Court Information

Court: Ontario Court of Justice

Date: January 26, 2017

Court File No.: Brampton 15-8570

Between:

Her Majesty the Queen

— and —

Holly Desrosiers

Before: Justice J. W. Bovard

Heard on: March 3, 4; May 31; June 15; August 26, 2016

Reasons for Judgment released on: January 26, 2017

Counsel

Ms. V. Rivers — counsel for the Crown

Mr. J. Razaqpur — counsel for the defendant Holly Desrosiers

Judgment

Bovard J.:

Introduction

[1] These are the court's reasons for judgment after the trial of Holly Desrosiers on a charge of simple possession of crack cocaine.

Issues

[2] The defence alleges that the police breached Ms. Desrosiers' rights under sections 8, 9, and 10(b) of the Charter and that the evidence should be excluded under s. 24(2) of the Charter. The defence bears the onus of proof on a balance of probabilities with regard to these Charter issues.

[3] The defence contends that a statement that Ms. Desrosiers made to the police that the crack cocaine was hers was not given voluntarily.

[4] In addition, the defence argues that the Crown did not give proper notice to introduce the certificate of analyst.

[5] As always, the Crown has to prove all of the elements of the charge beyond a reasonable doubt. The Crown must also prove beyond a reasonable doubt that Ms. Desrosiers gave her statement voluntarily and that it gave proper notice of the certificate of analyst.

Procedure

[6] Counsel agreed to proceed in a blended fashion regarding the Charter applications, the voir dire on the voluntariness of Ms. Desrosiers's statement and on the trial proper. All of the police officers testified on these areas.

The Evidence

[7] On the day in question at approximately 7:43 p.m., Officers English, Gauvreau, and Sallows were in uniform in an unmarked police van. They were serving a subpoena on an unrelated matter at a building located at 430-440 McMurchy Avenue, Brampton.

[8] After serving the subpoena they were leaving the area. Officer Gauvreau was driving. Officer English saw a car that he is familiar with from his dealings with the registered owner, Stuart Mitchel, regarding driving suspensions. It is a distinctive car. He had never seen one like it in Brampton. It was parked in the parking lot of the building.

[9] Officer English noticed that Mr. Mitchel was not driving the car on this day. He pointed the car out to his fellow officers. He said "When I saw the car I think I pointed out the car in like, that's…so-and-so's car. And then that's when she [Amanda Smith] exited the car". The Crown asked "Okay. And then your police van turned around"? Officer English replied "Yeah". Officer English said that as soon as he saw the car it was a "split second decision" to turn into the parking lot where it was parked.

[10] He knew Amanda Smith because she is a well-known crack cocaine user in Brampton. He has known her for "quite a while". He has arrested her before and has had numerous dealings with her. Stuart Mitchel is her boyfriend. Officer English does not know him to be a drug dealer. Ms. Smith walked across the parking lot. She did not make eye contact with Officer English. As the officers turned around to go talk to her he saw her get into a silver van. This means that even before Ms. Smith got into the silver van, the police had decided to approach her and talk to her.

[11] As the officers were on their way back into the parking lot, the silver van passed them on the way out of the parking lot. Officer English saw three occupants in the van. Ms. Smith was in the back seat behind the passenger. He said "I just recall as we were passing I could still see through the front windshield and I observed Amanda Smith recline the seat. So she lowered the seat that she was seated in…I recall seeing the seat drop back as she almost like, she's trying to lie down." He agreed, however, that "just because somebody doesn't want to talk to you they also have the right just to not want to talk to you..."

[12] In cross-examination, he seemed to give a different account of when Amanda Smith reclined the seat. He seemed to say that Ms. Smith reclined the seat as soon as she got into the silver van. The defence was questioning him with regard to when he saw her walk across the parking lot and get into the silver van. The exchange was as follows:

Q. Okay. And then she gets into the vehicle, the silver vehicle, the Caravan. Was this one of those vans -- do you recall whether or not there's doors on both sides of it…?

A. Yeah, on both sides, yeah…

Q. And did she get in on the driver's side or the passenger side"

A. …I believe she got in on the passenger side. That's where she was seated was behind the passenger.

Q. Okay. Then you mentioned that she reclined the chair, is that right?

A. That's correct.

Q. Okay. Now at the point that she does that you're still in your van, right?

A. That's correct.

Q. Okay. And all of your officers, the three of you, you're all in the van at this point, right?

A. That's correct, yes.

[13] Officer English said that:

"So we're aware Amanda's in the vehicle. The fact that she got out of her, her boyfriend's vehicle to get into that and just the area, and then leaving the area our suspicions were that it's possibly related to drug activity just because we know that female so well. At this time I don't know who the front driver or passenger is. I just know that Amanda Smith is in the rear.

[14] Based on this, the officers followed the silver van when it left the parking lot. They caught up to it and executed a traffic stop because:

"We had some suspicions that there was some drug activity. It just seemed like really suspicious behaviour and just us knowing that female quite well it was almost like a meet. And we know her well as a drug user, and she's known to purchase crack on a daily basis".

[15] The Crown asked Officer English what was suspicious about "the behaviour". He responded that:

to my knowledge she doesn't live at that building, neither does the registered owner of that car, to be in that area…I believe it's a visitor parking lot that they are parked in…So that was the first part of the suspicion, the whole reason for being there. And then for her to exit and get into that van and the van immediately leaves. It's – just in my experience, when I see known drug users, and I've seen it many times particularly in the downtown core as well, when they get into a vehicle it's for a couple of reasons and usually that's the primary reason is, is drugs or to get money for drugs.

[16] After they pulled over the silver van Officer Gauvreau went to the driver's side and spoke to the driver, Mr. Campbell. Officers English and Sallows went to the passenger side where Ms. Desrosiers was seated. She rolled down the window. He did not know her.

[17] When Ms. Desrosiers rolled down the window Officer English detected the smell of marijuana coming from inside the van. In the console area, between the driver and Ms. Desrosiers, he saw an open package of Backwoods [cigar package] that he described as "like a rolling paper tobacco thing commonly used for marijuana usage in my experience".

[18] Officer English immediately seized the Backwoods package. He said that in his experience it is normally used to roll marijuana cigarettes. He also noticed "some tissue with a green leafy substance and I believed that to be marijuana, hence the smell of marijuana that was coming from inside the vehicle".

[19] He did not remember exactly, but he believes that the tissue was "sort of sticking out from it". Then he said "I don't recall if it was inside it or the outside, but I just remember seeing the green, like the green leaves of what I know to be and I believed to be marijuana at the time". He said that he saw the marijuana "In the same area, like the middle console area with…that package…" In cross-examination, he said that he could not remember if he saw the marijuana in the Backwoods package or resting on the package. I am not sure how he could have seen the marijuana if it was inside the package.

[20] The court asked Officer English what the significance of the tissue was. He said that "At the time when I saw the tissue I saw what I believed to be marijuana flakes and then along with the smell that I smelled from inside the vehicle that led to the arrest".

[21] As can be seen, after he described the marijuana as "a green leafy substance" and as "green leaves", Officer English referred to it as "marijuana flakes". Flakes are not leaves. The court asked him about this.

The Court: Okay. So, I thought you said before you saw some green leafy substance…

A. Yeah.

The Court: …is that what you mean?

A. On, yeah, on the tissue.

The Court: Marijuana flakes?

A. Yes, marijuana flakes, yeah.

[22] Later in his testimony he referred to "green leafy flakes". I do not think that I require expert evidence to conclude that a leaf is not a flake, and that a "leafy flake" is a contradiction in terms. But I decided to investigate this nomenclature further.

[23] The Oxford Online Dictionary defines "leafy" as "having many leaves or much foliage" and "resembling a leaf or leaves".

[24] The same dictionary defines "flake" as "A small, flat, very thin piece of something, typically one which has broken away or been peeled off from a larger piece".

[25] I find that these definitions support my conclusion that Officer English's evidence was contradictory with regard to what he says that he saw in the console of the sliver van.

[26] This causes me concern with regard to his credibility. I find that he did not explain satisfactorily why first he said that he saw marijuana "leaves" and later said that he saw marijuana "flakes".

