ONTARIO COURT OF JUSTICE

CITATION: R. v. Williams, 2021 ONCJ 630

DATE: 2021 09 17

COURT FILE No.: Central East Region: Oshawa Court File # 21-25128

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JAYDEN WILLIAMS

Before Justice Peter C. West

Heard on July 6-9, 15, 2021

Reasons for Judgment released on September 17, 2021

Mr. N. Hegedus.............................................................. counsel for the Crown

Ms. A. Dresser................................ counsel for the accused Jayden Williams

WEST J.:

[1] On January 28, 2020, Jayden Williams was charged with four firearm offences relating to a loaded Jimenez Arms handgun found on his person in a Puma bag affixed over his shoulder at his chest under his winter jacket. He was charged on an Information also charging Sarah Dale with four firearms offences in respect of a separate H&R Arms Company handgun found on her person. A young person was also charged separately with the possession of the same handgun found in Ms. Dale’s possession and he pleaded guilty before Justice Devlin on February 19, 2021 to possession of a handgun and on June 17, 2021, he received a 4 month custody and supervision order and 12 months probation with conditions. The trial for both Mr. Williams and Ms. Dale commenced on July 6 and continued for 5 days. At the conclusion of the evidence counsel provided written submissions

Factual Background

[2] The facts are relatively brief and uncomplicated. On January 28, 2020, five young people, who were all friends attended the Moxie’s Restaurant in Pickering for dinner. They drove to Moxie’s in an Audi 4, which was driven to the restaurant by Sarah Dale. This car was hers, but the ownership was in her mother’s name. Ms. Dale was unlicensed. In attendance were Sarah Dale, two of her friends, Angel Powell-Jones, and Chelsea Reid Nyamansul, as well as Jayden Wignall and Jayden Williams. Jayden Wignall was a friend of Sarah Dale’s for about a year and he had known Jayden Williams for many years. There was no evidence led as to Jayden Williams’ relationship with any of the three young women.

[3] Snap Chat videos taken by Sarah Dale were entered as Exhibits. Jayden Wignall can be observed wearing a fanny pack over one shoulder and under the other shoulder on his back. Jayden Williams is wearing a black puffy winter jacket. The videos are only a matter of seconds in length.

[4] Sarah Dale asked Jayden Wignall if he would drive her car when they left Moxies, as she was tired and had consumed a couple of alcoholic drinks. After they got into the car, Jayden Wignall passed his fanny pack into the back seat. Sarah Dale was sitting behind the driver’s seat and she testified she took possession of this fanny pack but did not open it or know what was in it.[^1] Jayden Williams was in the front passenger seat; Angel was in the middle in the back seat and Chelsea was behind the front passenger seat.

[5] Mr. Wignall was from Scarborough and followed directions given by Ms. Dale, but no evidence was led as to their final destination. The Audi went eastbound on Kingston Road from Moxie’s to Brock Road, where it turned left to go north on Brock. As it drove past the Durham Regional Police Station at the corner of Kingston Road and Brock Road, P.C. Gillings, a uniformed patrol officer of three years experience, was leaving the parking lot and turning north onto Brock Road. He was starting his night shift and was operating a marked police cruiser. He pulled in behind the Audi 4 being driven by Mr. Wignall and they both stopped at the traffic light at Finch Avenue. He observed the validation sticker on the license plate was expired so he ran the license number on his police computer, which confirmed it was expired. The registered owner of the vehicle was Verona Dale.

[6] P.C. Gillings initiated a traffic stop at 22:51 by activating his emergency lights on his cruiser. The Audi pulled into a Catholic French school parking lot north of Finch Avenue and he pulled his cruiser in behind. He approached the front driver’s window. When he got to the driver’s window, which the driver had lowered, he observed there were five individuals in the vehicle. P.C. Gillings was alone. The vehicle’s windows were slightly tinted and he could not see through the back window. He advised the driver that the validation sticker was expired and asked for his driver’s license, ownership, and insurance. His interaction was with the driver. He detected a strong odour of marihuana coming from inside the vehicle. He inquired about the odour coming from the vehicle but did not recall the specific words he used. He asked the driver this because he was trying to determine if the driver had been smoking marihuana. He testified there were potential impairment issues as the vehicle had driven over the curb when it first turned into the parking lot of the school. The driver advised he was not licensed.

[7] When P.C. Gillings asked the driver if he had been smoking marihuana the young woman sitting in the backseat behind the driver, Sarah Dale, interrupted and advised there was a gram of marihuana in the centre console, which he testified he saw when Ms. Dale said this. It was by the cup holder, in a bag, in the front of the car beside the driver, who verbally identified himself as Jayden Wignall. P.C. Gillings had no notes of the size of bag or type of bag or colour of the bag but he testified he observed it was not sealed, as the seal was broken. He testified he could not confirm whether the bag was closed or open. As a result of Ms. Dale’s statement P.C. Gillings testified he developed grounds to believe that there was a contravention of the Cannabis Control Act (CCA), a provincial enactment. He testified the marihuana was not in its original packaging and was readily accessible to the driver while he was operating the motor vehicle. P.C. Gillings believed he had the necessary grounds to search all of the occupants of the vehicle, as well as the vehicle itself under the CCA. The marihuana was unsealed and accessible to the driver. He testified he was sure it was unsealed and that the seal was broken. He did not take any photos of the marihuana and did not seize it.

[8] He returned to his police cruiser and requested back-up and assistance to search the occupants of the Audi and requested female officers attend because of the three young women in the backseat. After calling for backup P.C. Gillings exited his vehicle and returned to the Audi. He testified he was only in his vehicle for a couple of minutes when he called for backup. He requested the driver turn off the car and provide him with the keys and he requested everyone exit the car and sit on the curb. He advised them everyone was going to be searched, as well as the car itself, to look for marihuana stored in the car illegally. He testified he was not investigating any criminal charge. The occupants were cooperative and sat on the curb. Nobody was handcuffed.

[9] P.C. Gillings agreed the driver and occupants of the Audi were not free to leave as he was investigating the driver and occupants of the Audi pursuant to the CCA. He advised the occupants they were being investigated but he did not caution anyone, as he did not believe he was required to for this type of investigation. He did not read anyone their right to counsel at this point as it was not required. The investigation did not become a criminal investigation until a handgun was located on Sarah Dale’s person by P.C. Westcott.

[10] P.C. Sebaaly was the first officer to arrive on scene. P.C. Westcott and P.C. Armorer, two female officers, arrived on scene shortly after P.C. Sebaaly did. P.C. Gillings advised them he saw marihuana beside the driver in the center console and as a result each occupant was to be searched, as well as the Audi. P.C. Gillings believed he searched Jayden Wignall after P.C. Sebaaly arrived and stood by the other four individuals sitting on the curb. He did not find anything on Mr. Wignall. He directed him to return to the curb and have a seat. P.C. Gillings testified he then returned to his cruiser to conduct investigative checks. While he was seated in his cruiser he heard over the radio that a handgun had been located, although he did not know at this time where it was located. When he heard, “We’ve got a gun” over the radio, he testified nothing else registered. He did not know initially it was found on one of the female occupants, but he learned this after he exited his cruiser. He handcuffed one of the young women (Ms. Nyamansul) and he also handcuffed Jayden Williams (he learned his identity later) and turned him over to another officer who had arrived on scene.

[11] In cross P.C. Gillings testified if a firearm had not been found then no one would have been arrested.

[12] P.C. Gillings made the decision to arrest all of the occupants of the Audi for possession of a handgun in a vehicle. When he made this decision he was uncertain who the firearm had been located on. The five occupants were arrested at 23:01 hours. He told Mr. Williams when he handcuffed him he was under arrest for possession of a firearm in a motor vehicle. He turned him over to P.C. Trafford and P.C. Rosacena when they arrived and P.C. Gillings testified he did not read Mr. Williams his right to counsel or caution him. He did not ask Mr. Williams any questions after telling him he was under arrest. He did not search Mr. Williams.

[13] P.C. Gillings took custody of Mr. Wignall and brought him to his cruiser. He read Mr. Wignall his YCJA right to counsel, a YCJA caution. After placing him in the cruiser he searched the Audi. The search of the Audi was incident to arrest for the possession of the handgun offence, to confirm if there were other weapons inside the vehicle. He was looking to see if there was ammunition for the firearm that was located or whether any other firearms were in the vehicle. This was for officer safety and to determine if there was any evidence relating to the offence. P.C. Gluckstein assisted in the search of the Audi. P.C. Gillings did not recall exactly where he searched but believed he likely searched the whole vehicle.

[14] He saw the bag of marihuana he had seen earlier but did not seize it. He did not observe any other officer seize the marihuana and he did not locate anything else of concern inside the Audi. He could speak to why the marihuana was not seized or why the SOCO officer did not take photos of the marihuana. P.C. Gluckstein also searched the Audi. He saw the marihuana but did not seize it. He was involved in the search of the vehicle as a search incident to arrest. He observed marihuana shake in the cup holder and centre console and there was marihuana pieces on the floor boards of car. He also found marihuana in a small cookie package in the center console in plain view, which did not look like a marihuana container. P.C. Gluckstein was not asked if he smelled the odour of marihuana in the car.

[15] P.C. Gillings testified once the handgun was located the marihuana was the least of his concern and he wanted to ensure that all of the individuals under arrest for possession of a firearm and in custody were dealt with properly. P.C. Westcott and P.C. Armorer took custody of Ms. Dale. P.C. Rosacena took custody of Mr. Williams. P.C. Gluckstein took custody of Ms. Nyamansul and P.C. Cronin took custody of Ms. Powell-Jones.

[16] P.C. Westcott was dispatched with her partner, P.C. Armorer, to attend a Catholic school parking lot to assist P.C. Gillings on a Cannabis Control Act search at 22:55. P.C. Westcott arrived at the school parking lot at 22.58, saw five individuals - two males and three females - sitting on a curb with P.C.s Gillings and Sebaaly standing by them. She was advised by P.C. Gillings he had conducted a traffic stop for an expired validation sticker and while speaking to the driver of the white Audi he detected an odour of marihuana and observed marihuana unlawfully stored or transported in the vehicle. He had advised the occupants because of the cannabis being in the vehicle everyone would be searched. P.C. Westcott was requested to attend to assist in this search. P.C. Gillings advised her of this prior to the search being conducted. P.C. Westcott testified if cannabis is not sealed with a government seal, it is not closed, and she could not recall if she observed the cannabis, but she was relying on P.C. Gillings’ grounds for assisting with the search. He would be the one laying any charges under the Cannabis Control Act if charges were to be laid. P.C. Westcott testified if an officer believes an offence has occurred pursuant to the CCA, for example cannabis is found in a cup holder and the officer has decided to remove the driver and search him and any occupants and the vehicle, if there are bags in the backseat or passenger seat they can be searched as well. There has to be evidence of the offence in the first place for a search to be conducted. If the bags were closed but in reach of the driver they can be searched. If an occupant in the vehicle had access to such a bag then it could be searched because the occupant could put it into the hands of the driver. Smell alone would not be sufficient according to P.C. Westcott, the officer would need something else - a burnt roach or the end of a joint or some marihuana leaves.

[17] She conducted the search of Sarah Dale. Ms. Dale was wearing a puffy jacket with a fur hood, dark coloured pants, and white running shoes. P.C. Westcott told Ms. Dale she was going to search her for cannabis and asked her if she had anything sharp on her - needles or knives - and Ms. Dale said no. P.C. Westcott searched the pockets and hood of jacket while worn by Ms. Dale and then searched the pants - waist band and pocket area. When she patted Ms. Dale’s upper thighs, just below her bottom, she felt a hard object. The hard object was inside Ms. Dale’s pants between her legs towards the back, under her buttocks. It was a large object and P.C. Westcott pulled it out by grabbing a part of it that was sticking out of Ms. Dale’s pants waistband, at the back. She did not have to undo the waist of the pants Ms. Dale was wearing to do this. She did not note whether Ms. Dale was wearing track pants, but she was able to pull the object out by one of the ends very easily. The first hard object she felt was at the upper part of Ms. Dale’s thigh, below her bottom and she believed it was between Ms. Dale’s pants and her underwear because P.C. Westcott pulled it out with ease. It turned out to be a fanny pack, which was zipped closed when P.C. Westcott pulled it out. The buckle was not joined together. The fanny pack had weight to it. P.C. Westcott did not feel the fanny pack too much as she did not know if it contained any needles. She unzipped it and observed a small revolver firearm inside. P.C. Westcott called out to P.C. Sebaaly that she found a gun and he announced over the radio a firearm had been found so that additional officers would attend the scene for officer safety. This all occurred at 23:01.

[18] P.C. Westcott did not remove the firearm from the fanny pack and gave it to P.C. Sebaaly as she was unsure how to ensure the safety of the revolver. She knew that P.C. Sebaaly had military training and he was familiar with guns and how to ensure they are safe. She could not estimate how much the revolver weighed but it would have been the weight of a few cell phones but less weight that the Glock handgun she carries.

[19] P.C. Westcott then arrested Ms. Dale for possession of a firearm at 23:01. The other four individuals were then all taken into custody. P.C. Westcott arrested Ms. Dale physically and said to the other two females they were under arrest for possession of a firearm and asked them to remain seated on the curb until other officers arrived on scene. P.C. Westcott testified she had reasonable grounds that Ms. Dale had taken steps to conceal the firearm in her pants after P.C. Gillings had stopped the motor vehicle or at some other time after P.C. Gillings had pulled over the vehicle. She believed the firearm was jointly possessed by all parties inside the vehicle because Ms. Dale would have secreted the gun inside her pants at a point when P.C. Gillings was effecting the traffic stop. She did not know whether it was Ms. Dale’s gun or someone else’s gun in terms of the other occupants in the car.

