ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
AKILI WHITE and SAVON WHITE
Ruling on Charter Application Sections 8, 9, 10(a), 10(b) and 24(2)
Before Justice Brock Jones
Heard on June 30, December 18 and 19, 2025
Written reasons released on January 8, 2026
R. Verboom.......................................................................................... counsel for the Crown J. Roberts……………………………………………………..………counsel for Akili White R. Fedorowicz.…………………..………………..……………….counsel for Savon White
Introduction
1On March 26, 2024, Toronto Police Service (“TPS”) officers stopped a motor vehicle in downtown Toronto for failing to stop at a red light. After speaking to the driver, an officer smelled marijuana in the car. This observation triggered a chain of events that culminated in the officer searching the car under the authority of the relevant provisions of the Cannabis Control Act, 2017, S.O. 2017, c. 26, Sched. 1 (“the CCA”). In a satchel, hidden under the front passenger seat and accessible from the rear passenger footwell, the officer located a loaded 9mm handgun.
2Mr. Akili White had been driving the car before it was stopped by the police. Mr. Anthony Campbell was seated in the front passenger seat. Mr. Savon White was seated in the rear passenger seat. All three men were arrested after the firearm was discovered. After they were arrested, other officers searched the accused parties and located drugs, cash and other items associated with drug trafficking on both Mr. Akili White and Mr. Savon White. All three accused parties were charged with a variety of firearms and Controlled Drugs and Substances Act (“CDSA”) related offences, including possession of a loaded, restricted firearm (Criminal Code section 95(2)) and possession of a Schedule I substance for the purpose of trafficking (CDSA section 5(2)).
3On June 30, 2025, a preliminary hearing commenced before me. PC Uddin, the primary officer responsible for the investigative steps taken in this case, testified. After his testimony, defence counsel requested a re-election for a trial in the Ontario Court of Justice. The Crown ultimately consented. The parties agreed that the preliminary hearing evidence could apply to the trial proper, and trial dates were set for December 18 and 19, 2025.
4On December 18, 2025, the Crown withdrew the charges against Mr. Campbell.
5Ms. Roberts and Mr. Fedorowicz filed an application on behalf of their clients alleging that the officers had violated their clients’ rights under sections 8, 9, 10(a) and 10(b) of the Charter of Rights and Freedoms. They sought an order of the court declaring that the admission of the evidence would bring the administration of justice into disrepute pursuant to section 24(2). The Crown opposed the application.
6After the evidence in the case was completed and I had heard the parties' submissions, I reserved my decision. These are my reasons.
Overview of the Evidence
7The Crown's four officers on the Charter voir dire and the parties filed an agreed statement of facts. In this judgment, I have summarised the relevant portions of the officers' testimony.
Agreed Statement of Facts
8On March 26, 2024, TPS Officers stopped a 2013 Blue Mazda motor vehicle for a Highway Traffic Act violation. Akili White was located in the driver’s seat, Anthony Campbell was in the front passenger seat, and Savon White was in the rear passenger seat.
9Following an investigation conducted pursuant to the CCA, officers located the following items on the person of Savon White:
- 10.21 grams of crack cocaine in a plastic bag;
- $327.35 in Canadian currency;
- Two black cellphones.
10On Akili White, the officers located:
- A small scale with white residue;
- Two cannabis grinders;
- Bulk marijuana weighing 0.48 grams;
- A joint, containing .1 grams of marijuana;
- $639.65 in Canadian currency.
11A search of the vehicle revealed a cell phone, and a black satchel under the front passenger seat. These items were accessible from the rear passenger footwell. Inside the satchel was a Smith and Wesson 9mm handgun. It was loaded with 15 rounds of 9mm ammunition. The officer conducting the search also located 1.18 grams of marijuana.
PC Rakib Uddin
12PC Uddin was on patrol with his partner, PC Winslow, on March 26, 2024. He was a relatively new officer with about 2 years of experience and had not received training on CCA searches while at the police college.
13At approximately 9:11 am, he noticed a blue Mazda travelling northbound on Parliament Street. He observed the driver fail to stop at a red light. He commenced a Highway Traffic Act investigation accordingly. He activated the emergency lights on his squad car, and the driver came to a complete stop. He activated his body-worn camera (“BWC”), and his entire interaction with the accused parties was recorded.
14PC Uddin approached the driver, later identified as Akili White. He detected a strong odour of marijuana in the vehicle. He saw a packet in the centre console but couldn't initially identify it.
15He informed Akili White of the reason for the stop. He observed Mr. Campbell in the passenger seat and eventually Mr. Savon White in the rear passenger seat.
16PC Uddin testified that he had no concerns that Akili White was impaired or unable to operate the motor vehicle safely. He then returned to his squad car.
17Over his police radio, he requested additional officers to attend. He testified that he asked for more officers to assist with an inevitable CCA search. Because he detected a strong odour of marijuana, he “believed” it would lead to a vehicle search.
