R. v. Yousaf-Zai, 2010 ONCJ 195

Citation: R. v. Yousaf-Zai , 2010 ONCJ 195 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — MOHAMED YOUSAF-ZAI and NADEEM JIWA Before Justice H. Borenstein Heard: November 16, 17, 2009, February 25, 2010, April 14, 2010 Reasons for Judgment delivered on May 4, 2010 Kosta Stratos ............................................................................................................. for the Crown G.J.

Partington ....................................................................... for the accused Mohamed Yousaf-Zai Laurence Cohen ................................................................................. for the accused Nadeem Jiwa BORENSTEIN J.: [ 1 ] This is an application pursuant to sections 8 and 24(2) of the Canadian Charter of Rights and Freedoms to exclude evidence seized from a van on the night of April 14, 2007 . [ 2 ] In brief, the police received a call around 4:00 in the morning that a car was being broken into on a residential street.

The police attended the scene and spoke with two witnesses who told them that three men had broken into a parked car and had stolen airbags and CD’s. The witnesses gave a vague description of the men and indicated that two men ran to the left and one to the right. About two car lengths away, to the right, the police saw a van parked on the side of the road full of property. Suspiciously, the rear door, which is a typical van’s sliding door, was completely open and the keys were in the ignition. There was a wallet on the front seat.

Although the police had flashlights, they were hardly necessary as the police had the area well lit with their cruiser as well as “take- down” lights. [ 3 ] Officer Campbell was suspicious about this van. People do not usually leave the rear sliding doors of their vans wide open, full of property and with the keys in the ignition and a wallet on the passenger seat. She suspected it may be connected to this, or some other, crime or possibly abandoned. She was also suspicious that it may have been a get-away van and was concerned that the suspects may be hiding in the back. Officer safety was a concern.

She looked in the open van door to ensure that suspects were not hiding in the van and saw property, including tools, stereo equipment and other items. She testified that she recorded in her notes some, but not all, of the property she had seen at that time. She testified that she saw airbags in the back of the van although that was not recorded in her notes. She opened the front door and removed the keys from the van as she was concerned someone might get in and flee and that the van may be connected to the crime and may afford evidence.

She picked up the wallet and pulled out a driver’s licence hoping to find out to whom the van was connected. The driver’s licence was in the name of Nadeem Jiwa. The licence plate was run and the vehicle was registered to Mohammad Yousaf-Zai at an address in Markham.

As she was holding the driver’s licence, one of the civilians who had called the police saw the photo and exclaimed that that male was one of the men who had broken into the car. [ 4 ] Officer Campbell sealed the van with police seals and had it towed to the police station. [ 5 ] At the police station, the items were removed from the van and photographed. It is that seizure of all items from the van that is the subject-matter of this application. [ 6 ] Mr. Yousaf-Zai alone brings this application to exclude the evidence seized from the van.

He submits that the initial search of the van and the removal of the wallet were warrantless and unlawful and argues that all the evidence subsequently removed from the van ought to be excluded. This, I am told, includes the airbags and other property. [ 7 ] Mr. Yousaf-Zai submits that the fact that the police obtained a search warrant before breaking the seals and removing the property is evidence that the initial search was unlawful. The only reference to a warrant having been obtained was a comment by Officer Campbell in cross-examination that she understood that a search warrant had been obtained.

No warrant was ever presented to the Court nor was the existence of a warrant, or whether it had been obtained prior to the removal of the property ever established or made reference to. All I heard was that one comment about what Officer Campbell had heard. The Crown never called any evidence of a warrant nor made any reference to a warrant in its submissions. [ 8 ] Was the property removed at the station with or without a warrant? Does it make a difference in this case? I suspect

there was a warrant but for reasons unknown, it was never adduced. Nonetheless, the defence framed its argument on the basis that the initial search at roadside was unlawful and everything subsequently seized should be excluded. The Crown never sought to justify the search on the basis of there being a warrant. Further, the defence never argued that the removal of the property at the station was itself unlawful. Accordingly, I will decide the issue on the basis of how it was presented: namely, that the lawfulness of the search depends upon the initial inspection of the van at roadside. [ 9 ] The Crown submits that

section 221 of the Highway Traffic Act authorizes the police to seize apparently abandoned vehicles. The Crown argues that, while Officer Campbell was suspicious of this van and its potential connection to this offence, there was also a legitimate basis for her to conclude, as she did, that the van may have been abandoned. Accordingly, the Crown submits that the search of the van was authorized by law and was not unlawful. [ 10 ] The Crown also seems submitted that the common law authorized the search of the van but did not develop or provide any law to support that submission. [ 11 ] Was there a breach of Mohammad Yousaf-Zai’s

section 8 rights? The onus is on the accused. [ 12 ] The first question to be addressed is whether Mr. Yousaf-Zai has a reasonable expectation of privacy in the van in the circumstances of this case. If there was no reasonable expectation of privacy, then what occurred would not amount to a search for Charter purposes: see R. v. Tessling [ 13 ] If Mr.

