ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
JOSEPH HOGGAR
Before Justice Leonard Kim
Heard on July 15, 16, 17, and 19, 2024.
Reasons for Judgment released on October 30, 2024.
D. Bradley counsel for the Federal Crown
C. Bottomley counsel for the accused, Joseph Hoggar
Overview
1On October 17, 2024, I convicted Mr. Hoggar of seven offences, but reserved to provide detailed written reasons. As promised, these are my reasons.
2The accused, Joseph Hoggar, pleaded not guilty to the following charges on the Information:1
i) Resisting Arrest, s. 129(a) of the Criminal Code;
ii) Possession of a firearm knowing its possession was unauthorized, s. 92(1) of the Criminal Code;
iii) Being an occupant in a vehicle knowing there was a firearm (9mm Glock 26 Gen 5 handgun), s. 94 of the Criminal Code;
iv) Unlawful possession of a loaded prohibited firearm without having authorization or license and a registration certificate (9mm Glock 26 Gen 5 handgun), s. 95(1) of the Criminal Code;
v) Unlawful possession of fentanyl for the purposes of trafficking, s. 5(2) of the Controlled Drugs and Substances Act;
vi) Unlawful possession of cocaine for the purposes of trafficking, s. 5(2) of the Controlled Drugs and Substances Act;
vii) Possession of property obtained by crime (Canadian currency of a value exceeding $5000) knowing that all or part of the property was obtained by an offence punishable by indictment, s. 354(1)(a) of the Criminal Code.
3The evidence in support of the above charges was seized by police pursuant to a search incident to arrest for the offences of possession of cocaine and fentanyl for the purposes of trafficking on April 19, 2023. A comprehensive search of Mr. Hoggar personally and the motor vehicle he was operating included the following evidence:
i) Cocaine 668.8 grams with an estimated street value between $41,000 and $68,000;
ii) Fentanyl 141.59 grams with an estimated street value between $28,200 and $42,300;
iii) $50,836.20 in Canadian currency of which $234.10 was located from Mr. Hoggar’s right pocket and $6532.10 from his left pocket. $44,070 was found in various hidden areas of a 2007 green Nissan Altima operated by Mr. Hoggar;
iv) A 9 mm Glock 26 Gen 5 handgun (prohibited firearm) and two loaded magazines hidden inside the rear driver’s side door of the Nissan;
v) Packaging material inside the Nissan;
vi) Three cell phones.
4On the date of the arrest, the investigating officer, Cst. Bonish, conducted surveillance on Mr. Hoggar within the immediate vicinity of a known drug house in Sudbury. He was observed to have two brief interactions with two separate individuals that the investigating officer believed to be consistent with drug transactions.
5Within a week of these observations, the officer had received confidential informant information from another officer that a green Nissan with a specified license plate number was being used by a black male to sell cocaine in Sudbury and that this male was from the Toronto area and brings up “one to two kilos.”
6Approximately eight to nine months prior to the surveillance and arrest of Mr. Hoggar, the investigating officer received additional confidential informant information from various officers sourced to five different informants. Taken together, in the summer of 2022, the officer concluded that a black male going by the street name “Oil”, identified as the accused, was coming from Toronto and actively trafficking in fentanyl, cocaine, and crack cocaine in Sudbury. This information was in addition to a tip from an informant approximately 39 months prior to the arrest that linked the accused to the street name “Oil”, and to be associated with illicit drug activity in Sudbury.
7The trial commenced on July 15th, 16th, 17th, and 19th, 2024. Mr. Hoggar brought an application alleging breaches under sections 8, 9, 10(a), and 10(b), of the Canadian Charter of Rights and Freedoms and sought exclusion of the evidence pursuant to section 24(2) of the Charter upon application of the three lines of inquiry in Grant.2
8The lawyers agreed to conduct the Charter application in a blended format with the trial proper. The Crown called the primary investigating officer, additional officers involved in the handling of several confidential informants, an officer from the tactical unit who conducted the initial arrest at the scene, and an officer from the forensic identification unit who seized and examined a firearm and ammunition extracted from the motor vehicle operated by Mr. Hoggar at the time of the arrest.
9The Defence did not call any evidence on the Charter application or on the trial. I have considered all the evidence and the submissions of both counsels. Any failure to refer to a specific portion of the evidence or submission is not a reflection that I have not considered the evidence or submission.
10For the reasons that follow, I would dismiss the Charter applications brought under s. 8 and 9 and find that the arrest and ensuing search incident to arrest were lawful. Upon application of the totality test in Depot, I find that the combination of informant information taken together provided Cst. Bonish with highly compelling information that Mr. Hoggar was actively engaged in trafficking fentanyl and cocaine in Sudbury in the lead up to his arrest on April 19, 2023. However, there was a breach of Mr. Hoggar’s Charter rights under s. 10(a) and (b) as it relates to the delay in notifying him of the additional evidence found during the search of the Nissan and resulting change in his jeopardy. Applying the three lines of inquiry in Grant, I would not exclude the evidence pursuant to s. 24(2) of the Charter.
11On the trial proper, with the evidence admitted, I have found that the possession offences have been proven beyond a reasonable doubt in accordance with the legal test for circumstantial evidence in Villaroman.3 On the direct evidence in support of the charge of resisting a peace officer, there was ample evidence to find guilt at the standard of beyond a reasonable doubt.
The Admitted Facts
12Mr. Hoggar admits that he was the driver and sole occupant of the green 2007 Nissan Altima bearing the license plate CYAR 452 at the time of his arrest on April 19, 2023.
13In addition to the description and circumstances of the items seized, Mr. Hoggar has admitted that the handgun is a prohibited firearm and that the extended magazine is a prohibited device. He also admits that he is not a holder of a license or authorization to possess the seized magazines and the prohibited firearm. Continuity of all items seized is admitted.
ISSUES:
14To decide this case, the issues I must address are as follows:
Section 9 Charter: Did Cst. Bonish possess the requisite reasonable grounds to arrest Mr. Hoggar? [para. 15]
Section 8 Charter: Was the warrantless search of the Nissan operated by Mr. Hoggar a lawful search incident to arrest? [para. 134]
Were the searches of Mr. Hoggar and the Nissan conducted reasonably? [para. 174]
Was there a breach of s. 10(b) of the Charter by delaying the implementation of Mr. Hoggar’s rights to counsel between the time of arrest to the time of his first phone call with Defence counsel? [para. 193]
Did the police breach section 10(a) and (b) of the Charter by delaying the notification of the additional charges, the change in jeopardy and the informational and implementation components of rights to counsel upon discovery of evidence during the search of the Nissan? [para. 220]
If there was a breach, should the evidence seized by the police incident to arrest be excluded in accordance with the Grant test pursuant to section 24(2) of the Charter? [para. 241]
Has the Crown proven that there is no other reasonable inference other than guilt for the possession offences? (Villaroman) [para. 279]
Has the Crown proven the offence of resisting a peace officer beyond a reasonable doubt? [para. 336]
Issue 1 – Section 9 Charter – Did Cst. Bonish possess the requisite reasonable grounds to arrest Mr. Hoggar?
The relevant experience of the Investigating Officer, Cst. Bonish
15The Crown called Cst. Jason Bonish, the investigating officer, as its first witness. A considerable amount of time in the Crown’s examination in chief focused on the experience and training of this officer in relation to drug investigations. This information will form part of the court’s analysis as it relates to the reasonableness of the grounds formed to arrest Mr. Hoggar.
16Cst. Bonish has been a police officer with the Greater Sudbury Police Service (“GSPS”) since 2007. At the material times, he was assigned to the Intelligence Unit from 2017 to the end of 2023. His duties in this unit included investigations involving human trafficking, guns and gangs and drug related matters. During this period, he worked closely with the Drug Unit, particularly from February 2022 to July 2023.
17He has been involved in approximately 100 to 300 drug related investigations in his policing career. Approximately half of these drug investigations involved cocaine and these duties included being an affiant for warrants, an exhibit officer and surveillance duties which also included the handling of confidential informants since 2013.
18He has experience on a surveillance team in conjunction with the Ontario Provincial Police (“OPP”) which focused on a cocaine trafficking investigation which took place in 2020 to 2021. Since then, the majority of Cst. Bonish’s work on the Intelligence Unit involved surveillance related to cocaine, crack cocaine and fentanyl trafficking investigations.
19Prior to April 19, 2023, the date of the arrest involving Mr. Hoggar, Cst. Bonish recalls that he had arrested individuals for possession of cocaine for the purpose of trafficking on approximately thirty to fifty occasions. As it relates to confidential informants (“CI”), he has handled approximately thirty numbered informants that have provided information to him regarding the trafficking of cocaine, crack cocaine or fentanyl. He has spoken to approximately 200 informants who are quite frequently, addicted to these substances.
20In a general sense, these informants would provide information to him regarding cocaine trafficking in Sudbury that included, quantities, street value being paid, how the drugs were packaged, who’s selling, descriptions of the seller, how they met them, the duration of their interactions, whether their information was firsthand or from other sources, vehicles used by the seller and locations of this activity.
21Cst. Bonish has arrested approximately 20 individuals for possession of fentanyl for the purposes of trafficking and has been an affiant for fentanyl and cocaine cases for approximately eight matters and 15 occasions as an exhibit officer where he handled fentanyl. Of the 30 cases where he has been a CI handler, approximately 10 cases involved fentanyl. He has been a part of a surveillance team following approximately 20 persons involved in the trafficking of fentanyl.
The CI tip in January 2020 – The Link from “Oil” to Joseph Hoggar
22Initial steps in investigating Mr. Hoggar with respect to trafficking in illicit drugs in Sudbury commenced in January 2020, almost 39 months prior to the date of the arrest. There was no formal investigation launched at this point, however, incremental investigative inquiries were made by Cst. Bonish looking into a confidential tip alleging that Mr. Hoggar was actively involved in the illicit drug trade in Sudbury.
23When asked by the Crown how Cst. Bonish was able to identify the male driver of the Nissan on the date of his arrest on April 19, 2023, he expressed that since 2020, he has been receiving confidential information linking a black male with the alias “Oil”.
24He explained that on January 22, 2020, he received information from a past, proven CI that a man known as “Oil” was at the residence of a woman in Sudbury with the alias “Rainbow”, who herself is known to traffic in illegal drugs locally.
25The CI specified that “Oil” was at Rainbow’s residence, loaded up with “soft” also known as cocaine, and that he drove a black car that was parked in front of her residence, a location familiar to this officer.
26The name “Oil” was interpreted to be a street name. In Cst. Bonish’s experience, individuals from out of town that traffic in illicit drugs in Sudbury almost never use their true name in order to conceal their identity.
27According to Cst. Bonish, this CI is a past, proven informant. Over the course of several years, this person has provided confidential information to this officer that has resulted in the issuance of 11 search warrants leading to arrests as well as nine street arrests.
28However, in cross-examination, Cst. Bonish admitted that he did not ask the CI if he or she was under the influence of cocaine either during the time the observations were made or when the tip was communicated. It was also admitted under cross-examination that some form of compensation was supplied for the CI.
29Within 20 minutes of receiving this information, Cst. Bonish notified his supervisor and attended at Rainbow’s apartment and located a 2018 black Kia with a particular license plate. He checked the Ministry of Transportation (“MTO”) Records and ascertained that this black Kia was registered to Suzie Hoggar with an address in Ajax, Ontario, and a date of birth in the year 1962.
30Cst. Bonish admitted during cross-examination that because he was not on duty and a lack of available surveillance resources, he was unable to arrange for formal surveillance to corroborate this tip.
31He did, however, make further inquiries on police databases of any names associated with Suzie Hoggar from Ajax, Ontario. This led Cst. Bonish to Joseph Hoggar, with a date of birth in the year 1990. This male individual had a criminal record for trafficking in a controlled substance from the Niagara Region. This is the same offence that Mr. Hoggar was ultimately arrested for on April 19, 2023.
32A photograph of Mr. Hoggar including his driver’s license information on the MTO database was also reviewed by the officer. On a subsequent occasion, this driver’s license photo was shown to the CI who in turn positively identified the male individual in the photograph as, “Oil,” the same man present at Rainbow’s residence on January 22, 2020, driving a black car4 in possession of cocaine and utilizing that street name.
33During cross-examination, despite these details being omitted from the Investigative Action Report (“IAR”) he authored, Cst. Bonish asserted that prior to showing the MTO photo to the CI, the informant had previously provided a physical description of “Oil” to him.
34With this information in mind, on or about January 22, 2020, Cst. Bonish concluded that the male individual using the street name “Oil” was in fact, Joseph Hoggar.5 The possibility of “Oil”, now identified as Joseph Hoggar, to be trafficking in illegal drugs in Sudbury was for the first time, brought to the attention of Cst. Bonish.
35Although a black car was in fact parked in front of the home of a known drug trafficker, with the passage of time, the lack of any meaningful corroboration by the police significantly weakened the compelling nature of this evidence as it relates to my analysis of whether the police had reasonable probable grounds to arrest Mr. Hoggar for the offences of trafficking in cocaine and fentanyl on April 19, 2023. Considered in isolation, this information would not provide Cst. Bonish with the grounds to arrest Mr. Hoggar.
36However, my analysis in determining whether this officer subjectively believed that Mr. Hoggar was engaged in the sale of illicit drugs on April 19, 2023, and whether his belief was objectively reasonable, is not limited to this particular tip from this CI and the information derived from it.
37I am required to consider the totality of the circumstances as well as consider whether the tip was compelling, corroborated and from a credible source.6 This requires me to consider additional observations and information provided to Cst. Bonish leading up the to the date of the arrest.
Identification of Mr. Hoggar in Sudbury on September 15, 2022
38Cst. Bonish testified in chief that he had observed Mr. Hoggar in other investigations in Sudbury. For example, on September 15, 2022, he was conducting an unrelated investigation and observed a vehicle to be parked on the side of McLeod Street and noticed Mr. Hoggar exit the passenger side of the vehicle and walk some distance away towards an old-age home located on Regent and McLeod Street. Cst. Bonish insisted that he was able to immediately identify Mr. Hoggar.
39While in the parking lot of this senior’s home, Mr. Hoggar was seen entering the driver’s side of another vehicle with the license plate CVCM 564 which was registered to a numbered company. A woman was seated in the front passenger seat. Mr. Hoggar drove this vehicle a short distance away and parked it on the side of the road facing oncoming traffic.
40Shortly thereafter, Mr. Hoggar exited the car and began running towards Lily Creek. Due to heavy traffic, Cst. Bonish was unable to continue his surveillance but managed to photograph him and confirmed his identity. He recognized this male individual as “Oil”, also known as Mr. Hoggar.
41With respect to identity, in his many years as an officer involved in drug investigations, Cst. Bonish is unaware of any other person utilizing the street name “Oil” other than Joseph Hoggar in the City of Greater Sudbury. He believes that when people refer to “Oil”, they are in fact referring to Mr. Hoggar.
42These observations are peculiar, but they are also incomplete. They do not include a complete picture of the circumstances of how and why Mr. Hoggar was in this specific area of Sudbury to begin with. The activities of Mr. Hoggar are open to too many interpretations, some of which could be completely innocuous and disconnected from any suggestion of drug trafficking.
43As it relates to grounds to arrest, I place no weight whatsoever on the observations by Cst. Bonish of Mr. Hoggar on September 15, 2022, other than to acknowledge that it serves as another instance where Cst. Bonish was able to positively identify Mr. Hoggar in person in Sudbury.