[27] In addition, I can understand how marijuana leaves might give off an odour, but I am skeptical that flakes give off a smell. There is no evidence with regard to how many flakes there were. Officer English said that the marijuana was "amongst the tissue and tissue. So there's some flakes on the tissue but I think – I forget the amount of the grams. It was a small amount of marijuana". He also said that the marijuana was "loose in the tissue".

[28] Right after Officer English made his observations he asked Ms. Desrosiers to get out of the van and he arrested her for possession of marijuana. Officer Gauvreau arrested Mr. Campbell, the driver. Officer Sallows arrested Amanda Smith who was in the rear passenger seat.

[29] Officer English read Ms. Desrosiers her rights to counsel from his note book as soon as he arrested her. She said that she understood her rights. She did not want to speak to a lawyer.

[30] The officers called for assistance to transport the arrested parties. A female officer, Officer Drexler, attended. Officer English turned over Ms. Desrosiers to Officer Drexler for a search incident to the arrest.

[31] Officer English said that during his dealings with Ms. Desrosiers he did not threaten her or promise her anything. He said that he did not touch her or force her in any way (I assume aside from arresting her). She never asked him for food or drink.

[32] Officer English searched the silver van incident to the arrest. He did not find anything illegal.

[33] While still at the roadside Officer English instructed Officer Drexler to strip search Ms. Desrosiers at the police station because:

…given all the circumstances and particularly that Amanda Smith was in the vehicle we believed that there was…a high chance that there was some crack somewhere in the vehicle. I didn't find any in my search of the vehicle. So both the male and the female party, the accused here today and then the male co-accused, we believe that one of those parties was possibly—would have been in possession of some crack. And just based on my experience, crack, it is a common drug to be concealed in areas that are not searched roadside…Like, in underwear…buttocks cheeks, places like that where an officer is not normally going to conduct a search at roadside…This is where, generally where persons who sell crack that's generally in my experience that's where they conceal it.

[34] Officer English believed that the driver of the van was also strip searched.

[35] Officer Drexler said that she arrived on the scene with Officer Yong. Officer English told her to take custody of Ms. Desrosiers. She did so and performed a pat down search and put handcuffs on her. During the pat down search she found $335 in the pockets of her jeans. After this, she took her to 22 Division to strip search her "for any further drug paraphernalia that she would've had on her".

[36] The Crown asked her if it was her decision to strip search Ms. Desrosiers. Officer Drexler said "No, that's common procedure and P.C. English advised at the scene that he thought she had something further on her person".

[37] The court asked Officer Drexler if it was "common procedure to…do a strip-search on all prisoners". Officer Drexler said that "No, only when drugs are involved…when they're arrested for a drug offence". The Crown asked her if that was her training. Officer Drexler said "That's procedure, Peel Police procedure".

[38] Officer Drexler said that if a person is arrested for several offences, some of which include a drug offence it is "more than likely" that the person would be strip searched because of the drug charge. Any time a person is arrested for a drug offence the police strip search them.

[39] They have a written "directive that states that anybody being brought back for a controlled substance, that you believe that they have further substances on their person is immediately strip-searched, or it's left up to the officer in charge of the station to determine that factor, once being brought back to the station, on an offence for a controlled substance charge". Therefore, even had Officer English not told her to perfume a strip search on Ms. Desrosiers, she would have performed one pursuant to the directive.

[40] Officer Drexler took Ms. Desrosiers to 22 Division. Ms. Desrosiers did not request to speak to a lawyer on the way to the Division. There was no evidence that the officer in charge of the station directed that a strip search be done.

[41] Once at the division Officer Drexler asked Ms. Desrosiers if she had "anything else on her". The officer told her that she would have to take off her clothes. Ms. Desrosiers said that she had something in her "underpants". Officer Drexler took her to a room for a strip search.

[42] Officer Drexler described the room as a long narrow room where they have prisoner blankets, jumpsuits and shoes. There are no windows. There is no videotaping equipment in the room. There is a door that opens out to the booking area. Officer Drexler left the door open during the search. She said that "You never shut…a door with a prisoner". She said "the door can only see the wall, and then it's the long room where you go to the back of the room to conduct the search".

[43] She said that it is possible that someone could walk into the room and see what is happening, but they do not because they know that a strip search is in progress. She said that "So if they were searching a male I would never enter the room 'cause I'm not a male…But if I'm searching a female a male can't enter 'cause I'm searching a female".

[44] Before Officer Drexler started the search Ms. Desrosiers undid her pants and "immediately handed over the baggie with the pink hard rock substance. She handed it from her underpants". The officer did not require her to remove any clothing. But she could not say for sure if Ms. Desrosiers removed her panties.

[45] Ms. Desrosiers said that the drugs were hers. The court conducted a voir dire on this statement.

[46] Officer Drexler told her that she would be charged with possession for the purpose of trafficking. She read her rights to counsel to her again as well as the caution.

[47] Officer Yong arrived at the scene with Officer Drexler. They were there to assist the arresting officers with computer checks on the detained parties. He said that Officer Gauvreau told him to take Ms. Desrosiers to the station and have her strip searched. Officer Yong said that had Officer Gauvreau told him to simply put her in the cells he would not have arranged for Ms. Desrosiers to be strip searched. He did not mention the strip search directive that Officer Drexler testified about.

[48] Shortly afterwards, he and Officer Drexler took her to 22 Division. It was a two minute drive. Ms. Desrosiers did not say anything on the way.

[49] Officer Yong said that when they told Ms. Desrosiers that they were going to strip search her, she told them that she had drugs in her pants. They did not tell her that if she had anything in her possession she should tell them now because the judge would not like it if he or she found out that she had taken drugs into the cells. Officer Drexler took her into a private room. Officer Yong remained in the booking area.

[50] A short time later, Officer Drexler came out of the room with Ms. Desrosiers and told him that she had found drugs in Ms. Desrosiers' possession.

[51] Both officers said that Ms. Desrosiers was not intoxicated, nor did she express any health concerns. She was coherent. Officer Yong said that Ms. Desrosiers appeared a little confused and scared.

[52] Officer Yong said that neither he nor Officer Drexler threatened her, made any promises of leniency or offered her any inducements. Officer Yong did not use any force against Ms. Desrosiers. The only contact that he had with her was in assisting to put handcuffs on her.

[53] Officer Gauvreau generally agreed with Officer English concerning the background to how he, Officer English and Officer Sallows came into contact with the silver van in which Ms. Desrosiers was the passenger. He, too, said that Ms. Smith was a known crack user and although he did not know where she lived, he said that she is not normally found in this area. It is three or four kilometers from her usual haunts. He said that his suspicions were raised just by the fact that she was in this area "in-between two cars".

[54] Like Officer English, he said that he saw Ms. Smith recline her seat as they passed them. He said that he:

"observed [her] recline her chair back as we are driving by, slouching down in what I thought, appeared to be an attempt to hide herself from us because she does reckon, we deal with her in (sic) a regular basis, she knows that van. It's downtown all the time, and she recognizes me as well because I've dealt with her many times".

[55] Although he agreed that there was nothing distinctive about the police van, he was 99% sure that Ms. Smith recognized it.

[56] He added to Officer English's account of what occurred as they followed the van. He said that as they approached them he saw "the parties in the front shuffling around". He said that "It looked like the parties in the front seemed to be shuffling around". So we decided to stop the vehicle… In cross-examination, he specified that it was his decision to stop the van.

[57] Under further questioning by the Crown he said that they stopped the van because "we are in the area, this area is plagued with problems. It's been on a complaint zone". He said that when he saw Ms. Smith get into the van it immediately raised a suspicion in his mind. Her reclining in the back seat increased his suspicion. He said that:

So at that point we wanted to stop the vehicle to find out a, was she soliciting prostitution or was she involved in a drug transaction, just wanted to know what she was doing in that area and why she got in that van.

[58] When they pulled over the van Officer Gauvreau went to speak to the driver. As soon as the driver rolled down the window he smelled the odour of marijuana. He looked into the van and saw a "green leafy substance in a Kleenex that was inside a purple Backwoods, I believe it was, cigar package that was in the centre console between the passenger and the driver seat. Like between the two seats maybe at seat level. So I immediately advised him he was under arrest". He said that the marijuana was "in a butt form, so like crumbs and butts, like the way you normally obtain marijuana for smoking".

