R. v. Ahmed-Kadir and McFadyen Date:, 2011 BCPC 250

Citation: R. v. Ahmed-Kadir and McFadyen Date: 20110930 2011 BCPC 0250 File No: 201471-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ARAS AHMED-KADIR REBECCA MCFADYEN RULING ON VOIR DIRE OF THE HONOURABLE JUDGE G. RIDEOUT Counsel for the Crown: N. Jedlinski Counsel for Ahmed-Kadir: J.S. Stowe Counsel for McFadyen: M. Gervin Place of Hearing: Vancouver , B.C.

Dates of Hearing: December 6, 7, 8; May 6, 26, 2011 Date of Judgment: September 30, 2011 INTRODUCTION [ 1 ] On July 7, 2009, at approximately 2:25 in the afternoon, the building manager of an apartment complex at 555 E. 5 th Avenue, in the City of Vancouver, made a 911 call to the Vancouver Police Department as a result of a possible domestic assault taking place in Suite 308 of that building. In response to the 911 call, Constables Hirst and Gock were dispatched to investigate.

Their response to the 911 call was given the highest priority. [ 2 ] Upon arrival at Suite 308, Constable Hirst gained entry into the suite after knocking and announcing “Vancouver Police”. There were two occupants of the suite being the two Applicants, Aras Ahmed-Kadir and Rebecca McFadyen. Other police members arrived shortly thereafter to assist. During the course of the investigation police located cocaine and a gun. The Applicant, Mr. Ashmed-Kadir, has being charged with firearm offences contrary to s. 91(1) , s. 95(1) and s. 86 (2) of the Criminal Code .

In addition, both Applicants have been charged with possession for the purpose of trafficking in cocaine contrary to s. 5(2) of the Controlled Drugs and Substances Act . ISSUES [ 3 ] Initially, as a result of a Pre-Trial Conference, the Court was advised by Counsel for each Applicant that it was their position that their clients’ right under s. 8 of the Charter to be secure against unreasonable search or seizure was violated and that the evidence ought to be excluded.

[ 4 ] At trial, and during the course of a voir dire to determine whether or not there was a s. 8 violation, Counsel for Mr. Ahmed-Kadir put the Crown and the Court on notice that, in light of evidence evolving at the voir dire , Mr. Ahmed-Kadir would also be asserting his rights under s. 9 and s. 10(

b) of the Charter . Crown Counsel took the position that notice of any violations of s. 9 and s. 10(

b) of the Charter was inadequate and, therefore, to ensure the orderly conduct of the trial, the Court should find that there was not a proper basis to import s. 9 and s. 10(

b) Charter considerations into the voir dire . DETAILED BACKGROUND [ 5 ] On July 7, 2009, the building manager at 555 East 5 th Avenue, in the City of Vancouver, heard a domestic disturbance coming from the interior of Suite 308 of the building complex at approximately 2:25 pm. The tenant of that suite was Mr. Ahmed-Kadir, who was living with his girlfriend being Ms. McFadyen.

The building manager testified he heard a commotion coming from Suite 308 and described it as “a lot of yelling, smacking, and there was crying a lot, like, begging to stop”. (Transcript, December 6, 2010, p. 5, l. 14- 15.) [ 6 ] The building manager described the voices as being male and female. As a result of what he heard, he made a 911 call to the Vancouver Police Department seeking assistance. [ 7 ] The recording of the 911 call was played in Court and the agitated but indistinct voice of a female could be heard coming from Suite 308.

The building manager testified that the doors to the suites in the building are fire doors and are fairly thick. [ 8 ] The building manager waited outside of the building and after a short period of time Constables Hirst and Gock arrived on scene. They were directed by the building manager to Suite 308. [ 9 ] Constable Hirst testified that he and Constable Gock received the dispatch which reported a domestic assault in progress and that the building manager could hear screaming and sounds of slapping and a female crying “stop hitting me”.

As a result of the information received, the call was given a “top priority” by Constable Hirst. Shortly after the dispatch he and Constable Gock arrived at the apartment complex where they were directed by the building manager to Suite 308. [ 10 ] Constable Hirst testified that when they arrived at Suite 308, he could hear a female screaming from within the suite, though he could not make out any of her specific words. [ 11 ] Constable Hirst testified that he knocked on the door twice announcing “Vancouver Police”. After a short period of time a female answered the door. This female was later identified as Ms.

McFadyen. At that time, she was dealt with by Constable Gock outside of the apartment to separate her from any occupant of the suite for safety concerns. [ 12 ] Constable Hirst then called into the suite requesting that if there was anyone else in the suite that they identify themselves. At that time Mr. Ahmed-Kadir came out of a bedroom. Constable Hirst then placed the accused in handcuffs and arrested him for an assault based on the information received from the 911 call and what he heard at the door of the suite. [ 13 ] Constable Hirst then took Mr.

Ahmed-Kadir into the living-room to further investigate the domestic complaint. The suite was described by Constable Hirst as being in “disarray”. He observed that there was a broken picture frame on the bedroom floor, a bottle of soda that was knocked over in the living-room on the coffee table and a broken cell phone on the floor outside of the single bedroom. [ 14 ] Constable Hirst testified that it was the practice of the Vancouver Police to act in a partnership in relation to domestic situations due to their potential volatility. In that role, Constable Gock was gathering information from Ms.

McFadyen to determine what exactly had taken place while Constable Hirst questioned Mr. Ahmed-Kadir. [ 15 ] Constable Hirst testified that he held off in advising Mr. Ahmed-Kadir of his rights pursuant to s. 10(

b) of the Charter as he was in liaison with Constable Gock to determine whether or not an assault actually took place. [ 16 ] During this stage of the investigation other police officers arrived on scene, including Constables Dhaliwal and Rossiter. Constable Hirst testified that he had ongoing discussions with Constable Gock. He was told by Constable Gock that Ms. McFadyen admitted there had been a verbal argument, but Mr. Ahmed-Kadir had done nothing and, if anything, Ms. McFadyen had attacked him and she accepted responsibility for that action. [ 17 ] Constable Hirst testified that Mr.

Ahmed-Kadir told him he took defensive actions to prevent Ms. McFadyen from hitting him. Somehow the cell phone was broken. Apparently Ms. McFadyen had thrown the cell phone at Mr. Ahmed-Kadir. [ 18 ] It was shortly after these discussions between Constables Hirst and Gock concerning the situation that Constable Hirst removed the handcuffs from Mr. Ahmed-Kadir, though Mr. Ahmed-Kadir remained under arrest. Handcuffs were later re-applied by Constable Hirst or Dhaliwal based on information about Mr.

Ahmed-Kadir known to Constable Dhaliwal. [ 19 ] While investigating the alleged domestic assault, Constable Hirst was advised by Constable Rossiter that she had located a suspected bong and suspected cocaine on the refrigerator top in the kitchen. Upon viewing the suspected bong and drugs, safety concerns were heightened. Constable Hirst seized the suspected bong and drugs. He then noticed that Constable Rossiter had opened the hallway closet. He noticed a shopping bag that did not quite fit with the contents of the closet.

