the last minute and checked a single piece blue of luggage.
Diane Gagnon
[13] Diane Gagnon is a manager at CATSA. Ms. Gagnon explained that the sole role of CATSA is airline security, to screen for explosives, and stated that their role is not to detect drugs or other contraband.
[14] On September 20, 2012 Ms. Gagnon received a call from Ms. Jones, the Porter Airlines agent.
[15] When asked about her conversation with Ms. Jones, Ms. Gagnon stated that Ms. Jones informed her that a nervous young male, appearing suspicious and sweaty, had checked a large locked bag weighing only eight kilos.
[16] Upon receiving this information Ms. Gagnon believed that Mr. Neyazi’s behaviour was suspicious and concluded that there might be a threat to airline security. She immediately called the Ottawa Police Service (“OPS”) stationed at the airport. Ms. Gagnon testified that she provided the OPS with Mr. Neyazi’s name but did not advise them that Mr. Neyazi was of Middle Eastern descent.
[17] Ms. Gagnon then proceeded to call CATSA screening officers and asked them to check the accused’s luggage for bombs or explosive material.
[18] Ms. Gagnon testified that a passenger’s ethnicity is not a ground for security concerns.
Constable Bennett
[19] Officers Lance Bennett and Lee Jones are members of the OPS stationed at the Ottawa Airport. On September 20, 2012 at 10:56 a.m. Constable Bennett received a call from the Security Operations Centre (“SOC”) to go to the third floor of the airport to meet Ms. Gagnon regarding “a person of interest.”
[20] Constable Bennett stated that Ms. Gagnon expressed concern over a passenger who appeared very nervous, was sweating, and was acting in an unusual manner. He was also told that the passenger had paid for a one-way ticket with cash and checked a large bag that weighed very little.
[21] Constable Bennett stated that he was given no information about Mr. Neyazi’s ethnic heritage.
[22] After being advised that CATSA could find neither Mr. Neyazi nor his luggage, Constable Bennett went to locate Mr. Neyazi and Constable Jones went to locate the suitcase.
[23] Upon receiving confirmation that Constable Jones had located the suitcase, Constable Bennett decided to page Mr. Neyazi over the airport intercom.
[24] Responding to the page, Mr. Neyazi reported to Constable Bennett. Constable Bennett was advised Mr. Neyazi that there were concerns about his luggage and asked him to accompany him to the reconciliation room for questioning.
[25] The reconciliation room is a room connected to the Hold Bag Screening (“HBS”) room by a video link. The video link allows passengers to observe the search of their luggage. The room is also equipped with an intercom.
[26] At no time prior to the opening of Mr. Neyazi’s bag was Mr. Neyazi informed that he was under arrest, had the right to call a lawyer for legal advice, could refuse to have his bag searched, and was free to leave the reconciliation room and the airport.
[27] Constable Bennett testified that he did not consider Mr. Neyazi legally detained at the time Mr. Neyazi entered the reconciliation room. In Constable Bennett’s opinion, Mr. Neyazi was only detained after Mr. Neyazi’s bag was physically searched and the pills were discovered. However, on cross-examination Constable Bennett agreed that upon entering the reconciliation room Mr. Neyazi likely felt detained and unable to leave voluntarily.
(continues exactly as in the source text)
Justice Patrick Smith
Released: December 18, 2014
COURT FILE NO.: CR-12-20062
DATE: 2014/12/18
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MOHAMMAD HASIB NEYAZI
Accused
RULING ON MOTION TO EXCLUDE
P. Smith J.
Released: December 18, 2014