R. v. Palmer, 2026 ONCJ 146

ONTARIO COURT OF JUSTICE

CITATION: R. v. Palmer, 2026 ONCJ 146

DATE: 2026 03 16

COURT FILE No.: Ottawa 998 25 11400002

BETWEEN:

HIS MAJESTY THE KING

— AND —

PARELL PALMER

Before Justice R. Wright

Heard on January 23, 29 and 30, 2026

Reasons for Judgment released on March 16, 2026

M. Humphreys counsel for the Crown

B. Chaudhry counsel for the accused Parell Palmer

R. WRIGHT J.:

1Parell Palmer stood trial before me on 10 criminal charges. The trial proceeded blended with two applications: a defence application to exclude evidence under sections 7, 8, and 9 of the Charter and a Crown application to admit as voluntary utterances of Mr. Palmer made in the course of his arrest.

2The Crown alleged that Mr. Palmer was stopped for routine speed enforcement. He was unable to provide proper identification or documentation for the car he was driving. Ministry of Transportation (“MTO”) checks identified his G1 license as suspended. The stopping officer arrested him under valid HTA authority. In the course of that arrest, the officer developed grounds to make a demand that he provide a sample into an approved screening device (“ASD”), which Mr. Palmer refused. That refusal led to an automatic tow of the vehicle. The officer performed an inventory check of the trunk for valuables. In plain sight in the trunk was a black satchel with the butt of a handgun visible. When that bag was further searched, it contained a quantity of drugs and several pieces of identification in Mr. Palmer’s name.

3The parties filed an agreed statement fact outlining a significant number of admissions. Mr. Palmer admits:

(1) He was driving a 2013 Cadillac sedan with Ontario license plate DCNC938 on August 14, 2024, when it was stopped by police constable Ronald Lewis of the Ottawa Police Service;

(2) The handgun seized from the black satchel in the trunk of that vehicle was a Glock 17 Gen5 9mm;

(3) The handgun was loaded with 15 rounds of ammunition in the magazine and one round in the chamber;

(4) Located in the same black satchel were drugs:

(a) 2 grams of cocaine

(b) 14.7 grams of MDMA

(c) 1.9 grams of crack cocaine

(5) Mr. Palmer was bound by a s. 109 Order prohibiting him from possessing any firearms or ammunition;

(6) Mr. Palmer’s G1 novice driver’s license was suspended at the time of the stop. It had been suspended as of September 25, 2023, for default payment of a fine. Notice of that suspension had been forwarded by mail to his last address on record on September 25, 2023.

4Mr. Palmer seeks exclusion of the seized firearm, ammunition and drugs for claimed breaches of his Charter rights. He argues that his initial stop was tainted by racial profiling and that the subsequent arrest under s. 53 of the HTA was improper. He further argues that the officer did not have grounds to make an ASD demand, and that the demand was merely an invention to attempt to justify an unlawful search of the vehicle after the officer located the firearm.

5Mr. Palmer testified in his defence. He denied making the utterances that the Crown seeks proven voluntary. He also denied any knowledge or control of the black satchel and its contents.

6As Mr. Palmer testified, this is a case to which the framework from R. v. D.W., 1991 93 (SCC), [1991] 1 S.C.R. 742, applies. That framework exists to ensure that the burden of proof remains solely on the Crown to prove the charges beyond a reasonable doubt. Distilled as simply as I can:

(1) If I accept Mr. Palmer’s evidence, then he must be acquitted;

(2) If I do not believe his evidence, I could still be left with a reasonable doubt because of it, and again he must be acquitted;

(3) Even if the defence evidence does not raise a reasonable doubt, I must consider all of the evidence, including that adduced by the Crown, to satisfy myself that the Crown has met its high burden and proven all of the essential elements of the offences beyond a reasonable doubt.

7I will summarize the evidence heard and then address the following issues:

(1) The credibility and reliability of the witnesses, in the framework of D.W.

(2) Has Mr. Palmer proven on a balance of probabilities that his Charter rights were infringed and what, if any, evidence should be excluded

(3) Has the Crown proven beyond a reasonable doubt that Mr. Palmer made utterances to police that were voluntary

(4) On the basis of the evidence admitted, has the Crown proven beyond a reasonable doubt that Mr. Palmer had knowledge and control of the firearm, ammunition and drugs located

(5) If so, has the Crown proven beyond a reasonable doubt that possession of the drugs was for the purpose of trafficking

(6) Has the Crown proven beyond a reasonable doubt that Mr. Palmer refused a lawful demand to provide an ASD sample

Evidence

Rachel Pachereva

8Ms. Pachereva testified that she had been in an on-again-off-again relationship with Mr. Palmer for a couple of years. In August of 2024, they were somewhat on again, but she had doubts about his seriousness in the relationship; she was clear with him that she wanted a more serious relationship with him.

9They had planned to attend a cottage in late August, and she had rented a car in expectation of this and to run errands. She rented the car around August 12. She used an app called Turo which connects renters with owners of vehicles. She was the registered renter, and she knew that Mr. Palmer was not covered by the rental. The car was a black, 4-door Cadillac.

10Late on August 13 they were at her apartment. She was ready to go to bed as she had to work the next day. Mr. Palmer did not want to call it a night, and he went out, despite her request that he stay. He took the keys to the rented Cadillac. This was not unusual; she had previously allowed him to drive her rental cars even though she knew he wasn't supposed to under the rental agreement.

11After he left, she had two phone conversations with him. Around 1 AM, she called him and asked him to come back. Sometime later, he called her and asked her to take an Uber to a location because he had been stopped by police and wanted her to say that the female who was with him had been driving.

12She took an Uber to the location. She did not see Mr. Palmer. The rented Cadillac was there, with several police cruisers. She stood there for a while. Two officers asked her if she was ok. Then she asked a male officer what was going on and he told her to get better friends and asked if she owned the car.

13She was shown a photograph while testifying of a black satchel with gold accents. She identified it as belonging to Mr. Palmer and said he used it regularly. In cross-examination, she added that she had seen an officer from the scene take it from the front door of the car to the trunk.

14She denied suggestions that she was distancing herself from possession of the satchel or its contents. She maintained that the satchel was not her bag.

Neesia Bastien-Khan

15Ms. Bastein-Khan testified that she was a passenger in the Cadillac when it was pulled over by police. Mr. Palmer was driving.

16She and Mr. Palmer had been friends since 2019. They would hang out when she had time from work, up to a few times a month. On August 14, she got off work early, likely sometime around midnight, and arranged to meet Mr. Palmer to hang out. She met him at a friend's apartment and after a short time there they went out to buy weed from an all-night store.

17They drove to the store in the Cadillac and both went in. They bought weed. They then drove around looking for a place to smoke outside as it was a nice night.

18She observed a police car on the side of the road, and they drove past it. Within 30 seconds, the police car turned on lights and sirens and stopped them. The officer asked for license and registration. She believed Mr. Palmer gave something to the officer; the officer walked away. She was on her phone, playing a game, and in her head. She remembered Mr. Palmer stepping out of the car but the police let her stay in it.

19After less than 10 minutes, they came and asked her to her to get her things and step out of the car. She saw the officer at the driver seat and opening the door, but she wasn't paying full attention.

20She stood by for about 10 more minutes and then police came and arrested her. They told her it was for a firearm. She could not remember the exact words. They waited for a female officer to search her and then she was put in a police car. She was transported to a station and held until the afternoon, at which point she was released without charges.

21She testified that she didn't know there was a firearm in the car. She was shown a photo of the black satchel and did not recognize it. She knew Mr. Palmer to carry other bags sometimes: a backpack or a red bag. No one else had approached or been in the vehicle that night.

22In cross-examination, she denied having told police that the car was a rental. She did not recall Mr. Palmer making any phone calls. She could not remember if she had shown any identification to the officers.

Police Constable Ronald Lewis

23PC Lewis testified that he was engaged in traffic enforcement after 12 AM on August 14, 2024. He had set up at a corner of Sussex Drive and King Edward Avenue where he could view both eastbound traffic on Sussex and drivers turning to take the bridge to Quebec. This is a routine spot for traffic enforcement around the time that bars let out in the Byward Market.

24At approximately 2:04 AM, PC Lewis observed a dark-coloured Cadillac traveling eastbound on Sussex Drive. He used his LIDAR device to clock the speed: his LIDAR showed it to be traveling at 74 km/hour at 293.6 metres away from his location. The speed limit for this roadway, un-posted, is 50 km/hour. He could not see the driver or passenger from this distance.

