Reasons for Judgment
Court File No.: CR-23-239
Date: 2025-06-13
Ontario Superior Court of Justice
Between:
His Majesty the King
– and –
Athena King, Accused
Appearances:
Sabina Burdo, for the Crown
Amanda Warth, for the Accused
Heard: March 25-27, 2025, and June 6, 2025
Reasons for Judgment
Ranjan K. Agarwal
I. Introduction
[1] The accused Athena King was found with illegal drugs during a traffic stop. She’s charged with several offences under the Controlled Drugs and Substances Act, SC 1996, c 19. King alleges that when the police arrested her, they violated her constitutional rights. She asks this court to exclude the drug evidence, and acquit her of all charges.
[2] This case turns on the witnesses’ credibility. The Crown’s evidence is that the police had reasonable grounds to believe that King was driving with open cannabis. After the officer searched her and her car, he found the drugs. King’s position is that the police stopped her on an unjustified pretext. She submits that once the officer discovered illegal drugs in her purse and her pocket, he falsified evidence to justify his initial search. In short, King says that the officer deliberately lied, and those lies taint all of his evidence.
[3] For the reasons discussed below, I find that King’s rights were, for the most part, not infringed. King has failed to show, on a balance of probabilities, that the police’s detention, search, and arrest were unconstitutional. That said, the police did infringe her right to counsel. For these breaches, I don’t exclude the drug evidence—its admission wouldn’t bring the administration of justice into disrepute.
[4] There’s no dispute that King was in possession of illegal drugs, some of which were for the purpose of trafficking. As a result, I find her guilty of all charges.
II. Background
A. Facts
[5] On November 4, 2021, King was driving a rental BMW eastbound on Highway 401, near the Renforth Drive exit. Officer Michael Cerovich was conducting general patrol. At around 7:22 pm, he stopped King on the roadside.
[6] After pulling her over, Cerovich searched King, her purse, and her car. He found several illegal drugs: meth (250.2g), cocaine (29g), ecstasy (1.3g), and fentanyl (33.7g). Cerovich arrested her. He read King her rights and cautioned her in his police car. He then took her to the police station, where she spoke to duty counsel.
B. Procedural History
[7] On June 20, 2023, King was charged with eight counts under the CDSA:
(a) four counts of possession for the purpose of trafficking under section 5(2), including cocaine, methamphetamine, fentanyl, and ecstasy; and
(b) four counts of possession under section 4(2).
[8] The Crown later withdrew several charges. King is now charged with three counts of possession for the purpose of trafficking (cocaine, meth, and fentanyl) and one count of possession (ecstasy).
[9] King applied for an order that the evidence obtained by the police against her should be excluded under the Canadian Charter of Rights and Freedoms, s 24(2), because it was obtained in violation of her section 8, 9, 10(a), and 10(b) rights.
[10] The trial proceeded as a blended voir dire. King testified on the Charter application but didn’t call a defence. Cerovich and Officer Jean-Luc Amyotte testified for the Crown. Several documents were made exhibits. Finally, under the Criminal Code, RSC 1985, c C-46, s 655, King admitted several facts alleged against her.
[11] On June 6, 2025, the parties made further submissions on a recent Court of Appeal decision.
C. Law
1. The Burden of Proof
[12] The onus resting on the Crown to prove King’s guilt beyond a reasonable doubt is inextricably linked to the presumption of innocence. It’s one of the principal safeguards which seeks to ensure that no innocent person is convicted. The burden of proving beyond a reasonable doubt that King committed these crimes rests with the Crown throughout the trial and never shifts to her. A reasonable doubt is a doubt based on reason and common sense, which must be logically based on the evidence or lack of evidence. See R. v. Lifchus, [1997] 3 SCR 320, para 36.
[13] In contrast, the onus of proof for breach of King’s Charter rights lies with her, on a balance of probabilities. See R. v. Bertsch, 2013 ONSC 1533, para 12; R. v. N.B., 2018 ONCA 556, para 104. The court must analyze the relevant evidence to determine “whether it is more likely than not that an alleged event occurred.” See FH v. McDougall, 2008 SCC 53, para 49; R. v. Layton, 2009 SCC 36, para 28.
2. Credibility and Reliability
[14] Credibility and reliability are different. Credibility has to do with a witness’s veracity; reliability with the accuracy of the witness’s testimony. Reliability engages consideration of the witness’s ability to accurately observe, recall, and recount events in issue. Any witness whose evidence on an issue isn’t credible can’t give reliable evidence on the same point. Credibility, on the other hand, isn’t a proxy for reliability: a credible witness may give unreliable evidence. See R. v. G.F., 2021 SCC 20, para 82; R. v. H.C., 2009 ONCA 56, para 41.
[15] The factors relevant to assessing credibility and reliability include:
(a) honesty;
(b) an interest in the outcome of the proceedings;
(c) accuracy and completeness of observations;
(d) circumstances of the observations;
(e) memory;
(f) availability of other sources of information;
(g) inherent reasonableness of the testimony;
(h) internal consistency, and consistency with other evidence; and
(i) demeanour.
See D Watt & J Makepeace, Watt’s Manual of Criminal Jury Instructions 2024 (Toronto: Thomson Reuters, 2024) at Final 14.
