Ontario Court of Justice

Date: 2022 12 30 Court File No.: Brampton 21-4021-01 21-4021-02 21-4021-03

Between:

HIS MAJESTY THE KING

— AND —

JAHLIEL THOMAS, SCHAKEIL NIXON and MALEIK GORDON

Before: Justice McCallum

Heard on: May 2, 2022

Ruling on Constitutional Challenge of s. 12 (3) of the Cannabis Control Act, 2017, S.O. 2017, c. 26, Sched. 1

Released on: December 30, 2022

Counsel: J. Kingdon, counsel for the Respondent Crown G. Eliany, counsel for Applicant Jahliel Thomas H. Singh, student for R. Gupta, counsel for Applicant Schakeil Nixon L. Wilhelm, counsel for Applicant Maleik Gordon

McCALLUM J.:

[1] The Defence has brought an Application seeking an order declaring that s. 12 (3) of the Cannabis Control Act violates s. 7 and s. 8 of the Charter. The Applicants argue that s. 12 (3) is both unreasonable and overbroad in contravening the Charter. Furthermore, they argue that s. 12 (3) is not a reasonable limitation on these Charter rights and cannot be saved by s. 1 of the Charter. The Applicants argue that s. 12 (3) should be struck down in accordance with s. 52 of the Constitution Act. For the reasons that follow, I conclude that the impugned legislation does not infringe either section of the Charter.

THE ISSUES

[2] The three constitutional issues raised on this Application are:

1. Does s. 12 (3) of the Cannabis Control Act violate s. 8 of the Charter?
2. Does s. 12 (3) of the Cannabis Control Act violate s. 7 of the Charter?
3. If so, can s. 12 (3) of the Cannabis Control Act be saved by s. 1 of the Charter?

[3] At this time, I would like to thank both counsel for their very helpful oral and written submissions. Counsel Ms. Wilhelm, on behalf of Maleik Gordon, has argued this constitutional challenge. It is agreed that Ms. Wilhelm’s arguments should apply to all co-accused in this case. As such, my ruling will ultimately apply to all three co-accused before the court.

THE RELEVANT LEGISLATION AND CHARTER SECTIONS

[4] Section 12 of the Cannabis Control Act reads:

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. 2018, c. 12, Sched. 1, s. 12 (1).

Search of vehicle or boat

(3) A police officer who has reasonable grounds to believe that cannabis is being contained in a vehicle or boat in contravention of subsection (1) may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it.

Application to cannabis for medical purposes

(4) This section applies to cannabis obtained for medical purposes in accordance with Part 14 of the Cannabis Regulations (Canada) or in accordance with a court order, except in such circumstances as may be prescribed. 2018, c. 12, Sched. 1, s. 12 (2).

[5] Motor vehicle drivers in Ontario are prohibited from driving while having any unlawfully stored cannabis. Section 12 (3) of the Cannabis Control Act gives the police the authority to search a vehicle or a person in the vehicle if they have ”reasonable grounds to believe” that there is cannabis in the vehicle that is not stored within the exceptions noted in s. 12 (2).

[6] Section 1 of the Charter reads: “ Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

[7] Section 7 of the Charter reads: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

[8] Section 8 of the Charter reads: “Everyone has the right to be secure against unreasonable search or seizure.”

BRIEF SUMMARY OF STOP AND ARREST IN THIS CASE

[9] In summary, all three of the co-accused in this case are facing a number of weapons-related charges pertaining to the discovery of a firearm concealed inside of a satchel worn by Jahliel Thomas. The allegations are that Maleik Gordon was driving a motor vehicle that was pulled over by the police for a purported seatbelt check. The investigating officer in this case is expected to testify that she smelled the odour of burnt marijuana, observed green flakes on the driver’s side floor of the vehicle and heard Schakeil Nixon make an utterance that he had just smoked “a blunt.” On the basis of those factors, the officer is expected to state that she formed grounds under s. 12 of the Cannabis Control Act to search the vehicle and all three occupants. It is during the search of the satchel worn by Mr. Thomas, that the aforementioned firearm is discovered.

POSITIONS OF THE PARTIES

THE APPLICANTS

[10] The Applicants argue that s. 12 (3) of the Cannabis Control Act contravenes s. 7 and s. 8 of the Charter. It is not a reasonable limitation on these rights and cannot be saved by s. 1 of the Charter. Specifically, s. 12 (3) provides for an unreasonable search and it is overbroad. The remedy being sought is a declaration of invalidity. The argument in the context of the broader Charter argument that will ultimately be pursued at trial, is that this declaration of invalidity will form part of the reasons why the search itself was unreasonable.

[11] The Applicants do not disagree that there is an important aim to the Cannabis Control Act legislation and they do not disagree with the characterization of the statute as a regulatory statute, albeit one that closely resembles criminal legislation. These criminal-like features require a stricter application of the Hunter v. Southam Inc., [1984] 2 S.C.R. 145 test.

