Ontario Court of Justice

DATE: 2023 06 08 COURT FILE No.: Newmarket 2103817K

BETWEEN:

HIS MAJESTY THE KING

— AND —

CHADWICK JOHAN FRANCIS

Before: Justice Edward Prutschi

Heard on: April 24-25, 2023 Reasons for Judgment released on: June 8, 2023

Counsel: Jeremy Mutton, for the Crown Darren Sederoff, for the accused Chadwick Francis

PRUTSCHI J.:

[1] Early in the morning of April 18, 2021, Chadwick Francis was stopped at a routine RIDE spot-check. He was the sole occupant in the vehicle.

[2] After passing a roadside Alcohol Screening Device (ASD), Mr. Francis was questioned about the strong odour of cannabis emanating from his car. He produced a small packet of cannabis and was advised to pull over for further investigation under the Cannabis Control Act (CCA).

[3] A subsequent search of the vehicle revealed a loaded handgun in the pocket of Mr. Francis’ jacket which was found on the driver’s seat of the car. Mr. Francis was arrested and eventually charged with four firearms-related offences.

[4] Mr. Francis conceded at his trial that he had unauthorized possession of the handgun which was a restricted weapon under the Criminal Code. He argued that he was racially profiled by police, who also engaged in an unlawful search, arbitrarily detained him, and failed to appropriately advise him of his right to counsel in violation of sections 7, 8, 9 and 10(b) of the Charter. He seeks a stay of proceedings to remedy the racial profiling and, in the alternative, exclusion of the handgun and ammunition, to remedy the various other Charter breaches.

[5] For the reasons that follow, I find that Mr. Francis was not racially profiled, nor were his Charter rights violated. He is therefore guilty of the offences of unauthorized possession of a restricted weapon in a vehicle [s. 94(2)], careless storage of a firearm and careless storage of ammunition [s. 86(3)], and possession of a loaded restricted firearm [s. 95(2)].

Legal Issues

[6] The analytical framework to assess Mr. Francis’ claims necessitates answering the following questions:

(a) Was the search authorized by the CCA?

• This will depend on the reasonableness of the officers’ grounds for engaging in the search including whether the package of cannabis Mr. Francis produced in response to the RIDE spot check was “ packed in baggage that is fastened closed or is not otherwise readily available ” [emphasis added]. Cannabis Control Act, 2017, S.O. 2017, Chapter 26, Schedule 1, s. 12(2)(b).

(b) Was the decision to embark on a CCA search tainted, even in part, by racial bias by police who profiled Mr. Francis as a young Black male who would stereotypically be involved in some form of criminality?

[7] The questions of arbitrary detention and impermissible delay in providing rights to counsel are inextricably linked to the lawfulness of the CCA search. If the search is free of racial bias and otherwise a valid exercise of authority under the CCA, then the detention necessitated by the process was not arbitrary and the immediacy requirement of s. 10(b) was briefly suspended.

[8] Though a finding of any racial profiling would necessitate an immediate stay, it is impossible to fairly assess the circumstantial evidence for alleged bias without reference to the legitimacy of the CCA search. If the search was not legitimately authorized by the CCA, the inference that racial profiling influenced the decision to engage in the search becomes much stronger. If the search complied with the requirements of the CCA, it diminishes – but does not entirely eliminate – the plausibility that racial profiling influenced the conduct of the officers.

[9] For these reasons it would be improper to consider the racial profiling allegation in isolation. I must first examine the search to see if it complied with the requirements of the CCA and apply those findings to the broader evidence as I investigate the complaint of racial profiling.

Overview of the Facts

[10] Mr. Francis is a young Black male. On April 28, 2021 at 2:10am he was driving an Audi as he exited Highway 404 northbound onto the Highway 7 off-ramp where police had set up a RIDE spot check.

[11] At this spot check, all cars were stopped to conduct quick sobriety checks. PC Candice Brown was the first officer to have contact with Mr. Francis. Though she had no note of this in her memo book, at trial she recalled Mr. Francis appearing “a little off” with “droopy eyes” and responding, “a little slow”. She detected a strong odour of cannabis coming from the vehicle.

[12] She explained the purpose of the RIDE program check and asked Mr. Francis if he had consumed any alcohol. He responded that he had not. Though it was suggested to her that her recollection of these indicia of impairment at the trial was inaccurate, she insisted that this was the reason she called over PC Ashton Hyde to assist her with administering an ASD. She knew that PC Hyde was more experienced than her and that he had memorized the language of the ASD demand.

