Court File and Parties
ONTARIO COURT OF JUSTICE
DATE: 2021 02 12 COURT FILE No.: Halton 19-4304
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
GARRET GRANT and GARNETT GRANT
Before: Justice A. Calsavara
Heard on: September 10, 11, 18, October 7, November 9, 12, 23, and December 11, 2020 Decision and Verdicts delivered orally on: February 10, 2021 Reasons for Judgment released on: February 12, 2021
Counsel: Maureen McGuigan....................................................... counsel for the Provincial Crown Robert Kraska...................................................................... counsel for the Federal Crown Christien Levien ..................................................... counsel for the accused Garret Grant Trudi-Ann Newby................................................. counsel for the accused Garnett Grant
A. Overview
1Around 11am on Wednesday December 4th, 2019, the defendants were arrested at the roadside for unauthorized possession of a firearm following a traffic stop for a Highway Traffic Act [‘HTA’] violation by a uniformed Halton Region police officer. The defendants are brothers and were the lone occupants of an older model BMW sedan. Garnett Grant was the driver. His brother Garrett Grant was the front passenger.
2The initial traffic stop was for an expired validation tag, but transitioned into a sobriety check on the driver, Garnett Grant, and then into an investigation for a contravention of the Cannabis Control Act [‘CCA’]. Pursuant to s.12(3) the officer determined he would search the vehicle and its occupants and stated his intention to the driver to do so. The officer searched the driver, Garnett Grant. The police then approached Garrett Grant, who was seated in the front passenger seat and explained that he would need to exit the vehicle for the search pursuant to this Act. Garret Grant refused. It took some negotiation and convincing before Mr. Grant agreed to step out of the vehicle. Before doing so, he reached into the back seat and retrieved a jacket and placed it on his lap, then slowly got out of the vehicle. He put the coat on as soon as he got out of the vehicle. He was searched. The officer saw the grip of a handgun tucked into his waistband. The officer yelled “gun” to alert other officers and as he did so Garret Grant started reaching towards the gun. The officer had a hold of his right hand, but Garrett Grant still continued to reach in the direction of the gun. With force, the officers controlled Mr. Grant and were then able to physically arrest him. With Garret Grant now constrained and cuffed to the rear, the officer retrieved the gun out of Mr. Grant’s waistband. It was 22 caliber semi-automatic pistol, with a magazine loaded with eight rounds, plus an additional round in the chamber ready to fire.
3A search of the vehicle incident to arrest revealed within one of two backpacks located on the backseat: 5.5 grams of fentanyl, 2.3 grams of fentanyl, 11 grams of crack-cocaine, 12.4 grams of crack cocaine, 12.2 grams of powdered cocaine, 2.5 grams of crystal methamphetamine, 1.5 grams of crystal methamphetamine, 1 gram of powdered cocaine, 4.2 grams of suspected cannabis and some oxycodone tablets all packaged in separate baggies. Several phones were seized. One of them, a ZTE phone, that was on the front centre console contained several text messages from the preceding days indicative of drug trafficking. Several pictures on that phone out of the thousands on it were of the driver, Garnett Grant, including 2 selfie-style photos.
4During a more invasive search during the booking process at the police division, police seized a baggy containing 2.6 grams of crack cocaine and a baggy containing 1.7 grams of fentanyl which the driver, Garnett Grant had hidden down inside the front of his pants. The fentanyl was the same purple colour and packaged the same as the fentanyl seized from within the backpack in the vehicle.
5The defendants were jointly tried on a 16 count Information arising form this incident. Charges in relation to the firearm were ultimately pursued against only the passenger, Garret Grant. The Crown proceeded on 10 separate counts against Garrett Grant—all possession-related counts—for this same firearm. In addition, both defendants are charged jointly with one count of simple possession of oxycodone and five counts of possession of a controlled substance for the purpose of trafficking stemming from the drugs seized from the backpack—and in the case of the driver, Garnett Grant, from the fentanyl and cocaine seized from within his shorts.
6Both defendants brought an application pursuant to s. 24(2) of the Charter seeking the exclusion of the drugs, firearm, and the ZTE phone from the trial on the basis of numerous alleged Charter breaches under ss. 8, 9, 10(a), and 10(b).
7The various Charter breaches alleged can be summarized as follows:
(a) s. 9 - both defendants, who are young black men, assert that the traffic stop was both racially motivated and a pretext to conduct a criminal investigation. They were arbitrarily detained at the time of the traffic stop and that this was a continuing breach;
(b) s. 8 - both defendants, moreover, maintain that the warrantless searches pursuant to the Cannabis Control Act were unreasonable and also a pretext to a criminal investigation;
(c) s. 8 – Garnett Grant asserts the police did not have reasonable grounds to arrest him for the possession of the gun seized from his brother’s person;
(d) s. 10(a) – both defendants argue that the police did not advise them of the reason for their detention from the moment of the traffic stop and that this was a continuing breach through out the investigation, noting that they were not advised of the drug related offences until hours after initially being processed at the police station;
(e) s. 10(b) – both defendants allege that the police failed in their duty to inform them of their rights to counsel upon the detention and assert this too was a continuing breach.
8On the consent of all parties, the trial and Charter applications were litigated as a blended proceeding on eight separate days spread over four months. The Crown called six witnesses and filed several exhibits. Garnett Grant testified on the Charter application and the trial proper and introduced two exhibits during his testimony. Garrett Grant called no evidence.
9Mr. Levien, on behalf of Garret Grant accepts that if his Charter argument fails, he is guilty of the firearm charges. He disputes, however, that the evidence establishes beyond a reasonable doubt that he had knowledge or control of the various controlled substances seized.
10Ms. Newby, on behalf of Garnett Grant argues that the Crown has not excluded the possibility that someone else brought the controlled substances into the car without his knowledge, noting that—although he rented this vehicle and was the driver at the time of the traffic stop—he did not have exclusive possession of the car.
11The Crown maintains that the police were Charter compliant throughout this investigation. The investigation into the vehicle and/or the defendants was not racially motivated. The stop was for a valid HTA purpose even though there may have been a dual interest in the vehicle because of the information the officer gleaned from running the plate. The Crown asserts that a plain reading of the CCA allows for the warrantless search of the vehicle and its occupants in the circumstances here and that it was carried out in a reasonable fashion. Once the gun was located, the search was justified as incident to arrest. Any delay in the provision of 10 (a) or 10 (b) rights was a justified limit and disputes that, the passenger Garret Grant was detained until he was searched.
12Regarding the trial issues, the Crown maintains that these brothers were in joint possession of substances found in the car; and with respect to the driver, Garnett Grant, highlights the fact that fentanyl and cocaine were secreted down his pants when he was booked at the division following his arrest.
13On February 10th, 2021, over Zoom, I orally provided the parties my ultimate decision on the Charter motion and verdicts and advised I would issue written reasons. These are those reasons.
B. Facts
14I have considered and reviewed all the evidence, but here I set out only those facts and findings necessary to explain my reasons.
15On December 4th, 2019, Cst. Hansen—who at the time had just two years experience as a police officer—was on general patrol in uniform. He was riding alone in an unmarked police vehicle that was equipped with a siren and lights. That morning, he was on proactive mobile patrol. His patrol zone included the area of QEW and Winston Churchill which, according to the officer, is an area of high crime activity for among other things, human trafficking given it is proximity to the QEW and several motels. Immediately prior to the events at issue, Cst. Hansen conducted multiple licence plate queries. Then, at precisely 10:29:22, Cst. Hansen drove into the lot of gas station at 2969 Sherwood Heights Drive from South Sheridan Way.
16As he drove in, he saw a male [Garnett Grant] pumping gas in a way that made him suspicious. The man had his hood up over his head and was standing turned away from the pump and facing the kiosk as he pumped gas. In his experience, the officer thought it was consistent with the modus operandi of a potential pump and run – which are common at these gas stations right off the QEW. He ran the plate within three seconds of entering the lot and drove around and back out. The plate query produced the following information which the officer scrolled thorough: the plate matched the vehicle, neither were stolen, the R/O Michael Lopez’ descriptors – including that he is a white male, other identifying information, and that he was on charge for numerous offences including human trafficking and assault with a weapon. The car was leased to City Connect – a car-sharing type of rental agency service. The validation sticker had recently expired. Officer Hansen drove through the lot slowly as he scrolled through this information and as he approached the vehicle, Garnett Grant looked at him and returned the pump and quickly returned to his vehicle and drove into a parking spot at the gas station lot and idled there. The officer noticed the driver side mirror was pushed out from its proper position. The passenger side mirror was in its proper position.
17Because Mr. Grant drove into a parking spot rather than leave the lot dispelled Cst Hansen’s suspicion of a gas theft, but he intended on investigating the vehicle for the HTA infractions (validation tag and the mirror) if the vehicle came on to the roadway. The officer was also interested in continuing to review the information produced from the plate query and drove out of the lot and directly across the street into a commuter lot to do so. He could also see Mr. Grant’s vehicle from there. The officer conducted further searches on the NICHE system into the registered-owner’s [‘RO’s’] address in Georgetown and observed numerous occurrences associated with that address, including a recent one where York Regional Police had requested Halton police conduct a ‘door knock’ for a person wanted and possibly armed with a firearm, named Joshua Anang. This wanted person was tied to a different vehicle registered to this this same RO (Lopez).
18The officer then conducted a CPIC query of Joshua Anang and confirmed he was still wanted. As he was reviewing this information, Mr. Garnett Grant drove out of the gas station lot. As it passed by the commuter lot, Cst. Hansen followed and initiated a traffic stop as the vehicle turned onto Winston Churchill toward the QEW. Officer Hansen was insistent that he pulled over the vehicle for the purposes of the HTA investigation, although he was upfront from the outset that he was also interested in the vehicle because of the information he learned from the plate and associated queries. He also denied that his decisions to run the plate at the gas station, conduct the traffic stop, or the further resulting investigation was racially motivated. Officer Grant testified that it occurred to him that the driver could potentially be Joshua Anang—the wanted and possibly armed individual. He called for back up for officer safety reasons given the RO (Lopez) information and the associated wanted person connected to one of his rentals (Anang).
19Cst. Hansen approached the vehicle from the passenger side. He claimed he did this for road safety, given this is a major roadway and was busy. The back and side windows of this sedan were tinted. The officer could not see inside as he approached. He knocked on the passenger window. The window came down, but only about five inches. This is when Officer Hansen first learned there was another occupant in the vehicle [1]. Cst Hansen detected the odour of burnt cannabis coming from inside the car. He also noticed cannabis shake on the centre console of the vehicle. Officer Hansen advised the driver of the purpose of the stop – being the side mirror and the validation tag. He made a demand for the licence, ownership and insurance for the vehicle. While at their car, Officer Hansen noticed that the passenger was looking forward through the front windshield. He remained still, never turning to side to side even when the officer was later at the driver’s side.
20While this was being addressed, Officer Hansen walked around to the driver’s side to speak to the driver as he had difficultly speaking to him through the 5 inches that were open on passenger-side window. The passenger—Officer Hansen noticed remained still, only looking forward; but he noticed the passenger touching his waistband area.
