2006 BCSC 2 R. v. Khan

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	*R. v. Khan,*
	2006 BCSC 2

Date: 20060125

Docket: X066105-2

Registry: New Westminster

Regina

Jasim Khan

Before: The Honourable Mr. Justice Crawford

Oral Reasons for Judgment

January 25, 2006

Counsel for Crown:	S. Adams
Counsel for Accused:	D. Markovitz
Place of Trial/Hearing:	New Westminster, B.C.

[1] THE COURT: Mr. Khan faces two charges, which I will not go into at length, but one unlawful possession of cocaine for the purposes of trafficking on the 15th of July 2003 at or near Surrey, and the second count unlawfully traffic in a controlled substance, cocaine, in the same place and date.

[2] In mid-June of 2003 Officer Chodat of the Delta Police received information from what he described as a reliable source. He described the source as being reliable because he had previously used the same source, and, on the basis of that source's information he had arrested six drug traffickers in street-level drug operations and two car stealers. The information provided was that there was an East Indian male trafficking cocaine in the North Delta area and the gentleman's name was Jas, that he was trafficking cocaine and marihuana at the street level. They gave a telephone number, 604-999-8475. It was said that customers placed orders by the telephone and that Jas would show up and sell drugs. The description given was of an Indo-Canadian in his early twenties, five-eleven, 200 pounds and that he used a Jeep Cherokee vehicle, green in colour, a late model which he later said was a year 2000 model with a licence plate number 176ACX. Two addresses were given, one on 121st Street and one on 132nd Street.

[3] The officer checked the licence plate which came back with an Indo-Canadian male by the name of Jasim Khan and the address on 121st. The description of the vehicle was the same, namely the Jeep Cherokee. He apparently met with the source subsequently and travelled by one of the addresses. There was a female, said to be one Angelina Carter, living with the accused, or at that time I should say living with Jas.

[4] This eventually led to a sting operation whereby the police telephoned the telephone number. They stationed some police officers in the area where they hoped the dealer would go to make the sale. Most of that evidence was given by Constable Cardinal, who made the call, but Officer Chodat was also there, as he was in charge of the operation, which he said started about 1:00 p.m. on the 15th of July 2003, setting up a meeting at 84th and 120th Street. At approximately 13:40 the other officer advised the East Indian male was walking by the bowling alley and officers were called in to arrest. Officer Chodat said he was involved in the arrest and turning the person arrested over to the officer and shortly thereafter the Jeep Cherokee vehicle was found in an alley. He led evidence about executing a warrant.

[5] The officer who made the telephone calls that afternoon was an Officer Cardinal. He confirmed the information that had been relayed to him by Officer Chodat. As I mentioned, his role in the operation was to make the telephone calls, which began at approximately one o'clock in the afternoon on the 15th of July 2003. No objection has been taken to the conversation, which I noted in this fashion. Cardinal makes a telephone call to the telephone number and says, "Is this Jas?" The answer, "Yeah, who's this?" Cardinal: "Mark. Are you delivering?" Jas: "Yeah. How did you get my number?" Answer: "From Ray, an older white guy about 50 at 129th and 80th." Jas: "Yeah, what do you need?" Answer: "Up. I need a 40 rock." These are street terms for $40 of cocaine. Continuing the conversation. Jas: "Okay, where are you?" Cardinal: "I am at the bowling alley at 84th and 120th in the rear lot." Jas: "Okay, I'll be there in 10 to 15 minutes." Cardinal: "What are you wearing?" Jas: "No offence, but I'm not telling you. What are you wearing?" Cardinal: "I'm in blue jeans and a blue hoody." Jas: "Okay. I'll walk up to you and you'll know it's me." Cardinal said he made a further call at 13 minutes after 1:00 to the same number and the same voice answered. Cardinal asked, "Is this Jas?" Jas: "Yeah." Cardinal: "It's Mark. Are you still coming?" Answer: "Yeah, I'm seven minutes away." At 13:22 hours Cardinal telephoned the same telephone number and said, "Jas, it's Mark. Where are you?" He said the same voice answered. "I am at 72nd and the George. Is that okay? I'm still coming. Traffic's really bad." Cardinal: "Yeah, just a barking dog here. I'm still here."

[6] Cardinal said he was behind a dumpster in behind the bowling alley. He said a dark-skinned gentleman appeared in the bowling alley wearing blue slacks, a white T-shirt and tennis shoes and was looking around and gave a call whistle. Cardinal was in uniform so he wasn't out in the open. So he made another call which was at 13:40 hours to the same number and said: "Jas, where are you, man?" Jas: I'm in the bowling alley parking lot. Where are you?" Cardinal: "I'm here, too, behind the dumpster taking a leak. Is that you in the white shirt and whistled a couple of times?" Jas: "Yeah, walk towards me. I've got a busted ankle and can't walk too good." He also said that while he was telephoning, he could see the gentleman, that he was on a telephone, and that he was limping. Policemen then arrested the accused, who was handcuffed, searched. No drugs were found on him. A cell phone was found and the officers then called the same number again and the cell phone in hand rang.

