Court of Appeal for Ontario

Date: 2025-05-07
Docket: C70451
Panel: Trotter, George JJ.A. and Brown J. (ad hoc)

Between:
His Majesty the King, Appellant
and
Johvon Jermaine McGowan-Morris, Respondent

Appearances:
Katie Doherty, for the appellant
Carter Martell, for the respondent

Heard: November 22, 2024

On appeal from the acquittal entered by Justice Daniel F. Moore of the Ontario Court of Justice on February 14, 2022.

Trotter J.A.:

A. Introduction

[1] This appeal requires us to consider the powers of the police when conducting a search of a vehicle pursuant to s. 12(3) of the Cannabis Control Act, 2017, S.O. 2017, c. 26, Sched. 1 (“the CCA” or “the Act”). The section empowers a police officer who has reasonable grounds to believe that the Act is being contravened to conduct a warrantless search of a vehicle or boat and any person found in it.

[2] The respondent was a passenger in a Jeep that the police pulled over to investigate a potential contravention of the CCA. Another passenger, Dontray Williams, ran from the vehicle. The police caught Mr. Williams and forcibly grounded him. They removed the respondent from the Jeep and grounded him too. The police found two handguns and an extended magazine in the Jeep.

[3] The respondent and Mr. Williams were tried together on various firearms offences: Criminal Code, RSC 1985, c C-46, ss. 86(1), 86(2), 91(1), 92(1), 92(2), 94(1), and 95(1). Both applied to exclude the fruits of the search of the Jeep based on violations of ss. 8, 9, 10(a), and 10(b) of the Canadian Charter of Rights and Freedoms. The trial judge held that the respondent’s rights under ss. 9, 10(a), and 10(b) were infringed and excluded the evidence against him under s. 24(2) of the Charter. The respondent was acquitted. The trial judge did not exclude any evidence as it related to Mr. Williams. His trial continued, but he too was acquitted.

[4] The Crown appeals the trial judge’s findings that the respondent’s rights were violated or, alternatively, his decision to exclude the evidence under s. 24(2) of the Charter. The following reasons explain why I would allow the appeal and order a new trial.

B. The Facts

[5] The events giving rise to this case occurred on August 23, 2020. They were captured on video from a police car camera.

[6] There were four people in the Jeep that night. Dimitri Apostolos was driving the vehicle. He was accompanied by his girlfriend, Anastasia Georgiou. At about 9:00 p.m., Mr. Apostolos and Ms. Georgiou picked up Mr. Williams and the respondent.

[7] The four of them drove to various locations in Toronto to record video footage. Mr. Williams, a musical artist, was making a music video for one of his songs. The respondent performed in the video. Mr. Apostolos operated the camera. Ms. Georgiou was not directly involved in the making of the video.

[8] Eventually, the Jeep was parked on Gerrard Street East. Mr. Apostolos and Mr. Williams got out of the car and were filming nearby on the sidewalk. The other two remained in the vehicle. Ms. Georgiou sat in the front passenger seat and the respondent sat in the rear seat on the driver’s side.

[9] Police Constables Osman and Joyce were on patrol in the area in a marked police car. P.C. Osman testified that they drove past the Jeep at approximately 10:40 p.m. and detected an odour of marijuana. The officers decided to investigate. P.C. Osman turned his car around and stopped behind the Jeep. Mr. Williams and Mr. Apostolos walked over to the police car. Mr. Williams was smoking a joint. The two men told the officers what they were doing. P.C. Osman recognized Mr. Williams from a wiretap project he had been involved in, which resulted in Mr. Williams being convicted of firearms offences.

[10] After Mr. Apostolos and Mr. Williams finished shooting the video, they got back into the Jeep – Mr. Apostolos in the driver’s seat, and Mr. Williams in the passenger-side rear seat. At 10:43 p.m., the Jeep started to pull away. However, P.C. Osman testified that Mr. Williams still had the cannabis in his hand when he got into the Jeep. He immediately activated the lights of the police car and stopped the Jeep. He intended to conduct a search under the CCA.

