Court File and Parties

CITATION: R. v. Fahad, 2016 ONSC 4247 COURT FILE NO.: 13-5395 DATE: 2016/06/29

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Respondent

– and –

FAHAD MISAYER FAHAD Applicant

Counsel: Timothy Radcliffe, for the Crown/Respondent Ewan Lyttle, for the Accused/Applicant

HEARD: September 14, 16-18, 21-24 and March 2-3, 2016

REASONS FOR DECISION

PATRICK Smith J.

Overview

[1] The accused, Fahad Misayer Fahad was arrested in the early evening hours on April 2, 2013 in the parking lot of the Alexander Community Centre. An afterschool program had just finished and a dance class for teenagers was about to begin.

[2] A search executed incident to arrest revealed Mr. Fahad to be in possession of 23.2 grams (232 hits) of crack cocaine, $770.00 in cash, and two cellphones.

[3] As a result of this arrest and subsequent events, Mr. Fahad is facing the following six counts:

(1) Possession of a Schedule I substance, crack cocaine, for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (CDSA);

(2) Possession of proceeds of crime, $770.00 in cash, contrary to s. 354(1) of the Criminal Code, R.S.C. 1985, c. C-46;

(3) Breach of the conditions of a recognizance contrary to s. 145(3) of the Criminal Code, namely possession of a cellular telephone on June 27, 2013;

(4) Breach of the conditions of a recognizance contrary to s. 145(3) of the Criminal Code, namely association or communication on August 21, 2013 with an individual he knew to have one or more criminal convictions or outstanding criminal charges;

(5) Breach of the conditions of a recognizance contrary to s. 145(3) of the Criminal Code, namely association or communication on September 4, 2013 with an individual he knew to have one or more criminal convictions or outstanding criminal charges; and

(6) Breach of the conditions of a recognizance contrary to s. 145(3) of the Criminal Code, namely to keep the peace and be of good behaviour.

[4] At the commencement of the trial, Mr. Fahad brought an application alleging several breaches of the Canadian Charter of Rights and Freedoms, seeking remedies under ss. 24(1) and 24(2).

[5] In relation to the four days identified in the charges before the Court, Mr. Fahad alleges that the police breached his Charter rights and asks the Court to exclude the evidence seized by the police as a remedy under s. 24(2) of the Charter.

[6] Further, Mr. Fahad alleges 25 Charter violations from eleven incidents dating back to 2010 and asks the court to view these abuses cumulatively and to order a stay of proceedings under s. 24(1) of the Charter and to award monetary damages for the damage to his vehicle that occurred during a search by the police.

[7] This matter proceeded as a blended voir dire.

Summary of the Issues

[8] On the blended voir dire, the Court was asked to answer the following issues:

• Were there any breaches of Mr. Fahad’s Charter rights?

• If so, is Mr. Fahad entitled to a remedy under either s. 24(1) or s. 24(2) of the Charter, including, but not limited to, a stay of proceedings or exclusion of the drug evidence?

• If a stay is not granted, is Mr. Fahad guilty of possession of a Schedule I substance for the purpose of trafficking, as alleged in Count 1?

• If a stay is not granted, is Mr. Fahad guilty of possession of proceeds of crime, as alleged in Count 2?

• If a stay is not granted, is Mr. Fahad guilty of breaching the conditions of his recognizance, as alleged in Count 3?

• If a stay is not granted, is Mr. Fahad guilty of breaching the conditions of his recognizance, as alleged in Count 4?

• If a stay is not granted, is Mr. Fahad guilty of breaching the conditions of his recognizance, as alleged in Count 5?

• If a stay is not granted, is Mr. Fahad guilty of breaching the conditions of his recognizance, as alleged in Count 6?

Bundling Charter Breaches and Interactions with the Police not Related to the Charges

[9] I will begin with the incidents that do not relate to the charges contained in the indictment, specifically whether any or all of them indicate a violation of Mr. Fahad’s Charter rights.

[10] In addition to the four dates referred to in the indictment, the Applicant asks this court to address and ‘bundle’ 25 instances of contact with the police, arising from 11 separate incidents claiming that police conduct in these interactions were Charter breaches and that the Court should grant a stay of proceedings under s. 24(1) as a remedy.

[11] I will not describe in detail all 25 of the alleged police contacts with the accused. Rather, the following charts summarize these incidents and provide the positions of the Crown and Defence with respect to each event.

