R. v. Ali-Kashani et al. Date:, 2017 BCPC 357

Citation: R. v. Ali-Kashani et al. Date: 20170622 2017 BCPC 357 File No: 233202 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. Soheil ALI-KASHANI and Farzad SADEGHI-AMINI RULING ON VOIR DIRE NO. 4 OF THE HONOURABLE JUDGE ST. PIERRE Counsel for the Crown: Baljinder Girn and David Hartney Counsel for the Defendant: Matthew Nathanson for Ali-Kashani Counsel for the Defendant: Kristy Neurater for Sadeghi-Amini Place of Hearing: Vancouver , B.C. Dates of Hearing: May 8, 9 and 10, 2017

Date of Judgment: June 22, 2017 [1] One of the defendants in this case, Mr. Ali-Kashani, seeks to challenge the facial validity of a search warrant that was executedat the storage locker associated to the alleged residence of his girlfriend at the time, Ms. Rimes. This search warrant was obtained afterthe police had executed search warrants on the alleged residences of Mr. Ali-Kashani, Mr. Sadeghi-Amini and Ms. Rimes. In a previousruling, I upheld as valid the search warrants for the two remaining accused. However, in relation to Ms.

Rimes, whom the Crown hasopted to no longer proceed against, I found that the search warrant relating to her alleged residence, after review, could not have properlyissued. That warrant was set aside. STANDING ISSUE [2] In an application the parties referred to as Voir Dire No. 3, a hearing was held to determine whether Mr. Ali-Kashani hadstanding, as that term is characterized in law, to challenge the search conducted at the storage locker. [3] R. v.

Edwards, (SCC), [1996] 1 S.C.R. 128 (SCC), is the leading authority on the right of an accused tochallenge the admissibility of evidence obtained as a result of a search of a third party's premises. The first question that was to beanswered is whether the accused had a reasonable expectation of privacy. [4] As the case law has developed it has become clear that the accused must point to some evidentiary basis that is capable ofsupporting a conclusion that he had a reasonable expectation of privacy in the place to be searched or the thing to be seized. [5] Justice Hall re-affirmed as much in a case called R. v.

Stein, 2010 BCCA 173. In doing so Justice Hall accepted the earlierstatement of Justice Prowse found in R. v.

Sandhu (1993), (BC CA), 82 C.C.C. (3d) 236, at para. 251, that an accused"cannot assert a Charter right or its breach on the basis of the 'Crown's theory'" of the case rather than on the evidence. [6] Of course, there is an inherent contradiction at play when, on the one hand, the Crown maintains that they can prove beyond areasonable doubt that the accused had knowledge and control of the items seized in premises and on the other hand they seek to resist anaccused’s assertion of standing to challenge the search. [7] This issue is often raised. Chief Justice McEachern in R. v.

Khuc, 2000 BCCA 20 pointed to the incongruity of resisting anaccused’s application for a voir dire if that application was based on a position to be advanced by the Crown in the trial. He said at para.14: [14] For purposes of the voir dire, however, the Crown argued that the appellants were obliged to establish a reasonable expectation ofprivacy before they could acquire standing to challenge the Search Warrant, and that such an expectation was not established.

Althoughat first this seemed an inconsistent position for the Crown to take (since it was relying throughout on some measure of occupation orcontrol of the premises by the accused to support an inference of possession of the cocaine found there), it now appears to me that theCrown was entitled to argue that standing to raise a constitutional challenge had not been established on the basis asserted by theaccused.

It would be improper, of course, for the Crown to oppose an application for a voir dire if the accused relied only on theevidence and position advanced, or to be advanced, by the Crown. [8] Chief Justice Finch noted this contradiction in R. v. Vi, 2008 BCCA 481 when sitting on a panel that included Justice Hall(who would later author the decision in R. v.

Stein (above)), said at para. 14: [14] In my respectful view, it is inconsistent to hold that the same evidence is sufficient to support an “irresistible inference” that theaccused had knowledge and control of the premises, yet on the same facts to hold as he did on the voir dire: [18] … It is not exactly clear that he had possession or control of the property, although I am told that he had keys to the subject propertyon his person on his arrest. [9] The Crown maintains that the cases of R. v.

Stein (above) and others like it, that have essentially suggested that an accusedcannot simply use the Crown’s theory to meet the “Edwards” criteria, have essentially overtaken any cases that find it improper for theCrown to resist an application for a voir dire in circumstances where the expected evidence would likely meet those same criteria. [10] Although I share the concern of Chief Justice Finch, I do not find that this issue needs to be resolved in this particularcircumstance. The Crown alleges that two wrapped bricks of cocaine were discovered in the locker room associated to Ms. Rimes’residence.