[12] This constitutional argument ultimately focusses on s. 8 of the Charter. While the provision contains a prerequisite to the vehicle search, it is argued that it is unconstitutional because there is no prerequisite of any sort, whether it be reasonable grounds, reasonable suspicion, or any threshold to permit the search of any and all occupants of the vehicle ensnared by this provision. The Applicants argue that the search authorized by this provision is unreasonable because it permits a search of any and all occupants in the vehicle and their belongings without any particularized basis to do so. The search contemplated and authorized is far more intrusive than a mere “roadside pat-down”. The Applicants argue that the s. 12 (3) search power invades far more than the driver/owner’s privacy interest in the vehicle itself. It permits a search of anyone, including passengers, found in that vehicle: their person, their belongings, and their biographical information. These are all areas in which there are relatively high degrees of privacy.

THE CROWN RESPONSE

[13] The prosecution argues that scientific evidence shows that the combination of cannabis and motor vehicles creates an inherent risk of danger just as alcohol does. The legislature was entitled to take steps to reduce this danger by prohibiting unlawfully stored cannabis from being in a vehicle and providing police with the power to search vehicles where there are reasonable grounds to believe that there is unlawfully stored cannabis in a vehicle. In fact, an identical law with respect to alcohol has been on the books for decades and has never been found to be unconstitutional.

[14] The Crown argues that a balance must be struck between individual freedoms and the public interest in deterring and investigating crimes such as impaired driving. (See R. v. Woods, 2005 SCC 43, 2005 S.C.C. 43, para. 29.) The Charter does not prohibit all searches by the state, only unreasonable searches that are not demonstrably justified.

[15] In Hunter v. Southam, the Supreme Court held that the general standard for a lawful search is reasonable grounds to believe that an offence has been committed. That is exactly what s. 12 (3) of the Cannabis Control Act requires, argues the Crown. It is an offence under the Act to have care or control of a vehicle if there is unlawfully stored cannabis in the vehicle. Section 12 (3) provides police with a search power where there are reasonable grounds to believe that the offence in s. 12 (1) is being committed. Without this power, the prohibition against driving with cannabis readily available would be unenforceable and the public’s expectation of safety on the roads would be compromised. While the search power may not satisfy the preauthorization Hunter criteria, this is reasonable given the regulatory nature of the power and the exigencies of vehicle searches. The prosecution argues that s. 12 (3) does not violate s. 8 of the Charter. It follows that there is also no contravention of s. 7 of the Charter.

PRIOR JUDICIAL CONSIDERATIONS OF THE CONSTITUTIONALITY OF S. 12 (3)

[16] Given the relatively recent enactment of this legislation, there is a limited amount of reported case law dealing with the constitutionality of the search power found in s. 12 (3). The court was referred to the only two reported cases to date on the issue of the constitutionality of s. 12 (3): the Ontario Court of Justice decision of Justice Brunet in R. v. Nzita, [2020] O.J. No. 3109, and the Ontario Superior Court decision of Justice Charney in R. v. Tully, 2022 ONSC 1852, [2022] O.J. No. 1455. In both cases the constitutional validity of s. 12 (3) of the Cannabis Control Act under both s. 7 and s. 8 of the Charter was upheld.

[17] The Applicants argue that Tully and Nzita are not applicable to the argument before me because in both cases the court took a “ wrong headed approach” focusing only on the search of the vehicle; not the occupants “ensnared” within the vehicle.

ISSUE # 1: DOES S. 12 (3) OF THE CANNABIS CONTROL ACT VIOLATE S. 8 OF THE CHARTER?

[18] In the Supreme Court of Canada decision of Hunter v. Southam Inc., [1984] 2 S.C.R. 145, the court held that the general standard for a lawful search is reasonable grounds to believe that an offence has been committed. As the Applicants remind the court, in assessing whether this standard has been met, the court wrote: “an assessment must be made as to whether in a particular situation the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement…”

[19] As already noted, s. 8 of the Charter encompasses the right to be free from unreasonable search and seizure. Warrantless searches, as authorized by s. 12 (3) of the Cannabis Control Act, are presumptively unreasonable (See Hunter v. Southam at p. 161). Where the legislation, as in this case, authorizes a warrantless search, the Crown bears the burden of displacing that presumption. (See Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, at para. 55.) The presumption will be displaced and the search deemed reasonable where the search is:

i. authorized by law; ii. the law itself is reasonable; and iii. the manner of the search and seizure is reasonable. (See R. v. Caslake, [1998] 1 S.C.R. 51, at para. 10; R. v. Collins, [1987] 1 S.C.R. 265, at para. 23.)

[20] In the Supreme Court of Canada decision in Goodwin, the court summarized the three factors to be considered in assessing whether the law authorizing a search or seizure is reasonable. At paragraph 57 of Goodwin, the court writes:

…This Court has generally declined to set out a "hard and fast" test of reasonableness…this flexible approach remains compelling. This Court has nonetheless identified certain considerations that may be helpful in the reasonableness analysis, including "the nature and the purpose of the legislative scheme ... , the mechanism ... employed and the degree of its potential intrusiveness[,] and the availability of judicial supervision.

[citations omitted]

A. IS S.12 (3) OF THE CANNABIS CONTROL ACT PART OF A REGULATORY OR CRIMINAL STATUTE?

[21] In my analysis, it is necessary that I first of all determine whether the Cannabis Control Act has the characteristics of a regulatory or a criminal statute.

