Ontario Superior Court of Justice
Court File No.: CR-23-91102075-0000
Date: 2025-06-09
Between:
His Majesty the King – and – Malamin Marong (Defendant/Applicant)
Camilla Zhang, for the Crown/Respondent
Alana Page, for the Defendant/Applicant
Heard: May 12, 13, 14 and 16, 2025
Ruling on Charter ss. 7, 8, 9 and 24(2) Application
Justice R.E. Charney
Introduction
1The Applicant, Malamin Marong, is charged with possession of a loaded prohibited firearm and other firearm offences and possession of cocaine for the purposes of trafficking.
2The Applicant alleges that he was arbitrarily detained because the police lacked grounds to stop his vehicle. He further alleges that the police lacked reasonable grounds to search his vehicle under s. 12(3) of the Cannabis Control Act, 2017, S.O. 2017, c. 26, Sched. 1 (CCA).
3Finally, the Applicant argues that the police deprived him of his right to a fair trial by failing to follow York Regional Police Directives to activate their In-Car Camera System (ICCS) to preserve the video of his alleged Highway Traffic Act (HTA) offence and the audio recordings of the police interactions with him.
4As a result, he argues that the evidence found following his detention and during the CCA search (the firearm and cocaine) should be excluded under Charter s. 24(2).
5For the following reasons, the application is granted.
Facts
6The main evidence in the Crown’s case was provided by Police Constable Pigott.
7PC Pigott testified that on March 9, 2023, he was patrolling in an area near Highway 400 and Keele St. As he was travelling eastbound, he came to an intersection. PC Pigott had the right of way. A dark grey Mazda travelling southbound had a stop sign, but crossed the white line and drove part way into the intersection. PC Pigott had to brake quickly to avoid hitting the car. He stopped about 10 to 15 meters from the grey Mazda.
8PC Pigott could see the driver of the grey Mazda and made eye contact with him. The driver waved to PC Pigott to drive through. PC Pigott intended to turn around to stop the Mazda for violating the HTA – failure to stop at a stop sign – so he waved the Mazda to proceed. He made a note of the licence plate number on the Mazda. The Mazda made a left turn and continued westbound down the street that PC Pigott was on.
9PC Pigott made a U-turn to follow the Mazda, and entered the Mazda’s licence plate into his Mobile Data Terminal (MDT). His intention was to get information about the registered owner before he stopped the car. This is a common practice for officer safety and to assess flight risk. PC Pigott quickly scanned the information on his MDT and testified that he recalled that the information on his MDT indicated that the registered owner was Malamin Marong, who had a history of “assault police”.
10In fact, the information on the MDT indicated that Mr. Marong was prohibited from possessing firearms and indicated “Armed and Dangerous, Violent”.
11At that point PC Pigott manually activated his ICCS to record the video and audio. His intention was to conduct a traffic stop for the HTA violation.
12The ICCS in PC Pigott’s police cruiser is activated in several ways. For example, it will activate automatically if the emergency lights are activated, or if the vehicle speed reaches 130 km per hour. In this case, PC Pigott manually activated the ICCS.
13The ICCS is continually recording data, however, the data is not retained until the system is activated. Once activated, video and audio data will be retained as well as 30 seconds of video data that had been captured immediately prior to the system being activated. The 30 second recording prior to the activation of the system is comprised of video only. The audio is retained only from the moment of activation.
14Once activated, the ICCS has two microphones: an in-car microphone and a wireless mobile microphone that is worn by the officer and records audio outside of the car. The wireless microphone is “synched” to the ICCS.
15Had PC Pigott activated the ICCS within 30 seconds of the grey Mazda stopping over the white line, that incident would have been captured on video. But PC Pigott waited until he waved the grey Mazda through the intersection, completed his U-turn, and queried the licence plate on his MDT, before activating the ICCS. This was more than 30 seconds after the HTA incident. As a result, the grey Mazda is not visible when the video begins. There is no video of the grey Mazda crossing the white line. PC Pigott acknowledges that, with the benefit of hindsight, he should have activated the ICCS sooner.
16A few moments later, PC Pigott activated his siren and pulled over the grey Mazda. This is all captured on video.
17PC Pigott can be seen exiting his police cruiser and approaching the driver’s side of the grey Mazda, which rolls down its window. PC Pigott spoke to the driver for almost two minutes.