[13] PC Hyde approached and observed Mr. Francis to be “slouched back” with “glossy eyes”. Like PC Brown, he too did not note these indicia in his memo book but claimed to recall them at trial.

[14] PC Hyde made an ASD demand which Mr. Francis agreed to comply with. Mr. Francis remained seated in the vehicle while PC Hyde administered the test through the window. PC Brown remained nearby. Mr. Francis blew zero on the ASD, passing the test.

[15] PC Hyde could “smell a strong odour of cannabis from the vehicle”. PC Brown also noted this odour. PC Hyde asked Mr. Francis if he had any cannabis in the vehicle. Mr. Francis responded, “yes” and reached into his right pocket, pulling out a small multi-coloured packet.

[16] The packet was later weighed and found to contain less than a gram of cannabis. It appeared to be from a lawful dispensary. The original factory packaging had been torn open, but the packet was designed with an integrated plastic zip-lock system that allowed it to be resealed and reopened as desired.

[17] While this was going on, PC Martin Lo was positioned on the passenger side of the vehicle. He was able to observe PC Hyde’s interactions with Mr. Francis and also smelled an odour of cannabis coming from the vehicle.

[18] PC Hyde observed that the cannabis packet was ripped at the top and not “factory sealed”. It was his opinion that the packet was thus open and readily available. He testified that, “the strength of the smell prompted me to believe there was more in the car readily available because of where it was coming from”.

[19] Even though Mr. Francis had blown a zero on the ASD, PC Hyde expressed concern that Mr. Francis could “leave my location with cannabis still accessible”. He therefore directed Mr. Francis to pull over to the shoulder to “talk more about the cannabis”. Mr. Francis complied and, once pulled over, was directed to exit the vehicle so that PC Hyde could perform a CCA search.

[20] Mr. Francis at first expressed some reluctance at this demand. He wanted to know why a RIDE spot check had morphed into a search of his car. PC Hyde repeatedly explained his authority under the CCA and Mr. Francis eventually agreed to exit the vehicle.

[21] By that point PC Lo had come around the car to stand by the drivers’ side along with Mr. Francis and PC Hyde. PC Travis Johnson was also working the RIDE spot check that evening. He had been advised that a CCA search was going to be conducted and so he approached to stand near Mr. Francis for officer safety while his colleagues would conduct the search.

[22] PC Hyde had begun searching the vehicle very briefly where he located two cell phones. It was a colder night in April and PC Lo and PC Johnson both observed Mr. Francis to be shivering. PC Lo asked Mr. Francis if he would like his jacket, which was on the front seat of the car. Mr. Francis replied, “sure” and PC Hyde grabbed it.

[23] As he passed the jacked to PC Lo, PC Hyde noticed that the jacket felt heavy though he did not reach into it. He simply passed it on to PC Lo. PC Lo also felt a weight in the jacket and decided to conduct a quick pat down of the jacket before passing it on to Mr. Francis.

[24] As PC Lo ran his hand down the exterior of the jacket, he felt what he believed to be the handle of a gun. PC Johnson heard PC Lo say “get close to him” in reference to Mr. Francis. At that moment Mr. Francis uttered, “there’s something in there” and PC Lo located a loaded Glock handgun.

[25] PC Johnson arrested Mr. Francis for possession of the firearm at 2:22am. His cruiser was located on the far side of the highway ramp. He walked Mr. Francis across the ramp and placed him in the back of the cruiser. PC Johnson read Mr. Francis his rights to counsel and the caution at 2:28am and departed to the detachment along with PC Lo at 2:39am.

[26] Meanwhile, PC Hyde and PC Douglas Ramsey were tasked with completing a more thorough search of Mr. Francis’ vehicle as part of what had now become a Criminal Code firearms investigation. This search began at 3:29am after a gun-sniffing dog had arrived on scene.

[27] Officers Hyde and Ramsay located three hardened plastic knuckles (colloquially referred to as “brass knuckles” though these were not made of brass) and a folding knife in the centre console; one round of 9mm ammunition on the floor behind the driver’s seat; and a digital scale with white residue on it in the mesh behind the passenger seat as well as a grinder. The two then proceeded to search the trunk where they located a magazine loader used to resupply a handgun magazine with fresh ammunition.