August 2022 – Information from Five Informants regarding “Oil”
44In August 2022, Cst. Bonish made specific inquiries of other Sudbury officers as part of a focused investigation targeting the drug trafficking activities in Sudbury of Joseph Hoggar, also known as “Oil”. At the same time, communication with the Durham Regional Police Service was established with a view of sharing intelligence based upon his belief that Mr. Hoggar was bringing drugs from his hometown of Ajax to sell in the Sudbury area.
45The following Sudbury officers responded to Cst. Bonish’s inquiry by providing him with information they received from five individual CIs in the summer of 2022. Each tip made reference to “Oil”:
i) Det. Cst. Archer;
ii) Det. Cst. Mussen (two separate confidential informants);
iii) Det. Cst. Ricciuto;
iv) Det. Cst. MacRae.
46Each of these officers provided him with “safe” information from various informants that contained descriptions of the manner in which the alleged trafficking was carried out by “Oil” (alone or with assistance), including physical descriptors of the man that utilized this street name. He was described as a black male with a heavier set build.
47The information also included the make, model, and license plates of various motor vehicles and cell phone numbers believed to be utilized by Mr. Hoggar in the sale and distribution of cocaine, fentanyl, and crack cocaine in Sudbury in the summer of 2022.
48With respect to credibility, none of the CI handlers had identified any concerns or history of false or misleading information being supplied by each informant. The information that Cst. Bonish received included a track record of credibility and reliability for each informant.7 For example, some of the documents characterized the informant as either a first time, unproven informant while other documents described a different informant with a history of proven information that had resulted in arrests, search warrants being issued, or items seized, all within the illicit drug trafficking context.
49The totality of this information led him to believe that Mr. Hoggar was actively trafficking in fentanyl, cocaine and crack cocaine in Sudbury and had been for “the last couple of years”, between 2020 to 2022. He knew “Oil” was Joseph Hoggar. Cst. Bonish concluded that this collection of information from the various CIs corroborated each other given their similarities in content.
50One of the officers, Cst. MacRae, characterized these summaries as “living documents”, meaning that they were constantly being updated when more information by an informant was supplied, and whether they resulted in any arrests or charges being laid, or drugs seized. This information was subsequently summarized in redacted multi-page source documents by each handler specific for each informant at a later date.
51In the summer of 2022, Cst. Bonish considered this information as part of his focused investigation into the alleged drug trafficking activities of Mr. Hoggar.
The Essence of the CI Tips from the Summer of 2022
52At the time he formed his grounds to arrest on April 19, 2023, Cst. Bonish was unable to distinguish between the various specific sources of CI information each individual handler had communicated to him in the summer of 2022. He was also unable to specify the historical characterization of each CI as it related to their credibility and reliability, and whether past assistance provided by each CI had produced arrests or search warrants.
53However, Cst. Bonish testified that he was able to grasp a general theme of this evidence and confirmed that to the best of his knowledge, none of these CIs had a history of misleading or providing false information to police.
54This general theme in this collection of CI information he received in the summer of 2022 provided him with the following subjective grounds to arrest Mr. Hoggar:
i) “Oil” is a black male from the Toronto area coming to Sudbury to traffic in fentanyl, cocaine, and crack cocaine;
ii) He uses different motor vehicles to sell drugs and the colour of these vehicles change;
iii) Some informants state “Oil” has people assisting him while other informants are silent on whether or not he works alone or with others;
iv) Some informants provided locations where “Oil” was at the time they made their observations.
55Cst. Bonish testified that he formed a subjective belief in the summer of 2022 that Mr. Hoggar was actively trafficking in fentanyl and cocaine in Sudbury. This was approximately eight months prior to making his observations of Mr. Hoggar on the day of his arrest on April 19, 2023.
Information provided to Cst. Bonish days prior to the Arrest
56Within a week of April 19, 2023, Cst. Bonish received confidential informant information from Cst. Hutchinson pertaining to a specific motor vehicle parked in front of 3 Jane Street, a known location for drug illicit activity in Sudbury. The following details were provided to Cst. Hutchinson by CI #6:8
i) A Green Nissan was being used by a black male to sell cocaine;
ii) He is from the Toronto area;
iii) He brings up 1 to 2 kilos;
iv) The license plate number of the green Nissan was CYAR 452.
57Most of this information was received firsthand from the informant, but some of it was not. It was then forwarded by Cst. Hutchinson to Cst. Bonish through text messages and discussions. There was additional information provided by CI #6 to Cst. Hutchinson in relation to this tip that was not deemed “safe”, or in other words, would run the risk of revealing the identity of the CI.
58In cross-examination, Cst. Bonish explained that in his experience in dealing with CIs in Sudbury, they have frequently characterized individuals from the Southern Ontario region as generically from “Toronto.” He further maintained that while he was aware that Mr. Hoggar had a driver’s license with an Ajax address, that to Sudburians, this would still be considered the general Toronto area, as provided in the tip. In other words, he did not see this as a significant distinguishing feature of the CI tip and Mr. Hoggar’s known profile.9
The Surveillance at 3 Jane Street on the day of the Arrest
59On April 19, 2023. Cst. Bonish was investigating an unrelated matter that brought him to a known drug house at 3 Jane Street in Sudbury. He was aware that this residence was used as a drug house to sell illicit substances in the past.
60While in this area, he came across a green Nissan Altima (“Nissan”) parked in front of this address with a license plate number CYAR 452.
61The make, model, license plate and colour of the Nissan matched the information provided by CI #6 to Cst. Hutchinson, and relayed to Cst. Bonish less than a week prior.
62A search of the registered owner revealed a numbered company based out of Hamilton, Ontario. At the time of his surveillance, Cst. Bonish was unaware that this Nissan was in fact a rental vehicle.
63Cst. Bonish set up surveillance on the green Nissan and notified Sgt. Todd Marrassato who was in the geographical area assisting in an unrelated investigation. At 10:55, Cst. Bonish observed Emmanuel Deguaro, an occupant of 3 Jane Street, exit the side driveway of this residence, walk down the driveway, and proceed on foot southbound on Jane Street.
64At the time of this observation, the officer was aware of Mr. Deguaro’s background that included an arrest for drug-related activity. Surveillance of him in other drug-related investigations provided Cst. Bonish with knowledge that this particular residence had been utilized in the past to facilitate the selling of illicit drugs.
65On April 19, 2023, at 11:00, a blue Jeep pulled in behind the green Nissan and parked on the side of the road in front of 3 Jane Street. Mr. Deguaro, having now returned five minutes after leaving on foot, exited the front passenger seat while an older white male in a red plaid coat exited the driver’s side. The officer did not recognize this older white male. Both men walked towards the side entrance area of the residence out of sight from this officer. This observation was photographed and included in the group of photos at Exhibit 3, Tab B.
66At 11:25, Cst. Bonish observed the back of the head of a larger black male (later identified to be Mr. Hoggar) enter the driver’s side of the green Nissan. The officer did not recognize this individual at this point of the investigation but given his observations, he determined that the CI tip forwarded to him by Cst. Hutchinson a few days prior was corroborated. It was clarified during cross-examination that Cst. Bonish saw the black male come from the same area on the left side of the driveway, where the side entrance to 3 Jane Street is believed to be.
67At 11:27, the older white male in the plaid coat emerged from the side of the residence, waved to Mr. Hoggar, and then entered the driver’s side of the blue Jeep that then departed.
Mr. Hoggar’s brief encounter with the woman and return to 3 Jane Street
68Mr. Hoggar was seen conducting a U-turn on Jane Street and then proceeded southbound on Dean Street. Cst. Bonish followed the Nissan from a street away and observed Mr. Hoggar pick up a dark-haired female at the corner of Dean and Quinn Street at 11:29. One minute later, the Nissan travelled back on Dean Street and returned to its initial location, namely, 3 Jane Street. Cst. Bonish was unable to identify the woman in the Nissan with Mr. Hoggar.
69The surveillance of the two occupants of this green Nissan continued with the assistance of Det. Sgt. T. Marrassato. Cst. Bonish was notified by this officer that at 11:32, the two occupants of the Nissan parked in front of 3 Jane Street and walked up the driveway to the back of the residence. Cst. Bonish kept his distance away but returned to his vantage point with a view of the front of the residence.
70According to Cst. Bonish, the significance of this information in this context is rooted in his policing experience. Where there are people frequently coming and going after brief visits, this may suggest illicit drug trafficking activity. In this particular case, and with the CI tip from Cst. Hutchinson a few days prior in mind, Cst. Bonish observed the following:
i) an unidentified black male (subsequently identified as Mr. Hoggar);
ii) leave the residence of a location known to historically house illegal drug trafficking activities;
iii) the occupant of the residence, with a background of drug-related arrests, to come and go in close time proximity of Mr. Hoggar;
iv) Mr. Hoggar who had just departed this known drug house to be operating a motor vehicle that matched the specific description provided by a CI;
v) the specific license plate marker (CYAR 452) that matched what was provided by the CI;
vi) Mr. Hoggar pick up a woman who was waiting on a street corner nearby;
vii) Mr. Hoggar immediately return back to this known drug residence with the woman. Both enter the residence together;
viii) Seven minutes later, this same woman emerged from this known drug residence and departed on foot while talking on her cell phone.10
71Cst. Bonish testified that this behaviour was similar to what he had previously witnessed in the years he conducted numerous drug investigations in his policing career. In his opinion, and in the context described, this was evidence of a pre-arranged drug transaction that had just taken place between Mr. Hoggar, who was unknown to police at the time, and this unknown woman.
Positive Identification of Joseph Hoggar through Surveillance Photographs
72At 11:41 hours, Cst. Bonish observed Mr. Hoggar emerge from the side of this residence and walk towards the green Nissan, with license plate number CYAR 452. The officer was able to photograph the front facial portion of the male driver. In doing so, for the first time on the date of the arrest, he was able to ascertain the identity of the male individual who had been operating the green Nissan throughout his observations on April 19, 2023. He immediately recognized the driver to be Joseph Hoggar, with a date of birth known to him.
73I wish to acknowledge that throughout the entirety of this investigation, there is an absence of reliable information that another person in Sudbury identified as “Oil” was active in the illicit drug scene. This is the case despite the suggestion from Cst. MacRae who had thought a person identified as “Oil” was already arrested at the time his CI tip was communicated to Cst. Bonish in the summer of 2022.11
Surveillance at the row houses near Felix Ricard Elementary School
74By this time, Detective Cst. Murray and additional officers from the Drug Unit were actively assisting in surveillance. Cst. Bonish and his colleagues followed Mr. Hoggar to a row of houses next to Felix Ricard Elementary School off Lasalle Boulevard where a white male wearing a dark hoody and jeans was leaning up against a railing, talking on his cell phone. At 11:55 hours, Mr. Hoggar was seen operating the green Nissan as it pulled into the parking lot. The male was observed to immediately enter the front passenger seat of the Nissan.
75Five minutes later, the white male exited the green Nissan and began walking towards the row housing. Cst. Bonish was unable to see the male passenger from his vantage point due to a sign obstructing his view.12 According to Cst. Bonish, in his experience, this type of behaviour is consistent with a pre-arranged drug transaction.
Elements of Corroboration tied to the collective CI information
76Cst. Bonish testified that he had satisfied himself that there was evidence of corroboration as it related to the totality of the CI information that he had received prior to the arrest of Mr. Hoggar. This corroboration included knowledge of:
A totality of CI information stating that “Oil” was currently in Sudbury trafficking in cocaine and fentanyl. Cst. Bonish had personal knowledge of the identity of a male known to him as Joseph Hoggar utilizing the street name, “Oil”;
He witnessed Mr. Hoggar to be present in Sudbury on April 19, 2023;
On the same day, Mr. Hoggar was operating a motor vehicle not registered to himself, which was consistent with the CI tip stating that he was changing vehicles;
On this date, Mr. Hoggar was engaged in what appeared to be a number of pre-determined, meetings that were brief in nature, which in this officer’s experience, was consistent with drug transactions;13
These brief meetings with various individuals that morning included the use of the green Nissan as either the actual meeting place or as a means to facilitate drug transactions. Cst. Bonish witnessed Mr. Hoggar to be operating, a green Nissan, with a matching license plate number provided by the CI. That tip was provided to Cst. Hutchinson a few days prior and stated that “Oil” was selling cocaine from a green Nissan in Sudbury.
The Formation of Grounds to Arrest Joseph Hoggar
77Cst. Bonish testified that at 12:08 on April 19, 2023, he notified Sgt. Marrassoto, Detective Sgt. Murray, and the Tactical Unit that he possessed grounds to arrest Mr. Hoggar for trafficking in cocaine and fentanyl and was seeking their assistance to execute the arrest. He based this belief in reliance of the totality of his physical observations on this date, combined with the confidential information that he had received from various officers in 2020, 2022 and in the days leading up to the arrest.
78Mr. Hoggar drove the green Nissan to a nearby pharmacy and he entered that establishment. The Tactical Team was in route but was not yet available to effect the arrest. He returned to the green Nissan five minutes later and was followed by officers, including Cst. Bonish, to 299 Elm Street. At 12:21, he was confronted by officers from the Tactical Unit utilizing their police cruisers and placed under arrest.
The Arrest on April 19, 2023
79At 12:21, Cst. Bonish arrived within a minute of the arrest commencing. Mr. Hoggar was placed under arrest by tactical officer Cst. Porringa for possession for the purposes of trafficking drugs (cocaine and fentanyl) and provided him with his rights to counsel and caution. Mr. Hoggard expressed that he wished to speak to counsel. When asked by Cst. Bonish if he had a lawyer, he provided the identity of his counsel of choice, Mr. Bottomley.
80Cst. Bonish articulated potential safety concerns at the location of the arrest, which was the laneway to this specific address attributed to Mr. Hoggar in Sudbury. Additionally, the officer indicated that he had no suitable location to permit Mr. Hoggar to exercise rights to counsel in a confidential setting within this laneway.
81Unable to implement rights to counsel at this stage, Cst. Bonish explained that he was familiar with the requirement to “hold off” and did not ask any questions relevant to the investigation of the accused.
82He observed Cst. Porringa search Mr. Hoggar and remove from his various pockets a large sum of Canadian currency. At 12:33, Cst. Martindale transported Mr. Hoggar to police headquarters.
83Immediately after Mr. Hoggar was placed under arrest, Cst. Bonish observed in plain view one cell phone in the center console, and two more phones on the passenger seat in the vehicle. In his experience, this was a significant observation because drug traffickers typically have multiple cell phones to facilitate drug transactions in addition to one personal cell phone.
The Position of the Parties
84Mr. Hoggar argues that the police did not have the requisite grounds to arrest him for the offences of possession for the purposes of trafficking in fentanyl and cocaine and that this resulted in a breach of his Charter rights under s. 9. In doing so, he submits that the information provided by the CIs fell short of meeting the test in R. v. Depot, 1989 13 (SCC), [1989] 2 S.C.R. 1140, and therefore, was not objectively reasonable.
85Because the initial arrest was unlawful, the search incident to arrest was prima facie unlawful, which breached his Charter rights under s. 8. Additional grounds in support of this Charter application will be discussed later in these Reasons.
86The Crown insists that there were ample subjective grounds to support Cst. Bonish’s reasonable grounds to justify the arrest of Mr. Hoggar, and those grounds were objectively reasonable. Mr. Bradley submits that the totality of the information provided by the CIs, dating as far back as January 2020 and as recent as the days leading up to the arrest, met the test in Depot as it relates to information supplied by CIs. Since the arrest was lawful, the search of the Nissan incident to the arrest was authorized at common law.