He looked into the bag and saw what appeared to him to be a firearm and said “gun” to the fellow officers. He described that the shopping bag was not up very high in the closet and that he could easily see into the bag when he observed the handle of what he believed to be a firearm. [ 20 ] After locating the gun in the bag, Constable Hirst then arrested Mr. Ahmed-Kadir for possession for the purpose of trafficking in drugs, for possession of a firearm and for breach for being in possession of a firearm contrary to a weapon prohibition. Then Constable Hirst advised Mr. Ahmed-Kadir of his rights under s. 10(

a) and s. 10(

b) of Charter . This took place at 2:52 p.m. [ 21 ] When Constable Hirst attended at the police station, he weighed the various suspected drugs seized from the residence. The total

weight of the packaged rocks weighed in excess of 25 grams. [ 22 ] Constable Gock testified that before he and Constable Hirst arrived at 555 East 5 th Avenue, they received dispatch information that a female was overheard screaming from a suite within that building. He further testified that upon arrival at Suite 308, he could hear a female yelling from within the suite, but could not understand what she was saying. [ 23 ] Constable Gock further testified that after the knock and announcing “Vancouver Police” by Constable Hirst or himself, a female opened the door and she appeared to be crying.

Constable Gock did not observe any injuries to the female. [ 24 ] Constable Gock confirmed the identity of the female as Ms. McFadyen. Constable Gock also testified that he asked Ms. McFadyen what happened within the suite immediately preceding their arrival. Ms. McFadyen told Constable Gock that she had not been assaulted prior to police arrival. [ 25 ] Constable Gock further testified that during this exchange other police officers were arriving on scene as cover. Shortly after receiving the version of events of Ms.

McFadyen, Constable Gock testified that he liaised with Constable Hirst and it was determined that while there was a report of a domestic dispute, any such dispute was over and both Ms. McFadyen and Mr. Ahmed-Kadir denied that any assault took place. [ 26 ] While Constable Gock did not place Mr. Ahmed-Kadir under arrest, he testified that after he spoke to Ms.

McFadyen and Constable Hirst, he would not have had any reasonable or probable grounds to arrest either party. [ 27 ] Constable Dhaliwal testified that the dispatch regarding a possible domestic assault in progress at 555 East 5 th Avenue was received by him at approximately 2:24 pm. He recalled that the dispatch information indicated that there was a domestic violence situation and that the 911 caller could hear slapping noises from the suite at the subject address. [ 28 ] When Constable Dhaliwal arrived at the suite, he recognized Mr.

Ahmed-Kadir from prior dealings when Constable Dhaliwal was assigned to the Integrated Gang Task Force. Constable Dhaliwal testified that this knowledge came from computer information (PRIME) in which Mr. Ahmed-Kadir was considered armed and dangerous and was subject to a weapon prohibition. At that time Mr. Ahmed-Kadir was not in handcuffs. As a result of that information, Constable Dhaliwal spoke to Constable Hirst about what he knew about Mr. Ahmed-Kadir. Constable Hirst or Constable Dhaliwal then reapplied handcuffs. [ 29 ] As a result of his prior knowledge of Mr.

Ahmed-Kadir, Constable Dhaliwal testified that he thought it would be a wise action on his part to keep an “eye” on Mr. Ahmed-Kadir, while Constables Hirst and Gock continued to determine what, if anything came from the domestic assault investigation. Constable Dhaliwal recalled that he had a conversation with Mr. Ahmed-Kadir along the lines that he would give Mr. Ahmed-Kadir the chance to “come clean” if there were any drugs or guns in the residence. Mr.

Ahmed-Kadir responded that there were no drugs or guns in the residence. [ 30 ] At the time that Constable Dhaliwal or Constable Hirst reapplied the handcuffs to Mr. Ahmed-Kadir, Constable Dhaliwal was unaware that Constable Hirst had initially arrested Mr. Ahmed-Kadir for assault. Constable Dhaliwal testified that it was his opinion that Mr.

Ahmed-Kadir was under investigative detention in relation to an assault, and for officer safety reasons, he reapplied the handcuffs. [ 31 ] Constable Dhaliwal testified that he did not conduct a search of the residence, but for officer safety reasons, it was the practice in relation to domestic violence investigations, that a residence is always searched. In his words, this was a practice learned “from day 1 at the academy”. [ 32 ] Constable Rossiter testified that she received a dispatch at 2:27 pm to attend at 555 East 5 th Avenue in Vancouver.

On that date, she was the wagon driver and attended on scene in the event that it was necessary to transport any persons to the police station. [ 33 ] Upon her arrival, she went to Suite 308 and saw Constable Gock dealing with Ms. McFadyen. Constable Rossiter then entered the suite and noticed that Constable Dhaliwal was dealing with Mr. Ahmed-Kadir. Constable Rossiter then cleared the bedroom and bathroom of the suite for safety concerns. She then positioned herself in the hallway adjacent to the entrance to the kitchen to await further directions for her assistance if it was required.

While positioned in the hallway at the entrance to the kitchen, she looked at the refrigerator and saw on top of the refrigerator a device which, from her experience, looked like a drug bong. She was approximately four feet away when she made this observation. She moved closer to the refrigerator and further noticed on top of the refrigerator two clear baggies which contained a substance consistent with rock cocaine. Upon making that observation of the suspected bong and the suspected cocaine, she advised Constable Hirst of her observations.

Constable Hirst then seized the suspected drug bong and the suspected cocaine. [ 34 ] As a result of her observations of the suspected drug bong and the suspected cocaine, Constable Rossiter testified that she had a heightened concern for officer safety. She recalled that she did not clear a closet in the hallway of the suite so went to that closet and opened it. The closet contained shelving and various household items which lessened her concern. [ 35 ] As Constable Rossiter was standing by the closet, she recalled that Constable Hirst was beside her, also looking into the closet.

She then turned away and she next heard Constable Hirst announce “gun”. She looked toward Constable Hirst and noticed that he had a white bag in his hand, which he placed on the ground. When she looked into the bag she saw some white tissue and what appeared to be the handle of a gun. [ 36 ] Constable Rossiter next recalled that Constable Hirst or another officer re-attended the living-room and advised Mr. Ahmed- Kadir that he was under arrest for possession of the drugs and gun. [ 37 ] Mr. Ahmed-Kadir was escorted to the police wagon and Constable Rossiter left the scene at 3:32 pm for the police station.

[38] By agreement of Counsel, it was established that Mr. Ahmed-Kadir was arrested for assault between 2:29 pm and 2:31 pm. Inaddition, Mr. Ahmed-Kadir was not advised of his rights under s. 10(

b) of the Charter upon his arrest for assault. It was further agreedthat it was not until the drugs and the gun were found that Mr. Ahmed-Kadir was rearrested in relation to those items and then informedof his s. 10(

b) rights at 2:52 pm, which was 21 minutes after Mr. Ahmed-Kadir was arrested for assault. POSITION OF THE PARTIES [39] Counsel for both Applicants submit that their respective clients’ rights under s. 8 of the Charter were breached as a result of theinvestigation of the alleged assault on July 7, 2009. Both Counsels submit that the s. 8 right was breached when Constables Rossiter andHirst conducted a warrantless search of the suite, as a result of which they located both drugs and the gun.