[28] The in-car camera microphones of the officers picked up much of the conversation during the search though some parts of the audio are indecipherable. At one point the officers encountered an item they could not immediately identify. PC Hyde joked about it possibly being a vibrator and the two men laughed. He suggested to PC Johnson to open it. PC Johnson is heard commenting that the item may be some sort of “dinner thing” to which PC Hyde then replied, “I guess once a criminal always a criminal”.

[29] Though PC Hyde had no recollection making that comment and the audio is very poor, he did concede that it was his voice and agreed that this was an accurate reflection of what he heard himself say.

The Cannabis Control Act Search

[30] Section 12 of the CCA governs the transport of cannabis in a vehicle and the authorization of officers to search persons or vehicles to enforce compliance with the Act.

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.

[31] Section 12(1) of the CCA prohibits operating a motor vehicle containing cannabis subject to only two exceptions: if the cannabis is in its original unopened packaging, or if the cannabis is "packed in baggage that is fastened closed or is not otherwise readily available".

[32] If an officer has reasonable grounds to believe neither of those exceptions exist, the CCA authorizes a warrantless search of the vehicle and any person found in it.

[33] It is conceded here that the cannabis Mr. Francis surrendered to police in answer to questions at the RIDE spot check had been opened from its original packaging and was no longer factory sealed. The focus of the inquiry is therefore on the meaning of "packed in baggage that is fastened closed or is not otherwise readily available".

[34] This language triggers three distinct inquiries. First, what is the meaning of “packed in baggage”? Second, what constitutes “fastened closed”? Finally, what is the significance of the qualifier, “or is not otherwise readily available”?

[35] Before analyzing each of these phrases, it is important to reference and apply the legislative intent of the CCA. Understanding the CCA’s purposes necessarily helps to interpret and define its provisions. Section 1 of the CCA sets out these purposes which include, among other things, establishing prohibitions relating to the possession of cannabis, protection of public health and safety, and the deterrence of illicit activities in relation to cannabis through appropriate enforcement.

[36] Section 12 of the Act specifically addresses the regulation of cannabis possession when it intersects with the potential for impaired driving. The provision seeks to accomplish the CCA’s health and safety objective by constraining, “…two legal but highly regulated activities: driving a motor vehicle and possessing cannabis. Separately, each of these activities poses some health and safety risks, together they pose a serious health and safety risk.” R. v. Tully, 2022 ONSC 1852, at para. 104.

[37] The search powers created by s. 12(3) are regulatory in nature which “may be subject to less stringent standards”. Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, at para. 60. These powers, though broad in their execution, are limited in scope, applying only to motor vehicles and boats. R. v. Tully, supra, at para. 113.

Packed in baggage

[38] In commencing this analysis, I note that the language of s. 12 of the CCA mimics almost exactly the language of similar provisions found in s. 32 of the Liquor Licence Act (LLA). In particular, the second exception provision permitting the transport of liquor in a vehicle applies where the liquor is “packed in baggage that is fastened closed or not otherwise readily available to any person in the vehicle”. Liquor Licence Act, R.S.O. 1990, c. L.19, section 32(2)(b). Previous courts have noted that, “given the similarity between s. 12(3) of the Cannabis Control Act and s. 32(5) of the Liquor Licence Act, the analysis would apply equally to both provisions.” Tully, supra, at para. 155.

[39] This is instructive in dealing with Mr. Francis’ contention that, because the cannabis was in its original package, it was ‘packed in baggage’ as per the legislative requirement. Such cannot have been the legislative intent. Surely a quantify of wine contained in a wine bottle does not qualify as “packed in baggage”. The legislation requires something more than the controlled substance simply being within its original container to be considered “packed in baggage”.

[40] The CCA, like the LLA, is legislation driven by a public welfare intent to curtail impaired driving by prohibiting easy access to intoxicating substances while in a vehicle. Compliance with the law goes beyond simply carrying opened cannabis in its original packaging. It even goes beyond slipping the cannabis packet into another open bag within reach of the driver as noted by the Summary Conviction Appeal Court in the analogous liquor case of R. v. F.:

The purpose of the legislation is, as the trial judge noted, to impede access by drivers, or persons in care and control, to liquor and, in so doing, protect the public. This purpose would be frustrated if a driver or passenger intent on consuming liquor in a vehicle could simply keep a backpack nearby with enough of an opening to slip an open alcoholic beverage into if necessary to conceal that beverage from the police. R. v. F., 2015 ONSC 2068, at para. 68.