18After two minutes, he returned to the vehicle and demanded that Akili White hand him the packet he had noticed earlier. Mr. White complied. The packet appeared to be an unregulated marijuana packet. Its cover featured marijuana imagery. The packet had a zip lock at the top. It was open. He looked inside, and it was empty, apart from a few flakes, crumbs, or bits of residue.
19At 9:21:55, he returned to the suspect vehicle and informed Akili White that he would now be searching the vehicle because “I have a suspicion that there’s marijuana in the car.” He told Akili White that he was not being arrested but was being detained. He did not inform Akili White or Savon White of their rights under section 10(b) of the Charter.
20The occupants of the motor vehicle were ordered to exit and were escorted by uniformed officers. PC Uddin searched the motor vehicle and ultimately found the firearm. As soon as he did, he told the other officers to arrest everyone for firearm possession.
21During his testimony on December 18, 2025, PC Uddin clarified that when he informed Akili White he had a suspicion of marijuana being in the vehicle, he “should have used reasonable grounds” instead. He insisted he had more than “mere suspicion”; he “had grounds.” He accepted that he stated he had a suspicion based on the BWC footage because “at the time,” that was “what I believed.” By the time of his testimony, he had reconsidered the matter.
22PC Uddin did not explain why his belief about his grounds changed, other than when he told Ms. Verboom in re-examination that “looking back,” he believed he did form reasonable grounds at the time he decided to search the vehicle. He agreed that if he only had a reasonable suspicion that cannabis was present in the car, that would not provide a lawful basis to search the car under the CCA. PC Uddin was asked to explain what it means for an officer to have a reasonable suspicion. He testified that it means you have “mere thought,” but “without any concrete evidence.”
PC Adam Connelly
23Officer Connelly had served for 1 year as of March 26, 2024. He had not been significantly involved in a CCA investigation prior to that date.
24He arrived alone at the scene at 9:21 am, where PC Uddin had pulled over the vehicle. He was informed that there was open cannabis inside, and they would search the vehicle under the CCA. He received grounds for the search from PC Uddin.
25He directed Savon White out of the vehicle and searched him on the sidewalk. Before doing so, he did not inform Savon White of the reason for his detention or his right to counsel. He believed that another officer had already explained why he was being detained and acknowledged this as a “failure” on his part. Concerning his oversight in not providing Savon White with his rights to counsel, he admitted it “escaped his mind” due to his lack of experience.
26As he was searching Savon White pursuant to what he considered a lawful investigative detention, he located a plastic bag containing a white substance. He asked Savon White, “What’s that?” There was no response. PC Connelly placed him under arrest for possession of a controlled substance. At that point, 9:28 am, he advised Savon White of his rights to counsel. At 9:34 am, after speaking with Officer Ghorbell, Savon White was arrested for possession with intent to traffic and was again read his rights to counsel.
27During cross-examination by Mr. Fedorowicz, PC Connelly agreed that it was wrong for him to ask Savon White what was in the bag, as he had a duty to hold off on questioning. He also agreed that he was not certain what was in the bag and “at best [he] had a suspicion” that the contents of the bag were a controlled substance at the time he made the arrest for possession of a controlled substance.
28Shortly after he made his decision to arrest Savon White for drug possession, he received information from PC Uddin that all of the occupants were arrestable for firearm possession. He arrested Savon White for unlawful possession of a firearm accordingly.
PC Joshua Somers
29PC Somers had approximately five months of experience as an officer on March 26, 2024. This was his first investigation pursuant to the CCA.
30He arrived at the scene and learned that a vehicle stop had occurred, and a CCA search had been authorized. He detained and searched Akili White after PC Uddin removed him from the vehicle.
31He did not inform Akili White of his rights to counsel until he was told to arrest him for unlawful possession of a firearm at 9:27 a.m. Before that, he assumed another officer had advised him of his rights.
DC Wolff
32DC Wolff arrived at the scene of the investigation after the accused parties had been arrested. She inspected the suspect vehicle and noticed a strong odour of cannabis emanating from inside. She believed it was fresh rather than burnt.
Positions of the Parties
33On behalf of the Crown, Ms. Verboom argues that PC Uddin had reasonable grounds to conduct a search under section 12 of the CCA. The strong smell of cannabis alone is enough. She references R. v. Pinkney, 2025 ONSC 3089, to support this point. Additionally, she asks me to find as a fact that PC Uddin could see an unregulated marijuana packet in plain view in the centre console of the car. Inside it were small amounts of marijuana. Therefore, I should dismiss the Applicant’s claims under both sections 8 and 9 of the Charter.
34Regarding section 10(a) of the Charter, Ms. Verboom argues that PC Uddin was justified in delaying informing the men in the car of the reason for their further detention. This was a dynamic situation, with three suspects in the vehicle and only two officers present. They did not know how the men might react. At 9:21 a.m., PC Uddin told Akili White that he was being investigated because there was cannabis in the car, and Savon White either heard this or would have understood what was happening regardless. That delay was not significant.
