R. v. Hanna, 2025 ONCJ 725

ONTARIO COURT OF JUSTICE

CITATION: R. v. Hanna, 2025 ONCJ 725

DATE: May 2, 2025

COURT FILE No.: Brampton 998 24 31101820

BETWEEN:

HIS MAJESTY THE KING

— AND —

ALEX ANDREW HANNA

Before Justice G.P. Renwick

Heard on 28, 29, and 30 April 2025

Reasons for Judgment released on 02 May 2025

N. Di-Biase and S. Weinstock............................................... counsel for the prosecution

F. Davoudi.............................................. counsel for the Defendant Alex Andrew Hanna

RULING ON CHARTER APPLICATIONS UNDER SS. 8, 9, 10(b)

RENWICK J.:

INTRODUCTION

1The Defendant is charged on a single count Information that he possessed a Schedule I substance, namely cocaine (benzoylmethylecgonine), for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act. This is an indictable offence and the Defendant chose to have a trial in the Ontario Court of Justice.

2Prior to trial, the Defendant filed a written Application for Charter relief on the basis of alleged violations of the Defendant’s ss. 8, 9, and 10(b) rights. At trial, the prosecution also brought an Application to adduce the Defendant’s utterances to police. The parties agreed to have a “blended” voir dire where the evidence taken on the trial could also apply to the Charter Application and the voluntariness voir dire for the Defendant’s statements.

3The prosecution called two police witnesses on the trial proper. Also, many facts were established by the introduction of a statement of agreed facts (exhibit #1). In addition to the police witnesses, the Defendant testified on the Charter Application. During final submissions, the Defendant conceded the voluntariness of his statements to police.

4The parties agree that the result of the Charter Application will determine the outcome of the trial. If the Defendant succeeds on his Application under s. 24(2) of the Charter, the evidence obtained by the search of the Defendant’s vehicle will be excluded and he will be acquitted. Conversely, if the 26.66g of cocaine found under the driver’s seat of the Defendant’s vehicle is admissible, the Defendant can be found guilty.

THE EVIDENCE RECEIVED

General Considerations

5In this part, I will outline some of the evidence with references to specific portions of the testimony and other evidence. Although I will not refer to all of what a witness said, I listened to each witness carefully, I have taken detailed notes, I have reviewed the exhibits, I have had access to the digital record of the proceedings, and I have assessed all testimony for intrinsic and extrinsic consistency, plausibility, balance, possible interest, and the witness’ ability to recall and communicate.

6I do not propose to recapitulate all of the evidence received during this trial. Suffice it to note that I have used ample and many opportunities during the trial and subsequent to the completion of the submissions to consider the testimony heard, to review the exhibits, and to re-play parts of the video evidence or the digital audio recording of the proceedings. I have thoroughly reviewed the evidence in this case, and I will only discuss parts of the evidence where it serves to underscore my findings. Lastly, despite any exchanges with counsel during submissions, I came to no conclusions about any of the evidence received until all of the arguments were made and my review of the evidence was complete.

The Police Testimony and Evidence

7Constable (“Cst.”) Tyler Satino was the main prosecution witness. His partner, Cst. Suraj Sandhu, assisted him during the investigation and mostly dealt with the Defendant’s passenger (E.L.) on the morning in question.

8The police testimony established that the officers entered the parking lot where they eventually encountered the Defendant in his Toyota motor vehicle. As the officers initially drove past where the Toyota was parked, both officers testified that they had their windows rolled down, as was their general practice in similar circumstances, and they both detected the odour of freshly burnt cannabis. Constable Satino testified that he also saw the spark of what he believed to be a “spliff” (cannabis cigarette) ignited near the driver’s mouth.

9All of the evidence, including the Defendant’s, proved that the police vehicle would have been between six and 10’ in front of the front end of the Defendant’s parked Toyota when the police initially drove past.

10Exhibit 6A is the video recording captured from Cst. Satino’s body-worn camera (“BWC”). When the video starts, Cst. Satino is already engaging with the Defendant, who is going through his documents before handing his driver’s license to the officer. The audio for the camera did not start until 29 seconds into the video clip at 06:35:18 according to the time stamp on the top of the video.¹ The discussion between this officer and the Defendant began as follows:

Defendant: I’m literally going to work, sir (as he handles a plastic bag with his documents).

Officer Satino: I hear you, my friend, but, people that smoke and people that drink in their cars, it’s a serious issue, right. Because there’s a lot of impaired drivers here.

