ONTARIO COURT OF JUSTICE

CITATION: R. v. Moulton, 2023 ONCJ 140

DATE: 2023 02 23

COURT FILE No.: Newmarket 4911-998-21-04713-00

BETWEEN:

HIS MAJESTY THE KING

— AND —

TAJ ANTONIO MOULTON

Before Justice Marcella Henschel

Heard on December 19 -22, 2022 and January 17, 2023

Reasons for Judgment on Charter Application, released on February 23, 2023

Greg Elder............................................................................................ counsel for the Crown

Ehsan Ghebrai....................................................... counsel for the accused Taj Moulton

HENSCHEL J.:

A. Overview and Position of the Parties

[1] Taj Moulton, the Applicant, is charged with numerous firearm offences related to allegations that he was in possession of a loaded handgun. The Applicant’s vehicle was searched pursuant to the Cannabis Control Act[^1] (CCA) following a RIDE stop on May 12, 2021. The loaded handgun was located in a satchel on the front passenger seat of the vehicle. The Applicant was the only occupant of the vehicle.

[2] The Applicant submits the firearm should be excluded under s. 24(2) of the Charter, on the basis that his rights under sections 8, 9, 10(a) and 10(b) of the Charter were infringed.

[3] The Applicant concedes the initial RIDE stop was lawful but submits that upon observing the Applicant - a young black male - and the satchel, PC Cyrus and PC Johnson were determined to search the satchel and used the Cannabis Control Act as a pretext to conduct a criminal investigation and to justify the search of the satchel. The Applicant submits that PC Cyrus removed the Applicant from the vehicle and searched him, the vehicle, and the satchel without grounds to do so, conducting an unlawful search contrary to s. 8 of the Charter, and arbitrarily detaining him contrary to s. 9 of the Charter.

[4] The Applicant submits the police did not have reasonable grounds to believe that cannabis was contained in the vehicle in contravention of the CCA and, as a result, did not have authority to search the vehicle or the Applicant pursuant to s. 12(3) of the CCA.

[5] The Applicant submits that I should reject PC Cyrus’s evidence that he had reasonable grounds because he smelled cannabis and observed cannabis shake on the Applicant and because the Applicant admitted recent consumption. He submits that material inconsistencies between PC Cyrus’s and PC Johnson’s evidence significantly undermine the credibility and reliability of their evidence. He submits that I should draw an adverse inference because PC Cyrus and PC Johnson deliberately chose not to record their interactions with the Applicant using the In Car Camera Recording System (ICCS), depriving the court of an independent record, and because they refused to allow the Applicant to record the interaction.

[6] The Applicant submits that I should accept his account of the events which establishes that the search was a racially motivated pretext search. He submits that PC Cyrus was determined to search his satchel and, when he refused to show PC Cyrus the contents of his bag, PC Cyrus and PC Johnson fabricated a basis to search under the CCA and searched the vehicle and satchel without grounds to do so.

[7] The Applicant further submits that, even on the officers’ version of events, the officers did not have reasonable grounds to believe that cannabis was contained in the vehicle in contravention of s. 12(1) of the CCA because the alleged observation of residue, if true, did not constitute cannabis that was “readily available”: it posed no possibility of consumption and constituted no risk.

[8] The Applicant submits that even if the officers had reasonable grounds to believe cannabis was contained in the vehicle in contravention of s. 12(1) of the CCA, s. 12(3) of the CCA did not authorize the search of the satchel because the CCA does not authorize the search of “baggage that is fastened closed”, a place where cannabis can be lawfully stored for transport.

[9] Finally, the Applicant submits that if the CCA authorized the search, the law is unreasonable. The Applicant has filed a constitutional challenge to s. 12(3) of the CCA. The parties agree that I should determine the s. 8, 9, 10(a),10(b), and 24(2) issues first and only consider the constitutional challenge to the CCA should I determine that the evidence is otherwise admissible.

[10] In respect of s. 10(b) of the Charter, the Applicant submits that the police failed to provide the rights to counsel “immediately” upon arrest or detention. After removing him from his vehicle, the officer questioned him without providing him with the informational component of the rights to counsel and without providing him a reasonable opportunity to exercise his right to counsel.

[11] The Applicant submits that pursuant to s. 24(2) the evidence must be excluded because, having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute. The Applicant submits that the violations were multiple and serious favouring exclusion and that the significant impact on the Applicant’s Charter-protected rights also favours exclusion. The Applicant submits that to admit the evidence because of the gravity of the offence would send the message that individual rights count for little. Exclusion is necessary to maintain the integrity and public confidence in the justice system. The Applicant submits that where the first two branches favour exclusion, the third branch will rarely if ever on its own justify admission of the evidence.

[12] The Respondent submits that there were no violations of ss. 8, 9, 10(a) or 10(b) of the Charter. The Respondent submits that the police interaction with the Applicant began as a lawful RIDE program stop to investigate driver sobriety. When PC Cyrus spoke with the Applicant, he noticed cannabis shake on his shirt and pants and noted the smell of cannabis coming from the vehicle. He told the Applicant that the police would be conducting a search of the vehicle under the authority of the CCA and the Applicant responded that he smoked earlier at a friend’s house and was a messy roller, acknowledging the presence of cannabis on his clothing. The Respondent submits that the observations of cannabis shake, the smell of cannabis, and the utterances of the Applicant gave PC Cyrus and PC Johnson the necessary grounds to believe that cannabis was unlawfully contained within the vehicle. The Respondent submits that PC Cyrus and PC Johnson had the requisite grounds to detain the Applicant and to conduct a search of the vehicle, the contents of the satchel, and the Applicant under s. 12(3) of the CCA. Once the officers had reasonable grounds to believe that cannabis was contained in the vehicle in contravention of the Act, the officers were entitled to search the Applicant and the vehicle to ensure there was no other cannabis illegally stored and accessible to the driver before letting the vehicle go on its way.[^2]

[13] In respect of the alleged s. 10(b) breach, the Respondent submits that, in accordance with Orbanski[^3], the provision and exercise of s. 10(b), Charter rights are incompatible with the brief roadside detention required to conduct a search of the occupants and vehicle for road safety purposes. The Respondent submits that the right to counsel is suspended during CCA searches for the same reasons it is suspended during brief roadside detentions for valid Highway Traffic Act purposes or infractions. The Respondent submits that the Liquor Licence Act contains an almost identical search authority and s. 10(b) rights are suspended when the police conduct searches under that authority.[^4]

[14] The Respondent fairly concedes that if I accept the evidence of the Applicant, including that the police engaged in racial profiling and fabricated the presence of shake as a pretext to search the satchel, knowing they had no authority to search the car, that I should find violations of ss. 8, 9, and 10(b) of the Charter and should exclude the evidence.

[15] However, the Respondent submits if I find that the officers were not authorized by the CCA to conduct the search but were acting under a good faith but misguided attempt to comply with the statute, I should admit the evidence under s. 24(2) because exclusion would bring the administration of justice into disrepute. If the police were acting in good faith the breach is not serious because there is limited caselaw to guide the police on questions such as what constitutes grounds for a search, and the scope of a CCA search and the impact on the Applicant’s Charter-protected rights was minimal.

[16] Regarding ss. 9 and 10(b) of the Charter, the Respondent submits that any detention of the Applicant was brief, and the Applicant was immediately provided with the rights to counsel following his arrest. In respect of s. 8 of the Charter, the Respondent submits that the search of the interior of the Applicant’s vehicle and bag was limited in scope before the handgun was located and did not grossly infringe on the Applicant’s privacy.

[17] The Respondent submits that the third branch of the Grant analysis heavily favours inclusion. The evidence is highly reliable and is essential to the Crown’s case. There is a strong public interest in controlling and deterring unlawful possession of prohibited firearms – especially loaded firearms.

[18] Subject to the Applicant’s constitutional challenge to s. 12(3) of the CCA, I am satisfied that the Crown has established on a balance of probabilities that the warrantless search of the satchel in the Applicant’s vehicle was authorized by law pursuant to s. 12(3) of the CCA and there was no unreasonable search and seizure and no violation of s. 8 of the Charter.

[19] I am not satisfied that the Applicant has established on a balance of probabilities that there was a breach of ss. 9, 10(a), or s. 10(b) of the Charter.

[20] On January 17, 2023, I provided the parties with my ultimate decision on the Charter motion, subject to the constitutional challenge to the CCA, with written reasons to follow. These are my reasons.

B. Summary of the Evidence

Evidence of The Applicant

[21] I have considered and reviewed all the evidence but have set out only those facts and findings necessary to explain my reasons. To avoid repetition, I have referenced some areas of the evidence during the analysis only.

[22] The Applicant, Mr. Moulton, testified on the Charter voir dire. He testified that on May 11, 2021, his friend, Laquan, rented a vehicle for him, and met him at a community centre near Yorkdale. It was the Applicant’s birthday a few days earlier and he wanted to have a car to celebrate but could not rent one himself because he only had a G1 licence.

[23] The Applicant agreed in cross-examination that when Laquan arrived with the car it looked clean, like a freshly rented car. When asked if there were any belongings in it when Laquan arrived, he responded, “nothing major” and agreed that the car did not smell like anything.

[24] The Applicant testified that Laquan drove himself and the Applicant to the home of the Applicant’s stepbrother, D’Andre, in the Jane and Wilson area of Toronto. They arrived around 7:00 p.m. The Applicant said that he, Laquan, and D’Andre shared a joint at around 7:15 p.m. D’Andre provided the marijuana, which was loose, and the Applicant rolled the joint. They smoked one joint between the three of them. The joint was less than a gram. The Applicant testified that he has been smoking marijuana since he was a teenager and usually the effects of smoking last about an hour and a half.

[25] The Applicant testified that after smoking the joint he, and his friends, “chilled” and watched a program on You Tube. He and Laquan left D’Andre’s home around 10 p.m. and he drove Laquan directly home, to downtown Toronto, dropping him off at around 11:00 p.m. He drove because he was excited to drive the vehicle.

[26] The Applicant testified that after dropping off Laquan he began his trip home to Thornhill on Highway 404 North. He exited Highway 404 at Highway 7 at around midnight and there was a RIDE spotcheck program on the off ramp of the 404. The police had reduced the lanes of traffic to one lane and were requiring all cars to stop. He stopped as directed. He said he did not have any marijuana with him and did not smell like marijuana. He said that it had been five hours since he had used marijuana and, before he left D’Andre’s home, he sprayed cologne on himself.

[27] The Applicant testified that he was not impaired by marijuana and the car did not smell like marijuana. He said that he likes to keep his cars smelling good and he put a strawberry air-freshener in the car that day.

[28] Mr. Moulton testified that when he stopped at the RIDE spotcheck two officers approached his vehicle, a black officer came to the driver’s window, and a second officer, a white officer, came to the passenger side of the vehicle.

[29] There is no dispute that PC Cyrus was the officer who came to Mr. Moulton’s driver’s window, and that PC Johnson was the officer at the passenger side of the Applicant’s vehicle.

[30] The Applicant testified that he rolled down the driver’s window as PC Cyrus approached. He said he did not roll down the passenger window because he was not talking to PC Johnson. He described his interactions with the officers as follows:

• PC Cyrus asked him if he had been drinking and he responded, “No.”

• PC Cyrus asked him “Have you been smoking?” and he responded, “Not recently.”

• PC Cyrus complimented the smell of his air freshener and asked him what flavour it was. He responded “raspberry” but then picked it up and said “strawberry”. Mr. Moulton said he stumbled on his words because he was nervous because he knew there was a firearm in the car.

• Both officers used their flashlights to look inside the car. PC Cyrus shined his flashlight on his closed satchel on the front passenger seat and asked him what was in the bag. He responded: “My personal belongings.”

• After he refused to show PC Cyrus what was in the bag, PC Cyrus asked him to shut down the vehicle. He did what he was told because he was nervous. No officer said anything to him about smelling marijuana or observing marijuana at that time.

• The Applicant gave PC Cyrus his driver’s licence because he wanted him to search his name to see that he is not a criminal. PC Cyrus did not ask for his ownership or insurance.

• PC Cyrus told the other officer on the passenger side to keep an eye on him and went to the police vehicle. Approximately eight minutes passed and when PC Cyrus returned, he asked the Applicant if he had been smoking and asked him if he had weed in the car. He responded “No.”

• PC Cyrus told the Applicant that he was causing a long line up and if he just showed him what was in the bag, he would let him go. When he responded “No”, PC Cyrus became upset, pointed the flashlight on his pants and told him that he saw a weed crumb.

• The Applicant looked down and did not see any weed crumb. He grabbed his phone and asked, “Can I record this?” because he believed the officer was claiming to see weed crumbs as an excuse to get access to the vehicle. PC Cyrus became upset and responded, “No, drop the phone.” PC Cyrus pulled on the car door. The Applicant unlocked the door, because he did not want to appear to be resisting and put his hands up. He said he dropped the phone in the centre console. He was scared because he knew there was a gun in the car and had seen many videos about police brutality and people being shot for no reason, so he just put his hands up. He did not know how things would play out.

• As soon as he was taken out of the vehicle, both officers grabbed the bag, and the white officer said there was a gun and said to arrest him. They arrested him and placed him in the rear of the police cruiser. He was not given his rights to counsel until he was arrested when the gun was found.

[31] The Applicant testified that there was no marijuana on his shirt or pants, and there was no marijuana in the car. He said he did not see any on the seat or on the console. He testified that the weed they used at D’Andre’s home remained there and, as far as he knew, there was none in the car. He testified that he was not intoxicated by marijuana and said during cross-examination that he would not smoke marijuana shortly before driving because, like drinking and driving, it was not a good idea.

[32] The Applicant admitted that the satchel on the front passenger seat containing the gun was his. He acknowledged that he was nervous when he was speaking with the police because he knew the gun was in the satchel. He said that there were also a few other things in the car, including some clothes - a few track suits and some shoes - that he was taking home from D’Andre’s.

[33] The Applicant said that he wanted to record the conversation because he believed the officer was using the presence of shake as pretext to search the car and he knew there was no shake on his pants or shirt. He denied hesitating when he was asked to step out of the vehicle by PC Cyrus.

[34] The Applicant said that less than a minute passed between when he stepped out of the vehicle and when he was placed under arrest. The Applicant testified that both officers went for the satchel immediately after he was out of the car. He said that the black officer took him out of the car, “paid him no mind” and went into the driver’s side of the car and “I was just standing there.” He said the white officer went into the car from the passenger side. He agreed it was the white officer, PC Johnson, who yelled that there was a gun.

[35] The Applicant agreed that after he was arrested and placed in the back of the police cruiser PC Cyrus read him the rights to counsel. He agreed that the police made efforts to identify and contact his counsel of choice by contacting his father who facilitated contact with his lawyer.

[36] During cross-examination, the Applicant estimated that from when he was initially stopped until he was asked to step out of the vehicle was no less than 8 to 12 minutes.

Evidence of PC Cyrus

[37] PC Cyrus testified that on May 11 and 12, 2021 he was working as a patrol officer. He had been a police officer for approximately three years. He and several other officers set up a stationary RIDE stop program on the off-ramp from Highway 404 Northbound at Highway 7. They set up the program to funnel vehicles into a single lane of traffic on the right, forcing all cars to pass through the RIDE program.

[38] PC Cyrus testified that the Applicant was stopped at approximately 12:04 a.m. He was at the RIDE stop program for approximately ten minutes before his contact with the Applicant. When the Applicant stopped, he approached the driver’s side of the vehicle and PC Johnson approached the passenger side. He described his interactions with the Applicant, the sole occupant of the vehicle, as follows:

• The Applicant rolled down the window[^5] and he smelled burned and fresh cannabis coming from inside of the vehicle. He is familiar with the smell of cannabis from training at the Ontario Police College (OPC) and through life experience. He explained that he was born and raised in Jamaica and grew up around weed. He said he recognizes the difference between the smell of burnt and unburnt cannabis but could not describe the difference in words.

• He had a flashlight and could see small green leafy cannabis on the Applicant’s sweater and pants. It looked like the driver had been driving and rolling a joint at the same time, and leftover shake fell on him. He observed the shake in the first 20 to 30 seconds of his dealings with the Applicant.

• He told the Applicant it was a RIDE program and told him that he could smell cannabis and could see it all over his sweater and pants. The Applicant responded that he was smoking earlier with a friend and he is a messy roller.

• He could not remember if he asked the Applicant about alcohol but indicated it was his practice to ask drivers at a RIDE stop if they have had anything to drink or smoke.

• He looked inside the vehicle for officer safety and noticed a phone and a bag on the passenger seat which he made a mental note of for officer safety.

