R. v. Aslany Date:, 2011 BCPC 14

Citation: R. v. Aslany Date: 20110125 2011 BCPC 0014 File No: 53949-1 Registry: RICHMOND IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KAMIAR ASLANY RULING ON VOIR DIRE OF THE HONOURABLE JUDGE R. D. FRATKIN Counsel for the Crown: D. Clements Counsel for the Defendant: D. Jevning Place of Hearing: Richmond , B.C.

Dates of Hearing: September 27 and 28, 2010 Date of Judgment: January 25, 2011 FACTS: [ 1 ] The accused, Kamiar Aslany is charged under the Controlled Drugs and Substances Act with: Count 1: Possession of Cocaine for the Purposes of Trafficking and; Count 2: Possession of Heroin for the Purpose of Trafficking. [ 2 ] The offence is alleged to have occurred in Richmond on April 16 th 2009. [ 3 ] On the above date, Cst.

Lee, an RCMP member since 2008, was dispatched to investigate a report from a civilian who had observed a suspected drug transaction in front of the civilian’s condominium on Dayton Avenue in Richmond. The civilian witness described the type of vehicles and provided license plate numbers of the cars involved in the event. Cst. Lee testified that, upon arrival at

the scene, he could not see any cars fitting the description given. He then computer checked the license numbers and was advised that the cars were mentioned as having been involved in other drug reports. One car belonged to a man named Nelson, who lived on Blundell Road. Cst. Lee attended to Nelson’s home and interviewed him. Nelson, after some prompting by Cst. Lee, described the route he had used to get home and later admitted to purchasing drugs on Dayton Avenue, from a non-white male driving a grey Honda Civic. He also provided a phone number. Nelson produced the drugs he had purchased. Cst.

Lee released Nelson on a “no case seizure”. The constable next went to the address of the registered owner of the Honda Civic (Charles Wang). The Honda Civic was not at that address and Cst. Lee decided to return to the detachment. On his way to the detachment, Cst. Lee saw the Honda Civic going westbound on Francis Road at Number Three Road. Cst. Lee called for back-up and followed the car to 9211 Gilhurst Crescent. As the Honda Civic turned into the driveway of the foregoing address, Cst. Lee activated his car’s emergency equipment (lights) and pulled in behind the Honda.

The accused got out of the Honda Civic and was met by Cst. Lee. The two of them engaged in conversation and shortly thereafter, Cst. Simpson arrived. The accused was subsequently arrested and a search was conducted. Certain objects leading to the charges before the Court were obtained in the search. These items included money, drugs and other evidence relied upon by the Crown in the prosecution of the accused. [ 4 ] A voir dire was conducted to determine the admissibility of that which was seized during the search. VOIR DIRE ISSUES:

a) Did the Police Officer have reasonable and probable grounds to arrest the accused without warrant?

b) Did the Police Officer unlawfully seize a cell phone from the accused and use it to obtain information in order to obtain the requisite grounds for the arrest of the accused?

c) Was the search of the accused incidental to a lawful arrest?

d) Were the objects obtained in the search obtained in violation of

section 8 of the Charter of Rights and Freedoms? [ 5 ] Concerning the arrest of the accused, a transcript of the voir dire direct examination of Cst. Lee reveals the following: DIRECT EXAMINATION OF CST. LEE: [ 6 ] At page 10, line 28 of the Trial Transcript: (emphasis added) “The vehicle proceeded to pull into the driveway and the driver and sole occupant of the vehicle got out of the vehicle very quickly . Q And so what observations did you make of the driver at the point they exited the vehicle? A So the driver was a non-white male, he was carrying a cellphone and a wallet in his hands.

I began speaking to the driver -- I asked to see the male's hands when he got out, and to -- I asked if I could speak with him. I began speaking with the male, waiting for Cst. Simpson to arrive, who was en route. And I noticed that the cellphone in his hands had been ringing continuously. At that point, Cst. Simpson arrived and I place the male, identified as Mr. Aslany, into custody . (emphasis added) MR. CLEMENTS: Q And why did you place him into custody? A I placed him into custody for possession for the purpose of trafficking. Q And by placing in custody, you mean you -- you arrested him?

