Ahmed v. McCaskill et al., 2015 MBQB 68

• Judge: Suche, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: April 22, 2015
• Jurisdiction: Manitoba
• Citations: 2015 MBQB 68;(2015), 317 Man.R.(2d) 42 (QB)

Ahmed v. McCaskill (2015), 317 Man.R.(2d) 42 (QB)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. MY.008

Fakhra Ahmed, Parvez Ahmed, Zaeem Ahmed and Azeem Ahmed (plaintiffs) v. Keith McCaskill, Chief of Police of the Winnipeg Police Service and the said Chief of Police of the Winnipeg Police, The City of Winnipeg, Cst. D. Mikawoz, Cst. S. Morier, Cst. S. Prawdzik, Cst. J. Rotinsky, Cst. M. Temple, Cst. K. Wiens, Cst. Yunker, Sgt. Kaler, Cst. J. Lower, Cst. W. Johnson, Cst. B. Zelmer, Cst. K. Alexander, Cst. R. Berube, Cst. K. Chapko, Cst. M. Cowell, Cst. T. Guenther, Cst. R. Haney, Cst. W. Huggard, Cst. M. MacDonald and Cst. S. McDonald (defendants)

(CI 12-01-77812; 2015 MBQB 68)

Indexed As: Ahmed v. McCaskill et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Suche, J.

April 22, 2015.

Summary:

The plaintiffs were the parents and siblings of Kaleem Ahmed. They lived together with Kaleem in a residence owned by the parents. Kaleem was under an order prohibiting the possession of weapons. Kaleem advertised (on Facebook) that he had several prohibited weapons (including a sawed off shotgun) for sale. Officers obtained and executed a search warrant at the home, finding all of the items advertised. The plaintiffs alleged that the search, their arrest and detention and the issuance of charges against them were unlawful. Asserting wrongful imprisonment, malicious prosecution, breach of privacy and violations of ss. 7, 8, 9, 10 and 15 of the Charter, the plaintiffs sought general and punitive damages.

The Manitoba Court of Queen's Bench dismissed the action.

Civil Rights - Topic 1556

Property - Land - Search or seizure of private residence - The plaintiffs were the parents and siblings of Kaleem Ahmed - They lived together with Kaleem in a residence owned by the parents - Kaleem was under an order prohibiting the possession of weapons - Kaleem advertised (on Facebook) that he had several prohibited weapons (including a sawed off shotgun) for sale - Officers obtained and executed a search warrant at the home, finding all of the items advertised - The plaintiffs' action alleged, inter alia, that the search was unlawful - The Manitoba Court of Queen's Bench dismissed the action - The court rejected the plaintiffs' assertion that the search was unlawful because the officers failed to comply with the requirement that the search be conducted "by day" as required in the warrant - A warrant permitting search "by day" permitted the police to enter the premises at any point between 6 a.m. and 9 p.m., but did not require the search to be completed within that period - Here, all of the officers were in place by 9 p.m. - The warrant was complied with or, at worst, the officers were two minutes behind the deadline for entry onto the property - This minor violation had not rendered the search unreasonable - See paragraphs 41 to 49.

Civil Rights - Topic 1559

Property - Land - Search and seizure by police - [See Civil Rights - Topic 1556 ].

Civil Rights - Topic 1608

Property - Search warrants - Request by accused to see warrant - The plaintiffs were the parents and siblings of Kaleem Ahmed - They lived together with Kaleem in a residence owned by the parents - Kaleem was under an order prohibiting the possession of weapons - Kaleem advertised (on Facebook) that he had several prohibited weapons (including a sawed off shotgun) for sale - Officers obtained and executed a search warrant at the home, finding all of the items advertised - The plaintiffs' action alleged, inter alia, that the search was unlawful - The Manitoba Court of Queen's Bench dismissed the action - The court rejected the plaintiffs' assertion that the officers' failure to provide the search warrant to them on their request had rendered the search unlawful - While the executor of the warrant should present the warrant to the occupant prior to the start of the search, this obligation was not absolute - Here, it was not feasible for the plaintiffs to be given the warrant until the situation was safe in the sense that all of the people were out of the house and in police custody - The plaintiffs had been informed of the contents of the warrant on the phone before the search began - The police policy of ensuring that all occupants of the house were removed and the premises secured before addressing the requirement to provide them with the search warrant was not unreasonable in these situations - See paragraphs 50 to 59.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The plaintiffs were the parents and siblings of Kaleem Ahmed - They lived together with Kaleem in a residence owned by the parents - Kaleem was under an order prohibiting the possession of weapons - Kaleem advertised (on Facebook) that he had several prohibited weapons (including a sawed off shotgun) for sale - Officers obtained and executed a search warrant at the home, finding all of the items advertised - The plaintiffs' action alleged that the search, their arrest and detention and the issuance of charges against them were unlawful - The Manitoba Court of Queen's Bench dismissed the action - The court rejected the plaintiffs' assertion that their right to counsel under s. 10(b) of the Charter was breached because they were not permitted immediate access to their lawyer - When executing a search warrant, police were entitled to control the premises - This allowed them to detain and handcuff occupants and, where circumstances were dangerous or potentially dangerous, which was the situation here, a detained person was not allowed to call a lawyer until the premises had been cleared of people - No breach of s. 10(b) occurred - See paragraphs 69 and 70.