18There is no audio recording of PC Pigott’s conversation with the driver. Even though PC Pigott was wearing his wireless mobile microphone, it was not synched with the ICCS. PC Pigott had conducted a “circle check” in the morning to ensure that the ICCS system was operating correctly. He heard the playback from the in-car microphone, and mistakenly thought that this was the playback from his wireless mobile microphone. In fact, his wireless mobile microphone was not operating correctly, and PC Pigott failed to see the flashing yellow light that indicated this failure.
19PC Pigott testified that he did not realize that his mobile microphone was not operational, and that, while he was speaking with Mr. Marong at the roadside, he believed the conversation was being recorded on his ICCS.
20PC Pigott testified that he informed Mr. Marong that he was being stopped for the investigation of a HTA offence – failure to stop at a stop sign – and requested Mr. Marong’s driver’s licence, ownership permit and insurance. These were provided and were all valid.
21The driver’s window was rolled all the way down, and PC Pigott could see what he believed were brown and green cannabis crumbs scattered around the center console/cup holder. He estimated that if it was all collected it would weigh about .25 to .5 grams. The presence of these cannabis crumbs was indicative of grinding dried cannabis in the car, and he believed this gave him reasonable grounds to search the car under s. 12(3) of the CCA.
22PC Pigott also testified that as the car window was rolled down there was a strong odour of fresh cannabis. This fortified his view that there was cannabis in the car contrary to the provisions of the CCA, and that he had grounds to search the car under s. 12(3).
23After confirming the identity of the driver, PC Pigott returned to his car to request back up. He did not want to search the car until another officer arrived for officer safety reasons. At 11:22:33, PC Pigott sent a message to dispatch requesting the assistance of a second officer for a cannabis-related search.
24Even before PC Pigott called for back up, PC Yam was contacted by dispatch and asked to assist PC Pigott. PC Yam arrived on scene at 11:23, and a minute later PC Pigott and PC Yam approached the grey Mazda.
25PC Pigott testified that he explained to Mr. Marong that he had seen cannabis crumbs in the car’s center console, that there was a strong odor of fresh cannabis in the car, and that he was going to search the car under the authority of the CCA. He asked Mr. Marong to get out of the car, and Mr. Marong complied. He also told Mr. Marong that he did not suspect that Mr. Marong had recently smoked cannabis because there was no smell of burnt cannabis and Mr. Marong had no indicia of impairment.
26Although PC Yam was present for this conversation, and confirmed PC Pigott’s testimony, he had not activated his mobile microphone, which he acknowledged was an oversight on his part.
27Once Mr. Marong left his car, PC Pigott discovered the butt of what he believed to be a cannabis cigarette on the driver’s seat. Mr. Marong’s person was searched, and the police discovered a small bag of what appeared to be fresh cannabis buds in his shirt pocket. They also found a small bag of “grabba” in his pocket, a mixing agent used with cannabis but not itself illegal.
28PC Pigott testified that the bag of cannabis buds found in Mr. Marong’s shirt pocket was torn open but closed with a “zip-lock” fastener that was part of the plastic bag. He initially reaffirmed this testimony on cross-examination.
29PC Pigott took two photographs of the crumbs around the center console of the Mazda. He also took a photo of the small bags of cannabis and grabba, although he is holding the bags in the photo, and the top of the bag of cannabis is obscured by his thumb.
30On cross-examination, PC Pigott was shown other photographs taken by a forensics officer of the small bag of cannabis. These photos clearly show that the bag of cannabis was still sealed, and not torn open as PC Pigott had testified. The label on the sealed bag indicates that the contents weighed one gram. After looking at these photographs, PC Pigott acknowledged that his “recollection was incorrect”.
31While examining the car, the police found a backpack in the back seat area. When they opened it, they discovered a digital scale with white residue on the scale. Mr. Marong was arrested for possession and read his rights to counsel and caution.
32The police, now joined by PC Hannah, continued to search the car. They noticed that the cup holder was not properly fastened to the console, and when they lifted it they discovered a bag of white powder believed to be cocaine and a loaded handgun with an extended magazine. Mr. Marong was re-arrested for possession of a firearm and possession for the purposes of trafficking.
33Neither PC Yam nor PC Hannah smelled cannabis while conducting the search of the grey Mazda, although they pointed out that the car door had been open for some time before they were involved in the search, and the smell would quickly dissipate when the door was open. Nor did they find any bags of cannabis other than the small bag found in Mr. Marong’s shirt pocket.