A I arrested him, correct. Q And did you advise him of why you were arresting this individual? A Yes, I did. Q Did you advise him of anything else? A Yes. From memory I advised him of his 10(

a) and 10(

b) rights, as well as the police caution. Q And that point -- you arrested this individual after Cst. Simpson arrived? A Correct. Q And on what basis did you make that arrest? A The arrest was based on several factors. The witness witnessing what he believed to be a drug deal between the vehicle that the suspect was driving and another vehicle.......I had spoken to Mr. Nelson, who indicated that he had just purchased drugs from a non- white male on Dayton Avenue from the Honda Civic. Mr. Nelson produced the supposed crack rock that he said that he bought from this male.

Police checks revealed that there were several drug files associated to this vehicle. I located the vehicle with a non-white driver and while speaking to the male, his cellphone was ringing continuously .

MR. CLEMENTS: Q So these then formed your grounds for arresting for possession for the purpose of trafficking? A Correct. Q And after this arrest and the reading or the reciting of -- from memory of the Charter and police caution, what occurred? A I searched the individual incidental to arrest . Q That search reveal anything? A Yes, it did. Two sets of car keys in the front right......Two sets of car keys in the front right sweater pocket, $420 in fives, tens and 20s in his right shorts pocket, $50 in his left shorts pocket, and suspected crack and heroin in his left thigh shorts pocket. THE COURT: Suspected?

A Crack and heroin, Your Honour. THE COURT: Crack and heroin. Where? A His left thigh shorts pocket. THE COURT: Left thigh? A Yes. THE COURT: Okay. A While I was searching the -- the individual, while his hands were handcuffed behind his back, he kept reaching for the pocket where the drugs were located, with his left hand, and was repeatedly asked to stop. MR. CLEMENTS: Q So you seized these items. A Correct. Q And did you seize anything else in relation to this investigation? A I seized both cellphones, the one that had been in his hand and the one that was found on.” CROSS-EXAMINATION OF CST.

LEE: [ 7 ] At page 47, line 23 of the Trial Transcript: “Q And you're at the driveway at what time? A 2258. THE COURT: 20? A 2258. THE COURT: 2258. MR. JEVNING: Q So 68 minutes had passed since you got the report and the time -- and the time the person got out of the car and you were there with him Q You didn't arrest the person immediately? A I waited for backup. Q You didn't arrest the person immediately? A No. Q You told him to show your hands? A Yes. Q You asked if you could speak with him.

A Yes. Q You entered into a conversation with him. A Yes.” (at page 48 Transcript:) “A I don't remember what I said, but I didn't mention an alley. There was no alley in this situation. Q Didn't mention the Dover Arms? A No. Q Didn't mention what the cameras might show? A No. Q You're sure of that? A No. Q You're not sure of that? A No, I'm not. Q Okay. And then you say some time went by, but you still hadn't arrested him. A Yes. Q And you say that Cst. Simpson arrived and that's when you put him under arrest. A Yes. Q And the reason you waited for Cst. Simpson was what ? A Backup . Q To arrest him?

A Yes.” (Discussion about gun being drawn and the cell phone ringing constantly) (page 50 line 32 of the transcript) “Q In fact, anytime that phone rang more than once if you didn't answer it, it could've been the same person calling, for all you know. A Yes, it could have been. Q I'm going to suggest to you that in fact it was ringing, it rang just as Cst. Simpson had walked up and the phone rang and Mr. Aslany opened the phone to turn it off and Cst. Simpson took the phone from Mr. Aslany's hands. What do you say about that? A I don't recall. Q I'm going to suggest that after that, Cst.

Simpson spoke a few words and listened to somebody in the phone. Do you agree with that? A Yes . Q I'm going to suggest that after that, Cst. Simpson turned to you and said, search him, and you commenced to search Mr. Aslany. Do you remember that? A No, I don't. Q Is it possible that happened? A I don't believe so, no . Q Before you haven't believed things but you've been unsure. What do you say about this? Do you think that it's possible that that happened? A Possible. Q I'm going to suggest that Mr. Aslany had his hands on the trunk of his vehicle while you searched him.