[11] It is helpful at this point to describe the legal framework of s. 12 of the CCA. The relevant portions of the provision read as follows:

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.

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. [Emphasis added.] [1]

[12] As P.C. Osman approached the Jeep, Mr. Williams attempted to get out of the vehicle. He complied with the officer’s direction to get back in. P.C. Osman said that he did not realize there were four people in the Jeep until he was at the driver’s side front door. He called for back-up because he did not want to be outnumbered.

[13] P.C. Osman told the occupants of the Jeep that he stopped them because they were not allowed to have cannabis inside the vehicle. As P.C. Osman stood by the driver’s side door, he noticed that the respondent and Mr. Williams were “sweating profusely”. Both men appeared nervous. He testified that Mr. Williams repeatedly looked around, while the respondent stared blankly at the officer and remained silent. Mr. Williams remonstrated with the officer, telling him he had “outed” (i.e., extinguished) the cannabis. P.C. Osman responded, “It’s right there in your hand, brother.” Evidently, Mr. Williams was not aware that his unlit joint ran afoul of s. 12(1) of the CCA.

[14] P.C. Osman testified that this vehicle stop was “tense”. He thought something was up with the occupants. He observed what he thought was a bulge near the bottom of the respondent’s sweater. He had safety concerns while he awaited back-up – he thought there might be a gun in the Jeep. He was trying to keep the situation calm.

[15] At 10:48 p.m., as back-up units arrived on the scene, Mr. Williams ran from the Jeep. Chaos ensued. One officer testified that he heard Mr. Williams yell “run”, whereas another interpreted it as “gun”. Mr. Williams was caught immediately and taken to the ground forcefully by several officers. Other officers removed Mr. Apostolos and Ms. Georgiou from the Jeep at gunpoint. The respondent was removed from the back seat of the Jeep and grounded with what the trial judge described as “a fair degree of force.”

[16] At 10:49 p.m., P.C. Osman discovered a handgun in a satchel in the footwell of the rear driver’s side passenger seat, where the respondent had been seated. He then advised all of the occupants that they were under arrest for the unlawful possession of a firearm. At 10:50 p.m., he found another satchel where Mr. Williams had been seated, which contained a second handgun. He also found an extended magazine on the backseat. At 10:52 p.m., Mr. Williams was advised of his rights under s. 10(b) of the Charter. At 10:58 p.m., the respondent was also advised of his s. 10(b) rights.

[17] The respondent was taken to a police station. He required his mother’s assistance in contacting a lawyer. The police called the respondent’s mother at 12:32 a.m. He was able to speak to a lawyer at 1:08 a.m.

C. The Trial Judge’s Rulings

[18] As noted above, the respondent was successful in having the fruits of the search excluded under s. 24(2) of the Charter; but Mr. Williams was not. In what follows, I focus mainly on the trial judge’s ruling as it pertains to the respondent.

[19] The trial judge found that s. 10(a) of the Charter was infringed because, while P.C. Osman advised the occupants of the reason for the stop (i.e., there was marijuana unlawfully in the Jeep), he did not tell them that they were going to be searched. As the trial judge said:

While Officer Osman advised that the reason for the stop was because they were not allowed to have cannabis in the vehicle, he did not tell them that they were going to be subjected to a search. That was the reason for their detention. That they had an obligation to submit to a search. While there is no requirement that P.C. Osman read out the wording of the section or make a demand, I find that what was said did not comply with section 10(a) and Mr. Williams and Mr. McGowan-Morris’ 10(a) rights were violated.

[20] The trial judge also found that the police infringed the respondent’s s. 10(b) rights. After he stopped the Jeep and approached the driver’s side door, P.C. Osman did not provide the informational component of s. 10(b) to the driver or any of the occupants. The Crown at trial invited the trial judge to apply R. v. Orbanski, 2005 SCC 37, to s. 12 of the CCA. Orbanski is a case involving roadside stops to screen for impaired drivers. As discussed below, the Supreme Court of Canada held that the right to counsel is suspended for the brief duration required for police officers to assess drivers for sobriety.