Events occurring before the April 2, 2013 arrest

Date	Alleged Breaches	Applicant’s Position	Crown’s Position
May 2, 2010	s. 8 s. 9	Mr. Fahad was with friends. Police approached, smelling marijuana. Mr. Fahad was detained and searched.	Police were dispatched to stop a group of loitering males from harassing passersby. Mr. Fahad was questioned and consented to a search. Nothing illegal was found.
August 20, 2010	s. 8 s. 9 s. 10(a) s. 10(b)	Cst. Forgie saw young men run away leaving bicycles behind. He waited by the bikes. Mr. Fahad returned and Cst. Forgie detained, questioned and searched him. Mr. Fahad was charged with possession of marijuana.	Cst. Forgie approached a location where drug-traffickers were known to frequent and saw two young males run off. When Mr. Fahad returned, Cst. Forgie questioned him. Mr. Fahad admitted to having marijuana and was immediately arrested.
September 29, 2010	s. 8 s. 9	Mr. Fahad was arrested under the Trespass to Property Act. Cst. Bernard searched Mr. Fahad and found crack cocaine. Mr. Fahad was taken into custody for one day then released on recognizance.	Police had “agent status” for the location of the incident. They arrested Mr. Fahad under the authority of the Trespass to Property Act and conducted a search incident to arrest. Police found two cell phones and 52 hits of crack cocaine.
October 10, 2010	s. 8 s. 9	Police approached Mr. Fahad and others near his house. They questioned him and ran his name on CPIC. Mr. Fahad was charged with breach of recognizance.	Cst. Bernard approached a group of young men drinking beer. He recognized two of them as having criminal records. He arrested Mr. Fahad for breach of his non-association condition.
November 3 or 4, 2010	s. 8 s. 9	Mr. Fahad was with a group at St. Anne School. Police approached, smelling marijuana. They arrested and searched Mr. Fahad, charging him with possession of marijuana. Mr. Fahad spent one day in jail and was released on recognizance.	Police observed Mr. Fahad and others trespassing at an elementary school. He was arrested and searched. Police found marijuana.
November 7, 2010	s. 8 s. 9	Mr. Fahad was hanging out with a group of people in his neighbourhood. Police received a complaint. They confronted Mr. Fahad, ran his name of CPIC, and charged him for breach of recognizance. Mr. Fahad spent one day in jail and was released on recognizance.	A police officer approached a group of loitering young men and asked one to remove his scarf. Mr. Fahad was questioned and, after he provided his name, he was charged with violating non-association conditions.
March 3 or 30, 2011	s. 8	Mr. Fahad was a passenger in a car pulled over by members of the Ottawa Police DART squad. During the stop, Mr. Fahad’s name was run on CPIC. He was charged with breach of recognizance and spent four days in jail. He pleaded guilty to this charge.	Police pulled over a vehicle and note that Mr. Fahad smelled of marijuana. He was questioned by police and gave suspicious answers. He was arrested for breach of various release conditions.
May 19, 2011	s. 8 s. 9 s. 10	Cst. Brownrigg and Cst. Matyas observed a suspicious hand-to-hand transaction involving Mr. Fahad in Alexander Park. They searched Mr. Fahad and found marijuana. Mr. Fahad was not charged.	Cst. Matyas and Cst. Brownrigg observed Mr. Fahad conduct a suspected hand-to-hand drug transaction in the parking lot at the Alexander Community Centre. They questioned him and he volunteered a bag of marijuana. He was released with a warning.
Late May, 2011		Cst. Matyas phoned Mr. Fahad seeking information about other criminal cases. Cst. Matyas and Cst. Brownrigg attended Mr. Fahad’s home and threatened to arrest him for breaches of recognizance.	Cst. Matyas learned that Mr. Fahad was in breach of court-imposed conditions and attended his home to arrest him on May 23. He was unsuccessful, but no threats were made.
Summer 2011	s. 7 s. 9	Cst. Bernard attended Mr. Fahad’s house and demanded to see Mr. Fahad’s ID. He slammed Mr. Fahad into the ground, handcuffed him, and placed him in the cruiser. Mr. Fahad was released with no charges.	The Crown has no knowledge of this incident.
Several occasions in 2012		Police attended Mr. Fahad’s home where he lives with his parents and siblings. They were aggressive and scared the young children.	The Crown has no knowledge of this incident.