• He took the Applicant’s driver’s licence and returned to his police vehicle to query him on the computer. He wanted to ensure that the driver was licenced and wanted to know who he was because he was planning to conduct a cannabis investigation. He believed that the driver had cannabis readily available and, as a result, he believed he was authorized to conduct a search pursuant to the CCA. PC Cyrus testified that the CCA authorized him to search a person and vehicle and seize additional cannabis if he believed that there was cannabis readily available. He formulated his grounds based on the smell of cannabis, his observations of cannabis on the Applicant’s sweater and pants, and on the statements made to him by the Applicant. PC Cyrus testified that as soon as the Applicant rolled up and he smelled and saw cannabis he decided to search under the CCA but wanted to ensure that the Applicant was not impaired first. He did not see any signs of impairment.

• In cross-examination PC Cyrus disagreed with the suggestion that it was the Applicant who volunteered his driver’s licence and handed it to him before being asked. He could not recall whether he asked the Applicant for his ownership and insurance. He believed the car was a rental but did not make a notation of checking the ownership and insurance. He explained that he only noted the driver’s licence information because that was all he thought was important.

• During his initial dealings with the Applicant, the Applicant’s demeanour was calm and friendly.

[39] PC Cyrus testified that he was conducting checks in his cruiser for less than one minute and when he returned to the Applicant’s vehicle PC Johnson was having a conversation with the Applicant. He described the remainder of his interactions with the Applicant as follows:

• He told the Applicant that he was going to conduct a Cannabis Control Act investigation and that he would be searching him and the vehicle.

• The Applicant became defensive and said it was his property and they were not allowed to search it. He told the Applicant to get out of the car and he did not. He asked him three times to get out of the car and tried to explain his authority to search.

• The Applicant took his cell phone out, said that he would record them, and started recording.

• As the Applicant was fumbling with his cell phone, he told the Applicant that he could video, but they were still going to continue with the investigation. The Applicant eventually decided to exit the vehicle. He could not recall who opened the door but testified that the Applicant exited the vehicle with verbal prompts, and he did not touch him.

• He could not recall if he explicitly told PC Johnson that they were going to do a CCA search, but he knew that PC Johnson understood that was his intention.

• Once the Applicant was out of his car, he patted him down for officer safety reasons. He did not search his pockets.

• PC Johnson searched the car and he heard him say that he located a firearm. He did not search or enter the car at any time that night.

• He placed the Applicant under arrest for possession of a firearm at 12:25 a.m. PC Hyde assisted him to search the Applicant incident to arrest. The Applicant was in possession of grabba.

• PC Cyrus placed the Applicant in the cruiser and read him the rights to counsel and caution. This was the first time the Applicant was provided with the rights to counsel since being stopped at 12:19 a.m. He transported the Applicant to the police station at 12:31 a.m.

[40] PC Cyrus testified that he did not read the Applicant the rights to counsel prior to his arrest because he did not believe he was required to do so because it was a RIDE stop and, subsequently, a CCA investigation involving a brief detention. He said he did not expect there to be a broad investigation. He expected that after a short detention the Applicant would be sent on his way.

[41] In cross-examination PC Cyrus agreed that when the Applicant pulled up to the RIDE program, he did not see any cannabis paraphernalia, but he testified when the Applicant exited the vehicle, he saw an ashtray with “hashes” in it in the driver’s door. He said that the Applicant had rolling papers and grabba, which you put with cannabis to smoke a “blunt”. During re-examination PC Cyrus explained that hashes is a Jamaican term - referring to “hashing” the remainder of a cigarette up after smoking.

[42] PC Cyrus agreed that what gave him the grounds to search was the smell of cannabis, his observations of shake on the Applicant’s sweater and pants, and the utterances of the Applicant.

Evidence of PC Johnson

[43] PC Johnson testified that on the day of the stop he had been an officer for approximately three years and was assigned to the road safety bureau. He testified that he, PC Hyde, and PC Cyrus set up the RIDE stop check at Highway 404 and Highway 7 at approximately 12:07 p.m. He said that it was approximately 12:19 a.m. when the Applicant approached the RIDE stop. He believed it was approximately five minutes from the time the Applicant first approached to his arrest, at 12:25 a.m.

[44] PC Johnson testified that PC Cyrus went to the driver’s door and he went to the passenger side window, which was down for the entire interaction. He described the interaction, and his observations as follows:

• He immediately noticed the odour of cannabis coming from the vehicle and noticed cannabis shake on the driver’s “lap/kind of sweater area”. He said that he is familiar with the smell of cannabis from training at Ontario Police College and because he encounters it daily in the course of his duties. He testified that he cannot distinguish between the smell of burnt and unburnt cannabis, but he can tell the difference in appearance. He said that the cannabis shake on the driver’s lap was “extremely small and green in color”. He disagreed during cross-examination that there were only three crumbs of shake. He said there was a lot more, enough for him to visually see the shake and be certain it was cannabis.

• He did not recall smelling strawberry air freshener.

• As PC Cyrus and the Applicant spoke, he looked in the vehicle using his flashlight. He was looking for signs of impairment, or open alcohol or cannabis. He noticed a black satchel on the passenger’s seat and a white cell phone plugged into the console area.

• He did not hear the initial conversation between PC Cyrus and the Applicant but said that ordinarily at the outset an officer would ask an individual if he had anything to drink or smoke. When he noticed cannabis, he paid closer attention. PC Cyrus advised the driver of cannabis being readily available and the driver said that he just smoked up at his “boy’s” house and he is a “messy roller”. The Applicant made the comments within a minute of the stop.

• PC Cyrus asked for the male’s driver’s licence, he provided the licence without issue, and PC Cyrus returned to his police vehicle. PC Johnson could not recall if PC Cyrus asked the Applicant for the ownership and insurance for the vehicle.

• He stayed at the passenger side of the vehicle to ensure the driver did not leave and had a brief conversation with the driver, who was friendly and cooperative. He asked him to put the car in park and they spoke briefly about the Applicant coming home from his friend’s house.

• PC Cyrus was in his cruiser for about 1.5 to 2 minutes. He assumed that PC Cyrus planned to do a cannabis search and, for officer safety reasons, wanted to know who the person was before doing the search.

• When PC Cyrus returned, he advised the Applicant that they were going to be doing a cannabis search. The Applicant became hesitant and questioned what the officers were doing and did not want to get out of the car.

• When PC Cyrus asked him to get out of the car for the cannabis search, the Applicant grabbed his phone and wanted to record them. PC Cyrus said he could not take his phone. PC Johnson testified that the police would not allow an individual to record in those circumstances because, for officer safety reasons, it would be unsafe to allow a detainee to have a phone in his hands while detained and searched.

• When the demeanour of the Applicant changed his focus shifted to officer safety and he was paying attention to the driver’s actions rather than listening to the conversation. He said about a minute passed before the Applicant got out of the vehicle. He could not remember if the Applicant got out on his own, or if PC Cyrus assisted him. He did not see who opened the driver’s car door.

[45] PC Johnson testified that after the Applicant got out of the car he was with PC Cyrus and PC Hyde. When questioned about whether PC Johnson could see cannabis shake on the Applicant after he got out of the vehicle, PC Johnson said he was too far away to see at that time, but he thought the cannabis would have fallen off him when he got out of the vehicle.

[46] PC Johnson testified that he searched the Applicant’s vehicle under the authority of s. 12(3) of the CCA. He explained that section 12(3) provides that if cannabis is readily available to anyone in the vehicle, if not sealed, the police have authority to search the vehicle. He believed there was cannabis readily available because of the odour coming from the vehicle and based on his observations of cannabis on the Applicant’s lap and sweater area. PC Johnson testified that PC Cyrus made the decision to conduct the CCA search, and he agreed with his decision.

[47] During cross-examination PC Johnson explained that the shake on the driver gave him grounds to believe that there was cannabis contained in the vehicle in contravention of the Act because of the smell and because he believed that typically an individual will roll (a joint) in their vehicle and keep the cannabis in another area. He agreed that he saw no indicia of impairment.

[48] PC Johnson testified that when he searched the vehicle, he was looking for more readily available cannabis. He said his practice is to search within the area of reach of the individual. He searched the satchel first because it was the first thing within the driver’s reach, he believed that cannabis is usually stored in personal belongings like purses or satchels, and in his experience males store cannabis in satchels. He said it was the most reasonable spot to believe the cannabis would be stored.

[49] He testified that when he picked up the satchel it was heavy which caused him to have officer safety concerns and when he felt how heavy the satchel was, he believed there was a handgun inside the satchel. The weight of the bag was not consistent with regular belongings kept in a satchel, such as keys, a charger, and a wallet. He opened the zipper and immediately saw a black handgun. He told PC Hyde and PC Cyrus that there was a firearm, and they arrested the Applicant. Dispatch was notified of the arrest at 12:25 a.m.

[50] PC Johnson testified that once the Applicant was arrested, he took a closer look at the gun to confirm it was real and he requested a forensic identification assistant attend to take pictures.

[51] PC Johnson and PC Lo searched the Applicant’s vehicle incident to arrest. PC Lo arrived after the arrest of the Applicant. Before searching the vehicle, PC Johnson moved his police vehicle in front of the Applicant’s vehicle and activated the ICCS. PC Johnson and PC Lo testified that the following items were located:

• PC Lo observed a black Burberry satchel on the front passenger’s seat. He unzipped it and saw the butt end of the black handgun, a SigSauer P365. Inside the satchel he also observed three Scotiabank debit cards and a small Ziploc bag of dark colored tobacco that looked like dried peas. He did not open the bag.

• An ashtray and grinder in the driver’s door.

• Shake on the back left side of the driver’s seat which PC Johnson thought must have fallen from the driver’s lap when he got up. At 4:37:48 of the ICC recording PC Johnson mentions that there is shake on the driver’s seat.

• PC Lo observed cannabis shake in the centre console that looked like specs of green and had a distinct odour. At 4:39:06 of the ICC recording PC Lo commented that there was shake in the centre console. PC Lo used the adhesive from a property bag to pick up the specs of shake from the console including a cannabis stem and put them inside another evidence bag, Exhibit 8. Some of the shake detached from the adhesive. PC Lo did not believe he seized the shake observed on the driver’s seat and could not recall looking in the footwell. PC Lo put the grinder and rolling papers - located by PC Johnson –in the same evidence bag, Exhibit 8.

• PC Johnson also observed shake in the centre console and noted a cell phone plugged into the charger.

• A black backpack with nothing inside except alcohol wipes, and a brown/black Air Jordan shoe box containing new shoes on the rear driver’s side of the vehicle. A second pair of shoes on the rear driver’s side seat.

• A grey Walmart bag with sunglasses, a hat, and tinfoil with a white powder substance in the rear passenger side seat.

• Unattached licence plates registered to the Applicant on the back seat.

• Various pairs of shoes in one bag, clothing in another bag, and a pull up bar in the trunk.

[52] The ICC recording, Exhibit 6, at 4:44:30, captured PC Lo stating, about 14 minutes after commencing the search of the vehicle, that he could smell weed in the back seat. PC Johnson replied that he smelled weed also. Mr. Ghebrai suggested to PC Johnson that he and PC Lo mentioned smelling cannabis at that time because it was the first time he smelled cannabis. PC Johnson disagreed.

[53] PC Johnson agreed that he and PC Lo searched the car before the forensic identification assistant, Emily Rose Cary, arrived.

Evidence of PC Hyde

[54] PC Hyde participated in the RIDE stop program on May 12, 2021. He noted in his notes that the Applicant was stopped at 12:19 p.m. He testified that he was a short distance from the vehicle, continuing to set up the RIDE stop, while PC Cyrus and PC Johnson were interacting with the Applicant. He estimated that approximately two to three minutes passed from the time the vehicle was stopped until the Applicant was asked to get out of the vehicle. He moved closer, for officer safety reasons, when he heard the request for the Applicant to get out of the vehicle. When he got closer, he heard PC Cyrus indicate it was a CCA search. He said that the firearm was located by PC Johnson within 1 to 2 minutes of the Applicant getting out of the vehicle.

[55] As PC Cyrus was arresting the Applicant, he was beside the open driver’s door, towards the interior of the car (see Exhibit 7). PC Cyrus and the Applicant were towards the back of the car. He testified that he smelled cannabis, although he forgot to note it in his notes. He could not recall if it smelled burnt or fresh. He did not observe any cannabis on the Applicant. He searched the Applicant incident to arrest and located a bag of tobacco. After the search he placed the Applicant in PC Cyrus’s car.

Evidence of Forensic Identification Assistant Cary

[56] Forensic identification Assistant Cary took photographs of the interior of the vehicle. She had no other involvement in the investigation. She testified that she saw a green leafy organic substance on the driver’s seat, depicted in Exhibit 1D, and that she saw a similar substance in the console, depicted in Exhibit 1E, and in the footwell of the driver’s seat – Exhibit 1F. In respect of Exhibit 1F, Ms. Cary explained that the flash caused the substance to look white in the picture, but it was in fact green.

C. Assessment of the Evidence of the Applicant

[57] I do not accept the evidence of the Applicant. During cross-examination he was evasive during certain areas of questioning and his responses were internally inconsistent. Parts of his evidence were implausible. His evidence was undermined by the physical evidence in the vehicle, including the ashtray, grinder, rolling papers, and small amounts of cannabis shake. I find that the Applicant’s evidence about the cannabis related items was not credible and internally inconsistent. During his evidence in-chief, the Applicant omitted utterances he made to the officers and his evidence about the messy roller comment was not plausible. I do not accept the Applicant’s evidence that there was no cannabis shake on him or in the vehicle or his evidence that neither he nor the vehicle smelled like cannabis. I do not accept the Applicant’s evidence that PC Cyrus and PC Johnson fabricated the presence of cannabis shake and smell of cannabis as a pretext to justify searching the satchel.

Evidence About Cannabis Paraphernalia Not Credible

[58] During cross-examination the Crown asked the Applicant if he would transport marijuana paraphernalia, including things used to smoke marijuana, such as a grinder, a bong, or an ashtray. The Applicant responded, “Maybe rolling papers.” When asked if he would transport anything that smelled like marijuana, he indicated he would not. When asked if he would have transported an ashtray, he denied knowing or noticing that there was an ashtray beside the driver’s seat and testified that he thought Laquan might have had an ashtray “because certain places if you go smoke, they do not want to see the butts, they do not want to see the ash, so the ashtray is out of respect”. When asked where Laquon had an ashtray, the Applicant said he was not sure and said he did not recall seeing an ashtray in the car.

[59] The Crown showed the Applicant Exhibits 1A and 1B, which show that there was a portable ashtray in the driver’s door compartment, immediately beside the driver’s seat. When asked if he noticed the ashtray before being pulled over by the police, he responded not that he could remember. When asked to agree that the ashtray would have been readily apparent to the driver, he responded, “It depends on your height and the way you sit.”

[60] When asked why he thought Laquan may have had an ashtray the Applicant said that although he did not have a specific recollection of the ashtray it would be a regular thing for him to do. When asked if the ashtray shown in Exhibit 1B was Laquan’s ashtray he responded that “It could be.” He later testified that he recognized the ashtray because he saw Laquan with it before. When asked whether the ashtray was something he, D’Andre, and Laquan used on the day of the allegations, the Applicant replied “No”, that D’Andre had an ashtray at his house. He said he assumed the ashtray was Laquan’s because it was not his and only the two of them drove the car.

[61] The Applicant agreed that the residue in the ashtray was from smoking weed but when it was suggested to him that the ashtray might smell like weed, he said it would surprise him because he did not think there were any butts in the ashtray, and it smelled like ash.

[62] The Applicant’s evidence about the ashtray in the car was not credible. I do not accept his evidence that he did not know there was an ashtray in the driver’s door. The large ashtray in the door would have been readily apparent to anyone in the driver’s seat. The Applicant spent a significant amount of time driving the car before being stopped at the RIDE stop. He drove Laquan to his home downtown from the Jane and Wilson area, and then drove the vehicle from downtown to Highway 7. I do not accept that he failed to notice an ashtray with cannabis ashes that was immediately beside him. I accept PC Cyrus’s evidence there were “hashes” in the ashtray.

[63] The Applicant’s evidence that the ashtray was Laquan’s was internally inconsistent with his evidence at the beginning of the cross-examination that Laquan took all his things out of the vehicle. At the outset of the cross-examination, the Applicant agreed that the vehicle was “freshly” rented for him by his friend Laquan. He agreed that the vehicle was clean when Laquan picked him up in the Yorkdale area and he agreed that Laquan removed his belongings from the car when he dropped him off.