It is submitted that once it isestablished that a search is a warrantless search, the Crown has the burden of establishing on a balance of probabilities that the searchwas nonetheless reasonable. [40] In that respect, Counsel reminded the Court of the instruction of the Supreme Court of Canada in R. v. Collins, (SCC), [1987] 1 SCR 265, at para 23, that: A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried outis reasonable. [41] It is further submitted that with respect to the search of the residence, the Supreme Court in R. v.

Caslake, [1998] 1 SCC 5,established the guidelines in their analysis of what is a reasonable search. It is argued those guidelines were not followed. [42] Counsel for Mr. Ahmed-Kadir also raised issues respecting s. 9 and s. 10(

b) of the Charter as the hearing evolved. In relation tos. 9, Counsel for Mr. Ahmed-Kadir submits that the criteria for a warrantless search as contained in s. 495 (1) of the Criminal Code hasnot been met in this case as there were no reasonable or probable grounds to effect an arrest. Accordingly, the arrest of Mr. Ahmed-Kadir for assault was arbitrary and contrary to s. 9 of the Charter. [43] In support of his argument that Mr. Ahmed-Kadir’s rights under s. 9 of the Charter were violated, Counsel made reference todecisions of the Supreme Court of Canada including R. v. Grant, 2009 SCC 32 , [2009] SCJ No. 32, at para 44: In

summary, we conclude as follows: 1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical orpsychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with therestrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but tocomply. [44] In relation to the arrest of Mr. Ahmed-Kadir, Counsel notes the instructive language of Mr. Justice Cory in R. v.

Storrey, (SCC), [1990] SCJ No. 12 where the learned jurist notes, in applying what is now s. 495(1) of the Criminal Code, that itmust be clearly established that the police have reasonable and probable grounds before they may affect the arrest of an individual. Those grounds are both subjective and objective and there must be a clear nexus between those two grounds. [45] It is further submitted by Counsel for Mr. Ahmed-Kadir that a mere hunch or suspicion would be insufficient to establishappropriate grounds under s. 495(1) of the Criminal Code.

Counsel relies in large measure on the language used by the Court of Appealfor British Columbia in R. v. Whitaker, 2008 BCCA 174 , [2008] BCJ No. 725. [46] In Whitaker, the accused was arrested because he was located in a residence believed to contain elicit drugs for which a searchwarrant had been issued. [47] Counsel for Mr. Ahmed-Kadir notes the Court of Appeal in Whitaker followed the decision of Mr. Justice Juriansz in R. v.MacIsacc, [2001] OJ No. 2966, where in part the learned jurist at para 64 had this to say: ... However, mere suspicion does not authorize an arrest.

In my view, a person's mere presence in a residence named in a search warrantdoes not provide reasonable grounds for arresting that person. [48] It is submitted that when Constable Hirst arrested Mr. Ahmed-Kadir he did not have the requisite subjective and objectivegrounds to justify that arrest even in the dynamic of a domestic violence investigation. If anything, Constable Hirst would be entitled toinvoke a brief investigative detention which would no longer be justified once it was determined that both Constables Hirst and Gockwere unable to say, with any certainty, that, in fact, an assault had taken place.

Once Constable Hirst was of the opinion that criminalactivity could not be established, he was obliged to release Mr. Ahmed-Kadir. Counsel’s position is that the subsequent search, clearingor otherwise of the residence was without lawful authority and the continuing detention or arrest of Mr. Ahmed-Kadir was thus arbitraryand in violation of s. 9 of the Charter. [49] In relation to s. 10(

b) of the Charter, it is submitted by Counsel for Mr. Ahmed-Kadir that there is a legal obligation on behalf ofConstable Hirst to immediately advise Mr. Ahmed-Kadir of his rights to retain and instruct counsel without delay upon his arrest. It issubmitted that Constable Hirst held off on the s. 10(

b) right without any proper explanation. [50] It is submitted that Mr. Ahmed-Kadir was at risk to make an incriminating statement when he was not informed of his right tocounsel without delay which vulnerability was discussed by the majority of the Supreme Court of Canada in R. v. Suberu, 2009 SCC 33, [2009] SCJ 33, at para 41, by McLachlin, CJ. [51] It is further emphasized by Counsel for Mr. Ahmed-Kadir that the s. 10(

b) right violation was further breached by the interactionof Constable Dhaliwal with Mr. Ahmed-Kadir. In particular, Counsel noted the evidence of Constable Dhaliwal regarding when heengaged Mr. Ahmed-Kadir in a conversation respecting guns and drugs in the suite while he was in the living room.

[52] It is submitted that while the police may have not acted in bad faith, the Court cannot find that, in relation to the multiple allegedbreaches, the police were acting in good faith. It is submitted that the multiple breaches demonstrated a pattern of disregard of the rightsof Mr. Ahmed-Kadir, and that the evidence of the suspected drugs and gun located within the residence ought to be excluded pursuant tos. 24(2) and the through the Grant analysis. [53] Counsel for Ms. McFadyen joined Counsel for Mr.

Ahmed-Kadir respecting the s. 8 argument and also submits that the drugevidence and the gun were obtained in violation of his client’s rights under s. 8 of the Charter and ought to be excluded pursuant to theGrant analysis of s. 24(2). [54] Crown Counsel’s approach is significantly different from that taken by Counsel for both Applicants. It is submitted by CrownCounsel that while appropriate notice was provided to the Crown pursuant to the s. 8 Charter argument by both Counsel, the Crown didnot receive any meaningful notice with respect to the arguments advanced by Counsel for Mr.

Ahmed-Kadir in relation to s. 9 and s.10(

b) of the Charter. It is submitted that the Court must embark upon a threshold examination of the evidence relied upon by the Crownand arguments latterly advanced by Counsel for Mr. Ahmed-Kadir to determine if the applications ought to be dismissed. [55] It is submitted that this threshold examination is required applying R. v. Vukelich, (BC CA), [1996], BCJ No.1535. It is submitted that the Vukelich hearing approach is necessary in part to ensure the orderly conduct of the trial. This approachflows from a decision of the Ontario Court of Appeal in R. v. Kutynec, (ON CA), [1992] O.J.

No. 347, which decisionwas followed by the Court of Appeal in Vukelich. [56] Crown Counsel submits that in this case Counsel for Mr. Ahmed-Kadir has not met the threshold which would justify this Courtin entertaining arguments respecting s. 9 and s. 10(

b) of the Charter, or granting any remedy in relation to those arguments. The purposeof a threshold hearing is twofold, as discussed by the Court in Kutynec at para 16 in the following language: As a basic proposition, an accused person asserting a Charter remedy bears both the initial burden of presenting evidence that his or herCharter rights or freedoms have been infringed or denied, and the ultimate burden of persuasion that there has been a Charter violation.