The Law – Reasonable Grounds to make an Arrest
87Section 495(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46 permits a peace officer to arrest, without a warrant, a person
(i) who has committed an indictable offence; or
(ii) who the peace officer believes, on reasonable grounds, has committed or is about to commit an indictable offence.
88The standard of “reasonable grounds” has been described as one of “reasonable probability.” The arresting officer must subjectively believe they have reasonable and probable grounds to base an arrest, and those grounds must be justifiable from an objective point of view.14
89To this end, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable grounds to make the arrest. 15
90The Court should not assess each fact or observation in isolation. The totality of the circumstances relied upon will form the basis of the objective assessment.
91Such an assessment requires the Court to objectively consider the dynamics of the situation and the officer’s relevant police experience.16
92This evidentiary standard is less than the civil standard of “balance of probabilities”. The officer is not required to establish a prima facie case for conviction before making the arrest.17
93Recently in Zacharias, the Supreme Court of Canada highlighted the long-standing principles in Storrey, that emphasized vigilance in the context of warrantless arrests even in dynamic situations. It is even more important for the police to establish reasonable and probable grounds in cases of warrantless arrests and search incidents to arrest.18
The Totality of Circumstances Test in Depot
94When the police rely on a tip from a CI to make an arrest, the objective reasonableness of the grounds must be considered through application of the totality test as described at paragraph 53 in Depot.19 In these circumstances, the informant’s tips must be credible, compelling, and corroborated, as explained by Justice Wilson on behalf of the Supreme Court:
“53 In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a "tip" originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.” [emphasis added]
95The credibility of an informer may serve to allay one of the three principal concerns that Wilson J. addressed in Depot. The credibility, in the sense of reliability, of the informer is an important factor that could compensate for weaknesses in the other two areas, especially whether the information predicting the commission of an offence was compelling.20
96A history of providing reliable information to police in the same subject-matter may provide an inextricable link between the credibility of the tip and its contents.21
97The police are not required to corroborate the very criminality of the information provided by a CI.22
98Not every detail of an informant’s tip must be confirmed if the sequence of events observed conforms sufficiently with the anticipated pattern to remove the possibility of innocent coincidence.23 However, the degree of verification required may be higher if the credibility of the informant cannot be assessed or where details are lacking, and the risk of innocent coincidence is greater.24
99It is highly relevant whether: (1) the informer’s tip contains sufficient detail to ensure it is based on more than mere rumour or gossip; (2) the informer discloses his or her source or means of knowledge; and (3) there are any indicia of his or her reliability such as the supplying of reliable information in the past or confirmation of his or her story.25
Depot Test Applied
100When Cst. Bonish received information from his colleagues provided by each CI, he had access to the past performance of those CIs as documented by each police handler. For example, a first-time source may be a credible and compelling tip but is expected to be corroborated because there is no history of truthfulness and accuracy of their information.
101On the other hand, a past, proven informant has an established track record of credible and reliable tips that has been corroborated and relied upon in an investigative purpose with some degree of verified accuracy. For example, an informant might have provided credible information that resulted in an arrest or the issuance of a search warrant resulting in charges being laid.
102Cst. Bonish acknowledged that many of the CIs want something in return whether it be favourable consideration with respect to their own criminal charges or perhaps monetary compensation. This is a valid concern highlighted by Mr. Bottomley in his cross-examination of each officer, and I am alive to the risks this may pose to the credibility for each informant.
103However, in a careful review of the historical credibility of each of the six CIs in this case, I do not have any concerns regarding their credibility or reliability when the totality of the information is viewed as a whole.
104Specifically, the history of CIs #1, #2 and #6 indicate they were all characterized to be past, proven informants without any known history of providing false or misleading information. Their credibility and reliability when considered individually, suggests specialized knowledge and familiarity with the pricing, packaging and nature of the drugs alleged to have been trafficked by Mr. Hoggar. Taken together, these three CIs contributed to numerous arrests and charges for drug trafficking offences. CIs # 1, #2 and #6 are in my view, credible and reliable.
105Additionally, CIs #3, #4 and #5, although not deemed by the police to be past and proven, also exhibited no identified history of providing false or misleading information. While CI #4 and #5 do not meet the police definition of “past and proven”, they have each provided information to police that was corroborated to be accurate but was not acted upon.
106CIs #3, 4 and 5 appear to have some specialized knowledge regarding pricing, packaging, distribution, and drug subculture. CI #3 provided specific details that very few individuals would have known, which bolsters the credibility of that information.
107CI #4 directly identified the suspect identified previously as “Oil”, to be Joseph Hoggar, with a date of birth of July 25, 1990. This name and date of birth is reflected on Mr. Hoggar’s driver’s license as filed as an exhibit in these proceedings.
108I do not see any concerns with respect to the credibility or reliability of each of the informants or the information they provided to the police.
109A more focused analysis of CIs #1, #2, #3, #4 and #5, all from the summer of 2022, amounts to highly credible information in consideration of the similarities and repetition of each tip, that pointed to a common theme. That theme consisted of the following material facts for the purposes of ascertaining grounds to arrest Mr. Hoggar for the offences of trafficking in fentanyl and cocaine:
i) “Oil” is a black male from the Toronto area coming to Sudbury to traffic in fentanyl, cocaine, and crack cocaine;
ii) He uses different motor vehicles to sell drugs and the colour of these vehicles change;
iii) Some informants state “Oil” has people assisting him while other informants are silent on whether or not he works alone or with others;
iv) Some informants provided locations where Oil was at the time they made their observations.
110The evidence relied upon consists of a combination of safe information provided by numerous CIs spanning as early as January 2020, to the summer of 2022, to as recent as within a week of the arrest on April 19, 2023.26
111Additionally, there were observations made through surveillance and follow up investigative research conducted by Cst. Bonish in response to some of these CI tips, but as highlighted by Defence counsel, many details were not further investigated.27
112Mr. Bottomley was effective in isolating numerous areas that would have been ripe for the police to follow through and attempt to corroborate the veracity of the confidential informant tips provided in January 2020 and the summer of 2022. In his submission, the police fell well short of conducting a thorough investigation as evidenced through their lack of any meaningful follow up on a wide array of investigative issues cited in each informant’s tip regarding Mr. Hoggar and his alleged drug trafficking activities.
113I accept that Cst. Bonish could have followed up with each of the relevant details provided by the five CIs in the summer of 2022. However, while I mindful of some weaknesses in the corroboration of these tips, I find that there was sufficient indicia of credibility and reliability attached to each of the informant’s evidence that compensates for this lack of corroboration.
114Given my requirement to consider the totality of the factors in consideration of determining reasonable grounds to make an arrest, my analysis on corroboration does not end here.
115When I consider the details and degree of specificity provided by CI #6, the strength of the objectively reasonable nature of the subjectively held beliefs of Cst. Bonish, increases significantly. Those details as provided by CI #6 to Cst. Hutchinson and relayed to Cst. Bonish less than a week prior to the arrest were:
i) A green Nissan was being used by a black male to sell cocaine;
ii) He is from the Toronto area;
iii) He brings up 1 to 2 kilos;
iv) The license plate number of the green Nissan was CYAR 452.
116CI #6 provides a level of detail and specificity not seen in the other five tips. Here, there is reference to the make and colour of a motor vehicle (green Nissan) but also a specific license plate that is alleged as being utilized to sell cocaine in Sudbury. This is highly compelling evidence.
117In the tip itself, there is a physical description of a suspect, identified to be a black male, 5’10”, 220-230lbs, from Toronto and utilizing multiple runners and supplying to other dealers. However, this information did not form part of Cst. Bonish’s subjective belief at the time of the arrest.
118This information, however, as provided in the days leading up to the arrest, did not directly name Mr. Hoggar. It was not until the day of the arrest, when Cst. Bonish was able to photograph Mr. Hoggar and positively identify him to be walking from 3 Jane Street to this very same green Nissan, the cumulative effect of this tip became increasingly more compelling and corroborated.
119I accept that taken in isolation, each of the brief meetings Mr. Hoggar had engaged in on the date of his arrest while utilizing the green Nissan, may standing alone, seem innocuous and perhaps not indicative of a drug transaction in any way. Indeed, a considerable amount of cross-examination by Mr. Bottomley of Cst. Bonish identified the weaknesses in coming to such a conclusion in questioning his interpretation of the brief visits at a known drug house at 3 Jane Street, with the dark-haired woman and the young white male in the parking lot of the row houses next to the elementary school.
120However, analyzing each brief interaction between Mr. Hoggar and these individuals in isolation is precisely what I am not to do. I am required to consider the totality of the circumstances, and from the position of a reasonable person placed in the position of the officer.
121The activities of Mr. Hoggar on April 19, 2023, through the lens of Cst. Bonish, an experienced drug enforcement officer with years of policing these types of offences, taken together with all of the information gathered by this officer to date, pointed to compelling evidence of an active drug trafficking operation taking place in real time in Sudbury.
1223 Jane Street in Sudbury has a history of being utilized as a drug house where illicit substances have been stored in the past. On April 19, 2023, Cst. Bonish came across a green Nissan Altima parked in front of this address with the license plate number CYAR 452. The make, colour and license plate of this vehicle matched the information provided by CI #6 less than a week prior. The tip from CI #6 alleged that a green Nissan was being used by a black male from Toronto to sell cocaine with this specific license plate.
123A search of the registered owner produced a registered owner to be a numbered company based out of Hamilton, Ontario. Emerging from this known drug house, was Emanuel Deguaro, an individual with a known history of arrests for drug related activity. He is seen walking away from this drug house and returning five minutes later as a passenger in a blue Jeep operated by an older white male. These two men then walked towards the left side of this known drug house believed to be where the entrance of a unit is situated.
12425 minutes later, Cst. Bonish observed Mr. Hoggar, a black male, to emerge from the same left side of this residence from where Mr. Deguaro and the unidentified male entered earlier. Mr. Hoggar is seen entering the driver’s side of the green Nissan, with the matching license plate, identified by CI #6. Two minutes later, the unidentified older white male emerged from the side of 3 Jane Street but without Mr. Deguaro. The identified older white male waved at Mr. Hoggar and then entered the blue Jeep and drove away.
125Mr. Hoggar conducted a U-turn in front of this known drug house and two minutes later, picked up a dark-haired woman standing outside on the street corner. She enters the green Nissan that's operated by Mr. Hoggar, and they return back to 3 Jane Street, and both walk to the left side of this residence. This is the same area that Mr. Hoggar had exited minutes prior. It is also the same residence and area that Mr. Deguaro, a person with a known history of drug related arrests, had just entered 29 minutes prior.
126Cst. Bonish subjectively believed that this behaviour was similar to what he had previously witnessed in prior drug investigations throughout his policing career. Contextually, the significance of this information is rooted in the idea that where there are people frequently coming and going after brief visits, this may suggest illicit drug trafficking activity.
127Although Cst. Bonish had not yet identified Mr. Hoggar, in his opinion, this was evidence of a pre-arranged drug transaction that had just taken place between him and this unknown woman. He was also of the belief that illicit drug transactions were taking place at 3 Jane Street, where Mr. Hoggar had entered and exited moments prior.
128At this point of the investigation, the information provided by CI #6 alone was itself, highly compelling, credible, and corroborated. However, combined with the additional six tips from the other five CIs in the summer of 2022, the strength of the objectively reasonable grounds was more than sufficient to meet the totality of circumstances test in Depot. When considered cumulatively, the totality of the information amounted to strongly compelling and sufficiently corroborated information that in my view, provided an objectively reasonable basis for Cst. Bonish’s subjectively held beliefs in support of reasonable grounds to arrest Mr. Hoggar for the offences of trafficking in fentanyl and cocaine.
129The highly compelling nature of these combined tips pointed to a specific individual, with an identified street name “Oil” and with physical descriptions not materially different than what was provided by the informants. Any doubt or risk of innocent implications were extinguished upon Cst. Bonish being able to positively identify Mr. Hoggar by photographing him while he was observed to be in and around a known drug house on two occasions on the morning of his arrest and while operating the very vehicle with the identical license plate provided by a credible informant within a week of this observation.
130The degree of detail that specifically identified the colour and make of the vehicle being used by a black male with a similar physical build, combined with the totality of information known by the officer leading up to the date of the arrest provided ample grounds that were clearly objectively reasonable.
131Adding to the strength of the objectively reasonable grounds held by Cst. Bonish, was the final brief meeting held between Mr. Hoggar and the young white male in the parking lot of the row houses adjacent to Felix Ricard Elementary School. This interaction took all of five minutes and immediately after the brief interaction with the dark-haired woman in and around the known drug house at 3 Jane Street.
132In consideration of the frequency and brief nature of these interactions and activities observed by Cst. Bonish on the morning of April 19, 2023, combined with the highly compelling and credible tips from the informants between the summer of 2022 up to the days leading to the arrest, I am satisfied that Cst. Bonish subjectively had reasonable and probable grounds to believe that Mr. Hoggar had committed the offences of trafficking in fentanyl and cocaine and that his beliefs were objectively reasonable.
133Taken as a whole, that information provided by the CIs were not only compelling, but they were highly credible and moderately corroborated. In my view, there is a complete absence of evidence to support a claim of arbitrary detention under section 9 of the Charter. The application is dismissed, and the arrest of Mr. Hoggar was lawful.28
Issue 2 – Section 8 Charter: Was the warrantless search of the Nissan operated by Mr. Hoggar a lawful search incident to arrest?
134Cst. Bonish did not have a warrant authorizing him to search the Nissan vehicle operated by Mr. Hoggar. He testified that his authority to do so was in furtherance of a search incident to the arrest for the offences of trafficking in fentanyl and cocaine.
135The vehicle was towed to Bob's Service Centre located approximately 20 to 30 minutes away from the scene of the arrest at 299 Elm Street. According to the officer, this facility had been utilized routinely by the Greater Sudbury Police Service to conduct searches of vehicles because it is a secure compound, and the facility operators are accommodating to permit the police to have the requisite space needed to proceed with a search safely.
The Position of the Parties
136On behalf of Mr. Hoggar, Mr. Bottomley submits that the search of the Nissan was not authorized at common law as incident to arrest and since no warrant was obtained, there was a breach under s. 8 of the Charter. He references the opportunity the police had to complete a search of this vehicle at the scene of the arrest or alternatively, obtain a warrant in anticipation of a more thorough search, and disputes the necessity to relocate the vehicle to another location at least 20 minutes away. He also points to the time lapse from the time of the arrest at 12:21 to the commencement of the search at Bob’s Service Centre at 13:47 hours, some one hour and 26 minutes post-arrest. To the Defence, this is a substantial delay, and the court should draw an inference that the search of the Nissan was not sufficiently connected to the arrest.
137Mr. Bradley, for the Crown, submits that the search of the Nissan was authorized because the arrest of Mr. Hoggar was lawful, and there was a valid objective in searching the vehicle for evidence of trafficking in illicit substances. He submits that the police had a reasonable prospect of securing evidence to support the offences that Mr. Hoggar was arrested for, and that the relocation and time lapse leading up to the search at Bob’s Service Centre was supported by reasonable explanations related to officer safety and logistical considerations.
The Law – Search Incident to Arrest
138A search incident to arrest is an exception to the general rule that warrantless searches are unreasonable.
