R. v. Ghorbanpoor Date:, 2014 BCPC 157

Citation: R. v. Ghorbanpoor Date: 20140620 2014 BCPC 0157 File No: 90795-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ARMAN GHORBANPOOR REASONS FOR JUDGMENT ON VOIR DIRE OF THE HONOURABLE JUDGE POTHECARY Counsel for the Crown: T. Spasojevic Counsel for the Accused: D. Fai Place of Hearing: Port Coquitlam , B.C. Date of Hearing: June 20, 2014

Date of Judgment: June 20, 2014 [ 1 ] THE COURT: This is a difficult case for a variety of reasons. On the face of it, it looks very simple, but it is not, because the issues, the legal issues and factual issues that it includes, are actually very substantial, not the least of which fall from the last discussion we just had. [ 2 ] In this case, Mr. Ghorbanpoor was driving a vehicle not registered in his name, but registered in the name of somebody, who I am assuming from the name, is Arabic or Iranian by origin.

It is not a name where at least in my experience is readily identifiable as to whether it is the name of a woman or a man, and recognizing that in every culture there are names that are used by both genders. In any event, there was no sense and certainty as to the gender of the person who is the registered owner of the vehicle. [ 3 ] Nonetheless, the vehicle in which Mr. Ghorbanpoor was driver was initially seen by Constable O'Brien, who is a member of the Drug Suppression Team at the Coquitlam detachment. It was parked by the side of the road, on what the officer described as a gravelled area.

He said that in his opinion it was unusual to see vehicles parked there, although he did not explain further as to why that would have been unusual. The vehicle was parked on the north side of the road facing westbound, so that would be in the correct direction on a street in Coquitlam. [ 4 ] He ran the plate of that vehicle and it came back that the registered owner was a novice driver and should have an "N" displayed on the vehicle.

I note parenthetically that he initially said it should have been an "L", but later changed that to "N". [ 5 ] He also testified that he turned his car around and drove toward the car. However, it had already pulled out, and had turned right, heading northbound on Marmont. He decided then to conduct a traffic stop to determine whether or not the driver should indeed have been displaying an "N". The vehicle pulled over to the right side of the road. The driver's window was down. It is not clear if it was wound down or had been down for some time.

He said he approached on the driver's side of the vehicle, spoke with the driver, asked for the driver's licence, and the driver's licence was produced to him. He gave no evidence as to whether or not an "N" was required for that driver's licence. [ 6 ] He identified the driver as being the person on the driver's licence, and that that was indeed Mr. Ghorbanpoor. [ 7 ] He said that he could smell an odour of marihuana that from his experience he believed to be vegetative marihuana. It was coming from inside the vehicle. He characterized it as a fairly strong smell, and as a result he then placed Mr.

Ghorbanpoor under arrest for possession of a controlled substance. Mr. Ghorbanpoor was still in the car at that time. He arrested him, advised him of his Charter rights and warning, and placed him in the rear of the police car. [ 8 ] He testified that he took him to the police car and searched him to find any evidence of the offence. He did not find any substances on him, but did find two $5 bills. He placed him in the police car and then returned to the vehicle driven by Mr. Ghorbanpoor in order to conduct a search incidental to arrest to find evidence of the offence and controlled substances.

He described his search; he searched fairly methodically, starting at the driver's area, moving then to the rear driver's area, then over to the passenger side, starting at the front passenger side, and then to the rear passenger side. [ 9 ] He testified to noting what appeared to be a tall can of Arizona Iced Tea in the centre console, and that he found a cell phone on the passenger seat, and a wallet in the driver's door pocket. It is of some interest that he took photographs all the way through in sequence as he was searching the car.

So the photographs that were produced that show a picture of this can in this front centre console, in fact show it in the actual place where it was, not where it had been put back, because he took photographs in the course of this search. [ 10 ] When he had not been able to find anything but he said he could still smell marihuana, he took hold of this Arizona can.

Thinking back to some information that had been provided to police, and I accept that that is a reasonable kind of information that is circulated among law enforcement agencies about secret devices or ways of hiding items, he twisted the lid of the can. Instead of it opening and being a conventional can, it in fact was a small portable safe, so to speak. Inside it was a plastic container, so once the metal lid was screwed off the top of the can, there was a plastic screwed lid that secured the interior container.

In that he found four baggies of marihuana, three containing 3.5 grams of marihuana, and one containing 2.25 grams of marihuana as a net weight for each of the items. He seized the can and put it on the outside of the car. [ 11 ] He did not believe that the quantity of marihuana found explained the smell and he could still smell marihuana emanating from the vehicle, notwithstanding having removed this can to the outside. So he checked further, and decided to search the trunk.

