R. v. Ghani, 2022 BCPC 172

Citation: R. v. Ghani 2022 BCPC 172 Date: 20220825 File No: 255187-2C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. HASSAAN MUHAMMAD GHANI REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P.M. BOND Counsel for the Crown: T.J. Cook Counsel for the Defendant: C.S. Johnson, Q.C. Place of Hearing: Vancouver , B.C. Dates of Hearing: June 27, July 15 and August 25, 2022 Date of Judgment: August 25, 2022

[1] This trial commenced on April 29, 2022 with the evidence of two officers Constables Diguangco and Kemp, who testified aboutthe circumstances of the arrest of Mr. Ghani on June 4, 2020. [2] The officers testified that they were on duty in plain clothes, in an unmarked police vehicle on East 27th Avenue, a quarter blockwest of the intersection with Windermere Street. [3] They saw Mr. Mahar pull over his vehicle on Windermere, approximately a quarter block north of the intersection with East 27th Avenue. Mr.

Mahar was on his cell phone, and then left the vehicle looking left and right, as though watching for someone to arrive. Constable Diguangco testified that Mr. Mahar walked eastbound on 27th for one-half block, and then returned to his vehicle. He couldsee that Mr. Mahar was again on his phone. [4] After about five minutes, a white Mini Cooper arrived, travelling southbound on Windermere Street from E. 26th Avenue. Itdrove two to three car lengths past Mr. Mahar’s vehicle and then stopped and began reversing. Mr. Mahar walked to the driver’s side ofthe vehicle. [5] Constable Diguangco said that Mr.

Mahar reached into the Mini Cooper with a paper item, possibly money. He testified thatthere was not a lot of dialogue between Mr. Mahar and the driver of the Mini Cooper. [6] The Constables believed they witnessed a drug deal for the following reasons: 1. Mr. Mahar was on the phone; 2. He appeared gaunt and his hair was not styled or neat; 3. He appeared to be waiting for someone to come, but was unsure what direction that person would come from; 4. He reached into the vehicle with a paper-like item and they believed he received something in exchange; and 5.

The meeting lasted only five seconds, apparently, with no pleasantries exchanged. [7] The officers immediately approached the vehicles and arrested the occupants. [8] Constable Diguangco searched Mr. Ghani incident to arrest and did not locate anything of note. He searched the Mini Cooperand located an iPhone and a Samsung smartphone. Constable Diguangco made note of four calls to the iPhone in just over an hours’time.

He testified the calls were consistent with people ordering drugs. [9] The police also located $1,820 in a wallet in the map book pocket and two $50 bills in the cup holder. [10] No drugs were found on Mr. Mahar or his passenger and they were released. The officers believed the two had ingested anydrugs in their possession. [11] Mr. Ghani was subsequently strip searched and drugs were located on him, including cocaine, heroin and fentanyl. [12] The issues are: 1. Whether the detention and arrest of Mr. Ghani was lawful or contrary to

section 9 of the Charter; 2. Whether Constable Diguangco had lawful grounds to search Mr. Ghani and his vehicle without a search warrant, or if the search wasin violation of s. 8 of the Charter; and 3. Whether in all of the circumstances, the admission of any evidence seized by the police on June 4, 2020 should be excluded, pursuantto section 24(2) of the Charter.

Detention and Arrest [13] Section 495(1) of the Criminal Code of Canada provides that a peace officer may arrest a person who has committed anindictable offence, or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence, without awarrant. [14] In this case, defence counsel argues the officers have not met the subjective or objective component of the reasonable grounds asrequired by R. v. Storrey, (SCC), [1990] 1 S.C.R. 241. The subjective component of the test is by its very nature broadin scope.

The objective component requires the Court to find that a reasonable person in the position of the officers would also concludethat there were reasonable and probable grounds for the arrest. I am going to focus on this portion of the test in this decision. [15] Reasonable grounds requires more than a reasonable suspicion. The Supreme Court of Canada has defined this as a crediblybased possibility that the individual was involved in a crime.