[64] Later when questioned about the ashtray, his evidence changed, and he testified that he could not remember if Laquan left anything in the car. His evidence that he thought Laquan might have had an ashtray “because certain places if you go smoke, they do not want to see the butts, they do not want to see the ash, so the ashtray is out of respect” did not make sense. He testified that he and Laquan took the freshly rented car to D’Andre’s home, the only place they consumed cannabis that night, and they did not use Laquan’s ashtray because D’Andre had his own. If the car was picked up by Laquan for the Applicant, the only cannabis consumed that day was a single joint at D’Andre’s, and the cannabis was supplied by D’Andre, it does not make sense that Laquan would bring a portable ashtray with him and leave it with ashes in it in the driver’s door of the car.

[65] In my view, the more plausible and likely explanation for the large portable ashtray, with ashes in it, in the driver’s door of the rental vehicle, is that the Applicant used the ashtray to smoke cannabis in the car. This inference is compelling having regard to the physical evidence including a marijuana grinder in the door, rolling papers in the car, grabba in the car and in the possession of the Applicant, and cannabis shake on the Applicant - something I find as a fact - and in the vehicle. It is also consistent with PC Cyrus smelling burnt cannabis, something, as set out below, I also accept.

[66] Finally, when cross-examined about whether the ashtray smelled like cannabis, the Applicant testified that there were no buds in the ashtray, only butts or ash, so it smelled like ash only. This evidence is internally inconsistent with the Applicant’s other evidence that he did not notice that there was an ashtray in the vehicle.

Presence of Cannabis Shake in the Vehicle

[67] The Applicant’s evidence was that the vehicle did not smell like cannabis and that there was no cannabis shake on him or in the vehicle. He suggested that PC Cyrus and PC Johnson fabricated the presence and smell of cannabis as a pretext to search his satchel, which he said PC Cyrus was fixated on from early in the interaction.

[68] During cross-examination, the Crown showed the Applicant Exhibits 1C and 1D, photographs the Crown submits show cannabis shake on the driver’s seat. The Applicant did not agree that the substance looked like fresh marijuana. He said that it was so small “it could be anything”. After further questioning, the Applicant reluctantly agreed it was possible that cannabis stuck to his pants when he rolled a joint at D’Andre’s home but added that he did not see it.

[69] When shown Exhibit 1E, a photo that the Crown suggested depicted cannabis shake in the console of the vehicle including a stem, the Applicant responded that it looked like a grape stem and said, “It could be anything.”, adding that it was not a marijuana stem. Later in the cross-examination when the Crown suggested that the substance in the photos looked like marijuana, he responded “Not really”, adding that it was so small that he could not tell. When pressed further, he responded that he was not going to say that the green substance in Exhibit 1D was not marijuana because it could have stuck to his pants but did not agree that it was possible for weed to have transferred from his clothing to the console. He disagreed that the stem in the console was there because he smoked weed in the car.

[70] The Applicant was evasive and reluctant to agree that the green substance depicted in Exhibit 1D and Exhibit 1E look like cannabis shake. The Applicant testified that he has smoked cannabis most days since he was 15 or 16 years old. The substance depicted in Exhibit 1D, while a very small amount, looks like cannabis and the Applicant would have readily recognized this. The stem in Exhibit 1E, while less clear, is consistent in appearance with a marijuana stem.

[71] I reject the Applicant’s evidence that there was no cannabis shake in the vehicle or on him and I find as a fact there was cannabis shake in the vehicle and on the Applicant. In rejecting the Applicant’s evidence and finding these facts, I have considered all of the evidence including:

• The photos taken by Forensic Identification Assistant Cary that I find show a small amount of cannabis shake on the driver’s seat and in the console.

• FIA Cary’s evidence that she saw a green leafy organic substance on the driver’s seat, console, and in the footwell of the driver’s seat. I accept her evidence. She was a credible and careful witness and was not involved in the investigation of the Applicant leading up to the gun being found.

• The evidence of PC Cyrus that he saw small green leafy cannabis on the Applicant’s sweater and pants, that looked like the driver had been driving and rolling a joint at the same time and the leftover shake fell on him.

• The evidence of PC Johnson that he saw extremely small green left-over cannabis leaves that he was certain was cannabis on the Applicant’s lap and sweater area and when he searched the vehicle, he saw shake on the back left side of the driver’s seat and in the console area.

• The evidence of PC Lo that he observed cannabis shake in the console area of the vehicle while searching the vehicle; and Exhibit 8, the small amount of shake- like substance which he collected with an adhesive strip from an evidence bag. I accept PC Lo’s evidence that he saw what he believed to be cannabis shake in the console and did his best to collect the evidence. Like FIA Cary, PC Lo was not involved in the initial investigation, and arrived on scene after the gun was found.

• The Applicant’s utterance, that he was a “messy roller”, something he admits saying, and which I find was an acknowledgment of the presence of cannabis shake.

[72] In finding that there was cannabis shake on the Applicant and in the vehicle, I have considered the evidence of PC Hyde that he did not notice cannabis shake on the Applicant when he searched him incident to arrest. When PC Hyde searched the Applicant incident to arrest, the Applicant had already stepped out of the vehicle, and had been subject to a pat down search by PC Cyrus. I find that shake that was on the Applicant fell off him when he got out of the vehicle and during the pat down search. Further, if there was shake remaining on the Applicant when he was searched by PC Hyde, it is not surprising that that PC Hyde did not notice it because by that point the focus of the investigation had rapidly changed from a Cannabis Control Act investigation to the much more serious criminal allegation of possession of a loaded handgun.

[73] I have also considered the post-arrest ICC recording of the Applicant in the rear seat of the cruiser. Cannabis shake cannot be seen on the Applicant in the video. Even though cannabis shake is not evident in the ICC video, I am satisfied that there was cannabis shake in the vehicle and on the Applicant when he stopped for the RIDE program. As noted above, by the time the Applicant was placed into the rear of the cruiser, he had stepped out of the vehicle, and had been subject to a pat down search and search incident to arrest. I accept that cannabis shake fell off him when he got out of the vehicle and was searched. Furthermore, the quality of the video is poor, and it was dark. It is far from clear that if there were small amounts of cannabis shake remaining on the Applicant, that it would be apparent in the ICC video.

[74] I have considered that the photos depict only very small amounts of shake in the footwell of the driver’s seat, on the driver’s seat, and in the console, and that only a very small amount of shake was collected by PC Lo. As explained in more detail below, I accept the evidence of PC Cyrus and PC Johnson that while seated in the driver’s seat there was obvious small green leafy cannabis shake “all over” the Applicant’s sweater and pants and that the amount of shake on the Applicant was greater than that left behind in the vehicle. In reaching this conclusion, I have considered that the Applicant agreed that he said he was a “messy roller”, something that despite his suggestion otherwise, I find was an admission of the presence of marijuana shake.

Smell of Cannabis

[75] I do not accept the Applicant’s evidence that neither he nor the car smelled of cannabis and that the officers fabricated that they smelled cannabis as a pretext to justify the search of the vehicle.

[76] During cross-examination, the Applicant agreed that he put on cologne when he left D’Andre’s home. Initially, when asked why he used cologne and an air freshener if he did not smell like weed, the Applicant said that it was “an extra precaution” to avoid smelling like weed. However, when questioned further he said that he used the cologne to smell good. He said he did not smell like weed because a lot of time had passed since he smoked the joint. Near the end of the cross-examination when asked why he used an air freshener, he said it was because he liked when the air smelled good and that it had nothing to do with masking the smell of marijuana.

[77] The Applicant’s evidence about use of cologne and use of an air freshener was internally inconsistent. His explanations for the cologne and air freshener varied between simply wanting himself and the car to smell nice, to taking an “extra precaution” to conceal the smell of cannabis.

[78] I do not accept the Applicant’s evidence that neither he nor the vehicle smelled like marijuana, and I find as a fact that the vehicle smelled like burnt and fresh cannabis when PC Cyrus and PC Johnson interacted with the Applicant in his car. In reaching this conclusion I have considered the evidence as a whole including:

• PC Cyrus’s evidence that as soon as the Applicant rolled down the window, he smelled burned and fresh cannabis. Although PC Cyrus had difficulty describing in words the difference between the smell of fresh and burned cannabis, I accept his evidence that because of his training and his life experience he is familiar with both and can tell the difference.

• PC Johnson’s evidence that he immediately noticed the smell of cannabis coming from the vehicle.

• PC Hyde’s evidence that he smelled cannabis when he was near the driver’s door of the car when PC Cyrus was dealing with the Applicant near the back of the car. PC Hyde was a credible straightforward witness. He readily acknowledged that he failed to note smelling cannabis in his notes. I accept that he had an independent recollection of smelling cannabis. I do not accept that PC Hyde was colluding with PC Cyrus and PC Johnson to fabricate evidence. He testified that he did not remember cannabis shake on the Applicant, something inconsistent with collusion.

• The evidence of PC Lo that he smelled cannabis while searching the car. While he did not mention smelling cannabis on the ICC recording until approximately 14 minutes into the search of the car, the smell of cannabis would have been less significant once the Applicant (and the cannabis shake that was on him) was out of the vehicle, and because of the additional passage of time, and the doors of the vehicle being open during the search.

• The presence of an ashtray with cannabis ash/hashes in it in the car.

[79] Moreover, I find that the Applicant took positive steps to mask the smell of cannabis in the car through use of an air freshener. I find that it was not a coincidence that there was an ashtray, grinder, rolling papers, cannabis shake, and an air freshener in the car. Each item had a purpose. The grinder and rolling papers and ashtray were to facilitate smoking cannabis, and the purpose of the air freshener was to conceal the smell of cannabis.

Implausible Evidence – Messy Roller Comment

[80] In examination in-chief the Applicant testified that when PC Cyrus first approached his car, he asked him if he had anything to drink and he said “No.” He said PC Cyrus asked him if he had anything to smoke, and he responded, “Not recently.” He said PC Cyrus commented on his air freshener and shone his flashlight on his satchel and asked what was in the bag, and he said, “My personal belongings.” He said he gave his driver’s licence to PC Cyrus who went to his vehicle and when he returned, PC Cyrus asked him if he had been smoking and if he had weed in the car and he said “No.” He said PC Cyrus told him that he was causing a long line-up and if he showed him what was in his bag, he would let him go. When he said “No”, PC Cyrus became upset, pointed the flashlight on his pants and told him that he saw a weed crumb. He looked down, did not see any weed crumbs, and asked to record.

[81] The Applicant testified that PC Cyrus never told him that he smelled cannabis or saw cannabis on him until after he refused to allow him to search his satchel, and, after he refused, the officer said he saw a weed crumb. He said that was when he told PC Cyrus he wanted to record, PC Cyrus refused, told him to drop the phone, attempted to open his door and he got out of the vehicle.

[82] During examination in-chief the Applicant did not make any reference to telling the officer that he smoked with a friend earlier (at his house or otherwise) and did not mention that he told PC Cyrus that he was a “messy roller”. In cross-examination the Applicant disagreed with the suggestion that there may have been additional conversation between himself and the officer, however, he later acknowledged that he told PC Cyrus he was a “messy roller”. He said what he meant was he knew he had rolled marijuana before, and it might have gotten on his clothing. He said he said it “in defence” because he did not look down at the time and just responded. He said that when he looked down, he realized there was nothing on him, “There was no shake, no nothing.”

[83] I find as a fact that the Applicant told the officer that he had smoked at a friend’s (his “boy’s”) house earlier, and that he was a “messy roller”. I find that the Applicant’s admission that he made the “messy roller” comment was internally inconsistent with his evidence in-chief about his conversation with the officer, and I find that the Applicant initially omitted the “messy roller” comment because it did not fit well with his assertion that the officers fabricated the evidence of shake.

[84] The Applicant’s evidence that PC Cyrus never told him he smelled cannabis or saw cannabis shake until shortly prior to his arrest, and immediately before the Applicant asked to record the officer, is inconsistent with his evidence explaining the messy roller comment, that he made the comment “in defense” and responded without looking down.

[85] I find as a fact that shortly after PC Cyrus approached the vehicle and told the Applicant that he was conducting a RIDE program, he told the Applicant that he could smell cannabis, and saw cannabis shake all over his sweater and pants. I have considered the Applicant’s evidence, the evidence of PC Cyrus, and the evidence of PC Johnson who also testified that, near the beginning of the interaction with the Applicant, PC Cyrus advised the driver of cannabis being readily available and the Applicant said that he had just smoked up at his “boy’s” house and that he was a messy roller.

[86] I find as a fact that in response to PC Cyrus telling the Applicant that he saw and smelled cannabis, the Applicant said he a was a messy roller, acknowledging the presence of cannabis shake. I do not accept his evidence that he said he was a messy roller, even though there was no cannabis on him.

Evidence that He was Left Alone Outside of the Car

[87] The Applicant testified that as soon as he was removed from the vehicle both PC Cyrus and PC Johnson immediately went into the car to search the satchel and PC Cyrus paid him no mind and he was just standing there. The picture the Applicant painted was that PC Cyrus was determined to search the satchel throughout his dealings with him and, after removing him from the car, PC Cyrus went directly to the satchel to search it. I do not accept the Applicant’s evidence that PC Cyrus left him standing by himself outside the car and entered the car, with his back to the Applicant, to search the satchel. It would raise significant officer safety concerns for PC Cyrus to leave the Applicant unattended while he went inside the car to search it. The Applicant’s evidence is inconsistent with the evidence of PC Hyde, PC Cyrus, and PC Johnson, who testified that PC Cyrus did a pat down search of the Applicant after he was removed from the vehicle, and PC Johnson searched the satchel and located the gun. I reject the Applicant’s evidence that both PC Cyrus and PC Johnson “went for the satchel”. I accept PC Cyrus’s evidence that he patted down the Applicant, and PC Johnson conducted the CCA search in the car and located the gun.

D. Assessment of the Police Evidence

[88] The rejection of the Applicant’s evidence does not resolve the Charter issues. My assessment of the credibility and reliability of PC Cyrus’s and PC Johnson’s evidence is central to the determination of the Charter issues.

[89] The Applicant submits that PC Cyrus and PC Johnson had neither subjective nor objective reasonable grounds to believe that cannabis was contained in the vehicle in contravention of s. 12(1) of the CCA. He submits the officers were not credible or reliable witnesses and fabricated their evidence that they saw cannabis shake on the Applicant and smelled cannabis, as a pretext to justify their search of the satchel for suspected criminal wrongdoing. He submits their decision to search the satchel was driven by racial profiling.

[90] Some of the issues that the Applicant pointed to in support of his position that I should reject the evidence of PC Cyrus and PC Johnson include:

i.) Inconsistency between PC Cyrus’s evidence and PC Johnson’s evidence about whether the Applicant stated that he was smoking earlier with a friend or said he was smoking earlier at a friend’s house;

ii.) Inconsistency between PC Cyrus’s evidence and PC Johnson’s evidence about whether PC Cyrus told the Applicant he could not use his cellphone to record the officers;

iii.) Inconsistency between the chronology of events described by PC Cyrus in his evidence and the chronology in his notes;

iv.) The absence of evidence of cannabis shake on the Applicant and in the vehicle; and

v.) The failure of the officers to activate the ICCS to create an independent record of the events.

[91] PC Cyrus is a relatively inexperienced officer who was subject to a skillful, thorough, and assertive, (although not inappropriately so) cross-examination. In my view, the difficulties with PC Cyrus’s evidence are attributable to his lack of experience, difficulties in effectively articulating his thoughts especially during cross-examination, and insufficient or poor note taking at the time of the incident.

[92] Despite accusatory and repetitive questions, I find that PC Cyrus remained calm and was responsive to the questions asked. Generally, he sought to provide thoughtful answers and was not defensive. He readily acknowledged mistakes or things that he could have done differently. He remained steadfast and consistent in his evidence that he smelled cannabis and saw cannabis shake, and that he acted under the authority of the CCA. He adamantly denied that his decisions were infected by racial profiling.

[93] Except where stated otherwise, I accept PC Cyrus’s evidence. Important aspects of his evidence are supported by the physical evidence located in the vehicle and by the evidence of other officers. I am satisfied that PC Cyrus was a truthful although imperfect witness.

[94] I also accept the evidence of PC Johnson. He was a credible, reliable, and careful witness. His evidence was internally and externally consistent. He also remained professional, calm, and responsive, in the face of a skilled and assertive cross-examination.

