R. v. Ali-Kashani et al. Date:, 2017 BCPC 365

Citation: R. v. Ali-Kashani et al. Date: 20170418 2017 BCPC 365 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. 2 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: November 14, 15, 16, 18, Dec. 6, 8, 16 2016, Feb 10, 23, 2017

Date of Judgment: April 18, 2017 [ 1 ] This is a ruling on an application that the parties have been referring to as Voir Dire No. 2. The first Voir Dire Ruling (No.1) dealt with an application by the defendants wherein they challenged the facial and sub-facial validity of certain search warrants obtained in this investigation. BACKGROUND [ 2 ] Mr. Ali-Kashani, Mr. Sadeghi-Amini and Ms.

Rimes were charged that, on or about November 1, 2013, they possessed cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act . [ 3 ] I commenced hearing applications with respect to this case in the fall of 2015. Since then the parties have appeared before me some 25 times (many of those days included evidence being called from various witnesses). The trial proper is not expected to commence until this summer. [ 4 ] In the Ruling on the first Voir Dire , I found that the search warrants relating to the alleged residences of Mr. Ali-Kashani and Mr.

Sadeghi-Amini were properly issued. [ 5 ] However, in relation to the alleged residence of Ms. Rimes I found that the issuing justice, after review, could not have properly issued the search warrant. That warrant was set aside. The Crown later indicated that they were entering a stay of proceedings in relation to her charges. Ms.

Rimes is no longer a defendant in these proceedings. [ 6 ] In a prior “ Vukelich ” hearing (a Vukelich hearing allows the Court to determine if a Charter application should proceed to be heard) I ruled that there were, in fact, issues that were raised by the defence and supported on the materials placed before me that allowed me to conclude that a Voir Dire in relation to the issuance of the search warrants and the detention, arrest and right to counsel (s. 9 and s. 10 of the Charter ) of the accused was justified.

I also found that there was a valid issue to be examined under s. 8 of the Charter with respect to the seizure and subsequent searches of various vehicles. [ 7 ] Having now ruled on the validity of the search warrants relating to the alleged residences I am now asked to determine whether the Crown has established lawful arrests in these circumstances and whether the accused have proven alleged Charter breaches relating to their detention, arrests, right to counsel and seizure of vehicles. [ 8 ] This is stage two of the Voir Dire that was declared.

As previously noted, the parties had suggested, and I had agreed, that the several discrete issues that were properly raised at the “ Vukelich ” hearing can be heard and determined in stages. [ 9 ] I should note at this point that there is an almost overwhelming amount of material to consider on these applications. It will not be possible or efficient, for that matter, to refer to all of these materials. I will attach Indexes to the authorities that were provided as some indication of what was considered. [ 10 ] It was with interest that I read one of the authorities provided on this matter called R. v.

Bui and Do , [2005] BCPC 0210 (B.C. Prov. Ct.). That V oir Dire covered some five days of court time and the presiding judge was the very respected and experienced jurist, the Honourable Judge James Jardine. He says this right at the start of his reasons: Counsel have provided me what could only be called the better part of two inches of work to review on the file.

I have spent many hours reviewing the cases provided and the written submissions as well as the transcripts which inform us as to the factual context of this decision. [ 11 ] Some twelve years later I am asked to deal with some similar issues and have so far been provided materials that when measured (yes, I did measure) stand over two and a half feet in height. This does not include the material provided in electronic form or any transcripts of the evidence called thus far in this matter. As did Judge Jardine, I have spent many hours (outside of court sitting hours of course) reviewing the material provided.

This observation simply supports the general consensus among those who tirelessly work in this system that matters have become more and more complicated and consume exponentially more time outside of sitting court hours in order to properly deal with the issues raised. Charter Breaches Alleged [ 12 ] At this stage of the Voir Dire , Mr. Ali-Kashani is maintaining the following breaches of his Charter Rights:

a) That his rights under s. 9, the right to be free from arbitrary detention and imprisonment were infringed when he was arrested on November 1, 2013;

b) That his rights under s. 8, to be secured from unreasonable search and seizure were infringed when the police seized three of his vehicles on the same date;

c) That his rights under s. 10(b), the right to retain and instruct counsel without delay and to be informed of that right was infringed when the police held him incommunicado for some period of time after the arrest had been effected. [ 13 ] For his part, Mr. Sadeghi-Amini is maintaining the following breaches of his Charter Rights:

a) That his rights under s. 8, to be secure from unreasonable search and seizure were infringed when the police seized two of his vehicles on November 1, 2013;

b) That his rights under s. 10(b), the right to retain and instruct counsel without delay and to be informed of that right was infringed

when the police held him incommunicado for some period of time after the arrest had been effected. [ 14 ] At the commencement of this Voir Dire (#2), Ms. Girn, for the Crown, argued that this court need not deal with Mr. Ali- Kashani’s claimed breaches pursuant to s. 9 (arrest). She argued that since the arrests were based on the information that is contained in the application for search warrants (that have already been upheld) there is no basis for the defence alleging that grounds did not properly exist for the arrest. Mr. Sadeghi-Amini, I note, has conceded that his arrest was lawful. [ 15 ] Ms.

Girn also argued that, in the event that a challenge to the arrest grounds was allowed, that any cross-examination relating to the arrest of Ms. Rimes, who is no longer before the Court as an accused, should not be permitted. It was submitted that there is no basis for raising any alleged breaches that may have occurred vis a vis Ms. Rimes as they could not impact any analysis relating to whether breaches could be established against the other accused still before the court. [ 16 ] It was submitted that it was only during an s. 24(2) analysis that police behaviour involving Ms.

Rimes may possibly be relevant and we are not at that stage yet. [ 17 ] With respect to these arguments, I ruled that grounds to arrest the two accused may ultimately be found to exist but I had yet to hear the circumstances as they relate to that discrete issue (both objective and subjective grounds) under a proper s. 9 analyses.