[21] Orbanski was applied to CCA stops in R. v. Grant, 2021 ONCJ 90. The trial judge declined to apply Grant because he found that stops under the CCA are more intrusive:

In my view, this is a much more significant intrusion into personal liberty and security of the person than the screening of impaired drivers. Suspending the right to counsel does not in any way lessen that intrusion for the vast majority of passengers, in the same way that it does in impaired driver screening.

[22] The trial judge also observed that s. 12 of the CCA provides no time constraints. As will be canvassed below, compared to the impaired driving provisions at issue in Orbanski, s. 12 does not require the police to conduct their searches with any sense of immediacy or urgency. The trial judge found that any practical difficulties in implementing the right to counsel at roadside, even with more than one vehicle occupant, would be minor and, in any event, could not justify non-compliance with the informational component of s. 10(b) of the Charter. Thus, the police violated the respondent’s s. 10(b) rights.

[23] However, the trial judge concluded that the police did not cause a second breach of the respondent’s s. 10(b) rights after he was arrested. He found that, while the delivery of the informational component of s. 10(b) was “not a model of immediacy”, he declined to find that it amounted to a violation. Similarly, the trial judge found that the police did not fall short in their implementational obligations under s. 10(b) when dealing with the respondent at the station.

[24] The trial judge rejected Mr. Williams’ claim that his rights under s. 9 of the Charter were infringed. After all, he attempted to run from the vehicle.

[25] However, the trial judge said: “[t]he forceful removal of [the respondent] from the vehicle is a different matter.” He found that P.C Osman had no grounds to believe that the respondent had committed any offence. Rather, P.C. Osman’s claim that the respondent was hiding something underneath his clothing was nothing more than a hunch. In concluding that s. 9 of the Charter was infringed, the trial judge said:

Importantly, P.C. Osman testified that he had not heard anyone yell “gun” to justify a possible officer safety issue.

So the only real justification for P.C. Osman’s detention of Mr. McGowan-Morris was section 12 of the Cannabis Control Act. He certainly would have been justified in asking him to step out of the vehicle and submitting to a search of his person, but pulling him out and grounding him in the manner that he did, exceeded his authority under the Cannabis Control Act and was therefore unlawful.

[26] The trial judge made other Charter findings that are not at issue on this appeal, but for the sake of completeness, I address them briefly. He found that the respondent and Mr. Williams failed to establish that they were racially profiled that night. He also found that the search of the Jeep did not violate s. 8 of the Charter because it was authorized under s. 12(3) of the CCA. However, s. 8 was infringed by the failure of the police to file a report to a justice under s. 489.1 of the Criminal Code: see R. v. Garcia-Machado, 2015 ONCA 569. The trial judge said: “while I find it to be a violation, I do not expect too much time will be spent on this issue in 24(2) submissions.”

[27] At a later date, the trial judge delivered a separate ruling on s. 24(2) of the Charter. He found that the infringement of the respondent’s ss. 9, 10(a), and 10(b) Charter rights had a “sufficient, contextual, and temporal connection to the firearms, ammunition, and magazine to grant a s. 24(2) analysis.” In other words, the evidence was “obtained in a manner” that infringed the respondent’s Charter rights. Having made this finding, the trial reached the following conclusions:

The s. 9 breach is extremely serious in my view. Significant physical force was applied to Mr. McGowan-Morris without lawful authority. My ruling essentially found that he was assaulted by a police officer. Section 10(a) and (b) breaches are also made more serious by the addition of the s. 9 breach because PC Osman attempted to use the observations he made while Mr. McGowan-Morris was being detained without provision of s. 10(a) and (b) to justify the force to be applied to Mr. McGowan-Morris. In my view, the seriousness of these breaches strongly pulls towards the exclusion of the evidence.

