ONTARIO COURT OF JUSTICE
DATE: 2025 04 17
COURT FILE No.: Peel 998-24-31101844, 999-24-31100149
BETWEEN:
HIS MAJESTY THE KING
— AND —
HENOCK HABTE
Before Justice A.R. Mackay
Heard on October 7, 8, 9, 10, 2024
Ruling on Charter Application - Oral reasons released on February 24, 2025
Written reasons released on April 17, 2025
Nicholas Cooper ...................................................... counsel for the Crown, Respondent
Nadia Chaabane ............................ counsel for the accused Henock Habte, Applicant
A.R. MACKAY J.:
Overview
[1] On August 3, 2023, police observed the applicant, Mr. Habte parked in the parking lot of a small plaza near the border of Brampton and Vaughan. Within two minutes of police having made this observation, Mr. Habte was detained. Shortly thereafter he was subject to searches of his person and of his vehicle. The initial search conducted by police revealed baggies, a scale, and a large sum of money. A more thorough search of his vehicle revealed a firearm and a large quantity of drugs. The drugs included fentanyl, cocaine, methamphetamine, and marijuana. Mr. Habte was charged with several offences related to the firearm, three counts of possession for the purpose of trafficking and possession of oxycodone.
[2] Mr. Habte alleges that the police violated his ss. 9, 8, 10(a), 10(b), and 7 Charter rights and seeks the exclusion of all evidence that was seized from his vehicle and his person pursuant to s. 24(2) of the Charter. Ms. Chaabane, Mr. Habte’s counsel, alleges that the police investigation was based on racial profiling. This allegation was not included in her materials and was raised only in submissions. The Crown submits that the police committed a technical s. 10(b) breach which resulted in only a short delay in the applicant receiving his rights to counsel. The Crown submits the police otherwise conducted themselves appropriately and did not commit any other Charter breaches. Crown Counsel Mr. Cooper submits that because the applicant did not raise the issue of racial profiling until submissions, the Crown did not have an opportunity to explore this issue in his examination of police witnesses, and as a result, the Court should not entertain this allegation.
Facts
[3] The following are the relevant facts.
[4] On the night of the arrest, Cst. Murad was on ‘proactive enforcement,’ driving an unmarked Dodge Charger police vehicle and was accompanied by a civilian police dispatcher riding along as an observer. At that time, Cst. Murad had been on the police force for about three years.
[5] Cst. Murad decided to attend a plaza situated on the York and Peel borders to make sure there were no trespassers or illegal activity taking place. The plaza contained a 24-hour gym, a grocery store, a Shoppers Drug Mart, a barber shop, and a Pizza Pizza, which was located at the opposite end from where Cst. Murad entered the parking lot. Cst. Murad has made many arrests in this plaza, including for offences such as domestic partner violence, open cannabis and open liquor in a vehicle, drugs, and cause disturbance. He visits this plaza most nights he is on duty.
[6] When Cst. Murad entered the plaza and turned the corner around the gym, he saw the applicant’s vehicle, a 2017 white Nissan. It was parked in front of a business that was closed for the day. When Cst. Murad first saw the applicant’s vehicle it was about 5 to 15 meters away. No other cars were around it. Mr. Habte had reversed parked into the spot. Cst. Murad could tell that the vehicle’s engine was on because he could see the red lights from the rear of the vehicle in the reflection of the glass of a nail salon.
[7] Cst. Murad said that people attending the gym typically park close to it. He noted that, on the night of the arrest, several parking spots in front of the gym were empty. The applicant had parked on the north side of the plaza and the gym was on the west side. Cst. Murad drove towards the vehicle at about 5 to 10 km/hr. He did not believe the windows were tinted. It was dark around the vehicle. Cst. Murad said the applicant’s vehicle caught his attention because it had reversed into the parking spot where it was located. He ran a query on the license plate as he drove towards the vehicle. He determined that the owner was unlicensed. At this point, he and the appellant made eye contact. However, Cst. Murad said he did not get a clear look at Mr. Habte’s face but noted the male in the driver’s seat as being “darker skinned”. Cst. Murad observed the applicant start reaching under his seat three or four times. He saw his back lean forward, his arms fumbling and his forehead almost touching the steering wheel.
[8] Cst. Murad said he noticed from the reflection in the nail salon window behind the applicant that he had shifted his gear to drive, and that he could then see the vehicle accelerate slightly. Cst. Murad then quickly moved his police cruiser in front of the applicant’s vehicle and boxed it in. He did so because he thought the applicant was leaving. Cst. Murad admits that he boxed the applicant in deliberately.
[9] Based on Mr. Habte’s actions, Cst. Murad “felt” that he was hiding a weapon, drugs, or other contraband. The stated purpose of his investigation was to see if any of these things were true and whether the applicant was impaired. He testified that once Mr. Habte began to drive his vehicle, he could investigate him under the Highway Traffic Act (HTA).[^1] Cst. Murad seemed to have a myriad of different reasons to stop the applicant.
[10] Cst. Murad first testified that he used his vehicle’s emergency lights once Mr. Habte’s vehicle shifted forward. The body-worn camera footage reveals that Mr. Habte’s vehicle was still fully in the parking spot when he activated his emergency lights, and that the applicant never had the opportunity to move his vehicle. Rather, the officer acted upon seeing the brake lights go off.
[11] After boxing in the applicant’s vehicle, Cst. Murad exited his cruiser and told the applicant to show him his hands while approaching the applicant’s vehicle. He told the applicant to show him his hands because he did not know what Mr. Habte was fumbling with under his seat. The applicant was compliant. Cst. Murad then tried to open the driver’s door. When he realized it was locked, he ordered the applicant to unlock it. Mr. Habte complied and Cst. Murad opened the door. Cst. Murad told him to step out of his vehicle and engaged the applicant in conversation.
[12] The body-worn camera footage reveals the aggressive nature in which the applicant was detained. Cst. Murad immediately drove up to the applicant’s vehicle, blocked him in, got out of his vehicle and walked towards Mr. Habte while ordering him to show him his hands. He can be heard saying the following: “Show me your hands man,” repeated, and then “keep your hands up… hands up” before he even speaks to Mr. Habte or gets close to him. Cst. Murad then walked to the driver’s side of the applicant’s vehicle, told him to unlock the car, and opened the driver’s door.