Ifthe evidence does not establish whether or not the accused's rights were infringed, the court must conclude that they were not: see R. v.Collins, (SCC), [1987] 1 S.C.R. 265, 33 C.C.C. (3d) 1, at p. 277 S.C.R., p. 13 C.C.C. It is obvious that counsel for theaccused is not entitled to sit back, as he did in this instance, and hope that something will emerge from the Crown's case to create aCharter argument or assist him in one he is already prepared to make.

The onus is on the accused to demonstrate on a balance ofprobabilities that he is entitled to a Charter remedy and he must assert that entitlement at the earliest possible point in the trial.Otherwise, the Crown and the court are entitled to proceed on the basis that no Charter issue is involved in the case. [57] It is further submitted by Crown Counsel that this Court has an inherent jurisdiction to manage the trial and to make directionsnecessary to ensure the trial proceeds in an efficient and orderly manner.

Further, where there has not been timely notice of a Charterviolation, this Court may, taking into account all of the relevant circumstances, refuse an application to grant a Charter remedy: seeKutynec at para 19. [58] It is further submitted by Crown Counsel that there is no remedy that would be appropriate for any violation of s. 9 and s. 10(b)as it relates to Mr.

Ahmed-Kadir because there was no real evidence that was located that had any nexus to the alleged breaches of s. 9and s. 10(b). [59] It is argued by Crown Counsel that there were reasonable and probable grounds to believe that the offence of assault contrary tos. 266 of the Criminal Code was committed by Mr. Ahmed-Kadir. Those grounds were based upon the information relayed throughdispatch to Constable Hirst, which resulted in Constable Hirst giving the 911 call the “highest priority”. The grounds for the arrest ofMr.

Ahmed-Kadir were enhanced when Constable Hirst was at the door of the suite at which time he heard an agitated female screamingfrom within. In addition, upon entry, the subjective and objective grounds for the arrest were amplified by the disarray of the apartmentwhen he observed the broken picture frame on the bedroom floor, a bottle of soda that was knocked over in the living room and a brokencell phone which was located on the floor outside of the bedroom. [60] Crown Counsel argued in the alternative that if the Court were to find that the arrest of Mr.

Ahmed-Kadir was unlawful, theevidence would establish that, at the very least, Mr. Ahmed-Kadir would have properly been detained for investigative purposes and thatthis detention was not arbitrary. It is submitted that Constable Hirst was acting in the exercise of his lawful duty to investigate thedomestic complaint and, therefore, detaining and handcuffing Mr.

Ahmed-Kadir was a justifiable use of police powers: see R. v.Clayton, [2007] S.C.R. 725, at paras 30-31. [61] Crown Counsel further submits that where there is an investigation with respect to a possible domestic assault, such a situation isfluid and dynamic and any interference with the individual liberties of Mr. Ahmed-Kadir must be examined in the context of all of thecircumstances, including the duties being performed by Constable Hirst to preserve the peace in an alleged domestic violence situation. [62] Crown Counsel further submits that even if Mr.

Ahmed-Kadir’s s. 9 right was breached, such a breach would not have an impacton the evidence of Constable Rossiter, who located the suspected bong and drugs which were in plain view. If there was a violation ofthe s. 9 right it was technical in nature and the evidence should not be excluded applying s. 24(2) of the Charter. [63] Crown Counsel submits that the s. 10(

b) argument likewise fails, invoking the plain view doctrine in relation to ConstableRossiter’s observations. Further, Constable Dhaliwal’s actions had no bearing on the seized drugs or gun. [64] While conceding there was delay in relation to the informational component of s. 10(b), Crown Counsel argues that such delaywas not unreasonable and relies in large measure on the decision of R. v. Purchase, 2011 BCSC 154 , 2011 B.C.S.C. 154, whichalso involved police attending at a private residence as a result of a third party emergency 911 call.

During the course of thatinvestigation the residence was cleared for officer safety reasons and a marijuana grow operation was ultimately located. The accusedwas only arrested one hour and twenty minutes after police involvement at the residence commenced and he was then informed of his s.10 rights. Mr. Justice Brown ultimately ruled that the holding off of the informational and implementation aspect of s. 10 was as “briefas circumstances reasonably permitted”.

[ 65 ] The Crown further submits that even if there was a breach of the informational component of s. 10(b), no evidence was obtained as a result of the failure to advise Mr. Ahmed-Kadir of his s. 10(

b) right and, therefore, any such breach would not justify the exclusion of evidence. [ 66 ] In relation to the s. 8 argument advanced by Counsel on behalf of both applicants, Crown Counsel concedes that the search was a warrantless search.

However, Crown Counsel’s position is that, notwithstanding the fact that a private residence was entered and searched, such a search was authorized by law, the law was reasonable and the search was conducted in a reasonable manner. [ 67 ] It is submitted by Crown Counsel that the police have a common law duty to investigate any 911 call and, especially so, in situations where there may be domestic violence. On this point Crown Counsel relies upon R. v. Godoy , [1991] 1 S.C.R. 311 ; R. v. Purchase , R. v. Hardt , [1999] B.C.J. 1288 ; and R. v.

Lawrence , [2009] B.C.P.C. 361. [ 68 ] It is further submitted that the clearing actions by Constable Rossiter were reasonable and that her actions were not designed to search for evidence but were wholly for safety reasons. [ 69 ] Crown Counsel points out that the suspected bong and the suspected cocaine were in plain view on top of the refrigerator. The subsequent search of the closet was reasonable after Constable Rossiter located the suspected bong and drugs, as the closet had not been searched prior to the observation of the suspected bong and drugs.

It is submitted that there was no “manipulation” of the contents of the closet and that the butt of the gun itself was initially observed by Constable Hirst without the need of him either moving the bag or exploring the contents of that bag. [ 70 ] In

summary, it is submitted by Crown Counsel that the actions of Constables Rossiter and Hirst were reasonable in all of the circumstances, as they were entitled to take reasonable steps to ensure their safety and the safety of others, which would include Ms. McFadyen.

As such, it is submitted that there is no violation of s. 8 of the Charter in relation to both Accused. [ 71 ] In the alternative, it is argued that if there was a breach of the s. 8 right, in the context of the evidence of this case and having regard to the totality of the circumstances, the evidence should be admitted pursuant to s. 24(2) of the Charter applying the Grant analysis. ANALYSIS [ 72 ] Much of the detail contained in the Background to this Ruling was drawn from written argument prepared by Defence Counsel and Crown Counsel.

Counsel were in agreement that the details of the evidence reviewed in their written argument was accurate and reliable and I have confirmed that accuracy and reliability upon reviewing the transcripts of the evidence. [ 73 ] To properly address the issues which have arisen in this case, I consider it appropriate to deal first with the threshold issue raised by Crown Counsel relating to a Vukelich hearing. Thereafter the issues then remaining shall be determined. (

a) Threshold of a Vukelich Hearing [ 74 ] It is established that an Accused Applicant is not entitled as of right to a hearing to challenge the admissibility of evidence obtained by an alleged breach of the Charter . This was discussed by the Ontario Court of Appeal in R. v. Kutynec at para 31 in the following language: Where an Accused bears the burden of proving admissibility of the evidence, it is incumbent on counsel to put forward a factual and legal basis on which the evidence could be admitted. Counsel is not entitled to proceed immediately to a voir dire on this issue.

