Ahmed v. McCaskill et al., (2016) 330 Man.R.(2d) 42 (CA)

• Judge: Monnin, Hamilton and Cameron, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: April 04, 2016
• Jurisdiction: Manitoba
• Citations: (2016), 330 Man.R.(2d) 42 (CA);2016 MBCA 51

Ahmed v. McCaskill (2016), 330 Man.R.(2d) 42 (CA);

      675 W.A.C. 42

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. MY.026

Fakhra Ahmed, Parvez Ahmed, Zaeem Ahmed and Azeem Ahmed (plaintiffs/appellants) 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/respondents)

(AI 15-30-08415; 2016 MBCA 51)

Indexed As: Ahmed v. McCaskill et al.

Manitoba Court of Appeal

Monnin, Hamilton and Cameron, JJ.A.

May 17, 2016.

Summary:

The plaintiffs claimed against numerous members of the Winnipeg Police Service and the Winnipeg Police Service itself, alleging false imprisonment, malicious prosecution, abuse of public authority, breach of privacy and breach of certain Charter rights. The plaintiffs were members of one family. The allegations set out in their claim arose from the execution of a search warrant on their residence to search for several prohibited weapons advertised for sale on the Facebook account of the son of two of the plaintiffs.

The Manitoba Court of Queen's Bench, in a decision reported at (2015), 317 Man.R.(2d) 42, dismissed the action. The plaintiffs appealed.

The Manitoba Court of Appeal dismissed the appeal.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The plaintiffs claimed against numerous members of the Winnipeg Police Service and the Winnipeg Police Service itself, alleging false imprisonment, malicious prosecution, abuse of public authority, breach of privacy and breach of certain Charter rights - The plaintiffs were members of one family - Their claim arose from the execution of a search warrant on their residence to search for several prohibited weapons advertised for sale from the residence on the Facebook account of the son of two of the plaintiffs - The trial judge dismissed the action - The judge stated "I am satisfied that there were reasonable and probable grounds for the search and the warrant authorizing the search was valid and sufficiently complied with for the search to be reasonable. The police did not act out of malice or with any improper purpose and had reasonable and probable grounds to arrest the plaintiffs and charge them given all the circumstances. The police did not violate the plaintiffs' privacy or otherwise breach their rights under s. 7, 10 or 15 of the Charter, nor were the plaintiffs targeted or treated improperly by the police" - In finding that no breach of s. 10(b) of the Charter occurred, the judge stated that "The law is clear that when executing a search warrant the police are entitled to control the premises. This allows them to detain and handcuff occupants, and where circumstances are or potentially are dangerous, which I find was the situation here given that firearms were involved, a detained person is not allowed to call their lawyer until the premises have been cleared of people" - The plaintiffs appealed - The Manitoba Court of Appeal dismissed the appeal - The grounds of appeal related to the trial judge's findings on these issues were without merit - See paragraphs 1 to 5.

Criminal Law - Topic 3054

Special powers - Search warrants - Execution of - General - The plaintiffs claimed against numerous members of the Winnipeg Police Service and the Winnipeg Police Service itself, alleging false imprisonment, malicious prosecution, abuse of public authority, breach of privacy and breach of certain Charter rights - The plaintiffs' claim arose from the execution of a search warrant on their residence to search for several prohibited weapons advertised for sale on the Facebook account of the son of two of the plaintiffs - The trial judge dismissed the action - The plaintiffs appealed - They asserted that the search warrant was not executed in accordance with the provisions of the warrant - The warrant 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. - The police arrived at the plaintiffs' property at 8:57 p.m. and initiated telephone contact in an attempt to have the plaintiffs vacate the residence - There was a considerable time lapse between the request and the eventual exit from the residence by all of the plaintiffs - The plaintiffs argued that the search warrant was not executed within the time limits set out in the warrant as the search was concluded after 9:00 p.m. - The trial judge had concluded that "a warrant permitting search 'by day' permits the police to enter the premises (and the property on which a building is located is part of the premises ...) at any point between 6:00 a.m. and 9:00 p.m., but does not require the search to be completed within that period" - The Manitoba Court of Appeal dismissed this ground of appeal - The trial judge's finding with respect to this issue was correct in law - See paragraphs 6 to 13.

Criminal Law - Topic 3212

Compelling appearance, detention and release - Arrest - Arrest without warrant - [See Civil Rights - Topic 4604 ].

Police - Topic 3073

Powers - Arrest and detention - Arrest without warrant - Of person in a dwelling - [See Civil Rights - Topic 4604 ].

Police - Topic 5005

Actions against police - General - Misfeasance in or abuse of public office - [See Civil Rights - Topic 4604 ].

Police - Topic 5047

Actions against police - For false arrest - Defence of reasonable and probable grounds - [See Civil Rights - Topic 4604 ].

Police - Topic 5073

Actions against police - For false imprisonment - Defence of reasonable and probable grounds - [See Civil Rights - Topic 4604 ].

Police - Topic 5224

Actions against police - For malicious prosecution - Requirement of malice - [See Civil Rights - Topic 4604 ].

Practice - Topic 9055

Appeals - Record on appeal - Record of trial evidence or original proceedings - The plaintiffs' action was dismissed - The plaintiffs appealed - They alleged that the transcript of the trial proceedings was so deficient that the court on appeal could not properly review what occurred - The Manitoba Court of Appeal stated that "I can readily agree that there are gaps that exist in the transcripts. I have, however, not been persuaded, as alleged by the 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. They occasionally occur when there is a difficulty in understanding some of the parties or witnesses to the proceedings or whenever more than one person attempts to speak at the same time. Furthermore, when the issue was raised by the appellants, a review of the transcripts was conducted and corrections were 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 have a material impact on this Court's ability to assess and understand what transpired at trial. In addition, the appellants have not argued that the gaps in the transcript have deprived them of advancing a ground of appeal. ...  Although not perfect, the state of the transcripts does not justify appellate intervention" - See paragraphs 14 to 17.

Counsel:

P. Ahmed and Z. Ahmed, on behalf of the appellants;

D.A.M. Pambrun, for the respondents.

This appeal was heard on April 4, 2016, before Monnin, Hamilton and Cameron, JJ.A., of the Manitoba Court of Appeal. The following judgment of the Court of Appeal was delivered by Monnin, J.A., on May 17, 2016.