[59] He could not tell if the odour of marijuana that he smelled was fresh or burnt. I find it quite curious that he could not tell the difference between marijuana that is burnt and marijuana that is fresh. Especially since he said that:

Well I have dealt with many drug cases, handled marijuana and during our training in OPC we were, I believe I was either at the Ontario Police College or in Peel's house training. We were privy to smelling marijuana both burnt and not burnt.

[60] Moreover, he said that he has been involved in over 100 marijuana investigations. This causes me concern regarding his credibility about there having been marijuana out in the open in the console. Why, if this were the case could he not distinguish whether the odour that he said he smelled was of fresh or burnt marijuana?

[61] Officer Gauvreau said that they took the driver, Mr. Campbell, and Ms. Desrosiers back to the police station,

For the purpose of a further search. I know Mr. Campbell from previous dealings. I knew that he was involved in drug trafficking. I believe that what we observed was possibly the attempt of a transaction. I felt that he should be searched further which is common for somebody who's (sic) been convicted or accused of drug trafficking previously.

[62] After Officer Drexler searched Ms. Desrosiers, he and Officer English interviewed her. This was the first time that he spoke with Ms. Desrosiers.

[63] Officer Sallows said that he was in the front passenger seat of the police van. He gave the same background as the other officers as to why they decided to investigate what Ms. Smith was doing. He said that as they approached the silver van in the parking lot Ms. Smith saw them. I doubt that he knows this for sure. Perhaps he said this because he thinks that Ms. Smith "ducked back as if not to be seen by us. Meaning that she dips her head down and I lose sight of her as we passed". He interpreted this as a "clear attempt not to be seen".

[64] The police turned around and followed the silver van. When they caught up to it they conducted a "traffic stop". He admitted that there was no Highway Traffic Act infraction, but he calls it a traffic stop "because we're stopped on the road on the highway…"

[65] Officer Sallows said that they stopped the silver van "Due to the suspicions activity that we saw exhibited by Amanda Smith, her known involvement with police and being in that area, it's a high complaint area known for drug using and drug activity, lawless and public behaviour".

[66] Officer Sallows followed Officer Gauvreau to the driver's side of the silver van. Within seconds Officer Gauvreau told him that there was marijuana in the vehicle and that the occupants were arrestable for possession. Officer Sallows walked around the vehicle to the rear passenger side. He took Ms. Smith out of the back seat and arrested her. Officer Drexler arrived later to perform a pat down search of Ms. Smith. No narcotics were found on her so she was released without charge.

[67] Officer Sallows identified the Backwoods package. Officer English gave it to him. He took marijuana out of a Kleenex tissue and sent it to Health Canada for analysis. In total, the marijuana weighted 2.8 grams. He identified the certificate of analyst (exhibit 1) that indicates that the sample that he sent in tested as being marijuana.

[68] Officer Drexler gave him the crack cocaine that she seized from Ms. Desrosiers. It weighted 10.65 grams. He sent in a sample for testing. It tested as cocaine. The court made the certificate of analyst exhibit B subject to argument regarding proper notice of the Crown's intention to introduce it at trial.

[69] With regard to the strip searching policy, he said that they do not strip search everyone that is arrested for a drug offence.

[70] Ms. Desrosiers' evidence was that Mr. Campbell, who was driving the silver van, is her boyfriend. They were on their way to put down a deposit for a bedroom furniture set for their future apartment. The furniture store was at Steeles Avenue and Bramalea Road. She had approximately $1,100 cash in her pocket to pay for it. They were going to dinner at Spoonful first.

[71] But before they went to the restaurant Mr. Campbell had to make a stop to see a friend. They went to the parking lot and Ms. Smith got into their van. Ms. Desrosiers did not know her. After Ms. Smith got in the van they started to drive to the restaurant. I note that before she said that they were going to the furniture shop first and then to dinner. In cross-examination, she said that they were going to dinner first because she was very hungry because she had not eaten all day. She said that it would not take long to eat dinner, but she agreed that the furniture store might be closed by the time that they got there after dinner.

[72] Ms. Desrosiers did not see the police officers' van pass them when they pulled out of the parking lot. Within two minutes of their leaving the parking lot the police pulled them over.

[73] One officer went to Mr. Campbell's side of the car and the other two came to her side. They told Mr. Campbell to get out of the car. At the same time one or two of the other officers spoke to Ms. Smith. Ms. Desrosiers just sat in the front passenger seat for about 15 minutes until one of the officers came over to the vehicle and began searching it. She was "a thousand percent" certain that she remained in the car while the officer searched it. She remembered that the officer asked her to open the glove box because she was right in front of it.

[74] The officer searched her bag and one of the back seats first. Then he searched the front of the van. He opened the driver's seat and "started opening up certain things that moved in the car and then he found it [the Backwoods package] in the middle console". She did not believe that there was any sort of tissue or anything sticking out of the package.

[75] The Crown told her that earlier in her testimony she said that the first thing that the police found was the Backwoods package. Ms. Desrosiers explained that it was the "first thing that he had found that was probably something he wanted. He didn't find anything else that he wanted". Defence counsel asked her in re-examination whether she was confident about "the sequence of events in terms of the locating that (sic) Backwoods package". She said that "Yes, I believe. I mean from what I remember".

[76] She said that the directions on the Backwoods package are that as soon as you open it you must "fold it back twice" to close it. If you do not, the tobacco will dry out within an hour. Therefore, the package that the officer found was rolled up in this fashion. She said that "it always is rolled up like that, or else they would go to waste".

[77] She said that no one had smoked anything in the car because it was a rental car and it was not allowed. She did not smell any marijuana in the car.

[78] Ms. Desrosiers said that the police had not told her what they were doing. Officer Drexler arrived and told her to get out of the van. The officer searched her and found "I believe eleven hundred" in her pocket. She also told her to take off her shoes. She searched her bag, too. No one had yet informed Ms. Desrosiers regarding what was going on so she was very scared. After Officer Drexler searched her she put handcuffs on her and they waited six to seven minutes for a police car to come to take her to the police station.

[79] Ms. Desrosiers did not recall Officer Drexler telling her that she was under arrest. However, she remembered one of the other officers having told her something about a lawyer. She did not remember when the police read her rights to her.

[80] They did not say anything to her about a lawyer until she was in the car on the way to the police station. Ms. Desrosiers asked the officers whether she needed a lawyer because she had never been in this kind of situation. She said that Officer Drexler told her that she would not suggest getting a lawyer because a lawyer would not help her.

[81] When they arrived at the police station the kept telling her that they were going to strip search her. Ms. Desrosiers was terrified. The police told her that Mr. Campbell was a known drug dealer, which she did not know. They told her that they believed that she had "his belongings" on her. One of the officers told her that she could avoid going to jail by telling them that she had "it" on her and "its (sic) just Joseph, just give it to me now and just let us know".

[82] Ms. Desrosiers described the strip search as follows. Officer Drexler took her into a long thin room that looked like a hallway. Ms. Desrosiers sat behind a table. Officer Drexler was facing her. Officer Drexler told her to take off her clothes. Ms. Desrosiers could not recall how Officer Drexler wanted her to take off her clothes. She did not remember exactly what Officer Drexler said to her, but she recollected that she started by taking off her sweater. She had on a tee shirt underneath.

[83] Ms. Desrosiers was not sure if there was a door to the room, but if there was Officer Drexler did not close it. She felt quite intimidated by this because there were four "guys on the other side" and she could hear them talking and laughing. She said that she could not see them "but I might as well have, the way they were really close, like, I could just hear everything they were saying". She felt that if they walked by they would be able to see her.

[84] Next, Ms. Desrosiers took off her pants. When she did this she took out the crack cocaine from inside her panties and handed it to Officer Drexler.

[85] After she took off her pants, she took off her tee shirt. As she took off her clothes she placed each item on the seat of a plastic chair. Officer Drexler picked up each item and shook it to see if there was anything in it. Then she put it on the back of the chair.