In the spectrum of certainty, suspicion or mere suspicion falls belowreasonable grounds and the civil standard of proof on a balance of probabilities exceeds reasonable grounds. Such grounds have alsobeen referred to as reasonably probable or highly suspicious. [16] The Court must find the totality of circumstances known to the officer at the time of the arrest, seen from the perspective of areasonable person with comparable knowledge, training and experience as the arresting officer, are capable of supporting the belief thatgrounds for arrest exist. [17] In R. v.

Gill, 2021 BCSC 548, Justice Ahmad noted that in assessing objective justification, it is not necessary to follow a

checklist approach and the absence of certain common indicia of dial-a-dope operations are to be considered neutral. Relying on R. v.Gill, 2015 BCSC 310 at paragraph 49, the Justice also noted that the police are not required to rule out all possible innocent explanationsfor the conduct. [18] In R. v. Oyston, [2019] B.C.J. No. 295, at paragraph 95, the Court notes that the vantage point of the officer “must be that of a‘prudent, reasonable and cautious police officer, similarly experienced as the arresting officer’ rather than from the vantage point of anordinary citizen” (quoting R. v.

Pope, 2015 BCSC 2391, at para 58, which cites R. v. Messina, 2013 BCCA 499, at para. 24). [19] As noted by Judge St Pierre of this Court in R. v.

Lahtinen, 2011 BCPC 490, the “reasonable person, standing in the shoes of apolice officer” does not mean a police officer who holds an overly negative view of human behaviour and observes “everyday actions…made through such a jaded lens that otherwise benign activity is precipitously characterized as criminal”. [20] The totality of the circumstances known to the officers includes the officer’s prior personal knowledge and experience and aswell as any direct observations the arresting officer has made prior to the actual arrest.

All of the circumstances are considered, in light ofthe fact that police officers are often required to make split second decisions in fluid and potentially dangerous situations. [21] As Crown Counsel points out, these officers have engaged in hundreds of drug investigations in the course of their careers. Theyhave been members of the RCMP for some 15 years and have partnered together for most of those years. They have similar experienceand knowledge of dial-a-dope investigations.

As they describe them, the buyer waits at a predetermined location; the seller meets therefor a short exchange and they then go opposite ways. Defence Cases: [22] The defence relies on the case of R. v. Oyston, (as above), in which there was only one interaction observed. The accused wascharged with possession for the purpose of trafficking and the issue was whether the police had grounds for the arrest. The facts are verysimilar; however, in Oyston, the officers were conducting surveillance on a possibly stolen vehicle.

They were 25 feet from theintersection and saw a car driving slowly toward them as if looking for someone or an address. The officers formed their grounds toarrest. [23] They then watched the vehicle drive past them, do a U-turn and travel past them again in the other direction. It turnednorthbound before a person approached and they witnessed an exchange with a person on a skateboard, 25 to 50 yards away. Theofficers testified that a green item, which they believed to be a $20 bill, was exchanged for something small, which the recipient tuckedin his hat.

The officers had no information about the driver, the occupants nor the skateboarder. [24] The Court noted at paragraph 45 that the power to arrest is a very significant power, which deprives individuals of their freedom.At paragraph 59, the Court found that the evidence in Oyston was woefully lacking in context and detail. This was in part because of thepaucity of the officer’s notes, and the distance and consequent lack of detail of the officers’ observations.

The Court found that while theofficers had a subjective belief that an offence was committed, it was not objectively reasonable. [25] Counsel refers to paragraph 85 of Oyston, in which the Court notes that if an observation of a possible hand–to-hand transactionis lacking in quality and detail, then the observation of multiple possible transactions may compensate for that lack. Crown Cases: [26] I have read and reviewed all of the Crown’s cases. Each case is unique on its facts and all involved a single or small number oftransactions. I do not accept that the case of R. v.

Phan, , is similar to the circumstances before me, given that theofficers were surveilling from a fire escape on the east side of Carnegie Centre, near the corner of Main and Hastings in Vancouver, anarea well known to the officers as a high drug trafficking area. [27] Likewise, in R. v. Tran, 2007 BCCA 491, the officers were surveilling a habitual drug user. They had been advised that after arecent release from jail, he was engaging in drug use and property crimes. In both Phan and Tran, the officers had a sound basis for theirbelief that they were witnessing trafficking. [28] In R. v.

