ONTARIO COURT OF JUSTICE
DATE: 2025 06 20
COURT FILE No.: Oshawa 25-28100291-00
BETWEEN:
HIS MAJESTY THE KING
— AND —
JAYDAN LAM
Before Justice Joseph Hanna
Heard on May 1 – 2, 2025
Reasons for Judgment released on June 20, 2025
R. Greenway .................................................................................. counsel for the Federal Crown
D. Reeve ...................................................................................... counsel for the accused
HANNA J.:
OVERVIEW
[1] Following a 911 call, the police stopped Jaydan Lam while he was driving along Highway 401 in Bowmanville. While the police were interacting with Mr. Lam, an officer observed a handgun through the vehicle’s rear window. Mr. Lam was arrested. The police then searched his vehicle and seized a loaded firearm and a significant quantity of both fentanyl and cocaine.
[2] Mr. Lam is charged with the following offences:
- possession of firearm knowing its possession is unauthorized, contrary to s. 92(1) of the Criminal Code;
- unauthorized possession of a firearm in a motor vehicle, contrary to s. 94(1) of the Criminal Code;
- possession of a loaded prohibited firearm, contrary to s. 95(1) of the Criminal Code;
- possession of a prohibited device, contrary to s. 92(2) of the Criminal Code;
- possessing a firearm knowing its serial number has been defaced, contrary to s. 108(1)(b) of the Criminal Code;
- possession of cocaine for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act;
- possession of p-fluorofentanyl for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act; and
- possession of a mixture of fentanyl and p-fluorofentanyl for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act.
[3] He has brought an application to exclude evidence pursuant to s. 24(2) of the Charter for alleged violations of ss. 8, 9, 10(a) and 10(b) of the Charter. He argues that he was arbitrarily detained, not advised of the reason for his detention, not promptly advised of his right to counsel, improperly questioned by police, and subjected to an unreasonable search and seizure.
[4] The Crown concedes that there were violations of sections 10(a) and 10(b) but submits that the evidence should be admitted under s. 24(2) of the Charter.
[5] The parties agree that my ruling regarding the admissibility of the evidence seized by the police will determine the outcome of this trial. If the evidence is admitted, the defence concedes that the elements of each of the offences have been proven beyond a reasonable doubt. If the evidence is excluded, the Crown concedes that Mr. Lam must be acquitted of all charges.
THE EVIDENCE
(1) Introduction
[6] The facts in this case are largely non-contentious. A detailed agreed statement of facts was filed. It describes what was seized by police and confirms that Mr. Lam was in possession of these items. The only witnesses to testify were Police Constable Wes King and Sergeant David Phillips, the two officers involved in Mr. Lam’s detention and the initial search of his vehicle.
[7] P.C. King has been a police officer since 2001. He has worked in the police K9 unit for 17 years. While he conducted many arrests as a patrol officer, since becoming a K9 officer he has not frequently made arrests.
[8] Sgt. Phillips has been a police officer since 1998 and held the rank of sergeant for 17 years. His responsibilities include monitoring calls for service, assessing resource needs, and supporting frontline officers during incidents.
[9] Audio recordings of the police dispatch communications and the officers’ body worn camera footage were also filed.
(2) The Events Leading Up to the Traffic Stop
[10] On May 29, 2024, the Durham Regional Police received a 911 call relating to observations reportedly made near a bank in Newcastle. Shortly after, at 11:38 p.m., information from the call was dispatched to officers. P.C. King heard the following information from the dispatcher over his radio:
I don’t have any other units available just yet, but I just wanted to make you aware of a call just west of your location at 75 King Avenue West. At the CIBC there. Complainant noticed a new BMW SUV with damage to the front end. Believed to be possibly stolen. The complainant didn’t obtain the plate. She did see a male white in his 20s, wearing a hat and shorts. He ran and tried to get into the bank about 10 – 15 minutes ago. I’m assuming he's then since left. I’m just trying to get more details.
[11] P.C. King was in Newcastle when he received the information regarding the 911 call. He drove west on Highway 2 towards the bank. As he approached the bank, he observed a black BMW SUV with damage to its front end. The officer believed this vehicle to be the SUV referred to in the call. He flicked his lights to let the driver go by. He then followed the vehicle westbound.
[12] P.C. King observed the vehicle’s licence plate number, which he relayed to police communications. After P.C. King provided the licence plate to dispatch, dispatch responded that the vehicle was registered to Patricia Lam and that a motor vehicle collision had been reported involving the vehicle on April 13, 2024. Dispatch did not indicate that the vehicle had been reported stolen.
[13] P.C. King requested support prior to conducting a traffic stop. He explained that he was “a little bit concerned with what was going on, the time of night.” He therefore requested additional units and a police helicopter to assist in the traffic stop.
[14] Mr. Lam’s vehicle was pulled over by police at 11:47 p.m., while travelling westbound on the 401 near Liberty Road.
(3) The Decision to Stop the Vehicle
[15] It was P.C. King’s decision to stop the vehicle. When asked why he pulled over the vehicle, P.C. King testified that he relied on his experience. He stated:
Obviously, the purpose of us responding to that call was we got a 911 call in regards to that vehicle. There was also some concern with the information provided that the vehicle was in behind the bank, the front-end damage on the vehicle, as well, you know, him mulling around the bank, we’re thinking possibly stolen vehicle, or an attempt break and enter to the bank.
[16] P.C. King confirmed that he did not know anything about the complainant. He acknowledged in cross-examination the information from the 911 call he had received did not provide a reason for why the vehicle was believed to be possibly stolen. He accepted that simply driving a damaged vehicle does not mean one had stolen it. He also agreed it was possible that someone may have had an accident a month prior and simply not repaired the damage. He countered, however, that it was also possible that it could be a stolen vehicle involved in an accident.
[17] P.C. King admitted that the information he received about the vehicle having been involved in an accident on April 13 could explain its front-end damage. He stated this was a fact which needed to be considered, however it did not necessarily mean that the damage was caused by that.