The same principle should be applied where the onus is on an accused to establish that certain evidence is inadmissible. [ 75 ] In the case at bar, a voir dire was declared in relation to the s. 8 Charter breach argument. As the case evolved, and principally through the course of cross-examination by Counsel for Mr. Ahmed-Kadir, issues relating to s. 9 and s. 10(

b) of the Charter became apparent. It is clear from the evidence and submissions of Counsel for Mr. Ahmed-Kadir that breaches of s. 9 and s. 10(

b) were not anticipated. [ 76 ] However, those issues did arise during the course of the voir dire and when those issues arose, Counsel for Mr. Ahmed-Kadir did properly advise Crown Counsel and the Court that s. 9 and s. 10(

b) of the Charter were now in play. [ 77 ] I find that there was inadequate notice in relation to issues involving s. 9 and s. 10(

b) of the Charter , but also find that those issues were not anticipated. Once those issues arose, Defence Counsel would be obliged to raise the additional Charter issues at the earliest opportunity on behalf of his client. He did so in this case. [ 78 ] The rationale behind reasonable notice of any Charter application is obvious. In criminal trial proceedings the process is adversarial and fair tactics become important in that process. [ 79 ] In R. v. Sipes , 2008 BCSC 1257 , Mr.

Justice Smart discussed the importance of reasonable notice with respect to applications within the criminal adversarial process at para 36 in the following language: However, I also accept that the defence must provide adequate notice of each application they intend to make. Inadequate notice places an additional workload on the Crown, makes it more difficult for the Crown to properly fulfil its responsibilities, and undermines the orderly and efficient hearing of the applications. A criminal trial is an adversarial process. Fair tactics are part of the process; unfair surprise is not. [ 80 ] Mr.

Justice Smart at para 37 proposes that the remedy for a late Charter notice may be a request by Defence to seek an

adjournment. By extension, this would apply equally to Crown Counsel. [81] In this case, Counsel for Mr. Ahmed-Kadir conceded that notice was late and he was not opposed to an adjournment to amplifyhis argument in written submissions. Likewise, Crown Counsel requested an adjournment to respond to submissions of Counsel for Mr.Ahmed Kadir. [82] Balancing the interests of justice an adjournment was granted and the Court thereafter had the benefit of comprehensive writtenargument prepared in advance of the continuation of this matter by both Crown Counsel and Counsel for Mr. Ahmed-Kadir.

At thecontinuation date on May 26, 2011, both Counsel for Mr. Ahmed-Kadir and Crown Counsel supplemented the written submissions withthorough oral argument. [83] I conclude that the adjournment of this hearing from December 8, 2010, until the continuation in May of 2011, coupled with thewritten and oral submissions of all Counsel meets any threshold concerns expressed by Crown Counsel. The case has proceeded in anorderly and appropriate manner and the integrity of the adversarial process maintained. [84] Accordingly, I decline to rule that Mr.

Ahmed-Kadir is not entitled to advance argument and seek any remedy in relation toalleged violations of s. 9 and s. 10(

b) of the Charter. (

b) Search or Seizure [85]

Section 8 of the Charter reads as follows: 8. Everyone has the right to be secure against unreasonable search or seizure. [86] This right guarantees a broad and general right to be secure from unreasonable search and seizure by the state. Accordingly, thereis a legal presumption of unreasonableness where a search has taken place without a warrant, placing the onus upon the Crown to justifythe warrantless search: see Hunter v. Southam Inc., (SCC), [1984] 2 SCR 145. [87] It is not disputed by Crown Counsel that this was a warrantless search.

It is argued that the evidence clearly establishes that thepre-conditions for the justification of a warrantless search as set out in R. v. Collins, (SCC), [1987] 1 SCR 265, havebeen met. [88] In Collins, the Court confirmed that once an applicant seeking a s. 8 ruling has demonstrated that a search is a warrantless search,the burden then shifts to the Crown to establish that the search was, on a balance of probabilities, reasonable.

The Supreme Court ofCanada goes on at para 34 to define a reasonable search as follows: A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried outis reasonable. In this case, the Crown argued that the search was carried out under s. 10(1) of the Narcotic Control Act, above.

As theappellant has not challenged the constitutionality of s. 10(1) of the Act, the issues that remain to be decided here are whether the searchwas unreasonable because the officer did not come within s. 10 of the Act or whether, while being within s. 10, he carried out the searchin a manner that made the search unreasonable. [89] Within the framework of an s. 8 argument, the Court must also be satisfied that the Applicants have established that they enjoyeda reasonable expectation of privacy. The significance of a private dwelling place has been discussed in numerous cases by the SupremeCourt of Canada.

I find on the facts before me that the notion of territorial privacy of the suite of the Applicants has been met. As such,the issue that must be resolved is whether the pre-conditions set out in Collins respecting a warrantless search have been met. (

i) Was the Search Authorized by Law [90] Counsel for both Applicants argue that the pre-conditions for an authorized search have not been met in this case. Besidesrelying on Collins, Counsel rely on the instructive language of Chief Justice Lamer in Caslake, at paragraph 12, which reads as follows: In order to be reasonable, searches and seizures must be authorized by law…There are three ways in which a search can fail to meet thisrequirement. First, the state authority conducting the search must be able to point to a specific statute or common law rule that authorizesthe search.

If they cannot do so, the search cannot be said to be authorized by law. Second, the search must be carried out in accordancewith the procedural and substantive requirements the law provides…Third, and in the same vein, the scope of the search is limited to thearea and to those items for which the law has granted the authority to search. To the extent that a search exceeds these limits, it is notauthorized by law. [91] Crown Counsel argues that the search and seizure of the suspected drugs and gun was authorized at common law.

It is argued byCrown Counsel that the situation facing Constables Hirst and Gock is exactly the type of situation in which police must take a proactiveapproach and that the decisions of R. v. Godoy, R. v. Purchase, R. v. Lawrence, and R. v. Hardt are all on point. [92] In the leading case of Godoy, police officers were dispatched to an apartment after the police received a 911 dropped call. Thepolice gave the dropped call high priority and in quick order they arrived at the residence of Mr. Godoy which was identified as thesource of the dropped call. Mr.

Godoy answered the door after the police knocked and announced their presence. Notwithstanding Mr.Godoy’s assertion that nothing was amiss, the police stopped him from closing the door and forced their entry into the residence. Analtercation took place between Mr. Godoy and one of the police officers. Mr.

