Her Majesty the Queen v. Jasfa Brown

COURT FILE NO.: 0152/12-12-12-70000276-0000

DATE: 20130618

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JASFA BROWN

COUNSEL: E. Pancer, for the Crown S. Z. Green, for the Attorney General of Ontario L.K. Wildman, for the Accused

HEARD: March 11, 12, 14, 15, 18, & 19, 2013

RULING ON CHARTER APPLICATION TO EXCLUDE EVIDENCE PURSUANT TO SECTIONS 8, 9, and 10(a) and (b) and 24(2)

TABLE OF CONTENTS

EVIDENCE.. 3

Testimony of Police Constable Andrei Pershin. 3

Testimony of Police Constables Trevor Perks and Tommy Kung. 9

The pat-down search for weapons. 11

Arrival at 54 Division. 13

Officers’ Evidence regarding Mr. Brown’s Conduct and Demeanour. 14

LEGAL ANALYSIS. 14

The Roadside Stop. 14

First Time Period: The initial detention as a result of the vehicle stop pursuant to s. 73(3) of the HTA 15

Second Time Period: The interval of time between the vehicle stop and P.C. Pershin’s request that Mr. Brown step out of the car 18

Third time period: P. C. Pershin’s advising Mr. Brown that he was under investigative detention and his request that he step out of the vehicle so that he could search it 19

Were there sufficient grounds for an investigative detention?. 20

Were there sufficient grounds to arrest Mr. Brown for possession of marijuana?. 21

Fourth time period: The pat-down safety search, which led to the discovery of the knife and loaded revolver 25

Was the pat-down search reasonably necessary?. 25

Was the pat-down search carried out within the parameters outlined in R. v. Mann?. 26

Mr. Brown’s ss. 10 (a) and (b) Charter rights. 28

Were Mr. Brown’s ss. 10(a) and (b) Charter rights violated before he was asked to step out of the car? 28

Were Mr. Brown’s ss. 10(a) and (b) Charter rights violated after he was asked to step out of the car? 30

Did P.C. Kung’s question, “Any weapons?” constitute a search for the purposes of s. 8? Did asking this question without first advising Mr. Brown of his rights to counsel result in a s. 10(b) Charter breach?. 30

Section 24(2) of the Charter. 32

Inquiry 1: Seriousness of the Charter-infringing State conduct 32

Inquiry 2: Impact on the Charter-protected interests of the accused. 34

Inquiry 3: Society’s interest in an adjudication on the merits. 35

Balancing the factors under the three lines of inquiry. 35

CONCLUSION.. 35

garton j.:

[1] The accused, Jasfa Brown, age 29, is charged with the possession of a loaded .38 calibre handgun and related offences. He is also charged with carrying a concealed weapon, to wit, a knife, and possession of 5.49 grams of crack cocaine. The firearm and knife were seized from his person by police officers following a traffic stop pursuant to the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”). The cocaine was found in the back seat of the police cruiser used to transport Mr. Brown to 54 Division after his arrest.

[2] Mr. Brown brought an application for an order excluding as evidence the firearm, knife and crack cocaine pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms on the basis that his ss. 8, 9, and 10(a) and (b) rights were violated. I dismissed the application on March 22, 2013, with reasons to follow. These are those reasons.

EVIDENCE

Testimony of Police Constable Andrei Pershin

[3] On January 26, 2011, at 3:14 p.m., P.C. Pershin was driving northbound on O’Connor Drive at St. Clair Avenue East in Toronto. While stopped at a red light, he observed that the vehicle ahead of him, a red 1995 Acura Integra, had a heavy bluish-black tint on the rear window. When the light turned green, P.C. Pershin continued to follow the Acura, which was in the passing lane. He then pulled up beside it in the curb lane and observed the same heavy tint on the front and rear side windows. The tint was such that he could not see who was in the vehicle or who was driving it. This confirmed in his mind that there was a violation of s. 73(3) of the HTA, which states:

No person shall drive on a highway a motor vehicle on which the surface of the windshield or window to the direct left or right of the driver’s seat has been coated with any coloured spray or other coloured or reflective material that substantially obscures the interior of the motor vehicle when viewed from outside the motor vehicle.