[20] As P.C. Westcott was pulling the fanny pack out of Ms. Dale’s pants one of the two male persons sitting on the curb (Mr. Wignall) said, “It’s mine, it’s mine.” P.C. Westcott described this male person saying this with “urgency.” This occurred as she was taking the fanny pack out of Ms. Dale’s pants and before she unzipped the fanny pack and found the revolver. She also considered this circumstance when she arrested all of the occupants of the vehicle for possession of a firearm. P.C. Westcott was shown Exhibit 2, photo 28, which she identified as the fanny pack she pulled out of Ms. Dale’s pants.

[21] P.C. Westcott only had one set of handcuffs, which she used to handcuff Ms. Dale. As a result, she had the other two young women sit on the curb in front of her until other officers arrived on scene to take them into custody. She advised all of the women they were under arrest for possession of a firearm. She read all of them their right to counsel and cautioned them at 23:08 hours. She read this from her police notebook. They advised they understood and one of the females said she might want to speak to duty counsel. P.C. Westcott performed a further frisk search or “pat down” of Ms. Dale after she discovered the fanny pack with the small revolver inside at the scene. This search of Ms. Dale was a search incident to arrest for the charge of possession of a firearm. She was searching now for anything that might jeopardize officer safety or public safety and might be evidence of an offence or provide a means of escape to Ms. Dale. Nothing of any concern was located during this search.

[22] By 23:15 all three young women were taken and placed into separate police vehicles for transport to 19 Division in Pickering, which was just south of the scene on Brock Road. Transport began at 23:45 and they arrived at 23:47. P.C. Westcott testified that between 23:15 and 23:45 she was keeping custody of Ms. Powell-Jones who she had placed in another officer’s cruiser. Her custody was ultimately transferred to P.C. Cronin. P.C. Westcott and P.C. Armorer transported Sarah Dale in their police cruiser to 19 Division. There was a line-up at the division and P.C. Westcott had to wait to parade Ms. Dale before the Sergeant Baggio. At the police division P.C. Westcott requested she be permitted to perform a strip search of Ms. Dale because of where the small revolver was found concealed inside her pants in a fanny pack and further, by the time she paraded Ms. Dale before the booking Sergeant she had been informed that a second firearm had been discovered on one of the other arrested individuals in the police station. She was authorized to conduct this search in a private room with P.C. Armorer in a private room just off the booking area.

[23] P.C. Westcott and P.C. Armorer also conducted further searches of the other two young women, Ms. Nyamansul and Ms. Powell-Jones, who were in separate holding rooms in C.I.B., after the discovery of the second firearm in the police station on one of the male persons who had been arrested in the parking lot. She did not note whether these searches were strip searches where clothing was removed or whether the search was just “brushing her hands under the shirt type-of-thing.” P.C. Westcott advised the searches conducted at the scene after the revolver was discovered in Ms. Dale’s pants was conducted in a darkened parking lot with not particularly good lighting conditions and something could have been missed as it was respecting the other firearm being discovered in the police station. This was why they were requested to conduct a more thorough search at the police station.

[24] P.C. Sebaaly received a dispatch to assist P.C. Gillings for a search pursuant to the CCA. He was the first officer to arrive on scene at 22:56 or 22:57 after P.C. Gillings requested assistance for officer safety. P.C. Gillings advised him of locating marihuana accessible to the driver that was unsealed and of his grounds to search the occupants and the vehicle. He came to provide officer safety. The five persons from the Audi were seated on a curb in the school parking lot when he arrived on scene. He stood in front of them 6-10 feet from them. P.C. Sebaaly testified he advised the five individuals they were going to be searched as well as the vehicle under the Cannabis Control Act. He asked if any weapons would be found on them or in the vehicle because of police and public safety issues. He had no information about any weapons, but this is something he always asks when he is about to conduct a search. There were two male persons and three female persons. P.C. Gillings went to his cruiser. P.C. Sebaaly was six to ten feet from the five individuals standing in front of them. He did not see anything passed between the five individuals on the curb after he arrived on scene. The female officers arrived. P.C. Sebaaly did not do any pat down searches as he was waiting for sufficient officers to arrive before starting to search.

[25] P.C. Sebaaly observed P.C. Westcott begin to search one of the young women, who turned out to be Sarah Dale. She called out while conducting the search that she had located something in a fanny pack. She was not sure what it was and when it was provided to him he saw it was a small revolver. He immediately broadcast over the radio that a firearm had been located. He did this for officer safety to get more police officers on scene to assist in arresting the other individuals who had been in the vehicle during the traffic stop. A SOCO officer and sergeant would also need to arrive on scene. He took possession and custody of the fanny pack and the revolver. He made the revolver safe as it was semi-cocked. He maintained the revolver toward the grass. When the SOCO officer arrived, pictures were taken while unloading of revolver was done by P.C. Sebaaly. P.C. Sebaaly testified in cross-examination he had six years experience with the military police and was experienced in handling firearms.

[26] P.C. Sebaaly put handcuffs on Jayden Wignall as P.C. Gillings took custody of him. He heard Mr. Wignall say “It’s mine, it’s mine,” when P.C. Westcott found the fanny pack on Ms. Dale. P.C. Sebaaly believed Mr. Wignall was claiming ownership of the revolver and that he meant it was not Ms. Dale’s. P.C. Sebaaly asked Mr. Wignall if the firearm was real and if it was loaded. Mr. Wignall said yes it was real. The firearm was loaded. P.C. Sebaaly asked these questions for officer safety. P.C. Sebaaly made the firearm safe and found it was loaded with four bullets. He asked the five individuals who had been sitting on the curb if they were going to find any other weapons and someone laughed and said no. He did not know for sure who laughed

[27] Exhibit 2, photograph 2, shows P.C. Sebaaly’s hand holding the revolver. Photograph 5 shows P.C. Sebaaly’s hand and a round in the cylinder of the revolver. Photograph 11 shows four rounds removed from the revolver. Photograph 12 depicts the revolver on top of the fanny pack, and it takes up half of the fanny pack. P.C. Sebaaly maintained custody of the firearm until he turned it over to D.C. Bradley of the DRPS Guns and Gangs Unit at 19 Division. After the firearm was found P.C. Sebaaly believed all of the occupants could be charged with joint possession of the firearm in motor vehicle and handcuffed.

[28] P.C. Sebaaly testified in cross he did not know where the marihuana was located other than what P.C. Gillings told him that it was accessible to the driver. P.C. Robinson came to the scene from the SOCO office. P.C. Sebaaly did not direct P.C. Robinson to take pictures of the Audi. He agreed he was the ranking officer until the Sergeant arrived on scene. Sgt. Baggio was the Sergeant.

[29] P.C. Trafford and P.C. Rosacena arrived on scene at the school at 23:02. They were given custody of Jayden Williams who was handcuffed to the rear by P.C. Rosacena. Mr. Williams was brought to their police cruiser. He was identified verbally as Jayden Williams. He was wearing jeans and a black puffy jacket, which was completely zipped up when the officers first received custody of him. A search incident to arrest was conducted by the cruiser in the form of a quick pat down by P.C. Rosacena and he was placed into the backseat of the cruiser. P.C. Rosacena agreed the search at the scene incident to arrest was a cursory search and he did not feel anything under the puffy jacket. Mr. Williams jacket was not removed prior to arriving at 19 Division when he was eventually placed in Interview Room 2 in the C.I.B. office after he was booked. He was advised he was being detained for possession of a firearm in a motor vehicle. P.C. Trafford spoke to P.C. Gillings to determine the charge and then went back to Mr. Williams who was advised he was under arrest for possession of a firearm in a motor vehicle and he was read his right to counsel at 23:16. Mr. Williams advised he understood his right and wanted to speak to a lawyer. He was also cautioned.

[30] At 23:31 they left the scene with Mr. Williams. Mr. Williams was paraded before the Sergeant. The handcuffs were not removed, and no clothing was removed prior to the parade. After the parade Mr. Williams was escorted to a C.I.B. interview room #2. Once Mr. Williams entered the interview room the handcuffs were removed. Mr. Williams was then requested by P.C. Trafford to remove his clothing down to one layer. This search was a continuation of the search incident to Mr. Williams’ arrest, at the police station to ensure officer safety, Mr. Williams’ safety and to ensure no weapons or means of escape. P.C. Rosacena was not present as he was parking the police cruiser.

[31] Mr. Williams first bent over and removed shoes, after which he removed his belt and then his puffy jacket. This can be seen on Exhibit 4. When Mr. Williams removes his black puffy jacket a bag or satchel strapped against his chest, which had been concealed under his jacket is revealed. The “Puma” satchel is attached over his left shoulder and under his right shoulder with the satchel against his chest. When Mr. Williams was removing his shoes he can be seen bending over and his jeans are half way down his buttocks revealing a pair of light blue shorts. P.C. Trafford took the three items Mr. Williams removed and left the interview room and placed them on a chair just outside the door of the interview room. This can be observed on the video, Exhibit 4. Nothing else was on this chair, only Mr. Williams’ property. Mr. Williams was left in the room by himself standing by the back wall of the interview with the satchel on his chest. As he is standing there as P.C. Trafford leaves the room, Mr. Williams unsnaps the buckle of the satchel.

[32] P.C. Trafford testified he had no idea this satchel was under Mr. Williams jacket until the jacket was removed in the interview room. It was attached to the front of Mr. Williams chest and was hidden underneath his black puffy jacket, which was fully zipped up. On the video Mr. Williams can be seen unbuckling the Puma satchel from around his chest and then handing it to P.C. Trafford when the officer returned into the interview room. P.C. Trafford was gone from the interview room for only 2 or 3 seconds before he received the satchel. After P.C. Trafford received the Puma satchel from Mr. Williams he exited the room again and can be seen on the video placing it on top of the clothes on the chair. P.C. Trafford returned into the interview room and asked Mr. Williams to remove his hooded sweatshirt, which he unzipped and handed to P.C. Trafford when he was asked to take it off. The sweatshirt was placed on top of the clothes on the chair and P.C. Trafford then returned into the room. The officer can be heard asking Mr. Williams about whether Mr. Williams is wearing anything under his t-shirt or jeans and Mr. Williams can be heard saying he is wearing shorts under his jeans. While this conversation is occurring P.C. Trafford is conducting a pat down search of Mr. Williams, around his waist and down each leg. The door to the interview room is then closed and Mr. Williams is seen sitting on a chair behind a table. He is wearing a t-shirt and his jeans.

[33] P.C. Trafford testified when he took the satchel from Mr. Williams that had been under the puffy jacket, he was not suspicious of anything. He took it from Mr. Williams by the strap when Mr. Williams undid it and handed it over. P.C. Trafford took it and placed it with Mr. Williams other items of clothing outside of the interview room. Exhibit 2, photograph 47, is the “Puma” satchel Mr. Williams was wearing on his chest under his black puffy jacket.

[34] P.C. Trafford then went to the washroom. P.C. Rosacena arrived at the C.I.B. office after parking the police cruiser, the door to the interview room was closed. P.C. Rosacena testified he saw a dark grey coloured Puma satchel beside Mr. Williams’ puffy jacket outside the interview room. He identified the satchel from Exhibit 2, photograph 47. He had not seen this satchel previously. P.C. Rosacena unzipped the satchel and saw what he thought to be a handgun with a handle similar to the handgun the police are issued, it was black in colour. Exhibit 2, photograph 48, is the satchel with the zipper open and one can see the handgun inside. P.C. Rosacena did not remove the handgun from the Puma satchel but notified the booking Sergeant of what he had located. He then turned the satchel and the handgun over to D.C. Bradley of the Guns and Gangs Unit who was in the C.I.B. office. P.C. Rosacena testified he searched the satchel as a continuation of the search of Mr. Williams incident to his arrest for the original charge of possession of the firearm in a motor vehicle. There are photographs of this handgun and a clip or magazine loaded with bullets, Exhibit 2, Photographs 37-46.

[35] Exhibit 1 is an Agreed Statement of Facts relating to the handgun found in the “Puma” satchel by P.C. Rosacena. This Puma satchel was first observed by P.C. Trafford after Mr. Williams removed his puffy jacket. The firearm in the satchel was a Jimenez Arms handgun and the clip or magazine was loaded with bullets. Mr. Williams did not have an authorization or license which would have permitted him to be in possession of a firearm.

[36] When P.C. Trafford returned from the washroom he learned from P.C. Rosacena that another firearm had been found in the Puma satchel P.C. Trafford had received from Mr. Williams and added to Mr. Williams property outside the interview room. The officers opened the door of the interview room and Mr. Williams was asked to stand, face the back wall, and put his hands against it. P.C. Trafford and P.C. Rosacena can be seen on Exhibit 4 walking into the room. P.C. Sebaaly can be seen standing at the doorway and he was clearly upset by the discovery of the handgun. P.C. Sebaaly was yelling at Mr. Williams about whether he had anything else hidden on him.

[37] P.C. Sebaaly explained that he was sitting at a desk preparing and typing his report of his involvement and he heard that another firearm had been found in a bag that Mr. Williams had under his jacket. P.C. Sebaaly testified this firearm had been brought into the police station by Mr. Williams and could have been used on any of the officers there. P.C. Sebaaly testified he was “pretty shook up about it.” He believed a more detailed search should be conducted on Mr. Williams because of this discovery. It was not a strip search as that would have required the booking Sergeant to authorize such a search and if authorized it would have taken place in a private room by the booking area. P.C. Sebaaly believed a more detailed search should be conducted because of the discovery of a second firearm that had been brought into the police station by a person under arrest. P.C. Sebaaly explained this would be a more thorough search. It was P.C. Sebaaly’s position he did not order P.C. Trafford and P.C. Rosacena to perform a more thorough search. P.C. Trafford and P.C. Rosacena were new officers and he wanted them to know a more thorough search should be conducted. P.C. Sebaaly can be heard on Exhibit 4 indicating to these two officers that a “full” search should be done respecting Mr. Williams.