Godoy was charged with assaulting a peace officer withthe intent of resisting arrest. [93] The Supreme Court of Canada held that police have the authority and a common law duty to investigate 911 calls and, indeed,may have authority, depending on each situation, to enter a dwelling forcibly to discharge their duty to protect life which includespreventing death or serious injury. The Chief Justice at para 16 notes:

A 911 call is a distress call -- a cry for help. It may indeed be precipitated by criminal events, but criminal activity is not a prerequisite for assistance. ... The point of the 911 emergency response system is to provide whatever assistance is required under the circumstances of the call. In the context of a disconnected 911 call ...

The police duty to protect life is therefore engaged whenever it can be inferred that the 911 caller is or may be in some distress, including cases where the call is disconnected before the nature of the emergency can be determined. [ 94 ] In this case there was no consent granted to Constable Hirst to enter the apartment by either Applicant; as a result, such entrance would constitute a prima facie interference with the liberty and property of both Applicants. Godoy establishes that in such a circumstance the principles annunciated in R. v. Waterfield , [1963] 3 ALL E.R. 659 , are engaged.

The Waterfield analysis requires that the Court determine first whether the police were acting in the course of their duty, and second whether their conduct involved an unjustifiable use of their powers in all of the circumstances. [ 95 ] In this case, Constables Hirst and Gock were responding to a third party 911 call in which the caller heard noise consistent with a domestic assault. Indeed, Constable Hirst testified that when he arrived at Suite 308 he heard a female screaming from within the suite although he could not make out her specific words.

I find the 911 dispatch evidence and the evidence of Constable Hirst to be reliable on this point. [ 96 ] Upon entry into the suite, safety concerns expressed by Constable Hirst increased when he saw the state of disarray. I find that in the context of all of the circumstances of this case, Constable Hirst would have been derelict in his duty to protect life, which includes preventing death or serious injury, if he had not entered into the suite.

I am mindful of the privacy interests of the Applicants in relation to the sanctity of their suite, but I also note the comment of Chief Justice Lamer in Godoy , at para 21, that in relation to the prevalence of domestic violence, one of the hallmarks of domestic violence “is its private nature”. [ 97 ] I conclude that the entry into the suite of the Applicants was authorized by law.

I further find that Constable Hirst was acting in the course of his duty and his actions did not involve an unjustifiable exercise of his duties. (ii) Is the Law Reasonable [ 98 ] Notwithstanding the privacy interests enjoyed by the Applicants there is an over-arching duty placed in the hands of the police, in the context of 911 emergency calls relating to domestic violence, to take all reasonable steps to ensure the protection of life which includes preventing death or serious injury. [ 99 ] I find that the entry into the suite, having regard to all the circumstances, was reasonable as it was in response to a 911 call, which calls are given a high priority response by the police.

I further find that the enhanced safety concerns expressed by Constable Hirst were genuine. Indeed, his sole purpose for entry was firstly in relation to safety concerns and secondly to investigate whether or not a domestic assault had taken place. [ 100 ] I find that the common law duty of police officers to fully explore 911 calls, especially in the context of suspected domestic violence as in this case, is reasonable. (iii) Was the Clearing Search Reasonable [ 101 ] It is submitted by Counsel for the Applicants that the clearing search of the suite was unreasonable and unnecessary in all of the circumstances.

In particular, Counsel points to the evidence of Constables Hirst and Gock regarding when they liaised with each other after speaking to the Applicants and determined that they were unable to say with any degree of certainty that, in fact, a domestic assault had taken place. At that point, it is argued, the domestic violence investigation is over and the police should have left the suite. [ 102 ] Constable Hirst testified that when he entered the suite he saw Mr. Ahmed-Kadir coming out of the bedroom and at that time arrested Mr. Ahmed-Kadir for assault.

He then made observations of the disarray within the suite and those observations could not be described as a search in the true sense of the word. The disarray within the suite did elevate his opinion that an assault took place. [ 103 ] I find the clearing search took place when Constable Rossiter arrived on scene as backup in relation to the 911 call. She testified that she conducted, as a matter of safety practice, a clearing search of the bedroom and the bathroom and then positioned herself in an area of the hallway adjacent to the kitchen. R. v.

Purchase is clear authority for the proposition that Constable Rossiter would not have been executing her common law duty to protect life and safety of others if she had not conducted a 911 clearing search. [ 104 ] I accept her evidence that there were no intrusive actions taken by her with respect to the clearing search and that her actions amounted to a minimal interference with the territorial property interests of the Applicants. [ 105 ] I also accept the evidence of Constable Rossiter that her observations of the suspected drug bong and the suspected cocaine in the kitchen do not have any bearing in relation to the clearing search.

Her observations were simply incidental to her perceived task of clearing the suite and awaiting further directions, if necessary. I also accept her evidence that she initially overlooked clearing the hallway closet and eventually did so as a result of her observations of the suspected drug bong and the suspected cocaine. [ 106 ] Clearing search investigations may be fluid in nature. In this case, the domestic assault investigation properly changed direction when Constable Rossiter observed the suspected drug bong and the suspected cocaine.

The investigation essentially became a dual investigation and her observations of the suspected drug bong and suspected cocaine would clearly heighten officer safety concerns. [ 107 ] I find that in the context of this dual investigation, the clearing search preventative actions taken by Constable Rossiter were reasonable having regard to all of the circumstances. [ 108 ] That does not end the analysis on this issue. It is further argued by Counsel for both Applicants that Mr. Ahmed-Kadir should not have been arrested, which bears on whether or not the clearing search was reasonable.

A police officer can arrest a person without warrant pursuant to s. 495 of the Criminal Code when that officer believes, on reasonable grounds, that the person has committed, or is

about to commit, an indictable offence. It must be established both that there was a subjective belief that there were reasonable and probable grounds and that objectively those reasonable and probable grounds could exist: see R. v. Storrey at para 324 . [ 109 ] In this case, Constables Hirst and Gock were responding to a 911 possible domestic assault in progress. I accept the evidence of Constable Hirst that at the door leading into the suite he heard the voice of an agitated female.

This subjectively supported the 911 dispatch information. [ 110 ] Constable Hirst’s subjective belief that an assault had taken place was bolstered when he entered the suite and observed the state of disarray. This amplified his subjective concerns. [ 111 ] I find Constable Hirst’s actions in arresting Mr. Ahmed-Kadir was not based on a “hunch” or mere suspicion, or that Mr. Ahmed-Kadir was at the wrong place at the wrong time, but was based on the reasonable and probable belief that Mr. Ahmed-Kadir was responsible for an assault upon Ms.

McFadyen. [ 112 ] The denials by both Applicants that any assault took place only came after the arrest of Mr. Ahmed-Kadir following interviews of both Applicants. That would bear on the length of time that Mr. Ahmed-Kadir would be subject to a lawful arrest, but does not bear on the initial reasonable and probable grounds relied upon by Constable Hirst in his arrest of Mr. Ahmed-Kadir. [ 113 ] I find the arrest of Mr.