21The driver, Garnett Grant provided the necessary documentation to the officer who took it back to his police vehicle and ran Mr. Grant through the police databases. Because of the smell of freshly burnt cannabis and the cannabis shake on the console, the officer intended to do a sobriety check on the driver.
22The CPIC check on Grant was initiated at 10:39:53. Officer Hansen also scrolled through the occurrences that related to the ROs address that was on his display screen from the queries conducted at the commuter lot. The in-car data audit [filed as Exhibit 14 and forming part of an Agreed Statement of Fact (‘ASF’)] shows that Officer Hansen remained in his vehicle doing checks for over 13 minutes. Officer Hansen explained that he was doing these checks and waiting for back-up [2] for safety reasons given the knowledge he was possessed of relating to the RO and the wanted and possibly armed individual connected to another of the RO’s vehicles. I would infer based upon the evidence, including the in-car data audit (exhibit 14) that Officer Hansen exited his vehicle to re-approach Mr. Grant around 10:54am—give or take a minute—which is a few minutes before the second police vehicle (Officer Short and his recruit) arrived in answer to the call for back-up.
23When he returned to the BMW sedan, Officer Hansen told the driver he could smell freshly burnt cannabis and asked the driver if he had taken any drugs or alcohol. Garnett Grant he said ‘yes two hours ago’. This confirmed for the officer that he had taken some substance. Officer Hansen asked Garnett Grant to step out in order to pursue some type of sobriety check. Outside the vehicle, as the officer explained the possible sobriety tests relative to alcohol or drugs, Mr. Grant pulled out a baggy from his pocket showing the officer, ‘no, it’s just weed’. Although the officer noticed Mr. Grant had red glossy eyes once outside the vehicle—as a result of his dealings with him there—he did not observe any physical impairments. Instead, given what he believed to be a violation of s. 12 of the CCA, Officer Hansen intended to search the two occupants and the vehicle pursuant to s. 12(3) of that Act for further cannabis.
24The baggy which Mr. Grant pulled from his pocket was, according to Officer Hansen, not in a sealed bag and not in its original packaging. It was readily available to the driver. The officer described it as a small unsealed baggy and estimated it as “I would say it was a gram to a gram and a half”. At other times in his evidence he described it as a “1ish gram”. Much was made of the officer’s eye-ball estimated weight because as will be explained below there were only two separate packages of substances of suspected cannabis that were seized, brought back to the station and later photographed and weight by the drug exhibits officer. One was depicted in DSC258 of exhibit 11 and weighing 4.2 grams – which I find is the suspected cannabis seized from a backpack in the car, referenced below. The other was depicted in DSC259 of exhibit 11 and weighing in at 2.3 grams (with the packaging).
(DSC259)
25On the basis of all the evidence I do accept, I find that this photograph depicts the baggy of suspected cannabis that the driver Garnett Grant produced and showed to the officer at the roadside. I make this finding despite Garnett Grant’s evidence to the contrary, which as I explain below, I reject.
26Officers Smith and Short both testified to seeing the driver pull out a baggy of cannabis from his pocket.
27When Officer Hansen explained to Garnett Grant that he would be searching the occupants and the car and his stated authority under the CCA, Mr. Grant appeared concerned or surprised and told the officer that there was nothing else in the vehicle and that he was content on talking whatever ticket or charge that came with that. The officer advised there would be a charge, but the searches would still be performed.
28At that point Cst. Hansen brought Mr. Grant from the rear of the vehicle where they were at the time to the sidewalk area so they were not on the roadway and between the two vehicles to conduct the search. Cst. Hansen then searched Garnett Grant and found a “large bundle of Canadian $10 bills, loose change and a chain in his pocket.” After finishing this search Cst. Hansen noticed that Officer Short was now also on scene. [3] Hansen asked Officer Smith to walk with Garnett Grant close by his vehicle before getting the passenger out to continue the CCA search with Officer Short’s assistance.
29Officer Hansen went up to the passenger side of the BMW and advised him that he would have to step out of the vehicle for the CCA search of him and the car. This is the first time that an officer spoke to the passenger, Mr. Garret Grant. Garrett Grant turned towards the officer and said ‘no’ and stated the police had no authority to search him. Both Officers Hansen and Short engaged the passenger explaining what they believed their authority was to for the search and why. They ultimately convinced Mr. Garrett Grant to comply. Before getting out, Mr. Grant reached to the back seat and grabbed a jacket which he put over his lap. He exited slowly and then put on the jacket he grabbed before the officers searched him.
30Officer Hansen started searching the jacket pocket, finding “a large amount of Canadian currency’. He felt Garret Grant shaking. He appeared to be nervous. He was tensing his back and arms. As the officer searched him, Garret Grant kept dropping his hands down from where he was directed to put them. As Cst Hansen got closer to the right side of his body, Garret Grant again brought his hands down and tucked his elbows towards his hip a few times. Officer Hansen felt a hard object in his waistline area and lifted the shirt that was under the winter jacket and saw the grip of a handgun and immediately yelled ‘gun’ to alert the other officers.
31Mr. Grant began reaching towards the area where the gun was. Officer Hansen was trying to arrest him and had a hold of Mr. Grant’s right arm, but Mr. Grant still continued to reach down toward the gun. The officer kneed him in the thigh to overcome this and cuff him. Officer Hansen was then able to retrieve the gun from Mr. Grant’s waistband. It was a 22 caliber semi-automatic pistol, loaded with a clip containing 8 rounds, plus one in the chamber ready to fire.
32Garret Grant was immediately brought to Officer Short’s vehicle. Cst. Hansen advised him he was under arrest for the unauthorized possession of the firearm and read him his rights to counsel and cautioned him. The arrest was at 11:05am. This is the first and only occasion Garrett Grant was given his 10(b) rights at the scene since the initial traffic stop at 10:38:35. When read his rights to counsel, Garret Grant said he understood his rights to counsel and that he could access his own lawyer or a ‘legal aid’ one. He provided the officer with a name of a lawyer ‘”Irwin Alsen” in Scarborough, but said he did not need to call at that time. Indeed, later at the police station when he was booked and re-read his rights to counsel, he declined to speak to a lawyer. Garrett Grant did not call or adduce any other evidence to counter this evidence that having been fully informed of his rights both at the scene following his arrest and at the station, he declined to exercise those rights.
33When Officer Hansen yelled out ‘gun’, Officer Smith placed the driver—Garnett Grant—under arrest for the ‘unlawful possession of a firearm’. He did so on the basis of joint possession as a theory of liability. This arrest of the driver, according to Smith, was at 11:05. He immediately advised Garnett Grant of his rights to counsel and cautioned him. Garnett Grant did not respond. This was the first and only occasion Garnet Grant was given his 10(b) rights at the scene since the initial traffic stop was initiated 26 minutes earlier. Moreover, led through the Crown, this was the only evidence adduced concerning his rights to counsel post arrest at the scene. Although Garnett Grant testified, he was not asked his version of this conversation.
34Cst. Hansen was questioned about the delay in providing the defendants their rights to counsel at the scene. Although he did not speak to the issue with the legal terminology of the suspension of s.10 rights in the Elias; Orbanski, infra sense, Officer Hansen’s explanation and belief is that until the gun was discovered, this was a HTA then CCA roadside investigation for non-arrestable offences which in the circumstances do not warrant the provision of rights to counsel.
35In my view, unlike the driver, Garret Grant was not detained until he was asked to step out of the vehicle for the search.
36After the arrests and the defendants were each secured in separate police vehicles, Officer Hansen searched the BMW with Officer Short’s assistance. He did this pursuant to his common law authority as a search incident to the arrest. Although he also made a passing reference to additionally still having the search power pursuant to the CCA, it seems to me it could not be seriously contended that after discovering a loaded semi-automatic hand-gun that had been in this vehicle, there was any real desire or intent to search for cannabis in the car and I have approached my reasons as such, confining my analysis as to whether or not this post-arrest warrantless search can be justified by the Crown as a search incident to arrest.
37While the search of the car was being conducted, Officer Smith spoke with Garnett Grant. First only a general conversation. Then the Crown led evidence as ‘part of the narrative for the Charter’ —but was not seeking its admission for use at trial—that Cst Smith asked Garnett Grant about the gun in the car but he would not comment about it. And then he asked the driver, ‘what was the conversation you and the passenger were having when you got pulled over?’, and he replied, ‘what do you think?’. The officer asked what he meant and Garnett Grant responded, “don’t be crazy.’ Garnett Grant complained about the tightness of the cuffs. Officer Smith loosened them. Mr. Grant then asked if they could be placed in the forward position but Officer Smith declined that request.
38Officer Hansen found several phones in the front cabin of the car, including two IPhones on the driver side, a phone on the passenger side and a ZTE phone in the centre console area. A warrant was later obtained to search this ZTE phone. The police discovered several pictures of Garnett Grant on that phone, including two selfie style photos which were introduced into evidence. Text communications on the phone in the few days leading up to the incident are consistent with drug trafficking – and specifically, as I read them – consistent with the user of the phone being the trafficker. That these text messages evince the trafficking of drugs was conceded as such. In addition to the phones, the only other relevant item in the front was the cannabis shake on the centre console which the officer tried unsuccessfully sweep up.
39In the back passenger area, there were some car parts and two backpacks sitting on top of the seats. There was a Blackberry phone in each of them. The record is silent as to whether these phones were examined or not. One backpack was a Jordan brand which was “on the right side”. In the Jordan bag, there was nothing of relevance. A blackberry, deodorant and a bag containing 1.5 oxycodone pills were in the side pocket of the Champion brand bag. The main compartment of the Champion bag contained a larger plastic bag. This bag held individual packages of various controlled substances: 5.5 grams of fentanyl, 2.3 grams of fentanyl, 11 grams of crack-cocaine, 12.4 grams of crack cocaine, 12.2 grams of powdered cocaine, 2.5 grams of crystal methamphetamine, 1.5 grams of crystal methamphetamine, and 1 gram of powdered cocaine.
40Each of these substances were stored not in Ziplock-style baggies with a fastener but in what appeared to be teared off pieces of plastic that were knotted shut: Exhibit 11, photos DSC245 to DSC253.
(DSC245 – depicting these 8 packages)
41Also in this Champion bag, were clothing items, a toothbrush, headphones, coins and a separately bagged amount of suspected cannabis which the police seized and which weighed in at 4.2 grams [Exhibit 11 photo DSC258].
42The trunk was also searched. Officer Hansen noted in his evidence several items of clothing, jackets, shirts, assorted bags, brake fluid and receipts for those clothes, but did not seize anything from the truck.
43The search lasted roughly 40 minutes and completed at 12pm. During that entire time, both defendants stayed at the scene, under arrest and secured in police vehicles. Officer Short transported Garret Grant and Officer Smith transported Garnett Grant to the station. They did not leave the scene until 12:14pm and arrived at the division a little over 10 minutes later and were individually booked with Officer Moroso, who was the Staff-Sgt on duty and subjected to a level 3 search.
44Officer Hansen returned to the division alone with all the exhibits of evidential value that he seized: the various controlled substances, money, and phones. The backpacks or other items in the car were not seized or photographed.