35Ms. Verboom agrees that, according to her version of events, both Akili and Savon White should have been given the informational part of their right to counsel at 9:22 a.m., when they were ordered out of the vehicle. Akili White received his right to counsel at 9:26 a.m., and Savon White at 9:28 a.m. She described this delay as “trivial.” She agrees that the officers should not have asked either man questions that could incriminate them during this period, as it constitutes a technical breach of their duty to delay questioning.
36The evidence found is reliable physical evidence. When applying the Grant test under section 24(2) of the Charter, Ms. Verboom argues that the officers’ inexperience is relevant. These officers were not intentionally disregarding Charter rights; they were still learning. Even the questions they asked, which they should have held back on, were not intended to trick the accused parties but were motivated by concern for officers' safety. She further contends that any violations of section 10(b) of the Charter lack a strong causal link to the discovery of the evidence, which supports its admission.
37Mr. Fedorowicz argues that this case fundamentally concerns ensuring strict judicial oversight over a highly intrusive yet discretionary police power. Such authority can be easily misused, leading to harm to the community and our shared values and constitutional rights: see Dumbell v. Roberts, [1944] 1 All E.R. 326 (C.A.), cited in R. v. Feeney, 1997 342, at para. 35. The search powers central to this Charter application have the potential to significantly interfere with the freedoms of all residents of this province.
38It is essential that police have reasonable grounds to invoke the search provisions of the CCA. Without reasonable grounds, they cannot unlawfully detain or investigate a driver and his passengers in an attempt to find evidence. This was what happened when PC Uddin decided to search the car and its occupants, solely based on the smell of cannabis.
39While he accepts PC Uddin was a new officer, he notes that officers should not simply be sent out on the road and expected to “learn on the job.” If they were not properly trained, that is a failure on the part of the state. No evidence beyond the officers' testimony was presented regarding the training available to new officers regarding the CCA. From their testimony, the only conclusion I draw is that the training was minimal or non-existent.
40Savon White should have been informed of the reason for his detention and given his right to counsel from the moment PC Uddin decided to search the car, which was around 9:12 a.m. The Crown’s claim that safety concerns justified any delay in providing these rights lacks merit. Nothing happened that could have reasonably caused the officers to have those concerns.
41Under section 24(2), Mr. Fedorowicz argues that although the officers’ breaches of the Charter may not have been intentional, they significantly affected his client. When a court finds multiple Charter breaches by several officers from the same police division, it should dissociate itself from these collective failures. The evidence should be deemed inadmissible.
42Ms. Roberts adopted Mr. Fedorowicz’s submissions. She further argues that while PC Uddin was allowed to conduct a visual inspection of the vehicle's interior when he first approached Akili White, he was not authorized to demand the packet from the centre console. The officer was trying to establish reasonable grounds through a search that was not justified by common law, the HTA, or the CCA. The unlawful search significantly invaded her client’s privacy rights and his fundamental human dignity.
43She argues that the officers’ collective failure to understand the requirements of section 12 of the CCA and their duties under section 10 of the Charter indicates a systemic training issue among new Toronto Police Service officers. This should influence my 24(2) analysis. Whether the rights of a detained person are respected should not depend on the seniority of the officer investigating them.
Charter Sections 8 and 9
44Section 8 of the Charter guarantees every Canadian the right against unreasonable search and seizure by the state. It functions as “a shield against unjustified state intrusions on personal privacy”: see R. v. Kang-Brown, 2008 SCC 18, at para. 8.
45PC Uddin relied upon section 12 of the CCA to justify his search of the vehicle and the personal search of both occupants. That section states (my emphasis added):
Transporting cannabis
12 (1) No person shall drive or have the care or control of a vehicle or boat, whether or not it is in motion, while any cannabis is contained in the vehicle or boat.
Exception
(2) Subsection (1) does not apply with respect to cannabis that,
(a) is in its original packaging and has not been opened; or
(b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle or boat. 2018, c. 12, Sched. 1, s. 12 (1).
Search of vehicle or boat
(3) A police officer who has reasonable grounds to believe that cannabis is being contained in a vehicle or boat in contravention of subsection (1) may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it.
46This case revolves around a warrantless detention and search, and thus the onus falls upon the Crown to establish, on a balance of probabilities, that the officers’ actions were authorized by law: see R. v. Jackson, 2025 ONCA 717, at para. 18.
47In R. v. McGowan-Morris, 2025 ONCA 349, the Ontario Court of Appeal examined the police powers when conducting a vehicle search under s. 12(3) of the CCA. I will revisit certain aspects of that decision and how it informs my analysis of different parts of the Charter application brought on behalf of both accused parties later in these reasons. At this point, however, it is important to stress that an officer conducting an investigation and search under this statutory provision must have reasonable grounds to believe that cannabis is being unlawfully stored in the vehicle. If an officer lacks reasonable grounds, they will not have the lawful authority to detain the vehicle, search its interior, or search its occupants.