[4] P.C. Pershin pulled in behind the Acura and followed it for a short while before pulling it over. He parked his scout car about 30 to 40 feet behind it and then walked over to the driver’s window. As the window was lowered, P.C. Pershin immediately detected a strong and pungent smell of fresh dried marijuana. He testified that he was able to distinguish the smell of fresh dried marijuana from that of burnt marijuana as a result of training he received at the Ontario Police College where he was exposed to the smell of both substances.

[5] Mr. Brown, the driver, was the only person in the vehicle. P.C. Pershin had a brief conversation with him regarding the smell of marijuana emanating from the vehicle.

[6] P.C. Pershin immediately recognized Mr. Brown as a result of three prior interactions with him. He described those interactions as follows:

i) In 2010, P.C. Pershin met Mr. Brown during a police “walk through” of an apartment building at 390 Dawes Road. Mr. Brown was one of three people in a stairwell. He was smoking marijuana. P.C. Pershin decided to caution rather than arrest him. During their conversation, Mr. Brown disclosed that he had lost an eye in a shooting incident in which he was the victim of an attempt murder.

ii) On a later date in 2010, P.C. Pershin encountered Mr. Brown during another walk through at 390 Dawes Road. On this occasion, Mr. Brown was in the company of Roy Sills, who was found in possession of multiple narcotics. Mr. Sills was arrested. Mr. Brown was investigated but not charged.

iii) A day or two after the second encounter, P.C. Pershin observed Mr. Brown, Mr. Sills and Mr. Sill’s surety standing at an intersection near 390 Dawes Road. P.C. Pershin investigated Mr. Sills for a possible breach of his bail conditions.

[7] P.C. Pershin testified that while he was stopped behind the Acura at the red light and after noticing the dark-tinted rear window, he ran a licence plate check to determine the status of the vehicle. He did not recognize the owner’s name, “Jasfa Nairobi Brown”, or connect it to the accused at that time. His purpose in running the check was for officer safety. He explained that if, after making further observations, he determined that there was a s. 73(3) violation and he decided to pull the car over, he would know what he was dealing with. This initial computer check did not reveal any information that caused P.C. Pershin to have concerns for his safety.

[8] P.C. Pershin testified that whenever he pulls over a motor vehicle, he always tells the driver the reason for the stop. It is an important part of his routine. He testified that he has never deviated from this practice in the hundreds of stops that he has made during his six years as an officer with the traffic unit and that his stop of Mr. Brown was no exception. Although P.C. Pershin had no note in his notebook of having advised Mr. Brown that he had stopped him “for tinted windows”, he was confident that he had done so.

[9] P.C. Pershin was cross-examined extensively regarding his failure to make a note about telling Mr. Brown the reason for the HTA stop. It was pointed out to him that he was careful to make accurate notes and that he had recorded parts of his conversation with Mr. Brown verbatim or put certain words in quotation marks. The officer agreed that when he advises a detainee about his rights to counsel, he always makes a note of that fact and that if it is not in his notes, it means he did not give the rights to counsel. Crown counsel argued that there is a marked difference in the level of significance between telling an accused about his s. 10(b) Charter rights and advising a motorist why he has been stopped under the HTA. Having carefully considered this aspect of P.C. Pershin’s evidence, I am satisfied that he followed his normal practice in this case and that he did, in fact, tell Mr. Brown that he was stopped for “tinted windows.”

[10] P.C. Pershin asked for and Mr. Brown produced his driver’s licence, vehicle ownership and insurance card. As soon as P.C. Pershin saw the insurance card, he suspected that it was fake, based on a bulletin posted at the police station. He spoke briefly to Mr. Brown about the validity of the card and then returned to his scout car.

[11] P.C. Pershin testified that, in hindsight, he should have dealt with the criminal investigation first. However, at the time, he was “side-tracked” by the false insurance document. After returning to his cruiser, he confirmed through a telephone call that the insurance card was, in fact, invalid. This took about ten minutes. He then walked back to Mr. Brown’s car, advised him that he could not drive the vehicle because it was uninsured, and told him to arrange for a tow truck. Mr. Brown, who remained seated in his vehicle, immediately picked up his cell phone and made a call. P.C. Pershin assumed that he was calling a towing company.

[12] P.C. Pershin testified that he gave Mr. Brown the option of calling a tow truck himself in order to save him some money: it would have cost Mr. Brown more money if the police arranged for the tow.