Gill, 2015 BCSC 310, the officer saw the exchange of items in a baggie for money in a van parked one parking spacefrom the constable’s vehicle, and had reason to believe a second transaction was in progress when the constable approached the van toperfect the arrest. [29] In R. v. Wan, 2008 BCSC 268, the initial exchange witnessed by the officers raised their suspicions. The fact that they saw asecond person approach the vehicle a short time later heightened their suspicions. The Judge found that was sufficient to form objectivelyreasonable grounds. Application to Mr. Ghani [30] In Mr.

Ghani’s case, the officers had no information about Mr. Mahar, his passenger or Mr. Ghani. They did not testify that therewas any reason to suspect that drug trafficking would be conducted in the area. Furthermore, they had no information about the vehiclesin question, other than that the registered owner of the vehicle Mr. Mahar was driving was a resident of Burnaby. [31] Constable Diguangco noted in his report to Crown that they “conducted surveillance since vehicle not resident in area; R.O. livedin Burnaby”. This suggests that the fact the Mahar vehicle was from Burnaby, alone, was of some significance.

At trial, the Constablestated that a vehicle from Burnaby parking in a neighbourhood that it did not belong to was suspicious. Given the geographic proximityof Burnaby and East Vancouver, I have difficulty with that proposition, especially since there was nothing significant about the area thevehicle was parked in. [32] Constable Diguangco also testified that Mr. Mahar was “gaunt”, and his hair was not styled or neat. He suggested that the

passenger in Mr. Mahar’s vehicle also appeared “gaunt” and had messy hair, although she never left the vehicle and the officers were parked 60 to 80 feet away. The officers drew the conclusion from their impression of Mr. Mahar and his passenger that they looked like drug users. [ 33 ] Mr. Mahar appeared before the Court to testify in this matter. He appeared as a thin man, with his hair cut short.

On that day, he did not look gaunt, unkempt and unhealthy as some drug users do, however, that was almost two years after these events on a scheduled appearance to testify. [ 34 ] The remaining reasons for the officers’ interest in Mr. Mahar included that he was using a cell phone, and appeared to be waiting for someone to come, but it seemed to the officers that he was unsure of which direction they would approach from. [ 35 ] The interaction with the driver of the Mini Cooper lasted a matter of seconds. The officers saw the Mini Cooper drive past Mr. Mahar’s vehicle, and then back up, as Mr.

Mahar approached the driver’s side. They saw Mr. Mahar reach into the Mini Cooper with something small in his hand. [ 36 ] The evidence as to whether they saw the driver of the Mini Cooper hand anything back to Mr. Mahar was inconsistent; however, I find on the totality of the evidence that they did not see him give anything to Mr. Mahar.

Nonetheless, the officers formed the opinion at the time, that he did so. [ 37 ] I find in the circumstances before me that the evidence of a hand-to-hand transaction is lacking in quality and detail. [ 38 ] In the result, I have to conclude that the officers did not have objectively reasonable and probable grounds to arrest Mr. Ghani, Mr. Mahar or his passenger. There was nothing significant about the fact that Mr. Mahar’s vehicle was from Burnaby that should draw police attention.

Likewise, there is nothing significant about pulling over and using a cellular telephone in public that should raise concerns, even if one is driving a car from Burnaby. When combined with the appearance of drug users as the officers described, these circumstances may raise a mere suspicion in the minds of trained police officers, however, there can be many explanations for such an appearance other than drug addiction. [ 39 ] Furthermore, the officers were so far away from the interaction that they could not read Mr. Ghani’s license plate and only saw Mr. Mahar pass something to Mr. Ghani.

This is consistent with Mr. Mahar’s evidence that he was repaying a debt to Mr. Ghani whom he previously worked with. Constables Diguangco and Kemp could not see the level of detail that came anything near to that seen by the Constable in the 2015 Gill decision (as above). [ 40 ] I recognize that dial-a-dope operations are of concern to the community, particularly given the current crises arising from the distribution of unsafe drugs. There is no question that the police need to be on the watch for such activity.