III. Analysis and Disposition
[16] King alleges that the police breached her rights under sections 8, 9, 10(a), and 10(b) of the Charter. The Crown responds that other than two minor breaches of King’s right to counsel, no rights were violated and, in any event, the drug evidence shouldn’t be excluded. As there’s no dispute that King possessed illegal drugs, some of which were for the purpose of trafficking, the Crown submits that it has proven King’s guilt beyond a reasonable doubt.
[17] King’s arguments on her Charter application rest on her and Cerovich’s credibility. She says he’s lying.
[18] I disagree. Though there were minor inconsistencies in Cerovich’s evidence, I don’t find that these contradictions undermine all his evidence. I prefer Cerovich’s evidence to King’s evidence. Cerovich seemed honest. He candidly admitted that he made mistakes in his investigation and King’s arrest. He seemed to have a good memory of the events, though he also had access to his notes.
[19] In contrast, King’s evidence wasn’t believable. As I discuss below, her evidence about the traffic stop wasn’t reasonable. Further, her entire narrative rests on Cerovich repeatedly and flagrantly abusing every one of her legal rights. If her theory of the case was true, it doesn’t make sense that once Cerovich discovered the illegal drugs, he would continue violating her rights. His missteps are more consistent with an inexperienced officer in the rush of a fast-changing investigation, rather than gross, intentional misconduct. This interaction started as a routine, roadside traffic stop. Within minutes, it turned into a drug bust.
[20] King has failed to prove that her constitutional rights were violated to the point that the drug evidence should be excluded. She’s guilty of the offences charged.
A. Issue #1: Did Cerovich have reasonable grounds to believe there was open cannabis in King’s car?
1. Law
[23] Everyone has the right to be secure against unreasonable search and seizure. See Charter, s 8. Searches or seizures conducted without a warrant are presumptively unreasonable. See Hunter v. Southam Inc., [1984] 2 SCR 145. If legislation allows a warrantless search, the state has the burden of establishing reasonableness. See Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, para 56.
[24] The Cannabis Control Act, 2017, SO 2017, c 26, Sched 1, s 12(3) authorizes the police to “enter and search [a] vehicle and search any person found in it” if the officer has reasonable grounds to believe that there’s open cannabis in the vehicle. See R. v. McGowan-Morris, 2025 ONCA 349, para 1.
[25] No person shall drive or have the care or control of a vehicle while any cannabis is contained in the vehicle. See CCA, s 12(1). This section doesn’t apply if the cannabis is in its original packaging and hasn’t been opened, or is packed in baggage that is fastened closed or isn’t otherwise readily available to any person in the vehicle. See CCA, s 12(2). “Fastened closed” requires something more than just closed by design: it means that the cannabis in the bag must not be readily available. If the bag can be “opened effortlessly”, it’s not fastened closed. See R. v. Guerrier, 2024 ONCA 838, para 25.
[26] A police officer who has reasonable grounds to believe that cannabis is being contained in a vehicle in contravention of section 12(1) may at any time, without a warrant, enter and search the vehicle and search any person found in it. See CCA, s 12(3). This search power is constitutionally reasonable. See R. v. Tully, 2022 ONSC 1852.
[27] In assessing reasonable grounds for a search, the court must determine: (a) whether the officer had subjective reasonable and probable grounds on which to base the search; and (b) whether those grounds were justifiable from an objective point of view. See R. v. Fyfe, 2023 ONCA 715, para 52.
[28] The “presence of odour alone” doesn’t provide reasonable grounds to believe the occupant was committing an offence—smells are transitory. But the surrounding circumstances may do so. See R. v. Polashek, paras 13-15. Cannabis shake, the officer’s experience, cash, a second cell phone, and cannabis stems are all reasonable bases for a search. See R. v. Osman, 2023 ONSC 7087, paras 37-39.
2. Facts
[29] My discussion of the facts is divided into five parts, based on the chronology of the traffic stop and arrest. In each subsection, I discuss the undisputed facts and, on the disputed facts, King’s and Cerovich’s evidence.
i. The Traffic Stop
[30] King says she was driving in the far-left lane, closest to the median. She saw a police car with flashing lights behind her, and pulled over, across three lanes, on the far-right shoulder. According to King, there were “quite a lot of cars” around her. She was driving with the flow of traffic (~110km/hr) and, according to her, there was no reason to pull her over.
[31] Cerovich says he was driving in the middle-right lane, and saw King’s car in the far-right lane—he was about 150 feet behind her, and there were no cars between them. Cerovich’s evidence is that he saw King, at least twice, drift towards the right shoulder, cross the solid line onto the shoulder, and then sharply jolt back into the lane. As a result, Cerovich believed that King may have been impaired, and decided to conduct a traffic stop for a sobriety check. He flashed his lights, and she pulled over onto the shoulder.
[32] King says I should disbelieve Cerovich’s evidence, in part, because he says there was no traffic between him and King, which she argues is implausible on the 401 at 7:20 pm. I accept Cerovich’s explanation that highway traffic was decreased because of the COVID pandemic. And Cerovich testified there were no cars between him and King, not that there were no cars at all. That’s plausible.