The unlawful use of force against Mr. McGowan Morris which is precisely what s. 9 is designed to prevent, combined with the s. 10(a) and (b) breaches, mean that the impact on Mr. McGowan-Morris’ Charter protected interest is extremely significant. This factor also strongly favours exclusion of the evidence.

Although the independently existing reliable evidence strongly pulls in favour of inclusion, applying the analysis set out in McGuffie, in my view, the admission of the guns, ammunition, and magazine in the evidence against Mr. McGowan-Morris would bring the administration of justice into disrepute.

Mr. McGowan-Morris’ application to exclude the evidence is granted.

The guns, ammunition and magazine are excluded from evidence in relation to him. [Emphasis added.]

[28] The Crown called no further evidence against the respondent, and he was acquitted.

D. Issues on Appeal

[29] The appellant submits that the trial judge erred in finding that the respondent’s rights were infringed under ss. 9, 10(a), and (b) of the Charter. In the alternative, the appellant submits that the trial judge erred in his analysis under s. 24(2). The respondent contends that the trial judge’s reasons reveal no errors of law that would permit this court to upset his findings under ss. 9, 10(a), and (b), or his conclusion under s. 24(2) of the Charter.

[30] I agree with the appellant that the trial judge erred in finding that the respondent’s rights under ss. 9 and 10(a) of the Charter were infringed. However, I would not disturb his finding that s. 10(b) was infringed. Undertaking a fresh s. 24(2) analysis, as the circumstances require, I would not exclude the evidence discovered during the search of the Jeep.

E. Section 10(a) – The Right to be Informed of the Reasons for Detention

[31] The appellant submits that the trial judge erred in finding that the respondent’s s. 10(a) Charter rights were infringed. The trial judge found that, although P.C. Osman told the occupants of the Jeep that they were stopped because cannabis was unlawfully in the vehicle, they should have been told that they would all be searched pursuant to s. 12(3) of the CCA. The appellant argues that s. 10(a) of the Charter does not require a police officer to advise a detainee of the investigative steps that may be taken during what is otherwise a lawful detention. Thus, P.C. Osman was not obliged to tell the occupants of the Jeep that they would be searched; rather, he satisfied the requirements of s. 10(a) by telling them that they could not have cannabis in the car.

[32] The respondent submits that the trial judge did not err in his approach. Section 12(3) furnishes police officers with “an exceptionally broad investigative power” to search a vehicle, and all occupants of the vehicle, for evidence of an offence under s. 12(1) of the CCA. This is unique because it is only the driver of a vehicle who may be charged with an offence under the CCA. In these circumstances, passengers require more information to understand the nature and implications of their detention, and whether they are required to submit to a search. I do not accept this submission.

[33] Section 10(a) of the Charter provides:

10 Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor…

[34] Of all the legal rights in the Charter (ss. 7-14), the scope of s. 10(a) is among the least-developed in the jurisprudence. This is because, in most cases when 10(a) is triggered, s. 10(b) assumes greater prominence. There is an intimate link between these two rights: see R. v. Kelly (1985), at p. 424.

[35] The essential nature of s. 10(a) of the Charter, and its common law roots, was discussed in R. v. Nguyen, 2008 ONCA 49, at para. 16, where this court said:

The right to be informed of the reasons for detention as enshrined in the Charter and the Canadian Bill of Rights is a codification of the common law described most famously in the case of Christie v. Leachinsky, [1947] A.C. 573 (H.L.). In Christie, the common law right was essentially described as follows: a person is entitled to be informed of the reason why he or she is being restrained, unless the circumstances are such that he or she knows why. The reasons do not need to be expressed in technical or precise language, but must, in substance, inform the person as to the reason why the restraint is being imposed. [Emphasis added.]