[18] When asked in cross-examination if there was anything else about the vehicle that led him to believe it was possibly stolen, he responded that there had been an observation that it was possibly stolen and that there were a lot of vehicles being stolen in the region at this time. He explained that he believed he had an obligation to investigate the 911 call.
[19] P.C. King was asked in cross-examination if he suspected the vehicle was stolen notwithstanding that he had learned that the vehicle had been registered to Patricia Lam and not reported stolen. He responded:
I didn't suspect it was stolen. I had felt I had an obligation to just pull that vehicle over and speak to the driver and determine how things were and what had happened, get a better understanding if that information reported was accurate. I think I'm kind of neglect - neglecting my duty, if I don’t do that, I feel.
[20] Regarding the significance of the vehicle not having been reported stolen, P.C. King explained that often vehicles are stolen but have not been reported stolen yet.
[21] P.C. King also agreed that he did not have information about the male using tools to try and enter the bank. Nor did he have any information implying that force had been used. He did not notice any damage to the front of the bank from the road while he was driving. He clarified, however, that he could not see the back of the bank.
[22] P.C. King agreed that the CIBC had a vestibule area with ATMs. He also acknowledged that people usually have access to the ATMs at night. Defence counsel suggested to the officer that there was no basis to say the situation was anything more than someone trying to get into a bank, which was not illegal. P.C. King responded, “Right, but in many cases, once we take the time to investigate and you look further, that’s when you start to see some issues.”
[23] When it was put to him that he did not have a basis to believe that someone had tried to break into the bank, P.C. King testified that he had not inspected the bank. He could not “100 per cent make that conclusion.” When the vehicle came out, he made a choice to follow it rather than inspect the bank.
[24] When pressed in cross-examination about whether he had a reason to pull over the vehicle, P.C. King indicated that he had information, he was responding to a 911 call, and he was trying to figure out what happened at the bank.
[25] When it was suggested to him that he needed a reason to detain someone, P.C. King replied:
I think I had a reason. I think there was a 911 call that in the totality of the situation, I had a reason to investigate... Could that vehicle not been reported stolen? Could that person in the vehicle been involved in damage or a break and enter to the back of the building that I didn't have an opportunity to check out? Yes... and no, but that's why we try to speak to people.
[26] When P.C. King was asked if he had a particular suspicion, he answered: “At this point, I had information that was presented to me which could point towards a situation that needed to be investigated.”
[27] Later in cross-examination, counsel again questioned the officer about his belief regarding the vehicle possibly being stolen. The following exchange occurred:
Q: …you didn't actually suspect the vehicle had been stolen, right? You thought it was a possibility, but you weren't in a state of suspicion about that?
A: Was I suspicious? How can I be suspicious or not be suspicious? I'm responding to information that I had, and I do my best to determine if my suspicion should grow through the investigation.
[28] Towards the end of his cross-examination, P.C. King clarified that he did not pull Mr. Lam over specifically to investigate a stolen vehicle. He explained that he was responding to a 911 call that raised multiple concerns from a citizen. Defence counsel suggested to him that the bank had not been broken into. P.C. King answered that he could not confirm that at the time. He explained that while driving slowly past the bank (10–20 km/h), while also trying to observe a BMW exiting the driveway, there was no visible damage to the bank. He said that if he had had the opportunity to inspect the building he would have, but he did not have that opportunity.
[29] P.C. King was also asked whether at the time he had pulled over Mr. Lam he had any additional information regarding a potential break-in at the bank. He responded that he had not and explained that they had not had enough manpower to have an officer inspect the scene.
(4) The Vehicle Stop, the Observation of the Handgun, and Mr. Lam’s Removal from the Vehicle
[30] At 11:47 p.m. Mr. Lam’s vehicle was pulled over on the 401 near the Liberty Road exit. Sgt. Phillips stopped his vehicle in front of Mr. Lam’s vehicle and P.C. King pulled in behind him.
[31] P.C. King approached the driver’s side window at 11:48 p.m. He testified that he was not concerned that Mr. Lam did not match the description from the 911 call because in his experience complainant descriptions are often inaccurate. He relied instead on the vehicle description, which he felt matched well.
[32] P.C. King told Mr. Lam to keep his hands up and asked, “what’s going on?” Mr. Lam responded that he was going home. Within seconds, P.C. King asked Mr. Lam how much alcohol he had consumed that night. Mr. Lam responded, “none.” P.C. King advised Mr. Lam that he smelled alcohol and Mr. Lam replied that he had come from a bar. P.C. King then told him that he smelled marijuana. He asked Mr. Lam whose vehicle it was, and Mr. Lam said it belonged to his mother. When asked if she knew he had it, Mr. Lam confirmed that she did. Mr. Lam provided his name when asked. P.C. King next asked Mr. Lam when he last smoked marijuana and Mr. Lam denied smoking any that day. P.C. King asked Mr. Lam when he had his last beer and Mr. Lam responded, “yesterday.” Next, P.C. King inquired whether Mr. Lam would pass a test. Mr. Lam responded, “yeah.” When asked again if he was sure, Mr. Lam replied, “no.” P.C. King repeated the question, and Mr. Lam did not respond. Mr. Lam was then asked to put the vehicle in park, to which he replied it was already off.
[33] P.C. King confirmed again that Mr. Lam’s mother knew he had the vehicle. At 11:49:30 the officer asked Mr. Lam what he was doing in Newcastle. Mr. Lam said he had been visiting a friend at a bar. P.C. King asked Mr. Lam which bar he had attended and if he had consumed any drinks there. Mr. Lam said he had been at Frosty Johns. The officer again asked him if he had had any drinks there and Mr. Lam responded, “no.” P.C. King then said, “really?” and Mr. Lam said, “yes sir.” P.C. King testified that he asked about alcohol and marijuana because he could smell both.
[34] At 11:50:30 p.m., P.C. King walked to the front passenger side and spoke with Sgt. Phillips, advising him that Mr. Lam had come from a bar and that he could smell alcohol, though Mr. Lam denied drinking. At 11:50:41 Sgt. King stated that he did not have an ASD on him.