A On my vehicle? Q His vehicle. A No. He was in handcuffs when he was searched. Q You searched him while he was in handcuffs? A Yes.” (At page 57 of the Transcript regarding the seizure of the cell phone) “Q And did you put all the things that you'd seized on the hood of your vehicle? I mean, I just have a note about the cellphone, I didn't get anything about keys and drugs and the other cellphone -- or keys and the drugs, and the money, I guess. A I believe so. Q Okay. And you placed those on the hood of the vehicle? A Yes. Q So you -- so you handcuffed Mr. Aslany, you say? A Yes.

Q And you took -- you say you took the telephone out of his hand then and put that on the hood of the car, and then similarly with all the other items that you've located when you searched him? A I'm not sure whether I took the items out of his hands or not, where they went at that time, whether I took them or Cst. Simpson took them as I was accessing my handcuffs. Q I seized both cellphones and the phones were placed on the hood of the vehicle during the search. That is your evidence. A Yes. Q That's what you told His Honour. A Yes. Q That's what you swore was the truth. A Yes.

Q You're telling him now that maybe that wasn't quite accurate? A It's possible. Q Didn't have any doubt this morning. A No. Q When did you get the doubt? A Thinking about it.” DIRECT EXAMINATION OF CST. SIMPSON: (Page 63 Transcript line 5 onward) “A I was called by Cst. Ryan Lee requesting assistance with a traffic stop on a vehicle, Your Honour. Q And after that call for assistance what did you do? A I then proceeded to the area that Cst. Lee had stopped the vehicle, at -- in the driveway of 7211 Gilhurst Crescent in the city of Richmond, British Columbia, Your Honour.

Q And when you attended that location what did you observe? A Upon attending that location I observed a 2008 Honda Civic silver, with the driver's side door open and Cst. Lee speaking with a male at the rear of the vehicle. Q When you say the vehicle, what vehicle are you referring to? A A 2008 Honda Civic, grey in colour, bearing British Columbia licence plate 803 LHC.......... Q What did you then do?

A I exited my police vehicle and observed Cst. Lee engaging in a conversation with the male that was seated behind the vehicle -- or standing behind the vehicle along with Cst. Lee. And I observed the conversation for a short period of time. Q So just to clarify, were both Cst. Lee and this individual standing in the same general area, both behind the vehicle? A Both behind -- between Cst. Lee's vehicle and the grey Honda Civic. Q And then after observing the conversation for a period of time then what happened? A I observed Cst.

Lee advise the male that he was under arrest and begin to place the male in handcuffs. Q And then what if anything did you do? A While Cst. Lee was placing the male in handcuffs I observed that the male had a cellphone and a wallet in his hands, and I removed both the cellphone and the wallet from the male's hands to assist Cst. Lee in handcuffing the male, Your Honour. Q And what did you do with these objects once you removed them? A I placed the wallet onto one of the vehicles and the cellphone continued to ring, and I answered the cellphone . THE COURT: Placed the wallet? A Onto one of the vehicles.

I can't recall if it was onto the police vehicle or onto the grey Honda Civic. THE COURT: Okay, and you -- what'd you do with the cell? A I answered the cellphone as it was continuously ringing . MR. CLEMENTS: Q And when you answered the cellphone what happened? A When I answered the cellphone, the male on the other end of the cellphone asked if he was speaking with a male named Gary. Q And what if anything did you say? A I advised him he was speaking with Gary, Your Honour.” (page 67 of the Transcript line 2011) “Q Did you have any further involvement in the investigation?

A I then searched the vehicle, the grey Honda Civic, incidental to the arrest .” CROSS-EXAMINATION OF CST. SIMPSON: [ 8 ] At page 70, line 36 of the Transcript: “Q You said, when you were there. Cst. Lee was talking to Mr. Aslany about his phone when you got there. A That is correct, Your Honour. Q And the phone rang while you were there. A That is correct, Your Honour. Q And I'm going to suggest to you that the phone rang and Mr. Aslany flipped open the phone to turn it off and -- well, flipped it open. You don't know whether he was going to turn it off or not. And that's when you took it from him.

