His Majesty the King v. Daniel Scott Hulme, 2026 ONCJ 117

ONTARIO COURT OF JUSTICE

CITATION: R. v. Hulme, 2026 ONCJ 117

DATE: 2026-03-02

Cobourg, Northumberland County

998 25 27100926 00

BETWEEN:

HIS MAJESTY THE KING

— AND —

DANIEL SCOTT HULME

Before Justice J. HILAND

Heard on January 9 and 19 2026

Reasons for Judgment released on March 2, 2026

J. McLAUGHLIN agent for the Public Prosecution Service of Canada

K. DULYSH counsel for the accused Daniel HULME

HILAND J.:

1Daniel Hulme is charged with possession of cocaine and hydromorphone for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act. He is also charged with possessing Canadian currency which the Crown alleges was obtained by the commission of an indictable offence, contrary to section 354(1)(a) of the Criminal Code. Mr. Hulme elected to have his trial in the Ontario Court of Justice and seeks exclusion of the evidence pursuant to section 24(2) of the Charter of Rights and Freedoms. Mr. Hulme submits that he was arbitrarily detained, subject to an unreasonable search and seizure and that his rights to counsel were violated. The Charter evidence proceeded with a blended voir dire.

UNDISPUTED FACTS

2Date, jurisdiction, continuity of evidence seized and the nature of the substances seized were admitted. The defence also conceded that the quantity of drugs seized was for the purpose of trafficking and the amount of currency seized was approximately $3600.00.

3On May 21^st 2025, Northumberland OPP received a call from a civilian about a suspicious vehicle that had been observed in the area of Telephone Road and Birch Road in Hamilton Township in Northumberland County. A description of a white BMW sedan was provided, along with a licence plate, with the complainant advising police the car had been in the location of the dead-end road (Birch Road) throughout the day and was once again in the area that evening. While OPP Sgt. Caissie was enroute to the location, dispatch advised officers that the vehicle in question was registered to Mr. Hulme, which was conceded at trial. Dispatch also informed Sgt. Caissie at that time that Mr. Hulme was on parole.

4As Sgt. Caissie approached the location, he observed a white BMW sedan drive by him westbound on Telephone Road. The vehicle matched the description provided by dispatch, prompting Sgt. Caissie to turn around and pursue the vehicle to confirm the licence plate. Sgt. Caissie then confirmed the licence plate matched that of the suspicious vehicle call and proceeded to initiate a traffic stop.

5As Sgt. Caissie approached the BMW, Mr. Hulme was observed in the driver’s seat along with his passenger, Megan Bellamy. Sgt. Caissie advised Mr. Hulme of the reason for the stop in relation to the concerned call and asked Mr. Hulme his reason for being on Birch Road, to which Mr. Hulme stated he was ‘making out’ with his girlfriend. Mr. Hulme provided his driver’s licence at Sgt. Caissie’s request, at which time Sgt. Caissie returned to his cruiser to conduct a check on CPIC. It was at this time that Sgt. Caissie became aware of a warrant of apprehension for Mr. Hulme.

6It was confirmed during trial that the warrant of apprehension had been issued for Mr. Hulme’s arrest earlier in the day on May 21^st. It was Sgt. Caissie’s belief that it had been uploaded to CPIC some time between the original CPIC check conducted by dispatch and when he conducted his own CPIC check at the roadside. Upon learning of the existence of the warrant, Sgt. Caissie called for backup.

7OPP Constable Brandon Mouncey attended the scene to assist, as did Port Hope Police Service Constable Michael Boot and Acting Sgt. Spina.

8Officer Spina testified that he was aware of a bulletin which he also referred to as a “Zone Alert” involving Mr. Hulme, which had been broadcast to police on CPIC weeks prior. The bulletin was issued on May 8^th 2025 and read as follows:

OFFICER SAFETY

The Cobourg Police Service has received unconfirmed information that Daniel Scott HULME 1979/04/29 may possibly be in possession of a handgun after a hotel staff member observed what they believed to either be the handle of a knife or the grip of a handgun inside an open safe in a room occupied by HULME at the Best Western, 930 Burnham Street, Cobourg on May 8^th 2025.

HULME is believed to have departed the hotel between 08:00 and 11:00 hours today and is believed to be in the company of Megan BELLAMY.

HULME is a Federal Parole with several conditions that include not to be in possession of alcohol or non-prescription drugs, and not to be in any establishment that serves alcohol. If you encounter HULME please exercise caution.¹

9It was Officer Spina’s evidence that he attended the scene and advised Sgt. Caissie of the bulletin, though he did not recall advising Sgt. Caissie the date the bulletin was received. It was during this time that Officer Spina told Sgt. Caissie that they wanted to search the vehicle for the firearm.

10Sgt. Caissie arrested Mr. Hulme on the strength of the warrant and transferred custody of him to Cst. Mouncey, who then provided Mr. Hulme with his rights to counsel and caution. In response, Mr. Hulme requested to speak to counsel of his choice.

11Mr. Hulme remained in the back of Cst. Mouncey’s cruiser while Cst. Mouncey recorded other officers searching the BMW with his body worn camera.