The Crown advises that they would seek to establish the requisite knowledge and control of those narcotics primarily throughthe use of fingerprint evidence. The position that they maintained in relation to the standing issue seems a reasonable one in thesecircumstances. [11] However, in this case there was evidence called by the defence in the voir dire in relation to the standing issue. Both Mr. Ali-Kashani and Ms. Rimes gave evidence. The Affidavits that they provided were the subject of cross-examination by the Crown.

I do notpropose to summarize that evidence because at the end of that process the Crown, quite properly in my opinion, conceded that thethreshold test that was delineated in R. v. Edwards (above) had been met. [12] I then declared a voir dire in relation to the search warrant that was obtained for that subject storage locker. BACKGROUND [13] Mr. Ali-Kashani, Mr. Sadeghi-Amini and Ms. Rimes were charged that, on or about November 1, 2013, they possessed cocainefor the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act.

[14] As I indicated, the Crown earlier in these proceedings entered a stay of proceedings in relation to Ms. Rimes’ charges. Ms.Rimes is no longer a defendant. [15] Here, I repeat some of the background with respect to the investigation in this case. The accused’s here were the subjects ofProject Thorne. They were being investigated as a result of information provided by two confidential informants. This information led tofour search warrants being sought and executed on the morning of November 1, 2013.

Those search warrants were the subject of adefence challenge and were dealt with in my Ruling on Voir Dire No. 1. [16] Mr. Ali-Kashani was the main target. Mr. Sadeghi-Amini and Ms. Rimes were added as the investigation proceeded.Ultimately, the police were investigating some 12-13 people who were allegedly involved in a drug trafficking operation. [17] Once search warrants were obtained there was a briefing held with officers who were assigned various duties during theexecution of four search warrants. Search team members were instructed to arrest any of the four known targets (Mr.

Ali-Kashani, Mr.Sadeghi-Amini, Ms. Rimes and Mr. Hosseinpour, (not a part of these proceedings)) should any of them be found at their respectivealleged residences which constituted the four sites to be searched. [18] Search warrants were executed at the four sites at 0735 hours (Richards Street), 0737 hours (Pender Street), 0809 hours(Melville Street) and 0820 hours (Barclay Avenue). The Melville Street address is a townhouse alleged to be the residence of Ms.

Rimes. [19] The storage locker associated to that Melville Street address was not part of the initial search parameters of the warrants thatwere obtained. [20] Once the Pender Street address (associated to Mr. Ali-Kashani) was breached at approximately 0740 hours, Mr. Ali-Kashanicame out in his underwear. He was later provided some clothes to wear. Ms. Rimes, who was also there, was wearing sleeping clothes. [21] The search of that Pender Street residence uncovered a locked safe inside of which was found an electronic scale and a whitebowl containing approximately one ounce of, what was believed to be, cocaine.

Also recovered were a FOB and a key that weresubsequently tested and confirmed to access the Melville Street address allegedly belonging to Ms. Rimes. [22] The search of the Melville Street address uncovered the fact that it had been recently sublet to another person. Investigatorsdiscovered that there was a locker room associated with this residence. Again, they did not have a warrant to search that location so onNovember 1, 2013, Detective Wong tendered an Information to Obtain a warrant for that location.

That application was granted by aJustice of the Peace. [23] That document is marked Exhibit #3 on this voir dire. [24] Mr. Ali-Kashani challenges the issuance of that warrant. ANALYSIS [25] It has been said that there are five requirements to satisfy in persuading an issuing justice to authorize search warrants: 1. What are the grounds for believing that the things to be searched for exist? 2. What are the grounds for saying that the things to be searched for are at the place to be searched? 3. What are the grounds for saying that the offence has been committed as described? 4.

How will the things to be searched for afford evidence of the commission of the offence alleged? 5. What are the grounds for saying that the place to be searched is at the location identified? (See also R. v. Okeke, [1999] O.J. No. 3693 (Ont.S.C.J.) per Justice Hill) [26] In R. v. MacNeil, 2013 BCCA 162, Justice Ryan discussed the role of a reviewing judge and the reasonable grounds standard: [50] As the trial judge noted, the reviewing judge does not stand in the place of the justice who issued the authorization.

The question isnot whether the reviewing judge would have granted the order, but whether there was any basis on which the issuing justice could havedone so: Garofoli at 188; R. v. Araujo at para. 51. In other words, the reviewing judge should only set aside the authorization if satisfied,on the whole of the material presented, that there was no basis on which it could be sustained: Garofoli at 188. [27] When what is set out in an ITO has been “amplified” on the record before a trial judge, it is clear from R. v.