[35] P.C. King asked Mr. Lam about the damage to the vehicle. Mr. Lam advised that he had been in an accident about a month earlier, which he had reported. At 11:51:45 p.m. P.C. King asked Sgt. Phillips what he thought. Sgt. Phillips sought clarification from P.C. King regarding where Mr. Lam had been observed driving.
[36] Sgt. Phillips walked towards the back of the vehicle to look for tools. He testified that, based on the 911 call, he was concerned about the potential presence of break-and-enter tools. He indicated that his primary concern was safety. In cross-examination Sgt. Phillips was asked if he thought there was a possibility that a criminal offence had taken place. He responded, “No, I was trying to determine if there was one.” When asked if he suspected a criminal offence had been committed, he replied, “I didn’t assume.” He agreed that he had been engaged in an investigative detention. Defence counsel suggested that the officer did not have grounds to believe an offence had been committed and the officer replied, “We were investigating.” Sgt. Phillips agreed in cross-examination that his decision to look for tools was an investigative step to determine if there was evidence associated with a potential criminal offence at the bank rather than based on a particular safety concern. He agreed that he had not received information about tools being used at the bank.
[37] While at the back of the vehicle, Sgt. Phillips observed a handgun through the back windshield using his flashlight. His body-worn camera captured this between 11:52:24 and 11:52:29 p.m. He did not say anything upon first observing the gun.
[38] While Sgt. Phillips was observing the gun, P.C. King asked Mr. Lam if his mother knew he had the vehicle. Mr. Lam said, “yes.” At 11:52:29, P.C. King said, “alright, when did you have your last drink?” He testified that the reason he continued asking about alcohol consumption was because he was “wondering how much he had drank and what his state was, as far as driving the vehicle.” He did not believe Mr. Lam’s denials since he could smell alcohol.
[39] At 11:52:32, Sgt. Phillips requested that P.C. King attend the back of the vehicle. He showed him the gun through the window. After this, Sgt. Phillips walked over to the driver’s side door, opened it, and between 11:52:48 – 11:52:55 p.m., directed Mr. Lam to put his hands up and to step out of the vehicle.
(5) The Circumstances of Mr. Lam’s Arrest and the Initial Search of the Vehicle
[40] Mr. Lam exited the vehicle at 11:52:55 p.m. and was immediately handcuffed. P.C. King asked what was in the back of the car. Mr. Lam responded, “just my clothes.” At 11:53 p.m., P.C. King radioed, “one in custody for a firearm in the back of the vehicle.” Mr. Lam was nearby when this was said.
[41] Sgt. Phillips performed a pat down search and asked if there was anything else he needed to know about in the car. Mr. Lam responded, “no.” Sgt. Phillips began searching the vehicle and found what appeared to be drugs. The officers asked Mr. Lam whether the substance was “crack or coke”.
[42] At 11:54 p.m., P.C. King asked, “what kind of drugs is that.” No audible response was given. Next, the officer said, “you realize you’re under arrest for the firearm, for the drugs.” He advised Mr. Lam that he did not need to say anything and told him that they were being audio and video recorded. Mr. Lam nodded. P.C. King also told Mr. Lam that if he said anything it would be used in evidence. At 11:55 p.m. Mr. Lam asked if he “could use his phone call.” P.C. King responded, “yeah, you can, that’s no problem.” Around the same time, Sgt. Phillips confirmed that the firearm was loaded.
[43] Still at 11:55 p.m., P.C. King asked Mr. Lam if he understood why he was under arrest. Mr. Lam indicated he did. P.C. King told him to continue being cooperative. He advised him that there was a dog in the back of his cruiser and that if he ran it would not end well.
[44] At 11:56 p.m., Sgt. Phillips asked Mr. Lam if there were any other firearms in the vehicle. Mr. Lam shook his head. Sgt. Phillips then asked if there were any other drugs in the car other than the ones found in the back seat. No response was captured on the body-worn camera footage. P.C. King asked Mr. Lam what kind of drugs they had found and stated, “just for our safety.” Mr. Lam responded that it was “coke.” P.C. King then said, “it’s not fentanyl or anything like that?”
[45] Between 11:56:43 – 11:56:48 p.m., there was a brief discussion about a lawyer. P.C. King asked Mr. Lam if he had a lawyer. Mr. Lam responded he did. The officer advised him that once they got a car there, they would get him connected with a lawyer. Mr. Lam indicated that he understood and thanked the officer. P.C. King advised Mr. Lam not to say anything else and told him that he had asked him about the drugs because of safety concerns. The officer told Mr. Lam he wanted him to speak with his lawyer before he spoke with him. Mr. Lam nodded. At 11:57 p.m., P.C. King walked Mr. Lam to Sgt. Phillips’ cruiser. He gave Mr. Lam another quick pat-down and asked him if he had any other weapons on him. Mr. Lam replied that he did not. Mr. Lam was placed in the cruiser at 11:59 p.m.
[46] At 12:03 a.m., P.C. King said, “I should read him his rights.” He walked to Sgt. Phillips’ cruiser but found the door locked. He asked Sgt. Phillips to unlock the door. Sgt. Phillips then reversed his vehicle, which was partially on the road and P.C. King went to his own cruiser and retrieved glasses. At 12:06 a.m. P.C. King began reading Mr. Lam his rights to counsel from his memo book. Mr. Lam replied that he understood and that he wished to speak with a lawyer. Between 12:07 a.m. and 12:09 a.m., P.C. King read the primary and secondary police cautions and confirmed that Mr. Lam understood them.
[47] P.C. King was cross-examined about not informing Mr. Lam why he was pulled over. He responded that he had been trying to figure out what was going on and that in these situations he typically explains the reason for the stop as the conversation evolves.
