R. v. Rasul (Z.) et al., (2015) 375 Nfld. & P.E.I.R. 283 (NLTD(G))

JudgeBurrage, J.
CourtSupreme Court of Newfoundland and Labrador (Canada)
Case DateDecember 03, 2015
JurisdictionNewfoundland and Labrador
Citations(2015), 375 Nfld. & P.E.I.R. 283 (NLTD(G))

R. v. Rasul (Z.) (2015), 375 Nfld. & P.E.I.R. 283 (NLTD(G));

    1167 A.P.R. 283

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. DE.071

Her Majesty the Queen v. Zeshan Rasul and Bradley Noray (201401G7905; 2015 NLTD(G) 190)

Indexed As: R. v. Rasul (Z.) et al.

Newfoundland and Labrador Supreme Court

Trial Division (General)

Burrage, J.

December 18, 2015.

Summary:

Rasul and Noray were arrested and jointly charged with possession of cocaine and methamphetamine for the purpose of trafficking and conspiring to traffic oxycodone and cocaine. Noray was also charged with conspiring to traffic oxycodone and hydromorphone (dilaudid). Rasul was also charged with possession of a prohibited weapon. Rasul and Noray each brought an application, alleging that their Charter rights were violated as a result of what they asserted to be an unlawful arrest and search of their property and cell phones.

The Newfoundland and Labrador Supreme Court, Trial Division (General), held as follows: the police had reasonable and probable grounds to arrest Noray without a warrant at his place of business and his s. 9 Charter right not to be arbitrarily detained or imprisoned was not infringed; the search of Noray's iPhone without a warrant was in violation of Noray's s. 8 Charter right to be secure against unreasonable search and seizure and the evidence obtained as a result of that search was excluded pursuant to s. 24(2) of the Charter; the warrantless search of Noray's business was in violation of Noray's s. 8 Charter right to be secure against unreasonable search and seizure, but the evidence obtained as a result of that search was not excluded pursuant to s. 24(2) of the Charter; the warrantless search of Rasul and Noray's residence was in violation of Rasul's and Noray's s. 8 Charter rights to be secure against unreasonable search and seizure and the evidence obtained as a result of that search was excluded pursuant to s. 24(2) of the Charter; the arrest of Rasul in his residence without a warrant was unlawful and contrary to his s. 9 Charter right not to be arbitrarily detained or imprisoned; the evidence obtained from a seizure and search of Rasul's cell phone, and any statements made by Rasul were excluded pursuant to s. 24(2) of the Charter.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - [See first and second Civil Rights - Topic 8368 ].

Civil Rights - Topic 1524

Property - Personal property - Search and seizure by police (incl. computers, cellphones or digital cameras) - [See Civil Rights - Topic 1655.3 ].

Civil Rights - Topic 1650.3

Property - Search and seizure - Warrantless search and seizure - Exigent circumstances - Following a police investigation, Rasul and Noray were arrested and charged with drug offences - Rasul was also charged with possession of a prohibited weapon - The arrest of Noray and Rasul was preceded that same day by the arrest of Hall, whom the police believed was a courier of illegal drugs for Noray and Rasul - The arrest of all three was without a warrant - Hall was arrested at 3:12 p.m. as she left Noray's place of business at 245 Duckworth Street - Fearing that Noray might learn of the arrest of Hall and destroy evidence, at 4:15 p.m. the police entered and took control of Noray's business until a search warrant could be obtained - Noray was arrested - At 4:45 p.m. the police entered the personal residence of Rasul and Noray at 290 Duckworth Street, also without a warrant - They did so fearing that Rasul (or anyone else on the premises) might learn of the arrest of Hall and/or Noray and destroy evidence - Once inside, they arrested Rasul - The police took control of the residence, but did not otherwise search its contents until a search warrant could be obtained - The Newfoundland and Labrador Supreme Court, Trial Division (General), was unable to find an objective basis for Constable Field's belief that the destruction of evidence was imminent - The court concluded that the search of Noray's business and the search of Noray and Rasul's residence were not justified by exigent circumstances and were contrary to Noray and Rasul's s. 8 Charter rights - The arrest of Rasul without a warrant was also unlawful in breach of s. 9 of the Charter - Section 529.3 of the Criminal Code authorized a warrantless arrest in a dwelling house in certain circumstances - The police had to have reasonable grounds to believe that the person to be arrested was in the dwelling and exigent circumstances rendered it impracticable to obtain a warrant beforehand - Exigent circumstances did not exist so as to justify the warrantless entry of Rasul's residence - The police also did not have reasonable grounds to believe that Rasul would be in the residence - See paragraphs 73 to 118.