[38] P.C. Trafford testified Mr. Williams was directed to remove his jeans. He was wearing a pair of shorts (light blue in colour based on the video Exhibit 4), which were under his jeans. These are the blue shorts that Mr. Williams told P.C. Trafford he had on under his jeans and which can be seen sticking out above the waistband of the jeans when Mr. Williams was first placed in the interview room #2 by P.C. Trafford before the “Puma” satchel was first observed. P.C. Trafford believed Mr. Williams had underwear on under his shorts but could not recall the colour. Mr. Williams had already removed his sweater, leaving a black t-shirt, so after he removed his jeans he was wearing a single layer of clothing (black t-shirt and the blue shorts). P.C. Trafford testified he was never naked - top or bottom. P.C. Trafford did a pat down of Mr. Williams waist band on his shorts. Nothing else was located. Mr. Williams t-shirt was not removed. There was no exposure of his genital area as his shorts always remained on. No cavity search was conducted. He did not pat down Mr. Williams genital area. His chest area was patted down while he was wearing his t-shirt. P.C. Trafford did not request that the booking Sergeant authorize a strip search of Mr. Williams. P.C. Rosacena testified in cross that Mr. Williams underwear was never removed. Mr. Williams genitals were never exposed. He did not make a request for a strip search of Mr. Williams to the booking Sergeant after he found the handgun in the satchel.

[39] P.C. Rosacena testified in cross he heard P.C. Sebaaly say on Exhibit 4 that a “full” search should be conducted on Mr. Williams because of the discovery of the firearm. He has never heard this term before. He believed a more thorough search should be conducted because of the handgun being found. A strip search of Mr. Williams was not conducted. P.C. Trafford conducted a more thorough search of Mr. Williams inside the interview room with P.C. Rosacena assisting. Exhibit 4 shows the beginning of this more thorough search where Mr. Williams can be seen at the back wall of the interview room. The video ends as Mr. Williams appears to be stepping out of his jeans to remove them, with both P.C.s Trafford and Rosacena in the room. P.C. Sebaaly can be observed standing in the doorway. In cross-examination P.C. Rosacena was shown two still photographs of Mr. Williams sitting in Interview Room 2 in the chair behind the table, after the more thorough search was conducted. He can be seen wearing a t-shirt and the shorts (light blue in colour) previously described by the officers, the upper portion of these shorts can be seen on Exhibit 4. These photographs were marked as Exhibit 5.

[40] There was no evidence of what other officers were in the C.I.B. office, other than D.C. Bradley of the Guns and Gang Unit. P.C. Westcott and P.C. Armorer were not asked if they were in the C.I.B. office.

Blended Hearing Respecting Charter Application and Dismissal of Charges Facing Sarah Dale at Crown’s Request

[41] Jayden Williams alleged a number of breaches of his Charter rights. It was agreed at the beginning of this trial that these issues could be addressed through a blended hearing. Sarah Dale also alleged a number of similar Charter breaches and at the conclusion of the Crown’s case she testified and called Jayden Wignall and Chelsea Reid Nyamansul as witnesses on the trial proper. Jayden Williams did not testify, either on the Charter application or on the trial proper and did not call any witnesses.

[42] At the conclusion of the evidence Mr. Hegedus invited me to dismiss the charges facing Ms. Dale as he submitted he had not proven beyond a reasonable doubt that she knew there was a small revolver in the fanny pack, which Jayden Wignall could be seen wearing[^2] when the five young people attended Moxie’s Restaurant and which he testified he provided to her as he began to drive Ms. Dale’s Audi prior to the traffic stop by P.C. Gillings. Mr. Hegedus submitted while there might be a reasonable inference that Ms. Dale knew the loaded revolver was inside Mr. Wignall’s fanny pack because of where it was secreted and found by P.C. Westcott, it was not the only reasonable inference available on the totality of the evidence. Ms. Dale denied any knowledge of there being a revolver in Mr. Wignall’s fanny pack. The Crown pointed as well to the fact Mr. Wignall yelled to the police as the fanny pack was being pulled out of Ms. Dale’s pants, “It’s mine, it’s mine.” The police officer present who heard this voluntary utterance by Mr. Wignall all described Mr. Wignall to make this statement “with some urgency” as well he made the statement before the fanny pack was unzipped and the revolver was found. P.C. Sebaaly testified he believed Mr. Wignall’s spontaneous utterance indicated Ms. Dale did not know what was inside the fanny pack. I agreed with Mr. Hegedus’ submissions, which accorded with my assessment of the evidence presented at this trial and as a result, the four charges facing Ms. Dale were dismissed.

Analysis

[43] Written submissions were provided by counsel respecting the charges facing Jayden Williams. Ms. Dresser, on behalf of Jayden Williams has raised four breaches of Mr. Williams’ Charter rights:

a. s. 9 breach: arbitrary detention as there were no reasonable grounds to detain and search the occupants of the vehicle for cannabis;

b. ss. 7 and 10(b) breaches: the occupants of the vehicle were not cautioned that they were under investigation or advised of their right to silence and right to counsel prior to being questioned about the presence of cannabis in the vehicle;

c. s. 9 breach: arbitrary arrest as there did not exist subjective and objective grounds to believe that Mr. Williams was in possession of a firearm; and

d. s. 8 breach: Mr. Williams was subjected to an unreasonable strip search.

The Crown advised in his written submissions that he had intended to indicate before we adjourned that he had not proved Count 4, possession of the Jimenez Arms handgun, knowing the serial number had been removed, beyond a reasonable doubt and therefore that count should be dismissed. I dismissed that charge based on the Crown’s concession.

Jayden William’s Standing Respecting Alleged Breaches of Sarah Dale’s Charter Rights (Did P.C. Gillings have Reasonable Grounds to Search Occupants of Audi)

[44] Respecting the three remaining counts facing Jayden Williams both counsel focused on the issue of standing when addressing the first alleged Charter breach. Ms. Dresser submitted that the case of R. v. Guindon, 2015 ONSC 4317 provided authority that Mr. Williams could argue if I found Ms. Dale’s Charter rights were infringed - that P.C. Westcott’s search of Ms. Dale was a breach of Ms. Dale’s s. 8 Charter rights because P.C. Gillings did not have reasonable and probable grounds to believe an offence under s. 12(1) of the Cannabis Control Act existed - the discovery of the small revolver on Ms. Dale’s person would not provide reasonable and probable grounds to arrest Mr. Williams on a charge of possession of a firearm in a motor vehicle and then search him incident to his arrest. Ms. Dresser argued that Mr. Williams had standing to challenge the reasonableness of the utterances elicited from Ms. Dale and the search of her person. The Crown submitted Guindon did not assist Mr. William’s application as that case was a case-specific determination of the right to privacy of the co-accused as the court orders in question did engage their privacy interests. The Crown submitted Mr. Williams is required to establish a reasonable expectation of privacy in the subject matter of any search that he wishes to challenge – the search here is the search of Ms. Dale’s person as a result of the contravention of s. 12(1) of the CCA. Mr. Hegedus argued Mr. Williams could not have a reasonable expectation of privacy in Sarah Dale’s person and consequently, Mr. Williams has no standing on that issue and is not entitled to challenge that particular search. The Crown conceded Mr. Williams was entitled to challenge his roadside detention. Both counsel refer to paragraph 5 in Guindon as support for each of their positions.

[45] The first issue to be determined is whether the traffic stop initiated by P.C. Gillings was an arbitrary detention or whether he had grounds to do so. I do not believe that Ms. Dresser takes much issue with the fact that P.C. Gillings, who had just turned north onto Brock Road in Pickering from 19 Division and came up behind the Audi 4 being driven by Jayden Wignall, observed the validation sticker was expired. P.C. Gillings testified he ran the license plate of the Audi, observed the owner was Verona Dale and the validation sticker was expired. As a result, he decided to pull over the driver of the Audi and investigate the matter further. In my view this was a valid traffic stop pursuant to the Highway Traffic Act. Ms. Nyamansul testified the first thing P.C. Gillings said, when he came to the driver’s door, was the validation sticker was expired. This confirms P.C. Gillings’ evidence of why he initially stopped the Audi. Pursuant to R. v. Harris, 2007 ONCA 574, paras. 23-27, the detention of the occupants in a motor vehicle as part of a valid HTA traffic stop does not constitute an arbitrary detention.

[46] P.C. Gillings asked Mr. Wignall for his license, insurance, and ownership of the Audi. He testified he could smell a strong odour of marihuana when speaking with Mr. Wignall and he asked Mr. Wignall a question about marihuana. He could not recall the exact wording he used. A female person from the backseat, later determined to be Sarah Dale, said it was her car and there was a gram of marihuana in the cup holder. Ms. Nyamansul testified when the officer asked if there was marihuana in the car, Sarah Dale “blurted out” about marihuana being in the car and pointed to the front of the car – the glove box or center console. Ms. Nyamansul testified she does not smoke marihuana and never saw any marihuana in the front of the car but she was sitting in the back seat behind the front passenger, Mr. Williams. P.C. Gillings testified he saw marihuana in a bag in the cup holder that was not in a government dispensary container. It was not “sealed” in its original packaging. He testified he formed reasonable grounds that s. 12 of the Cannabis Control Act had been infringed and advised all of the occupants of the Audi he intended to search each of the occupants of the vehicle, as well as the vehicle.

[47] Section 12 of the Cannabis Control Act provides:

Transporting cannabis

12 (1) No person shall drive or have the care or control of a vehicle or boat, whether or not it is in motion, while any cannabis is contained in the vehicle or boat.

Exception

(2) Subsection (1) does not apply with respect to cannabis that,

(a) is in its original packaging and has not been opened; or

(b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle or boat.

Search of vehicle or boat

(3) A police officer who has reasonable grounds to believe that cannabis is being contained in a vehicle or boat in contravention of subsection (I) may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it.

[48] The defence took issue with P.C. Gillings’ evidence that he detected a strong odour of marihuana coming from inside the motor vehicle when he began speaking to Mr. Wignall through the open driver’s door window arguing there was no odour of marihuana based on the evidence of the three occupants who testified. Sarah Dale testified she was the owner of the Audi, but it was in her mother’s name. She testified she purchased the Audi A4 in May 2018, when she moved back in with her mother in 2019 she brought her car, parked it in the underground garage (at the end of September 2019). Her mother did not like her smoking weed in the house, so Ms. Dale testified she smoked it in her car, the Audi. She said she smoked weed in the Audi once a day. She testified she didn’t think there was a smell of marihuana in the car. It is my view the evidence of Ms. Dale corroborates P.C. Gillings evidence that when he spoke to the driver he detected a strong odour of marihuana coming from inside the car. In my view there is a reasonable inference because of Ms. Dale’s evidence as to her use of the Audi to smoke marihuana daily that P.C. Gillings did smell a strong odour of marihuana when he was speaking to Mr. Wignall. The odour of marihuana in a motor vehicle provides a contextual basis for a police officer who is initially investigating a driver for an HTA infraction, for example, an expired validation sticker or for failing to stop at a stop sign, to commence an investigation into whether the driver and/or occupants are infringing the provisions of the CCA. P.C. Gillings evidence of Mr. Wignall driving over the curb when he turned into the parking lot was not challenged in the evidence. He testified this was also a concern to him when he detected the strong odour of marihuana and he was also determining whether to commence an investigation as to whether the driver’s ability to operate the vehicle was impaired. He testified he became satisfied that Mr. Wignall’s ability to operate the Audi was not impaired as a result of his dealings with him. On the basis of the evidence it is my view P.C. Gillings’ focus changed from a Highway Traffic Act infraction to be entirely based on the contravention of the CCA as a result of his observation of there being marihuana readily accessible to the driver that was not packed in baggage that was fastened closed or wasn’t sealed in its original packaging.

[49] Further, I agree with Mr. Hegedus that Ms. Dale’s spontaneous utterance about there being marihuana in the cup holder beside the driver goes directly to the formation of P.C. Gillings reasonable grounds respecting a breach of s. 12(1). I do not believe on the evidence P.C. Gillings elicited this utterance from Ms. Dale, rather, in my view this was a voluntary, spontaneous utterance by Ms. Dale – as described by Ms. Nyamansul, where Ms. Dale “blurted out” there was a gram of marihuana in the cup holder in the center console when P.C. Gillings was questioning Mr. Wignall, as the driver.

[50] In my view the issue to be determined is whether I find P.C. Gillings had “reasonable grounds to believe that cannabis is being contained in a vehicle in contravention” of s. 12 (1). In my view both counsel have misconceived the legal test a police officer must meet to establish reasonable grounds. Ms. Dresser in her written submissions argued that P.C. Gillings’ evidence respecting whether the marihuana was in its government container and unsealed when considered with other evidence called on this issue, “raises a doubt as to whether he ever saw marijuana in the centre console.”[^3] This is not the test to be applied to an officer’s formation of reasonable grounds. Further, Mr. Hegedus also mischaracterized the test in his written submissions where he conceded “the Crown agrees that it cannot establish, on a balance of probabilities, that the marijuana was stored in a manner that contravened the Act. It was certainly accessible to the driver, but there is a lack of evidence from PC Gillings regarding the manner in which it was packaged.”[^4] I do not agree with the characterization of either counsel respecting the requirements of the formulation by P.C. Gillings of reasonable grounds.

[51] The standard of reasonable and probable grounds lies somewhere between "reasonable suspicion" and "proof beyond a reasonable doubt." Accordingly, the requirement of reasonable and probable grounds does not require proof beyond a reasonable doubt or even the establishment of a prima facie case. See: R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 (C.A.), at para. 36-37. See also: R. v. Censoni, [2001] O.J. No. 5189, at para. 30-31; R. v. Suntharalingham, 2012 ONSC 6207, [2012] O.J. No. 5145 (Ont. Sup. Ct., Campbell J.), held at paras. 20-21; and R. v. Notaro, [2018] O.J. No. 2537 (C.A.), at paras. 34-44. It also not require the officer to establish on a balance of probabilities his reasonable grounds.

