ONTARIO COURT OF JUSTICE
DATE: 2024 03 04 COURT FILE No.: Toronto 21-15004498
BETWEEN:
HIS MAJESTY THE KING
— AND —
R. BALKARAN, S. ILANGOVAN, P. PARAMANANTHAN and S. THAYANITHY
Before: Justice Newton-Smith
Heard on: March 6, 7, 8, 9 and December 20, 2023
Reasons for Judgment released on: March 4, 2024
Counsel: A. Rudra, counsel for the Crown M. Bavaro, counsel for the accused R. Balkaran B. Pearson, counsel for the accused S. Ilangovan M. Engel, counsel for the accused P. Paramananthan N. Jackson, counsel for the accused S. Thayanithy
RULING RE CHARTER APPLICATION
I. OVERVIEW
1On August 20, 2021, shortly after 11 am, Officer Crosby pulled over a car on King Street West in downtown Toronto. Mr. Balkaran was driving the car. The remaining three accused were passengers. The stop began as a Highway Traffic Act [HTA] investigation into a seatbelt infraction and turned into a search pursuant to the Cannabis Control Act [CCA]. Two guns were found in the car, one was under the driver’s seat and the other was in the glove compartment. A quantity of marijuana was also found. After the guns were found all four accused were arrested and charged with various offences relating to the guns.
2All four accused allege that their s. 7, 8, 9, 10(a) and 10(b) Charter rights were infringed and seek exclusion of the evidence seized pursuant to s. 24(2) Charter.
3The Applicants allege that the initial vehicle stop was racially motivated thus tainting the entirety of the investigation. It is additionally the position of the Applicants that Officer Crosby lacked the necessary grounds to conduct a CCA search.
4The Applicants also allege that their s. 10(a) and 10(b) Charter rights were triggered by the CCA investigation, and that the failure to read them their rights to counsel until after their arrest violated those rights.
5Lastly, the Applicants allege that the delay between being given the informational component of their s. 10(b) Charter rights and the implementation of those rights was unconstitutional.
II. HISTORY OF THE PROCEEDINGS
6All four accused were charged with various offences in relation to the guns that were found in the car.
7Mr. Paramananthan was further charged with two counts of breaching a s.109 weapons prohibition and three counts of breaching a probation order.
8Mr. Ilangovan was further charged with breaching a s.109 weapons prohibition and was also charged under the HTA with failing to wear a seat belt.
9Mr. Thayanithy was charged under the CCA with being in possession of more than 30 grams of cannabis.
10Mr. Balkaran was charged under the CCA with operating a motor vehicle while cannabis was readily accessible.
11The Charter Application was brought collectively by all four accused and the trial proceeded as a blended voir dire.
12Following submissions on the Charter Application, and prior to my ruling with respect to it, directed verdict applications were brought by all of the accused except Mr. Balkaran, the driver.
13On December 22, 2023 I gave my rulings orally with respect to the directed verdict applications. All of the charges against Mr. Thayanithy, the rear passenger, were dismissed. The charges relating to the gun under the driver’s seat were dismissed as against Mr. Paramananthan, the front passenger. The charges relating to the gun in the glove box were dismissed as against Mr. Ilangovan, the rear driver side passenger.
14This is my ruling with respect to the Charter Application.
III. THE EVIDENCE
15The Crown called three witnesses: Officer Crosby, Officer Saffioti and Officer Osei-Wusu.
16Officer Crosby initiated the traffic stop. He was subsequently joined by his partner Officer Saffioti who assisted with the search. Officer Osei-Wusu came on scene later. He assisted with booking the accused at the station and made the calls to counsel.
17All three officers were equipped with body-worn cameras [BWC] which captured almost the entirety of the vehicle stop, the search and the interactions with the accused.
(i) The Motor Vehicle Stop
18Shortly after 11 am on August 20, 2021 Officer Crosby was driving westbound on King Street West in a marked police cruiser. As he approached a traffic light at Atlantic Avenue a car travelling in the same direction passed him in the left-hand lane. It was a 4-door Camry driving so fast that it caught the officer’s attention. Officer Crosby stopped at the light. He testified that there was a pedestrian crossing at the light who appeared to be concerned that the Camry wasn’t going to stop. At the last minute the Camry did stop at the light.
The HTA Investigation
19When the Camry stopped Officer Crosby looked over. The windows on the passenger side closest to Officer Crosby’s cruiser were down. He testified that he could see that one of the passengers in the rear, Mr. Ilangovan, was not wearing a seatbelt. Officer Crosby activated the lights on his cruiser and called out to Mr. Ilangovan asking why he was not wearing his seat belt. He motioned for the driver, Mr. Balkaran, to pull over.
20Officer Crosby testified that once he “called out the offence” Mr. Ilangovan put on his seatbelt “almost immediately”.
21When the Camry pulled over Officer Crosby stopped behind it. Prior to getting out of the car he called for his partner, Officer Saffioti, to attend. Officer Crosby testified that it was common practice for him to ask for his partner to attend a stop if he was alone and outnumbered.
