Ahmed v McCaskill et al, 2016 MBCA 51

Citation: Ahmed v McCaskill et al, 2016 MBCA 51 Date: 20160517 Docket: AI15-30-08415 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Barbara M. Hamilton Madam Justice Diana M. Cameron BETWEEN : FAKHRA AHMED, PARVEZ AHMED, ) ZAEEM AHMED, AZEEM AHMED ) P. Ahmed and ) Z. Ahmed (Plaintiffs) Appellants ) on behalf of the Appellants - and - ) ) KEITH MCCASKILL, Chief of Police of ) the Winnipeg Police Service and the said ) D. A. M. Pambrun Chief of Police of the Winnipeg Police, ) for the Respondents THE CITY OF WINNIPEG, CST. D. ) MIKAWOZ, CST. S. MORIER, CST. S. ) PRAWDZIK, CST.

J. ROTINSKY, CST. M. ) TEMPLE, CST. K. WIENS, CST. ) Appeal heard: YUNKER, SGT. KALER, CST. J. LOWER, ) April 4, 2016 CST. W. JOHNSON, CST. B. ZELMER, ) CST. K. ALEXANDER, CST. R. BERUBE, ) CST. K. CHAPKO, CST. M. COWELL, ) CST. T. GUENTHER, CST. R. HANEY, ) Judgment delivered: CST. W. HUGGARD, CST. M. ) May 17, 2016 MACDONALD, CST. S.

MCDONALD ) ) (Defendants) Respondents ) On appeal from 2015 MBQB 68 , 317 ManR (2d) 42 MONNIN JA [ 1 ] This is an appeal, following a trial, from the dismissal of the appellants’ claim against numerous members of the Winnipeg Police Service as well as the Winnipeg Police Service itself.

In their claim, the appellants sought general, punitive and public law damages alleging false imprisonment, malicious prosecution, abuse of public authority, breach of privacy and breach of certain rights under the Canadian Charter of Rights and Freedoms (the Charter ). [ 2 ] The appellants are all members of one family and the allegations set out in their claim arise from the execution of a search warrant upon their residence on August 29, 2011, to search for several prohibited weapons advertised for sale from the residence on the Facebook account of Kaleem Ahmed (Kaleem).

Kaleem is the son of the appellants Fakhra Ahmed and Parvez Ahmed. [ 3 ] The appellants, who were self-represented at trial and on this appeal, raise numerous grounds of appeal. The majority of those grounds take issue with the trial judge’s findings of fact, including credibility findings against the appellants. In order to be successful on those grounds, the appellants must demonstrate that the trial judge committed palpable and overriding error.

This they have failed to do. [ 4 ] Specifically, the trial judge made the following findings (at paras 36, 67-71): I conclude that there simply is no basis for the allegation of malice or a conspiracy to humiliate, harass or take any improper action against the plaintiffs. None of the officers who testified were asked about this, but I am satisfied that the events in issue, that is, the

search and the use of considerable resources to execute the search warrant, were the direct consequence of Kaleem’s advertising weaponsfor sale on his Facebook page earlier that day. That all this occurred on the last day of Ramadan and the plaintiffs were prevented fromcelebrating Eid is understandably very upsetting to the plaintiffs. However, responsibility for what thereafter ensued rests with Kaleem. The plaintiffs’ position does not recognize the fact that, at law, “possession” of property only requires that an individual have controlover the items and have knowledge of their existence.

Objects can be in possession of more than one person. Where something is foundinside a home, unless only one person had control or access to its specific location, all the residents may, at law, have control of the item. The same goes for knowledge. Where an item or object has been hidden away it may well be that a reasonable doubt would exist that alloccupants of the house had knowledge of its existence. However, where items are found in plain view or found scattered throughout aresidence, the result may well be the opposite.

In this case, Patrol Sergeant Alexander said he made the decision to arrest all of theoccupants once he saw Mrs. Ahmed exit the back door right behind Kaleem, who was carrying a long, rectangular box. Alexanderbelieved a gun was probably inside. He felt he had reasonable and probable grounds to believe that Mrs. Ahmed knew this and if she did,the others probably did as well. Possession of a prohibited weapon is an indictable offence. In his experience, often there are moreweapons involved in a situation than police know about.

He concluded that the obvious risks involved and the potential for additionaloffences or people in the house to have access to weapons was a concern, and gave him the basis to arrest all the plaintiffs. I am satisfied that Alexander subjectively believed he had reasonable and probable grounds to arrest the plaintiffs in these circumstances. I am also satisfied, based on the totality of the circumstances, objectively viewed, that his belief was reasonable. The plaintiffs argue that their right to counsel was breached because they were not permitted immediate access to their lawyer.

Theevidence about this concerns only Mr. Ahmed, who told officers he wished to speak to his lawyer at the time he was given his notice ofarrest, right to counsel, and police caution. He told Constable Mikawoz that he wanted to speak to his lawyer immediately. This did nothappen. Constable Mikawoz testified that he explained to Mr. Ahmed that a phone was not available but he would be able to call hiscounsel once he was at the Public Safety Building. The law is clear that when executing a search warrant the police are entitled to control the premises.

This allows them to detain andhandcuff occupants, and where circumstances are or potentially are dangerous, which I find was the situation here given that firearmswere involved, a detained person is not allowed to call their lawyer until the premises have been cleared of people (see R. v. Strachan, (SCC), [1988] 2 S.C.R. 980; 90 N.R. 273). In my view, no breach of s. 10(

b) occurred. To summarize then, I am satisfied that there were reasonable and probable grounds for the search and the warrant authorizing the searchwas valid and sufficiently complied with for the search to be reasonable. The police did not act out of malice or with any improperpurpose and had reasonable and probable grounds to arrest the plaintiffs and charge them given all the circumstances.