[52] In my view P.C. Gillings honestly believed because of the strong odour of marihuana he detected coming from inside the car, being advised by Ms. Dale from the backseat there was a gram of marihuana in the cup holder beside the driver where he had observed what he believed to be an unsealed bag of marihuana not in its original packaging, he was able to form reasonable grounds the driver was in contravention of s. 12(1) of the Cannabis Control Act, which then entitled him to search all of the occupants in the motor vehicle, as well as the vehicle itself. The proper question in an objective reasonable and probable grounds analysis is not, therefore, the generic one of whether an arresting officer conducted a reasonable investigation, rather, it is the pointed one of whether the officer acted on reasonable grounds. It follows that the outcome of the objective test does not turn on whether the marihuana observed by the officer was ultimately seized. It turns on whether a reasonable person, standing in the officer’s shoes would be able to come to the same conclusion. It turns on the information the officer knew at the time of his making a request that the occupants of the motor vehicle (driver and occupants) exit the motor vehicle to be searched.

[53] The requirement of reasonable grounds is “not an onerous test” and should not be “inflated to the context of testing trial evidence” but “neither must it be so diluted to threaten individual freedom” (R. v. Bush, at para. 46). P.C. Gillings was alone when he conducted the traffic stop of the Audi A4 and after forming his grounds went back to his cruiser to request additional officers to assist in a search of the five occupants of the motor vehicle respecting a search pursuant to the Cannabis Control Act. When he returned to the Audi, P.C. Gillings testified he told the occupants because of the marihuana in the car they were all to be searched to look for marihuana stored in the car illegally. He asked them to exit the vehicle and sit on the curb until other officers arrived at the parking lot. The evidence was that additional officers began arriving within a couple of minutes of P.C. Gillings making the request for backup to assist in a search under the Cannabis Control Act. His request for backup was within a minute or two of his conversations with the driver, the spontaneous utterance and admission by Ms. Dale of there being a gram of marihuana in the cup holder and his own observations, which all resulted in his forming reasonable grounds to search the occupants. In my view this evidence supports the sequence of events as described by P.C. Gillings.

[54] It is my view P.C. Gillings instructions and his actions in requesting the five occupants to sit on the curb in the parking lot support a finding of his honest belief in forming reasonable grounds of a contravention of the CCA. He initiated the traffic stop at 22:51. The vehicle pulled into the school parking lot probably a minute after he activated his cruiser’s emergency lights. P.C. Gillings spoke to the driver for a minute or two and formed his grounds because of the odour and Ms. Dale’s voluntary utterance.[^5] P.C. Westcott testified she was contacted by dispatch to assist P.C. Gillings with searching female passengers of a motor vehicle pursuant to the CCA at 22:55. P.C. Sebaaly arrived on scene around 22:56 and 22:57. P.C. Westcott and P.C. Armorer arrived together at 22:58 at the school parking lot. These officers all confirmed that after they arrived on scene P.C. Gillings advised them he had conducted a routine traffic stop for an expired validation sticker, which he advised the driver of when he first approached the driver’s window. This was confirmed by Ms. Nyamansul in her evidence as she described the officer telling Mr. Wignall he stopped the car because of an expired sticker. He further told these officers after approaching the driver’s window and speaking with Mr. Wignall, he detected a strong odour of marihuana and asked the driver a question about the odour of marihuana he detected. Ms. Dale volunteered there was a gram in the cup holder in the center console, which confirmed P.C. Gillings’ observation of an unsealed package of marihuana in the centre cup holder, which was readily accessible to the driver. P.C. Gillings’ evidence was consistent in my view on this issue, he saw the seal on the package was broken and it was therefore unsealed, but he could not recall if it was open or closed.

[55] I found P.C. Gillings to be a forthright witness. He did not answer questions in a defensive or argumentative manner, rather, I found he was responsive to the questions asked and conceded when he could not recall and did not attempt to embellish or obfuscate. His evidence was consistent that he observed the government seal was broken on the marihuana packaging. He could not recall if the package was open or closed but he was sure it was unsealed. He saw a bag in the cup holder beside the driver before the female in the backseat said there was one gram of marihuana in cup holder in center console. In my view P.C. Gillings and P.C. Westcott, who conducted the search of Sarah Dale, understood the legal limits of their powers under the CCA, as both described their understanding and belief of the authority of an officer to conduct a warrantless search under the CCA.

[56] P.C. Gillings was clear in his evidence that he was conducting an investigation pursuant to the CCA, he advised all of the occupants after forming his reasonable grounds that they were to exit the vehicle so they could be searched. He was looking for more marihuana stored illegally in the vehicle. He testified he had no intention to investigate a criminal charge at that point in time. Once he formed grounds to search the occupants of the Audi pursuant to the CCA, P.C. Gillings testified no one was free to leave and all the occupants were being detained and were told they would be searched to determine if they had marihuana. He indicate in cross the CCA was the same as the LLA, it was provincial legislation. There was no need to give a caution to the occupants. He told them they were being investigated but he did not caution them He never provided them with the right to counsel as it was not necessary.

[57] P.C. Sebaaly testified he arrived on scene and stood in front of the five individuals who had been in the Audi who were sitting on the curb. He advised them they were to be searched pursuant to the Cannabis Control Act. As he was standing in front of these five individuals P.C. Westcott and P.C. Armorer arrived on scene. After they were briefed by P.C. Gillings as to the expired validation sticker, the strong odour of marihuana in the vehicle, his observation of the unsealed marihuana and Ms. Dale’s spontaneous utterance from the backseat that there was a gram in the cup holder where he saw it, P.C. Westcott began searching Ms. Dale under the statutory authority of the CCA relying on P.C. Gillings grounds. During her pat down search of Ms. Dale, P.C. Westcott discovered the fanny pack, which contained a small loaded revolver inside Ms. Dale’s pants. On the totality of the evidence I find that Sarah Dale was likely searched first, pursuant to the contravention of the CCA, and after P.C. Gillings had advised the officers of his reasonable grounds. If P.C. Gillings searched the driver, Mr. Wignall first, in my view this does not have any adverse impact on P.C. Gillings’ formation of reasonable grounds respecting the unsealed bag of marihuana readily accessible to the driver. He did not find anything of concern on Mr. Wignall during his search.

[58] The defence seemed to suggest an ulterior motive on P.C. Gillings’ part alleging that he had discovered that the driver, Jayden Wignall was on probation with non-association terms before he asked the five occupants to sit on the curb and before other officers had arrived on scene. However, on the evidence it is clear P.C. Gillings had already formed grounds concerning the contravention of the CCA prior to returning to his police cruiser to conduct further checks respecting Mr. Wignall, after P.C. Sebaaly and P.C. Westcott and P.C. Armorer had arrived on scene. He had already requested the five occupants to exit the vehicle and sit on the curb. He went back to his cruiser a second time after the three officers arrived and he had advised them of his grounds. He was conducting those checks on his police computer in his cruiser when P.C. Westcott discovered the fanny pack and the revolver in Ms. Dale’s track pants. He heard P.C. Sebaaly advise of a gun being found on one of the individuals in the vehicle over the radio and he then exited his cruiser and assisted in the arrest of all of the occupants.

[59] Ms. Dresser in her Reply Submissions took her submission that P.C. Gillings had an ulterior motive to its logical conclusion arguing that I should “find there was no identifiable smell of marijuana and that it was the non-association conditions that developed PC Gillings interest in removing and identifying the occupants of the vehicle, under the guise of a CCA search.” There was no evidence which would allow for such a conclusion, which in my view is completely speculative and groundless. At no time did P.C. Gillings ask any of the occupants in the Audi to identify themselves by providing their identification. The only individual he asked for identification was Mr. Wignall when he asked Mr. Wignall for his driver’s license and Mr. Wignall advised he did not have a license. P.C. Gillings called for back-up to assist with a search of the five occupants of the Audi, including female officers so that the three female passengers could be searched pursuant to the CCA. When Ms. Dale “blurted out” about the marihuana and that the car was hers P.C. Gillings did not ask her to identify herself. P.C. Gillings provided his grounds to search the occupants pursuant to the CCA to the officers who attended the school parking lot and P.C. Westcott commenced searching Ms. Dale. Identifying the occupants in Audi was not something P.C. Gillings asked any questions of the occupants about. He did not speak to Mr. Williams or Ms. Powell-Jones or Ms. Nyamansul or Ms. Dale and ask for identification. Further, this allegation that P.C. Gillings was using the CCA as a pretext to engage in a criminal investigation of Mr. Wignall was never put directly to P.C. Gillings for him to comment on. He was asked by Ms. Dresser whether his queries and CPIC checks on his computer would be recorded and his calls to dispatch. He indicated they would be, but none were ever put to him to support this allegation. In my view this submission is without any merit whatsoever. I find P.C. Gillings did not have an ulterior motive and he was not using CCA as a pretext to investigate Mr. Wignall for a breach of a non-association charge. Mr. Wignall testified during the trial, called by Ms. Dale’s counsel, and he was not asked about this non-association clause or whether he was not permitted to have contact with any of the occupants of the Audi A4.

[60] P.C. Gillings made a decision that all of the occupants in the vehicle were arrestable for joint possession of the firearm in a vehicle. This was also the same decision made by P.C. Westcott who found the firearm on Ms. Dale and heard Mr. Wignall claim ownership of the fanny pack and gun.[^6] P.C. Sebaaly also testified in his view all of the occupants were arrestable on the charge of possession of a firearm in a motor vehicle pursuant to s. 94 of the Criminal Code.

[61] Ms. Dresser submitted Mr. Wignall testified P.C. Gillings went back to his police cruiser after first approaching the Audi and speaking to him and then he went back to his cruiser before returning and asking questions about marihuana to support her suggestion P.C. Gillings knew of Mr. Wignall’s probation before asking about marihuana. Yet in my view this does not accord with the evidence of Ms. Dale or Ms. Nyamansul who testified P.C. Gillings asked about marihuana when he first approached the car and Ms. Dale volunteered there was a gram of marihuana in the cup holder in center console. Further, Mr. Wignall testified he was the first person to be asked to get out of Audi and he was pushed up against it and searched by P.C. Gillings. He was then seated by himself on the curb. Mr. Wignall did not recall if everyone else was asked to get out of the Audi or if everyone were even sitting together on the curb. He did not pay attention to anyone else being searched, although he knew his fanny pack was found on Ms. Dale and he told the police it was his gun that was inside it. Mr. Wignall’s evidence is conflict with the evidence of Ms. Dale and Ms. Nyamansul.

[62] Both Ms. Dale and Ms. Nyamansul testified all five occupants were requested to exit the Audi and sit on the curb together. P.C. Sebaaly testified all five were sitting on the curb when he arrived and P.C. Gilling was standing in front of them, and no one was searched until P.C. Westcott and P.C. Armorer arrived. He believed Ms. Dale was the first of the five occupants to be searched. P.C. Westcott conducted this search and she discovered the fanny pack and revolver. In my view Mr. Wignall’s evidence was often vague and inconsistent with other witness’ evidence. Further, he testified he did not really recall the sequence of events because he was not paying attention and was only concerned about himself. When Mr. Wignall was asked in cross by Mr. Hegedus whether he was asked about marihuana he testified he did not say anything to P.C. Gillings because he was not aware if there was marihuana in the car. He heard Ms. Dale say there was 1 gram but did not remember where she said it was located or what it was contained in. He did not recall her saying it was in the center console. This was completely inconsistent with his evidence in chief by Mr. Yeghoyan where he testified Ms. Dale said there was a gram of marihuana in a black jar in the middle console. As a result of the inconsistencies in Mr. Wignall’s evidence I do not find him to be a credible or reliable witness and do not accept his evidence where it conflicts with another witness’ evidence.

The Scope of the Search Authorized Pursuant to s. 12(3) of the Cannabis Control Act

[63] In my view P.C. Gillings had reasonable grounds to search all of the occupants in the Audi, as well as the Audi itself because of his reasonable belief that marihuana was contained in the Audi in contravention of s. 12(1) of the CCA. I agree with the Crown’s submission that there is no need for an officer to form reasonable grounds that cannabis is being stored in each part of the vehicle or on the person of the occupants in order for s. 12(3) to authorize a warrantless search of the vehicle or of an occupant. There is very little jurisprudence on this issue, but I prefer the analysis in R. v. J.F. 2015 ONSC 3068 (McKinnon J.), (a summary conviction appeal) at paras. 63-69; R. v. Graham 2018 ONSC 6718 (Code J.) (a trial decision), at paras. 79-84; and R. v. Grant 2021 ONCJ 90 (Calsavara J.) (a trial decision), at paras. 103-107. Further Justice Code and Justice McKinnon both refer to a decision of Justice G.A. Martin in the Ontario Court of Appeal, R. v. Annett (1984), 1985 CanLII 3654 (SCC), 17 C.C.C.(3d) 332[^7] which also supports this analysis.

[64] R. v. J.F. and R. v. Graham are both cases involving s. 32(5) of the Liquor Licensing Act, which for all intents and purposes is identical to s. 12(3) of the CCA.

Conveying liquor in vehicle, boat

32 (1) No person shall drive or have the care or control of a motor vehicle as defined in the Highway Traffic Act or a motorized snow vehicle, whether it is in motion or not, while there is contained in the vehicle any liquor, except under the authority of a licence or permit. R.S.O. 1990, c. L.19, s. 32(1).

Search of vehicle or boat

(5) A police officer who has reasonable grounds to believe that liquor is being unlawfully kept in a vehicle or boat may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it. R.S.O. 1990, c. L.19, s. 32(5).

[65] As Justice Code held at para. 80: “…It can be seen that the statutory power to search the car does not require reasonable grounds to believe that liquor was being unlawfully kept in the satchel in the trunk. It only requires reasonable grounds to believe that liquor was being "unlawfully kept in a vehicle".” Similarly, P.C. Gillings had lawful authority to search the occupants and the vehicle as a result of his discovery of marihuana contained in the Audi in contravention of s. 12(1) of the CCA. I agree with the Crown that the legislative objective behind the Cannabis Control Act is the prevention of drug-impaired driving or operation of a motor vehicle, which represents a threat to the life and safety of members of the public using the roads both as drivers or pedestrians. Further, I agree with the Crown’s submission: “It would entirely defeat the purpose of the legislation if a passenger in the vehicle could conceal marijuana on their person, consequently rendering themselves immune from search, and then return to the vehicle and be in a position to offer that marijuana to the driver for consumption.” The reasoning in R. v. Sappleton in my view is inconsistent with appellate authority and the legislative intent of the CCA.[^8] I do not believe Justice de Sa was provided the decisions of R. v. Annett, R. v. J.F. or R. v. Graham, which I have referred to above.