[48] P.C. King acknowledged that his questions about the gun and drugs found were potentially incriminating. He explained that he asked these questions because of safety concerns. He wanted to know whether he was dealing with a real gun or a fake one. Regarding the drugs, he was particularly concerned about potential exposure to fentanyl. He explained, it was not his intention to obtain an incriminating answer.
[49] Sgt. Phillips gave similar reasons for his questions to Mr. Lam. He said he was concerned about officer safety during a search of the vehicle. He did not want an accident to occur that could jeopardize someone’s safety. He testified that he was also concerned about potentially handling fentanyl. He said he understood that inhaling or absorbing fentanyl could put a person into medical distress.
[50] Regarding the delay in reading Mr. Lam his rights to counsel following his arrest, P.C. King testified he understood he was supposed to provide them as soon as reasonably possible. When it was suggested to him in cross-examination that providing rights to counsel had not been his highest priority at the time, he responded:
It wasn’t - it wasn't that it wasn't a high priority. I think there was just so many pieces moving there. I was kind of being pulled back and forth. Maybe I shouldn't have been, but I was, and that wasn't my intent. So, that is why there was a delay. My intent was never to delay, but there was a delay, unfortunately, for him. If I could changed it, I would have.
(6) Items Seized from the Vehicle
[51] The police searched the vehicle driven by Mr. Lam and found the following items:
- 26.7 grams of fentanyl;
- 55.3 grams of p-fluorofentanyl;
- 167.5 grams of cocaine; and
- a prohibited firearm.
[52] The agreed statement of facts outlines the drugs and firearm that were seized. It confirms that the defence admits Mr. Lam possessed the drugs for the purpose of trafficking and possessed the firearm. The firearm is acknowledged to be a prohibited firearm, which was loaded, had a defaced serial number, and was equipped with a selector switch. Mr. Lam further admits that he was not the holder of a valid licence authorizing him to possess a firearm. At the commencement of the trial, I confirmed with defence counsel that Mr. Lam admitted he was aware the firearm was loaded.
ANALYSIS
(1) General Assessment of the Officers’ Credibility and Reliability
[53] I found both P.C. King and Sgt. Phillips to be credible and reliable witnesses. They provided straightforward answers, and their evidence did not contain significant internal or external inconsistencies. Their accounts aligned with each other and with the body-worn camera footage. Both officers made reasonable concessions during cross-examination, and their credibility was not undermined. Notably, defence counsel acknowledged that there was no basis to suggest either officer had been dishonest in their testimony.
[54] Overall, I found that both P.C. King and Sgt. Phillips were being truthful when describing their actions and the reasons for them. As I examine the issues raised below, I will highlight relevant factual findings from their testimony.
(2) Were there Violations of Sections 8 and 9 of the Charter?
Overview of the Parties’ Positions
[55] The sections 8 and 9 issues in this case are intertwined.
[56] The defence submits that Mr. Lam was stopped arbitrarily and that the police’s discovery of the firearm in the vehicle resulted from an unreasonable search. If the observation of the gun was not a search, the defence nonetheless contends that this observation was the product of an arbitrary detention. Given that Mr. Lam’s arrest and the subsequent search of the vehicle flowed from the police having found the gun, the defence argues that these actions resulted in additional breaches of sections 8 and 9 of the Charter. The defence does not allege that any officer involved in Mr. Lam’s investigation engaged in racial profiling.
[57] The Crown responds that Mr. Lam was detained pursuant to a valid investigative detention and that the firearm was observed in plain view. The Crown argues that the arrest and the search of the vehicle were therefore lawful.
[58] If the arrest was lawful, the defence does not raise an independent challenge to the search of the vehicle which followed it.
The Initial Stop
[59] The defence argues that the police fell short of both the subjective and objective component of the reasonable suspicion standard when they pulled over Mr. Lam.
[60] The standard for determining whether an investigative detention is justifiable is one of reasonable suspicion. The detention must be viewed as reasonably necessary on an objective view of all the circumstances informing the officer's suspicion that there is a clear nexus between the prospective detainee and a recent or ongoing criminal offence: R. v. Mann, 2004 SCC 52, at para. 34; R. v. Peterkin, 2015 ONCA 8, at para. 40. This analysis involves an assessment of the overall reasonableness of the detention, testing it against all the circumstances, particularly:
i. the extent to which the interference with individual liberty is necessary to perform the officer's duty;
ii. the liberty that is the subject of the interference; and
iii. the nature and extent of the interference.
Mann, at para 34; Peterkin, at para. 40.
[61] The reasonable suspicion standard is lower than the reasonable and probable grounds standard: R. v. Kang-Brown, 2008 SCC 18, at para. 75; R. v. MacKenzie, 2013 SCC 50, at para. 74; R. v. Maric, 2024 ONCA 665, at para. 190. The reasonable suspicion standard demands that the objective facts be “‘be indicative of the possibility of criminal behaviour’; the evidence need not itself consist of unlawful behaviour or ‘be evidence of a specific known criminal act’”: Maric, at para. 190, citing R. v. Chehil, 2013 SCC 49, at para. 35.
[62] In MacKenzie, Moldaver J. noted that when describing the reasonable suspicion standard “there are several ways of describing what amounts to the same thing.” He explained: “To the extent one speaks of a ‘reasonable belief’ in the context of reasonable suspicion, it is a reasonable belief that an individual might be connected to a particular offence, as opposed to a reasonable belief that an individual is connected to the offence”: at para. 74.
[63] The objective reasonableness assessment should be “conducted through the lens of a reasonable person ‘standing in the shoes of the police officer’”: MacKenzie, at para. 64; R. v. Whyte, 2011 ONCA 24, 272, at para. 31. This does not mean, however, that police hunches or intuitions will suffice: MacKenzie, at para. 64; Chehil, at para. 47.