Nonetheless, given the breadth of police officers’ powers to interfere with a citizen’s liberty and the potential consequences of the exercise of that power, it cannot be exercised on a whim or intuition alone, in the absence of an immediate risk to public or police safety. [ 41 ] I find that in this case, a prudent, reasonable and cautious police officer, similarly experienced as the arresting officers, would have sought out further information to confirm their intuition was correct before embarking on the arrests. In the result, I find that the arrest of Mr.

Ghani was contrary to his rights under s. 9 of the Charter not to be arbitrarily detained or imprisoned. [ 42 ] The searches that followed of Mr. Ghani’s vehicle and person, including the strip search conducted back at the detachment, were all conducted incident to arrest. As such, they contravened s. 8 of the Charter . Section 24(2) [ 43 ] Defence counsel applies to exclude the evidence obtained during the searches performed incident to the arrest of Mr. Ghani. This includes:

a) Money found in Mr. Ghani’s vehicle;

b) An iPhone at the foot of the driver’s seat area;

c) A silver Samsung smartphone in the centre console; d) 14 pieces of rock cocaine weighing 1.6 grams; e) 3 pieces of rock cocaine weighing 0.63 grams; f) 3 pieces of heroin/fentanyl weighing 0.71 grams; g) 2 pieces of fentanyl weighing 0.26 grams; and h) 1 piece of heroin/fentanyl weighing 0.55 grams. Governing Principles – s. 24(2) of the Charter [ 44 ]

Section 24 of the Charter provides that anyone whose rights or freedoms, as guaranteed by the Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy, as the court considers appropriate and just in the circumstances (24(1)).

Furthermore, where a court concludes that the police obtained evidence in a manner that infringed or denied any rights or freedoms guaranteed by the Charter , the evidence shall be excluded if it is established that, its admission in the proceedings would bring the administration of justice into disrepute (24(2)). [ 45 ] I note that in R. v. Grant , 2009 SCC 32 , the Court comments on the “twin principles of purposive and generous

interpretation”,

stating that: “the purpose of a right must always be the dominant concern in its

interpretation; generosity of

interpretation is subordinateto and constrained by that purpose.” [46] The purpose of

section 9 of the Charter is to protect individual liberty from unjustified state interference (Grant, para 20). Thefocus is on the individual applicant’s rights and breaches of his or her rights. [47] The Supreme Court of Canada in R. v. Grant, (as above) set out the test to determine whether evidence should be excluded in theface of Charter violations. The Court is to consider: 1. The seriousness of the Charter infringing state conduct; 2. The impact on the Charter-protected interests of the Accused; and 3.

Society’s interest in an adjudication of the case, on the merits. [48] Expanding on the test, the Court stated: • At the first stage, the court shall consider the nature of the police conduct that infringed the Charter and led to the discovery ofthe evidence.

The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts todissociate themselves from that conduct - by excluding evidence linked to that conduct, in order to preserve public confidence in andensure state adherence to the rule of law. • The second stage of the inquiry calls for an evaluation of the extent to which the breach actually undermined the interestsprotected by the infringed right.

The more serious the incursion on these interests, the greater the risk that admission of the evidencewould bring the administration of justice into disrepute. • At the third stage, the court asks whether the truth-seeking function of the criminal trial process would be better served byadmission of the evidence or by its exclusion. Factors such as the reliability of the evidence and its importance to the Crown’s caseshould be considered at this stage.

The weighing process and the balancing of these concerns is a matter for the trial judge in each case([71-72] [76-77] [79] [86] [127]). [49] In Grant, the Court notes that at one end of the spectrum, evidence obtained through inadvertent or minor violations of theCharter may minimally undermine public confidence in the rule of law. “At the other end of the spectrum, admitting evidence obtainedthrough a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law,and risk bringing the administration of justice into disrepute” (para 74).

The Crown‘s Cases: [50] The Crown urges me to find that the evidence in this case is admissible, applying the principles set out in R. v. Grant, (as above).He argues that I need to take into consideration the fact that while these officers were not part of an elite investigation squad, they hadtaken a special interest in dial-a-dope investigations and were very experienced officers. He submits that they did not target Mr. Ghaniout of prejudice, malice or bad faith. [51] Crown relies on R. v.