[86] At this point Ms. Desrosiers was wearing only her bra, panties and socks. She told Officer Drexler that she was on her period so she did not want to take off any more clothing. Ms. Desrosiers slid down her panties to just above her knees. She did not take them completely off.

[87] Next, Ms. Desrosiers unclipped her bra. Officer Drexler told her to put it back on because she could see that she did not have anything hidden in it. Then Officer Drexler told her to put on her clothes. Ms. Desrosiers said that the strip search made her feel "useless,…like I wasn't worth anything. I felt like they stripped me of everything. I was terrified knowing that there's a whole bunch of guys on the other side of the room that could've seen me".

[88] After she put on her clothes she went into the other room. Several officers were telling her to say that the cocaine belonged to Mr. Campbell and they would let her go.

[89] Ms. Desrosiers testified that Mr. Campbell put the crack cocaine in her pants when the police pulled them over. She did not know "exactly what it was". But she "suspected it was something that I shouldn't have had on me but I didn't know exactly what it was. I could assume it was marijuana or something along those lines, I didn't know it was as serious as it actually was".

[90] Ms. Desrosiers said that "When we were getting pulled over, he suddenly just handed it to me and said put it in your pants and at that point I didn't exactly know what to do". She took it and put it in her pants. It all happened quickly. Within two seconds it was in her pants. She agreed to do this because she did not want Mr. Campbell to get into trouble. She thought that if he went to jail he would be incarcerated for a longer period.

[91] Two male officers interviewed her after the strip search. She was terrified because she was alone with them and there was no female officer in sight. She did not directly admit that the cocaine was hers. She just told them that it did not belong to Mr. Campbell. She was afraid that if he went to jail his sickle cell anemia would flair up. But eventually she told the police that the cocaine was hers. She said that was lying, though. Had she known her "rights" she would not have spoken to the police.

[92] While awaiting her trial on this matter Ms. Desrosiers has been subject to a bail condition, which prohibits her from contacting Mr. Campbell. She has complied with this condition. They have not discussed her or his testimony for this trial.

[93] The Crown asked Ms. Desrosiers "It all happened in quite a blur, you'd agree with me"? Ms. Desrosiers agreed. She said that she was very nervous and scared. Her memory was not very clear. She was "freaking out" and "in a bit of a panic". She did not remember everything and her memory was "potentially" not chronological. She remembered some things but not others. However, she said that she remembered some things completely "just because of the way they went down". She was very confident about her memory of the timing of when Mr. Campbell and she were taken out of the van.

[94] Although Ms. Desrosiers seemed to say that she wants to breakup with Mr. Campbell and have closure, he was under the impression that she was still his girlfriend. They have not spoken since they were charged. He said that he has remained loyal to her during this time. He tried to speak to her but she did not respond because pursuant to her bail she is not allowed to have contact with him.

[95] He confirmed Ms. Desrosiers's evidence that they were on their way to dinner and to go get a bedroom set. But he said that it was for his basement apartment. He did not remember speaking with Ms. Desrosiers about moving in together. However, he said that she could have been under the impression that he would have agreed to move in together because he loves her. This appears to be a classic case of a couple not communicating very effectively.

[96] He said that Ms. Desrosiers had the money for the furniture. It was approximately $900. He had already paid about $300 towards the purchase and they were going to pay for the rest of it.

[97] Mr. Campbell agreed that he traffics in crack cocaine and in marijuana. Ms. Desrosiers knew that he sold marijuana but she did not know that he sold crack cocaine. He picked up Ms. Smith because she called him to buy $60 worth of crack cocaine.

[98] He said that when the police pulled him over they came to his van and started yelling and screaming at him to get out. They were pretty aggressive. They did not ask for his driving documents. He did not understand what was going on. He got out and they gave him a quick pat down search. Then they searched the van. Ms. Desrosiers and Ms. Smith were in the van during the search, which lasted about 15 minutes.

[99] Mr. Campbell said the police told him that they were searching for a weapon. One of them [not Officer English] pointed a stun gun at him. He said that it was black and yellow. The police denied that they pointed a stun gun or a Taser at Mr. Campbell.

[100] Mr. Campbell testified that after five to seven minutes, half way through the search of the van, they arrested him for possession of marijuana that they found in the Backwoods package. He said that it was his marijuana. The package was closed because "it says seal it three times and it keeps in the freshness, you fold over the flap and you keep folding it". That is how he sealed it. Otherwise his cigars would dry out.

[101] There is no way that one could smell the marijuana through the package. He always stores his Backwoods "really neat". He always puts his marijuana inside the Backwoods package so that when he folds it shut it keeps everything fresh.

[102] He did not have any tissue paper with marijuana on it sticking out of the package. He said that made no sense. He said that "The fluff will get all over the weed, that's weird". He agreed that if anything there may have been a toilet paper roll in the console, but his marijuana would never be inside of toilet paper or any paper. There was no Kleenex in the console.

[103] Mr. Campbell testified that when he saw the police lights behind them he forced the crack cocaine into Ms. Desrosiers's pants. He did not think that they would search her. He gave crack cocaine to Ms. Smith, too, but the police let her go.

[104] Mr. Campbell confirmed that he has sickle cell anemia. He takes medication for it. He also confirmed that he pleaded guilty to possession of the marijuana that the police found in the van. In addition, he has other convictions on his record but they do not involve offences of dishonesty, except perhaps one could characterize his convictions for breach of probation as such.

[105] He did not discuss his testimony with Ms. Desrosiers.

[106] That was all of the evidence.

Analysis

Was the Notice to Introduce the Certificate of Analyst Sufficient?

[107] The issue is whether the Crown provided sufficient notice of its intention to introduce as evidence the certificate of analyst with regard to the crack cocaine that Ms. Desrosiers had in her pants.

[108] Section 45 of the Controlled Drugs and Substances Act states that:

45 (1) An inspector or peace officer may submit to an analyst for analysis or examination any substance or sample thereof taken by the inspector or peace officer.

(2) An analyst who has made an analysis or examination under subsection (1) may prepare a certificate or report stating that the analyst has analysed or examined a substance or a sample thereof and setting out the results of the analysis or examination.

[109] Section 51 (1) of the CDSA states that a certificate of analyst prepared under s. 45 (2) is in the absence of evidence to the contrary proof of the statements set out in the certificate.

[110] Section 51 (3) provides that "Unless the court otherwise orders, no certificate…shall be received in evidence under subsection (1) unless the party intending to produce it has, before its production at trial, given to the party against whom it is intended to be produced reasonable notice of that intention, together with a copy of the certificate or report".

[111] The defence states that "There is no dispute that the notice that was provided to the court and made an exhibit was provided on the date suggested in the notice, and the officer testified to that". The officer faxed the notice to defence counsel on February 4, 2015. He attached two different certificates of analyst: one with regard to marijuana and one with regard to cocaine.

[112] The notice is exhibit 2. It was sent by fax to "J. Razaqpur", who is defence counsel in this case. It is "To: Holly Desrosiers". It says that she is charged on July 14, 2015 in Brampton with "unlawfully Possession of A Controlled Substance 4 (1) for the Purpose of Trafficking 5 (2) contrary to the provisions of section 4 subsection 1 of the Controlled Drugs and Substances Act You are hereby notified that it is intended to produce in evidence against you certificate(s) of analysis number(s) 15 11626 T______5 11626 T as proof of the statements contained therein. Served with copy (copies) of the above noted certificate(s) of analysis this 4 th day of February 2016 by English (name of officer) Constable (rank) 3379 (number) 22 Division".

[113] The defence argues that the notice does not state the type of drug that Ms. Desrosiers is charged with possessing. In addition, the certificates to which the notice refers have the same number. But the certificate of analyst that deals with cocaine is numbered as 15 11662 T. The notice does not refer to this certificate. The notice refers to the certificate of analyst that deals with the marijuana that the police found in the van, not with the crack cocaine that Ms. Desrosiers had in her pants. She is not on trial for the marijuana charge, just the crack cocaine charge.