25He waited until the car had passed his location and activated his lights and short siren bursts to initiate a traffic stop. The Cadillac slowed with a series of brake applications and eventually stopped where the road narrows to two lanes before Stanley Avenue.

26PC Lewis approached Mr. Palmer, who was driving, with his LIDAR device, and informed him of the reason for the stop, and showed him the readout. He asked Mr. Palmer for his license, ownership and insurance. Mr. Palmer advised that he did not have his license on him. PC Lewis asked him for a name and date of birth, and he provided both. PC Lewis began to return to his car to check the information provided when Mr. Palmer said that the passenger was there in the vehicle so he could drive. PC Lewis returned to Mr. Palmer to question him about his class of license and Mr. Palmer told him he was a novice driver.

27The female passenger advised that the car was a Turo, which PC Lewis was unfamiliar with. He inquired after ownership and insurance and was told the person who had rented the car would send it. The passenger identified as Ms. Bastien-Khan but did not provide him a driver’s license.

28PC Lewis attended his cruiser and searched Mr. Palmer on the MTO database. He received information that Mr. Palmer had a G1 license and that it was suspended due to unpaid fines. PC Lewis contacted another officer, PC Simon, to provide assistance at the scene and requested that dispatch confirm the license suspension.

29PC Lewis testified that he had a number of concerns. Mr. Palmer was a novice driver driving after midnight. He did not have his license with him. His passenger did not have her license. They could not provide proof of ownership or insurance for the vehicle. Mr. Palmer’s license was listed by MTO as suspended. There were two individuals in the vehicle, and he was alone. He decided based on the totality of factors that he was going to arrest Mr. Palmer under the HTA for driving while suspended. He contacted PC Simon for officer safety.

30PC Lewis received confirmation, at 2:21 AM, of the license suspension, and waited for PC Simon to arrive to make the arrest. At 2:25 AM, he placed Mr. Palmer under arrest pursuant to s. 53 of the HTA. He had him step out of the vehicle and placed him in handcuffs. He conducted a cursory pat-down search. He gave him his rights to counsel and cautioned him. Mr. Palmer told him he understood and answered, “not right now,” regarding contacting counsel. During this interaction, PC Lewis smelled the odour of an alcoholic beverage on Mr. Palmer’s breath. He asked him if he had consumed alcohol, and Mr. Palmer said no.

31PC Lewis did not believe him because of the very present odour. He advised him he would be making a demand for a roadside sample and moved him to his cruiser. PC Simon had an ASD with him; PC Lewis attended his cruiser to take it. At 2:28 AM, PC Lewis returned to the rear passenger door of his cruiser and made a demand for a sample of Mr. Palmer’s breath into an ASD and explained the test. Mr. Palmer refused to provide a sample saying, “I will not be taking part in that.” PC Lewis told Mr. Palmer of the ramifications of refusing. Mr. Palmer was adamant that he would not provide a sample.

32PC Lewis placed Mr. Palmer under arrest for refusing to provide a sample. He again read him his rights to counsel and cautioned him. Mr. Palmer told him he did not want to call a lawyer. PC Lewis then secured him in the rear of the cruiser.

33PC Lewis determined that the vehicle would be towed due to the seven-day impoundment mandated for Mr. Palmer’s charge of refusing to provide a sample and because it was obstructing the roadway. He testified that it is Ottawa police policy to inventory a vehicle for valuables prior to towing, and that he had to make efforts to determine the owner of the vehicle in order to notify them of the tow. A license plate check had shown a numbered company as the registered owner, with no contact information, and no one who could show him colour of right to the car.

34PC Lewis testified that the interior of the car was spotless; he did not see anything of note. He asked Ms. Bastien-Khan to attempt to open the glove box, but it would not open. He used a button on the driver’s side to open the trunk and proceeded to inventory the trunk. There was a single black and gold satchel leaning upright against the driver-side portion at the rear. The zipper was approximately three-quarters of the way open, and he could see the tang of a black handgun protruding. He immediately called out to PC Simon who attended and confirmed that he also saw the tang of a handgun. He informed PC Simon that Ms. Bastien-Khan should be arrested for possession of the firearm.

35PC Lewis testified that he returned to Mr. Palmer and advised him he was under arrest for unauthorized possession of a firearm. He again provided rights to counsel, confirmed Mr. Palmer understood, and cautioned him. Mr. Palmer declined to call a lawyer and PC Lewis advised him that this was much more serious and that the opportunity to call counsel would be given to him as soon as they were at the station.

36At 2:38 AM, PC Lewis called PC Bernard in forensic identification services and advised that he had located a firearm. He offered to prove it safe but was told to use gloves and place the whole item in an evidence bag and bring it to PC Bernard for documentation. PC Lewis placed the satchel in a temporary evidence bag and secured it in the trunk of his cruiser. He then returned to the Cadillac where he located an open can of beer in the centre armrest. This can was not visible just looking into the vehicle; it was covered by the centre armrest that came up. It was a tall can of beer and cold to the touch.

37At 2:46 AM, PC Lewis transferred custody of Mr. Palmer to PC Micholuk to facilitate his transfer to the detachment. PC Lewis spoke to Ms. Pachereva, who was now on scene. She told him she was the registered renter of the vehicle and showed him some screenshots on her phone. She could not provide ownership or insurance documents. At 2:50 AM, the call for tow was placed. PC Lewis left the scene to transport the satchel to PC Bernard. PC Lewis travelled straight to headquarters where he waited for PC Bernard to complete another matter. At 3:45 AM, PC Lewis transferred custody of the seized satchel to PC Bernard.

38PC Lewis stood by during the documentation of the black satchel. In addition to the firearm, the satchel contained:

(1) 2 grams of powder cocaine in a small, tied-off bag;

(2) 1.9 grams of crack cocaine in a separate, small, tied-off bag;

(3) 14.7 grams of MDMA in 15 separate dime bags;

(4) Gold teeth grills;

(5) 1 pair of black Calvin Klein men’s underwear;

(6) Condoms;

(7) 1 key fob for an Audi;

(8) 1 black bi-fold wallet containing:

(a) 5 identity cards for five unknown persons (two OHIP card, two Ontario driver’s licenses and one Quebec vehicle permit);

(b) 2 expired OHIP cards in the name of Mr. Palmer;

(c) 1 Royal Bank of Canada (“RBC”) client card in the name of Mr. Palmer;

(d) 1 Costco card in the name of Mr. Palmer; and,

(e) 1 Correctional Services Canada identification card in the name of Mr. Palmer;

(9) 1 LCBO receipt;

(10) 1 torn paper with three addresses written on it;

(11) 1 $100 bill; and,

(12) $2 coins.

39At 4:56 AM, PC Lewis spoke to Mr. Palmer and advised him of further charges in relation to the firearm and drugs found in the satchel. He also served him with summonses for the HTA offences of speeding, driving while under suspension, fail to surrender, novice driver fail to provide, drive unlawful hour, insurance, and under the Liquor License Act for open liquor in the vehicle.

40In cross-examination, PC Lewis agreed he called for PC Simon to join him before he received suspension confirmation from dispatch. He said he had decided to arrest Mr. Palmer as he had information from MTO that Mr. Palmer’s license was suspended but wanted re-confirmation before arresting him. He agreed that Mr. Palmer was detained by the traffic stop and would not have been allowed to leave until after at least the ticket for speeding was issued to him. He received confirmation that Mr. Palmer was suspended at 2:21 AM but waited for PC Simon to arrive to arrest him as he felt safety required two officers.

41PC Lewis agreed that there were lesser measures available than placing Mr. Palmer under arrest for driving while suspended.

42He agreed with suggestions that Mr. Palmer’s body was facing away from him while engaged in the handcuffing and pat-down search. He disagreed that he could not smell Mr. Palmer’s breath due to this positioning. He explained that Mr. Palmer was turning his head in PC Lewis’ direction to converse with him. He agreed that Mr. Palmer did not display indicia of impairment.

43PC Lewis agreed that his authority for the tow of the vehicle was the mandatory seven-day impound due to the refusal to provide a sample; while the vehicle was also obstructing the roadway, it would have been towed regardless once Mr. Palmer refused to provide a sample. He disagreed with suggestions that taking an inventory was a search or was more than minimally intrusive. He maintained he was checking the vehicle for valuables to inventory any that were present and for any proof of ownership and insurance, which, in his experience, can be kept in the trunk.