22At 11:13, just prior to getting out of his cruiser and approaching the Camry, Officer Crosby turned on his BWC.
23Officer Crosby testified that as he first approached the car he was investigating the HTA seatbelt violation. In his initial interaction with the occupants Officer Crosby explained that he had pulled them over because “he [Mr. Ilangovan] wasn’t wearing a seat belt”. Mr. Ilangovan can be heard on the BWC responding, “sorry about that”.
24As he was standing by the car interacting with the occupants Officer Crosby noticed what he described as a “very pungent” smell of marijuana coming from the car. It was at this point, he testified, that the investigation turned from the HTA seatbelt violation to a CCA investigation. After obtaining the driver, Mr. Balkaran’s, licence and registration and identification from Mr. Ilangovan, who had not been wearing his seatbelt, Officer Crosby returned to his cruiser.
The CCA Investigation
25As he walks back to his cruiser, Officer Crosby can be heard saying into his BWC, “that vehicle smells like marijuana right now, I won’t be doing anything until my partner gets here”.
26Officer Crosby testified that he had been trained in distinguishing between the smell of burnt and unburnt marijuana and working downtown he had become very familiar with the smell of marijuana. He testified that the overwhelmingly pungent smell was unburnt marijuana but he also detected a faint smell of smoky burnt marijuana. The pungency of the smell of the unburnt marijuana led him to believe that it was readily accessible in the car and therefore not lawfully stored.
27It was at this point, Officer Crosby testified, that he formed the grounds to search the car and persons inside under the CCA for further evidence of the offence of unlawful storage of marijuana. It was also at this point, when the investigation turned from the HTA violation to a CCA investigation, that none of the occupants of the car were free to leave.
28Officer Crosby testified that he did read the accused their rights to counsel at this point because he did not believe that he was required to give rights to counsel during the course of a provincial offences act investigation.
29After returning to his cruiser Officer Crosby can be heard on his BWC asking Officer Saffioti over the radio if he is going to be “making his way down to the traffic stop”. Officer Saffioti responds saying, “did you call for me earlier? I totally didn’t here that, sorry”, to which Officer Crosby says, “yeah, if you could get down here that would be great”. Officer Crosby can then be heard telling dispatch, “As I said into my BWC earlier, I could smell marijuana coming from that vehicle but there are four occupants so I got to wait for my back up to get here before we confront those drivers about that”.
30As he was waiting in his cruiser Officer Crosby spoke into his BWC saying, “the passenger is smoking a cigarette, I don’t know if it is possibly to mask the smell of marijuana”. Officer Crosby also testified that as he was sitting there waiting he observed the back seat occupants of the car moving around. It caught his attention enough that he made a note of it, but he could recall nothing else about the movement in the back seat.
31While he was waiting Office Crosby “ran” Mr. Balkaran and Mr. Ilangovan’s identification. Nothing came back for Mr. Balkaran. Officer Crosby testified that he recalled that Mr. Ilangovan may have had a criminal record but he could not recall what as it was nothing that caused him any concern.
32Officer Saffioti arrived at 11:20. Officer Crosby directed his partner to park in front of the Camry blocking it in. Officer Saffioti testified that as he walked by the Camry he got “quite a strong” odour of unburnt marijuana.
33Officer Saffioti testified that from the moment that he arrived on scene none of the occupants of the car were free to go.
Muting #1 11:21:48-11:22:13
34At 11:21 the two officers had a brief conversation outside of their cruisers. Officer Crosby can be heard on the BWC saying, “muting to speak to partner” following which both officers mute their BWCs for a total of 25 seconds.
35Officer Crosby testified that while the BWC was muted he was having a brief investigative conversation with his partner. Officer Crosby could not recall exactly what was said, only that generally he was explaining to Officer Saffioti why he stopped the vehicle and his intention to conduct a search of the occupants and vehicle.
36Officer Saffioti testified that the conversation that they had was a “pretty basic debrief” in which Officer Crosby explained that the reason for the stop was an HTA infraction but that the car smelled like cannabis.
37Officer Crosby testified that at the time, August of 2021, they had only been equipped with BWCs for a few months. It had been his understanding at that time that they were supposed to mute their mics when speaking to other officers for “investigative purposes”. Officer Crosby testified that at the time he thought that having a discussion with his partner about grounds fell under “investigative technique”. Looking back, it was his evidence that “today” he wouldn’t mute his mic for such a conversation. He testified that now that he is much more used to the BWC he no longer mutes it for discussions about grounds and other investigative purposes. It was his evidence that at the time the BWCs were new and he was still trying to work out when to mute.
38Officer Saffioti also testified that it was not a conversation that he would mute today, but at the time he thought that such conversations between officers were something that they were supposed to mute.
(ii) The Searches
The CCA Search of the Occupants
39At 11:22 the BWC shows Officer Crosby standing by the Camry with Officer Saffioti. Officer Crosby tells the accused that he called for his partner because of the strong smell of marijuana. He tells them that marijuana in a car has to be in a secure bag away from everyone and says, “it reeks like freshly smoked”. As Officer Crosby is talking Mr. Thayanithy can be heard saying, “I have a marijuana…”. Officer Crosby cuts him off saying, “I know but it reeks” and proceeds to direct them to get out of the car one at a time starting with the driver, Mr. Balkaran.