[7] At much the same time the officers radioed to the police cars that were in the area to look for the green Jeep Cherokee because in their experience and as they indicated in their evidence, the motor vehicle had been involved. That was consistent with the sequence of telephone calls. It was consistent with their knowledge of dial-a-dope operations.

[8] Officer McKinnel was one of the officers in the area on duty at the time and after hearing of the arrest was asked to locate the green Jeep Cherokee and given the licence number 176ACX. He found it about a block away from the arrest scene. An adult male was seated in the passenger seat. They had a brief discussion. Two other police officers arrived and the passenger was taken into custody.

[9] Officer Basran was also on duty at the same time. He had stationed himself at 84th and 117th. He had been given details of the dial-a-dope operation investigation and the description of the green Jeep Cherokee and the licence number and asked to keep a lookout. He was then radioed in conjunction with the arrest time that there was a male in custody, that a motor vehicle had been found, and then he was contacted by Officer McKinnel, who had located the green Jeep Cherokee on the southeast corner of 120th and 84th. He said he arrived at 13:40 to find Officer McKinnel with a male, and from the information he had been given by Officer Cardinal believed there might be drugs in the vehicle, because he advised he had searched the accused and not found any drugs, and the drugs might well be in the vehicle. Drugs were not found on the male passenger that was in the Jeep Cherokee.

[10] A search was then conducted of the green Jeep Cherokee. In a blue nylon bag ten to 15 pieces of crack cocaine in clear plastic bags was found. In the centre console of the vehicle green baggies of cannabis marihuana were found. Also was found the wallet of the accused, which in turn had a B.C. driver's licence and the motor vehicle registration, all in the name of the accused or with his address.

[11] Now, we have entered into evidence the exhibits. They initially came in under a listing of I think it was "A" through "E" or "F". I made a ruling that in the circumstances the search was incidental to the arrest. I subsequently dealt with an application by the defence that things that were found at the place searched under the search warrant should not go in on the basis there was not sufficient connection to the plaintiff and the evidence might well be more prejudicial than probative.

[12] Constable Santaga gave evidence. He is experienced in the police response to drug activities. When the conversation that I have noted was put to him, he said it was consistent with a dial-a-dope operation and the sale of cocaine. The facts striking him were the checking of the source of the call, the protection of the identity, the discreet approach on foot without drugs in possession, all procedures to reduce the risk of being caught.

[13] The defence called three witnesses. Mr. Ahmad said he was a friend of the accused Khan; that on the 15th of June the accused came by his house. They were planning to go to the gym together. He said the accused told him he was getting crank calls on his phone. He was going to confront somebody. He said they drove in the Jeep Cherokee. He said that he had been given a gym bag the previous day by a person he played basketball with and he was to deliver the bag to another basketball player he played with. He said he put the bag in the Jeep. He said he did not tell the accused what was in the bag. He said he had done this before and been paid $100 to deliver the bag. He did not tell Khan what was in the bag. In direct he was asked, "Did you advise Jas you had drugs in your possession?" Answer: "No." "What was your impression of the calls being made to Jas? Were they about drugs?" Answer: "No." And he said Jas was not a dealer in drugs. He said some four or five months after June of 2003 he got the telephone number, 604-999-8475, the same number that the police had called on the 15th of June 2003. He was asked, "Did you receive any calls from people seeking drugs?" He said, "Yes." "Did you sell any drugs?" Answer: "No." He said he further hadn't delivered any drugs since the 15th of June 2003. In cross-examination amongst other things he said that he was given the drug bag by his basketball player friend the previous afternoon. But shortly after that he said he was working the previous day from 11:00 or 12:30 to 9:00 p.m. that night. He said he had come forward with this evidence two days ago.