[114] In Drug Offences in Canada (4th), the authors cite R. v. Goerz and other cases for the proposition that "one of the reasons for reasonable notice is to let an accused know that a certificate (rather than the viva voce evidence of the analyst) will be used at trial, and thus to afford an opportunity to meet it:"

[115] In R. v. Henri, the court stated that "the notice must be precise and accurate and reasonably certain so that an accused person is alerted with certainty as to the procedure to be invoked in a timely manner".

[116] In R. v. Morrison La Forest J.A. (as he then was) stated:

the notice required by s. 9(3) [now s. 51 (3)] must be such as to clearly bring home to the accused that a certificate of an analyst will be employed in establishing the nature of the substance in respect of which he is charged with an offence under the Act. That notice must be reasonable both as to time and substance; it must not be misleading or confusing or otherwise prejudicial to the accused: see R. v. Henri (1973) , 9 C.C.C.(2d) 52 .

… The utility of the section in simplifying the production of evidence and thereby reducing the time and cost of criminal prosecutions ought not to be diluted by an insistence on perfection. The essential question is whether the notice was reasonable under the circumstances of the particular case. What is required is that it clearly and precisely brings home to the accused that the certificate will be used in relation to the particular offence with which the accused is charged under the Act .

[117] The Crown submitted that the case started as a preliminary inquiry and then then counsel agreed to proceed with a trial instead. The Crown said that it was because "Peel Regional Police wouldn't support the charges laid, the 5 (2) the possession for the purpose of cocaine, so we proceeded as a simple possession of cocaine".

[118] The Crown adduced evidence through Officer English that on February 4, 2016 he sent by fax to defence counsel the notice of intention to produce the certificates and the two certificates. One dealt with the marijuana found in the van and the other with the crack cocaine found in Ms. Desrosiers's pants.

[119] The Crown argues further that it was abundantly clear by adducing this evidence that the Crown was relying on the certificate of analyst regarding the crack cocaine. After the Crown adduced this evidence the trial continued for four more days spread out over approximately three months. Therefore, the defence had ample notice that the Crown intended to rely on the certificate of analyst regarding the crack cocaine.

Analysis

[120] The defence is correct that the notice in the case at bar does not refer to a certificate of analyst with respect to the drug for which the accused is being tried. It refers to a drug for which the accused was arrested, but is not being tried. If this were a one-day trial, based on the above jurisprudence and on simple logic, I would find that the fax that Officer English sent to the defence did not constitute reasonable notice of the Crown's intention to rely on the certificate of analyst regarding the crack cocaine.

[121] However, this was not a one day trial; it was a four day trial spread out over approximately three months. As pointed out above, Morrison held that " The essential question is whether the notice was reasonable under the circumstances of the particular case". I find that in the circumstances of the case at bar, the defence had reasonable notice of the Crown's intention to rely on the certificate of analyst regarding the crack cocaine as of the first day of trial.

[122] Even though notice on the day of trial is not usually reasonable notice: R. v. David; R. v. Lu., the purpose of the notice is to alert the defence that the Crown is going to rely on the certificate during the trial so that the defence will have sufficient time to decide what to do about it. For example, the defence may want to make an application for an order that the analyst attend for cross-examination pursuant to s. 51 (2) CDSA .

[123] As indicated in Morrison , " The utility of the section in simplifying the production of evidence and thereby reducing the time and cost of criminal prosecutions ought not to be diluted by an insistence on perfection". And "What is required is that [the notice] clearly and precisely brings home to the accused that the certificate will be used in relation to the particular offence with which the accused is charged under the Act".

[124] Although the Crown mishandled the giving of notice, I find that they corrected their error by giving notice on the first day of the trial. But, again, I stress that had this been a one day trial that would not have corrected their error. But since the trial continued for four more days spread out over three months the defence had plenty of time to digest the fact that the Crown was going to rely on the certificate of analyst regarding the crack cocaine and to determine how it was going to respond to that.

[125] Therefore, I find that in the circumstances of this case the Crown gave the defence reasonable notice that it was going to rely on the certificate of analyst regarding the crack cocaine.

Was Ms. Desrosiers's Statement to Officer Drexler Voluntary?

[126] When Ms. Desrosiers took out the crack cocaine from her pants she told Officer Drexler that it was hers. The defence challenged the voluntariness of this statement. After considering all of the evidence and the circumstances I am satisfied beyond a reasonable doubt that the statement was voluntary. Ms. Desrosiers testified that she deliberately lied to protect her boyfriend. The police did nothing untoward to compel her to give this statement. Consequently, it is admitted into evidence subject to my findings on the Charter application.

Did the Police Breach Ms. Desrosiers' Rights Under s. 9 of the Charter?

When Was Ms. Desrosiers Detained?

I find that the police detained Ms. Desrosiers when they pulled over the van in which she was a passenger.

Was the Detention Contrary to s. 9 of the Charter?

[127] The Charter states in s. 9 that "Everyone has the right not to be arbitrarily detained or imprisoned".

[128] Section 216 of the Highway Traffic Act gives the police the power to stop motor vehicles.

216. (1) 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.

[129] Brown v. Durham (Regional Municipality) Police Force was a case in which the accused were stopped at police check points. The court stated that " In determining whether that detention was arbitrary, it is helpful to consider first whether the detention was authorized by law. While under the jurisprudence from this and other provinces, not all unlawful detentions are necessarily arbitrary, the absence of lawful authority for a detention is at least strongly suggestive of arbitrariness…"

[130] Concerning the authority that section 216(1) gives to the police, the court held that the section "authorizes the stopping of vehicles for what may be broadly described as highway regulation and safety purposes. In describing the scope of this section's predecessor…Cory J., in R. v. Ladouceur , [1990] 1 S.C.R. 1257 said, at p. 1287 :

... Officers can stop persons only for legal reasons, in this case reasons related to driving a car such as checking the driver's licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle. Once stopped the only questions that may justifiably be asked are those related to driving offences. Any further, more intrusive procedures could only be undertaken based upon reasonable and probable grounds. .... [Emphasis added.]

[131] The court further expanded its analysis of police powers under s. 216 HTA as follows:

In R. v. Simpson , supra, this court after referring to Ladouceur and related cases, said, at p. 492:

... the "check stop" cases decide only that stops made for the purpose of enforcing driving-related laws and promoting the safe use of motor vehicles are authorized by s. 216(1) of the Highway Traffic Act, even where those stops are random . These cases do not declare that all stops which assist the police in the performance of any of their duties are authorized by s. 216(1) of the Highway Traffic Act. [Emphasis added (by C.A.).]

[132] The court stated that "The detention authorized by s. 216(1) of the HTA is circumscribed by its purpose. The detention is limited to the roadside and must be brief, unless other grounds are established for a further detention...inquiries directed at matters not relevant to highway safety concerns are not authorized by s. 216(1) of the HTA:" It added that the police may "make a visual examination of the interior to ensure their own safety in the course of the detention:

[133] The court stated that if the detention was "a ruse used by the police to justify the stopping of the appellants, their friends and associates...s. 216(1) of the HTA could provide no lawful authority for the stops and detentions: R. v. Dedman , [1985] 2 S.C.R. 2 at 31 ; R. v. Zammit, (1993) , 13 O.R. (3d) 76 (C.A.) ".

[134] In R. v. Pinto, Justice Hill said that " A traffic stop detention may not…be a ruse or gimmick for general criminal investigatory work: Mellenthin v. The Queen (1992) , 76 C.C.C. (3d) 481 (S.C.C.) at 486-8 ".

[135] Pinto holds that "Occupants of a motor vehicle stopped for a highway traffic violation are detained from a constitutional perspective".

[136] In the case at bar, the officers testified that they decided to pull over the silver van in which Ms. Desrosiers was a passenger because they were suspicious that illegal drug activity was occurring.

[137] Officer English said that Ms. Smith got out of a car parked in a parking lot. He is familiar with the car from his dealings with the registered owner regarding driving suspensions, not drug offences.