[33] Overall, on these initial events, I prefer Cerovich’s evidence. King said the police car was behind her. It doesn’t make sense that King would cross three lanes of traffic, from the far-left lane, on a busy highway to pull over on the far-right shoulder when she saw flashing lights behind her, especially where she wasn’t speeding and didn’t believe she was the one being pulled over. Though the Highway Traffic Act, RSO 1990, c H.8, s 159(1), requires drivers, when seeing an approaching emergency vehicle, to stop “as near as is practicable to the nearest curb or edge of the roadway”, most drivers, especially in busy highway traffic, will move into the next lane and stop or slow down to let an emergency vehicle pass. Here, the highway was busy and no one else pulled onto the shoulder—it’s implausible that King would cut across three lanes of moving traffic to stop on the shoulder, and risk hitting other cars, when there was no need to do so and no one else was doing so. King argues that she’s a poor driver as evidenced by her license suspension. Bad driver or not, her suggestion doesn’t make sense.
ii. The Flicked Cigarette
[34] King was smoking a cigarette. She says it was a tobacco cigarette, and she threw it out the window as Cerovich was pulling her over. Cerovich says he saw King throw a cigarette or joint out the window as she was coming to a stop on the shoulder. He also saw smoke “billowing” out of her window. He says that King told him, during the traffic stop, that she threw the only cannabis in the car out the window.
[35] King’s reply relies on Cerovich’s notes, which he made two hours later. The notes state that a “cigarette or joint” came flying out. King argues that it’s implausible that Cerovich, having confirmed that King threw a joint out the window, would later write “cigarette or joint” in his notes. Also, Officer Amyotte testified that Cerovich told him that King was smoking a cigarette not a joint.
[36] I prefer Cerovich’s evidence. There’s no dispute that King was smoking something just before being pulled over. There’s no dispute that she flicked that something out her window. Cerovich’s notes don’t undermine his evidence: at first, he didn’t know whether it was a cigarette or a joint, so it makes sense he wrote down both.
[37] I don’t know why Cerovich told Officer Amyotte that King was smoking a cigarette, instead of using the word joint. Also, it doesn’t make sense that King would admit to throwing cannabis out of the car. But these minor inconsistencies don’t undermine all of Cerovich’s evidence.
[38] Finally, King’s narrative isn’t persuasive. She says she flicked the cigarette out the window as she was pulling over. But she also says there were other cars between her and Cerovich, and he basically followed her across three lanes of moving traffic as she stopped. It would be difficult for Cerovich to see a flying cigarette through moving traffic. His explanation—he was behind her, in an offset tandem, with no cars between them when he saw the cigarette—is more believable.
iii. The Alleged Pretext
[39] King submits that she wasn’t swerving, and Cerovich pulled her over for some other, unstated reason. She argues that Cerovich shouldn’t be believed for two reasons. First, it’s implausible that he would pull her over for possible impaired driving, but then never follow up on her sobriety. King says Cerovich’s evidence is even more implausible given his testimony that King admitted to smoking cannabis just before being stopped. Second, Cerovich told Officer Amyotte that King was speeding—not potentially driving while impaired.
[40] I disagree with King’s arguments. Cerovich says he did a sobriety check. He immediately concluded, based on his experience doing general highway patrols, that King wasn’t impaired based on her lack of physical symptoms (e.g., no slurred speech or bloodshot eyes). Simultaneously, as I discuss below, he saw open cannabis in King’s car, which changed the investigation. It moved from a sobriety check to unlawful transportation of cannabis within minutes.
[41] Again, I don’t know why Cerovich told Officer Amyotte that King was speeding. But, again, this inconsistency is minor, and doesn’t taint all of his evidence.
iv. The Cannabis Evidence
[42] According to Cerovich, he approached the driver’s side of King’s car with a flashlight. As he neared the car, he smelled burnt cannabis. He told King that he had pulled her over for a sobriety check. As he did so, he saw cannabis shake (i.e., grounded cannabis used to make joints) on the car’s centre console, near the parking brake, and a bag of cannabis bud in the door compartment. He then asked for King’s driver’s license, insurance, and vehicle ownership.
[43] King says that Cerovich didn’t have a flashlight, and didn’t tell her why he’d pulled her over. She acknowledges that she had a bag of cannabis in the door compartment, but she says it was “tucked and wrapped” under cigarettes, hand sanitizer, and a facemask, and wasn’t visible to Cerovich.
[44] King has three main arguments why Cerovich’s evidence should be disbelieved.
[45] First, King argues that it was too dark for Cerovich to see shake inside her car, especially without a flashlight. It was dusk. King’s interior lights were off. Officer Amyotte testified that this “area of the highway…doesn’t have the greatest lighting.”
[46] The defence also introduced evidence showing the placement of the streetlights near the stop. I don’t give this evidence any weight because there was nothing showing where King was stopped in relation to these lights, and the pictures don’t show the illumination on that day and time.
[47] More generally, I don’t accept King’s evidence or arguments about the lighting. As a result, I believe Cerovich’s evidence that he could see inside her car. Cerovich had a legitimate reason for stopping her—she was swerving onto the shoulder, and she might’ve been impaired. Given that, I accept Cerovich’s evidence that he had a flashlight when he first approached her. Even if Cerovich had a false pretense for stopping King, it makes no sense that Cerovich would approach her car without a flashlight, especially if it was as dark as King says. At that point, he didn’t know whom or what he’d find in the car.