[22] The Applicants do not dispute that the Cannabis Control Act is a regulatory statute. However, while the legislation is regulatory for the purposes of the division of powers analysis, it nonetheless contains a number of quasi-criminal features. Because of this, the warrantless search power afforded the police in s. 12 (3) should therefore attract a stricter interpretation of reasonableness. The more closely the impeached provision resembles criminal law, the stricter will be the application of the Hunter v. Southam criteria. The court is referred to the Ontario Court of Appeal decision in Johnson v. Ontario (Ministry of Revenue), [1990] O.J. No. 1744 (ONCA) at paras. 16 and 17:

…The departure from the Hunter v. Southam Inc. principles was premised in both Thomson and McKinlay, on a determination that the provisions under consideration were regulatory, rather than criminal, and that the stringent standards of reasonableness imposed in Hunter were properly reserved for investigations of a criminal nature.

The various opinions expressed by members of the Supreme Court in these two cases do not all require a blunt contrast between "criminal" and "regulatory" measures. Sopinka J. found that s. 17 of the Combines Investigation Act did not provide for a "seizure" within the meaning of s. 8 of the Charter. La Forest and L'Heureux-Dubé JJ. distinguished sharply between criminal and regulatory provisions. Even Lamer and Wilson JJ. agreed that the Hunter v. Southam Inc. test is not a hard and fast rule which must be adhered to in all cases, under all legislative provisions. The more closely the provision resembles criminal law, the more strict the application of the Hunter v. Southam Inc. criteria. For Lamer and Wilson JJ., s. 17 of the Combines Investigation Act was akin to criminal law. It emerges from the above that different considerations are relevant to the determination of constitutionality under s. 8 of the Charter, depending on the nature of the legislative provision, the expectation of privacy and the degree of intrusion by the state…

[23] In the Goodwin decision, the Supreme Court similarly found at paragraph 60: “ …that the characterization of a search or seizure as either criminal or regulatory is relevant in assessing its reasonableness. Where an impugned law's purpose is regulatory and not criminal, it may be subject to less stringent standards…”

[24] I recognize that there are a number of factors that align s. 12 (3) with a statute very close to possessing criminal-like qualities:

1. The search is administered by police officers, unlike other regulatory statutes where inspectors or provincial offences officers might be given that task.
2. Similar to searches under the Criminal Code or the Controlled Drugs and Substances Act, the search is administered for the purposes of discovering evidence of an offence and for seizing the evidence to prevent the continuation of the offence.
3. The search can lead to immediate regulatory and potentially criminal consequences.
4. The jurisprudence has recognized that Highway Traffic Act stops, for example, can have a dual purpose. A dual purpose does not invalidate a regulatory action, unless it is improperly motivated. Section 12 (3) searches may in practice, therefore, become a criminal investigation.
5. Contraventions of s. 12 of the Cannabis Control Act can attract maximum penalties of a fine of up to $100,000 or a year in jail, or both. The significant penalty that can result from a contravention of the section is a feature that makes s. 12 (3) akin to a criminal provision, notwithstanding its place in a broader regulatory statute.

[25] However, I am of the view that the Cannabis Control Act leans more toward being a regulatory statute than a criminal statute. Section 12 (3) exists at the junction of two highly regulated activities: motor vehicle operation and the consumption and use of cannabis. The fact that a statute contains offence and penalty provisions does not remove it from the regulatory context and make it criminal in nature.

[26] In Goodwin, the court dealt with the constitutionality of the Automatic Roadside Prohibition (ARP) scheme in British Columbia. The court found that the scheme had some criminal-like qualities: the police administered the approved screening device tests used to analyze a driver’s breath; the serious consequences of a “fail“ reading or a refusal resulted in a 90 day licence suspension; and the scheme relied on Criminal Code seizure powers. However, the court found that the scheme was more actively characterized as a proceeding of an administrative nature. (See paragraph 43 of R. v. Goodwin.)

[27] The Court of Appeal in R. v. Yang, [1998] O.J. No. 2123 (ONCA) found that although the penalty provisions of the Tobacco Tax Act provided for up to two years imprisonment, the Act was regulatory in nature.

[28] Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425 dealt with the constitutional validity of a section of the Combines Investigation Act, which authorized an order compelling that a person be examined under oath.

[29] R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627 dealt with the constitutionality of a section of the Income Tax Act which gave Revenue Canada the power to demand the production of an array of information and documents after an income tax audit. In both of these cases, the court found that although the statutes in question were supported by penal sanctions, including imprisonment, the statutes were essentially of an administrative nature. (See paragraph 37 of R. v. McKinlay.)

[30] I see no difference in the legislation before me. The nature and purpose of the Cannabis Control Act demonstrates that it is regulatory. The Act regulates a vast range of activity related to the distribution, sale, purchase, possession, transportation and consumption of cannabis. I agree that although the Act contains offence and penalty provisions, they are as La Forest J. wrote in McKinlay, for “strictly instrumental reasons … necessary to ensure compliance with the Act.” (See paragraph 37 of R. v. McKinlay.)