[66] As a result of my finding that P.C. Gillings had reasonable grounds to believe there was marihuana in the Audi in contravention of s. 12(1) of the CCA, it is my view the search of Sarah Dale by P.C. Westcott did not infringe Ms. Dale’s Charter rights and was authorized pursuant to s. 12(3) of the Cannabis Control Act. It is therefore unnecessary for me to determine whether Mr. Williams has standing respecting a Charter violation in respect of a third party, in this case Ms. Dale, as there was no Charter infringement of Ms. Dale’s Charter rights respecting the search of her person pursuant to s. 12(3) of the CCA.

Was the Detention of the Occupants of the Audi Arbitrary?

[67] Further, Mr. Williams’ detention, as well as all of the occupants in the Audi, was authorized pursuant to s. 12(3) of the Cannabis Control Act. All occupants were requested to exit the Audi around 22:56, after P.C. Gillings radioed for back-up, and in particular he requested a female police officer attend because of the 3 female passengers, to assist in the CCA search. P.C. Sebaaly was the first to arrive on scene just prior to P.C. Westcott and P.C. Armorer, who arrived on scene at 22:58. In my view the delay of 3-4 minutes for additional officers to arrive on scene to ensure officer safety and so the female passengers could be searched by a female officer was completely reasonable and appropriate. The revolver was found at 23:01 by P.C. Westcott, which caused the nature of the police interaction with the five occupants of the Audi to significantly change. This was a rapidly changing, volatile, dynamic situation, which these police officers faced where a lawful traffic stop transitioned into a CCA investigation and search of a vehicle’s occupants, to the discovery of a semi-cocked, loaded revolver hidden inside one of the occupant’s pants. The caution identified by Justice Hill in R. v. Censoni, supra, at para. 43, is apt in this case:

All too often, however, the defendant invites the trial court to engage in minute decisions of the officer's opinion - an opinion developed on the spot without the luxury of judicial reflection. This undoubtedly led McFadyen J.A. in Regina v. McClelland, supra at 517 to observe:

It is neither necessary nor desirable to hold an impaired driving trial as a threshold exercise in determining whether the officer's belief was reasonable.

[68] The fact that the marihuana observed initially by P.C. Gillings was not seized by P.C. Gillings or P.C. Gluckstein, who both searched the Audi after the loaded revolver was discovered inside Ms. Dale’s pants, or the fact it was not photographed by P.C. Richardson, the SOCO officer, in my view does not negatively impact P.C. Gillings’ formation of reasonable grounds. The gram of marihuana that was located in the cup holder beside Mr. Wignall was no longer the focus of the police investigation or the search conducted of the Audi A4. The finding of a loaded revolver on Ms. Dale’s person, secreted between her upper thighs below her bottom, changed this police investigation from a regulatory infraction to a serious criminal investigation – possession of a loaded firearm in a motor vehicle. The search of the motor vehicle was a search incident to the arrest of the five occupants for possession of a firearm in a motor vehicle for the purposes of officer and public safety and to search for any additional evidence of the offence. In my view the failure to seize the marihuana or take photographs of it is completely explained by the turn of events that occurred. These were relatively new and recent police constables who responded professionally and appropriately[^9]

Was Sarah Dale’s Utterance Spontaneous and Voluntary or Elicited by P.C. Gillings Breaching Her Charter Rights?

[69] Ms. Dresser submitted Ms. Dale’s utterance about there being one gram of marihuana in the cup holder in the center console was elicited by P.C. Gillings, as he asked all of the occupants a question about whether there was marihuana in the vehicle. I do not agree with Ms. Dresser’s submission that Ms. Dale’s utterance was elicited by P.C. Gillings. On the totality of the evidence led during this trial, I find that P.C. Gillings was questioning the driver about the odour of marihuana he had detected and that his question was not directed to all of the occupants. He told Mr. Wignall the reason for the traffic stop, advising him the validation sticker was expired. Mr. Wignall did not recall this, but Ms. Nyamansul testified in her evidence this was first thing P.C. Gillings said to Mr. Wignall. In my view this was P.C. Gillings complying with s. 10(a) of the Charter to advise a person who is being detained the reason for the detention. In my view this was a proper lawful traffic stop pursuant to the Highway Traffic Act. As indicated in R. v. Harris 2007 ONCA 574, at paras. 23-27, the detention of a passenger in a motor vehicle as part of a valid HTA stop does not constitute an arbitrary detention. In my view the detention of a passenger during an investigation by a police officer respecting a breach of the Cannabis Control Act under s. 12(1) or the investigation of a driver for a drinking and driving offence is also not an arbitrary detention.

[70] It is my view that there is no Charter obligation on police officers to provide the standard “right to remain silent” caution to anyone whether detained or not or whether a suspect or not as submitted by the defence. R. v. Singh 2007 SCC 48 does not hold that an individual has a Charter right to be provided a police caution upon detention. In Singh, at paras 31-33, the Supreme Court referred to police officers being “well advised” to provide a suspect with a police caution and to the caution as being an important consideration on a voluntariness inquiry. This explains why the police provide cautions to persons who are detained or under arrest. I agree with the Crown that the absence of a caution does not constitute a breach of s. 7 of the Charter.

[71] P.C. Gillings did not question all the occupants concerning the presence of marihuana in the Audi. He was speaking directly to Mr. Wignall who was the driver. In my view Ms. Dale’s interjection that there was 1 gram of marihuana in the cup holder of the center console was made voluntarily and was a spontaneous utterance. This finding is confirmed and supported by Ms. Nyamansul who testified when the officer asked Mr. Wignall a question about marihuana Ms. Dale “blurted out” what she said. None of the other occupants made any comments to what Ms. Dresser characterizes as a question to everyone in the vehicle, including Mr. Williams, who remained silent throughout P.C. Gillings’ interaction with the five occupants. I accept P.C. Gillings and P.C. Sebaaly’s evidence that the five persons in the Audi were advised to exit the vehicle so they could be searched for marihuana. They were directed to sit on the curb until other officers arrived to assist. They were all clearly detained at that point pursuant to the authority of the CCA. This was not an arbitrary detention as it was clearly authorized by the CCA.

[72] Further, I do not agree Ms. Dale’s evidence that the marihuana in the cup holder was in a sealed government dispensary package was uncontradicted by any other evidence. P.C. Gillings’ evidence clearly contradicted her evidence, as he testified consistently throughout his testimony that the marihuana he observed in the cup holder was unsealed, as the seal was broken. In answer to Mr. Yeghoyan (Ms. Dale’s counsel) he testified the marihuana was in a bag and he testified he never said it was in a “container,” as suggested by Mr. Yeghoyan. Further, on P.C. Gillings’ evidence this marihuana was in an area readily accessible to the driver and the front passenger and was not packed in baggage that was fastened closed. Ms. Dale did not say to the officer when she “blurted out” there was 1 gram of marihuana in the cup holder that it was in its original packaging and therefore she was not committing an offence under the CCA. She just volunteered there was a gram of marihuana in the cup holder in the center console. Ms. Nyamansul testified Ms. Dale just blurted out that there was one gram of marihuana in the front of the car and pointed to the glove compartment or front area of the car when the officer asked Mr. Wignall if he had any marihuana. I find Ms. Dale’s utterance was made voluntarily by her and P.C. Gillings’ question was not directed to her as she was not the driver to whom he was speaking to.

[73] I have already indicated my view that the failure of the police to seize this gram of marihuana did not adversely impact P.C. Gillings reasonable grounds. No offence contrary to s. 12(1) of the Cannabis Control Act was charged by the police, so I do not need to determine whether the Crown has proven that offence beyond a reasonable doubt, however, as I have indicated above, the issue on this Charter application is whether P.C. Gillings formed reasonable grounds to believe there was marihuana unlawfully contained in the Audi pursuant to the CCA. As I have found, he had reasonable grounds, which permitted him or other officers to search each of the occupants, as well as the vehicle.

Did P.C. Gillings Breach the Occupants s. 10(b) Charter Rights by Not Advising Them of Right to Counsel When They Were Detained Under the CCA?

[74] Further, there are numerous cases which hold that “the exercise of the rights guaranteed by s. 10(b) is incompatible with the brief roadside detention contemplated by a stop made for road safety purposes:” R. v. Harris, supra, at para. 47; see also R. v. Orbanski, 2005 SCC 37; R. v. Smith 1996 CanLII 1074 (ON CA); R. v. Saunders, 1988 CanLII 197 (ON CA) and such detention does not trigger the rights set out in s. 10(b) of the Charter. These cases are referring to traffic stops pursuant to the HTA or investigations respecting drinking and driving offences, where an police officer can ask a driver, for example, questions respecting whether they have been consuming alcohol or when they consumed their last drink or where an officer detects the odour of marihuana coming from the interior of a motor vehicle during a lawful traffic stop, the officer can question the driver as to whether was he smoking marihuana. P.C. Gillings did not offend against s. 10(b) when he did not advise everyone in the vehicle of their right to counsel. In my view this was not required given the investigation he was conducting. He testified when he originally spoke with the driver and detected the strong odour of marihuana he was also concerned about possible impairment by marihuana because he had observed the Audi drive over the curb when it turned into the school parking lot. He testified he satisfied himself from his conversation and observations of Mr. Wignall that he was not impaired, but this was potentially an issue when he first dealt with Mr. Wignall. Any questions asked by P.C. Gillings of Mr. Wignall concerning his use of marihuana and Mr. Wignall’s response would be admissible to establish the reasonableness of the officer’s grounds but would not be admissible to prove any charge laid.

[75] This is the position the Supreme Court took in R. v. Orbanski, supra, at para. 49, holding the right to counsel was suspended during a traffic stop respecting road safety concerns, which in my view would include investigations pursuant to the Cannabis Control Act, which is a regulatory statute and is complimentary to the Federal Cannabis Act and part of a comprehensive regulatory regime that regulates all aspects of cannabis in Canada. The intent of this provincial legislation was to ensure drivers of motor vehicle do not have marihuana readily available in a motor vehicle or that is not in its original packaging which is sealed when it is being transported. I find there was no breach of Mr. Williams’ s. 10(b) rights when P.C. Gillings asked Mr. Wignall if he had been smoking marihuana or whether there was marihuana in the vehicle.

Did Jayden William’s Arrest for Possession of a Firearm in a Motor Vehicle Breach s. 9?

[76] Ms. Dresser also submitted that Ms. Williams should not have been arrested by the police for the offence of possession of a firearm in a motor vehicle as there was no evidence he had any knowledge or connection or control to the revolver found inside Ms. Dale’s pants by P.C. Westcott. The issue to be determined is whether on the facts known to the officers at the scene when P.C. Westcott found a loaded revolver in a fanny pack in Ms. Dale’s pants that there were reasonable grounds to arrest all five of the occupants who were in the Audi for joint possession of that firearm.

[77] Section 495(1) (a) and (b) of the Criminal Code provides that a peace officer may arrest without warrant a person who has committed an indictable offence or who, "on reasonable grounds," the peace officer believes has committed or is about to commit an indictable offence, or a person whom the peace officer finds committing a criminal offence.

[78] In R. v. St. Clair 2018 ONSC 5173, at paras. 47 - 49, Justice K. Campbell provides a thorough analysis of the “reasonable grounds” standard, which I adopt:

47 The statutory requirement of "reasonable grounds" means that (1) the police officer effecting the arrest must subjectively believe that he or she has reasonable and probable grounds to arrest the accused; and (2) this belief must be objectively reasonable, in the sense that a reasonable person in the position of the officer must be able to conclude that there were, indeed, reasonable and probable grounds for the arrest. See R. v. Storrey, 1990 CanLII 125 (SCC), at pp. 249-251; R. v. Hall 1995 CanLII 647 (ON CA), at pp. 298-299; R. v. Golub 1997 CanLII 6316 (ON CA), at para. 20, leave denied; R. v. Muller, 2014 ONCA 780, at para. 36; R. v. Amare, 2014 ONSC 4119, at para. 83, affirmed, 2015 ONCA 673, at paras. 6-13; R. v. Notaro, 2018 ONCA 449, at paras. 34-36, 39-40.