In opening the trunk, on the top side, not of the lid but of the trunk area, as I understand it, so that you had to sort of duck down to look into the trunk to see this, tucked into one of the rods going across, there was a larger baggie which when opened was found to contain 12 smaller baggies of marihuana, each of those containing 3.5 grams. So they were small baggies contained in a larger baggie. All of the baggies were sealed. Because of the individual packaging, he, at that point, formed the opinion that the marihuana was possessed for the purposes of trafficking. He re-warned Mr.

Ghorbanpoor that he was now under arrest for possession for the purpose of trafficking. [ 12 ] Counsel has quite fairly made admissions with respect to the continuity and analysis of the contents of these items, and there is no issue that the contents of these baggies indeed was marihuana, and that it was this marihuana that was weighed and measured and analysed. So that is not at issue at all. [ 13 ] In cross-examination, it was noted firstly that there was no note made in the police officer's notebook as to the reason for the stop, and any follow-up investigation he may have done with respect to that stop.

So there was nothing about the necessity or the need to determine an "N" or an "L", or whether the driver was in fact properly licensed to be driving a vehicle without having a decal on the car. [ 14 ] The officer agreed that he understood the purpose of making notes was to record important details, and that he simply did not consider this to be overly significant, notwithstanding that it was the reason for the stop. This I should note as well, that this stop, according to the notes that were read in, took place about 5:30 in the afternoon. The only note that was made with respect to an "N" or

an "L" was a brief reference in the Report to Crown Counsel that was written approximately five weeks after this incident. Whereas the notebook says "Traffic stop, Chev Malibu," and gives a licence number, conducted at 1730 hours, the note in the Report to Crown Counsel says [as read]: 1730, conduct a traffic stop on Chev Malibu for not displaying an "N". [ 15 ] The certificate of registered ownership was filed at trial and, as I have indicated, the name is certainly not that of Mr.

Ghorbanpoor, although it is not a name that is readily identifiable, at least to me, and I assume to the police officer, as to whether that was the woman's or man's name. [ 16 ] He agreed in cross-examination that on the two occasions when he has been involved in investigations of grow-ops, particularly one where he was involved in dismantling it, that, after leaving, his clothes also smelled of marihuana from the contact with it or being in the presence of it in the course of the dismantling operation, notwithstanding that he was not a user or possessor in the conventional way.

It was a matter where upon going home he had showered and changed clothes. [ 17 ] He also acknowledged that quantity of marihuana cannot be determined from the smell of it, including in particular whether or not the quantity that had a particular smell was over or under 30 grams. [ 18 ] He testified to also being aware of the issuance of medical marihuana licences, and aware that persons who have them must produce them to a police officer upon request. He said that he did not make any demand on Mr.

Ghorbanpoor as to whether or not he had such a permit. [ 19 ] He stated that notwithstanding having made that inquiry that he believed that Mr. Ghorbanpoor was arrestable, and that he should be arrested immediately, and that if he had a reason for possession, such as the permit, that he can state that later. [ 20 ] In his initial description of the Arizona Iced Tea container, he described noting that it was quite light. It was examined in the court by counsel and by the court, and it is not quite light. It is a weight that one would expect for a can that size filled with liquid to weigh.

What is different in the way it felt, and it was noted by counsel and I think also by the officer, is that if you shake it, that it does not have a liquid sensation inside. But the weight was not one that would be properly characterized as quite light, relative to expectations, certainly. [ 21 ] No further investigation was done by this officer with respect to the "N". No tickets were issued. No evidence was gathered by him as to whether or not Mr.

Ghorbanpoor was supposed to have an "N" on his vehicle or a vehicle he was driving, and no indication as to whether or not there actually was an "N", maybe just not readily apparent on the vehicle. The issue of the "N" seems to have receded entirely from this officer's mind once the vehicle was stopped. [ 22 ] He was asked if he had considered obtaining a warrant once he had Mr. Ghorbanpoor secured in the police vehicle. He replied that he believed that he had found Mr. Ghorbanpoor committing an offence of possession of narcotics, so he did not think it was necessary.

It is certainly common ground that no warrant was obtained for this car and that it was searched without warrant. [ 23 ] This officer is a new member of the Drug Suppression crew in Coquitlam, to the point where by recollection he believes this was his first week of working for that crew, notwithstanding having spent his previous five years in service in the Coquitlam detachment. [ 24 ] A number of issues arise.