Garofoli (SCC), [1990] 2 S.C.R. 1421 that a trial judge’s task then is still to consider whether a warrant could (not would) have issuedon the basis of the amplified record. [28] I set out in some detail the test for reviewing a search warrant in the first voir dire relating to the searches of the residences(Ruling dated November 8, 2016). I do not propose to do that again. [29] The Defence (in this voir dire only, Mr. Ali-Kashani is challenging the issuance of the storage locker warrant) argues that thestorage locker warrant is invalid on its face.

I have already found that the warrant to search the residence associated to this locker wasinvalidly issued. The Defence says that there was no new compelling information obtained subsequent to that that would link that storagelocker to unlawful activity. [30] The Defence points out that the Informations to Obtain search warrants for the residences comprised some 300 pages and theInformation to Obtain the search warrant for this storage locker is only some 29 pages. The assertion is that this “reduced” record cannot

be endorsed if the previous one was deficient. [31] The Defence also argues in the alternative, there needs to be excision of any information obtained as a result of the search of theMelville Street address in light of my finding that that warrant was improperly issued. AUTOMATIC EXCISION ARGUMENT [32] Defence argues that it is clear that excision of evidence obtained in breach of the Charter is automatic. They assert that this isthe necessary result (whether or not Mr.

Ali-Kashani had standing vis a vis the Melville residence) if there is a proper application of the1993 SCC trilogy of R. v Grant (1993), (SCC), 84 C.C.C. (3d) 173, R. v. Wiley (1993), (SCC), 84C.C.C. (3d) 161, and R. v. Plant (1993), (SCC), 84 C.C.C. (3d) 203. [33] The Defence argues that the proper analysis in the context of a review of a search warrant is that required by the Garofoli test,and not the analysis in s. 24(2) of the Charter.

In the application of the Garofoli test, information obtained by unconstitutional means isexcised on that basis, and it is neither necessary nor appropriate to consider the language in s. 24(2) of the Charter. (See R. v. Sanghera[2012] BCJ No. 608 (BCSC), at para. 28.) [34] The law does indeed seem clear that evidence ruled inadmissible pursuant to s. 24(2) of the Charter, based on the violation ofone accused's s. 8 rights, is admissible against another accused without standing to assert a violation of his or her privacy rights.However, the Defence argues, that is not the case here. Mr.

Ali-Kashani does have an interest in the location searched as a result of thestorage locker warrant. [35] This only becomes controversial because the Crown submits that Mr. Ali-Kashani has not established any privacy interest in theMelville Residence and that therefore he is foreclosed from arguing that the breach of Ms. Rimes’ rights when that residence was enteredwith, what turned out to be, an invalid warrant can be used by him to seek excision of material discovered in that search. [36] The Defence first maintains that Mr. Ali-Kashani did, in fact, have a privacy interest in Ms. Rimes’ alleged residence.

I do notfind this to be a persuasive argument. [37] However, the Defence also maintains that it matters not if Mr. Ali-Kashani can establish a privacy interest in the Melvilleresidence. They point to cases like R. v. Shayesteh (1996), (ON CA), 111 C.C.C. (3d) 225 (Ont.C.A.), at p. 239, thatheld even if an accused is not listed in an authorization as a target, he has standing to challenge the authorization if his privatecommunications are intercepted pursuant to a wiretap authorization that was later obtained. [38] In the recent case of R. v. Brown et al, 2014 BCSC 1872 (BCSC), Mr.

Justice Funt found the arrests of two co-accusedunlawful as they were based on evidence obtained during the impugned arrest and search of Mr. Brown. The Court excised theinformation gained from the unlawful arrest of Brown and found that the grounds to arrest the co-accused no longer met the standard fora valid arrest.

This case and others like it are said to stand for the proposition that irrespective of any alleged (or found) Charter breachesrelating to third parties the accused’s in these cases are entitled to seek the non-Charter remedy excising illegally obtained evidence uponwhich arose the grounds justifying their own arrest (or in this case the search warrant for the storage locker) which they clearly havestanding to challenge.

Justice Funt says at paras. 62 to 65: [62] The Court sees no reason to view differently the objective justification required for an arrest warrant from that of a warrantlessarrest in circumstances such as those at bar. [63] Applying the principles from Kokesch and Evans, Mr. Brown's unlawful arrest, including the cash and heroin found in consequenceof his arrest, cannot give rise to reasonable grounds for the arrests of either Mr. Lambrecht or Mr. Manuel. Unlawfully obtained facts orevidence cannot be used as the determinative basis for establishing reasonable grounds for an arrest. [64] As noted, without Mr.