[31] I find that s. 12 (3) of the Cannabis Control Act is part of a regulatory statute. As a result, the regulatory nature of the Cannabis Control Act justifies departure from the stricter application of the Hunter v. Southam test.

B. IS THE S. 12 (3) SEARCH POWER REASONABLE UNDER THE 3 FACTORS OF THE R. v. GOODWIN ANALYSIS?

[32] I will now deal with each of the three factors enumerated in Goodwin for consideration in an assessment of whether or not the search and seizure authorized by s. 12 (3) is reasonable.

(1) WHAT IS THE NATURE AND LEGISLATIVE PURPOSE OF S. 12(3) OF THE CANNABIS CONTROL ACT?

[33] Driving on a highway is a highly regulated activity, with good reason. The carnage on highways from impaired drivers is an issue of great importance. Drivers enter the roadway expecting the rules of the road will be enforced. With the legalization of cannabis this logically extends to transporting cannabis within a motor vehicle.

[34] The purposes of the Cannabis Control Act are found in s. 1 of the Act which reads:

…The purposes of this Act are,

(a) to establish prohibitions relating to the sale, distribution, purchase, possession, cultivation, propagation and harvesting of cannabis in order to,

(i) protect public health and safety,

(ii) protect youth and restrict their access to cannabis, and

(iii) ensure the sale of cannabis in accordance with the Ontario Cannabis Retail Corporation Act, 2017 and the Cannabis Licence Act, 2018;

(b) to deter illicit activities in relation to cannabis through appropriate enforcement and sanctions; and

(c) to provide for approved youth education or prevention programs, including culturally appropriate programs for Indigenous youth, as an alternative to enforcement and sanctions. 2018, c. 12, Sched. 1, s. 2.

[35] Although it is not the only purpose of the Cannabis Control Act, the protection of the public from the danger of cannabis-impaired drivers is one of the purposes of the statute.

[36] The Supreme Court of Canada in Goodwin found that the “compelling purpose of preventing death and serious injuries on public highways weighs heavily in favour of the reasonableness” of the breath seizures required to administer the ARP scheme. (See paragraphs 58–59 of Goodwin.)

[37] Sections 16(1) and (2) of the Cannabis Control Act set out four purposes for which cannabis and other things may be seized. Section 16 reads:

Seizure

16 (1) A police officer may seize any thing, including cannabis, if the police officer has reasonable grounds to believe that,

(a) the thing will afford evidence of an offence under this Act;

(b) the thing was used or is being used in connection with the commission of an offence under this Act, and unless the thing is seized it is likely that it would continue to be used or would be used again in the commission of an offence under this Act; or

(c) the thing is proceeds of an offence under this Act.

Same

(2) If an offence appears to have been committed under this Act and a police officer has reasonable grounds to believe, in view of the offence apparently committed and the presence of cannabis, that a further offence is likely to be committed, the police officer may seize the cannabis and any packages in which it is kept.

Order of restoration

(3) The Ontario Court of Justice may, on the application of any person made within 30 days after a seizure under subsection (1) or (2), order that the things seized be restored without delay to the applicant if the court is satisfied that,

(a) the applicant is entitled to possession of the things seized;

(b) the things seized are not required as evidence in any proceeding;

(c) continued detention of the things seized is not necessary to prevent the commission of an offence; and

(d) it is unlikely that the things will be forfeited on conviction in accordance with an order made under subsection (6).

[38] Read in conjunction with s. 16, the s. 12 (3) search power furthers the substantial objective of public safety on the roads by providing the police with the authority to search for, remove and seize, readily accessible cannabis from the vehicle and its occupants.

[39] I agree with and adopt the words of the court in the Tully decision at paragraphs 103 to 104:

… Section 12 of the Cannabis Control Act relates specifically to the regulation of the possession of cannabis in order to protect public health and safety. The specific health and safety concerns that are the focus of s. 12 are health and safety concerns related to impaired driving.

To accomplish this purpose, s. 12 of the Act regulates two legal but highly regulated activities: driving a motor vehicle and possessing cannabis. Separately, each of these activities poses some heath and safety risks, together they pose a serious health and safety risk…

(2) MECHANISM OF THE SEARCH

[40] The Applicants argue that the mechanism employed and the degree of potential intrusiveness of the s. 12 (3) search power is “where the rubber meets the road”. The Applicants contend that this is the critical reason why the provision creates an unreasonable search.

[41] While the strict standards of the Hunter v. Southam criteria do not necessarily have to be met, the Court of Appeal wrote in Johnson v. Ontario (Minister of Revenue), [1990] O.J. No. 1744 (ONCA), it is this step in the Goodwin analysis that is crucial in the assessment of what standard of reasonableness is required: “… the fact that legislation is merely regulatory rather than criminal in nature does not in itself determine what standard of reasonableness will be required. This depends largely on the second step in the analysis which consists of identifying the privacy interest which is at stake under the search and seizure provision and the severity of the intrusion on that privacy interest.” (See Johnson v. Ontario (Minister of Revenue) at paragraph 22.)