Defendant: I understand, completely. (hands his driver’s license to the officer)

Satino: Thanks man.

Defendant: I’m not under the influence or anything.

Satino: Fair enough. I’ll be right back. (Officer walks around to speak to and obtain the passenger’s identification)

11Before watching the BWC footage in court, this officer testified that as he approached the Defendant, he explained why they were in the area and conducting patrols, “to ensure people are not consuming alcohol or drugs” because this can lead to impaired drivers.

12The BWC footage also demonstrates that Cst. Satino maintained a cordial, professional, and respectful tone and demeanor at all times in dealing with the Defendant.

13On the whole, Cst. Satino was a good witness. I found that his testimony aligned well with both the sequence of events and the content recorded on his BWC.

14This witness was challenged in cross-examination about several areas. Among the major areas of concern were:

i. The inability to smell burnt cannabis as they drove in the parking lot toward the Defendant’s vehicle;

ii. The inability to see that the driver’s window of the Toyota was cracked open, as they drove toward and past the Defendant’s vehicle;

iii. The inability to see the cannabis cannister above the glove box while standing on the driver’s side and to recognize that it was a cannabis container;

iv. The inability to see that the seal of the cannabis container was broken;

v. The failure to mention these observations/perceptions to the Defendant;

vi. The mention of “occupantS” (plural) smoking in the officer’s notes and the arrest report despite the testimony that Cst. Satino only saw the spliff near the driver’s mouth;

vii. Whether the officer’s window was up or down when he drove into the parking lot and past the Defendant’s vehicle, given the window is up when the officer goes to his cruiser to check the Defendant’s identity; and

viii. Why the officer never mentioned to his partner or the Defendant that he had seen the Defendant smoking what he thought was a cannabis cigarette.

15These challenges are critical areas of this officer’s testimony because the entire justification for the police interaction and the claim of statutory authority to search the occupants and the vehicle began with the claim of a smell of burnt cannabis, the claim of the sighting of an ignited spliff, followed by the claim of the observation of an unsealed cannabis container within reach of the driver.

16Constable Sandhu’s testimony corroborated Cst. Satino’s evidence to the extent that he too claimed to have smelled the burnt cannabis as they entered the parking lot and drove in the area of the Defendant’s Toyota.

17There were at least two differences in the testimony of the two witnesses:

i. Cst. Satino claims to have been about 50’ away from the Defendant’s vehicle when he became aware of the smell of burnt cannabis, while Cst. Sandhu’s evidence was that it was when they passed the vehicle approximately six feet away; and

ii. Cst. Satino saw the spark of a lit cigarette, which he assumed was cannabis, near the driver’s mouth; Cst. Sandhu never saw this.

18Constable Sandhu was not a confident witness. He seemed unsure of some of his testimony and overall, seemed to be over-reliant on his notes to assist him while testifying. I do not find that Cst. Sandhu was untruthful or less than accurate while testifying, but given his juniority at the time, his lack of confidence while testifying, his uncertainty during the investigation (as depicted on his BWC video), and the apparent over-reliance on his notes during his evidence, I cannot safely rely on his testimony where it is not corroborated by the BWC footage or other evidence. I find that his claim of having smelled burnt cannabis is weak corroboration of Cst. Satino’s testimony on the point.

19In the end, in terms of the issues to be decided, save for whether or not he smelled burnt cannabis, I am not concerned with the ultimate credibility or reliability of Cst. Sandhu’s testimony or his mediocre presentation while testifying. To the extent that I must determine whether the police had a lawful basis to detain the Defendant, whether the detention was arbitrary, whether the police had the requisite grounds (a subjectively held belief that was objectively reasonable) to rely on the search authority within the Cannabis Control Act (“CCA”), whether the searches were carried out reasonably, and whether the Defendant’s s. 10(b) Charter right was violated, I am satisfied that the testimony of Cst. Satino is determinative. Constable Satino took control of the investigation, he advised the Defendant of his concerns and the reason for their interaction, he investigated the identity of the Defendant and E.L., he told them he would be searching the vehicle and the Defendant’s person, and he twice attempted to carry out his obligations pursuant to the Defendant’s s. 10(b) right.

The Defendant’s Testimony

20The Defendant was a hesitant witness. He answered questions carefully, but with a level of insecurity similar to the testimony given by Cst. Sandhu.