40Officer Saffioti testified that he heard the male in the backseat, Mr. Thayanithy, say that he had marijuana. Mr. Thayanithy, who had a large plastic bag with him, told Officer Saffioti that he had a marijuana licence.
41Officer Crosby testified that he heard Mr. Thayanithy say something about a licence but explained that whether or not one of the occupants had a licence to possess marijuana in an amount over 30 grams, he still believed that marijuana was being improperly stored in the car.
42Mr. Balkaran, the driver, was the first to be searched by Officer Crosby. Mr. Balkaran had a baggie on him. As he retrieves the baggie Officer Crosby can be heard on the BWC saying, “this could possibly explain the smell but my nose is pretty good for that and it reeks”.
43When the search of his person was completed Officer Crosby directed Mr. Balkaran to stand to the side while the remaining passengers are searched.
44Mr. Ilangovan, the rear driver side passenger, was searched next. Mr. Ilangovan was wearing two cross body satchels. Officer Crosby testified that one of the satchels contained rolling papers, and the other one which was empty was large enough to fit a firearm.
45Mr. Paramanathan, the front passenger, was the next to be searched. As he is searching Mr. Paramanathan Officer Crosby can be heard on the BWC saying, “where is that smell coming from”.
46Mr. Thayanithy, rear passenger side passenger, was the last to be searched. As he gets out of the car at 11:26 he can be seen on the BWC bringing a large ripped plastic shopping bag with him. Officer Crosby says, “Is that the weed in there?” and then explains, “the new Canadian laws say it has to be stored correctly… that doesn’t mean you’re getting banged up with a large ticket”.
47Officer Crosby testified that the large white plastic bag had a hole in it and was not properly fastened. Inside of it he could see loose marijuana buds on top of a game console as well as more plastic bags, some of which were fastened closed and some which were not. There was a strong odour coming from the bag.
48The bag that Mr. Thayanithy was holding contained 186.2 grams of loose dried flower cannabis.
49Officer Saffioti stood by while Officer Crosby searched the occupants. His BWC captures what is happening with the accused outside of the car. Officer Saffioti can be heard telling the accused, “if you guys have any questions I’m happy to answer them.” A few minutes later at 11:27, after Mr. Thayanithy has gotten out of the car with the large bag of marijuana, Office Saffioti can be heard explaining to them, “even if you have a licence you have to have a proper seal, it’s like having open booze, that’s what we’re doing right now.”
50Officer Saffioti testified that he was trying to “making sure everything was cool” by explaining to the occupants step by step what was happening and reassuring them that they would try not to keep them there too long.
Muting #2 11:28:05-11:28:19
51At 11:28:05 both officers again muted their mics, this time for 14 seconds.
52Officer Crosby testified that he muted his mic because he was having a conversation with Officer Saffioti. He could not recall exactly what was discussed but thought it was likely to do with the fact that they were going to be searching the car.
53In cross-examination it was put to Officer Crosby that he muted his mic at this point so that he could say to his partner “let’s see what we can find”. Officer Crosby denied any such conversation and responded that the accused were in close proximity, less than 5 feet away, at the time and within earshot.
54Officer Saffioti testified that they were probably just going over what had happened, but he had no recall of the conversation.
The Search of the Car
55When the mics are turned back on Officer Crosby can be heard telling the accused that he is going to search the car for unlawfully stored cannabis. By this point all four accused were sitting around a large planter on the sidewalk beside the car.
56When asked why, if he had found the source of the odour, he continued on to search the car Officer Crosby testified that the car still had a very strong smell and he believed that he had grounds to search the car to satisfy himself that there was no more unlawfully stored marijuana.
57The search of the car is captured on the BWCs. The search begins with Officer Saffioti at the front passenger door and Officer Crosby at the driver’s door. Officer Saffioti can be seen looking around the front passenger seat and trying unsuccessfully to open the glove compartment. As Officer Saffioti is doing this, Officer Crosby leans into the driver’s side of the car. Officer Crosby can be seen on the BWC looking down at the floor under the driver’s seat, exclaiming, “Hey, I got a gun here!” and yelling out, “all of them under arrest”. All four accused are then ordered to the ground by the officers.
58Officer Osei-Wusu arrived on scene at around this time and assisted with the arrests.
59Officer Crosby testified that he was caught completely off guard by the presence of a gun. It was when he opened the driver door and looked down at the floor that he noticed what looked like the barrel of a gun pointed towards him from under the driver seat. Officer Crosby testified that he had to push the seat back in order to retrieve the gun.
60He described himself as nervous and in “sensory overload” having never previously been involved in a motor vehicle stop with a gun. His first thought was to get the occupants into custody and prove the gun safe. Officer Crosby did not investigate how accessible the gun would have been to the rear driver side passenger, but testified that it could have been.
61Once the accused were in the custody of Officer Osei-Wusu, Officers Crosby and Saffioti returned to the search of the car.