[42] Section 12 (3) permits a search of personal property, purses, satchels and briefcases, perhaps even in a scenario where these things are fastened shut (see R. v. Sappleton, 2020 ONSC 430; and R. v. Burke, 2020 ONCJ 516). The Applicants argue that the section permits a search that engages a number of areas where there is a much higher reasonable expectation of privacy and it permits entry into those very zones of privacy without any basis whatsoever connected to those zones.

[43] On this point, I agree with the reasons of the court in Tully. The nature of the search authorized by s. 12 (3) is less intrusive than the Automatic Roadside Prohibition (ARP) scheme considered in Goodwin. The demand for bodily samples required in the scheme for testing impaired drivers in Goodwin is far more intrusive. The threshold of “reasonable grounds” in s. 12 (3) to believe a motor vehicle is being driven with illegally stored cannabis exceeds the lower standard of “reasonable suspicion” in Goodwin. Lastly, unlike the consequences of a failed ASD in Goodwin, the reasonableness of the grounds for the search can be reviewed by a court before any penalties are imposed. (See Tully, at para. 117.)

[44] Section 12 (3) of the Cannabis Control Act closely mirrors s. 32 of the Ontario Liquor Licence Act, R.S.O. 1990, c. L.19 which reads:

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).

Exception

(2) Subsection (1) does not apply if the liquor in the vehicle,

(a) is in a container that is unopened and the seal unbroken; or

(b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle. R.S.O. 1990, c. L.19, s. 32 (2).

Conveying liquor in boat

(3) No person shall operate or have the care or control of a boat that is underway while there is contained in the boat any liquor, except under the authority of a licence or permit. R.S.O. 1990, c. L.19, s. 32 (3).

Exception

(4) Subsection (3) does not apply if the liquor in the boat,

(a) is in a container that is unopened and the seal unbroken; or

(b) is stored in a closed compartment. R.S.O. 1990, c. L.19, s. 32 (4).

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).

[45] In assessing the concerns of these two statutes and the search mechanism applied to address those concerns, I agree and adopt the sound reasoning of the court in R. v. Tully at paragraphs 120 to 122:

120 …The concern of both statutes is the same: open alcohol or open cannabis provides easy access to the driver and may result in alcohol or drug impaired driving. If there are reasonable grounds to believe that alcohol or cannabis is being unlawfully kept in a vehicle, this gives rise to serious and immediate traffic safety concerns that require immediate attention and resolution. Authorizing the police to search and seize alcohol or cannabis in these circumstances helps ensure that drivers will not have access to these substances while driving.

121 It is also significant that motor vehicles and boats have the obvious ability to move rapidly. This ability makes obtaining a warrant impracticable, another reason why the mechanism of post-search judicial review is reasonable in this context: Nzita, at para. 42. While the Supreme Court has declined to establish a blanket exception for vehicle searches in the criminal context, R. v. Grant, [1993] 3 S.C.R. 223, at p. 189, it is reasonable in the regulatory context at issue in this case where the specific concern is the presence of open cannabis in the vehicle. Open cannabis, or open liquor, in a vehicle is an inherently "exigent circumstance".

122 Indeed, it is difficult to imagine how the prohibitions on carrying open alcohol and open cannabis in a motor vehicle could be practically enforced if the search powers in s. 12(3) of the Cannabis Control Act or s. 32(5) of the Liquor Licence Act were invalidated…

[46] The Applicants argue that the court in Tully misses the point because it does not consider the plight of the occupants of the motor vehicle during the s. 12 (3) powers of search which permit a search of any and all occupants in the vehicle and their belongings without any particularized basis to do so. I do not agree with that assessment of the reasoning in the Tully decision.

[47] In my reading of Tully, this issue is directly addressed in paragraph 109 when the court adopts with approval the words of Judge West in Williams:

… In R. v. Williams, 2021 ONCJ 630 West J. stated, at para. 65:

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.”

[48] In my view, the court clearly addresses the power afforded a police officer pursuant to s. 12 (3) to search all occupants of the vehicle, including passengers. Again, while I am not bound by the court’s decision in Tully, I see no reason to depart from it.

[49] Cannabis lacks the distinct textural properties that make alcohol easily discoverable. While a relatively non-intrusive pat down search of a person or a bag will most likely uncover unlawful liquor, the same cannot be said with cannabis. Being quite small, a marijuana joint, can easily be stored in an area of the body, clothing pocket or a bag that is more private. The search power afforded under s. 12 (3) gives the police the latitude to search inside a wallet, makeup bag, a deep pocket, or a bra. This, argues the Applicants, makes it all the more necessary that there be a prerequisite connected to the area to be searched to render the search in question reasonable. While s. 12 (3) requires reasonable grounds to believe that the vehicle contains improperly stored cannabis, the search power invades far more than the driver’s privacy interest in the vehicle itself. The search power permits a search of anyone found in that vehicle including a search of their person, their belongings and their biographical information.