34PC Pigott testified that another police officer – he could not recall who – found a larger sealed bag of cannabis somewhere in the car and gave it to him prior to leaving the scene.
35PC Pigott thought that this larger sealed bag of cannabis was not illegal because it was sealed, and therefore had no evidentiary value. He decided to keep it with Mr. Marong’s personal effects so it could be returned to him when he was released from prison. He transported the bag back to the station and lodged it in the property room. He did not make any record of this large sealed bag of cannabis in his notes, nor did he include it in the Seized Property Report or the Report to Justice that he authored. He did not weigh it or take any photographs of it when it was seized. It is not referenced in his “Initial Officer Report” that he prepared March 9, 2023. There is no record of it being processed or given a property tag number.
36PC Pigott testified that when Mr. Marong did not request the return of this large sealed bag of cannabis within seven days, he was informed by the Property Co-ordinator that it should be destroyed. He does not have a record of this email from the Property Co-ordinator even though he retains all work emails. PC Pigott recalled retrieving the package from the property locker, although there is no record of his having done so, and he personally weighed the bag, which weighed 59.84 grams. This weight was significant, because PC Pigott knew that it is illegal to possess more that 30 grams of dried cannabis pursuant to s. 8(1)(a) of the federal Cannabis Act, S.C. 2018, c. 16.
37After weighing the bag on April 11, 2023 (the day before Mr. Marong’s bail hearing on April 12, 2023), PC Pigott prepared a “Seized Drug Text Page” and resubmitted the bag for destruction. No photograph of the bag was taken before it was destroyed. This “Seized Drug Text Page” prepared by PC Pigott on April 11, 2023, is the only record that the 59.84 gram bag of cannabis ever existed. None of the other police officers involved in the investigation at the roadside or who searched the car when it was brought to the station had any knowledge of this large bag of cannabis.
38Following the arrest on March 9, 2023, Mr. Marong’s grey Mazda was taken to the police station where it was searched by three police officers. No additional evidence was found. Two of these police officers did not smell cannabis during the search. The third officer, PC Maitre, was tasked with collecting the crumbs from the center console area that were believed to be cannabis. He testified that the crumbs were green and brown and did smell like cannabis, which is how he knew they were cannabis. He did not record the odour in his notes. He collected the crumbs from the center console area on a long piece of white sticky tape. The cannabis crumbs collected were estimated to weigh .001 grams, although PC Maitre testified that the amount collected was too small to weigh. Although PC Maitre identified the cannabis by smell, the crumbs were not analyzed.
Analysis
Burden of Proof
39The Applicant has the burden of proof on the Charter application on a balance of probabilities, with one exception. Because the initial search of the Applicant and his vehicle was warrantless, the Crown bears the burden to justify the search as reasonable on a balance of probabilities: R. v. Collins, R. v. Haas, paras. 24-38.
HTA Stop
40There is no dispute that if PC Pigott saw Mr. Marong fail to stop at a stop sign, PC Pigott had the authority to stop Mr. Marong’s car and request his identity, driver’s licence, vehicle permit and insurance. There would be no violation of the s. 9 Charter right not to be arbitrarily detained.
41Section 216(1) of the Highway Traffic Act provides:
A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a motor vehicle to stop and the driver of a motor vehicle, when signalled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.
42In addition to requiring production of various documents associated with the operation of a motor vehicle, a police officer, acting under the authority of s. 216(1) of the HTA, may also make a visual examination of the interior of the vehicle to ensure their own safety during the detention: R. v. Gonzales, 2017 ONCA 543, para. 56, and cases cited therein.
43In Brown v. Durham Regional Police Force, the Court of Appeal recognized that s. 216(1) of the HTA “authorizes the stopping of vehicles for what may be broadly described as highway regulation and safety purposes” but that the “detention authorized by s. 216(1) of the H.T.A. is circumscribed by its purpose.” If the highway safety concerns are merely a “ruse” or “pretext” used by the police to stop a vehicle then s. 216(1) does not provide lawful authority to stop the vehicle or detain the occupants, and the s. 9 Charter violation cannot be justified under Charter s. 1.
44In Brown, the Court of Appeal recognized that the police may have multiple purposes for stopping the vehicle, and that this will not invalidate the stop “as long as the other purposes motivating the stops are not themselves improper”.