[138] Officers English and Sallow said that when they passed the van as it was leaving the parking lot they saw Ms. Smith recline in the back seat. They thought that she was trying to avoid detection by them. Of course, this is a very subjective assessment. If she reclined, it could have easily been for other reasons. In any case, she has the right not to talk to them if she does not want to. They testified that they often talk to her on the street. If she reclined in the back seat on this day maybe she just did not want to talk to them. If a citizen does not want to speak to a police officer he or she is not required to do so. It does not necessarily mean that the citizen is engaged in unlawful activity.

[139] The officers based their suspicion of illegal activity solely on seeing Ms. Smith, a known prostitute and user of cocaine, get out of a car in a parking lot and enter a van. They said that they do not usually see Ms. Smith in this area of town. Her usual neighbourhood is approximately four kilometers away. But that is of no moment. There is no evidence that Ms. Smith was not allowed to be in this area. Persons in our society have the constitutional right to move around from place to place.

[140] The police had nothing but suspicions that illegal drug activity was taking place in the silver van. No one had reported any crime, nor had they seen anything that would give rise to a reasonable, objectively supported belief that a crime was being committed.

[141] Officer English testified that:

The fact that she got out of her, her boyfriend's vehicle to get into that and just the area, and then leaving the area our suspicions were that it's possibly related to drug activity just because we know that female so well. At this time I don't know who the front driver or passenger is. I just know that Amanda Smith is in the rear. [Emphasis added]

[142] Officer English said that what made Ms. Smith's behaviour suspicious was that neither she nor the owner of the car that she got out of lived in the area. They were parked in the visitor's parking lot. Then there was the fact that she got out of the car and into the van, which left immediately.

[143] The officer said that "just in my experience, when I see known drug users, and I've seen it many times particularly in the downtown core as well, when they get into a vehicle it's for a couple of reasons and usually that's the primary reason is, is drugs or to get money for drugs".

[144] I would point out that they were not in the downtown core. In addition, it seems that the officer is painting with too broad a brush. It cannot be that every time a drug user gets into a car it is for the purpose of illegal drug activity. And I note that even if someone is getting into a car "to get money for drugs" it is not a crime to do that.

[145] As noted above, Officer Gauvreau generally agreed with Officer English concerning the background to how he, Officer English and Officer Sallows came into contact with the silver van in which Ms. Desrosiers was the passenger. He said that his suspicions were raised just by the fact that she [Ms. Smith] was in this area "in-between two cars". That is a pretty thin basis for suspecting someone of illegal behaviour.

[146] Officer Gauvreau said that there was nothing distinctive about the police van but he was 99% sure that Ms. Smith recognized it. He did not give any evidence on which to base such an assumption.

[147] Officer Gauvreau said that as they approached the silver van he saw "the parties in the front shuffling around". It looked like the parties in the front seemed to be shuffling around". So we decided to stop the vehicle… It was his decision to stop the van.

[148] It is curious that Officer Sallows, who was seated in the front passenger seat, did not testify that he, too, saw this shuffling. He had just as good an opportunity to see it as did Officer Gauvreau.

[149] Officer Gauvreau also said that they stopped the silver van because the area was "plagued with problems". His suspicions were raised when Ms. Smith got into the silver van. Her reclining increased his suspicion. It is quite revelatory of the officers' intentions in stopping the silver van that Officer Gauvreau admitted that:

we wanted to stop the vehicle to find out a, was she soliciting prostitution or was she involved in a drug transaction, just wanted to know what she was doing in that area and why she got in that van.

[150] This shows that the police were embarking on a fishing expedition.

[151] Officer Sallows said that as they approached the silver van in the parking lot Ms. Smith saw them. I doubt that he knows this for sure. Perhaps he said this because he thinks that Ms. Smith "ducked back as if not to be seen by us. Meaning that she dips her head down and I lose sight of her as we passed". He interpreted this as a "clear attempt not to be seen". I think that the officer's testimony about this is rife with flimsy assumptions.

[152] There is no evidence that Ms. Smith saw the police. There is just the officers' suspicion that she did, which is based on what they say was her maneuver to avoid detection. However, I am not persuaded that Ms. Smith saw the officers and tried to duck out of sight. The reason for this is that I find that the tenor of all three officers' evidence is that they were looking for reasons to stop the silver van just because they wanted to know what the occupants were doing in the vehicle; not because there were objectively verifiable grounds on which one could reasonably suspect illegal activity.

[153] I find further support for these conclusions in that Officer Sallows testified that although there was no Highway Traffic Act infraction, they executed a "traffic stop". He called it a traffic stop "because we're stopped on the road on the highway…"

[154] Officer Sallows said that they stopped the silver van "Due to the suspicious activity that we saw exhibited by Amanda Smith". I find that Ms. Smith did not do anything that could objectively raise a reasonable suspicion that she was involved in illegal activities.

[155] Officer Sallows also said that they stopped the silver van because of Ms. Smith's "known involvement with police and being in that area, it's a high complaint area known for drug using and drug activity, lawless and public behaviour". I grant that this could raise a suspicion that something illegal could be occurring, but without more to support the suspicion it is not enough to justify an investigative detention.

[156] I find that the evidence shows that the officers merely suspected that possibly illegal drug activity was taking place in the van. I find that this did not rise above the level of a hunch.

[157] In R. v. Mann the court spoke of the requirements for an investigative detention. They cited R. v Simpson with approval saying that "…the Court of Appeal for Ontario held that articulable cause was not sustained merely by the officer's hunch based on intuition gained by experience".

[158] The court stated further that "The power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest."

[159] I find that the officers detained all of the occupants of the silver van, which included Ms. Desrosiers, in order to search for evidence of illegal drug activity that they merely had a hunch was occurring. Therefore, they breached Ms. Desrosiers' rights under s.9 of the Charter by detaining her arbitrarily.

Did the Police Breach Ms. Desrosiers' Rights Under s. 8 of the Charter?

[160] The s. 8 issue has two aspects: (1) the search of the silver van and (2) the strip search. I will discuss the search of the van first.

The Search of the Silver Van

[161] Section 8 of the Charter states that "Everyone has the right to be secure against unreasonable search and seizure".

(a) Did Ms. Desrosiers Have a Reasonable Expectation of Privacy in the Silver Van?

[162] In the circumstances of this case, the first question that must be answered regarding a potential breach of Ms. Desrosiers' rights under s. 8 of the Charter is whether she had a reasonable expectation of privacy in the silver van.

[163] The Supreme Court of Canada discussed this issue in R. v. Belnavis.

The approach outlined in Edwards , [1996] 1 S.C.R. 128 ] makes it clear that the question as to whether a passenger will have a reasonable expectation of privacy in a vehicle will depend upon the totality of the circumstances. All of the relevant facts surrounding a passenger's presence in the vehicle will have to be considered in order to determine whether the passenger had a reasonable expectation of privacy.

[164] Belnavis mentioned certain factors that are important in making this determination.

1. The passenger's connection to the vehicle;
   • a. Did the passenger own the vehicle?
2. Did the passenger have any control over the vehicle?
3. Had the passenger used the vehicle before?
4. Did the passenger have "any relationship with the owner or the driver which would establish some special access to or privilege in regard to the vehicle"?
5. Could the passenger control access to the vehicle?
6. Did the passenger have a subjective expectation of privacy in the vehicle?

[165] Belnavis pointed out that "there may well be other situations in which a passenger could establish a reasonable expectation of privacy in a vehicle…such as the relationship between the owner and the passenger, or the terms on which the passenger came to be a passenger…"

[166] The court stated that "in many cases there would be little difference in the expectation of privacy for the owner-operator of a car and that of his or her spouse. Similarly, if two people were travelling together on an extended journey and were sharing driving responsibilities and expenses, each would be likely to have an equal expectation of privacy in the vehicle."

[167] The court did not say that all of these factors have to be present in order to establish a reasonable expectation of privacy, nor that this is an exhaustive list.

[168] I acknowledge that Ms. Desrosiers was not the owner of the van, nor the driver. She had never used the van before. She did not have control over the vehicle nor did she have any influence with regard to who had access to the van.

[169] However, I find that she had a " relationship with…the driver which would establish some special access to or privilege in regard to the vehicle". Mr. Campbell was her boyfriend. She had the subjective belief that he had rented the van to go buy furniture for an apartment in which they were going to live. They were also going out to dinner on this evening. She had her purse in the van.