[13] P.C. Pershin returned once again to his scout car, where he conducted a “unified” or more extensive search on his police computer regarding Mr. Brown’s background. This search had a dual purpose: to find out if Mr. Brown had a criminal record or any outstanding charges and to obtain further information regarding the lack of insurance. P.C. Pershin wanted to know if Mr. Brown had previously produced the false insurance card to any other police officer, which would constitute a further offence under the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25 (“CAIA”). P.C. Pershin then made out five separate summonses with respect to the dark-tinted windows and lack of insurance.

[14] At about 3:30 p.m., two other officers from 54 Division, Constables Perks and Kung, happened upon the scene and drove up beside P.C. Pershin’s scout car. P.C. Pershin had a brief conversation with them. He advised them about the Acura’s tinted windows and lack of insurance and asked them to stand by. P.C. Pershin assumed that the officers understood that he was requesting them to stand by for the purpose of officer safety. In cross-examination, he testified that he might also have mentioned his intention to search the Acura during this initial conversation with Perks and Kung.

[15] P.C. Kung parked his scout car behind P.C. Pershin’s car. He and P.C. Perks remained in their vehicle.

[16] P.C. Pershin’s computer checks revealed that Mr. Brown had been convicted in 2008 for operating a vehicle without valid insurance and that in 2004 and 2007 he had been charged with firearms offences. P.C. Pershin walked over to where Constables Perks and Kung were parked and told them about the lack of insurance, the firearms charges and that Mr. Brown had been involved in a shooting incident as the victim of an attempt murder. He also told them that he had detected the smell of fresh marijuana emanating from Mr. Brown`s car and that he wanted to get Mr. Brown out of his car so that he could conduct a search in the area where Mr. Brown was seated.

[17] P.C. Pershin testified that he had an honest belief that Mr. Brown was in possession of marijuana and believed that he had sufficient grounds for an investigative detention. However, he did not believe that he had sufficient grounds to arrest Mr. Brown.

[18] It was P.C. Pershin’s understanding at the time that he could lawfully search the Acura pursuant to his investigative detention of Mr. Brown. He testified that he now realizes that he could only have searched the vehicle if he had grounds to arrest Mr. Brown. P.C. Pershin appeared contrite and somewhat chagrined about his mistake in this regard.

[19] P.C. Pershin testified that his grounds for the investigative detention included the smell of fresh marijuana, as well as his prior dealings with Mr. Brown. As indicated above, he had found Mr. Brown smoking marijuana in 2010; later that year, he found him in the company of Mr. Sills, who was in possession of multiple narcotics, money and a cell phone; and a few days later, he saw Mr. Brown again in the company of Mr. Sills, although this contact did not involve any drugs.

[20] P.C. Pershin acknowledged testifying at the preliminary hearing that his grounds for the investigative detention were based solely on the smell of fresh dried up marijuana. He testified at that time as follows:

Q. Your search is grounded on – basically your search was grounded on the smell of fresh cut marijuana?

A. Yes, it was.

Q. And that is all it is grounded on?

A. Yes, it was.

[21] At this application, when cross-examined further with respect to whether his grounds for the investigative detention included his prior dealings with Mr. Brown, P.C. Pershin testified as follows:

Q. You’ll agree with me, you didn’t say [at the preliminary hearing] that it was also grounded on the fact that I’d met Mr. Brown three times before and investigated him in connection with another guy who was charged? Or in the stairwell relating to a caution for possessing a small amount of marijuana? You don’t say that?

A. I didn’t say that, no.

Q. Right. And, in fact, the only time the issue of Mr. Brown’s connection to Mr. Sills and your interactions, the only time this ever comes up is when I ask you in cross-examination and put to you that you had known Mr. Brown in the past?

A. It’s right in my notes. Right the very first thing. I recognize male from previous …

Q. I understand. I’m talking about the interaction specifically. We went through them and you say they were in 2010?

A. Yes, they were.

Q. Okay. You seem very sure about that now. But it seemed before, you knew it was in a range, somewhere in ’09, 2010. Would it be fair for you to say that it was in, around that time? That you can’t certify it was in 2010? Is that fair?

A. I believe I testified to multiple interactions but I could only recall two.

Q. Right.

A. And the rest I could not recall.

Q. Okay. Now, you’re … it’s clear to you, you seem to recall three for sure.

A. Because we had met the next day. That’s the third interaction I did not …

Q. Right. I understand. All I’m getting at is those interactions were not detailed in your notes?

A. No.

Q. They weren’t mentioned in your notes, specifically?

A. No.

Q. And, it wasn’t mentioned in your direct examination with the Crown Attorney, in the prelim?

A. No, it was not.

Q. It came up for the first time when I put to you that you had these prior interactions. And, in fact, I put the name to you, Roy Sills, right?