Brown's arrest, Constable Dyck did not have reasonable grounds to arrest either Mr. Lambrecht or Mr.Manuel. Accordingly, the respective arrests of Mr. Lambrecht and Mr. Manuel were unlawful. An unlawful arrest violates anindividual's s. 9 Charter right not to be "arbitrarily detained or imprisoned": R. v.

Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353. [65] If the Court were to rule that the cash and heroin could be considered as giving rise to "reasonable grounds", then, as aninvestigative technique, the police would be tempted to conduct unlawful and warrantless arrests in the hope of finding evidence andthen using such evidence as reasonable grounds under s. 495 of the Criminal Code to arrest an individual without warrant. The Courtcannot signal such techniques as acceptable conduct. [39] The Crown, on the other hand, points to cases like R. v.

Todd [2015] BCJ No. 837 where Justice Rogers takes the view thatabsent standing to challenge the foundational search or seizure, an accused person cannot raise the breaches of a third parties rights as astepping-stone to challenge subsequent state intrusions with respect to themselves. He says at para. 36: 36 I do not wish to quarrel with Mr. Justice Funt or to disparage his reasons or conclusions. It may be for some higher authority to assessthe correctness of his decision or mine.

I would, however, like to point out that what distinguishes my approach to, essentially, the sameproblem as Funt J. faced is that I started with and focused on the relief the accused seeks whereas Funt J. concentrated on the processthat led up to the claim for that relief. To put it simply, I have started from a proposition that the first test is to determine whether theaccused can claim a Charter remedy whereas it appears that in Brown Mr. Justice Funt started with whether someone's Charter rightswere violated and followed a chain of reasoning from there.

On my reading of the case, in Edwards, the Supreme Court of Canadamandated the former approach rather than the latter. [40] It is noteworthy that in R. v. Todd (above), the accused was seeking to raise the alleged Charter violation of an unindicted thirdparty who was not a part of the proceedings before the court. [41] In R. v. Guindon 2015 ONSC 4317 , [2015] OJ No. 7169 (ONSC) Justice Bird considers many authorities (including

some of those referred to by the Crown). She concludes that so long as there is standing to challenge the impugned state action (in thecase at bar - the warrant for the storage locker) then there is standing to challenge the foundational grounds of that action with a view toexcising illegally obtained information from those grounds. [42] In that case, the applicants sought a ruling excising from the ITO all references to an unlawful arrest of a co-accused,Christopher Gonder. That evidence included drugs and cellular phones.

The issue to be determined was whether evidence obtained inviolation of the Charter rights of a third party co-defendant should be excised from affidavits and ITOs that were used to obtain ordersthat did engage Mr. Guindon’s privacy interests. After a careful analysis of the prevailing law, Justice Bird concludes at para. 20: The applicants are entitled to challenge the legality of the evidence upon which authorizations, search warrants and production ordersimpacting on their privacy interests were based.

The evidence seized from the Suzuki on March 7, 2012 was obtained illegally as itresulted from an improper vehicle stop and the unlawful arrests of the occupants. A failure to excise references to this evidence wouldpermit the state to benefit from the illegal conduct of the police. Therefore, all references to the stop of the Suzuki, the arrests of Ms.Skitch, Mr. Dashuk and Mr. Gonder, and the seizure of any evidence are to be excised from the affidavits and ITOs in support of

Part VIauthorizations, search warrants and production orders. [43] One of the cases relied upon by the Crown in the case at bar was R. v. Ritchie, 2016 ONSC 1092. The Court there had to dealwith the decision of Justice Bird in Guindon (above) and distinguishes it, in part, by noting that in Guindon the trial judge had made aruling herself, within the same trial, as to the sufficiency of the grounds to arrest the co-accused. Guindon is closer to the facts in thecase at bar than many of the cases referred to by the Crown for that reason alone. I have determined within this trial that the search ofMs.

Rimes’ alleged residence was without valid authorization. She was a co-accused until the Crown entered a stay of proceedingsagainst her. [44] This approach makes intuitive sense in some ways.

The importance of protecting the process of prior judicial authorization isscattered throughout the jurisprudence since the landmark decision from the Supreme Court of Canada in Hunter and Southam, (SCC), [1984] 2 S.C.R. 145. [45] Courts have also consistently pointed to the need to evaluate an affidavit in the “totality” of the circumstances and attempt tobalance the need for judicial finality and the requirement and importance of prior judicial authorization (see R. v.