[13] Cst. Murad testified he immediately smelt a heavy odour of cannabis. When he looked in the vehicle, he saw a plastic bag on the passenger seat, and he believed it contained cannabis. He did not ask the applicant what was in the bag. He told the applicant to exit the vehicle and immediately asked him if he had anything in his pockets that would hurt him. The applicant responded that he had a pocketknife and then Cst. Murad patted him down for officer safety. When the Crown asked him why he did this, Cst. Murad said it was because he believed that the applicant was hiding something. In addition, he stated that he always does a pat down to make sure that he is safe.
[14] Cst. Murad asked Mr. Habte what he was doing in Brampton given he was from Toronto. The applicant replied that he decided to take a drive. Cst. Murad asked Mr. Habte these questions because it was 12:30 at night. He also stated that during a pat down search he likes to have a conversation with the individual because if they were to move suddenly, he would hear it in their voice.
[15] Cst. Murad told the applicant he had open cannabis in his vehicle. However, he did not give Mr. Habte a chance to reply, nor did he caution him. Cst. Murad testified that this was a mistake. He stated that his main concerns at that juncture were that the applicant was hiding something and that he had a knife in his pocket. While this is illegal, it is commonplace. He was never charged for possession of the knife. He did not read Mr. Habte his rights to counsel at this point. Cst. Murad then asked the applicant if he had any more cannabis in the vehicle and had him wait near the rear of his vehicle.
[16] Cst. Murad returned to the driver’s side door of the applicant’s vehicle, which the officer had left open earlier, and saw a scale and a large amount of baggies inside the door pocket. He estimated there to be around 100 rolled-up baggies. From the body-worn camera footage, the package of baggies was small enough to fit inside the palm of a hand. Cst. Murad stated these items were in plain view once the applicant’s car door was open. He then proceeded to search under the driver’s seat and found a large amount of cash. What is of note is that he never picked up the bag containing the tobacco-like substance which he believed and alleged to be marijuana. It in fact turned out to be a tobacco substance and not marijuana. He never seemed interested in investigating the applicant for contravening the Cannabis Control Act. The cash was rolled up in three or four bundles and looked to be about 40 to 50 thousand dollars. The actual amount was $20,809.00.[^2] After finding the bundles of cash, Cst. Murad arrested Mr. Habte for possession of drugs for the purpose of trafficking. He believed he had grounds for the arrest based on the paraphernalia and the large sum of money. After the arrest, he continued his search of the applicant. He asked for another sergeant to attend and then put the applicant in the rear of his cruiser.
[17] Mr. Habte was arrested at 12:39 am. He was placed in Cst. Murad’s cruiser at 12:40:47 a.m. At 12:44 a.m., Cst. Murad obtained the applicant’s name and date of birth and was about to give Mr. Habte his rights to counsel. However, Cst. Kandola called him over and he exited his cruiser.
[18] Cst. Kandola was the second officer to attend the scene. He arrived at approximately 12:40 a.m., at which time he took over the search of the applicant’s vehicle.
[19] Within a minute or two of arriving, Cst. Kandola located a firearm in the vehicle and advised Cst. Murad. Prior to giving the applicant his rights to counsel, Cst. Murad left his vehicle and went over to look at the firearm at 12:46:20 a.m. Within a few minutes, Cst. Murad returned to his cruiser and gave the applicant rights to counsel for possession of the firearm and possession for the purpose. The applicant’s responses to Cst. Murad’s questions of whether he understands his rights, and whether he wanted to contact a lawyer, are inaudible in the body-worn camera footage.
[20] Cst. Murad then exits his cruiser, leaving the applicant inside. The footage shows him muting his body-worn camera while he speaks to other officers who have since arrived at the scene. He then returns to his vehicle and drives Mr. Habte to the police station.
[21] Much later, another officer advises that a further search of the vehicle resulted in police finding large amounts of methamphetamine, fentanyl, cocaine, some pills and marijuana. Cst. Murad gave the applicant his rights to counsel for the charges related to these drugs at 1:21 am.
[22] Turning now to assess whether the applicant’s Charter rights were breached, commencing with section 9.
Was there a breach of the Applicant’s Charter Rights?
Section 9
[23] Section 9 of the Charter affords everyone the constitutionally enshrined right not to be arbitrarily detained or imprisoned.
[24] Section 9's prohibition of "arbitrary detention" is meant to protect individual liberty against unjustified state interference. Its protections limit the state's ability to impose intimidating and coercive pressure on citizens without adequate justification.[^3]
[25] An analysis of whether an applicant’s s. 9 Charter right has been breached proceeds in two stages. The first stage consists of an inquiry into whether the applicant was detained at all. If it is found that a detention did occur, the second stage inquires into whether that detention was arbitrary.[^4]
Was the Applicant Detained?
[26] The Supreme Court of Canada has adopted the general principle that a person is detained where he or she submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist.[^5] This includes not only physical constraint, but also psychological constraint. Detention will be found where a reasonable person in the subject's position would feel compelled to comply with a restrictive or coercive demand.[^6] The Court in Grant, Suberu, and Le confirmed that determining whether an individual has been psychologically detained is an objective test.[^7]
[27] Section 9 of the Charter does not dictate that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Not every police encounter, even with a suspect, triggers an individual's right to counsel under s. 10(b).[^8]
[28] In Grant, the Court summarized the factors that may assist in determining whether a reasonable person in the individual's circumstances would conclude that they have been deprived by the police of the liberty of choice:
(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or singling out the individual for focussed investigation.
(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others and the duration of the encounter.
(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.[^9]
[29] Applying these legal principles, it is my view there can be no question that there was a psychological and physical detention in this case. The facts in this case make it clear that Mr. Habte was detained the moment he was boxed in by Cst. Murad’s police cruiser, ordered to keep his hands up and to get out of his vehicle. A reasonable person in the applicant’s position “would feel so obligated" to comply with these demands and would "conclude that he or she was not free to go."[^10]
[30] Given it was clear that the applicant was detained, the second stage of the section 9 Charter analysis inquires into whether the detention was arbitrary.[^11]
Was the Detention Arbitrary?