A. No, you did not.

Q. You came up with that?

A. I came up with that.

Q. Okay. So, you recalled that once I got into this question of how many times have you met my client, that kind of thing, right?

A. It’s clear from my notes that I know him from previous interactions.

Q. I understand.

A. I do not expand on the extent of my knowledge.

Q. Right. But, you’re not questioning that what you said under oath at the prelim, that all your search was based on was the cut smell of fresh cut marijuana, nothing else?

A. That’s correct.

Q. Right. And that’s … And I want to understand, is that your position today?

A. That’s correct.

Q. Okay. So you’re … it had nothing to do with those interactions, it had to do with, solely with the smell of marijuana? That’s it? That’s what you said, right?

A. Is there a question?

Q. That’s what you said and that’s your position today?

A. That’s what I said, yes.

Q. And that’s your position today?

A. That’s correct.

Q. So, why were you saying that these other things were part of your basis if that was in fact …

A. I said they were in my mind.

Q. Were they not in your mind at the time of the prelim when you were being asked specifically what the basis was?

A. I don’t know why I didn’t answer.

[22] It appears from this excerpt of P.C. Pershin’s testimony that during his investigation of Mr. Brown on January 26, 2011, he had in mind his earlier dealings with him. This makes sense as he testified that as soon as he saw Mr. Brown, he recognized him as a result of those earlier dealings. It also appears from his testimony, however, that in turning his mind to the grounds for the investigative detention, P.C. Pershin relied solely on the smell of marijuana. P.C. Pershin could have relied on his prior contacts with the accused. Certainly Mr. Brown’s prior use of marijuana and his association with someone found in possession of multiple narcotics would be relevant factors to consider in assessing whether there were grounds for the detention. However, in the end, it appears that P.C. Pershin did not take these factors into account and relied only on the smell of marijuana as his grounds for the investigative detention, the significance of which will be discussed below.

[23] P.C. Pershin, as well as Constables Perks and Kung, who were behind him, approached Mr. Brown’s car in single file as the car was parked quite close to the road and there was a fair bit of traffic. Mr. Brown had been stopped for about 20 to 25 minutes at this point. P.C. Pershin had spent the majority of that time in his scout car checking on the insurance and making out the traffic tickets. While seated in his car, he did not have a view of Mr. Brown as he could not see through the Acura’s heavily tinted rear window. He was also focused on his computer searches and paperwork and apparently did not concern himself with what Mr. Brown might or might not be doing with respect to any marijuana that may be present in the vehicle.

[24] When P.C. Pershin reached Mr. Brown’s car, he noticed that the rear driver’s side window had been rolled down and that there was an unopened beer can in the back seat. He had not observed the beer can earlier because of the heavily tinted windows. He and Mr. Brown, who was still talking on his cell phone, had a brief conversation about the beer. P.C. Pershin then asked Mr. Brown to step out of the vehicle and told him that he was under investigative detention. He did not say that the investigation was with respect to the possession of marijuana. He did not caution Mr. Brown or advise him of his rights to counsel.

[25] P.C. Pershin testified that the only reason he asked Mr. Brown to get out of his car was so that he could search the area of the driver’s seat. Had it not been for that search, there was no need, from P.C. Pershin’s perspective, to have Mr. Brown get out of the vehicle.

[26] Mr. Brown exited the car and continued to talk on his cell phone as he walked towards P.C. Pershin’s scout car at Officer Kung’s direction. P.C. Kung advised him that he was under investigative detention with respect to the possession of marijuana and that he would be patted down for weapons. Constables Perks and Kung did not caution Mr. Brown or advise him of his rights to counsel at that time; they decided to first conduct the pat-down search as a result of officer safety concerns.

[27] P.C. Pershin limited his search to the driver’s area of the car, which included the door pocket, the console, the top of the sun visor, the floor under the driver’s seat, and the ashtray. In the ashtray, he found a leafy green tobacco-type of material that appeared to be marijuana. He did not seize this substance. There were multiple containers of carpet perfumes in the vehicle. P.C. Pershin did not search the front passenger side of the car, the rear seat or the trunk.