[48] Second, King argues that Cerovich couldn’t have seen shake near the parking brake, or into the door compartment from outside King’s door. She asks me to take judicial notice that it’s “nearly impossible to see into the well of the emergency brake” if someone is sitting in the driver’s seat. I can’t take judicial notice of this fact: it’s not “uncontroversial or beyond reasonable dispute.” See R. v. Kruk, 2024 SCC 7, para 144.
[49] I also can’t infer that Cerovich couldn’t see the centre console or the door compartment from the documentary evidence. In fact, it’s plausible that, with a flashlight, he could see both areas. The centre console isn’t hidden, and Cerovich would’ve been looking down on it. The interior pictures show the door compartments jutting out. Moreover, the scene photo shows the bag of cannabis on top of the other contents of the pocket, and the cannabis is visible. It’s reasonable that Cerovich saw the contents without sticking his head into the car, especially given his experience in traffic stops. Officer Amyotte didn’t find the shake, but he did find the bag of cannabis bud. Also, by the time Officer Amyotte arrived on the scene, the police were investigating drug trafficking, not cannabis transportation. He might not have looked for the shake given the other evidence.
[50] Third, King points to an inconsistency between Cerovich’s oral evidence and other trial evidence that she says shows Cerovich is being dishonest. Cerovich says the bag with the cannabis bud was “tied at the top.” Officer Amyotte said it was closed. The photo evidence shows the bag untied but twisted. To add, Officer Amyotte said the car door was open when he arrived, but Cerovich recalls the door being closed. King argues that the only reasonable inference is that Cerovich, after arresting King, opened the door to move and untie the cannabis bag before Officer Amyotte arrived. King also argues that Cerovich is lying about the timeline—he says he called Officer Amyotte after searching King’s purse, but Officer Amyotte says he was called at 7:26 pm, which was before Cerovich told King to exit the car.
[51] I disagree with King’s submission. First, the photo evidence is unclear—the top of the bag is twisted up as if it had been knotted at some point. The bag looks “tied”. Second, on King’s evidence, she didn’t tell Cerovich about the cannabis bud. So that would mean that after arresting King and before Officer Amyotte’s arrival, which was only two minutes, Cerovich searched her car for some other evidence of cannabis not knowing if he would find anything, and not knowing when Officer Amyotte would arrive on the scene. That inference isn’t reasonable given all the other evidence, including King’s lack of candour. Finally, maybe Officer Amyotte was mistaken about the car door being open—it would be unusual for Cerovich to leave the car door open on the highway for any amount of time, even if he was hastily searching the car like King asserts. To believe King’s theory is to believe that Cerovich put her in the cruiser, went searching for cannabis in her car that he didn’t know was there, rearranged and untied the cannabis bag when he found it, and was interrupted by Officer Amyotte such that he left the door open, all within two minutes.
[52] As a result, I prefer Cerovich’s evidence that he smelled burnt cannabis, and saw cannabis shake and cannabis bud in King’s car. It was reasonable for Cerovich to infer that King was smoking a joint just before he stopped her.
[53] There was an air freshener bottle in the car. Cerovich smelled air freshener. The implication of his evidence is that King tried to hide the smell of burnt cannabis. Though King used air freshener to hide the smell of tobacco cigarettes, she denied spraying it just before the traffic stop. I accept that the smell of the air fresher might’ve lingered from being sprayed sometime earlier so this evidence isn’t probative.
v. The Purse
[54] After King gave Cerovich her driver’s license, he went back to his police cruiser to verify her identity and check if she had a criminal record. Cerovich learned that King wasn’t the registered owner of the car, and her driver’s license was suspended. Those searches took, at most, 5 minutes.
[55] Cerovich says he returned to King’s car at 7:27 pm, told her he was conducting a CCA search, and, at 7:29 pm, asked her to get out of the car. King got out of the car, with a black purse that was sitting on the passenger seat. King put the purse on the trunk. Cerovich could see a tied grey plastic bag inside the purse’s main pocket, and a clear plastic bag with cocaine in a side pocket, both in plain view because the purse was partially open. Cerovich then arrested King for drug possession and handcuffed her. He searched King, and found ecstasy in her sweater pocket. He put her in the cruiser, and then searched the purse. He found more drugs.
[56] King doesn’t dispute most of Cerovich’s evidence about these events. That said, she denies that Cerovich told her he was conducting a CCA search, which I discuss below. And she says that Cerovich couldn’t see inside her purse because it was latched—according to her, Cerovich unlatched the purse and went through it.
[57] I don’t need to resolve whether the purse was latched. The CCA search power “allows a search of bags readily accessible to the occupant of the vehicle, even if fastened closed”. See R. v. Williams, 2024 ONCA 69, para 60. King could’ve unlatched the purse from the driver’s seat. So, even if the purse was “fastened closed”, it was readily accessible, and Cerovich could search it.
3. Conclusion
[58] As intimated above, I found Cerovich’s evidence to be truthful and reliable. I believed his evidence. To the extent there were inconsistences in his evidence, they were minor. I don’t accept King’s submission that Cerovich is lying to the court about why he stopped her that night, or why he searched her car.