Goodkey, 2015 BCCA 64, in which the Court found that in the case of a minor breach, in the absence ofbad faith or a pattern of disregard for Charter rights, where the grounds for arrest fell just short of objectively reasonable, the evidenceshould be admitted. The facts are not similar enough to be of assistance because the officers were dealing with jurisdictional limitationsas Mr. Goodkey was heading out of the Province. Furthermore, in that case, it seems there were officers involved who possessedadditional information about Mr. Goodkey, which would have supported reasonable grounds. [52] In R. v. St.

Claire, 2021 ONCA 895, the judge concluded there were objectively reasonable grounds to arrest. The Court ofAppeal overturned that decision; however, the evidence was admitted under s. 24(2) of the Charter, because the grounds fell just short ofobjectively reasonable. The Court found the breach was not at the serious end of the spectrum. In that case, the arresting officer wasmistaken as to the legitimacy of a license to possess medical marijuana.

What appeared to the officer to be a fake license was in factlegitimate. [53] This was at a time when marijuana possession was still illegal in Canada, subject to an exemption for medical use as provided byRegulations, which had been revised multiple times. The arresting officer acknowledged that he had not read the Regulations or beenbriefed on them, consequently he was unaware of the provisions of the regulatory scheme [54] The search incident to arrest disclosed a loaded semi-automatic handgun with an oversized magazine and ammunition hidden inan after-market compartment in the car. Mr. St.

Claire was arrested at that point for unlawful possession of a handgun, the oversizedmagazine and ammunition. He was then taken to the detachment and strip searched. That search disclosed cocaine and he was chargedwith possession for the purpose of trafficking. [55] Since I heard submissions in this matter, counsel have drawn my attention to R. v. Lafrance, 2022 SCC 32, which was decided onJuly 22, 2022, by the Supreme Court of Canada. [56] At paragraph 89, the Court notes that the purpose of 24(2) is remedial - to uphold Charter rights by providing effective remediesto those whose rights have been breached.

The Court notes that s. 24(2) is categorical, in that it direct that evidence obtained in a mannerthat infringes a Charter right or freedom, shall be excluded if its admission would bring the administration of justice into disrepute(quoting R. v. Le, at para 139). [57] The Court went on to further cite R. v. Le, 2019 SCC 34 , [2019] 2 S.C.R. 692 at paragraph 140, which held that thefocus must be on the impact of the Charter offending conduct on the administration of justice, rather than on the criminal trial.

1. The Seriousness of the Breaches [58] With respect to the arrest in this case, the Lafrance decision directs the Court to “situate the conduct on a scale of culpability...Inadvertent or minor violations tend only to minimally undermine public confidence in the rule of law and, consequently, bear onlyslightly upon the reputation of the administration of justice, while evidence obtained through a wilful or reckless disregard of Charterrights will inevitably have a negative effect on the public confidence in the rule of law” (Lafrance, para 93). [59] Unlike Goodkey and St.

Claire, the Crown has not suggested that there were any extenuating circumstances which attenuated theseriousness of the officers’ conduct. Officers Diguangco and Kemp are, indeed, very experienced. As they testified, they have beeninvolved in 100’s of arrests for dial-a-dope.

They are familiar with the prerequisites for an arrest, yet elected to proceed on the basis oftheir suspicion and intuition, supplementing their grounds with only their “opinion” that they had seen an exchange of money for drugs. [60] Given the breadth of these officers’ experience, I find that they made a deliberate decision to proceed in the absence ofobjectively reasonable grounds for arrest. This fact elevates the seriousness of the breaches of Mr. Ghani’s right not to be arbitrarilydetained on mere suspicion.

This favours a finding that admission of the evidence would bring the administration of justice intodisrepute. 2. Impact on the Accused’s Charter-Protected Interests [61] Under this heading, the Court must consider whether, from the standpoint of society’s interest in respect for Charter rights, theadmission of evidence tainted by the Charter Breach would bring the administration of justice into disrepute (Lafrance, para 96). [62] As set out in R. v. Grant, at paragraph 76: The impact of a Charter breach can range from fleeting and technical to profoundly intrusive.