Ahmed-Kadir to be justified for articulable cause and, incidental to that arrest, the clearing searches by Constables Rossiter and Hirst to be justified. (iv) Was the Seizure of the Suspected Drugs and Gun Reasonable [ 114 ] The observations of the suspected drug bong and cocaine by Constable Rossiter were incidental to the domestic violence investigation. Those items, located on top of the refrigerator in the kitchen, were essentially at her eye level and were, I find, in plain view.

I further find the principles relating to the common law authority to seize “plain view” potential criminal evidence are met on this issue. Those principles are discussed in these reasons relating to issues respecting s. 9 and s.10(

b) of the Charter . [ 115 ] I further find that Constable Rossiter was acting in good faith in her police actions and she was obliged to bring her observations to the attention of Constable Hirst.

His seizure of the suspected cocaine, I find, was not in violation of s. 8 of the Charter . [ 116 ] Having found that Constable Rossiter’s clearing search of the hallway closet was lawful, the question turns on whether or not the subsequent actions by Constable Hirst in looking into the bag within the closet in which a gun was located amounted to an unreasonable search with a subsequent seizure of the gun absent a warrant in violation of s. 8 of the Charter . [ 117 ] It must be remembered that the suspected cocaine was located within an apartment complex. Violence associated with cocaine is common.

A hard drug, such as cocaine, located in these circumstances would heighten officer safety concerns for themselves and innocent apartment occupants. While ideally it may have been more prudent for the police to have secured the premises after Constable Rossiter saw the drugs and then obtained a warrant, I find that the investigation involving the Applicants was evolving rapidly as the police commenced their investigation relating to the drugs.

Safety concerns for the police and innocent apartment occupants must take a priority to ensure safety for all. [ 118 ] I find that Constable Hirst had heightened safety concerns after the drugs were found.

When he looked into the bag in the hall closet, I find he did not manipulate or interfere with the contents of the hallway closet and his actions in looking into the bag located on a shelf in the closet cannot be said to be an unreasonable search on the totality of the circumstances taking place within the suite. [ 119 ] Accordingly, I find that the actions of Constable Hirst in looking into the bag and observing the handle of a gun is not an unreasonable search. Once Constable Rossiter saw the suspected drug bong and drugs on the refrigerator there was a heightened dynamic of potential volatility.

Once the gun was found, failure to seize the gun was not an option. Accordingly, I find there is no breach of either Applicants S. 8 Charter right. [ 120 ] Were I to find a breach of the s. 8 rights of the Applicants in relation to the drugs and gun, I find that the evidence would otherwise be admissible applying s. 24(2) of the Charter in the Grant analysis. The balancing of the factors would favour inclusion. (

c) Detention or Imprisonment [ 121 ]

Section 9 of the Charter reads as follows: 9. Everyone has the right not to be arbitrarily detained or imprisoned. [ 122 ] In analyzing the s. 8 Charter argument I have found that the arrest of Mr. Ahmed-Kadir was lawful on all of the circumstances.

I accept that Constable Hirst believed that he had reasonable and probable grounds to make an arrest based upon his observations at the door of the residence, information from the original 911 dispatch and the observed state of disarray within the suite upon his entry. [ 123 ] This is not a situation where an arrest was made by mere presence in a place suspected to contain drugs as discussed in Whittaker. Again, I emphasize that the arrest was made in the context of a suspected domestic violence situation.

Other suspected criminal activity had no bearing whatsoever on the grounds advanced by Constable Hirst. [ 124 ] I further find that when Constables Hirst and Gock separated the two Applicants, the continuing investigation to determine what exactly took place within the suite is procedurally appropriate and not contrary to the principles set out in Storrey . [ 125 ] When Constable Dhaliwal and, latterly, Constable Rossiter arrived at the suite, neither officer was aware as to whether or not Mr.

Ahmed-Kadir was subject to an arrest. [ 126 ] In the s. 9 analysis I find it is the actions of Constable Dhaliwal, not Constable Hirst, that require examination.

[127] Constable Dhaliwal testified that he was concerned when he saw Mr. Ahmed-Kadir as he was aware of information that Mr.Ahmed-Kadir was associated to a gang or gang violence involving firearms. Constable Dhaliwal made no enquiries of Constable Hirst asto whether or not Mr. Ahmed-Kadir had been arrested. [128] In addition, Constable Dhaliwal made no enquiries of Constable Hirst as to why Mr. Ahmed-Kadir was not in handcuffs.

Had hemade any such enquiry he would have found out that Constables Hirst and Gock were unable to say with any certainty that, in fact, adomestic assault had taken place in light of the denials by both of the Applicants. [129] It was the opinion of Constable Dhaliwal that he should keep an “eye” on Mr. Ahmed-Kadir and that it would be wise to placeMr. Ahmed-Kadir in handcuffs. Constable Dhaliwal recalled that he did tell Constable Hirst about information respecting Mr. Ahmed-Kadir but could not recall if he had told any other officers.

Details of his concerns were vague and had little connection to actual officersafety concerns. [130] There is no question that police officers may need to detain individuals for investigative detention if reasonably necessaryhaving regard to all of the circumstances which establish suspicions that clearly connect the detainee to recent or ongoing criminalactivity: see R. v. Mann, 2004 SCC 52 , [2004] 3 S.C.R. 59, at para 34. [131] I find that Constable Dhaliwal simply wanted to keep an “eye” on Mr. Ahmed-Kadir based upon some vague suspicion that Mr.Ahmed-Kadir may be up to some improper activity.

This would not meet the threshold test as set out in Mann at para 45 whereIacobucci J. had this to say: ... police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstancesthat the individual is connected to a particular crime and that such a detention is necessary. [132] I find that at the time that Mr.

Ahmed-Kadir was placed back in handcuffs by either Constables Dhaliwal or Hirst and was thenquestioned in the living room by Constable Dhaliwal, such amounted to a detention both physically and psychologically which had noconnection to the assault investigation and accordingly was not authorized by law. [133] I, therefore, find that the actions by Constable Dhaliwal in his dealings with Mr. Ahmed-Kadir resulted in an arbitrary detentionin violation of the s. 9 Charter right of Mr. Ahmed-Kadir. (

d) Right to counsel [134]