[50] I find that it is the very nature of cannabis itself and the manner by which it is consumed that makes it necessary and entirely reasonable that the s. 12 (3) search power extend to the occupants of the moving vehicle in which there is a reasonable belief that there is illegally stored cannabis. Perhaps even more easily than drinking from a bottle of liquor, a driver of a motor vehicle could very easily be smoking a joint of marijuana and remain undetected by the police. Like alcohol, cannabis can be easily passed from the other occupants of the car to the driver and back again. Without the s. 12 (3) power to search the entire vehicle and its occupants, the purpose of the statute would be undermined. Without the power to search the occupants, one can easily foresee a situation in which the driver of the vehicle could be handed a marijuana joint by a passenger as he is driving away from his interaction with the police. I completely agree with the aforementioned reasons of the court in Tully: “… Permitting only a search of the vehicle, or only a search of the driver, or only a search of the person who admitted to smoking cannabis, would make it a simple matter to circumvent the law: R. v. F., 2015 ONSC 3068, at para. 68; Williams, at para. 65…” (See paragraph 134 of Tully.)

[51] A factor particularly relevant to this Charter s. 8 analysis is the Supreme Court of Canada’s recognition of a ”reduced expectation of privacy in a motor vehicle”. (See R. v. Belnavis, [1997] 3 S.C.R. 341 at paras. 38 and 39.) This was thoroughly explained by Justice Cory in R. v. Wise, [1992] 1 S.C.R. 527 at paragraph 6:

…Society then requires and expects protection from drunken drivers, speeding drivers and dangerous drivers. A reasonable level of surveillance of each and every motor vehicle is readily accepted, indeed demanded, by society to obtain this protection. All this is set out to emphasize that, although there remains an expectation of privacy in automobile travel, it is markedly decreased relative to the expectation of privacy in one's home or office.

[52] As made clear in Nzita, appellate courts have further held that because a motor vehicle can rapidly be driven away this may make the requirement of an application for a search warrant impracticable. (See R. v. Rao, [1984] O.J. No. 3180 (ONCA), at paragraphs 83-84 (application for leave to appeal dismissed at (1984) S.C.C.A. No. 107); and R. v. Grant, [1993] 3 S.C.R. 223, at paragraphs 30-32.) The probability and very real risk of the imminent danger of the loss, removal, destruction or disappearance of any cannabis illegally stored in the vehicle would make the requirement of a judicially authorized search warrant before a s. 12 (3) search impractical. Such a requirement would frustrate an important purpose of the Cannabis Control Act: to protect the public from cannabis-impaired drivers.

[53] The mechanism employed is logical and reasonable considering the nature and purpose of the regulatory scheme of the Cannabis Control Act. The aforementioned seizure powers found in s. 16 of the Act, specifically contemplate the very real risk that leaving cannabis in the presence of someone was apparently committing an offence will allow that person to commit a further offence. An analysis of the mechanism of the search power which extends to a search of the occupants of the vehicle, must consider the state’s legitimate interest in removing all of the cannabis from the vehicle once there are reasonable grounds to believe that an offence was committed by having open cannabis readily available to occupants of the vehicle. One of the two aims of the search power is to remove cannabis and thus prevent a further offence. A search power that did not permit the location and removal of all cannabis in the vehicle would fail to achieve this aim. If the s. 12 (3) search did not include the other persons in the vehicle, this would very substantially nullify the effectiveness of s. 12 (3) in enforcing s. 12 (1) as a mechanism for the police to ensure public safety on the roads.

[54] A requirement of reasonable grounds or reasonable suspicion before the police could search the occupants would lead to the easy evasion of the law referred to in Williams and Tully. It would render the legislation toothless in its attempt to protect the public against drivers intoxicated by cannabis.

[55] I find that the mechanism of search encompassed by s. 12 (3) is reasonable. The scope and extensiveness of the search of the vehicle and the occupants of the vehicle flow from its purpose. It is almost impossible to ensure compliance with highway traffic laws without stopping vehicles and interfering with the individual interests of those vehicles’ occupants. I find the degree of intrusiveness of s. 12(3) to be low.

(3) THE AVAILABILITY OF JUDICIAL SUPERVISION

[56] The last of the Goodwin factors requires the court to look at whether or not there is judicial oversight of the search. If there is, that can be a factor that mitigates against the stricter standard of scrutiny on the reasonableness of the search. I am cognizant of the fact that judicial oversight of this provision will only come into play if and when someone is charged. If no one is charged following a s.12 (3) search, there is no judicial oversight. In the absence of a person being arrested, there is no method to look to the reasonable conduct of the search as a check and balance on the reasonableness of the statute. As the Applicants argue, everyone has the right to be free from unreasonable search and seizure, whether they are charged or not.

[57] While it is possible to imagine abuses of the s. 12 (3) search power, and factual scenarios that are not specifically prohibited within the four corners of the language of the statute, that is not the standard that is required to be met. The words of the Supreme Court of Canada in R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3 (paragraph 45) are instructive on this point:

…The scope of justifiable police conduct will not always be defined by express wording found in a statute but, rather, according to the purpose of the police power in question and by the particular circumstances in which it is exercised. Hence, it is inevitable that common law principles will need to be invoked to determine the scope of permissible police action under any statute. In this context, it becomes particularly important to keep in mind that any enforcement scheme must allow sufficient flexibility to be effective…

[58] The limits on statutory power were then explained by the court:

…power, is not without its limits; it is circumscribed, in the words of the majority of this Court in Dedman by that which is "necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference.”