45Both defendants were booked in as under arrest for the unauthorized possession of the firearm. Staff-Sgt. Moroso testified that both defendants were re-advised of the reason for the arrest and given their rights to counsel. It is his responsibility to review these rights with detainees and ensure they understand their rights. When Garnett Grant was booked, he indicated he wished to speak to his counsel of choice, Trudi Newby – which was arranged. I heard evidence that he spoke to his lawyer shortly after completing the booking process and afterwards was re-lodged into the cells. The passenger, Garrett Grant, declined both contacting counsel of choice or duty counsel. Officer Moroso recorded this information on booking forms for each respective defendant.
46A booking officer—a civilian special constable—was assigned to do the searches. Officer Short testified that when Garret Grant was booked, a baggy containing 7 Oxycodone tablets was seized off him. On my review of the evidence this would correspond to Exhibit 11, DSC 257 – which I have heard no other admissible evidence about where or who it was seized from and which is the only photographed exhibit entered at trial which was not so identified. The staff-Sergeant who booked Garret Grant did not seize drugs from him and made no note of that. Officer Leach who did the level 3 search testified that nothing was discovered during the search of Garret Grant.
47Officer Leach did, however, discover drugs on the driver, Garnett Grant. They were hidden down the front of his underwear. There were two bags. One was a ‘see-through bag’ with white powder inside. The other was a small grey bag with something inside – but he did not open it.
48I find that these items are depicted in picture DSC 254 from Exhibit 11 which includes 2.6 grams of cocaine (inside the Ziplock style bag) and 1.7 grams of fentanyl, contained in what appears to be a piece of ripped plastic knotted shut similar to the packaging of contraband seized from the Champion backpack in the BMW.
(DSC254) In the photo, the packaged fentanyl is the small package in the foreground in front of the laid out Ziplock style of bag, containing the cocaine. To the left of the Ziplock bag appears to be a piece of a ripped plastic bag, grey in colour.
49The next photograph entered as part of exhibit 11 is DSC255. It is a picture of the fentanyl from the previous photograph with the package opened, revealing the substance inside:
(DSC255)
50The photographs of the contraband and money which were entered part of exhibit 11 were taken by an officer (D/C Cruciano) from the drug bureau. He was called in to assist. He took the exhibits from Officer Hansen in the report room and helped him identify the drugs for Cst. Hansen’s report.
51Officer Cruciano processed these exhibits by photographing them and detailing them several days later on December 9th, but took custody of the exhibits from Hansen at around 4:30pm on December 4th. The property report record which was entered as exhibit 13 was created on December 9th and was reliant on information that he received from Hansen on the 4th; and thus its accuracy is dependent on the information to have been both accurately relayed to Cruciano and accurately understood by Cruciano and accurately recorded by Cruciano. No discrepancies were put to Officer Hansen by either defence counsel, including the one central to the defence position – that is that the smaller quantity of cannabis weighing in at 2.3 grams was seized from inside the car rather than from Garnett Grant. I find, however, there was not a second unmentioned baggy of cannabis discovered within the car; rather, the reference in Cruciano’s property report and listed as item 16 was in fact the opened baggy of cannabis that Garnett Grant produced to Officer Hansen at the roadside.
52There was unnecessary sloppiness in the way the exhibits were documented. The delay in processing them contributed to this. This could also have been avoided by more thorough documentation at the scene. I appreciate Officer Hansen’s candid remarks about the way the investigation unfolded caused delays in the preparing of reports and handling of the exhibits. He was a young officer with only 2 years experience. He testified it was the first time he had seized a gun at a traffic stop; but even later at the police station there appears to be a disconnect between Officer Hansen’s evidence about where certain bundles of money were seized and Officer Cristiano’s evidence. Officer Hansen put it simply that the driver, Garnet Grant had the ‘bundle of $10s’ and Garret Grant had the other; however, when the money was laid out and photographed by Officer Cristiano days later there were multiple bundles. There were also batches of $10 bills with different bundles. As a result, I am unsure of where or who all the cash as depicted in exhibit 11 was seized from.
Evidence of Garnett Grant
53Garnett Grant testified that the BMW sedan he was driving was not his and stated “it was a rental” and was using it for his birthday week. On the day in question he and his brother were returning to Toronto after spending the evening in Hamilton partying. He had to stop for gas and followed the signs on the highway for a gas station.
54Mr. Grant testified that he first noticed the unmarked police vehicle after he pumped gas as he was walking out of the kiosk—where he had just paid—with a bottle of water. He noticed the vehicle as it drove into the lot. It drove in fast, and went by him. Mr. Grant did not say if the police vehicle stayed in the lot or not, nor whether he noticed it again at all after it drove in ‘fast’. He indicated, however, that he got back into the car and parked in the lot to set up his GPS, then left. He noticed the same police vehicle again as he was about to get back on to the QEW. That is when he was pulled over.
55He did agree that while pumping gas he had his hoody on and had it up over his head and that he was turned facing the store while pumping gas.
56Mr. Grant stated that it took the officer two minutes before exiting the police vehicle but confirms that the officer approached on the passenger side first. He stated that the officer knocked on the window at which point Mr. Grant lowered the front passenger window down. Mr. Grant testified that the officer was ‘telling me about my mirror’. Mr. Grant said he looked at it and ‘it was out’ and said the mirrors of BMWs are automatic. He explained that they turn in automatically when he turns off the car and assumes the officer did not realize this. He agrees that the officer next asked him about the ‘val tag’. He also agreed that the officer then moved to driver side to speak to him and said it was difficult to hear him from the other side, where he asked him for his driver’s licence.
57The officer, according to Mr. Grant, then returned to the police vehicle. It took him a long time to return – about 10 minutes and he noticed other officers arrive. When the officer returned, he came to the driver’s side and confirms that the officer asked him if he had been drinking or was under the influence of anything. He says the officer asked him “if I’ve been drinking, and then I chuckled to my brother ‘cause … it’s 10am …. and then he proceeded to ask me if I’m under the influence of anything, did I smoke, and I said no, not recently. Like a few hours ago.”
58It is at this point, that the officer asked Mr. Grant to step out of the vehicle. He did not tell him why and he did not mention he may need to do a sobriety test depending on what he consumed. The officer just patted him down and then started searching him. It was the officer who pulled out the cannabis from his pocket and continued searching him pulling out all the other items that he had in his pockets – including keys, money, a wallet. According to Mr. Grant, after this search took place the officer told him he was going to search the car and occupants because of his authority under the CCA.
59Garnett Grant testified that he told the officer, ‘no’ and questioned the authority to search; but the officer insisted he could and then brought him over to another officer. The officer then opened the car door and took his brother out and starting searching his brother. When they started searching his brother, he heard them scream something, then they threw him on the car. He said he heard his brother screaming ‘I’m not resisting, I’m not resisting.’ Garnett was cuffed and put in the back of the cruiser.
60He was never advised of the reason why he was asked to step out of the vehicle and was not given his rights to counsel before being searched.
61Regarding the marijuana that the police took out of his pocket and seized from him at the road side, Mr. Grant testified that it was not the baggy depicted in photograph DSC259, but was rather contained in a black Ziplock bag that was sealed and unopened from the place he purchased it from the day before, called ‘I am Café’. He believes there was about a gram in this black Ziplock bag. He had not consumed any of it. The marijuana he smoked a few hours before the stop was not from this baggy. Mr. Grant identified a black baggy (exhibit 15) as being similar to the one the officer seized off of him. He also produced a receipt dated October 1st, 2020—about 10 months after the date of the incident—from this Café.
62When asked if there was marijuana shake in the car, Mr. Grant responded, “[p]robably from, like, my clothes and stuff, maybe.”
63Mr. Grant denied the ZTE phone seized by the police belonged to him. He could not assist with whose phone it was and maintained the only phone that would have been near the centre console, was his Iphone because he was charging it.
64Mr. Grant denied that the backpacks he “saw at trial” belonged to him or his brother; and offered his belief that they “most likely” belonged to “CJ”. CJ was a friend who he visited the evening before in Hamilton. CJ, moreover, was in his car that morning and was supposed to come back to or later meet up with him in Toronto to continue to celebrate Mr. Grant’s birthday; however, prior to attending the gas station, Mr. Grant had to drive CJ to work because he got a call. When he dropped off CJ, CJ asked him to pop the trunk. He testified both that CJ put something in there [the trunk], but did not observe him doing anything particular. He did not see it. He also testified that he does not think his friend CJ took his stuff with him to work and most likely left it ‘my vehicle’.
65When asked what the bags looked like – the ones that he said most likely belonged to CJ -- Mr. Grant said they were “backpacks. Like clothes and stuff” [4]. When asked if he had seen those bags before, he said “yes”. Following that response, his counsel then confirmed that he recalled those bags shown during the trial and he replied ‘I think so, yeah.” He was again asked if he had seen those bags before the trial. He replied, “I don’t think so. no.”
66Mr. Grant testified that he did not know what the substances were that were inside his underwear upon arrest, but admitted to having put them there the night before. He explained that he was at a party and someone said ‘try it’ and he said he would later; but this someone said ‘be careful’ and to ‘mix it with weed’.
C. Analysis
Charter
67I start with my assessment of the credibility of Garnett Grant. In my view, Garnett Grant was not a truthful witness who could be relied up. To the extent that his evidence concerning what transpired on the morning of December 4th contradicts Cst Hansen, I reject it. Taken as a whole, his evidence was contrived, defied common sense, was vague—I believe intentionally so—on vital details to his narrative, and was contradicted by evidence which I do accept. Here are some examples of why I conclude this:
(i) The mysterious ‘CJ’ – Mr. Grant claims a friend referred only by “CJ” was just in his car prior to the traffic stop and testified that the bags must have belonged to him because he asked him to pop the trunk as he dropped him off together with some vague reference to the fact that CJ was expected to meet up with him later and spend the night in Toronto and probably had overnight bags with him that were in this car. He added, however, because he was sitting in the driver’s seat at the time, he did not see what CJ put in or took out of the trunk. Putting aside for the moment that the backpack containing contraband was on top of the backseat and not in the trunk, this evidence is vague and devoid of detail. The story defies common sense. Controlled substances such as these are valuable commodities and dangerous ones – especially the fentanyl and cocaine. The idea that ‘CJ’ would leave such valuable commodities in a friend’s rental car in such haphazard way-- to depart with them with only a vague expectation he would meet with Mr. Grant later that night – without solid plans or without even mentioning this very important and valuable bag and its special importance is incredible. It is also incompatible with the ZTE phone—a phone used to engage in drug trafficking—was right beside Garnett Grant in the centre console area at the time of the traffic stop.
(ii) Garnett Grant testified that he was walking back to the car after pumping gas when the police vehicle pulled into the gas station lot. However, we know from the Agreed Statement of Fact [‘ASF’] filed as Exhibit 14 and the audit of Hansen’s terminal that the officer ran Mr. Grant’s plate within 3 seconds of pulling into that gas station. If that was the case, how could Officer Hansen have observed that Garnett Grant was even the one pumping gas, much less with a hoody up over his head and in a stance facing the kiosk (or store) which Mr. Grant agreed he was most likely doing as he pumped the gas. I find this testimony was contrived and aimed at casting aspersions on Officer’s Hansen’s evidence which went to the root of why of he chose to run the plate on his vehicle.