12Officers Caissie, Spina and Boot proceeded to search the BMW and seized the following evidence:

• Canadian currency and a white baggie containing a white substance in a compartment to the left of the steering wheel. Although the amount of currency and substance was not specified at trial, three $50 bills of Canadian currency are visible in a photograph of the compartment to the left of the steering wheel column.² It was admitted by the defence that the substance in the white baggie was a Schedule I substance.
• A weigh scale under the floor mat in the backseat of the passenger side.
• An empty pill container in the glove box with Mr. Hulme’s name on it.
• The majority of Canadian currency and Schedule I substances were located in the trunk of the BMW, concealed in a blue Walmart shopping bag along with loose currency. There was also a black satchel located in the trunk which contained Canadian currency.
• The total amount of cash seized, including the cash in the compartment beside the steering wheel, was approximately $3600.00. I accept Cst. Mouncey’s evidence with respect to the total amount of Schedule I substances seized from the BMW was as follows:
  • 24.2 grams of crystal methamphetamine
  • 146.6 grams of crack cocaine
  • 216.3 grams of cocaine
  • Hydromorphone pills³:
    • 59 pills x 39mg
    • 56 pills x 9mg
    • 39 pills x 12mg

13Notable timelines relevant for the issues to be determined are as follows:

Time	Event	Source
6:29pm	Sgt. Caissie arrives in the area of Birch Road and Telephone Road, over concerns of a suspicious vehicle parked at the dead-end road multiple times that day.	Sgt. Caissie
6:29pm-6:36pm	During this timeframe, Sgt. Caissie initiates a traffic stop of Mr. Hulme’s vehicle, discovers the warrant of apprehension and requests backup before accused arrested	Sgt. Caissie
6:36pm	Cst. Mouncey arrives on scene	Mouncey
6:40pm	Cst. Spina (Port Hope Police Service) arrives	Spina
6:42pm	Cst. Boot (Port Hope Police Service) arrives	Boot
6:43pm	Mr. Hulme is arrested by Cst. Mouncey on warrant of apprehension	Mouncey
6:46pm	Rights to counsel and caution provided by Cst. Mouncey	Mouncey
6:46-7:01pm	Search of motor vehicle conducted, leading to discovery of illicit substances and currency	Mouncey’s body cam, Sgt. Caissie, Cst. Boot, Acting Sgt. Spina
7:01pm	Rights to counsel provided for possession for the purpose of trafficking	Mouncey
7:04-7:17pm	Mr. Hulme transported back to Northumberland OPP Detachment	Mouncey
7:17-7:29pm	Booking process	Mouncey
7:30pm	Cst. Mouncey makes call to lawyer of choice. Met with message to call another number, placed a message with who he presumed was a secretary	Mouncey
8:08pm	Mouncey asks Mr. Hulme if he would like to speak to duty counsel if his counsel of choice did not call back.	Mouncey
9:35-10:33pm	Cst. Mouncey transports Mr. Hulme to Central East Correctional Centre	Mouncey

13The issues to be determined for this trial are the following:

1. Was Mr. Hulme arbitrarily detained, contrary to section 9 of the Charter?

2. Was Mr. Hulme subject to an unreasonable search and seizure when police proceeded to search the vehicle Mr. Hulme was operating?

3. Was Mr. Hulme’s right to counsel breached? Specifically, did the OPP do enough to implement his rights to counsel?

4. If violations of Mr. Hulme’s Charter rights have been established, should the evidence seized be excluded pursuant to s. 24(2) of the Charter?

5. If the evidence is ruled admissible, has the Crown proven beyond a reasonable doubt that Mr. Hulme had knowledge and control of the drugs and currency seized from the vehicle?

ISSUE #1 – Mr. Hulme was not arbitrarily detained

14The defence submits that Mr. Hulme was arbitrarily detained when Sgt. Caissie initiated the traffic stop, contrary to section 9 of the Charter. Where the Crown seeks to rebut the presumption of a warrantless search in the context of search incident to arrest, the burden is on the Crown on both overlapping ss. 8 and 9 claims, and must prove the arrest was legal: see R. v. Gerson-Foster, 2019 ONCA 405 at para. 75.

15It is the defence position that when Sgt. Caissie conducted the traffic stop on Mr. Hulme’s BMW, he did not have an objectively reasonable basis to suspect he was involved in any particular crime. Ms. Dulysh submits that the main purpose of the traffic stop was Sgt. Caissie’s intention to investigate the suspicious vehicle call, to which I agree. Where we depart is whether the totality of the circumstances known to police at the time were a sufficient basis to detain Mr. Hulme for investigative purposes.

16As its basis to submit that Mr. Hulme was arbitrarily detained by Sgt. Caissie, the defence relies upon the decision of R. v. Mann, 2004 SCC 52, [2004] 3 SCR 59 which applied what is commonly referred to as the Waterfield test in its recognition of the common law power of investigative detention. In the circumstances of that case, in which Mr. Mann matched the description of a suspect in close proximity to where police were investigating a break and enter, Iacobucci J. for the majority identified two analyses to be met to constitute a lawful investigative detention (see Mann, at para. 34):

(1) Did the officer have reasonable grounds to suspect that the person detained is implicated in the criminal activity under investigation?

(2) The decision to detain must be reasonably necessary on an objective view of the totality of the circumstances.

17As a final consideration, a court must consider whether the investigative detention was carried out in a reasonable manner: see Mann, at para. 45. The Court in Mann identified that “police powers and police duties are not necessarily correlative” and that “police officers do not have carte blanche to detain”. Nor can police detain on the basis of a hunch (see Mann, at para. 35).

18As Iacobucci J. explained in Mann, Canadian courts have “adopted, refined and incrementally applied the Waterfield test in several contexts” to determine whether a police officer has acted within his or her common law powers: see Mann, at para. 25. The test outlined by the England Court of Appeal in R. v. Waterfield, [1963] 3 All E.R. 659, established a two-pronged analysis when police conduct what is prima facie an unlawful interference with an individual’s liberty or property (see Mann, at para. 24):

(1) The court must first consider whether the police conduct giving rise to the interference falls within the general scope of any duty imposed on the officer by statute or at common law.

• The first stage recognizes police powers as deriving from the nature and scope of police duties, including at common law, “the preservation of the peace, the prevention of crime, and the protection of life and property” (Dedman, at p. 32): see Mann, at para. 26.

(2) If this threshold is met, the analysis continues to consider secondly whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty.