[31] For a detention to be reasonable it must be “authorized by law; the authorizing law itself must not be arbitrary; and the manner in which the detention is carried out must be reasonable.”[^12]
[32] The grounds for the initial detention of the applicant, as submitted by the Crown are as follows:
(i) Cst. Murad had run a query of the applicant’s license plate which revealed that the owner was unlicensed, and that PC Murad therefore had “reasonable grounds to detain the applicant to determine whether he was driving without a license.”
(ii) Cst. Murad, upon seeing the applicant idling his car “at night in a plaza the businesses of which were closed,” had grounds to detain and investigate the applicant for trespassing.
(iii) Cst. Murad observed the applicant shuffle around after he noticed the presence of Cst. Murad’s vehicle. Given Cst. Murad’s experience investigating firearm and drug offences “in that area” he had reasonable grounds to suspect the applicant was involved in a weapon or drug offence.
[33] For the reasons set out below, I find that Cst. Murad did not have the reasonable suspicion required to detain the applicant for investigative purposes.
Investigative Detention
[34] The police may detain a person for investigative purposes if they have reasonable grounds to suspect that the person is connected to particular criminal activity and if the detention is reasonably necessary in the circumstances.[^13] An individual may be detained for investigative purposes if the police are acting in the exercise of their duty and the detention is justified as reasonably necessary in the totality of the circumstances.[^14] As the Supreme Court explained in Mann:
The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer's reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer's duty, the liberty interfered with, and the nature and extent of that interference [emphasis added].[^15]
[35] The police cannot use investigative detention as an excuse for holding suspects while the police search for evidence that might justify the arrest of the suspect. Nor does investigative detention mean that the police can detain suspects indefinitely while they carry out their investigation.[^16]
[36] In this case, Cst. Murad was not justified in detaining the applicant to question him about where he was going, why he was in a parking lot and whether he had drugs in his vehicle. There was nothing the applicant was doing that could have provided Cst. Murad with grounds to believe he was involved in criminal activity. Being parked in a parking lot is not a crime, particularly when a 24-hour gym and a pizza place which shared the parking lot were still open. Where Mr. Habte parked was only a short walk to the gym. Even if Cst. Murad saw the applicant bobbing his head as if he was doing something below the steering wheel or under his seat, this is not a crime. He could have dropped something and was trying to retrieve it; he could have been changing his shoes or adjusting the position of his seat.
[37] Further, Cst. Murad had no grounds to investigate Mr. Habte under the Trespass to Property Act. He simply saw the applicant’s vehicle parked with its engine running and within a minute’s time spent observing the vehicle, saw the applicant put it into gear. It is not the case that Cst. Murad was responding to a complaint of a suspicious vehicle or that he watched the vehicle stopped for a prolonged period of time.
[38] While it was submitted that Cst. Murad ran the applicant’s plate as he was approaching him and discovered that the owner of the vehicle was unlicensed, this was not something Cst. Murad was concerned about. Upon detaining the applicant by boxing him into the parking spot, PC Murad took no further investigative action regarding the suspended license. He made some queries which are arguably related to the offence of trespassing as well as some queries regarding ownership of the vehicle, but this was after he had ordered the applicant to exit his vehicle and while he was conducting a search of the applicant’s person. Cst. Murad testified that the reason why he was speaking with the applicant during the search was to be able to observe fluctuations in the voice which could indicate movement. I do not accept that Cst. Murad was making small talk; at this junction he was in fact interrogating the applicant.
[39] The proposition that Cst. Murad possessed three distinct grounds on which he could lawfully detain Mr. Habte: (1) his “feeling” that the applicant was hiding something; (2) driving with a suspended license; and (3) for trespassing, does not concord with his responses to Mr. Habte asking him why he was being detained:
Umm, you’re looking a little bit sketch, okay? Umm, I pulled up to you, you tried to leave the minute I approached you.. I don’t know, I, I, know I’m driving in an unmarked, but I mean, yeah and when you tried to drive away when we hadn’t even had a conversation first, kinda throws me off too, right? So.[^17]
[40] When Mr. Habte asked again, after he was searched why he was being detained, Cst. Murad replied: “Again like, I was approaching you, you were about to drive off, that’s why I pulled you over and then umm I uhh approached your car, I saw all the Cannabis inside the car, and it reeks like weed in there. I don’t know how long ago you smoked. You don’t seem too impaired to me, so I’m not concerned about you driving away…”[^18]
[41] Officers have wide powers to police communities. However, the conduct of Cst. Murad exceeded the norms of community policing. Cst. Murad had no legal authority to box Mr. Habte into the parking spot or to order him to hold his hands up. Cst. Murad was not called to provide general assistance, maintain order or to respond to unfolding events. There was no specific complaint from a third party about trespassing or a suspicious vehicle.[^19] He never told Mr. Habte, that I am investigating you because I think when you saw my vehicle (which was unmarked) that you were hiding something under your seat. If Cst. Murad was investigating the applicant for trespassing, as far as he knew the applicant was only parked at the mall for less than a minute before he approached him. In addition, if Cst. Murad was concerned with any purported trespassing, seeing the applicant prepare to leave should have been the end of his investigation.
[42] Considering the circumstances in this case there was nothing that could give rise to reasonable suspicion that Mr. Habte was engaged in any criminal activity, and I conclude therefore, that the detention was arbitrary; Mr. Habte’s s. 9 Charter right was breached. Cst. Murad never expressly communicated to Mr. Habte why he blocked him in. The Supreme Court held in Le that a suspect's presence in a so-called “high crime area” is not by itself a basis for detention.[^20]
[43] R. v. Thompson[^21] is particularly relevant to the case at bar. In Thompson, the accused was sitting in a parked but running motor vehicle in a parking lot at night. Two police officers had driven to the parking lot after receiving an anonymous tip about drug dealing that was taking place out of a car. They found the accused's vehicle parked with its engine running. Although police had no basis to believe the car's occupants were engaged in criminal activity, they parked two police cruisers directly behind it, boxing in the accused's vehicle so that he could not drive away. The officers approached the vehicle from both sides and one officer smelled burnt marijuana from the open driver-side window. The accused was arrested for possession of marijuana and when the car was searched, cash and other drugs were found. Jamal J. found that the accused had been arbitrarily detained when the police cruisers were used to block his vehicle's path.