A That is not correct. Q I'm suggesting that you took it from him, you answered the phone, you had the conversation that you've related and during the conversation you turned to Cst. -- sorry, you're Simpson -- Cst. Lee and said, search him, referring to Mr. Aslany. A I do not believe that is correct, Your Honour.” [ 9 ] At page 71, line 37 of the Transcript: “MR. JEVNING: Q I'm going to suggest to you that anybody who looked out a window in that residence would have had a pretty darn clear view of what was going on at the rear of Mr. Aslany's car or the car he was driving.

A I wouldn't be able to speculate as to what they could see from inside the residence. It was a dark and rainy night, Your Honour. Q I'm suggesting that where you were standing at the rear of the car Mr. Aslany was driving, that the distance to a window in the

house is four feet or less.” (transcript page 72 line 9) Q I'm going to suggest to you that this conversation that you had on that cellphone took place before Mr. Aslany was arrested,before he was Chartered, before he was warned and before he was searched. A I would disagree with that statement, Your Honour. Q I'm going to suggest that the three of you were standing behind the Honda Civic. A That is correct.” [10] Kamiar Aslany: The accused testified on the voir dire. He said that he was stopped by Cst. Lee and he got out of the Hondawhich he was driving.

The accused then said he walked to the back of the car as the officer approached him and was told to show hishands. The accused complied. Cst. Simpson arrived and the accused's cell phone rang one time and the accused took the phoneand was attempting to shut down or turn off the phone. The accused testified Cst. Simpson took the phone from the hands of theaccused and answered the call. The police officer then pointed to the accused and to Cst. Lee and told Cst. Lee to search theaccused. The accused had not been arrested at this point and had not been advised of the Charter of Rights.

The police officerhandcuffed the accused and began to search him. [11] On cross-examination, the accused insisted that he tried to turn his phone off and was prevented from doing so by the officerwho answered the phone. He denied reaching for the phone to get a hold of it. Mohamed Bayat: did not see anyone talking on the cell phone and only said that he saw the police officers take something from thehands of the accused. The accused was arrested and a subsequent search revealed that he carried in various pockets of his clothing drugsand money.

DEFENCE SUBMISSIONS: [12] At page 74, line10 of the Trial Transcript: “MR. JEVNING: Well, it’s not a secret that this cellular telephone was seized from Mr. Aslany prior to his being arrested, Chartered,warned and searched and that the seizure – an argument – and I don’t mind saying this, an argument will be that the seizure was withoutwarrant, wasn’t incident to any lawful arrest and was unreasonable.

And the grounds which I say may have been obtained as a result ofthat ought not to be considered in determining the lawfulness of the arrest and the subsequent search and seizure of anything else thatmight be found. And that doesn’t preclude me from saying even if I’m wrong in that, their version doesn’t give them reasonable andprobable grounds for the search. Which I also say. And doesn’t preclude me from saying that I don’t think that Cst. – THE COURT: So your – MR. JEVNING: -- Lee’s identified with any particularity the guy. THE COURT: So your argument is that there aren’t the grounds for an arrest – MR.

JEVNING: Right.” [13] Mr. Jevning submits that the police officers had, at best, an articulable cause for an investigative detention. The officers had areasonable suspicion, and thus could momentarily detain and question the accused without engaging the Charter of Rights. They cannotsearch an accused beyond a pat down to determine if the suspect possesses a weapon or something that would endanger the safety of thepolice officers. Regina v. Greaves, (2004),2004 BCCA 484 , 189 C.C.C. (3d) 305 (B.C.C.A); Regina v. Mann, 2004 SCC 52, [2004] S.C. J.

No. 49 (at paragraph 40) [14] The accused submits that the police officers lacked reasonable and probable grounds to arrest the accused until they seized thephone from the accused and listened to a drug proposition. It was only at this time that the police officers obtained the requisite groundsto arrest and then search incidental to a lawful arrest. In other words, the seizure and answering of the accused's ringing cell phone wasunlawful in the circumstances and amounted to a

section 8 violation of the accused's Charter of Rights. The grounds to arrest theaccused were insufficient until Cst. Simpson unlawfully took the phone from the accused and spoke to the caller. It was only then thatthe arrest was permissible. [15] In support of the above, Mr. Jevning argued that Cst. Lee’s actions reveal the lack of reasonable and probable grounds for thearrest. Cst. Lee stopped the accused and engaged him in conversation. He had earlier called for back-up and awaited the arrival of Cst.Simpson. When Cst. Simpson arrived, Cst. Lee testified that he then placed the accused under arrest.

