R. v. Khan Date:, 2015 BCPC 443

Citation: R. v. Khan Date: 20150716 2015 BCPC 443 File No: 57233-1 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. IMRAN KHAN ORAL RULING ON VOIR DIRE OF THE HONOURABLE JUDGE FIELD Counsel for the Crown: Federal Crown: Wiancko Counsel for the Accused: K. Filkow Place of Hearing: Richmond , B.C. Date of Ruling: July 16, 2015

[1] THE COURT: We are in a voir dire, and Mr. Khan is charged on the 31st day of January 2013, at or near the City ofRichmond, in the Province of British Columbia, did unlawfully possess a controlled substance, to wit, MDMA, for the purpose oftrafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act. [2] This is an oral judgment of the court, I have considered all of the submissions, and before I read this decision into the record, Iam going to make some reference to some of the cases that I did consider. They do not include all of the decisions provided: 1.

Eccles and Bourque, (SCC), [1975] 2 SCR 739; 2. R. v. Genest, (SCC), [1989] 1 SCR 59; 3. R. v. Gimson, (SCC), [1991] 3 SCR 692; 4. R. v. Lau, [2003] BCCA 337; 5. R. v. Feeney, (SCC), [1997] 2 SCR 13; 6. R. v. Tse, 2008 BCSC 906; 7. R. v. Cornell, 2010 SCC 31; 8. R. v. Posin, 2009 BCSC 413; 9. R. v. Nils-Stentz 1818356-1, Vancouver Provincial Court decision of the Honourable Judge Howard; 10. R. v. Sipes, a decision of Mr. Justice Smart of the Supreme Court of British Columbia, 2011 BCSC 1763. The date was 2011-12-22 docket 66431, Kelowna Registry; 11. R. v. Garofoli, 1992 SCR 1140.

NARRATIVE: [3] The charges arose out of Project E-Nasayer. In December, 2012 the Richmond Organized Crime Unit began investigating adrug trafficking line later named "The Jason Line". [4] Cpl. Hsieh manages the Organized Crime Unit, consisting of a project team and intelligence unit.

This 14-member grouptargets drug-trafficking groups. [5] This experienced officer has been a member of the Organized Crime Unit for ten years and person-in-charge for five. [6] This operation was preceded by information provided to him in December, 2014 by another officer, that a Richmond drugtrafficking group was selling cocaine and heroin in Richmond.

The information came from a proven, reliable source. [7] Two months later, two other investigations provided further similar reliable information. [8] December 4, 2012 undercover police officers were introduced to the line, making several purchases of drugs from threeindividuals, including Mr. Mohammed and Mr. Ameeri, also targets in this investigation. [9] Search warrants were applied for to be executed January 31, 2013 at 2366 McKessock Avenue, where Mr. Khan resides withhis family, and another residence, 8910 Citation Drive, where Mr.

Ameeri resides. [10] The police believed that the investigation revealed that Mr. Khan's residence was the stash house associated with the JasonLine. [11] This belief was primarily based on the extensive surveillance of the residence, a number of undercover buys associated with Mr.Khan's home, presence of the other targets who frequented the residence, and Mr. Khan's fingerprints found on a bag associated with theundercover buy of cocaine. [12] Before the search warrant was obtained, Cpl. Hsieh and Cst.

Hazell, file coordinator, undertook a risk assessment to determineand guide the manner of entry to the McKessock residence where Mr. Khan and family reside. This officer had previously prepareddozens of risk assessments. [13] After the assessment was completed, Cpl. Hsieh requested deployment of ERT believed necessary in the circumstances of thissearch. The Emergency Response Team was not part of his project team. [14] The purpose of the risk assessment was aimed at determining operational objectives of this 14-member group. The concernswere: (

a) the preservation of drugs within the residence - "soluble drugs", heroin and cocaine, that could easily be destroyed; and

(

b) overall safety concerns of the officers, occupants of the house, and surrounding neighbourhood. [15] Cpl. Hsieh testified the risk assessment would assist him in concluding how he could achieve the operational objectives of theproject. The assessment was undertaken over approximately two to three days. [16] The ERT squad made an independent assessment as to how the entry should be conducted.

Their decision was identical to Cpl.Hsieh's assessment, given the information they had. [17] Upon searching the bedroom, in addition to drug paraphernalia and cash, approximately $3,275, the RCMP found 806 grams ofMDMA capable of making approximately 3,227 pills. Mr. Khan and his family were present. In addition, there was 206 grams of whitepowder MDMA in a white powder form. [18] Mr. Filkow admits his client is in possession of the drugs seized, and other items. (See the Admissions of Fact filed in theexhibits, paragraph 11). He does not admit his client was in possession of any heroin. THE ISSUE: [19] Mr.

Filkow does not challenge the validity of the warrant, or the sufficiency of the ITO. His application to exclude evidencerests on the assertion the search warrant has been executed in an unreasonable manner – Mr. Khan's s. 8 rights have been violated. Drugsseized should be excluded from evidence under s. 24(2) of the Charter. [20] It is agreed between counsel that the entry into Mr.

Khan's residence was a dynamic hard entry. [21] There was a departure from the "knock and announce" legal requirement prior to entry into the residence (see Eccles andBourque). [22] I have reviewed the authorities concerning the manner of entry provided to me by counsel. They are fact-specific. However,the law is clear; absent exigent circumstances the police must announce themselves before entering private property, and must only useforce when reasonably necessary. [23] The requirement of announced entry was explained by Mr.

Justice Dickson in Eccles and Bourque, (SCC),[1975] 2 SCR 739 at 746: Except in exigent circumstances, the police officers must make an announcement prior to entry. There are compelling considerations forthis. An unexpected intrusion of a man’s property can give rise to violent incidents. It is in the interests of the personal safety of thehouseholder and the police as well as respect for the privacy of the individual that the law requires, prior to entrance for search or arrest,that a police officer identify himself and request admittance.

