RIGHTS VIOLATION GETS CASE TOSSED

'There Were Numerous And Multiple Breaches' Of Man's Rights

A Vancouver man arrested after police found he was carrying six
kilograms of opium in a duffel bag has been cleared after a Sudbury
judge ruled his rights under Canada's Charter of Rights and Freedoms
had been violated.

Abbas Rajabai Ghodrat, 54, was arrested in September 2005 on Big
Nickel Mine Road by Greater Sudbury Police officers who had gone
looking for a him after several people reported seeing a well-dressed
man acting suspiciously near Tom Davies Square earlier in the day.

The opium, worth an estimated $600,000, was found in a black duffel
bag Ghodrat had with him.

When police found him, Ghodrat gave various versions of what he was
doing, said Superior Court Justice Patricia Hennessy.

Initially, Ghodrat said he had come from Vancouver by bus to Sudbury
by way of Toronto and was on his way to Sault Ste. Marie to see his
girlfriend, but had missed the bus in Sudbury. He also said he had
arrived in Sudbury by car, but the vehicle had broken down.

At this point, said the judge, there was no indication Ghodrat had
done anything illegal.

The two officers offered to drive Ghodrat to three destinations,
including the western limits of Sudbury, so that he could continue
hitchhiking and the bus depot so that he could catch a bus to the Sault.

However, the officers said they couldn't allow Ghodrat into the
cruiser without first searching him. While one officer was checking
Ghodrat's documents, the other was carrying the knapsack to the back
of the cruiser.

It was during that search police saw a number of packages wrapped in plastic.

Asked what was in the packages, Ghodrat replied goat cheese. He was
told he would have to open one of the packages to prove that, but
Ghodrat seemed reluctant to do so, telling the officers the cheese
would spoil if it were opened, said Hennessy.

When he began fumbling with the plastic wrap, one of the officers
handed him a pocketknife. He stuck the blade of knife in, licked it
and declared it to be goat cheese, she said.

However, the officers saw a black oily substance in the package and
concluded it was an illicit drug of some sort.

At that point, they placed Ghodrat under arrest.

At police headquarters, Ghodrat said the black duffel bag was not
his. He said the bag must belong to a woman who had given him a ride,
or it was put in with his other luggage at the hotel he stayed at in
Toronto the night before.

Ghodrat's lawyer, Terry Waltenbury, had argued that his client, who
is a Canadian citizen of Iranian descent, was a victim of racial
profiling by the police.

Hennessy rejected that argument, saying the officers were acting on
instructions to look for a suspicious suspect. Race was not an issue, she said.

A valid issue, said Hennessy, was the legitimacy of Ghodrat's
detention by the officers and the subsequent search.

Police had no information of a crime by Ghodrat at the time they
decided to detain him.

In fact, their "entire conversation seems contrived to get him
(Ghodrat) into the cruiser in order to search the bag," she said.
"There was no legitimate investigative purpose for the search."

Having decided to search the bag, the officers should have read
Ghodrat his rights before conducting it, she said.

"There were numerous and multiple breaches" of Ghodrat's rights, she
ruled. "But, for the discovery of the drugs, he (Ghodrat) would not
have been arrested."

While there may be a negative impact of not allowing the prosecution
to proceed, there would be a greater negative impact on the judicial
system to let it proceed, Hennessy said.