ONTARIO COURT OF JUSTICE

DATE: 2023·05·08

BETWEEN:

His Majesty the King

— and —

Carlos Galeano

Ruling: Charter Application ss. 8,9,10(a), and 10(b)

M. Goldenberg ............................................................................ Counsel for the Respondent B. Benincasa..................................................................................... Counsel for the Applicant

Felix J.:

Table of Contents: R. v. Galeano

I. Introduction 3 II. Analysis: 4 A. Onus 4 B. The Highway Traffic Act Stop 4 C. The CCA Search 5

1. Introduction 5
2. The Applicant’s position 6
3. The police lacked reasonable and probable grounds to search the applicant’s vehicle for cannabis 7 a) The statute 7 b) Reasonable grounds 8 c) Factual findings 9
4. The CCA does not permit a search of the trunk of a vehicle as there could never be a circumstance where cannabis would be “readily available to any person” while stored in the trunk. 10
5. The manner in which the search was conducted exceeded the statutory authority provided by the CCA thereby breaching ss. 8 and 9 of the Charter 11 a) Introduction 11 b) The length of the search. 12 c) The way the search was conducted 13 d) Other justifications for a search 13 e) The police ignored developments relevant to a CCA search 14 f) The police did not immediately seize cannabis in plain view 14 g) Conclusion 14 III. Section 10(b): Faciliating Access to Counsel 15 A. Introduction 15 B. Vehicle Roadside Investigations and the Suspension of s.10(b). 15 C. S.10(b) Delay at the Roadside 16 D. S.10(b) Delay at the Station 17
6. Police procedure 17
7. Response to delay 17 IV. Section 24(2) of the Charter 18 A. Introduction 18 B. The Seriousness of the Charter- infringing State Conduct 18
8. The search 18
9. The failure to facilitate access to counsel 19
10. The police division 20
11. The applicant 20
12. Conclusion – Seriousness of the Charter -infringing State conduct 20 C. Impact of the Breach on the Applicant’s Charter -protected Interests 21 D. Society’s Interest in the Adjudication of the Case on the Merits 21 E. Balancing: Would Admission of the Evidence Bring the Administration of Justice into Disrepute 21

I. Introduction

[1] Police officers stop persons operating motor vehicles on public roads multiple times a day in Ontario. Often the traffic stop involves enforcement of the Highway Traffic Act, Ontario [HTA], the Liquor Licence Act, Ontario [LLA], the Cannabis Control Act [CCA], or the investigation of suspected “drinking and driving” offences under the Criminal Code.

[2] The defendant in this case was lawfully stopped pursuant to the HTA. The investigation evolved into a road-safety investigation under the CCA.

[3] The police searched the defendant’s vehicle pursuant to the statutory authority in the CCA. Approximately 15 minutes into the search, the police arrested the applicant for possession of a BB-gun located in the trunk of the vehicle. The applicant invoked his right to speak to a lawyer. The applicant was arrested, handcuffed, and detained in the rear of a police scout car while a lengthy and comprehensive search of his vehicle was conducted by two police officers pursuant to the CCA.

[4] The applicant was not released at the scene. The police made the decision to detain him for a bail hearing. He was transported to a police station. There was a one hour and thirty-seven minutes delay outside the police division. This delay was due to a police procedure requiring the “parade” of the applicant prior to admission to the station.

[5] The defendant brought an application alleging that the police conduct breached ss. 8,9, and 10(b) of the Charter of Rights and Freedoms [Charter]. While I find that the police possessed grounds to conduct the CCA search, the manner in which the search was conducted became untethered from the statutory authority in the CCA. The search was lengthy, comprehensive, and drifted from the aims of the CCA.

[6] While this unreasonable search occurred, no police officer facilitated access to counsel. Not at the scene, and not during the lengthy delay at the police station. The Crown has not shown that the delayed facilitation of access to counsel was reasonable.

[7] The applicant has established a breach of ss. 8, 9, and 10(b) of the Charter.

[8] As it concerns s. 24(2), the applicant has met the onus for exclusion of evidence. I order the exclusion of all evidence seized by the police. I order the exclusion of all statements made by the applicant. The statements are also inadmissible.

[9] I will address the disposition of the counts with counsel in court.

II. Analysis:

A. Onus

[10] The Crown Attorney and Defence counsel jointly requested that the court approve a blended application and trial. Notwithstanding this common request, it is imperative that the court vigilantly observe the various onuses on the application, and the ultimate burden of proof: R. v. Boston, 2013 ONCA 498, at paras. 23-27.

[11] As it concerns the s.8 application, the Crown respondent does not challenge the applicant’s assertion of a reasonable expectation of privacy in the rental vehicle or that the applicant has standing to challenge the search: R. v. Jones, 2017 SCC 60.

[12] The search and seizures were warrantless and therefore a prima face violation of s.8. The respondent has the onus of establishing that the police had reasonable grounds, the search was authorized by law, the law is reasonable, and that the search was executed in a reasonable manner: (See the authorities cited in R. v. McGregor, 2023 SCC 4, at para. 26; R. v. Nolet, 2010 SCC 24, at para 21.)

[13] The applicant has the onus to establish on a balance of probabilities that there was a breach of ss. 9, 10(a), and 10(b) of the Charter. The applicant also bears the onus to establish the s.24(2) remedy.