When asked in cross-examinationas to why he had not arrested the accused immediately, Cst. Lee answered that he was awaiting Cst. Simpson as back-up. Cst. Lee couldnot explain why he required back-up. Mr. Jevning said that if Cst. Lee had the grounds, he should have arrested Aslany immediately,and the fact that he did not (waiting for Cst. Simpson’s arrival) makes obvious that Cst. Lee did not subjectively believe he hadsufficient grounds. It was not until Cst. Simpson answered the call, pointed to the accused and told Cst. Lee to search that sufficientgrounds for the arrest existed. [16] Cst.

Simpson testified that when he arrived on scene, Cst. Lee and the accused were conversing. He heard Cst. Lee place Aslanyunder arrest and assisted Cst. Lee by taking the cell phone and wallet from the hands of the accused when Cst. Lee was handcuffingAslany. He did not take the phone from the accused and immediately answer it. Rather, he said that he placed the wallet on the carhood and as the cell was ringing repeatedly, he answered the call. Aslany testified that he did not have a wallet but did have the cell inhand, and Cst. Simpson took the phone from his hand and talked to the caller.

Aslany said he attempted to shut the cell off when Cst.

Simpson took the phone from him. [17] The version given by the accused was that the phone only rang the first (1st) time when Cst. Simpson took the phone. Both ofthe police officers said the phone rang continuously. [18] Mr Jevning suggests that I should accept the evidence given by the accused and supported in part by Mr. Bayat. The accusedhad the cell in hand and when it rang, the accused tried to shut it off and Cst. Simpson took the phone and spoke to the caller. Aslany saidhe hadn’t been arrested at this point. Cst. Simpson agrees he took the phone from the accused and spoke to the caller, but after Cst.

Leehad arrested the accused and during the handcuffing process. Any search thereafter was incidental to a lawful arrest. [19] In

summary, the accused submits the taking of the phone in these circumstances was a

section 8 violation. Further, the illegaltaking of the phone provided the necessary ingredient that, heretofore, was lacking to make sufficient the grounds for arrest. At page 60of the Trial Transcipt, Mr. Jevning said: “I say that you ought not to accept their version, that you ought to accept the defence's version, that Your Honour ought to find that theydidn't have reasonable and probable grounds to arrest until such time as they seized wrongfully, unlawfully, unreasonably the cellphone,and that as a result of that ,that Your Honour should find a breach, find a s. 8 breach” CROWN SUBMISSIONS: [20] Mr.

Clements for the Crown submitted that Cst. Simpson took the cell to assist Cst. Lee during the handcuffing process. Cst.Simpson did not answer the cell directly but only after it continued to incessantly ring. Mr. Bayat’s evidence is as much supportive ofCst. Simpson as it is supportive of Aslany. Mr. Bayat saw something taken from the hands of Aslany. [21] As to the grounds for the arrest of the accused Cst. Lee’s evidence is determinative. Cst. Lee says that his grounds are asfollows: (

a) Mr. Klassen’s tip (witness to the drug sale and purchase). (

b) Mr. Klassen’s providing accurate license plate numbers. (

c) Mr. Nelson said he had just bought drugs from a non-white male on Dayton from a Honda Civic. (

d) Mr. Nelson showed Cst. Lee the rock of cocaine. (

e) The police files indicated drug involvement and transactions from the cars in question. (

f) Cst. Lee observed and followed one of the aforesaid cars with a non-white driver. (

g) Cst. Lee spoke to the non-white male who exited from the Honda Civic . (

h) The cell phone ringing continuously. [22] The tipping point for Cst. Lee, in forming his grounds, was the constant ringing of the cell phone which, added to the otherindicia, completed the requisite formula of credibly based probability. This was before the arrival of Cst. Simpson. The Crown arguesthat objectively the grounds for a lawful arrest existed and Cst. Lee had both the subjective and objective grounds, notwithstanding thewait for Cst. Simpson. The Crown agrees that if the arrest had not occurred at the time that Cst. Simpson took and answered the cell,then there was a breach of