Events occurring after the April 2, 2013 arrest

Date	Alleged Breaches	Applicant’s Position	Crown’s Position
August 3, 2013	s. 8	Cst. Forgie and Cst. Herriot attended at Mr. Fahad’s apartment and illegally entered in an attempt to intimidate Mr. Fahad.	Cst. Forgie and Cst. Herriot attended at Mr. Fahad’s apartment in relation to a drug investigation. They were invited in.
Summer or Fall 2013	s. 7	Cst. Forgie attended at Mr. Fahad’s home, but did not enter. He threatened and disparaged Mr. Fahad.	The Crown has no knowledge of this event.
Late 2013	s. 7 s. 8	Cst. Forgie entered Mr. Fahad’s home where he lived with his common law spouse, Ms. Grove, and infant child, looking for Mr. Fahad. He said disparaging things to Ms. Grove. This happened twice.	Cst. Forgie denies attending at this home except on August 3, 2013 along with Cst. Herriot to inform Mr. Fahad that drug trafficking from that location must stop.
Spring 2014		Mr. Fahad moved to Merivale Road. His counsel emailed Cst. Brownrigg to advise.
May 19, 2014	s. 7 s. 8 s. 9 s. 10(a) s. 10(b)	Police were patrolling near Merivale Road. Mr. Fahad was in the underground parking of his building meeting with a prospective buyer for his car. He had arranged the meeting on Kijiji. His spouse was concerned and insisted he carry her cell phone. The police approached and surrounded Mr. Fahad, sending the buyer away. They handcuffed and searched him, finding the phone and several hundred dollars. Cst. Brownrigg made racist remarks and other officers taunted Mr. Fahad.	While speaking with Mr. Fahad, police observed him fidgeting and become concerned about the presence of weapons. He refused to follow police directions to stop reaching for his rear waistband. They placed him in handcuffs for their safety. No other physical contact occurred, and no racial slurs were made. Cst. Brownrigg was not present at this incident.
Late May 2014		Officers arrived at Mr. Fahad’s home to arrest him. He refused to come out unless they had a warrant.	Officers arrived at Mr. Fahad’s home to arrest him. He taunted them from behind the door.
Late May – early June 2014		Mr. Fahad turned himself in for breach of the no cellphone condition on May 19 and pleaded guilty on June 3, 2014 to ensure that he would not miss the birth of his child.	Mr. Fahad pleaded guilty on June 3, 2014 to breaching his release conditions relating to cellphone use on May 19. The other charges relating to May 19 were withdrawn at sentencing.

Findings Regarding the Unrelated Incidents

[12] In support of his Application, Mr. Fahad relied upon the Supreme Court decision of R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309. At para. 73 of that decision, the Court held that a judge can consider the cumulative effect of several instances of misconduct in determining whether to grant a stay under s. 24(1) of the Charter.

[13] However, in the same paragraph, the Court noted that, where the alleged instances of misconduct are “separate and distinct, committed at different times by different players… [with] no link between them,” an individualistic approach is appropriate.

[14] Further, I am not persuaded that the accused has established how any of his ss. 7, 8, 9 and 10 Charter rights have been infringed. Without proof of infringement there is no need to conduct an assessment of whether a stay of proceedings is warranted.

[15] Where the alleged instances of misconduct are separate and distinct and unrelated to the charged offences, the accused cannot bundle them and use them to justify a stay of proceedings. To state this in a different way, an individual cannot “bank” alleged Charter breaches for years with the intention of “cashing them in” to receive a stay of proceedings for an unrelated crime. If this were the case, how could a court determine when an accused had exhausted his or her “credit” for prior Charter violations? Further, trials would become unnecessarily long and complex involving evidence of potentially numerous prior historic alleged Charter breaches.

[16] The Supreme Court in Babos stated that in circumstances where the alleged breach is directly linked to the matter before the court, a delay of months or years between the event and the application can signal that the impact on the accused was minimal: Babos, at para. 63.

[17] I find that these peripheral incidents lack any temporal or causal connection to the offences before the Court and do not constitute Charter breaches with respect to the six charges before the court.

[18] In the event that I am incorrect and the interactions between the police and the accused do constitute Charter breaches and are relevant to the adjudication of the charges before the court, they would not, taken individually or cumulatively, meet the high threshold required for a stay of proceedings or an exclusion of evidence under s. 24(1) – both of which are extraordinary remedies to be granted in only the “clearest of cases”.

