R. v. Qureshi (I.A.) et al., (2011) 508 A.R. 128 (QB)

• Judge: Malin, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: March 14, 2011
• Citations: (2011), 508 A.R. 128 (QB);2011 ABPC 92

R. v. Qureshi (I.A.) (2011), 508 A.R. 128 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. MR.141

Her Majesty the Queen v. Irfan Ahmed Qureshi, Adnan Ahmed Qureshi and Shafique Qureshi (051198018P1; 2011 ABPC 92)

Indexed As: R. v. Qureshi (I.A.) et al.

Alberta Provincial Court

Malin, P.C.J.

March 14, 2011.

Summary:

The accused were charged with 16 gun and drug offences. They argued that the police breached their ss. 8 and 10(b) Charter rights and sought an exclusion of evidence.

The Alberta Provincial Court, in a decision reported at 428 A.R. 203, held that the accused's ss. 8 and 10(b) Charter rights were violated but declined to exclude the evidence. The trial proceeded.

The Alberta Provincial Court convicted the accused (Irfan) of all charges but acquitted the other accused (Shafique and Adnan) of all charges.

Criminal Law - Topic 10.2

General principles - General and definitions - Possession defined - Police searched a home and found handguns, ammunition, butterfly knives, armoured vests, $2,000 in cash, and a substantial amount of cocaine and other drugs - Shafique and his two sons were charged with, inter alia, the unauthorized possession of prohibited weapons or restricted weapons or prohibited devices, the possession of loaded prohibited or restricted firearms, the possession of controlled substances for the purposes of trafficking - The Alberta Provincial Court found Shafique not guilty of the charges - The evidence fell well short of that which established that he had knowledge of the drugs, weapons and currency which were the subject of the charges - Although he was one of the owners of the residence and possessed a key to it, there was no evidence that he ever occupied the residence or spent any appreciable time in it - Shafique's right of access and actual access at the time the prohibited items were found in the residence was not sufficient to establish any knowledge of them - See paragraphs 91 and 113.

Criminal Law - Topic 10.2

General principles - General and definitions - Possession defined - Police searched a home and found handguns, ammunition, butterfly knives, armoured vests, $2,000 in cash, and a substantial amount of cocaine and other drugs - Shafique and his two sons (Irfan and Adnan) were charged with, inter alia, the unauthorized possession of prohibited weapons or restricted weapons or prohibited devices, the possession of loaded prohibited or restricted firearms, the possession of controlled substances for the purposes of trafficking - Adnan was one of the owners of the residence, possessed a key to it, had actually lived in it for some time, and was the apparent owner of some personal items found in the southwest bedroom of the residence - The Alberta Provincial Court found Adnan not guilty of the charges - There was no evidence that Adnan occupied or even attended at the residence within any relevant time prior to the search of the residence and the discovery of the drugs, weapons, ammunition and currency - None of the weapons, ammunition, drugs, currency or items commonly used in the trafficking of drugs was found in the southwest bedroom which contained a credit card and diploma in Adnan's name - The evidence fell well short of that which established that he had knowledge of the drugs, weapons and currency - His legal right to occupy the residence did not overcome the absence of evidence establishing his pursuit of that right in proximity to the discovery of the prohibited items nor to any knowledge of the items themselves - See paragraphs 92 and 113.

Criminal Law - Topic 10.2

General principles - General and definitions - Possession defined - Police searched a home and found handguns, ammunition, butterfly knives, armoured vests, $2,000 in cash, and a substantial amount of cocaine and other drugs - Shafique and his two sons (Irfan and Adnan) were charged with, inter alia, the unauthorized possession of prohibited weapons or restricted weapons or prohibited devices, the possession of loaded prohibited or restricted firearms, the possession of controlled substances for the purposes of trafficking - Shafique and Adnan were the registered owners of the house - Irfan was ordinarily resident in the residence and was its principal occupant - He had a key and came and went as he pleased - He lived there - His toiletries and clothes were there (mostly in the master bedroom) - His passport was in the living room - He had a bullet-proof vest in the living room - He controlled who stayed there and collected contributions from those people towards the mortgage and utilities - The Alberta Provincial Court found Irfan guilty of the charges - He had actual and/or constructive possession of the weapons, drugs and cash - He had an unrestricted right to use the residence and gain access to all its rooms and areas and exercise non-exclusive control over its contents - He had knowledge and control of drugs, and weapons - See paragraphs 93 to 137.

Criminal Law - Topic 5254.6

Evidence and witnesses - Identification - Fingerprints - The accused (Irfan) was charged with 16 gun and drug offences - The Crown's case was based on circumstantial evidence - It alleged that two unwashed glasses found in the kitchen sink contained Irfan's fingerprints and that a fragment of a cigarette package found in one of the bags of cocaine contained Irfan's thumbprint - Irfan argued that the court should give little weight to the police expert's opinion because he did not make "bench notes" and did not provide any evidence with respect to how he matched the prints including what similarities were found, what features were unique, or how the latent print found on the cigarette package was determined to be Irfan's - The Alberta Provincial Court rejected the argument - The qualified expert testified to his process, and that process was not challenged or shown to be in error - The court was not persuaded that his process lacked scientific rigour or should be qualified such that it had no probative value - The court was satisfied that the impugned fingerprints and thumbprint belonged to Irfan - See paragraphs 30 to 42.

Evidence - Topic 7062.4

Opinion evidence - Expert evidence - Particular matters - Fingerprints - [See Criminal Law - Topic 5254.6 ].

Narcotic Control - Topic 576

Offences - Possession - General - Actual possession - [See all Criminal Law - Topic 10.2 ].

Narcotic Control - Topic 577

Offences - Possession - General - Constructive possession - [See all Criminal Law - Topic 10.2 ].

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 73].

R. v. Lepage (J.P.), [1995] 1 S.C.R. 654; 178 N.R. 81; 79 O.A.C. 191; 95 C.C.C.(3d) 385, refd to. [para. 106].

R. v. Fisher (M.J.) (2005), 216 B.C.A.C. 197; 356 W.A.C. 197; 200 C.C.C.(3d) 338 (C.A.), refd to. [para. 108].

R. v. Terrence, [1983] 1 S.C.R. 357; 47 N.R. 8; 4 C.C.C.(3d) 193, refd to. [para. 109].

R. v. Aiello (1978), 30 N.R. 559; 38 C.C.C.(2d) 485 (Ont. C.A.), refd to. [para. 122].

Counsel:

L. Tchir, for the Crown;

S. Tarrabain, Q.C., for Irfan Qureshi;

W. Raponi, for Shafique Qureshi and Adnan Qureshi.

This trial was heard in Edmonton, Alberta, before Malin, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on March 14, 2011.