48 As I have noted on earlier occasions, much has been written about the objective standard of "reasonable grounds" or "reasonable and probable grounds" in an effort to provide this important legal threshold standard with a greater degree of precision. See, for example, Can v. Calgary (Police Service), 2014 ABCA 322, at paras. 107-173; R. v. Shinkewski, 2012 SKCA 63, at para. 13; R. v. Canary, 2018 ONCA 304, at paras. 21-23; R. v. Grant and Campbell, 2015 ONSC 1646, at para. 92; R. v. Aguas, 2015 ONSC 3462, at paras. 55-56; R. v. Gordon, 2018 ONSC 1297, at para. 43; R. v. Williams, 2018 ONSC 3654, at paras. 104-105, 108-111. The governing appellate court jurisprudence articulates the following principles surrounding the practical application of this standard:

a. Proof of reasonable and probable grounds does not require proof of the commission of the alleged offence beyond a reasonable doubt, or even the establishment of a prima facie case against the accused. See R. v. Debot, 1989 CanLII 13 (SCC), at p. 1168; R. v. Storrey, at pp. 249-251; Dumbell v. Roberts, [1944] 1 All E.R. 326 (C.A.), at p. 329; Illinois v. Gates, 462 U.S. 213 (1983), at p. 235.

b. Proof of reasonable and probable grounds does not even require proof of the commission of the offence on the civil standard of the balance of probabilities, or on the basis of a 51% probability. See R. v. Hall, at p. 298; Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, at para. 114; R. v. Jacobson 2006 CanLII 12292 (ON CA), at para. 22; R. v. Loewen, 2010 ABCA 255, at para. 18, affirmed, 2011 SCC 21; R. v. Spence, 2011 BCCA 280, at para. 31; United States v. Garcia, 179 F.3d 265 (C.A., 5th Cir., 1999), at p. 269.

c. In considering whether the arresting officer was objectively possessed of the necessary reasonable and probable grounds, the court must take into account all of the circumstances known by the arresting officer and appreciate that a trained and seasoned police officer is entitled to draw inferences and make deductions drawing on his or her years of experience. See R. v. Rajaratnam, 2006 ABCA 333, at para. 25; R. v. Juan, 2007 BCCA 351, at paras. 17-20, 27-28; R. v. Bush, 2010 ONCA 554, at para. 61; R. v. Nolet, 2010 SCC 24, at para. 48; R. v. Muller, at para. 37; R. v. Biccum, 2012 ABCA 80, at para. 21.

d. The threshold of reasonable and probable grounds demands more than establishing merely a reasonable suspicion of the commission of the offence. See R. v. MacKenzie, 2013 SCC 50, at para. 85.

e. The standard of reasonable and probable grounds is used to define the point at which the state's interest in detecting and preventing crime begins to prevail over the individual's liberty interest in being left alone, namely, at the point where credibly-based probability replaces suspicion. In short, the threshold requires that there must be a "reasonable probability." See Hunter v. Southam Inc., 1984 CanLII 33 (SCC), at pp. 167-168; R. v. Debot, at p. 1166; Baron v. Canada, 1993 CanLII 154 (SCC), at pp. 446-447.

f. Beyond these principles, it may not be possible to more precisely define the nature of the standard of reasonable and probable grounds, or affix specific mathematical percentages, as it is a commonsense threshold designed to provide a practical and non-technical standard based on probabilities, and which permits consideration of the totality of circumstances in each individual case. See R. v. Campbell, 2010 ONCA 588, at paras. 52-54, affirmed, 2011 SCC 32; R. v. Chehil, 2013 SCC 49, at paras. 29, 62, 69; R. v. MacKenzie, at para. 71; R. v. Canary, at para. 22; Illinois v. Gates, at pp. 238, 244; Ornelas v. United States, 517 U.S. 690 (1996), at pp. 695-696; Maryland v. Pringle, 540 U.S. 366 (2003), at p. 371; Safford Unified School District v. Redding, 129 S.Ct. 2633 (2009); Florida v. Harris, 133 S.Ct. 1050 (2013), at p. 1055.

49 In determining the objective reasonableness of a police officer's subjective belief that he or she has the necessary grounds for an arrest, it is worthwhile recalling that such decisions are often "made quickly [by officers] in volatile and rapidly changing situations" where detached "[j]udicial reflection is not a luxury the officer can afford." See R. v. Golub, at para. 18; R. v. Lawes, 2007 ONCA 10, at para. 4; R. v. Carelse-Brown, 2016 ONCA 943, at paras. 47-48.

[79] The formulation of reasonable grounds to arrest the five occupants of the Audi required the officers who came to this decision to subjectively believe there were reasonable and probable grounds to arrest. This belief must also be objectively reasonable, such that a reasonable person standing in the shoes of the officer and having the same information and knowledge must be able to conclude there were reasonable and probable grounds to arrest. It is not necessary for the officer to have proof of the commission of the offence beyond a reasonable doubt or even the establishment of a prima facie case against a suspect. Reasonable and probable grounds does not even require proof on a balance of probabilities or 51% probability. Three officers, P.C. Gillings, P.C. Sebaaly and P.C. Westcott all testified they believed there were reasonable and probable grounds to arrest all five of the occupants of the Audi with possession of the revolver in a motor vehicle. They were each entitled to consider the circumstances surrounding the discovery of this firearm and the connection each person had to it, as well draw upon their training and experience. The police are not required to discontinue or suspend any potential aspects of their investigation until they have fully investigated and drawn any final conclusions respecting any exculpatory explanations or evidence. The cases indicate the police need not completely rule out any potentially innocent inferences, defences, or lawful excuses before properly proceeding with the arrest of an accused. Reasonable suspicion is not enough. The threshold requires “reasonable probability.”

[80] The situation presented to P.C. Gillings and P.C. Westcott was not only was Ms. Dale in possession of a firearm, but Mr. Wignall was claiming ownership of the same gun. When he first heard P.C. Sebaaly advise over the radio that a firearm had been discovered he testified he did not know on who it had been found. When he exited his cruiser he testified he was advised that it was found on one of the female passengers and that the driver, Mr. Wignall, had claimed ownership. This provided strong evidence of joint possession by two of the individuals in the motor vehicle just before the arrest. All five of the individuals had been inside the motor vehicle minutes before the discovery of the firearm on Ms. Dale and all five were in the vehicle when the traffic stop was effected by P.C. Gillings. Further, the location of the firearm inside Ms. Dale’s pants, between her legs, below her bottom, suggested a concerted and deliberate effort on Ms. Dale’s part to conceal or hide the firearm from the police who were initially investigating a HTA offence, then a CCA offence where all five occupants were requested to exit the vehicle and sit on a curb to await the arrival of additional police officers who were going to search them for marihuana. P.C. Westcott testified she had not seen many people put a fanny pack inside their pants, as it has a strap that goes around the waist. She believed this concealment occurred either when the vehicle was being pulled over by P.C. Gillings or some other time between the occupants exiting the vehicle and from them being stopped by the police or the search itself. Her belief was the concealment likely happened in the vehicle and this firearm was jointly possessed by all of the parties in the vehicle. She overheard one of the males say “It’s mine, it’s mine” referring to the fanny pack before P.C. Westcott opened it. At this point she did not know there was a gun inside and did not know what this male was referring to. She did not know who Ms. Dale was hiding this gun for or if it was her gun or someone else’s out of the occupants in the vehicle. It was P.C. Westcott’s and P.C. Gillings’ belief further investigation was necessary, and this would involve the occupants being detained beyond the search authorized by s. 12(3) of the CCA. As a result all parties were further detained, arrested, and advised of their right to counsel and cautioned.

[81] It is important to see the wording of the offence under s. 94 of the Criminal Code:

Unauthorized possession in motor vehicle

94 (1) Subject to subsections (3) and (4), every person commits an offence who is an occupant of a motor vehicle in which the person knows there is a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device, other than a replica firearm, or any prohibited ammunition, unless

(a) in the case of a prohibited firearm, a restricted firearm or a non-restricted firearm,

(i) the person or any other occupant of the motor vehicle is the holder of

(A) a licence under which the person or other occupant may possess the firearm, and

(B) in the case of a prohibited firearm or a restricted firearm, an authorization and a registration certificate for it,

(ii) the person had reasonable grounds to believe that any other occupant of the motor vehicle was the holder of

(A) a licence under which that other occupant may possess the firearm, and

(B) in the case of a prohibited firearm or a restricted firearm, an authorization and a registration certificate for it, or

(iii) the person had reasonable grounds to believe that any other occupant of the motor vehicle was a person who could not be convicted of an offence under this Act by reason of sections 117.07 to 117.1 or any other Act of Parliament; and

(b) in the case of a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition,

(i) the person or any other occupant of the motor vehicle is the holder of an authorization or a licence under which the person or other occupant may transport the prohibited weapon, restricted weapon, prohibited device or prohibited ammunition, or

(ii) the person had reasonable grounds to believe that any other occupant of the motor vehicle was

(A) the holder of an authorization or a licence under which the other occupant may transport the prohibited weapon, restricted weapon, prohibited device or prohibited ammunition, or

(B) a person who could not be convicted of an offence under this Act by reason of sections 117.07 to 117.1 or any other Act of Parliament.

Punishment

(2) Every person who commits an offence under subsection (1)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or

(b) is guilty of an offence punishable on summary conviction.

Exception

(3) Subsection (1) does not apply to an occupant of a motor vehicle who, on becoming aware of the presence of the firearm, weapon, device or ammunition in the motor vehicle, attempted to leave the motor vehicle, to the extent that it was feasible to do so, or actually left the motor vehicle.

Exception

(4) Subsection (1) does not apply to an occupant of a motor vehicle when the occupant or any other occupant of the motor vehicle is a person who came into possession of the firearm, weapon, device or ammunition by the operation of law.

[82] In my view this was a dynamic, fast moving, rapidly changing, volatile and potentially dangerous situation where these young police officers in my view reacted professionally and with restraint in an appropriate manner. As Justice Doherty observed in R. v. Golub, 1997 CanLII 6316 (ON CA), [1997] O.J. No. 3097 (C.A.):

Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant.

(See also R. v. Carelese-Brown, [2016] O.J. No. 6564 (C.A.), at paras. 47-48; R. v. Lawes, 2007 ONCA 10, [2007] O.J. No. 50 (C.A.), at para. 4.)

[83] The defence points out evidence that possibly might be considered as exculpatory respecting Mr. Williams, however, the police are not obliged to accept, at face-value, any exculpatory explanation an accused may provide. Justice Campbell dealt with this in R. v. St. Clair, supra, at para. 50, and made the following observations, which I adopt:

…Indeed, the police may disregard information which they have good reason to believe is unreliable. Nor are the police obliged to discontinue or suspend other potential aspects of their investigation until they have fully investigated and drawn any final conclusions about the effect of any such exculpatory explanations and evidence. In short, the police need not completely rule out any potentially innocent inferences, defences or lawful excuses before properly proceeding with the arrest of an accused. [Cites not reproduced]

[84] Considering the totality of the evidence on this issue I am of the view that P.C. Gillings and P.C. Westcott subjectively believed based on the information they had available there were grounds to arrest all five occupants and further that this belief was objectively based. Their belief was not based on a suspicion, rather, it was based on evidence which pointed to the “reasonable probability” the handgun found in Ms. Dale’s pants belonged to either the individual who claimed ownership, another individual who was an occupant in the car or all five of the occupants were aware and knew of its presence in the motor vehicle and therefore were all jointly in possession of it. As I have indicated previously on two occasions the Crown is not required to establish beyond a reasonable doubt that Mr. Williams was aware of the firearm found on Ms. Dale or that Mr. Williams was aware of it on a balance of probability. All the Crown is required to establish is that on the rapidly changing and increasingly dangerous circumstances presented to these officer they had reasonable grounds to place him under arrest for possession of a firearm in the Audi. This would allow the police to fully investigate and question each of the occupants of the motor vehicle after they each had been advised of their right to counsel and had that right implemented if they requested to speak to their own lawyer or to duty counsel and had been cautioned before being interviewed. There is no breach of Mr. Williams s. 9 Charter right as he has failed to meet his burden of satisfying me on a balance of probabilities that the officers did not have reasonable grounds. In my view there were reasonable grounds, both subjectively and objectively, to arrest Mr. Williams for the offence of possession of a firearm in a motor vehicle.

Did P.C. Trafford and P.C. Rosacena Conduct a Strip Search on Mr. Williams Such that his s. 8 Charter Rights was Infringed?

[85] P.C. Trafford and P.C. Rosacena were dispatched to the Catholic school parking lot on Brock Road because a firearm was discovered during a CCA search of one the occupants of a motor vehicle. When they arrived at 23:02, they were given custody of Jayden Williams who was already handcuffed behind his back. Mr. Williams verbally identified himself. He had been arrested for possession of a firearm. Prior to placing Mr. Williams in the back of their police cruiser, P.C. Rosacena conducted a search incident to arrest. This search was for officer and public safety, to search for weapons or a means of escape. It was a cursory, pat down search, during which P.C. Rosacena did not find any weapons or other contraband.

[86] Ms. Dresser submitted that P.C. Rosacena conducted an unreasonable search of Mr. Williams by searching his pockets. This was not a search pursuant to the Cannabis Control Act, as Mr. Williams had been arrested for possession of a firearm in a motor vehicle. I have already indicated there were reasonable grounds given the circumstances to arrest all five occupants of the Audi for this offence based on joint possession. Although generally speaking warrantless searches and seizures are presumptively unreasonable, nevertheless, appellate courts have recognized the power of police to perform warrantless searches and seizures that are truly incidental to a lawful arrest of an individual. The rationale for this search and seizure power is that when police arrest someone they need to prevent the person from escaping, protect themselves and others from the person using a weapon in their possession or immediate surroundings and to preserve evidence of the offence for which the person is being arrested. See Cloutier v. Langlois, 1990 CanLII 122 (SCC), at pp. 180-182, 186; R. v. Stillman, 1997 CanLII 384 (SCC), at paras. 33-39; R. v. Caslake, 1998 CanLII 838 (SCC), at paras. 17-19, 22-25; R. v. Golden, 2001 SCC 83, at paras. 23-24, 75, 84.

[87] In my view, P.C. Rosacena’s pat down or frisk search of Mr. Williams was completely appropriate as a search incident to his arrest. Generally a search of an individual incident to arrest usually permits an officer to run his or her hands quickly over the body of the accused, outside his or her clothing, for purposes of (1) ascertaining what, if any, objects, or weapons may be on the arrestee's person; and (2) discovering and preserving any evidence of the alleged offence. In some circumstances, where justified, such searches may include an examination of the arrestee's pockets. In my view this was such a case, given the discovery of a loaded revolver inside Ms. Dale’s pants, P.C. Rosacena’s search of Mr. Williams’ pockets where he discovered an iPhone, phone charger, ear buds and black gloves, was proper given the legitimate concern for officer safety considering the offence Mr. Williams was arrested for and the totality of the circumstances.

[88] Ms. Dresser also alleges that Mr. Williams was strip searched at 19 Division in Interview Room 2 by P.C. Trafford. She concedes that once the loaded handgun was discovered by P.C. Rosacena in the “Puma” satchel that had been fastened around Mr. Williams’ shoulder under his black puffy jacket, the police had reasonable grounds to conduct a strip search. Her complaint is that the strip search was not conducted in a reasonable manner.