Summary of the Facts Relating to the Charges in the Indictment

[19] The Applicant has a long history of contact with the Ottawa Police Service (OPS), as set out in the charts above.

[20] Counts 1 and 2 relate to an incident which took place on April 2, 2013. On this date, members of the OPS were conducting surveillance on Mr. Fahad. Prior to this date, they had received complaints implicating Mr. Fahad with drug trafficking.

[21] On April 2, 2013, Mr. Fahad was the driver of a silver Infinity parked near the Alexander Community Centre. An afterschool program was taking place at the time. This vehicle bore a licence plate registered to the same owner as the licence plate of a Dodge Charger previously linked to drug trafficking.

[22] The police observed suspected drug transactions between Mr. Fahad and the occupants of a Honda Accord. Twenty minutes later, at the same location, they observed a second suspected drug transaction between Mr. Fahad and the occupants of a red Ford Mustang. At this point, officers intervened and arrested Mr. Fahad along with the occupants of the silver Infinity and the red Mustang.

[23] Mr. Fahad was arrested without warrant. Members of the OPS searched Mr. Fahad subsequent to arrest and found 23.2 grams of crack cocaine, $770.00 cash and two cellphones.

[24] Counts 3 through 6 refer to incidents occurring on June 27, August 21, and September 4, 2013.

[25] On June 27, 2013, Cst. Forgie observed Mr. Fahad in possession of a cellphone, contrary to the terms of his release conditions. No charges were laid at the time, but this observation later formed the basis for Count 3.

[26] On August 21, 2013, Cst. Forgie observed Mr. Fahad associating with Mr. Ernesto Henriquez, an individual with a criminal record. At the time, Mr. Fahad was under conditions not to associate with any individual with a criminal record. No charges were laid at the time, but this observation later formed the basis for Count 4.

[27] On September 4, 2013, members of the OPS again observed Mr. Fahad associating with Mr. Henriquez and then proceeding to drive a vehicle. Mr. Fahad was under the same non-association conditions as on August 21, and his licence was suspended for non-payment of fines. These events form the basis for Counts 5 and 6. Mr. Fahad was arrested and the vehicle he was driving was searched incident to arrest for evidence of criminal activity. Mr. Fahad was charged with Counts 3 through 6 on this date.

Admissions

[28] The Applicant made the following admissions at trial:

(1) On April 2, 2013, Cst. Matyas arrested Mr. Fahad, the accused before this court;

(2) Immediately following Mr. Fahad’s arrest on April 2, 2013, Cst. Matyas seized 23.2 grams of crack cocaine and $770.00 from Mr. Fahad’s possession;

(3) The aforementioned items seized by Cst. Matyas remain subject to proper continuity;

(4) On April 2, 2013, Mr. Fahad possessed the 23.2 grams of crack cocaine for the purposes of trafficking;

(5) From April 15, 2013 to September 4, 2013, Mr. Fahad was bound by the conditions of the recognizance dated April 15, 2013 [filed as an exhibit];

(6) On September 4, 2013, Mr. Fahad was arrested;

(7) On September 4, 2013, Mr. Fahad was prohibited from driving. His licence had been suspended on July 17, 2013 for unpaid fines; and

(8) On August 31, 2009, Mr. Ernesto Henriquez was convicted of possessing cannabis (marihuana) contrary to section 4(1) of the Controlled Drugs and Substances Act. The information [filed as an exhibit] from the Ontario Court of Justice is admitted.

Findings on the Counts in the Indictment

Count # 2 - Possession of Proceeds of Crime

[29] Mr. Fahad is charged with possession of proceeds of crime contrary to s. 354(1) of the Criminal Code. He testified and stated that the money came from his disability cheque from ODSP. He received a cheque for approximately $1,100.00 on March 31, 2013 cashed it at Money Mart, and used some of it to help his mother pay the rent and to cover various bills. He testified that the $770.00 found on his person when he was arrested was this money, and not money earned from the sale of crack cocaine.

[30] In all cases that turn on the issue of credibility, the principles from Justice Cory’s majority decision in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, apply. At pages 757 to 758, Justice Cory states:

A trial judge might well instruct the jury on the question of credibility along these lines. First, if you believe the evidence of the accused, obviously you must acquit. Secondly, if you do not believe the testimony of the accused, but you are left in reasonable doubt by it, you must acquit. Thirdly, if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by the evidence of the guilt of the accused…

[31] Steps 1 and 3 of the W.(D.) assessment are easy to understand. If you believe the exculpatory account advance by the defence you must acquit – Step 1. If you accept the Crown’s inculpatory account beyond a reasonable doubt, you must convict – Step 3.