[170] Mr. Campbell said he borrowed the van and that the furniture was for his apartment. But even in that case, I find that the two of them were involved in what can reasonably be called an intimate "couples" endeavour. They were either buying furniture for "their" apartment or for Mr. Campbell's apartment. Ms. Desrosiers was an active participant in either scenario. It was a joint couple's activity for which the van was essential.

[171] I find that after considering these factors and all of the circumstances of the case that Ms. Desrosiers had a reasonable expectation of privacy in the silver van.

[172] Officer English testified that as soon as Ms. Desrosiers rolled down her window he smelled the odour of marijuana coming from inside the van. He saw the Backwoods package in the console. He knew that this product is used for smoking marijuana so he seized it.

[173] He said that he saw "some tissue with a green leafy substance" on it, "sort of sticking out from it [the Backwoods cigar package]". He could not recall if the tissue was inside or outside of the Backwoods package. He just remembered "seeing the green, like the green leaves" of marijuana. He said that the marijuana was in the console area with the Backwoods package. But he could not remember if he saw the marijuana inside the Backwoods package or resting on top of the package. As stated above, I do not understand how he could have seen the marijuana if it was inside of the package.

[174] I discussed above the difficulties that I have with Officer English's testimony regarding his description of the marijuana that he says that he saw on the tissue in the console area where the Backwoods package was. It is troubling that he started out calling the marijuana a "green leafy substance", then he referred to it as marijuana leaves and then as marijuana flakes. As he was questioned further on what exactly he saw he wound up referring to it as "green leafy flakes". As I said above, pursuant to the definitions of "leafy" and "flake", a leafy substance cannot be a flaky substance at the same time. It is a contradiction in terms.

[175] When they pulled over the silver van Officer Gauvreau went to speak to the driver. He said that as soon as the driver rolled down the window he smelled the odour of marijuana. He looked into the van and saw a "green leafy substance in a Kleenex that was inside a purple Backwoods" in the console. He said that the marijuana was "in a butt form, so like crumbs and butts, like the way you normally obtain marijuana for smoking". He did not explain what "butt form" is. The difficulty with his evidence is that either the marijuana is in "leafy" form or in "crumbs and butts" form. It cannot be both leafy and crumbly at the same time.

[176] Moreover, I found it quite curious that he could not tell the difference between marijuana that is burnt and marijuana that is fresh. Especially since he said that he had dealt with over 100 marijuana investigations. He said that he had handled marijuana during his training and that he has been "privy to smelling marijuana both burnt and not burnt".

[177] This all causes me to find it difficult to accept his evidence with regard to having smelled the odour of marijuana when Mr. Campbell rolled down the window and to having seen it in the console. In addition, I would point out that the Backwoods package is brown, not purple. So I am not sure what he was looking at.

[178] Mr. Campbell testified that he had marijuana in the Backwoods package but that it was sealed in the package in order to keep it, and the cigars fresh and moist. He said that the directions on the package state that in order to keep the cigars fresh the package must be closed. I examined the package and it directs the purchaser to "Fold flap back twice to seal in freshness". Mr. Campbell always folds the package shut for this purpose. This makes sense to me. Why would a person purchase the cigars and then allow them to dry out? I accept his evidence that the package was sealed shut as it lay in the console.

[179] I also accept Ms. Desrosiers's evidence in this regard, which is to the same effect as Mr. Campbell's.

[180] In addition, after examining the Backwoods package it also makes sense to me that one would not be able to smell marijuana inside of it when it is sealed. It is a very thick package.

[181] Mr. Campbell said that he did not have any tissue paper with marijuana on it sticking out of the package. He said that made no sense: "The fluff will get all over the weed, that's weird". He agreed that if anything, there may have been a toilet paper roll in the console, but his marijuana would never be inside of toilet paper or any paper. There was no Kleenex in the console. Ms. Desrosiers also testified that she did not believe that there was a tissue sticking out of the Backwoods package.

[182] As a result of the difficulties with Officers English and Gauvreau's evidence that I outlined above and the other circumstances, including the testimony of Mr. Campbell and Ms. Desrosiers, I have trouble accepting the officers' evidence that they smelled marijuana in the van when Ms. Desrosiers and Mr. Campbell rolled down their windows and that they then saw marijuana in the console next to the Backwoods package.

[183] I find that it is much more likely that the officers searched the van and then found the marijuana in the Backwoods package as Ms. Desrosiers testified. Under all of the circumstances, I accept her evidence in this regard. She was not shaken in her testimony on this point.

[184] Consequently, I find that the police did not have sufficient grounds to search the silver van. They were engaged in a fishing expedition when they searched it and that is how they found the marijuana in the Backwoods package. This was a breach of Ms. Desrosiers' rights under the s. 8 of the Charter. The police charged Ms. Desrosiers with possession of marijuana based on finding the marijuana in the Backwoods package.

[185] I will proceed chronologically and discuss the alleged breach of s. 10 (b) next.

Section 10(b) of the Charter

[186] Officer English said that he read Ms. Desrosiers her rights to counsel from his note book as soon as he arrested her. She said that she understood her rights. She did not want to speak to a lawyer.

[187] Ms. Desrosiers remembered one of the other officers having told her something about a lawyer. She did not remember when the police read her rights to her.

[188] I accept that Officer English read the rights to counsel to Ms. Desrosiers. He made a note of this. He was not shaken on this part of his evidence. Ms. Desrosiers's recollection was sketchy.

[189] The defence argues that Officer Drexler's statement to Ms. Desrosiers in the police cruiser on the way to the police station that she did not recommend that she contact a lawyer breaches her right to counsel. Officer Drexler denied that she said this. Both Officer Drexler and Officer Yong said that there was no conversation with Ms. Desrosiers during this time.

[190] The defence has the onus of proving on a balance of probabilities that the police breached Ms. Desrosiers's right to counsel. Based on the evidence before me, I am not persuaded that they did. There is not sufficient evidence on which I could make such a finding. The evidence is the officer's word against Ms. Desrosiers's word. In these circumstances I am not able to make a finding that this occurred.

[191] Therefore, the Charter application under s. 10 (b) is dismissed.

S. 8 Continued: The Strip Search

[192] If I am incorrect with regard to Ms. Desrosiers having a reasonable expectation of privacy in the van, she certainly had a reasonable expectation of privacy with regard to her body.

[193] The evidence shows that Officer Drexler strip searched Ms. Desrosiers pursuant to a general policy that all persons that the police arrest for a drug offence in whatever circumstances are to be strip searched.

[194] Although Officer Sallows said that they do not strip search everyone that is arrested for a drug offence, he was not the officer that strip searched Ms. Desrosiers. Officer Drexler was, and she gave significantly different testimony on this point.

[195] Officer Drexler testified that when she arrived on scene Officer English told her to take custody of Ms. Desrosiers and to take her back to the station to strip search her. After performing a pat down search and put handcuffs on her, she took her to 22 Division to strip search her "for any further drug paraphernalia that she would've had on her".

[196] Officer Drexler said that it was common procedure and that Officer English advised at the scene that he thought she had something further on her person. There was no detail as to why Officer English would have thought this, however.

[197] Officer Drexler said that a strip search is common procedure when persons are arrested for a drug offence. She said "That's procedure, Peel Police procedure".

[198] Officer Drexler said that if a person is arrested for several offences, some of which include a drug offence it is "more than likely" that the person would be strip searched because of the drug charge. And any time a person is arrested for a drug offence the police strip search them.

[199] Officer Drexler testified that there is a written "directive that states that anybody being brought back for a controlled substance, that you believe that they have further substances on their person is immediately strip-searched, or it's left up to the officer in charge of the station to determine that factor, once being brought back to the station, on an offence for a controlled substance charge". Therefore, even had Officer English not told her to perform a strip search on Ms. Desrosiers, she would have performed one pursuant to the directive.

[200] Officer English testified that he believed that Mr. Campbell was also strip searched.