Civil Rights - Topic 1655.3

Property - Search and seizure - Warrantless search and seizure - Cell phones - Noray was arrested and charged with drug offences - At the time of Noray's arrest, Constable Duggan took possession of Noray's cellphone - Over an hour after Noray's arrest, Constable Duggan conducted a warrantless search of the cell phone - The Newfoundland and Labrador Supreme Court, Trial Division (General), held that neither the common law requirement for search incidental to arrest, nor the requirements for a search of a cell phone as set forth in R. v. Fearon (SCC), were met - The search of Noray's cell phone was therefore contrary to his s. 8 Charter rights - The search of Noray's phone occurred over one hour after his arrest - At the time of the search there was no threat to public safety, or to the loss of evidence - The search was not tailored to its purpose, but rather was a general one for information of possible relevance to the investigation and not restricted to recent texts or photos - The fourth Fearon requirement (for the police to take detailed notes on what portion of the cell phone data they examined and how they examined it) was also not met - See paragraphs 55 to 72.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See Civil Rights - Topic 1650.3 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Following a police investigation, Rasul and Noray were arrested and charged with drug offences - Rasul was also charged with possession of a prohibited weapon - The arrest of Noray and Rasul was preceded that same day by the arrest of Hall, whom the police believed was a courier of illegal drugs for Noray and Rasul - The arrest of all three was without a warrant - Hall was arrested at 3:12 p.m. as she left Noray's place of business at 245 Duckworth Street - Fearing that Noray might learn of the arrest of Hall and destroy evidence, at 4:15 p.m. the police entered and took control of Noray's business until a search warrant could be obtained - The Newfoundland and Labrador Supreme Court, Trial Division (General), held that the warrantless search of Noray's business was not justified based on exigent circumstances and therefore violated Noray's s. 8 Charter right - However, weighing the three Grant factors, the court was satisfied that the evidence found as a result of the search of Noray's business should not be excluded from trial - Its admission would not bring the administration of justice into disrepute - There was no evidence that the police did anything other than protect the premises until a warrant could be obtained later that evening - Noray was entitled to an expectation of privacy at his business, but less than might be attached to his personal residence - While Noray's privacy rights were violated, the nature of the violation was minor and not such as to warrant exclusion of the evidence - The evidence found at Noray's place of business was both reliable and of probative value - See paragraphs 125 to 128.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Noray was arrested and charged with drug offences - At the time of Noray's arrest, Constable Duggan took possession of Noray's cellphone - Over an hour after Noray's arrest, Constable Duggan conducted a warrantless search of the cell phone - The Newfoundland and Labrador Supreme Court, Trial Division (General), held that neither the common law requirement for search incidental to arrest, nor the requirements for a search of a cell phone as set forth in R. v. Fearon (SCC), were met - The search of Noray's cell phone was therefore contrary to his s. 8 Charter rights - Considering the Grant factors, the court was satisfied that the evidence obtained from the unlawful search of Noray's cell phone should be excluded - An unlawful search of one's cell phone amounted to a significant invasion of privacy - There was a powerful societal interest in ensuring that agents of the state respected that privacy, within the confines of the law - See paragraphs 129 to 135.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Following a police investigation, Rasul and Noray were arrested and charged with drug offences - Rasul was also charged with possession of a prohibited weapon - The arrest of Noray and Rasul was preceded that same day by the arrest of Hall, whom the police believed was a courier of illegal drugs for Noray and Rasul - The arrest of all three was without a warrant - Hall was arrested at 3:12 p.m. as she left Noray's place of business at 245 Duckworth Street - Fearing that Noray might learn of the arrest of Hall and destroy evidence, at 4:15 p.m. the police entered and took control of Noray's business until a search warrant could be obtained - Noray was arrested - At 4:45 p.m. the police entered the personal residence of Rasul and Noray at 290 Duckworth Street, also without a warrant - They did so fearing that Rasul (or anyone else on the premises) might learn of the arrest of Hall and/or Noray and destroy evidence - Once inside, they arrested Rasul - The police took control of the residence, but did not otherwise search its contents until a search warrant was obtained - The Newfoundland and Labrador Supreme Court, Trial Division (General), held that warrantless search of Rasul and Noray's residence was not justified based on exigent circumstances and violated their s. 8 Charter right - On balance, the court was satisfied that the societal interest in the sanctity of one's home against unlawful intrusion outweighed the interest in the admission of the evidence unlawfully obtained - Taking the Grant factors into consideration, the administration of justice was best served by the exclusion of the evidence obtained through the unlawful search of Rasul's and Noray's residence - As the entry into his residence was unlawful, the arrest of Rasul without a warrant in that residence was likewise unlawful in violation of his s. 9 Charter rights - For the reasons applicable to the unlawful entry, the court also excluded from the evidence any statements or utterances made by Rasul and any evidence obtained from the search of his cell phone at the time - See paragraphs 136 to 140.