[89] The first issue to determine is whether a strip search was even conducted by P.C. Trafford respecting Mr. Williams. P.C. Trafford’s evidence was consistent throughout that he did not conduct a strip search of Mr. Williams after the loaded handgun was found by P.C. Rosacena in the “Puma” satchel. At no time was Mr. Williams ever naked, his genitals were never exposed, his t-shirt was never removed, Mr. Williams’ buttocks was never exposed. This was confirmed by P.C. Rosacena who was standing beside P.C. Trafford in the interview room when a more thorough search was conducted after the discovery of the handgun in the “Puma” satchel.

[90] No formal or expert evidence was called during Mr. Williams’ trial by Crown or defence as to whether the Durham Regional Police Service has formal protocols or Orders to be followed by police officers who wish to conduct a strip search of a person under arrest as part of a search incident to arrest. The only evidence came from the police officers who testified on this trial and no protocols or Orders issued by the Durham Regional Police Service were put to the officers. All of officers testified if an officer believes there are reasonable grounds to conduct a strip search they must first obtain authorization from the booking Sergeant before searching an arrestee in this way.

[91] P.C. Westcott obtained authorization from Sgt. Baggio to conduct a strip search on Sarah Dale as a result of learning that another loaded handgun was discovered on one of the other occupants of the Audi in the police station. This strip search was conducted by P.C. Westcott and P.C. Armorer in a private room with the door closed to afford Ms. Dale privacy and did not involve her being totally naked and did not involve a cavity search.

[92] P.C. Trafford, P.C. Rosacena and P.C. Sebaaly all testified that authorization must be sought and given by the booking Sergeant for an officer to conduct a strip search. They all agreed there must be reasonable grounds to support such an invasive form of search. They all agreed that a strip search would be conducted with two officers present in a private room, which they testified was beside the booking area and the door to this private room would be closed to afford privacy to the individual.

[93] After P.C. Rosacena discovered the loaded handgun in the “Puma” satchel P.C. Trafford had taken from Mr. Williams, he contacted Sgt. Baggio, who told him to give the firearm to D.C. Bradley from the Guns and Gangs Unit. P.C. Sebaaly testified he was preparing his report at a computer in the C.I.B. office and he became quite upset and shaken because a firearm had been brought into the police station by an individual who was under arrest. He testified this firearm could have been used against police officers in the station. P.C. Sebaaly’s upset is reflected in his reaction to Mr. Williams when he stood by the doorway to Interview Room #2 and he yelled at Mr. Williams.

[94] Mr. Williams was told to stand against the wall of the interview room and his blue shorts can be seen above his jeans, which are halfway down his buttocks. P.C. Trafford and P.C. Rosacena come into interview room. The following questions and answers between the officers and Mr. Williams is taken from the video, Exhibit 4:

P.C. Trafford: So before we go any further. Is there anything else on you?

P.C. Sebaaly: Okay, so don’t lie to us. This is your time. If there is anything hidden on you. You tell me now. You understand. We’re not playing games.

P.C. Sebaaly: We’re not playing games. Where is it?

Mr. Williams: Where’s what?

P.C. Sebaaly: Is there something else hidden on you?

Mr. Williams: No

P.C. Trafford: Was there anything else on you?

Mr. Williams: [Makes comment about only having his phone in his pocket but the majority of his comment is unintelligible]

P.C. Sebaaly: Okay let’s go guys Full search then

P.C. Trafford: You have shorts underneath?

Mr. Williams: Yeah.

[95] Mr. Williams can be seen on the video reaching down with his hand to assist the officers in taking down his jeans and P.C. Sebaaly says “hands on the wall.”

[96] At no time did P.C. Sebaaly or the other officers advise Mr. Williams that he would be facing a new charge of possession of a firearm as a result of P.C. Rosacena discovering the loaded handgun in the “Puma” satchel, nor did any officer read Mr. Williams his right to counsel in respect of this new charge nor did any officer caution Mr. Williams prior to having the above exchange with him. In my view this failure to advise Mr. Williams he was now facing an additional charge of possession of a loaded firearm, as well as his right to counsel as a result of the change in circumstances. Further, the officers did not caution him respecting any comments or answers he might make to the officers questions. In my view this conduct amounted to a breach of Mr. Williams’ s. 10(b) Charter rights. This was not one of the four Charter breaches alleged by the defence. I will deal with the three factors pursuant to R. v. Grant in a s. 24(2) analysis after completing my analysis of the defence allegation of the police performing a strip search of Mr. Williams and breaching his s. 8 Charter rights.

[97] P.C. Sebaaly testified he believed a more thorough or detailed search of Mr. Williams was necessary as this handgun had been missed when a cursory “pat down” search was conducted at the scene. He knew P.C. Rosacena and P.C. Trafford had recently joined DRPS as police officers and he wanted them to be aware they should conduct a more thorough search. This was why he can be heard on Exhibit 4, the video, to say they should perform a “full” search. He testified he was not ordering them to perform a more thorough search and he did not mean they should do a strip search.

[98] Both P.C. Trafford and P.C. Rosacena testified they heard P.C. Sebaaly make reference to a “full” search, but this was a term they were not familiar with and had not heard previously. P.C. Trafford testified he performed a further search of Mr. Williams to ensure no other weapons or firearms were on his person. P.C. Rosacena advised he found the firearm was in the “Puma” bag that had been around Mr. Williams’ chest. P.C. Trafford requested Mr. Williams remove further clothes down to only one layer, down to his shorts. He did a pat down of the waist of his shorts. Nothing else was located. There was no exposure of Mr. Williams’ genitals and his blue shorts were not removed. No cavity search was conducted on Mr. Williams. He patted down Mr. Williams’ chest. He did not pat down his genital area. He did pat down Mr. Williams’ thighs and legs. No force was used to conduct this more thorough search. The video remained on to the point Mr. Williams began removing his jeans. P.C. Sebaaly testified he possibly was the one who turned off the video as he knew the switch was just outside the interview room beside the door. P.C. Trafford testified he did not request authorization to conduct a strip search of Mr. Williams. He was aware anything exposing an arrestee’s genitals or buttocks would be a strip search. This did not occur.

[99] P.C. Rosacena did not conduct the more thorough search of Mr. Williams when he and P.C. Trafford went back into the interview room after he had discovered the handgun in the “Puma” satchel. Prior to entering the interview he and P.C. Trafford had decided to conduct a more thorough search of Mr. Williams. On Exhibit 4 P.C. Rosacena is standing by Mr. Williams with his hand against Mr. Williams’ back as he is standing facing the back wall with his hands above his head on the wall. His hands were on the wall for officer safety. P.C. Rosacena did not do any patting down of Mr. Williams, this was done by P.C. Trafford. Mr. Williams’ t-shirt was never removed. His underwear was not removed. The blue garment, Mr. Williams’ shorts, which can be seen on the video, was never removed. P.C. Rosacena never observed Mr. Williams’ genitals or buttocks as they were never exposed. P.C. Rosacena testified he never requested a strip search and has never personally done one. P.C. Rosacena could not recall if Mr. Williams’ jeans were removed but agreed when shown still photographs taken from a later portion of the video from Interview Room #2 that Mr. Williams’ jeans had been removed because he can be seen wearing a black t-shirt and the blue shorts, Exhibit 5.

[100] At the scene P.C. Rosacena testified he only did a cursory search, patting down Mr. Williams chest over his clothes and puffy jacket and did not feel anything. Mr. Williams was handcuffed to his rear when he and P.C. Trafford took custody of him at the scene. I have no doubt the discovery of the handgun in Mr. Williams’ “Puma” satchel, underneath his black puffy, over-sized, winter jacket, at the police station caused alarm and shock among P.C.s Trafford and Rosacena who had taken custody of him and conducted the cursory pat down search at the scene, as well as any other officer who became aware of this occurrence. Similarly, P.C. Sebaaly’s upset and shock are fully on display in his reaction to Mr. Williams. He candidly admitted to being “pretty shook up about it.” It is my view, however, despite P.C. Sebaaly’s outburst at the doorway of the interview room, both P.C. Trafford and P.C. Rosacena conducted themselves in a professional and appropriate manner when they entered the interview room and requested Mr. Williams to stand facing the back wall. They do not display any upset or anger towards Mr. Williams. Mr. Williams’ conduct in bringing a loaded firearm into a police station, secreted in a satchel, attached to his chest under his winter jacket is extremely serious and dangerous conduct. It is my view Mr. Williams was fully aware he had a loaded handgun in this “Puma” satchel attached around his chest under his jacket when he was arrested and handcuffed to the rear. In my view both P.C. Trafford and P.C. Rosacena showed restraint and calm in their dealings with Mr. Williams after the handgun’s discovery. I accept their evidence that a strip search was not conducted. There is no evidence from any source that contradicts their evidence. P.C. Trafford conducted a more thorough search than had been done at the scene to ensure officer safety and also ensure Mr. Williams’ safety if in fact he still had another weapon of any sort concealed on his person.

[101] I found both officers to be credible and reliable witnesses and do not believe they were deliberately lying or attempting to mislead the Court in any way. P.C. Trafford was able to describe the nature and extent of the search he conducted and in my view it was reasonable, proportionate, and carried out in a manner that maintained Mr. Williams’ privacy and personal dignity.

[102] The submissions of the defence in my view are completely speculative. There is no evidence which could support a finding that there was a strip search conducted on Mr. Williams while he was in Interview Room #2. While Mr. Williams is not required to testify on a Charter application and no adverse inferences can be drawn from his not testifying, I do not have any evidence as to what he believed was occurring when he was further searched in this interview room. The evidence of P.C. Trafford and P.C. Rosacena is completely uncontradicted by any other evidence. I have no doubt that P.C. Sebaaly indicated a “full” should be conducted but I do not believe he ordered the two officers to conduct a strip search and I accept his evidence respecting this. As I indicated, no evidence was led as to the import or meaning of the various terms referred to in the evidence. One thing is clear from the evidence and that is only P.C. Sebaaly used the term “full” search, which both P.C. Trafford and P.C. Rosacena testified they had never heard this term used previously and did not know what it meant. I accept their evidence that they clearly understood the protocol requiring them to obtain authority from the booking Sergeant to conduct a strip search and where and how and under what circumstances a strip search could and should be conducted. It is my view, given the discovery of a second loaded firearm on the person of one of the five occupants of the Audi, had P.C. Trafford or P.C. Rosacena requested they be permitted to conduct a strip search on Mr. Williams in the private room by the booking area, reasonable grounds existed to justify such a search. The defence concedes this in her written submissions. I find this was not requested and a strip search was not conducted by P.C. Trafford or P.C. Rosacena. Requiring Mr. Williams to remove his jeans, which revealed a pair of shorts, was entirely a reasonable and proportionate search in the circumstances, which respected Mr. Williams’ privacy and personal dignity. The fact the interview room door was left open with P.C. Sebaaly standing in the doorway did not change the reasonableness of this more thorough search. There was no evidence of any female police officers being in the C.I.B. office, however, even if on or more female officers had been in that office in my view Mr. Williams was completely clothed and his privacy and personal dignity was not breached in any way. I find Mr. Williams’ s. 8 Charter rights were not infringed by the secondary search conducted in Interview Room #2 after the discovery of a loaded handgun found on his person secreted under his winter puffy jacket.

S. 24(2) Analysis: R. v. Grant

[103] According to the Supreme Court in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, there is a three-pronged test that must be applied when considering the admissibility of evidence under s. 24(2) of the Charter. More particularly, the court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to the following factors: (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. The court must consider all of the circumstances of the case in conducting this balancing assessment.

[104] Considering the first factor, the seriousness of the Charter-infringing state conduct, in my view while P.C. Sebaaly’s upset and shock over the discovery of a loaded handgun on the person of an arrested individual at the police station is understandable, it is unacceptable and P.C. Sebaaly should have controlled his upset and complied with Mr. Williams’ Charter rights to be advised and arrested of the new charge of possession of a loaded handgun and advised of his right to counsel and cautioned on this new charge as well. Given how the officers responded at the school parking lot when the loaded revolver was discovered inside Ms. Dale’s pants and all of the five occupants were arrested and provided with their rights to counsel and cautioned by the police officers who responded, which included P.C. Sebaaly, it is my view P.C. Sebaaly’s conduct was not part of a systemic practice on his part but rather, was a reaction to a highly charged and upsetting circumstance. Mr. Williams should have been advised first of the new charge and provided with his right to counsel because of the changed circumstance. I would describe the conduct of P.C. Sebaaly as a technical breach given Mr. Williams’ responses that he did not have any other weapons on his person, however, this breach would still favour exclusion of any comments he made in response to P.C. Sebaaly’s questions. I do not believe however that P.C. Sebaaly’s conduct would result under this factor in the exclusion of the loaded handgun that had been discovered prior to P.C. Sebaaly’s questioning. Further, it was this prior discovery of the handgun that caused P.C. Sebaaly to act unprofessionally when he was questioning Mr. Williams as to whether he had any further weapons on his person. In my view this factor would not favour exclusion of the handgun.

[105] The second factor relates to the impact on Mr. Williams’ Charter protected interests, which in my view were minimal given the Crown did not seek to introduce any of Mr. Williams’ responses. Further, the loaded handgun is real evidence that was discovered by the police in his “Puma” satchel prior to P.C. Sebaaly engaged Mr. Williams by asking him questions in what could be described as an aggressive loud manner given P.C. Sebaaly’s upset and shock over the discovery of this loaded handgun on Mr. Williams’ person. The questioning did not lead to the discovery of the loaded handgun but rather was a reaction to the discovery of the loaded handgun, which, as I found, was part of a lawful search incident to arrest of Mr. Williams on a charge of possession of a firearm in a motor vehicle. In my view this factor favours the admission of the handgun.

[106] Finally, society’s interest in the adjudication of the case on its merits is clear. The exclusion of reliable evidence undermines the accuracy and fairness of the trial from the perspective of the public and may tend to bring the administration of justice into disrepute. The importance of the evidence to the Crown's case is also a factor to be considered under this aspect of the inquiry. The exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively terminates the prosecution.

[107] For all of the above reasons it is my view this technical breach of s. 10(b) should not result in the exclusion of the loaded handgun on a balancing of all three factors.