45See also: R. v. Sandhu, 2011 ONCA 124, paras. 51, 62.
46This was not a case of a “random” spot-check like that discussed by the Supreme Court of Canada in R. v. Ladouceur. In this case, PC Pigott claims to have witnessed a violation of the HTA and stopped Mr. Marong’s vehicle on that basis.
47The only issue is whether I have any reason to doubt PC Pigott’s testimony on that issue.
CCA Search
48There is no dispute that if PC Pigott had reasonable grounds to believe that open cannabis was contained in Mr. Marong’s car, PC Pigott had the authority to enter and search the vehicle and any person found in it under s. 12(3) of the CCA, and there would be no violation of the Charter s. 8 right to be secure against unreasonable search or seizure: R. v. Tully, 2022 ONSC 1852, para. 123.
49Section 12 of the Ontario Cannabis Control Act (CCA) prohibits persons from driving a motor vehicle while any improperly stored cannabis is in the vehicle. Section 12(3) authorizes the police to enter and search a vehicle or a person in the vehicle without a warrant if they have “reasonable grounds to believe” that there is improperly stored cannabis in the vehicle.
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.
50It is important to note that s. 12(3) does not limit the police officer’s right to search the vehicle or its passengers to situations where the police officer has reasonable grounds to believe that the driver is or has recently consumed cannabis. The question for the police officer is whether he has reasonable grounds to believe that open cannabis (i.e. not stored in compliance with the exception found in s. 12(2) of the CCA) is in the vehicle. While “the public safety goal is to prevent the use of cannabis by the driver or the occupants of a car or boat while it is being operated”: R. v. McGowan-Morris, 2025 ONCA 34, para. 64, s. 12 regulates the transport of cannabis: “it is focused on the storage of cannabis that is being transported. The clear purpose is to ensure that cannabis is not readily available to any person in a vehicle or boat”: McGowan-Morris, at para. 64.
51The Applicant relies on the decision in R. v. Grant, 2022 ONSC 2703, where the Court suggests that a search under s. 12(3) of the CCA is only reasonable if the police see “evidence in plain view” of enough cannabis to be smoked. The Court stated, at para. 134: “It would be analogous to an officer attempting to justify a search by telling a driver he had alcohol that was accessible to the driver because of drops of beer left in the empties he was taking to the beer store”.
52Numerous courts have commented on the parallel between s. 12 of the CCA and s. 32 of the Liquor Licence Act. Section 32 of the Liquor Licence Act regulates the conveyance of liquor in a vehicle or boat. Like s. 12(3) of the CCA, s. 32(5) of the Liquor Licence Act authorizes the police to search the vehicle and all of its occupants if they have reasonable grounds to believe that open liquor is in the vehicle: see for example: R. v. Sappleton, 2021 ONSC 430, para. 41; Tully at paras. 118–120; R. v. Moulton, 2023 ONCJ 140, para. 239; R. v. Guerrier, 2024 ONCA 838, para. 25.
53While the reasonableness of any search is contextual, I would have thought that a police officer who observes an open bottle of beer in a car has reasonable grounds to believe that there is open alcohol in the car. The police officer cannot know that the bottle is empty until he conducts the search and looks into the bottle. An empty beer bottle will not result in a conviction for transporting open alcohol, but it is grounds to justify a search.
54A similar conclusion was reached by Rahman J. (as he then was) in R. v. Morgan, 2023 ONSC 6855, paras. 60, 63–65:
The applicant also argues that s. 12(3) of the CCA requires the police to have reasonable grounds to believe that there is additional cannabis contained in a vehicle, not just the cannabis that the police initially discover. In support of that proposition, he relies on this court’s decision in R. v. Sappleton. Further, the applicant argues that, even if Cst. Coutinho saw cannabis crumbs, what he saw was not enough to be consumable cannabis. He analogizes the officer’s observation to the dregs of liquid in a beer bottle not being sufficient grounds to conduct a similar kind of detention and search under the Liquor Licence Act (LLA). In support of his position, the applicant relies on this court’s decisions in R. v. Ellis, and R. v. Mackenzie-Walcott.