[64] How an officer specifically articulates their grounds for a detention, while relevant to their credibility, is not determinative of whether the subjective component of the reasonable suspicion standard has been met: R. v. Fyfe, 2023 ONCA 715, at paras. 53-54; R. v. R.M.J.T., 2014 MBCA 36, at paras. 60-63; R. v. Dill, 2009 ABCA 332, at paras. 6-7; R. v. Messina, 2013 BCCA 499, at paras. 25-26. It is not necessary that an officer testify that he had a “reasonable suspicion.” The court is entitled to circumstantially draw inferences regarding the officer’s state of mind: R. v. Conway, 2009 ONCJ 232, at paras. 17-19; R. v. Markandu, 2009 ONCJ 295, at paras. 27-30; R. v. Bromfield, 2007 ONCJ 36, at para. 19.
[65] P.C. King did not testify that he, “suspected” Mr. Lam had been involved in criminal activity. In fact, he resisted agreeing with the proposition that he suspected Mr. Lam had been involved in any particular crime. Having carefully reviewed his evidence, in combination with the objective facts known to him, I conclude that the only logical inference is that he thought Mr. Lam “might be connected” to a stolen vehicle or attempted break and enter offence. He stated, “we’re thinking possibly stolen vehicle, or an attempt break and enter to the bank.” When it was suggested that he needed a reason to detain someone he defended his actions by referring to the 911 call and said that the circumstances gave him a reason to investigate. He explained by suggesting possibilities such as the vehicle being stolen or the driver of the vehicle he was following being involved in a break and enter. I find that when P.C. King stopped Mr. Lam’s vehicle, he believed Mr. Lam was possibly involved in recent criminal activity and that he had grounds to detain him. I am satisfied the subjective component of the reasonable suspicion standard was met.
[66] In assessing the objective reasonableness of the detention, I must consider all the information known to the detaining officer: R. v. Fyfe, 2023 ONCA 715, at paras. 55-63.
[67] It is important to keep in mind that the police investigation in this case began with a 911 call, which is a distress call: R. v. Godoy, 1999 SCC 28, at para. 16; R. v. Lee, 2017 ONCA 654, at para. 39. Courts have consistently held that police have a duty to respond to 911 calls: Lee, at para. 28; Peterkin, at para. 61; R. v. Dingwall, 2013 ONSC 604, at paras. 74 and 86; R. v. Clayton, 2007 SCC 32, at para. 34.
[68] Even under the more stringent standard of reasonable and probable grounds, it has been recognized that, in certain circumstances, an officer may make an arrest based solely on a 911 call, without investigating the caller’s credibility or corroborating the details of the call: R. v. Carelse-Brown, 2016 ONCA 943, at paras. 46-49. “The nature of the [police] power exercised and the context within which it is exercised must be considered”: R. v. Golub (1997), at para. 18, leave to appeal refused; Carelse-Brown, at paras. 28, 47-48.
[69] Additionally, a reasonable suspicion can be based on information that is "different in quantity and content than that required to establish probable cause" and "less reliable": Kang-Brown, at para. 75; R. v. Noor, 2022 ONCA 338, at para. 9; R. v. Sahal, 2020 ONSC 6924, at para. 73. See for example: Lee, at paras. 5-11, 72-77 and R. v. Sabiston, 2023 SKCA 105, at paras. 105-110, per Tholl J.A. (dissenting), rev’d 2024 SCC 33 substantially for the reasons of Tholl J.A. As well, in many cases, police must act quickly when deciding whether to conduct an investigative detention based on the information they receive: Sahal, at paras. 74-75.
[70] In this case, P.C. King received information from a concerned 911 caller who reported a vehicle she believed might be stolen. She described a male running and attempting to enter a bank. Given that the caller described these events in the same call it was a reasonable inference that they were related. There was a clear nexus between Mr. Lam and the call. His vehicle—a BMW SUV with front-end damage—reasonably matched the description. It was also close in time and location to the reported incident: R. v. Bejarano-Flores, 2020 ONCA 200, at para. 61. When P.C. King arrived, he observed Mr. Lam driving out from behind the bank. As well, P.C. King was aware of a recent increase in car thefts in the region. Although P.C. King did not observe any damage to the bank, neither he nor another officer had the opportunity to inspect the premises before stopping Mr. Lam, due to limited police resources. While it is possible that someone might enter a bank for legitimate reasons, such as using an ATM, the officer had to weigh that possibility against the fact that a member of the public had called an emergency line to report an individual running and attempting to enter the bank, and the fact that he saw Mr. Lam’s vehicle leaving the rear of the building. Although the vehicle had not been reported stolen, the officer noted that, in his experience, such reports are often delayed. Considering all these factors together, I find that P.C. King had an objectively reasonable basis to stop and investigate Mr. Lam.
Mr. Lam’s Detention up Until the Firearm was Observed
[71] To be justifiable, an investigative detention must be brief and executed in a reasonable manner: Mann, at para. 45; R. v. Barclay, 2018 ONCA 114, at para. 20. In Barclay the Court of Appeal, at paragraph 31, listed several factors relevant to considering whether the duration of an investigative detention was reasonable.
[72] When P.C. King approached the vehicle, it was apparent to him that Mr. Lam was not white skinned and was not wearing shorts or a hat. The officer explained that this did not concern him given his experience that 911 callers are often mistaken regarding physical descriptions. He felt confident relying on the resemblance between Mr. Lam’s vehicle and the description of the vehicle provided by the 911 caller. I find that his testimony in this regard was reasonable: Bejarano-Flores, at paras. 61–66. Additionally, I find that once the officer approached Mr. Lam, he smelled alcohol and marijuana. P.C. King’s evidence in this area withstood cross-examination and I accept it as credible and reliable. These olfactory observations provided him with an independent and legitimate basis to detain Mr. Lam to assess his sobriety: R. v. Orbanski; R. v. Elias, 2005 SCC 37, at para. 41; R. v. Gardner, 2018 ONCA 584, at para. 21.
[73] The time between P.C. King’s initial contact with Mr. Lam and Sgt. Phillips’ observation of the handgun was brief—approximately five minutes. During this period, Mr. Lam was neither handcuffed nor removed from the vehicle, nor was he searched. He was simply asked to turn off the vehicle and keep his hands visible.