[14] Mr. Khan gave evidence. He said at the time he was getting telephone calls, that they either were prank or crank calls and he had been getting them for a considerable period. People would ask, "Are you working?" To which he would respond, "What do you mean? What are you asking?" And they would say, "Are you a drug dealer?" He was asked, "Did you speak in those words?" "Not exactly, but they seemed to be asking if I was a drug dealer." His response was, "No, I think you have the wrong guy." He said he told his girlfriend about this. He said the calls frustrated him. He was not able to say if it was the same person who was calling or different persons. In response to the question, "You heard the police officer give his evidence regarding the telephone calls made on the 15th of July 2003," he agreed it was an accurate report. He was asked why he agreed to meet. He said he was curious and wanted to confront the caller and end it. He said he assumed the caller knew his name and number and he might even know his motor vehicle, so that is why he parked some distance away from the meeting place. He said he did not tell Ahmad of the nature of the calls. He just said that they were prank calls and to keep a lookout. He denied knowledge of the cocaine in his motor vehicle. He denied ever dealing in narcotics. He said at the time he was living at home with his mother on 99th and occasionally he would hang out with his girlfriend on 129th. In cross-examination he said he had been living with his girlfriend for two years now. He denied that there were any drugs or drug equipment at his girlfriend's, but he did say the girlfriend's father had been into drugs, though he was now dead. He agreed some marihuana was used at his girlfriend's apartment. With some encouragement from Crown, he admitted some criminal convictions. He did not know why there would be nine boxes of baking soda at his girlfriend's, but he volunteered it was used to mix to make cocaine. He acknowledged the police report of items found at the girlfriend's included bags of powdered cocaine.

[15] Ms. Carter said she had been the girlfriend of the accused for some eight years; that Mr. Khan had visited overnight from time to time. She recalled him saying to her he was getting crank calls about working or dealing, but she had never known him to be in any such activity. She said she was a "neat freak", which I understand means someone who is very tidy. But she said her father's belongings were all over their apartment in closets and in the kitchen. Her father evidently died in 2002 before the 15th of June and July 2003. She said baggies with cocaine residue in her bedroom would be her father's; that she did not know about the accused's personal documents being under her mattress. She denied knowledge of any other items and said the baking soda in the house would be used for cleaning. She said she got Ahmad's telephone number when she was with Mr. Khan.

[16] The burden of proof beyond a reasonable doubt and establishing the elements of the charges is on the Crown. The Crown argues that this is a case of credibility and that the defendants individually and collectively have given inconsistent statements. I will not reiterate Crown's arguments but they were put at some length and indeed show some internal inconsistencies if not external ones in the defence evidence.

[17] Mr. Markovitz argued the defence witnesses were credible, that perhaps some coincidences had occurred. That happens. Such as Mr. Ahmad getting into the accused's motor vehicle without telling Mr. Khan that he was in the process of delivering cocaine. He points to what is not on the evidence: there are no statements; no drugs found on Mr. Khan's person. He notes that Ahmad says the drugs in the car are his; that the telephone call and conversation as stated is simply Mr. Khan responding in frustration to a number of crank calls and deciding to confront the caller. He submitted there was no post-conduct evidence to look at and that the drug paraphernalia found at the girlfriend's was her dead father's. He said elements of the Crown's case had not been established and that there was a reasonable doubt to be found in favour of the accused.

[18] I am satisfied beyond a reasonable doubt the police officers did have a reliable source who gave detailed information: the name, description, telephone number, motor vehicle information. It was confirmed in a motor vehicle search and in the course of the investigation. At the time of the arrest, all came to fruition. The four telephone calls and their content are not contested. I find that they can only be construed as an offer to sell $40 of cocaine. The request was made and the response was, "Okay. Where are you?" That stands unchallenged. The subsequent calls are simply consistent with the performance of anticipated activity. The accused travels towards the bowling alley. He appears. He is identified. His appearance is consistent with the fourth telephone call. His motor vehicle is found a block away. It has cocaine in small bags suitable for the street-level sales that were being discussed. This is a place within his control and fits within s. 43 of the Criminal Code.

[19] Mr. Ahmad has stepped forward and claims he was delivering the cocaine to someone else and his friend was just driving him to the gym. But I cannot accept his evidence. Apart from his demeanour in the stand, aspects did not make sense, e.g. the controversion of being at the gym or being at work the day before; the suggestion of being a lookout when his friend was going out of sight, but no discussion of what he was being a lookout for. He says he did not know the nature of the telephone calls. Admittedly, he would only hear one end of it, but at the end it was plain. Nor can I equate Mr. Khan's evidence with the reported telephone call. It is simply not consistent with a response to a crank caller. It is unreal in the face of the wording of the conversation.

[20] I am not convinced on my view of the evidence that this is a situation covered by the instructions one should give in a credibility case. Had it been that, the first issue would be: Do I believe the evidence of the accused? I do not. Even if I do not believe the testimony of the accused but I am left in a reasonable doubt, then I should acquit. I do not have any reasonable doubt on the central issue here. And thirdly, if not left in doubt by the evidence of the accused, then the question is on the basis of the evidence I do accept, am I convinced beyond a reasonable doubt of the evidence of the guilt of the accused? In this case I am. The accused on the day in question offered to sell $40 of cocaine and did so knowingly in breach of s. 5(1) of the Controlled Drugs and Substances Act. Furthermore, I find the accused was in possession of the cocaine on the day and place in question and did hold those drugs for the purpose of trafficking, contrary to the provisions of s. 5(1) of the Controlled Drugs and Substances Act.

“Crawford J.”