In essence, I ruled that we should continue with the exposition of the Charter issues as already allowed in the prior Vukelich hearing, that being s. 8 (vehicles), s. 9 (arrests) and s. 10(b) (right to counsel). [ 18 ] With respect to the arguments in relation to alleged breaches of third party rights (Ms.

Rimes), I concluded that while, even if established, they could not, standing alone, ground a remedy for the remaining accused if there was no finding of a breach in relation to those remaining accused. [ 19 ] However, the question of whether there are sustainable breaches of Charter rights that can be found against the accused has yet to be determined and it seems to me that it would be an appropriate use of court time to allow an examination into any alleged breaches of the third party. This is because, if established, on the basis of some authority (i.e. R. v. Lauriente , [2010] B.C.J.

No. 242 (BCCA) ) breaches of a co-accused no longer before the court MAY have some minimal impact on a subsequent 24(2) analysis. I determined that the time estimate in relation to this Voir Dire (that was being allowed) would not be significantly impacted to proceed in this fashion. ANALYSIS [ 20 ] The accused here were the subjects of Project Thorne. They were being investigated as a result of information provided by two confidential informants. This information led to four search warrants being sought and executed on the morning of November 1, 2013.

Those search warrants were the subject of a defence challenge and were dealt with in my ruling on Voir Dire No. 1. This is Voir Dire No. 2 dealing with the issues that are described above. The accused here were arrested just prior to the search warrants being executed at their alleged respective residences. [ 21 ] Cst. Taguiam was the file co-ordinator and compiled all the information for Det. Battista (the lead investigator). 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. [ 22 ] Once search warrants were obtained there was a briefing held with officers who be assigned various duties during the execution of four search warrants. A 24-page PowerPoint presentation (Exhibit

H) with various instructions contained in it was presented. Site leaders were assigned. Search team members were instructed to arrest any of the four known targets (Mr. Ali-Kashani, Mr. Sadeghi- Amini, Ms. Rimes and Mr. Hosseinpour) should any of them be found at their respective alleged residences which constituted the four sites to be searched. [ 23 ] 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). Grounds for Arrests [ 24 ] I note once again that counsel, on behalf of Mr.

Sadeghi-Amini, concedes that there were grounds to arrest him. There is no s. 9 breach being advanced with respect to him. Counsel for Mr. Ali-Kashani, however, maintains that there were insufficient grounds upon which to arrest his client prior to the search warrants being executed on November 1, 2013. [ 25 ] Det. Battista was the lead investigator and had made the decision to arrest the accused. His grounds to arrest Mr. Ali-Kashani are found in a document he prepared prior to the arrest and entered as Ex. A on this Voir Dire . His grounds to arrest Sadeghi-Amini are entered as Exhibit B.

The grounds to arrest Ms. Rimes, who is no longer before this court as an accused on this trial, were marked as Exhibit C. [ 26 ] These documents describe some of the information received (for example, from the two confidential informants) and observations made that Det. Battista testified formed the basis for his belief that the accused were arrestable for Possession for the Purpose of Trafficking in a Controlled Substance. [ 27 ] Det. Battista was cross-examined as to the basis for his conclusion that the two accused remaining on this case were arrestable as of October 17, 2013.

That was the day that the police interdicted a female just leaving a meeting with Mr. Sadeghi-Amini. She indicated to the police that she had just purchased narcotics from Mr. Sadeghi-Amini. This information, in addition to the information that was already gathered to this point, allowed Det. Battista to conclude that both men were now arrestable for drug trafficking offences. [ 28 ] I do not intend to review in detail all of the observations and pieces of information that Det. Battista claimed to have considered in forming his reasonable grounds that the accused had committed criminal offences.

As indicated previously, his stated grounds are set out in detail as part of Exhibits A and B.

[29] Cross-examination, however, did reveal some real questions as to the appropriate weight to be attached to various observationsand the inferences that are properly available to be drawn from certain observations. [30] For instance, much was made of the fact that some of the accused’s behaviours were consistent with how they have seen othertraffickers behave. The possession of “boutique” shopping bags as putative containers for the transportation of drugs was an elementmuch talked about. However, on September 24, 2013, Mr.

Sadeghi-Amini was seen exiting the Pender Street address with a jacketwrapped around his left hand. This was described as an effort to hide some item he was carrying when no item was ever seen. [31] The defence argues that this is just one example of when the police engage in inappropriate speculation. [32] On another occasion, the police conclude that a known drug trafficker who appears to visit Mr. Ali-Kashani on October 8,2013, must be reloading his supply of drugs from Mr. Ali-Kashani’s residence.

This was despite the fact that no bags or receptacles areobserved at this time. [33] On October 11, 2013, the police conclude that Mr. Ali-Kashani engages in a suspicious meeting with Mr. Sadeghi-Amini at aCanadian Tire outlet. Well, the evidence reveals that, in fact, the two men’s respective vehicles were observed in the parking lot aroundthe same time. There was never any meeting observed. Det. Battista testified that he drew an inference that there must have been ameeting. [34] With respect to Exhibit C, the grounds to arrest Ms. Rimes, Det.

Battista had included in that document the results of the searchof storage locker associated to her apartment. Of course, this discovery came after Ms. Rimes was arrested. Det. Battista conceded thatthis was a mistake and that he did not, in fact, employ that knowledge in concluding that her arrest was warranted.

Were there Reasonable and Probable Grounds for the Arrests? [35] No one is disputing that trained officers are entitled to draw inferences and make deductions drawing on experience in order toform reasonable grounds to arrest an individual. [36] In relation to how that non-contentious proposition plays out in cases such as this one, our Court of Appeal had this to say in R.v. Messina, [2013] B.C.J. No. 2521 (BCCA): 19 Section 495(1)(

b) of the Criminal Code authorizes an arrest without a warrant if a peace officer has reasonable grounds to believea person has committed an indictable offence. 20 In R. v. Storrey, (SCC), [1990] 1 S.C.R. 241 at 250-251, Mr. Justice Cory set out a two-part test to establishreasonable grounds for an arrest without a warrant. The first step requires the arresting officer to have a subjective, personal belief thatthere are reasonable grounds for the arrest. The second part requires objective justification for the officer's subjective belief.