Firstly, was the initial stop a valid stop; secondly, was the arrest a valid arrest, or was that an arbitrary or improper arrest or detention; and thirdly, was the search of the vehicle lawful, and if then, whether it was lawful or not, is the result of the search of that vehicle lawful. [ 25 ] Counsel also mentioned at the outset another issue that has not been expanded on greatly in terms of submissions, but is always there on cases of possession, and this is a case of possession simpliciter , as to the knowledge and control of the person alleged to have possession of certain items. [ 26 ] In terms of the validity of the stop, this is not a straightforward stop.

There are certainly circumstances that cause it to be somewhat questionable. [ 27 ] It is clear from the authorities that random stops for motor vehicle checks are valid, but it is equally clear that they are not allowed to be used as a ruse for another investigation. That can be a very fine line, because what may appear on its own could be perfectly legitimate, when the surface is scratched may in fact appear to be simply an illegitimate means of going about a different investigation. [ 28 ] In this case it is described that this gravel portion by the side of road is an unusual place for a car to stop.

The officer was not challenged on that, and although I may have my own questions as to the reasonableness of that comment, that I simply let stand for the time being. [ 29 ] As he viewed the vehicle, he got the licence number, checked it, and confirmed that the registered owner of that vehicle was to be driving with an "N". It is not evident from the registered owner information whether the registered owner was a man or a woman.

I suspect that the name is a female name, but that is only my suspicion, and I have no sense of certainty, and the officer certainly did not seem to have any sense of that. [ 30 ] So the vehicle gets stopped. A driver's licence is produced. If the reason for stopping was to determine the validity of this driver driving that vehicle without an "N", the officer made no inquiry regarding that. No evidence has been provided about whether an "N" is indicated on the driver's licence, and that is information clearly visible to a police officer by the nature of the licence that is

issued. So that was information he would have right then. But again, no note was made and nothing was said about it in evidence. [31] He then, having smelled marihuana, places the driver under arrest. He does not detain him for investigation. He jumps right toarrest, believing that based on the smell alone, that he has reasonable and probable grounds to arrest this individual, and he does.

Hethen secures him in the back of the police car. [32] Searches are not described as being for officer safety, other than at one point he eventually says he searched the car, both forcontraband and for officer safety, but not the search to get him into the police car. That was a search for contraband, apparently. [33] Nothing is found on this young man. [34] In searching the vehicle, nothing is evidently found there, either. Nothing is visible. Nothing is obvious. There is a smell,apparently, and the items, in fact, when they are found, are quite well hidden in the car.

One is hidden in plain view in this can that isdisguised to look like a legitimate kind of iced tea. The other is secured and hidden in the trunk, where on a quick search of the trunkyou would not find it. It took a more careful search of the trunk, according to the police officer, to locate the bag that was tucked behindthis rod at the top part of the trunk further in. [35] The cases have been provided, I am not going to -- well, I will provide some of them. Crown counsel has referred to a veryrecent case from yesterday of R. v. Acosta, 2014 BCCA 218. Also, R. v.

Carpenter, it does not have a standardized citation on it, it isAugust 13, 2013, Port Coquitlam, court file number 88196-1. Other cases have been provided, but are not, I think, necessarily relied on. They were to cover a variety of circumstances. Finally, by Crown, the case of R. v. Phengchanh, 2011 BCSC 484, a decision of JudgeRomilly. [36] Counsel on behalf of Mr. Ghorbanpoor has referred me to three cases in particular: R. v. Ruiz, which is a decision datedJanuary 23rd, 2012, a decision of Judge St. Pierre, from Port Coquitlam, file number 83940-1; R. v.

Fuller, 2004 BCPC 326 ,2004 BCPC 0326; and a decision of mine, R. v.

Becker, 2013 BCPC 287. [37] In terms of the cases, they set out the principles, some of which I have referred to as I have been giving my reasons. [38] Crown counsel argues that this was indeed a straightforward motor vehicle stop; that it was not a pretext; that the smell is, andfollowing the decision of Acosta, sufficient for an arrest; and that the officer did not need to eliminate all other explanations for the smellin terms of determining whether or not he had grounds for arrest; that it was necessary for the officer to have subjective grounds withrespect to possession and that those be objectively substantiated. [39] Counsel on behalf of Mr.

Ghorbanpoor argues that in the context of the actions taken by the officer on that date, that the stopwas much more likely to be by way of a ruse, rather than a straightforward motor vehicle enforcement action; that the absence of noteswith respect to the reason for the stop was troubling and should count against the reasonableness of the stop and of the arrest; that thesearch then became a warrantless search, so the onus is on the Crown to establish that it was not unreasonable; and that the vehiclesearch similarly was not a reasonable search, it being warrantless, but also that it was very much a part of an arrest first, ask questionslater, kind of attitude. [40] The arrest in this matter would be one where the officer, to lawfully arrest a person, would have to find that person committingan offence.