[44] The facts in R. v. Le are not dissimilar to the case at bar. In Le the police walked into a residential complex and then into a backyard without grounds and without permission. Several men were in the yard socializing. The Supreme Court found that if there was some concern about trespassing that the police should have made inquiries by remaining on their side of the fence. The Court found the police had no communicated purpose and immediately engaged with the occupants in a manner that demonstrated that they were not free to leave.[^22] In the case before me, Cst. Murad should have parked beside the applicant and made inquires in this manner.
[45] Turning now to determine whether there was a breach of the applicant’s s. 8 Charter right.
Section 8 Search
[46] Section 8 of the Charter declares: “Everyone has the right to be secure against unreasonable search or seizure.”
[47] The constitutional protection in s. 8 rests on the fundamental belief that privacy is an essential precondition to individual liberty and security of the person. Any law authorizing an intrusion must be reasonable and the manner in which the intrusion is effected must be reasonable.[^23]
[48] In some circumstances, police can conduct safety searches as an incident of the exercise of their duty to investigate. Where a search is reasonably necessary to eliminate an imminent threat to the safety of the public or the police, the police have the power to conduct a search to ensure they are safe.[^24]
[49] A warrantless search is presumptively unreasonable and contrary to s. 8 of the Charter. In the absence of a warrant, the Crown must establish on a balance of probabilities that the search was authorized by law, that the law itself is reasonable and that the manner in which the search was carried out is reasonable.[^25]
[50] Section 12 of the Cannabis Control Act (CCA)[^26] prohibits the transportation of cannabis within a vehicle unless it is in its original packaging, which has not been opened, or is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle. Subsection 12(3) authorizes a police officer who has reasonable grounds to believe that cannabis is being contained in a vehicle contrary to s. 12(1), to enter and search, at any time, without a warrant, the vehicle, and search any occupants of the vehicle.
[51] Based on the testimony of Cst. Murad and Cst. Kandola and the body-worn camera footage, I conclude that he was not interested in finding marijuana. In cross examination he said he wanted to look under Mr. Habte’s seat. When Cst. Murad first opened the driver’s side door of Mr. Habte’s vehicle, he pointed to a bag on the passenger seat and said, “you’ve got a bunch of cannabis there”.[^27] The substance was actually tobacco. Cst. Murad took no investigative steps to confirm if the substance was cannabis. Nor did he give the applicant the opportunity to respond.
[52] Cst. Murad said he could not tell if what he smelled was burnt or fresh marijuana. Cst. Kandola stated in cross-examination that he could not recall whether he detected any smell of cannabis in the vehicle and admitted he made no mention in his police notes of having detected any smell of cannabis although he conceded this would have been an important observation. Further, the small amount of cannabis that was located in the vehicle was found sealed inside a zip lock bag which was inside another bag located on the floor of the front passenger area. The above is inconsistent with Cst. Murad’s statements to the applicant at the scene that it “reek[ed] like weed” in the applicant’s vehicle. It is also inconsistent with his testimony that he smelled a heavy odour of cannabis once the applicant rolled down his window. The body-worn camera footage shows that the applicant did not roll down the window, he was complying with Cst. Murad’s order to keep his hands in the air. It was Cst. Murad who opened the driver’s door after instructing the applicant to unlock it. I conclude therefore, that he did not have grounds to search under the CCA as he did not have reasonable grounds to believe that cannabis was being stored in the vehicle contrary to s. 12(1) of the CCA.[^28]
Plain View
[53] Another possible argument for the police to have grounds to search the vehicle is that items thought to be connected to trafficking were found in plain view.
[54] The plain view doctrine, which exists at common law and has been codified in s. 489 of the Criminal Code provides authority for a peace officer to seize evidence of a crime, which the officer observes in the course of the execution of his or her lawful duties. The following four conditions must be satisfied before the doctrine applies:
(i) the police officer must be lawfully in the place where the search is being conducted;
(ii) the nature of the evidence must be immediately apparent as constituting a criminal offence;
(iii) the evidence must have been discovered inadvertently; and
(iv) the plain view doctrine confers a seizure power not a search power; it is limited to those items that are visible and does not permit an exploratory search to find other evidence of other crimes.[^29]
Evidence immediately apparent, and discovery inadvertent?
[55] The final Jones condition is that the plain view doctrine confers a seizure power and not a search power. Even where an officer sees evidence in plain view that does not, on its own, justify a search to find evidence of other crimes.[^30] Finding the baggies and the scale did not give Cst. Murad the authority to search under the applicant’s driver's seat.
[56] The baggies and scale were not immediately apparent and discovered inadvertently. Cst. Murad had to shine his flashlight down the driver’s door, into the lower door pocket. Furthermore, it was Cst. Murad who opened the applicant’s door and ordered him to step out of the car in the first place.
[57] In my view none of the four requirements for the application of the plain view doctrine have been established in this case. First, the officer had no authority to search the vehicle. I find that Cst. Murad used s. 12(3) of the CCA as a ruse to search Mr. Habte and his vehicle. I find this to be the case given the several reasons Cst. Murad provided for detaining Mr. Habte, and more importantly how he admitted in cross examination that his intention was to search under Mr. Habte’s driver’s seat for drugs, guns, or other contraband prior to speaking to him. In addition, when Cst. Murad had the applicant outside his vehicle he stated on the body-worn camera footage that he was not worried about Mr. Habte being impaired.
[58] The Crown submits that the initial search of Mr. Habte was justified pursuant to the Cannabis Control Act. However, in the case before me the alleged CCA violation was used as pretext to search. The substance the officer saw next to Mr. Habte was not marijuana. The reason I conclude that the CCA search was not genuine is because Cst. Murad provided a number of different answers with respect to his grounds to detain and investigate the applicant. These grounds included that he was investigating the applicant for trespassing; that when he ran the applicant's plate, he saw that the registered owner was unlicensed; his prior experiences making arrests for possession of drugs in this parking lot; and that he believed the applicant was attempting to hide something under his seat.