• Here, the court must address the balance between the competing interests of the police duty and the liberty interests at stake. […] The reasonable necessity or justification of the police conduct in the specific circumstances is highlighted at this stage: see Mann, para. 26 [emphasis added].

19Iacobucci J. in Mann reiterated Doherty J.A.’s analysis in R. v. Simpson, 1993 3379 (ON CA), 12 O.R. (3d) 182, at p. 200, recognizing the following (see Mann, at para. 28):

[T]he articulable cause requirement was only an initial step in the ultimate determination of “whether the detention was justified in the totality of the circumstances” and was thus a lawful exercise of the officer’s common law powers under Waterfield (Simpson, supra, at p. 203). The court did not, however, set concrete guidelines concerning investigative detentions, leaving the matter to be resolved on a case by case approach to the power. [emphasis added]

20Courts have not interpreted Mann as always requiring police to form a reasonable suspicion that an individual is connected to a particular crime before they can detain someone for investigative purposes. Jurisprudence has demonstrated that various circumstances in which lawful investigative detention will be recognized depends on the circumstances of each case, the duties of police engaged, and the nature of the interests involved: see R. v. Peterkin, 2013 ONSC 165 at para. 89, affirmed 2015 ONCA 8.

21The over-reliance of requiring police to have reasonable grounds to suspect an offence has been committed or is being committed in the context of investigative detention was addressed in the summary conviction appeal decision of R. v. Vander Griendt, 2015 ONSC 6655 at para. 54. Dawson J. emphasized the importance of context when assessing the lawfulness of police power to stop and detain for investigative purposes, pointedly referencing Iacobucci J.’s limitation to the court’s analysis in Mann to the context of that case, citing para. 17 from Mann: “Here, our duty is to lay down the common law governing police powers of investigative detention in the particular context of this case” [emphasis added]. Dawson J. did not agree with the appellant’s contention, as is argued here, that the investigative detention analysis requires strict adherence to Mann’s requirement of reasonable suspicion of criminal activity in relation to the individual detained: see Vander Griendt, at para. 64.

22The facts of Mr. Hulme’s detention are similar to that in the case of R. v. Lubansa, 2016 ONCJ 235, wherein Justice M. Speyer clearly recognized the distinction of reasonable suspicion of criminality in the circumstances of Mann to other circumstances in which police detain an individual. In Lubansa, police on general patrol spotted a car parked in a parking lot of a community centre with its headlights on. The car was located at 3am in a primarily residential area and police thought the car’s presence at that time and place were suspicious. At the time of the detention, the investigating officer did not have any safety concerns, nor was he investigating any particular crime. Similar to the stated purpose of Sgt. Caissie in the case at bar, the police testified they wanted to find out who was in the car and their reason for being there. Police requested the driver’s licence and registration to confirm his identity, confirm he was properly licenced, and to ensure there were no outstanding warrants. While one of the officers approached the motor vehicle and detained Mr. Lubansa, the other ran a check in the cruiser and discovered the driver was unlicensed. Further investigation revealed he was in possession of stolen licence plates.

23M. Speyer J. conducted her own analysis under the Waterfield test and found that Mr. Lubansa was not arbitrarily detained, as the police were acting within the course of their duties under the former Police Services Act, R.S.O., 1990 c.P.15 (repealed March 31, 2024) to investigate the car and its occupants for any potential criminal activity or safety issues: see Lubansa at para. 22. The court relied upon the factual context of the case, including community safety concerns and the common law power of police to detain motorists for sobriety, inspect driving documents and vehicle fitness: Lubansa, at para. 25 citing Dedman, 1985 41 (SCC), [1985] 2 S.C.R. 2, R. v. Hufsky, 1988 72 (SCC), [1988] 1 S.C.R. 621 and R. v. Ladouceur, 1990 108 (SCC), [1990] 1 S.C.R. 1257.

24The request for Mr. Lubansa’s driver’s licence and documentation did not constitute a search because it did not intrude upon the driver’s reasonable expectation of privacy, given the regulated nature of motorists. M. Speyer J. also found that the detention was carried out in a reasonable manner. Mr. Lubansa was detained during the initial stages of the investigation for 30 minutes, which Speyer J. recognized as lengthy, though saw it as necessary for police to confirm the requisite information to determine whether there was any criminal or regulatory offence. Lastly, the court took into account that Mr. Lubansa was detained during this initial period while he remained in his own vehicle, was not questioned and was not handcuffed or placed in a police cruiser until after his arrest. Taking all of the circumstances into account, the court dismissed Mr. Lubansa’s claim that he had been arbitrarily detailed and subject to unreasonable search and seizure, a finding of which was upheld by the Court of Appeal: 2018 ONCA 227.

25Applying these principles to the case at bar, Sgt. Caissie was clear in his evidence that he was dispatched to a call that was made to the OPP at approximately 6:18pm from a resident on Birch Road about a suspicious vehicle that had been parked at the end of a dead-end road, several times throughout the day. A specific description of the vehicle was provided by the caller, including the colour and make of the car as well as the licence plate number.

26By 6:29pm, Sgt. Caissie was enroute and in close proximity to Birch Road when he saw a vehicle matching the description provided by the caller. Sgt. Caissie testified he had the licence plate run on CPIC through dispatch prior to initiating any vehicle stop, at which time he learned Mr. Hulme was the registered owner and that he was a federal inmate on parole.

27Sgt. Caissie testified he initiated a traffic stop to determine who was driving the car registered to Mr. Hulme, to ensure Mr. Hulme was following his parole conditions if he was the individual driving, and to investigate the call about the suspicious vehicle. I found Sgt. Caissie to be a credible and reliable witness. He was frank in his answers, both in chief and cross-examination. Although his testimony about wanting to search the vehicle for parole documents was contradicted by Cst. Mouncey, which I will detail in the context of the s. 8 application, I find this to have been an oversight in his recollection rather than an intentional attempt to mislead the court. I also accept that Sgt. Caissie’s main purpose for detaining Mr. Hulme was in relation to the suspicious vehicle call.