Inconsistency Regarding Utterance of the Applicant

[95] The evidence of PC Cyrus was not without issue. There were inconsistencies between PC Cyrus’s evidence and the evidence of PC Johnson. PC Cyrus testified that when he told the Applicant that he could smell cannabis and could see it all over his sweater and pants the Applicant responded that he was smoking earlier with a friend and that he is a messy roller. In contrast, PC Johnson testified that after PC Cyrus advised the driver of cannabis being readily available, the driver responded that he “just smoked up at his “boy’s” house” and that he is a “messy roller”.

[96] During cross-examination, PC Cyrus maintained that the Applicant never said, “he was smoking earlier at a friend’s house.” He said if the Applicant said “at a friend’s house” he would have made a note of it.

[97] During cross-examination, PC Hyde agreed that he and PC Cyrus briefed the CIB office on May 12, 2021, and PC Cyrus provided most of the information during the briefing. He agreed that the briefing note, prepared by one of the Detectives from the CIB office, indicates that the Applicant said he was coming from a friend’s house. PC Hyde did not verify the accuracy of the content of the briefing note after the meeting. The Detective who prepared the briefing note was not called as a witness and the content of the briefing note was never put to PC Cyrus.

[98] The significance of the discrepancy is that if the Applicant said he was smoking earlier with a friend and is a messy roller, the utterance leaves open, through the Applicant’s own words, that the smoking occurred in the car – relevant to the sufficiency of the grounds for the CCA search. In contrast, if the Applicant said he smoked earlier at a friend’s house, if accepted as truthful, the utterance could undermine the sufficiency of the grounds by constituting an exculpatory explanation for the smell of cannabis and presence of cannabis shake.

[99] I note that during his evidence the Applicant did not testify that he told the officer he was smoking earlier at a friend’s house or that he was smoking earlier with a friend. Instead, he testified that when the officer asked if he had been smoking, he said “Not recently.”

[100] The briefing note, made by a Detective, not by PC Cyrus, is of limited assistance in resolving the issue. PC Hyde did not have an independent recollection of what was said during the meeting, and the briefing note was not put to PC Cyrus. I accept it may provide some limited circumstantial evidence that PC Cyrus told the detectives that the Applicant said he was smoking earlier at a friend’s house.

[101] Having regard to the evidence of PC Johnson, I find that it is likely that PC Cyrus is mistaken, and when the Applicant told him that he was smoking earlier that he also said that he did so at his friend’s or “boy’s” house. I note that PC Johnson also testified that when PC Cyrus went to his cruiser, he spoke briefly with the Applicant about the Applicant coming from his friend’s house. This may explain, in part, why PC Johnson remembered that the Applicant said that he was coming from a friend’s house and PC Cyrus did not.

[102] I am satisfied PC Cyrus genuinely believed that the Applicant only said he was smoking earlier with a friend, and he was not seeking to mislead the court, or fabricate evidence. Constable Cyrus did not make contemporaneous notes at the roadside and the events rapidly transitioned from a RIDE stop, to a CCA investigation, to a criminal investigation involving a loaded firearm. I find that PC Cyrus either failed to make a complete note of the utterance in his notebook and subsequently forgot about the latter portion of the utterance by the time of trial, a year and a half after the events, or never heard or appreciated the latter part of the first utterance at the time it was made.

[103] I accept that PC Cyrus subjectively believed that there was cannabis contained in the vehicle in contravention of s. 12 of the CCA. He described that it looked to him like the Applicant had been driving, and rolling a joint in the car, and this was the reason the Applicant had shake on his clothing.

[104] In my view, as explained below, my finding that it is likely that the Applicant said he was smoking earlier at a friend’s house (boy’s house), does not impact my finding that PC Cyrus subjectively had the requisite reasonable grounds to believe that there was cannabis in the vehicle in contravention of s. 12(1) of the CCA, or that the grounds were objectively reasonable. The officers were not required to accept the Applicant’s assertion that he was smoking at a friend’s house, or, if accepted, conclude that was the only place he was smoking or in possession of marijuana.

[105] PC Johnson, who executed the search, testified that the Applicant said he was “just smoking up at his boy’s house” and that he was a “messy roller”. Nonetheless, PC Johnson indicated that he was in full agreement with PC Cyrus’s conclusion that there were grounds to search under s. 12(3) of the CCA and I am satisfied that PC Johnson also had a subjective belief that there were grounds to conduct a search under s. 12(3) of the CCA.

Refusal to Allow the Applicant to Record

[106] The second area of inconsistency between PC Cyrus and PC Johnson relates to the Applicant’s request to record the officers. PC Cyrus testified that when he asked the Applicant to get out of the car, the Applicant became defensive and he asked him three times to get out of the car while trying to explain his authority to search. He said that the Applicant took out his phone and said he would record them and started recording. PC Cyrus testified that he told the Applicant he could record if he wanted to, but they would continue with the investigation, and he continued to “verbally prompt” the Applicant to get out of the car which ultimately led to the Applicant getting out of the vehicle.

[107] PC Johnson testified that when PC Cyrus returned from conducting the computer checks, he advised the Applicant they would be doing a cannabis search and the Applicant became hesitant, questioned what the officers were doing, and did not want to get out of the car. PC Johnson said that the Applicant grabbed his phone and wanted to record them, and PC Cyrus told him he could not take his phone. PC Johnson testified that it would be an officer safety issue to allow the Applicant to have a phone in his hands to record them while he was subject to an investigative detention and search.

[108] I find as a fact that when PC Cyrus told the Applicant to get out of the vehicle the Applicant became hesitant and uncooperative and told PC Cyrus he would record them. I accept that PC Cyrus told the Applicant he could video them if he wanted to, but then immediately and repeatedly firmly communicated to the Applicant that he had to get out of the vehicle and the investigation was continuing. Whether or not PC Cyrus explicitly told the Applicant he could not take his phone, I am satisfied that is what the Applicant and PC Johnson understood as PC Cyrus repeatedly directed the Applicant to get out of the car.

[109] I accept PC Johnson’s evidence that once the Applicant was subject to an investigative detention, search, and arrest, he could not, and the officers would not have allowed him, to have a phone in his hands for officer safety reasons. I find as a fact that when the Applicant got out of the car, he left his phone in the car, plugged into the console (as shown in the photos taken by Forensic Identification Assistant Cary), obviating the need for PC Cyrus to instruct him further about the phone. I am satisfied that any discussion about the phone and recording was brief.

[110] When the conversation occurred about recording, the Applicant was becoming less cooperative and was becoming resistant to PC Cyrus’s directions. Approximately one to two minutes passed between when the Applicant said he was going to record, and when he got out of the vehicle, was subject to a pat down search, and when PC Johnson located the gun, and the Applicant was placed under arrest. When the Applicant asked to record, the decision had already been made to search the Applicant and car, and the Applicant had been informed of that decision.

[111] I do not accept that PC Cyrus prevented the Applicant from recording to prevent the creation of an independent record of the Applicant’s interactions with the police or to cover up a pretext search. Having regard to the context in which the discussion took place, the transition of a cooperative individual to a resistant individual - who moments later was discovered to be in possession of a loaded handgun - and the shift from a minor CCA investigation to a serious Criminal Code investigation, it is understandable that PC Cyrus and PC Johnson may not have recalled every word said with precision.

There was Not a Material Inconsistency in PC Cyrus’s Chronology of Events.

[112] PC Cyrus testified that the Applicant made the utterances, that he smoked earlier with a friend and was a messy roller, within the first thirty seconds of their conversation. Counsel for the Applicant suggested that the Applicant’s utterances about smoking earlier and being a messy roller happened after PC Cyrus returned from checking the Applicant’s identification on the police computer.

[113] Counsel suggested that PC Cyrus’s evidence about the timing of the utterances was inconsistent with the chronology contained in his notes based on a passage which read:

I took drivers licence and used police computer to confirm ID of male. Driver was ID with valid G1 as Taj Antonio Moulton. DOB May 4, 1997. Moulton made utterance that he smoked earlier with a friend. He advised that he is a messy roller. I advised Moulton that I observed cannabis on his sweater and pants before he made utterance.

[114] Counsel for the Applicant suggested that the notes indicate the order in which things took place were: PC Cyrus took the Applicant’s licence, made checks on the computer, returned to the Applicant’s vehicle after making the checks, the Applicant made the utterances, and PC Cyrus told the Applicant that, before he made the utterances, he had already made the observations.

[115] PC Cyrus testified that he knew and remembered the sequence of the events and he told the Applicant what he saw, and then the Applicant made the utterances. PC Cyrus testified that it would not make sense otherwise because he did not make the comments “out of the blue”.

[116] PC Cyrus referred to the first page of his notes, immediately preceding the passage referenced by counsel, where he noted that when the driver rolled down the window, he could smell the strong odour of burned and fresh cannabis coming from the vehicle; he saw shake on his pants and sweater; and told him that it was a RIDE stop and that he was investigating him under the Cannabis Control Act. Consequently, it appears a more fulsome summary of the information contained in the notes includes:

When the driver rolled down the window could smell the strong odour of burned and fresh cannabis coming from the vehicle. Saw shake on pants and sweater. Advised driver of the reason for stop- Ride program, explained to him that under Cannabis Control Act I would be investigating him. I took drivers licence and used police computer to confirm ID of male. Driver was ID with valid G1 as Taj Antonio Moulton. DOB May 4, 1997. Moulton made utterance that he smoked earlier with a friend. He advised that he is a messy roller. I advised Moulton that I observed cannabis on his sweater and pants before he made utterance.

[117] I am not satisfied that there is a material inconsistency between the chronology of events described in PC Cyrus’s evidence and his notes. The notes are brief, and in my view simply were not written in perfect chronological order.

[118] The passage in the notes emphasized by the Applicant could equally be interpreted to mean that PC Cyrus told the Applicant what he saw and smelled before the Applicant made the utterances.

[119] The chronology suggested by counsel, that the Applicant made the utterances “out of the blue”, does not make sense. It is more logical that the Applicant made the utterances in response to PC Cyrus telling him that he smelled cannabis and saw cannabis shake on his clothing.” Parenthetically, the Applicant’s own evidence supports the officer’s chronology - the Applicant testified that he made the comment that he was a messy roller in response to PC Cyrus telling him that he saw weed on him.

[120] I accept PC Cyrus’s independent recollection about the chronology of the events which is corroborated by PC Johnson’s evidence. PC Johnson testified that the utterances were made within the first minute of the stop. He said that PC Cyrus advised the driver of cannabis being directly available, asked the driver if he had anything to drink or smoke, and the driver said that he just smoked up at his “boy’s” house and that he is a messy roller. He said it was after the Applicant made the utterance that PC Cyrus asked for his licence and returned to his cruiser.

[121] I find as a fact that after the Applicant stopped for the RIDE program, PC Cyrus approached his window and immediately smelled a strong odour of fresh and burnt cannabis. He told the Applicant it was a RIDE stop. He asked him if he had anything to drink or smoke. The Applicant said he did not. PC Cyrus told the Applicant that he could smell cannabis and saw cannabis all over his sweater and pants. In response, the Applicant said that he smoked earlier at a friend’s house (boy’s house) and said he was a messy roller. PC Cyrus told the Applicant he would be investigating him for cannabis readily available. PC Cyrus took the Applicant’s driver’s licence to his cruiser, ran checks, and returned to the car. He reiterated that they would be doing a Cannabis Control Act search. PC Cyrus told the Applicant to get out of the vehicle. The Applicant became hesitant and questioned what the officers were doing and did not want to get out of the car. He told the officers he would record them. PC Cyrus communicated to the Applicant that he could video if he wanted to, but he still had to get out of the car, and they were going to continue with the investigation. PC Cyrus directed the Applicant to get out of the car several times. The Applicant got out of the car and left his phone plugged into the console.

Length of Dealings with the Applicant

[122] PC Cyrus testified that his dealings with the Applicant started at approximately 12:04 a.m. and the arrest took place at 12:25 a.m. He did not take contemporaneous notes detailing the time of the different stages of the investigation and PC Cyrus did not make a note of the precise time of his first contact with the Applicant. However, PC Cyrus indicated that from the point that the Applicant was stopped until he returned to his cruiser to conduct computer checks was approximately 2 minutes. He said he was in his cruiser for less than a minute, and he estimated that the total time from the time the car rolled up until the Applicant exited the vehicle was “less than five to ten minutes”.

[123] The Applicant testified that eight to 12 minutes passed from his initial interaction with the officers until the officer went to the car with his licence. He later testified during cross-examination that the time that passed from when he was initially stopped until he was asked to step out of the vehicle was no less than eight to 12 minutes.

[124] PC Johnson testified that the contact with the Applicant began at approximately 12:19 and ended at 12:25 a.m. PC Hyde similarly testified that the Applicant was stopped at 12:19 p.m. and only two to three minutes passed from the time the vehicle was stopped until the Applicant was asked to get out of the vehicle. He testified that the firearm was located within 1 to 2 minutes of the Applicant getting out of the vehicle. I accept this evidence.

[125] I find as a fact that the events unfolded quickly, and I accept the evidence of PC Johnson and PC Hyde that approximately six minutes passed between the first contact with the Applicant and his arrest. I accept their evidence that the stop started at approximately 12:19 a.m. and the Applicant was arrested at 12:25 a.m.

Evidence of Smell and Presence of Cannabis Shake

[126] For the reasons noted above, I accept PC Cyrus’s evidence and find as a fact that when PC Cyrus first interacted with the Applicant, he immediately smelled burnt and fresh marijuana, and saw marijuana shake on the Applicant’s sweater and pants. I find as a fact that the Applicant told PC Cyrus that he smoked marijuana earlier at a friend’s (boy’s) house and said that he was a messy roller. I find that the Applicant made the comments in response to PC Cyrus alerting him to the fact that he saw cannabis shake on his clothing and smelled marijuana.

[127] PC Cyrus’s evidence that he smelled marijuana and saw cannabis shake on the Applicant’s clothing is corroborated by the evidence of PC Johnson, and PC Lo. It is partially corroborated by the evidence of PC Hyde.

[128] I accept PC Johnson’s evidence that during the stop the passenger side window was open. I accept his evidence that he smelled cannabis coming from the vehicle and saw cannabis shake on Mr. Moulton’s shirt and pants.

[129] I have considered the Applicant’s submission that PC Johnson gave inconsistent evidence about the location of the cannabis shake because in his notes he referred to cannabis being on the Applicant’s pants, and in his evidence, he said he saw cannabis shake on the lower part of the Applicant’s sweater and on his lap/pants. The Applicant submitted that I should find that PC Johnson modified his testimony so that his evidence would conform with PC Cyrus’s evidence. In my view the difference in PC Johnson’s description of the location of the cannabis shake was not a material inconsistency. Rather, it was a minor variation in the descriptive words used to explain where PC Johnson saw the cannabis shake on the Applicant.

[130] PC Hyde also testified that he smelled cannabis, and although he did not note smelling cannabis in his notes, I accept his evidence. I found he was a candid officer, who readily acknowledged his mistake in failing to note the smell of cannabis.

[131] PC Lo also noted the presence of small amounts of shake in the console when searching the car, and he noted the smell of cannabis during his search of the vehicle.

[132] Further, I find that the Applicant acknowledged the presence of marijuana shake on his clothing when he said he was a “messy roller”. He admits to having made the statement and I reject his evidence that he made the comment “in defence”, and without looking at himself.

[133] Most significantly, as explained in detail above, I find that the physical evidence tends to corroborate PC Cyrus’s and PC Johnson’s evidence about the Applicant and car smelling of cannabis and the presence of cannabis shake. The physical evidence is directly relevant to the assessment of the credibility and reliability of the officers’ evidence that they smelled cannabis and saw cannabis shake:

• The photos taken by Forensic Identification Assistant Cary, and her viva voce evidence, which I accept, establish the presence of small amounts of cannabis shake on the driver’s seat, in the console, and in the footwell of the driver’s seat. PC Lo also observed and collected small amounts of cannabis shake in the console area.

• There was cannabis paraphernalia located in the vehicle including an ashtray with ash in it immediately beside the driver, a marijuana grinder, rolling papers and grabba. The presence of these items in the vehicle, together with the small amounts of cannabis shake, provide circumstantial evidence that cannabis was present and being smoked in the vehicle and is supportive of the evidence of the officers that they saw cannabis shake and smelled cannabis.

• The air freshener in the console, in conjunction with the evidence as a whole, is supportive of the inference that the Applicant was attempting to mask the smell of marijuana, something I find as a fact.

[134] While the amount of cannabis shake depicted in the photos and collected is very small, in my view it is none the less capable of corroborating that the Applicant had shake on his clothing and that a small amount was left behind in the footwell, in the console, and on the driver’s seat when he exited the vehicle.

