Court File and Parties

Date: June 11, 2024 Ontario Court of Justice

B E T W E E N :

HIS MAJESTY THE KING

— AND —

OMAR HOUSSEIN- HASSAN

Before: Justice Berg Released on: June 11, 2024

RULING ON CHARTER APPLICATION AND JUDGEMENT

Counsel: J. Pelletier, for the Crown L. Russomano, for the defendant

Berg J.:

[1] On the 20th of December, 2022, Omar Houssein-Hassan was arrested and charged with two offences. It is alleged that on that day, he

• unlawfully did, for the purpose of trafficking, possess a substance included in Schedule IV of the Controlled Drugs and Substances Act, to wit: clonazolam, contrary to Section 5 (2) of the said Act, thereby committing an offence under s. 5(3)(c) of that Act; and
• did possess proceeds of property or a thing, namely money of a value not exceeding five thousand dollars, knowing that all or part of the said proceeds had been obtained by the commission in Canada of an offence punishable by indictment, contrary to s.355 (b) Criminal Code.

[2] This matter has proceeded to trial. Mr. Houssein-Hassan has alleged that certain of his rights pursuant to the Canadian Charter of Rights and Freedoms were infringed by the police during the course of their investigation into the present matters. On consent of both parties, the Charter voir dire and the trial proper were heard in a blended fashion. Thus, the evidence called by the Crown was applicable to both hearings. The defence called no evidence at either hearing.

The Evidence

[3] I was advised at the outset that the Crown and defence had agreed to facts. An agreed statement was filed as an exhibit establishing the following:

• That the alleged offences occurred on December 20, 2022 in Ottawa;
• The accused before me is the person who was arrested on that date;
• The accused before me is the person who was seated in the driver’s seat of the black Honda Civic bearing the licence plate number CMAV756 and is the registered owner of that vehicle;
• The detective who was acting as the exhibit officer seized the following materials related to these allegations:
  • 358 benzodiazepine pills, namely clonazolam with the word ‘Xanax’ stamped on them;
  • 0.7 gm of loose cannabis and a rolling paper;
  • a black iPhone;
  • a cracked white iPhone with no battery charge;
  • a ripped green plastic bag;
  • three ripped white plastic bags;
  • 6 black and silver 2 x 3 dime bags;
  • a silver zip lock bag with cannabis in it;
  • an empty prescription pill bottle with the label mostly removed; and
  • the following amounts of Canadian currency:
    • $2560 consisting of 9 x $100, 30 x $50, and 8 x $20;
    • $400 in loose $20 bills;
    • $25 in loose $5 bills.
• the pills seized are clonazolam which is a substance on Schedule IV of the Controlled Drugs and Substances Act;
• the continuity of the items seized by the police is not challenged by the defence;
• the exhibit photographs are accurate depictions of the items in question.

While it was not part of the agreed statement of facts, the defence ultimately came to admit that any possession of the clonazolam was for the purpose of trafficking and the Crown would not be required to call evidence to prove that element.

[4] The present allegations arose on the property of the Ottawa Community Housing (OCH). This is private property upon which the officers of the Ottawa Police Service (OPS) have been granted agent status pursuant to an Authorization and Memorandum of Understanding Regarding the Trespass to Property Act RSO 1990, c. T.21. This MOU was signed by the CEO of the OCH and the chief of police on September 8, 2020 and came into effect on that day.

[5] I will here cite those portions of the MOU relevant to the matter before me.

The Ottawa Community Housing Corporation hereby authorizes the Ottawa Police Service to act as OCH”s agent for the purpose of enforcing all of the provisions of the Trespass to Property Act (TPA) and in particular, section 21(1) (b) which extend authorization for person that have been granted agent status to direct person(s) to leave the premises. [sic]

The OCH is a residential landlord and is governed by the Residential Tenancies Act. All OCH tenants and occupants have a right to quiet enjoyment of the premises, including a right to have guests. OCH tenants also have a corresponding responsibility for the behaviour of their guests under this act.

As OCH agent, OPS may notify any person(s) who is not a tenant or resident of a unit within that particular residential complex, that they are trespassed under the TPA.

[6] On December 20, 2022, Constable McBain of the OPS was patrolling a particular OCH property pursuant to the MOU. That property has multiple dwelling units and an associated parking lot. He testified that as agent for the OCH, he was there to enforce the TPA and, as well, to deal with people engaged in any prohibited activity. He had received some training in the Cannabis Control Act prior to this day. He was in full uniform and was driving a marked police patrol vehicle. Mr. McBain described this OCH property as a high crime area.

[7] The property’s parking lot has only one entrance/exit. Mr. McBain drove into it at 01:28 hrs. and went towards the end of the lot where the visitor parking area was located. The lot is L-shaped and the constable testified that as there is not a lot of room, a driver has to go to the end of the lot and then reverse into the L-portion in order to turn around. This is what he intended to do. However, he observed a male sitting in the driver’s seat of a Honda Civic parked, motor running with its lights on in the visitor parking area; that person was Mr. Houssein-Hassan. The car had backed into the space. Given the importance in this case to the issue of whether the accused was in care or control of the Civic, it is odd that the constable did not record in his notes that the motor was running or that he asked Mr. Houssein-Hassan to turn it off.

[8] Mr. McBain testified that in that situation, he will commonly go over to see if the person lives on the property or what they are doing. Therefore, he stopped his police vehicle some 10-15 feet from the front of the accused’s vehicle. He testified that it would thus have been very difficult for Mr. Houssein-Hassan to leave the parking space but it would not have been impossible. He was not intentionally trying to block or detain him. He did not turn on his emergency lights.