48In R. v. Beaver, 2022 SCC 54, at para. 72, the Supreme Court of Canada summarized the essential legal principles governing warrantless arrests. They include:
A warrantless arrest requires subjective and objective grounds to arrest. The arresting officer must subjectively have reasonable and probable grounds for the arrest, and those grounds must be justifiable from an objective viewpoint.
In assessing the subjective grounds for arrest, the question is whether the arresting officer honestly believed that the suspect committed the offence. Subjective grounds for arrest are often established through the police officer’s testimony. This requires the trial judge to evaluate the officer’s credibility…
The arresting officer’s subjective grounds for arrest must be justifiable from an objective viewpoint. This objective assessment is based on the totality of the circumstances known to the officer at the time of the arrest, including the dynamics of the situation, as seen from the perspective of a reasonable person with comparable knowledge, training, and experience as the arresting officer.
49In R. v. Chehil, 2013 SCC 49, the Supreme Court of Canada clarified the distinction between reasonable suspicion and reasonable and probable grounds. The Court held that the reasonable suspicion standard is “a robust standard determined on the totality of the circumstances, based on objectively discernible facts, and is subject to independent and rigorous judicial scrutiny”: see para. 3. The Court clarified the nature of reasonable suspicion at paras. 25-27 (my emphasis added):
The reasonable suspicion threshold respects the balance struck under s. 8 by permitting law enforcement to employ legitimate but limited investigative techniques. This balance is maintained by subsequent judicial oversight that prevents indiscriminate and discriminatory breaches of privacy interests by ensuring that the police have an objective and reasonable basis for interfering with an individual’s reasonable expectation of privacy.
Reasonable suspicion derives its rigour from the requirement that it be based on objectively discernible facts, which can then be subjected to independent judicial scrutiny. This scrutiny is exacting, and must account for the totality of the circumstances. In Kang-Brown, Binnie J. provided the following definition of reasonable suspicion, at para. 75:
The “reasonable suspicion” standard is not a new juridical standard called into existence for the purposes of this case. “Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable” suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.
Thus, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime. As a result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the more demanding reasonable and probable grounds standard.
50The parties agreed that PC Uddin was the officer who established grounds to justify the ongoing detention of both Akili and Savon White, as well as the vehicle search. PC Uddin provided inconsistent testimony about when he formed a basis to search the vehicle, whether he had a suspicion or reasonable grounds, and what factors he considered when reaching his conclusions. He was a very new officer at the time and admitted he lacked training in properly applying the CCA's investigative powers. He often struggled to articulate his answers when testifying, and I found him unconvincing when he attempted to explain significant inconsistencies between his handwritten notes, BWC footage, and courtroom testimony.
51On December 18, 2025, when questioned by Ms. Verboom, he stated that he had reasonable grounds for the search and explained the factors he considered in forming those grounds. He relied on the strong smell of marijuana coming from the car, the open packet in the centre console, and the crumbs inside it. However, he did not have any concerns that Akili White, the driver, was impaired.
52He relied on these factors to justify the existence of reasonable grounds, despite stark inconsistencies between what he wrote in his notes and what can be heard on his BWC footage (which was recorded at the same time as the events in question). In that footage, he clearly states to Akili White that he suspects there is marijuana in the vehicle. When Ms. Verboom asked him when he formed his grounds, PC Uddin paused during his testimony on December 18 for a noticeable amount of time. He seemed unsure how to answer and asked to review his written notes to refresh his memory, even though he had just viewed the relevant portions of the BWC footage in court. After doing so, he did not dispute that on page 63 of his notes, he wrote that he advised the driver that he suspected there was marijuana in the car.
53He further testified that once he was back in his scout car and waiting for more units, “That’s when I was sure” there would be a search. During cross-examination by Mr. Fedorowicz, he agreed that he had testified honestly on June 30, 2025. On that date, he stated that before he ever inspected the packet from the centre console up close, or opened it, but after he had detected a “strong” odour of cannabis, he believed the situation was “going to lead to a search.” He was asked to clarify if he meant that he called for extra officers for a CCA search, based on the smell of cannabis alone. He answered, “Yes.”
54Ms. Verboom emphasized during her submissions that the smell was described as strong, and that a strong smell of fresh cannabis alone could provide reasonable grounds for a vehicle search. Mr. Fedorowicz questioned PC Uddin on how strong the smell actually was during cross-examination. He pointed out that the officer, in his notes, had written on page 61 that there was a “heavy aroma,” but had later crossed that out and initialled the change. PC Uddin acknowledged that he deliberately altered this entry in his memo book. While Ms. Verboom referred me to the testimony of other officers, such as DC Wolff, to show that they also described the smell as strong, it is PC Uddin’s assessment of this factor that formed the basis of his subjective grounds. I conclude that he did not genuinely consider the smell “strong” or a “heavy aroma,” and his inconsistent description of it diminishes his credibility.