62Officer Saffioti returned to the front passenger door and again tried to open the glove compartment. This time he was able to yank it open, and can be heard on the BWC exclaiming, “I got another gun here!”. Officer Saffioti testified that this time when he went back to try the glove box he tried using a key from the car key chain but it didn’t work, so he just yanked harder and it opened. He didn’t think that the glove compartment was locked but couldn’t be sure.
(iii) The Arrests and Rights to Counsel
63At 11:31 Officer Crosby placed all of the accused under arrest for possession of a firearm and told them, “before I read your rights to counsel properly I suggest you all remain silent”. He then returned to the Camry.
64Officer Osei-Wusu, who had arrived on scene at around this time, assisted with the arrest and search incident to arrest of the four accused. He described the situation as dynamic. Two of the accused appeared to be reaching behind their backs and fiddling around. This was of particular concern to the officers in light of the firearm that had just been found in the car.
65Officer Crosby testified that he was very concerned that there were two guns lying on the seat of a motor vehicle on a busy downtown street with pedestrians walking past. His primary concern at that point was the safety of the public, himself and his fellow officers. As a result he decided to return to the car to prove the firearms safe rather than reading the occupants their rights to counsel.
The Reading of the Rights to Counsel
66All four accused were handcuffed and seated on the sidewalk around a large concrete planter. At 11:32 Officer Saffioti read them their rights to counsel individually starting with Mr. Balkaran, the driver.
67In response to the question, “Do you want to speak with counsel”, Mr. Balkaran first said no, and then asked Officer Saffioti if he meant “now or at the station”. Officer Saffioti responded, “at the station” and moved on to Mr. Ilangovan.
68Mr. Ilangovan, responded to the question by saying, “yeah, at the station”. Officer Saffioti then moved on to Mr. Paramananthan.
69Mr. Paramanathan responded “yes”. Officer Saffioti asked him if he had his own lawyer, to which Mr. Paramanathan said “yes”. Officer Saffioti told him that he could speak with his lawyer at the station where he would be given privacy and moved on to Mr. Thayanithy.
70Mr. Thayanithy responded “yes” and when asked if he had his own lawyer, he said “no”. Officer Saffioti told him, “we’ll get duty counsel for you at the station”.
Muting #3 11:39:54-11:42:05
71At 11:39, there is a conversation between Officers Crosby, Saffioti and the sergeant who arrived on scene which is muted for 2 minutes and 11 seconds.
72Officer Crosby testified that he muted his mic so that he could have an investigative conversation with his partner and the platoon sergeant who had just arrived. Again Officer Crosby could not recall exactly what was said, only that he was briefing the sergeant and telling him that the stop had started as an HTA investigation that lead to a CCA investigation which led to finding the firearms.
73Officer Saffioti testified that the conversation was about the standard stuff every officer should be doing after an arrest and about what steps had been taken up until the arrest. He testified that he couldn’t recall the conversation but guessed that it was just about the circumstances of the stop and his involvement.
Transport to the Station
74A wagon large enough to transport all four accused to the station was called for.
75There was some discussion amongst the officers about the arrival of the transport vehicle. Officer Crosby testified that he was considering transporting the accused individually in the various cruisers that had arrived on scene if the wagon didn’t arrive quickly enough. These discussions are captured on the BWC footage.
76Both Officer Crosby and Officer Saffioti testified that getting the accused to the station as quickly as possible was a priority because there was nowhere at the scene where they could safely be left in privacy to speak with counsel.
77The transport wagon arrived on scene at 11:44.
78Officer Saffioti testified that once at the station the accused would be given their rights to counsel again during the parade. Because none of the accused had asked to speak with a specific lawyer, Officer Saffioti did not have any information that he felt was necessary to pass on to the transport officers.
The Booking Process
79Officer Osei-Wusu followed the wagon to the station. He arrived at the station at 12:41.
80At the station Officer Osei-Wusu assisted with the parade and booking process for each of the four accused. Once all four accused were booked and lodged in cells he began to make calls to counsel on their behalf. When asked if there were any other officers available to assist with making calls to counsel, Officer Osei-Wusu testified that he couldn’t recall. It was his evidence that he just knew that he was the one making the calls and he didn’t see anyone else around.
81Mr. Balkaran was the first accused to be paraded at 12:50. When his booking was finished he was placed in a cell at 13:09. Officer Osei-Wusu placed a call to duty counsel for Mr. Balkaran almost two hours later, at 15:05.
82Officer Osei-Wusu testified that the reason for the delay was that he was assisting with all of the other bookings and did not begin to make calls to counsel until after all four accused had been paraded and booked.
83Mr. Ilangovan was next to be booked at 13:13. He was finished at 13:28. Officer Osei-Wusu called duty counsel for Mr. Ilangovan an hour and 40 minutes later at 15:10.