139The three main purposes of search incident to arrest are:29
(1) ensuring the safety of the police and public;
(2) the protection of evidence from destruction at the hands of the arrestee or others; and
(3) the discovery of evidence which can be used at the arrestee’s trial.
140To qualify as “truly incidental” to the arrest means that the police must be attempting to achieve some valid purpose connected to the arrest. Whether such an objective exists will depend on what the police were looking for and why. There are both subjective and objective aspects to this issue. The police must have one of the purposes for a valid search incident to arrest in mind when the search is conducted. Further, the officer’s belief that this purpose will be served by the search must be a reasonable one.30
Was the search of the Nissan premised on a valid purpose connected to the arrest?
141In the case at bar, Cst. Bonish subjectively believed that he had the requisite grounds to arrest Mr. Hoggar for the offences of trafficking in fentanyl and cocaine. I have found those grounds to be objectively reasonable. The evidence he relied upon for those grounds were directly connected to the use of the green Nissan operated by Mr. Hoggar as a location and mechanism for brief drug transactions in the trafficking of fentanyl and cocaine throughout Sudbury.
142The search of the Nissan incident to arrest was premised on valid objectives at common law. It is admitted that Mr. Hoggar was the driver and sole occupant of the Nissan on the day of this arrest. Given the nature of the information that Cst. Bonish had relied upon in support of the grounds for the arrest, combined with his own observations of Mr. Hoggar on the day of his arrest that included him engaging in brief meetings with various individuals in and around a residence known to involve illicit drug activity, and the discovery of over $6700 cash in his pockets upon arrest, it was completely reasonable for Cst. Bonish to initiate a search of the Nissan incident to the arrest.
143The justification to search the Nissan was to obtain evidence to substantiate the offences of possessing fentanyl or cocaine for the purposes of trafficking. I remind myself that there need only be “some reasonable prospect of securing evidence” of these offences.31 Logically, it would be objectively reasonable to search the very vehicle that Mr. Hoggar was seen operating in the hours leading up to his arrest in these circumstances.
144I am of the view that all three of the stated objectives summarized by L’Heureux-Dubé J. in Cloutier v. Langlois, in paragraph 19 of Caslake apply here. Fentanyl and cocaine are substances that have the potential to cause death and bring harm to individuals in our society. Locating these substances from within the Nissan would be a paramount objective in the investigation to prevent Mr. Hoggar or any other person with access to the vehicle from destroying this evidence. And finally, the discovery of fentanyl and cocaine as evidence at Mr. Hoggar’s trial was a necessary and important aspect of the evidence required to support the charges he was arrested for, namely, possessing these drugs for the purposes of trafficking.
145The totality of the information relied upon in addition to the surveillance evidence pointed to Mr. Hoggar utilizing the Nissan as both a place of business for his illicit drug enterprise but also as a transportation tool to distribute his drugs. For the purposes of determining whether the search was incidental to the arrest, I find that there was a link between the location of the search (Nissan operated by him) and purpose of the search (to locate evidence indicative of trafficking such as drugs, scales, packaging material and currency).32 Accordingly, there was a reasonable basis for Cst. Bonish to search the Nissan incident to arrest for the offences of trafficking in fentanyl and cocaine.
The Commencement of the search at Bob’s Service Centre 1 Hour and 26 minutes post-arrest
146I now turn to whether the search was incidental to arrest despite the police decision to relocate the Nissan some 20 - 30 minutes away from the scene of the arrest to a secure facility at Bob’s Service Centre. The timing of the search, some one hour and 27 minutes post-arrest, is also a material fact that I must weigh as I consider the applicability of the common law doctrine of search incident to arrest.
147Both the spatial and temporal requirements for search incident to arrest are informed by the legitimate police objectives of such a search. The search does not have to be contemporaneous with the arrest to be a valid search incident to arrest. Time and distance may elapse from the arrest. Whether the search, when it occurs, can still be considered a search incident to arrest depends on the circumstances of the case. (See R. v. Miller, 1987 4416 (ON CA), [1987] O.J. No. 989 (Ont. C.A.) and R. v. Fearon, 2013 ONCA 106; [2013] O.J. No. 704 (Ont. C.A.); R. v. Marakah, 2017 SCC 59.
148In Caslake, Chief Justice Lamer for the Supreme Court of Canada considered the spatial and temporal limits of the power to search incident to arrest:33
“There is no need to set a firm deadline on the amount of time that may elapse before the search can no longer said to be incidental to arrest. As a general rule, searches that are truly incidental to arrest will usually occur within a reasonable period of time after the arrest. A substantial delay does not mean that the search is automatically unlawful, but it may cause the court to draw an inference that the search is not sufficiently connected to the arrest. Naturally, the strength of the inference will depend on the length of the delay, and can be defeated by a reasonable explanation for the delay.”
…Delay and distance do not automatically preclude a search from being incidental to arrest, but they may cause the court to draw a negative inference. However, that inference may be rebutted by a proper explanation.” [emphasis added]
149Chief Justice Lamer found that the six-hour delay between the arrest of the accused and the search of his vehicle would not have precluded the lawfulness of the search as incidental to arrest had the search been made for a proper police objective. In determining whether a search is incident to arrest, “one must consider the police motives for the timing and place of the arrest and the relationship in time and place between the arrest and the search”34
150Similarly, in Nolet, Binnie J. emphasized that, “[t]he important consideration is the link between the location and purpose of the search and the grounds for the arrest.”35 In that case, the court held that a two-hour delay between the arrest of the accused and the search of his vehicle was not significant and did not “undermine the close causal and spatial connection between the arrest and the search.”36 Binnie J. held that the temporal gap of two hours was not problematic and that the lack of quick action was explained by the fact that the vehicle in question was impounded in the RCMP yard in the middle of the night and could not at that time be legally driven.37
151In recent years, a sound application of the principles in Caslake was conducted by Justice F. Byrne in Bayuk, a factually similar case with the case at bar.38 In that case, an initial brief, 10-minute search of the vehicle pursuant to the Cannabis Control Act, 2017, S.O. 2017, c. 26, Sched. 1 ("CCA") was conducted at the scene and ammunition was discovered. The accused was removed from the vehicle and arrested for unauthorized possession of ammunition. The lighting conditions were poor, and the officer was concerned for his safety. The car was then towed to the local OPP detachment where it was searched more thoroughly two hours later.39
152After a thorough review of the principles in Caslake, Byrne J. made the following conclusions to which I adopt entirely:
“[56] …..Objectively, it is reasonable to assume that a more effective search could be conducted where the police did not have any safety concerns, the environment was more comfortable, and where they could take their time and proceed on a more thorough basis. Even though he did not receive the assistance of a canine unit, the continued search was more thorough because it extended to the upper centre console, which revealed the hidden weapons.
57I also do not find that the length of time between the commencement of the search at the roadside to the continuation of the search in the OPP detachment garage was unduly lengthy. Mr. Bayuk was arrested at 10:41. The roadside search lasted approximately 10 minutes before it was halted. It resumed approximately 2 hours later. Officer Caringi accounted for his actions during that time, all of which were related to the charges as against Mr. Bayuk and the administrative work that was required.
58It cannot be the desire of the courts that only searches done quickly at the scene, whatever the environmental and safety conditions, be considered lawful. It is preferable that any searches incident to arrest be done properly, even if that means in some instances, slower and more methodical, rather than quickly and less than thorough. A quick search in less than ideal circumstances could lead to inadequate policing and is more likely to compromise the Charter protections afforded the accused in the effort to find evidence and secure the scene.” [emphasis added]
153In concluding that the search at the OPP detachment was a continuation of the search of the vehicle incident to arrest, and that all the evidence ought to be admitted, Byrne J. stated the following at paras. 48-49:40
“[48] There is no temporal limit as to when the search should occur after arrest, but it should be within a reasonable period. If there is a delay in the search after the arrest, the court can draw an inference that the search is not sufficiently connected to the arrest: Caslake, at para. 24.
49Based on the evidence, I am satisfied on the balance of probabilities that the search in the OPP detachment garage was a continuation of the search at the scene, all of which was incident to Mr. Bayuk’s arrest for unauthorized possession of ammunition and stolen property.”
154The legal principles in Caslake as applied in Bayuk have direct application in the case at bar.
155Both Cst. Bonish and Cst. Porringa testified that the entrance to the residence at the scene of the arrest on Elm Street was in a back laneway. According to Cst. Bonish, a search of the vehicle in this back laneway was not appropriate. It was also an unsuitable location to facilitate Mr. Hoggard’s request to speak to his counsel of choice, and those rights had been invoked by him shortly after the arrest.
156Cst. Bonish decided to remove the vehicle to the secure facility because:
(1) Safety Concerns: The location of the arrest was at an address known to be connected to Mr. Hoggar. This brought with it a degree of uncertainty that elevated the safety risk to the police. The police were unaware who else might be present or nearby during a search of Mr. Hoggar’s vehicle. The officer explained that he was unsure if Mr. Hoggar had a pre-arranged meeting with another party and was concerned of the potential for a threat given the various unknown factors.
(2) Cocaine and fentanyl are powder-like substances: Searching for these items in the open air at the scene of the arrest could result in the officer ingesting these substances if a gust of wind were to blow in his direction. This would pose an additional safety risk to the officer.41
157With respect, I do not accept this second explanation from Cst. Bonish as persuasive. Firstly, as he admitted to Mr. Bottomley during cross-examination, there was no evidence that he took any precautions to protect himself from ingesting these powder-like substances during the actual search of the Nissan at Bob’s Service Centre. Had this been a concern, one would expect that he would have demonstrated some measures to protect himself from ingestion, such as wearing goggles or a mask. He did neither of those.
158Secondly, there was no evidentiary basis in support of the reasonable expectation that a gust of wind would blow these substances in his direction if a search of the Nissan were to be conducted in the back laneway. The court cannot speculate what the weather conditions were at 12:21 hours on April 19, 2023, and is precluded from assuming that it would be a matter of common practice to move such a search of power-like substances indoors in this case.
159The more persuasive reason for the relocation of the search of the Nissan to Bob’s Service Centre was the officer’s safety concerns related to the unpredictable nature of the situation of the arrest in the back laneway of a residence tied to Mr. Hoggar. It is reasonable for the officer to conclude that such a location would pose a security risk to the police given the unknown possibility of other individuals tied to the illicit drug trade to be present in the laneway, and potentially out of view of the officers. Like most issues, context is important.
160Earlier that morning, there was circumstantial evidence that pointed to Mr. Hoggar coming in and out of the entrance area to 3 Jane Street, a known location for illicit drug trafficking. The residence at 299 Elm Street where he was arrested was tied to him and it was unknown if individuals connected to the drug subculture were expecting him to arrive.
161Additionally, Cst. Bonish had made the decision early in the investigation to search the Nissan incident to arrest. According to Cst. Porringa, officers commenced a search of the Nissan upon arrest. Shortly after Mr. Hoggar was arrested and searched personally at the scene, Cst. Bonish called for a tow truck to transport the Nissan to a secure location with the intention to conduct a thorough search of this vehicle.
162Prior to the tow truck arriving, this officer observed one cell phone in the center console and two additional cell phones in the passenger front seat area. In Cst. Bonish’s experience, individuals trafficking in drugs frequently possess multiple cell phones that include a cell phone for personal use and other phones to utilize in the drug trafficking trade. He interpreted the presence of multiple cell phones in the Nissan as another factor indicative of such activity.
163Furthermore, a thorough search of the Nissan in the presence of the general public in the laneway behind a residence connected to Mr. Hoggar, ignores the practical reality of the unpredictable security risks that police officers face in the execution of their duties, particularly in the context of an investigation into drug trafficking. Officers conducting such a search should not be expected to monitor the presence of unknown members of the public or weapons while simultaneously focusing on searching every nook and cranny in the vehicle situated in the back laneway of a residence associated with the suspect.
164I remind myself that it is the subjective purpose of the search and the objective reasonableness of it that remains the focus of my analysis. In this case, I do not find that the continuation of the search at Bob’s Service Centre 1 hour and 26 minutes after commencement was unreasonable.
165Objectively, moving the Nissan to a secure location at Bob’s Service Centre where the police could restrict access to the general public made complete sense. This also permitted Cst. Bonish and other officers assisting with the search to do so without rushing, which effectively minimized the likelihood of error.
166Detailed and thorough searches of a vehicle require accurate record-keeping. Proper documentation to meet the Crown’s Stinchcombe disclosure obligations brings with it an expectation the police will accurately prepare exhibits and have the ability to do so without impediment or security concerns while conducting these tasks.
167Expecting the police to complete this investigative step in the back laneway of a residence associated with the accused would be totally unrealistic. The decision to conduct such a search 20-30 minutes away in a secure garage was not only reasonable, but entirely necessary. On the record before me, there was a complete lack of evidence that would support doing so otherwise.
168The timing of the search is also a relevant consideration. Mr. Hoggar was arrested at 12:21 and the search of the Nissan commenced at 13:47 hours at Bob’s Service Centre. During that 1 hour and 26-minute window, Mr. Hoggar was searched personally at the scene, provided his rights to counsel, and then transported to police headquarters and paraded in the booking in process. He was searched again in private in the lawyer room and after three attempts to contact counsel on his behalf, he was given the opportunity to speak to his counsel of choice at the police station. While this was all happening, his vehicle was towed to Bob’s Service Centre and the search commenced at 13:47 hours, concluding at 16:12 hours.
169During the delay of 1 hour and 26 minutes from the arrest to the re-commencement of the search, every aspect of these activities implemented by the police were tied directly to this specific investigation and the implementation of Mr. Hoggar’s Charter rights while he was detained.
170The search of the Nissan operated by Mr. Hoggar was sufficiently connected to the arrest of trafficking in fentanyl and cocaine. There was in fact some reasonable prospect of securing evidence of these offences for which he was arrested. I am persuaded that the legitimate police objectives in searching the Nissan remained firmly intact despite the time delay of 1 hour and 26 minutes from the time of arrest to the re-commencement of the search of the Nissan. Similar to Nolet, the search of the Nissan in this manner did not “undermine the close causal and spatial connection between the arrest and the search.42”
171I find the relocation of the Nissan to Bob’s Service Centre was objectively reasonable in the circumstances of this case. Despite the distance to Bob’s Service Centre and the delay of 1 hour and 26 minutes from the arrest to the re-commencement of the search, the spatial and temporal requirements were unchanged when I consider the grounds for the arrest, the valid law enforcement objectives of the search and what on its face appears to be a “truly incidental” search upon arrest.
172The relocation to Bob’s Service Centre and timing of the search would not in my view draw a negative inference that would detract away from the incidental nature of this search upon Mr. Hoggar’s arrest for the offences of possessing fentanyl and cocaine for the purposes of trafficking.
173However, if I am wrong in reaching this conclusion, the explanations provided by Cst. Bonish specifically as it related to officer safety were proper and have effectively rebutted such an inference.
Issue 3 – Were the searches of Mr. Hoggar and the Nissan conducted reasonably?
174I have determined that the warrantless arrest of Mr. Hoggar was lawful and that there was no violation of s. 9 of the Charter. The search of the Nissan commenced at 13:47 hours and shortly thereafter, Cst. Bonish located a Philips screwdriver and several loose plastic sandwich bags next to the driver’s seat that appeared to be relatively new and available for packaging certain items.