In assessingobjective justification, the consideration is whether a reasonable person, "standing in the shoes of the police officer, would have believedthat reasonable and probable grounds existed to make the arrest": Storrey. The test requires reasonable probability or reasonable beliefand not proof beyond a reasonable doubt: R. v. Debot, (SCC), [1989] 2 SCR 1140 at 1166. 21 In the recent case of R. v.

Wilson, 2012 BCCA 517, leave to appeal ref'd [2013] SCCA No. 71, Madam Justice MacKenziehelpfully reviewed a number of cases that discuss the appropriateness of considering an officer's experience in assessing the objectivegrounds for detention, arrest and search. At para 21, she stated: [21] In interpreting the Storrey test, this Court has consistently held that an arresting officer's personal experience is relevant to whetherthe officer's subjective belief in grounds to arrest is objectively justified: R. v. To (1998), 109 B.C.A.C. 242; R. v. Juan, 2007 BCCA351, 222 C.C.C. (3d) 289; R. v.

Tran, 2007 BCCA 491, 247 B.C.A.C. 109; R. v. Luong, 2010 BCCA 158, 286 B.C.A.C. 53. [37] The experience of a police officer is clearly a relevant consideration. It does not, however, trump an objective analysis as towhether reasonable grounds to arrest or detain existed in fact. [38] In reference to the necessity of the Crown being required to prove the existence of the objective component on the lower“reasonable suspicion” standard, our Court of Appeal said this in following passage from R. v. Payette, [2010] B.C.J. No. 1741 (BCCA)(Referred to with approval in the R. v.

Chehil, 2013 SCC 49 , [2013] S.C.J 49 (SCC)): 25 While I appreciate the objective reasonableness requirement must be viewed in the light of the investigating officer's backgroundand experience, deference to an officer's intuition must not render the objective element of the inquiry meaningless. [39] In this case, reliance on the two confidential informants who gave information in relation to both accused remaining heresubstantially constituted the grounds for concluding that both were involved in a drug trafficking enterprise. [40] In assessing the reliability of tip information, the relevant circumstances are those which relate to the following factors (set outin R. v.

Garofoli, (SCC), [1990] 2 SCR 1421 and relevant to both the grounds to apply for a search warrant and thegrounds to arrest in this particular case):

a) The degree of detail of the tip;

b) The informer's source of knowledge; and

c) Indicia of the informant’s reliability such as past performance or confirmation from other investigative sources. [41] The weakness of one factor may, to some extent, be compensated for by strengths in the other two factors. See R. v. Debot, (SCC), [1989] 2 SCR 1140 and R. v. Caissey, 2007 ABCA 380 , [2007] A.J. No. 1342 (Alta C.A.)(Affirmed bythe SCC at 2008 SCC 65 , [2008] S.C.J. No. 66).

[42] Det. Battista outlines in the will-says entered as Exhibits A, B, and C on this Voir Dire his grounds to arrest Mr. Ali-Kashani,Mr. Sadeghi-Amini and Ms. Rimes respectively. [43] An officer is entitled to rely on inferences from observations made to justify an arrest under s. 495(1)(b). If the circumstances“objectively support an inference that criminal activity is occurring, a court will be entitled to find justifiable an arrest made pursuant tos. 495(1)(b)”, per Hall J.A. in R. v. Boyd, 2013 BCCA 19 (Also See R. v. Spence, 2011 BCCA 280 , [2011] B.C.J. No. 1110(BCCA). [44] This is not a case like R. v.

Whitaker 2008 BCCA 174 , [2008] B.C.J. No. 725 (BCCA). In Whitaker, the policeattended at a residence to assist in the execution of several search warrants for the property. They were told by a supervising officer thateveryone found in the property was to be arrested. Whitaker was seen coming out of the garage. He, along with others, was arrested fortrafficking in a controlled substance. The accused, Whitaker, was unknown to the constable at the time. His identity and his link to theresidence were only established after the arrest. Whitaker and the others were arrested "because they were there" (para. 55).

The Court ofAppeal concluded that the arrest of Whitaker was unlawful, there being no grounds to support an objectively reasonable belief that hewas connected to any illegal activities going on in the residence or outbuildings. [45] Here, the information supplied by the confidential informants directly relating to the accused here, the observations of theinvestigators with respect to the same accused and the evidence given by Det. Battista lead to a conclusion that for the reasons givenhere and in my ruling with respect to Voir Dire No.1 the grounds to arrest Ms.

Rimes were clearly not established prior to the searchesthat subsequently took place (See also R. v. Chaif-Gust, [2011] B.C.J. No. 2455 (BCCA)). However, for the same reasons I do find thatthere did exist reasonable grounds to arrest Mr. Ali-Kashani and Mr. Sadeghi-Amini. Arrests [46] This was an operation that took place over several months. Eventually, a plan was formulated to execute search warrants at fourtarget residences. Cst. Taguiam confirmed in cross-examination that it was the plan to take into custody any persons found inside thetarget residences.

After detaining any “found-ins” the police would seize any cell phones, keys, or key fobs. He agreed that one of thegoals was to obtain evidence from the targets’ cell phones. He explained that once the police determined the level of involvement ofdetainees then they may be able to return the seized items to them. [47] Det. Battista was asked about this direction as well. He explained that “seizing” cell phone, keys and fobs was a poor choice ofwords on his part. He said that those items would be put aside until there was a determination as to whether those individuals would bearrested or not.

He testified that individuals were not going to be allowed to retain possession of those items until the search wascompleted. [48] Thus, it was known to investigators that suspects would be taken into custody during the execution of the search warrants. [49] Mr. Ali-Kashani and Ms. Rimes were arrested at the apartment associated to Mr. Ali-Kashani. They were taken into custody ataround 7:40 a.m., a few minutes after the search warrant was executed at the West Pender address.