84In the booking video Mr. Ilangovan can be heard saying that he has a lawyer and needs to contact his parents to get the number. When asked why he called duty counsel instead of assisting Mr. Ilangovan to get in touch with his lawyer, Officer Osei-Wusu testified that he had no recollection or notes of Mr. Ilangovan asking for a particular lawyer. He agreed in court that watching the booking video Mr. Ilangovan did say that he had a lawyer and needed his parent to get the information for the lawyer. When asked why he took no steps to assist Mr. Ilangovan with finding the information for his lawyer, Officer Osei-Wusu would say only that he couldn’t recall what was said at the station and that it was his practice to call duty counsel when a lawyer’s last name is not provided to him. It was put to Officer Osei-Wusu in cross-examination, “you took no steps to figure out who his counsel of choice was”, and he responded, “I can’t answer that”.
85Mr. Thayanithy was the next accused to come in to the station at 13:39. His booking was completed at 14:05. Officer Osei-Wusu called duty counsel for Mr. Thayanithy an hour and 15 minutes later at 15:20.
86The last accused to be booked was Mr. Paramanathan who entered the station at 14:11. His booking was finished at 14:32. Approximately 25 minutes later, at 14:58, Officer Osei-Wusu called Mr. Paramanathan’s lawyer, Mitch Engel. This was the first call that he made to counsel for any of the accused.
87When asked what he was doing in the 25 minutes after the last accused was booked and the first call to counsel was made, Officer Osei-Wusu testified that he had to put his property where it belonged, return his vehicle and he probably used the washroom.
The Implementation of the Rights to Counsel
88The only further evidence with respect to the implementation of the accused’s rights to counsel was contained in the following agreed statement of facts:
At 16:06 DC Yepes put Mr. Ilangovan in touch with his lawyer of choice, a lawyer from Vakili Law Group.
At 16:40 DC Sivanathan put Mr. Paramathan in touch with his lawyer of choice, Mitch Engel.
At 16:50 DC Sivanathan put Mr. Thayanithy in touch with his lawyer of choice, Mitch Engel.
At 16:55 DC Sivanathan, put Mr. Balkaran, who also asked to speak with Mitch Engel, in touch with him.
III. THE CHARTER ARGUMENTS
89The Charter Application was brought jointly by all four accused. They allege violations of their s. 7, 8, 9, 10(a) and 10(b) Charter rights and seek exclusion of the guns that were found pursuant to s. 24(2) Charter.
(i) The Allegation of Racial Profiling – Sections 8, 9
90The Applicants allege that Officer Crosby’s decision to stop their vehicle was racially motivated and constituted an act of racial profiling. They submit that the traffic stop was “merely a ruse for a criminal investigation” instigated because the accused are four young brown men.
91This argument turns largely on a credibility assessment of the evidence of Officer Crosby.
92Officer Crosby testified that he pulled the vehicle over because Mr. Ilangovan was not wearing a seatbelt.
93When Officer Crosby first approached the vehicle his BWC was on. He can be heard explaining to the occupants that “he [Mr. Ilangovan] wasn’t wearing a seat belt” to which Mr. Ilangovan responds, “sorry about that”.
94There is no real dispute that Mr. Ilangovan had in fact not been wearing a seatbelt when their car pulled up beside Officer Crosby on King Street. I accept that this is the reason Officer Crosby initiated the traffic stop.
95The Applicants’ position is that the seatbelt infraction was a “ruse” used to justify a stop based on the Applicants’ skin tone. In support of this they point to the fact that the Applicants are all brown and that Officer Crosby called for his partner to attend. The Applicants argue that there would be no reason for Officer Crosby to ask his partner to attend for a seat belt infraction, and this is therefore evidence that he was interested in something criminal and potentially dangerous.
96The seatbelt infraction was not a ruse it was a fact. Nor do I find anything inherently suspicious in the fact that Officer Crosby called his partner.
97Officer Crosby was straightforward and frank in his evidence. He testified that “it can be lonely” on the road. It was his evidence that it was common practice for him to call for his partner to attend if he was alone and outnumbered as he was here. I accept this. It is prudent policing.
98Throughout his interactions with the accused Officer Crosby was polite and respectful. There is nothing in the evidence from which racial profiling can be inferred. The fact that the four accused are brown was inconsequential to Officer Crosby’s decision-making process. Every step he took was justified and explained by the events as they unfolded.
99Racism is a fact in our society, and exists in policing as elsewhere. This does not mean, however, that every time a racialized person is investigated an act of racial profiling occurs. Toronto is a multicultural city. There was nothing unusual about the Applicants’ skin tone. Mr. Ilangovan was in violation of the HTA and Officer Crosby was enforcing that Act.
(ii) The Grounds for the CCA Search – Section 8
100It is the Applicants’ position that, setting aside the issue of racial profiling which if found would invalidate the search, Officer Crosby lacked the grounds to conduct a search of the occupants and vehicle pursuant to the CCA. The Applicants’ submit that smell alone cannot provide grounds for a search. Additionally, they submit that the officers had an obligation to investigate further prior to conducting a search once Mr. Thayanithy told them that he had a licence to possess marijuana.
101Officer Crosby testified that when he first approached the car he immediately smelt an overwhelmingly pungent smell of unburnt marijuana and a faint smell of smoky burnt marijuana. The pungency of the unburnt marijuana led him to believe that it was readily accessible in the car and therefore not legally stored pursuant to the CCA.