Criminal Law - Topic 3054

Special powers - Search warrants - Execution of - General - [See Civil Rights - Topic 1556 and Civil Rights - Topic 4604 ].

Criminal Law - Topic 3054

Special powers - Search warrants - Execution of - General - The plaintiffs were the parents and siblings of Kaleem Ahmed - They lived together with Kaleem in a residence owned by the parents - Kaleem was under an order prohibiting the possession of weapons - Kaleem advertised (on Facebook) that he had several prohibited weapons (including a sawed off shotgun) for sale - Officers obtained and executed a search warrant at the home, finding all of the items advertised - The plaintiffs' action alleged, inter alia, that the search was unlawful - The Manitoba Court of Queen's Bench dismissed the action - The court rejected the plaintiffs' assertion that the conduct of the search rendered it unreasonable - The officers were not required to use keys or the garage door opener, as suggested by the plaintiffs, to open the garage door rather than forcing it open - The officers' concern was to enter the building quickly, creating less risk of harm to the officers - The court was unable to conclude that the items the plaintiffs said were missing were in fact taken by the officers - The manner of the search was not unreasonable - See paragraphs 60 to 63.

Criminal Law - Topic 3212

Compelling appearance, detention and release - Arrest - Arrest without warrant - The plaintiffs were the parents and siblings of Kaleem Ahmed - They lived together with Kaleem in a residence owned by the parents - Kaleem was under an order prohibiting the possession of weapons - Kaleem advertised (on Facebook) that he had several prohibited weapons (including a sawed off shotgun) for sale - Officers obtained and executed a search warrant at the home, finding all of the items advertised - The plaintiffs' action alleged, inter alia, that their arrests without warrant were unlawful - The Manitoba Court of Queen's Bench dismissed the action - The essence of the plaintiffs' argument was that the items found did not belong to them and that whatever Kaleem was doing had nothing to do with them - This argument did not recognize the fact that, at law, possession of property required only that an individual have control over the items or knowledge of their existence - The arresting officer's subjective belief that he had reasonable and probable grounds to arrest the plaintiffs in the circumstances here where prohibited weapons were found was, objectively viewed, reasonable - See paragraphs 64 to 68.

Police - Topic 3073

Powers - Arrest and detention - Arrest without warrant - Of person in a dwelling - [See Criminal Law - Topic 3212 ].

Police - Topic 3146

Powers - Forcible entry - Of premises - [See second Criminal Law - Topic 3054 ].

Cases Noticed:

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 37].

Southam Inc. v. Hunter et al., [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 38].

Pars Oriental Rug v. Canada (Attorney General), [1988] B.C.J. No. 3054 (S.C.), refd to. [para. 42].

R. v. Woodall, [1991] O.J. No. 3563 (Gen. Div.), refd to. [para. 44].

R. v. Thomas, 2013 ONSC 8032, refd to. [para. 44].

R. v. Veranski (S.) et al., [2012] B.C.T.C. Uned. 220; 2012 BCSC 220, refd to. [para. 44].

R. v. Brown (R.), [2010] O.T.C. Uned. 2280; 2010 ONSC 2280, refd to. [para. 44].

R. v. Pickton (R.W.), [2006] B.C.T.C. Uned. E44; 260 C.C.C.(3d) 185; 2006 BCSC 1090, refd to. [para. 44].

R. v. Rafferty, 2012 ONSC 703, refd to. [para. 44].

Semayne's Case (1604), 77 E.R. 194 (K.B.), refd to. [para. 46].

Gooding v. United States (1974), 416 U.S. 430; 94 S.Ct. 780; 40 L.Ed.2d 250, refd to. [para. 46].

R. v. Sutherland (M.) (2000), 139 O.A.C. 53; 52 O.R.(3d) 27 (C.A.), refd to. [para. 46].

R. v. Le (T.D.) (2011), 270 Man.R.(2d) 82; 524 W.A.C. 82; 275 C.C.C.(3d) 427; 2011 MBCA 83 (C.A.), refd to. [para. 47].

R. v. Al-Fartossy (S.) (2007), 425 A.R. 336; 418 W.A.C. 336; 53 C.R.(6th) 257; 2007 ABCA 427, refd to. [para. 55].

R. v. Cornell (J.M.) (2009), 454 A.R. 362; 455 W.A.C. 362; 243 C.C.C.(3d) 510; 2009 ABCA 147, refd to. [para. 56].

R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273, refd to. [para. 70].

Counsel:

F. Ahmed, P. Ahmed, Z. Ahmed and A. Ahmed, the plaintiffs, appeared in person;

Denise A.M. Pambrun, for the defendants.

This action was heard by Suche, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on April 22, 2015.