55PC Uddin’s testimony regarding having reasonable grounds to conduct a search under section 12 of the CCA lacked credibility and reliability. I do not accept his testimony on this point. It is completely belied by his prior statements and testimony that, at most, he had a suspicion.
56Reviewing the totality of the evidence presented on the voir dire, I find that PC Uddin subjectively believed he had only a suspicion at best that cannabis was present in the car. His testimony that, upon reflection, he believed he had reasonable grounds was not sincere, and it is not objectively supported by the evidence available to him at the time he formed his grounds, regardless. When PC Uddin returned to his scout car after first stopping the vehicle, I find as a fact that he smelled marijuana emanating from the car and observed a packet on the centre console, but did not know what it was or that it was associated with cannabis. His testimony on this aspect of his investigation was also inconsistent. While he told Ms. Verboom he knew it was an unregulated marijuana packet, he agreed in cross-examination on December 18, 2025, that he did not have a “complete view” of the packet from the “angle” he was viewing it and could not initially fully understand what it was. He needed a “closer look at it,” especially to determine if it was open. That is why he demanded it be turned over to him.
57Nevertheless, I find that his decision to search the car had already been made and set in motion before he was ever handed the packet, which is why he called for extra officers as early as 9:12-9:13 a.m.
58I reject the Crown's submission that a smell alone justifies a search under this provision of the CCA. Several courts have already rejected that argument, including Justice Christie in R. v. Dillon and Shifara, 2025 ONSC 3166, at para. 111. In R. v. Pinkey, relied upon by the Crown, RSJ Edwards noted that the investigating officer smelled fresh cannabis and observed cannabis shake on the vehicle's console: see para. 44. That combination of factors is significant. As the Court of Appeal mentioned in R. v. Polashek, 1999 3714, “smells are transitory, and thus largely incapable of objective verification”: see paras. 13-15.
59Of greater concern in this case is that PC Uddin’s understanding of what constitutes a reasonable suspicion was simply wrong as a matter of law. He testified that having a suspicion means an officer lacks “concrete evidence.” That is highly troubling. As explained by the Supreme Court of Canada in Chehil, both reasonable grounds and reasonable suspicion are grounded in objective facts. PC Uddin believed that nothing “concrete” was required to form a suspicion for the purposes of exercising police powers. He proceeded, based on his own testimony, lacking any “concrete evidence,” other than perhaps a smell, which he agreed was an insufficient basis to justify a search under the CCA. That is a far cry from reasonable grounds, and a considerable distance from a reasonable suspicion as well.
60Ms. Verboom submitted that the presence of the open cannabis packet in the centre console of the car was another factor supporting PC Uddin’s belief. I agree that an officer who has stopped a motorist for a violation of the HTA may ask questions about cannabis use and make observations of items in plain view: see McGowan-Morris at para 100. However, when exercising regulatory search powers, the police must not be allowed to turn them “into a means of conducting an unfounded general inquisition or an unreasonable search”: see R. v. Bailey, 2024 ONSC 2136, at para. 95.
61When PC Uddin demanded that Akili White hand over the packet in the console, he did not know what the packet was or that it was associated with cannabis. Thus, his questioning constituted an unlawful search. In Dillon and Shifara, Justice Christie held that there is “no statutory or common law authority to support a detention to gain grounds to conduct a regulatory search under the CCA”: see para. 112. An officer cannot ask any manner of question of a motorist or make demands to inspect any items in the vehicle to assist with the formation of reasonable grounds.
62Akili White was detained for an HTA purpose from the moment his car was signalled to pull over. Once PC Uddin began asking him questions about the packet in the centre console, he was also being investigated under the CCA. Questioning by an officer aimed at obtaining potentially incriminating evidence while detained for a regulatory purpose triggers a motorist’s section 10 Charter rights: see R. v. MacDonald, 2012 ONCA 495, at paras. 29-30. It also engages other constitutionally protected interests. As explained by Doherty J.A. in R. v. Harris, 2007 ONCA 574, at para. 40.
A person under police detention who is being asked to incriminate himself has more than a reasonable expectation of privacy with respect to the answers to any questions that are put to him by the police. That person has a right to silence unless he or she makes an informed decision to waive that right and provide the requested information to the police: R. v. Hebert (1990), 1990 118 (SCC), 57 C.C.C. (3d) 1 (S.C.C.).
63I conclude that PC Uddin’s question, which required Akili White to hand over the cannabis packet, constituted an unlawful search and seizure. Additionally, it violated his right to counsel, because the question was unrelated to the speeding allegation: MacDonald at para. 32.
64The search power created by section 12 of the CCA is very invasive, and when used, it often affects not only the driver but all other occupants in the vehicle: McGowan-Morris at para. 92. It must not be allowed to expand police powers unnecessarily, regardless of the important objectives of the legislation. Doing so could threaten the rights of marginalized and historically disadvantaged Canadians in particular. As Justice Barnes noted in R. v. Byfield, 2023 ONSC 4308, “[a]n interpretation of s. 12(3) of the CCA which increases the likelihood that certain communities, such as Black people, will face a disproportionate number of unjustified searches, could not have been the parliamentary intent”: see para. 116.