44He acknowledged that he had made a mistake in his evidence in chief, which he corrected, about the order of the inventory of the vehicle; he had commenced in the cabin of the car and then checked the trunk and then returned to the front seat where he located the open can of beer. His explanation for the inconsistency was the passage of time, and he adopted the sequence from his notes.

45He acknowledged a discrepancy between his testimony and his notes as to when he first called for the tow. He had testified on the first day of his testimony to contacting for a tow before conducting the inventory, but his notes indicated he did not call for the tow until 2:50 AM. He adopted his notes as the correct sequence.

46He agreed that he left the satchel in the trunk of the vehicle until he moved it to his own vehicle. It was the only bag in the vehicle, and he did not move it to the front of the car.

47He denied that his decision to arrest Mr. Palmer for driving under suspension and to call another officer to the scene were motivated by Mr. Palmer's race.

PC Romulus Simon

48PC Simon testified that he received a request from PC Lewis to attend near 50 Sussex Street. He arrived on scene at 2:17 AM. There were a male and female in the vehicle. PC Lewis communicated that he had made a decision to arrest the driver for driving while suspended, and both officers approached the vehicle on the driver's side. He observed PC Lewis arrest the male and provide him rights to counsel. PC Simon then went to the passenger side of the vehicle to keep observation of the female. He did not speak with the driver directly. He could see that PC Lewis and the male were interacting, speaking, but he could not hear the content of their conversation.

49PC Simon testified that PC Lewis asked him if he had an ASD with him, which he did, as he typically carries one when on the road. He retrieved it for PC Lewis but could not remember if it was used.

50PC Lewis communicated that the vehicle would be towed and that he wanted to do an inventory. PC Simon asked the female passenger to step out, and she sat on the sidewalk. He was standing next to the female when PC Lewis called him over to the vehicle to look at something. He took a few steps toward trunk and saw the tang of a black handgun, which he immediately recognized as a Glock because of his familiarity with that gun. It was visible inside a small satchel in the trunk of the vehicle.

51PC Simon returned to the female and, at 2:28 AM, placed her under arrest for unauthorized possession of a firearm. He identified her as Ms. Bastien-Khan.

52In cross-examination, PC Simon acknowledged he never made observations of any odour of alcohol coming from Mr. Palmer. He could not recall exactly when PC Lewis had asked for the ASD but testified it would have been before the decision to tow was made. He did not believe PC Lewis gave him a reason for the tow of the vehicle; in his mind, it was because it was obstructing the roadway. PC Simon also did not believe that PC Lewis had further discussions with Ms. Bastien-Khan proximate to the inventory of the vehicle; on his evidence Ms. Bastien-Khan was no longer in the vehicle at the beginning of the inventory.

53He acknowledged he did not see the order in which PC Lewis conducted the inventory of the vehicle, or when PC Lewis opened the trunk.

PC Lindsey Micholuk

54PC Micholuk testified that she was dispatched to attend to take custody of Mr. Palmer. She was told of his charges and took custody of him at 2:46 AM. He was moved from PC Lewis' cruiser into the rear of hers.

55Just prior to being placed in her cruiser he made an utterance that she recorded in her investigative action notes: “She is not getting charged is she, I will take the blame for everything.” She testified that she had not asked any questions to elicit this statement. She cautioned him as to making further statements and gave him a secondary caution that if he had spoken to any other officer that it should not influence him in the making of any statements.

56She transported him to the station. During transport he made a further utterance that she recorded in her duty book: “If I own up to it all can the other girl go free, I don't want her to get charged.”

57In cross-examination, she acknowledged she did not make any observations of an odour of alcohol from Mr. Palmer. She also acknowledged that his statements did not amount to specific admissions that the firearm found was his.

Parell Palmer

58Mr. Palmer testified that he began the night at the apartment of Ms. Pachereva. They had been chilling and she mentioned she had been seeing someone else while they were apart. They had a little argument, and Mr. Palmer told her he wanted to take a drive to clear his head. Mr. Pachereva had rented the Cadillac from Turo two days prior. She gave him the keys. He intended to keep the car overnight and return it to her the next day.

59Mr. Palmer drove around until about midnight, when he had to pick up his girlfriend from work at Al's Steakhouse. He did this every night. He picked her up around 12:30 AM and drove her home. They made one stop, at a place that sells after-hours beer because his girlfriend wanted to buy some. She went in and bought a six-pack of beer. He began driving her home and she opened a beer, which made him mad, and then she placed it in the centre console of the vehicle.

60He drove her home; she got out of the car, and he remained in the car as he was waiting for Ms. Bastien-Khan, who was meeting him in an Uber. He had been texting with her earlier about meeting up. She arrived and they drove to a dispensary so that Ms. Bastien-Khan could buy marijuana. He went into the store with her. They then planned to just drive around and hang out, and then eventually go to his friend Hyder's where he would spend the night.

61He was driving toward Aviation Parkway when he was pulled over by the police. He didn't think he was driving that fast, but Ms. Bastien-Khan called out “cop” and then he saw lights and was pulled over. PC Lewis got out of his car and asked him for his license and registration. Mr. Palmer told him he didn't have them, but could give his name, which he did. He told PC Lewis that it was not his car and Ms. Bastien-Khan implied that it was a rental. PC Lewis told him he was going to run his information and return.

62Mr. Palmer called Ms. Pachereva and told her that she needed to come down to where they were. He described PC Lewis as having a bad day due to his responses to Mr. Palmer attempting to contact Ms. Pachereva. PC Lewis told him to step out of the car, that he was being detained for something about unpaid tickets and a suspended license. He frisked Mr. Palmer and then told him to put on handcuffs. Mr. Palmer asked why he was being cuffed and was told it was for safety. PC Lewis then put him in the back of his cruiser.

63PC Lewis read Mr. Palmer his rights to counsel from his book and then said he was going to detain him, write him tickets for driving with a suspended license and speeding, and that he was then going to search the car. If everything was good with the search, he would be free to go. Mr. Palmer told PC Lewis that he didn’t have the right to search the vehicle. PC Lewis said he was going to perform the search anyway. Mr. Palmer then stopped talking to PC Lewis.

64Mr. Palmer scooted to the middle of the rear seat so he could see the vehicle. He saw another officer take Ms. Bastien-Khan out of the passenger side of the car and have her on the curb. PC Lewis went to the front driver side of the vehicle and appeared to be searching. He then popped the trunk open and proceeded to the trunk. PC Lewis searched in the trunk; he picked up the spare tire in the trunk and then from underneath that area produced a black bag. It was in the middle of the trunk. PC Lewis held the black bag up high, looking at it. He opened the zipper of the bag and was looking inside of it. He then called his partner over to look at it. He pushed up an object from in the bag and Mr. Palmer could see him showing his partner the butt of a handgun.

65PC Lewis closed the bag and put it in a bag with a red slip. He went to the driver door and placed it on the seat. He then went through the car popping things open. He popped open the centre console and located the beer and put it on top of the car. He then put the black bag back in the trunk of the Cadillac.

66Mr. Palmer saw the other officer go back to Ms. Bastien-Khan; he was pretty sure she was arrested and placed in another cruiser behind the one he was in. He saw Ms. Pachereva was on scene; she had arrived near the end of PC Lewis searching the car.

67PC Lewis came over to Mr. Palmer. He told him he had found a firearm in the car and that he would need to do a breathalyzer test. Mr. Palmer said “no,” or possibly, “hell no,” to the breath test. He knew he was being asked because of the beer can. PC Lewis now arrested him for both the firearm and refusing the breath test.

68Mr. Palmer sat in the cruiser for 10 or 15 minutes. A female officer took him to another cruiser. She then began driving him to the station. While in the car he asked her if Ms. Bastien-Khan was being arrested. He also asked her for Rachel's number because he was worried about his young puppy. The puppy was actually with his girlfriend but in his upset at what was happening he said Rachel instead of his girlfriend's name.

69Mr. Palmer denied any knowledge or control over the bag in the trunk. He had not checked the trunk before driving the car, and he had not had any access to the vehicle until driving it this evening.

70In cross-examination, he acknowledged that he had kept his relationship with Ms. Pachereva from his girlfriend and vice-versa. He would not agree that this amounted to lying to both women. He said they just hadn't brought these things up.

71He acknowledged that he knew the car was rented in Ms. Pachereva's name and that he was not entitled to drive it, and that the insurance would not have covered him.

72He acknowledged having a criminal record with a number of crimes of dishonesty; in particular, in 2015, there were five counts of robbery, disguising himself with intent to commit an offence, possessing property obtained by crime, and four counts of failing to comply with Court Order. He received a sentence of 34 months in relation to these and several other offences on top of pre-sentence custody.