[59] The most important ground for Cst. Murad, however, was that he saw the applicant appear to be doing something under his steering wheel or his seat. Cst. Murad admitted without hesitation that he had made up his mind before he incorrectly concluded the bag of tobacco was marijuana, that he was going to search the applicant’s vehicle and that he wanted to look under the applicant’s seat. The fact that he provided various reasons to detain and investigate the applicant affected his credibility. In addition, the way he described the positioning of the applicant’s vehicle during examination-in-chief made it sound like the applicant’s vehicle was nowhere near the gym which was open at the time. However, Mr. Habte was parked just a short walk from the gym. He also led the court to believe that Mr. Habte was parked when no other vehicles were around. On the body-camera video four vehicles can be seen parked in the lot, and this was only a small section captured by the camera. When this was pointed out to Cst. Murad, he said that the other cars were not in his direct view.
[60] Cst. Murad agreed that there would be no way he could see what the applicant was doing in his car because he could not see below Mr. Habte’s chest, yet he wrote in his notes that the applicant was actively hiding things under his seat. Cst. Murad never mentioned that he smelt marijuana when he first had the applicant exit his vehicle, he showed absolutely no interest in checking to see if the bag on his driver’s seat contained marijuana, instead he went right to searching his vehicle.
[61] I do not accept that the officer smelt marijuana when he opened the door. Instead, he pointed to the bag of tobacco and said, “I see you have marijuana there”. Admittedly from a distance, the tobacco could have appeared to look like marijuana. When the body-camera video was shown to the court on a zoom screen, from a distance it appeared to be marijuana. Officer Kandola looked at the substance and concluded it to be tobacco. Later when being asked again by the applicant as to why the officer detained him, Cst. Murad said for the first time that it smelt of marijuana in his vehicle. It appeared that the officer was speaking for the camera as he realized he did not have grounds to detain and search the applicant.
[62] Further, in the process of searching the applicant’s person, Cst. Murad asked him how much marijuana he had in the car and the applicant replied about three grams. Cst. Murad never asked him how it was stored or where it was located. Cannabis can be stored if it is in its original packaging or is packed in baggage that is fastened closed and not readily available to anyone in the vehicle. Instead, Cst. Murad went right to searching the vehicle in other places and never once picked up the bag of tobacco on the passenger seat. The caselaw holds that a smell of marijuana alone is not enough for reasonable grounds to believe that an individual is in possession of marijuana.[^31]
[63] In addition to the search of his vehicle, Mr. Habte was subject to a “pat down” search by Cst. Murad. The waistband on his pants was pulled so Cst. Murad could take a quick look and his hoodie was lifted showing his bare stomach. Cst. Murad then took out the applicant’s wallet and then thumbed through the bills inside it.
[64] Certainly, in some cases such a search of a person could be justified where the officer has a reasonable suspicion to believe that an accused may have a weapon on him as was the case in McGuffie.[^32] In that case, the Court of Appeal found that an officer was justified in conducting a pat down search of the appellant because he had sufficient grounds to believe there was an imminent threat to his safety based upon receiving evidence from an employee at a bar that the defendant was seen handling a firearm. In the case at bar, when asked by Cst. Murad prior to the search if he had anything on him that could hurt the officer, Mr. Habte replied that he had a small pocketknife.
[65] The pat down search after ordering the applicant to exit his vehicle was not reasonable as the officer had no reason to detain Mr. Habte for investigative purposes or believe that he was a threat to himself or to the public.
[66] Both the objective and subjective elements of reasonable grounds were absent in this case. The searches were unlawful and unreasonable within section 8 of the Charter. I conclude therefore that Mr. Habte’s s. 8 rights were breached.
[67] Turning now to an analysis of whether the applicant’s ss. 10(a) and 10(b) Charter rights were breached.
Section 10(a)
[68] Section 10(a) of the Charter provides that everyone has the right on arrest or detention to be informed promptly of the reasons therefor. A person must be advised of the basis for their detention immediately under s. 10(a).[^33]
[69] As discussed above, Cst. Murad never told the applicant that he was being investigated under the CCA, and that this was the reason he was being detained, despite being asked twice by Mr. Habte why he was being stopped. I find that his 10(a) right was violated.
Section 10(b)
[70] Section 10(b) of the Charter reads: “Everyone has the right on arrest or detention [...] (b) to retain and instruct counsel without delay and to be informed of that right.”
[71] Section 10(b) creates the right to retain and instruct counsel without delay, and the right to be informed of that right without delay. If a detained person, having been advised of his right to counsel, chooses to exercise that right, the police must provide the detained person with a reasonable opportunity to exercise that right and must refrain from eliciting incriminatory evidence from the detained person until he has had a reasonable opportunity to consult with counsel.[^34]
[72] In Suberu, the Supreme Court held that s. 10(b) mandates that an individual be advised of his right to retain and instruct counsel immediately upon being detained.[^35] As described in Thompson, supra, the test is not "as soon as practicable".
[73] In Suberu, at para. 40, the court described the rationale for the rights guaranteed by s. 10(b):
[T]he purpose of s. 10(b) is to ensure that individuals know of their right to counsel, and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant to assist detainees to regain their liberty, and guard against the risk of involuntary self-incrimination.
[74] The right to counsel is also important in providing "reassurance" and advice on such questions as how long the detention is apt to last, and what can or should be done to regain liberty.[^36] As Doherty J.A. explained in R. v. Rover:
The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.[^37]
[75] There are exceptions to the immediacy requirement for concerns regarding public safety.[^38]
[76] In this case there were no safety concerns. The applicant was handcuffed in the back of the police vehicle. There was no one else in Mr. Habte’s vehicle. Rather, Cst. Murad chose to disregard Mr. Habte’s rights because he could not wait to continue to search his vehicle. In addition, he wanted to speak with the civilian ride along and have her watch while he searched the applicant’s vehicle. Even when a second officer arrived, ready and willing to search the vehicle, Mr. Murad continued for another minute to search the applicant’s vehicle.
A Cannabis Control Act (CCA) Search
[77] There are a number of cases which have held that in a CCA investigation, s. 10(b) Charter rights can be suspended.[^39] However, as I found earlier in my reasons, this was not a CCA investigation but rather a police officer simply wanting to search the applicant and his vehicle on a hunch or because he thought the applicant was acting “sketch,” in the Constable’s words, with no reasonable basis for this opinion.