[9] The constable walked over to the driver’s side of the Civic. I note that he did not first run the licence plate. During cross-examination, he agreed that he could have run Mr. Houssein-Hassan’s licence plate to determine whether he was a resident there before he exited his scout car. Mr. McBain ultimately discovered that the accused did reside at that address and was, therefore, legally allowed to be there. During cross-examination, the officer conceded that his MDT log indicated that he had probably run the plate of another vehicle just moments before.

[10] It was the officer’s intention to ask the accused whether he lived on the property and what was he doing. When the constable got to the Civic, he shone his flashlight into the cabin. Mr. Houssein-Hassan was looking down. The officer said words to the effect of “Hi, what are you up to?” and immediately observed that the accused was rolling a joint. It had taken 5-10 seconds from the time the constable left his scout car to the time he observed the cannabis. Mr. Houssein-Hassan responded that he lived there and to the effect of “I was just about to smoke some weed. I am not allowed to do it inside.” He also indicated that he was not going to drive. The officer had never encountered Mr. Houssein-Hassan before on this property. He testified that he believes that he had encountered him before in a motor vehicle, but he did not realize that he had done so until he saw the name on the driver’s licence.

[11] Constable McBain testified that he believed the accused when he told him that he resided there and was just in the car to roll a joint. He did not believe that Mr. Houssein-Hassan was impaired. However, he did believe that he was in care or control of the vehicle despite the absence of any indication that the accused intended to put the Civic in motion and there being no realistic risk of accidently doing so. In reexamination, he further explained that as the car lights were on, Mr. Houssein-Hassan had the keys and therefore could put the vehicle in motion in less than two seconds.

[12] Constable McBain then advised the accused that he was going to be detained under the Cannabis Control Act as he was in care and control of a motor vehicle with cannabis readily available. This was roughly ten seconds after he had arrived at the side of the Honda Civic. The constable then used his radio to request that other officers attend on scene for officer safety as he was going to have Mr. Houssein-Hassan step out of his car and then search him and the Civic pursuant to the Cannabis Control Act. Upon request, Mr. Houssein-Hassan stepped out of his vehicle. Mr. McBain cautioned him that he could call a lawyer and that he did not have to say anything to police. The officer did so because he recognized that Mr.Houssein-Hassan was detained at that time. What the constable had done was provide the accused with a ‘soft caution’. I will merely remark here that a ‘soft caution’ does not fulfill the informational requirements of s. 10(b) Charter. He asked the accused whether he understood. I note that there was no evidence as to what answer, if any, Mr. Houssein-Hassan provided at that point.

[13] His grounds for detaining the accused were that the motor was running, the exterior lights were on and Mr. Houssein-Hassan was in the driver’s seat thereby indicating care and control of the Civic. Furthermore, that Mr. Houssein-Hassan was rolling a joint and therefore cannabis was readily available to him.

[14] Mr. McBain did not ask at that point if he wished to speak to a lawyer. During cross-examination, he agreed that one of the major purposes of s. 10(b) Charter was to find out precisely that and then, if necessary, facilitate a telephone call to counsel. Mr. McBain testified that he believed that even though he had not asked Mr. Houssein-Hassan whether he actually wished to call a lawyer, he believed that he was still able to do so as he was not handcuffed and had a cell phone with him.

[15] Mr. McBain could see cannabis in Mr. Houssein-Hassan’s lap. He stated during examination in chief, that he believed that there would be more in the vehicle as in his experience when a quantity is being rolled, there is usually more. The constable testified that he had the grounds to conduct a Cannabis Control Act search prior to Mr. Houssein-Hassan’s response to his question as he had seen the marijuana before he asked it. I must say that this part of his evidence during cross-examination was somewhat confused. He initially answered Mr. Russomano that when he told the accused to step out of the car, he was without a basis to believe that there was more cannabis in the vehicle, a somewhat surprising bit of evidence given his evidence in chief. A few questions later, when it was suggested to him that he therefore had no basis to search the Civic under the Cannabis Control Act, he testified, as he had in chief, that the presence of some is a basis to believe that there might be more. He explained, oddly, that when he had said that he had no basis to search for more, he had meant that he did not see any more. He stated that when he had reasonable grounds to believe that there was cannabis being illegally transported elsewhere in a vehicle, he could search those places accessible to a driver or occupant not fastened closed.

[16] Other officers then arrived on scene. Constable McBain then commenced to search the person of Mr. Houssein-Hassan. He located a wad of money in his left pants pocket and a black cell phone in the right pocket. As it was not relevant to his investigation under the Cannabis Control Act, he returned the money. This search took 1-2 minutes. He then began his search of the Civic, looking for more cannabis.

[17] Mr. McBain noticed in the cabin of the vehicle various items that he did not initially seize as they were not related to the offence that he was investigating under the Cannabis Control Act. The items were a ripped plastic grocery bag, cash, another cell phone, some marijuana, and five or six 2”x3” plastic bags. When he looked under the steering column, he noticed that there was a panel not attached properly. In court, he described it as being an inch or two lower. While there were photographs adduced of the various seized objects, I was not provided with any photos of the interior of the Civic. I note further that the location of this panel was not described with any precision beyond it being in the area under the steering column and to its left, close to the door. Mr. McBain shone his flashlight into the gap and pulled the panel down further. He could see what appeared to be a plastic bag. He testified that he then pulled down another area of panel and the bag was exposed. He was still looking for cannabis. He extracted the bag. It contained the 358 pills of clonazolam stamped with the word ‘Xanax’. By this point, he had been searching for 6-7 minutes.