[41] A small resealable container such as the paper wrapper holding Mr. Francis’ cannabis does not constitute “baggage” within the meaning of the CCA. Analogizing again from the liquor licensing regime, the Justice of the Peace in R. v. Burke noted that, “The bottle is the container that the product comes in and it must also be in baggage that is fastened closed.” R. v. Burke, 2020 ONCJ 516, at para. 38.

Fastened closed

[42] Continuing with the LLA analogy, screwing the top or replacing a cork on a bottle of liquor does not serve to ‘fasten closed’ that alcohol for the purposes of lawful transport in a vehicle. The court in R. v. F. turned to the Oxford English Dictionary to assist in determining that “fasten” means: “close or do up securely; be closed or done up in a particular manner; fix or hold in place”. By choosing the word “fastened” in both the LLA and the CCA Parliament clearly intended that “something more than simply ‘closed’ is required”. R. v. F., supra, at para. 67.

[43] The cannabis in Mr. Francis’ possession was in its original wrapper. The top had been torn off breaking the factory seal making it impossible to permanently re-seal it. Though the wrapper contained a zip-lock function that would keep contents from spilling and maintain freshness, closing this zip-lock was no different than screwing shut an open bottle of wine or stoppering an open bottle of scotch with a cork. Such actions do not serve to “fasten closed” a substance for the purposes of either the LLA or CCA.

Or not otherwise readily available

[44] The phrase “or not otherwise readily available” is included within the broader language of s. 12(2)(b) of the CCA rather than existing as a standalone exception. This suggests that the phrase also informs what came before it. Cannabis that is fastened closed and packed in baggage is acceptable to the CCA precisely because these steps ensure that it is no longer readily available.

[45] Another way to ensure cannabis is not readily available to the occupants of a vehicle is to store it outside of the cab of the vehicle in the trunk. This was the focus of much of the debate in R. v. Sappleton, 2021 ONSC 430 where De Sa J. was critical of officers who unreasonably expanded the scope of their CCA search to include the trunk of a car when they located marijuana in a satchel on the driver.

Application to the present case

[46] PC Hyde was the officer who initiated the CCA search. During his testimony he consistently stated his authority for this search noting that the packet of cannabis turned over by Mr. Francis had been torn open.

[47] He did not consider the zip-lock seal to be “fastened closed”, noting that the packet could be easily opened. He categorized the cannabis handed over to him from Mr. Francis’ pocket as being “readily available” and in an open condition. He continued to detect a strong odour of cannabis coming from the car even after seizing the packet and therefore concluded that “there’s more in the car readily available” which, in his view, authorized his CCA search.

[48] PC Hyde said he expected there to be a brief detention to speak to Mr. Francis about the cannabis and do a CCA search, at the conclusion of which he would simply issue a ticket for whatever cannabis had been found.

[49] When it was suggested to him that his intention had been to search the whole of the vehicle, he replied that he would only be searching “inside the vehicle minus the trunk…anywhere that’s readily available. I don’t search the trunk in a cannabis search.”

[50] In my view PC Hyde had ample authority to conduct a CCA search. He smelled the odour of cannabis immediately during the RIDE spot-check. Mr. Francis turned over a packet from his pocket containing a small quantity of marijuana that, though zip-locked shut, had been previously torn open and was no longer factory sealed nor packed in baggage that was fastened closed or not readily available. After handing over the marijuana packet, PC Hyde continued to smell a strong odour of cannabis coming from the vehicle.

[51] For these reasons, PC Hyde was entirely justified in performing a CCA search of both Mr. Francis and his car.

Racial Profiling

[52] Despite my findings regarding the validity of the CCA search, it is still necessary to inquire into the possibility that PC Hyde’s actions were the result of impermissible racial profiling.

[53] The ONCA defined racial profiling as the phenomenon whereby "criminal activity is attributed to an identified group in society on the basis of race or colour resulting in the targeting of individual members of that group." R. v. Richards, at para. 24.

[54] More recently the Supreme Court of Canada has provided this definition: “…racial profiling is primarily concerned with the motivation of the police. It occurs when race or racial stereotypes about offending or dangerousness are used, consciously or unconsciously, to any degree in suspect selection or subject treatment”. R. v. Le, 2019 SCC 34, at para. 76.

[55] Racial profiling can be overtly intentional, but it can also be the result of subconscious or institutional bias. R. v. Brown, at para. 8. It can rarely be proven by using direct evidence and must instead by inferred by analysing the particular circumstances of the police action. Peart v. Peel Regional Police Services Board, at para. 95 and R. v. Brown, supra, at para. 44.