[32] The second step in the W.(D.) assessment is more opaque. It does not require the trier of fact to completely reject the evidence of an accused. Rather, it refers to being unable to positively believe the accused, but nevertheless being left in a state of uncertainty where the trier of fact does not know what to believe.

[33] The question of whether the money found in Mr. Fahad’s possession is the proceeds of crime is a question of credibility.

[34] With respect to this count I find that the explanation of why he was in possession of the sum of $770.00 when arrested is plausible. I am unable to decide what to believe and therefore must enter an acquittal on this count.

Count # 3 – Breach of Conditions – Possession of a Cellphone

[35] Count Number 3 charges that the accused was in breach of a condition of his recognizance, namely that Mr. Fahad possessed a cellular telephone on June 27, 2013 while under a condition not to possess any pagers or cellular telephone, Blackberries, iPhones or other telecommunication devices.

[36] The evidence of the Crown was that officers observed Mr. Fahad in possession of a cellphone on June 27, 2013. Cst. Forgie observed Mr. Fahad in the passenger seat of a vehicle in a McDonald’s drive-through holding a cell phone to his right ear. This observation was made from a distance of approximately 150 feet.

[37] The accused testified that at that time he had only recently been released from prison and was aware that the police were watching. He explained that he is a hemophiliac and was attacked when he was incarcerated and suffered serious internal bleeding. Mr. Fahad explained that his fear of being attacked in prison and the resulting possibility of dying because of his medical condition was so strong that he would not jeopardize being sent back to prison for use of his cell phone.

[38] Finally, defence counsel noted that the observations of Cst. Forgie were made from over 150 feet away, and that it was possible that the object observed was not a cellphone.

[39] As mentioned earlier, applying step 2 in the W.(D.) formula in assessing the evidence, I am unable to state where the truth lies and therefore I find Mr. Fahad not guilty of Count 3 – breach of conditions of a recognizance.

Count # 4 – Breach of Conditions – Association

[40] Count Number 4 charges that, on August 21, 2013, the accused was in breach of a condition of his recognizance, by associating with Ernesto Henriquez, an individual whom he knew to have a criminal record.

[41] The evidence of the Crown was that on August 21, 2013, Cst. Forgie observed Mr. Fahad walking on Rosenthal Avenue with Ernesto Henriquez, an individual known to the OPS to possess a criminal record. Cst. Forgie testified that he witnessed Mr. Henriquez engage in a suspected drug transaction while in the company of Mr. Fahad, and that he later saw Mr. Fahad and Mr. Henriquez get into Mr. Henriquez’s vehicle and drive off together.

[42] The accused testified that he did not know of Mr. Henriquez’s criminal record. He stated that he asked Mr. Henriquez if he had a criminal record and that Mr. Henriquez told him that he did not.

[43] As mentioned earlier, applying step 2 in the W.(D.) formula in assessing the evidence, I am unable to state where the truth lies and therefore I find Mr. Fahad not guilty of Count 4 – breach of conditions of a recognizance.

Count # 5 – Breach of Conditions – Association

[44] Count Number 5 charges that, on September 4, 2013, the accused was in breach of a condition of his recognizance by associating with Ernesto Henriquez, an individual who he knew had a criminal record.

[45] The evidence of the Crown was that on September 4, 2013, Mr. Fahad was observed again with Mr. Henriquez. This time officers observed Mr. Fahad sitting in the rear seat of Mr. Henriquez’s vehicle. Cst. Forgie testified that later that day he saw Mr. Fahad and Mr. Henriquez exit a building together and enter a black BMW X5.

[46] The accused testified as above, stating that he asked Mr. Henriquez if he had a criminal record and was told that he did not.

[47] As mentioned earlier, applying step 2 in the W.(D.) formula in assessing the evidence, I am unable to state where the truth lies and therefore I find Mr. Fahad not guilty of Count 5 – breach of conditions of a recognizance.

Count # 6 – Breach of Conditions – Keep the Peace

[48] Count Number 6 charges that the accused was in breach of a condition of his recognizance, namely to keep the peace and be of good behaviour.