[18] Constable McBain testified that he believed that he had the authority to search behind the panel because it was accessible to the driver.

[19] My understanding of the evidence of this witness is that by this point, he had only searched the driver’s area. He then searched the other parts of the cabin. He then took a minute or two to Google Xanax in order to determine the relevant schedule of the Controlled Drugs and Substances Act. Mr. McBain then advised his colleague Constable Elliott of the grounds to arrest and what he had found in the accused’s pockets. This conversation took approximately one minute. He then observed Mr. Houssein-Hassan being handcuffed by that officer. Mr. McBain then took some evidence bags and began processing the various items he had located and seized.

[20] The next Crown witness was Constable Juann Elliott. He was dispatched at 01:32 hrs. to assist Constable McBain and arrived on scene one minute later. He observed his colleague with the accused whom, he was informed, was under Cannabis Control Act investigation. Mr. Elliott stayed with Mr. Houssein-Hassan while Mr. McBain searched the car. An odd feature of Mr. Elliott’s evidence was he testified that Constable McBain had told him, if I have understood correctly, that his attention was drawn in part due to the odour of cannabis. One will remember that that was not Mr. McBain’s narrative.

[21] Constable Elliott remained with the accused until a third officer arrived on scene and then went to assist in the search. He did not seize any items nor could he recall what the interior of the vehicle looked like. He believed that he was conducting a search pursuant to the Cannabis Control Act which he stated was a criminal statute. He testified that he was present when Mr. McBain located the pills under the steering wheel behind a lower dash panel. This was approximately some 15 to 20 minutes after Constable McBain had started searching the Civic. This was 5 to 15 minutes after Mr. Elliott had joined in the search. Upon the finding of the pills, Mr. Elliott returned to Mr. Houssein-Hassan and arrested him for the present charge. This was at 01:48 hrs.

[22] I wish to focus for a moment on Mr. Elliott’s evidence about how the search was conducted. As I have already stated, that officer testified that it took at least 15 minutes for the pills to be discovered. Mr. Elliott testified that he commenced searching in the driver’s area and then switched to the rear driver’s side. Mr. McBain was searching on the passenger side. Then, he and Mr. McBain switched sides. In other words, both officers searched both sides. Constable Elliott told the court that searches are performed in this fashion so as to be more thorough and to reduce the chance of missing something. Every nook and cranny was searched. The evidence before me from both officers is that it was Constable McBain who found the pills. Thus I infer that Mr. Elliott, who had searched that area of the cabin before his colleague did, did not see the misaligned panel.

[23] After arresting the accused, Mr. Elliott searched him and relocated the items that had already been discovered by his colleague. This search incident to arrest took approximately ten minutes due to the fact that the area was not illuminated and the clothing worn by Mr. Houssein-Hassan had many pockets. After the search, the accused was placed in the rear of Mr. Elliott’s cruiser and then, at 02:00 hrs., read the rights to counsel and cautions. The constable was aware that his colleague had given the accused a ‘soft caution’ earlier on. It was his evidence that such a caution was basically the informing of a person of their right to silence. He testified that it would not have included the information of the right to counsel as Mr. Houssein-Hassan had not been under arrest at the time that Constable McBain had cautioned him, he had only been under investigative detention. During cross-examination, Constable Elliott testified that he could not remember whether the accused indicated at that time whether he actually wished to speak to a lawyer.

[24] The accused was then transported to the police station and paraded at 02:15 hrs. Constable Elliott contacted duty counsel at 02:35 hrs. and the accused then consulted with that lawyer a minute later. While Mr. Elliott could not recall why there had been a 20-minute delay in contacting duty counsel, I note that it is the invariable practice of the Ottawa police in these circumstances to have the prisoner searched after being paraded before the cell block sergeant. After speaking to counsel, Mr. Houssein-Hassan was then lodged in a cell.

Charter Analysis

[25] I will now analyze the foregoing evidence but solely in light of the alleged breaches of Mr. Houssein-Hassan’s constitutional rights and freedoms. Should the evidence before me withstand Charter scrutiny, I will return to a factual analysis of the evidence heard at the trial proper.

[26] Mr. Houssein-Hassan has alleged the following breaches of his Charter rights which I here provide in the order used in the defence factum:

• Section 9: “Cst. McBain’s original interaction with the Applicant was pursuant to the Trespass to Property Act. To the extent that the Applicant was detained for this initial purpose, this was unlawful because there was no basis to conclude that the Applicant was trespassing. The Applicant is a black male who resided in the Community Housing in question. Black males in community housing are overpoliced. There was no basis to even commence an interaction with the Applicant. This constituted a breach of s. 9 of the Charter.”
• Section 8: “Subsequently, Cst. McBain continued his investigation pursuant to the Cannabis Control Act, yet the Applicant was not in care and control of the vehicle. The Applicant was merely occupying the vehicle so that he could roll a joint. There was no realistic possibility that the car would be set in motion, nor was this the Applicant’s intention. S. 12 of the Cannabis Control Act only prohibits the transport of cannabis for persons who have care and control of a vehicle. There was no basis for Cst. McBain to believe that there was any contravention of the Cannabis Control Act. Without establishing care and control, the subsequent search was unlawful and a violation of s. 8 of the Charter.”
• Section 10(a): “Cst. McBain failed to advise the Applicant of the reason for the detention. This was a breach of s. 10(a) of the Charter.”
• Section 8: “The fundamental purpose of section 12(3) of the Cannabis Control Act is to enable police officers to search a vehicle that they have reasonable grounds to believe possesses improperly stored cannabis contrary to sections 12(1) and 12(2) of the Cannabis Control Act. Section 12(3) of the Cannabis Control Act thus does not authorize officers to conduct the kind of thorough inventory search of a vehicle that would normally require a warrant. The Cannabis Control Act does not authorize a wholesale search of the vehicle unless the officer has a specific basis to search the particular area. There were no grounds to search the compartment wherein the Xanax [sic] pills were found. The scope of the search exceeded what is permissible under the Cannabis Control Act, and this was a breach of s. 8 of the Charter.”
• Section 10(b): “Cst. McBain detained the Applicant and did not inform him of his right to counsel without delay. This was a breach of s. 10(b) of the Charter. Cst. McBain also failed in his duty to hold off in obtaining incriminating statements from the Applicant. The Applicant’s statements furthered the grounds for detention under the Cannabis Control Act. These statements were obtained in violation of s. 10(b) of the Charter.” A further breach of this section was raised during argument. It was submitted that the twelve minutes that elapsed between the arrest of Mr. Houssein-Hassan and the reading of the rights to counsel was a violation of this section.

[27] First of all, I must determine at what point Mr. Houssein-Hassan was detained. It is to be remembered that the only evidence before me on this issue is that of Constable McBain and, to state the obvious, questions posed during cross-examination are not by themselves evidence.

[28] Mr. Russomano submits that the detention of his client began with the parking of Constable McBain’s patrol vehicle in front of the Honda Civic. I disagree. There is no evidence before me from which I can find or infer that the accused was even aware of the officer’s presence until he was right at the driver’s window. As well, even on a balance of probabilities, it has not been established that the police vehicle would have in fact prevented Mr. Houssein-Hassan from leaving the parking lot by driving out of the parking spot. It is clear that it would have been a tight squeeze, but that is not the same as saying that such a maneuver could not have been performed. On the facts before me, I could only speculate as to what would have occurred should the accused have driven out of the parking space. Finally, given that the evidence before me is that the accused was parked in a parking lot at his residence, there is nothing before me from which I could infer that he could not have exited the Civic and walked to his home nearby. It would again be entirely speculative for me to here assume any specific course of action on the part of Constable McBain should Mr. Houssein-Hassan have done so. To be clear, I am referring here to the short period of time from the parking of the scout car to the constable observing the accused rolling a joint.

[29] It is clear that Mr. Houssein-Hassan was detained from the moment that the constable observed him to be in open possession of a quantity of cannabis in his vehicle. I turn now to the actions of Constable McBain that led up to that detention. This officer was patrolling the grounds of the complex at the behest of the OCH. He observed Mr. Houssein-Hassan in his Civic and decided to investigate. While the accused is a racialized person, I find that the evidence does not support the contention that his race was the reason or a reason that Mr. McBain commenced this investigation. Moreover, in the circumstances of the present case, I do not see a significant difference between what the constable did (i.e., walk over to the car to determine whether the accused had a right to be on the property) and running the Civic’s licence plate for the same purpose.

[30] I find that there was no breach of Mr. Houssein-Hassan’s s. 9 Charter right. I turn now to the first of the defence’s s. 8 Charter arguments. This turns on whether the accused was in care and control of his vehicle at the time that he was observed by Constable McBain. I find that the Crown has not proven that the engine was running. I am troubled by the lack of any contemporaneous reference in the officer’s notes and recall that he testified that he has no present recollection concerning the motor. However, it is clear from the evidence that the accused was in possession of the key. On the other hand, Constable McBain believed the accused when he told him that he was just in the car to roll a joint. Based on this evidence, can I find that Mr. Houssein-Hassan was in care or control?

[31] The term ‘care or control’ arises in the present context from s. 12(1) Cannabis Control Act: “No person shall drive or have the care or control of a vehicle or boat, whether or not it is in motion, while any cannabis is contained in the vehicle or boat.” As the Cannabis Control Act does not define what is meant by ‘care or control’, a definition must be sought elsewhere, the obvious source being the caselaw dealing with impaired driving.

[32] The leading case here is R. v. Boudreault, 2012 SCC 56. The majority decision, written by Fish J., states at paragraph 9

For the reasons that follow, I have concluded that “care or control”, within the meaning of s. 253(1) of the Criminal Code, signifies (1) an intentional course of conduct associated with a motor vehicle; (2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; (3) in circumstances that create a realistic risk, as opposed to a remote possibility, of danger to persons or property.

The Supreme Court noted that the existence of a realistic risk of danger is a matter of fact (at paragraph 11) and then stated, at paragraph 13

Impaired judgment is no stranger to impaired driving, where both are induced by the consumption of alcohol or drugs. Absent evidence to the contrary, a present ability to drive while impaired, or with an excessive blood alcohol ratio, creates an inherent risk of danger. In practice, to avoid conviction, the accused will therefore face a tactical necessity of adducing evidence tending to prove that the inherent risk is not a realistic risk in the particular circumstances of the case

and directed (at paragraph 34) that “The risk of danger must be realistic and not just theoretically possible: … But nor need the risk be probable, or even serious or substantial.” Fish J. remarked at paragraph 36 that “It is settled law that an intention to set the vehicle in motion is not an essential element of the offence.”