28It would seem counterintuitive for an officer who is dispatched to a particular location to investigate a specific vehicle whose conduct was suspicious, could not then stop the same vehicle when it is located minutes later near the location for investigative purposes.

29Adequate and effective policing covers a large variety of functions, which are enumerated in section 11(1) of the Community Safety and Policing Act, S.O. 2019, c.1, Sched.1. Some of those functions include crime prevention, law enforcement, and maintaining the public peace. The specific duties of a police officer are listed and include (a) preserving the peace, (b) preventing crimes and other offences and providing assistance and encouragement to other persons in their prevention, and (d) apprehending criminals and other offenders and others who may lawfully be taken into custody: see Community Safety and Policing Act, S.O. 2019, c.1, Sched.1, section 82.

30I find that Sgt. Caissie’s response to attending the location of the suspicious vehicle reported by the civilian was not arbitrary, but in fact, well within his scope and duties as a police officer. The call from a concerned citizen about a specific vehicle parked multiple times throughout that day, located at the end of a dead-end road necessitated Sgt. Caissie to be dispatched to the area. It was a sufficient cause for concern which prompted Sgt. Caissie to investigate for crime prevention and community safety purposes. Although Sgt. Caissie did not particularize the duties in that manner, I have made that inference, given his stated intentions to investigate the suspicious call. The details provided were specific with respect to the colour and make of the vehicle as well as the licence plate number. Upon locating the suspect vehicle in close proximity, both in time and location, Sgt. Caissie conducted the stop. Having found Sgt. Caissie’s conduct to fall within his statutory and common law duties, I am satisfied the first prong of the Waterfield test has been met.

31Next, I must consider whether the conduct of Sgt. Caissie involved an unjustifiable use of those powers, while balancing with the liberty interests of Mr. Hulme. Sgt. Caissie conducted a roadside stop, during which Mr. Hulme remained in his BMW. With the exception of one question querying why he had been parked at Birch Road as described by the caller, Mr. Hulme was not subject to any further questioning or a physical pat down search incident to investigative detention. Similar to Lubansa, I find it was also well within the scope of the officer’s investigation to request the driver’s licence of Mr. Hulme. Though Ms. Dulysh questioned Sgt. Caissie’s purpose of conducting his own CPIC check when dispatch had originally communicated their initial findings, it makes sense that Sgt. Caissie would conduct his own check once he had Mr. Hulme’s driver’s licence in hand. The total amount of time between initiating the stop to arresting Mr. Hulme on the strength of the warrant was 14 minutes. On the totality of circumstances, I find the roadside detention to have been a reasonable limitation on the liberty interests of Mr. Hulme, taking into account the nature of the duties Sgt. Caissie was conducting.

32Having summarized the totality of the circumstances in which Mr. Hulme was detained, I am satisfied that Sgt. Caissie acted reasonably in the course of executing his duties while investigating Mr. Hulme. Accordingly, I conclude Mr. Hulme was not arbitrarily detained by Sgt. Caissie.

ISSUE #2 – The search of Mr. Hulme’s BMW was reasonable

33Once Mr. Hulme was arrested and placed in Cst. Mouncey’s cruiser, police proceeded to search the BMW. Given that the search was conducted without a warrant, it is prima facie unreasonable and the onus is on the Crown to rebut this presumption on a balance of probabilities: Hunter et. al v. Southam Inc., [1984] 2 SCR 145, 1984 33 (SCC).

34The common law standard for search incident to arrest requires three components:

(1) the individual searched has been lawfully arrested;

(2) the search is truly incidental to the arrest in the sense that it is for a valid law enforcement purpose, and there “was some reasonable basis” for conducting the search for that purpose, which may include the following:

a) to ensure the safety of the police, arrestee, or the public;

b) to protect loss or destruction of evidence; or

c) to discover evidence of the offence or to locate additional suspects.

(3) Lastly, the search must be conducted in a reasonable manner (see R. v. Caslake, 1998 838 (SCC), [1998] 1 SCR 51 at paras. 19-21.

35The Supreme Court of Canada explained whether a search is “truly incidental” to the arrest as follows:

[…] The restriction that the search must be “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. In my view, 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. (Caslake, at para. 19)

36The police do not need reasonable and probable grounds for the search, but instead, only require “some reasonable basis” to do what they did as explained in Caslake at para. 20:

[…] To give an example, a reasonable and probable grounds standard would require a police officer to demonstrate a reasonable belief that an arrested person was armed with a particular weapon before searching the person. By contrast, under the standard that applies here, the police would be entitled to search an arrested person for a weapon if under the circumstances it seemed reasonable to check whether the person might be armed. […] The police have considerable leeway in the circumstances of an arrest which they do not have in other situations. At the same time, in keeping with the criteria in Cloutier, there must be a “valid objective” served by the search. An objective cannot be valid if it is not reasonable to pursue it in the circumstances of the arrest.

37Determining whether a search is truly incidental to arrest requires a contextual analysis: “the determination must be made using a purposive approach to ensure that the police can adequately respond to the wide variety of factual situations that may arise. Depending on the circumstances, the surrounding area may be wider or narrower”: see R. v. Stairs, 2022 SCC 1 at para. 60 ).

38I should note that the defence did not take issue with the existence of the warrant of apprehension, nor was the lawfulness of Mr. Hulme’s arrest at issue. The defence did not suggest that the search incident to arrest was conducted unreasonably, which is the third factor to consider. The main concern was the second consideration, which was whether the search of the BMW was “truly incidental” to the lawful arrest.