Possession of a Restricted Firearm

[108] Having found no breaches of Mr. Williams’ Charter rights throughout his involvement with the police the Jimenez Arms handgun discovered in the “Puma” satchel, attached around Mr. Williams’ chest, under is black Puffy jacket, which was zippered closed is admissible.

[109] The defence argued that while Mr. Williams was clearly in control of this handgun there was no evidence that he knew the handgun was in the satchel or that it was loaded. She submitted there was no evidence as to when Mr. Williams came into possession of the “Puma” satchel, at the Moxie’s Restaurant his black puffy jacket was removed, and he did not appear to have the satchel attached to his chest. It was suggested there were opportunities for one of the other occupants to have provided the satchel to Mr. Williams after the traffic stop or Mr. Williams could have picked it up from the Audi as he was exiting or from one of the other occupants or while they were all sitting on the curb. Ms. Dresser submitted the evidence allowed for a reasonable inference that someone could have passed Mr. Williams this bag when the revolver was found on Ms. Dale. Finally, the defence argued even if the Court found Mr. Williams knew or was willfully blind to the presence of the firearm in the satchel, this was still not sufficient to prove beyond a reasonable doubt he knew it was loaded.

[110] The Crown submitted the only reasonable inference available on the totality of the evidence is that Jayden Williams knew the satchel contained a loaded firearm.

[111] As in any criminal case, Jayden Williams is presumed innocent until proven guilty. I have reminded myself that I need not firmly believe or disbelieve any witness and that I can accept all, some, or none of a witness’ testimony. I have also reminded myself that the Crown must prove the essential elements of the offence beyond a reasonable doubt, as this term has been defined and explained by the Supreme Court of Canada in R. v. W. (D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.). Proof of a probability of guilt does not amount to proof of guilt beyond a reasonable doubt. Proof of guilt to a near certainty is required in criminal proceedings.

[112] The onus remains on the Crown to prove Mr. Williams’ guilt beyond a reasonable doubt throughout his trial. A reasonable doubt is a doubt based on reason and common sense, one that arises logically from the whole of the evidence or absence of evidence. I recognize that the rule of reasonable doubt applies to the issue of credibility. Accordingly, I must ask whether the evidence that I do accept convinces me of his guilt beyond a reasonable doubt. In this case there were originally two defendants, and Ms. Dale testified on her own behalf and called other witnesses. At the conclusion of the evidence the Crown invited me to dismiss the charges facing Ms. Dale as he had not proved those charges in relation to her beyond a reasonable doubt. Mr. Williams chose not to testify on the Charter application or on the trial proper, which is his right. In deciding whether the Crown has met their onus to prove Mr. Williams’ guilt beyond a reasonable doubt I must consider the totality of the evidence called on this trial, including the evidence led by Ms. Dale’s counsel to determine whether I accept the evidence given or if I do not accept the evidence given, whether it raises a reasonable doubt in respect of the evidence as a whole.

[113] A determination of guilt or innocence must not, however, devolve into a mere credibility contest between the Crown’s evidence and the evidence called by the defence. Such an approach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: W. (D.), supra.

[114] Ultimately, if I have a reasonable doubt on the whole of the case that arises from the evidence of the Crown witnesses, the evidence of a defendant or the evidence of any other defence witness, or the absence of evidence, the charge must be dismissed: R. v. Lifchus (1997), 1997 CanLII 319 (SCC), 118 C.C.C. (3d) 1 (S.C.C.).

[115] I have also reminded myself that circumstantial evidence may or may not prove a fact from which an inference may be drawn, that is, a factual conclusion that logically and reasonably flows or may be drawn from that evidence. However, I have also reminded myself that the only inferences that may be drawn are those based solely on the evidence in this case, and that they may not and must not be based on conjecture or speculation. It is speculative to draw an inference when there is no direct or indirect factual or evidential basis to support it. However, it is the cumulative effect of all of the evidence that must meet the standard of proof beyond a reasonable doubt, not each individual item of evidence.

[116] More importantly, I have reminded myself that where the only evidence relative to a particular fact that is alleged is circumstantial evidence, before I can find the accused guilty on the basis of that evidence, I must be satisfied beyond a reasonable doubt that proof of the particular element of the offence, or guilt relative to the offence as a whole, is the only reasonable or rational conclusion or inference that can be drawn from the whole of the evidence. It is important to note that I do not need to be satisfied to that standard relative to each individual piece of evidence, particularly where more than one conclusion may flow from the particular piece of evidence under consideration. However, within the context of the evidence as a whole, I must be satisfied that the Crown has made out the elements of the offences beyond a reasonable doubt.

[117] Therefore, where the Crown relies upon circumstantial evidence to prove the essential elements of the offences beyond a reasonable doubt, the test, pursuant to R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 55-56 is “whether the trier of fact, acting judicially, could reasonably be satisfied that the accused's guilt was the only reasonable conclusion available on the totality of the evidence,” (see also R. v. Wu, 2017 ONCA 620, [2017] O.J. No. 3868 (C.A.), at paras. 9 and 14-15.)

[118] Justice Cromwell, for the Court in Villaroman, cautioned in para. 30:

It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of "filling in the blanks" by too quickly overlooking reasonable alternative inferences . . . The inferences that may be drawn from this observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

[119] It is my view the location of the “Puma” satchel leads to only one reasonable inference and that is this satchel was Mr. Williams, as was the handgun secreted inside the satchel. The fact there is a Snap Chat video, Exhibit 9 and a still taken from that video, Exhibit 9A, which shows Mr. Williams eating and not wearing his black puffy winter jacket and the “Puma” satchel does not appear to be around his chest, should not be looked at in isolation but rather should be considered looking at the totality of the evidence. When Mr. Williams removes the black puffy jacket in Interview Room #2, he is wearing the “Puma” satchel over his left shoulder and under his right shoulder on top of his hoody. This, in my view, leads to the reasonable inference he took off the “Puma” satchel while he was at Moxie’s and reattached it before leaving under his jacket, which reflects the fact it was his satchel. Mr. Wignall, who is sitting beside Mr. Williams, is still wearing his fanny pack with the loaded revolver while he is eating at Moxie’s. The Snap Chat video and still photo show Mr. Wignall with only the fanny pack he ultimately gives to Ms. Dale and which is found by P.C. Westcott when she searches Ms. Dale pursuant to the CCA inside Ms. Dales pants.

[120] Mr. Williams, after finishing his meal and prior to leaving Moxie’s has concealed the “Puma” satchel under his black puffy jacket. Given how the “Puma” satchel is attached over the left shoulder and under the right shoulder in the front of his body, in my view leads to the reasonable inference he reattached it to the front of his body before he put his puffy jacket back on before he left Moxie’s. There is no evidence to support the submission that someone else gave him this “Puma” satchel either in the Audi A4 or on the curb of the Catholic school. None of the witnesses who testified who were at Moxie’s testified they provided this satchel to Mr. Williams. In fact, Ms. Dresser in cross-examining Ms. Dale, Ms. Nyamansul and Mr. Wignall brought from each of them that they never saw Mr. Williams with a satchel, which in my view leads to a reasonable inference that at the Moxie’s restaurant Mr. Williams did not advertise his possession of this “Puma” satchel with those who were present and did not show them his “Puma” satchel.

[121] Both Ms. Nyamansul and Mr. Wignall testified they did not see any bags being passed inside the Audi. Both of them were asked if they saw Mr. Williams with a bag and they both indicated they did not, which in my view also supports the reasonable inference he had removed the “Puma” satchel at Moxie’s from his chest and reattached it before putting on his jacket and leaving Moxie’s. No suggestion was put to Ms. Nyamansul or Mr. Wignall or Ms. Dale that they or Ms. Powell-Jones had passed a bag to Mr. Williams prior to the traffic stop by P.C. Gillings or that anyone passed a bag to Mr. Williams while they were sitting on the curb.

[122] P.C. Gillings testified he requested the five occupants in the Audi to exit the Audi so they could be searched for marihuana. He was watching the five as they exited the Audi and then as they all sat on the curb awaiting the arrival of other officers. In my view, there is also evidence from P.C. Sebaaly that when he arrived all five of the occupants were sitting on the curb with P.C. Gillings standing in front of them. P.C. Sebaaly testified he then took up a position in front of the five, standing in the middle where he was able to observe them all, and he advised them as well that they were going to be searched for marihuana pursuant to the CCA once other officers arrived on scene. Neither officer saw anything passed between the five individuals as they sat on the curb. It does not make sense for Mr. Williams to agree to take this “Puma” satchel from one of the others in the Audi and conceal it under his puffy jacket when they have been advised by P.C. Gillings and P.C. Sebaaly they are each going to be searched. Further both P.C. Westcott and P.C. Armorer were involved with the three young woman before and after the loaded revolver was found in Ms. Dale’s pants and they did not see any of these women pass a satchel to Mr. Williams.

[123] Further, the physical feat of being able to put the “Puma” satchel over one shoulder and under the other shoulder while wearing this puffy jacket would be impossible in my view, unless he removed the jacket first, which was not observed by any police officer present or Ms. Nyamansul or Mr. Wignall or Ms. Dale and prevents the reasonable inference suggested by the defence from being formed.

[124] Mr. Williams’ fingerprints or DNA does not need to be on the handgun or the “Puma” satchel, nor does there need to be any identifying documents or personal items belonging to Mr. Williams inside the bag. He is wearing the satchel against his chest under his jacket and it is therefore on his person. This leads to a reasonable inference the satchel and its contents are his property. The fact that Mr. Williams did not demonstrate any suspicious behaviour to suggest he had a loaded handgun in a satchel concealed under his jacket does not support an inference he did not know there was a handgun in the satchel. The satchel was concealed, it was not carried over his shoulder outside of his jacket in the same manner the three young women carried their bags and Mr. Wignall was carrying his fanny pack.

[125] The police had no information about any of the occupants which would have caused them to be suspicious of these five young people. This fact supports the forthrightness of P.C. Gillings’ focus of searching the five occupants of the Audi pursuant to the CCA and demonstrates convincingly that he had no ulterior motive to use the CCA as a pretext to gain information about whether Mr. Wignall was breaching his bail’s non-association clause. Both P.C. Trafford and P.C. Rosacena testified they were not suspicious of Mr. Williams’ satchel. P.C. Rosacena had not seen the “Puma” satchel previously on Mr. Williams’ person because it was hidden under the black puffy jacket and he opened it because of concerns for officer safety, having regard to the fact a loaded firearm had been found on one of the occupants of this vehicle and Mr. Williams was arrested with the other occupants for joint possession of that firearm. There is a reasonable inference from P.C. Rosacena’s point of view that P.C. Trafford had discovered this “Puma” satchel on Mr. Williams’ person underneath his jacket or sweater. In my view it was completely appropriate and proper for P.C. Rosacena to unzip the satchel for officer safety to determine if there were any weapons or means of escape.

[126] I agree with the Crown’s submission that it does not accord with common sense for Mr. Williams to accept a bag from one of the other occupants in the Audi, either in the car before they are asked to exit or while sitting on the curb waiting to be searched, especially not knowing what this “Puma” satchel contained.

[127] Ms. Dresser conceded in her written submissions that I cannot engage in speculation and in my view if I were to accede to the defence submissions I would be engaging in pure speculation as there was no evidence to support an inference that one of the other occupants provided the “Puma” satchel to Mr. Williams. In my view the only reasonable inference available on the totality of the evidence is that the “Puma” satchel belonged to Mr. Williams, as did the Jimenez Arms handgun and magazine loaded with bullets inside it and that he had knowledge and control of the handgun given the manner in which he concealed it under his jacket. Further, on the totality of the evidence and the circumstances surrounding his possession of the handgun I have no doubt he knew the handgun was loaded with bullets.

[128] Consequently, after considering the totality of the evidence called during this trial it is my view the Crown has proven the three remaining charges beyond a reasonable doubt.

Released: September 17, 2021

Signed: Justice Peter C. West

[^1]: I will deal further with Ms. Dale’s possession of Mr. Wignall’s fanny pack later in my reasons.

[^2]: Exhibits 6, 7, 9 and 9(a), Snap Chat videos taken by Sarah Dale of the group going into Moxies, sitting at a table eating dinner.

[^3]: Defence Submissions, at para 14.

[^4]: Crown Written Submissions, at para. 20.

[^5]: I will discuss my assessment of Ms. Dale’s utterance in more detail later in my reasons.

[^6]: I will deal further with this decision by the police when I address the defence allegation of Mr. Williams being arrested improperly or illegally for the offence of possession of a firearm in a motor vehicle as no reasonable grounds existed to do so.

[^7]: R. v. Annett, supra, was cited with approval in R. v. Nolet, 2010 SCC 24, [2010] S.C.J. No. 24, which Justice Calsavara referred to in R. v. Grant, supra, at para. 94: “…where there is a 'dual purpose' or other valid investigative interest (even one short of independent grounds) for a detention, it does not negate the lawfulness of a valid HTA/road safety stop or its Charter compliance. A Court has to look through each stage of investigation at the roadside where other grounds arise that transition an investigation: R. v. Nolet, [2010] S.C.J. No. 24; R. v. Annett (1984), 17.C.C.C. (3d) 332 (Ont. C.A.); Brown v. Durham Regional Police Force, [1988] O.J. No. 5274 (Ont. C.A.).

[^8]: In R. v. Sappleton, 2021 ONSC 430, at paras. 11, 18, 32, 37 and 68, Justice C. de Sa found that the investigating officers search of the motor vehicle pursuant to the CCA was a pretext to search the vehicle for firearms and therefore not for marihuana because of the Special Interest Police (SIP) notification on CPIC that the Applicant was the subject of a Guns and Gangs investigation and was believed to be in possession of a firearm. It is my view this finding significantly coloured the officers’ search of the motor vehicle in this case. This consideration is not present in the case before me as I earlier in my reasons.

[^9]: I will discuss in more detail later in my reasons the appropriateness of all five occupants being charged with possession of a firearm in a motor vehicle.