Section 10(

b) of the Charter reads as follows: Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. [135] The purpose of the informational component in s. 10(

b) is to ensure that an individual who is detained or under arrest isequipped with sufficient information to make an informed choice. An individual who is detained or under arrest has a right to be toldimmediately of his or her s. 10(

b) rights: see R. v. Suberu, 2009 SCC 33. [136] One of the primary purposes of s. 10(

b) rights is to ensure that a person who is detained or subject to arrest is informed of his orher reasons for detention or arrest so that he or she may make an informed choice on whether to exercise the right to counsel with aproper understanding of his or her jeopardy: see R. v. Black, (SCC), [1989] 2 S.C.R. 138 at paras 152 and 153. [137] In this case Constable Hirst arrived on scene at 2:29 p.m. and upon entering the suite of Mr. Ahmed-Kadir immediately arrestedand handcuffed him. It was not until 2:52 p.m., after the suspected drugs and the gun were located in the suite, that Mr. Ahmed-Kadirwas advised of his s. 10(

b) rights. [138] Constable Hirst testified that he held off in advising Mr. Ahmed-Kadir of his s. 10(

b) rights relating to the assault as he wasliaising with Constable Gock to determine whether or not a domestic assault had taken place. [139] Notwithstanding the dynamic in domestic violence situations, I find that in this case there has not been a proper basis forConstable Hirst withholding the informational component of s. 10(

b) of the Charter from Mr. Ahmed-Kadir. This is particularly so asConstable Dhaliwal was engaged in conversation with Mr. Ahmed-Kadir in relation to drugs and the gun within the suite. That goes tothe very heart of the degree of jeopardy issue which potentially faced Mr. Ahmed-Kadir when he was under arrest thus making the s.10(

b) informational component that much more critical. Accordingly, I find that Mr. Ahmed-Kadir’s rights under s. 10(

b) of the Charterwere violated in this case. (

e) Remedy [140] It is argued by Counsel for Mr. Ahmed-Kadir that, should the Court find that there were breaches of his client’s rights under theCharter, those breaches demonstrated a pattern of disregard for Mr. Ahmed-Kadir’s rights and, therefore, the drugs and the gun locatedin the suite should be excluded pursuant to s. 24(2) of the Charter. Crown Counsel argues that, should the Court find breaches of eitherApplicant’s’ rights under the Charter, there is no nexus connecting the drugs and the gun to those breaches.

Crown Counsel argues thatthe plain view doctrine applies in this case and that the criteria in relation to the exercise of that doctrine would justify admission of thedrugs and the gun. [141] Though I have not found a breach of either Applicant’s s. 8 Charter right, I will nonetheless examine the “plain view” doctrineissue in the context of this case as it was advanced by Crown Counsel with respect to ss. 9 and 10(

b) of the Charter. [142] The common law authorizes “plain view” seizures if certain criteria are met. That criteria was extensively reviewed by theSaskatchewan Court of Appeal in R. v. Spindloe, 2001 SKCA 58.

[ 143 ] I accept the proposition of Crown Counsel in her written argument that the criteria set out in Spindloe for the seizure of “plain view” evidence can be summarized as follows: 1. “Lawful police presence; 2. The police discover the evidence inadvertently while in the course of exercising a lawful police power or performing a lawful police duty; 3. The evidence was in plain view in the sense that it was detected through the unaided views of the police officers senses; 4.

It must have been merely apparent to the police officer that the evidence was probably connected with criminal activity; Spindloe at paras 24-42 .” [ 144 ] I find in this case that the police were lawfully present in response to a 911 call and that Constable Hirst had articulable cause to arrest Mr. Ahmed-Kadir. [ 145 ] I accept the evidence of Constable Rossiter that she observed the suspected drug bong and baggies of rock-cocaine on top of the refrigerator when she was inside the residence acting in her capacity to clear the residence and to assist her fellow officers if called upon to do so.

I accept her evidence that the suspected drug bong and the suspected drugs were in plain view and that those observations were completely disconnected to other activities taking place involving either Applicant. [ 146 ] I further find that the location of the suspected drug bong and the suspected drugs made it immediately apparent that other criminal activity was taking place within the suite. [ 147 ] Accordingly, I find that the criteria for the plain view doctrine in relation to the suspected drug bong and the suspected drugs located on top of the refrigerator are met.

This is particularly so as Constable Rossiter was not involved in any dealings with either Applicant nor any actions taken by Constable Dhaliwal with Mr. Ahmed-Kadir in the living room. Accordingly, I find that the location of the suspected drug bong and the suspected drugs is unrelated to and disconnected from any violation of Mr. Ahmed-Kadir’s rights pursuant to s. 9 and s. 10(

b) of the Charter . [ 148 ] The location of the gun in the bag within the hallway closet poses greater difficulty in the plain view doctrine examination. After Constable Rossiter had located the suspected drug bong and the suspected drugs, she advised Constable Hirst of what she had located and then conducted a further preventative search of the hallway closet with negative results. Constable Hirst conducted a further search of the closet subsequent to Constable Rossiter’s search and only then, by peering into a bag in the upper reaches of the closet, noticed what he believed to be the handle of a gun.

I find that Constable Hirst’s actions do not meet the inadvertence criteria articulated by the Saskatchewan Court of Appeal in Spindloe and as such the plain view doctrine would not apply in relation to the gun. [ 149 ] Notwithstanding that the plain view doctrine would not apply to the gun, the gun is important evidence. I do not find that the actions by Constable Hirst or by Constable Rossiter amounted to any bad faith on their part. The more thorough search of the closet by Constable Hirst resulted from Constable Hirst observing the suspected drug bong and drugs on top of the refrigerator.

This would clearly heighten anxiety and concern for officer safety and for the safety of others, particularly so in an apartment complex in a residential area of Vancouver. That in part forms the basis for this Court finding that there was not a breach of either Applicant’s rights under s. 8 of the Charter . [ 150 ] Constable Dhaliwal’s actions in his interactions with Mr. Ahmed-Kadir cannot be condoned and may even verge on bad faith.

Nonetheless, they have no bearing on the evidence observed and seized by Constables Rossiter and Hirst. [ 151 ] Even if it is argued that the police would have been more prudent in securing the residence and seeking a warrant after the suspected drug bong and drugs were located, any s. 9 or s. 10(

b) violation flowed from an honestly held but mistaken belief by the police that the danger inherently present in all of the circumstances justified a further search of the closet. If there was any error committed by Constable Hirst in further searching the closet, it amounted to no more than an error in judgment and in no measure did his actions amount to disrespect for either Applicants’ constitutional rights. [ 152 ] Overall, in relation to the breaches of Mr. Ahmed-Kadir’s rights under s. 9 and s. 10(

b) of the Charter , I do not find any nexus between those breaches and the discovered evidence.

I also find that the seized drugs and the gun were non-conscriptive evidence which would bear on a Grant analysis. [ 153 ] The Supreme Court of Canada in Grant has settled the analysis for exclusion or inclusion of evidence where Charter breaches have been established at paragraph 74 in the following language: A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective.

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach of the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits.

The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. [Emphasis added] [ 154 ] Applying the three-stage inquiry as established in Grant , I find that a balancing of the factors favours inclusion rather than exclusion of the drugs and the gun. In particular, I emphasize the over-arching public interest in having this case adjudicated on its merits.

The gun was located after Constable Rossiter located the suspected drug bong and suspected drugs on the refrigerator. The gun

is highly reliable evidence and the presence of suspected rock cocaine and a gun in an apartment building in a residential area in the city of Vancouver cannot be understated. The potential for violence would be real and not speculative. [ 155 ] In the context of this case, I further find that Mr. Ahmed-Kadir has not established a nexus between the breaches of his Charter rights and the seized drugs and the gun. CONCLUSION [ 156 ] For the foregoing reasons I find that the rock cocaine and the gun located within the suite of both Applicants is admissible evidence and shall form part of this trial ________________________________ The Honourable G. Rideout Provincial Court of British Columbia