39Police purportedly searched Mr. Hulme’s BMW for two reasons incident to his arrest: for the purpose of discovering evidence related to the parole violation and for safety concerns stemming from the Officer Safety Bulletin.

40As the trial proceeded, it became clear that although officers believed they had a valid purpose for searching the BMW for evidence related to the parole violation, they did not know the circumstances under which the warrant of apprehension had been issued. No officer could testify as to the nature of the parole violation, nor any conditions Mr. Hulme was bound by at the time, including the fact that Mr. Hulme would have been subject to a statutory condition that he not possess any weapons as defined by the Criminal Code: Corrections and Conditional Release Regulations, SOR/92-620, s. 161(1)(h).

41On this issue, Sgt. Caissie testified that the search incident to arrest to locate evidence would be to search for parole documents in the BMW, however, Cst. Mouncey testified that he had retrieved said documents from Mr. Hulme at Sgt. Caissie’s direction. In other words, by the time the search of the vehicle commenced, the parole documents had already been provided to police. I will note that I did not find Sgt. Caissie’s evidence on this point to be intentionally misleading. He was not taken through Cst. Mouncey’s body-worn camera footage in any extent the same way Cst. Mouncey was. I find Sgt. Caissie to have been a credible witness but mistaken on this particular order of events.

42I find the most predominant purpose of the vehicle search incident to Mr. Hulme’s arrest, and certainly the more compelling reason of the two, was for officer and public safety purposes. Sgt. Caissie testified that the search of the BMW was conducted primarily by the Port Hope officers. Officer Spina was clear of his intentions for attending the scene upon hearing Mr. Hulme had been detained. Though he erroneously believed officers had the power to search a motor vehicle any time incident to arrest, it was clear that his principal reason in seeking to have the BMW searched was for safety purposes based upon the aforementioned bulletin. As a firearms officer, Officer Spina testified he was aware that different firearms would have various locking mechanisms, which posed a safety risk depending on the type of firearm, where it was located, how it was stored, how it was maintained and, of course, whether it was loaded or unloaded.

43The defence relied upon R. v. MacDonald, 2014 SCC 3, [2014] 1 SCR 37, however, in that case, the majority of the Supreme Court of Canada imposed a different standard to conduct a safety search where the accused is neither detained nor arrested while the accused was in their home. The facts in MacDonald involved a warrantless search of the accused upon forcing their way into his residence when police observed what they initially believed to be a knife in the accused’s possession. Upon pushing the door open, police saw the weapon was in fact a handgun. In those circumstances, the Supreme Court held that the such safety searches require “the existence of circumstances establishing the necessity of safety searches, reasonably and objectively considered, to address an imminent threat to the safety of the public or the police”: MacDonald, at para. 41.

44The defence submits that any risks to safety ceased when Mr. Hulme and his passenger, Ms. Bellamy, were removed from the BMW and that as a result, there was no risk of imminent harm to the officers or public. The law is clear, however, that a safety search incident to arrest is not limited to circumstances where there is a reasonable belief of a risk of “imminent harm”: see Stairs at paras. 76-77.

45It was clear from Cst. Mouncey’s bodycam footage that Officer Spina directed the search of the BMW as soon as he arrived at the scene of Mr. Hulme’s arrest. The court must determine whether there was “some reasonable basis” for conducting the search of the vehicle following Mr. Hulme’s arrest. The standard of some reasonable basis “is less stringent than the reasonable suspicion standard because it permits searches based on generalized concerns arising from the arrest” while reasonable suspicion “require a constellation of objectively discernible facts assessed against the totality of the circumstances giving rise to the suspicion of the risk”: see Stairs, paras. 67-68. Even then, the reasonable suspicion standard is “based on a possibility rather than a probability”: see Stairs, para. 68, citing R. v. Chehil, 2013 SCC 49 at para. 32.

46In R. v. Stairs, 2022 SCC , the majority reaffirmed the Caslake standard for search incident to arrest of an accused’s vehicle, which they characterized as “[t]he lowest point on the spectrum of cases” when balancing the nature and extent of the privacy interests involved with the law enforcement objectives of the police: R. v. Stairs, para. 47.

47I take the following factors into consideration when finding the police had a reasonable basis to search the BMW following Mr. Hulme’s arrest, based upon the law enforcement purpose of safety concerns:

(1) The Officer Safety Bulletin was recent, having been issued two weeks prior to Mr. Hulme’s arrest.

(2) Although the bulletin was based upon an uncorroborated tip from a hotel employee, I find the tip to have been compelling. Mr. Hulme was identified as the occupant of a hotel room in which an employee saw firsthand what they believed to be either the handle of a knife or butt of a handgun in an open safe. Mr. Hulme was believed to have been in the company of Megan Bellamy when he left the hotel located in Northumberland County, on May 8^th, 2025.

(3) On its face, the motivation of the tip was bona fide, as opposed to being driven by financial gain or any other extraneous purpose.

(4) Police then located Mr. Hulme driving his BMW in response to a civilian call about suspicious behaviour in the area in which he was stopped.

(5) With Mr. Hulme taken into custody, the practical implication was that the motor vehicle would have to be removed from the roadside. The passenger, Ms. Bellamy, was a suspended driver so the police had intended to tow the vehicle. Whether it was Ms. Bellamy or a tow truck operator, the presence of a firearm would have constituted a significant risk to those entering and potentially operating the motor vehicle.

48In summary, I find the search of the BMW incident to Mr. Hulme’s arrest was conducted for the valid law enforcement purpose of public safety concerns following Mr. Hulme’s arrest. Officer Spina’s subjective belief that a search of the BMW was required for safety purposes was objectively reasonable in the circumstances. The defence has submitted that the tip that formed the basis of the Officer Bulletin was too vague, with imprecision as to whether the hotel employee saw a knife or a gun. I do not agree. There was sufficient information provided in the recent Officer Bulletin to provide a reasonable basis to conduct the search for safety purposes.