65Ms. Verboom drew my attention to the Court of Appeal’s decision in Jackson. The appellant was detained by officers while driving for not wearing a seatbelt, under section 106(3) of the HTA. During the interaction, the officer detected a fresh cannabis odour and observed pieces of cannabis or cannabis shake mixed with tobacco on the dashboard. The officers testified they believed cannabis was in the vehicle, contrary to s. 12(1) of the CCA. They ordered Mr. Jackson and the driver to exit the vehicle to conduct a search under s. 12(3) of the CCA. The Court of Appeal upheld the trial judge’s finding that the search was lawful. The trial judge determined that the amount of cannabis in plain view, along with the smell of cannabis, justified the search: see paras. 25-27.
66I find Jackson distinguishable. As I have already decided, the search of the packet was unlawful, and what was discovered cannot be considered when determining if PC Uddin had reasonable grounds. However, if I am wrong on that point, the packet does not assist the Crown. The packet was empty. An odd flake or crumb inside the packet does not matter. There was no “cannabis shake” in plain view, as there was in Jackson. The amount of cannabis was, at best, minuscule: see R. v. Moulton, 2023 ONCJ 140, cited approvingly in Jackson at para. 25. Something more is required to buttress a finding of reasonable grounds.
67As a result, I find that the section 8 and 9 Charter rights of both Akili White and Savon White were violated. They were unlawfully detained under section 12 of the CCA as early as 9:13 am. PC Uddin did not testify that their continued detention after that time was necessary for issuing Akili White a ticket under the HTA. The search of the car was unlawful because PC Uddin lacked reasonable grounds. The search of their persons on the street was therefore also unlawful, as it was conducted pursuant to the same section of the CCA relied upon by PC Uddin to search the car.
Charter Section 10(a)
68In McGowan-Morris, the Court of Appeal explained the application of section 10(a) of the Charter in the context of a search conducted pursuant to section 12 of the CCA at paras. 37 and 39:
To comply with s. 10(a), the police must adequately communicate the reason(s) for the detention, and they must communicate those reasons promptly: R. v. Roberts, 2018 ONCA 411, 360 C.C.C. (3d) 44, at para. 63; R. v. Gonzales, 2017 ONCA 543, 136 O.R. (3d) 225, at paras. 122-123. These are referred to respectively as the informational and temporal components of s. 10(a).
The informational component demands, “at a minimum”, that the police advise the detainee “in clear and simple language the reasons for the detention”: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 21. If the police have multiple reasons for detaining an individual, they must disclose each reason to the detainee: R. v. Borden, 1994 63 (SCC), [1994] 3 S.C.R. 145, at pp. 165-166. Moreover, the reason for the detention, whether one or more, must be “legally valid”: R. v. Beaver, 2022 SCC 54, 475 D.L.R. (4th) 575, at para. 90. The ultimate question is “whether what the accused was told, viewed reasonably in all of the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline or submit to arrest [or detention], or alternatively, to undermine his right to counsel under s. 10(b)”: Evans, at p. 888; Latimer, at para. 30.
69In practical terms, a police officer only needs to inform the motorist and any passenger that they have been stopped because they could have cannabis in the vehicle: see para. 42. PC Uddin informed Akili White at 9:21:55 that he was suspicious that there was cannabis in the vehicle and asked him to exit the vehicle. That was sufficient for this purpose. However, it was not done until nearly nine minutes after he was first detained, and the intention to search had been formed. This constitutes a violation of his section 10(a) Charter rights.
70Savon White was never informed of the reason for his detention until he was arrested for firearm possession. In cross-examination, PC Connelly stated that he believed another officer had already informed Savon White of the reason for his detention and search before the arrest. I find that this constitutes a violation of his section 10(a) Charter rights, as he should have been advised as soon as he was ordered out of the vehicle.
71I reject Ms. Verboom's argument that the officers were justified in delaying informing the accused parties of the reason for their continued detention until more officers arrived. All three men acted cooperatively and were completely submissive to every police demand. They showed no signs of risking public or officer safety. The fact that there were three men inside the vehicle and only two officers for a few minutes, without other relevant evidence, does not justify suspending their constitutional rights under section 10(a) of the Charter. If the Crown’s argument succeeded, it would significantly undermine this Charter provision. Speculation that something untoward might occur if detainees were informed of the true reason for their detention is not a valid basis to delay the application of section 10(a) of the Charter.
Charter Section 10(b)
72Section 10(b) of the Charter must be complied with “immediately”, to ensure that a detained person who is “vulnerable to the exercise of state power and in a position of legal jeopardy” has access to legal advice: see R. v. Suberu, 2009 SCC 33, at paras. 38 and 40. Police officers must “refrain from taking further investigative steps to elicit evidence,” such as asking a detainee questions, until they have had the opportunity to speak to counsel: see R. v. Taylor, 2014 SCC 50, at para. 26.