[135] PC Cyrus and PC Johnson were cross-examined extensively on their failure to take steps to preserve evidence of the cannabis shake on the Applicant. PC Cyrus testified that the shake came off the Applicant when he got out of the vehicle, was patted down, and searched. He said he did not turn his mind to attempting to collect the cannabis shake at the time and an officer was not immediately available to photo the Applicant’s clothing. He did not think of using tape to collect shake from the Applicant.

[136] PC Cyrus dealt with the Applicant after he got out of the car. He was a relatively inexperienced officer and, it is unlikely that on the day of the roadside stop he appreciated the importance of the observations of shake or the future vigorous challenge to his credibility.

[137] I accept that it did not occur to PC Cyrus to attempt to collect cannabis shake from the Applicant’s clothing in the moments after the Applicant stepped out of the car, especially given the dramatic turn of the investigation very shortly thereafter. It was important for the officers to promptly address officer safety by conducting a pat down search of the Applicant when he first got out of the car, and when, moments later, a loaded firearm was located in the car, it became crucial for the officers to prioritize officer safety and conduct a fulsome search of the Applicant incident to arrest. Undoubtedly, this further impacted the presence of shake on the Applicant.

[138] I decline to draw an adverse inference from the failure of PC Cyrus and PC Johnson to take further steps to “preserve” the evidence of shake on the Applicant.

[139] It was unfortunate that PC Johnson and PC Lo did not wait to search the Applicant’s vehicle until after the Forensic Identification Assistant photographed the contents prior to the search. However, the physical evidence located in the vehicle remains relevant to the assessment of the credibility and reliability of PC Cyrus and PC Johnson. There was no suggestion that the cannabis paraphernalia was planted by the police.

[140] I am satisfied that PC Cyrus and PC Johnson did not collude and fabricate their evidence about the presence of cannabis shake and the smell of cannabis.

Should an Adverse Inference Flow from the Officer’s Failure to Activate ICCS?

[141] The Applicant submits that I should draw an adverse inference due to the failure of PC Cyrus, PC Johnson, and PC Hyde to activate their ICCS. The Applicant submits that it was a deliberate tactic by the police to conceal a pretext search and to shield their unconstitutional conduct and it resulted in the court being denied a contemporaneous independent audio and video record of the police interaction with the Applicant. He submits that the conduct represented a systemic failure, because every officer failed to activate their video and audio systems when they should have in accordance with their own mandatory policy. He submits that courts have repeatedly emphasized that the police are to make reliable records if they want to substantiate their claims.

[142] The Applicant submitted that PC Johnson also failed to comply with the ICCS policy directive when he muted his microphone during the search of the Applicant’s vehicle and failed to indicate the reason for doing so prior to muting or in his notes.

[143] Finally, the Applicant submits that the seriousness of the police conduct was aggravated by PC Cyrus preventing the Applicant from using his phone to record the interaction, denying him an opportunity to create a reliable and independent audio and video record of the events.

Evidence regarding Activation of ICCS

[144] PC Cyrus’s ICCS was not activated until after the Applicant’s arrest, when the Applicant was placed in the rear seat of the police cruiser. PC Cyrus explained that his ICCS was not running during the RIDE program because during a RIDE program police speak with many people over a lengthy period of time and nothing flows from the majority of the interactions. PC Cyrus could not recall if he was wearing his microphone and indicated that sometimes he would leave his microphone in the cruiser during RIDE programs to avoid the microphone battery becoming low.

[145] In cross-examination, when it was suggested to PC Cyrus that his cruiser should have been positioned to capture his dealings with individuals stopped at the RIDE program, he testified that the police vehicles were staggered in the lanes to control the flow of traffic. He could not remember exactly where his vehicle was parked but indicated the RIDE program was set up so that drivers interacted with the officers before they reached the police vehicles. The police vehicles were parked in the direction of travel of the vehicles approaching the RIDE program in case it became necessary to pursue a vehicle that fled the RIDE program. He testified that it would be unsafe for cruiser headlights to face oncoming traffic. He agreed that if the police had planned better, the cruisers could have been configured to allow the camera to capture the interactions.

[146] PC Cyrus was cross-examined on the 2017 York Regional Police Policy Directive for use of the ICCS. It was suggested that under the YRP Policy, he was required to record the RIDE stop and CCA search. PC Cyrus responded that at the time he did not think he was required to record the interaction and was not aware that he was required to do so until defence counsel brought the requirement to his attention. When confronted with the 2017 Policy, PC Cyrus agreed that he should have engaged the ICCS system and his microphone and that it was a mistake to have failed to do so.

[147] It was later determined, during the evidence of PC Johnson, that a more recent version of the ICCS policy, dated July 21, 2020, was in effect at the time of the stop and there were differences between the 2017 and 2020 policies, including when ICCS use is mandatory.

[148] During cross-examination, PC Cyrus agreed that when the investigation became a CCA investigation, it would have been a good idea to turn on the ICCS. When asked why he did not turn on the ICCS when he returned to his car to check the Applicant’s licence, he said he did not think of it at the time, and said usually nothing comes of CCA searches, and he never expected to find a gun.

[149] PC Cyrus adamantly denied that he deliberately chose not to record his interactions to deprive the court of an independent record of the interaction. He testified that while it was not smart to fail to record the interaction, he did not believe that he was careless or negligent.

[150] PC Johnson did not activate his ICCS until after the arrest of the Applicant during the search of the Applicant’s vehicle. When PC Johnson was cross-examined on the YRP ICCS 2017 Policy Directive that was put to PC Cyrus, PC Johnson clarified that an updated July 2020 ICCS policy directive was in place at the time of the allegations. He had particular knowledge of the policy because he instructed other officers on the ICCS policy.[^6]

[151] Section E(1) of the July 2020 ICCS Policy Directive provides that the ICCS “shall be used to record”:

(a) prisoner transports;

(b) traffic stops;

(c) impaired operation investigations;

(d) approved screening device demands or tests;

(e) Standardized Field Sobriety tests; and

(f) Suspect Apprehension Pursuits.

[152] Section E(2) provides that the ICCS: “may be used in circumstances where digital media recording would have evidentiary value to any investigation or court proceeding, including to record (video/audio) a written statement where it would not be practicable to obtain a statement at the District, or when there is a concern for officer/public safety.”

[153] In respect of the positioning of police vehicles, the 2020 Policy provided that “Whenever possible, officers should consider interacting with a member of the public at the front of their police vehicle where the interaction can be captured on video/audio.”

[154] Counsel for the Applicant suggested to PC Johnson that a RIDE program is an impaired driving investigation so officers are mandated to activate the ICCS. PC Johnson did not agree. He said the ICCS policy did not require officers to record all RIDE stop check interactions with the public. He said that he did not have his camera activated on the day of the stop because he did not think it was required. He did not agree that his failure to record the interactions with the Applicant was a deliberate tactic.

[155] PC Johnson agreed that when he smelled cannabis it raised concerns about possible impairment. When asked why he did not turn on the ICCS at that time, PC Johnson responded that he could not leave the Applicant’s vehicle to go to his cruiser to activate the system and he could not recall if he tried to turn on the system remotely.

[156] PC Hyde, who was assigned to the Road Safety Bureau, also testified that his ICCS was not activated because typically officers did not record RIDE stop programs. During cross-examination PC Hyde disagreed that a RIDE stop is an impaired driving investigation. He said that the police are not investigating everyone stopped at a RIDE program. Rather, they are screening people and letting those who have had nothing to drink go on. He said if a RIDE stop led to an ASD test the person would be brought in front of the camera to record the test.

[157] PC Hyde testified that he first became involved when the Applicant was removed from the car at 12:23 a.m. and he was arrested by 12:25 a.m. He said initially he did not think anything was coming of the interaction and after the arrest he did not have an opportunity to activate the ICCS. He testified that after the Applicant was out of the car, his focus was officer safety. During the short period between when the Applicant got out of the car and the arrest, he did not have time to think about activating the system and was not going to leave the Applicant and the other officers to go to his car to activate the system. He agreed that the mobile microphone can be used to activate the system but said he did not attempt to activate the system remotely, noting sometimes, if not in close proximity to a police vehicle, the portable microphone will not activate the ICCS. PC Hyde also testified that he was not speaking to anyone, so he did not feel that it was necessary for him to activate his ICCS.

Governing Legal Principles – Failure to Activate ICCS

[158] There is no constitutional or common law requirement for the police to record their interactions with individuals. A court may, in appropriate circumstances, draw an adverse inference from the failure of an officer to record an interaction where recording equipment is available.[^7]

[159] In Khan[^8], an “over 80” case, the Applicant submitted that his s. 7 Charter rights were violated when the breath testing procedure at the detachment was not recorded because the detachment ran out of video tapes. Justice MacDonnell held that there was no violation of s. 7 of the Charter because the state was not obliged to “create” evidence. He emphasized that there is a distinction for constitutional purposes between the failure of the state to preserve evidence and the failure of the state to create evidence. The constitutional obligation to preserve evidence is rooted in the Crown’s obligation to disclose all relevant evidence in its possession, but the Crown’s disclosure obligation does not obligate the Crown to bring evidence into existence.[^9] Justice MacDonnell observed that both the Ontario Court of Appeal and the Supreme Court of Canada have declined to impose either a constitutional or common law requirement for the police to record, videotape, or audiotape custodial interrogations.[^10]

[160] Nonetheless, in Khan, Justice MacDonnell accepted that there are circumstances where a court may draw an adverse inference from an officer’s choice not to record an interaction with a detainee stating: “It is well-recognized that a failure by the police to make use of available facilities to record what occurred during a custodial interrogation can support an adverse inference in relation to the police version of what was said.”[^11]

[161] However, Justice MacDonnell expressed doubt as to whether comments concerning the failure of the police to record a custodial interrogation can be transplanted without qualification to the process of obtaining breath samples. He explained that the very purpose of an interrogation is to elicit incriminating evidence from an accused person, and an accurate record of the exact words spoken is essential. For such statements, the Crown must satisfy the heavy onus of proving voluntariness beyond a reasonable doubt. Justice MacDonnell emphasized that the “cloud of suspicion” surrounding a non-recorded interrogation “owes far less to the mere fact that the interrogation was not recorded than it does to the fact that a choice was made not to record it.”[^12]

No Adverse Inference from Failure to Activate ICCS

[162] The circumstances in this case are very different from a situation where the police have the ability to record a custodial interrogation and make a deliberate choice not to do so. When PC Cyrus and PC Johnson initiated contact with the Applicant, they did not know that a criminal investigation would unfold. The circumstances evolved very quickly from a roadside screening for alcohol or drugs, to a CCA investigation, to a Criminal Code investigation. This is not a case where the failure of the officers to record is “immediately suspect”.

[163] Secondly, this is not a case of deliberate non-compliance with a policy directive. I accept that an officer’s deliberate non-compliance with a policy directive may be relevant to determining whether an adverse inference as to credibility should be drawn. However, I am not satisfied the officers deliberately failed to comply with the 2020 Policy Directive. In my view, activation of the ICCS was discretionary pursuant to the Directive.

[164] At the time of the stop, PC Cyrus, PC Johnson, and PC Hyde did not believe they were mandated by policy to record the interaction. Having regard to the wording of the 2020 ICCS Policy, their beliefs were reasonable. RIDE stops are not enumerated in the 2020 Policy as a situation when ICCS activation is mandatory. If the intention of the policy was for “impaired operation investigations” to include all drinking and driving related investigative activity, including RIDE stops, it was unnecessary and superfluous to include ASD tests and SFS tests as separately enumerated items. Furthermore, a comparison of the 2017 Policy with the 2020 Policy, suggests an intention to limit the circumstances where ICCS activation is mandatory. In my view, while it is unfortunate that PC Cyrus and PC Johnson did not engage their ICCS systems at an earlier stage of the investigation, they were not failing to comply with the 2020 YRP Policy Directive. If my interpretation of the Policy is in error, the non-compliance was not deliberate and the non-compliance was brief, the police activated the ICCS once the Applicant was placed in the rear seat of the police cruiser.

[165] Moreover, even if PC Cyrus, PC Johnson, and PC Hyde failed to comply with a policy directive, that does not mean that an adverse inference as to their credibility should be drawn. A policy directive that recommends or requires officers to utilize an ICCS to record interactions is an internal policy, it is not a statutory obligation, and it does not elevate the creation of an ICCS audio/video recording to a constitutionally protected right. The failure to comply with an internal policy, while potentially relevant to the assessment of credibility, does not necessitate or demand that an adverse inference in respect of credibility be drawn.[^13]

[166] An ICCS recording of the police interaction with the Applicant would have had significant evidentiary value. Even if video was not available due to the position of the cruisers, an audio recording would likely have provided an independent record of the length of the interaction, the chronology of events, and a reliable record of at least the police portion of the conversation with the Applicant. The credibility issues would likely have been quickly and more easily resolved had an audio recording existed.

[167] PC Cyrus, PC Johnson, and PC Hyde could have activated the ICCS to audio record their interactions with the Applicant at an earlier stage. Even if not mandated by law or policy, once the officers realized that the Applicant was not going to be immediately sent on his way, in order to secure the “best evidence”, they should have attempted to use their portable microphones to activate the ICCS system, and if remote activation was unsuccessful, PC Cyrus should have turned on the ICCS when he went to his cruiser to check the Applicant’s drivers’ license.

[168] However, I am not satisfied that an adverse inference should be drawn from the failure of the officers to activate the ICCS system prior to the Applicant’s arrest. I do not accept that PC Cyrus, PC Johnson, or PC Hyde made a deliberate choice not to record their dealings with the Applicant in order to conceal a pretext search and the true state of affairs. I do not accept that they deliberately chose not to activate their audio and video systems in order to deprive the court of an independent record of the events.

[169] I find as a fact that when the Applicant stopped his vehicle at the RIDE stop, PC Cyrus and PC Johnson were not expecting that the contact with the Applicant would be more than a preliminary and brief contact. I find as a fact that the investigation transitioned quickly over the six-minute period from the first contact with the Applicant to arrest. I accept that PC Cyrus and PC Johnson did not anticipate how the events would unfold and I accept PC Cyrus’s evidence that even after he smelled and saw cannabis on the Applicant and decided to search the vehicle under the CCA, he did not anticipate that the incident would shift to a Criminal Code investigation. I do not mean to suggest that utilization of an ICCS should be dependent on an officer’s assessment of the relative seriousness of the conduct they are investigating, however, I accept that because PC Cyrus expected to ticket or warn the Applicant, this contributed to his failure to turn his mind to activating his ICCS.

[170] PC Johnson began the CCA search and located a gun almost immediately after the Applicant got out of the vehicle. Immediately thereafter the Applicant was arrested, searched incident to arrest, placed in the cruiser, and the ICCS was activated.

[171] I accept that during the quickly evolving investigation neither PC Cyrus nor PC Johnson turned their mind to activating the ICCS until the Applicant was arrested. I accept that PC Cyrus did not think to activate the ICCS system while in his cruiser when he checked the Applicant’s name on the police computer. I also accept PC Cyrus’s evidence that with the benefit of hindsight he recognizes he should have activated the ICCS sooner so that his interaction with the Applicant was recorded.

[172] I accept PC Cyrus’s evidence that the officers positioned their cruisers to facilitate the RIDE program and reject the assertion that they were required to set up their cruisers so they could video record their interactions with every driver. The officers had to consider a number of factors in deciding how to position the cruisers, including officer safety, the potential need to pursue vehicles, and the safety of approaching vehicles on the roadway. I do not accept that the officers conspired in advance and made a tactical decision to position the vehicles so as to deprive the court of an independent record of the events. The police vehicles were not being used solely as video cameras. They served multiple purposes and I find no fault in how the officers chose to set up the RIDE program. The events that unfolded were not anticipated by any of the officers at the time they positioned the police vehicles.

[173] I accept that PC Johnson failed to comply with the YRP Policy Directive when he muted his microphone several times during the search of the Applicant’s vehicle without making a notation in his notes or indicating the reason for doing so prior to muting. I accept that this was a minor oversight, something that in my view has no impact on his credibility.

[174] I decline to draw an adverse inference related to the Applicant’s request to record the officers. As addressed above, at the point the Applicant advised the officer’s that he intended to record them, he was becoming resistant to PC Cyrus’s direction to get out of the vehicle. PC Cyrus directed the Applicant to get out of the vehicle to facilitate the CCA search of the Applicant and the vehicle. I accept that for officer safety reasons the Applicant could not have his phone in his hands during the investigative detention and pat down search outside of the vehicle. Only a short period of time, less than a minute, passed from the point at which the Applicant stepped out of the vehicle until his arrest for possession of the firearm. I draw no adverse inference because the Applicant was not permitted to use his phone to record during the period between when PC Cyrus asked him to get out of the vehicle and his arrest.