175At some point, he requested the assistance of a canine dog to assist in the search. There was nothing unreasonable with the use of this sniffer dog because at this juncture, Cst. Bonish had subjective grounds to believe that Mr. Hoggar was trafficking in fentanyl and cocaine and his belief was objectively reasonable. The search, as I have explained above, was truly incident to this arrest and for a valid objective.
176The police were justified in searching the Nissan incident to the arrest of Mr. Hoggar. The search was authorized by law and was conducted by the police in a reasonable manner.43 I have already found that the arrest of Mr. Hoggar was lawful and the search of Mr. Hoggar himself upon arrest was reasonable.
177I will now determine whether the search of Mr. Hoggar upon arrest, particularly in the private lawyer room and the placing of him in a “dry cell” at the police station was unreasonable.
178For a search or seizure to be reasonable, (1) it must be authorized by a law, (2) that law must itself be reasonable, and (3) the search or seizure must be carried out in a reasonable manner.44
179Mr. Hoggar submits that the search incident to arrest of the Nissan was unauthorized because the arrest and searches of him and the vehicle were conducted unreasonably resulting in a breach of s. 8 of the Charter.
180When Cst. Bonish attended the police station’s booking-in area at 13:10 hours, Detective Cst. Riccuto and Archer were processing Mr. Hoggar. Cst. Bonish expressed to his fellow officers that they may wish to place Mr. Hoggar in what is commonly referred to as a “dry cell” where the water in the cell is shut off preventing the detainee from disposing of evidence through the normal passage of human waste.
181He did this because he witnessed Mr. Hoggar to be fidgeting and grabbing his waistband at the time of the arrest and believed that it was possible that the accused was attempting to conceal some drugs in between his buttocks or rectum, otherwise referred to as “cheeking.”
182During the initial search at the location of the arrest, Cst. Bonish noticed Mr. Hoggar repeatedly reached for the back of his waistband and to be pulling on his pants. In his experience, individuals involved in drug trafficking, or the drug subculture will try to conceal narcotics in between their buttock cheeks or underneath their scrotum or groin area. In his years of experience as a drug officer, he had witnessed this on five to ten occasions.
183In the booking in area, Detective Cst. Riccuto had conducted a preliminary search but was unable to locate any items of interest. However, this officer wasn’t confident that the search was completely thorough because of the relative thickness of Mr. Hoggar’s waistband in the sweatpants he was wearing.
184A more invasive search of Mr. Hoggar was conducted behind a closed door in the same room where the accused had spoken to his lawyer in private moments prior. After Mr. Hoggar concluded his conversation in private with his lawyer, at 13:27 hours, Cst. Bonish explained to him that a more invasive search was to be conducted without his track pants on. Mr. Hoggar removed his track pants, and the officer placed the back of his hand in the accused’s groin area and in between his buttocks. This search incident to arrest clearly meets the definition of a strip search in Canadian law.45
185Cst. Bonish searched his groin and buttocks area, off camera and in the privacy of the lawyer room but there were no items detected. It was at this juncture Cst. Bonish was now satisfied that Mr. Hoggar had not concealed any drugs in any area of his body. He was then lodged in cells.
186He was then placed in a “dry cell”, which is a holding cell at the police station that is designed to prevent detainees from discarding evidence such as drugs, through the passing of human waste. This is achieved by restricting the amount of water in the toilet or through other means designed to prevent the loss of evidence while the detainee is in the cell.
187The nature of this investigation focused on the trafficking of fentanyl and cocaine, and the surveillance conducted by Cst. Bonish in the hours leading up to the arrest objectively supported the grounds to support an arrest for these offences.
188In addition to securing evidence, as explained by this officer both in chief and during cross-examination, this is a common practice that is intended to ensure that nothing is concealed on the detainee’s body while in custody that could pose a safety risk or promote a means of escape. Cst. Bonish testified that in his experience, he has frequently encountered male individuals believed to be involved in drug trafficking on the drug subculture to tuck narcotics in between their buttocks or underneath their scrotum.
189In this particular case, the behaviour and manner of movement exhibited by Mr. Hoggar shortly after the arrest provided some objectively reasonable basis to conduct the more invasive search of his person consisting of the groin sweep.
190I fully recognize that the groin sweep conducted by Cst. Bonish upon Mr. Hoggar was a highly invasive search that was a serious infringement of his privacy and dignity. However, I am of the view that this officer had reasonable and probable grounds to believe that a strip search was necessary and that it was conducted in a constitutionally valid manner in accordance with the criteria in Golden, cited by Justice Watt in Muller.46
191Specifically, it was (1) conducted as an incident to a lawful arrest; (2) conducted for the purpose of discovering weapons or evidence on the body of Mr. Hoggar related to the reason for the arrest; (3) based on reasonable and probable grounds for concluding that a strip search was necessary in the circumstances of the arrest experience of the officer and particularly because Mr. Hoggar was repeatedly reaching for the back of his waistband and pulling on his pants; and, (4) conducted in a reasonable manner behind a closed door, in the privacy of the lawyer room by a male officer.47
192I conclude that the essence of these searches was not unreasonable and were in my view, Charter-complaint. Mr. Hoggar’s groin and buttocks area and the placing of him in a “dry cell” were conducted in a reasonable manner and there is no impact on the constitutionality of the searches of Mr. Hoggar personally and the Nissan as incident to arrest. Accordingly, the application under section 8 of the Charter is dismissed.48
Issue 4 – Was there a breach of s. 10(b) of the Charter by delaying the implementation of Mr. Hoggar’s rights to counsel between the time of arrest to the time of his first phone call with Defence counsel?
Implementation of s. 10(b) at the police station
193Mr. Hoggar was placed under arrest at 12:21 and provided the informational component of his rights to counsel one minute later.
194After being searched personally upon arrest at the scene, Mr. Hoggar was transported to police headquarters at 12:33 and arrived at 12:44. The first attempt to contact counsel was made by police at 13:09 hours and his counsel of choice returned the call at 13:16 at which point a private consultation was facilitated until 13:25 hours.
The Position of the Parties
195Mr. Bottomley asserts that the police breached the implementational component of s. 10(b) of the Charter by delaying access to counsel when Mr. Hoggar initially invoked his rights to counsel shortly after the arrest. He also argues that there was an additional breach after the police discovered the firearm, ammunition, drugs, and cash in the Nissan. The basis of these additional breaches is grounded in the delay in informing Mr. Hoggar of the new situation he faced with the additional charges and resulting jeopardy. By not notifying Mr. Hoggar without delay of the change in the reasons for his detention, it is alleged that s. 10(a) was breached. This delay also caused a breach of 10(b) by delaying the implementation of the second consultation with counsel.
196Mr. Bradley for the Crown disputes that there was a breach of s. 10(b) in any respects. He submits that the police complied with their obligations by informing Mr. Hoggar of his rights to counsel without delay upon arrest and facilitating access to counsel at the police station at the earliest opportunity, in consideration of privacy and officer safety factors that prevented access to counsel at the scene of the arrest. He further argues that there was no breach under s. 10(b) because the reason for the delay in informing Mr. Hoggar of the change in jeopardy was reasonable due to the due diligence the officer was undertaking to ensure the correct charges were laid and the evidence seized, properly documented.
The Law – s. 10(b) of the Charter
197Section 10(b) of the Charter guarantees everyone, upon arrest or detention, the right to retain and instruct counsel without delay and to be informed of that right. Justice Doherty in Rover characterized the right to counsel as “a lifeline for detained persons” that includes legal advice and guidance but also the reassurance that they are not entirely at the mercy of the police while in custody.49 The psychological value of access to counsel without delay should not be underestimated.50
198Section 10(b) of the Charter has an informational and implementational component. The failure to comply with either of these two components will result in a breach of the rights to counsel.51 The purpose of the right to counsel is to allow the detainee to be informed of his or her rights and obligations under the law but also to obtain advice as to how to exercise those rights.52 The police have an informational duty to inform the detainee of their right to retain counsel without delay and of the availability of legal aid and duty counsel.53
199From an implementational aspect, only if a detainee has indicated a desire to exercise this right, the police have a duty to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances). The implementation of rights to counsel is not triggered until the detainee indicates a desire to exercise their right to counsel.54
200Implied in the implementational component is the duty to hold off questioning until the detainee has had a reasonable opportunity to consult with counsel.55 These duties are triggered immediately upon an individual’s arrest or detention, as “the concerns about self‑incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is affected.”56
201If the chosen lawyer is unavailable within a reasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended.57 What amounts to a reasonable period of time depends on the circumstances as a whole and may include factors such as the seriousness of the charge and the urgency of the investigation.
202The police have a constitutional obligation to provide access to a phone at the first reasonable opportunity to facilitate access to counsel. Where there is a delay in facilitating this, the burden is on the Crown to show that this delay was reasonable.58
203Courts have recognized that specific circumstances, including concerns for police safety, public safety, or the preservation of evidence, may justify some delay in providing a detainee access to counsel.59 Where the detainee would not immediately be able to consult with counsel in private, a delay in implementing access to the right to counsel may be justified.60
Analysis – s. 10(b) initial implementation
204Upon careful examination of the chronology from the time of the arrest at 12:21 to the time of the initial consultation with Mr. Bottomley 55 minutes later, I am of the view that this initial access to counsel was facilitated at the first reasonable opportunity.
205Mr. Hogarth was arrested and provided his rights to counsel at 12:21. He invoked this right shortly thereafter and identified his counsel of choice as Mr. Bottomley. In this case, Mr. Hoggar not only expressed that desire, but he promptly identified his counsel of choice as Mr. Bottomley. He was in every respect, reasonably diligent in the exercising of his rights to counsel.
206Therefore, the obligation on the part of the police to provide Mr. Hoggar with a reasonable opportunity to consult with his counsel at the earliest reasonable opportunity was triggered. The police were further required to refrain from questioning Mr. Hoggar until that reasonable opportunity was provided.61
207Cst. Bonish explained that due to safety concerns in the laneway and a lack of ability to provide a private environment for consultation, he was not able to facilitate rights to counsel at the scene of the arrest.
208He was searched incident to arrest and upon completion, departed for the police station at 12:33 and arrived at 12:44. The implementation of rights to counsel took place at police headquarters. Mr. Hoggar was paraded during the booking in process and briefly searched again incident to arrest.
209Concerns regarding the possibility that Mr. Hoggar was concealing drugs in between his buttocks were discussed between Cst. Bonish and Archer because it was observed that Mr. Hoggar was constantly fidgeting with his back waistband area. Cst. Riccuto was not confident that this search of Mr. Hoggar upon arrival at the police station was complete due to the thickness of Mr. Hoggar’s sweatpants. The decision was made to conduct a groin sweep in the private lawyer room off camera.
210However, that search was paused in order to contact Mr. Hoggar’s counsel, at 13:09 hours. The following three attempts were made by two different officers to contact counsel of choice between 13:09 hours and 13:12 hours:
2111st Attempt – A call was placed by Cst. Riccuto to Mr. Bottomley at 13:09 hours. There was no response so the officer left a message. This was 48 minutes after the arrest and 25 minutes after arrival at the police station.
2122nd Attempt – A call was placed by Cst. Archer to Mr. D. Michel at 13:12 hours. There was no response so the officer left a message. This was 51 minutes after the arrest and 28 minutes after arrival at the police station.
2133rd Attempt – A call was placed by Cst. Archer to Mr. Gauthier at 13:12 hours. There was no response so the officer left a message. This was 51 minutes after the arrest and 28 minutes after arrival at the police station.
214Prior to the more invasive search of Mr. Hoggar in the lawyer room (groin sweep), Mr. Bottomley had returned a message that was left by Det. Cst. Archer at 13:09 hours. Mr. Bottomley returned the call at 13:16 hours and the additional search (groin sweep) within the lawyer room was suspended to permit Mr. Hoggar to speak to his lawyer in private.
215He spoke to his lawyer from 13:16 hours until 13:25 hours and at the conclusion of that conversation, expressed to Cst. Bonish that he was satisfied with his opportunity to speak to his counsel.
21655 minutes after he was placed under arrest in the laneway and 32 minutes after arrival at the police station, Mr. Hoggar commenced to exercise his rights to counsel in private with his counsel of choice and was satisfied with this opportunity. During the intervening time, the police did not question or attempt to elicit any evidence from him.
217The evidence clear substantiates uncontradicted concerns for police safety, public safety (including that of Mr. Hoggar), or the preservation of evidence, that effectively justified some delay in providing Mr. Hoggar access to counsel until 13:09. For officer safety and a lack of privacy, there was no reasonable opportunity to facilitate Mr. Hoggar’s access to counsel in the back laneway upon arrest.
218Upon arriving at the police station, Mr. Hoggar was searched incident to arrest and exhibited behaviour that caused the officers to suspect that he could have been concealing certain items, including drugs, on his person. The risk of not conducting a more thorough search of Mr. Hoggar and then placing him into the cells were articulated persuasively by Cst. Bonish given his experience in prior arrests of individuals involved I the drug trade or drug subculture.
219Even while commencing that search incident to arrest at the police station, he suspended the search to facilitate access to counsel. Balancing the safety concerns for all persons involved and the lack of privacy in the laneway, I find that Mr. Hoggar was provided a reasonable opportunity to consult with his counsel of choice at the earliest reasonable opportunity. This ground alleging a breach of s. 10(b) of the Charter is dismissed.
Issue 5 – Did the police breach section 10(a) and (b) of the Charter by delaying the notification of the additional charges, the change in jeopardy and the informational and implementation components of rights to counsel upon discovery of evidence during the search of the Nissan?
220A brief chronology of events relevant to the second consultation pursuant to s. 10(b) is as follows:
13:47 – Search of the Nissan commenced at Bob’s Service Centre;
14:20 – OPP canine officer arrived and commenced search;
14:26 – Canine signals positive indication at front passenger side door;
14:31, after a canine search, a more thorough search of the Nissan commenced;
1449 hours – a handgun is located inside the rear driver’s side door. The assistance of a forensic identification officer was required in order to handle the firearm located in the rear passenger seat door compartment;
Cocaine, fentanyl, handgun, ammunition, cash were found within the Nissan;
15:52 – confirmed by forensic identification officer the firearm was in fact real and loaded with ammunition;
16:12 – search of the Nissan concluded;
16:30 – Returned to police station approx.;
17:51 – Cst. Bonish counted the currency seized and turned over to asset forfeiture officer. The officer then reviewed the Criminal Code and educational material to determine appropriate charges. He also contacted the arresting officer, Cst. Porringa, and ascertained grounds to lay the charge of resisting arrest;
18:46 – Notified Mr. Hoggar of additional charges and provided him with rights to counsel for a second time (informational);
18:52 – Cst. Bonish called Mr. Bottomley and notified him of the additional charges;
18:54 to 58 – Mr. Hoggar’s second consultation with his counsel was completed;
The Law – S. 10(a) Reasons for Detention and 10(b) – Second Consultation with Counsel
221There are circumstances that require the police to provide a detainee with their rights to counsel again and necessitate a second opportunity to consult with counsel in order to obtain legal advice in a new situation.62 They include instances of (1) New or non-routine procedures; (2) A change in jeopardy; and (3) If there exists a reason to question the detainee’s understanding of his/her section 10(b) right.63 The categories are not closed.64
222A change in jeopardy should be objectively observable and is acknowledged if the investigation has taken a new or more serious turn of events.65
223The change in jeopardy that justifies a second consult will be a “discrete change in the purpose of the investigation, one involving a different, unrelated offence or significantly more serious offence than that contemplated at the time of the warning.”66
224A person is entitled to know the reason that they are being detained, unless the circumstances are such that they know why. The reasons do not need to be expressed in technical or precise language but must, in substance, inform the person as to why they are being detained.67
225Section 10(a) of the Charter, the right to be informed upon detention of the reasons for the detention, works together with s. 10(b), because the advice given by counsel at the time of detention will be tailored to the situation as the detainee and his lawyer then understand. It follows that if the reason for the detention has changed, the legal advice provided to the detainee at the first consultation may no longer be adequate to the actual situation.68
226In order to fulfil the obligations under section 10(b), the detainee must be provided with a second consultation with counsel to obtain legal advice on the new, more serious situation that appreciates the increase in jeopardy the detainee is actually facing.69
Analysis – s. 10(a) and 10(b) – second consultation
227The conduct of the police fell short of fulfilling their constitutional obligations to Mr. Hoggar pursuant to s. 10(b). It does not appear to be in dispute that when the police discovered the firearm, fentanyl, cocaine, and large sum of cash among other evidence identifying Mr. Hoggar as an occupant in the Nissan, that his legal jeopardy was objectively elevated to a more serious degree.