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest or detention - [See Civil Rights - Topic 1655.3 ].

Narcotic Control - Topic 2067

Search and seizure - Warrantless searches - Existence of exigent circumstances - [See Civil Rights - Topic 1650.3 ].

Police - Topic 3073

Powers - Arrest and detention - Arrest without warrant - Of person in a dwelling - [See Civil Rights - Topic 1650.3 ].

Police -Topic 3185

Powers - Search - Following arrest or detention - [See Civil Rights - Topic 1655.3 ].

Cases Noticed:

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 45].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 48].

R. v. McCabe (C.) (2008), 280 Nfld. & P.E.I.R. 250; 859 A.P.R. 250; 2008 NLCA 62, refd to. [para. 49].

R. v. Lal (S.N.) (1998), 113 B.C.A.C. 47; 184 W.A.C. 47; 130 C.C.C.(3d) 413 (C.A.), refd to. [para. 51].

R. v. Fearon (K.) (2014), 465 N.R. 205; 326 O.A.C. 1; 2014 SCC 77, appld. [para. 59].

R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208, refd to. [para. 74].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 74].

R. v. Silveira (A.), [1995] 2 S.C.R. 297; 181 N.R. 161; 81 O.A.C. 161, refd to. [para. 77].

R. v. 2821109 Canada Inc. et al., [2002] 1 S.C.R. 227; 281 N.R. 267; 245 N.B.R.(2d) 270; 636 A.P.R. 270; 2002 SCC 10, refd to. [para. 80].

R. v. Law - see R. v. 2821109 Canada Inc. et al.

R. v. King, 2006 BCPC 284, consd. [para. 88].

R. v. McCormack (R.D.) (2000), 133 B.C.A.C. 44; 217 W.A.C. 44; 143 C.C.C.(3d) 260; 2000 BCCA 57, consd. [para. 93].

R. v. Castro (J.F.) et al. (2001), 157 B.C.A.C. 97; 256 W.A.C. 97; 2001 BCCA 507, consd. [para. 95].

R. v. Hunter (S.A.) (2015), 378 B.C.A.C. 165; 650 W.A.C. 165; 2015 BCCA 428, consd. [para. 96].

R. v. Wisdom, 2012 ONCJ 54, consd. [para. 100].

R. v. Damianakos (W.) (1997), 126 Man.R.(2d) 81; 167 W.A.C. 81 (C.A.), consd. [para. 101].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 121].

R. v. Harrison (B.), [2009] 2 S.C.R. 494; 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 122].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8 [para. 59]; sect. 9 [para. 54]; sect. 24(2) [para. 119].

Controlled Drugs and Substances Act, S.C. 1996, c. 19, sect. 11 [para. 85].

Criminal Code, R.S.C. 1985, c. C-46, sect. 495(1)(a) [para. 46]; sect. 529.3 [para. 87].

Counsel:

Brenda P. Boyd, for the Crown;

Benjamin P. Curties, for the accused;

Stephen P. Orr, for the accused.

These applications were heard on November 3-6, 25 and 27 and December 3, 2015, at St. John's, N.L., before Burrage, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following judgment on December 18, 2015.

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