[59] The mere fact that a provision of a statute can lead to abuses such as racial profiling does not render the legislation unconstitutional. The statute also has to be interpreted in light of the existence of the third pillar of judicial oversight and in light of the existing constitutional and common-law jurisprudence with respect to searches. I find that the safeguards of judicial oversight are available to monitor the police power to search without a judicially-authorized warrant under s. 12 (3).

[60] The court has been referred to a number of cases, including, R. v. Grant, 2021 ONCJ 90; R. v. Sappleton, 2020 ONSC 430; R. v. Khalfan, 2021 ONCJ 181; and R. v. Burke, 2020 ONCJ 516, in which the scope of the s. 12 (3) power was reviewed by the court pursuant to Charter applications made at trial.

[61] The inquiry that was undertaken by the court in Sappleton and Burke with respect to the scope of the s. 12 (3) police search of containers such as satchels, purses and briefcases; the court’s inquiry into the areas of the vehicle and the manner in which the occupants can be searched in Sappleton, Williams and Khalfan; and the court’s inquiry into who and when the police can require all occupants to provide their biographical information to conduct a CPIC query in Khalfan; are examples of issues that will be the subject of ongoing judicial consideration as time passes and as more and more case law becomes available.

[62] In Goodwin, the Supreme Court held that the ARP scheme violated s. 8 of the Charter because it did not permit subsequent judicial oversight (see paragraphs 69 to 75 of Goodwin). That is not the case with respect to s. 12 (3) of the Cannabis Control Act. There are two ways in which s. 12 (3) searches are subject to judicial oversight and review. First, under the seizure section of the Cannabis Control Act, s. 16 (3) allows for a person whose property is seized to apply within 30 days for an order restoring the property. This Application is heard by the Ontario Court of Justice. Secondly, as I have already noted, where a person is charged with an offence as a result of the s. 12 (3) search, the search will be reviewable by a criminal court on an application to exclude evidence.

[63] The Applicants argue the conclusion in Tully that “… There are no alternatives that would permit the legislature to achieve its objective as effectively …” (paragraph 134) is factually flawed. The Applicants contend that the question has to be framed in terms of whether there is a less intrusive means than permitting a warrantless and groundless search of all of the occupants of the vehicle. The Applicants have cited the equivalent provisions of the British Columbia Cannabis Control and Licensing Act which require that the police obtain a judicially-authorized search warrant before a vehicle can be searched. The Applicants argue that this successfully counters the argument advanced in Williams and endorsed in Tully, that if the police are not granted the s.12 (3) power to search the entirety of the vehicle and the occupants, they cannot meet the ends of the legislation: the protection of the public from drug-impaired drivers. The Applicants see this as proof that another jurisdiction has been able to address the same issue without permitting this type of warrantless search.

[64] I disagree. The fact that another jurisdiction, another province, specifically British Columbia, has chosen not to go down the route of the province of Ontario in addressing the safety of the roads, by enabling the police to conduct a warrantless search of the vehicle and its occupants under s. 12 (3) of the Cannabis Control Act, has little to no impact on my evaluation of the province of Ontario’s lawmaking decisions. The fact that the British Columbia legislation differs on this point does not speak to the issue of this being an alternative way to address the concern of public safety on the province’s roadways. The province of British Columbia’s choice not to enact a similar search power has very little impact on my analysis of whether or not that police search power is reasonable.

[65] As already noted in my decision, the exigencies of police searches of motor vehicles have been recognized by the appellate courts. The enforcement of s. 12 of the Cannabis Control Act is meant to be accomplished by a relatively quick roadside inquiry. There is no power to seize the vehicle, nor is there any power to move the vehicle or its occupants to another location, including the police station.

[66] Obviously, the issue of judicial oversight would be most easily addressed by the requirement that a judicially-authorized warrant be issued before the police conduct a search under s. 12 (3). The “pre-authorization” criteria contemplated by the court in Hunter is not satisfied by s. 12 (3). But I find that considering the nature of this regulatory search power, reasonableness under s. 8 does not require prior judicial authorization.

[67] The Ontario Court of Appeal decisions in Johnson and Yang form the basis of my decision. In both these cases, the court confirmed that the requirement of reasonable grounds will be sufficient for the search of vehicles in a regulatory context. The court in Johnson reached this conclusion with respect to a power to search commercial vehicles, and Yang dealt with the power to search both commercial and personal vehicles.

[68] By nature of the interaction police officers have with drivers of motor vehicles in enforcing the provisions of the Cannabis Control Act, the police power to search authorized by s. 12 (3) will almost always take place in exigent circumstances where the driver’s ability to quickly move the vehicle away risks the imminent loss of evidence and the imminent loss of enforcement in the interest of public safety. One of the statutory preconditions for the search of a vehicle under s. 12 (3) is that someone must be driving or have the care or control of that vehicle. Because of this, there will always be a risk of imminent loss of evidence and loss of the ability to enforce the regulatory regime of the Act. This makes prior judicial authorization impractical.