I will first address the applicant’s argument, relying on Sappleton, that s. 12(3) of the CCA requires an officer to have reasonable grounds to believe that additional cannabis is stored in a vehicle in addition to any cannabis already discovered in the vehicle. I cannot accept that this is a correct interpretation of the CCA’s search provision. The weight of authority, including cases which have interpreted the nearly identical provision in the LLA, do not support this more restrictive interpretation of the CCA’s search power. Those decisions include the Court of Appeal’s decision in R. v. Annett and this court’s decision in R. v. F. (J.). Both of those cases interpret the analogous LLA provision as authorizing the broad search power in the LLA upon discovery that alcohol is being transported in contravention of the LLA.
In Annett, the police pulled over a driver who had an open six-pack of beer on the front passenger floor. One of the bottles had its cap removed and appeared to have been partially consumed. Martin J.A. held that the police’s observation of the six-pack supplied the police with reasonable grounds to believe that liquor was being kept unlawfully in the car and allowed the officers to search the car, under the LLA’s search provision:
Patently, the officers had reasonable grounds to believe that liquor was being unlawfully kept or had in the motor vehicle. Accordingly, s. 48 was clearly applicable and conferred upon the officers authority to search the vehicle.
In my view, s. 12(3) of the CCA permits the police to search a vehicle and its occupants once they find cannabis being stored in contravention of the Act.
55See also: R. v. Stonefish, 2019 ONCA 914, para. 1: “The fact that there was a small amount of marijuana in the cup holder led quite naturally to a search for more marijuana elsewhere in the car.”
56I agree with and adopt Rahman J.’s analysis. There should not be any open cannabis in an automobile, “whether or not in motion”, and the observation of any open cannabis is reasonable grounds to believe that “cannabis is being contained in a vehicle” in contravention of the CCA.
57Accordingly, if I accept PC Pigott’s testimony that he observed cannabis crumbs scattered around the center console and a strong odour of fresh cannabis when the window was rolled down, I would be satisfied that PC Pigott had reasonable grounds to believe that cannabis was contained in the vehicle in contravention of the CCA, and that the search of the vehicle was authorized under s. 12(3) of the CCA.
58Provided a police officer has reasonable grounds to believe that cannabis is being contained in a vehicle in contravention of s. 12(1), under s. 12(3) the police officer is authorized to search the vehicle and any person found in it. The section does not restrict the scope of the search.
59If the police had reasonable grounds to believe that cannabis was contained in the vehicle in contravention of the CCA, the police were authorized by s. 12(3) of the CCA to search the backpack found in the back seat area of the car, which is an area that is “readily available to any person in the vehicle”: Guerrier, at paras. 26–27.
60I offer no opinion or comment on whether s. 12(3) permits the police to search a separate trunk compartment of a vehicle since that fact situation is not before me on this Application. See: R. v. Leonard, 2025 ONCA 63, paras. 10–12.
61The only issue is whether I have any reason to doubt PC Pigott’s testimony with regard to his grounds for believing that open cannabis was in the vehicle.
Reliability of PC Pigott Evidence
62The Applicant argues that PC Pigott’s testimony was internally inconsistent and contradicted by other more reliable evidence. The Applicant argues that viewed cumulatively, these inconsistencies put in doubt the rest of PC Pigott’s testimony, and the Court should not rely on any of PC Pigott’s testimony that is not reliably corroborated.
63The Crown acknowledges that there are weaknesses in PC Pigott’s testimony, but argues that these relate to peripheral matters and do not undermine the key parts of his testimony related to the HTA stop and the CCA search.
64The Applicant has listed numerous inconsistencies and other questionable parts of PC Pigott’s testimony that he argues fatally undermines the credibility or reliability of PC Pigott’s evidence. I will not review each of these allegations, since most of them are not significant or were reasonably explained by PC Pigott. For example, PC Pigott testified that the information he received when he queried the Mazda’s licence plate on his MDT indicated that the registered owner had a history of “assault police”. As indicated above, the information on the MDT indicated that Mr. Marong was prohibited from possessing firearms and stated: “Armed and Dangerous, Violent”. This is not a significant difference and justifies PC Pigott’s concern for officer safety.
65There are, however, three problematic areas of PC Pigott’s testimony that raise bright red flags and seriously undermine his reliability as a witness.
66The first is PC Pigott’s testimony that the bag of cannabis buds found in Mr. Marong’s shirt pocket was torn open, but closed with a “zip-lock” fastener that was part of the plastic bag. PC Pigott’s testimony on this issue was detailed and very persuasive. It was, however, contradicted by the photographs taken by the forensics officer that clearly show that the bag of cannabis was still sealed, and not torn open.