[74] During this brief period, Mr. Lam was asked questions primarily aimed at assessing whether he was impaired. P.C. King inquired about his alcohol and marijuana use, including how much he had consumed, when he last used, and whether he believed he would pass a sobriety test. Mr. Lam was also asked questions that were intended to confirm lawful possession of the vehicle, such as who owned it and whether his mother knew he had it. P.C. King also asked about Mr. Lam’s recent activities, including what he was doing in Newcastle, which bar he had visited, and whether he had consumed any drinks there.
[75] Although the officers did not have an approved screening device with them, I do not find that they arbitrarily prolonged Mr. Lam’s detention to obtain one. While Sgt. Phillips observed the firearm, P.C. King was still questioning Mr. Lam about his alcohol consumption. I accept P.C. King’s explanation that he continued this line of questioning to assess Mr. Lam’s fitness to drive. Questioning a motorist about alcohol consumption is an appropriate method of assessing sobriety: Orbanski, at paras. 48–49.
[76] Having reviewed the entirety of the police interaction with Mr. Lam prior to the discovery of the firearm, I find that the investigative detention was conducted reasonably and was not longer than necessary for the officers to fulfill their legitimate investigative duties.
The Observation of the Gun
[77] The defence argued that Sgt. Phillips’ observation of the gun was the product of both an arbitrary detention and an unreasonable search. As I have just explained, I find that Mr. Lam’s detention, up to the moment the firearm was observed, was lawful and not arbitrary.
[78] Section 8 of the Charter is only engaged if the claimant has a reasonable expectation of privacy in the place or item inspected by the state: R. v. Reeves, 2018 SCC 56, at para. 12; R. v. Cole, 2012 SCC 53, at paras. 34 and 36.
[79] It is well established in the jurisprudence that the plain view observation of an item inside a vehicle, even when aided by a flashlight, does not constitute a search: R. v. Mellenthin, 1992 SCC 50, at para. 14; R. v. Lotozky, at para. 13; R. v. Grunwald, 2010 BCCA 288, at paras. 35–37, 49–52; R. v. Ceballos, 2014 ONSC 2281, at paras. 71–79; R. v. Mohamed, 2008 OJ No. 3145 (SCJ), at paras. 94–108; R. v. Wilson, 2015 ONSC 4135, at paras. 22–34.
[80] The video evidence demonstrates that the firearm could be seen from outside the vehicle through the rear window.
Still from Sgt. King’s body worn camera video while standing at the rear of the vehicle looking through the glass.
[81] Consistent with the authorities mentioned, I find that Mr. Lam did not have a reasonable expectation of privacy regarding the observable handgun in the back of his vehicle. Sgt. Phillips’s detection of this item was not a search. Once the gun was noticed, the police were entitled to seize it pursuant to the plain view doctrine: R. v. Yusuf, 2022 ONCA 640, at para. 67. Mr. Lam’s removal from the vehicle and arrest were obviously justified at this point.
[82] The defence did not argue that the subsequent search of the vehicle was an independent Charter breach. Based on my review of the evidence, including the body worn camera videos, I am satisfied that the vehicle was lawfully searched incident to arrest: R. v. Caslake, 1998 SCC 31, at paras. 22-23; R. v. Bakal, 2021 ONCA 584, at paras. 53-55.
Conclusion
[83] Mr. Lam was lawfully detained for investigative purposes. That detention was brief and conducted in a reasonable manner. The police observed a handgun in plain view through the rear window of the vehicle. This sequence of events culminated in a lawful arrest and a valid search of the vehicle incident to that arrest. There was no violation of Mr. Lam’s sections 8 or 9 Charter rights.
(3) Section 10(a) of the Charter
[84] To comply with s. 10(a) of the Charter, the police must sufficiently communicate the reason or reasons for the detention, and they must communicate those reasons promptly: R. v. McGowan-Morris, 2025 ONCA 349, at para. 37; R. v. Roberts, 2018 ONCA 411, at para. 63. “If the police have multiple reasons for detaining an individual, they must disclose each reason to the detainee”: McGowan-Morris, at para. 39.
[85] The Crown appropriately concedes that Mr. Lam’s s. 10(a) right was infringed by P.C. King’s failure to inform him of the original reason for the stop. Once Mr. Lam was questioned about alcohol consumption, he would have been aware that he was being investigated related to a possible drinking and driving offence. Nothing more was required to comply with s. 10(a) regarding that aspect of the detention: R. v. Kumarasamy, 2011 ONSC 1385, at para. 52; R. v. Gomez, 2024 ONSC 6147, at paras. 35–48; contra R. v. Mueller, 2018 ONSC 2734. The fact remains, however, that Mr. Lam was not informed of the other reason for his detention, namely the police’s investigation relating to the 911 call.
[86] I am not satisfied that any further breach of section 10(a) occurred after Mr. Lam’s arrest. Within seconds of him being directed to exit the vehicle, P.C. King in Mr. Lam’s immediate presence, radioed “one in custody for a firearm in the back of the vehicle.” Within a minute of that, P.C. King told Mr. Lam, “You realize you’re under arrest for the firearm, for the drugs.”
(4) Section 10(b) of the Charter
[87] Police are required to inform a detainee of his or her s. 10(b) rights at the outset of an investigative detention: R. v. Suberu, 2009 SCC 33, at paras. 2 and 41; R. v. Mhlongo, 2017 ONCA 562, at para. 48.