(iii) Mr. Grant testified that Officer Hansen pulled the baggy of cannabis from his pocket. He denies that he pulled it out of his own pocket at the traffic stop as described by Cst Hansen. Mr. Grant’s version is contradicted not just by Cst. Hansen, but two other officers who testified. Moreover, the production of the baggy from Mr. Grant’s own pocket is consistent with the narrative. Officer Hansen was in the midst of investigating his sobriety—Mr. Grant acknowledges that this immediately precipitated the revelation of the cannabis. Cst. Hansen was asking him what he took and akin to the proverbial ‘just 2 beers’ claim from a driver at a RIDE spot check, Mr. Grant in an ill-conceived and feeble attempt to rebuff the officer’s suspicion that he was impaired presented the baggy to show he only had had ‘weed’. Mr. Grant augmented his testimony about the cannabis by producing a black baggie together with a receipt showing a purchase 10 months after this incident from I am Café and testified that this was in fact the type of baggy of cannabis seized off of him. He maintained that this cannabis had been unopened and in its original packaging at the time, disputing the officer’s evidence that it was an unsealed baggy of cannabis and hence disputing the officer’s grounds that cannabis was contained in the vehicle in contravention of the CCA. I find that Mr. Grant introduction of this ‘I am Café’ baggy together with a receipt from a purchase made 10 months after the incident was a contrived attempt to augment his story with extrinsic evidence. He testified this was unopened cannabis in original packaging that he just bought the day before. His evidence was that despite having smoked cannabis a few hours earlier – it was not from this source. The I am Café baggy, he said, contained ‘probably’ a gram. If this was untouched cannabis that he had just purchased from a dispensary, how could he not know how much was in the baggy?
(iv) Mr. Grant’s testimony concerning the baggies containing fentanyl and cocaine in his underwear is incredible. Mr. Grant testified to an unidentified individual—by name or relationship—at a party just handed him a valuable amount of cocaine and fentanyl – and in the case of the fentanyl – a notoriously dangerous and deadly drug in small amounts and simply said ‘try this’. Mr. Grant said he replied ‘later’, to which this unidentified individual said ‘be careful’ and to ‘take it with weed’. This was Mr. Grant’s explanation of how these controlled substances came to be in his underwear the next morning during a traffic stop. This explanation defies logic and common sense. I consider this testimony in the context of all the evidence, including the photographic evidence showing that this baggy containing 1.7 grams of fentanyl was packaged inside a ripped up piece of plastic fastened with a knot—just as the packages of cocaine, fentanyl and methamphetamine seized from within the backpack in the car were packaged.
(v) Mr. Grant’s evidence about whether he had seen the backpack was internally inconsistent. In-chief, he was asked whether the bags in question belonged to him or his brother. He replied ‘no’. Asked if they belonged to ‘CJ’, Mr. Grant replied, ‘most likely. I do say, yeah.’ He was asked if he knew what those bags looked like, to which he replied: “Like backpacks. Like clothes and stuff”. Continuing on, in this line of questioning, he was asked if he had seen those bags before. He answered ‘yes’. Then it was immediately put to him by his counsel if he recalled seeing those bags that were shown ‘during the course of the trial?’, to which he responded, “I think so yeah.” In response to the next question which was, ‘did you see those bags before the trial?”, Mr. Grant stated “I don’t think so. no.” The difficultly I have with this exchange is two-fold. First, is that, in my view of the evidence, Mr. Grant gave contradictory answers on a critical point – that is, whether he had ever seen the bag before. This was a bag that contained all the controlled substances found in the car. His awareness of the bag is a critical component of the Crown’s case of establishing knowledge and control – in establishing an essential element of the charges he faces; hence this contradiction is on a material point. The second difficulty is that these bags were never shown at trial. They were not seized. The police did not take photographs at the scene. The items seized were not photographed until days later at the police station. If Mr. Grant saw those bags before it had to have been before the trial; his initial response acknowledging he had seen those bags, the ‘backpacks … clothes and stuff’ belie his later professed lack of awareness of these bags.
68The rejection of Mr. Grant’s evidence does not resolve the Charter applications. Critical to all the issues raised on the Charter is Cst. Hansen’s credibility.
69In my view, Cst Hansen is a credible witness. As well, his focus and demeanour on the stand was notably impressive given the tenor of questioning, especially for such a young officer with just a few years of experience. As was required given the defence position, he was assertively cross-examined, initially over a two day period then recalled and cross- examined on an additional day. His answers were consistent and precise. In the face of persistent questioning, inferring that he lied, he calmly answered in a way that was responsive to the questions. On several occasions, both defence counsel preceded a suggestion with reminders, such as ‘you know you are under oath, right?’ The officer did not get defensive, but rather remained poised. I appreciate that demeanor in the witness box should not be over emphasized. Demeanor can be hard to read. Lying witnesses can come across as smooth and convincing and truthful ones can appear emotional and deceptive.
70My point is he met the accusatory questions with solemn and thoughtful answers. He was unshaken. Importantly, his evidence was consistent internally in the face of this robust cross-examination and consistent on material matters with the other Crown evidence.
71In particular, his evidence was consistent with Exhibit 14. This case proceeded rather unusually. To start with, both defendants’ written Charter application was terse in outlining the foundation of the breaches alleged. As an example, under their s.9 claim, neither defendant cited racial profiling in their material, although it became quickly clear during the cross-examination of Cst Hansen that this was the main tenet of their position. After his second straight day of testifying as Cst. Hansen was being excused from trial, defence counsel openly, on the record, requested further disclosure of any material documenting the officer’s in-car terminal searches beyond what they already had and indicated that the defence may seek to recall Officer Hansen.
72In response, the Crown launched an investigation into the usage of the officer’s vehicle data terminal. Detective Melissa Parsons submitted a 19-page Niche Audit Report, plus attachments which detailed the timing, substance and results of all the queries made by Officer Hansen covering a few hours. This audit was appended to an Agreed Statement of Fact [‘ASF’] filed as Exhibit #14. This ASF detailed CPIC queries in addition to NICHE queries detailed in the attached audit and incorporated the location of Officer’s Hansen’s vehicle at the relevant periods, using the vehicle’s GPS tracking.
73I thoroughly reviewed exhibit 14 and compared it to Officer Hansen’s evidence and looked for discrepancies. In my view, this material confirmed the accuracy and the truthfulness of Officer Hansen’s evidence.
74For example, Cst Hansen testified that as he drove into the gas station lot, he immediately noticed the male (who turned out to be Garnett Grant) pumping gas in a manner he suspected to be a possible ‘pump and run’ and ran the plate of the car. The ASF shows that Officer Hansen entered the licence plate within 3 seconds of entering that lot as he slowly drove through the lot.
75The officer satisfied any suspicion he had of a developing gas theft based upon the information received -- that is the plate matched the vehicle -- and the fact that after pumping gas, Mr. Grant got into the car and drove to a parking stall right at the gas station.
76Secondly, although he was challenged on some of these details, the ASF shows that in addition to learning the validation tag for the plate was expired, he received the information automatically with that query on the RO as he drove through and back out of the lot and headed across the street and into a commuter lot and continued searches. All told, he was in the gas station parking lot for about a minute.
77Third, the ASF shows that while in that commuter lot the officer did the precise searches and learned of the information of the RO s address and the related occurrence to an armed and dangerous wanted party (Anang) who had rented another of the RO’s cars; but then drove out of that lot in the midst of those searches to pursue the defendants’ vehicle.
78The searches during the traffic stop as well are corroborative of the officer’s narrative of what occurred.
79Officer Hansen maintained that he conducted the traffic stop for HTA purposes. The extrinsic evidence supports this – parenthetically, the defendant, Garnett Grant’s evidence does as well. Right from the get-go and through all the stages and pivots in the face of the developments at the roadside, Officer Hansen communicated to Garnett Grant in real time what the purposes were. This is a particular reason—beyond my acceptance of Cst Hansen as a credible witness—why I reject Mr. Levien’s submission in pointing to Hansen’s delayed notetaking of important aspects of the traffic stop until hours later at the police station in a room with other officers that he collaborated and came up with an ex-post facto justification for the searches. Hansen said he was overwhelmed with the magnitude of the investigation and his duties to have completed his notes any sooner. He was not knowledgeable when it came to the drugs and noted as well this was the first occasion he had seized an illegally possessed handgun. He had never come across an investigation like this before. I accept that explanation for the late entries in his notebook.
80Mr. Grant acknowledges Hansen referenced the side mirror and the expired validation tag when he was pulled over. He acknowledged that when Hansen spoke to him next, right before asking him to step out of the vehicle he was asking questions about his sobriety. His also agreed that Officer Hansen explained to him that the search of the occupants and the car was being conducted on the basis of the CCA search powers due to a violation under it. These steps were undertaken in response to patent and objectively discernable observations, not simply on subjective perceptions capable of skewing. There is no dispute that the validation tag was expired and that the officer discovered this immediately upon running the plate. Additionally, Mr. Grant agrees that he smoked cannabis – although he says a few hours ago but that he was still wearing the same clothing when he did – and agrees that there was probably cannabis shake in the car. Importantly, he also agrees that he in fact had a baggy of cannabis on him which was seized right after he exited the car – albeit he disputes the circumstances of how that baggy was discovered and how it was packaged.
81However, just because there was a valid basis to conduct the traffic stop, to detain and to even ultimately conduct the searches does not defeat the s.9 Charter claim.
Racial profiling
82Even if Officer Hansen was pursuing a valid HTA investigation when he initiated the stop and pursued other valid investigations that came about as a result, the detention of Mr. Grant would be arbitrary and in violation of s.9 of the Charter if he engaged in racial profiling—consciously or unconsciously—in subject/suspect selection. If race played a role in Officer Hansen’s decision to run that plate, racial profiling would be a component of the stop even if everything that transpired afterwards had nothing to do with Mr. Grant’s race. Similarly, if race motivated the officer in any decision-making in pursuing any of the investigations—however justifiable or lawful those investigations might be standing alone—the detention would be arbitrary. In such case the officer’s subjective basis for detention would be marred by these pernicious motivations.
83There are two components to racial profiling: Attitudinal and causation. Attitudinal is the acceptance by a person in authority that race or racial stereotypes are relevant in identifying the propensity to offend or be dangerous. Causation requires that this thinking, consciously or unconsciously motivate or influence, to any degree, decisions by persons in authority in suspect selection or subject treatment: R. v. Dudhi 2019 ONCA 665 at para 66; R v. Le, 2019 SCC 34 at para 76.
84The onus is on the applicant(s) to prove racial profiling on a balance of probabilities. Rare is the case where there is direct evidence of racial profiling. It must be inferred from the circumstances surrounding the police action that is alleged to be motivated by racial profiling. This makes it necessary for a judge to consider all the circumstances of the event: Dudhi, para 75-76; Peart v. Peel Regional Police Services Board, (2006), 43 C.R. (6th) 175 (Ont. C.A.) at para 95. If the circumstances surrounding the detention are consistent with racial profiling, a court can infer from this that an officer is lying about why a suspect was selected; and, hence it in fact, amounted to racial profiling: R. v. Brown, [2003] O.J. No. 1251(Ont. C.A.) at para 45.