[59] I conclude that Cerovich had subjective reasonable and probable grounds on which to base his search (i.e., the smell of burnt cannabis, the cannabis shake, and the cannabis bud), and those grounds were objectively justifiable. Cerovich had a legal basis to search King and her car for cannabis. Under the statute, he was entitled to search her purse. Thus, King has failed to prove a breach of her right against unreasonable search and seizure.
B. Issue #2: Was King’s detention and arrest lawful?
1. Law
[61] Everyone has the right not to be arbitrarily detained. See Charter, s 9.
[62] Detention is “a suspension of an individual’s liberty interest” through a “significant physical or psychological restraint at the hands of the state”. See R. v. Lafrance, 2022 SCC 32, para 21. Even absent physical restraint by the state, a detention exists when a “reasonable person in the accused’s shoes” would feel obligated to “comply and that they are not free to leave.” See Lafrance, at para 21.
[63] The Highway Traffic Act, RSO 1990, c H.8, s 48(1) permits the police to stop drivers to determine whether the driver is impaired. The police need not have grounds to suspect that the driver is committing an offence in relation to the operation of a motor vehicle. See R. v. McColman, 2021 ONCA 382, paras 25-29; R. v. Dyer, 2024 ONSC 4767, para 60.
[64] A lawful arrest or detention isn’t arbitrary, and doesn’t infringe section 9 of the Charter. See R. v. Tim, 2022 SCC 12, para 22.
2. Facts
[65] As discussed above, I find that Cerovich had grounds to stop King given his belief that she was potentially impaired. Further, Cerovich had grounds to continue detaining King after he saw the open cannabis. Finally, he had grounds to arrest her after the search of her and her purse led him to find illegal drugs.
3. Conclusion
[66] The traffic stop and subsequent detention and arrest were lawful. As a result, they weren’t arbitrary.
C. Issue #3: Did Cerovich tell King that he was stopping her for impaired driving or for having open cannabis?
1. Law
[68] Everyone has the right on arrest or detention to be informed promptly of the reasons therefor. See Charter, s 10(a).
[69] Breaches of section 10(a) can be “temporal” or “informational”. A temporal breach occurs if an arrested or detained person is not promptly informed of the reasons for their detention. A functional equivalent of the term “promptly” in section 10(a) is the phrase “without delay”, in section 10(b). There, the phrase is synonymous with “immediately”, but does permit delay on the basis of concerns for officer or public safety. See R. v. Gonzales, 2017 ONCA 543, para 123.
[70] An “informational” breach arises if the reasons for their detention are not adequately communicated. See McGowan-Morris, at para 37. What controls is the “substance of what the detainee can reasonably be supposed to have understood from what they were told”, not the formalism of the precise words used in the advice. The question is whether what the detainee was told, “viewed reasonably in all of the circumstances of the case,” was enough to permit them to make a reasonable decision to submit to arrest or undermined the right to counsel. See McGowan-Morris, at para 39.
2. Facts
[71] As discussed above, I accept Cerovich’s evidence that he told King, when he first stopped her, that he was doing a sobriety check.
[72] Before Cerovich engaged King in the traffic stop, he did an MTO search. The car was “registered to a female party and that the insurance status was unconfirmed.” Then, at some point during their first interaction, he learned that King wasn’t the registered owner, so he wanted to perform a query to “know who [he was] dealing with.” Cerovich decided that he needed to determine whether King had “warrants or criminal driving related conditions or anything like that” because, otherwise, it was only a “provincial offence investigation”. The total delay was 5 to 7 minutes.
[73] When Cerovich returned, he can’t recall the exact words he used. His evidence was that he told her that he was going to search her car under the CCA but can’t remember if he mentioned the cannabis shake or bud.
3. Conclusion
[74] Cerovich’s failure to tell King about the reasons for her detention immediately upon seeing open cannabis in car didn’t violate her section 10(a) right.
[75] It was reasonable for Cerovich, for his own safety, to first query his databases to learn as much as he could about King before asking her to get out of the car. He had no idea if King had a criminal record or an active warrant for her arrest. Even though King was compliant when he first stopped her, it was reasonable for him to investigate whom he was dealing with before taking next steps.
[76] Further, I’m satisfied that Cerovich told King enough about why he was searching her car. Though he can’t remember the exact words, I believe his evidence that he told her that he was going to search her car under the CCA.
[77] As a result, there was no breach of her section 10(a) rights.
D. Issue #4: Did Cerovich tell King about her right to counsel right away?
[78] King argues that there were several breaches of her section 10(b) right:
(a) Cerovich was required to tell her about her right to counsel immediately upon stopping her for possible impaired driving;
(b) Cerovich should’ve given her the right to counsel once his investigation changed from impaired driving to transporting open cannabis;
(c) he then should’ve informed her of her legal rights after arresting and handcuffing her, before putting her in the back of the cruiser;
(d) he should’ve facilitated her right to counsel at the roadside; and
(e) at the station, Cerovich didn’t call duty counsel as soon as they arrived or provide King with access to her counsel of choice after she spoke to duty counsel.
[79] On this last point, King argues that Cerovich was supposed to provide her with a Prosper warning.