No precise form of words is necessary. [24] Further, when I consider the decision of Mr. Justice Smart in R. v. Sipes, 2011 BCSC 1763, earlier made reference to,paragraphs 238 to 240: The application of the "knock and announce" rule has been the subject of many judicial decisions including our Court of Appeal'sdecision in R. v. Schedel, 2003 BCCA 364, 175 C.C.C. (3d) 193, and the Supreme Court of Canada's decision in Cornell.

The Court in Cornell split 4 to 3 in the result, but was in agreement on the applicable law as explained by Cromwell J. writing on behalfof the majority: [18] Except in exigent circumstances, police officers must make an announcement before forcing entry into a dwelling house. In theordinary case, they should give: "(

i) notice of presence by knocking or ringing the door bell; (ii) notice of authority, by identifyingthemselves as law enforcement officers and (iii) notice of purpose, by stating a lawful reason for entry: Eccles v. Bourque, (SCC), [1975] 2 S.C.R. 739, at p. 747. [20] Where the police depart from this approach, there is an onus on them to explain why they thought it necessary to do so.

Ifchallenged, the Crown must lay an evidentiary framework to support the conclusion that the police had reasonable grounds to beconcerned about the possibility of harm to themselves or occupants, or about the destruction of evidence. The greater the departure fromthe principles of announced entry, the heavier the onus on the police to justify their approach. The evidence to justify such behaviourmust be apparent in the record and available to the police at the time they acted. The Crown cannot rely on ex post facto justifications:see R. v. Genest, (SCC), 1989 1 S.C.R. 59, at pp. 89-91; R. v.

Gimson, (SCC), [1991] 3 S.C.R. 692, atp. 693. I would underline the words Chief Justice Dickson used in Genest: what must be present is evidence to support the conclusionthat "there were grounds to be concerned about the possibility of violence": p. 90. I respectfully agree with Slatter J.A. when he said inthe present case that "[s]ection 8 of the Charter does not require the police to put their lives or safety on the line if there is even a lowrisk of weapons being present": para. 24. Justice Cromwell emphasized two important points a reviewing judge must respect: (

i) the manner of entry must be assessed based onwhat the police knew or should reasonably have known at the time of entry, not in light of what they learned later or how things turnedout; and (ii) the police must be allowed a certain amount of latitude when deciding on the manner of entry for conducting a search. Withrespect to the second point, Cromwell J. said at para. 24 of Cornell: ... [T]he police must be allowed a certain amount of latitude in the manner in which they decide to enter premises. They cannot beexpected to measure in advance with nuanced precision the amount of force the situation will require [citations omitted]. It is often said

of security measures that, if something happens, the measures were inadequate but that if nothing happens, they were excessive. These sorts of after- the -fact assessments are unfair and inappropriate when applied to situations like this where the officers must exercise discretion and judgment in difficult and fluid circumstances.

The role of the reviewing court in assessing the manner in which a search has been conducted is to appropriately balance the rights of suspects with the requirements of safe and effective law enforcement, not to become a Monday morning quarterback. [ 25 ] I now turn to the consideration of the impugned search. [ 26 ] Several situational factors and concerns unique to this investigation were considered prior to entry. Cpl. Hsieh considered the following: 1. The time of the execution of the warrant .

He concluded that an early morning entry and search, 8:00 a.m., would minimize the number of persons who would physically be awake and present in the main portion of the residence. The early morning entry could have the desired effect of preserving the easy destruction of drugs that are water soluble, and give police access to the contraband. This conclusion was based on his advanced training, having dissolved both heroin and cocaine on numerous occasions, and observed others who were subjected to a search.

In addition, the early morning execution of the warrant would minimize the risk of persons who they would likely not encounter upon entry. 2. The size, structure, layout of the bedrooms contained in the two-storey residence . Plans were secured from the Richmond Municipal Hall. Size of rooms, number of bedrooms, and floors were relevant to Cpl. Hsieh's concern regarding the number of officers he required to expedite the search with speed and efficiency, aimed at the preservation of drugs and the safety of officers who were charged with the entry.

It was this officer's opinion that more members were required then his team to secure the house and cover off the large area, minimizing risk to officers and the occupants within. Cpl. Hsieh had concerns about Mr. Khan's background. 3. He reviewed investigation documents, police database, background information, CPIC and PRIME . The officer concluded that Mr. Imran Khan's parents and brothers resided at the McKessock residence where the search was to be conducted, and from this investigation and review of the investigative, and background documents, Cpl. Hsieh learned that Mr.

Khan had contact with the police on numerous occasions, in excess of 80. Without testifying to all of the contacts he was aware of, he knew that the Vancouver City Police in 2009 observed Mr. Khan in hand-to- hand transactions, low-end downtown eastside drug users, drugs were found in his possession. He was charged and convicted in 2012 for possession for the purpose of trafficking, and he was sentenced to a conditional sentence order.

Also the officer made reference that he was presently charged with obstructing the police and impersonation. [ 27 ] He discovered that in August 2011, in Nanaimo after a traffic stop, the vehicle he was in was searched and contained the following – 28 grams of crack cocaine, one ounce; four mobile phones and a police jammer. [ 28 ] That instrument's sole purpose is to potentially interrupt police communication dealing directly with their safety and risk, and potential interference with the execution of a search warrant. [ 29 ] Mr.

Mohammed, a target in this investigation in December 2012 and 2013, was associated with selling drugs to an undercover operator in this operation, was in the vehicle, and a target in this investigation. [ 30 ] Found in the vehicle was Mr. Jujhar Khun-Khun. Through intelligence bulletins, Cpl. Hsieh believed that Mr. Khun-Khun was associated with the Dhak Duhre crime unit. From information and intelligence bulletins, he believed that in 2011, the Dhak Duhre crime unit was in conflict with the Independent Soldiers and the Wolf Pack gang. Cpl.