[175] The factual circumstances are distinguishable from Green[^14]. In Green, Justice Dennison found that a police officer acted unlawfully in preventing the accused’s cousin, a third party, from video recording the accused’s arrest with her phone.

[176] Unlike in this case, the person the police directed to stop recording was not subject to an investigative detention and no officer safety issues justifying the police conduct were identified. In Green, despite finding that the officers conduct was unlawful and unacceptably negligent, Justice Dennison found no s. 7 Charter breach because “[a]ssuming, without deciding, that this type of conduct would engage Mr. Green’s s. 7 Charter rights”, the accused did not demonstrate that the officer’s order to stop recording prejudiced the accused’s ability to make full answer and defence. Justice Dennison declined to draw an adverse inference that the police used excessive force in arresting the accused, observing that “this was not a situation where the accused was alone in an interrogation room with an officer giving a statement” and there were sufficient substitutes that demonstrated that the police were not acting with unlawful force. However, Justice Dennison considered the conduct in the context of the s. 24(2) Charter analysis, finding that the refusal to allow the third party to record impacted the accused directly and was a factor tending to support the exclusion of the evidence. Justice Dennison held that “Absent a lawful reason, the police have no right to prevent a person from recording a public event.”[^15]

[177] This case is distinguishable because the police had a lawful reason to prevent the accused from recording. The police were in the process of investigatively detaining the Applicant to search him pursuant to s. 12(3) of the CCA and he was becoming hesitant to comply and resistant to their direction. Officer safety justified the police conduct. The Applicant could not have a phone in his hands while subject to an investigative detention and search.

E. Racial Profiling: The Decisions of PC Cyrus and PC Johnson were Not Tainted by Racial Profiling

[178] Racial profiling is criminal profiling based on race. Certain criminal activity is attributed to an identified group in society on the basis of race or colour resulting in the targeting of individual members of that group. Race is illegitimately used as a proxy for the criminality or general criminal propensity of an entire racial group.[^16]

[179] In Peart, the Ontario Court of Appeal explained that racial profiling occurs where “[a] police officer… uses race (consciously or subconsciously) as an indicator of potential unlawful conduct based not on any personalized suspicion, but on negative stereotyping that attributes propensity for unlawful conduct to individuals because of race…”.[^17]

[180] In Le, while not a racial profiling case, the Supreme Court of Canada explained that the concept of racial profiling is primarily concerned with the motivation of the police: “It occurs when race or racial stereotypes about offending or dangerousness are used, either consciously or unconsciously, and to any degree, in suspect selection or subject treatment.”[emphasis added].[^18]

[181] In Dudhi[^19] the Ontario Court of Appeal indicated that there is both an attitudinal component and a causation component to racial profiling stating as follows:

The attitudinal component is the acceptance by a person in authority, such as a police officer, that race or racial stereotypes are relevant in identifying the propensity to offend or to be dangerous. (citations omitted). The causation component requires that this race-based thinking must consciously or unconsciously play a causal role. Meaning, race or the racial stereotype must motivate or influence, to any degree decisions by persons in authority regarding suspect selection or subject treatment.[^20]

[182] In Dudhi, the Court made clear that a decision need not be motivated solely or even mainly on race or racial stereotypes to be “based on” race or racial stereotypes. If illegitimate thinking about race or racial stereotypes factors into suspect selection or subject treatment, to any degree, any pretence that the decision was reasonable is defeated. It matters not that objectively there may be information that would meet the required legal standard – be it reasonable grounds or reasonable suspicion – to justify the police action. “Where race or racial stereotypes are used to any degree in suspect selection or subject treatment, there will be no reasonable suspicion or reasonable grounds. The decision will amount to racial profiling.”[^21]

[183] Because the attitude that underlies racial profiling may be consciously or unconsciously held, a police officer need not be an overt racist to engage in conduct based on unconscious racial stereotyping. There is rarely direct evidence of racial profiling because that would involve an admission by a police officer that he or she was influenced by racial stereotypes in the exercise of his or her discretion to stop, detain, or search an individual. More commonly, “it must be inferred from the circumstances surrounding the police action that is said to be the product of racial profiling.” This makes it necessary for a judge to consider all the circumstances of the event.[^22]

[184] Where the evidence shows that the circumstances relating to a detention (or search) correspond to the phenomenon of racial profiling and provide a basis for the court to infer that the police officer is lying about why he or she singled out the accused person for attention, the record is then capable of supporting a finding that the stop, (detention, or search) was based on racial profiling.[^23]

[185] However, it is not necessary for a court to find than an officer has intentionally lied or intentionally misled the court about the reason for subject selection or treatment. The focus of the correspondence test is whether the circumstances give the court a basis to reject the officers evidence as untrue because it is indicative of racial profiling. This approach is consistent with the concept of unconscious bias. An officer who has unconsciously allowed racial stereotypes to influence his or her decision to detain a racialized person may not believe he or she is being untruthful, and therefore may not be lying when he or she testified that racial stereotypes played no role in the decision. Nevertheless, a trial judge is entitled to reject that evidence as untruthful, if the judge is satisfied, based on the circumstances consistent with racial profiling, that unconscious bias and racial profiling were factors in the decision.[^24]

[186] The Court of Appeal in Sitladeen, summarized the applicable principles as follows:

To summarize, the case law from Brown onward recognizes that in cases where an officer had objective grounds to detain a person or stop a vehicle but was also subjectively motivated by racial stereotypes, the officer is unlikely to admit his bias. The matter becomes more complicated when the officer is unaware that he was influenced by race because of unconscious bias. The officer may not be consciously lying about his motivation, but that does not mean he did not unconsciously engage in racial profiling. It is the role of the trial judge in such cases to consider all the circumstances that led to an accused’s detention and/or arrest and to determine whether they correspond to the phenomenon of racial profiling, as understood in the social science literature, the reports of inquiries into race relations with police, and the case law. The trial judge can then decide whether those corresponding circumstances form a basis to infer that the record is capable of supporting a finding that the stop was based on racial profiling, contrary to the evidence of the officer. Ultimately, to reach a conclusion about racial profiling, the trial judge is not required to find that a police officer who testified that race played no role in the decision to detain or arrest was lying.[^25]

Findings - Racial Profiling

[187] The Applicant submitted that PC Cyrus and PC Johnson were suspicious of the Applicant immediately because he was a young black male driving a rental car. The Applicant submitted that from the beginning, because of racial profiling, the officers were determined to search the Applicant’s satchel for criminal wrongdoing, and fabricated a pretext to do so, falsely justifying the search under the CCA. The Applicant submits that his treatment was infected by racial profiling.

[188] If race either consciously or unconsciously motivated the decision making of PC Cyrus or PC Johnson in pursuing any of their investigative steps— however otherwise justifiable or lawful those investigations might have been on an objective assessment— the detention will be arbitrary and search unlawful. In such a case the officers’ subjective basis for detention and or search would be marred by these pernicious motivations.

[189] PC Cyrus agreed that racism can be the product of unconscious bias, but strongly disagreed that conscious or unconscious racial bias played a role in his decision making or that his decisions were tainted by racial profiling. He emphasized that he is also a black male; he is from the same neighbourhood as the Applicant, and he, his family, and his friends “look, dress, and talk” like the Applicant. While he did not explicitly say so, in clear and very personal terms he conveyed that he did not attribute a propensity for unlawful conduct to the Applicant because of his race because he related to the Applicant. PC Cyrus clearly expressed that he did not infer that the Applicant was involved in criminality because of his race or due to racial stereotypes. Through his evidence PC Cyrus communicated that the Applicant’s race did not impact his selection or treatment, rather, it was the factual circumstances unrelated to race, that governed his decisions.

[190] I have considered all of the circumstances, and I accept PC Cyrus’s evidence. Furthermore, having considered all the circumstances that led to the Applicant’s detention and arrest, I am not satisfied that they correspond to the phenomenon of racial profiling

[191] Unlike in Dudhi, there is no evidence of any general racial statements, attitudinal evidence, or thinking, by PC Cyrus, in fact the opposite.

[192] PC Cyrus strongly disagreed that as soon as he saw the satchel, he decided that the Applicant could not leave until he searched it because due to racial stereotypes, he suspected it may conceal criminal wrongdoing. He disagreed that he and PC Johnson fabricated the presence of shake to justify searching the satchel. He disagreed with the suggestion that they failed to record their interactions with the Applicant to cover up a false story created to justify the search.

[193] PC Cyrus testified that he smelled cannabis and observed cannabis shake and as a result decided to search under the authority of the CCA. He did not think he knew the vehicle was a rental until after the Applicant’s arrest, although he was uncertain. He testified that he took note of the satchel because it was within the Applicant’s reach and while he agreed that a satchel could hold contraband, he testified that he carries a similar satchel himself that does not contain anything illegal, as such he did not have any preconceived notions caused by racial stereotypes infecting his beliefs about a young black male in possession of a satchel. I accept his evidence that the possession of a satchel by a black male did not cause PC Cyrus to want to search the satchel.

[194] I reject the Applicant’s evidence that PC Cyrus “went” for the satchel as soon as the door was opened. Rather, I find as a fact that it was PC Johnson that searched the satchel while PC Cyrus conducted a pat down search of the Applicant and remained with the Applicant.

[195] I recognize and accept that even a member of ones own racial community can be impacted by conscious or unconscious racial bias, and can engage in racial profiling, but I am satisfied that this was not such a case.

[196] PC Johnson also agreed that racism can act consciously or subconsciously. He testified that the fact the Applicant was a young black man did not factor into his decision making and I accept his evidence. PC Johnson was not the primary investigator. He was following PC Cyrus’s lead. He agreed with PC Cyrus’s decision to search the Applicant and the vehicle under the authority of the CCA and I find as a fact that his decision making was not impacted by conscious or unconscious racial bias.

[197] I accept PC Johnson’s evidence that the fact the Applicant was driving a rental car was not a red flag contributing to a pretext search. I accept his evidence that he did not know the vehicle was a rental car until he prepared the tow slip, after the Applicant’s arrest.

[198] I accept PC Johnson’s evidence that after he saw and smelled the marijuana, when he conducted the CCA search, he was looking for readily available cannabis and he searched the satchel because it was the first thing within the drivers reach and believed it to be a likely place where cannabis would be stored. That he considered the possibility that it may pose an officer safety issue does not cause me to believe that the search was racially motivated.

[199] I am satisfied that neither conscious or unconscious racial bias or racial profiling played a role in the investigative steps taken by the officers. I find as a fact that PC Cyrus and PC Johnson did not use race or racial stereotypes, consciously or unconsciously, in the selection or treatment of the Applicant to any degree.

[200] The police did not fabricate a pretext to stop the Applicant or to search him, his vehicle, or his satchel because of stereotypes they had about a young black male and criminality. I find as a fact that the Applicant was not stopped or “selected” because of conscious or unconscious racial profiling.

[201] The Applicant was stopped by the police because and only because they had set up a lawful RIDE spotcheck at Highway 7 and Highway 404. The police were stopping every vehicle. They did not select the Applicant consciously or unconsciously because of his race. He was not singled out for an improper purpose.

[202] I find as a fact that the Applicant was not detained and subjected to a CCA search because of conscious or unconscious racial profiling. PC Cyrus and PC Johnson’s decision to conduct the CCA search was based on reasonable grounds under s. 12(3) of the CCA and race did not play any role. I reject the Applicant’s assertion that PC Cyrus and PC Johnson decided to search the Applicant’s vehicle because he was a young black man driving a rental car and in possession of a satchel. Similarly, I reject the defence assertion that the CCA was used as a pretext to justify the search of the vehicle and satchel. Race and racial stereotypes were not consciously or unconsciously to any degree a factor in the selection or treatment of the Applicant.

[203] I find as a fact that after the Applicant was stopped at the RIDE spotcheck, the investigation legitimately transitioned to an investigation under the CCA. As explained below, I am satisfied that PC Cyrus and PC Johnson had reasonable grounds to conduct a CCA search that were not infected by racial profiling to any degree: When the Applicant stopped at the RIDE stop and opened his window, PC Cyrus could immediately smell burnt and fresh cannabis, he saw cannabis shake on the Applicant, and when he told the Applicant about his observations, the Applicant told PC Cyrus that he was smoking earlier at a friend’s house (at his boy’s house), and said he was a “messy roller”. PC Johnson also smelled cannabis, saw cannabis shake, and heard the Applicant’s utterances. PC Johnson searched the satchel for cannabis because it was on the passenger seat within reach of the driver.

F. Did the Search of the Applicant’s Vehicle and Satchel Violate His Right to Privacy Under s. 8 of the Charter?

[204] The Applicant submits that even on the police account of the events, the police did not have reasonable grounds to believe that cannabis was unlawfully contained in the Applicant’s vehicle, and as a result the police did not have lawful authority to search the vehicle. The Applicant submits that the small amount of cannabis shake, and the smell of cannabis was insufficient to support reasonable grounds under s. 12(3) of the CCA, especially in the face of the Applicant’s statement that he smoked cannabis at his friend’s home.

[205] The Applicant further submits that if the police had reasonable grounds, they did not have the authority to search in the satchel because it was a bag fastened closed, a place where cannabis – open or closed - can be lawfully stored.

[206] The key issues in respect of the alleged s. 8 Charter violation are:

i.) Did the police have reasonable grounds to believe that cannabis was unlawfully contained in the Applicant’s vehicle contrary to s. 12(1) of the CCA so as to justify a search of the vehicle under s. 12(3) of the CCA?

ii.) If the police had the requisite reasonable grounds pursuant to s. 12(3) of the CCA to justify a search of the vehicle, were the police authorized to search the Applicant’s satchel, a bag fastened closed?

[207] Section 8 of the Charter protects individuals against unreasonable search and seizure. A search will be reasonable if it is authorized by law, the law is reasonable, and the search was carried out in a reasonable manner.[^26]

[208] A warrantless search is presumptively unreasonable. Because the search of the satchel was a warrantless search, the Crown bears the burden of establishing, on a balance of probabilities, that the search was authorized by law. If the search was authorized by the Cannabis Control Act, provided the law is reasonable, there is no violation of s. 8 of the Charter.

[209] The Crown submits that the search was authorized by s. 12(3) of the Cannabis Control Act. Section 12 of the Cannabis Control Act, provides as follows:

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.

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.

(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 warrant, enter and search the vehicle or boat and search any person found in it.

[210] The existence of reasonable grounds entails both an objective and a subjective component. To conduct a lawful search under s. 12(3) of the CCA, an officer must subjectively form an honest belief that there are reasonable grounds to believe that cannabis is contained in the vehicle in contravention of s. 12(1) of the CCA, and the belief must be objectively reasonable. The grounds must be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were reasonable and probable grounds to believe that cannabis was contained in the vehicle in contravention of s. 12(1) of the CCA.

[211] The statutory standard of reasonable grounds to believe does not require proof on the balance of probabilities, much less proof beyond a reasonable doubt. The statutory and constitutional standard is one of credibly-based probability. Reasonable grounds is more than suspicion, but less than proof beyond a reasonable doubt, or even a prima facie case. The officer must be acting on something more than reasonable suspicion or a hunch. [^27]

[212] It is important to keep the following in mind when assessing the reasonable grounds to believe standard:

• Evidence must be considered cumulatively, and not piecemeal.

• The reasonable grounds standard must be interpreted contextually, and take into account all the circumstances, including the timing involved and the events leading up to the decision to conduct the detention and search. Police officers must make decisions quickly, in circumstances that are less than ideal, and on the basis of information available to them at the time which is sometimes incomplete. The law is clear that the assessment of grounds in an arrest situation cannot fairly be as exacting as the assessment of a police officer who has the opportunity to reflect on what she or he is putting into a search warrant.

• Reasonable grounds can be established despite the fact that there may be competing explanations for individual factors that contribute to the officer’s belief. An officer is only required to consider the incriminating and exonerating information to the extent that the circumstances reasonably permit. An officer’s belief that cannabis is contained in the vehicle in contravention of the CCA may be reasonable even it if is not the only inference that could be drawn from the circumstances. “Reasonable grounds to believe” does not require the officer to be in a position to dispel or rule out all innocent or innocuous inferences that may be drawn from the same observations.[^28]

[213] I am satisfied that PC Cyrus and PC Johnson subjectively formed reasonable grounds to believe that cannabis was contained in the Applicant’s vehicle in contravention of s.12(1) of the Cannabis Control Act and that their subjective beliefs were objectively reasonable.