228At this juncture of the investigation, he was under arrest for possession for the purposes of trafficking in fentanyl and cocaine. But the items discovered in the Nissan permitted Cst. Bonish to form the grounds to charge with him various firearm related offences, resisting arrest, and possession of property obtained by crime exceeding $5000. Simply put, the change in jeopardy was objectively observable.
229These new offences were not contemplated at the time the initial rights to counsel were provided to Mr. Hoggar. The legal advice Mr. Hoggar received during his initial consultation with Mr. Bottomley may not have been adequate with the seizure of these items that clearly elevated the seriousness of the charges.
230Pursuant to s. 10(a) of the Charter, the police had a duty to inform Mr. Hoggar of the reason for his detention that had now evolved into more serious set of circumstances. Furthermore, in accordance with Sinclair, there was a fresh obligation on the part of the police to provide Mr. Hoggar with the informational component to rights to counsel again, and another reasonable opportunity to access counsel, if invoked by him.
231Upon concluding the search at 16:12 hours, Cst. Bonish arrived at the police station at 16:30 hours. Shortly thereafter, he had the opportunity to notify Mr. Hoggar of the change in jeopardy. Although by this time he may not have had a precise amount of the Canadian currency seized, or the details of the grounds in support of the resist offence, he had in fact concrete knowledge of the loaded firearm, ammunition and drugs that had been located.
232The imminent addition of the firearm-related offences and the discovery of what was reasonably believed to be fentanyl and cocaine should have been communicated to Mr. Hoggar as soon as he arrived at the police station where Mr. Hoggar was physically present.
233The evidentiary record before me confirms that prior to 18:46 hours, there were no steps taken whatsoever by Cst. Bonish or any other officer to notify Mr. Hoggar of what was clearly an increase in his legal jeopardy. Instead, Cst. Bonish commenced the task of processing the evidence seized from the search of the Nissan, and then turned over the evidence to fellow officers which was completed at approximately 17:51 hours.
234He wanted to ensure that he was going to lay the correct charges. In furtherance of this task, he proceeded to review the totality of the investigation and the evidence he had gathered. He also reviewed educational materials and an e-mail to ensure that he had the correct charges.
235He also spoke to the arresting officer, Cst. Porringa and was able to obtain grounds to support a charge of resisting arrest.
236At 18:46 hours, over two and half hours after the conclusion of the vehicle search and almost four hours after the first prospect of the discovery of the firearm, officers Bonish and Murray proceeded to the cellblock to arrest Mr. Hoggar of the additional offences. It was at this point that Mr. Hoggar was told for the first time that he was facing several firearm-related charges along with possession of property obtained by crime and resist arrest. Due to the seizure of the drugs from the Nissan, he was told again that he was under arrest for the offences of possession for the purposes of trafficking in fentanyl and cocaine.
237Mr. Hoggar was provided the informational component of his rights to counsel for a second time and accepted an offer from Cst. Bonish to speak to Mr. Bottomley again.
238At 18:52 hours, Cst. Bonish contacted Mr. Bottomley and at 18:54 hours to 18:58 hours, Mr. Hoggar was provided an opportunity to speak to his counsel in private for a second time. Upon completion of this second phone call with Mr. Bottomley, Mr. Hoggar agreed with the officer that he was satisfied.
239A detainee must be told the reasons for their detention and rights to counsel must be provided without delay. When invoked, the police have a duty to facilitate access at the first reasonable opportunity. Here, the police clearly prioritized the investigation at the expense of protecting Mr. Hoggar’s Charter right to know why he continued to be detained and his right to counsel. There were no safety reasons for this delay or logistical factors that prevented a timelier response.
240I am satisfied that on a balance of probabilities, Mr. Hoggar’s Charter rights under sections 10(a) and (b) were breached due to the significant delay in notifying him of the new charges and in providing him with the informational and implementational components of his rights to counsel.
Issue 6 – If there was a breach, should the evidence seized by the police incident to arrest be excluded in accordance with the Grant test pursuant to section 24(2) of the Charter?
241As a remedy in response to Charter breaches under s. 10(a) and (b), Mr. Hoggar is seeking to have all items found in the Nissan excluded pursuant to s. 24(2). The Crown, on the other hand, takes the position that s. 24(2) does not apply because there is no nexus between these breaches and the discovery of the evidence inside the vehicle.
242I must first determine whether the seized evidence in the Nissan was “obtained in a manner” within the meaning of s. 24(2) of the Charter. I agree with the Crown that there is no causal connection between the breaches of Mr. Hoggar’s Charter rights under sections 10(a) and (b) and the evidence of the firearm, ammunition, currency, and drugs seized from the Nissan.
243The scope of the breaches was limited to the delayed notification of the new charges and the timing of the right to a second consultation with counsel. These breaches happened well after the evidence in the Nissan was located during the search of the vehicle and subsequent to Mr. Hoggar having initially exercised his rights to counsel to his satisfaction 55 minutes after the arrest.
244The threshold requirement in s. 24(2) that evidence be "obtained in a manner" that violates the Charter does not require a strict causal relationship between the breach and the evidence at issue.70A temporal or contextual connection between the breach and the evidence may suffice to engage s. 24(2) if the connection is not "too tenuous or too remote".71
245The phrase “obtained in a manner” has been interpreted broadly and generously.72 Section 24(2) may still be engaged even in circumstances where a breach of s. 10(b) of the Charter did not result in the obtaining of evidence.73
246Although the Charter breaches here did not cause the evidence to be found, I find that there is a sufficient temporal and contextual connection in the same transaction all within a few hours that triggers the application of s. 24(2) of the Charter.74 Accordingly, the three lines of inquiry in the Grant test are applicable.
Seriousness of the Charter-Infringing Conduct – The First Grant Factor
247The first line of the Grant inquiry requires an examination of the seriousness of the police conduct that caused the breach. In order to determine the effect of admission of the evidence on public confidence in the justice system, the court must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities.75
248The court must consider whether the police engaged in misconduct from which the court should dissociate itself, such as where the departure from Charter standards was significant, where the police knew or should have known that their conduct breached the Charter, whether the breach was merely of a technical nature or reflected an understandable mistake, in which case dissociation is much less of a concern.76
249Ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith.77 However, the admission of evidence obtained through inadvertent or technical violations of the Charter may minimally undermine public confidence in the rule of law.78
250In the case at bar, the police were aware as early as 14:49 hours that a possible firearm was hidden within the Nissan. During the search, Det. Cst. Murray advised her fellow officers that she could she what she believed to be a handgun inside the rear driver's side door. Cst. Bonish then was able to observe the magazine portion of a black handgun. At 15:52 hours, it was confirmed that their initial beliefs were correct once the forensic officer arrived and removed the firearm from within the door compartment.
251The search of the Nissan concluded at 16:12 hours and the officers were now aware of the full extent of the evidence located in the vehicle, and the increase in Mr. Hoggar’s legal jeopardy. Cst. Bonish departed the location of the search and at 16:30 hours, arrived at the police station where Mr. Hoggar was lodged in cells. This was the first reasonable opportunity to provide him with his rights under s. 10(a) and (b) of the Charter. Despite this knowledge, no steps were taken until 18:46 hours to notify Mr. Hoggar of the significant change in jeopardy and the additional charges.
252Cst. Bonish is an experienced officer with years of training, and he ought to have known that he had a duty to safeguard Mr. Hoggar’s Charter rights. This obligation superseded the administrative and investigative tasks that he chose to prioritize over the Charter rights of Mr. Hoggar. There is no reasonable explanation for this delay in violation of s. 10(a) and (b) of the Charter and the court should dissociate itself from this type of conduct.
253The breaches of s. 10(a) and (b) were serious. Mr. Hoggar was in a situation of vulnerability and kept in the dark for hours regarding the true nature of the jeopardy he faced. He was unaware that additional charges were inevitably going to be added because of the evidence discovered in the vehicle. It is reasonable to assume that the earlier advice he received from his counsel was no longer adequate considering the significant change in circumstances. All of this was taking place while he waited in a “dry cell” and the risk of self-incrimination was alive.
254However, the breaches were in many respects, technical in nature and contextually, took place after an initial consultation with his counsel of choice to his satisfaction. Furthermore, while the delay in notifying Mr. Hoggar of the additional reasons for his detention and new charges was over two and half hours after the conclusion of the search, ultimately, Cst. Bonish did comply with s. 10(a) and (b) within the same transaction.
255At 18:46 hours, the same time that Mr. Hoggar was notified of the significant change in his jeopardy, the informational component of rights to counsel was provided. This officer took an additional few minutes to explain the charges to Mr. Hoggar, who appeared to have some questions. Immediately thereafter, the officer called Mr. Bottomley and had Mr. Hoggar on the phone with him eight minutes after Mr. Hoggar had invoked his rights to counsel.
256I am of the view that the violations of s. 10(a) and (b) were serious but they were in many respects, technical in nature and attenuated due its underlying motives. Cst. Bonish had taken the time he needed to research the law and access educational resources to ensure that he was not overcharging Mr. Hoggar. He was also attempting to be thorough by accurately accounting for the evidence provided to exhibit officers in the form of large amounts of cash, drugs and a loaded handgun and ammunition.
257Combined with the earlier consultation with his lawyer, eventual compliance with the Charter, and the complete absence of attempts by the police to obtain incriminating evidence from him during this time, the breaches of s. 10(a) and (b) in this obligatory second consultation with counsel was at the lower end of the spectrum of seriousness. The admission of the evidence would minimally undermine the public’s confidence in the rule of law. Balancing these factors, the first line of inquiry moderately favours exclusion of the evidence.
The Impact of the Breach on the Charter-protected rights of the Accused – The Second Grant Factor
258The second line of the Grant inquiry focusses on the seriousness of the impact of the breach on the Charter-protected interests of the accused. This requires an examination of the extent to which the breach actually undermined the protected Charter interests. The impact of a breach may range from fleeting and technical to profoundly intrusive.79 The court must consider the Charter interests engaged in s. 10(a) and (b) and examine the degree to which the breaches impacted those protected interests.80
259The main purpose behind s. 10(b) is to provide the detainee with immediate access to legal advice to support their right to choose whether to cooperate with the police and to primarily safeguard their right to silence.81 This right can only be exercised meaningfully if the detainee is aware of what his or her true jeopardy is and the full extent of the reasons for their detention.
260Where the Charter breach does not cause the evidence at issue to be found, this absence of causation may mitigate the impact of the breach on a defendant's Charter-protected interests on the second branch of the s. 24(2) analysis.82
261I have already found that the initial consultation with counsel 55 minutes post-arrest was conducted in compliance with s. 10(b) of the Charter, both from an informational and implementational component. This is a vitally important consideration in my assessment of the true impact of the breaches on Mr. Hoggar’s Charter-protected interests under s. 10(a) and (b) in the context of the change in jeopardy that required a second consultation with Mr. Bottomley.
262The situation at bar in this context is highly distinguishable from the case law on the breaches of the implementation components of 10(b) provided to me by Mr. Bottomley on this point.83 Neither of those cases were decided within the context of a second consultation required as defined in Sinclair, and reflective of facts that included an initial consultation with counsel that was found to be constitutional.
263I raise this because the fact that Mr. Hoggar had exercised his rights to counsel initially and to his satisfaction significantly attenuates the impact of the breaches on his Charter-protected interests. Having spoken to Mr. Bottomley 55 minutes after the arrest, the purposes of s. 10(b) were met albeit in relation to the offences of possession for the purposes of trafficking, serious offences in their own right.
264In effect, the police did hold off as part of their implied duties within the implementational component of rights to counsel. The fact that the police did not attempt to elicit any incriminating evidence from Mr. Hoggar during the delay from the first reasonable opportunity to provide him with his rights to counsel for a second time (16:30 hours) to when those obligations were actually fulfilled (18:46 hours), provides some evidence that the purpose of s. 10(a)and (b) were effective in safeguarding the Charter-protected interests of Mr. Hoggar.
265Despite the significant delay of at least two hours and 16 minutes, Mr. Hoggar maintained his right to silence, and no incriminating evidence was sought or obtained from him by the police while he was in custody after his initial consultation with counsel and prior to the second informational component at 18:46 hours and re-consultation at 18:54 hours.
266Furthermore, as I have concluded, the evidence seized from the vehicle was obtained legally as part of the search incident to arrest. The delay in notifying Mr. Hoggar of the change in jeopardy as a result of the discovery of the evidence was not causally linked. Put another way, the breaches of s. 10(a) and (b) did not cause the evidence in the Nissan to be discovered. That evidence was lawfully obtained and would exist independent of these breaches because of the lawful nature of the search incident to arrest.
267Mr. Hoggar chose not to provide evidence in his Charter application, which is his right. On the record before me, the only subjective evidence I do have is that on both occasions he exercised his rights to counsel to his satisfaction. Combined with the understanding that no evidence was elicited from him in connection to the breaches, and that the re-consultation with counsel ultimately did happen within the same transaction, I am of the view that the actual impact of the breaches on the Charter-protected interests of Mr. Hoggar were minimal. In the context of these breaches rooted in the change in jeopardy and right to re-consult counsel and in the face of an initial consultation that was constitutional, I conclude that this second line of the Grant inquiry minimally favours exclusion of the evidence.
Society’s Interest in the Adjudication of the Case on its Merits – The Third Grant Factor
268The third line of inquiry in Grant asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This analysis acknowledges that society has an interest in bringing to trial those who contravene the law.84 The court is required to consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence.85
269The reliability of the evidence is an important factor when assessing the third line of inquiry. If a breach undermines the reliability of the evidence, this is a factor pointing to exclusion of that evidence. Admitting unreliable evidence will damage an accused’s right to a fair trial and severely inhibit the truth-seeking function of the trial process.86 On the other hand, excluding relevant and reliable evidence will undermine the truth-seeking function of the trial and render it unfair from the perspective of the public. This would bring the administration of justice into disrepute.87
270The evidence seized from the Nissan operated by Mr. Hoggar included a loaded handgun, ammunition magazines, a large sum of Canadian currency and a significant amount of illicit drugs, namely, cocaine and fentanyl. There was also what appeared to be packaging material (smaller plastic bags), three cell phones and identification that pertained to Mr. Hoggar. Each of the items are reliable evidence of guilt in relation to the offences to which they relate. In particular, the drugs, firearm, ammunition, and large sum of Canadian currency provide highly reliable evidence that were obtained through a lawful search incident to arrest.