Hsieh had previously had direct dealings with the group. [ 31 ] In addition, this officer was aware of two independent attempts, one recently made on Mr. Khun-Khun's life. He believed the attempts made on his life were the result of his associations. [ 32 ] Mr. Mohammed, a target in this investigation, was seen at the Khan residence, and actively selling drugs during this investigation. [ 33 ] From these facts, the corporal testified that he believed Mr. Khan was associated with persons who were violent drug traffickers and had access to police jammers. [ 34 ] In addition, Cpl.

Hsieh was concerned that in November 2012, there was an attempt on Mr. Khan's life; he was shot and recovering at home. Mr. Khan's parents referred to this later as a "drive-by shooting" when they testified. Someone attempted to murder him. Cpl. Hsieh was briefed on this shooting. The cross-examination revealed the shooting related to a domestic dispute, not from gang activity, shot by an ex-boyfriend of his girlfriend. This officer then testified on the probability that Mr.

Khan may take precaution to protect himself. [ 35 ] Another concern regarding entry into the residence was his brother's dog, Kilo, a pit bull who lived at the residence and had run away on the 9th of January 2013. These dogs were deemed a danger to the public by the City of Richmond. The officer was concerned the dog may have returned. The concern – a dangerous pit bull on the residence to encounter, this information was retrieved from the

police databank. 4. The McKessock residence where Mr. Khan resides. Some of the following information was received from the police database: Cpl. Hsieh testified, based on surveillance, that on multiple occasions persons known to have sold drugs to undercover operators would attend Mr. Khan's residence. The surveillance disclosed that on or about the 29th of January 2013, Mr. Ameeri and Mr. Mohammed attended the residence. Mr. Ameeri left the residence with a plastic bag containing what the RCMP believed was cocaine. Shortly thereafter, in the course of a drug transaction, Mr.

Ameeri showed the undercover operator a similar plastic bag of white powder that Mr. Ameeri left the residence with. Mr. Ameeri and Mr. Mohammed were known to have sold cocaine on multiple times prior to the execution of this search warrant. Further, Cpl. Hsieh testified that there were several undercover buys associated with the residence, approximately ten. One package utilized in the drug transaction in December 2012 to an undercover operator, disclosed a fingerprint of Mr. Khan. Both Mr. Ameeri and Mr. Mohammed, targets of this investigation, had prior contact with police. Mr.

Mohammed had significant contact and was known by the Vancouver City Police to be a street-level dealer in the downtown eastside. He was also found in the vehicle of Mr. Khun-Khun and Mr. Khan in the Nanaimo incident earlier referred to. In addition, it was from this information, reliable sources and surveillance that Cpl. Hsieh concluded that the Khan residence was the base of a drug-trafficking organization containing drug paraphernalia, cash, scales, cocaine and heroin-packaging material where the search was to be executed.

From his knowledge, a stash house may have weapons to protect against home invasions. [ 36 ] Additional search warrants were prepared for the Citation Drive residence where it was anticipated Mr. Ameeri would be present. No ERT was required. [ 37 ] Prior to the search warrant being executed, this officer put together a risk assessment and operational plan concluding the entry was high risk. The corporal then provided his assessment to the ERT.

The assessment was an aid in making a decision regarding the manner of entry. [ 38 ] It was his opinion that his team did not have the capacity to achieve the objectives of both safety of the police officers and occupants, and preservation of evidence. He believed the ERT had the capability to achieve the objective, and gave his report containing documentation, background information on Mr. Khan, other profiles and concerns to Sgt. Fishbook for a risk assessment, who was a leader of the ERT team, to consider assisting with the execution of the warrant and search of Mr.

Khan's residence. [ 39 ] The risk assessment had an operational plan and discussion as to how both units would interact when executing the warrant. Calls were made to Sgt. Fishbook on January 29th and they met January the 30th. [ 40 ] Upon meeting with Sgt. Fishbook, he reviewed the risk assessment and the investigative objectives that were requested of his team. Cpl. Hsieh made a request to Sgt. Fishbook for his ERT team to conduct a dynamic entry in Mr. Khan's residence. [ 41 ] Despite his views and assessment, Sgt.

Fishbook was to conduct his own independent assessment as to whether the teams ought to conduct a dynamic entry into Mr. Khan's residence. A final decision had to be made by the critical incident commander, S/Sgt. McRae, person in charge of ERT. [ 42 ] Cpl. Hsieh testified the ERT concluded the same regarding the high-risk entry. Search warrants had been applied for. He conducted a briefing with his team on January the 30th. [ 43 ] Additional briefing regarding entry to Mr. Khan's residence took place with both teams early morning on January 31, 2013. Both Sgt. Fishbook and Cpl.

Hsieh were there. [ 44 ] At approximately 8:00 a.m., January 31 st , the ERT squad conducted a dynamic entry into the Khan residence after an early- morning surveillance of the residence. Search warrants had been approved January 30 th , and are not in issue in this case. [ 45 ] After entry, the Richmond Organized Crime Unit released members of the family and Mr. Khan, and then executed the search of the residence. THE RISK ASSESSMENT PREPARED BY THE ERT TEAM JANUARY 31, 2013: [ 46 ] Cst. Doherty, a member of the RCMP since 2008, currently resides in Montreal.

He has been on the Emergency Response Team since 2008. One of their duties involves assisting police forces with executing search warrants in high-risk circumstances. He has been involved with several high-risk, hard, dynamic entries.