B. The Highway Traffic Act Stop

[14] The applicant submits that the initial traffic stop was not inspired by a highway traffic matter -- the obscured licence plate -- as suggested by the police witnesses. The applicant submits that the police were interested in stopping the vehicle to search for weapons given the applicant’s bail conditions.

[15] On February 1, 2022 PC Kraus and his partner PC Di Matteo were on general patrol when PC Kraus observed a vehicle travelling on King Street. The licence plate on the vehicle was obscured by dirt or grime. This is an offence in the Highway Traffic Act, Ontario [HTA].

[16] The officers stopped the vehicle. PC Kraus investigated the driver and sole occupant – the applicant. PC Kraus made a proper demand for relevant documents. He then returned to the police scout car to conduct checks on the paperwork provided. During these checks both officers became aware that the applicant was subject to bail conditions directed at weapons.

[17] The police scout car was equipped with an in-car-camera [“ICC”] but there was no video capture of the initial observations made by PC Kraus at King Street. The only evidence as to the state of the licence plate is the viva voce description provide by PC Kraus and PC Di Matteo. The applicant did not testify on the application.

[18] While the law recognizes the phenomenon of “duel purpose” stops, and may permit such stops assuming a legitimate HTA rationale, this was not advanced by PC Kraus. PC Kraus testified that the singular purpose for the stop was the HTA matter.

[19] PC Kraus testified that when he observed the applicant’s vehicle on at Straughn and King he could not clearly see if the vehicle even had a rear licence plate given the condition of the vehicle. When he executed a U-turn, followed the vehicle, and caused it to stop, he still could not make out the full details of the licence plate given the level of salt or grime. He could not see the location where “Ontario” is normally indicated. He could not fully make out one letter on the plate as well. Even when he stopped behind the vehicle, the lights from his scout car did not assist to any great degree.

[20] The applicant has not established that the initial traffic stop was inspired by a criminal investigation for weapons. There is no evidence that the police investigated the driver prior to stopping the vehicle by running the plate number on the police computer. Were this the case, I am reasonably confident Defence counsel would have demonstrated that this occurred through the production of electronic records from the police computer. Furthermore, the vehicle was a rental car, and as such, it seems unlikely that the defendant’s name would have been produced by any police check of the licence plate.

[21] I accept the testimony of PC Kraus. I believe his testimony about the dirty plate. The video evidence objectively supports the assertion made by PC Kraus albeit minutes later during the traffic stop. Even with the applicant’s vehicle stopped at the roadside and illuminated by police lights, the licence plate was not completely discernible. The applicant has not established any breach of the Charter as it concerns the traffic stop.

C. The CCA Search

1. Introduction

[22] During the initial interaction with the applicant and the acquisition of his documentation, PC Kraus acquired grounds to search the vehicle pursuant to the CCA. He noted the strong smell of fresh cannabis, rolling papers strewn around the cabin, and the plastic top of packaged cannabis. When he returned to the police vehicle to run checks on the applicant’s documents, PC Kraus discussed his observations with his partner, PC Di Matteo. During this conversation PC Kraus became aware that PC Di Matteo had observed cannabis in the rear seat area of the vehicle.

[23] The officers jointly determined that there were grounds to search the vehicle pursuant to the CCA. They radioed for another unit to assist given the public safety concerns associated with the applicant being in control of the vehicle. When the other unit arrived, PC Kraus returned to the vehicle and informed the applicant of the CCA search. The applicant informed PC Kraus immediately that he was in possession of cannabis. The applicant offered to produce it.

[24] The applicant stepped out of the vehicle and was subjected to a brief pat down search. Thereafter the officers searched the vehicle. The vehicle was overrun with garbage and various personal affects. The search of the vehicle was comprehensive. Both PC Kraus and PC Di Matteo conducted the search. The search took approximately one hour. It included the interior of the vehicle, the glove box, the trunk, under the spare tire, the light fixtures in the vehicle, and under the hood.

[25] During the search the officers located a small prohibited knife in the rear cabin and a BB-gun in the trunk. When the officers found the BB-gun at approximately 1:03 AM the applicant was arrested. The applicant was detained in the rear of a police cruiser at the roadside for approximately 45 minutes until the search was completed.

2. The Applicant’s position

[26] The applicant asserts several arguments about the CCA search in support of the ss.8 and 9 complaints. I will only address the following central submissions:

1. The police lacked reasonable and probable grounds to search the applicant’s vehicle for cannabis;
2. The CCA does not permit a search of the trunk of a vehicle as there could never be a circumstance where cannabis would be “readily available to any person” [1] while stored in the trunk; and,
3. The manner in which the search was conducted exceeded the statutory authority provided by the CCA thereby breaching s.8 of the Charter.

[27] I will explain why I find that the police had reasonable grounds to search the applicant’s vehicle pursuant to the CCA. I will also explain why I do not accept the applicant’s argument that the CCA does not permit a search of a vehicle trunk. Finally, notwithstanding these findings, I will explain why the applicant has established that the manner in which the search was conducted exceeded the statutory authority provided by the CCA and breached s.8 [2] of the Charter.

3. The police lacked reasonable and probable grounds to search the applicant’s vehicle for cannabis

[28] The applicant asserts that the police lacked reasonable grounds to conduct the search. I find that the respondent has clearly demonstrated that the police had reasonable ground to conduct the warrantless search pursuant to s.12 of the CCA.

a) The statute

[29] The statutory provision reads 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. 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.

Application to cannabis for medical purposes

(4)This section applies to cannabis obtained for medical purposes in accordance with Part 14 of the Cannabis Regulations (Canada) or in accordance with a court order, except in such circumstances as may be prescribed. 2018, c. 12, Sched. 1, s. 12 (2).