49Alternatively, if I am wrong in my conclusion that the search of the BMW was lawful as incident to Mr. Hulme’s arrest for safety purposes, I would conclude that there was a sufficient basis for a stand-alone safety search, given Officer’s Spina’s reasonable suspicion that there was a firearm in the BMW.

50In R. v. Buakasa, 2023 ONCA 383, an officer had initiated a traffic stop for speeding and intended to impound the vehicle which was not insured. Upon searching the driver’s name on CPIC, a warning posted seven months prior directed any officers in contact with the accused to contact a specific Waterloo Police Service investigator. Upon contacting the investigator, the arresting officer was informed there was a good probability the accused was in possession of a handgun and had been involved or present at two separate shootings, dates of which are unspecified. The Court of Appeal found it unnecessary to determine whether the applicable standard in that case was one of reasonable suspicion (Clayton) or reasonable belief in imminent harm (MacDonald), instead finding the circumstances met the higher standard enunciated in MacDonald to justify a stand-alone safety search: see R. v. Buakasa, 2023 ONCA 383 at para. 45.

51Some of the factors the trial judge took into account when determining the public safety concerns were immediate and serious was the fact that the driver would be released (as he was not arrested for any criminal offence) and would be leaving with his children and the tow truck driver, and it was reasonable to expect that the tow truck operator would need to access the interior of the car as part of the towing process, as well as the circumstances of the two prior incidents of Buakasa having been present or involved at shootings in the past several months. The officer formed “a high level of suspicion” and came to a consensus with the Waterloo investigator that there was “a good probability” Buakasa had a gun in the car. The Court of Appeal agreed that the officer had reasonable grounds to believe that there was an imminent threat to the safety of the public, after taking into account the totality of the circumstances: see Buakasa, at para. 49 .

ISSUE #3 – Mr. Hulme’s right to counsel was breached

52When an individual is arrested or detained, s. 10(a) of the Charter guarantees they will be informed promptly of the reasons therefor and s. 10(b) guarantees the right to retain and instruct counsel without delay and to be informed of that right.

53The onus on Mr. Hulme to demonstrate on a balance of probabilities that his right to counsel was violated, contrary to section 10(b) of the Charter.

54It was clear from the evidence that Mr. Hulme was detained by Sgt. Caissie for investigatory purposes when he was pulled over at the roadside for 14 minutes prior to his arrest for the warrant of apprehension. From Sgt. Caissie’s evidence, he promptly informed Mr. Hulme about the reason he had been stopped due to the suspicious vehicle call. He asked Mr. Hulme the reason he had been parked on Birch Road, to which Mr. Hulme provided a response. Sgt. Caissie then returned to the cruiser to conduct a CPIC check with Mr. Hulme’s licence, leaving Mr. Hulme and his passenger in his BMW. Sgt. Caissie did not give any evidence, nor was he asked in chief or cross-examination, as to whether he informed Mr. Hulme of his right to counsel upon detaining him.

55As outlined previously, Mr. Hulme was only provided his rights to counsel upon his arrest on the warrant by Cst. Mouncey at 6:43pm, at which time he requested his counsel of choice. Counsel’s focus for the purposes of the 10(b) violation focused on the purported failure of the police to implement access to Mr. Hulme’s counsel of choice, submitting Cst. Mouncey should have done more to facilitate his access to counsel of choice. The written materials for the purposes of this application, however, also raised the concern that police did not provide Mr. Hulme with his right to counsel upon detention and I invited counsel to make submissions on this narrow issue.

56Ms. Dulysh submits that the time period where there was a delay of informing Mr. Hulme of his right to counsel would be between 6:40pm to 6:46pm, which is a window of time that I am prepared to accept, taking into account Sgt. Caissie’s evidence and the body worn camera. Before I deal with the implementation issue, I am prepared to find that Sgt. Caissie breached Mr. Hulme’s 10(b) rights by failing to inform him of his right to counsel immediately upon detention and provide Mr. Hulme a reasonable opportunity to speak to counsel: see R. v. Suberu, 2009 SCC 33 at paras. 38 and 42 and R. v. McGowan-Morris, 2025 ONCA 349 at para. 99.

57The delay between initial arrest on the warrant of apprehension (6:43pm) and when Cst. Mouncey placed his first call to counsel (7:30pm) was 47 minutes. I take the following considerations into account when finding that the delay to contact counsel during this time period was reasonable:

(1) Between 6:46pm-7:04pm, Cst. Mouncey was requested to record the search of his vehicle since he was equipped with a body-worn camera. Given the public safety concerns about the firearm in the BMW, the police evidently made the search a necessary priority and the delay during this time was reasonable.

(2) Between 7:04-7:17pm, Cst. Mouncey transported Mr. Hulme to the Northumberland OPP detachment, after which Mr. Hulme went through the booking process.

(3) When Cst. Mouncey first placed his call to counsel at 7:30pm, it was the first reasonable opportunity during which police could have facilitated a private call to Mr. Hulme’s counsel of choice.

(4) Following his arrest, police did not seek to extract any information or statement from Mr. Hulme while he was waiting to speak to counsel, nor at any time for that matter.

58The defence has relied upon R. v. Jarrett, 2021 ONCA 758, wherein the police left one voicemail message for his counsel an hour and a half after his arrest. The police did not tell him they had made the call, nor did they follow up when the call was not returned. The police did not make any further steps to facilitate contact with counsel the entire time Jarrett was at the hospital, at the police station or courthouse, for a total of 30 hours after his arrest: see Jarrett, para. 23. Although the facts in Jarrett are an extreme example of police failure to implement rights to counsel, the minimal efforts made by police bear similarities to those utilized in Mr. Hulme’s case, demonstrating a cavalier attitude towards Mr. Hulme’s fundamental right to consult counsel without delay.