[ 47 ] On January 30, he was informed by his supervisor, Sgt. Fishbook, that the Richmond Drug

Section required their assistance with the execution of a warrant. [ 48 ] Prior to entry into Mr. Khan's residence January 31 st , his team undertook an assessment January 30 th , 9:30 a.m., that was later referred to Sgt. Fishbook. Cst. Doherty is the medic of the team, consisting of a sniper, supervisor and breaker. [ 49 ] Their team undertook the reconnaissance surveillance of the residence to assess risk. He noticed the inset front door to the residence, which concerned him regarding safety issues. There was need for cover.

The front door entry was a trap. [ 50 ] After the surveillance, the team went back to Green Timbers, their office, to start working on their operational plans. He played a role in developing the operational plan.

The team discussed the manner of entry, considering safety of officers, occupants, and the preservation of evidence. [ 51 ] The research done independently and together, and without limiting the following, contained information from Google, police database, CPIC and PRIME, police database containing information from several police agencies in British Columbia. [ 52 ] He was aware of the following information, some independent and others from his group as they worked together.

Though not a complete list; • was told the residence may contain heroin, crack and powder cocaine; • prime suspect, believed to be involved in drug trafficking; • there was a history of drug trafficking; • 80 files associated with police contact; • had been shot a few months earlier, now recovering; • cross-examination revealed he could not recall being told whether the victim was Mr. Khan, whether it was a domestic shooting or whether it was related to drug trafficking; • he believed Mr.

Khan's associates were involved in violent street gangs in the Lower Mainland; • the inset in the doorway presented a serious risk factor to the safety of officers; • in reviewing PRIME he believed Mr. Khan was an escapist who, unaware of a specific date was stopped, found in the possession of bear spray; • he was aware he was found in the vehicle where police jammers were found which could interfere with police communication. [ 53 ] After considering different options, contain and call, breach and hold, stealth and dynamic, he concluded the dynamic entry was necessary. This information was provided to Sgt.

Fishbook. SGT. FISHBOOK : [ 54 ] He is a very experienced police officer, now in charge of the ERT team in the Lower Mainland for the past seven years, and has previously conducted a hundred dynamic entries. [ 55 ] He met with Cpl. Hsieh, Cst. Hazell, Cst. Piper and another member on January 30, where he received their Task Action Report, Risk Assessment and Operational Plan associated with this investigation. The purpose of the meeting was to assess the risk assessment requesting their assistance in executing a warrant at the Khan residence. He was briefed on all the concerns earlier referred to by Cpl. Hsieh.

In addition, he received profile sheets of persons involved, as well as a floor plan of the Khan residence. [ 56 ] Sgt. Fishbook was aware of the police surveillance, extensive dial-a-dope operation alleged to be operated by Mr. Khan, likely an associate with Mr. Ameeri and Mr. Mohammed who were targets of this investigation. He testified that Mr. Mohammed and Mr.

Ameeri were seen at the Khan residence on approximately four to five occasions, and the surveillance disclosed they were engaged in the sale of drugs associated with the residence during these occasions. [ 57 ] He was significantly concerned when briefed regarding the incident in August 2011 in Nanaimo, earlier referred to, regarding Mr. Khan's association with Mr. Khun-Khun, who, from his knowledge, was described by him as a notorious, violent criminal in conflict with other gangs and police, active in the Dhak Duhre crime group. The background information he was aware of referred to Mr.

Khun- Khun's involvement in kidnappings and shootings. He recently was a target on two occasions, and recently shot in one. His lengthy criminal history included attempted murder. [ 58 ] Sgt. Fishbook further confirmed his concern with numerous contacts Mr. Khan had with the police, namely approximately 85. [ 59 ] His research through CPIC and PRIME confirmed prior convictions in 2012, being in possession for the purposes of trafficking. [ 60 ] He was aware and briefed on the recent shooting of Mr. Khan who was shot in the leg by an ex-boyfriend of his girlfriend.

Independently, through PRIME, police database printouts, CPIC, he noted that Mr. Ameeri and Mr. Mohammed, other targets of this investigation and associates of Mr. Khan, had numerous contact and history with the police. Mr. Mohammed previously was charged

with being in possession for the purposes of trafficking. [ 61 ] Mr. Mohammed had 191 files and was linked to drug trafficking in the downtown eastside; Mr. Ameeri, 91. [ 62 ] The briefs provided to him outlined surveillance evidence where both of these persons' presence was observed at the McKessock residence, alleged stash house, suspicious circumstances earlier referred to by Cpl. Hsieh. [ 63 ] Reviewing the totality of the information, he concluded that Mr. Ameeri and Mr. Mohammed were associates of Mr. Khan and had a history of drug trafficking. [ 64 ] After reviewing all the material referred to him by Cpl.

Hsieh, and information from his ERT team whom he deployed to the residence, including the additional concern that the front-door entry to the residence presented a serious safety risk, he was satisfied the Richmond Organized Crime Unit's request for assistance met the threshold requirement for a dynamic entry. [ 65 ] His team, through their extensive specialized experience with weapons, tools and training, and the Richmond Organized Crime Unit, could meet the main objectives and concerns voiced by Cpl. Hsieh. [ 66 ] Sgt.

Fishbook then prepared a 20-page operational plan. [ 67 ] He testified that it was reasonable to conclude that Mr. Khan may have weapons to protect himself from either a potential drug rip-off, or from the person who shot him. [ 68 ] The final decision to deploy ERT was to be made by S/Sgt. McRae, Critical Incident Manager. Operational plan for the high-risk entry was sent and approved of by his commander. MANNER OF ENTRY : [ 69 ] Approximately 8:00 a.m.

January 31, 2013 – It was agreed between the RCMP and ERT the entry to the Khan residence would be a dynamic entry, a hard entry, a departure from the knock and announce rule, an immediate entry with the desired effect to surprise the occupants, take control of the residence without incident, and prevent contraband from being destroyed, and then clear the residence. [ 70 ] Wearing heavy, dark, protective clothing, armour, firearms, M16s and revolvers, members of the ERT squad attended the residence where Cst.

