R. v. Ahmed, 2011 BCCA 254

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Ahmed, 2011 BCCA 254 Date: 20010527 Docket: CA035158 Between: Regina Respondent And Siraj Ahmed Appellant Before: The Honourable Chief Justice Finch The Honourable Mr. Justice Frankel The Honourable Mr. Justice Groberman On appeal from: Supreme Court of British Columbia, March 10, 2007 ( R. v. Ahmed and Mohan , Vancouver Registry No. 23266-3) Oral Reasons for Judgment Counsel for the Appellant: P.S. McMurray Counsel for the Respondent: W.P.

Riley Place and Date of Hearing: Vancouver, British Columbia May 26, 2011 Place and Date of Judgment: Vancouver, British Columbia May 27, 2011 [ 1 ] FRANKEL J.A. : Siraj Ahmed was convicted by a jury of a number of drug-related offences including conspiracy to import and traffic in heroin, following a trial in the Supreme Court of British Columbia. The evidence established that Mr. Ahmed participated in a scheme to import five kilograms of heroin into Canada from Pakistan. The police seized that heroin from a courier who was boarding a bus in Toronto bound for Vancouver.

There was also evidence indicating that Mr. Ahmed and others were involved in the distribution of wholesale quantities of heroin. [ 2 ] A substantial portion of the Crown’s case consisted of the private communications of Mr. Ahmed and others that had been intercepted by the police pursuant to a wiretap authorization granted under s. 186 of the Criminal Code , R.S.C. 1985, c. C-46. That authorization related to the investigation of firearms and drug-related offences. The firearms offences involved the alleged efforts by Mr. Ahmed and others to acquire a large cache of automatic weapons.

The drug-related offences involved the alleged ongoing importation and distribution of heroin by Mr. Ahmed and others. [ 3 ] Mr. Ahmed unsuccessfully challenged the validity of that authorization at trial. In particular, he asserted that the affidavit filed in support of the application for the authorization failed, on its face, to meet (

a) the reasonable-grounds requirement with respect to the firearms offences, and (

b) the investigative-necessity requirement with respect to all offences. The trial judge, Mr. Justice Bernard, upheld the authorization. He found that the authorizing judge could have been satisfied, on the basis of the information set out in the affidavit, that those requirements had been met. That ruling is the subject matter of this appeal. [ 4 ] The application for the authorization was made jointly by agents designated respectively by the Attorney General of British Columbia and the Solicitor General of Canada. The primary targets of the authorization were Mr.

Ahmed and Arbab Khan, both of Burnaby, British Columbia, and Nurab Khan and Khan Baba, both of Pakistan. The authorization permitted the police to intercept private communications at various places, including calls made and received over cellular telephones. [ 5 ] The affidavit filed in support of the application for the authorization was sworn by a member of the Royal Canadian Mounted Police (“R.C.M.P.”) on October 14, 2004. It consists of 184 pages and is very detailed. I intend to summarize only the essential features of the affidavit that are relevant to this appeal.

I will begin with the firearms investigation. [ 6 ] The affidavit discloses that in April 2004, a person (referred to as “Agent A”) who had been a police informer in the past and whom the police considered to be reliable, advised the police that he had been approached by a group of individuals seeking to acquire a large number of automatic weapons in exchange for heroin. Mr. Ahmed was a member of that group. Agent A agreed to work with the police. Thereafter, he met with Mr. Ahmed and others, and reported what they discussed to the police. Some of those meetings were

observed by the police. At one of the meetings Agent A was told that the weapons were wanted for a “cell” at a mosque. The discussions regarding the acquisition of weapons ended in July 2004. At that time, Agent A was advised by one of the persons that he and his brother had been ‘taken out of the loop” and that he would contact Agent A once he knew who was taking over. Agent A did not hear anything further for over two months. [ 7 ] On October 9, 2004, Agent A had an unexpected encounter with Mr. Ahmed in Vancouver. Agent A was told by Mr.

Ahmed that he had not been in touch with him because he had been expanding his business ventures in Toronto and Montreal. He said that Agent A’s services were no longer required. When Agent A asked if Mr. Ahmed was referring to “the equipment”, Mr. Ahmed responded “no”. Mr. Ahmed said he wanted to talk about “legitimate” matters and that Agent A would be hearing from him soon. [ 8 ] The police also had information from another person who told them, amongst other things, that Mr. Ahmed and his associates were involved in importing and trafficking in drugs and possessing and distributing firearms.

This person was a long-time drug user and street-level trafficker. [ 9 ] As for the drug investigation, the affidavit discloses that on September 9, 2004, Canadian authorities intercepted a one kilogram package of heroin sent from Afghanistan to a person in Chilliwack. Following a “controlled delivery” of that package on September 16, 2004, the police arrested two persons. In the residence of one of those persons the police found a letter written by that person attesting to Mr. Ahmed’s good character in the Pakistani community. The telephone records of that person showed contact between him and Mr.