85In this case there is no direct evidence of racial profiling. Officer Hansen categorically denied he ran that plate because the man he saw was a black man. He maintained that it could have been any person with a hood up and in that stance, the way he was turned away from the pump toward the kiosk, and he would have queried the licence plate. In his experience, it fit the ‘MO’ of a ‘pump and run’ and such gas thefts are common—particularly at these stations right off the QEW. Essentially, if he is believed, he was profiling, criminal profiling, based on articulated factors; not on the malignant and repugnant form of profiling that factors in race.
86Officer Hansen testified he was on patrol in the area and was engaged in proactive policing that day. He was not assigned to any calls. He drove into a gas station in a high crime area off the QEW. His attention was drawn to a man pumping gas because the he thought he could be concealing his identity which, in his experience, made him suspect a potential gas theft. This did not mean he had grounds to think so, but it made him suspicious enough to run that plate. Quickly, his suspicions were quashed – but with the information that came back on the query, he had a valid reason to conduct an HTA investigation. Both applicants urge me to reject Cst. Hansen’s evidence and find he was lying to cover up racial profiling.
87I have already explained above why I accept Cst. Hansen to be a credible witness and I have looked at his evidence in the context of all the indicia that counsel point to that that they argue makes this event consistent with the phenomenon of racial profiling—including that Hansen observed Mr. Grant to be a black man, was driving a BMW and not unusually wearing a hoody given it was December—but do not accept that Cst. Hansen was lying or subconsciously engaged in racial profiling.
88There is also no evidence of any general racial attitudinal evidence or thinking by Officer Hansen as was the case in Dudhi.
89This event also needs to be looked at in the context of how Hansen and the defendants crossed paths. Officer Hansen—a uniform officer with just 2 years experience—was out on proactive mobile patrol on a mid morning, mid week day. The evidence from Officer Smith, who was also on proactive patrol, is that the officers are required to account for their time. Hansen was actively searching for something to investigate, no matter how minor it may seem compared to serious criminal behaviour Courts are accustomed to seeing. Cst. Hansen is mandated to patrol the community in this way and is permitted to seek out matters to investigate and follow his suspicions whether they be to enforce provincial laws, criminal laws or uphold public peace so long as he is not unlawfully interfering with a person’s liberty or other rights.
90This is the type of policing Cst. Hansen was engaged when he encountered Mr. Grant at the gas station. According to the ASF, Cst. Hansen had queried multiple licence plates immediately prior to entering that gas station lot. The applicants knew this; and even when Cst. Hansen was recalled after Exhibit 14 was entered evidence, he was not questioned by the applicants about the nature of those queries or about his proactive policing duty that morning in an effort to show the defendant was signalled out for improper purpose – that is on the basis of his race. The defendants bear the burden of proof on the s. 9 claim. The defendants have not met this burden. In my view, the evidence in totality, rather, shows an eager, but honest young officer on proactive patrol. I have considered all of the evidence and surrounding circumstances prior to, during, and after the traffic stop and find that Cst. Hansen was not engaged in racial profiling.
Pre-text for a criminal purpose
91I have already explained my basis for believing Officer Hansen concerning the purposes behind the traffic stop and the transition to a sobriety check and then a contravention of the CCA.
92The defendant was patently in violation of the s. 7 of the HTA (validation tag). Moreover, 216(1) of the HTA authorizes a police officer to stop vehicles for highway regulation and safety purposes—such as the side mirror issue—even where the stop is random. This authority cannot be used to exceed its purpose or as a ruse. Stops must be limited to its purpose and unless other grounds arise which permit further detention, the stop must also be brief and limited to the roadside: R. v. Gonzales 2017 ONCA 543; R. v. Ladouceur, 1990 1SCR 1257.
93Nonetheless, even where there is a ‘dual purpose’ or other valid investigative interest (even one short of independent grounds) for a detention, it does not negate the lawfulness of a valid HTA/road safety stop or its Charter compliance. A Court has to look through each stage of investigation at the roadside where other grounds arise that transition an investigation: R. v. Nolet, 2010 SCC 24, [2010] S.C.J. No. 24; R. v. Annette (1984), 17.C.C.C. (3d) 332 (Ont. C.A.); Brown v. Durham Regional Police Force, [1988] O.J. NO. 5274 (Ont. C.A.).
94Officer Hansen maintained that he conducted the traffic stop for HTA purposes. Additionally, Officer Hansen was both at once interested in the information related to the RO (and a possibly armed and dangerous person connected to the RO) and concerned for safety because of it. It would be artificial to expect that this information would not affect how he approached the traffic stop. He requested officer assistance, and after the first approach to the vehicle, after obtaining Garnett Grant’s driver’s licence and vehicle documentation, he waited to proceed further with the sobriety investigation. He conducted further queries and awaited the arrival of other officers. This delay was reasonable in the circumstances for officer safety.
95This case is similar in many respects with the Charter issues addressed by Code J., in R. v. Humphrey 2011 ONSC 3024, [2011] O.J. NO. 2412 (S.C.J.), where a HTA investigation resulted in the roadside seizure of a loaded firearm. In similarly framed Charter arguments, Justice Code rejected the argument that the HTA validation tag infraction was a pretext to investigate and detain the driver who had leased a vehicle that was owned by a person who possibly had criminal gang associates. The officers who were involved in the traffic stop admitted they were interested in the possible gang activities and gathering intelligence. The officers in question were even part of a unit involved in the investigation of street gangs. Justice Code, moreover, found that the safety concerns arising out of the RO’s potential gang associations justified a significant delay in the roadside traffic detention – and delay in 10(b) rights – to await back up.
96I also accept, given all the circumstances, the officer’s evidence that he had a legitimate interest in stopping the vehicle for the HTA investigation and that this legitimately transitioned to a sobriety check then an investigation under the CCA. That the RO and related information added to his interest in this vehicle does not derogate from this.
97As Cst. Hansen put it during cross examination, it would have been negligent for him not to look into the driver’s sobriety given the smell of burnt marijuana. In my view, it also would be negligent of him had he—once he discontinued the belief that Mr. Grant might be impaired—allowed this vehicle to continue on its way on the roadway and seemingly headed to the QEW without satisfying himself that there was not more cannabis readily accessible to the driver. He chose to do this by resort to search powers under s. 12(3) which he was entitled to do. With respect to the passenger, Garret Grant—as I referenced earlier in my findings—he was not ‘detained’ at the traffic stop until he was asked to step out of the vehicle. That was the first occasion that Officer Hansen spoke to him or engaged him in anyway. No officer asked him for his identification; nor any other question. There was some evidence adduced from Officer Short that he spoke to the passenger at some point when he was on-scene, but there is no evidence that this involved anything more than small talk; or as I find to be likely the case that this was in reference to the period when both he and Officer Hansen were trying to convince him to step out of the vehicle by explaining to him their authority under the CCA to search the occupants and vehicle. He initially refused and it took some negotiation. There is no evidence to the contrary. Although the applicant need not testify to establish a detention, particularly a psychological one – I note that he did not provide any direct evidence of a detention. In all the circumstances, I am satisfied Garret Grant was not ‘detained’ during the initial traffic stop and hence, neither his ss. 9 or 10 rights were engaged until the search occurred: R. v. Harris, (2007) 2007 ONCA 574, 87 O.R. 214 (Ont. C.A.)
98I am not satisfied either applicant was arbitrarily detained.
CCA Searches
99When cannabis was legalized in Canada in 2018, the province enacted the CCA, establishing prohibitions relating to the trade and possession of cannabis in order to protect ‘public health and safety’ among other aims, including to deter illicit activities in relation to cannabis through enforcement and sanctions: R v Nzita, 2020 OJ 3109.
100The search power Officer Hansen relied on in this case is found in s. 12(3) of the Act, which must be read in conjunction with subsections (1) and (2):
Transporting cannabis
12 (1) No person shall drive or have the care or control of a vehicle or boat, whether or not it is in motion, while any cannabis is contained in the vehicle or boat.
Exception
(2) Subsection (1) does not apply with respect to cannabis that,
(a) is in its original packaging and has not been opened; or
(b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle or boat. 2018, c. 12, Sched. 1, s. 12 (1).
Search of vehicle or boat
(3) A police officer who has reasonable grounds to believe that cannabis is being contained in a vehicle or boat in contravention of subsection (1) may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it.
Application to cannabis for medical purposes
(4) This section applies to cannabis obtained for medical purposes in accordance with Part 14 of the Cannabis Regulations (Canada) or in accordance with a court order, except in such circumstances as may be prescribed. 2018, c. 12, Sched. 1, s. 12 (2).
101In the course of dismissing a constitutional challenge to s. 12(3) of the CCA in Nzita, Brunet J. had occasion to consider the legislative purpose behind Act:
22 Getting back to the CCA proper, the court has to ask itself, "What is the object of the act and the intention of Parliament?" Section 1 of the act, the CCA, states that the purposes of the act are to establish prohibitions relating to the sale, distribution, purchase, possession, cultivation, propagation and harvesting of cannabis in order to protect public health and safety, protect youth and restrict their access to cannabis. Furthermore, other purposes listed are to ensure the sale of cannabis in accordance with other legislation, to deter illicit activities in relation to cannabis through appropriate enforcement and sanctions.
23 As for the intention of Parliament, or in this case the Provincial Legislature, the court may consider Hansard comments. For example, the Ontario Attorney General stated in the Official Report Debates (Hansard), 115, November 2, 2017 at page 6143:
"A 2014 roadside survey showed that the number of Ontario drivers who tested positive for drugs was more than double the number who tested positive for alcohol. These dangerous misconceptions are particularly prominent amongst young and new drivers. In that same survey, drivers aged 19 to 24 were more likely than any other age group to test positive for drugs and accounted for more than a third of all drug-positive drivers. It is absolutely critical that our law enforcement partners have the right tools at their disposal and that the laws on the books reflect the seriousness of these offences."
24 On October 1st, 2018, the new Attorney General stated, at Official Report of Debates (Hansard), 30, at 1342:
"The Federal Government's legislation of cannabis is now less than three weeks away, and I want to assure all Ontarians that this government will be ready on October 17. [...] Our legislation was designed with key principles in mind: [...] to protect our roads and ensure that our police are ready to enforce a strict prohibition against drug-impaired driving. [...] This legislation was drafted after much consultation with stakeholders and citizens across Ontario. We wanted to ensure we got this legislation right."
102Similarly, Justice of the Peace Leddy addressed the Legislature’s intent in R. v. Burke, [2020] ONCJ 516:
18 During legislative debate leading up to the passage into law of the Cannabis Control Act, in response to a question about what the government is doing to ensure road safety, then Ontario Minister of Transportation John Yakabuski said:
We also launched a very comprehensive public education campaign so that we can educate the public on the dangers of driving while under the influence of cannabis. One thing we want to make absolutely clear to the people out there - there are misconceptions, but we want to make one think absolutely clear: Impaired is impaired, whether it's alcohol or drugs. Our ministry is making sure that we have educated the people with a two pronged approach because we want our highways to be safe. It's our number one priority.