Fowell, responsible for the entry, using a battering ram knocked the door down. [ 71 ] Immediately prior he tried to open the door. This was proceeded by, "Police. Stop. Search Warrant." They were wearing distinct markers on their uniforms. There was no opportunity to respond. Their aim was to clear the residence of any threats, traps, weapons, detain the occupants with dispatch. This was to be done quickly, control the occupants, leave and allow the Richmond Organized Crime Unit to undertake the search. [ 72 ] Cst. Doherty was the first person in the residence, followed by other members of the ERT team.

Three additional members gained access to the residence breaking the glass on the rear door. [ 73 ] Three other members, including Sgt. Fishbook, could not access the garage but followed Cst. Doherty into the residence, forced the inside door of the garage with the intent to clear that area. [ 74 ] Some members of the team remained nearby with a military-like machine on rails that was parked in the driveway. The purpose of this vehicle was to give possible protection to members in the event they were challenged. It also contained tools and medical supplies often used in dynamic and high-risk entries. [ 75 ] Cst.

Doherty, now Cpl. Doherty, was in a full, black, military-type attire, wearing body armour, plate carrying vest, M16-length assault rifle, and a revolver, similar attire to others though he was wearing a balaclava, a covering to protect his face from potential debris from the battering ram assault at the door. [ 76 ] As he ascends the staircase to the upper level he shouted, "Police. Lay down.” and he pointed his rifle upstairs in the general direction of Mr. Khan's father. He could not see his hands. Mr. Khan and his brother exited their bedrooms; guns were pointed in their direction. Cst. Doherty realized Mr.

Khan was the target. All occupants were immediately handcuffed. Mr. Khan and his father and his brother complied and cooperated with the police by lying on their stomachs on the floor. Mr. Khan was observed only to have boxer shorts on. The second brother remained in his bedroom. They were handcuffed. [ 77 ] Cst. Doherty and another member entered the dark master bedroom where Mr. Khan's mother was found. The room was dark, the light on his assault rifle was on, his firearm held upward at an angle, near to her direction.

She was asked to put her hands up, complied, and then allowed to cover her nightclothes and put her headscarf on. [ 78 ] All members of the family were detained for being in possession of drugs for the purpose of trafficking. [ 79 ] The house was cleared, the occupants were detained for approximately a half-an-hour, wherein the Richmond investigative team came to continue the search and release the occupants, provided copies of search warrants to the owner and Mr. Khan. [ 80 ] In total, there were 12 ERT team members associated with this entry. Though Sgt. Fishbook took

part in the execution of the warrant, he was responsible for supervising his three teams, overseeing the entire operation, including ensuring the residence remained intact.

[ 81 ] There was significant damage done to the doors at the three points of entry. The photographs show some glass plates that likely were on the wall near the front area to be broken, having fallen during entry. [ 82 ] During the warrant execution, no stun grenades or loud distracters were used by the team. Sgt. Fishbook was concerned with the presence of Mr. Khan's parents. [ 83 ] After the ERT left, the RCMP investigators entered the residence. They all had been assigned roles and were aware of the high- risk entry and background information requiring ERT assistance.

They undertook the search of the residence and released the occupants from their handcuffs, advising them of the reasons of the detention, and providing information regarding their Charter rights. Sgt. Lee left a copy of the search warrant with Mr. Khan and his brother. [ 84 ] After the entry of the ERT, Cst. Chung, who was aware of some of the background of this investigation, and the decision to utilize the ERT to facilitate entry, was assigned to be the exhibit officer which included the taking of photographs.

Though he recalls damage to the doors, he has no recollection of further damage to the interior. [ 85 ] He testified the family left at approximately 8:52 p.m., and Sgt. Lee undertook a search of the residence. The warrant authorized the seizure of cocaine, drug packaging paraphernalia and documents. [ 86 ] He did not physically search every room. Two other officers wore regular uniforms, others wore blue tactical attire. Though he did not search the residence, before leaving he tidied up parts of the house. SGT.

LEE : [ 87 ] He attended a briefing on January the 31st, 2013 and was advised of the background information provided by Cpl. Hsieh and Sgt. Fishbook. [ 88 ] Four other Richmond Organized Crime members were to assist, each assigned a role. He was the supervisor on the site. He arrived at approximately 7:50; entered at approximately 8:05. [ 89 ] Sgt. Lee had copies of the search warrant that he provided to Mr. Khan and his father shortly after. Systematically he removed the restraints from the occupants and advised them of the reason for their detention. He read the Charter and police warnings from his card. CPL.

VOLK : [ 90 ] He testified. He is a ten-year member, and on the ERT for seven years. He attended the team meeting January 31 st . Senior officers set out background information, the threat assessment background associated with Mr. Khan, and the need for the high-risk entry requiring his team. When cross-examined, this officer recalls the following – Mr. Khan was shot four to five times prior to this incident, shooting in Richmond, targeted gang hit – Mr. Khan worked with a crime group called the Dhak Duhre gang. [ 91 ] This evidence was in conflict with other evidence that will be referred to. [ 92 ] Cpl.

Volk was involved in the entry to the McKessock residence. His role was to secure the back door secondary entry with three other officers, and to remain in the kitchen area. He was wearing a tactical uniform similar to the other officers, but no balaclava. [ 93 ] The rear glass door was not opened. Announcing, "Police," the door was breached, whereby they entered the kitchen without encountering others, often through the window. He does not recall any other damage to the interior. [ 94 ] I find that his evidence is mistaken as to what he heard from the briefing on January 31 st .

I accept the evidence of the other members who did the assessment regarding Mr. Khan's background earlier referred to. [ 95 ] Mr. Filkow submits the following : 1. Overall, the manner of search was unreasonable. This will be considered later considering the court's findings of fact to follow. 2. There was no real, hard evidence to support the officers' subjective belief to utilize the ERT at the McKessock residence. Mr. Filkow submits the investigation was incomplete. 3. Mr.