[28] P.C. Pershin had just completed his search when he heard a commotion and saw that Mr. Brown had been handcuffed to the rear. P.C. Perks was holding what appeared to be a black revolver gun. P.C. Pershin immediately went over to assist. P.C. Kung told him that a knife and gun had been located on Mr. Brown’s person. P.C. Pershin stood by as Mr. Brown was searched incidental to the arrest. The accused was then transported to 54 Division. P.C. Pershin remained on scene with the Acura.

[29] At 4:17 p.m., P.C. Kung called P.C. Pershin to advise him that drugs had been found in the rear of the scout car used to take Mr. Brown to the police station. P.C. Pershin arranged for the Acura to be searched using a “police drug dog.” No drugs were found in the vehicle as a result of that search. The Acura was eventually towed from the scene.

[30] In cross-examination, P.C. Pershin was questioned as to whether or not the tinting on the Acura’s side windows prevented him from seeing the interior of the vehicle. He acknowledged testifying at the preliminary hearing that “when I looked inside I couldn’t see who was driving the vehicle, whether it was a female or male.” P.C. Pershin explained that this was his way of saying that he could not see the car’s interior. This explanation is supported by his notes, which state: “Unable to see inside the vehicle, unable to tell who is driving, male or female.” That the interior of the Acura was substantially obscured is supported by the fact that Mr. Brown pleaded guilty to the offence under s. 73(3) of the HTA on January 24, 2013. He also pleaded guilty to using a false insurance card contrary to s. 13.1(1)(b) of the CAIA.

Testimony of Police Constables Trevor Perks and Tommy Kung

[31] Constables Perks and Kung testified that police procedure dictates that they check the back seat of their scout car at the start of every shift in order to ensure that no items have been left behind by prisoners transported in the vehicle. Officers normally note the result of such a search in their notebooks.

[32] P.C. Kung testified that on January 26, 2011, he followed this standard protocol by checking the back seat of the scout car assigned to him at the start of his 3:00 p.m. shift. The back seat can be checked by either lifting it up or completely removing it. P.C. Kung could not recall which method he employed on this particular day. In any event, he found no property in the back seat and accordingly noted the result in his notebook: “Back seat okay.”

[33] By the time P.C. Perks got into the car at 3:24 p.m., P.C. Kung had already searched the back seat and was sitting in the driver’s seat. At 3:30 p.m., the officers happened upon the scene where P.C. Pershin had pulled over Mr. Brown’s car. P.C. Kung pulled up alongside P.C. Pershin’s scout car. According to P.C. Kung, Pershin told them at that time about the smell of marijuana emanating from the Acura. He may also have mentioned the reason for the stop – that is, the dark tinted windows. When asked whether he needed back-up, Pershin indicated “yes.” P.C. Kung then parked his scout car behind P.C. Pershin’s vehicle.

[34] According to P.C. Perks, it was during this initial conversation that P.C. Pershin advised them not only about the vehicle stop and the smell of marijuana, but also that there was only one person in the car, that there was no insurance, that the driver had been charged with a firearms offence in the past (P.C. Perks recalled being told of only one as opposed to two such charges) and that Mr. Brown had also been the victim in a shooting.

[35] P.C. Kung testified that it was not until P.C. Pershin walked back to their scout car and spoke to them a second time that he provided more detailed information; that is, in addition to the smell of marijuana and the stop for tinted windows, he told them the following: that he had investigated Mr. Brown for producing a false insurance card; he had dealt with Mr. Brown on other occasions; Mr. Brown had been the victim of a shooting; and Mr. Brown had “prior gun and drug charges.” The reference to drug charges was clearly a mistake on P.C. Kung’s part as P.C. Pershin never told him that Mr. Brown had faced or was facing such charges.

[36] When P.C. Pershin advised that he was going to search the Acura, P.C. Kung told him that he and P.C. Perks would do a pat-down search of Mr. Brown for weapons. Both P.C. Kung and P.C. Perks testified that they felt such a search was necessary for officer safety in light of what they considered to be serious information given to them regarding Mr. Brown’s background. P.C. Kung testified that in light of that information, he felt there was a “likelihood that Mr. Brown could be armed with a weapon.” He testified, “I did not feel safe until I did a pat down for weapons.” P.C. Perks testified, “We had to make sure he [Mr. Brown] and we were safe.”