[214] I find as a fact that when PC Cyrus spoke to the Applicant after he stopped at the RIDE program, he immediately smelled burnt and fresh cannabis, and saw small green leafy cannabis shake on the Applicant’s sweater and pants. When he told the Applicant that he saw cannabis shake all over his sweater and pants and smelled cannabis, the Applicant responded that he was smoking earlier at a friend’s house (at his boy’s house), and that he was a “messy roller”. After PC Cyrus returned from checking the Applicant’s licence and told him he was going to conduct a Cannabis Control Act investigation and would be searching him and the vehicle, the Applicant became defensive and briefly uncooperative and resistant to PC Cyrus’s direction to get out of the vehicle. When the Applicant stepped out of the car, I find as a fact that PC Cyrus saw an ashtray with “hashes” in the door.[^29]

[215] PC Johnson also saw the cannabis shake, smelled cannabis, and heard the utterances.

[216] The Applicant’s utterances were capable of constituting an acknowledgement by the Applicant that there was cannabis shake on him and a need to explain what the officer observed. Despite the Applicant’s suggestion that he had smoked earlier at a friend’s house, I am satisfied that subjectively and objectively there were reasonable grounds to believe that there was cannabis contained in the vehicle in contravention of s. 12(1) of the CCA. PC Cyrus and PC Johnson were not required to accept the Applicant’s statement, or conclude, in the face of evidence that suggested otherwise, that he only smoked at a friend’s house. In the context of the evidence as a whole their belief that there was cannabis contained in the vehicle was objectively reasonable.

[217] I accept that PC Cyrus subjectively believed that before the RIDE stop the Applicant rolled a cannabis joint in the car - explaining the leftover shake on him and smell of fresh marijuana. I am satisfied that he subjectively believed there may be more unsealed cannabis readily available to the Applicant in the car - the source of the shake on the Applicant’s clothing and the smell of fresh cannabis, and that if he allowed the Applicant to continue on his way, without searching the car for cannabis, the Applicant may continue to smoke cannabis while driving endangering the public and in contravention of the Cannabis Control Act.

[218] As was the case in Grant, in light of PC Cyrus’s observations, even after he satisfied himself that the Applicant was not impaired, I am satisfied that it would have been negligent for PC Cyrus to allow the Applicant to continue on his way on the roadway without satisfying himself that there was no more cannabis readily available to him.[^30]

[219] PC Johnson agreed with PC Cyrus’s decision to search under the CCA – he subjectively believed based on the smell of marijuana, his observations of cannabis shake, and the Applicant’s utterances that there was cannabis in the vehicle in contravention of s. 12(1) of the CCA.

[220] I am satisfied that PC Cyrus and PC Johnson’s subjective belief that there was cannabis in the vehicle in contravention of s. 12(1) of the CCA was objectively reasonably. I am satisfied that a reasonable person in the position of the officers could reasonably conclude based on the smell of fresh and burnt marijuana, the presence of cannabis shake on the driver’s sweater and pants, and the Applicant’s utterances, that there were reasonable and probable grounds to believe that there was unsealed and readily available cannabis contained in the vehicle in contravention of s. 12(1) of the CCA.

[221] While it may not have been the only reasonable inference, a reasonable inference from the totality of the circumstances was that the Applicant had recently rolled a joint and smoked it while sitting in the driver’s seat - explaining the presence of marijuana shake on his sweater and pants, and the smell of fresh and burnt marijuana- and that the Applicant had more unsealed available cannabis in the vehicle – the source of the cannabis shake, and the source of the smell of fresh cannabis, that was readily available to the driver in contravention of s. 12(1) of the CCA.[^31]

[222] While I have concluded that the observations of cannabis shake on the Applicant, smell of fresh and burnt cannabis, and utterances of the Applicant objectively establish the requisite reasonable grounds under s. 12(3) of the CCA, I note that PC Cyrus saw the ashtray with “hashes” in it in the driver’s door before the CCA search was conducted. Similarly, before the search was conducted, when PC Cyrus told the Applicant he was going to search the vehicle and car, the Applicant became hesitant and reluctant to comply with PC Cyrus’s request to step out of the vehicle. These facts, while not required to establish reasonable grounds, further support the conclusion that objectively, prior to the execution of the search, there were reasonable grounds to believe that cannabis was contained in the vehicle in contravention of s. 12(1) of the CCA.

[223] In reaching this conclusion, I have considered a number of cases relied upon by the Applicant in support of the assertion that, even if I accept the evidence of the officers, the evidence falls short of establishing the necessary reasonable grounds.

[224] In Polashek[^32] the arresting officer testified that after stopping the accused’s vehicle he detected a strong smell of marijuana emanating from the vehicle. The officer could not tell if it was burnt or unburnt marijuana. When he told the driver that he smelled marijuana the driver looked around him and responded “No, you don’t”. The officer also testified that drugs were prominent in the area of the arrest and that he considered the time of day. The Court of Appeal upheld the finding of the trial Judge that the officer had the requisite subjective and objective reasonable grounds to arrest the accused, finding that the constellation of factors was capable of establishing reasonable grounds.

[225] In reaching the conclusion, Justice Rosenberg for the Court held that generally the presence of the odour of marijuana standing alone cannot establish reasonable grounds to believe that the occupant of a vehicle is in possession of marijuana. Justice Rosenberg stated that smell is highly subjective and to authorize an arrest solely on that basis would put an unreviewable discretion in the hands of police officers.[^33] However, Justice Rosenberg did not foreclose that there may be circumstances where the smell of marijuana could provide the requisite reasonable and probable grounds for an arrest, noting some officers through experience or training may be able to convince a trial judge that they possess sufficient expertise that their opinion of present possession based on smell alone could be relied upon.

[226] In Buakasa[^34], the accused was the stopped for speeding and investigated for driving without insurance. During the HTA investigation, the officer saw small bits of marijuana shake in the glove box and testified that he smelled raw cannabis in the car. When the officer told the accused that he smelled marijuana the accused said he did not have or smoke marijuana in the car, and it did not smell like marijuana. The officer testified that driver appeared extremely nervous. The officer searched the car under the authority of s. 12 of the CCA locating a firearm.

[227] Justice Wheeler found that the officer’s evidence was credible but was not satisfied that objectively there were reasonable grounds because she concluded that the odour of marijuana was faint and the amount of material in the glove box was miniscule such that it “did not meaningfully contribute to the existence of reasonable grounds under s. 12(3) of the CCA”. Justice Wheeler concluded that “in the absence of other meaningful indication that marijuana was being transported in contravention of s. 12 CCA, I find that the evidence of a faint smell was not enough to establish objectively reasonable grounds to justify a search of the car”. [^35]

[228] This is not a case involving smell of marijuana alone and I am satisfied that the amount of cannabis shake was not “miniscule”. While I accept that the shake remaining in the car after the Applicant got out of the car was a very small amount, I find as a fact that the shake on the Applicant while he was seated in the vehicle was of sufficient quantities that it was obvious to both officers and they were both certain it was cannabis. In this case, the location of the shake was also of significance. Its location suggested recent possession and use of cannabis by the driver while in the vehicle. This was very different, especially in conjunction with the smell of both fresh and burnt marijuana, than a slight odour and a miniscule amount of cannabis shake in the crease of a glove compartment. The marijuana shake “all over” the sweater and pants of the driver, constitutes a significant and important factual distinction from a miniscule amount of cannabis in the crease of a glove compartment. Moreover, the utterance of the Applicant, that he was a messy roller, in my view confirmed the presence of marijuana shake and the reasonableness of the officer’s belief that the shake originated from the Applicant rolling a joint while sitting in the driver’s seat. In my view, the grounds are significantly stronger in this case than the grounds were in Polashek, and contextually are very different than the grounds that were relied upon in Buakasa.[^36]

[229] I am satisfied that PC Cyrus and PC Johnson had reasonable grounds to believe that the Applicant possessed and used cannabis in the vehicle and that cannabis was contained in the vehicle in contravention of s. 12(1) and (2) of the CCA.

[230] Once PC Cyrus had grounds to believe that cannabis was contained in the vehicle in contravention of the Act – which he did when he saw cannabis shake on the Applicant, smelled fresh and burnt cannabis, and when the Applicant said he had been smoking earlier at a friend’s house (boy’s house) and was a messy roller -he was entitled to search the occupant, the Applicant, and the vehicle to ensure there was no other cannabis illegally stored and accessible to the driver before (ticketing or not the driver and) letting the vehicle go on its way.[^37]

[231] I am satisfied that PC Cyrus and PC Johnson were authorized to briefly detain the Applicant in order to search him and the vehicle pursuant to s. 12(3) of the CCA for further cannabis.[^38] The Applicant has not established that he was unjustifiably arbitrarily detained and I am satisfied that the Crown has established on a balance of probabilities that the search of the Applicant and vehicle was authorized by law, pursuant to s. 12(3) of the CCA, subject to a constitutional challenge of the provision.

Did the CCA Provide Authority to Search the Satchel – A Bag Fastened Closed?

[232] I am satisfied that PC Johnson could lawfully search the satchel, even though it was a bag fastened closed.

[233] The CCA is a regulatory statute enacted to regulate the “sale, distribution, purchase, possession, cultivation, propagation, and harvesting of cannabis in order to, amongst other things, protect public health and safety.”[^39]

[234] The purpose of s. 12 of the CCA, is to regulate and impede driver possession and access of marijuana in a vehicle in order to protect the public. The specific health and safety concern that is the focus of s. 12 is the promotion of road safety and combatting impaired driving. [^40]

[235] Provided that officers have reasonable grounds to believe that cannabis is being contained in a vehicle in contravention of s.12(1), under s. 12(3) a police officer is authorized to search the vehicle and any person found it. The section does not restrict the scope of the search. On its face it authorizes the search of any occupants and the entire vehicle.

[236] In my view, the authority allows for the search of bags within a vehicle whether or not they are fastened close. This is in keeping with the public safety purpose of the regulatory regime. If there are reasonable grounds to believe that 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 cannabis in these circumstances helps to ensure that drivers will not have further access to these substances while driving.[^41]

[237] Where, as in this case, there is the smell of both fresh and burnt cannabis in the vehicle, and the circumstances -including marijuana shake on the driver’s sweater and pants - suggest that the driver has recently rolled a cannabis joint in the vehicle and has smoked marijuana in the vehicle, it would be contrary to the interests of public safety to allow such an individual to continue on their way with readily accessible cannabis in their vehicle, even if it is contained in a “bag fastened closed”.

[238] A number of cases have accepted that s. 12(3) of the Cannabis Control Act creates a search power that is broad in scope in keeping with the important legislative objective behind s. 12 of the Cannabis Control Act - 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.[^42]

[239] That s. 12(3) of the CCA provides a police officer with the authority to search the entire vehicle, including any baggage, is consistent not only with the public safety purpose of the CCA, but also with well established judicial interpretation of the analogous provision of the Liquor Licence Act (LLA)[^43], which regulated driver access to alcohol in a vehicle for purpose of public protection and had a near identical wording to s. 12 of the CCA. Section 32 of the LLA provided:

32(1) Conveying liquor in a vehicle

No person shall drive or have the care or control of a motor vehicle as defined in the Highway Traffic Act…, 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.

32(2) Exception

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 not otherwise readily available to any person in the vehicle

32(5) 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.

[240] In Annett[^44] police officers observed an open six pack of beer on the front passenger floor of a vehicle in the employee area of the airport. One bottle of beer had its cap removed and appeared to have been partially consumed. The officers were aware that the Appellant had an outstanding charge of possession of a narcotic for the purpose of trafficking and were also aware of considerable thefts by employees of miniature bottles of alcohol. The officers acknowledged in their evidence that they were searching for alcohol but knew they might also find narcotics.

[241] The police placed the vehicle under surveillance and when Annett returned to the vehicle, the police searched the vehicle, including the trunk under the authority of the Liquor Licence Act. In the trunk the police located a brown vinyl bag and inside it located a plastic bag containing cocaine. The officer testified that when he opened the bag, he was looking for liquor.

[242] Despite the fact that the bag was not only fastened closed, but was in the trunk the Ontario Court of Appeal, in finding that the search was lawful, held that the officers had reasonable grounds to believe that liquor “was being unlawfully kept or had in the motor vehicle”, and accordingly “s. 48 was clearly applicable and conferred upon the officers authority to search the vehicle”.[^45]

[243] In F.(J.)[^46], , McKinnon J, sitting as a summary conviction appeal court, considered whether s. 32(5) of the LLA authorized officers to search a backpack. The Respondent successfully argued before the trial Judge, (Paciocco, J. as he then was) that the backpack could not contain “unlawfully kept” liquor because any liquor would be packed in “baggage fastened closed” and the search power could only be used to search where there were grounds to believe liquor was illegally kept – the same argument made by the Applicant in this case.

[244] Justice McKinnon held that the officer’s belief that the Respondent was in care and control of the vehicle, coupled with his observation of a three-quarters full bottle of vodka on the vehicle floor triggered the search power under s. 32(5) of the LLA. Justice McKinnon, allowed the appeal and, citing Annett, held that the officer was authorized to search the backpack even if it was a bag fastened close stating as follows:

I respectfully disagree with the learned trial judge’s holding that, because the backpack could not have contained “unlawfully kept” liquor, s. 32(5) did not authorize Officer McNaught to search the Respondent’s backpack.

First, I do not think that the search authorized by s. 32(5) is restricted to a search for “unlawfully kept” liquor. Rather, I am of the view that s. 32(5) permits a search for liquor generally. As an example, if an officer observed that a driver had an open container of liquor next to him while operating a vehicle, it would be reasonable for that officer to search the vehicle for liquor and seize any liquor found, whether or not that liquor was being “unlawfully kept.” This would prevent the driver from simply opening another container of liquor upon the police leaving the scene.[^47] [Emphasis added]

[245] Contrary to Annett, and F.(J.), in Sappleton, Justice De Sa, concluded, in circumstances where the police located unlawfully stored cannabis in a satchel in the possession of the driver, that the CCA did not authorize the officers to search the entire vehicle and trunk, in the absence of reasonable grounds to believe that there was additional marijuana stored in the vehicle (and in specific spaces) in contravention of the CCA. Justice DaSa stated that “Finding marijuana is not an open licence to unreasonably interfere with the Applicant’s Charter rights by searching his entire vehicle”.

[246] In brief unreported reasons in R. v. Beharry, June 9, 2021, Justice Schreck held that although the investigating officer had the requisite reasonable grounds to search a vehicle pursuant to s. 12(3) of the CCA, the officer was not authorized to search a closed fanny pack, because the police may only search for cannabis that is contained in a vehicle in contravention of s. 12(1) of the CCA, and the statute permits transport of cannabis in a bag fastened closed.

[247] In my view, Sappleton and Beharry, are inconsistent with the weight of authority including Annett and F.(J.). It is also inconsistent with the public safety legislative intent of the CCA. As a result, I prefer and follow the reasoning of the Court of Appeal in Annett and Superior Court in F. (J.) which I find is persuasive and directly applicable to the interpretation of s. 12(3) of the CCA.[^48]

[248] I find that when PC Cyrus decided to conduct a CCA search, and when PC Johnson searched the satchel pursuant to s. 12(3), the officers’ aim was to search for further cannabis for the purpose of enforcing the road safety and public welfare purposes of the Act. I accept PC Cyrus’s evidence that he expected that he may find additional cannabis and would either ticket or warn the Applicant and send him on his way. I accept PC Cyrus’s evidence that his focus was to search for and seize any additional cannabis in order to prevent the Applicant from driving and smoking cannabis after leaving the RIDE stop.

[249] I accept PC Johnson’s evidence that he searched the satchel first because it was within the reach of the driver, it was readily available, and was a place where marijuana could be stored. In Tully, the Court noted that cannabis, like alcohol, can be easily kept in a pocket or purse.[^49] In my view it matters not that once he picked up the bag the weight of the bag caused PC Johnson to have officer safety concerns because he believed it may contain a gun. The weight of the bag did not foreclose marijuana also being contained in the bag in addition to another item. The search of the satchel did not become unauthorized because PC Johnson had heightened officer safety concerns in the moment between lifting the bag and looking inside it.

[250] The search of the satchel, located immediately beside the driver, was consistent with the public safety purpose of the Act. Given that PC Cyrus had reason to believe that the Applicant rolled a joint while in the driver’s seat, it made abundant sense to search the satchel immediately beside the driver for more cannabis to prevent the driver from continuing to use cannabis after he left the RIDE stop.

[251] The handgun was found within minutes, if not seconds, of the CCA search power being invoked and the investigation thereafter transitioned to a criminal investigation. The Applicant was arrested, and any searches thereafter were lawful searches incident to arrest.