102As he walked back to his cruiser following the initial stop Officer Crosby said into his BWC, “that vehicle smells like marijuana right now. I won’t be doing anything until my partner gets here”. He also told dispatch, “I could smell marijuana coming from that vehicle but there are four occupants so I got to wait for my back up to get here before we confront those drivers about that”.
103Officer Saffioti testified that when he arrived on scene a few minutes later and walked past the Applicants’ vehicle he smelt “quite a strong” odour of unburnt marijuana.
104I accept the officers’ evidence that there was an overwhelming smell of unburnt marijuana in the car. The source of the smell was revealed during the search. Mr. Thayanithy had an open plastic bag containing a large amount of marijuana some of which was loose and not packaged.
105Section 12 of the CCA permits an officer to search a vehicle and its occupants where the officer has reasonable grounds to believe that there is cannabis in the vehicle that is packed in baggage that is not fastened closed or is otherwise readily available to any person in the vehicle.
106The Applicants submit that the officers were obligated to inquire into the marijuana licence that Mr. Thayanithy told them he possessed. The fact that Mr. Thayanithy may have had a licence to possess marijuana in larger amounts, does not address the issue of whether or not the marijuana was legally stored in the car. There was no obligation on the officers to investigate Mr. Thayanithy’s licence. Their concern was not with the possession of marijuana but with the manner in which it was being transported.
107The Applicants rely heavily on the Court of Appeal decision in R. v. Polashek, 1999 ONCA 3714, [1999] OJ No. 968 (CA) in support of their submission that the smell of marijuana alone cannot provide grounds for a CCA search.
108In Polashek the Court held at para 13 that, “the sense of smell is highly subjective and to authorise an arrest solely on that basis puts an unreviewable discretion in the hands of the officer. By their nature, smells are transitory and thus largely incapable of objective verification.” However, the Court also made clear that they were not “going so far” as to say that the smell of marijuana can never provide the requisite reasonable and probable grounds for an arrest.
109Polashek was about grounds for an arrest for possession of marijuana, at a time when marijuana was illegal. The CCA come into effect 18 years later in 2017.
110Other courts have since held that the smell of burnt marijuana alone does not provide grounds to believe that cannabis is being improperly transported: R. v. Omar, 2022 ONSC 5032 at para 32, R. v. Grant, 2022 ONSC 2472 at para. 129. The smell of burnt marijuana, however, is distinguished from the smell of fresh marijuana.
111In Grant, after finding that the smell of burnt marijuana was not enough, in the circumstances of that case, to believe that marijuana was being improperly stored, Spies J went on to observe, at para 129, that the smell of fresh marijuana might give “reasonable grounds to believe there was an open source of fresh marijuana in the vehicle in which case it would be reasonable to believe that it was not being transported legally.”
112In this case both officers testified to smelling a strong odour of fresh unburnt marijuana. Unlike the odour of burnt marijuana, from which it is difficult to infer time of consumption, a strong odour of fresh marijuana is not evidence of consumption of marijuana, it is evidence of the presence of marijuana in unsealed packaging.
113I accept the officers’ evidence that there was a strong odour of fresh marijuana coming from the vehicle. A strong odour of fresh marijuana provides grounds to believe that there was marijuana that was being improperly stored.
114I find that Officer Crosby had grounds to believe that there was marijuana in the car that was readily accessible to the occupants and not properly stored. This provided grounds objectively and subjectively for a search of the vehicle and its occupants pursuant to section 12 of the CCA.
(iii) The Muting of the Body Worn Cameras – Section 7
115The Applicants submit that the officers muted their BWCs in order to hide discussions which would reveal their racist motivations and lack of grounds for the stop and search of the vehicle and its occupants.
116I have already found that there was nothing racist or untoward in the motivations and actions of the police that morning. There were objective and subjective grounds for the initial HTA stop and the subsequent CCA searches.
117There is no evidentiary basis for the assertion that something of relevance to the defence was lost in the three brief periods of time when the officers BWCs were muted. I find that this situation is akin to that in R. v. Mohamed, 2022 ONSC 4705, and can do no better than to quote Justice Campbell at para. 47:
There is no basis to infer an effort to conceal communications that might have revealed police misconduct or exculpatory evidence for the defence and hence no basis to claim a violation of the s.7 of the Charter or an impact on fair trial rights protected by section 11(d) of the Charter. The choices of the officers, insofar as they deviated from the Toronto Police Service’s written policies on use of the cameras, had no direct or indirect effect on the interests protected by ss.8, 9 and 10(b) of the Charter. The officers’ choices appear to me to reflect mainly a mistaken assumption that the audio function is intended to capture only verbal interactions between officers and the public when the policy actually allows only more circumscribed exceptions to continuous recording. None of this has constitutional implications.