67This was a significant error. The sealed bag of cannabis complies with s. 12(2) of the CCA and could not justify a search under the CCA. The opposite result applies to a bag that has been torn open and zip-locked. This is not the sort of error that a police officer should make when testifying in court.
68The second and most problematic area is what the Defence counsel colourfully referred to as the “mystery 59 gram bag of cannabis”, and which the Crown described as “an unexplained anomaly”. Again, PC Pigott’s evidence about this 59 gram bag of cannabis was very detailed and very persuasive. He remembered the picture on the package and remembered personally weighing it.
69Given the totality of evidence reviewed at paras. 34–37 above, I conclude that this 59 gram bag of cannabis never existed. Yet PC Pigott prepared a “Seized Drug Text Page” on April 11, 2023 (the day before Mr. Marong’s bail hearing on April 12, 2023) and remembers personally weighing the bag and resubmitting it for destruction.
70PC Pigott’s explanation for not including this 59 gram bag of cannabis in his notes made on March 9, 2023, or in the Seized Property Report, or the Report to Justice that he authored, or in his “Initial Officer Report”, simply makes no sense. He testified that he believed that the bag had no evidentiary value and would be returned to Mr. Marong along with his other personal effects.
71Yet PC Pigott included the one gram sealed bag of cannabis buds found in Mr. Marong’s shirt pocket with the other seized items in all of his notes and reports. The one gram sealed bag was perfectly legal. The 59.84 gram bag, in contrast, weighed approximately twice the legal limit for personal possession under the federal Cannabis Act. Yet PC Pigott, a qualified Drug Recognition Expert, did not even think to weigh the bag before deciding that it had no evidentiary value and belonged with Mr. Marong’s personal effects to be returned to him.
72Finally, PC Pigott estimated that the cannabis crumbs he saw scattered around the center console weighed approximately .25–.50 grams. That was a sufficient amount to give off the strong odour of fresh cannabis he smelled when the car window was rolled down. When collected on the white sticky tape back at the station, the police estimated that the amount collected weighed only .001 grams – a vanishingly small fraction of the amount estimated by PC Pigott.
73I appreciate that the police at the station may not have successfully collected every last crumb found around the console. But even if they were only able to collect one-half or one-quarter, the total amount of crumbs found in the car was a tiny fraction of PC Pigott’s estimate.
74I will not ascribe any motives – conscious or unconscious – for these errors in PC Pigott’s testimony. These are, however, all significant errors which compel me to seriously question the reliability of all of PC Pigott’s evidence.
HTA Traffic Stop – Charter s. 9
75PC Pigott testified that he first decided to stop the Mazda when it crossed over the white line at a stop sign. Had he activated his ICCS within 30 seconds of this incident, the HTA infraction would have been recorded on his in-car camera. That would have been the conversation stopper.
76PC Pigott did not activate the camera until he had waved the driver through, performed a U-turn and queried the licence plate on his MDT – more than 30 seconds after the HTA infraction. As a result, the alleged HTA infraction was not recorded.
77I am not faulting PC Pigott for not activating his ICCS within the 30 second window. I appreciate that police officers must make a number of split-second decisions in these fluid and dynamic circumstances, and PC Pigott prioritized the other actions within the narrow 30 second window available to him. As discussed below, this was not a violation of the Applicant’s s. 7 Charter rights.
78In this case, however, given my serious concerns about the reliability of PC Pigott’s evidence outlined above, I do not accept his uncorroborated evidence with respect to the alleged HTA infraction.
79Having rejected PC Pigott’s testimony on the reason for the traffic stop, I must conclude that this was a pretext stop that was not authorized by s. 216(1) of the HTA and was therefore a violation of the Applicant’s Charter s. 9 right not to be arbitrarily detained.
CCA Search – Charter s. 8
80PC Pigott testified that he saw approximately .25 to .50 grams of green and brown crumbs scattered around the center console of the Mazda. He could see these crumbs from his vantage point outside of the car when Mr. Marong rolled down his window. He could also smell a strong odour of fresh cannabis when the window was rolled down, and this fortified his view that the crumbs he saw were cannabis crumbs. He took a photo of the console area from inside the car when he conducted his CCA search. Further photos were taken by the forensics officer.
