Court File and Parties

R. v. Javed, 2023 ONSC 3028 Information No. CR-22-11400813-0000

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

v.

MUNEEB JAVED

R U L I N G

Before THE HONOURABLE JUSTICE P.E. ROGER

on March 21, 2023 at OTTAWA, Ontario

APPEARANCES: M. Karimjee/ A. Rash Counsel for the Crown R. Durran Counsel for Muneeb Javed

Ruling

TUESDAY, MARCH 21, 2023:

R U L I N G

ROGER, P.E. (Orally):

The accused brings a Charter motion, arguing that his Section 8 and 9 Charter rights were breached and that the resulting evidence should be excluded.

The accused argues that his warrantless arrest was unlawful because it lacked reasonable and probable grounds. He argues as well that there was no evidence to support one of the charged offences, that of arranging under Section 172.2 of the Criminal Code.

As a result, the accused argues that the search incident to his arrest was unlawful. He also argues that the sending and the observation of an oncoming notification on his phone was an unlawful search.

Having considered the evidence, the authorities and the arguments of counsel, I find that the arrest and incidental search were lawful and, therefore I dismiss the accused’s application.

The onus on this application is on the Crown. Where a police officer believes, on reasonable grounds, that a person has committed an indictable offence, the officer may make a warrantless arrest. The officer must hold an honest belief that the person committed an indictable offence and the officer’s belief must be reasonable in the circumstances known to the officer at the time of the arrest. All available information must be considered, and reasonable grounds can coexist with other possible innocent explanations, appreciating that arrests are often made in fast moving, dynamic situations.

In the present matter the grounds to arrest the accused supported the police belief that the accused was the individual who had sexually assaulted the complainant. These include:

• The police communicated, posing as the complainant, with justaguyy22, whom they understood had sexually assaulted the complainant.
• On August 18, 2021, the police organized a meeting with justaguyy22 to occur at a park near the complainant’s place or residence, at Provence/Grapefern. Posing as the complainant the police asked if he could meet her there and said that she would wait at the park.
• The only entrance to the park by car is at the intersection of Provence and Grapefern, although the park is large and could also be entered elsewhere.
• The police’s invitation was sent at about 10:52 p.m. and justaguyy22 responded at about 10:53 that he is about to leave and that it will take him 45 minutes.
• The police were conducting surveillance at the park’s entrance at Provence/Grapefern since about 10:00 p.m. that evening. The park was observed as being dark. Only a handful of cars were observed, none slowed down significantly near the park’s entrance, and none entered the park during the time that it was under observation by the police. Only a few pedestrians were seen walking on the nearby sidewalks, and none were seen entering the park’s entrance at Provence/Grapefern. The officers observing that entrance to the park testified that nothing stood out.
• At 10:40 p.m., approximately 47 minutes after the police had received a message from justaguyy22 that it would take him 45 minutes, the officer’s observed a car approaching and observed that car significantly slowing down as it approached the entrance to the park’s parking lot. The car, a dark sedan, was observed driving very slowly past the park’s entrance at Provence/Grapefern. None of the other cars had driven by in this manner. About 100 feet past the entrance, the car was observed making a U-turn, coming back, and driving slowly into the park’s parking lot. The car was described as moving slowly and doing a U-turn in the park’s parking lot. The officers observing the car testified that the car was being driven as if the driver was looking for someone.
• The officer-in-charge gave the order for marked cruisers to move in and arrest the driver of this car. As the cruisers were on their way, the car was observed exiting the parking lot and speeding up. The officers testified that they believed that the driver of the car was driving in a manner attempting to evade the approaching police cruisers.

Although justaguyy22 could have parked elsewhere and walked into the park from another location, it was reasonable for the police to believe that he would drive and use the park’s parking lot entrance. That justaguyy22 could have entered elsewhere does not diminish the reasonableness of the belief that he could drive and use the park’s entrance.

This was a meeting set up late at night, in a dark park, where no one else was observed using the parking lot entrance in the time that the entrance was under surveillance.

The accused’s arguments apply too high a standard, what is required is reasonable grounds and those were present.

After the accused’s arrest, the officer-in-charge sent a final Snapchat message to justaguyy22 and observed a notification appear on the accused’s phone. This was not a search of the accused’s phone because there was no reasonable expectation of privacy in notifications that are in plain view. What was done is no different from calling a phone number to see if the phone in possession of a suspect will ring. And authorization was not required because Section 8 was not engaged.

A notification that the owner of the phone has allowed, through the setting of his or her phone and which is in plain view, does not engage a reasonable expectation of privacy. Once the phone is lawfully in the hands of the police, in this case incident to a lawful arrest, the police need not close their eyes and shut their ears regarding notifications or phone calls that are received and displayed on the screen of that phone.

If I am wrong in the above conclusion regarding the phone, I do not see how such a breach could in the circumstances of this case lead to the exclusion of that observation.

That there was no ground to arrest the accused on the agree/arrange offence at Section 172.2 of the Criminal Code is of no consequence when there were reasonable grounds to arrest him on the other charged offences. Therefore, in this case, the police did make their observations in compliance with the Constitution because the accused was lawfully arrested for the other offences.

The accused’s arguments that the information to obtain was not sufficient for the warrant for the phone to have issued is also without merit because it relies on similar arguments that a car entering a parking lot is not sufficient to establish reasonable grounds. This argument does not account for all of the evidence that was occurring and how it establishes reasonable grounds.

Consequently, the accused’s application is dismissed.

...MATTER COMPLETED