(iv) The CCA Investigation – Sections 10(a) and (b)
118It is the Applicants’ position that their detention was the result of racial profiling and unlawful from the outset. Consequently their s. 10(b) Charter rights arose immediately once they were detained. Alternatively, the Applicants’ position is that any suspension of their s. 10(b) Charter rights for the purposes of the HTA investigation was lifted once grounds were formed to conduct a search pursuant to the CCA.
119It is settled law that s. 10(b) Charter rights are temporarily suspended while the police stop a motor vehicle for road safety purposes such as an investigation into a suspected HTA violation. As summarised by Petersen J. in R. v. Kanneh, 2022 ONSC 5413, at para 63:
The jurisprudence clearly establishes that a temporary suspension of rights to counsel is justifiable in such circumstances pursuant to s.1 of the Charter. But the suspension must be brief and is only reasonable in so far as it can be justified by concerns for officer or public safety, or by the operational requirements of the exercise of statutory and common law police powers to stop a motor vehicle for road safety purposes.
120There is a growing body of case law which holds that roadside investigations under the CCA are analogous to HTA investigations: R. v. Orbanski, 2005 SCC 37 at paras 54-60, R. v. Tully, 2022 ONSC 1852 at paras 143-157, R. v. Kanneh, 2022 ONSC 5413 at paras 54-63.
121Here the Applicants were informed of the reasons for the initial HTA investigation. When the investigation turned into a CCA investigation they were informed of this turn of events. Officer Crosby explained to the Applicants that marijuana in a car has to be in a secure bag away from everyone and because of the strong smell he was going to be searching them. Throughout the search of the Applicants Officer Saffioti explained to them what was happening and why.
122There was no breach of the Applicants s. 10(a) Charter rights.
123It is the Applicants’ position that once grounds existed for a search pursuant to the CCA they should have been given their section 10(b) Charter rights. I do not agree.
124In R. v. Byfield, 2023 ONSC 4308 Barnes J., in considering whether s. 10(b) Charter rights were suspended during a CCA investigation, came to the following conclusion at para 136:
Therefore, it follows that in analyzing the scope of the police power under road safety legislation, the question to be answered is whether in all the circumstances, the full information and implementation of s. 10(b) Charter rights will unreasonably impede the police's ability to lawfully comply with the provisions of the statute and frustrate the important public purpose the legislation is intended to achieve. When the answer to this question is in the affirmative, the individual's s. 10(b) Charter rights should be suspended; however, the said suspension should be no more than is required to reasonably facilitate the lawful exercise of the police authority under the legislation. The protections provided by s. 10(b) Charter remain a valid consideration, and therefore any such suspension must be brief: Orbanski; R v Elias, R. v. Thomsen, 1988 SCC 73, [1988] 1 S.C.R. 640.
125In the circumstances of this case, where the four Applicants were stopped on a busy downtown street, it was imperative for operational and safety reasons that the search be conducted as quickly as possible. Complying with the informational component of s. 10(b) Charter for the four accused would have significantly extended the amount of time that they were detained prior to the search.
126In R. v. Grant, 2021 ONCJ 90, [2021] OJ No 744 (C.J.) Calsavara J. found that s.10(b) Charter rights were suspended for the purposes of a CCA investigation and search of a vehicle and its occupants, stating at para 127, “The exercise of the rights guaranteed by s. 10(b) Charter 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.”
127In this case the CCA search of the accused was conducted as quickly as reasonably possible.
128I find that in the circumstances of this case the s. 10(b) Charter rights of the accused were suspended during the initial HTA stop and the CCA search.
(v) The Criminal Code Arrests – Section 10(b)
129When the first gun was found at approximately 11:30 am the already dynamic situation suddenly became potentially very dangerous. There were four accused standing on a busy downtown street, two police officers and a gun. Civilians were walking by in very close proximity to both the car and the accused.
130Once the first gun was found all of the accused were immediately told that they were under arrest. Officer Crosby yelled out, “before I read your rights to counsel properly I suggest you all remain silent”. It took a minute or two to secure the four accused and as soon as that was done they were given their rights to counsel.
131All four accused responded to their rights to counsel in a way which indicated that they wished to exercise that right. They were told at the scene that they could speak to counsel at the station.
132The officers testified that affording the four accused the opportunity to speak with counsel privately at the scene was not possible. This was a reasonable assessment of the situation. They were in the middle of a busy downtown street.
133As a result the officers were actively concerned with ensuring that the accused be transported to the station as quickly as possible so that their rights to counsel could be exercised. The officers concern with securing timely transport for the accused is apparent on the BWC footage. The wagon arrived on scene at 11:44, less than 15 minutes after the arrests.
(vi) The Implementational Component of the Right to Counsel
134When the wagon did arrive the accused were all transported to the station together.
135Officer Osei-Wusu, who followed the transport wagon, arrived at the station at 12:41 pm.
136While there was no evidence as to why it took almost an hour to get the accused to the station, I accept that reasonable efforts were made to get them there as quickly as possible. However, once at the station the evidence does not support a finding that reasonable efforts were made to facilitate their rights to counsel as quickly as possible.
137Officer Osei-Wusu testified that it was he who was making the calls to counsel for all four accused. He was also assisting with the booking of each accused. As a result Officer Osei-Wusu did not start making any calls to counsel until almost 2 ½ hours after he had arrived at the station with the accused.