Ahmed earlier that month. [ 10 ] Further, in September 2004, the R.C.M.P. received a request from the American Drug Enforcement Administration (“D.E.A.”) to assist in investigating Mr. Ahmed. With the help of a Pakistani national in custody for drug and money laundering offences, D.E.A. agents had determined that Mr. Ahmed was part of a group involved in importing heroin into the United States of America from Pakistan. During a recorded telephone conversation with the Pakistani national in June 2004, Mr. Ahmed said that he had received a shipment of four kilograms of heroin, and had already sold two kilograms.

Mr. Ahmed said that if the Pakistani national sent someone whom Nurab Khan and Khan Baba would vouch for, then Mr. Ahmed would give that person heroin for the Pakistani national. [ 11 ] The D.E.A. made arrangements for an undercover agent to meet Mr. Ahmed in Vancouver to pay for a heroin shipment that had been delivered in California in July 2004, by a commercial courier service. In order to surreptitiously record that meeting, the D.E.A. asked the R.C.M.P. to obtain a “one-party-consent” authorization pursuant to s. 184.2 of the Criminal Code . [ 12 ] The affidavit also discloses that in July 2004, Mr.

Ahmed and one of his associates visited a travel agency and several currency exchanges. The associate later drove Mr. Ahmed to the Vancouver International Airport from where he was to fly to Dubai via London, England. While Mr. Ahmed was waiting in the international departures area of the airport he was checked by Canada Border Service Agency inspectors. The inspectors found Canadian and United States currency and Euros totalling in excess of $144,000.00 (Can.) hidden on his person. Mr. Ahmed claimed that he was taking the money to Dubai to arrange medical treatment for his mother.

He said that he had saved $70,000.00 and borrowed the remainder from friends. [ 13 ] At the time the authorization was sought the police intended to pursue the firearms investigation by having Agent A re- establish contact with Mr. Ahmed and his associates. The police expected that this would stimulate conversations amongst Mr. Ahmed and his associates regarding the acquisition of automatic weapons. The police also hoped to be able to have Agent A introduce two undercover officers to Mr. Ahmed and his associates.

Those officers would portray themselves as persons capable of supplying automatic weapons. [ 14 ] As for the drug investigation, the police intended to use the meeting between Mr. Ahmed and the D.E.A. undercover agent as an opportunity to have one of its own undercover officers meet Mr. Ahmed. Both the D.E.A. and police undercover operators would then engage Mr. Ahmed and others in conversations in an effort to determine their roles in the importation and distribution of heroin and information concerning such things as (

a) storage locations in Canada, (

b) arrival dates of pending shipments, (

c) shipping arrangements, (

d) distribution of the money obtained by the sale of heroin, and (

e) assets accumulated through the sale of heroin. [ 15 ] With respect to the need for an authorization, the affidavit states that physical surveillance was of limited value as it would not disclose the substance of meetings between those under investigation.

It also states that surveillance works best in conjunction with the interception of private communications, as such interceptions can provide the police with advance notice of where and when those meetings will be held. [ 16 ] The affidavit states that Agent A’s ability to assist in the investigation was limited, as it was unlikely he would be able to determine the internal plans of Mr. Ahmed and his associates, particularly in relation to how they were financing the purchase of the weapons and the purpose for which they intended to use them.

It further states that because the Pakistani national co-operating with the D.E.A. was in custody, he was not in a position to ascertain the details of the heroin distribution scheme or to obtain information that would identify the roles and responsibilities of those involved in it. [ 17 ] The affidavit went on to explain why the use of other investigative techniques such as search warrants, dial number recorders, and tracking devices, would be of limited assistance in investigating the full extent of the offences for which the authorization was being sought. [ 18 ] With respect to the use of undercover officers, the affidavit states (in para. 288(g)): i.

As previously outlined, an Undercover Operation is underway. I believe the likelihood of the undercover technique being successful is subject to many factors, one of which is the tight knit nature of [Siraj AHMED], [Arbab KHAN], Nurab KHAN, Khan BABA and their associates’ culture and suspicious nature. ii.

Notwithstanding that the undercover operation component of this investigation is proceeding favourably at this time, I believe there is a requirement for a full Authorization to intercept private communications because a crucial component of the undercover operation is the relationship the undercover operator has with the targets of the investigation. I believe the targets will usually speak to associates

about their relationship with the undercover operators, often times making comments which clearly demonstrate how the targets view the undercover operators. This information is extremely valuable to personnel planning and directing the undercover operation as it allows them to accurately assess the state of mind of the target, to plan future scenarios to address the credibility concerns and also to get advance warning if there are concerns for the safety of the undercover operator.