The police did notviolate the plaintiffs’ privacy or otherwise breach their rights under s. 7, 10 or 15 of the Charter, nor were the plaintiffs targeted ortreated improperly by the police. [5] The grounds of appeal related to the trial judge’s findings dismissing the appellants’ claims that they were falselyimprisoned, that they were prosecuted maliciously, that the police service and the individual respondents abused their authority, and thattheir privacy rights and their Charter rights were breached, are all without merit and, accordingly, I would dismiss them.

I would alsodismiss their ground of appeal that the proceedings were unfair leading to a reasonable apprehension of bias on the basis that it is alsowithout merit. [6] There are, however, two grounds of appeal that merit further comment from this Court. The first is the assertion thatthe search warrant was not executed in accordance with the provisions of the warrant itself.

The second is an allegation that thetranscript of the trial proceedings was so deficient in representing what occurred at trial that this Court cannot properly review whatoccurred and that a new trial should be ordered to insure that no substantial wrong or miscarriage of justice has transpired. [7] The search warrant was granted on the same day that police became aware that Kaleem was advertising, on hisFacebook page, the sale of a shotgun, some knives and bear spray, all of which are weapons prohibited by the Criminal Code.

Thewarrant provided that it was to be executed by day or more specifically between the hours of 6:00 a.m. and 9:00 p.m. [8] The evidence was that the police arrived at the appellants’ property at 8:57 p.m. and initiated telephone contact in anattempt to have the appellants vacate the residence prior to the police storming it. There was a considerable time lapse between therequest and the eventual exit from the residence by all of the appellants, including two who ran from the back door with one of themcarrying a box, in which police found a sawed-off shotgun and a knife.

Inside the house, a switchblade knife and bear spray were alsolocated. [9] The appellants argue that the search warrant was not executed within the time limits set out in the warrant as thesearch of their residence was concluded after 9:00 p.m. [10] The trial judge made the following finding (at para 47): I conclude then, as a matter of law, a warrant permitting search “by day” permits the police to enter the premises (and the property onwhich a building is located is part of the premises — see R. v. Le (T.D.), 2011 MBCA 83 , 2011, 270 Man.R. (2d) 82; 524

W.A.C. 82; 275 C.C.C. (3d) 427; 2011 MBCA 83 (C.A.)) at any point between 6:00 a.m. and 9:00 p.m., but does not require the search tobe completed within that period. Of course, if either the duration or the manner in which the search is conducted is unreasonable, abreach of s. 8 may be found. [11] I am of the view that the trial judge’s finding with respect to this issue is correct in law, although there is limitedauthority to the contrary. See Pars Oriental Rug (cob Oriental Rug Bazaar) v Canada (Attorney General), [1988] BCJ No 3054 (QL)(SC); and R v Guay (R) (1997), (NB CA), 186 NBR (2d) 377 (CA).

Rather, it has been well established that policemust initiate the search allowed under the warrant within the time limits set out in the warrant, but the search itself need not becompleted within those same time parameters.

See R v Woodall, [1991] OJ No 3563 (QL) (Gen Div), aff’d [1993] OJ No 4001 (QL)(ON CA); R v Veranski and Bellotti, 2012 BCSC 220 ; R v Brown, 2010 ONSC 2280 ; R v Pickton, 2006 BCSC 1090,260 CCC (3d) 185; and R v Rafferty, 2012 ONSC 703 . [12] The trial judge also quoted in her reasons from R v Thomas, 2013 ONSC 8032 , which quote I reproduce herebecause I am satisfied that it deals directly with the issue raised by the appellants and I adopt it (at para 31) To hold that the search was required to be completed within the time specified in the warrant . . . is also unrealistic and impractical asthere would normally be no way for the issuing justice, or the police, prior to entering the place to be searched, to predict the time thatwould be required to complete the search.

In this case, for instance, Detective McDonald testified that the length of time required tocomplete a search would depend to a large degree on the conditions found on the premises following entry, including the quantity ofproperty found therein. [13] Accordingly, I have not been persuaded that the trial judge was in error when she concluded that the search of theappellants’ residence was conducted lawfully and I would dismiss that ground of appeal. [14] I deal finally with the issue of the transcripts which were prepared by the court’s Transcription Services Unit (TSU)from the microphone recording made from what was said during the course of the trial. [15] The appellants allege that sufficient gaps exist in the transcripts that it makes them so unreliable that this Court cannotrely on the fact that they represent what transpired during the trial and that this Court cannot properly review the record of what occurredand, therefore, cannot meaningfully deal with the issues now raised by them.

They seek a new trial. [16] I can readily agree that there are gaps that exist in the transcripts. I have, however, not been persuaded, as alleged bythe appellants, that such gaps are as a result of bias on the part of court staff. Such gaps are not so unusual as to raise a concern. Theyoccasionally occur when there is a difficulty in understanding some of the parties or witnesses to the proceedings or whenever more thanone person attempts to speak at the same time. [17] Furthermore, when the issue was raised by the appellants, a review of the transcripts was conducted and correctionswere made.

In my view, however, the key to deciding this issue is that I am satisfied that the transcripts, as they now stand, did not havea material impact on this Court’s ability to assess and understand what transpired at trial. In addition, the appellants have not argued thatthe gaps in the transcript have deprived them of advancing a ground of appeal. See R v Le (TD), 2011 MBCA 83 at paras 268-70, 270ManR (2d) 82.

Although not perfect, the state of the transcripts does not justify appellate intervention and I would dismiss this ground ofappeal. [18] For these reasons, as set out, I would dismiss the appeal and award one set of costs to the respondents. JA I agree: JA I agree: JA