[56] Racial profiling improperly infects an arrest even if it was only one of several factors used in the decision to detain or arrest an individual. Where race or racial stereotypes are used to any degree to select a suspect or treat individuals differently, it is racial profiling. Brown v. Durham Regional Police Force; Peart v. Peel Regional Police Services Board, supra, at para. 91; R. v. Gala-Nyam, 2023 ONSC 2241, at para. 54.

[57] Racial profiling is so pernicious that, where race or racial stereotypes are used to any degree in the selection or treatment of a suspect, there can be no reasonable suspicion or grounds to uphold police conduct in such a circumstance. R. v. Dudhi, 2019 ONCA 665, at paras. 62-63; R. v. Le, 2019 SCC 34, at para. 76 and R. v. Sitladeen, 2021 ONCA 303, at para. 50.

[58] Mr. Francis points to a series of purported facts that he suggests amount to circumstantial evidence that he was racially profiled:

• Mr. Francis was a young Black male, wearing a hooded sweatshirt with his hair in an afro while operating a high-end vehicle.
• Mr. Francis was pulled over at a RIDE spot-check. Though he exhibited no signs of impairment and passed a roadside screening device, he was directed to pull over for secondary inspection after presenting a packet of marijuana to the officers.
• The marijuana packet was lawfully possessed and, he claims, carried in accordance with the transport exceptions of the CCA. Despite this, he was subjected to a CCA search of his person and vehicle.
• Mr. Francis claims to have been the only person subjected to a secondary stop and search during that evening’s RIDE program.
• PC Hyde, who initiated the CCA search, was heard to utter “once a criminal always a criminal” after the search had expanded to a Criminal Code procedure in light of the discovery of a firearm in Mr. Francis’ jacket pocket. Mr. Francis had no prior criminal record.

[59] The uncontradicted evidence of all the officers present that evening was that they stopped all vehicles during the RIDE spot check. There was no selection process of any kind, nor could they even know the race of a driver before the stop was initiated. Once stopped, drivers were quickly released if there was no reason to investigate further.

[60] The suggestion by counsel for Mr. Francis that he was the only person made to exit his vehicle and the only car subjected to a search was never established on the evidence. Most of the officers could not recall details for the balance of the RIDE program that evening as they were tasked for the rest of the night to deal with issues surrounding Mr. Francis’ arrest.

[61] As I indicated earlier in my review of the search, I have found that Mr. Francis was in possession of cannabis while driving in contravention of the CCA. It is therefore irrelevant to note that he passed the ASD exhibiting no signs of impairment, and inaccurate to say that he was subjected to an unlawful pretext search. In this regard, he appears to have been treated the same way any other person in the same circumstances would have been treated.

[62] It is not disputed that Mr. Francis belongs to a societal group who are often subjected to unfair and improper stereotyping. Police officers are not immune from the evils of racial profiling both consciously and unconsciously. Both PC Brown – who conducted the initial RIDE spot-check – and PC Hyde – who made the decision to initiate the CCA search, are themselves Black. This too does not insulate the officers from the potential for unconscious bias and I accept that members of a given racial community can be impacted by stereotypes and prejudices applied to their own community.

[63] Each officer was cross-examined on the possibility that unconscious bias could have infected their thinking and contributed to their assessment and treatment of Mr. Francis. PC Brown agreed that racial prejudice can be a subtle force, but she denied that it impacted her decision-making that evening in any way saying, “…but me being a Black female, I wouldn’t base it on him being Black”.

[64] PC Hyde understood that “being a young Black male myself”, Black men might be subjected to subconscious biases by some police officers. He denied any such biases himself. He objected to any characterization of his ‘once a criminal always a criminal’ comment as being racially motivated.

[65] When cross-examined on this point he noted that this comment was made approximately an hour after Mr. Francis had already been arrested for the gun found in his pocket. The comment came in the course of a broader Criminal Code search of the vehicle.

[66] PC Hyde, along with PC Douglas Ramsey, had just found several other items in the car suggestive of Mr. Francis’ criminality. These included a digital scale with white residue on it, a set of brass knuckles, a knife and a round of 9mm ammunition. At the moment PC Hyde uttered his comment, he and PC Ramsey had just come across the magazine loader.

[67] Counsel for Mr. Francis thoroughly cross-examined PC Hyde in an effort to demonstrate that the officer’s comment should be viewed as a validation of his unconscious prejudice towards young Black male detainees. Mr. Francis urges me to see the comment as an expression by PC Hyde that his biased preconceptions were confirmed: his CCA search was retroactively justifiable since he had now discovered a gun.