[33] To return to the evidence before me, I find that the Crown has not proven that Mr. Houssein-Hassan had an intention to drive when he was approached by Constable McBain. But, as stated at paragraph 42 of Boudreault,

In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways. First, an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so; second, an inebriated person behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.

[34] It is not alleged that Mr. Houssein-Hassan was under the influence of cannabis or anything else when he was approached by the police officer. However, it is also clear that he was about to smoke the joint he was found rolling. There is no reason why the defence cannot rely on evidence adduced by the Crown in order to satisfy the tactical necessity referred to in Boudreault. But all that is established thereby is that he was in the Civic rolling the joint, and that he was not permitted to smoke it in his dwelling. On the basis of the evidentiary record, it is very possible that Mr. Houssein-Hassan was going to smoke the joint in the car, it was winter in Ottawa after all. There is no evidence before me as to what was his intention after having consumed the cannabis. Even if he had no intention originally with respect to driving afterwards, he could have changed his mind.

[35] In conclusion on this s. 8 Charter issue, I find that Mr. Houssein-Hassan was in care or control of the Honda Civic when he was approached by Constable McBain and seen rolling a joint. Therefore, I reject this allegation of breach of his Charter right.

[36] It is alleged that Constable McBain failed to advise Mr. Houssein-Hassan of the reason for the detention and thereby breached his s. 10(a) Charter right. I fail to see any breach of this right. Upon observing the cannabis being rolled by Mr. Houssein-Hassan, he advised him within ten seconds that he was going to be detained pursuant to the Cannabis Control Act.

[37] I turn now to the second allegation of a breach of Mr. Houssein-Hassan’s s. 8 Charter rights. I will here reiterate the defence pleadings on this issue: “The fundamental purpose of section 12(3) of the Cannabis Control Act is to enable police officers to search a vehicle that they have reasonable grounds to believe possesses improperly stored cannabis contrary to sections 12(1) and 12(2) of the Cannabis Control Act. Section 12(3) of the Cannabis Control Act thus does not authorize officers to conduct the kind of thorough inventory search of a vehicle that would normally require a warrant. The Cannabis Control Act does not authorize a wholesale search of the vehicle unless the officer has a specific basis to search the particular area. There were no grounds to search the compartment wherein the Xanax [sic] pills were found. The scope of the search exceeded what is permissible under the Cannabis Control Act, and this was a breach of s. 8 of the Charter.”

[38] The search conducted by the OPS officers here was a warrantless search. Such a search is presumptively unreasonable unless justified by the Crown. In order to justify it, the Crown must show that the search was authorized by law, that the law itself was reasonable, and that the search was carried out in a reasonable manner (R. v. Collins, [1987] 1 S.C.R. 265 at p. 278). The Crown seeks to justify this search and the seizure that resulted by means of s. 12(3) Cannabis Control Act.

[39] The Cannabis Control Act, 2017 (S.O. 2017 c. 26, Sched. 1) is a provincial statute and regulatory in nature. The section of that Act relevant to the present case is s. 12 which deals with the transportation of cannabis.

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

Obviously sub-section 12(3) Cannabis Control Act must be read in conjunction with subsection (2) [^1]

[40] The legislative purpose (relevant to the present matter) behind the Cannabis Control Act is referred to within the Act itself. Section 1 reads

(1) The purposes of this Act are, (a) to establish prohibitions relating to the sale, distribution, purchase, possession, cultivation, propagation and harvesting of cannabis in order to, (i) protect public health and safety, (b) to deter illicit activities in relation to cannabis through appropriate enforcement and sanctions; …

(See, too, R. v. Nzita, [2020] O.J. No. 3109 (OCJ) at paragraphs 22ff.)

Section 12 of the Act must be interpreted in light of this stated purpose. The comments of De Sa J. at paragraph 50 of R. v. Sappleton, 2021 ONSC 430 are relevant here:

Obviously, whether the marijuana is properly stored (not readily available) is very much a contextual assessment. This assessment is informed by the underlying purposes of the regulations. The regulations are directed at road safety and preventing the risk of marijuana use by the driver or other occupants of the vehicle while driving. Society requires and expects protection from intoxicated and dangerous drivers. … Accessibility/availability of the marijuana for use will clearly be a relevant consideration.

[41] The s. 12(2)(b) Cannabis Control Act exception for cannabis that “is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle or boat” has been taken to require that the cannabis be both in a container that has been fastened closed and not otherwise readily available. For example, in Sappleton, De Sa J. remarked at paragraph 48 that

I agree with the Crown that “packed in baggage that is fastened closed” should be read together with “or is not otherwise readily available to any person in the vehicle or boat.” They are not completely distinct exceptions. If they were, they would have been listed separately like the exception in s. 12(a) of the Cannabis Control Act. Section 12(b) contemplates that the marijuana will be stored away and not be readily available to the driver or other occupants of the vehicle.

[42] However, I suspect that this interpretation is in error. [^2] When one looks at the French version of the same statute, s. 12(2)(b), one reads “est placé dans des bagages qui sont fermés solidement ou qui sont d’accès difficile aux personnes se trouvant à bord du véhicule ou du bateau.” The French is clear and unambiguous that it is the baggage and not the cannabis that has to be difficult to access by the occupants: see the use of the plural form ‘sont’ referring back to the plural noun ‘bagages’. What would follow from this interpretation is that the cannabis must be in baggage that has either been fastened closed or placed out of reach. Thus, the inquiry at trial should be whether 1) was the cannabis in baggage that had been fastened closed (fermé solidement) or 2) was the baggage not otherwise readily available (sont d’accès difficile) to the occupants of the vehicle. This disjunctive interpretation is also supported by the presence, in the English version, of the word ‘otherwise’.