G. Sections 9, 10(a) and 10(b) of the Charter

Section 9 of the Charter – Arbitrary Detention

[252] There is no dispute that the initial RIDE program stop was lawful.[^50] I am satisfied that when the investigation transitioned to a CCA investigation, the detention continued to be lawful. In accordance with the principles outlined in Darteh[^51], the Applicant was subject to a lawful investigative detention. PC Cyrus and PC Johnson had reasonable grounds to believe that cannabis was contained in the vehicle in contravention of s. 12 of the CCA. Consequently, subject to a constitutional challenge, s. 12(3) of the CCA authorized the officers to search both the vehicle and the person. This necessitated and justified a brief detention of the Applicant.

[253] Once the firearm was located, the police had reasonable grounds to arrest the Applicant and effected a lawful arrest. There was no violation of s. 9 of the Charter.

Section 10(a) and 10(b) of the Charter

[254] The Applicant submits that the police did not advise him of the reason for his detention and that the police failed to advise him of his rights to counsel “immediately” upon his detention under the CCA. The Applicant submitted that he was removed from his vehicle and the officers commenced initial questioning of him without advising him of the informational component or implementational component of the rights to counsel.

[255] The Applicant bares the onus of establishing a breach of s. 10(a) and s. 10(b) of the Charter on a balance of probabilities.

Section 10(a)

[256] The law relating to s. 10(a) requires the police to advise a detainee as to the substance of the reason for their detention. In Evans, Justice McLachlin J., speaking for the majority of the Court stated:

When considering whether there has been a breach of s. 10(a) of the Charter, it is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern. The question is whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline to submit to arrest or alternatively to undermine his right to counsel.[^52]

[257] The Applicant’s evidence establishes he understood the reason for his initial detention – he was stopped for a RIDE program. The Applicant’s evidence made clear he understood that a RIDE program is conducted to check sobriety - to detect if individuals are impaired by alcohol or drugs. Further, I accept PC Cyrus’s evidence that he told the Applicant it was a RIDE program when he first spoke to him. I also find as a fact that PC Cyrus asked the Applicant whether he had anything to drink or smoke – something the Applicant acknowledges -this also made clear to the Applicant the reason for the stop.

[258] I also find as a fact that shortly after PC Cyrus began his conversation with the Applicant, he told him that he smelled cannabis and saw cannabis shake all over his sweater and pants. I find that he informed the Applicant that he believed that cannabis was readily available to him in the vehicle. I accept that PC Cyrus went to his vehicle for less than a minute and returned and told the Applicant that he would be conducting a Cannabis Control Act investigation and he would be searching him and the vehicle. This clearly conveyed to the Applicant the reason for his detention when the investigation transitioned from a RIDE stop and sobriety check to a CCA investigation. After the Applicant got out of the vehicle, the handgun was located within a very short period and the Applicant was placed under arrest and informed of the reason for his arrest.

[259] I am satisfied that the Applicant was informed promptly of the reasons for his detention and arrest and the Applicant has not established a violation of s. 10(a) of the Charter.

Section 10(b) Immediacy Requirement

[260] Section 10(b) of the Charter guarantees anyone arrested or detained the right “to retain and instruct counsel without delay and to be informed of that right”. It imposes both informational and implementational duties on the police. It obliges the police to advise a detained person of the right to retain and instruct counsel without delay (the informational duty), and, if the detained person requests to exercise their right to counsel, the police must provide the detainee with a reasonable opportunity to speak with counsel (the implementational duty). The police must refrain from eliciting incriminatory evidence from a detainee until he or she has had a reasonable opportunity to speak with a lawyer, or has unequivocally waived the right to do so.[^53]

[261] In Suberu, the Supreme Court of Canada made clear that the right to counsel is triggered upon arrest or detention and provision of the informational component must be fulfilled immediately, subject to “concerns for officer or public safety, or limitations prescribed by law and justified under s. 1 of the Charter”.[^54]

[262] While the right to counsel is triggered from the moment a driver is “detained” within the meaning of s. 10 of the Charter, it is well established that s. 10(b) rights to counsel are suspended during brief roadside detentions for legitimate road safety investigations, including sobriety checks as a reasonable limit under s. 1 of the Charter.[^55]

[263] In my view, the suspension of s. 10(b) rights justified under s. 1 extends to brief CCA detentions, such as in this case, for the purpose of conducting a search under s. 12(3) of the CCA, especially where the CCA investigation flows directly and immediately from observations made during the RIDE stop and the CCA investigation shares a similar public safety purpose. PC Cyrus chose to conduct a CCA search because he decided it would not be prudent to send the Applicant on his way in his vehicle without resorting to s. 12(3) of the CCA. He wanted to ensure there was no more cannabis readily available to the driver so that he would not drive away and smoke cannabis while driving. PC Cyrus believed that this investigative step was synonymous with a brief HTA investigation in the treatment of rights to counsel. The CCA investigation was less than six minutes in length.

[264] This same issue was considered by Justice Calsavara in Grant, where, as in this case, the officer treated the CCA search as synonymous with a brief HTA investigation in the treatment of rights to counsel. I agree with and adopt the reasoning of Justice Calsavara in Grant, and her finding that the exercise of the rights guaranteed by s. 10(b) would be incompatible with a brief roadside detention required to conduct a search of the occupants and vehicle for road safety purposes- assuming it is a brief detention.

[265] In reaching her conclusion in Grant, Justice Calsavara relied upon Graham, where, in obiter comments, Justice Code concluded that the Orbanski analysis likely applied in the context of an analogous roadside Liquor Licence Act investigation. Justice Code stated as follows:

The s. 10(b) issue is more complex. The police undoubtedly delayed advising the detainees of their s. 10(b) rights until the time of their arrests. On behalf of the Crown, Mr. Fraser notes that there was an ongoing Highway Traffic Act investigation of both the driver (Pearson) and rear seat passenger (Fraser). It is only Graham who was not the subject of any Highway Traffic Act investigation. The law is clear that s. 10(b) rights are suspended or limited at the time of these roadside investigations, pursuant to s. 1 of the Charter, because the exercise of s. 10(b) rights is not compatible with the operational requirements of statutory and common law police powers to stop and investigate motor vehicles. Accordingly, the police did not have to advise Pearson and Fraser of their s. 10(b) rights at this Highway Traffic Act stage of the investigation.

It may well be that the same s. 1 Charter analysis applies to a roadside Liquor License Act investigation of “open alcohol” in a car, as applies to a roadside Highway Traffic Act or Criminal Code investigation of drinking and driving, licensing infractions or motor vehicle safety and driving infractions. These various types of roadside investigations are all arguably much the same, in terms of appropriate s. 1 limits on s. 10(b) rights. (citations omitted).[^56]

[266] Justice Code in Graham held he did not have to resolve the issue of whether rights to counsel are suspended during a roadside LLA investigation because he was satisfied that officer safety issues justified the delay in the provision of the rights to counsel to the accused passenger.

[267] In Grant the duration of the detention was similar to that in this case. Justice Calsavara found that “from the moment the roadside stop transitioned to a search pursuant to CCA to the time the gun was found, was likely inside of five minutes. Once the gun was seized, the defendants were immediately arrested and immediately read their rights to counsel”.

[268] Justice Calsavara considered the cumulative effect of the suspension of s. 10(b) on the accused’s rights at each stage of the traffic stop and found it, in totality, fell within the scope of reasonable and necessary measures for road safety purposes and was a justifiable limit on the accused’s rights under s. 10(b) of the Charter.[^57]

[269] Subsequent to Grant, in Tully, Justice Charney of the Ontario Superior Court addressed the issue of whether the rights to counsel are suspended during a brief detention pursuant to the CCA. The Court considered the constitutionality of s. 12 of the CCA, and the lawfulness of a CCA search. As a result of the findings of fact in the case the court did not have to decide the issue of whether the s. 1 justification for briefly suspending Charter s. 10(b) rights identified in Orbanski applied to the CCA. However, the Court agreed with the analysis of Code J. in Graham and observed that “given the similarity between s. 12(3) of the Cannabis Control Act and s. 32(5) of the Liquor Licence Act, the analysis would apply equally to both provisions.”[^58]

[270] In Kanneh,[^59] the court accepted that a roadside investigation under the CCA is analogous to an investigation under other regulatory statues, such that a brief suspension of s. 10(b) rights will apply. However, the court emphasized that the suspension must be brief and is only reasonable in so far as it can be justified by concerns for officer or public safety, or by the operational requirements of the exercise of statutory and common law police powers to stop a motor vehicle for road safety purposes. The court held that the extent to which a suspension of s. 10(b) rights can continue to be justified under s. 1 of the Charter where the purpose of the roadside detention transitions from a Highway Traffic Act violation to the investigation of a different offence, is a context specific issue to be determined on the specific facts of each case.

[271] In Kanneh, the Court held that a 55-minute delay of the rights to counsel went beyond the scope of reasonable and necessary measures for road safety purposes or for officer and public safety purposes.[^60]

[272] In this case, the total period of detention was approximately six minutes. At an early stage the detention transitioned from a RIDE stop sobriety check to a CCA investigation. The CCA detention and search lasted approximately one to two minutes before the gun was found, and, after the gun was found the accused was immediately arrested, placed into the police vehicle, and given his rights to counsel.

[273] I am satisfied that the accused s. 10(b) rights were suspended from the time of the stop until his arrest. The period of detention while the CCA investigation and search took place fell within the scope of reasonable and necessary measures for road safety purposes and was a justifiable limit on the accused’s rights to counsel under s. 10(b) of the Charter. As in Grant, it is unnecessary in this case to resolve the extent to which or for how long a suspension of s. 10(b) is a justifiable limit to conduct a search pursuant to s. 12(3) of the CCA.

Section 10(b) and Questioning

[274] In respect of whether the Applicant’s s. 10(b) rights were violated by questions asked PC Cyrus, the Applicant was initially lawfully detained by the RIDE program so he could be screened for drug or alcohol use and impairment. It is well established that the police, when conducting random roadside stop sobriety checks may engage in investigative screening measures, including asking questions about prior alcohol or drug consumption to assess the driver’s sobriety.

[275] In Orbanski, the Supreme Court of Canada held that “the scope of justifiable police conduct will not always be defined by the 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”. The Court further stated: “The police power to check for sobriety, as any other 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.””[^61]

[276] In Ladouceur the court indicated that in the context of a routine safety check the questions that may be justifiably asked are “those related to driving offences. Any further, more intrusive procedures could only be undertaken based upon reasonable and probable grounds.”

[277] In both Sappleton[^62],and Williams, Courts accepted that officers enforcing the CCA for public safety purposes are justified in asking limited questions related to the public safety purpose under the CCA for the same reasons that questioning is justified in the context of roadside sobriety checks in accordance with Orbanski.[^63]

[278] I am satisfied that in accordance with the reasoning in Orbanski, that as is the case with RIDE stops, an officer may ask basic screening questions of a detainee that are related to the road safety purposes of the CCA. Such questions do not violate the right to counsel because s. 10(b) rights are suspended and the suspension is justified under s. 1 of the Charter. The questions must be necessary for the officer to carry out the public safety purpose of the CCA and must be reasonable having regard to all the circumstances.

[279] In this case, the determination that limited questioning related to the CCA purpose may be justified is unnecessary, because PC Cyrus’s questioning did not go beyond questions related to the screening for sobriety.

[280] PC Cyrus appropriately questioned the Applicant about alcohol and drug consumption. When PC Cyrus smelled fresh and burnt cannabis and saw cannabis shake, it was appropriate for him to take investigative steps to determine whether he had grounds to conduct further testing including sobriety testing or to arrest the Applicant for impaired driving It was entirely appropriate for PC Cyrus to inform the Applicant that he could smell cannabis and could see it all over his sweater and pants. PC Cyrus’s comments caused the Applicant to spontaneously respond that he was smoking earlier at a friend’s house and that he was a messy roller.

[281] If the questions crossed into a CCA purpose to a limited extent, I am satisfied that such questioning was necessary to enforce the road safety purposes of the CCA and that it was reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference.

[282] This was not a circumstance, as in Mellenthin, where a police officer used the opportunity of a random roadside stop to randomly investigate potential crimes unrelated to the purposes of the constitutional roadside safety stop by asking questions of the driver.

[283] This was not a circumstance, such as in Grant, a decision of Justice Spies of the Ontario Superior Court, where the officer asked questions for the purpose of finding evidence to justify a search of the occupants of the vehicle and the vehicle itself under the CCA where the officer had “absolutely no reasonable basis” to believe that there was marijuana in the vehicle based on his interaction with the accused.

[284] In Grant, Justice Spies held that the questions were not asked for a legitimate purpose in accordance with a brief roadside stop that had transformed to a CCA investigation and held that the answers provided by the accused to the officer’s questions constituted a non-consensual taking of information from a detained person contrary to s. 8 of the Charter.[^64]

[285] In this case, PC Cyrus was careful to limit any questions. When questioned in cross-examination about why he did not simply ask the driver if there was additional marijuana in the vehicle, PC Cyrus testified that he wanted to keep his questions to the bare minimum because he was concerned about the Applicant’s rights and he knew he needed to be careful about the questions he asked.

[286] I am satisfied that the limited questions asked by PC Cyrus did not violate the Applicant’s s. 10(b) rights, and that they were appropriate and necessary in the furtherance of the road safety objectives of the RIDE stop, and CCA. The Applicant has not established a breach of s. 10(b) of the Charter on a balance of probabilities.

H. Section 24(2) of the Charter

[287] I agree with the Crown that if the police engaged in racial profiling and fabricated the presence of shake as a pretext to search the satchel, knowing they had no authority to search the car, and violating of ss. 8, 9, and 10(b) of the Charter, the evidence should be excluded under s. 24(2) of the Charter as its admission would bring the administration of justice into disrepute.

[288] However, if the officers were acting in good faith and had the subjective belief that there were reasonable grounds to search the vehicle under s. 12(3) of the CCA, but I have erred in concluding that the grounds were objectively reasonable, or I have erred in concluding that s. 12(3) authorized the officers to search the satchel, such that there were breaches of s. 8, 9 and 10(b) of the Charter, I am satisfied that the evidence of the loaded handgun should be admitted under s. 24(2) because exclusion would bring the administration of justice into disrepute.

[289] According to the Supreme Court of Canada decision in Grant[^65], there is a three-pronged test that must be applied when considering the admissibility of evidence under 24(2) of the Charter. 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.[^66]

[290] This requires attention to whether the overall repute of the justice system, when viewed in the long term and objectively speaking, will be negatively affected by the admission of the evidence, taking all the circumstances into account.

Seriousness of the Breach

[291] In assessing the seriousness of a breach, Grant requires an examination of the police conduct and a determination of where it fits on a spectrum from mere technical breaches at one end of the spectrum to bad faith violation at the other.

[292] In my view, if the police were acting in a good faith but misguided attempt to comply with the CCA, the breach was not serious. If the grounds were deficient, it was not by much. This is not a scenario where there was a complete absence of grounds. The officers believed they were acting in furtherance of public safety. There is limited caselaw to guide the police on questions regarding the sufficiency of grounds for a CCA search, or the scope of the search. Having regard to the interpretation of the analogous LLA provisions, there was good reason for the police to believe that they were authorized to search the vehicle and the satchel.

[293] An assessment of the seriousness of the Charter infringing conduct supports admission rather than exclusion.

Impact on the Charter-Protected Rights

[294] In Thompson, Justice Jamal, writing for the Ontario Court of Appeal, emphasized that the second line of inquiry under s. 24(2) asks whether the Charter breach “actually undermined the interests protected by the right infringed.” This involves identifying the interests protected by the relevant Charter rights and evaluating how seriously the Charter infringements impacted those interests. The more serious the impact on the Charter-protected interests, “the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.”[^67]

[295] The impact on the Applicant’s Charter protected interests was minimal. The search was not associated with a place or thing for which there was an elevated expectation of privacy, such as a home or computer.

[296] Driving is a highly regulated activity, and the Applicant had a reduced expectation of privacy in the rental vehicle.[^68] The CCA search did not grossly infringe on the Applicant’s reasonable expectation of privacy. Any search after the gun was located was authorized by search incident to arrest.

[297] Further, the detention of the Applicant to facilitate the CCA search was brief, less than six minutes and any delay in the provision of rights to counsel was brief and took place in the context of dynamic and quickly unfolding transition from a RIDE program stop, to a CCA investigation, to a Criminal Code investigation. There was no causal connection between delay in the provision of rights to counsel and the seizure of the gun. In my view this factor also supports admission of the