[30] Applicable to this case, section 12(1) of the CCA prohibits any person from driving or having care or control of a vehicle containing open cannabis. Section 12(3) of the CCA permits a police officer possessed of reasonable grounds to believe that open cannabis is contained in a vehicle to enter and search the vehicle and any person found in the vehicle. Section 12(2) of the CCA provides an exception where the cannabis is in its original packaging, has not been opened, is packed in baggage that is fastened closed, or is not otherwise readily available to any person in the vehicle.

b) Reasonable grounds

[31] The concept of reasonable and probable grounds [3] is addressed frequently in criminal courts. Given the argument advanced by the applicant, I must set out the framework for analyzing the reasonable grounds. I rely on the following guidance:

1. The requirement that reasonable grounds exist is both a statutory and constitutional precondition to a lawful search and seizure: R. v. Bernshaw, [1995] 1 S.C.R. 254, at para. 51 [Bernshaw].
2. The standard of reasonable and probable grounds is used to define the point at which the state's interest in detecting and preventing crime begins to prevail over the individual's liberty interest in being left alone. This occurs at the point where credibly-based probability replaces suspicion. In short, the threshold requires that there must be a "reasonable probability": R. v. Beaver, 2022 SCC 54, at para. 72 [Beaver]; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Debot, [1989] 2 S.C.R. 1140, 52 C.C.C. (3d) 193, at p. 1168 [Debot].
3. While the reasonable ground standard requires more than mere suspicion, the police are not required to establish a prima facie case against the accused on a balance of probabilities. Nor must the police establish proof beyond a reasonable doubt: R. v. Mackenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at paras. 60, 85[Mackenzie]; Mugesera v. Canada, 2005 SCC 40, at para. 114; R. v. Storrey, [1990] 1 S.C.R. 241, 53 C.C.C. (3d) 316, at pp. 249-251 at pp. 249-251[Storrey]; Debot, at p. 1168; R. v. Wu, 2015 ONCA 667, at paras. 49 [Wu]; R. v. Bush, 2010 ONCA 554, at para. 37 [Bush]; R. v. Censoni, [2001] O.J. No. 5189, at para. 36.(S.C.)[Censoni].
4. The statutory requirement of reasonable grounds has both a subjective and objective component. The subjective component involves assessing whether the police officer honestly and subjectively believed that reasonable grounds existed. The objective component requires the court to assess the asserted subjective belief and determine if it is objectively reasonable – that a reasonable person standing in the shoes of the police officer would conclude that reasonable and probable grounds existed: Storrey, at pp. 249-251; R. v. Golub (1997), 117 C.C.C. (3d) 193 (C.A.), at para. 20, leave denied, [1997] S.C.C.A. No. 571; R. v. MacDonald, 2014 SCC 3, at para. 85; Bernshaw, at para. 48;
5. The investigating police officer must hold an honest subjective belief in the asserted reasonable grounds: R. v. Notaro, 2018 ONCA 449, at paras. 25 34-36, 39-40. [Notaro]; Bush.
6. The objective assessment requires a contextual analysis of the totality of circumstances: R. v. Mackenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 64 [MacKenzie]; Bush, at paras. 54-55; R. v. Lawes, 2007 ONCA 10, at para. 4 [Lawes]; R. v. Williams, 2009 ONCA 35 [Williams].
7. The objective assessment involves asking whether a reasonable person, standing the shoes of the police officer, would have believed that reasonable grounds existed: Storrey; Williams, at para. 14; R. v. Gundy, 2008 ONCA 284, at para. 42.
8. Imperative to the assessment is consideration of the police officer’s knowledge, experience, formal training, and “on the job” training including how these factors contributed to the inferences and deductions reached by the officer: MacKenzie, at paras. 62-64, 73; Nolet, at para. 48; Wu, at paras. 51-52; R. v. Brown, 2012 ONCA 225, at para. 13; R. v. Nguyen, 2011 ONCA 465, at para. 30; Bush, at para. 61; Censoni, at para. 36.
9. A finding that an experienced police officer possessed an honest subjective belief provides some support for the contention that the belief is objectively reasonable: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220 (S.C.C.), at para. 47 [Chehil]
10. The assessment of reasonable grounds does not necessarily involve critiquing the quality of the investigation, the thoroughness of the investigation, or the range of subjective questions that guided the investigation. A proper assessment of reasonable grounds involves a practical, common sense, and non-technical evaluation of the totality of the circumstances: MacKenzie, at para. 71; Chehil, at paras. 29, 62, 69; R. v. Campbell, 2010 ONCA 588, at para. 52, affirmed, 2011 SCC 32; Notaro, at para. 34; Bush, at para. 70.
11. The assessment of reasonable grounds often involves assessing decisions "made quickly [by officers] in volatile and rapidly changing situations" where detached "[j]udicial reflection is not a luxury the officer can afford": R. v. Golub (1997), 117 C.C.C. (3d) 193 (C.A.), at para. 18; See also R. v. Carelse-Brown, 2016 ONCA 943, at paras. 47-48; Lawes, at para. 4; R. v. Smith (1996), 28 O.R. (3d) 75 (C.A.).
12. The reasonable ground standard does not require a police officer to be factually correct, but the police officer must have acted reasonably: R. v. Robinson, 2016 ONCA 402, at para. 40.

c) Factual findings

[32] PC Kraus articulated the following observations in support of his grounds:

• A strong odour of fresh cannabis
• He observed a plastic wrapper top from a bag of cannabis
• There were rolling papers strewn around the cabin
• There were flakes of cannabis in the driver’s seat area
• His partner told him that he had observed cannabis in the vehicle from his vantage point on the passenger side of the vehicle.