[43] The word ‘baggage’ surely cannot be understood to operate in a fashion that would disallow recourse to the s. 12(2)(b) exception where the cannabis has been stored in a closed receptacle that is part of the vehicle but which cannot be described as ‘baggage’. It is the function of the receptacle and not its nature that is important and a hidden and closed recess in a car could serve the same function as an item of baggage. The inquiry at trial would then be whether the receptacle was fastened closed or was otherwise readily available.

[44] The meaning of ‘readily available’ is not defined within the statute and thus must be sought elsewhere. I was not provided with, nor have I been able to find, any cases dealing directly with this point in the context of the Cannabis Control Act. Of some assistance, however, is the decision of Then J. in R. v. Khan, 2007 ON SC 462, [2007] O.J. No. 137 (ONSC) at paragraphs 15ff.

That decision is dealing with a section of the Criminal Code and the specific term ‘readily accessible’. However, I do not think that the difference in statute is important and am of the view that ‘readily accessible’ and ‘readily available’ are synonymous.

Counsel have been unable to refer the Court to any case in which the phrase "readily accessible" in s. 95 has been interpreted. However, Floyd et al. v. Bowers et al. (1978), 1978 ON SC 1465, 21 O.R. (2D) 204 A civil case, in which damages were sought on the basis of the negligence of parents of a youth who had caused injury to another youth by discharge of a firearm provides some insight into the meaning of "readily accessible". The gun was kept in the cupboard in the cottage and the ammunition was in a closet drawer to the knowledge of the youth. There is no evidence as to whether the gun and ammunition were in the same room. Both receptacles were unlocked. Stark J. concluded at p. 206:

In leaving the gun and the ammunition readily available and unattended, the parents made it easily possible for Stephen to disregard their instructions. I consider that this failure to control or prevent easy access to both the gun and the ammunition constitute negligence on the part of the parents. (emphasis by Then J.)

The Court of Appeal at (1979), 1979 ON CA 1692, 27 O.R. (2d) 487 concluded that the gun and ammunition had been left "readily accessible".

The Shorter Oxford Dictionary defines readily accessible as meaning, quickly, without delay, without difficulty. In my view, what the Crown must prove is not that the gun and bullet were adjacent to one another or stored together so that the gun could be loaded immediately, although in certain circumstances that would of course be sufficient, but rather that the bullet could be accessed quickly, without delay and without difficulty.

Further to the dictionary definition referred to in Khan, other relevant definitions are “promptly, quickly, easily: manner” (The Random House Dictionary of the English Language), and “fitted, arranged, or placed for immediate use” (Black’s Law Dictionary). I conclude that ‘readily available’ does not refer to mere proximity; there is also the element of ease of access.

[45] In summary, the legislative intention and the wording of the statute establish that those portions of the motor vehicle that can be searched pursuant to sub-section (3) must be readily available to the driver or other occupant. This would be in keeping with the limitations inherent in regulatory search powers.

[46] De Sa J. in Sappleton (paragraphs 58 and 59) reviewed the jurisprudence concerning those limits:

Furthermore, the exercise of this search power is circumscribed by that which is necessary for the carrying out of the specific regulatory purpose. It must be exercised reasonably, having regard to the nature of the privacy interests involved. As explained in R. v. Orbanski; R. v. Elias, 2005 SCC 37, at para. 27:

The scope of justifiable police conduct will not always be defined by express wording found in a statute but, rather, according to the purpose of the police power in question and by the particular circumstances in which it is exercised. Hence, it is inevitable that common law principles will need to be invoked to determine the scope of permissible police action under any statute. In this context, it becomes particularly important to keep in mind that any enforcement scheme must allow sufficient flexibility to be effective. 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” (p. 35). [Emphasis added.]

See also R. v. Dedman, [1985] 2 S.C.R. 2, at p. 35.

Similar comments were made by the Supreme Court in R. v. Mellenthin, [1992] 3 S.C.R. 615 regarding the limits of regulatory interventions. Police pulled over the accused for a routine HTA stop. The initial detention was for motor vehicle-related law enforcement, which was found constitutional. The court emphasized, however, that this HTA authority could not be used for other purposes.

Check stop programs result in the arbitrary detention of motorists. The programs are justified as a means aimed at reducing the terrible toll of death and injury so often occasioned by impaired drivers or by dangerous vehicles. The primary aim of the program is thus to check for sobriety, licences, ownership, insurance and the mechanical fitness of cars. The police use of check stops should not be extended beyond these aims. Random stop programs must not be turned into a means of conducting either an unfounded general inquisition or an unreasonable search. [Emphasis added.]

[47] Beyond Sappleton at paragraph 63, other Ontario courts have also commented negatively on the extent of Cannabis Control Act searches of vehicles (e.g., R. v. Byfield, 2023 ONSC 4308 at paragraphs 118ff.; R. v. Omar, [2022] O.J. No. 5032 (SCJ) at paragraph 21; R. v. Shaw, [2021] O.J. No. 2296 (OCJ) at paragraph 123; R. v. Myers, unreported, June 10, 2021, OCJ, Pirraglia J. at paragraph 28; R. v. Kyeremeh, [2022] O.J. No. 5917 (OCJ) at paragraphs 48ff.).