[78] I find that there was a clear violation of Mr. Habte’s s. 10(b) Charter right. There was no justifiable excuse to arrest Mr. Habte on serious criminal charges and leave him sitting in the back of the police cruiser because Cst. Murad wanted to continue his search. The Applicant was under the control of the police, subject to an unconstitutional detention and to unreasonable searches which yielded incriminatory evidence. He was in serious legal jeopardy and needed legal advice. He was constitutionally entitled to it, without delay.[^40]
[79] Looking at the body-camera footage the primary caution was given at 12:40 a.m. and his rights to counsel began at 12:47 a.m.
Section 10(b) Implementational
[80] It is not clear from the audio of the body-worn camera footage whether the applicant wished to avail himself of his right to speak to counsel when finally asked by the officer.
[81] One of the s. 10(b) implementational duties imposed on police is “to refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach a lawyer.”[^41]
[82] In R. v. Palmer, the court held that making “small talk” with a detainee without first providing s. 10(b) rights was a fairly serious breach of those rights.[^42] Cst. Murad made what appeared to be “small talk” with the applicant before and after his search of the applicant’s person and prior to the provision of his rights to counsel. He told Mr. Habte that he knew he was from Toronto, and asked him, among other things, what he was doing in Brampton and if he had anything in his car that would hurt him. As noted above this was not “small talk” but an interrogation.
Section 7 Charter Breach - Muting of the Body-Worn Camera Video
[83] Counsel for Mr. Habte alleges that his s. 7 Charter right was breached as a result of the officers’ deliberate muting of their body-worn cameras when interacting with one another and not within ear shot of the applicant.
[84] Section 7 of the Charter provides that "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."
[85] The principles of fundamental justice encompass many principles, including the important right to make full answer and defence. This right includes a duty on the Crown to make full disclosure of evidence in their possession or control and a duty on police to preserve relevant material in their possession or control so that the Crown can disclose it. Where an applicant shows disclosable evidence has been lost, this violates s. 7 unless the Crown can explain the loss and show it did not occur through unacceptable negligence (the loss may also amount to abuse of process, but this is not necessary to show a violation of s. 7).[^43]
[86] There is no common law or constitutional right to have the state create evidence or record what is relevant in a particular way.[^44] While the courts have acknowledged that there are many significant benefits to the recording of certain proceedings in police investigations, such as the interrogation of suspects, they have declined to mandate that it be done.[^45] However, where a failure to record occurs in circumstances where police interrogate a suspect, having the recording equipment readily available, it will invariably render the unrecorded interrogation suspicious.[^46]
[87] An accused does not have a freestanding constitutional right to an adequate investigation of the charges against him or her. Inadequacies in an investigation may lead to the ultimate failure of the prosecution, to a specific breach of a Charter right or to a civil remedy. Those inadequacies do not, however, in-and-of-themselves constitute a denial of the right to make full answer and defence. An accused also does not have a constitutional right to direct the conduct of the criminal investigation of which he or she is the target.[^47]
[88] There is no constitutional requirement for the police to use a body-worn camera.[^48] A failure of police to record conversations with each other, even in situations where it is deliberate and selective, without more, does not violate s. 7 of the Charter.[^49]
[89] There must be a link to the right to make full answer and defence in order to engage section 7. That link is not established here because no evidence was lost.
[90] In conclusion I do not find that there was a s. 7 Charter violation.
Racial Profiling
[91] Mr. Habte is a racialized young man. He was approximately 24 years old at the time of his arrest. The manner in which Cst. Murad approached him, ordering Mr. Habte to put his hands up, and the speed in which he detained and searched Mr. Habte provides some support that racial profiling was a factor here. The officer had no grounds whatsoever to stop, investigate and search Mr. Habte. Cst. Murad testified that he noticed when he first drove towards Mr. Habte that he is dark skinned. Simply because the applicant put his car in gear without moving his vehicle out of his parking spot, Cst. Murad believed that the applicant was “acting sketch”.
[92] However, the allegation of racial profiling was not raised in the applicant’s factum or explored in the examination of the witnesses. A racial profiling claim is rarely proven by direct evidence, it is often done by inference drawn from circumstantial evidence.[^50] Still, absent a more detailed account of the allegation of racial profiling in this case and without the corresponding opportunity for the Crown and witnesses to respond to such allegations, I do not have a proper record on which to conclude one way or another whether racial profiling was at play in the conduct under scrutiny in this application.
24(2) Analysis
[93] Section 24(2) of the Charter provides that, where evidence was obtained in a manner that breached a right guaranteed by the Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, its admission would bring the administration of justice into disrepute.
Obtained in a Manner
[94] The threshold stage of the s. 24(2) analysis consists of a determination of whether the impugned evidence was “obtained in a manner” that breached the applicant’s Charter rights.
[95] Given my findings that the applicant’s rights under sections 9, 8 and 10 of the Charter were breached by the police, I must now determine whether the evidence was obtained in a manner sufficiently connected to those breaches.
[96] Evidence will be “obtained in a manner” that infringed a Charter right if, “upon review of the entire course of events, the breach and the obtaining of the evidence can be said to be a part of the same transaction or course of conduct.”[^51]
[97] A causal connection between a breach and the evidence is not required.[^52] The connection can be causal, temporal, contextual or a combination of the three.[^53] A connection that is remote or tenuous will not trigger s. 24(2). There is “no hard and fast rule for determining when evidence obtained following the infringement of a Charter right becomes too remote.”[^54]
[98] Based on an examination of the chain of events giving rise to this application, it is clear that the impugned evidence was obtained in a manner that breached the applicant’s ss. 9, 8 and 10 Charter rights. The evidence is connected contextually to the s. 10 breaches, and causally to the s. 9 breach and the s. 8 breaches.
Would Admission of the Evidence Bring the Administration of Justice into Disrepute?
[99] The next question that must be answered by courts in an application for the exclusion of evidence under s. 24(2) is not whether the evidence should be excluded, but rather: “whether the administration of justice would be brought into disrepute by its admission.”[^55] If admission of the evidence would bring the administration of justice into disrepute, then s. 24(2) of the Charter requires that the evidence be excluded.