section 8. But, the Crown submits that grounds had been formed, the arrest had already been affected and thehandcuffing was in process The taking and answering of the cell, if after the arrest, was a search incidental to a lawful arrest. DECISION: [23] The law regarding “reasonable and probable grounds” has been restated many times. In R. v. Law, 2002 BCCA 594 atparagraphs 5 and 7; “In R. v. Storrey, (SCC), [1990] 1 S.C.R. 241 the Supreme Court considered whether a warrantless arrest was lawfulunder s. 450(1) [now s. 495(1)] of the Criminal Code. That

section permits a peace officer to arrest a person "who, on reasonable andprobable grounds, he believes has committed or is about to commit an indictable offence." Mr.

Justice Cory explained at 250-1 that thismeans not only that the peace officer must subjectively reach that conclusion, but also that a reasonable person standing in the peaceofficer's shoes would have believed that reasonable and probable grounds existed for the arrest..... .....So, whether expressed as “reasonable grounds to believe,” “reasonable belief,” “reasonable probability,” or “probable cause,” thequestion is whether the evidence is sufficient to found what the Supreme Court called a “credibly-based probability” in this oft-citedpassage from Hunter v.

Southam Inc., (SCC), [1984] 2 S.C.R. 145 at 167: • The state’s interest in detecting and preventing crime begins to prevail over the individual’s interest in being left alone at the pointwhere credibly-based probability replaces suspicion.” [24] Did Cst. Lee have the necessary grounds to arrest the accused? Firstly, I am of the view that Cst. Lee was not stopping theaccused as part of an investigative detention, though he clearly could have under the circumstances. Secondly, the evidence that Cst.

Leehad acquired was well beyond that which allow for an investigative detention, to the extent that under the circumstances, I am satisfiedthat Cst. Lee had the necessary grounds to arrest the accused. I agree with the Crown submissions that Cst. Lee had the essentialgrounds for a warrantless arrest well before the cell phone was taken from the accused. Therefore, I conclude the taking of the phone inthese circumstances was incidental to a lawful arrest, even though the formal arrest and the taking possession of the phone occurred

within a short interval. I do not accept the submission that the taking of the phone from the accused and answering the call amounted toa seizure that led to forming the grounds sufficient to arrest the accused. The submission, that but for the taking possession of the phoneand answering the call, there were insufficient grounds for the warrantless arrest of the accused is not supported by the evidence. [25] I find that Cst. Lee awaited Cst. Simpson’s arrival before the arrest of the accused.

I surmise he paused in anticipation of thearrival of his more experienced colleague, who would provide assistance in that undertaking. [26] I find that the cell phone rang a sufficient number of times to deserve the description of ‘ringing incessantly’ to such degree thatone could conclude, under these circumstances, the call was drug related. [27] I do not accept the version given by the accused that the phone’s ring was a solo event. I accept the evidence of the policeofficers that it rang continually from the outset until Cst. Simpson answered it. [28] I accept the evidence of Cst.

Lee that the accused kept trying with his left hand to reach for a pocket where the drugs wereeventually located and was repeatedly asked to stop. [29] I conclude that Cst. Simpson took the phone, either directly from the accused or from the car’s hood during the handcuffingprocess, (which followed the formal arrest of the accused and the Charter of Rights recitation), and answered the caller. [30] I accept the evidence of the police officers and reject the evidence of the accused.

I find that the evidence of the witness Mr.Bayat is equivocal and not of assistance to the degree as suggested by counsel for the accused. [31] I conclude the warrantless arrest and subsequent search of the accused was based on reasonable and probable grounds and thatthe search was therefore incidental to a lawful arrest. A search is lawful if authorized by statute or common law rule (Cloutier v.Langlois (SCC), [1990] 1 S.C.R. 158). As a result thereof, the search of the accused was not in violation of

section 8of the Charter of Rights and Freedoms. ____________________ R. D. FRATKIN, P.C.J.