[68] The difficulty with this position is that it does not accord with the timeline. If PC Hyde’s comment had come either before, or immediately after, PC Lo revealed the firearm, I might well be persuaded to view the comment through the lens of racial profiling.

[69] Coming though as it did, an hour later as the police cataloged an inventory of suspicious items from the car, I cannot accept this position. As PC Hyde noted himself in cross-examination, “I didn’t know his history, but I knew he had a firearm on him at that time so now he’s a criminal”.

[70] This explanation demonstrates that PC Hyde displayed poor respect for the presumption of innocence in the face of the physical evidence he discovered, but it cannot be read as evidence of racial profiling.

[71] The circumstances of Mr. Francis’ case bear considerable similarity to the situation in R. v. Moulton, 2023 ONCJ 140. There Mr. Moulton was stopped at a RIDE spot check set up at the very same highway interchange where Mr. Francis had been stopped barely a month earlier. Many of the same officers were involved. In Moulton PC Hyde was on scene but played a secondary role.

[72] Mr. Moulton was a young Black male stopped by another Black officer, PC Cyrus. The odour of marijuana and cannabis shake were observed by the officers who then proceeded to search Mr. Moulton’s satchel under the authority of the CCA. That search revealed a handgun. Just as in the case of Mr. Francis, Mr. Moulton argued that the CCA search was really an unlawful pretext whose roots lay in anti-Black bias.

[73] Justice Henschel conducted an exhaustive review of the CCA provisions comparing them, as I have, to the LLA and concluding that the CCA properly authorized the search. Her Honour then went on to determine that racial profiling was not a factor in Mr. Moulton’s stop. Among the many factors Henschel J. considered in reaching this conclusion was that, “unlike in Dudhi, there was no evidence of any general racial statements, attitudinal evidence, or thinking”. Moulton, supra, at para. 190.

[74] Mr. Francis points to this as a key distinguishing factor in light of PC Hyde’s impertinent comment. It is important however to go back to the Dudhi case to understand the kinds of “racial statements” that give rise to a real concern of racial profiling. In Dudhi the investigating officer made repeated comments to fellow officers over the radio about the subject’s skin colour. Most disturbingly, prior to Mr. Dudhi’s arrest and prior to the location of any unlawful material on him, the officer referred to Mr. Dudhi as “another brown guy who is a drug dealer”. R. v. Dudhi, 2019 ONCA 665, at para. 24.

[75] This is markedly different from PC Hyde’s comment about Mr. Francis for two reasons. First, PC Hyde never referred to Mr. Francis’ skin colour. Second, PC Hyde’s comments came after Mr. Francis has been found in possession of a firearm and while the search of the car revealed further evidence of criminality. In such circumstances, PC Hyde’s comment cannot reasonably be viewed as circumstantial evidence of racial profiling.

Conclusion

[76] Mr. Francis was subjected to a routine RIDE traffic stop. The smell of cannabis was properly questioned by the officers and resulted in Mr. Francis surrendering a small quantity of marijuana.

[77] That marijuana was not packaged lawfully for transport in accordance with the CCA, triggering lawful authority for police to search both Mr. Francis and his vehicle. The search quickly revealed a handgun in Mr. Francis’ jacket pocket.

[78] Neither the selection of Mr. Francis nor his subsequent treatment was impacted by racial profiling, prejudice, or stereotypes. He was treated in every respect exactly as any other person in similar circumstances would have been treated.

[79] His detention was limited and reasonable in the circumstances.

[80] Mr. Francis was arrested at 2:22am and provided his right to counsel at 2:28am. Section 10(b) of the Charter requires that the informational component of the right to counsel be provided immediately subject to reasonable actions related to officer and public safety.

[81] A firearm had just been located in Mr. Francis’ jacket pocket. Custody of Mr. Francis had recently transferred from PC Lo – who found the gun – to PC Travis Johnson.

[82] PC Johnson needed to search Mr. Francis and walk him to an available cruiser which was located on the far side of the highway offramp at the opposite end of the RIDE spot-check.

[83] The six-minute delay between arrest and securing Mr. Francis in the cruiser to read him his rights was entirely reasonable in the circumstances.

[84] Having rejected all of Mr. Francis’ Charter claims, I find him guilty of all four counts before the court.

Released: June 8, 2023 Signed: Justice E. Prutschi