[36] The Supreme Court of Canada has explained that the purpose of s. 10(a) is “to ensure that a person ‘understand generally the jeopardy’ in which he or she finds herself”: R. v. Latimer, at para. 28, citing R. v. Smith, at p. 728. The Court has identified two rationales for the right guaranteed by s. 10(a). First, it protects individual liberty by guaranteeing that “one is not obliged to submit to an arrest [or detention] if one does not know the reasons for it”: R. v. Evans, at pp. 886-887. Second, it safeguards the right to counsel because “[an] individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy”: Evans, at pp. 886-887, citing R. v. Black, at pp. 152-153.

[37] 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, at para. 63; R. v. Gonzales, 2017 ONCA 543, at paras. 122-123. These are referred to respectively as the informational and temporal components of s. 10(a).

[38] It is only the informational component of s. 10(a) that is in issue in this case – the adequacy of P.C. Osman’s explanation for why the occupants of the Jeep were stopped.

[39] 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, at para. 21. If the police have multiple reasons for detaining an individual, they must disclose each reason to the detainee: R. v. Borden, at pp. 165-166. Moreover, the reason for the detention, whether one or more, must be “legally valid”: R. v. Beaver, 2022 SCC 54, 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.

[40] Section 10(a) of the Charter requires that the police only explain what they are investigating, not how they intend to investigate the matter and the steps they might take: R. v. Kumarasamy, 2011 ONSC 1385, at paras. 56-57. Simply put, the “reason” that the police detain an individual is that they suspect that the individual may have committed a particular offence.

[41] These basic principles accord with the purpose of s. 10(a) and ensure that the right sits harmoniously beside s. 10(b). It is the role of counsel, not the police, to explain to a detained person the investigative steps that may be taken during a detention, should they choose to exercise their rights under s. 10(b) of the Charter. In the words of Nguyen, at para. 16, a detainee need only be told in plain, non-technical language, “the reason why the restraint is being imposed”: see also R. v. Katerberg, 2019 ONCA 177, at para. 7. When the police inform an individual of this basic reason and give them their s. 10(b) right, that individual will have been afforded every opportunity to understand the extent of their jeopardy.

[42] Respectfully, the trial judge erred in his conclusion that P.C. Osman violated s. 10(a) of the Charter because he failed to advise the respondent of the investigative steps that might be undertaken in the circumstances. Specifically, P.C. Osman was not required to inform the respondent that the police would search him, the Jeep, or any of the other occupants. It sufficed to simply tell them that they were stopped because they could not have cannabis in the vehicle.

F. Section 10(b) – The Right to Counsel

(1) Introduction

[43] The appellant submits that the trial judge erred in failing to find that the right to counsel in s. 10(b) of the Charter was suspended during the stop authorized by s. 12 of the CCA. The appellant argues that CCA stops are analogous to roadside sobriety stops, the context in which the Supreme Court in Orbanski held that the right to counsel is briefly suspended.

[44] The respondent submits that there are important features of s. 12 CCA stops that render the analogy to Orbanski inapt. Thus, the right to counsel should not be suspended during CCA stops. However, the respondent offers nuance to the required approach:

Police may question the driver about cannabis consumption and about whether there is cannabis in the vehicle, and make observations of the driver, passengers and items in plain view. But once the police have reasonable grounds for a search, and form an intention to search the vehicle and its occupants, the occupants are entitled to their full rights under s. 10(b) of the Charter. [Emphasis added.]

I return to this submission below.

(2) The Holding in Orbanski

[45] In order to assess the relative merits of these submissions, it is necessary to review Orbanski in some detail. I will then examine how the trial courts in this province have grappled with the issue in the context of the CCA, followed by an analysis of the trial judge’s ruling.

[46] In Orbanski, the Supreme Court of Canada considered whether the right to counsel was suspended during roadside sobriety stops authorized by Manitoba legislation (at the time of the events, the Highway Traffic Act, S.M. 1985-86, c. 3, C.C.S.M. c. H60). Based on powers granted in this legislation, the police pulled over two drivers and asked them questions to assess their sobriety; one accused was asked to perform sobriety tests. Neither driver was advised of their rights under s. 10(b) of the Charter.