[49] The evidence led by the Crown was that, on September 4, 2013, Cst. Forgie was conducting surveillance on Mr. Fahad, whom he had observed in the presence of Mr. Henriquez. In the course of the surveillance, Cst. Forgie witnessed Mr. Fahad driving a vehicle. Cst. Forgie and other members of the OPS were informed over the radio by Cst. Brownrigg that Mr. Fahad was a suspended driver and that his driver’s licence had been suspended on July 17, 2013 for nonpayment of a fine. Shortly thereafter Cst. Alden arrested Mr. Fahad and members of the OPS searched the vehicle he had been driving. During the search the vehicle was damaged. Mr. Fahad asks that he be reimbursed for damages pursuant to s. 24(1) of the Charter.

[50] The accused testified and stated that on September 4, 2013 he did not know that his licence had been suspended. He claims not to have received the papers on the suspension in the mail.

[51] I do not accept Mr. Fahad’s explanation that he did not know that his licence had been suspended. I find that the evidence of the Crown establishes beyond a reasonable doubt that Mr. Fahad was driving with a suspended licence on September 4, 2013, and thus in breach of his condition to keep the peace and be of good behaviour. I would enter a finding of guilt on Count 6 – breach of conditions of a recognizance.

Count # 1 – Possession of a Schedule I Substance for the Purpose of Trafficking

[52] Count 1 of the indictment charges the accused with possession of a Schedule 1 substance for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act.

[53] The defence argued that Mr. Fahad’s arrest was arbitrary and breached section 9 of the Charter and further, that the search conducted as incident to arrest infringed the accused’s s. 8 Charter rights. Mr. Fahad asks the court to exclude the drug evidence as a result of these breaches.

[54] Mr. Fahad has admitted that 23.2 grams of crack cocaine were found on his person. He admits that he possessed this crack cocaine for the purpose of trafficking.

Was the Arrest Arbitrary and a Breach of Section 9 of the Charter?

[55] Section 9 of the Charter protects against arbitrary detention or imprisonment. The court must ask two questions in addressing this issue: First, was there a detention? Second, was the detention arbitrary?

[56] In this case, there is no question that there was a detention. Police arrested Mr. Fahad on April 2, 2013.

[57] A lawful detention is one that is authorized by a law that is itself non-arbitrary. A lawful detention is not arbitrary for the purposes of section 9 of the Charter.

[58] Section 495(1) of the Criminal Code stipulates that a police officer may arrest without warrant: (a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence; (b) a person whom he finds committing a criminal offence…” Section 495(3) deems any arrest made under section 495(1) to be lawful.

[59] The Supreme Court has held that a warrantless arrest must be based on reasonable and probable grounds, that the arresting officer must have a subjective belief that there are reasonable and probable grounds on which to base the arrest, and that this belief must also be justifiable from an objective point of view: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at p. 250.

[60] For an arrest to be lawful the standard that the Crown must meet is to establish a prima facie case. This standard is met “at the point where credibly-based probability replaces suspicion”: R. v. Dhillon, 2016 ONCA 308, at para. 25.

Position of the Applicant

[61] A brief summary of the grounds for the arrest that occurred on April 2, 2013 is as follows:

• On May 19, 2011, Cst. Brownrigg observed Mr. Fahad conduct a suspected hand-to-hand drug transaction in the parking lot of the Alexander Community Centre at the north end of Silver Street;

• In October 2012, OPS received public complaints of drug trafficking regarding a red Acura bearing licence plate BPDT895;

• In December 2012 and January 2013, OPS received confidential information stating that Mr. Fahad was trafficking in large quantities of cocaine and drove his father’s car bearing licence plate BPWK210;

• On January 8 and 10, 2013, a silver Dodge Charger bearing licence plate BPWK210 was observed parked on Silver Street – an area of ongoing drug complaints near Alexander Community Centre;

• On January 16, 2013, OPS stopped the silver Dodge Charger bearing licence plate BPWK210. Mr. Fahad was the driver;

• On January 18, 2013, a trustworthy confidential informer advised that “Jordan” (a light-skinned black male from the Hooper Street area who used to drive a red two-door sports car but now drives a silver four-door Dodge) was selling crack cocaine around Hooper Street. OPS believed that “Jordan” was the alias of Mr. Fahad;

• On January 22, 2013, OPS determined that the silver Dodge Charger bearing licence plate BPWK210 was registered to the same owner as the red Acura bearing licence plate BPDT895;

• On January 23, 2013, Mr. Fahad was observed making a quick visit to a suspected drug-house on Hollington Street while driving the silver Dodge Charger bearing licence plate BPWK210;