Yousaf-Zai did have a reasonable expectation of privacy, then what occurred would amount to a warrantless search and seizure and the onus would shift to the Crown to demonstrate that it was reasonable – meaning, that it was authorized by law, the law itself must be reasonable and the manner in which the search conducted must be reasonable. [ 14 ] Whether the accused had a reasonable expectation of privacy is to be assessed based on the totality of the circumstances. [ 15 ] While it is generally the case that individuals have a reasonable expectation of privacy in their vehicles and their contents, albeit, a diminished expectation of privacy, it remains necessary to look at all the circumstances in a given case.

It is not enough to state that this was a search of a vehicle and that an accused has a reasonable expectation of privacy in his or her vehicle. It is not a categorical approach. It is a normative one looking at all the circumstances that exist in a given case. [ 16 ] In this case, leaving a vehicle on the side of the road, at 4:00 in the morning, with the sliding door wide open, keys in the ignition, property in the back and a wallet on the seat, causes me to conclude that Mr. Yousaf-Zai had very little expectation of privacy in the vehicle and its contents.

I am not prepared to conclude that there was no expectation of privacy. However, it is at the extreme end of the spectrum. If there is usually a lower expectation of privacy in vehicles, the expectation of privacy in this case is close to nil. But there was one. [ 17 ] So, given the existence of a reasonable expectation of privacy, and the warrantless nature of the search at roadside, the onus shifts to the Crown to justify the reasonableness of the search.

Was it authorized by law, was the law reasonable and was the manner in which the search carried out reasonable ? [ 18 ] The police were suspicious that this van was connected to this or another criminal offence. They were also suspicious that it may have been abandoned, either by the people who were alleged to have broken into the car, or just generally. [ 19 ] They were concerned the suspects may be hiding in the van. With the area illuminated by their “take down” lights, they looked inside the van and satisfied their legitimate officer safety concerns.

While doing so, they also saw the property in the van, the keys in the ignition and a wallet on the passenger seat. They ran the licence plate and learned that it was connected to Mr. Yousaf-Zai, who did not live in that area. They removed the keys in order to ensure that no one entered the van and drove off while they were investigating. [ 20 ] I accept they believed that the van was connected to this crime and I accept that they believed that the suspects likely fled from the scene leaving this van, which was a get-away vehicle. Those suspicions were reasonable.

I do not accept that the police believed the vehicle was abandoned generally. [ 21 ] Once the police ensured there were no suspects in the van, during which time they saw the property, they ought to have then sealed the van and ought not to have taken the additional step of removing the licence from the wallet. In my view, the removal of the licence from the wallet was done without lawful authority. [ 22 ]

Section 221 of the HTA is not intended to authorize the search of a van in these circumstances where police believe a van is connected to criminal activity and where suspects flee.

Section 221 is not intended to and does not obviate the need for a search warrant in these circumstances. So, to that very limited extent, the removal of the wallet and licence was done without any lawful authority and was a breach of the Charter . However, there is be no reasonable basis to exclude any evidence in this case . [ 23 ] The nature of the police misconduct was minor. As soon as the police removed the wallet, and received the identification, they immediately sealed the van and had it towed to the station. The police should have sealed the van just prior to the removal of the wallet.

Further, even without pulling out the licence and receiving the identification from the witness, the police had ample grounds to get a search warrant once they saw the property in the back of the van, in plain view, in the circumstances of the case. It was an extra step that should not have been done, but it was by no means serious misconduct. [ 24 ] The impact on Mr. Yousaf-Zai’s Charter -protected interests of that conduct was minimal. First, he had such a minor expectation of privacy in this case given how the vehicle was left.

Second, given the fact that the officer had ample grounds for a warrant without the identification being removed, the property would have been discovered regardless. As a result, the impact on his Charter protected interests was minimal. Finally, society’s interest in the adjudication of the case on the merits would be undermined by the exclusion of reliable evidence where there existed grounds for the warrant, where there was minimal, if any, impact on Mr. Yousaf-

Zai’s Charter -protected interests and where the ​infringing state conduct was minor. Signed: “Justice Borenstein”