Clearly, the more serious the impact onthe accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, howeverhigh-sounding are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute. [63] The Supreme Court in Grant goes on to note that to determine the seriousness of the infringement one must look to the interestsengaged by the infringed right and examine the degree to which the violation impacted on those interests (at para 76). [64] Each of the breaches were significant infringements on Mr.

Ghani’s rights. He lost his right to liberty, his right to privacy and tohuman dignity. While in the spectrum of Charter breaches, these do not fall at the most severe end, they also do not fall at the lighter endof the spectrum. Mr. Ghani was subjected to:

a) an arbitrary arrest and deprived of his right to liberty;

b) the loss of privacy with respect to his vehicle; and

c) a strip search of his person, which by its very nature is profoundly intrusive and inherently humiliating. [65] There is no question that Mr. Ghani’s Charter protected interests were significantly impacted. This conclusion supports the viewthat admitting this evidence would bring the administration of justice into disrepute. 3. Society’s Interest in an Adjudication on the Merits. [66] In R. v.

Le, at para 158, the Court recognized that “[w]hile disrepute may result from the exclusion of relevant and reliableevidence (Grant, at para 81), so too might it result from admitting evidence that…amounts to ‘judicial condonation of unacceptableconduct by the investigatory and prosecutorial agencies’ (R. v. Collins, (SCC), [1987] 1 S.C.R. 265, at p. 281). An‘adjudication on the merits’ in a rule of law state, presupposes an adjudication grounded in legality and respect for longstandingconstitutional norms”. [67] The evidence that Mr. Ghani seeks to exclude is reliable evidence of trafficking.

Without it, the Crown’s case will fail.Furthermore, dial-a-dope cases and particularly the sale of fentanyl are contributing to the drug crises which we have recently heard haskilled 10,000 people in this country since the crises was declared. 4. Balancing the Grant Factors [68] The first two Grant factors work in tandem and pull toward exclusion of the evidence. The third inquiry pulls in the oppositedirection toward the inclusion of evidence, particularly so where the evidence is reliable and critical to the Crown’s case.

However, it isnot necessary for a court to determine that both of the first two lines of inquiry support exclusion in order for a court to determine thatadmission would bring the administration of justice into disrepute (Le, at para 141). As the Court said in Le, “[i]t is the sum, and not theaverage, of those first two lines of inquiry that determines the pull towards exclusion”. The Court must consider and balance thecumulative weight of the first two lines of inquiry against the third when assessing whether evidence should be excluded. As noted in R.v.

Lafrance, (as above), at paragraph 90: That is why the third line – which typically pulls towards a finding that admission would not bring the administration of justice intodisrepute – will seldom tip the scale in favour of admissibility when the two first lines, taken together, make a strong case for exclusion. [69] The Grant factors must be balanced in order to assess the impact of admission or exclusion of the evidence on the long-termintegrity and public confidence in the administration of justice. As noted in R. v.

Tim, 2022 SCC 12, at para 98: The balancing is prospective: it aims to ensure that evidence obtained through a Charter breach “does not do further damage to therepute of the justice system” (Grant, para 69). The balancing is also societal: the goal is not to punish the police, but rather to addresssystemic concerns by analysing “the broad impact of admission of the evidence on the long-term repute of the justice system” (Grant, at

para 70 ; see also Le, at para 139). [ 70 ] I have found in this case that the lack of objectively reasonable grounds for arrest is a serious breach of Mr. Ghani’s Charter rights. I have also found that Mr. Ghani’s Charter protected interests were significantly impacted through his loss of liberty and privacy, as well as the degrading process of a strip search in custody.

Both of these factors favour a finding that the evidence should be excluded. [ 71 ] With respect to the third factor, even though society has a strong interest in the prosecution of dial-a-dope cases, and particularly those cases which involve the sale of fentanyl, nonetheless, successful prosecution cannot be at the expense of rights which are fundamental to the rule of law in this country. I have found that these officers acted deliberately, and the Court cannot condone such conduct in the absent of extenuating circumstances.

I have to conclude that admitting the evidence discovered would bring the administration of justice into disrepute. [ 72 ] I find the evidence must be excluded. _____________________________ The Honourable Judge P.M. Bond Provincial Court of British Columbia