• On February 18, 2013, OPS received a public complaint of drug-trafficking regarding a silver Charger near the Alexander Community Centre;

• On March 7, 2013, Cst. Forgie observed suspected drug-trafficking by Mr. Fahad near Meadowvale Park;

• On March 30, 2013, OPS members observed a silver Infinity bearing licence plate BRHX481 parked in the location usually occupied by the silver Dodge Charger bearing licence plate BPWK210. The silver Infinity and the vehicles bearing licence plates BPWK210 and BPDT895 were all registered to the same owner; and

• On April 2, 2013, Mr. Fahad was the driver of the silver Infinity. He and his passenger conducted a suspected drug transaction with the occupants of a Honda Accord in the parking lot at the Alexander Community Centre. Twenty minutes later at the same location, a nearly-identical scenario began to unfold with the occupants of a red Mustang. At this point, the occupants of the silver Infinity and red Mustang were arrested.

Position of the Applicant

[62] The Applicant asserts that the police lacked reasonable and probable grounds to arrest him on April 2, 2013. The Applicant states that some of the information on which the police based their grounds was obtained through a prior Charter breach that occurred on May 19, 2011, and that other information upon which they relied was inaccurate.

[63] Key to the issue of whether the police had reasonable and probable grounds to make the arrest is the evidence of Constable Brownrigg.

[64] The Applicant strenuously questioned the credibility of Cst. Brownrigg and the reliability of his evidence. Though Cst. Matyas ultimately made the arrest, it was Cst. Brownrigg who determined that there were reasonable and probable grounds based on his own observations and history with the community and Mr. Fahad. It was Cst. Brownrigg who made the decision to arrest.

[65] The Applicant asserts that the “evidence” submitted by the Crown is insufficient to ground a reasonable subjective belief. As a result, the arrest was unlawful and all evidence derived therefrom should be excluded.

Position of the Crown

[66] The Crown’s position is that there was no breach of Mr. Fahad’s rights, that the police had reasonable and probable grounds on which to base the arrest and that the arrest was lawful as was the search conducted thereafter. There being no breach of Mr. Fahad’s Charter rights, the Crown asserts that all the evidence seized is admissible.

Was there an Unreasonable Search or Seizure in Breach of Section 8 of the Charter?

[67] Section 8 protects against unreasonable searches and seizures, but only to the extent that an individual establishes a reasonable expectation of privacy: Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 159. In the case before me, there can be no question that Mr. Fahad has a reasonable expectation of privacy in the contents of his vehicle or regarding the items on his person.

[68] To be reasonable under s. 8 of the Charter, the search must be authorized by law, the law itself must be reasonable, and the search must be carried out in a reasonable manner: R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at para. 10.

[69] The requirement that a search be authorized by law means that “the state authority conducting the search must be able to point to a specific statute or common law rule that authorizes the search”: Caslake, at para. 12. The common law power to search incident to arrest constitutes lawful authority. However, where a search is performed without a warrant, the burden will lie on the Crown to establish that it was, on a balance of probabilities, reasonable: Caslake, at para. 11.

[70] A warrantless search can be reasonable where it is incident to arrest. A search incident to lawful arrest must be conducted for a valid objective, “such as the discovery of an object that may be a threat to the safety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused”: Cloutier v. Langlois¸ 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158, at p. 186. Such a search must be conducted in a non-abusive fashion.

Position of the Applicant

[71] The Applicant asserts that the search, conducted without a warrant, was unreasonable. The police lacked reasonable and probable grounds to justify the arrest, and thus any search incident to arrest was unreasonable.

Position of the Crown

[72] The Crown submits that the search was reasonable. First, the police had reasonable and probable grounds to make the arrest. Second, the search was a valid search incident to arrest undertaken for a valid objective. Third, there are no allegations that the search was conducted in an abusive fashion.

Findings

[73] Defence counsel argued that the above information available to Cst. Brownrigg was insufficient to constitute reasonable and probable grounds. In particular, counsel argued that the connections between the various vehicles, and the use of the same parking spot, were red herrings and not evidence that Mr. Fahad was connected to drug activities. Further, defence counsel suggested that some of this information was obtained through prior illegal searches.