[33] I accept the testimony of PC Kraus. Cross-examination did not expose any real credibility or reliability issue associated with these observations.

[34] There was nothing wrong with PC Kraus declining to advise the applicant of his observations in support of a search for cannabis immediately upon apprehension. PC Kraus testified that he delayed the search briefly awaiting the arrival of another police unit. [4] He explained that he had experienced public safety risks associated with persons attempting to flee upon being notified of an impending cannabis-related search. He also explained that there was a risk associated with detained persons standing on the side of the road while police officers turned their attention (and their backs) to the detained person while focusing on a search. The evidence of PC Kraus in this regard was reasonable and justifiable.

[35] I am satisfied that the observations articulated by PC Kraus provided adequate grounds for a search under the CCA. Even if I have erred in this finding, and the grounds initially relied upon by PC Kraus were insufficient, upon his return to the vehicle, the applicant told him that he was in possession of cannabis for medical reasons. The applicant even offered to produce the cannabis. PC Kraus certainly possessed grounds at this point.

[36] The respondent has established that PC Kraus held an honest subjective belief in grounds supportive of the warrantless search of the applicant’s vehicle pursuant to the CCA. The grounds relied upon are objectively sustainable.

4. The CCA does not permit a search of the trunk of a vehicle as there could never be a circumstance where cannabis would be “readily available to any person” while stored in the trunk.

[37] The applicant submits that that the CCA does not authorize the search of a vehicle trunk under any circumstance. Full stop. Therefore the warrantless search of the trunk was a violation of s.8 of the Charter. The applicant submits that no police officer could ever acquire grounds to believe that cannabis was “readily available” to the operator of the vehicle if the cannabis was stored in the trunk. In a related argument, the applicant submits that the analysis of the issue of access to “readily available” cannabis is restricted to a time period when the vehicle is in motion, not at rest.

[38] I reject these arguments for several reasons.

[39] First, I have interpreted the statute based on the applicable principles of statutory interpretation:(I rely upon the recent guidance in R. v. Breault, 2023 SCC 9, at paras. 25-26 [Breault]). The text of the CCA simply does not support the interpretation argued by the applicant.

[40] Second, s.12 of the CCA plainly permits the police to search “the vehicle”. It does not say that the police may not search the trunk. It does not say that the police may not search under the hood. It does not say that the police may not search around the light fixtures in the vehicle. The section simply permits a broad search power.

[41] Third, I reject the argument that having stopped a vehicle, the CCA requires the police to acquire additional grounds prior to a search of a trunk. While each circumstance is governed by the facts, this submission is also not supported by a plain reading of the statute.

[42] Fourth, a number of courts have already ruled that the CCA applies to the entire vehicle. I adopt and endorse the comprehensive survey and analysis provided by Henschel J. in R. v. Moulton, [2023] O.J. No 833, at paragraphs 238-247 and particularly the cases cited in footnote 47 [Moulton]. I also adopt and endorse the approach provided by senior jurist P.C. West J. in R. v. Williams, 2021 ONCJ 630, at paragraphs 63 to 66.

[43] Fifth, s.12(1) of the CCA plainly and clearly governs those who drive a vehicle or have care or control of a vehicle “whether or not it is in motion.”

5. The manner in which the search was conducted exceeded the statutory authority provided by the CCA thereby breaching ss. 8 and 9 of the Charter

a) Introduction

[44] While I do not endorse the applicant’s submissions around restricting the scope and availability of a CCA search, I agree with the applicant’s central contention -- the manner which the search was conducted breached s.8 and s.9 of the Charter.

[45] There is no constitutional challenge to the CCA in this case. The search conducted by the investigating officers was authorized by law. The law is reasonable and is aimed at laudable road-safety concerns. [5]

[46] While I reject the applicant’s specific assertions about the permissible scope of CCA searches, counsel for the applicant is on solid ground as it concerns the manner in which the search was conducted. While the CCA does not limit the scope of the search power in the manner suggested by counsel, the search must be conducted in a reasonable fashion in accordance with the statutory authority. Even if the search is authorized by a law that is reasonable, if the search power is used in an unreasonable manner, it may vitiate the authority for the search. That is what occurred in this case.

[47] Presumably the provincial Legislature was aware that the enforcement of the statute would be subject to the overarching supervision of the Charter. Where a statute provides broad search powers, the police must still act reasonably. For example, while the statute clearly authorizes the search of persons within a vehicle, presumably a highly intrusive body cavity search for “readily available” cannabis would be a violation of s.8!

[48] The manner in which the search was conducted in this case was unreasonable. It was untethered from the statutory authority. There was a breach of s.8 of the Charter. The detention of the applicant at the side of the road while the unreasonable search was conducted also breached s. 9 of the Charter. I will explain this finding based on a number of factors set out below.

b) The length of the search.

[49] The first reason involves consideration of the context of the competing interests in a road-safety police investigation. Criminal court participants deal with roadside safety and searches of vehicles on a daily basis. Generally, road-safety related investigations are conducted with some dispatch. In fact, the exigencies around police road-safety investigations is part of the justification for the suspension of s.10(b) rights during these investigations. Brief road-safety investigations at the roadside do not ordinarily permit time for the detainee to consult with counsel.