[69] The Supreme Court of Canada in R. v. Grant, [1993] 3 S.C.R. 223 (at paragraphs 31-32) and the Ontario Court of Appeal in R. v. Rao, [1984] O.J. No. 3180 (ONCA) (at paragraph 83) confirmed that a police power to conduct a warrantless search of a vehicle will be reasonable under s. 8 where the capability of vehicles to move rapidly away makes it impracticable to obtain a warrant and the search is supported by reasonable grounds.

[70] In summary, s. 12 (3) of the Cannabis Control Act does not violate s. 8 of the Charter. The search power found in s. 12 (3) is reasonable under both the Hunter analysis and the Goodwin analysis. Being regulatory in nature, the Cannabis Control Act requires a flexible approach of the Hunter criteria. Similar to the warrantless power to search a vehicle considered in Yang and Johnson, the s. 12 (3) search power is reasonable because of the requirement that the search must be supported by reasonable grounds. The search power conferred upon the police under s.12 (3) is also reasonable under the Goodwin analysis. An important purpose of the provision, to protect the public from cannabis-impaired drivers, is “compelling” and “weighs heavily” in favour of reasonableness. The nature of the s. 12 (3) search is relatively non-intrusive, and there are two different mechanisms for judicial supervision of this search power.

ISSUE # 2: DOES S. 12(3) OF THE CANNABIS CONTROL ACT VIOLATE S. 7 OF THE CHARTER?

[71] The Applicants’ argument with respect to s. 7 of the Charter is a very similar argument to the one made with respect to s. 8 of the Charter. Liberty interests are engaged because there is the potential for an offence, a charge and the potential of going to jail. The security of a person’s interests are engaged because the s. 12 (3) provision permits the search of a person's physical body. The Applicants argue that the provision is overbroad because it simply goes too far without continuing to bear a connection to its objective. The “net” of police power to search is cast too far, farther than it needs to be, to meet the goals of the statute. The Applicants then pose two hypotheticals to illustrate this point.

[72] In the first hypothetical, the police justifiably pull over a city bus for a traffic infraction. But because the officer smells marijuana on the bus, maybe sees green flakes on the floor of the bus and hears a passenger make an utterance that they had just smoked a blunt, it is suggested that s. 12 (3) allows the police to search every single person on the bus. The second hypothetical involves a van of family members including grandparents, baby, mom and dad where, on a similar set of facts, the teenaged son admits having recently smoked some marijuana. The Applicants argue that the police could then search the grandmother, her purse, the baby and the diaper bag pursuant to the s. 12 (3) provision. All of these searches would be permitted without any sort of particularized grounds or suspicion.

[73] The Applicants argue that this renders the legislation unconstitutional and it renders it overbroad. I do not agree. I do not find that the police search power found in s. 12 (3) is overbroad. It is not unreasonable. The purpose of the search power is road safety and preventing the risk of marijuana use by the driver or other occupants of the vehicle while driving. Society obviously has a profound interest in being protected from impaired drivers. This provision helps provide that protection. The fact that not every particular hypothetical fact situation, plausible or not, can be resolved purely on the basis of the words of the statute does not make that statute overbroad or vague and in violation of s. 7 of the Charter.

[74] With respect to the bus scenario hypothetical, it needs to be emphasized that s. 12 (1) and s. 12 (3) do not relate to any person in the vehicle in terms of triggering the search power. Section 12 (1) focuses on the operator or person in care or control of the vehicle. It only prohibits behaviour by the person who is driving or has care and control of a vehicle. As a result, just because there may be unsecured cannabis somewhere in the bus, this would not necessarily mean that the police would have reasonable grounds to believe that s. 12 (1) is being violated. Section 12 (1) first needs to be engaged before the s. 12 (3) search power can be put into effect. Clearly, there would need to be some mens rea on the part of the bus driver in the hypothetical before s. 12 (1) could be engaged. This illustrates the significant safeguards built into s. 12 (3) in terms of who the section targets and the requirement that there has to be reasonable grounds to believe there is a violation of s. 12 (1) before the search power is engaged. With respect to the second hypothetical suggested, in the absence of more details, I agree with the prosecution that the search contemplated in that scenario is not necessarily unreasonable.

[75] I have already made a finding that s. 12 (3) is reasonable under s. 8 of the Charter. There has not been a great deal of independent analysis of s. 12 (3) of the Cannabis Control Act in relation to s. 7 of the Charter. In my assessment, given my finding with respect to s. 8, it follows that there is no s. 7 Charter infringement.

CONCLUSION

[76] With respect to the three constitutional issues raised on this Application, I conclude as follows:

1. Section 12 (3) of the Cannabis Control Act does not violate s. 8 of the Charter.
2. Section 12 (3) of the Cannabis Control Act does not violate s. 7 of the Charter.
3. Given my ruling on s. 7 and s. 8, there is no need for me to consider s. 1 of the Charter.

[77] The Application is dismissed.

Released: December 30, 2022 Signed: Justice Kevin K. McCallum