They were read their rights under theCharter at 0741 and 0746 hours respectively. [50] The plan was to transport the accused to the detachment in the police wagon as Det. Battista testified that he did not haveenough manpower to give up members in order to transport the accused. [51] Once the Pender Street address (associated to Mr. Ali-Kashani) was breached, Mr. Ali-Kashani came out in his underwear. Hewas later provided some clothes to wear. Ms. Rimes was also wearing sleeping clothes. [52] Mr. Sadeghi-Amini’s alleged residence was breached at 0735 hours. He was arrested shortly thereafter.

Right to Counsel [53] With respect to access to counsel, it was decided in advance that no one would be granted access to counsel until all of thewarrants had been executed. There was no one officer tasked to facilitate the right to counsel at the scenes. However, Cst. Thompson hadbeen assigned to facilitate access to counsel for the accused once they were taken back to the police station. [54] Det. Battista had already made the determination that there would be a delay in affording the accused access to counsel until allof the search warrants had been executed.

Due to a lack of resources the search warrants could not be executed all at the same time. Det.Battista had determined that there could be an execution conducted at two sites and then they would move on to execute warrants at thenext two sites. [55] A number of reasons were provided for not facilitating access to counsel at the scene:

a) The need to ensure that calls made at the scene are actually made to a lawyer;

b) The potential that a co-accused or accomplice could be “tipped” off by a phone call;

c) The inability to provide privacy for a call to a lawyer;

d) The unavailability of a suitable phone at the scene. [56] Mr. Ali-Kashani did not speak to counsel until 0946 hours. Mr. Sadeghi-Amini was allowed to make his call at 1022 hours andhe received a call-back at 1136 hours. Ms. Rimes made her call at 0951 hours. Mr. Hosseinpour spoke to counsel at 1107 hours. [57] When Mr. Ali-Kashani was asked if he wanted to speak to counsel he answered, “If I have to”. Det. Wu thought that that meanthe would let her know if he wanted to speak to counsel.

[58] At first, the two were held in a stairwell for some 10-15 minutes. They were then moved into a hallway. It was not until 0840hours that they were escorted downstairs in the apartment building in order to be transported to the detachment. The wagon did not comeuntil 0850 hours. This was over an hour after the police had breached the front door to the suite, arrested Mr. Ali-Kashani and Ms. Rimesand placed them into handcuffs. [59] Det. Dwain Mah, a 25 year veteran of the Vancouver Police Department, had attended the briefing around 0400 hours.

He wastasked with dealing with the pre-planned seizures of any vehicles. He also took on the task of dealing with the two arrestees at the PenderStreet address. [60] He described Ms. Rimes as being very distressed about the situation and that Ali-Kashani appeared calm. [61] Det. Mah was questioned, both in chief examination and in cross-examination, as to why the two arrestees were not immediatelytransported to the detachment instead of being held in a stairway and a hallway for over an hour. [62] His evidence was, essentially, that logistics prevented an immediate removal.

He variously described that the suite needed to becleared, the dog needed to be attended to, items that the arrestees requested needed to be found, the wagon needed to be requested, traffichad to be accounted for, paperwork needed to be completed for the wagon driver, that it was not practical, that counsel would beprovided at the detachment, that there were security issues, among other reasons. [63] Under cross-examination, Det. Mah testified that had he been asked by the accused as to why their access to counsel was beingdelayed he would have given them some explanation.

He conceded later, however, that he had already told (pursuant to the directive) theaccused that they would have to wait until they got to the detachment to have access to counsel. [64] Det. Mah agreed that it would have been easy to contact the command room and advise them that he had two in custody but hedid not. He did not wish to interrupt “the plan” and knew that there was already a jail liaison set up for when they did eventually arrive atthe detachment. [65] Det.

Mah seemed to suggest that the delay in getting the accused transported (some 70 minutes) was not particularly lengthy.He testified that the two appeared to be comforting each other and that he didn’t wish to interrupt them. [66] He did say that he was shocked to see that that much time had actually passed when they finally got downstairs to the wagon at0850 hours. [67] Det. Mah conceded that it would be possible to provide a cell phone, confirm that the number being called was counsel and thenpass that phone to the accused in order to facilitate access to counsel. [68] With respect to Mr. Sadeghi-Amini, Sgt.

Sadler testified that he provided the Charter and warning to him around 0730-0745hours. Mr. Sadeghi-Amini said that he would call a lawyer later. At that point, Sgt. Sadler began asking questions such as where Mr.Sadeghi-Amini resided, where he worked, what his date of birth and questions of that nature. He testified that he did not think that therewas any problem with comprehension being exhibited at that time. He had Mr. Sadeghi-Amini in custody at the search scene fromaround 0745 hours until 0905 hours when transport to the detachment was finally effected. [69] Sgt.

Sadler testified that he could not provide access to counsel at the scene as he could not provide privacy at that time. Whenasked whether it was possible to have put Mr. Sadeghi-Amini in one of the police vehicles in order to give him a private phone call, Sgt.Sadler answered, “Anything is possible.” Back at the Station [70] Det. Thompson was the officer tasked with facilitating access to counsel for the accused once they did arrive back at thedetachment. He arrived at the jail at 0830 hours to await the arrival of the accused. [71] Mr. Ali-Kashani arrived at the detachment at 0903 hours.

He was processed and searched. He did not get to make his first callto counsel until 0946 hours. [72] Mr. Sadeghi-Amini arrived at 0920 hours and was first provided access to a telephone at 1022 hours. He left a message forLegal Aid and eventually spoke to someone there at 1136 hours. [73] As an explanation for the delay in facilitating phone calls to counsel, Det. Thompson explained that there were other inmatesgetting access to counsel at the same time. Asked whether it was feasible to jump ahead of others in the circumstances, he testified that itis “kind of first come, first serve”.