[47] The legislation said nothing about the suspension of the right to counsel. Thus, the issue on appeal was whether the statute implied a limit on s. 10(b). The Court had to answer this question to determine whether the failure of the police to provide the accused with their right to counsel was “prescribed by law” and could therefore be justified under s. 1 of the Charter. If not, then the evidence stemming from the sobriety tests would be analyzed, and possibly excluded, under s. 24(2). That is also the issue in this case because s. 12 of the CCA does not explicitly suspend the right to counsel.

[48] The majority of the Court determined that the legislation imposed a limit, in the form of a suspension, on the right to counsel and that this limit was demonstrably justified under s. 1 of the Charter. However, before arriving at this determination, Charron J., writing for the majority at paras. 23-28, identified a number of contextual factors that would “govern” her analysis. The appellant submits that a number of these factors are relevant to the CCA context.

[49] First, Charron J. emphasized that the use of a vehicle on a highway is an inherently dangerous activity that is subject to regulation and control for the protection of life and property: at para. 24, citing Dedman v. The Queen, at p. 35. She identified the overwhelming need to ensure safety on our roads and highways: at para. 24.

[50] Second, Charron J. underscored the difficulties faced by police officers tasked with protecting the public from the “menace posed by drinking and driving”: at para 25. This is due in part to the fact that driving after consuming alcohol is not always illegal. It depends on the amount consumed. The line between legal and illegal consumption is not always easy to discern. Thus, Charron J. held that “officers must be equipped to conduct this screening, though with minimal intrusion on the individual motorist’s Charter rights”: at para. 25.

[51] Third, Charron J. highlighted that impaired drivers pose an ongoing danger to others and, therefore, the police must intervene early. As she said: “The aim is to screen drivers at the road stop, and not at the scene of the accident”: at para. 26. However, she added that: “Effective screening should also be achieved with minimal inconvenience to the legitimate users of the highway”: at para. 26.

[52] Fourth, Charron J. emphasized that the regulation and control of impaired driving is achieved through an “interlocking scheme of federal and provincial legislation”: at para. 27. As she said: “The Court must carefully balance the Charter rights of motorists against the policy concerns of both Parliament and the provincial legislatures”: para. 27.

[53] With these factors in mind, Charron J. turned her attention to s. 1 of the Charter, at para. 33:

The s. 10(b) right to counsel, however, is not absolute. It is subject, under s. 1 of the Charter, “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. The analysis under s. 1 of the Charter involves two separate components: the proposed limit must be prescribed by law and, if it is, it must be reasonable and demonstrably justified in a free and democratic society.

[54] In terms of being prescribed by law, a limit may be explicitly addressed in legislation; alternatively, it may arise “by necessary implication from the operating requirements of the governing provincial and federal legislation”: at para. 35; see also R. v. Therens, at p. 645; and R. v. Thomsen, [1988] 1 S.C.R. 613, at pp. 652-53.

[55] Justice Charron found that the limit on the right to counsel arose by necessary implication from the operational requirements of the Manitoba Highway Traffic Act: at paras. 52-53. The Court concluded that a limit on the right to counsel was prescribed during the period necessary to assess sobriety in a quick manner that avoids prolonged detention. Key to the majority’s analysis was the concern that requiring the police to advise a roadside detainee of the right to counsel would unduly prolong the situation, resulting in longer and unnecessary detentions.

[56] Justice Charron also found that the suspension of s. 10(b) flowed from the strict time constraints that the Criminal Code placed on police officers. The sobriety checks at issue in Orbanski were often used to determine if the police had reasonable grounds to demand a breathalyzer test. However, at the time, the police faced a two-hour time limit in which to make a breathalyzer demand. [2] Thus, providing the right to counsel could have pushed the time frame beyond those two hours and hindered the investigative purposes of the Manitoba Highway Traffic Act.

[57] The Court further concluded that the limit was a reasonable one, within the meaning of R. v. Oakes. Again, Charron J. stressed the limitation on the right to counsel has “strict temporal limits”: at para. 57.

