Charter violation results in judge dismissing charges

BY KEITH LACEY

A Sudbury judge ruled Tuesday Greater Sudbury Police conducted an illegal detention and search of a British Columbia man charged with possessing six kilograms of opium, a drug used to manufacture heroin.

After excluding evidence about the drug seizure and comments made by the accused, drug trafficking charges against Abbas Rajabi Ghodrat were thrown out by Justice Patricia Hennessy of the Ontario Superior Court of Justice.

"Both the (police) detention and the search were without justification and both violated Ghodrat's Charter rights," said Hennessy, in a five-page written decision.

"The violations of Ghodrat's Charter rights were very serious. There was no evidence of any grounds for a detention," she said. "Both the detention and so-called search for officer safety cannot be justified."

Ghodrat was released from custody in Penetanguishene after spending more than 14 months behind bars since his arrest, said defense counsel Terry Waltenbury.

"It is my client's position the opium was not his and there was some sort of confusion with him picking up the wrong bag," said Waltenbury. "I consider this case to be a tremendous victory for individual rights and liberties, and for the rights of citizens to be free from state intrusion without reasonable grounds."

Ghodrat was charged following his arrest Sept. 21, 2005.

Greater Sudbury Police received a call from a citizen about a "suspicious looking Arab person" wearing camouflage and carrying a dufflebag inside Tom Davies Square. Police conducted a search but did not find anyone matching that description.

A short time later, police received another call about a man hitchhiking along Highway 17 near Lively. Two officers drove along Highway 17 and saw Ghodrat sitting on the shoulder of the road, said Hennessy in her ruling.

Ghodrat is a Canadian citizen of Iranian descent. He was in possession of some dufflebags.

The officers motioned Ghodrat to approach their cruiser and he complied with the officer's questions about his name, nationality and religion, said Hennessy.

Ghodrat produced identification and proof of Canadian citizenship and a police check was conducted to see if Ghodrat had any previous criminal record.

The police check revealed Ghodrat had a criminal record that involved drugs and he was associated with the drug trade in Vancouver.

Police questioning continued about where he came from and officers received conflicting reports, said Hennessy.

Ghodrat eventually accepted an offer from police to drive him to the bus depot to catch a bus to Sault Ste. Marie and he accepted.

A police officer told Ghodrat if he got in the cruiser, police would have to search his bags for officer safety.

"At this point, it appears the officers had not returned Ghodrat's identification to him," said Hennessy. "Both officers got out of the cruiser...(an officer) opened the black nylon dufflebag and saw a number of packages in tight plastic."

Police conducted a "pat down" of Ghodrat at the side of the car, also for officer safety reasons.

When asked what was in the packages, Ghodrat replied "goats cheese" and the officers asked Ghodrat to open one package. An officer testified Ghodrat said he could not open the packages or the cheese would spoil.

An officer demanded a package be opened to prove it was goat’s cheese and Ghodrat began to fiddle with the plastic around the package.

Ghodrat used a penknife provided by police to open the package, stuck the knife in and said "it's goat’s cheese."

An officer looked in the package and saw a black, tarry substance and both officers believed the contents were narcotics.

Ghodrat was placed under arrest, read his rights to counsel, handcuffed, put in the cruiser and brought to police headquarters.

He remained in custody until Tuesday.

At headquarters, two officers conducted consecutive interviews of Ghodrat and the accused gave a number of different versions of how he travelled from Vancouver to Toronto to Sudbury and ended up on Highway 17.

Ghodrat insisted the dufflebag was not his and came from a woman who drove him the bus depot to Highway 17 or from a man he'd met in a hotel in Toronto.

Waltenbury claimed Ghodrat's Charter rights were breached when officers asked intrusive questions about his nationality and religion, producing identification and searching the dufflebags.

Federal Crown prosecutor Richard Huneault argued the detention began after the officer saw the package and formed the opinion the substance in the package was likely narcotics and any search was for the purpose of ensuring officer safety.

Hennessy ruled if police believed a crime was involved, they were obliged at a minimum to advise Ghodrat in clear and simple language of the reasons for detention.

"However, the officers had no information tying Ghodrat to a recent or ongoing criminal offense, nor did they pursue an investigation into what happened at Civic Square. The officers had no knowledge why the police had concluded Ghodrat was a 'suspicious person'," said Hennessy.

The officers' conversation with Ghodrat was "contrived" to get him into the cruiser and search his bags, she said.

Hennessy rejected the notion of officer safety in the search of the nylon bag.

Even though both officers thought the packages likely contained narcotics before they were opened, they did not read Ghodrat his rights to counsel before they demanded he open the packages, she said.

She did not accept allegations the detention was racially motivated or that he was targeted by officers because of his nationality.