[80] The Crown concedes that Cerovich breached King’s section 10(b) right twice:
(a) first, when he didn’t inform her of her right to counsel before searching her and her car under the CCA; and
(b) second, when, at the station, he searched her purse for 10 minutes before implementing her right to counsel.
[81] In addition, I find that Cerovich should’ve informed King about her legal rights at the roadside rather than waiting until she was in the cruiser.
1. Law
[82] Everyone has the right on arrest or detention to retain and instruct counsel without delay and be informed of that right. See Charter, s 10(b).
[83] Once engaged, section 10(b) imposes both informational and implementational duties on the police. The informational duty requires the police to inform the detainee of the right to retain and instruct counsel without delay (which means “immediately”). See R. v. Suberu, 2009 SCC 33, paras 38, 42.
[84] The informational component of the section 10(b) right ensures that detainees understand their right to remain silent, so they can make an informed decision about whether to waive that right. See R. v. Sinclair, 2010 SCC 35, para 24. These rights combine to ensure that a suspect is able to choose to speak to the police investigators that is both free and informed. See Sinclair, at para 25.
[85] Suspensions of the right to counsel are lawful in two circumstances: (a) where there are concerns for officer and public safety; and (b) where a limit is prescribed by law and justified under section 1. See McGowan-Morris, at para 85. The CCA doesn’t contain an implied limit on section 10(b). Thus, police may delay access “only after turning their mind to the specifics of the circumstances and concluding, on some reasonable basis, that police or public safety … justifies some delay in granting access to counsel.” See McGowan-Morris, at para 102.
[86] The implementation obligation requires the police to provide the detainee with a reasonable opportunity to retain and instruct counsel. This obligation also requires the police to refrain from eliciting incriminatory evidence from the detainee until they’ve had a reasonable opportunity to reach a lawyer, or the detainee has waived the right to do so. See Suberu, at paras 38, 42.
[87] If a detainee is “diligent but unsuccessful in contacting counsel and subsequently [declines] counsel”, the police can’t interrogate the detainee until they’ve had a reasonable opportunity to contact a lawyer. See R. v. Prosper, p. 274; R. v. Edwards, 2024 ONCA 135, para 23. Prosper doesn’t apply where the accused is unsuccessful in contacting counsel of choice, and chooses to exercise their right to counsel by speaking with duty counsel. See Edwards, at paras 24-25.
2. Facts
[88] King says that Cerovich didn’t tell her about her right to counsel or right to remain silent until an hour after she was driven to the police station and placed in a cell. [1] After being given her rights, she asked to speak to Carlos Da Cruz. The police couldn’t reach him. Then, she spoke to duty counsel. After, the police told King that she’d be released. King said she would contact Da Cruz “on my own time”.
[89] Cerovich disputes part of King’s narrative. He says he gave King her rights around 7:37 pm, while she was in the back of the cruiser—it took a few minutes to arrest her, handcuff her, place her in the back of the cruiser, and search her purse. Cerovich’s evidence is that he didn’t give King her rights immediately after arresting her because he wanted to secure the purse, and determine whether to charge her with possession or possession for the purpose of trafficking. When he asked whether she wished to call a lawyer, she said yes but she didn’t request a specific lawyer.
[90] After arriving at the station at 8:00 pm and lodging King in a cell around 8:20 pm, Cerovich says that he called duty counsel at 8:30 pm. The delay was so he could search her purse for additional narcotics. He says he wanted to ensure that everyone was “aware of the…situation, as a whole.”
[91] Duty counsel called back around 8:50 pm, and spoke to King. According to Cerovich, King then, for the first time, asked to speak to Da Cruz. Cerovich says he told King that she’d be released under a Form 10 Undertaking. In response, she said she would contact Da Cruz later. She was released at 10:23 pm.
3. Conclusion
[92] King’s section 10(b) rights were infringed. For ease, I summarize the times of the events at issue:
| Time | Event |
|---|---|
| 7:22pm | Cerovich stops King, asks for driver’s license and ownership, sees cannabis bud and shake [alleged informational breach] |
| 7:26pm | Cerovich calls for backup |
| 7:27pm | Cerovich returns to car; advises King that he’s conducting CCA search [conceded informational breach] |
| 7:29pm | Cerovich asks King to get out of the car |
| 7:30pm | Cerovich arrests King [alleged informational breach] |
| 7:35pm | Cerovich gives King her section 10(b) right and caution, in the back of the cruiser [alleged implementational breach] |
| 8:00pm | Arrive at station |
| 8:20pm | Lodges King in cell |
| 8:30pm | Cerovich calls duty counsel [conceded implementational breach] |
| 8:50pm | King speaks to duty counsel |
| 10:23pm | King released |
[93] It was reasonable for Cerovich to delay giving King her right to counsel when he first stopped her at 7:22 pm—when the police stop a vehicle for an HTA violation, they can make observations about the driver. See McGowan-Morris, at para 100. At this point, Cerovich was stopping King to do a sobriety check. He didn’t need to caution her or read her rights because he hadn’t formed reasonable grounds for a violation.
[94] It was also reasonable for Cerovich to delay giving King her right to counsel after he first saw the cannabis bud and shake for the same reason it was reasonable to delay telling her why he was continuing to detain her: he needed to find out whom he was dealing with since she wasn’t the registered owner.