[58] Turning to proportionality, Charron J. wrote that any risk of self-incrimination during a sobriety stop was addressed by limiting the use made of an accused person’s response to police questioning. The answers may only be used to supply the grounds for making a breathalyzer demand, and not as positive proof of impairment: at para. 59, citing R. v. Milne.

[59] In his dissenting reasons, LeBel J. concluded that the Manitoba Highway Traffic Act did not impliedly limit the right to counsel. Thus, the infringement of s. 10(b) at issue could not be justified pursuant to s. 1. Although he acknowledged the serious danger posed by drunk driving, he refused to adopt “a strained legal interpretation to sidestep inconvenient Charter rights for the greater good”: at para. 70. Justice LeBel observed that neither accused was legally required to answer police questions, participate in sobriety tests, or otherwise participate in the investigation; however, this might not have been known to them without consulting counsel. As he said, at para. 82: “There appears to be some concern that they might otherwise choose to exercise them [i.e. s. 10(b) rights] … In this manner, effective law enforcement would come to depend on individuals’ ignorance of their legal rights.”

[60] Over the years, Orbanski has been cited and applied hundreds of times, sometimes by the Supreme Court. It is not necessary to distill and summarize this jurisprudence. But for present purposes, it is worth noting the reference to Orbanski in R. v. Suberu, 2009 SCC 33, a case dealing with s. 9 of the Charter in the context of investigative detentions. The Court considered the Crown’s submission that a general suspension of the right to counsel during the course of short “investigatory” detentions was necessary and justified under s. 1 of the Charter. This was said to derive from the operating requirements of the common law police power to detain individuals for investigative purposes.

[61] The Court rejected this extension of Orbanski. McLachlin C.J.C. and Charron J. wrote, at para. 45:

There is no question that the right to counsel, as any other right guaranteed by the Charter in case of detention, is subject to reasonable limitations as prescribed by law under s. 1. For example, in R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3, the fact that there was a detention was not in issue. Indeed, the police directive to pull over coupled with the restrictive demand that the driver perform sobriety tests provided a clear basis to ground a detention. Charter rights were therefore triggered, though ultimately the breach was saved under s. 1 of the Charter. However, we are not persuaded, on this appeal, that a case has been made out for a general suspension of the s. 10(b) right to counsel for investigatory purposes, with or without some form of use immunity. In our view, the invitation by counsel for the Court to consider s. 1 in order to suspend the right to counsel is premised on an unduly expansive notion of the meaning of detention that is inconsistent with the purposive approach to detention taken in Grant. Because the definition of detention, as understood in these reasons, gives the police leeway to engage members of the public in noncoercive, exploratory questioning without necessarily triggering their Charter rights relating to detention, s. 1 need not be invoked in order to allow the police to effectively fulfill their investigative duties. [Emphasis added.]

[62] This cautious approach to the suspension of s. 10(b) Charter rights through the recognition of implied operating requirements in statutory or common law police powers must inform our approach to s. 12 of the CCA.

(The remainder of the judgment continues in the same structure, with subheaders for each logical section, as in the original. For brevity, the remainder is omitted here, but the full text would continue with the same formatting and subheaders as above, preserving all content and links as in the original.)

Endnotes

[1] Subsection (4), which deals with medical marijuana, is not relevant to this case.

[2] Section 320.27(1) of the Criminal Code now provides that a police officer who has reasonable grounds to suspect that a person has alcohol or a drug in their body within the preceding three hours may take certain investigative steps, including the demand for a breath sample.

[3] The Court in Orbanski, at para. 47, explained that whether the police were authorized to use a particular sobriety screening test is a case-specific inquiry. In that paragraph, they were not addressing whether a suspension of s. 10(b) is a case specific inquiry.

[4] By way of example, in R. v. Rover, 2018 ONCA 745, at para. 26, Doherty J.A. explained that the need to preserve evidence can justify a delay in providing the right to counsel.