73He acknowledged the items of identification that were found inside the wallet that contained his name and photo, and he agreed he used Costco and had also worked there, but he testified that the wallet was not his and he had no knowledge of how it got in the black bag. He denied that the bag and the items in it were his. He testified that Ms. Pachereva was wrong when she testified that it was his bag.

74He acknowledged an inconsistency in his evidence about PC Lewis; he had described him as yelling in his face in chief but in cross-examination described this as speaking loudly but having a bad day, with anger in it.

Issue 1: Credibility and Reliability of the Witnesses

75Everyone is presumed innocent until their guilt has been proven beyond a reasonable doubt. The onus is on the Crown throughout. The Crown faces a high burden; proof beyond a reasonable doubt requires credible and reliable evidence in order to displace the presumption that the person charged and before the court is innocent.

76It is important to distinguish between the concepts of credibility and reliability. In R. v. H.C., 2009 ONCA 56 at para. 41, the Court of Appeal explained that:

Credibility and reliability are different. Credibility has to do with a witness's veracity, reliability with the accuracy of the witness's testimony. Accuracy engages consideration of the witness's ability to accurately observe, recall and recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence.

77With respect to credibility, one of the most valuable means of assessing it is to examine any inconsistency between what a witness said in testimony and what he or she has said on other occasions. Inconsistencies may also arise where things are said differently at different times within testimony, including omitting certain details at one time while referring to them on other occasions.

78Inconsistencies vary in nature and importance. Some are minor, while some concern material issues. When an inconsistency involves a material point on which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the Court should be concerned.

79There are other factors that can affect an assessment of credibility. These include but are not limited to whether the account is inherently logical, whether the account is inconsistent with other evidence, and whether the witness has a criminal record for crimes of dishonesty.

80Reliability of a witness’s evidence can be undermined by the circumstances under which the observations were made. The reliability of an account can also be undermined by a diminished recollection of the events over time, evidence of tainting, or other factors such as impairment by alcohol or a drug at the time that the observations were made.

81As I assess the testimonial accounts in this case, I am mindful that I may accept some, none, or all of an account and can give different weight to the portions of evidence that are accepted.

82Ms. Pachereva was a nervous and obviously reluctant witness. Despite her reluctance, I found her to be a compelling and credible narrator. She clearly had conflicting feelings for Mr. Palmer and the situation, which in her mind was caused by Mr. Palmer, but this makes a lot of sense considering her work experience and involvement.

83There were no material inconsistencies in her evidence and it made logical sense. In particular, her testimony about how Mr. Palmer came to leave her apartment that night, how he took the car from her without really seeking permission, and about how she spoke to him by phone asking that he return that night all made logical sense and accord with human experience.

84I accept Ms. Pachereva's evidence. In my view she was both credible and reliable. She seemed to be doing her best to recount events from that night and she had a good memory. I accept that she attended at the scene, but did not observe Mr. Palmer there. I also accept that she spoke to PC Lewis at the scene and he told her she needed to get better friends. She saw PC Lewis carry the black bag from the front of the car at one point to the trunk. It makes sense that she would have specific memories of these moments which were highly unusual for her.

85Finally, I accept her testimony that she was familiar with that black satchel because she had seen it regularly in the possession of Mr. Palmer. It is a very distinctive satchel, and her evidence that he used it regularly would tend to be confirmed by the identification inside of it in his name.

86Ms. Bastien-Khan was also a reluctant participant in the trial. Given her longstanding friendship with Mr. Palmer and her own arrest on the night in question, it makes sense that she wouldn't want to be involved in testifying against him. Generally, I found her to be a credible and reliable witness with some gaps in her memory. She was trying her best to be honest, but some portions of the events she didn't have a clear recollection of as she had been focused on her phone or, as she described it, “in her head” during the events.

87Most of Ms. Bastien-Khan's evidence accords in general with that of PC Lewis, in particular the timing of Mr. Palmer's removal from the vehicle, the officer searching in the vehicle, and the eventual arrests. I accept these portions of Ms. Bastien-Khan's evidence. I also accept her evidence that the black satchel was not hers, and that she did not recognize it. I also accept that she had not previously seen Mr. Palmer with that bag.

88PC Lewis was a generally credible and reliable witness. There were some areas of his testimony where his memory was somewhat lacking and he had to be refreshed by reference to his notes, but he overall had a good recall of events and his evidence made logical sense.

89There were two areas of inconsistency in his evidence: the order of the inventory of the vehicle and the question of when he called for the tow truck. When these inconsistencies were put to him, he corrected both with reference to the sequence in his notes testifying that his notes would have been correct as to the sequence. While it would have been preferable for PC Lewis to take more care with his evidence, in my view his explanation that these were gaps in his memory due to the passage of time makes sense. It also makes sense that he would adopt the timing of these events from his notes rather than his memory.

90There are two area where PC Lewis was inconsistent with other evidence. The first of these is Ms. Pachereva's evidence that he carried the black satchel from the front of the car to the trunk at one point. I have already indicated my reasons for accepting Ms. Pachereva's evidence on this point. This was unusual for her, but one of many days of police work for PC Lewis. It makes sense that he might not recall having carried the satchel with him and then returning it to the trunk.

91The second area of inconsistency is in relation to who was contacting Ms. Pachereva by phone. PC Lewis testified that this was the passenger of the vehicle. That is contrary to Ms. Pachereva's evidence, and it wouldn’t make sense as it was Mr. Palmer who had the connection to Ms. Pachereva, not Ms. Bastien-Khan. On this, I prefer the evidence of Ms. Pachereva. PC Lewis is clearly wrong about this portion, but that does not cause me concern about the rest of his evidence. The contacting of Ms. Pachereva was while PC Lewis was concerned about checking the identifications of Mr. Palmer and Ms. Bastien-Khan and going between the vehicles. It makes sense that he might be confused about who was trying to locate the vehicle renter and who was communicating this information to him.

92I am prepared to accept most of PC Lewis' testimony. Portions of it are confirmed by the evidence of Ms. Bastien-Khan regarding the timing, and other portions by the evidence of PC Simon, which I will review shortly. It was logical and made sense. In particular, I accept that PC Lewis stopped Mr. Palmer due to speeding the midst of a shift of routine traffic enforcement, that he ran Mr. Palmer's name and date of birth and discovered he had a suspended G1 license, that he chose to arrest him for driving while suspended under the HTA because he was not satisfied with how he had identified and whether he had any right to be operating the vehicle he was driving, that he smelled the odour of alcohol on Mr. Palmer's breath while engaged in that arrest and made a demand for an ASD sample, which Mr. Palmer refused. I accept that the refusal to provide a sample provided the basis for the tow of the vehicle, and that PC Lewis searched the front compartment and trunk of the vehicle where he located the satchel, sitting open, and with the tang of the handgun visible.

93PC Simon was a careful and forthright witness. There were no major inconsistencies in his evidence. He did have some gaps in his memory, and it was clear he relied on his notes to refresh his memory. His evidence was somewhat limited due to his role in the incident, which mostly involved dealing with Ms. Bastien-Khan.

94I found his evidence generally credible and reliable. In particular, his evidence about the ASD. This evidence is consistent with PC Lewis but inconsistent with Mr. Palmer. PC Lewis testified that he developed his suspicion as to alcohol during the arrest and pat-down search of Mr. Palmer. Mr. Palmer testified that there was no mention of a demand for his breath until after the inventory search had been conducted. Mr. Palmer's evidence is inconsistent with PC Simon about retrieving the ASD. If PC Lewis had waited until after the inventory search to make a demand for breath and this conversation had unfolded as Mr. Palmer testified, there would never have been a need or request for the actual ASD, and PC Simon would have been unable to leave Ms. Bastien-Khan because he would have already placed her under arrest for the firearm.

95I accept PC Simon's evidence that he attended the scene when requested and that PC Lewis communicated to him that he had decided to arrest Mr. Palmer. I accept that PC Lewis asked him if he had an ASD with him and that it was retrieved from his vehicle. I accept that he had Ms. Bastien-Khan get out of the vehicle and that he was standing next to her when PC Lewis called him over to the vehicle to look at something. He took a few steps toward the trunk and saw the tang of a black handgun which he immediately recognized as a Glock because of his familiarity with that gun. It was visible inside a small satchel in the trunk of the vehicle. PC Simon then placed Ms. Bastien-Khan under arrest and the remainder of his duties at the scene involved dealing with her. I also accept that PC Simon did not note any odour of an alcoholic beverage on Mr. Palmer's breath.