Furthermore, it provides the best evidence at trial should the accused put forth a defence he was aware the undercover operators were police officers. [ 19 ] The following then appears under the heading “Why Interception of Private Communications Necessary”: 289. Based on the information contained in this my Affidavit, I believe the subjects of this investigation: a. Use telephones and cellular telephones to communicate, and to arrange meetings amongst themselves and their associates; b. Hold meetings amongst themselves and their associates in or near their businesses, residences and vehicles.

I believe that conversations in these places will include details of the offences under investigation. 290. Based on the information contained in this my Affidavit, I further believe that the interception of private communications will afford evidence pertaining to the weapons offences by providing details of the intended use for the weapons, the source of the funds used to make the purchase, and identifying those involved in the alleged offences being investigated which cannot be obtained by only using other investigative means.

I further believe that interception of private communications will afford evidence pertaining to the controlled substances and money laundering offences by providing details of the exportation, importation and distribution of heroin by the subjects of this investigation and the offences being investigated which cannot be obtained by only other investigative means. [ 20 ] A Supreme Court judge granted the authorization on October 15, 2004. At the same time, the judge granted a “one-party- consent” authorization.

The latter authorization relates to both the firearms and drug-related offences, and permitted the police to intercept the private communications of Mr. Ahmed and Arbab Khan when either was speaking with Agent A or the undercover operators. [ 21 ] At trial, Mr. Ahmed accepted that the affidavit satisfied the reasonable-grounds requirement with respect to the drug-related offences.

His challenge to the authorization was based on the contention that the affidavit failed to satisfy the reasonable-grounds requirement with respect to the firearms offences, and failed to satisfy the investigative-necessity requirement with respect to any of the offences.

The trial judge rejected those arguments. [ 22 ] In finding that the reasonable-grounds requirement had been met with respect to the firearms offences, the trial judge, after summarizing the information in that regard, said this: [26] It is not relevant to this aspect of the inquiry that evidence gathered through other investigative methods (such as “one-party consent” wiretap) might have been useful ( R. v. Law , 2002 BCCA 594 ). The test is based upon that which exists, not that which might have been. [27] That which exists includes: (

a) a detailed account from Agent A that Ahmed and others were part of a group of men interested in purchasing firearms; (

b) a basis for the belief that Agent A was, in general, a reliable informant; (

c) a detailed account of police surveillance, which formed a basis for the belief that Agent A was in regular contact with the suspects, including Ahmed over a prolonged time frame; and (

d) a detailed account of Ahmed’s involvement in illegal drugs, which formed a basis for the belief that Ahmed was actively involved in the heroin trade which, in turn, corroborated Agent A’s earliest statements that he was offered heroin as payment for the firearms. [28] None of the foregoing is a bare assertion without evidentiary support.

The information in the affidavit, when viewed in total, was capable of satisfying the authorizing judge that there was a credibly-based probability that Ahmed and others were conspiring to possess prohibited firearms. [ 23 ] With respect to investigative necessity, the trial judge was guided by R. v. Araujo , 2000 SCC 65 , [2000] 2 S.C.R. 992, and R. v. Wasfi , 2006 BCCA 55 , 206 C.C.C. (3d) 203. In finding this requirement had been met with respect to both investigations, the trial judge said this: [37] In regard to the firearms conspiracy, the information from Agent A, as disclosed in the affidavit of Cst.

Pound, suggests that Agent A had not completely infiltrated the group of alleged conspirators and probably never would. His role was restricted to supplying firearms for purposes not shared with him. The quantity of firearms and the references to “cells” and a mosque suggested that the conspiracy went beyond the men with whom Agent A had contact.

While there may be times when a police agent or undercover operator will achieve full infiltration into a criminal group, and the police, therefore, will have access to key information and to the identities of all the participants without resort to a wiretap, this was not one of those times. [38] In regard to the drug investigation in Canada, the police had the benefit of the results of the DEA investigation, and knowledge of the investigative methods which had been employed to gather evidence.

The police were presented with the existence of an imminent, pre-arranged meeting between Ahmed and a DEA agent, and a unique opportunity to gather evidence from discussions which might be generated from that meeting. [39] In these circumstances, I do not think it was incumbent upon them to conduct an independent investigation and employ their own investigative tools before seeking authorization to intercept communications. The DEA investigation disclosed the nature and scope of the drug conspiracy.