271This evidence was not causally connected to the breaches of s. 10(a) and (b) of the Charter. As explained above. The exclusion of this highly reliable evidence would effectively end the prosecution of these serious offences and in my view, bring the administration of justice into disrepute. The third line of the Grant inquiry strongly supports inclusion of the evidence.
Balancing of the Grant Factors
272I remind myself that Mr. Hoggar bears the burden to show, on a balance of probabilities, that the admission of the evidence obtained in a manner that breached his Charter rights would bring the administration of justice into disrepute.88 The final step of the 24(2) analysis requires the court to balance the three lines of inquiry to assess its impact of admission or exclusion of the evidence on the long-term repute of the administration of justice.89
273There is no evidence that the breaches I have found here are systematic in nature. They appear to be focused on the individual facts of this case and ultimately motivated by an investigating officer that attempted to be ultra-thorough and organized in the submission of evidence with fellow exhibit officers and the choices of which counts to charge in the Information. The contextual background is one that includes an initial consultation with counsel that appears to have proven effective in protecting Mr. Hoggar’s right to choose whether to co-operate with police and how, and his choice to remain silent.
274No evidence was obtained from Mr. Hoggar as a result of the delay in him being notified of the increase in his jeopardy and the second consultation with counsel. I am reminded that the absence of a causal connection between the Charter breach and the evidence may be a factor that weighs against the exclusion of evidence.90
275The evidence obtained is highly reliable and speaks to the immensely profitable enterprise that Mr. Hoggar achieved in Sudbury by trafficking in fentanyl and cocaine. The possession of a loaded handgun and loaded ammunition with the imminent ability to cause death or serious bodily harm in our local community speaks to a concerning level of risk to the public that Mr. Hoggar presented.
276While the violation of Mr. Hoggar’s Charter rights were serious, they were at the lower end of the spectrum due to the technical nature of the breaches that came subsequent to an initial consultation with counsel that was in compliance with s. 10(a) and (b). Excluding this important evidence for the prosecution would effectively punish the police for an error that was not initiated in a malicious way, and ultimately cured after the fact but within the same transaction.
277Having considered each of the factors in the Grant analysis, I conclude that on the facts of this case, the admission of this reliable evidence would not bring the administration of justice into disrepute. Ultimately, the admission of this evidence would better serve the truth-seeking function of the criminal justice system.
278The evidence seized by the police during the search of the Nissan and Mr. Hoggar personally is admitted at trial.
Issue 7 – Has the Crown proven that there is no other reasonable inference other than guilt for the possession offences? (Villaroman)
The Search of the Nissan at Bob’s Service Centre91
[279] This portion of my Reasons will overlap with Issue 3, where I concluded that the search of the Nissan incident to arrest was conducted reasonably within the s. 8 Charter context. I have found that the police had the requisite grounds to arrest Mr. Hoggar and the search of the Nissan at Bob’s Service Centre to be incident to that arrest.
280During the search, the police discovered packaging material, bundles of cash, fentanyl, cocaine, a loaded handgun, and two loaded magazines among other items.
281As indicated earlier in my analysis of Issue 3, upon careful examination of this evidence, there is nothing on the record before me that points to the search of the Nissan being conducted in an unreasonable manner. I have concluded that the use of the canine and manner of search in totality, was conducted reasonably and consistent with a valid purpose connected to the arrest for the offences of trafficking in cocaine and fentanyl.
282The Nissan was towed to a secure location at Bob’s Service Centre from the back laneway of a residence associated to Mr. Hoggar. Shortly after his arrival, at 13:47, Cst. Bonish and Detective Cst. Murray commenced the search of the Nissan. Cst. Bonish began his search on the driver’s side front seat area where there was broken glass scattered. He located in the center console underneath a cell phone the driver’s license, health card, RBC client card and a travel card each in the name “Joseph Hoggar”.
283On the ground between the door and the front driver’s seat, there were several loose “Zip lock” sandwich bags tucked on the left side of the driver's seat. The officer described these clear sandwich bags to appear fresh and unused. They did not appear to have been there for an extended period of time. He interpreted these items to be consistent with packaging material utilized in drug trafficking activity.
284In the back seat there was a large box that contained an oven cook top. There were no items of evidentiary value.
285On the passenger side, inside the glove box there was a rental agreement indicating that Joseph Hoggar had rented the Nissan from April 4th to the 18th, 2023. The rental car agency was identified as “Ready Rentals Incorporated,” based out of Hamilton.92 For the purposes of the trial proper, I am explicitly disabusing myself of this evidence because it was not introduced in any admissible form.
286Also located in the glove box was a Phillips head screwdriver that was equipped to open screws with a star shape.
The Canine Search
287According to Cst. Bonish, Detective Sergeant Marrasato requested a canine unit to attend and assist with the search of the Nissan. At 1420 hours, Cst. Mondor, from the Ontario Provincial Police (“OPP”) attended with his canine. At this point, no narcotic, weapons or cash had been identified or removed from the Nissan by any officers.
288The canine is specifically trained to detect drugs. At 1426 hours, Cst. Mondor advised that his canine was indicating a positive result at the front passenger door. This was the only area the canine had indicated a positive result. At 1430 hours, the canine search was concluded. Immediately thereafter, Cst. Bonish attended to the same front passenger door identified and manipulated the armrest. At this point, he realized that the entire armrest was easily removable in an upwards motion.93
289Upon moving the armrest, Cst. Bonish was able to observe stuffed within the space inside the door, large bundles of what he believed to be Canadian currency and a white powdery substance believed to be cocaine.
290Also located inside the front passenger side door under the armrest were a number of screws that matched the shape of the Phillips screwdriver that he had located and a glove box earlier in the search of the Nissan. Cst. Bonish was able to lift up the arm piece and use this screwdriver to open up the door panel. In doing so, he was able to access and seize four large bundles of Canadian currency from within the front passenger door containing a large amount of white powdery substance he believed to be cocaine. These items were seized between 1436 to 1438 hours respectively.
291Cst. Bonish emphasized that the Phillips screwdriver obtained from the glove box of the Nissan was a necessary tool he required to open the door panel to access these items.
292At 14:40 hours, like the front passenger side door, the officer described that he was able to easily lift up the armrest to the front driver’s side door. Cst. Bonish described this armrest to be easier to lift than the front passenger side door. He was able to easily remove this armrest and access several clear wrapped bags that in his opinion, appeared to be pre-weighed in small amounts of either cocaine or fentanyl.
293One minute later, he located inside the driver’s side door a larger plastic Dempster’s bread bag that had a large amount of a green hard substance he believed to be fentanyl. Under the Dempster bag, he located another clear sandwich bag that had within it multiple tied bags each containing what he believed to be pre weighed controlled substances. At 1446, Cst. Bonish located underneath these bags more bundles of cash.
The Discovery of the Handgun and Extended Magazine – Rear Driver’s Side Armrest
294At 1449 hours, Detective Cst. Murray was able to open the rear driver side armrest. She advised her fellow officers that she could she what she believed to be a handgun inside the void space of the rear driver's side door. Cst. Bonish then had a look and was able to observe the magazine portion of a black handgun.
295At this point, Detective Sergeant Marassato took steps to contact a forensic identification officer to attend Bob’s Service Centre to process the handgun for evidentiary purposes. While waiting for this officer to arrive, the handgun was not disturbed, and the search commenced in other parts of the Nissan.
296Shortly thereafter, located within the rear passenger side door underneath the armrest in the void space we're more bundles of Canadian currency and a large amount of white substance found on top of the bundles of currency. The white powdery substance was contained within two bags and was believed to contain cocaine and crack cocaine. There was an additional black tied off bag that was located within the rear passenger side door that the officer believed to contain a controlled substance.
297Cst. Bonish testified that similar to the other doors he had searched to this point, he was required to utilize the Phillips screwdriver to remove the door panel. Upon doing so, he was able to access at the very bottom of the door another large bag of a white powdery substance believed to be cocaine.
298At 15:52 hours, Cst. M. Kovala, a forensic identification officer with the Greater Sudbury Police Service, arrived at Bob’s Service Centre. He looked inside the panel of the driver’s side rear door of the vehicle and was able to see a bundle of cash directly beside a black semi-automatic pistol with an extended magazine inserted.
299In reviewing Exhibit 3 Tab A, photos 19 (a) and (b), a bundle of cash wrapped in a rubber band can be seen directly beside the handle of a black handgun inside the door frame of the Nissan.
300Cst. Kovala described the handgun as a 9mm Glock 26 Gen. 5 and further advised that it had a prohibited extended magazine situated inside the pistol itself. This extended magazine was fully loaded. He also confirmed that there was one round in the chamber of the gun.
301He proceeded to photograph the bundle of cash and firearm and then removed it from within the rear driver’s side door and processed this evidence for forensic purposes. He explained that it was not difficult for him to reach into the door frame and access the firearm with one hand.
The Discovery of the Second Magazine – Rear Driver’s Side Door Panel
302Cst. Bonish then proceeded to use the same Phillips screwdriver from the glove box and unscrew the same rear driver side door panel. In doing so, a second loaded magazine fell to the ground. Cst. Kovala proceeded to photograph it and ascertained that it was also full of the same bullets that were loaded in the firearm.
303Cst. Kovala testified that he test-fired the handgun and confirmed that it functioned as a semi-automatic firearm while utilizing both loaded magazines.
304Upon returning to the police station with these items, Cst. Kovala aimed to identify any DNA that could be attributed to a handler of the firearm. He proceeded to take swabs of the grip area of the handgun, as well as the top slide portion. He also swabbed and unloaded both magazines and then swabbed the ammunition rounds contained within.
305Although the swabs were sent to the Centre of Forensic Sciences (“CFS”) for testing, the results revealed a complex mixture of DNA sources detected on the firearm grip. According to Cst. Kovala, the CFS lab did not accept the swabs for the magazine rounds.
306Forensic processing through a chamber to identify any fingerprints on the firearm and both magazines revealed partial fingerprints, none of which were of sufficient quality to permit identification. However, the ammunition was not checked for fingerprints.
307The search of the Nissan concluded at 1612 hours. Cst. Bonish returned to the police station in downtown Sudbury arriving at approximately 1630 hours.
The Position of the Parties
308The Crown submits that Mr. Hoggar was in personal and constructive possession of the items seized incident to his arrest. If every little piece of evidence in the trial is considered together as a whole, there is ample circumstantial evidence to find that the only reasonable inference points to Mr. Hoggar’s guilt to the standard of beyond a reasonable doubt on each of the possession offences involving the cash, drugs, handgun and ammunition.
309Mr. Hoggar submits that there are numerous gaps in the circumstantial evidence that should leave the court with a reasonable doubt. First, there was no investigation conducted by the police to determine if others had access to the car. Other than observing Mr. Hoggar to be driving the Nissan for a limited period of time on the day of the arrest, there is no other evidence of who had access to the Nissan and for how long. There is no evidence of ownership or a rental agreement for the Nissan that leads to Mr. Hoggar and the items found in the vehicle were not in plain view for Mr. Hoggar to have been able see as the operator or sole occupant.
The Law – Possession
310The essential elements of possession were succinctly summarized by Justice Watt in R. v. Bains, 2015 ONCA 677 at paras. 154-157:
“The Essential Elements of Possession
154 Section 2(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, as amended ("CDSA"), incorporates the definition of possession found in s. 4(3) of the Criminal Code so that any CDSA offence of which possession is an essential element may be proven in any manner permitted by s. 4(3) of the Criminal Code.
155 Under s. 4(3), possession includes personal possession, constructive possession and joint possession: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 15. Knowledge and control are essential elements in both personal and constructive possession: Morelli, at para. 15.
156 Constructive possession does not involve an accused having physical custody of a subject-matter. Constructive possession is established where an accused has the subject-matter in the actual possession or custody of another person, or in any place, whether belonging to or occupied by the accused or not, for the benefit of the accused or someone else: Morelli, at para. 17. To establish constructive possession the Crown must prove beyond a reasonable doubt that an accused:
i. knows the character of the object;
ii. knowingly puts or keeps the object in a place; and
iii. intends to have the object in the place for his or her use or benefit or the use or benefit of some other person: Morelli, at para. 17.
157 As with other offences, Crown counsel may prove the essential elements of constructive possession by direct evidence, by circumstantial evidence or by a combination of direct and circumstantial evidence. Where the subject matter of which an accused is alleged to be in possession is a controlled substance of significant value, it may be open to a trier of fact to infer not only knowledge of the nature of the subject, but also knowledge of the substance itself: R. v. Blondin (1970), 1970 1006 (BC CA), 2 C.C.C. (2d) 118 (B.C.C.A.), at p. 121; R. v. Fredericks, [1999] O.J. No. 5549 (C.A.), at paras. 3-4; R. v. To, 1992 913 (B.C.C.A.); and R. v. Bryan, 2013 ONCA 97, at para. 11. It is a reasonable inference that such a valuable quantity of drugs would not be entrusted to anyone who did not know the nature of the contents of the bag or other container.” [emphasis added]
The burden rests with the Crown
311I remind myself that the Crown must prove each element of the offences beyond a reasonable doubt. The standard of proof beyond reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence. The burden of proof rests on the prosecution throughout the trial and never shifts to the accused.
312A reasonable doubt is not a doubt based upon sympathy or prejudice. Rather, it is based upon reason and common sense. It is logically connected to the evidence or absence of evidence.94
Circumstantial Evidence of Possession – Villaroman
313The evidence against Mr. Hoggar with respect to the counts related to possession of the firearm, ammunition, and possession for the purposes of trafficking drugs, is circumstantial in nature.
314In Villaroman, Cromwell J. provided helpful guidance for trial judges in considering circumstantial evidence and other reasonable possibilities. The trier of fact is required to consider the range of reasonable inferences available on the evidence as a whole, and the gaps that exist. The court must ensure that no other reasonable inference other than guilt applies on the admissible trial evidence. In other words, an inference of guilt should be the only reasonable inference that circumstantial evidence permits95.
315If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.96 This requires the trial judge to consider other plausible theories and reasonable possibilities based upon the evidence admitted, and whether the circumstantial evidence is reasonably capable of supporting an inference other than guilt. The Crown may have to disprove other reasonable inferences, but this does not extend to every possible conjecture.97 This exercise must focus on the evidence, or absence of evidence, and not on speculation. The assessment calls upon logic and draws upon our human experience and common sense.98
316In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts.99 Each piece of evidence by itself, may not support the inference of possession beyond a reasonable doubt. However, I am obliged to consider the combined effect of all of the evidence relevant to the issue of whether the accused knowingly possessed the items and in doing so, whether the only rational inference that could be drawn from the entirety of the evidence was guilt beyond a reasonable doubt.100
317Where there is strong circumstantial evidence of possession and a judge is faced with a lack of evidence that could counter the inference of guilt reasonably arising from the Crown’s evidence, then a conviction is appropriate.101 A judge must not use the rejection of defence evidence as positive evidence of guilt, but a rejection of defence evidence can leave a court with no other reasonable inference than guilt.102
Analysis
318On the trial proper, I am permitted to consider Cst. Bonish’s observations of Mr. Hoggar on April 19, 2023, as discussed earlier in these Reasons, and any additional evidence located and seized pursuant to the arrest and searches. I am aware of Cst. Bonish’s direct surveillance of Emanual Deguaro in previous unrelated drug investigations and as an occupant of 3 Jane Street, a residence used in the past as a “trap house”,103 but this evidence is of very little weight given the lack of any direct observations that would support the allegation of trafficking.