[74] The defence led considerable evidence to attempt to show that Cst. Brownrigg was essentially a “Charter ignorant”, “rogue police officer” and that his evidence was not credible or reliable in view of alleged prior violations of Mr. Fahad’s Charter rights and/or because of prior findings of police misconduct concerning Cst. Brownrigg not related to these charges. The defence further argued that Cst. Brownrigg was an evasive witness who gave longwinded and self-serving answers in an attempt to stymie defence counsel and paint himself in a better light.

[75] I listened carefully to Cst. Brownrigg’s testimony and found him to be a credible witness and accept his evidence as being reliable.

[76] I agree with the position of the Crown and find that the arrest of Mr. Fahad was proper and did not infringe his s. 9 Charter rights. The police had reasonable and probable grounds to arrest the accused. I find that Cst. Brownrigg possessed both subjective and objective reasonable grounds to believe that the accused was involved in a drug deal. This was essentially a ‘typical’ drug bust. The search of the accused was conducted properly incident to his arrest. There is no contest regarding the evidence seized at the time.

[77] I find that the search conducted by the police was incident to arrest and did not violate the accused’s s. 8 Charter rights.

Remedies under Sections 24(1) or 24(2)

[78] I find no breach of Mr. Fahad’s Charter rights regarding his arrest on April 2, 2013 and the search of his vehicle and person on this date.

[79] Accordingly, there is no need to discuss a remedy under ss. 24(1) or 24(2) for any police actions taken on that date in relation to Counts 1 or 2. None of the evidence gathered by police on April 2, 2013 is excluded, and no stay of proceedings is warranted.

[80] I have dismissed Counts 3 through 5 on the basis that I cannot tell where the truth lies. I have a reasonable doubt and must acquit the accused on these counts.

[81] Mr. Fahad provided an explanation in each instance that left me with a reasonable doubt as to whether he was in possession of a cellphone on June 27 and whether he was in breach of his non-association conditions on August 21 and September 4, 2013. There is no need to address a Charter remedy in relation to those counts. In any case, defence counsel has not established a Charter breach in relation to those counts.

Damage to the vehicle

[82] After Mr. Fahad’s arrest on September 4, 2013, members of the OPS seized his vehicle and searched it for evidence of criminal activity. They found no evidence. However, this search allegedly caused damage to the car which resulted in significant repair costs. Mr. Fahad argues that this search violates his section 8 Charter rights and that he is entitled to a remedy under s. 24(1), such as excluding the arrest on the breaches or financial damages.

[83] I find that the Police did not violate Mr. Fahad’s section 8 Charter rights when they searched his vehicle on September 4, 2013. Police had reasonable and probable grounds to arrest Mr. Fahad. The search was properly conducted incident to arrest.

[84] Accordingly, I find that the search did not breach Mr. Fahad’s constitutional rights. The evidence does not demonstrate that the manner of the search was unreasonable. It is an open question whether the damage was caused by the search or by the actions of the tow truck operator or by both.

[85] Without a finding that Mr. Fahad’s Charter rights were breached he is not entitled to a remedy under either s. 24(1) or s. 24(2).

[86] If the Applicant wishes to pursue a claim for damages to his vehicle the proper forum would be a civil court: Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, at para 58.

Conclusion

[87] To summarize, the six counts contained in the indictment are disposed of as follows:

a. Count 1 – I find Mr. Fahad guilty of possession of a Schedule 1 substance, to wit, crack cocaine, for the purposes of trafficking on April 2, 2013, contrary to s. 5(2) of the Controlled Drugs and Substances Act;

b. Count 2 – I find Mr. Fahad not guilty of possession of the proceeds of crime on April 2, 2013, contrary to s. 354(1)(a) of the Criminal Code;

c. Count 3 – I find Mr. Fahad not guilty of possessing a cellphone on June 27, 2013 in breach of the conditions of his recognizance, contrary to s. 145(3) of the Criminal Code;

d. Count 4 – I find Mr. Fahad not guilty of associating with an individual known to have a criminal record on August 21, 2013 in breach of the conditions of his recognizance, contrary to s. 145(3) of the Criminal Code;

e. Count 5 – I find Mr. Fahad not guilty of associating with an individual known to have a criminal record on September 4, 2013 in breach of the conditions of his recognizance, contrary to s. 145(3) of the Criminal Code;

f. Count 6 – I find Mr. Fahad guilty of failing to keep the peace and be of good behaviour on September 4, 2013 in breach of the conditions of his recognizance, contrary to s. 145(3) of the Criminal Code.

Patrick Smith J.

Released: June 29, 2016