He also said that there were a few difficult people in there that had to be restrained although headmitted that that issue only took a few minutes to resolve. Law Relating to the Right to Counsel [74] The importance of facilitating the right to counsel for arrestees and detainees has been confirmed over and over again in thejurisprudence. The right to counsel upon detention is about as fundamental a right as one could possibly have in a free and democraticsociety.

Shortly after the Charter came into force as the supreme law of the land, the police were given some indication supporting thisimportance in a case where prior to a search being conducted the accused was advised of his Charter rights but was not allowed to call alawyer until some time after the scene was under control (See R. v. Strachan, (SCC), [1988] S.C.J. No. 94 (SCC)). [75] Subject to concerns for officer or public safety, the police have a duty to inform a detainee of his or her right to retain andinstruct counsel, and a corresponding duty to facilitate that right immediately upon detention (See R. v.

Suberu, 2009 SCC 33 ,[2009] S.C.J. No. 33 (SCC)).

[76] The exigencies of the circumstances of an arrest should be considered when determining if the delay in facilitating the s. 10(b)right was reasonable (See R. v. Patrick, 2017 BCCA 57 , [2017] B.C.J. No. 188 (BCCA). [77] However, it is equally clear that, where feasible, the police are constitutionally obligated to take positive and advertent steps tofacilitate the implementation of the right to counsel (See R. v. Taylor, 2014 SCC 50 , [2014] S.C.J. No. 50 (SCC)). [78] The execution of these search warrants was the subject of much pre-planning. The PowerPoint presentation (Exhibit

H) that wasemployed to brief the officers to be involved in the searches indicates as much. Decisions were made in advance as to who was to besubject to arrest and for what offences they were to be arrested. Officers were individually assigned certain tasks.

This was clearly not asituation (as was present in many of the cases provided by the Crown) in which there were unanticipated exigent circumstances thatjustified certain delays in implementing important Charter rights. [79] The evidence in this case reveals a distinct lack of planning with respect to just how the police were going to facilitate theaccused’s right to counsel in this controlled and pre-planned execution of search warrants and expected arrests. [80] Cell phones are universally ubiquitous even in the poorest of nations.

Even if the argument could be made that the police werejustified in not allowing the accused to use their own phones or the personal phones belonging to the police to contact counsel at thescene due to officer safety concerns, there is no explanation as to why the police did not bring with them a phone that the accused couldhave used for that specific purpose. [81] As Mr. Justice Butler concluded in R. v. Hamdan, [2017] B.C.J. No. 552 (BCSC) at para. 41: 41 What sets this case apart, however, is that the RCMP officers went to Mr. Hamdan's apartment with the benefit of planning andpreparation.

They knew they were going to arrest Mr. Hamdan for serious terrorism-related offences. Unlike in Taylor, they had everyopportunity to mitigate the "privacy and safety risks" by bringing a phone to facilitate contact with counsel that did not contain secure orconfidential information. An accused has the right to speak with counsel "immediately", subject only to concerns of "officer or publicsafety". The police are presumed to be aware of this principle.

They cannot point to "risks" that arise from their own lack of planning tojustify a delay in implementing the access to counsel. [82] The evidence reveals that there was no real thought given to how the accused’s right to counsel was going to be facilitated at thescene. There was also no real plan in place as to how the police were going to facilitate the timely transport of these individuals to thedetachment.

With respect to pre-planned operations such as this one, it seems reasonable to expect some thought to have gone into howCharter rights will be properly and expeditiously accorded to expected detainees. [83] I accept that there were legitimate concerns regarding the timing of the search warrant executions and the police did not wishthe accused to have the opportunity to “tip” off any other accused prior to all of the warrants being executed.

However, a police suppliedcell phone can be employed with safeguards in place to prevent the accused from speaking to anyone but counsel. [84] It is an accepted proposition that the police cannot create an exigent circumstance either through a pre-planned course ofconduct (or through an inexplicable lack of planning) that serves to create a situation justifying what would otherwise be a clear breachof important Charter rights (See R. v. Silveira, (SCC), [1995] S.C.J.

No 38 - Justice LaForest in dissent at para. 53). [85] Even if I am wrong in concluding that with some simple planning the accused could have properly been afforded a call tocounsel within minutes of their arrests at their respective arrest scenes, the last warrant was executed at the Barclay address at 0820hours. Very shortly after that the scenes were secured. At least from this moment on there was no longer a legitimate argument to makethat safety concerns related to the searches prevented the accused from being allowed to exercise their right to counsel. [86] Mr. Ali-Kashani and Ms.

Rimes were detained at the scene for over an hour before they were transported. They were nottransported until half an hour after the last address was entered. For over an hour the police were waiting for a transport wagon. Nocompelling or reasonable explanation was offered as to why the police could not have arranged for a police vehicle to be specificallyassigned for the purpose of providing transportation back to the detachment in a much timelier manner. [87] By 0745 hours, Mr. Sadeghi-Amini was also in custody. The residence that he was associated to was entered at 0737 hours.

Theanalysis is the same with respect to his arrest and facilitation of his right to counsel. [88] There was a further delay in implementing the right to counsel back at the detachment. Cst. Thompson had been tasked withproviding the accused telephone calls to counsel. The explanation of the delay to achieving this important task was not persuasive at all.The evidence is that there were others that were essentially “ahead in line”. Again, the lack of planning is evident. The police shouldhave known the importance of timely compliance with the right to counsel requirement.

Again, there is no explanation as to why theaccused were forced to wait given the circumstances where they knew a delay was already extant. [89] As Madame Justice Maisonville concluded in the case of R. v. Arthur, [2013] B.C.J. No. 885 (BCSC), at paras. 56-57: 56 Corporal Powell was not entitled to suspend Mr. Arthur's immediate right to speak with counsel for fear of losing evidence. Atleast from the point he was in the Burnaby detachment, the police could have ensured that Mr. Arthur was speaking only to his counsel.There was no risk that he would inform any of Mr.