59While at the detachment, Cst. Mouncey testified that he called a number associated to Mr. Hulme’s lawyer and was redirected to call another number. He then spoke to someone he believed to be a secretary with whom he provided his name, badge number and the general contact number for the OPP. Having received no response from his counsel of choice by 8:08pm, Cst. Mouncey then asked Mr. Hulme if he wished to have duty counsel contacted. Cst. Mouncey did not note any response from Mr. Hulme, but testified that it was his practice to make notes if an accused answered in the affirmative. He inferred, given the absence of an affirmative response in his notes, that Mr. Hulme declined the offer.

60Although it would be prudent practice to note any response from an accused on the issue of implementing rights to counsel, I accept Cst. Mouncey’s evidence on this point.

61This is not a case where Cst. Mouncey simply left a voicemail, but instead, he spoke to an individual whom he believed was the lawyer’s secretary at 7:30pm. It was unclear to me, however, why the police did not wait longer to see if Mr. Hulme’s counsel of choice would call back or why Cst. Mouncey did not make any further efforts to call the number again to facilitate contact with his counsel. Nor did Cst. Mouncey return to Mr. Hulme to canvass other numbers to contact his counsel of choice or an alternative counsel before suggesting duty counsel. The circumstances of this case did not necessitate the need for urgency for counsel before proceeding with further investigatory steps. There was no apparent reason why police could not have waited longer than the 38 minutes before (a) asking if Mr. Hulme wished to contact duty counsel and (b) transporting him to Central East Correctional Centre on the warrant of apprehension at 10:33pm without first providing him with a reasonable time to speak to his counsel of choice: see R. v. Willier, 2010 SCC 37 at para. 35

62Accordingly, I find Mr. Hulme has proven on a balance of probabilities that his right to counsel was violated, as Cst. Mouncey did not take all reasonable steps in the circumstances to implement Mr. Hulme’s right to contact his counsel of choice. Having found Mr. Hulme’s right to counsel was violated, I will proceed to consider whether the evidence should be excluded pursuant to s. 24(2) of the Charter.

ISSUE #4 – Should the evidence be excluded pursuant to section 24(2) of the Charter?

63Where evidence is obtained in a manner that infringes a right guaranteed by the Charter, "the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute": s. 24(2) of the Charter.

64Although there was no causal connection between the discovery of the evidence seized and the violation of Mr. Hulme’s 10(b) rights, there was a close temporal and contextual connection to find that the evidence was obtained in a manner that infringed a Charter right within the meaning of s. 24(2): see R. v. Pino, 2016 ONCA 389 at para. 72.

65The Grant analysis is an objective test which asks “whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute”: R. v. Grant, 2009 SCC 32 at para. 68.

Seriousness of the Charter-Infringing Conduct

66Mr. Hulme’s right to counsel was violated in two respects: the failure to inform him of his rights to counsel immediately upon detention, and the failure to take meaningful steps to implement those rights while in police custody.

67The police did not outright ignore Mr. Hulme’s 10(b) rights, but the failure of Sgt. Caissie to immediately inform Mr. Hulme of his right to counsel upon detention and the subsequent minimal effort made by Cst. Mouncey demonstrate a failure of the police to prioritize this fundamental constitutional right. I have no evidence to suggest the conduct of police was systemic in nature or was rooted in bad faith. The failure to inform Mr. Hulme of his rights to counsel for the first 14 minutes of his detention, coupled with the minimal effort to implement his right to counsel of choice, is nonetheless serious and favours exclusion of the evidence.

Impact of the Breach on the Charter-Protected Interests of the Accused

68Upon arrest on the warrant of apprehension, Mr. Hulme asked about the basis of the parole violation, to which police did not know and could not answer. Police also decided to delay charging Mr. Hulme with the drug offences, with the practical effect that Mr. Hulme was returned to Central East Correctional Centre, without any subsequent court appearance the following day. These circumstances give rise to the psychological value in the right to access counsel, referred to by the courts as the “lifeline” for detained individuals, the value of which cannot be underestimated: see R. v. Truong, 2025 ONCA 69 at para. 56, and R. v. Rover, 2018 ONCA 745 at para. 45. Although I find it improper for Cst. Mouncey to have asked Mr. Hulme if he wished to contact duty counsel without making meaningful steps to implement his counsel of choice, his offer nonetheless would have attenuated the loss of the “lifeline” had Mr. Hulme chosen to avail himself of that option. In other words, Cst. Mouncey did not completely sever Mr. Hulme from access to counsel, but his lack of proactive steps clearly prevented Mr. Hulme from contacting his counsel of choice.

69I must also consider that an absence of a causal connection between the s. 10(b) breach and the discovery of the evidence seized is a factor that mitigates the impact of the breach, making admission more likely: see Grant, at paras. 122 and 125, and Truong, at paras. 51-53.

70The right to counsel “is directed at assisting detainees with regaining their liberty and protecting them against the risk of involuntary self-incrimination”: see R. v. Keshavarz, 2022 ONCA 312 at para. 114. There was no evidence that Mr. Hulme incriminated himself while in police custody, nor was there any indication that Mr. Hulme would have regained his liberty had the breach not occurred, given the warrant of apprehension. These factors demonstrate that the interests s. 10(b) seeks to protect were not significantly impacted: see Truong, para. 55, citing Keshavarz.

71Having considered these factors on the impact of the Charter-protected interests of Mr. Hulme, I find this prong of the Grant analysis tips in favour of admission of the evidence.