138When asked whose decision it was that he be tasked with making the calls to counsel, Officer Osei-Wusu was not able to answer. Nor could he answer why this task fell to him. When asked why he did not enlist the help of another officer Osei-Wusu answered only that he, “just knew he was the one making the calls” and he “didn’t see anyone else around”.
139In the booking video, in the presence of Officer Osei-Wusu, Mr. Ilangovan can be heard saying that he has a lawyer and needs to contact his parents to get the number. When asked why it was duty counsel he contacted for Mr. Ilangovan Officer Osei-Wusu was not forthcoming in his responses.
140In examination in chief, cross-examination and re-examination Officer Osei-Wusu was pressed on this point. The most he would say was that he could not recall what was said by Mr. Ilangovan during the booking process. When it was put to him that he took no steps to try to find out who Mr. Ilangovan’s counsel of choice was Officer Osei- Wusu responded, “I can’t answer that”.
141It is an agreed statement of fact before the court that each accused, including Mr. Ilangovan, did ultimately speak to their counsel of choice. Mr. Ilangovan at 16:06, Mr. Paramananthan at 16:40, Mr. Thayanithy at 16:50 and Mr. Balkaran at 16:55. However, I do not have any evidence as to how that happened, nor does it explain Officer Osei-Wusu’s apparent disinterest in facilitating Mr. Ilangovan’s access to his counsel of choice.
142I find that Officer Osei-Wusu’s approach to implementing the rights to counsel for these four accused fell short of constitutional requirements. I would describe it is lackadaisical. His approach was essentially, “I’ll get to it when I get to it”. While it is clear that Officer Osei-Wusu was occupied with booking each accused, he took no steps to address the problem and evidenced no interest in doing so.
143He was unable, or unwilling, to testify as to whose decision it was to make him responsible for contacting counsel for all four accused. Nor could he explain why this task fell to him, or why he took it on, when it was not feasible for him to act on contacting counsel for hours. He did not ask for another officer’s assistance, nor did he try to take steps to make the calls after each booking.
144It is difficult to understand why this task was not delegated to an officer with the ability to contact counsel in a timely fashion. There was no evidence before me of any particular situation at the station that day that made it impossible, or at least very difficult, to have someone tasked with contacting counsel who was not also tied up with the booking of the four accused.
145It is also clear that Officer Osei-Wusu was not particularly concerned with making sure that he was contacting counsel of choice. It was his evidence that unless he was given a last name for a lawyer he called duty counsel. Mr. Ilangovan clearly stated that he had a lawyer and needed to contact his parents to find the lawyer. Officer Osei-Wusu offered no explanation in his evidence for why he ignored this.
146On the evidence before me there is no good explanation for the delay between the completion of the booking process for each accused and the implementation of their rights to counsel.
147For Mr. Balkaran the delay was just under 2 hours. For Mr. Ilangovan it was an hour and 40 minutes. For Mr. Thayanithy it was an hour and 15 minutes. For Mr. Balkaran it was about 25 minutes.
148I find that during this time period the accused’s s. 10(b) Charter rights were violated.
(vi) Section 24(2)
149Evidence may only be excluded pursuant to s. 24(2) Charter where it was obtained in a manner that violated the accused’s Charter rights. The connection may be causal, temporal or contextual, or any combination of these three, as long as it is not too tenuous or remote: R. v. Griffith, 2021 ONCA 302 at para. 52.
150I have found that there was a violation of s. 10(b) Charter. There is no causal connection between the breaches and the discovery of the evidence but they are temporally and contextually connected.
151Assuming that connection is neither tenuous nor remote, I will address the Grant factors to determine whether or not the evidence should be excluded pursuant to section 24(2) Charter: R. v. Grant, 2009 SCC 32.
152There was a failure on the part of the police to implement the accused’s s. 10(b) Charter rights in a timely fashion. This is a serious breach. However, there is no evidence before me of a systemic problem or pattern of Charter-infringing conduct. While I am not prepared to say that Officer Osei-Wusu acted in good faith given his failure to evidence in his testimony any concern or attention to the issue, neither do I find that he was acting in bad faith.
153The impact on the accused’s Charter rights was minimal. All four accused did eventually speak with counsel of choice. The firearms were discovered prior to the Charter infringing conduct and nothing flowed from the breach.
154The evidence found was real reliable evidence that is essential to the Crown’s case. The admission of the evidence would advance the court’s truth seeking function, whereas its exclusion would result in a stay of proceedings. The charges are very serious and society has a strong interest in the adjudication of this case on its merits.
155The seriousness of the s. 10(b) Charter breach weighs in favour of exclusion, although not heavily in the circumstances of this case. The minimal impact of the Charter breaches weighs in favour of inclusion and society’s interest in an adjudication of the case on its merits weighs heavily in favour of inclusion.
156I find that in balancing the three Grant factors the long-term repute of the justice system is better served by admitting the evidence.
Released: March 4, 2024 Signed: Justice Newton-Smith