103In Burke Leddy J. compared the search power of the CCA in s. 12(3) to an identical power in the Liquor Licence Act [‘LLA’] and concluded that the legislative intent was the same as the intent of those analogous provisions in the LLA and quoted from McKinnon J., who considered the intent of the LLA provisions while sitting as a Summary Conviction Appeal Court in R. v. J.F (2015) ONSC 3068 at para 68
68 Further, a four to six inch opening would have been ample space to slip a bottle of liquor into the backpack. The purpose of the legislation is, as the trial judge noted, to impede access by drivers, or persons in care and control, to liquor and, in so doing, protect the public. This purpose would be frustrated if a driver or passenger intent on consuming liquor in a vehicle could simply keep a backpack nearby with enough of an opening to slip an open alcoholic beverage into it if necessary to conceal that beverage from the police. To prevent the search of a bag in those circumstances would unduly hinder the police in carrying out the objectives of the legislation.
104J.F. was a Crown appeal following a successful s.8 Charter challenge that resulted in the respondent’s acquittal of charges under the Controlled Drugs and Substances Act. During a search of a parked vehicle pursuant to the LLA search power which mirrors that in the CCA, drugs were located in a backpack At trial the respondent successfully argued that this backpack could not have contained ‘unlawfully kept’ liquor because any liquor in it would be packed in baggage that is fastened closed—and thus legally stored—and the search power could only be used to search where there were grounds that liquor was illegally kept.
105McKinnon J. followed the Court of Appeal’s consideration of the section in R. v. Annett, [1984] O.J. No. 192, granted the appeal, and in doing so noted:
62 Officer McNaught's subjective belief that he had reasonable grounds was, in my view, objectively reasonable. Based on the fact that J.F. was attempting to conceal himself when the officer approached, it seems plausible that J.F. might have just moved from the front of the car, where he would have been more easily seen. Officer McNaught's belief with respect to J.F.'s care and control of the vehicle, coupled with his observation of the three-quarters full bottle of vodka on the vehicle floor, triggered the search power under s. 32(5). It is enough to have reasonable and probable grounds to believe that a person has just contravened s. 32(1) to trigger the search power under s. 32(5). The decision to execute the search need not be contemporaneous with the commission of the offence.
[emphasis added]
106Once Officer Hansen discovered the cannabis on Mr. Grant’s person—which as I have already explained, I find Mr. Grant produced it during a lawful roadside sobriety check—he had the grounds to search the occupants and the car. He did not need independent grounds to believe there would be more cannabis and then only search those areas which could contain illegally stored cannabis.
107Again, this is in keeping with the intent and aim of the section: that is road safety. It is public welfare legislation. Once the officer had grounds that cannabis was being contained in contravention of the Act – which he did when the driver produced that baggy from within his pocket—he was entitled to search the occupants and that vehicle to ensure there was no other cannabis illegally stored and accessible to driver before (ticketing or not the driver and) letting the vehicle go on its way. Moreover, as noted by McKinnon J. in J.F., “[i]t is enough to have reasonable and probable grounds to believe that a person has just contravened s. 32(1) to trigger the search power under s. 32(5). The decision to execute the search need not be contemporaneous with the commission of the offence.”
108Nonetheless, given the evidence of recent consumption of cannabis, the presence of cannabis shake on the centre console, and the driver’s attempted deflection of a further investigation when that baggy of cannabis was produced, there was, objectively, grounds to believe there was more cannabis accessible to the driver. In my view then, if I am wrong on the more expansive view of the search power and J.F. was wrongly decided, Cst. Hansen would have been entitled to search areas in the front cabin of the vehicle, including the occupants, where cannabis could be ‘readily available to any person in the vehicle’.
109Annett is authority in support of the more expansive interpretation of this road safety search power and in line with McKinnon J.’s approach in J.F. The appellant in Annett was convicted of possession of cocaine for the purposes of trafficking. The sole issue on appeal was whether the search which lead to the discovery of the cocaine in the trunk in an airport employee’s car was unreasonable and in violation of s. 8 of the Charter. Plain clothes RCMP officers with the Toronto International Airport detachment were conducting surveillance in the cargo area. They observed an unoccupied vehicle that had an open six-pack of Molson Canadian on the front passenger floor of the vehicle. One bottle, had its capped removed and appeared to have been partially consumed. The vehicle belonged to a ramp employee who the officers knew had an outstanding drug charge. The officers were also aware that there had been considerable thefts of miniature liquor bottles at the airport by employees. The officers watched this unoccupied vehicle for 1.5 hours until this employee and the appellant entered the vehicle. The RCMP officer immediately confronted the owner and advised him he was going to search the vehicle under the ‘Liquor Control Act’. He asked the employee if he had any “splits” from CP Air. In searching the trunk, the officer testified than he was looking for liquor, but he also suspected that drugs or stolen property might also be located during the search.
110In the trunk, the officer discovered 195 grams of cocaine stored inside a bag that also had identification belonging to the appellant. A further 60 grams of cocaine was found in the pocket of the appellant’s parka which was on the rear floor of the car. The trial judge found that it was a ‘multiple purpose search’ but that the officers were acting in good faith and pursuant to the powers conferred by the LLA (referred to as the Liquor Control Act).
111In dismissing the appeal, Martin J.A.’ on behalf of the panel explained:
In our view, the finding of the trial judge that the search was made pursuant to the provisions of s. 48 and was reasonable is a finding which he was entitled to make and it is supported by the evidence. The lawful search was not converted into an unlawful or an unreasonable search because the officers, in addition, had the expectation that the search might also uncover drugs. The evidence obtained pursuant to the search, in our view, was, therefore, properly admitted.
112The appellant unsuccessfully sought leave to appeal. Moreover, the Supreme Court cited Annett with approval in Nolet and is oft-cited in the established line of authority supporting the constitutionality of ‘dual purpose’ stops/investigations.
113This does not mean the police can go beyond the scope or purpose of the power. The police do not have unfettered search powers by invoking this legislation. A lawful purpose cannot be exploited to achieve an impermissible aim: Nolet, para 34-41; Gonzales, para 52-3. What matters, and what a court must critically examine, is the officer’s aim in invoking s. 12(3) of the CCA and that the search is being done to fulfill the legislative aim: as long as that is one of the legitimate purposes of the search.
114When Cst. Hansen invoked the s. 12(3) power, he immediately explained this to Garnett Grant and started to search him then Garret Grant. I find that his aim was to search for further cannabis for the purpose of enforcing the road safety and public welfare purposes of this Act. The searches of both applicants were carried out in a reasonable manner in the circumstances, was lawful and did not impinge upon either of the applicants’ s. 8 protections.
115The handgun was found within minutes of the CCA search power being invoked. At that point, Officer Hansen justified for the search of the vehicle as incident to arrest. He testified that he was “looking for further evidence of a firearm offence, more weapons, evidence of firearms in a holster, box of ammunition …”. The three main purposes of a search incident to arrest are ensuring the safety of the police and public, the protection of evidence from destruction at the hands of the arrestee or others, and the discovery of evidence which can be used at the arrestee’s trial. It must be truly incidental and for the purpose of achieving a purpose. There is an objective aspect to evaluating the officer’s purpose, but it is not a standard of reasonable and probable grounds – just that there is some reasonable basis for doing what the police officer did: Cloutier v. Langlois, [1990] 1 S.C.R. 158; R. v. Caslake, [1998] 1 S.C.R. 51 at para 19-22.
116Applying these principles, the police purposes in searching this vehicle after finding a loaded firearm on a person who had just been inside the vehicle – and reaching into the backseat as he got out falls within two purposes of search incident to arrest: safety and discovery of evidence. I consider as well that this was rental – a vehicle that would be returned to its owner. In all the circumstances there was a reasonable basis to search the vehicle, including the trunk for more weapons or further evidence related to the firearm offence, including evidence tending to prove or disprove who had knowledge and control of that gun.
117Assuming the applicants had standing to challenge the search of the car and the seizure of items from within a bag and a phone Mr. Grant disavowed ownership of inside a rental vehicle, it did not violate their s. 8 rights. The search was a valid exercise of the common law search authority incident to arrest and was carried out in a reasonable manner.
Grounds for the arrest
118Garnett Grant raised the additional argument in submissions that his s. 8 rights were additionally violated when he was arrested for the firearm because he was not in personal possession of the firearm. In support, counsel pointed out that there is no evidence he ever faced charges in relation to the firearm.
119Officer Smith testified that when he heard Hansen yell ‘gun’, he arrested Garnett Grant for unlawfully possessing the handgun. At the time, Officer Smith knew Garnett Grant was the driver and that Garret Grant—from whom the gun was seized—was sitting in the front passenger seat of the vehicle which Garnett Grant had control of at the time. Officer Smith’s grounds were based on at theory of party liability. Officers are permitted to draw inferences in formulating grounds. His grounds were objectively reasonable. As one example, an inference available on the set of facts known to Smith at the time, is that there was a reasonable possibility that the driver, Garnett Grant, knew his passenger had the handgun in the vehicle which he exercised control over.
120This ground fails. If I am wrong in this assessment, it does not advance Mr. Grant’s case for exclusion of evidence. The car was going to be searched once that gun was found incident to arrest and the other contraband found, making the arrest inevitable.
10(a) / 10 (b)
121Garnett Grant was detained as soon at the traffic stop was initiated. He was made aware of the reasons for the initial detention and at each phase as the initial validation tag- HTA detention transitioned into the sobriety check, the CCA investigation and right through to his arrest for the firearm. The law is well settled that a suspension of 10(b) rights is a reasonable limit under s. 1 of the Charter for brief roadside detentions during the course of legitimate road safety investigations, including sobriety checks – so long as they fall within the scope of authorized police action: R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3; R. v. Saunders, [1988] O.J. No. 397 (Ont. C.A.); R. v. Smith, [1996] O.J. No. 372 (Ont. C.A.). I have found above that Cst. Hansen’s conduct fell within the lawful scope of the road safety legislation during Mr. Grant’s traffic stop.
122Cst. Hansen had a legitimate basis to be concerned about Mr. Grant’s sobriety. The inside of the vehicle smelled of burnt cannabis. It was reasonable for him to ask Mr. Grant to step outside the vehicle to get a better assessment of his condition untainted by the smell in the car and to see if there were any noticeable physical impairments in determining what if any investigative tools would be invoked if necessary—keeping in mind he was not a trained drug screening officer. Looking at his physical movements and observing Mr. Grant outside the vehicle was a reasonable way to determine if he needed further investigate tools to confirm or rule out grounds for an impaired. It was momentary and did not add significant delay beyond the usual roadside sobriety questions. This inquiry is driven by the particular facts of each case.
123In R. v. Orbanski; R. v. Elias, the scope of this lawful suspension included having the motorist (Orbanski) perform a physical sobriety test at the roadside which included having the driver recite the alphabet, walking heal to toe, and following the officer’s finger with his eyes. The officer in that case suspected the driver had been drinking but did not feel he had reasonable grounds to believe he was impaired and did not have access to an ASD. Similarly here, Cst. Hansen had suspicion, but no grounds.