21The Defendant denied that either of them were smoking cannabis before or as the police arrived in the plaza that morning. Interestingly, the Defendant did admit to having a cigarette while he drank his coffee, but he claimed that it was about 15 to 20 minutes before the police arrived. It was also somewhat coincidental that he too (like Cst. Satino) described his driver’s window as “cracked” open while he smoked his cigarette. But the Defendant testified that he had closed the window before the police arrived. The Defendant was quite candid that he had smoked cannabis in his vehicle on occasion prior to this day, but he could not account for the end of a cannabis cigarette (exhibit #3) found in his vehicle during the police search. The Defendant used the modifier “believed” (possibly indicating some uncertainty) for many of his answers while testifying (he said this twice, for example, in respect of E.L.’s ownership of the blue cannabis container, exhibit #2). This detracted from his credibility. In response to his last question about his knowledge of the contents of the blue cannabis container, he answered, “I believe it was empty, but I’m not 100% sure.” I found it odd that there was no explanation for how he would possess this belief given his claim that he was not even aware of the existence of the container (despite the fact that it was plainly visible above the glove compartment in Cst. Sandhu’s BWC footage), before the police found it.

ANALYSIS

22The Defendant applied for Charter relief. The Applicant has the onus to establish his allegations on a balance of probabilities. If the Defendant’s Charter rights have been violated, the exclusion of evidence is not automatic. In order to have the seized contraband excluded from his trial, the Defendant must establish that it is more likely the case than not that the admission of this evidence in the circumstances of one or more Charter violations would tend to bring the administration of justice into disrepute.

23The parties also agree that the search of the Defendant’s vehicle was warrantless, purportedly authorized by statute. Thus, the prosecution must establish on a balance of probabilities that the police complied with the statutory regime authorizing their search.

Credibility and Reliability Generally

24This case involves conflicting evidence and credibility assessments. In assessing witness credibility and reliability I have taken into account the general capacity of the witness to make their observations, to remember what they perceived, and their ability to accurately testify to their recollections. It is also important to determine whether the witness was trying to tell the truth and whether or not the witness was sincere, candid, biased, reticent, and/or evasive. A trier of fact is entitled to accept some, none, or all of a witness’ testimony.

25A valuable means of assessing the credibility of any witness is to examine what is testified to in the context of all of the evidence in the case and not on an isolated basis. This is true for any inconsistencies and whether these are inconsequential or significant to the case. If the inconsistency is significant, then I must pay careful attention to it when assessing the reliability of the witness' testimony.

26Triers of fact must consider both credibility and reliability in determining the facts in a given case. Credibility is shorthand for truthfulness and believability. Reliability is the lens through which one evaluates the accuracy of evidence. Trial judges must be careful not to conflate credibility with reliability otherwise the fact-finding net might entangle even the least reliable piece of evidence.

27It is important to remember that in some cases credibility takes a back-seat to reliability. For example, there are prosecutions where the suspect is unknown to the complainant and the latter may be honestly mistaken about the identity of the perpetrator. In such a case, reliability concerns govern the analysis because credibility does not guarantee accuracy. Credible witnesses can be mistaken or otherwise inaccurate. Thus, credibility is not a proxy for reliability.²

28Where witness testimony is highly credible, consistent, plausible, not inconsistent with other evidence, not found to be the product of bias or motive, largely undisturbed upon a vigorous cross-examination, and not found to be otherwise unreliable, truth and accuracy are likely established.

29Assessments of credibility and reliability can be the most important and challenging judicial determinations in a criminal trial. Our highest court has reminded us:

Credibility and reliability assessments are also context-specific and multifactorial: they do not operate along fixed lines and are “more of an ‘art than a science’.” With respect to credibility in particular, while coherent reasons are crucial, it is often difficult for trial judges to precisely articulate the reasons why they believed or disbelieved a witness due to “the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.” The task is further complicated by the trial judge’s ability to accept some, all, or none of a witness’ testimony.³

30Judicial fact-finding is often based on inductive reasoning and evaluations of “probable interpretations of the evidence.”⁴ It necessarily depends on common-sense inference-drawing.⁵ To again quote the Supreme Court:

Reasoning about how people generally tend to behave, and how things tend to happen, is not only permissible, it is often a necessary component of a complete testimonial assessment.⁶

There Was No Violation of S. 9 or S. 8 of the Charter

31Initially, through his factum, the Defendant argued that his s. 9 Charter right was violated when the police boxed in his vehicle. During submissions the Defendant resiled from this submission.