Counsel on behalf of Mr. Ghorbanpoor argues that he could not be found to have been committing it to the degree ofreasonable and probable grounds, because there were many other explanations that could be provided for why the smell is existent in thevehicle. In any event, he might have a lawful permit to have possession of the items. [41] The circumstances here are made more difficult by some of the circumstances that seem to be localized to Coquitlam, some ofwhich are set out in my decision of Becker, one of two pertinent decisions of mine, and other decisions by other members of the court inthis location.

In these, there are certain practices by the Drug Suppression Team, or at least there have been certain practices, that havereceived unfavourable comment from the court. They typically include using traffic stops as a ruse for conducting a drug investigation,and while superficially they may appear to be substantiated, that with a bit closer in examination, it becomes clear that they were in fact apretext. [42] In the previous decisions I have given, there has been clear evidence in terms of an ongoing relationship between the police andthe suspect, to the point at times of mere harassing behaviour.

I have no evidence of anything like that in this case. The evidence that Ido have causes me to be suspicious of the reasons for stop as set out by the officer.

However, I am not prepared to say that I disbelievethem in this circumstance on the basis of the information before me. [43] The actions taken as a whole, however: of the failure to pursue the investigation for the "N" or "L" decal; the arrest before evenhaving the person out of the car; to segregate him from the apparent smell and determine what the real origin of that smell is; the searchfor evidence, as opposed to a search for safety; placing him under arrest instead of simply investigative detention; and I should add, theabsence of notes about all of that, cause me to be deeply suspicious as to what was going on.

Nonetheless, the search of the persondiscovered nothing of evidentiary value in a positive sense for the police officer, and the search of the vehicle needed to be a fairlythorough search in order to find the two locations where these drugs were apparently hidden. [44] Counsel has argued that the drugs were located as the result of a breach of his client's right to be secure against unreasonablesearch and seizure.

It is a warrantless search, and as such the burden is on the Crown to prove that it was reasonable. [45] This is a case where I am not satisfied that the Crown has indeed proven the search to have been reasonable, and I do find it tohave been an unreasonable search in these circumstances. It was undertaken precipitously.

It was undertaken without having anygrounds to move beyond suspicion in the context of this particular investigation, and it was undertaken in circumstances that result in mynot being convinced that the stop was simply a motor vehicle stop. [46] In considering s. 24, counsel has agreed that the evidence per the decision of the voir dire might well be determinative of the

issues on the trial. I should add the issue of possession and control really is a trial issue and not a voir dire issue. [ 47 ] In considering s. 24, the decision of R. v. Grant , says in paragraph 71: ...[the] court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct…, (2) the impact of the breach on the Charter-protected interests of the accused…, and (3) society’s interest in the adjudication of the case on its merits.

The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. [ 48 ] In this case, in terms of the seriousness of the Charter -infringing state conduct, the conduct is the warrantless search of the vehicle, which arose through a wrongful arrest. I am satisfied there were not sufficient grounds for arrest at the time of his actually being placed under arrest.

The search of the person was to find evidence at that time, notwithstanding that there was no ongoing description of additional smell coming from the person or anything else that would justify search of the person. Nothing was found there so there is no evidence to discuss. That then led to the search of the vehicle. [ 49 ] In my view, the Charter -infringing state conduct here, taking into account both the arrest and the search, I am satisfied is serious.

The impact of the breach on the Charter -protected interests of the accused with respect to the personal search, in these circumstances I find to be a significant impact. With respect to the vehicle, it is of lesser impact; it was not his car and it is a vehicle. There is a lesser or a reduced expectation of privacy with respect to that. Then finally, society's interest in the adjudication of the case on its merits. Society is ordinarily interested in having cases that should go forward.

Sometimes there are cases that should not go forward because the methods of investigation are such that they in and among themselves, bring the administration of justice into disrepute. [ 50 ] In this case it cuts both ways. Society certainly has an interest in adjudicating a case where there are a couple of ounces, being a significant amount of marihuana in the sense it is greater than the 30-gram limit that is set out as one of the tiers in the possession cases, though not significantly greater.

But there is also a concern about the actions precipitously undertaken by a police officer engaged in what should be simply a routine investigation that should not lead to the kinds of breaches that occurred in this case. [ 51 ] In evaluating the behaviour as a whole on that afternoon, I am not satisfied that this is evidence that should properly be admitted into evidence, being these baggies of marihuana.

Rather, I find that in all of these circumstances, that the admission of that evidence onto the trial in this circumstance would bring the administration of justice into disrepute. [ 52 ] I am ruling that the evidence of the marihuana will not be evidence on the trial. (REASONS FOR JUDGMENT CONCLUDED)