81When the enlarged photos were shown to PC Pigott in the courtroom on the screen, he pointed to the gearshift area and cupholders and claimed the photo depicted these green and brown crumbs. I agree with the Defence that the small amount of crumbs in the center console are mostly brown and that green crumbs are not really visible in these photos. I am also skeptical that the specks that were visible in the enlarged photo would have been visible from outside the car.
82The lack of photographic evidence is not necessarily fatal to a finding that cannabis was observed in a vehicle. Again, each case must be assessed on its own facts, and the evidence must be considered in its totality. In R. v. Kanneh, 2022 ONSC 5413, there was no physical evidence introduced by the Crown of the cannabis shake that the officer testified he observed in the stopped vehicle; the cannabis was not seized nor did the officer take photographs of it. Peterson J. found, at paras. 29 and 30, that the failure to gather this evidence was not best police practice, particularly as the shake formed part of the officer’s grounds for conducting a CCA search, and the officer ought to have done so. However, based on the court’s finding that the officer was a credible witness, Peterson J. was not prepared to infer from the lack of physical evidence that the officer was lying under oath about having seen cannabis shake in the car.
83In this case, the photographic evidence is at best ambiguous. Given my findings about the reliability of PC Pigott’s evidence, I am not prepared to give him the benefit of the doubt.
84Finally, I do not believe that the approximately .001 grams of crumbs collected by the police could give off the “strong odour of fresh cannabis” claimed by PC Pigott to fortify his opinion that the crumbs he saw were cannabis. Those crumbs were the only unsealed cannabis located in the Mazda.
85When I consider the totality of the evidence, I am not satisfied that I can rely on PC Pigott’s evidence to support the Crown’s position that this warrantless search was authorized by s. 12(3) of the CCA, and the search was, therefore, a breach of the Applicant’s Charter s. 8 right to be secure against unreasonable search and seizure.
Charter s. 7
86The Applicant argues that PC Pigott’s failure to immediately activate the ICCS, and his failure to ensure that his mobile microphone was operational, was inconsistent with York Regional Police Directives and infringed Mr. Marong’s right to a fair trial because he was thereby denied access to important evidence.
87I have already commented on PC Pigott’s failure to activate the ICCS within 30 seconds of the alleged HTA offence (see para. 75). His failure to activate the ICCS earlier than he did was not a violation of the YRP Directives. I also accept PC Pigott’s evidence that he did not know that his mobile microphone was not recording.
88I agree with the conclusion of Henschel J. in Moulton, where she stated, at para. 158:
There is no constitutional or common law requirement for the police to record their interactions with individuals. A court may, in appropriate circumstances, draw an adverse inference from the failure of an officer to record an interaction where recording equipment is available.
89In this regard, recordings are like officer’s notes. While police officers have an obligation to take accurate notes during an investigation, “there is no law…that an officer must record everything he or she did or saw in their notebook to comply with the Crown’s disclosure obligation”: R. v. Brown, 2014 ONSC 1383, para. 25, per Durno J. The absence of relevant information in an officer’s notes is a factor that the court may take into consideration in assessing credibility and reliability of the officer’s testimony, but does not, in and of itself, amount to a Charter violation. See also: R. v. Salvati, 2020 ONSC 5864, para. 72; R. v. Dougherty, 2018 ONCJ 633, paras. 91–93.
90I also find that police directives or other internal instructions or policies do not have constitutional status, such that the failure of a police officer to follow an internal directive would amount to a violation of Charter s. 7. As the Supreme Court of Canada has stated, the “principles of fundamental justice lie in ‘the basic tenets of our legal system. They do not lie in the realm of general public policy’”: R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, para. 112. And at para. 113:
[F]or a rule or principle to constitute a principle of fundamental justice for the purposes of s. 7, it must be a legal principle about which there is significant societal consensus that it is fundamental to the way in which the legal system ought fairly to operate, and it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person.
91Police directives may qualify as “best practices” for a particular police force, but they are not enshrined as “principles of fundamental justice” simply by virtue of being part of a directive or other internal police procedure.
92Again, I adopt the following statement of Henschel J. in Moulton, at para. 165:
A policy directive that recommends or requires officers to utilize an ICCS to record interactions is an internal policy, it is not a statutory obligation, and it does not elevate the creation of an ICCS audio/video recording to a constitutionally protected right.
93In conclusion, I find that there was no violation of the Applicant’s rights under Charter s. 7.