124The Supreme Court ultimately concluded in Orbanski; R. v. Elias:
60 For these reasons, I conclude that while both Elias and Orbanski were detained for the purpose of s. 10(b), hence triggering the right to counsel, the operational requirements of the statutory regimes in place in Manitoba prescribed a limitation of the right to counsel. This limitation is justifiable in a free and democratic society given the importance of detecting and deterring drunk driving, the highly regulated nature of driving on public roads, the limits placed by the common law on the types of screening that can be conducted at the roadside, and the limited use that can be made of the compelled evidence collected during the screening process.
125In Smith, the Court of Appeal affirmed that the scope of suspension of 10(b) included taking investigatory steps to determine whether there was evidence to support grounds that a driver is impaired or even to determine if there is evidence to support a demand for a screening device, and allows for more than one investigative step in pursuit of this purpose. The suspension of 10(b) rights is still justified.
126In ruling out the probability he had an impaired driver on his hands, Cst. Hansen was faced with an emerging problem. This driver who just stepped out of a vehicle that smelled of burnt cannabis and who admittedly smoked cannabis a few hours ago had just revealed he had a baggy of cannabis in his pocket. The driver appeared to be headed for the QEW. There was occupant in the car and cannabis shake on the centre console. Would it be prudent to send this motorist on his way with ticket(s) or warnings without resorting to s. 12(3) of the CCA and ensuring there was no more cannabis readily available to the occupants? Cst. Hansen clearly decided it would not be and this decision was reasonable in the circumstances.
127The next issue concerns whether the suspension of 10(b) rights justified under s.1 extends to the CCA search. In the officer’s mind, he treated this investigative step as synonymous with brief HTA investigations in the treatment of rights to counsel. There is no case directly on point that I am aware of, but it would seem to me in applying the same principles that a suspension here is also justified. The exercise of the rights guaranteed by s10(b) would be incompatible with a brief roadside detention required to conduct a search of the occupants and vehicle for road safety purposes—assuming it is a brief detention.
128Justice Code considered this issue in the context of a roadside detention for the purposes of a search under the analogous provisions in the LLA in R. v. Graham, 2018 ONSC 5992. That case involved a traffic stop that transitioned into a LLA investigation and resulted in criminal charges related to a handgun and cocaine seized from a vehicle. In addressing the 10(b) issues raised by passenger, Code J. explained:
51 The s.10(b) issue is more complex. The police undoubtedly delayed advising the detainees of their s.10(b) rights until the time of their arrests. On behalf of the Crown, Mr. Fraser notes that there was an ongoing Highway Traffic Act investigation of both the driver (Pearson) and the rear seat passenger (Fraser). It is only Graham who was not the subject of any Highway Traffic Act investigation. The law is clear that s.10(b) rights are suspended or limited at the time of these roadside investigations, pursuant to s.1 of the Charter, because the exercise of s.10(b) rights is not compatible with the operational requirements of statutory and common law police powers to stop and investigate motor vehicles. Accordingly, the police did not have to advise Pearson and Fraser of their s.10(b) rights at this Highway Traffic Act stage of the investigation. See: R. v. Orbanski, supra at para 41; R. v. Harris, supra at paras 45-49; R. v. Suberu, supra at paras 43-5; R. v. Humphrey, supra at para. 108-114.
52 It would be odd, in the particular circumstances of this case, if the law required the police to comply with s.10(b) in relation to one of the three roadside detainees (Graham) but not in relation to the other two detainees (Pearson and Fraser). It may well be that the same s.1 Charter analysis applies to a roadside Liquor License Act investigation of "open alcohol" in a car, as applies to a roadside Highway Traffic Act or Criminal Code investigation of drinking and driving, licensing infractions, or motor vehicle safety and driving infractions. These various types of roadside investigations are all arguably much the same, in terms of appropriate s.1 limits on s.10(b) rights.
[emphasis added]
129In the end, Code J. resolved the s. 10(b) issue on another point, by finding that the delay in providing the passenger his s. 10(b) rights was a justifiable delay due to officer and public safety concerns.
130Similarly, in this case, the extent to which a suspension of 10(b) is a justifiable limit to conduct a search pursuant to CCA and for how long need not be squarely addressed to resolve this s. 10(b) issue. From the moment the roadside stop transitioned to a search pursuant to CCA to the time the gun was found, was likely inside of five minutes [5]. Once the gun was seized, the defendants were immediately arrested and immediately read their rights to counsel.
131I have also taken into account the cumulative effect of the suspension of 10(b) on Garnett Grant’s rights at each stage of the traffic stop and find it, in totality, fell within the scope of reasonable and necessary measures for road safety purposes and a justifiable limit on his rights under 10(b) of the Charter.
132Had the gun not been found and the rights were suspended for the further 39 minutes it took to search the vehicle – if the search proceeded in the same fashion – I might have come to a different conclusion. This brings me to the area where I have concluded the police violated Garnett and Garret Grant’s rights.
133When read their rights to counsel at the scene, neither wished to call a lawyer.
134Garret Grant mentioned his lawyer’s name, but said he did not need to call him. Later at the police station he maintained this position and elected to not exercise his right to counsel.
135Garnett Grant did not challenge this evidence concerning being read his rights to counsel at the scene post arrest; nor contradict it when he testified. Back at the station, however, when re-read his rights, he elected to exercise his right to counsel and spoke to a lawyer.
136The police station they were ultimately taken to was only 10-15 minutes away. It was midday – presumably there were other available units who could have attended to transport the defendants; and yet, for some inexplicable reason, both defendants were kept secured in separate police cars at the scene the entire time the officers took to search the car. They did not leave the scene until 12:14pm – over an hour after their arrest. Although this did not result in a delay in the implementation of rights to counsel, as neither defendant expressed a wish to speak to counsel at the scene – this contributed to a breach under s. 10(a) of the Charter.
137By noon, the search of the car was complete and both defendants were still on scene and yet neither were advised that they were additionally being held on possession of a controlled substance for the purpose of trafficking. This appreciably changed the jeopardy they faced. One of the aspects of the right guaranteed by s. 10(a) is as an adjunct to the right to counsel. Meaningful exercise of the right to counsel can only occur when a detainee knows the extent of his or her jeopardy: Gonzales, para 124; R. v. Evans, [1991] 1 S.C.R. 869.
138I appreciate that Cst. Hansen was overwhelmed by the results of this dynamic traffic stop and needed to consult with investigators with CIB and the Drug unit to fully identify all the particular substances and determine what the appropriate charges were. Assuming that process had to take the 3.5 to 4 hours that it took to re-arrest the defendants and advise them of the additional drug-related charges they were facing, there is no reason why the police could not have advised them in general terms that they would be facing charges in respect of the possession of the controlled substances that were seized. If this could not be accomplished at the scene, it should have been by the time they were booked at the station, when they had the chance, if so inclined, to exercise their right to counsel.
139I find that the police breached Garnett Grant and Garret Grant’s under s. 10(a) for the delay in advising them that they were also being detained on charges relating to the seizure of controlled substances from the vehicle.
24(2)
140Giving an expansive and generous approach I find that the evidence was obtained in a manner that infringed the defendants’ rights under s. 10(a) of the Charter. Despite this, in applying the Grant analysis, I find that the defendants have both failed to establish that the admission of the evidence at trial would bring the administration of justice into disrepute.
(i) the seriousness of the Charter -infringing state conduct
141The police were not intentional or negligent in the delay in informing the defendants of the additional basis for their detention. In all other respects, the police were prompt and attentive to the applicants’ rights to counsel. Measures were put in place to ensure that the detainee’s rights would be thoroughly re-addressed at the police station which they were. Both defendants had the opportunity to consult counsel in a timely way. The police were acting in good faith and turned their minds to the applicant’s Charter protected rights. Ultimately, 3.5 to 4 hours later, both defendants were not only re-arrested on these additional charges, they were re-read their rights to counsel and were afforded another opportunity to consult with counsel.
142Nonetheless, the right to be informed of the reason for your detention ‘without delay’ is an important adjunct for a detainee to appreciate his jeopardy and in being able to meaningfully exercise her right to counsel; and/or make an informed choice about whether or not to exercise her right to counsel. I also take into account Officer Smith’s questioning of Garnett Grant, including asking about the gun post rights to counsel while in the cruiser, even though at that stage Mr. Grant had not indicated in the affirmative that he wished to speak to counsel. Despite the officers’ otherwise good faith, I assess the seriousness of this violation as moderately serious given how long the delay was. Consequently, this factor militates towards exclusion.
(ii) the impact of the breach on the accused’s Charter -protected interests
143The impact of the breach was minimal. On this record, there is no evidence of any attempted interrogation at the police station. No attempts were made to have them incriminate themselves. Once, they were booked at the station they were placed in holding cells. Garnett Grant did exercise his right to counsel by speaking to his counsel of choice and when he was re-arrested and advised of additional charges, he did not wish to speak to her again even though he was provided that option.
144Garret Grant elected to not speak with counsel. He was given another option to do so when re-arrested and advised of the CDSA charges.
145Moreover, although the evidence ‘was obtained in a manner’, there was no causal connection between the discovery of the evidence and the breach of either applicants’ s.10(a) rights. In my view, this is one of those cases were the lack of causation mitigates the infringement: R. v. Pileggi, 2021 ONCA 4 at para 120.
146This factor favours inclusion.
(iii) society’s interest in the adjudication of the case on the merits
147This factor favours admission. The firearm, drugs and cell phone are reliable and essential evidence for the prosecution. Without the firearm and drugs, there is no case. The charges are extremely serious.
148The firearm is a semi-automatic restricted hand-gun. It was loaded with nine rounds, including one in the chamber ready to fire. Such a weapon in that state has only one purpose – to kill.
149The controlled substances too are dangerous. They are highly addictive. Fentanyl is especially well-known for its highly addictive and deadly qualities even in small doses: R v. Lu 2016 ONCA 479 para 9. The circumstances favour a societal interest in the case proceeding on its merits.
150In balancing these three Grant factors, the applicants have failed to establish that the evidence ought to be excluded.
Trial
151Given Mr. Levien’s reasonable and appropriate concession that if Garret Grant’s Charter application failed that he is guilty of the firearm related charges, I will focus these reasons only on the drug related charges. Before I turn to those, I point out that Garret Grant faces 10 separate counts all related to the same firearm [s.92(2) prohibited magazine, 108(1) defaced serial number, 88(1) weapons dangerous, 90(1) carry concealed, 91(1), 92(1), 94, 95(1)(a), 86(2), 86(1)]. While some of them might reasonably cover different delicts or social harms, many of them are unnecessarily replicas of the same possessory crime. The Crown asked that he be arraigned on all of these counts. I am satisfied based upon all of the circumstances of Mr. Grant’s possession of this firearm, in the condition it was in while in a vehicle, that the essential elements of all 10 counts have been established beyond a reasonable doubt. There will be a finding of guilt on counts 11 to 16. In order to focus the Court time on sentencing, I will deal with the issue of Kienapple with written submissions from the Crown (and the defence if so elects) in advance of sentencing.