Arthur's associates to destroy evidence. 57 I note this is not a determination that Corporal Powell was not credible in his testimony. Rather, it is concluding that his reasonsprovided to the court did not establish a valid basis to delay access to counsel. [90] Later in that decision, Justice Maisonville states at para. 114: 114 I note that this conclusion should not be read as a general statement that officers are not required to facilitate access to counsel at aroadside detention or arrest. What constitutes reasonable access will vary with the circumstances of each case. On a less busy road or in a

more controlled situation, it may have been reasonable to facilitate roadside access to counsel when a phone is available. [ 91 ] The time has come for police agencies who are involved in carefully pre-planned arrests of individuals to take greater care in including in those plans a method and means as to how the important right to counsel obligations will be facilitated.

It will no longer be sufficient to recite a litany of justifications after the fact that could have been addressed with a little planning had investigators put their mind to easily foreseeable and expected issues. [ 92 ] I find that there was a serious breach of the accused’s right to counsel in the circumstances of this case as outlined above. Vehicle Seizure and Searches [ 93 ] The accused argue that there were serious breaches of s. 8 that occurred when various vehicles associated to the accused in this case were seized without warrant.

It is important to note that none of these vehicles were the subject of any search warrant applications. This, despite the allegations by the police that some of these vehicles were being actively used to facilitate the movement of drugs in this operation. [ 94 ] According to Cst. Taguiam, a decision had been made by the lead investigator, Det. Battista, that the vehicles were to be seized as either offence related property (pursuant to s. 11(6)(

c) and s. 11(8) of the Controlled Drugs and Substances Act ) or as proceeds of crime (pursuant to s. 489(1) of the Criminal Code ). [ 95 ] There was a Mercedes, Volvo and a Harley Davidson motorcycle (associated to Mr. Ali-Kashani) seized. In addition, there was a Toyota Corolla and a BMW 323i associated to Mr. Sadeghi-Amini seized. In addition, Furthermore, there was a Porsche Cayenne and an Acura TL associated to Mr. Hosseinpour also seized (and later returned to him). [ 96 ] Cst. Taguiam confirmed that these vehicles were the subject of cursory searches prior to the towing company taking them away.

He explained that they did this in order to ensure the vehicles were free of weapons and other items that may cause a safety issue for the people who would be handling those vehicles. He testified that searching those vehicles was not, in fact, part of any plan and he was not personally aware of other searches that had been conducted after the vehicles had been towed away. [ 97 ] He also agreed that there was no unlawful activity that could be attributed to the Mercedes, the Porsche Cayenne and the BMW. [ 98 ] Det.

Battista had made the determination in advance of any search warrant application that all the vehicles would be seized as either Proceeds of Crime or Offence Related Property. He assigned Det. Mah to handle this task. [ 99 ] Det. Battista agreed that the vehicles were subject to various searches after the date of the execution of the warrants.

However, he denied that any searches that would ultimately take place with respect to those vehicles were made with the intention of obtaining any useable evidence. [ 100 ] It should also be noted that these vehicles were either found outside of the accused’s alleged apartment buildings or in the underground parking lots associated with those buildings. [ 101 ] Det. Battista agreed that the Harley Davidson motorcycle was going to be the subject of a civil forfeiture application. He characterized it as “proceeds of crime”. The basis for this opinion was that the police did not know what legitimate income Mr.

Ali- Kashani may be making. He testified that if investigation revealed that the motorcycle was legitimately purchased they would return it to him. [ 102 ] Again, Det. Battista denied having knowledge that the vehicles were going to be subjected to further searches. [ 103 ] When asked about his authority for seizing the Corolla and BMW associated to Mr. Sadeghi-Amini, Det. Battista said that they were both initially searched incident to arrest but seized as either Proceeds of Crime or Offence-Related Property. [ 104 ] Det. Mah was asked to deal with these seized vehicles.

He was deemed to have a significant degree of expertise in this area. He testified that he did provide some guidelines to the investigator in this case (Det. Battista). However, he confirmed that it was Det. Battista who ultimately made the decision as to what vehicles to seize. [ 105 ] He had come back to the search scene at Pender Street around 2:30 p.m.

He obtained the keys and fobs for the Volvo and the Mercedes, called for tow trucks and arranged to have the Harley towed from the underground parkade. [ 106 ] When asked about his authority for taking these vehicles he answered that all could be seized under s. 11(6) of the Controlled Drugs and Substances Act (Offence Related Property) and also under s. 489(1) of the Criminal Code (Proceeds of Crime). Det. Mah testified in re-examination that he really had no

part in the criminal investigation. In his mind his searches were part of an inventory search. He intended to conduct a search whether the vehicles were going to be returned or not. [ 107 ] Det. Mah filled out Form 5.2’s (Return to a Justice - Exhibit D). Those documents indicate that he concluded that the Mercedes, the Volvo, the Corolla and the BMW were to be characterized as Offence Related Property and that the Harley was seized as Proceeds of Crime . [ 108 ] He characterized the first search of the seven vehicles seized as being “incident to arrest”.

He said he also conducted an “inventory” search to make sure that there was no contraband or weapons. He testified that nothing found would be used as evidence. [ 109 ] He testified that his intention was to seek forfeiture of all these vehicles. [ 110 ] Det. Mah agreed that further searches took place on November 7 th , 2013. He had contacted the canine unit on November 5 th and asked for assistance in these searches. He also had contacted a CBSA officer who had some expertise in locating hidden compartments.

[111] As it turns out, the search that Det. Mah conducted on the rented Volvo was the second search of that vehicle on November 7th.Det. Taguiam and Det. Battista had already searched the Volvo prior in the day. The search that Det. Mah was involved in was assistedby the canine unit. [112] Det. Mah confirmed that there were some narcotics located in a compartment located in the rented Volvo that was going to bereturned to the rental company. Exhibit E is the 5.2 Form that was prepared by Det. Hill. Det.