32The Defendant also argued that police evidence was inconsistent because the officer’s notes indicated that one officer smelled cannabis while the other saw the occupants apparently smoking a spliff. This submission was not entirely accurate. Both officers testified that they smelled burnt cannabis and that was a reason for their interest in the Defendant’s vehicle. Constable Satino had an additional reason, he believed that he saw the driver smoking a cannabis cigarette (based on the spark of the spliff).

33I accept the testimony of Cst. Satino that he smelled cannabis as they drove into the parking lot and toward the Defendant’s vehicle. Both officers testified, and it was not challenged or contradicted, that burnt cannabis has a distinctive, strong odour. I also accept his evidence that he could see what he believed was the driver smoking or holding a lit cannabis cigarette as they drove toward the area where the Toyota was parked. The spark or lit end of a cigarette would have stood out in an otherwise dark car in a dark parking lot. I find that there was no other reason why the police would have stopped near the Defendant’s vehicle but for Cst. Satino’s observations and perceptions.

34The BWC of Cst. Satino captured some of the initial conversation between the Defendant and the officer. The conversation first captured also provides support for the testimony that at the start of their interaction, Cst. Satino explained his concern (smell of burnt cannabis) and the police presence to investigate a CCA violation (cannabis readily accessible to a driver).

35Though the Defendant testified that the officer did not indicate why he had approached the Toyota, I do not accept this evidence. It makes no sense that there was no introduction or any reason given by the police for demanding the driver’s documentation. The BWC footage completely contradicts the Defendant’s narrative. The officer and the Defendant were clearly talking about the officer’s concerns (people smoking cannabis in their car), to which the Defendant responded that he was “not under the influence.”

36To a limited extent, the testimony of Cst. Sandhu provides some corroboration of Cst. Satino’s evidence, because Cst. Sandhu also thought that the odour of burnt cannabis existed in the area of the Toyota. Exhibit #3 (the cannabis butt) was found somewhere in the Toyota. The presence of this butt also provides circumstantial support for Cst. Satino’s testimony.

37I also accept that Cst. Satino saw the Defendant smoking. The Defendant admitted that he had been smoking at some point, although he said it was well before the police approached. In fact, a cigarette pack is seen stored in the “centre dash” (where the Defendant testified that he kept his cigarettes) on Cst. Satino’s BWC video at 06:43:50. I reject the Defendant’s testimony about the timing of cigarette smoking.

38In the end, given that I accept that Cst. Satino was truthful, reliable, and accurate when he testified that he smelled burnt cannabis and that he saw the driver apparently smoking a cannabis cigarette, I am not troubled if he was wrong about the substance being smoked. The smell of cannabis in the area and the lit cigarette near the driver’s mouth would have provided ample grounds (more than a reasonable suspicion of a provincial offence) to approach the Toyota to investigate the occupants for a possible CCA infraction.

39I accept as valid the logic of Cst. Satino in withholding his belief that he had seen the Defendant smoking or his awareness of the presence of the blue cannister when he first dealt with the Defendant. There was no need to seek to incriminate or confront the Defendant when they first spoke. It makes sense that the police would want to confirm the identity of the occupants before confronting them with information that could cause the driver to flee or become aggressive. The police check would possibly provide the officer with information about outstanding charges, warrants, or other cautions (“armed and dangerous”) so that he could determine a strategy to best investigate his concerns.

40Despite the Defendant’s evidence that he was fearful from the moment the police approached, I am not satisfied that it is proven that the initial interaction created a detention. Police are entitled to interact with motorists for a variety of reasons (check sobriety, vehicle registration, insurance, roadworthiness, and license status). Not every interaction with the police is a detention. In R. v. Suberu, the Supreme Court makes this clear:

…not every interaction between the police and members of the public, even for investigative purposes, constitutes a detention within the meaning of the Charter. Section 9 of the Charter does not dictate that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Likewise, not every police encounter, even with a suspect, will trigger an individual's right to counsel under s. 10(b). As Iacobucci J. aptly observed, "[t]he person who is stopped will in all cases be 'detained' in the sense of 'delayed', or 'kept waiting'. But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint" (para. 19).⁷

41I do not find that there was a detention until Cst. Satino advised that he would be searching the vehicle and occupants pursuant to the CCA, less than five minutes into the police interaction.