73In McGowan-Morris, the Court of Appeal held that once the police have formed an intention to search the vehicle and its occupants, they are entitled to their full rights under section 10(b) of the Charter: see para. 99.
74Both Akili and Savon White should have been informed of their right to contact counsel at 9:13 a.m. I find a violation of section 10(b) of the Charter for both men accordingly, as they were not informed of their rights until 9:27 and 9:28 a.m., respectively. During cross-examination, PC Uddin agreed with Ms. Roberts that it was an error not to inform both men about their right to counsel after he ordered them out of the vehicle. He had been taught this during training at the police college and by his coaching officers.
75Similarly, during cross-examination, PC Connelly also accepted responsibility for his failure to inform Savon White of his right to counsel. He agreed it was also wrong to ask Savon White about the contents of a bag containing a white substance, as the answer might have incriminated him. An officer has a duty to delay questioning of this nature until a detained person has had the opportunity to contact counsel. I find two violations of Savon White’s right to counsel accordingly.
76PC Somers agreed that he assumed Akili White was informed of his right to counsel. While searching him, he retrieved a container from his pocket and asked, “What’s this?” PC Somers admitted that this questioning was inappropriate: see R. v. Lam, 2025 ONCJ 338, at para. 89; R. v. Palmer, 2021 ONSC 1675, at para. 31. I find this constitutes a separate violation of section 10(b) of the Charter.
Charter Section 24(2)
77Evidence shall be excluded if it is established that, having regard to all the circumstances, its admission would bring the administration of justice into disrepute. The court must focus on vindicating the long-term repute of the criminal justice system: see R. v. Pileggi, 2021 ONCA 4, at para. 90.
Seriousness of the Charter-Infringing Conduct
78The focus requires the court to evaluate the actions of the police and “situate that conduct on a scale of culpability”: see R. v. Paterson, 2017 SCC 15, at para. 43. The Ontario Court of Appeal in R. v. Gonzales, 2017 ONCA 543, cautioned that “care must be taken to ensure that ignorance of Charter standards is neither rewarded nor encouraged and that negligence or willful blindness does not become a proxy for good faith”: see para. 158. In a case that fundamentally turns on whether the police had reasonable grounds to conduct a warrantless search, it is vital to remember that the Crown cannot rely on evidence discovered after an arrest to justify the officer’s subjective or objective grounds for arrest: see Beaver at para. 72.
79Ms. Verboom fairly submits that the officers were not acting with malice or with wilful disregard for the Applicants’ Charter rights, and whatever errors were made by them, they did have some objectively grounded basis to begin their search of the vehicle for cannabis. I agree that these were inexperienced officers, with little to no training about how to conduct a search pursuant to the CCA, and they admitted they would do things differently in retrospect.
80That does not excuse their failure to follow long-standing constitutional norms in this country, including the right of detained persons to contact counsel and the prohibition on further questioning until that right has been implemented. I was also troubled by each officer's testimony that their training in conducting a CCA search was extremely limited before they were released into the community to perform their duties. The Supreme Court of Canada has held that evidence of a systemic problem can properly increase the severity of the breach and influence the decision to exclude evidence: see R. v. Harrison, 2009 SCC 34, at para. 25.
81While I am not prepared to identify a systemic problem based on the evidence presented, I agree with Mr. Fedorowicz’s submission that we should expect more from a sophisticated police force than to send new recruits into the community to use invasive search powers and simply hope they learn through experience. This approach could lead to frequent violations of our citizenry’s Charter rights. The officers should have received significantly more training on how to lawfully apply section 12 of the CCA. Although I agree with Ms. Verboom that officers' inexperience can mitigate the severity of police misconduct (R. v. Tim, 2022 SCC 12, at para. 84), it was entirely foreseeable that mistakes would occur without proper training, especially given that the CCA had already been in place for many years.
82I place the officers’ conduct within the middle of the overall culpability scale, which supports excluding the evidence.
The Impact of the Breach on the Charter-protected interests of the accused
83The second branch considers the seriousness of the impact of the Charter breaches on the Charter-protected interests of the accused. The "more serious the impact on the accused's constitutional rights, the more the admission of the evidence is likely to bring the administration of justice into disrepute": see R. v. Côté, 2011 SCC 46, at para. 47.
84I heard little to no evidence regarding the scope of either Akili or Savon White’s privacy interests in the vehicle. Based on how the application was argued, and in light of the Crown’s acceptance that they had standing to make this argument, I conclude they had some privacy interests in the vehicle which were impacted by the unlawful search. In addition, they were both unlawfully detained and personally searched, in public, which was quite invasive and impacted their dignity. I must also consider that Akili White was unlawfully asked to hand over the packet while still in the car, without being advised of the true reason for his ongoing detention. I conclude the impact on their rights under sections 8, 9, and 10(a) was significant.