Filkow submits the following: Why did the RCMP not use the ERT at the Ameeri residence on the same day, and the Alderbridge residence in April where Mr. Khan resided, the new alleged stash house, that was alleged to be Mr. Khan's new residence? Mr. Filkow submits, same targets, same surveillance, same drugs, same investigation; how can the police justify reconciling and utilizing the ERT at the McKessock residence and not other residences?

The same subjects were under investigation. [ 96 ] In regard to this submission I have concluded the RCMP do not have to justify their decision and reason for not utilizing the ERT in the manner of entry into both the Citation and Alderbridge residences. They were separate areas, different residences, different occupants. The court is unaware of the particular reasons, assessments, circumstances that justified using a different method of execution of the warrants.

There is not a scintilla or body of evidence to examine the reliability of the decision and the officers' subjective belief to assess regarding those residences.

Regarding the Alderbridge residence, police may have concluded that Mr. Khan was likely not a risk. No firearms were found at the McKessock residence, nor was there any concern about the presence of this pit bull. I do not agree with Mr. Filkow's submissions that the decision to utilize the ERT at the McKessock residence was ingenuous. In any event, all the decisions made, support the Crown's submission that there was no blanket policy to utilize the ERT in the execution of the CDSA warrant.

Any comparison or objective assessment of the surrounding circumstances of other residences, would be merely speculative. [ 97 ] Mr. Filkow submits the facts must support the justification for the entry . He submits the police investigation was incomplete: • the Crown does not get the credit for independent assessments; • generic evidence regarding destruction of evidence; • confusion in the evidence as to whether Mr. Ameeri was seen leaving the Khan residence with what appeared to be white powder contained in a similar bag used in an undercover buy; • he says there is no evidence that Mr.

Khan had a history of violence, nor ever found in possession of a weapon; • he says the evidence is of a generic nature; • he submits the court find Cst. Doherty's evidence unreliable. Never looked at the PRIME summaries; • regarding Sgt. Lee concerns regarding safety, no evidence other than the briefing; • Cst. Volk's evidence was unreliable regarding Mr. Khan's connection with gangs and circumstances surrounding the attempted murder of Mr. Khan; • no weight should be attached to the PRIME contact information, it could be misleading, and he considers the case of R. v.

Neil and Spence , earlier referred to; • there was no effort to investigate the background of the Khan family; • there is no surveillance as to whether this pit bull had returned to the residence or how the municipality was notified of this dog being on the loose; • there is no complete detail, regarding the Nanaimo incident. [ 98 ] Overall, Mr. Filkow submits the investigation was incomplete . [ 99 ] Regarding some concerns raised by Mr. Filkow. That credit should not be given to three separate assessments.

The court has concluded there is no evidence to suggest the assessments had been tainted or, for that matter, compromised. (See later findings of fact.) [ 100 ] Regarding Mr. Filkow's submissions that the RCMP were concerned drugs would be destroyed, that they had no previous knowledge of Mr. Khan disposing of drugs . The lengthy investigation disclosed numerous buys of soluble drugs from the McKessock residence. The officers' subjective belief does not require direct knowledge, nor is it necessary for them to micromanage every detail of the investigation. Cpl.

Hsieh testified to his belief from other investigations he participated in, including his own personal destruction of soluble drugs. [ 101 ] Mr. Filkow submits concern regarding the accuracy and reliability of a single sale of white powder, believed to be cocaine, to undercover operators incidental to the presence of Mr. Ameeri and Mr. Mohammed, at the Khan residence . The surveillance disclosed Mr. Ameeri leaving the Khan residence carrying a bag containing white powder, then both Mr. Mohammed and Mr. Ameeri selling what appeared to be the same substance in a similar bag earlier observed.

This incident occurred approximately a day before the search warrant was executed. The cross-examination of the circumstances surrounding this sale were suspicious, though the evidence was uncertain as to what conclusion could be drawn from this. Notwithstanding, the undercover operation and surveillance disclosed multiple drug transactions that were initiated from the Khan residence. It was Sgt. Fishbook's belief from information he received, both Mr. Ameeri and Mr.

Mohammed, other targets in this investigation, were followed to the Khan residence on approximately five to six times, before they left to undertake a sale. Some of the above evidence was confirmed by a conversation with Mr. Ameeri and Mr. Mohammed. This will be referred to in my

findings of fact. [ 102 ] In addition, Mr. Filkow submits there was some conflict, lack of clarity, and reliability, regarding the assessments made by the RCMP later to be referred to . An example he provides was there was uncertainty and conflict as to what Mr. Khan was charged with in the Nanaimo incident already referred to. In this regard, and in overall application to this case, the Cornell decision emphasizes the overall knowledge the police have, not necessarily the communication of that knowledge or ability to detail every observation made (para 37). (Further, see Findings of Facts) [ 103 ] Mr.

Filkow submits that Mr. Khan does not have a history of violence, nor ever found in possession of firearms . He challenges the Crown's submission regarding the RCMP belief of the possibility of the presence of weapons within the McKessock residence. The RCMP conclusions were reached regarding the following concerns. The Nanaimo incident earlier referred to, Mr. Khan's association with Mr. Khun-Khun, and the obvious inference drawn by Cpl. Hsieh with regard to the recent drive-by shooting of Mr. Khan, which related to a personal matter. Cpl. Hsieh was briefed directly on this specific incident.

There was a further concern regarding the RCMP's belief that Mr. Khan's residence was being utilized for a drug-trafficking operation. In addition, Cst. Doherty was aware of a prior incident in 2010 regarding bear spray that was found in the possession of Mr. Khan, confirmed later by Sgt. Fishbook. Overall, the evidence disclosed a subjective belief regarding Mr. Khan's need to protect himself.