[50] The search in this case was inordinately lengthy for a search inspired by CCA road-safety concerns. The traffic stop occurred at 00:35 AM. Between 00:42 AM and approximately 00:50 AM the officers discussed their grounds for the CCA search and PC Kraus ran checks on the documents provided by the applicant. It is also clear that the officers became aware of the applicant’s judicial interim release conditions involving weapons. At 00:51 AM PC Kraus informed the applicant about the CCA search. He cautioned the applicant and commenced a pat down search of his person. AT 1:03 AM the applicant was placed under arrest upon discovery of a BB-gun in the trunk and provided with his rights to counsel. At 1:51 AM the police commenced transporting the applicant to the police division arriving at 2:00 AM.

[51] It is notable that it took two police officers approximately one hour to search the applicant’s vehicle. While I accept that some time was taken up by the condition of the car, the discovery of the prohibited knife, and the BB-gun, these circumstances flowed from the methodical and comprehensive manner in which the search was conducted by the police.

[52] It took two police officers one hour to search a vehicle for accessible cannabis. Objectively speaking, this was an inordinate length of time for a road-safety inspired search. Such searches are generally efficient and narrowly focused on the road-safety issue. For example, a seizure of open liquor in a vehicle will often provoke a quick search of the rest of the vehicle to see if there is any more readily accessible alcohol. Cannabis searches under the CCA are relatively new (commencing in 2018). But the trend is for such searches to resemble searches under the LLA. This is why many courts have compared the statutory authority provided in the CCA with the text of the LLA.

c) The way the search was conducted

[53] It is clear from the record on the application that the investigating officers subjectively believed that the CCA permitted a search of a vehicle in whatever manner they wished. The search they decided to conduct was lengthy and comprehensive. It included the interior of the vehicle, the glove box, under the floor mats, the trunk, the spare tire area in the trunk, under the hood of the vehicle, and even inside the light fixtures of the car.

[54] Objectively speaking, the search resembled an extremely thorough inventory search, or a search of a seized vehicle pursuant to a search warrant. I am obliged to find that objectively speaking, the search in this case did not resemble a road-safety inspired CCA search for cannabis. The manner in which the search was conducted drifted from the CCA road-safety justification.

d) Other justifications for a search

[55] It is critically important to recognize that the investigating officers did not subjectively believe that they had any other justification for the lengthy comprehensive search they conducted. The officers did not believe that they were searching incidental to arrest. They discovered open alcohol in the vehicle but did not articulate that this circumstance contributed to the considerations around the search. Finally, the officers did not believe that the initial search power pursuant to the CCA was amplified by other search power considerations after the discovery of the knife or BB-gun.

[56] No intervening event amplified the grounds or changed the authority for the search according to the testimony of the investigating officers. At all times, the investigating officers held the subjective view that the search was singularly premised upon the CCA search for readily available cannabis.

e) The police ignored developments relevant to a CCA search

[57] When PC Kraus returned to the applicant’s vehicle having formed the intention to conduct a CCA search, the applicant told the officers: “I have weed on me”, “I have medical issues”, and “Want to see the weed? It is in a bag”. PC Kraus did not respond to this offer from the applicant notwithstanding his focus on the CCA. The CCA would have permitted him to accept the applicant’s offer or at least inquire further.

[58] Hopefully this court is not (excessively) naïve. I recognize that some persons in our community will seek to deflect a police investigation by making a modest concession with the hope that this will lead the police away from a larger prize. But the investigating officers did not satisfactorily address why, if this was a CCA search, they chose to ignore the applicant’s proffer. The investigating officers did not articulate why decided to conduct a lengthy comprehensive search of the entire vehicle instead.

f) The police did not immediately seize cannabis in plain view

[59] PC Di Matteo testified that he observed cannabis upon his initial approach to the vehicle from his vantage point on the passenger side. Notwithstanding his clear stipulation that the package was in plain view, the search did not commence with him examining or seizing that material upon entry into the vehicle. Instead, he participated in a methodical comprehensive search of the entire vehicle.

g) Conclusion

[60] PC Kraus was professional and respectful when dealing with an uncooperative applicant. He remained calm and explained the process to the applicant. I found PC Kraus to be a credible and reliable witness in court. I understood his evidence that the search was not inspired by the applicant’s bail conditions. But whatever the inspiration, the CCA-inspired search was not conducted reasonably with a focus on the relevant road-safety issue – readily available cannabis.

[61] I find that scope of the search was untethered to the singular justification for the search – the CCA. The manner in which the search was conducted exceeded the scope of authority granted by s.12 of the CCA.

[62] The applicant has established a breach of s.8 of the Charter.

[63] The applicant was detained at the scene, handcuffed, and in the rear of a scout car while the unreasonable search was conducted. The applicant has established a breach of s.9 of the Charter.

III. Section 10(b): Faciliating Access to Counsel

A. Introduction

[64] The applicant submits that the police failed to facilitate access to counsel as required by s.10(b). The applicant submits that there was an extensive delay in facilitating access to counsel at the roadside while the CCA search occurred. Further, there was a length delay at the police division. The applicant submits that these failures exacerbated the unreasonable search and seizure. I agree.

[65] The applicant has established a breach of s.10(b) of the Charter on a balance of probabilities.