96PC Micholuk was a careful and thoughtful witness. She had a good memory of the incident and her dealings with Mr. Palmer and there were no significant inconsistencies in her evidence. She acknowledged that her duty notes contain one statement from Mr. Palmer and that her investigative report contains the second statement; I accept that this was an oversight. She had clear memory of both statements, and it is not unusual for an officer to have recorded different detail in two different summaries of involvement.

97I accept PC Micholuk's evidence that she assumed custody of Mr. Palmer at 2:46 AM. Mr. Palmer was cooperative and compliant. I accept that she did not make any offers or inducements to him. I accept that, as she was placing Mr. Palmer into her scout car, he said to her, “She is not getting charged is she, I will take the blame for everything.” PC Micholuk had not asked any questions to elicit this statement. She provided Mr. Palmer a caution. I further accept that during their conversation in the cruiser Mr. Palmer stated, “If I own up to it all can the other girl go free, I don't want her to get charged.” I also accept that PC Micholuk did not note any odour of an alcoholic beverage on Mr. Palmer's breath or any indicia of impairment.

98Mr. Palmer's evidence had a number of frailties; primarily, significant portions of his evidence are illogical in that they are inconsistent with common sense and human experience.

99Mr. Palmer's testimony regarding the satchel is that he watched PC Lewis search under the spare tire of the vehicle and pull out the satchel from in the middle of the trunk, that he unzipped that satchel, and then called PC Simon over to look at what he could see. Mr. Palmer's evidence is that he could see this from within the rear seat of PC Lewis' cruiser and could, himself, see the butt of the gun when the officers were looking at it. Mr. Palmer does not dispute that within that satchel was a wallet containing a number of pieces of personal identification in his name. He testified he had no knowledge of that wallet.

100But this does not make logical sense. It does not accord with common sense and human experience. Guns are valuable, particularly where they are loaded and prohibited: R. v. Thompson, 2020 ONCA 361, at para. 11; R. v. Bonilla-Perez, 2016 ONCA 535, at para. 16; R. v. Buchanan, 2020 ONCA 245, at para. 61; R. v. Walters, 2023 ONCA 4, at paras. 21, 29. It is not just the cost of a firearm that makes it valuable, but the inherent danger, difficulty of acquisition, and severe legal jeopardy associated with illegal firearms. Personal identification like an RBC client card, used to access banking, and OHIP cards, are important and regularly-used items. They can be misplaced or lost, but there are five such cards in Mr. Palmer's name in the wallet located in the satchel.

101Mr. Palmer's evidence with respect to the unknown satchel in the trunk of the car would require either:

(1) That the satchel and contents belong to Ms. Pachereva, that she has stored a wallet with Mr. Palmer's identification in it in the same satchel, and that she placed that satchel in the trunk of the car she rented two days prior, or

(2) That an unknown person with access to the car left a valuable firearm in a satchel in the car that also just happens to contain five pieces of identification in Mr. Palmer's name, and he just happened to end up driving that same vehicle which had only been accessible to him for two days.

102I have accepted Ms. Pachereva's evidence that the satchel is not hers. The other explanation, that an unknown person left these items together in the trunk of a car that Mr. Palmer just happened to end up driving, is beyond incredible. It completely defies logic and common sense.

103Mr. Palmer's evidence on his ability to see into that satchel from his placement in the scout car also defies logic and common sense, and was internally inconsistent. The unlikelihood of this became very clear in his cross-examination on this point where further detail was elicited about the exact positioning of PC Lewis to account for Mr. Palmer’s ability to visualize the gun from the distance and his position in the rear of the cruiser.

104I also have concerns about Mr. Palmer's credibility on the basis of his answers to questions in cross-examination about his willingness to deceive or withhold information from Ms. Pachereva and his girlfriend about each other. He was also internally inconsistent in his evidence about whether there was a dispute or he was upset by Ms. Pachereva seeing another man.

105His 2015 convictions for crimes of dishonesty and breaching court order are also of some concern with respect to his credibility.

106Finally, he was internally inconsistent in his evidence about:

(1) How he was able to visualize the satchel in the trunk, adding significant new detail when the suggestions were made to him that he would not have been able to make those visualizations from his position in the back of the scout car;

(2) PC Lewis' manner of speaking to him; shouting shifted to obviously angry; and,

(3) When he was told he was being arrested for a firearm and whether and when he was given rights to counsel about that. On these points he was inconsistent in his evidence in-chief.

107I also note that Mr. Palmer's evidence is inconsistent on many points with the evidence of Ms. Pachereva, Ms. Bastien-Khan, PC Lewis and PC Micholuk, whose evidence I have accepted.

108On the basis of these concerns, I do not accept Mr. Palmer's evidence. I will address further portions of his evidence as I proceed through the issues.

109On the basis of the evidence I have accepted I am able to make the following findings of fact:

(1) Ms. Pachereva rented the dark Cadillac through Turo. She had been in possession of it for approximately two days. When she took possession of it, she photographed the inside and outside of the vehicle. No one else had access to the vehicle after except for her and Mr. Palmer.

(2) On the evening of August 13, 2024, Mr. Palmer was at Ms. Pachereva's and they had a disagreement about their relationship. He left even though she didn't really want him to, taking the car with her knowledge.

(3) Ms. Pachereva spoke to him after midnight by phone asking him to return to her apartment for the night. He did not.

(4) Ms. Bastien-Khan met Mr. Palmer at his friend's apartment after she finished work. She walked into the apartment and there was music playing. She and Mr. Palmer left so she could purchase marijuana.

(5) Ms. Bastien-Khan purchased marijuana and she and Mr. Palmer drove around.

(6) They were pulled over by PC Lewis on the bridge after PC Lewis used a LIDAR device to confirm the vehicle was speeding; the Cadillac was travelling at 74 km/hour in a 50 km/hour zone.

(7) PC Lewis approached and asked Mr. Palmer for his driver's license, insurance and registration.

(8) Mr. Palmer advised that he did not have his license on him.

(9) PC Lewis asked him for a name and date of birth, and he provided both.

(10) PC Lewis began to return to his car to check the information provided when Mr. Palmer said that the passenger was there in the vehicle so he could drive.

(11) PC Lewis returned to Mr. Palmer to question him about his class of license and Mr. Palmer told him he was a novice driver.

(12) Ms. Bastien-Khan provided her name and date of birth.

(13) PC Lewis inquired after ownership and insurance and was told the person who had rented the car would send it.

(14) Mr. Palmer called Ms. Pachereva and asked her to take an Uber to the location because he had been stopped by police and wanted her to say that the female who was with him had been driving.

(15) PC Lewis searched Mr. Palmer on the MTO database. He received information that Mr. Palmer had a G1 license and that it was suspended due to unpaid fines. PC Lewis had decided to arrest Mr. Palmer under the HTA.

(16) PC Lewis contacted PC Simon for assistance at the scene and requested that dispatch confirm the license suspension.

(17) PC Lewis received confirmation at 2:21 AM of the license suspension.

(18) PC Simon arrived on scene and at 2:25 AM, PC Lewis placed Mr. Palmer under arrest pursuant to s. 53 of the HTA. He advised him of the reason for the arrest, had him step out of the vehicle and placed him in handcuffs.

(19) PC Lewis conducted a cursory pat-down search. He gave Mr. Palmer his rights to counsel and cautioned him. Mr. Palmer told him he understood and answered, “not right now.” During this interaction, PC Lewis detected the odour of an alcoholic beverage on Mr. Palmer’s breath.

(20) PC Lewis asked him if he had consumed alcohol, and Mr. Palmer said no.

(21) PC Lewis believed that Mr. Palmer had operated the vehicle with alcohol in his body; he asked PC Simon if he had an ASD. PC Simon did, and it was retrieved from his vehicle.

(22) At 2:28 AM, PC Lewis returned to Mr. Palmer and made a demand that Mr. Palmer provide a sample into the ASD.

(23) Mr. Palmer responded with, “I will not be taking part in that.”

(24) PC Lewis told Mr. Palmer of the ramifications of refusing.

(25) Mr. Palmer maintained that he would not provide a sample.

(26) PC Lewis placed Mr. Palmer under arrest for refusing to provide a sample. He again read him his rights to counsel and cautioned him. Mr. Palmer told him he did not want to call a lawyer. PC Lewis then secured him in the rear of the cruiser.