85Furthermore, the officers agreed it was wrong for them to have tried to elicit incriminating answers from both men while they were detained and before they were able to contact counsel. I find that the impact on both Akili and Savon White’s section 10(b) rights was quite serious. While they did not incriminate themselves, they easily could have. They were put on the street, detained by officers, and searched without their consent for nearly fifteen minutes, not knowing if their right to counsel would be respected. Indeed, the delay in providing the right to counsel was unjustified and violated a fundamental constitutional norm. I emphasize that the officers did not attempt to excuse their failure to provide both men with their 10(b) rights.
86This factor weighs heavily in favour of excluding the evidence.
Society’s Interest in Adjudication of the Case on Its Merits
87The firearm, drugs and other items seized were highly reliable physical evidence. The third branch of the Grant test concerns the societal interest in an adjudication on the merits. However, as the Supreme Court of Canada noted in R. v. Le, 2019 SCC 34, at para. 158, an “adjudication on the merits, in a rule of law state, presupposes an adjudication grounded in legality and respect for longstanding constitutional norms.”
88Nevertheless, I agree with Ms. Verboom that this branch of the test favours the admission of the evidence.
Balancing the Factors
89The officers found a loaded firearm and drugs, but they did so through an unlawful search that directly violated both men’s section 8, 9 and 10(a) Charter rights. Their admitted failure to inform them of their right to counsel must be taken into account as part of the 24(2) analysis as well: see R. v. Zacharias, 2023 SCC 30, at para. 49 and para. 132; R. v. Alder, 2020 ONCA 246, at para. 39. As the Alberta Court of Appeal noted in R. v. Araya, 2025 ABCA 61, at para. 75, “a determination of the seriousness of the breach will favour exclusion where there are several breaches involving different Charter rights.”
90The Charter guarantees that the government must respect the basic rights and freedoms of every Canadian. We are all vulnerable to the overreach of state power. If police officers are allowed to conduct searches under the CCA without proper grounds, the liberty interests and personal security of every motorist and passenger in every vehicle in this province are at serious risk of infringement. The CCA serves a vital purpose, and the public safety objectives behind it are widely accepted. However, the constitutional rights that underpin our system of laws are even more important, as they exist to protect all of us, especially the most vulnerable and historically disadvantaged, from excessive and unjustifiable government intrusion into our lives.
91Concerning the violations of section 10(b) of the Charter, Ms. Verboom argued that, even if the officers should have provided these rights earlier, the time elapsed between the Applicants' detention and their formal arrest was not excessively long. Once they were arrested, they were informed of their right to contact counsel. I disagree with this depiction of events. The right to counsel is often described as a “lifeline” for someone under arrest. Being at the mercy of the state, the detained person being told they can contact counsel immediately, and knowing that police will respect that right, has great psychological importance: see R. v. Rover, 2018 ONCA 745, at para. 45.
92Akili and Savon White were removed from the car, placed on the street, and subjected to a highly invasive search and questioning in broad daylight. Members of the public could see what was happening. During that time, which was approximately fifteen minutes, they were not informed of their fundamental right to counsel nor reassured that they would eventually be able to contact counsel. Indeed, during this time, there was no reason for them to believe any of their constitutional rights would be respected. The cumulative effect of multiple Charter violations would understandably amplify the psychological impact of this further delay in providing both men with their right to counsel.
93I appreciate that in McGowan-Morris, the Court of Appeal held that a 10-minute delay in providing the appellant with his right to counsel was “brief” and the evidence was ruled admissible for a re-trial: see paras. 113-7. However, the factual circumstances surrounding the arrest of Mr. McGowan-Morris were very different than those in this case. Importantly, I have found that Akili and Savon White experienced multiple Charter rights violations. They were arbitrarily detained under the CCA, searched without sufficient grounds, not immediately advised of their right to counsel and the investigating officers admitted they unlawfully attempted to solicit incriminating statements from them. There is, furthermore, a direct causal connection between the section 8 and 9 breaches in this case and the discovery of the incriminating evidence, before even considering the additional breaches of sections 10(a) and (b). The lack of a causal connection between the single Charter breach that withstood appellate scrutiny, and the evidence that was discovered, was integral to the Court of Appeal’s determination in McGowan-Morris that the evidence should be admitted under section 24(2): see para. 115.1
94On balance, I find that the admission of the evidence in this case would bring the administration of justice into disrepute.
Conclusion
95The Charter application is granted. The evidence is inadmissible.
96As I mentioned during the oral hearing, I commend counsel for the highly professional manner in which they argued this application. Their written materials were also first-rate.
Released: January 8, 2026
Signed: Justice Brock Jones
Footnotes
- I recognize that the Court of Appeal acknowledged a separate section 8 Charter breach finding made by the trial judge in McGowan-Morris, which was the result of the police failing to comply with section 489.1 of the Code. However, that breach was deemed to be “minor and inconsequential”, and played no part in the Court’s 24(2) analysis: see para. 112.