[100] In Grant, the Supreme Court of Canada set out the analytical framework to be used in determining whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute. This framework consists of three lines of inquiry: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach(es) on the Charter-protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits. The court must then “balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute”.[^56]
Seriousness of the Charter-Infringing State Conduct
[101] Under this line of inquiry, the court must assess whether admitting the evidence would convey to the public the message that the courts condone the Charter-infringing state conduct at issue. This is supported by the idea that courts, as responsible for the administration of justice, should distance themselves with state conduct that is not Charter compliant.
[102] In my view, the violations of the applicant's constitutional rights in this case were very serious. Cst. Murad used the pretext of searching the vehicle for illegally transported cannabis under the Cannabis Control Act to launch into a drug and or gun investigation without any regard to the ss. 8, 9 or ss. 10(a) and (b) rights of the applicant.
[103] There was no authority to conduct a CCA search. The applicant's detention was arbitrary from the moment Cst. Murad blocked him in with his vehicle. The detention continued for the purpose of conducting a criminal investigation. Then Mr. Habte’s vehicle was searched without reasonable grounds. The officer looked down Mr. Habte’s pants, pulled up his shirt and searched his wallet. His right to be informed of the right to counsel upon detention was violated. His right to speak to a lawyer without delay was disregarded. I would characterize these violations as a “major departure from Charter standards” and “clear violations of well-established rules governing state conduct”.[^57]
[104] The seriousness of the violations and their cumulative effect weighs heavily in favour of exclusion of the evidence obtained. This is not a case, as was discussed in R. v. Zacharias, where one Charter breach led to a series of cascading breaches which were, but for the initial breach, otherwise Charter compliant. The ss. 9, 10(a), 10(b), and 8 breaches, although related to the initial s. 9 breach, were in violation of the Charter in their own right.
Impact on the Charter-Protected Interests of the Accused
[105] Mr. Habte’s liberty interests were negatively impacted by the s. 9 breach. His freedom to choose to walk away was severely impacted from the outset of the transaction. In fact, it was the alleged attempt by the applicant to exercise this freedom to drive away, (from an unknown vehicle approaching him at night) which was offered by Cst. Murad as one of the reasons why he was detained in the first place.
[106] Mr. Habte’s dignity was moderately impacted by the invasiveness of the search of his person. He was also prevented a constitutional lifeline, that is to be told that he has a right to speak to a lawyer. This was done while the applicant was illegally detained and searched. The cumulative breaches in this case had a very significant impact on the applicant’s Charter-protected interests.
Society's Interests in an Adjudication on the Merits
[107] This line of inquiry asks, “whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion.”[^58] This third line of inquiry typically pulls towards inclusion of the evidence. In R. v. McGuffie, Justice Doherty wrote that “[i]f the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility”.[^59] The following passages from the Supreme Court confirm that society’s interest in having a trial on the merits does not trump the long-term repute of the justice system. Chief Justice McLachlin and Justice Charron held, writing for the majority of the Court in Grant, at para:
In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)'s focus. As pointed out in Burlingham, the goals furthered by s. 24(2) "operate independently of the type of crime for which the individual stands accused" (para. 51). And as Lamer J. observed in Collins, "[t]he Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to that majority" (p. 282). The short term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.[^60]
[108] The Supreme Court restated this principle in Le, where Justices Brown and Martin (Karakatsanis J. concurring) wrote at para. 158:
While disrepute may result from the exclusion of relevant and reliable evidence (Grant, at para. 81), so too might it result from admitting evidence that deprives the accused of a fair hearing or that amounts to “judicial condonation of unacceptable conduct by the investigatory and prosecutorial agencies” (Collins, at p. 281). An “adjudication on the merits”, in a rule of law state, presupposes an adjudication grounded in legality and respect for longstanding constitutional norms.
[109] The officer's violations of the applicant's Charter rights were very serious and amounted to abuse of police authority. Cst. Murad used the pretext of the smell of cannabis to conduct a warrantless search. The applicant—a racialized young man—was arbitrarily detained at the roadside and subjected to unlawful searches of his vehicle and of his person. He should have been promptly informed of his right to counsel. He was not. He was interrogated, arrested, searched, and placed in a cruiser while officers continued to search his vehicle and chose to delay the provision of his rights to counsel.
[110] I have given great consideration to the fact that the charges Mr. Habte is facing are extremely serious and that the evidence seized is also highly reliable. A number of decisions from the Supreme Court have held that the seriousness of the offences is not the controlling consideration in the decision whether to exclude.[^61] In Harrison, 35 kg of cocaine were excluded on appeal. The Supreme Court upheld and cited the Court of Appeal’s decision on this point:
As Cronk J.A. put it, allowing the seriousness of the offence and the reliability of the evidence to overwhelm the s. 24(2) analysis “would deprive those charged with serious crimes of the protection of the individual freedoms afforded to all Canadians under the Charter and, in effect, declare that in the administration of the criminal law 'the ends justify the means.’”[^62]
[111] While society's interest in an adjudication on the merits is great, especially given the large quantities of drugs that were seized along with a deadly weapon, a firearm, I conclude that the admission of the evidence would bring the administration of justice into disrepute given the serious, and cumulative disregard of the applicant’s Charter-protected rights. The violations in this case were clear and were of well-established rules.[^63] They had a significant impact on the accused's liberty interest. I find the seriousness of these breaches to be of such weight, and the effect that they had on Mr. Habte’s Charter-protected interests so significant that the Court must dissociate itself here from the actions of the police. To allow the Crown to rely on this illegally obtained evidence would be sending a message to the public that the police can stop and search a person or their vehicle without grounds and then attempt to justify the search afterwards on the basis of what they find and seize.
[112] To detain and arrest an individual, and proceed to a warrantless search and seizure, in the clear absence of the necessary grounds to do so— is a marked deviation from the rule of law. If police officers were permitted to arrest people at random, on a hunch or because they took offence to their conduct or appearance, the administration of justice would fall into disrepute.
CONCLUSION:
[113] For these reasons, the Application is granted, and the evidence excluded.
Released: April 17, 2025
Signed: Justice A. R. Mackay
[^1]: Highway Traffic Act, RSO 1990, c H.8.