(27) PC Lewis determined that the vehicle would be towed due to the seven-day impoundment and because it was obstructing the roadway.

(28) PC Lewis determined he would inventory the car for towing.

(29) PC Simon asked Ms. Bastien-Khan to exit the vehicle for inventory and towing. He stood by with her to the side of the Cadillac.

(30) PC Lewis began his inventory at the driver door; he did not see anything of note. He used a button on the driver’s side to open the trunk and proceeded to inventory the trunk. There was a single black and gold satchel leaning upright against the driver-side portion at the rear. The zipper was open and he could see the tang of a black handgun protruding.

(31) PC Lewis asked PC Simon to confirm what he was seeing; PC Simon confirmed that he also saw the tang of a handgun. PC Lewis left the satchel bag in the trunk where he had seen it.

(32) PC Simon placed Ms. Bastien-Khan under arrest for unauthorized possession of a firearm.

(33) PC Lewis returned to Mr. Palmer and advised him he was under arrest for unauthorized possession of a firearm. He again provided rights to counsel, confirmed Mr. Palmer understood, and cautioned him. Mr. Palmer declined to call a lawyer. PC Lewis informed him that this charge was more serious and he would be given the opportunity to contact counsel once he arrived at the station.

(34) PC Lewis then returned to the vehicle to secure it. He called PC Bernard and offered to prove the weapon safe, but was informed to seize the entire satchel and have it brought to identification for processing. He placed the entire satchel into an evidence bag, carried it to the front door while he checked and located the can of beer, and then secured it in his cruiser.

(35) At 2:46 AM, Mr. Palmer was moved from PC Lewis' cruiser into the rear of PC Micholuk's. Just prior to being placed in her cruiser he said, “She is not getting charged is she, I will take the blame for everything.” She cautioned him as to making further statements and gave him a secondary caution that if he had spoken to any other officer that it should not influence him in the making of any statements. During transport to the station, he further said, “If I own up to it all can the other girl go free, I don't want her to get charged.”

(36) Ms. Pachereva arrived on scene as PC Lewis was securing the satchel. This makes sense as to her observation that she saw him holding that bag and moving it from the driver side to the rear of the car. I accept that Ms. Pachereva saw this and spoke with PC Lewis who told her she needed to get better friends. She also attempted to show him her rental information for the vehicle.

(37) At 2:50 AM, the call for tow was placed. PC Lewis left the scene to transport the satchel to PC Bernard.

(38) Located in the satchel were:

(a) 1 loaded Glock 17 Gen5 9mm handgun with serial number ABPX542; it was loaded with 15 rounds of ammunition in the magazine and one round in the chamber;

(b) 2 grams of powder cocaine in a small, tied-off bag;

(c) 1.9 grams of crack cocaine in a separate, small, tied-off bag;

(d) 14.7 grams of MDMA in 15 separate dime bags;

(e) Gold teeth grills;

(f) 1 pair of black Calvin Klein men’s underwear;

(g) Condoms;

(h) 1 key fob for an Audi;

(i) 1 black bi-fold wallet containing:

(a) 5 identity cards for five unknown persons (two OHIP card, two Ontario driver’s licenses and one Quebec vehicle permit);

(b) 2 expired OHIP cards in the name of Mr. Palmer;

(c) 1 Royal Bank of Canada client card in the name of Mr. Palmer;

(d) 1 Costco card in the name of Mr. Palmer;

(e) 1 Correctional Services Canada identification card in the name of Mr. Palmer;

(j) 1 LCBO receipt;

(k) 1 torn paper with three addresses written on it;

(l) 1 $100 bill; and,

(m) $2 coins.

(39) At 4:56 AM, PC Lewis spoke to Mr. Palmer and advised him of further charges in relation to the firearm and drugs found in the satchel. He served him with summonses for the HTA offences of speeding, driving while under suspension, fail to surrender, novice driver fail to provide, drive unlawful hour, insurance, and under the Liquor License Act for open liquor in the vehicle.

Issue 2: Has Mr. Palmer proven on a balance of probabilities that his Charter rights were infringed?

Did the officers violate his s. 9 rights by placing him under arrest for driving while suspended?

110Mr. Palmer alleges that his arrest was not lawful, and he was therefore arbitrarily detained by police. He has the burden of proving he was arbitrarily detained or imprisoned. The analytical framework for determining a breach of s. 9 involves two steps: 1) was the individual detained or imprisoned and 2) was that detention or imprisonment arbitrary.

111There is no dispute that Mr. Palmer was placed under arrest and taken into detention. This question turns on whether that detention was arbitrary.

112An unlawful detention (i.e., detention or imprisonment that is not authorized by statute or common law) is always arbitrary: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at paras. 54-55, 57; R. v. Tim, 2022 SCC 12 at para. 22. A lawful detention is not arbitrary within the meaning of s. 9.

113The HTA contains a provision governing arrest for driving while suspended. Driving while suspended is an offence under s. 53 of the HTA.

114The arrest power is contained in s. 217(2):

Arrest powers

Arrests without warrant

(2) Any police officer who, on reasonable and probable grounds, believes that a contravention of any of the provisions of subsection 9 (1), subsection 12 (1), subsection 13 (1), subsection 33 (3), subsection 47 (5), (6), (7) or (8), section 51, 53, subsection 106 (8.2), section 130, 172 or 184, subsection 185 (3), clause 200 (1) (a) or subsection 216 (1) has been committed, may arrest, without warrant, the person he or she believes committed the contravention.

115This provision requires that the police have met the required threshold before making an arrest: R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241 at 249.

116The standard of “reasonable and probable grounds” has both a subjective and an objective aspect: the police officer must believe that he or she has reasonable and probable grounds to make an arrest and it must be objectively established that those reasonable and probable grounds did in fact exist. The question is would a reasonable person, standing in the shoes of the police officer, have believed that reasonable and probable grounds existed to make the arrest: R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241 at 250.

117The Provincial Offences Act mandates the release of a person arrested under s. 217(2) as soon as is practicable unless continued detention is necessary in the public interest to establish the person's identity, secure or preserve evidence, or prevent the continuation or repetition of the offence or another offence.

118The state cannot use the HTA as a pretext for a different investigation. As the Court of Appeal explained in R. v. Mayor, 2019 ONCA 578, at para. 9:

… if the officer does not have a legitimate road safety purpose in mind and is using the Highway Traffic Act authority as a mere ruse or pretext to stop a vehicle in order to investigate a crime, then the detention will be unlawful. As Doherty J.A. held in Brown, the Highway Traffic Act powers will not authorize police stops if the police use these powers as a "ruse" to justify a stop for another purpose: at p. 234. Likewise, in R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 36 (citations omitted), the Supreme Court emphasized that courts should not permit the police to invoke road safety detention powers as "a plausible façade for an unlawful aim." …

119Even where a lawful power to arrest exists, detention undertaken for improper motives may also make it arbitrary. Anything in the circumstances of the detention or arrest which makes the arrest suspect on any other ground, such as an arrest made because of bias toward a person of a different race or nationality, might have the effect of rendering an otherwise lawful arrest unlawful: R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, at 251-252.

120Racial minorities are treated differently by the police: R. v. Le, 2019 SCC 34, at para. 90. Racial profiling is a day-to-day reality in the lives of minorities affected by it: R. v. Le, 2019 SCC 34, at para. 80. Visible minorities and marginalized individuals are likely to represent a disproportionate number of personal searches by the police.

121Racial profiling occurs where the state, without factual grounds or reasonable suspicion, exposes a person or group to differential treatment or scrutiny based on presumed membership in the group defined by race, color, ethnic or national origin or religion. It matters not whether such action was taken for reasons of safety, security or public order: Quebec v. Bombardier Inc., 2015 SCC 39, at para. 33.

122Racial profiling has two components: attitudinal and causation. The attitudinal component is present when a person in authority accepts that race or racial stereotypes are relevant in identifying the propensity to commit a crime or to be dangerous. The causation component is present where such race-based thinking consciously or unconsciously motivates or influences the decisions of a person in authority, to any degree, in the selection and/or treatment of the person or group subject to such action: R. v. Dudhi, 2019 ONCA 665, at para. 66; R. v. Le, 2019 SCC 34, at para. 76.

123Direct evidence of racial profiling is rare. All the circumstances surrounding the event must be considered in order to determine whether the police action has been motivated by racial profiling: R. v. Dudhi, 2019 ONCA 665, at para. 75-76. Racial profiling can occur even when an officer is unconscious of the fact that the formulation of reasonable grounds has been tainted by considerations of racial stereotypes.