[66] All told, the applicant was arrested at 1:03 AM, and the first effort to facilitate access to counsel occurred at 4:16 AM. This delay was inordinate, unreasonable, and unjustified: R. v. Taylor, 2014 SCC 50, at para. 24.

B. Vehicle Roadside Investigations and the Suspension of s.10(b).

[67] Section 10(b) of the Charter requires a police officer to inform a detained or arrested person of their right to retain and instruct counsel immediately. This requirement is subject only to concerns for officer safety, public safety, or reasonable limitations prescribed by law that are justified under s.1 of the Charter: R. v. Suberu, 2009 SCC 33, at paras. 2, 42. Where a detained or arrested person indicates a desire to speak to a lawyer, the police must provide a reasonable opportunity to exercise the right (except in urgent or dangerous circumstances), and refrain from eliciting evidence until that reasonable opportunity has occurred: R. v. Bartle, [1994] S.C.J. No 74, at para. 16.

[68] The “drinking and driving” jurisprudence acknowledges a limit to the right to counsel justified under s.1 of the Charter. Section 10(b) Charter rights are suspended during roadside “drinking and driving” investigations. Key to the suspension of s.10(b) Charter rights is the recognition that given the exigencies of the roadside investigation, there is little opportunity to exercise access to counsel: Breault, at para. 35; R. v. Orbanski; R v. Elias, 2005 SCC 37; R. v. Thomsen, [1988] 1 S.C.R. 640; R. v. Smith, [1996] O.J. No 372 (Q.L.)(C.A.) at paras 12,31,39; R. v. Saunders, [1988] O.J. No 397 (C.A.) (Q.L.); R. v. Seo, [1986] O.J. No 178 (Q.L.)(C.A.). The duration of the police investigation is expected to be short. Typically, drivers are free to go on their way with warnings or provincial enforcement tickets. In other circumstances, matters may evolve into a Criminal Code or Controlled Drugs and Substances investigation.

[69] I adopt the guidance of a number of other courts in finding that these considerations apply to road-safety searches under the CCA: Moulton, at para. 13; R. v. Harris, (2007) 2007 ONCA 574, 87 O.R. (3d) 214; R. v. Tully, 2022 ONSC 1852, at para. 154; R. v. Graham, 2018 ONSC 6718, at para. 52; R. v. Adetula, [2022] O.J. No 4077 (Q.L.)(C.J.), at para. 38; R. v. Kanneh, 2022 ONSC 5413, at para. 59; R. v. Dwarika, 2022 ONSC 4586, at para. 41, 75; R. v. Grant, 2022 ONSC 2703, at para 110-112; R. v. Williams, 2021 ONCJ 630, at para. 75; R. v. Grant, 2021 ONCJ 90, at para. 121.

C. S.10(b) Delay at the Roadside

[70] The police properly complied with the informational component of the right to counsel. The applicant invoked his right. The police did not facilitate his access to counsel at the roadside. The applicant’s access to counsel was delayed at the roadside while the police conducted a lengthy comprehensive search of his vehicle in breach of s.8 of the Charter. The manner in which the investigating officers conducted the search not only vitiated their authority pursuant to the CCA, but it also contributed to the delay in facilitating the applicant’s access to counsel.

[71] The applicant was handcuffed and secured in the rear of a scout car for approximately 45 minutes while a search of his vehicle occurred for approximately one hour. During this time the applicant could present no ongoing threat to police safety or public safety. There were four police officers at the scene. There were two police scout cars. I accept that PC Kraus and PC Di Matteo were searching the applicant’s vehicle. I accept that the two other police officers who attended were required for officer safety at first. But within minutes, the applicant was handcuffed and in the rear of the police cruiser. There was no longer a need for backup while the investigating officers searched the vehicle. Someone should have turned their mind to facilitating access to counsel. The investigation of the vehicle and the circumstances at the scene did not support any delay in facilitating access to counsel.

[72] As a criminal court judge I am generally aware that some police officers will offer access to counsel in the rear of a police cruiser – others will not. PC Kraus testified that he could not provide private access to counsel when the defendant was in the rear of a police scout car because of police video and audio recording procedures. I accept his evidence. But in this face of this position, no officer took steps to mitigate the delay occasioned by the police decision to detain the applicant at the scene while the search occurred. For example, no police officer transported the defendant to the station while the search of the vehicle at the scene was continued by the investigating officers.

[73] By way of contrast, were this a drinking and driving investigation, I am reasonably confident that the police would have been sensitive to the delay and concerned about transporting the defendant to the police station for breath samples with some dispatch. The facilitation of rights to counsel, sourced in the supreme law of Canada, ought to receive a similar focus and concern.

[74] Given the lengthy and comprehensive search conducted at the roadside, the police had the time, and should have facilitated access to counsel. The respondent has not demonstrated that the delayed facilitation at the roadside was reasonable.

D. S.10(b) Delay at the Station

[75] Upon arrival at the police division, the applicant (and the officers) sat in the scout car for an additional one hour and thirty-seven minutes. The applicant was finally paraded before the officer in charge of the station at 3:37 AM. At 4:16 AM the police made the first effort to facilitate access to counsel by calling duty counsel.

[76] This delay is objectively significant and concerning. The respondent has not demonstrated that the delayed facilitation of access to counsel at the station was reasonable.