[88] The Crown correctly acknowledges that the police breached Mr. Lam’s s. 10(b) rights by not informing him of his rights throughout the investigative detention. After Mr. Lam exited the vehicle just before 11:53 p.m., there was an approximately 13-minute delay until he was read his rights to counsel at 12:06 a.m. While I accept that some of that period could reasonably be accounted for by the pat-down searches aimed at police safety, I agree with the defence that there was a further unjustifiable delay following the arrest. The Crown argued that P.C. King fulfilled the informational component of s. 10(b) during his conversation with Mr. Lam about a lawyer at 11:56 p.m. There are no “magic words” that an officer needs to utter to comply with s. 10(b): R. v. Knoblauch, 2018 SKCA 15, at para. 29. In R. v. Foreshaw, 2024 ONCA 177, paras. 93–96, the Court of Appeal upheld the trial judge’s finding that s. 10(b) had been complied with in circumstances where the detainee had been advised that he would have a right to speak to counsel “as soon as possible or practical” and told that there was a toll-free number he could call to speak with a lawyer. In this case, the conversation at 11:56 p.m. certainly addressed aspects of the informational component of s. 10(b). I am satisfied, however, that it failed to sufficiently convey all the essential information. Mr. Lam was not advised at that point that he had a “right” to contact counsel. Nor was he provided information regarding the existence of legal aid: R. v. Taylor, 2014 SCC 50, at para. 23.
[89] I also find that the police breached Mr. Lam’s s. 10(b) right by questioning him regarding the gun and drugs found. While I accept the officers’ evidence that these questions were motivated by safety concerns, they were potentially incriminating questions and there were other ways the police could address their concerns “without enlisting the accused's participation”: R. v. Palmer, 2021 ONSC 1675, at para. 31.
(5) Section 24(2) of the Charter
[90] Section 24(2) of the Charter is engaged when the accused establishes that evidence was "obtained in a manner" that breached the Charter: R. v. Beaver, 2022 SCC 54, at para. 94; R. v. Becessar, 2024 ONCA 528, at para. 11. The required connection between the breach and the evidence may be temporal, contextual, causal, or a combination of the three: R. v. Wittwer, 2008 SCC 33, at para. 21, Becessar, at para. 13. In this case, there is both a contextual and temporal connection between the breaches and the evidence sought to be excluded.
[91] The applicant seeking exclusion bears the onus of establishing that the admission of evidence would bring the administration of justice into disrepute: R. v. Fearon, 2014 SCC 77, at para. 89; Becessar, at para. 12.
[92] In R. v. Grant, 2009 SCC 32, the Supreme Court of Canada set out the factors to consider to determine whether the admission of evidence at trial would bring the administration of justice into disrepute:
(a) the seriousness of the Charter infringing state conduct;
(b) the impact of the breach on the Charter-protected interests of the accused; and
(c) society's interest in the adjudication of the case on its merits.
The Seriousness of the Charter-Infringing Conduct
[93] I have found that the police breached Mr. Lam’s s. 10(a) right by failing to advise him of one of the reasons for his detention, namely their investigation of him regarding the information received in the 911 call. The police also violated section 10(b) by failing to promptly inform Mr. Lam of his right to counsel and by asking him incriminating questions. I must consider the combined effect of these violations: R. v. Mhlongo, 2017 ONCA 562, at paras. 60-62; R. v. Truong, 2025 ONCA 69, at para. 42; R. v. James, 2025 ONCA 213, at para. 37.
[94] An accused must be fully informed of the reasons for their detention in order to meaningfully exercise their right to counsel and to determine whether to consent to the detention: R. v. Latimer, 1997 SCC 37, at para. 30; McGowan-Morris, at paras. 36 & 39. In this case Mr. Lam was never advised of the initial reason for the police stop.
[95] The seriousness of the s. 10(a) breach was compounded by the police’s failure to properly advise Mr. Lam of his rights to counsel for a total period of approximately 18 minutes following the commencement of his detention, and by their asking potentially incriminating questions – particularly following the discovery of the firearm and drugs.
[96] I find that P.C. King was negligent in failing to inform Mr. Lam of the reason for the stop and in delaying compliance with the informational component of section 10(b). Following Mr. Lam’s arrest, Sgt. Phillips was also negligent in failing to promptly advise Mr. Lam of his right to counsel.
[97] While the total delays cannot be excused, I note that neither was significantly lengthy. Mr. Lam was made aware of the reasons for his arrest approximately five minutes after the initial detention. Furthermore, after the arrest, P.C. King did demonstrate attentiveness to Mr. Lam’s rights. He cautioned him multiple times, and, at 11:56 p.m. – eight minutes after the detention began – he assured Mr. Lam that he would put him in contact with counsel. Some of the total delay in advising Mr. Lam of his rights to counsel was explained by legitimate police actions such as conducting a pat-down search and walking Mr. Lam to a cruiser when the parties were at the side of a highway with cars driving by. Some of the delay was due to genuine forgetfulness. Mr. Lam was fully advised of his rights to counsel at 12:06 a.m. Additionally, no s. 10(b) complaint has been made regarding the police’s conduct while at the police station and it is agreed that, while there, P.C. King made numerous attempts to contact Mr. Lam’s counsel of choice.
[98] With respect to the roadside questioning by P.C. King and Sgt. Phillips, I accept their evidence that the questions were motivated by safety concerns. That said, the officers should have been more mindful of their obligations to hold off questioning, particularly given the potentially incriminating nature of their questions.
[99] I find that the breaches in this case were the product of negligence. I do not find, however, that they demonstrate bad-faith or a systemic police problem.
[100] Overall, I would situate the police misconduct at the moderate end of the spectrum.
The Impact of the Breaches on the Accused’s Charter-Protected Interests
[101] In assessing the impact on Mr. Lam’s Charter-protected interests, I must consider the multiple incidents of state misconduct together: Truong, at para. 42; James, at para. 37. Having done so, I find that the impact of the breaches on Mr. Lam’s Charter-protected interests was minimal.
[102] First, there was no causal relationship between the ss. 10(a) and 10(b) violations and the discovery of the evidence. This mitigates the impact of the breaches: Truong, at paras. 51–53; R. v. Keshavarz, 2022 ONCA 312, at para. 115; McGowan-Morris, at para. 115.
[103] Second, although Mr. Lam provided at least one incriminating response to police questioning concerning the presence of cocaine in the vehicle, the Crown has not introduced any of his statements at trial. This mitigates the impact of this breach: R. v. Hamouth, 2023 ONCA 518, at paras. 40–49; R. v. Desilva, 2022 ONCA 879, at para. 98; Peterkin, at para. 79.