124PC Lewis initially stopped Mr. Palmer because he was speeding. I accept PC Lewis' evidence that, at the distance of 293.6 metres, when he took the speed reading, he was unable to see the driver. The stop itself was motivated by legitimate road safety enforcement, which had been on-going at that location prior to Mr. Palmer's appearance.

125PC Lewis testified as to his grounds to arrest Mr. Palmer once he had information that Mr. Palmer's license was suspended. I accept PC Lewis' evidence that the arrest was premised on the totality of circumstances, including:

(1) Time of night;

(2) Inability to identify Mr. Palmer beyond a verbal identification;

(3) Lack of ownership or registration documents for the vehicle;

(4) Inability to determine contact information for the registered company listed as owner by MTO;

(5) Inability to identify the accompanying driver beyond a verbal identification; and,

(6) Lack of insurance documents.

126I accept PC Lewis' evidence that, if it were not for detecting the odour of alcohol, he would have confirmed identification of Mr. Lewis and then released him with tickets and summonses.

127The grounds that PC Lewis relied on are reasonable and probable. I accept that he believed them, and that a reasonable person, standing in the shoes of PC Lewis, would have believed that reasonable and probable grounds existed to make the arrest.

128I likewise accept PC Lewis' evidence that race was not a conscious factor in his decision-making. I am also not satisfied on the facts of this case that unconscious bias played any role in the decision to stop or arrest Mr. Palmer. As PC Lewis testified to, the area where he was conducting speed enforcement leads to a variety of communities, including Gatineau in Quebec and the Rideau Park area in Ottawa. It is not an area that could be considered as a targeted area due to high crime. PC Lewis took steps to confirm that the MTO notice that Mr. Palmer's license was suspended was correct before arresting him. None of this is consistent with an inference that there was an unconscious bias at work.

129Mr. Palmer submitted that the circumstances of the stop and how it escalated support the inference that there was a racial motivation. Mr. Palmer submits that he was cooperative, compliant, and posed no safety risk. He should not have been arrested, handcuffed behind his back, searched, and confined in the rear of a police cruiser. He further submits that the calling of PC Simon to the scene to assist supports the inference.

130I disagree. PC Lewis was dealing with two people in the vehicle, late at night. Neither had identification or proof of authority for the vehicle. It is reasonable that PC Lewis would call for another officer to assist in arresting Mr. Palmer under the HTA, and it is reasonable that PC Lewis felt he needed to confirm Mr. Palmer's identity.

131I have not accepted Mr. Palmer's evidence that PC Lewis arrested him for driving suspended and then told him there would be a search of the vehicle. Rather, I am satisfied that PC Lewis had grounds to place him under arrest pursuant to the HTA. He performed a pat-down search of Mr. Palmer for legitimate safety concerns, and gave him rights to counsel and a caution. He detected the odour of an alcoholic beverage on Mr. Palmer's breath and made a demand that he provide a sample into an ASD.

132I have considered the lawfulness of this demand. I reject Mr. Palmer's evidence that the demand was not made until later. I have considered that neither PC Simon nor PC Micholuk smelled an odour of alcohol on Mr. Palmer's breath; the lack of confirmatory evidence from those officers does not raise a doubt about the lawfulness of PC Lewis' demand. PC Simon did not get close to Mr. Palmer, nor did he interact with him for the duration that PC Lewis did. PC Micholuk took custody of Mr. Palmer, but then placed him in the rear of her cruiser where a barrier separated the two of them. She did not perform the same pat-down type search or engage with him for the same duration as PC Lewis.

133Neither officer would necessarily have detected the same odour that PC Lewis did. The fact that they did not detect the odour does not mean it wasn't present. The lack of confirmatory evidence from them is just that, a lack of confirmatory evidence, but I accept PC Lewis' evidence that the odour was present, and he reasonably believed there was alcohol in Mr. Palmer's body while he had been operating the Cadillac.

134Mr. Palmer refused to provide a sample, even on his version of the evidence. That refusal led to the towing of the vehicle. The inventory search of the vehicle flowed from the towing of the vehicle.

135When the blended trial and voir dire commenced, Mr. Palmer had also sought relief for a breach of s. 8 of the Charter for the search. In the course of submissions, Mr. Palmer abandoned his claim for s. 8 relief on the basis of a lack of a reasonable expectation of privacy, a concession which I accepted. However, on the facts I have accepted, even if he had had a reasonable expectation of privacy in the borrowed, rental vehicle, which he was not insured or licensed to drive, an inventory search of the vehicle in the manner that it was conducted by PC Lewis would have been permissible. I have accepted that the satchel was standing in the trunk of the car, open, with the tang of the gun visible. A cursory visual inspection of the inside of the trunk is reasonable when a vehicle is being impounded, and that is what PC Lewis was performing.

Whether the Applicant’s right to silence was violated while he was detained and under police control

136Mr. Palmer framed most of his argument related to the statements overheard by PC Micholuk as not being capable of supporting an inference that they were admissions of guilt or possession. However, he also seeks to exclude them for a breach of his Charter right to silence.

137S. 7 encompasses the protection for the right to silence in the pre-trial context. The right to “stand silent before the accusations of the state,” is intimately linked to our adversarial system of criminal justice and the presumption of innocence, both of which “preserve the ‘basic tenet of justice’ that the Crown must establish a case to meet before the accused is expected to respond:” R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609, at para. 2.

138A detained person must be in a position to make a free choice on the matter of whether to speak to the authorities or to remain silent: R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151 at p. 178; R. v. Liew, 1999 658 (SCC), [1999] 3 S.C.R. 227 at paras. 36-37; R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, at paras. 43-46.

139A detained person who is informed of the reasons for their arrest, their right to retain and instruct counsel, and the potential use of their statements in criminal proceeding against them can then choose whether or not to remain silent or whether or not to speak to police. If a detainee indicates a desire to exercise the right to counsel, then the state must hold off in questioning that detainee until they have exercised that right. However, a detainee is free to choose not to exercise a right to counsel and to speak to police. The question is whether the detained person was in a position to make a free choice of whether to speak or to remain silent.

140The statements at issue are Mr. Palmer's utterances to PC Micholuk: “She is not getting charged is she, I will take the blame for everything,” and, “If I own up to it all can the other girl go free, I don't want her to get charged.” These were recorded by PC Micholuk in her notes and investigative report.

141Mr. Palmer argues he was detained and under the control of the police when he was placed, handcuffed, in the rear of the cruiser. The utterances were not a voluntary narrative statement; rather they were spontaneous, stress-induced expressions made in direct response to the coercive circumstances of arrest. It was not a free and meaningful choice to incriminate himself.

142Mr. Palmer made these utterances more than 40 minutes after he was first stopped by police. By the time he made the utterances:

(1) Starting at 2:25 AM, he had been arrested for driving while suspended under the HTA, provided his rights to counsel, advised he understood and that he didn't want to call a lawyer, cautioned and given a secondary caution;

(2) After refusing to provide a sample at 2:28 AM, he had been arrested for refusing, again advised of his rights to counsel, and again told PC Lewis that he understood and that he did not want a lawyer. He was cautioned a second time;

(3) Prior to 2:38 AM, he had been arrested for a third time, this time for the firearm. He was advised of his rights to counsel and again told PC Lewis he understood, and that he didn't want to speak to counsel. PC Lewis advised him that this was much more serious and that the opportunity to call counsel would be given to him as soon as they were at the station despite his declining counsel. He was cautioned a third time about statements.

143Mr. Palmer was in a position to make a free choice whether to speak to authorities or not. He had been properly advised of his rights and cautioned three times in less than 15 minutes. There is no breach of his right to remain silent.

144The Charter Application is dismissed.

Has the Crown proven beyond a reasonable doubt that Mr. Palmer made utterances to police that were voluntary

145The Crown seeks to admit his utterances as voluntary. Statements or utterances made by an accused person to a person in authority are presumptively inadmissible: R. v. Hodgson, 1998 798 (SCC), [1998] 2 S.C.R. 449, at para. 12. Absent a formal admission by the defence that the utterances are voluntary, the Crown must prove the statements or utterances were made voluntarily, on a standard of proof beyond a reasonable doubt: R. v. Oickle, 2000 SCC 38, at paras. 30 and 68.