1. Police procedure

[77] Criminal court judges in Toronto are generally aware that arrested persons who are detained in a police station are “paraded” before an officer in charge of station prior to being lodged in a cell. No doubt there are good reasons for this procedure. Given the restrictions around judicial notice, and the fact that I may not adopt records on other applications or other cases, the most that I may infer from the record is that the rationale for the procedure is grounded upon safety and police administration concerns. [6] As it concerns the strict record, there is no actual evidence of the policy, practice, or rationale for “parading”.

2. Response to delay

[78] PC Kraus testified that he was required to follow the parade procedure upon entering the police station. As indicated above, the text of any procedure is not in evidence. Nevertheless, I am satisfied that PC Kraus was following a police procedure that he subjectively believed was mandatory.

[79] Whatever the procedure or policy, there is no evidence of the procedure allowing for any flexibility to address circumstances of delay. The procedure did not vest in PC Kraus the power to use his discretion and common sense to take other steps to comply with the Charter.

[80] When a line up of police scout cars are waiting to admit prisoners for an hour and thirty-seven minutes, what happens if the prisoner has to go to the washroom? What happens if the prisoner has a medical emergency? The investigating officers did not take any steps designed to mitigate the delay. They did not seek the guidance of senior officers. They did not re-engage with the applicant on the issue of access to counsel. They simply sat, with the applicant, waiting to enter the station for an hour and thirty-seven minutes.

[81] These circumstances constituted an additional breach of s.10(b) of the Charter.

IV. Section 24(2) of the Charter

A. Introduction

[82] The applicant has established a breach of ss. 8, 9, and 10(b) of the Charter. The applicant bears the onus of establishing that “having regard to all of the circumstances, the admission of [the evidence] in the proceedings would bring the administration of justice into disrepute”: R. v. McColman, 2023 SCC 8, at para. 53 [McColman]; R. v. Fearon, 2014 SCC 77, at para. 89; R. v. Collins, 2023 ONCA 2, at para. 2.

[83] The respondent submits that the applicant has not satisfied the “obtained in a manner” requirement. I am satisfied that there is a sufficient temporal nexus between the breaches of s.8,9, and 10(b) and the seized evidence: Beaver, at paras. 96, 191; R. v. Tim, 2022 SCC 12, at para. 78 [Tim].

[84] I now move to the analysis required by R. v. Grant, 2009 SCC 32 and recently updated in McColman. I will explain why that analysis leads me to grant the remedy sought by the applicant – the exclusion of all evidence and statements.

B. The Seriousness of the Charter- infringing State Conduct

[85] The first line of inquiry focuses on the extent to which the impugned conduct deviates from the rule of law and whether it is necessary for the court to disassociate itself from the police conduct given the message conveyed to the public by the admission of the evidence: McColman, at para. 57.

[86] The court should assess the gravity of the state conduct at issue in a holistic manner on a “scale of culpability” and consider whether the surrounding circumstances attenuates or exacerbates the seriousness of the state conduct”: McColman, at para. 58.

1. The search

[87] In this case the police had reasonable grounds and broad statutory authority to conduct the search. But the manner in which they conducted the search was unreasonable and unconnected to the road-safety concerns in the CCA.

[88] I find that the CCA does not set time limitations on how long a search may take. I find that the CCA does not limit the search power to particular areas of the vehicle. But the search must be animated by the object of the legislation – protecting the public by detecting and removing accessible cannabis from a person in care or control of a vehicle.

[89] While I am restricted to the record placed before me, I am not required to ignore my general experience in several other cases where CCA searches were performed by the police. Given the fact that the CCA so closely mirrors the LLA, one would expect the police to mimic the approach in the LLA. The comprehensive search took two police officers approximately one hour. No LLA search for alcohol takes that long. The search in this case was arguably even more thorough than the standard “inventory search” prior to a police tow (e.g., searching the car light receptacles). The search resembled the detailed approach followed when the police search a seized vehicle pursuant to a search warrant. In the other CCA search cases I have experienced, the searches were expeditiously conducted, and focused on cannabis, and completed in a minute or so.

[90] It is important that the police discovered a small prohibited knife and a BB-gun. Those circumstances might have attenuated the police conduct but for the viva voce evidence of the investigating officers indicating that they did not subjectively believe that these circumstances supported other justifications for searching the vehicle (e.g., a search for additional weapons). According to the investigating officers, the search was at all times a search for cannabis.

2. The failure to facilitate access to counsel

[91] Aggravating the circumstances of the unreasonable search was the parallel breach of the police duty to facilitate access to counsel. The applicant was detained at the scene while the unreasonable lengthy search occurred. The applicant was handcuffed in the rear of a police scout car for approximately 45 minutes while the two investigating officers continued their search.

[92] There was no operational reason to keep the applicant at the scene while the lengthy CCA search was completed. The defendant had a cellphone. He invoked his right to speak to a lawyer. No one facilitated access to counsel at the scene.

[93] The investigating officers in this case took the position that privacy could not be provided at the scene because the applicant was arrested and detained in the rear of a police scout car. The investigating officers explained that police procedure mandates audio and video recording in such circumstances. I do not quarrel with this reasoning. But if the police mindset is that privacy can not be provided at the scene, there is even more reason to facilitate access to counsel at the division and to take steps to expedite that access. There were two other police officers and a second scout car at the scene. They could have easily transported the applicant to the division. I am reasonably confident that if this had been a drinking and driving investigation with a breath sample demand, police would have been attuned to the need to transport the applicant to the station with expediency. Section 10(b) is owed similar consideration.