42I find that there was nothing arbitrary or otherwise improper in the decision of the police to approach and speak to the Defendant that morning.

43The demeanor of Cst. Satino during his recorded interactions with the Defendant support his testimony that if he had not seen the unsealed container of cannabis, he would have discontinued the interaction and left the car’s occupants after checking their names.

44Constable Satino testified that he saw the unsealed blue cannabis container very soon after he began his interaction with the Defendant. If true, this observation, coupled with the prior detection of burnt cannabis and the observation of the driver holding a lit cigarette, would provide ample grounds as required in s. 12(3) of the CCA for a search of the vehicle and occupants.

45It is hardly surprising that Cst. Satino said that he saw the blue container (the colour alone attracts attention). Constable Sandhu also saw it, in plain view, in the area above the glove box. Both officers used their flashlights to illuminate the vehicle’s interior. Both officer’s would have been watching the Defendant as he reached into the glove box. The beam of Cst. Sandhu’s flashlight is seen pausing in the area where the cannabis container was found. I have no difficulty relying on Cst. Satino’s testimony in this area. The BWC footage of both officer’s support his testimony. Similarly, I reject the submission that it would not have been obvious that the container was the type used to sell legal cannabis or that the seal was broken. Constable Satino was looking inside the vehicle. He had a suspicion that the driver had been smoking cannabis. Constable Sandhu used his flashlight to communicate what he had found, inches from where he was standing. Also, before there was any opportunity for the two officers to speak, upon his return to the Toyota after checking his police computer, Cst. Satino said “there is open cannabis in here from what I can see with that container,” at 06:39:00. This provided ample reasonable grounds to believe that there was cannabis in the vehicle, which gave authority for the search that took place.

46At all times, this officer seemed knowledgeable of his authority and the limits of the law. For example, his search incident to arrest was considerably more thorough than his search for cannabis during his CCA search. Indeed, the officer testified that the search incident to arrest also involved the search for evidence, items that could be used as weapons, or implements for use to escape. Moreover, the search for cannabis was restricted to the areas that were readily accessible to the driver (the driver’s compartment, around his seat, his door, and the centre console areas). There was nothing excessive or unreasonable about either the CCA search or the search incident to arrest. The written complaint that search of the passenger’s pockets exceeded the scope of the statutory authority is misplaced. Section 12(3) of the CCA clearly provides authority to search “any person” not just the driver.

There Were Violations of S. 10(b) of the Charter

47The Defendant argued that his s. 10(b) Charter right was violated in two ways: there was a failure to provide the required information, and the police did not facilitate the Defendant’s request to speak to counsel.

48Upon detention, Cst. Satino provided the rights to counsel, informally. He did not read the rights from his notebook. Rather, he explained the following:

i. The occupants had the right to speak to any lawyer they wished, to understand their detention;

ii. The occupants did not have to say anything;

iii. If the occupants wanted free advice from a legal aid lawyer that was available and he provided (from memory) the telephone number; and

iv. He reiterated that they did not have to say anything to police during the search.

49During this provision of s. 10(b) information, the Defendant asked about refusing the search. Constable Satino explained that it was a lawful demand and he could be arrested.

50The Defendant submitted that the informational component was deficient because the officer failed to ask the most important questions: do you understand and do you wish to call a lawyer now.

51I am not troubled by the failure to ask if the Defendant understood the information he had just received. He was asked if he would cooperate with the search and he did. He had asked about refusing the search and that was explained to him.

52The failure to ask if the Defendant wanted to exercise his right is a breach of s. 10(b).

53The Defendant also claimed that the implementational component of s. 10(b) was frustrated after the Defendant’s arrest, when he clearly asked how he might speak with counsel while he sat in the back of the police car. Constable Satino explained that if they went back to the police station, there would be an opportunity to call a lawyer or duty counsel from there.

54The parties agree that the Defendant was released at approximately 7:30 a.m., some 56 minutes after the police interaction began and 45 minutes after his arrest. Constable Satino explained that he could not facilitate a private call with a lawyer because he did not have a phone he could use for that purpose and he was unwilling to permit the Defendant to use his personal phone to speak with a lawyer.⁸

55I am satisfied that there was no phone that was available for the Defendant to call a lawyer. I accept the officer’s explanation that it would be inappropriate to allow the Defendant to use one of his phone’s which had been seized as evidence, incident to his arrest, to call counsel. Allowing someone in custody to have access to one of their phones would be to permit a detainee to have access to a possible source of evidence. It was not unreasonable to seize the Defendant’s two cell phones as possibly containing evidence of the offence. Cell phones are a recognized tool of drug traffickers. It would be equally inappropriate to permit the Defendant to access the suspected cocaine.