Controlled Substances Counts
152The burden is on the Crown to prove the accused's guilt beyond a reasonable doubt. The accused comes before the court with the presumption of innocence. They have a clean slate. The presumption is only discharged when, and if, the Crown proves the accused's guilt beyond a reasonable doubt. The Crown at all times bears the onus of proving the case against the accused. The accused need not prove anything. The Crown is required to prove the essential elements of the offence to the reasonable doubt standard. I must assess the case on the whole and decide whether, on the basis of all of the evidence, or lack thereof, the Crown has proven the guilt of the accused beyond a reasonable doubt; R. v. Lifchus, [1997] 3 S.C.R. 320.
153Garnett Grant testified and denied knowledge and control of the contraband in the vehicle. He also provided evidence exculpating his brother Garret Grant. Garret Grant too is entitled to rely on that evidence. If I believe that evidence, I must acquit. If I do not believe that evidence but it leaves me in reasonable doubt, I must acquit. Even if I am not left in doubt by the Garnett Grant’s evidence, I must still consider, on the basis of the evidence that I do accept, if I am satisfied beyond a reasonable doubt of the guilt of each accused. If I cannot decide whether to believe the accused’s evidence or other evidence that is capable of contradicting the elements of the offence, or if I cannot decide what to believe, or I am unable to resolve conflicting evidence and therefore left in a state of reasonable doubt, I must acquit.
154A criminal trial is not a credibility contest. The Crown has the onus of proving its case beyond a reasonable doubt.; R. v. W.(D.), [1991] 1 SCR 742; R. v. R.E.M., 2008 SCC 51 paras. 66, 67.
155For the reasons provided under my analysis of Garnett Grant’s evidence under the Charter section of this judgment, I reject his evidence. It does not leave me in doubt concerning the guilt of either himself or Garret Grant. I must be mindful, however, and have cautioned myself not to use my findings that Mr. Grant was untruthful as evidence of his guilt. I have used those findings only to reject his evidence – nothing more.
156Putting aside for a moment the substances seized off of Mr. Garnett Grant’s person at the police station, the Crown’s case against the defendants is based on a theory of constructive (and joint possession). Moreover, the Crown’s case is circumstantial. This means in order to convict, an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits. I must consider other possible theories inconsistent with guilt which arise from the evidence or lack of evidence; however, the Crown need not negative every speculative suggestion. As Cromwell J. explained in R. v. Villaroman, 2016 SCC 33:
37 When assessing circumstantial evidence, the trier of fact should consider "other plausible [page1020] theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt: R. v. Comba, [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff'd , [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused": R. v. Bagshaw, [1972] S.C.R. 2, at p. 8. "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation
157To find either defendant guilty of Possession of a controlled Substance for the Purpose of Trafficking, the Crown must prove beyond a reasonable doubt the following elements:
(i) That the defendant was in possession of a substance
(ii) The nature of the substance (cocaine, fentanyl, crack cocaine, methamphetamine)
(iii) That the defendant knew that the substance was a controlled substance
(iv) That the defendant had possession of the controlled substance for the purpose of trafficking in it
158‘Possession’ and ‘for the purpose of trafficking’ are the elements requiring analysis in this case.
Proving Possession
159Possession is defined in s. 4(3) of the Code and includes: personal possession, constructive possession, and joint possession. Any can support the essential element of possession. The Crown’s case engages all three. Knowledge and control are essential elements of possession: R. v. Lights, 2020 ONCA 128; R. v. Morelli, 2010 SCC 8.
160Personal possession requires an accused to know she or he has it and know what it is, while having control over it. Constructive possession is where an accused does not have physical custody of it, but has it elsewhere. ‘Constructive possession is complete where an accused: (i) has knowledge of the character of the thing, (ii) knowingly puts or keeps the thing in a particular place, irrespective of whether the pace belongs to or is occupied by the accused; and (iii) intends to have the thing in the place for the use or benefit of the accused or of another person’: Lights, supra at para 47; Morelli, supra.
Proving the possession was for the purpose of trafficking
161“Traffic" is defined in s. 2(1) of the Controlled Drugs and Substances Act and sets out the varying ways one can ‘traffic’. Like possession, this element can be proved with direct or indirect evidence. No evidence of trafficking per se is required. An intention to do one of the enumerated things in s. 2(1) which constitutes trafficking is all that is required to establish this particular element, whether or not the possessor could or would be successful in trafficking the substance. In this case, there is no direct evidence of an intention to traffic or of trafficking. The purpose of possessing something can be inferred from conduct, the quantity of the drug, the value of the drug, or other items with the drug that are used with the selling, giving, transferring, transporting, sending or delivering.
162In this case, I find that the only reasonable inference that the evidence permits is that Garnett Grant possessed cocaine, crack cocaine, fentanyl and methamphetamine and did so for the purpose of trafficking. I make this finding based upon the following:
- He rented the vehicle, was the driver, and in control of the vehicle at the time this contraband was discovered inside a backpack in the car;
- There is a considerable amount of these four particular controlled substances packed in one large plastic bag in the backpack in eight separate packages, tallied up: 23.4 grams of crack cocaine, 13.2 grams of powdered cocaine, 7.8 grams of fentanyl, and 4.0 grams of methamphetamine;
- The fact that there four different types of controlled substances in that plastic bag;
- Controlled substances such as these are valuable commodities and dangerous ones – especially the fentanyl. The amount and quantity of drugs tells us they are valuable. It is common sense they remain in the control of their owner or with someone who is trusted to hold them for him/her for safe-keeping. To ensure safekeeping, the guardian of the drugs would have to know what they are to keep them safe: R. v. McIntosh, [2003] O.J. No 1267 (S.C.J.) at para 12; R. v. Bains, 2015 ONCA 677 para 157. See R. v. Thompson, 2020 ONCA 361 para 10-11 for the proposition that there need not be direct evidence on the value of commodities such as drugs and firearms;
- These 8 packages were stored not in Ziplock-style baggies with a fastener, but in what appeared to be teared off pieces of plastic that were knotted shut;
- Garnett Grant had two baggies of controlled substances hidden inside his underwear when he was processed at the police station following his arrest. One contained 2.6 grams of crack cocaine. The other baggie contained 1.7 grams of fentanyl, contained in what appears to be a piece of ripped plastic knotted shut. It was the same purple colour and packaged the same as the fentanyl seized from within the backpack in the vehicle;
- The ZTE phone was located in the console area – an area controlled by and accessible to the driver. This ZTE phone contained recent text messages – including from the previous day – indicative of drug trafficking and evincing the user of the phone as the trafficker – not the buyer;
- Several pictures out of the thousands of pictures on the phone were of Garnett Grant, including two selfie-style photos.
163I am mindful there is an absence of the kind of evidence that is often present in possession for the purpose prosecutions. For instance, no expert testified opining on the purpose for which these drugs were possessed. There was no evidence of any scales or other such devices to weigh portions of the substances for sale; however on this last point, I note that each of the 4 substances were already portioned into separate baggies. For instance, and this includes the substances in Mr. Grant’s underwear, there were 3 separate packages of fentanyl totalling 9.5 grams. There was two packages of powdered cocaine: one with 12.2 grams and a small one containing 1 gram. There were 3 baggies of crack cocaine all totalling 26 grams (12.4 grams + 11 grams + 2.6 grams). Regarding the lack of expert, I find on the totality of the evidence, with the ZTE phone evincing recent trade in substances in proximity to both Mr. Grant and the substances, possession for the purchase of trafficking is an available—and indeed the only reasonable—common sense inference.
164I have come to a different conclusion concerning the 1.5 oxycodone tablets that were located in a separate compartment of this backpack. Given the quantity and the fact that they were stored separately, it is a reasonable inference that these tablets are possessed for personal use and I am left in a reasonable doubt on the possession of the oxycodone for the purpose of trafficking count, but find Mr. Grant guilty of the simple possession count of oxycodone.
165I did not factor the cash seized upon arrest in my conclusions concerning the ‘for the purpose of’ element relating to the cocaine, fentanyl or methamphetamine. As I noted in my review of the facts, there were some sloppy aspects to the handling of the exhibits. There was a disconnect between Officer Hansen’s evidence as the seizing officer and Officer Cruciano’s evidence – owing no doubt to the delay in several days to their processing. Except for the package of seven tablets of oxycodone which there is no admissible evidence about where it was seized from, I am nonetheless sure on the basis of all the evidence about what drug was found and where, including the two packages of suspected cannabis. The cash is another story. Officer Hansen spoke of bundles of money and the bundles of $10s being from Garnett Grant and all the other money coming from the pocket of the jacket Garret Grant put on just before his arrest; however, it is not clear if he ever opened the bundles and counted the money or just handed off the “bundles” to Officer Cruciano. There is a disconnect as between their evidence about where this money originated – so I have not considered the large bundles of money in my findings of guilt on Garnett Grant.
166With respect to Garret Grant, I am left in a doubt as to whether he had knowledge of the controlled substances. He did not have any drugs in his personal possession. He was not the driver. He was however in possession of a loaded handgun, considered a tool for the trade; and in certain factual circumstances the combination of personal possession of a gun with drugs stored in a car could lead to an inference of knowledge. This is not one of those cases. I do believe it is more likely than not he was in joint possession and if the substantial bundles of money the Crown ascribed to him were in fact in his possession that would make the inference stronger that he was in on a joint enterprise with his brother, but I cannot be sure even if he did have this money.
167Accordingly there is a finding of not guilty for Garret Grant related to all 6 CDSA counts (counts 1 to 6).
168In conclusion, I find:
- Garret Grant: guilty of counts 7 – 16, not guilty of counts 1 – 6
- Garnett Grant guilty of counts 1 – 4 & 6, not guilty of count 5
Released: February 12th, 2021 Signed: Justice A. Calsavara
Footnotes:
1Cst. Hansen was challenged on this evidence. It was suggested in cross-examination that he was lying, that he had observed the passenger at the gas station and had to have been able to see into the car at some point prior to the stop. The defence pointed to Cst. Short’s evidence in support. Cst. Short testified that when he arrived at the traffic stop and walked towards the vehicle he observed two occupants. He explained that he was able to do this by looking at both [side] mirrors. In my view, his evidence is not inconsistent with Cst. Hansen’s evidence that the tint was too dark for him to see the passenger. By the time Officer Short arrived, the passenger window was already down about 5 inches. Officer Short is a more experienced officer. I accept Hansen’s evidence on this point. Whether or not he looked at the side mirror and would have been able to see the passenger as he approached with the window up is unknown, but, in any event, there is no reason for Cst Hansen to lie about this point. He was heavily crossed on this area, was unshaken and his evidence made sense.
2Officer Smith was the first officer to arrive to assist. He estimated that he got there at 10:40am and that the defendant, Garnett Grant was with him after Hansen searched him by 10:42am but I find given the other evidence that Officer Smith’s estimate of times are inaccurate
3There was some debate at trial about exactly when Officer Hansen placed Officer Short at the scene. He was cross-examined on this point about a potential discrepancy. In my view, to the extent there is a discrepancy, it turns on when Officer Hansen noticed Officer Short as opposed to when Officer Short arrived.
4This is an exact quote of Mr. Grant’s evidence which I noted and verified by listening to the Digital Recording Device.
5Officer Short arrived on scene at 10:58 and early enough to see Mr. Grant pull a baggy of cannabis out of his pocket. The arrests of the defendants for the possession of the firearm was at 11:05am.