[201] I note that there was no evidence on why the police would think that Ms. Desrosiers would "have further substances" on her person. One could say this about any person that the police arrest for a drug offence. Again, as with the rest of the case, the officers were acting on hunches. And that is the problem with the directive that Officer Drexler described.

[202] In R. v. Golden the court held that " In order to meet the constitutional standard of reasonableness that will justify a strip search, the police must establish that they have reasonable and probable grounds for concluding that a strip search is necessary in the particular circumstances of the arrest".

[203] The court stated further that because of "the serious infringement of privacy and personal dignity that is an inevitable consequence of a strip search", such searches are only constitutionally valid at common law where they are conducted as an incident to a lawful arrest for the purpose of discovering weapons in the detainee's possession or evidence related to the reason for the arrest".

[204] Further, "the police must establish reasonable and probable grounds justifying the strip search in addition to reasonable and probable grounds justifying the arrest. Where these preconditions to conducting a strip search incident to arrest are met, it is also necessary that the strip search be conducted in a manner that does not infringe s. 8 of the Charter".

[205] It is clear from Golden that " the mere possibility that an individual may be concealing evidence or weapons upon his person is not sufficient to justify a strip search".

[206] The court stated further that:

Strip searches cannot be carried out as a matter of routine police department policy applicable to all arrestees, whether they are arrested for impaired driving, public drunkenness, shoplifting or trafficking in narcotics. The fact that a strip search is conducted as a matter of routine policy and is carried out in a reasonable manner does not render the search reasonable within the meaning of s. 8 of the Charter. A strip search will always be unreasonable if it is carried out abusively or for the purpose of humiliating or punishing the arrestee. Yet a "routine" strip search carried out in good faith and without violence will also violate s. 8 where there is no compelling reason for performing a strip search in the circumstances of the arrest.

[207] The Crown submitted that Officer Drexler did not strip search Ms. Desrosiers pursuant to a general policy. She said that it was "motivated by the officer-in-charge making a judgment call, based on the circumstances of the case and what happened at the scene". I do not agree that this is an accurate characterization of the evidence. Especially when Officer Drexler testified that even had Officer English not told her to perform a strip search on Ms. Desrosiers, she would have performed one pursuant to the directive. And as noted above, the officer in charge of the station did not order a strip search either.

[208] After considering all of the evidence I find that the that the police violated Ms. Desrosiers's rights under s. 8 of the Charter by strip searching in the circumstances of this case.

Findings of Credibility

[209] With regard to issues of credibility, I instructed myself in accordance with D.W. v. The Queen:

First, if you believe the evidence of the accused, obviously you must acquit. Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[210] I also pay heed to Nadeau v. The Queen, where the Supreme Court of Canada said that, "The accused benefits from any reasonable doubt at the outset…moreover, the jury does not have to choose between two versions [of a set of events]".

[211] The Crown attacked Ms. Desrosiers's credibility for several reasons. Ms. Desrosiers said that she could not recollect everything exactly. However, she said that she could remember the crucial parts of the events quite well. It is not unusual that a witness cannot remember the details of everything that occurs in tension filled, fast moving circumstances while being unexpectedly stopped and searched by the police at the roadside.

[212] There were the different accounts regarding the furniture. Mr. Campbell said that he did not live with his mother; Ms. Desrosiers said that he did.

[213] Further, their evidence was not consistent regarding the exact chronology of the events prior to their encounter with the police. Mr. Campbell said that he picked her up and they went to his mother's home where he smoked marijuana, then they went to the parking lot and met Ms. Smith. After that they planned to go to dinner. Ms. Desrosiers gave a different itinerary. And she did not mention going to Mr. Campbell's mother's home.

[214] Ms. Desrosiers was dishonest in saying that she was surprised that Ms. Smith got into the van because Mr. Campbell said that he went to the parking lot to look for her, so Ms. Desrosiers must have known.

[215] Ms. Desrosiers said that she did not know that Mr. Campbell was a drug dealer. She said that occasionally she smokes a Backwoods cigar. Mr. Campbell said that he had never seen her smoke one.

[216] Mr. Campbell exaggerated the number of police officers that attended the scene. He said that the officers threatened him with a Taser. The officers said that they did not have a Taser.

[217] Mr. Campbell said that he would never put his marijuana in a tissue, but the police seized a tissue with the Backwoods package. Mr. Campbell testified that he had a roll of toilet paper in the consol. Based on the evidence I cannot determine how a piece of it got into the Backwoods package. But I found that his evidence about how it would affect the marijuana was reasonable. He should know, he smokes enough of it. In the circumstances of this case I cannot conclude that he was lying about this.

[218] I agree that Ms. Desrosiers and Mr. Campbell were inconsistent in these areas. However, they are essentially collateral areas that do not have any significant effect on the important factual decisions that I had to make in this case. These inconsistencies do not in my opinion damage their credibility on the crucial facts of the case.

[219] Likewise, I find that Mr. Campbell's exaggeration about the number of officers at the scene and his evidence about the Taser does not put his credibility into question in the circumstances of this case.

[220] For these reasons I find that these inconsistencies and kinks in their evidence do not affect their credibility on the essential issues of the case. On the other hand, it can be seen from my comments above that I have serious misgivings about the evidence of the police.

[221] Regarding the strip search, Officer Drexler said that Ms. Desrosiers did not remove any of her clothing. Before she even started the search Ms. Desrosiers just reached in her pants and handed over the crack cocaine and that ended the matter. But she also said that she could not say for sure if Ms. Desrosiers removed her panties. I find this evidence inconsistent. If Ms. Desrosiers really did not remove any of her clothing, then Officer Drexler would have no problem remembering that she did not remove her panties.

[222] Moreover, Officer Drexler would not know whether Ms. Desrosiers had more drugs secreted in her clothing or in her body. Stopping at this point would be inconsistent with the directive that she said that she was following to ensure that persons that are arrested for drug offences do not hide drugs in their clothes or bodies. I do not accept Officer Drexler's evidence that Ms. Desrosiers did not remove any clothing.

[223] I accept Ms. Desrosiers's evidence of how Officer Drexler conducted the strip search. She gave a detailed account of how it proceeded which made sense.

Should the Evidence Be Excluded Under s. 24(2)?

[224] R. v. Grant, the Supreme Court of Canada gave the following directions to decide if evidence obtained as a result of a charter breach should be excluded:

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. (Paragraph 71)

[225] I find that the seriousness of the violations against ss. 8 and 9 of the Charter are very serious. The police pulled over the silver van and detained its occupants for the purpose of going on a fishing expedition to see if they could uncover evidence of illegal drug activity. As indicated above, there were insufficient grounds to justify this. The court cannot allow mere hunches to justify such a serious intrusion on the right of citizens in our society to be free from police action that is aimed at shaking them down to see if they are perhaps engaged in illegal activity.

[226] Moreover, the unlawful detention led to two searches that were contrary to s.8 of the Charter. One of these searches was the strip search of Ms. Desrosiers, which she experienced as very distressing.

[227] The impact on Ms. Desrosiers' Charter protected rights was grave and egregious. Her evidence indicates strongly that she was quite distressed by the strip search. I find that the way that Officer Drexler conducted the search was insensitive to Ms. Desrosiers' right to privacy.

[228] Although Officer Drexler and Ms. Desrosiers were alone in the room, there were male officers in very close proximity whom Ms. Desrosiers could hear talking and laughing. The door to the room was left open. Officer Drexler said that no male officer would venture close to the room because they knew that she was strip searching Ms. Desrosiers, but this was of no comfort to Ms. Desrosiers. She did not know that this was the case, and reasonably so.

[229] I acknowledge that the public has an interest in seeing these types of cases decided on their merits. The crack cocaine is reliable evidence. Its exclusion would be fatal to the Crown's case. However, after balancing these three factors I find that in this case admitting this evidence would bring the administration of justice into disrepute because of the serious breaches of Ms. Desrosiers's rights under ss. 8, 9 of the Charter. Therefore, the evidence of the crack cocaine is excluded. Ms. Desrosiers' statements to the police at the police station are also excluded.

[230] There being no other evidence against Ms. Desrosiers, she is found not guilty. The charge is dismissed.

Released: January 26, 2017

Signed: Justice J.W. Bovard