Araujo (2000), 2000SCC 65 , 149 C.C.C. (3d) 449). [46] Surely, in a case where the trial judge has, within that very same case, made a determination that certain evidence wasunlawfully obtained and then that impugned evidence was used to secure a further search warrant, an accused, whose privacy interestsare affected by that further search warrant may seek excision of that illegally obtained evidence from the information to obtain thatwarrant. [47] As many cases have noted a failure to excise references to this evidence would permit the state to benefit from conduct alreadydetermined by the judge to be unlawful. [48] This finding, it seems to me, strikes the appropriate balance between the need for judicial finality and the requirement andimportance of prior judicial authorization.

It is because Mr. Ali-Kashani does have standing to challenge the search warrant that issuedfor the storage locker and the trial judge has determined within the trial that there was illegally obtained evidence used to obtain thewarrant that he can seek the remedy of excision of that illegally obtained information. EVIDENCE FROM MELVILLE ADDRESS SEARCH [49] I am cognizant that I have spent time in this ruling dealing with the issue of automatic excision. I felt that it was necessary togive a full consideration to the arguments that have been made by both the Crown and Mr.

Ali-Kashani with respect to this vexing issue.It is clearly one that has not entirely been resolved in the case law. It is also necessary, in light of the case law that I have been referringto, as a remedial step to first excise any erroneous or illegally obtained information from the ITO, leaving any assessment of the"materiality" of those excisions until later in the analysis (this stage). [50] Counsel for Mr.

Ali-Kashani conceded that the actual existence of the storage locker relating to the residence at the MelvilleStreet address would have been discovered notwithstanding anything found within the Melville residence itself. [51] Police discovered a FOB and Keys at the Pender Street address that they concluded were for entry into the Melville Streetaddress. This is not surprising since Ms. Rimes, who was, by all accounts, in a relationship with Mr. Ali-Kashani, was found there whenthe search was executed at his putative residence. There is no evidence that any of the narcotics found in Mr.

Ali-Kashani’s residencewere located in plain sight or in an area that Ms. Rimes would have had to know about. [52] Detectives confirmed that the FOB on the key ring seized from Pender opened the gates to the underground parkade at theMelville Street address and a key on the key ring unlocked the front door of that residence. This is part of the evidence sought to beexcised as is could not have been obtained without a search warrant for that Melville residence. There were two additional keys marked“B” and “ST” that were not tested in any doors.

The affiant states that he believed that “ST” was the abbreviation for “Storage”. [53] The police did discover that someone else appeared to be occupying that residence and that nothing of any note was discoveredin a search of that residence. [54] The tenant advised the police that the storage room associated to the Melville Street residence was not part of the sublet hesecured. OTHER GROUNDS [55] I have already found that the search warrant obtained for the Melville Street address was invalidly issued. The information used

to obtain that warrant was essentially summarized in this further application for a warrant relating to the storage locker. [ 56 ] As I indicated in the previous ruling, the police received informant information on September 19, 2013, that Mr. Ali-Kashani moved some narcotics to his girlfriend’s place. There is no basis set out for this belief on behalf of the informant. Nor is there any compelling corroboration in the way of observations or independent investigation. [ 57 ] I also found that while it may have been reasonable to conclude that Ms. Rimes was in some kind of relationship with Mr.

Ali- Kashani and it may have been reasonable to conclude that she resided or was associated to the Melville Street address the information does not go much beyond that. [ 58 ] I concluded that the bulk of the information relating to Ms. Rimes essentially is a suggestion that she is guilty by association with Mr.

Ali-Kashani. [ 59 ] That being said, in light of my ruling above with respect to excision I would have excised the portions of the ITO that relate to the testing of keys and FOBS at the Melville Street residence. [ 60 ] However, it is equally clear that this evidence does very little to advance the grounds set out in the ITO supporting the issuance of a search warrant for the storage locker. The police had existing information linking that residence to Ms. Rimes. The fact that keys for that residence were found in the residence of Mr.

Ali-Kashani during the search of his residence does nothing to advance the grounds for searching the Storage Locker. This is because Ms. Rimes was present in the same location as those keys when the police executed the search for the Pender Street address.

This is unsurprising of course in light of the already held belief that Melville was her residence. [ 61 ] I should note as well there is information apparently received from Informant B in the ITO but that information is vetted out and unable to be considered on review. [ 62 ] In my opinion there is very little evidence establishing, for the reasons previously given in relation to her residence and for the reasons expanded upon here, a sufficient basis upon which a judicial officer could have issued a search warrant for that storage locker. [ 63 ] The warrant for the storage locker is set aside. ________________________________ The Honourable Judge David St.

Pierre Provincial Court of British Columbia