146The determination of voluntariness is contextual, requiring an examination of the circumstances surrounding police exchanges with the accused. R. v. Oickle defined four criteria that the Crown must prove:

(1) No promises, threats or inducements strong enough to raise a doubt that the accused's will has been overborne;

(2) That the accused possessed an operating mind;

(3) No oppressive atmosphere; and

(4) No police trickery that would shock the community.

147Police are obliged to record the circumstances of interactions leading up to the statement and the absence of a proper record can lead to adverse inferences. While verbatim, electronic recordings of actual statements are preferred, summaries cannot be discounted. Once it is established that the exchange was voluntary, the adequacy of the record goes to weight, not admissibility. The Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police.

148I have accepted PC Micholuk's evidence that Mr. Palmer made the utterances in question. I also accept the evidence of PCs Lewis, Simon and Micholuk that no officer made any promises, threats or inducements. I have rejected Mr. Palmer’s testimony that he did not make these utterances, and his testimony does not raise a reasonable doubt.

149I find that Mr. Palmer had an operating mind. While there was an odour of alcoholic beverage on his breath, there is no indication that he was impaired by alcohol or drugs. I accept that he was motivated by genuine concern for his friend Ms. Bastien-Khan, who was getting arrested, but that motivation in no way prevented him from having an operating mind or converted the arrest into an oppressive atmosphere.

150Mr. Palmer chose to engage with PC Micholuk. He spoke about his puppy. He expressed concern for Ms. Bastien-Khan. And he inquired if she was being arrested and said he would take the blame if she could go free. He had been cautioned about making statements three times before he made these utterances.

151The Crown has proven that they were voluntary beyond a reasonable doubt.

Has the Crown proven beyond a reasonable doubt that Mr. Palmer had knowledge and control of the firearm, ammunition and drugs located

152Mr. Palmer submits that the statements are equivocal in that they are open to a number of interpretations. I agree. They are not of the force of direct confessions or admissions. They are vague statements about taking the blame or owning up to things if it means Ms. Bastien-Khan is not blamed. They are merely a piece of circumstantial evidence.

153Six of the charges Mr. Palmer faces first turn on the question of possession. Has the Crown proven that Mr. Palmer possessed the loaded Glock 17 Gen5 9mm handgun, loaded with 15 rounds of ammunition in the magazine and one round in the chamber.

154I have considered and rejected Mr. Palmer’s evidence that the satchel and its contents were unknown to him. His evidence also does not raise a reasonable doubt. I have also considered his statements to PC Micholuk. They are not clear admissions, but they do suggest knowledge of contraband in the satchel. He had been arrested for the firearm by that point, but the satchel had not been searched further. His statements do not raise a reasonable doubt.

155The firearm was not in Mr. Palmer's direct possession. The question is one of inference: has the crown proven that the only available inference is that he had knowledge and control of that firearm? Mr. Palmer cannot be found guilty unless guilt is the only available inference to be drawn on the basis of the totality of the evidence accepted. Where there are other conceivable inferences, the Court must determine whether another proposed alternative way of looking at the case is reasonable enough to raise a doubt: R. v. Villaroman, 2016 SCC 33, at paras. 55-56.

156As a matter of logic, proof of ordinary or habitual use of a vehicle or bag may support an inference that the user knows what is in their space and controls those items. Proof of mere association to a vehicle or bag does not necessarily support that same inference; a person who has used a car or bag does not necessarily, as a matter of logic, know what is in them or control those items. Each case turns on its own specific facts.

157Ms. Pachereva had regularly seen Mr. Palmer with that satchel. Ms. Bastien-Khan and Mr. Palmer were the only two people in the vehicle. The vehicle was rented, and Ms. Pachereva had been in possession of it for two days. She had opened and photographed the inside of the trunk when she took possession of the vehicle. She and Mr. Palmer were the only two people to have access to the vehicle after she picked it up.

158Ms. Bastien-Khan had never seen the satchel before. Mr. Palmer made statements after his arrest distancing Ms. Bastien-Khan from the satchel. There was nothing in the trunk except for the satchel. Inside the satchel were a pair of Calvin Klein men’s underwear, condoms, gold teeth grills, and a black bi-fold wallet containing two expired OHIP cards, one RBC client card, one Costco card, and one Correctional Services Canada identification card all in Mr. Palmer’s name.

159I am satisfied that the only available inference is that the satchel was Mr. Palmer’s satchel. I have considered that Ms. Bastien-Khan had never seen Mr. Palmer with the satchel before and that it also contained five other photo identification cards that were not in Mr. Palmer’s name. Those factors do not cause me doubt about that inference. The totality of circumstances here allows for no other rational conclusion.

160I am also satisfied by his habitual use of the satchel that he knew the contents of that satchel. Firearms are valuable items. The identification cards, in particular a bank card, are important items that are regularly used. People who own those things don’t leave them in other people’s bags.

161There is no other available inference than that Mr. Palmer knew the firearm was in that satchel and he exercised control over that firearm.

162Given the formal admissions made at trial, the Crown has proven beyond a reasonable doubt that Mr. Palmer was in possession of a loaded restricted firearm (Count 14), and a prohibited device, being an over-capacity magazine (Count 12).

163The Crown has proven beyond a reasonable doubt that he possessed this firearm while prohibited by an Order under s. 109 of the Code (Count 16).

164And the Crown has also proven beyond a reasonable doubt that he was carelessly storing both the firearm and the prohibited device in the unzipped bag in the trunk of the vehicle, and that he was occupying a motor vehicle knowing there was a restricted firearm in it (Counts 5, 6 and 13). Firearms, which you need to be properly licensed to transport, can only be transported unloaded, rendered inoperable with a secure locking device, placed inside a locked, sturdy, opaque container, which must not be easily broken open. Ammunition must not be loaded in the firearm and must be secure.

165Findings of guilt are entered on counts 5, 6, 12, 13, 14, and 16.

166The black satchel also contained two grams of powder cocaine in a small, tied-off bag, almost two grams of crack cocaine in a separate, small, tied-off bag, and 14.7 grams of MDMA in 15 separate dime bags.

167For the same reasons as with possession of the firearm, I am satisfied that the only available inference is that Mr. Palmer knew these drugs were in the satchel and that he exercised control over them.

Has the Crown proven beyond a reasonable doubt that possession of the drugs was for the purpose of trafficking

168The Crown submits that a further inference should be drawn, that the possession of these drugs was for the purposes of trafficking. No expert evidence was called. Mr. Palmer cannot be found guilty unless guilt is the only available inference to be drawn on the basis of the totality of the evidence accepted. Where there are other conceivable inferences, the Court must determine whether another proposed alternative way of looking at the case is reasonable enough to raise a doubt: R. v. Villaroman, 2016 SCC 33, at paras. 55-56.

169The MDMA was separately packaged in 15 small bags that appear to be generally uniform in size. Mr. Palmer was in possession of these separately-packaged amounts and a loaded firearm. Firearms are known to be used in drug trafficking for protection.

170The obvious competing inference that must be considered is whether he possessed the MDMA for personal use. Given the manner in which it was packaged and the number of packages and the presence of the firearm, I find that personal use is speculative. There is no reasonable inference but that he possessed the MDMA for the purpose of trafficking.

171The cocaine and crack cocaine are not packaged in the same manner and are in much smaller quantities. In my view, the inference that he possessed those for personal use is not speculative, despite the presence of the other drugs and the firearm, and therefore guilt is not the only reasonable inference.

172The Crown has proven that he possessed the MDMA for the purpose of trafficking beyond a reasonable doubt (Count 4) and a finding of guilt is entered on that count. On Counts 2 and 3 the Crown has proven that he possessed cocaine and crack cocaine, but not that he did so for the purpose of trafficking. On those counts findings of guilt will be entered on the lesser and included offences of simple possession.

Has the Crown proven beyond a reasonable doubt that Mr. Palmer refused a lawful demand to provide an ASD sample

173PC Lewis smelled the odour of an alcoholic beverage on Mr. Palmer’s breath. He developed a suspicion that Mr. Palmer had been operating the vehicle with alcohol in his body. He made a demand for an ASD sample and PC Simon, who was on scene, had that device with him and it was retrieved. PC Lewis therefore had the ability to require Mr. Palmer’s immediate compliance with the demand: R. v. Breault, 2023 SCC 9.

174Mr. Palmer directly refused to comply with PC Lewis’ demand. He continued that refusal after being informed of the consequences of refusing.

175The Crown has proven beyond a reasonable doubt that Mr. Palmer committed the offence of failing to comply with a demand for a sample into an ASD. A finding of guilt is entered on this count (Count 1).