56I also find that the law does not compel the police to use their personal cell phone to permit access to counsel. Counsel for the Defendant could not point the court to any contrary authority in law.

57The fact remains, the Defendant wanted to access counsel. He could have been taken back to the police station. There is no doubt it would not have taken 45 minutes to travel to the police station, although it is unknown how long it may have taken to put the Defendant in touch with a lawyer. It is also not lost on the court that the Defendant was released at the scene. He was free to return to his vehicle and continue on his way. Had he been taken to the station, he may have completed a call to counsel before 7:30 a.m., he may not have been searched, lodged, and released before 7:30 a.m.

58Charter rights are non-negotiable. The Defendant asserted his right to speak to a lawyer at 06:54:03. Rather than bringing the Defendant to the police station to facilitate the right to counsel, Cst. Satino kept the Defendant handcuffed in the police car until he was eventually released from the scene.

59Constable Satino had options. He could have asked Cst. Nicholson to search the Toyota while Officers Sandhu and Satino brought the Defendant to the police station.

Section 24(2) of the Charter [^9]

60Section 24(2) recognizes that if evidence gained by constitutional infringements is regularly admitted in criminal trials this may weaken public confidence and bring the administration of justice into disrepute. This subsection seeks to mitigate the negative effects of inappropriate state conduct by requiring a qualitative analysis of the long-term effect that tainted evidence could have upon public confidence in the justice system.

61To perform the balancing exercise required by s. 24(2) of the Charter, I must consider:

i. The seriousness of the Charter-infringing state conduct;

ii. The impact of the breach(es) on the Charter-protected interests of the Applicant; and

iii. Society’s interest in the adjudication of the case on its merits.

62The first two factors serve to mitigate the loss of civil liberties by requiring exclusion of evidence when the Charter-infringing conduct is serious and the impact upon Charter-protected interests is significant. The third factor “pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case.”¹⁰

63It is also the case that the third factor can also pull in the opposite direction, requiring evidential exclusion, when the state conduct is so subversive of protected freedoms that the only way to protect public confidence in the administration of justice is to have the evidence excluded from the trial process.

The Seriousness of the Charter-Infringing State Conduct

64As our Court of Appeal has remarked:

…the evaluation of the seriousness or gravity of the offending state conduct – focuses upon the level of fault of the breaching officers in the circumstances…The more serious the offending conduct, the more pressing the need for the court to dissociate itself from the fruits of that conduct.¹¹

65Further, the seriousness of any breach is aggravated where the evidence establishes a systemic problem or a pattern of Charter non-compliance.¹²

66Courts must view the matter holistically to determine if there circumstances that mitigate or exacerbate the offending state conduct and the level of state culpability.¹³

67The failure to ask the Defendant if he wished to call a lawyer before or during the CCA search is moot. At paragraph 47 of his factum, the Defendant concedes that the common law permits the suspension of s. 10(b) during CCA searches. I find that this violation is technical and it had no discernable impact upon the Defendant, in the circumstances.

68The failure to facilitate the right to counsel is more serious. It is somewhat mitigated because it was impractical to facilitate the right to counsel at the scene and it was also impractical to take the Defendant away from his vehicle without any clear idea if he would be released from the scene before he could realistically receive access to legal advise.

69The Defendant had no personal lawyer of his choice. There would have been some delay to drive to the police station and book the Defendant. There may have been a delay in connecting duty counsel to the Defendant.

70If police had left the Toyota unattended, the police would be responsible to safeguard the vehicle and it’s contents. It was parked on private property in a publicly accessible commercial plaza. This may have required an inventory search of the vehicle’s contents and/or a tow to the police station.

71I have taken into account that Cst. Satino did not try to elicit incriminating information from the Defendant. I am equally cognizant that the Defendant made incriminating statements in order to assume all liability and exculpate E.L.

72After a careful weighing of all of the circumstances, I find that the s. 10(b) violation was of modest significance given the further loss of autonomy the transport to the police station would have entailed. Constable Satino made a decision. He learned after speaking with a detective that he would be releasing the Defendant from the scene. He knew this would permit the Defendant an opportunity to access any lawyer he wished. He had twice given the Defendant the telephone number for access to “free legal advice.”