[48] From the foregoing, I conclude that for a search such as that in the case at bar to be lawful, the Crown must prove that the place where the police were searching for the suspected marijuana must be either not fixed closed or easily and quickly accessible by an occupant of the vehicle in question. The evidence required to prove this element of the Crown’s case must be clear and detailed. In some cases, it may require the measurement of distances and/or photographs of the interior of the vehicle. But it would not be sufficient for the Crown to adduce evidence of mere proximity without explaining the ease with which the location could be accessed or whether it had been fixed closed. Section 12(3) Cannabis Control Act does not allow in all cases the power to search the entire vehicle.

[49] I accept that Constable McBain had reasonable grounds to engage in a s. 12(3) Cannabis Control Act search from the moment that he saw the cannabis being rolled by the accused. From the facts before me, it was reasonable for the officer to infer the possible presence of more marijuana than that which was being rolled at the moment and that the cannabis could be readily accessible to Mr. Houssein-Hassan. I will admit to being somewhat troubled by the evidence of Mr. Elliott that his colleague told him that there had been the odour of cannabis from which I infer Mr. Elliott to be saying that his colleague had told him that his attention had been drawn to the presence of cannabis by the smell. That was not the evidence of Mr. McBain. As the defence did not go down that particular road in either cross-examination or submissions, I will accept Constable Elliott’s own evidence as to what occurred, but I must remark that the misuse by the police of olfactory evidence in the context of s. 12(3) Cannabis Control Act is hardly unknown: e.g., R. v. Grant, 2022 ONSC 2703; R. v. McKenzie-Walcott, 2022 ONSC 1350; R. v. Ghuman, 2023 ONSC 2615; R. v. Taylor, [2023] O.J. No. 3744 (OCJ); R. v. Bogdanov, 2023 ONCJ 553. While I cannot find that that was indeed what occurred during Constable Elliott’s testimony, the inconsistency was still notable.

[50] Constable McBain’s evidence on the search was that the pills were discovered by him after six or seven minutes and that he had only searched the driver’s area by that point. Compare this evidence with that of Constable Elliott who testified that it took at least fifteen minutes for the pills to be discovered, that he had commenced searching in the driver’s area and then he and Mr. McBain switched sides and it was only then that McBain found the pills. In other words, the ‘gap’ had not been apparent to Mr. Elliott. The exact position of the panel in question was never established with sufficient specificity during the trial. On the basis of the evidence before me, I cannot find that the recess behind the panel could be described as having been readily available to the driver. If the gap actually existed, it is not clear from the evidence how the driver would have been able to reach it. It is important to recall that the onus is on the Crown to prove that it was readily available.

[51] The Crown has not proven that the area where the clonazolam was found was readily accessible to the accused or, for that matter, not in a fastened closed receptacle. Therefore, I find that the s. 8 Charter rights of Mr. Houssein-Hassan were breached when the police exceeded what was permitted by the s. 12(3) Cannabis Control Act search powers.

[52] Section 10(b) Mr. Houssein-Hassan was detained by Constable McBain for the purposes of the Cannabis Control Act by 01:32 hrs. at the latest as this was the time that he requested the assistance of another officer. However, there was no requirement that he be provided with his s. 10(b) Charter rights at that point (see, e.g., R. v. Byfield, 2023 ONSC 4308 at paragraph 137; R. v. Galeano, 2023 ONCJ 227 at paragraph 69). Nonetheless, Mr. McBain ‘soft cautioned’ the accused at that point. Constable Elliott arrested the accused for the criminal possession of the pills at 01:48 hrs. He fulfilled his obligation under s. 10(b) Charter at 02:00 hrs. The Crown has conceded that this twelve-minute gap was in breach of s. 10(b).

Remedy per Section 24(2)

[53] I have found that Mr. Houssein-Hassan’s s. 8 and 10(b) Charter rights were violated. I must now determine what remedy, if any, is available to him. The Supreme Court of Canada has provided guidance to trial judges when faced with this type of analysis. In R. v. Grant, 2009 SCC 32, it held that three factors are to be examined. First of all, the trial judge must determine the level of seriousness of the Charter—infringing state conduct. Secondly, the impact on the Charter-protected interests of the accused must be taken into account. Thirdly, there must be a determination of the level of society’s interest in the adjudication of the matter on its merits. The process is then completed by a weighing of these three factors.

[54] The Level of Seriousness of the Breach: The s. 8 breach was not egregious in the sense that there was any bad faith exercised by Constable McBain, however, it was none the less significant. Section 12(3) Cannabis Control Act does not permit the unlimited search powers that were exercised by the police in the present case. As the search was a warrantless search, it was incumbent on the Crown to provide justification for the manner in which it was conducted. The Crown has not done that.

[55] During submissions, Mr. Pelletier suggested that the breach was not serious as there was a lack of clarity as to the extent of the powers of the police under s. 12(3) Cannabis Control Act. With respect, I am of the view that any such lack of clarity would go towards only the issue of whether the officers were acting in good faith.

[56] Then there is the 12-minute breach of Mr. Houssein-Hassan’s s.10(b) Charter rights. The effect of this breach was mitigated to some extent by the provision by Mr. McBain early on in the interaction of a form of caution. However, this breach as well cannot be viewed as trivial: there was no reason in the circumstances for the delay and it went on for what was not a trivial period of time. I find that this too was a significant breach.