Regarding the focus of the inquiry, there is no obligation on the RCMP to micromanage every detail of this investigation in support of their belief and foundation for their operative decisions, nor do they have to prove each material fact beyond a reasonable doubt. The concern is an honest and genuine belief regarding overall safety issues, whether the risk is high or low, later to be referred to. [ 104 ] In regard to Mr. Filkow's submission relating to the full investigation of persons residing at the Khan residence, what care did the police take ? There was a concern.

The ERT did not utilize extensive tactical support immediate to entry. [ 105 ] Mr. Filkow submits there was no surveillance regarding the pit bull, Kilo, as to whether he had returned home . In my view, the continued extensive surveillance would be unrealistic. Whether the dog was a danger, or the Municipality of Richmond deemed pit bulls dangerous, does not alleviate the potential risk, danger or concern. Upon making an immediate entry, the aim is to minimize any risk of safety, and not to be distracted.

The ERT had tools and ability to manage that risk. [ 106 ] Another concern submitted by counsel was the reliance the officers made from PRIME . Counsel submits that no weight should be attached to this information, and relies on the decision of the Honourable Judge Howard in R. v. Johnson and Spence , 181356-1 in Vancouver. [ 107 ] In the case at bar, no risk assessments were filed. PRIME reports, likely CPIC, were attached to that assessment. Mr. Filkow did not consent to the ERT assessment and PRIME reports to be filed in these proceedings. Subject to disclosure, Mr.

Filkow had copies of the PRIME reports that were prepared by Cst. Ferguson and given to Cpl. Hsieh, not the PRIME summaries. In the decision Mr. Filkow relies upon, the court was able to assess and evaluate the reliability of the PRIME summaries that were incorporated in the ITO. The court was assessing the sufficiency of the ITO in support of the warrant. The trial judge concluded the summaries were cryptic, vague and unreliable. Notwithstanding, at page 13, paragraph 44, the trial judge concluded that PRIME is undoubtedly a useful investigative tool and record keeping system.

There is no documentation in this case to assess and evaluate the accuracy and reliability of the PRIME reports, nor what weight, if any, to be made of the PRIME report. Records, background history, contract information, PRIME, ITOs and assessments have been admitted in other decisions relating to the officers' subjective belief regarding the decisions undertaken. Evidence has been held to be relevant, helpful and useful, and I make reference to the case of R. v.

Chungkuong , 2012 ONSC 3488 , para 13 : To get a full appreciation of the information the police had at the time the search warrant was executed, it is helpful to consider the Information to Obtain (“ITO”) filed in support of the application for the warrant. Detective Gillis was the affiant of the ITO, which is some 118 paragraphs in length.

Though Detective Connolly did not expressly say that he had reviewed the ITO prior to executing the warrant, it is reasonable to infer that he was aware of the same information set out in the ITO by virtue of his role as a senior officer in the investigation, his role as team leader with respect to the execution of the warrant at 71 Stotts, and his role as a surveillance road boss throughout the investigation. I do not agree with Mr. Filkow's submission that no weight should be attached to the PRIME reports.

[ 108 ] Findings of fact have been made regarding Cpl. Volk's evidence, and later reference will be made regarding Cst. Doherty's assessment. Not much can be said regarding Sgt. Lee's evidence regarding safety concerns; he never assisted in the making of any of these assessments. [ 109 ] The court does not agree with Mr. Filkow that the reasons for the decision to utilize the ERT do not make any sense without foundation, made in haste, without justification. [ 110 ] There is an overwhelming comprehensive plethora of evidence that guided the decision-making process.

The focus of the inquiry and analysis, is the consideration of all of the evidence, in totality and collectively, that the police were aware of at the time. [ 111 ] The question and focus is whether the type of search conducted was reasonable, given the facts collectively known by the police at the time. [ 112 ] This does not mean that the duty requires the police to conduct their investigation with perfection. [ 113 ] The police investigation was detailed, thorough, comprehensive and focused, not incomplete. I will later refer to this in my findings of fact.

In coming to this conclusion I have adopted the reasons, paragraph 31 and 37 of R. v. Cornell : The appellant objects to the use of masks by the police. My view, however, is that the question for the reviewing judge is not whether every detail of the search, viewed in isolation, was appropriate. The question for the judge, and the question the judge in this case answered, is whether the search overall, in light of the facts reasonably known to the police, was reasonable. Having determined that a hard entry was justified, I do not think that the court should attempt to micromanage the police’s choice of equipment.

Further, paragraph 37: The appellant submits that the search should be held unreasonable because there was some missing paperwork and lack of communication within the Calgary Police Service. In my view, Slatter J.A. in the Court of Appeal correctly disposed of this contention when he wrote at para. 15 of his judgment: On a related point, a lot of argument was directed to whether there was inadequate communication from the investigative team to the tactical team of the risk assessment of the premises. That issue is largely moot on these facts.

The real question is whether the type of search that was conducted was reasonable given the facts collectively known to the police. If this type of search was justified any non- communication was inconsequential, and vice versa . FINDING OF FACT : 1. There is no doubt that the RCMP had reasonable and probable grounds to believe that Mr. Khan was actively trafficking in drugs that were soluble and easy to destroy. Counsel is not challenging the sufficiency of the warrant. This conclusion was carefully considered by both Cpl. Hsieh and Sgt. Fishbook.

Section 12 of the Controlled Drugs and Substances Act permitted experienced commander of the Richmond Organized Crime Unit, Cpl. Hsieh, to enlist assistance from the ERT as he deemed necessary to execute the warrant. Cpl. Hsieh did not always enlist assistance, but when considering his concerns earlier referred to, he chose a dynamic entry because of the circumstances that necessitated that kind of entry in this case. The nature of this method of entry was not based on any policy. 3. In considering the meticulous, detailed, comprehensive investigation by Cpl.