[95] The Crown concedes that once Cerovich formed reasonable grounds for a CCA search—after he saw the cannabis bud and shake and asked her to get out of the car at 7:27 pm—he should’ve given King her section 10(b) rights. That’s a reasonable concession. At this stage, there were no exceptional circumstances or safety concerns. Cerovich wasn’t outnumbered. There’s no allegation of a firearm. Cerovich didn’t need to secure the scene. King was being compliant. “General or non-specific” concerns that apply to any search can’t justify delaying access to counsel. See McGowan-Morris, at para 102.
[96] And, once Cerovich saw the other drugs in King’s purse around 7:30 pm, he compounded the infringement by not giving her rights immediately. The Crown argue this delay was reasonable—Cerovich had to tell her she was under arrest, handcuff her, pat her down, put her in the back of the cruiser, call for backup, and secure the purse. It was dark, they were on the side of a busy highway, and Cerovich was alone. According to the Crown, it makes sense to read an accused their rights in the relative safety and quiet of the police cruiser.
[97] I disagree, for the same reasons that he could’ve given King her rights when he saw the shake and cannabis bud. She was alone and compliant. There were no safety concerns. There was enough light for him for to search her and her purse. It was evening not night. It may have been loud, but she didn’t express any trouble hearing him.
[98] In sum, in the circumstances of this case, Cerovich didn’t have to give King her section 10(b) right when he first stopped her or when he first saw the cannabis shake or bud (7:22 pm). But when he returned to her car after checking her driver’s license (7:27 pm), he should’ve informed her of her right to counsel. Failing that, he should have done so at the roadside when he arrested her (7:30 pm). The total delay was 8 minutes.
[99] That said, I’m persuaded that the delay in implementing King’s right to counsel after he read her rights was reasonable. It’s unclear whether Cerovich had a dedicated cell phone he could use to call King’s counsel. It’s reasonable for everyone’s privacy that we don’t expect the police to hand over their work or personal cell phones to accused persons, given the amount of information that is stored or could be stored on these devices. Cerovich would’ve had to uncuff King, or move her cuffs to the front. He would’ve had to leave the cell phone in the backseat with her to ensure her privacy. If the lawyer didn’t answer, they might’ve called back while Cerovich was driving to the station. And the station was only five minutes away. Section 10(b) doesn’t require officers to “place themselves at risk in this way.” See R. v. Ralph, 2011 ONSC 3407, para 27, aff’d 2014 ONCA 3, para 20.
[100] At the station, if I accept King’s evidence, she understood that Cerovich was trying to contact Da Cruz while she spoke to duty counsel. Given that Da Cruz hadn’t answered or called back, she seemed prepared to wait until she was released. That makes sense. Da Cruz hadn’t called back. It was getting late. She was being released on an undertaking. Why would she insist on speaking to Da Cruz from the police station in those circumstances, when she could speak to him at her leisure with the same effect?
[101] The issue of a Prosper warning is irrelevant: King didn’t waive her right to legal advice, she wasn’t interviewed by the police at the station, and she exercised her right to counsel by speaking to duty counsel while waiting for Da Cruz to call back.
[102] That all said, the Crown also concedes that Cerovich again breached King’s section 10(b) rights by searching her purse before implementing her right to counsel. It was unreasonable for Cerovich to search King’s purse before contacting her lawyer.
E. Issue #5: Should the evidence be excluded?
1. Law
[104] Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. See Charter, s 24(1). When a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it’s established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. See Charter, s 24(2).
[105] A section 24(2) inquiry examines the effect of admitting evidence obtained in breach of the Charter on public confidence in the justice system over the long term. This is based on three lines of inquiry: (a) the seriousness of the Charter-infringing state conduct; (b) the effect of the breach on the accused’s Charter-protected interests; and (c) society’s interest in the adjudication of the case on the merits. A court’s task is to balance the assessments under these three lines of inquiry to determine whether, considering all the circumstances, “admission of the evidence would bring the administration of justice into disrepute”. See R. v. Tim, 2022 SCC 12, para 74.
2. Discussion
i. Seriousness of the Breach
[106] Cerovich’s failure to inform King of her section 10(b) right or implement that right immediately is at the less serious end of the “scale of culpability”. To properly situate state conduct on this scale, courts must ask whether the surrounding circumstances attenuate or exacerbate the seriousness of the state conduct. See R. v. Grant, 2009 SCC 32, para 75. Were the police compelled to act quickly to prevent the disappearance of evidence? Did the police act in good faith? Could the police have obtained the evidence without a Charter violation? Only by adopting a holistic analysis can a court properly situate state conduct on the scale of culpability. See R. v. McColman, 2023 SCC 8, para 58.
[107] At the roadside, the delay in advising King of her rights was only 8 minutes, which is brief. In McGowan-Morris the Court of Appeal characterized the 10-minute delay in that case as “extremely brief”. The timeline was interrupted when the investigation turned from open cannabis to controlled drugs. Also, Cerovich didn’t understand that he needed to give King her rights before searching her or her car for cannabis given the different practice for HTA searches. The Court of Appeal in McGowan-Morris acknowledged the need to clarify this area of the law.