3. The police division

[94] In R. v. Rover, 2018 ONCA 745 [Rover] the Court of Appeal faulted a police practice of delaying facilitation of access to counsel while search warrants were obtained. In this case, the record supports a finding that there was a mandatory police procedure governing the entry of prisoners into the police division. On the record produced on this application, I find that the procedure was so inflexible that it caused a significant delay. PC Kraus was obligated to follow police procedure. But the police procedure did not allow PC Kraus to deviate or take any steps to mitigate the impact on the applicant.

4. The applicant

[95] In Rover, the Ontario Court of Appeal said that the right to counsel is a lifeline for detained persons and that “. . . the psychological value of access to counsel without delay should not be underestimated”: Rover, at para 45.

[96] It is not insignificant that the applicant is precisely “the type” of person who needed access to counsel. He was a “poster-child” for the considerations under s.10(b). Courtesy of the body worn camera footage, I have observed the applicant’s demeanour. He was argumentative, combative, provocative, and challenging to deal with. He was vocal in his opposition to the exercise of police power. I find that PC Kraus was polite, professional, and patient with the applicant throughout his dealings with him. But the applicant could not stop talking. He interrupted PC Kraus. He spoke over PC Kraus. He did so even while PC Kraus was attempting to stop him from talking. Bluntly, the applicant was the sort of person who could not stop incriminating himself. Even more reason to facilitate access to counsel without exorbitant delay.

5. Conclusion – Seriousness of the Charter -infringing State conduct

[97] This line of inquiry strong pulls toward exclusion of the evidence given the serious nature of the Charter breaches. The police had grounds to search pursuant to the CCA but exceeded their authority given the manner in which the search power was exercised. The CCA power is similar to other road-safety search powers that police officers routinely exercise. While the applicant’s reasonable expectation of privacy in the vehicle was diminished in comparison to a residence, this was no mere technical breach of the spirit of the CCA. The search in this case did not resemble a road-safety search.

[98] The applicant was detained in the rear of a police cruiser, handcuffed and under arrest, while a search occurred for almost an hour. No one facilitated access to counsel. There was no reason to detain the defendant at the scene during a lengthy search. The applicant could have been transported in aide of his s.10(b) rights: (For similar conclusion on a similar issue see R. v. Grant 2022 ONSC 2703, at para. 168).

C. Impact of the Breach on the Applicant’s Charter -protected Interests

[99] The second line of inquiry considers where the police conduct falls on a spectrum of behaviour and to what extent the police conduct actually undermined the rights of the accused: McColman, at para. 66.

[100] The applicant’s s.8 and s.9 interests were adversely impacted by the police approach to the CCA at the scene. The applicant was detained in the rear of a police scout car, handcuffed and under arrest, while an overbroad search of the defendant’s vehicle in violation of s.8 provoked the production of incriminating evidence.

[101] I have already set out the subjective make-up of the applicant earlier in this judgment. In these circumstances of delayed facilitation of access to counsel, the applicant provided incriminating statements that prosecution seeks to adduce into evidence. incriminating statements he uttered.

[102] There is no question that but for the panoply of breaches, the evidence would not have been discovered: Tim, at para. 94. The combined impact of the police conduct violating ss. 8,9, and 10(b) had a significant impact on the applicant. The second line of the inquiry pulls strongly toward exclusion.

D. Society’s Interest in the Adjudication of the Case on the Merits

[103] The third line of inquiry considers whether the truth-seeking function of a criminal trial is better served by admitting or excluding the evidence. The court must consider the long-term negative impact of admission or exclusion on the repute of the administration of justice: McColman, at para. 69. Important considerations include the reliability of the evidence, the important of the evidence to the prosecution case, and the seriousness of the alleged offence: McColman, at para. 70.

[104] This line of inquiry supports inclusion insofar as it concerns the seizure of the BB-gun and the knife, less so toward commercially available cannabis. Overall, the evidence is necessary to the prosecution case and the truth-seeking function of a trial is betted served by admitting the evidence.

E. Balancing: Would Admission of the Evidence Bring the Administration of Justice into Disrepute

[105] Section 24(2) is focused on maintenance of the long-term integrity of the justice system and promoting public confidence in the justice system: McColman, at para. 54. The focus not on “punishing” the police conduct or somehow “compensating” the applicant: McColeman, at para. 54.

[106] When assessing the three lines of inquiry the court must balance the cumulative weight of the first two lines of inquiry against the third inquiry: McColman, at para. 73. The first and second lines of inquiry are distinct – the first line of inquiry considers the state conduct while the second line of inquiry assesses the impact of the state conduct on the accused’s Charter-protected interests: McColman, at para. 59. The court must assess the cumulative weight of the first two lines of inquiry. They need not pull toward the exclusion of evidence with identical force: McColman, at para. 59.

[107] I find that the applicant has established that the admission of the impugned evidence in this trial would bring the administration of justice into disrepute.

[108] The seized evidence and statements are excluded.

Released: May 8, 2023 Signed: “Justice M.S. Felix”

[1] See s.12(2)(b) of the CCA. [2] And s.9 of the Charter. [3] Or “reasonable grounds”. [4] The delay was perhaps a minute or two. [5] I adopt the analysis provided by A. Calsavara J. in R v. Grant, 2021 ONCJ 90, at paras. 99-113. [6] I may speculate that these concerns include: (1) re-administering rights to counsel;(2) screening a person for medical issues; (3) screening a person for mental health concerns;(4) facilitating access to family members or potential sureties; (5) facilitating access to counsel; and (6) mitigating risk to the accused and to other prisoners.