Hsieh and his members and concerns earlier referred to, I conclude that Mr. Khan may very well have access to weapons and firearms in his presence for his protection, a reasonable conclusion further made by Cst. Doherty and Sgt. Fishbook. The decision was based on numerous risk assessments. 4. The assessments made by Sgt. Fishbook and Cst. Doherty, approved of by the Incident Control Commander S/Sgt. McRae, were independent of the risk assessments undertaken of the Richmond Organized Crime Unit, in addition to other information made aware of to both experienced officers.

It is not surprising they utilized the earlier information of Cpl. Hsieh in making their own, unbiased decision. A dynamic entry was necessary to meet the concerns of the Richmond Organized Crime Unit. There was no evidence to suggest the decisions were compromised. 5. The circumstances presented a real risk, permitting the police to enter with dispatch by breaching the multiple entries to ensure the safety of the police, occupants and preservation of evidence. 6.

The decision to enter in this manner was based on the particular unique circumstances of this case; the force used was consistent with s. 12 of the CDSA. MANNER OF SEARCH : 1. The plan that was chosen was carried out exactly as envisioned. The ERT entered the residence quickly, without reasonable notice, preventing any violence, retaliation, or opportunity to destroy soluble drugs. 2. It was appropriate for the police to detain and handcuff the occupants of the residence. This was done quickly with cooperation preventing tampering with evidence and to maintain safety.

This procedure utilized was not untoward with regard to the execution of this warrant. The conduct of the police was not arbitrary or for any nefarious purpose. The occupants were released and told to leave without being arrested. This occurred within approximately 45 minutes after the ERT entered.

Outside of the multiple entries, there is no evidence of any deliberate damage. TREATMENT OF THE OCCUPANTS OF THE RESIDENCE : 1. The occupants of the residence were detained for a short period of time. The police conduct was not arbitrary but was consistent with the execution of the warrant to quickly maintain control of the residence and ensure the safety of the police and the occupants. The ERT was likely in the residence for no more than approximately one-half hour. 2.

There was no utilization of stun guns, grenades or other aggressive tactics aimed to distract, nor contemplated in the operational plan, nor used. Their prior decision and consideration was undertaken by the officers concerned regarding Mr. Khan's father. 3. The damage to the residence was not deliberate nor inordinate, and related primarily to the multiple entry points necessary in order to take control of the residence. Plywood doors were immediately placed at entry points by Richmond City to prevent intruders from entering. The family returned to the residence at approximately three o'clock. 4. Though Ms.

Khan complained of her immediate detention, Cpl. Doherty instantly complied with her request to be completely dressed, including the wearing of the headscarf. [ 114 ] Regarding the defence evidence, I found Mrs. Khan's testimony unreliable in this regard: Testifying to seeing Cst. Doherty or other officer's finger on the trigger. I have concluded it was difficult to see the direction of where this firearm was pointed when the room was dark, or whether the finger was engaged on the trigger, and number of police with balaclavas on.

Her evidence varied on the number of persons wearing balaclavas as they quickly passed her doorway. I do not believe she was unaware of the circumstances surrounding the shooting of her son, or that she had no knowledge of his criminal past or who his friends were. [ 115 ] There is no doubt that Mrs. Khan deliberately intended to minimize her son's past history. [ 116 ] Though it is inevitable she was upset by the police presence, her concerns that her family was about to be immediately murdered is without reality and exaggerated. The ERT had noticeable police markings on their uniforms. [ 117 ] Regarding Mr.

Khan's evidence, considering the nature and extent of the entry, it is not surprising that the heart problems caused elevated blood pressure resulting in attendance at his doctor. As with his wife, a review of his evidence leads me to conclude his testimony was tailored to minimize his son's prior history with the police. As with his wife, I do not find his evidence surrounding the detention of his family reliable.

DECISION : [ 118 ] The decision to enter the Khan's residence utilizing a dynamic entry requires an effective assessment of the subjective facts known to the police at the time of the search. [ 119 ] While the court has a responsibility to ensure their decision was a reasonable one, some deference should be accorded to experienced police officers who are charged with the duty to execute a warrant. In this regard I refer to R. v. Sipes earlier referred to: The decision to enter t he premises in the manner they did and at the time they did was based on an assessment of the particular circumstances of the search.

While the court has a responsibility to ensure the decision was a reasonable one, some deference should be accorded to experienced officers who are charged with the duty to enter the premises and execute a warrant. This deference was recognized by the Supreme Court of Canada in Cornell . It is not for the court to micromanage every detail of the search. [ 120 ] I have considered the lengthy background investigation, the surveillance, the extensive history of the targets, PRIME records that were referred to, a potentially dangerous pit bull, the background of Mr.

Khan, the Nanaimo incident, the size of the residence, and the point of entry which was considered a trap, and earlier concerns of Cpl.

Hsieh that I made reference to. [ 121 ] On the basis of the available evidence I have heard, findings of fact upon an objective assessment, I am satisfied the police believed the need for a dynamic entry was both reasonably based and genuinely held. (See Cornell , para 30 ) [ 122 ] In addition, I have concluded the manner of the search was within the authority of s. 12 of the CDSA , bearing in mind my findings of fact and circumstances of this case, not unreasonable or excessive. [ 123 ] The execution of the dynamic entry appropriately balanced the rights of the suspect with the requirements of safety and effective law enforcement. (See Cornell , 22-26) [ 124 ] In my view, Mr.

Khan's rights under s. 8 of the Charter to be secure against unreasonable search and seizure had not been violated. [ 125 ] The dynamic entry and departure from the law, requirements set out in Eccles and Bourque , the knock and announce principle, were justified in the presence of exigent circumstances in this case. [ 126 ] The evidence will be admitted. (RULING CONCLUDED)