Even if significant time restrictions did not exist (by virtue of the imminent meeting), it was open to the authorizing

judge to reasonably conclude that key information would not be revealed through investigative tools less intrusive than a wiretap. Therelationship between the DEA agent and Ahmed, as disclosed in the affidavit of Cst. Pound, was very limited. There was no reasonableprospect that the DEA agent was in a position to gather key information about the Canadian aspect of the alleged drug conspiracy,including the identities of co-conspirators. [40] In light of the foregoing, I am satisfied that from (

a) the affidavit evidence of Cst. Pound and (

b) the common sense inferenceswhich could be drawn from it and from the nature and scope of the crimes under investigation, the authorizing judge could have beensatisfied that, practically speaking, there was no other reasonable alternative method of investigation in the circumstances of thisparticular criminal inquiry. [24] On this appeal, Mr. Ahmed renews his objections to the validity of the authorization.

He seeks an order quashing hisconvictions and directing acquittals or, in the alternative, a new trial. [25] I do not find it necessary to decide whether the authorization was properly issued with respect to the firearms offences. This isbecause I have concluded that the trial judge was correct in finding that it was properly issued with respect to the drug-related offences. [26] As discussed in R. v. Grabowski, (SCC), [1985] 2 S.C.R. 434, the doctrine of severability applies to wiretapauthorizations in the same way that it applies to search warrants. In that case, Mr.

Justice Chouinard stated (at 453): When there is a clear dividing line between the good and bad parts of an authorization, and they are not so interwoven that theycannot be separated but are actually separate authorizations given in the same order, the Court in my opinion can divide the order andpreserve the valid portion, which then forms the authorization.

In such a case interceptions made under the valid authorization areadmissible. [27] In the case at bar, there were, in effect, two separate authorizations granted within one formal order: one at the request of theAttorney General of British Columbia to assist in the investigation of firearms offences; the other at the request of the Solicitor Generalof Canada to assist in the investigation of drug-related offences. The terms of those two authorizations are identical in all respects, e.g.,who could be intercepted and where those interceptions could be made.

Accordingly, as long as there was a basis for granting one ofthose authorizations, interceptions made pursuant to the formal order were lawful. [28] The only issue taken with respect to the authorization as it relates to the drug-related offences concerns the investigative-necessity requirement. Mr. Ahmed submits that the granting of an authorization to investigate those offences was premature. Hesummarizes his position as follows in his factum: 80.

It is respectfully submitted that the trial judge erred in concluding that a one-party consent for Agent A and/or a one-party consentfor the DEA agent, coupled with surveillance and other techniques was not a practical alternative at that stage of the investigativeprocess. Those techniques may well have yielded information that would have supported a full authorization. However, it is submitted,the evidence as it existed on October 15, 2004 did not. [29] The investigative-necessity requirement is set out in s. 186(1)(

b) of the Criminal Code. Before a judge can grant anauthorization under s. 186 he or she must be satisfied: [T]hat other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or theurgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigativeprocedures.

In this case, the focus is on whether other investigative procedures were unlikely to succeed. [30] The trial judge’s task was to determine whether the affidavit was capable of satisfying the authorizing judge that theinvestigative-necessity requirement had been met: R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421 at 1452; Araujo at para.51. This Court’s task is the same. [31] Araujo is the leading authority on investigative necessity. In that case, the Court held that this requirement must be assessedfrom a practical perspective, having regard to the objectives of the investigation. As Mr.

Justice LeBel stated (at para. 29), “There mustbe, practically speaking, no other reasonable alternative method of investigation, in the circumstances of the particular criminal inquiry.”(Emphasis in original.) Further, and of importance, is the fact that this requirement is to be considered having regard to the investigationas a whole, and not just with respect to those named as the targets of the authorization: Wasfi at paras. 34, 35; R. v. Pham, 2002 BCCA247, 165 C.C.C. (3d) 97 at paras. 85, 86. [32] In this case, there were reasonable grounds to believe that Mr.

Ahmed and others in Canada were involved in an internationalheroin-distribution scheme and that the interception of private communications would assist in the investigation of their activities. As thetrial judge observed, Mr. Ahmed’s imminent meeting with an undercover D.E.A. agent presented the police with “a unique opportunityto gather evidence from discussions which might be generated from that meeting.” The interception of those discussions would likelyresult in the police determining who was involved in that scheme and how they operated.

From a practical perspective, there was noother reasonable alternative method of pursuing the investigation of those criminal activities in a meaningful way. To paraphrase whatwas said by Madam Justice Rowles in Pham (at para. 89), other investigative procedures alone were unlikely to provide evidence as tothe full extent of the drug-related activities of not only Mr. Ahmed, but also those who worked with him, and those who supplied thedrugs. [33] I would, accordingly, dismiss this appeal. [34] FINCH C.J.B.C.: I agree. [35] GROBERMAN J.A.: I agree.

[ 36 ] FINCH C.J.B.C. : The appeal is dismissed. “The Honourable Mr. Justice Frankel”