[104] Third, the psychological impact of the breaches in this case was relatively minor. The delays associated with both the s. 10(a) and s. 10(b) breaches were brief. Mr. Lam was assured fairly quickly following his arrest that he would be put in contact with counsel and there is no evidence that there was an unreasonable delay in attempting to facilitate contact with a lawyer. This case is not like R. v. Rover, 2018 ONCA 745, or R. v. Jarrett, 2021 ONCA 758, both of which involved lengthy delays in implementing contact with counsel. I find that the lifeline interest associated with s. 10(b) was not significantly impacted in this case. See: R. v. Alipourobati, 2025 ONCA 64, at paras. 2, and 30-34 (involving a 26-minute delay in informing the accused of his right to counsel) and Truong, at paras. 24 and 56 (a delay of 2 hours and 7 minutes from the time of arrest to the opportunity to exercise his right to counsel).
[105] I find that the second Grant factor only weakly favours exclusion.
Society's Interest in the Adjudication of the Case on its Merits
[106] In assessing the third Grant factor, I must consider “whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion”: Grant, at para. 79.
[107] The evidence seized in this case is very reliable – the defence agrees that its admission is conclusive of guilt. It is also crucial to the Crown’s case – its exclusion would put an end to the prosecution.
[108] The charges in this case are serious. They involve a loaded gun, and large quantities of fentanyl and cocaine. These items create a significant danger to the community: R. v. Mengesha, 2022 ONCA 654, at para. 14; R. v. Omar, 2018 ONCA 975, at paras. 128-138, per Brown J.A. (dissenting), rev'd 2019 SCC 32 for the reasons of Brown J.A.; R. v. Ismail, 2024 ONCA 945, at para. 17; R. v. Tim, 2022 SCC 12, para. 99.
[109] This factor strongly favours admission.
The Final Balancing
[110] The breaches in this case were moderately serious but their impact on Mr. Lam’s Charter-protected interests was minimal. Society’s interest in an adjudication on the merits is high. The first line of inquiry moderately supports exclusion, the second weakly supports it, and the third strongly pulls towards inclusion. Having balanced the three Grant factors, I conclude that the administration of justice would be better maintained by the admission of the evidence.
(6) If the Initial Police Stop was Unlawful
[111] I have found that the police stopped Mr. Lam’s vehicle pursuant to a valid investigative detention. Had I found otherwise, I would still not have excluded the evidence.
[112] If the police fell short of the reasonable suspicion standard, it was by a narrow margin: R. v. Zacharias, 2023 SCC 30, at para. 52. Upon approaching Mr. Lam’s window, P.C. King smelled alcohol and marijuana. The subsequent investigation into Mr. Lam’s sobriety, the plain view discovery of the firearm, Mr. Lam’s arrest, and the vehicle search would all be consequences of the initial stop rather than independent breaches: Zacharias, at para. 47. Accordingly, the sections 8 and 9 breaches that would flow from the unlawful stop would not significantly increase the seriousness of the Charter-infringing conduct: Zacharias, at paras. 52-53.
[113] The impact on Mr. Lam’s Charter-protected rights would increase in this situation. There would be a causal link between the breaches and the discovery of the firearm and the seizure of the evidence. Mr. Lam’s arrest would also be considered unlawful. While his expectation of privacy in the vehicle was reduced, the arrest and subsequent searches would still have a more significant effect on his privacy, liberty, and dignity. When considered alongside the breaches of sections 10(a) and 10(b), the second Grant factor would moderately support exclusion of the evidence.
[114] The analysis under the third Grant factor would remain the same.
[115] Considering all the relevant circumstances, the combined weight of the first two Grant factors would still be outweighed by the strong public interest in admitting the evidence: Beaver, at para. 135; Zacharias, at para. 76; R. v. Buakasa, 2023 ONCA 383, at para. 59; R. v. Ajiroba, 2025 ONCA 181.
CONCLUSION
[116] The defence concedes that, if admitted, the evidence establishes Mr. Lam’s guilt on all counts beyond a reasonable doubt.
[117] For the reasons set out above, the application to exclude the evidence is dismissed. Mr. Lam is therefore found guilty of all charges.
Released: June 20, 2025
Signed: Justice Joseph Hanna
Summary
This decision addresses the admissibility of evidence seized following a traffic stop initiated after a 911 call reporting suspicious activity near a bank. The accused, Jaydan Lam, was charged with multiple firearm and drug offences. The key legal issues involved whether the police had reasonable suspicion to justify the investigative detention and whether there were breaches of the accused’s Charter rights under sections 8, 9, 10(a), and 10(b). The court found the initial detention lawful, the observation of the firearm in plain view lawful, and the subsequent arrest and search valid. Although there were breaches of the right to be informed of reasons for detention and the right to counsel, these were deemed negligent and not severe enough to exclude the evidence under section 24(2) of the Charter. The evidence was admitted, and the accused was found guilty.
Interesting Citations Summary
This case provides a detailed application of the reasonable suspicion standard for investigative detentions, emphasizing the role of 911 calls as a basis for police action. It clarifies the scope of the plain view doctrine in vehicle stops and the timing and content of Charter rights advisements under sections 10(a) and 10(b). The decision also applies the three-part Grant test for exclusion of evidence, balancing police negligence against the public interest in prosecuting serious firearm and drug offences. The case references a broad range of recent and foundational authorities, making it a useful resource for understanding investigative detentions, Charter rights, and evidence admissibility in Ontario.
Keywords
- Jaydan Lam
- Investigative detention
- Reasonable suspicion
- Plain view doctrine
- Firearm possession
- Controlled Drugs and Substances Act
- Section 24(2) Charter
- Section 10(a) Charter
- Section 10(b) Charter
- Police negligence
- Evidence admissibility
- Ontario Court of Justice
Areas of Law
- Criminal Law
- Constitutional Law (Charter Rights)