[57] The Impact on the Charter-protected Interests of the Accused: The starting point here is that there is a lesser expectation of privacy in an automobile than at one’s home or office (R. v. Belnavis, [1997] 3 S.C.R. 341, R. v. Wise, [1992] 1 S.C.R. 527). That being said, Mr. Houssein-Hassan still maintained privacy rights in that vehicle, rights that the police are required to respect. As the search in question cannot be justified under the s. 12(3) Cannabis Control Act powers, it was thus presumptively unreasonable. Despite the fact that it was conducted in good faith, it cannot be said to have had a merely trivial impact on the accused’s Charter-protected interests.

[58] I turn now to the breach of Mr. Houssein-Hassan’s s. 10(b) rights. As stated by the Supreme Court of Canada at paragraph 16 of R. v. Bartle, [1994] 3 S.C.R. 173, [1994] SCJ No. 74,

The purpose of the right to counsel guaranteed by s. 10(b) of the Charter is to provide detainees with an opportunity to be informed of their rights and obligations under the law and, most importantly, to obtain advice on how to exercise those rights and fulfil those obligations …. This opportunity is made available because, when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him- or herself. Accordingly, a person who is "detained" within the meaning of s. 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty …. Under s. 10(b), a detainee is entitled as of right to seek such legal advice "without delay" and upon request. As this Court suggested in Clarkson v. The Queen, [1986] 1 S.C.R. 383, the right to counsel protected by s. 10(b) is designed to ensure that … persons who are arrested or detained are treated fairly in the criminal process.

This was reiterated in R. v. Suberu, 2009 SCC 33, [2009] SCJ No. 33 at paragraph 41:

A situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. In order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase "without delay" must be interpreted as "immediately". If the s. 10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises.

Accordingly, this breach too was far from trivial.

[59] Society’s Interest in the Adjudication of the Matter on its Merits: Society has an interest in the adjudication on the merits of most of the cases that come before the courts. It cannot be gainsaid that the trafficking of drugs is a serious social ill. The pills seized from the vehicle would be reliable evidence. Moreover, the drugs that the Applicant seeks to have excluded from the trial are important if not essential to the Crown case. That being said, the Ontario Court of Appeal has remarked in R. v. McGuffie, 2016 ONCA 365 at para. 73 that

The seriousness of the charges to which the challenged evidence is relevant, does not speak for or against exclusion of the evidence, but rather can "cut both ways": Grant, at para. 84. On the one hand, if the evidence at stake is reliable and important to the Crown's case, the seriousness of the charge can be said to enhance society's interests in an adjudication on the merits. On the other hand, society's concerns that police misconduct not appear to be condoned by the courts, and that individual rights be taken seriously, come to the forefront when the consequences to those whose rights have been infringed are particularly serious: see Grant, at para. 84; R. v. Dhillon, 2010 ONCA 582, 260 C.C.C. (3d) 53, at para. 60.

[60] Balancing of the Three Factors: I must now determine whether, on the balance of probabilities, the admission of the evidence obtained by means of these Charter breaches would bring the administration of justice into disrepute. As explained by the Supreme Court of Canada in R. v. Beaver, 2022 SCC 54 at para. 117,

Section 24(2) of the Charter is not an automatic exclusionary rule precluding the admission of all unconstitutionally obtained evidence. Such evidence will only be excluded when the accused establishes that, having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute (see R. v. Collins, [1987] 1 S.C.R. 265, at p. 280; Tim, at para. 75). Balancing the relevant considerations under s. 24(2) is a qualitative determination that is not capable of mathematical precision (Grant, at paras. 86 and 140; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 36; Tim, at para. 98).

[61] The s. 8 breach was far from trivial. It was an unreasonable search of a vehicle within which the accused had a right of privacy albeit one that was lessened by the statutory power under the Cannabis Control Act. However, the search that was conducted far exceeded what was permissible pursuant to the statutory power and was therefore a substantial violation of Mr. Houssein-Hassan’s Charter-protected interests. The needless delay in providing the accused with his rights in a “situation of vulnerability relative to the state” was also a substantial breach of his rights. As one must note that the police found the drugs in question before they breached s. 10(b) Charter, there is the question of whether there is a remedy available under s. 24(2) Charter for that breach; the defence has not raised s. 24(1) Charter as a source of a possible remedy. However, as there is both a strong temporal and contextual connection between the breach and the evidence, I find that a s. 24(2) exclusionary remedy is available here for the s. 10(b) breach as well (see, R. v. Pino, 2016 ONCA 389).

[62] I find that the societal interest in seeing this matter being tried on its merits does not outweigh the seriousness and impact of the two breaches. The presence of these two breaches requires that the Court disassociate itself from the prosecution to avoid bringing the administration of justice into disrepute. I am expressly here not deciding whether either one of these breaches alone would have led to the same result. The 358 pills of clonazolam will be excluded from the trial.

Conclusions

[63] As the drugs have been excluded, the Crown is not in a position to prove that an illegal substance was in fact possessed for any reason. Moreover, absent the Crown being able to prove the possession of illegal drugs, I am left with a reasonable doubt as to whether the Crown has proven that the seized money was proceeds of crime based on the remaining evidence.

[64] Both charges against Mr. Houssein-Hassan are dismissed.

Released: June 11, 2024 Signed: Justice Berg

[^1]: Constitutional challenges to s. 12(3) Cannabis Control Act were predicated on a different basis and rejected by my colleague Brunet J. in R. v. Nzita, [2020] O.J. No. 3109 (OCJ) at paragraphs 13, 14, and 28. [^2]: This point was not raised at trial.