[^2]: This evidence came from exhibits officer, Cst. Jeff Hepton.
[^3]: R. v. Grant, 2009 SCC 32, at para. 20; R. v. Zacharias, 2023 SCC 30; R. v. Le, 2019 SCC 34 at para 25.
[^4]: R. v. Le, at para. 29
[^5]: Grant at para. 28; R. v. Suberu, 2009 SCC 33
[^6]: Suberu, at para. 22; Le, at para. 25.
[^7]: Grant at paras. 30-32, Suberu at para. 28, Le at para. 121.
[^8]: Suberu, at para. 3.
[^9]: Grant at para. 44.
[^10]: Le, at para. 25.
[^11]: Le, at paras. 29-31.
[^12]: Le, at para 124; Grant, at paras 54-56.
[^13]: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 at para. 45; R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250
[^14]: Mann, at para. 34; MacKenzie, at para. 35.
[^15]: Mann, at para 34.
[^16]: R. v. McGuffie, 2016 ONCA 365, at para. 38.
[^17]: 12:37 a.m. (01:40 of body-worn camera video)
[^18]: 12:38 a.m. (02:38 of the body-worn camera video)
[^19]: This reasoning was applied in R. v. Le, at para. 35, where a group of young black men were detained in a backyard without reasonable suspicion.
[^20]: Le, at para 60.
[^21]: 2020 ONCA 264.
[^22]: Le, para. 41.
[^23]: R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621 (S.C.C.), at para. 12; R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408 (S.C.C.), at para. 30; R v McGuffie, 2016 ONCA 365 at para. 49.
[^24]: R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at paras. 40, 44.
[^25]: R. v. Collins 1987 84 (SCC), [1987] 1 S.C.R. 265 at para. 23.
[^26]: 2017, SO 2017, c 26, Sch 1.
[^27]: 12:36:51 a.m. (00:54 of the body-worn camera video)
[^28]: Section 12 of the CCA has been held to be constitutionally valid in R. v. Nzita, 2020 O.J. No. 3109 and again in R. v. Tully, 2022 ONSC 1852. Mr. Habte did not challenge the validity of the CCA in the proceedings before me.
[^29]: R. v. Jones, 2011 ONCA 632.
[^30]: R. v. Young, 2019 ONSC 3563, at para. 53.
[^31]: R. v. McKenzie-Walcott, 2022 ONSC 1350, at paras. 12, 13; R. v. Polashek, 1999 3714 (ON CA), [1999] O.J. No. 968, at paras. 10-14.
[^32]: 2016 ONCA 365, at para. 52.
[^33]: R. v. Palmer, 2023 ONSC 4842, at para. 71.
[^34]: Suberu, at para. 38; Grant, at para. 58; R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495 (S.C.C.), at paras. 20-26; McGuffie.
[^35]: Suberu, at para. 42.
[^36]: R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1144; Suberu, at para. 41.
[^37]: 2018 ONCA 745, 143 O.R. (3d) 135, at para. 45.
[^38]: Suberu, at para. 42
[^39]: Graham, 2018 ONSC 6718, at para. 52; Tully, at para. 146-147; R. v. Grant, 2021 ONCJ 90, [2021] O.J. No. 744, at paras. 128-131; R. v. Kanneh, 2022 ONSC 5413, at para. 60; Palmer, at para 80.
[^40]: R. v. McGuffie 2016 ONCA 365, at paras. 41-44.
[^41]: Suberu, at para 38.
[^42]: 2023 ONSC 4842
[^43]: R. v. Aim, 2023 98377 (ON SC) at para. 48, citing R. v. La, 1997 309 (SCC), [1997] 2 S.C.R. 680, at paras. 20-22; R. v. Hersi, 2019 ONCA 94, 373 C.C.C. (3d) 229, at para. 30; R. v. Janeiro, 2022 ONCA 118 at para. 107.
[^44]: Ibid, at para. 49.
[^45]: Ibid, citing R. v. Oickle, 2000 SCC 38 at para. 46.
[^46]: Ibid, citing R. v. Moore-McFarlane, (2001) 2001 6363 (ON CA), 160 C.C.C. (3d) 493 at paras. 61-65.
[^47]: Ibid, citing R. v. Darwish, 2010 ONCA 124; R. v. Barnes, 2009 ONCA 432 at para. 1.
[^48]: Ibid, at paras. 48-56.
[^49]: Ibid, at paras. 56.
[^50]: R. v. Bailey, [2024] O.J. No. 1664, at para 43, citing Peart v. Peel Regional Police Services, 2006 37566 at para 95 citing, R. v. Brown, 2003 52142, [2003] OJ No 1251, at paras. 44-45. See R. v. Bailey at para 46-47 for a summary of the Ontario Court of Appeal’s instructions to trial judges for when an allegation of racial profiling is alleged (R. v. Sitladeen 2020 ONCA 303, at para 54).
[^51]: R. v. Plaha, 2004 21043 (ON CA), [2004] OJ No 3484 (QL), at para. 45.
[^52]: R. v. Strachan, 1988 25 (SCC), [1988] 2 SCR 980 at p. 1005; Plaha at para. 45.
[^53]: R. v. Tim, 2022 SCC 12 at para. 78, Plaha at para 45.
[^54]: Tim at para. 78, citing Strachan, at p. 1006.
[^55]: Le at para. 139, citing Taylor, at para. 42.
[^56]: Grant at para 71.
[^57]: R. v. Paterson, 2017 SCC 15, at para. 44; see also R. v. Harrison, 2009 SCC 34, at paras. 24-25.
[^58]: Grant at para 79.
[^59]: 2016 ONCA 365, at para. 63; See also Le, at para. 142
[^60]: Grant, para. 84.
[^61]: Le, at para 142; Paterson, at para 56.
[^62]: R. v. Harrison, at para. 40.
[^63]: “The Supreme Court recently acknowledged in R. v. Tim, 2019 ONSC 935, at para. 85, that ‘[e]ven where the Charter infringement is not deliberate or the product of systemic or institutional abuse, exclusion has been found to be warranted for clear violations of well-established rules governing state conduct'” (Paterson, at para. 44; see also Harrison, at paras. 24-25). (R. v. Vieira, 2024 ONCJ 55, at para. 139).