The Impact of the Charter-Infringing State Conduct

73There are a number of factors that bear upon the impact of the Charter violation upon the Defendant’s fair trial rights: evidence discoverability, the absence of a causal link between the Charter breach and the evidence to be excluded, and the nature of the evidence itself. These considerations do not move the needle even incrementally toward excluding evidence in this case.

74By holding the Defendant at the scene, until his release, the Defendant was able to maintain visual contact with his vehicle and he did not suffer any further loss of his liberty or mobility. Moreover, the Defendant did not have to undergo lodging, questioning by the booking sergeant, the inventory of his personal property, or having to attend inside a cell if duty counsel was not immediately available.

75Nonetheless, the decision not to facilitate the right to counsel had a modest impact upon the Defendant. He was kept in the dark about his legal jeopardy and he did make utterances that were somewhat inculpatory.¹⁴

Balancing Whether a Remedy is Required

76Our Court of Appeal has confirmed, “[t]he more important the evidence is to the Crown’s case, the greater the risk of disrepute from it’s exclusion.”¹⁵

77It must be remembered, however, that the third line of inquiry can cut both ways:

While the public has a heightened interest in a determination on the merits where the offence is serious, it also has a vital interest in maintaining a justice system that is above reproach.¹⁶

78In this case, the cocaine and other items seized are objective, reliable pieces of evidence that are critical to proving the alleged offence. If the results are excluded, the case for the prosecution will disintegrate.

79In the end, I do not believe that this factor requires exclusion in order to protect the integrity of the justice system and public confidence.

80The balance of convenience favoured the route chosen by Cst. Satino, even if this meant that he breached the Defendant’s s. 10(b) right to counsel.

81All things considered, I would not exclude from admissibility the reliable evidence, properly seized in these circumstances. I find that both officers, and especially Cst. Satino, were professional, courteous, respectful, aware of the limits of their lawful authority while attempting to protect the public and discharge their duties.

82After careful deliberation and a weighing of all considerations, and mindful that the cumulative effect of the first two Grant factors does not strongly pull toward exclusion of the evidence, I am satisfied that the long-term effect of admitting the contraband into evidence in the circumstances of this case would not bring the administration of justice into disrepute, whereas exclusion of this reliable evidence would have the opposite effect.

CONCLUSION

83Although I have found two modest breaches of the Defendant’s s. 10(b) Charter right, I do not find it appropriate to exclude any evidence from the Defendant’s trial.

84This decision does not condone inattention or deliberate police conduct that violates clear constitutional requirements. Had I found that there was even a hint of over-reach or intentional police misconduct, the seriousness of the Charter breaches would have increased exponentially, and I would not have hesitated to exclude the evidence sought to be used to prove the charge before the court. Here, the police conduct was exemplary in many respects. Constable Satino is not very experienced but he demonstrated a superior understanding of his role and the law. His choices were understandable and not entirely unreasonable.

85For these reasons, the Application fails.

Footnotes

1. 1The police witnesses authenticated the time and date stamped onto the BWC videos.
2. 2R. v. H.C., 2009 ONCA 56 at para. 41.
3. 3R. v. Kruk, 2024 SCC 7 at para. 81.
4. 4Kruk, supra, at paras. 71 and 75.
5. 5Ibid.
6. 6Kruk, supra, at para. 72.
7. 7R. v. Suberu, 2009 SCC 33 at para. 3.
8. 8Initially, the officer also testified about the lack of privacy given that the vehicle has a camera that records what happens inside the police cruiser. However, the officer also admitted that he could turn the interior camera off.
9. 10R. v. McGuffie, 2016 ONCA 365 at para. 62.
10. 11R. v. O’Brien, 2023 ONCA 197 at para. 24.
11. 12O’Brien, supra, at para. 25.
12. 13R. v. McColman, 2023 SCC 8 at paras. 57, 58, and 64.
13. 14This deserves little weight given their unprompted origins and the timing of these utterances, which was likely before the Defendant would have accessed counsel even if he had been taken to the police station immediately after receiving s. 10(b) information.
14. 15O’Brien, supra, at para. 53.
15. 16McColman, supra, at para. 70.
16. 9For the origins of this analysis, see R. v. Grant, 2009 SCC 32.