Charter s. 24(2)
94Having concluded that the Applicant’s rights under Charter ss. 8 and 9 were infringed, I must consider whether the evidence obtained as a result of the arbitrary detention and unreasonable search should be excluded under s. 24(2). There is no dispute that, absent those violations, the physical evidence at issue would not have been obtained. The obtaining of the physical evidence is thus causally, contextually, and temporally related to the breaches. The ultimate issue is whether the admission of this evidence – the firearm and the cocaine – would bring the administration of justice into disrepute.
95There are three lines of inquiry in deciding whether the evidence seized should be excluded under s. 24(2) of the Charter. These are: 1) the seriousness of the Charter-infringing state conduct, 2) the impact of the breach on the Charter-protected interests of the accused, and 3) society’s interest in the adjudication of the case on its merits: R. v. Grant, 2009 SCC 32.
96In R. v. McGuffie, 2016 ONCA 365, paras. 62–63, the Court of Appeal summarized the post-Grant paradigm as follows:
The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society’s interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case.
In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence. [Citations omitted].
Seriousness of the Charter-Infringing Conduct
97The seriousness of the breach is evaluated on a continuum. At one end of the spectrum is “deliberate police conduct in violation of established Charter standards”, which would support an exclusion of the evidence. At the other end of the spectrum are “inadvertent or minor violations of the Charter” such as a “mistaken view” that is erroneous or understandable” due to lack of guidance from the courts. See Grant, supra at paras. 74–75 and 133.
98Based on my analysis of PC Pigott’s reliability as a witness, I conclude that the Charter infringing conduct in this case was deliberate and serious. I have rejected the reasons given for the HTA stop and the CCA search. Given this analysis, I must conclude that these infringements were not the result of an innocent mistake or misapprehension of lawful authority, but were an abuse of that authority. The courts cannot condone police officers giving misleading evidence.
99The Supreme Court of Canada has held that the Court must take into account the credibility/reliability of the police officer’s in-court testimony when assessing this first factor. The Court stated, in R. v. Harrison, 2009 SCC 34, para. 26:
I note that the trial judge found the officer’s in-court testimony to be misleading. While not part of the Charter breach itself, this is properly a factor to consider as part of the first inquiry under the s. 24(2) analysis given the need for a court to dissociate itself from such behaviour. As Cronk J.A. observed, “the integrity of the judicial system and the truth‑seeking function of the courts lie at the heart of the admissibility inquiry envisaged under s. 24(2) of the Charter. Few actions more directly undermine both of these goals than misleading testimony in court from persons in authority” (para. 160).
100In addition, I have found a breach of both Charter s. 9 and Charter s. 8.
101In combination, these two Charter breaches are at the serious end of the spectrum.
The Impact on the Applicant’s Charter-Protected Interest
102In this case there was a direct causal connection between the violation of the Applicant’s rights under ss. 8 and 9 of the Charter and the evidence sought to be excluded. To admit the evidence would be to condone successive breaches.
103The impact on the Applicant’s Charter rights was significant, and the second step of the Grant analysis favours exclusion of the seized evidence: R. v. Atkinson, 2019 ONSC 3717, para. 245.
Society’s Interest
104The evidence obtained is real and reliable evidence. Its exclusion would end the Crown’s case. As Jamal J.A. (as he then was) stated in R. v. Griffith, 2021 ONCA 302, para. 77: “Here, the gun and drugs are reliable evidence and essential to the Crown’s case for what are extremely serious offences. The admission of this evidence would better serve the truth-seeking function of the criminal trial process than its exclusion.”
105See also, R. v. Bzezi, 2022 ONCA 184, paras. 9, 26, where the Court of Appeal upheld the trial judge’s determination that “society has a high interest in protection against and prosecution of cases involving firearms”.
Balancing of Factors
106The first two factors strongly support exclusion of the evidence. The third supports inclusion. After balancing these factors in accordance with the Court of Appeal’s direction in McGuffie, I must reluctantly conclude that the admission of the drugs and gun in this case would bring the administration of justice into disrepute. As the Court of Appeal stated in Gonzales, at para. 167: “society’s immediate interest in an adjudication of the merits of this particular case must give way to the more important long-term interests served by its exclusion in this case”.
Conclusion – Charter s. 24(2)
107The Application is granted, and the evidence is excluded pursuant to s. 24(2).
Justice R.E. Charney
Released: June 9, 2025