[108] At the station, again, the delay was short. On one hand, nothing prevented Cerovich from calling duty counsel first, and then searching King’s purse. Though he says he wanted to make sure duty counsel knew the scope of the charges against King, Cerovich had already arrested her for drug possession. There’s no evidence that he told duty counsel what he found in King’s purse. He made an intentional decision to delay calling duty counsel. On the other hand, Cerovich was acting in good faith, albeit misguided—I believe his explanation that he wanted King and her lawyer to have a “full picture” of the charges that King was facing.
[109] Taken together, these factors mitigate the seriousness of the breach. The breach doesn’t favour exclusion of the evidence.
ii. Impact on Charter-Protected Interests
[110] King’s Charter-protected interest here is the principle against self-incrimination. See Tim, at para 91; Grant, at para 77. I find the breaches to be only moderately intrusive. There’s no causal connection between the section 10(b) infringement and the discovery of any evidence, which mitigates the infringement. See R. v. Yaghoubi-Araghi, 2025 ONCA 314, para 29.
[111] At the roadside, even if King had been given her right to counsel immediately, Cerovich still could’ve searched her and her purse, and would’ve found the drugs. The Crown isn’t relying on an incriminating statements she made in the interim.
[112] At the station, King was lodged in a cell. No one questioned King before contacting duty counsel. Duty counsel didn’t pick up right away—they called back 23 minutes later. The police didn’t obtain any evidence from the breach—Cerovich didn’t find anything more in King’s purse. This factor doesn’t favour exclusion.
iii. Society’s Interest in Adjudication on the Merits
[113] The evidence seized is at the heart of the Crown’s case. Drug offences are serious crimes. The “truth-seeking function” of the criminal trial process is better served by the admission of the evidence of the drugs. See Tim, at para 96. Excluding evidence that has a weak link to a constitutional violation risks damaging the “repute of the justice system”. See R. v. Pileggi, 2021 ONCA 4, para 126. This factor also doesn’t favour exclusion.
3. Conclusion
[114] The final step in the analysis involves “balancing the factors under the three lines of inquiry” to assess the effect of admission or exclusion of the evidence on the “long-term repute of the administration of justice.” Each factor must be assessed and weighed in the balance, focusing on the “long-term integrity of, and public confidence in, the administration of justice.” See Tim, at para 98.
[115] The admission of the evidence discovered during the search would not bring the administration of justice into disrepute. I would decline to exclude the evidence under section 24(2).
F. Issue #6: Is King guilty of drug trafficking?
1. Law
[117] For me to find King guilty of possession of a Schedule I substance for the purpose of trafficking under the CDSA, s 5(2), the Crown must prove each of these essential elements beyond a reasonable doubt:
(a) that King was in possession of a substance;
(b) that the substance was methamphetamine, coca, or fentanyls;
(c) that King knew that the substance was methamphetamine, coca, or fentanyls; and
(d) that King had possession of methamphetamine, coca, or fentanyls for the purpose of trafficking in them.
[118] For me to find King guilty of possession of amphetamines under CDSA, s 4(1), the Crown must prove, beyond a reasonable doubt, that: (a) King was in possession of amphetamines; and (b) she knew that the substance was amphetamines. See R. v. Williams, paras 14-15.
2. Facts
[119] The parties admit that:
- the police found 33.7g of fentanyl in King’s purse, which had a street value of between $10,110 and $13,480
- the police found 250.2g of meth in King’s purse, which had a street value of between $4,467.85 and $20,016
- the police found 29g of cocaine in King’s purse, which had a street value of between $2,320 and $3,910
- the police found 1.3g of MDMA in King’s pocket
- the quantity of each of the fentanyl, meth, and cocaine exceed personal use, and are an amount that would be possessed for the purpose of trafficking
3. Conclusion
[120] The substances found in King’s pocket and purse were fentanyl, meth, cocaine, and ecstasy. King had physical control of the substances—she was in possession of the drugs.
[121] King knew that the drugs in her pocket and purse were controlled substances. Or she was aware of the need to ask about the nature of the substances but deliberately failed to do so because she didn’t want to know the truth about them. Some of the drugs were in clear bags, and looked like a narcotic. Or the drugs were in a tied-up bag in King’s purse. King surely would’ve known what she was carrying in her purse, or should’ve asked first.
[122] King possessed the drugs for the purpose of trafficking. She’s admitted that the quantity of the drugs exceeds personal use.
[123] As a result, I’m satisfied beyond a reasonable doubt that King was in possession of ecstasy, and in possession of fentanyl, meth, and cocaine for the purpose of trafficking.
IV. Conclusion
[124] Based on the totality of the evidence, King has failed to prove, on a balance of probabilities, that the police violated her constitutional rights under the Charter, ss 8, 9, and 10(a). Though the police did infringe her right to counsel under section 10(b), the breach wasn’t serious enough to exclude any evidence.
[125] There’s no dispute, on the evidence, that King knew that she was carrying controlled substances in her pocket and purse, and that the amount of some of the drugs was more than for personal use. As a result, she’s guilty of the charges against her.
Ranjan K. Agarwal
Released: June 13, 2025
[1] In closing submission, King’s lawyer accepted that Cerovich informed King about her rights before they drove to the station.