Mah agreed that this form appears to befilled out in a fashion that contemplates an application to retain the narcotics for the purposes of investigation or trial. There was nocompelling explanation as to why this form was filled out in this manner if the plan was simply to destroy any items found. [113] Det. Mah also conceded that he was seizing the Harley to see if forfeiture could be justified. He gave evidence that once thevehicle is seized he would conduct further investigation to determine if there was a basis for civil forfeiture. [114] Cst.

Hill testified that he understood that a Form 5.2 was to be filled out whether the items discovered were to be held forevidence, returned or destroyed. However, he conceded on cross-examination that in this case he did fill out the form as if the items wereto be retained for use in evidence. [115] He said he didn’t receive the narcotics from Det. Battista that were found in the Volvo until November 20, 2013, several weeksafter they were discovered.

Law Relating to Seizure of the Vehicles [116] It is conceded that there are situations where the seizure of evidence is warranted even in situations where there is no priorjudicial authorization. [117] In Hunter v. Southam, (SCC), [1984] S.C.J. No. 36 (SCC) Dickson J., speaking for the court, recognized thatthere might be exceptions to the requirement that a search warrant be obtained (at 161): I recognize that it may not be reasonable in every instance to insist on prior authorization order to validate governmental intrusions uponindividuals' expectations of privacy.

Nevertheless where it is feasible to obtain prior authorization, I would hold that such authorization isa precondition for a valid search and seizure. [118] In the case at bar there was a purposeful decision not to include the vehicles that were expected to be found near the targetsubjects residences in the search warrant application. [119] The police specifically rely upon s. 11(6)(

c) and s. 11(8) of the Controlled Drugs and Substances Act (offence related property)and/or s. 489(1) of the Criminal Code (proceeds of crime or offence related property) as authorizing the seizure of the vehicles inquestion. [120] Section 11(6) of the CDSA reads: Seizure of things not specified

(6) A peace officer who executes a warrant issued under subsection (1) may seize, in addition to the things mentioned in the warrant, (

a) any controlled substance or precursor in respect of which the peace officer believes on reasonable grounds that this Act has beencontravened; (

b) any thing that the peace officer believes on reasonable grounds to contain or conceal a controlled substance or precursor referred to inparagraph (a); (

c) any thing that the peace officer believes on reasonable grounds is offence-related property; or (

d) any thing that the peace officer believes on reasonable grounds will afford evidence in respect of an offence under this Act. [121] Subsection 7 of that same provision reads: Where warrant not necessary

(7) A peace officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions forobtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one. [122]

Section 489 of the Criminal Code reads: Seizure of things not specified 489.

(1) Every person who executes a warrant may seize, in addition to the things mentioned in the warrant, any thing that the personbelieves on reasonable grounds (

a) has been obtained by the commission of an offence against this or any other Act of Parliament; (

b) has been used in the commission of an offence against this or any other Act of Parliament; or (

c) will afford evidence in respect of an offence against this or any other Act of Parliament.

Seizure without warrant

(2) Every peace officer, and every public officer who has been appointed or designated to administer or enforce any federal or provinciallaw and whose duties include the enforcement of this or any other Act of Parliament, who is lawfully present in a place pursuant to awarrant or otherwise in the execution of duties may, without a warrant, seize any thing that the officer believes on reasonable grounds (

a) has been obtained by the commission of an offence against this or any other Act of Parliament; (

b) has been used in the commission of an offence against this or any other Act of Parliament; or (

c) will afford evidence in respect of an offence against this or any other Act of Parliament. [123] In this case, the seizure and searches of the vehicles, having been performed without prior judicial authorization, are presumed tobe unreasonable and it is up to the prosecution to rebut the presumption on a balance of probabilities. [124] There is some authority for the proposition that s. 489 is a self-contained provision, separate from the plain view doctrine. Thus,it does not require the police to meet all of the requirements of the plain view doctrine (See R. v. Frieburg, [2013] M.J.

No. 163 (ManC.A.) - leave to appeal refused [2013] S.C.C.A.

No. 324). [125] However, clearly a plain reading of the Sections relied upon in the entirety of their contexts and recognizing the non-contentiouslaw relating to the importance of prior judicial authorization before seizures except in limited circumstances, militate towards a findingthat these provisions were never meant to authorize seizures in situations like the one in this case. [126] The Sections referred to are clearly intended to deal, for the vast majority of situations, with inadvertent discoveries of evidenceand the laudable goal of preserving that evidence in unanticipated situations where some other lawful action by the authorities is beingundertaken. [127] The Supreme Court of Canada has also given some strength to the inadvertence requirement in R. v.

Law, 2002 SCC 10, [2002] S.C.J. No. 10 (SCC), where they dealt with an argument that the evidence in that case was discovered inadvertentlywhen it came within the view of a lawfully positioned officer. [128] The asserted Sections shift the onus on the Crown from demonstrating the required grounds to seize from prior to the seizure toafter the seizure. [129] Notwithstanding my finding above that the Sections in question largely deal with the discovery of evidence during the course ofotherwise lawful activity, I accept that these Sections are not solely confined to the “inadvertent” discovery of other evidence.

However,the parameters of a search pursuant to these Sections cannot be without limit. [130] In R. v. Sipes, [2011] B.C.J. No. 2761, the police seized a number of things including, computers, during the search. Thecomputers had not been part of the prior authorization request. The defence argued that once the police “discovered” the computer andother evidence they were required to obtain another search warrant.

Section 489 was raised in this context. [131] The court reviewed the plain view doctrine at para. 203: The history, wording and stated purpose of s. 489 of the Code all support that the

section is not merely a codification of the plain viewdoctrine. Rather, s. 489(1) of the Code authorizes the police to seize things they find during a lawful search without delaying to apply foranother warrant. This

interpretation is consistent with decisions from our Court of Appeal (Yue, (BC CA), [1995]B.C.J. No. 1619, and Daigle) and the Alberta Court of Appeal (Makhmudov, [2007] A.J. No. 847). [132] Justice Smart said this, at paragraphs 204-210, about the purpose of s. 489: 204 The

section delegates to the police the authority to seize evidence not authorized by the warrant provided they have the requiredreasonable grounds to do so. It shifts the onus of demonstrating the required grounds to after the search rather than before. It is, in thissense no different than the plain view doctrine. The

section does not require the police to obtain a second warrant when they "discover"things not authorized by the warrant, but the discovery must be made in the course of searching for the things that are authorized by thewarrant. This is again consonant with the first requirement of the plain view doctrine: namely, the officer must lawfully be in theposition from which he or she discovers the evidence that is plainly in view. 205 A search warrant permits the police to enter a place to search for the things authorized by the warrant. The search must beconducted in a manner consistent with the things authorized.