Society’s Interest in the Adjudication of the Case on its Merits

72At this stage, I must consider society’s interest in having the case tried on its merits. As counsel noted during submissions, this is largely a Charter-driven case. If the reliable evidence of the illicit drugs and currency are excluded, it will effectively gut the prosecution’s case, which may impact more negatively on the repute of the administration of justice: see Grant, at para. 83. Society’s interest on having a case tried on its merits emphasizes the truth-seeking function of trials and I find this factor to weigh in favour of admitting the evidence.

Balancing the Grant Factors

73The three prongs of the Grant analysis must be considered and balanced to determine whether the admission of the evidence seized would put the administration of justice into disrepute. Balancing the three factors in the totality of the circumstances is qualitative in nature: see Grant, at para. 140.

74The failure to implement Mr. Hulme’s counsel of choice in any meaningful way was serious and should be discouraged, however, I do not find the seriousness of the breach to be on the highest end of the spectrum. The impact of the Charter-infringing conduct is mitigated by the absence of a causal connection between the breach and discovery of the reliable evidence, as well as the fact that Mr. Hulme did not make any inculpatory statements following the 10(b) violations, nor did it affect the likelihood of being released any sooner had the breach not occurred.

75Having considered and balanced the three factors in totality, I find the admission of the evidence would not bring the administration of justice into disrepute.

ISSUE #5: Has the Crown proven the charges beyond a reasonable doubt?

76Mr. Hulme is presumed innocent. Having determined that the evidence seized should not be excluded, I will now consider whether the Crown has proven the charges beyond a reasonable doubt. A reasonable doubt is not a doubt based upon sympathy or prejudice, but rather is based upon reason and common sense. It is logically connected to the evidence, or absence of evidence, and does not involve proof to an absolute certainty: R. v. Lifchus, 1997 319 (SCC), [1997] 3 SCR 320 at para. 36.

77As previously mentioned, this case was largely Charter-driven. I find the police officers to have been both credible and reliable in their testimonies and the footage from Cst. Mouncey’s bodycam footage assisted with the chronology of events and how the search of the BMW unfolded. There were a number of admissions at trial that focused the remaining issue to whether the Crown has proven beyond a reasonable doubt that Mr. Hulme had knowledge and control of the illicit drugs, the currency, and whether the currency constitute proceeds of crime.

78For the purposes of this case, possession can be proven where a person knowingly has property in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person: s. 4(3)(a)(ii) Criminal Code. The Crown relies upon circumstantial evidence to prove Mr. Hulme’s guilt beyond a reasonable doubt. As stated in R. v. Villaroman, 2016 SCC 33 “to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative”: see para. 41. I am also mindful that to require proof to support explanations other than guilt wrongly places an obligation on the accused to prove facts: R. v. Villaroman, para. 35.

79As previously outlined, the drugs and currency were not found on Mr. Hulme’s person, but were located throughout the vehicle. I am to consider the circumstances as a whole when determining whether Mr. Hulme had knowledge and control of the items seized and I take the following factors into account:

(1) Mr. Hulme was not only the registered owner of the BMW, but he was also operating the motor vehicle at the time he was stopped by police. While this factor alone would be insufficient to infer knowledge and control, it is but one factor to take into account.

(2) Although the majority of the drugs and cash were concealed in a bag located within the trunk of the vehicle, I find the location of the drugs and cash in the compartment to the left of the steering column, and thereby easily accessible and extremely close to Mr. Hulme, to be compelling evidence. The clear baggie containing the illicit drugs and the haphazardly stored $50 bills bore resemblance to the clear baggies and cash located in the trunk.

(3) Although there was no evidence with respect to the estimated value of the drugs, I accept that the combined quantity of just over 7 ounces of cocaine, over 5 ounces of crack cocaine, over 150 pills of hydromorphone and just under an ounce of crystal methamphetamine are significant quantities and would be extremely valuable. The seizure represents a significant quantity of drugs that make it inconceivable that the drugs would be entrusted to someone who did not know what was in the vehicle: see R. v. Bryan, 2013 ONCA 97 at para. 11. Similarly, currency in the amount of approximately $3600.00 is not an insignificant amount.

80The totality of evidence leads me to find that the only rational inference is that Mr. Hulme had knowledge of the drugs and currency seized from his vehicle. Similarly, I find the Crown has proven beyond a reasonable doubt that Mr. Hulme had control over the items he knew to be in his vehicle. Not only was he the registered owner, but he was also the driver, and as Hill J. stated in R. v. Anderson-Wilson, 2010 ONSC 489 at para. 76:

A vehicle driver who knows a legally prohibited item is in a vehicle is not in the same position as a passenger who may merely acquiesce to another’s, i.e. the driver’s possession. A driver, operating the vehicle with the owner’s consent, determines what is permitted to enter and stay in the vehicle and can “control access to the vehicle and exclude others from the vehicle”. (citations omitted)

81Accordingly, I am satisfied the Crown has proven beyond a reasonable doubt that Mr. Hulme had knowledge and control over the illicit drugs and currency seized. With the admission that the drugs were for the purpose of trafficking, there will be a finding of guilt on counts 1 and 2 (CDSA, s. 5(2)).

82Having found Mr. Hulme to be in possession of cocaine and hydromorphone for the purpose of trafficking, I find Mr. Hulme knew the currency seized was obtained by the commission of an indictable offence. The currency was found directly with the illicit drugs seized and it leads to the only reasonable inference that the $3600 in Mr. Hulme’s possession constituted proceeds of crime. There will be a finding of guilt on count 3.

Footnotes

1. 1Exhibit 6 – Bulletin issued by Sgt Tobin dated May 8, 2025
2. 2Exhibit 5a – photograph of compartment beside steering wheel
3. 3Note: Cst. Mouncey provided the total weights of the substances seized. In reviewing his testimony, he stated the quantity of pills as “Hydromorphine”. Given that certificates of analyses were filed as Exhibit 2 and the nature of the substances seized were admitted, I am prepared to accept the pills seized were hydromorphone.