319In addition to the description of evidence provided by Cst. Bonish in Issue 1 of these Reasons, hours before the arrest, Cst. Bonish was actively checking addresses in Sudbury known to facilitate drug trafficking. Those observations consisted of, inter alia, brief interactions with two different individuals at 3 Jane Street and at a townhouse complex next to a local elementary school parking lot. Those interactions took place in and around the Nissan but there is no direct evidence from Cst. Bonish or any other officer that included actual observations of drug trafficking activity or possession of the firearm and ammunition.
320I remind myself that any opinion evidence from Cst. Bonish as it relates to his knowledge and experience in supporting his interpretation that these brief meetings would be evidence in support of drug trafficking is not permissible on the trial proper. In other words, Cst. Bonish is not permitted to offer lay opinion evidence to support the offences of trafficking in the illicit substances on the basis of these brief meetings he observed involving Mr. Hoggar and the two other people he had interacted with in the Nissan on the day of his arrest.104
Villaroman Applied
321The evidence found on Mr. Hoggar personally and in the vehicle he was operating throughout those brief encounters leading up to his arrest had all the hallmarks of what appeared to be an active drug trafficking business he was operating in Sudbury.
322The breadth of items seized from within the Nissan provides powerful evidence of the Nissan being utilized as an essential tool for its sole occupant, Mr. Hoggar, to traffic in illicit drugs in the local community. The total street value of fentanyl and cocaine found was agreed to be between $69,200 to $110,300.
323A total of $50,836.20 in Canadian currency was seized of which $6766.20 was found in Mr. Hoggar’s pockets upon arrest. The remaining $44,070 was found in various hidden areas within the green Nissan Altima operated by Mr. Hoggar. There is no evidence that anyone other than Mr. Hoggar had operated this vehicle in the hours leading up to the arrest.
324The combined value of the drugs and cash found deeply hidden within the Nissan was between $120,036.20 to $161,136.20. I am mindful of the two other individuals that briefly met with Mr. Hoggar in the vehicle in the lead up to the arrest. However, I reject the notion that Mr. Hoggar did not have knowledge and control of these items in the Nissan on the day of the arrest.
325Given the quantity and value of the seized drugs and cash, I find it inconceivable that these items would be entrusted with someone who was unaware of its presence within the vehicle at the time it was operated. With this in mind, I infer not only that Mr. Hoggar had knowledge of the nature of the subject concealed, but that he also had knowledge of the substances themselves. The evidence of knowledge and control points to Mr. Hoggar, and no one else.
326Additionally, the level of sophistication and planning required to conceal the exceedingly high value of drugs, bundles of cash, loaded firearm and ammunition speaks to an acute level of knowledge of the need to conceal and control the said items. Logically, the need to conceal would be partly due to the illicit nature of these items but also because of their very high value (large amount of cash, fentanyl and cocaine).
327Evidence of this level of planning and knowledge included the discovery of the Philipps screwdriver in the glove box to the Nissan operated by Mr. Hoggar, along with his identification in plain view, multiple cell phones and fresh packaging material in the form of Ziplock bags in the immediate vicinity of where he was situated. The Philipps screwdriver was an essential tool required to open other compartments within the vehicle where most of these items were hidden.
328In a careful examination of the photographic exhibits, the location of the loaded handgun is seen to be directly beside a bundle of cash inside the rear driver’s side door. This leads me to conclude that the person who had knowledge and control of the bundle of cash would have reasonably known the loaded handgun was present, and vice versa.
329It is no surprise that a loaded handgun with two fully loaded magazines accompanied this highly valued cargo. Indeed, that firearm was likely placed within the Nissan in order to provide a certain level of protection for the sole occupant actively engaged in the trafficking of a large quantity of illicit drugs from the vehicle.
330Given the large sum of cash seized incident to arrest, the fresh, unused clear Ziplock bags beside the driver’s side door in plain view, the multiple cell phones, total value of the drugs and way they were apportioned and packaged, Mr. Hoggar’s knowledge and control of these items is the only reasonable inference available.
331When considered in conjunction with the totality of the evidence seized from the Nissan, and Mr. Hoggar’s actions observed during the surveillance prior to the arrest, the circumstantial evidence provides persuasive support to find that the only reasonable inference available on the record before me is that Mr. Hoggar had the requisite knowledge and control to be in possession of all of the items seized, including the loaded handgun and ammunition, while engaged in the trafficking of fentanyl and cocaine in Sudbury on April 19, 2023.
332I come to this conclusion despite the absence of fingerprint or DNA evidence that is linked to Mr. Hoggar on the handgun, ammunition, and drugs. I remind myself that the absence of this forensic evidence is a factor that I can consider in favour of raising a reasonable doubt on the issue of possession of these items.
333Even with a mixture of DNA and a partial fingerprint not directly linked to Mr. Hoggar, this evidence is only one of a constellation of factors available for me to weigh and consider. In doing so, I am not left with a reasonable doubt as it relates to the possession of this evidence and conclude that Mr. Hoggar was in law, in possession of the said items when he was the sole occupant of the Nissan on the date in question.
334While I appreciate that the accused enjoys the constitutional right to remain silent, and the burden of proof always rests with the Crown, there is no exculpatory explanation as to why Mr. Hoggar would be operating a vehicle with such a high quantity of drugs and cash in conjunction with a loaded firearm and ammunition.
335I have considered the possibility of others that may have hidden these items within the Nissan without Mr. Hoggar’s knowledge but in a careful analysis of the evidentiary record, no such possibility reasonably exists. The combined direct and circumstantial evidence of Mr. Hoggar having the requisite knowledge and control for constructive possession is strong and I am satisfied beyond a reasonable doubt that the only reasonable inference is guilt as it relates to each of the possession offences at counts 2, 4, 5, 6, 7 and 10 on the Information. Accordingly, I make findings of guilt on each of those counts.
Issue 8 – Has the Crown proven the offence of Resisting a Peace Officer beyond a reasonable doubt?
336Cst. A. Porringa, a member of the Tactical Unit, testified that on at 12:10 hours on April 19, 2023, he received notification from Cst. Bonish that the police had reasonable grounds to arrest Mr. Hoggar for the offences of possession for the purposes of trafficking in fentanyl and cocaine.
337At 12:20 hours, Cst. Porringa observed Mr. Hoggar to be operating the Nissan as it parked at 299 Elm Street, a residence associated to Mr. Hoggar. He described positioning his unmarked police truck on an angle and blocked the Nissan from being able to back out of the parking lot.
338Although he did not document this in his notebook, he insisted that he turned on his emergency lights prior to exiting the Tactical truck and remembers in his day to day work that he makes a point of trying to ensure that his identification as a police officer at an arrest or execution of a search warrant is made known to the subject. On this occasion, despite not writing it in his notebook, he also recalls discussing the police lights being activated at the time he blocked in Mr. Hoggar’s Nissan during the debriefing after the arrest was conducted. He described this action of turning on the emergency lights moments prior to exiting his vehicle to an effect an arrest as part of his “muscle memory.”
339Cst. Porringa also explained that he was wearing a tactical police uniform with the words, “Police” on his front chest, and shoulder. He described the lettering to be white on a dark background on his uniform to maximize visibility. He also admitted under cross-examination that it was possible that another officer, Cst. Lapointe, was attempting to enter the passenger side door at the moment he attempted to arrest Mr. Hoggar.
340Cst. Porringa testified that he exited his truck on the driver’s side door and took two steps towards the driver’s side door of the Nissan that he was told was being driven by Mr. Hoggar. The officer opened the door and announced that he was police. He describes looking Mr. Hoggar in the eye at which point, Mr. Hoggar immediately shut the driver’s side door. The windows on the Nissan were tinted and Cst. Porringa testified that he was unaware if Mr. Hoggar was going to access a weapon or attempt to flee. At this early stage of engagement, he was also unaware if there were any other occupants in the Nissan due to the tinted windows.
341Cst. Porringa tried to pull the driver’s side door open, but in response, Mr. Hoggar attempted to pull the door shut. Mr. Hoggar, according to this officer, was also shifting around while seated in the driver’s seat and was not immediately following his orders while under arrest. At this point, Cst. Porringa took out his police-issued baton and shattered the driver’s side window of the Nissan. He was able to get the door open and pull on Mr. Hoggar’s left wrist, at which point, he complied and exited the Nissan. He was handcuffed and placed under arrest.
The Law – Resist Peace Officer
342The charge of resisting a peace officer engaged in the execution of his/her duties is a general intent offence.105 It reads as follows:
“129 Every one who
(a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer;
is guilty of
(d) an indictable offence…”
Position of the Parties
343The Crown argues that the evidence of the arrest speaks for itself. Mr. Hoggar was non-complaint with the clear and direct demands of the arresting officer. Even if the acts of resisting were brief, he submits that the offence is still made out.
344Mr. Bottomley, on the other hand, submits that the actions of Mr. Hoggar amounted to a natural reaction to being startled or afraid during a dynamic arrest. If there was any resistance on the part of Mr. Hoggar during the arrest, it was due to the absence of police identifiers and the startling nature of the arrest, that caused him to resist but for a very brief period of time before compliance.
Analysis
345Mr. Hoggar did not present any evidence in his defence as was his right. During cross-examination, Cst. Porringa admitted that Mr. Hoggar was likely startled or fearful while this arrest was happening. However, it would be highly speculative to expect Cst. Porringa to know what Mr. Hoggar was feeling or experiencing, including fear. While he could make an educated guess, it is not in my view, of any persuasive value when one witness is asked to tell the court what another person’s state of mind was at the material time of an event in the absence of unambiguous conduct.
346What I do have on the evidentiary record before me is objective evidence that speaks to Mr. Hoggar’s specific intentions based upon his physical actions and initial non-compliance in the face of clear instructions to surrender. I do not have any reason to doubt the testimony provided by Cst. Porringa. His evidence is largely uncontradicted.
347I find that Cst. Porringa did in fact activate his police lights and opened the driver’s side door of the Nissan, looked Mr. Hoggar in the eye and identified himself as police while he told him he was under arrest. I am persuaded beyond a reasonable doubt that Mr. Hoggar’s resisted the lawful arrest by immediately shutting the driver’s side door and refusing to comply with the officer’s commands while remaining in the driver’s seat shifting about.
348I also find that Mr. Hoggar intended to pull the door shut knowing that Cst. Porringa was attempting to open it to effect the arrest. I conclude that this all took place in the face of at least one, likely two uniformed police officers, one of whom was Cst. Porringa who testified that he was wearing clearly identifiable police wording on his uniform with his emergency lights activated.
349The arrest was lawful and the Crown has proven each of the elements of the offence of resisting Cst. Porringa while he was engaged in the execution of his duties, contrary to s. 129(a) of the Criminal Code. There will be a finding of guilt on Count 1 on the Information.
350I wish to thank Mr. Bottomley and Mr. Bradley for their highly efficient and civil presentation throughout this trial.
Released: October 30, 2024
Signed: Justice Leonard Kim
Footnotes
- There are a total of 10 counts on the Information. However, the Crown withdrew two counts prior to arraignment. Additionally, during submissions, he also invited me to dismiss count #3, Possession of Prohibited Ammunition, s. 92(2), of the Criminal Code, because of the wording of this charge. The devices in question (two loaded magazines) did not meet the legal definition of prohibited ammunition.
- R. v. Grant, 2009 SCC 32.
- R. v. Villaroman, 2016 SCC 33.
- During the cross-examination of Cst. Bonish, the Defence took issue with this procedure and asserted that the more formal identification process utilized in modern-day photo lineups as recommended in, “The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (Winnipeg: Manitoba Justice, 2001, Peter Cory, Commissioner) (“Sophonow Inquiry”) should have been followed. However, recently in the Ontario Court Appeal decision of R. v. Maric, 2024 ONCA 665 at para. 14, 63-65, a similar identification procedure relying on an MTO photo was implemented by a handler of a confidential informant in support of grounds for a warrant. This similar procedure was not identified by the Court of Appeal as being unreasonable or otherwise inappropriate when used for the purposes of obtaining grounds, as in the case at bar. In Maric, the photo identification was sufficient to provide reasonable grounds for police to believe that Mr. Maric was “Marco” in support of a warrant application.
- 464 Frood Road (2020 Observation): Cst. Bonish recalls that at some unspecified point in the year 2020, he observed Mr. Hoggar for the first time in person. He happened to be driving by this location while engaged in an unrelated investigation. Mr. Hoggar was seen leaving Unit 4 at 464 Frood Road, which is a known drug house in Sudbury. However, no notation to this effect was ever made by the officer into his duty notebook. Beyond this being the occasion that Cst. Bonish first observed Mr. Hoggar in person for the first time, and as an example of his ability to identify him, it has no weight in my overall analysis of whether this officer had the requisite grounds to arrest Mr. Hoggar.
- R. v. Depot, 1989 13 (SCC), [1989] 2 S.C.R. 1140 at para. 53.
- Filed as Exhibits #4 – 8 in this Trial.
- Although additional details from CI #6 were provided by Cst. Hutchinson to Cst. Bonish less than a week prior to the arrest on April 19, 2023, a thorough review of the testimony reveals that those details did not form part of Cst. Bonish’s subjective belief in support of his grounds to arrest.
- I do not accept Cst. Bonish’s speculation as to what a tipster might have specifically intended by referencing “Toronto area”. However, objectively, the difference is not material. While Mr. Bottomley raises a valid point that this discrepancy was not corroborated, or even verified by police, the difference between Ajax and Toronto or “Toronto area” is minimal. All would be considered the Greater Toronto Area and geographical locations in Southern Ontario away from proximity of the Sudbury District.
- This entire interaction including the time needed for the male driver of the Nissan to drive from 3 Jane Street to pick up the woman, return with her to 3 Jane Street, enter that premises to the point of her departure on foot, spanned approximately 9 minutes.
- There is no evidence that Cst. MacRae’s belief that “Oil” had already been arrested was factually correct. In fact, an objective review of the testimony of each of the officers strongly suggests that he was mistaken. Furthermore, since Cst. Bonish did not possess the subjective belief that “Oil” had already been arrested when he was forming his grounds, there is no risk that he would have misidentified Mr. Hoggar as “Oil” because of a prior arrest. Finally, even if Cst. Bonish had understood that “Oil” had already been arrested in the summer of 2022, this would not necessarily eliminate the possibility that “Oil” had been released at some later point in time or was otherwise still actively engaged in the trafficking of drugs in Sudbury, despite a prior arrest. None of this detracts away from the reasonableness of Cst. Bonish’s belief that “Oil”, positively identified as Mr. Hoggar, was actively trafficking fentanyl and cocaine in Sudbury at the time of his arrest.
- See Exhibit 3, Tab B (surveillance photos).
- Cst. Bonish observed what he believed to be pre-arranged drug transactions involving Mr. Hoggar (ie: young man wearing a hoody in lot next to Felix Ricard elementary school and immediately prior to this, the officer observed a dark-haired woman briefly visiting 3 Jane Street after being picked up by Mr. Hoggar nearby). He observed Mr. Hoggar to be exiting 3 Jane Street, within seconds of a person with a history of illegal drug offences, Emmanuel Degore. This individual was