For example, if the warrant only authorized the police to search for a 51"television set, it would not be reconcilable for the police to search the drawers of a desk. If they did and found a quantity of drugs, s.489(1) of the Code would have no application because the television could not have been secreted in a desk drawer. 206 To permit a more extensive search than that necessary to search for the things authorized by the warrant would be inconsistentwith the purpose of s. 8 of the Charter and the principles articulated in Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R.145, 14 C.C.C. (3d) 97.

Otherwise, once in the place to be searched, the police could search anywhere and for anything. This wouldresult in a very significant intrusion into the privacy interests of the occupants and permit the police to engage in a "fishing expedition" tosee what evidence they might find relating to any offence, committed at any time, by anyone, without pre-authorization and withoutestablishing reasonable grounds to do so. 207 The question still remains, however, of whether s. 489 of the Code only applies when the police inadvertently find the evidence orcontraband.

In other words, if the officer thought he or she might find the contraband or evidence in advance of discovering it, does thesection still permit its seizure?

208 In Daigle and Yue the British Columbia Court of Appeal held that a search did not become "unreasonable" because the police alsoanticipated or expected to find evidence of other offences not identified in the warrant. The Court made this clear at para. 5 of Yue: I add to what the trial judge has said by referring to the submission made in the respondent's factum that the lawful search for the itemslisted was not converted into an unreasonable search simply because the officers expected or hoped that counterfeiting and goodsobtained through credit card fraud might be found as well as those items listed.

The authority for that proposition is R. v. Annett (1984), (ON CA), 6 O.A.C. 302; (SCC), 17 C.C.C. (3d) 332 (C.A.). I agree with this submission. 209

Section 489 of the Code is not confined to "inadvertent" discovery of other evidence. The police may seize things not authorizedby the warrant when they are found during a search for the things that are authorized. This is so even though the police considered beforethe search that additional things may be found. 210 While s. 489 of the Code enhances efficient law enforcement, it does create the potential for abuse if the

section is misused. Asearch warrant must not be used as a "Trojan Horse" to enter a place to search for things not disclosed in the ITO. In other words, theprimary purpose of the warrant must be to search for the things that are authorized by the warrant, not to search for things that are not. [133] The Sipes case (above) does little to assist the Crown in this case. The investigators in this case at bar had carefully consideredthe vehicles that they knew would be present in advance of any search warrant execution.

Specific plans were put in place to seize andsearch (if only in a limited manner) these vehicles without any prior judicial authorization. Det. Mah gave evidence that an investigationwould take place after the seizure in order to determine just how to characterize the vehicles and to determine how they would lawfullyproceed in relation to the vehicles. [134] The potential abuse that was referred to by Mr. Justice Smart was clearly evident in this case. The stated purpose, formulated inadvance, and made part of the pre-planning that took place, included seizing the vehicles.

There was no attempt whatsoever to seek toinclude these items in any request for judicial authorization. These Sections (both under the Criminal Code and the Controlled Drugsand Substances Act) were not, I conclude, meant to cover the advertent decisions that were made in this case. [135] There was also evidence here that Det. Mah was involved in the seizure of the vehicles as part of his intended investigationunder the Civil Forfeiture Act (provincial quasi-criminal legislation).

Of course, this Act cannot be construed to permit the director toseek to forfeit property unless it is the proceeds of unlawful activity or an instrument of unlawful activity (See Director v. Boyer, [2016]B.C.J. No. 1914 (BCSC). [136] In this case, Det.

Mah testified that he intended to conduct an investigation into the vehicles and then later characterize them aseither offence related property or proceeds of crime either under the Criminal Code, Controlled Drugs and Substances Act or the CivilForfeiture Act. [137] It should also be noted that the Criminal Code does provide for a Special Search Warrant to be issued when there are grounds tobelieve that property may be properly characterized as proceeds of crime (see s. 462.32).

There is no evidence whatsoever that theseprovisions were ever considered by the investigators in this case. [138] In short, the Crown has not rebutted the presumption of the unreasonableness as it relates to the seizure and subsequent searchesof the vehicles in question in this case. The seizure and searches of the vehicles in this case constituted a clear violation of both Mr. Ali-Kashani’s and Mr. Sadeghi-Amini’s rights under s. 8 of the Charter.

SUMMARY [139] The arrests of Mr. Ali-Kashani and Mr. Sadeghi-Amini were lawful. No breach of s. 9 was established in this case. The arrest ofMs. Rimes was not lawful and in violation of her rights under s. 9 of the Charter. [140] There was a breach of the accused’s right to counsel in contravention of s. 10(

b) of the Charter in this case. [141] The vehicles seized in this case were seized (and searched) in violation of the accused’s rights under s. 8 of the Charter. [142] The parties had agreed not to deal with the issue of the admissibility of any impugned evidence (under s. 24(2)) until after thesefindings were made. ________________________________ The Honourable Judge David St. Pierre Provincial Court of British Columbia INDEX R. v. Storrey, (SCC), [1990] 1 SCR 241 R. v. Lahtinen, 2011 BCPC 490 , 2011 BCPC 0490 R. v. Rezaie et al, 2014 BCPC 195 , 2014 BCPC 0195 R. v. Patterson, 2006 BCCA 24 R. v. Budd, [2009] BCJ No 2598 R. v. Montgomery, 2013 BCSC 1010

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