[37] As P.C. Pershin began walking towards Mr. Brown’s car, P.C. Kung did a quick computer check of the Acura’s licence plate on his mobile terminal. This search, which took 10 to 15 seconds, did not provide any information that would give rise to officer safety concerns. P.C. Perks did not recall or made no mention of this computer search in his evidence.

[38] Officers Perks and Kung exited their scout car and followed P.C. Pershin to Mr. Brown’s vehicle. P.C. Kung had concerns because P.C. Pershin was alone. After Mr. Brown got out of the Acura, P.C. Kung asked him to step over to P.C. Pershin’s scout car. Mr. Brown obliged. He continued to speak on his cell phone as the officers escorted him to the rear of P.C. Pershin’s vehicle. At that point, Mr. Brown either ended his call on his own or was directed to end it by one or other of the officers.

[39] P.C. Kung told Mr. Brown to place his hands on the back of the scout car. He also told him that he could not leave because he was under investigative detention “for P.C. Pershin’s investigation regarding marijuana” and that he would be patting him down for weapons. Mr. Brown stated that he needed to pick up his child at school at 3:30 p.m. Officer Kung asked him, “Any weapons?” Mr. Brown replied, “No.” At the time of this exchange, P.C. Pershin was searching the area of the driver’s seat in the Acura.

[40] P.C. Kung was cross-examined with respect to a note in his memo book that Mr. Brown was under investigative detention “for drugs and weapons investigation.” P.C. Kung testified that this entry in his notes is a mistake as Mr. Brown was only under investigation with respect to drugs. He explained that when he made his notes later on at the station, he was influenced by the fact that weapons – a gun and a knife – had been discovered during the course of the investigation. He denied that he was pursuing a weapons investigation. The purpose of the search was not to find evidence but to pat-down Mr. Brown to ensure, for officer safety purposes, that he did not have any weapons on his person. I found P.C. Kung’s explanation for this misstatement in his notes credible and accept his evidence that he was not searching for evidence when he performed the pat-down search.

[41] P.C. Kung testified that his normal practice before conducting a safety search is to ask the detainee if he or she has any weapons. P.C. Perks testified to a similar effect – that asking a person if they have any weapons is a “pretty standard question” prior to a pat-down search. There is always the concern that an officer could be injured by a sharp object, such as a needle or unsheathed knife, if not made aware of it before the search.

[42] Neither P.C. Perks nor P.C. Kung cautioned Mr. Brown or gave him his rights to counsel before the pat-down search or before P.C. Kung asked him if he had any weapons.

The pat-down search for weapons

[43] Mr. Brown was wearing multiple layers of clothing on this particular day. He was wearing grey track pants under his jeans and two short-sleeved black shirts and a long-sleeved red shirt under his winter jacket. The jacket was described as large and thick and had a hoody.

[44] When the officers commenced the search, P.C. Perks was on Mr. Brown’s right side; P.C. Kung was to his left.

[45] P.C. Kung patted the left jacket pocket and then Mr. Brown’s left front jeans pocket. From there, he intended to pat down Mr. Brown’s back jeans pockets, which were covered by his jacket. In order to access those pockets, he lifted up the jacket. P.C. Kung testified that he felt something hard in the left back pocket but “it wasn’t anything.” He then lifted up the right side of the jacket and observed a black pocket knife protruding from the right back jeans pocket. It was clipped into the pocket. P.C. Kung removed the knife, put it in his own pocket and commented to Mr. Brown, “I thought you had no weapons on you.” Mr. Brown responded, “I forgot.”

[46] P.C. Kung acknowledged that he made no note of this utterance in his notebook. Nor did he mention it at the preliminary hearing. He testified that he forgot to put it in his notes but that he has an independent recollection of it.

[47] One or two seconds after hearing P.C. Kung say that he had found a knife, P.C. Perks felt a large hard object in Mr. Brown’s right front jeans pocket. He did not know what it was. Upon lifting up Mr. Brown’s shirt, he saw the handle of a gun. He asked Mr. Brown, “Is that a gun?” Mr. Brown replied, “Yes.”

[48] P.C. Perks immediately took hold of Mr. Brown’s right hand. P.C. Kung took hold of his left hand, told Mr. Brown not to move, and handcuffed him to the rear. The time was 3:35 p.m.

[49] P.C. Perks then removed the firearm from Mr. Browns’ pocket, walked away or distanced himself from Mr. Brown, and shouted to P.C. Pershin that he and P.C. Kung had found a gun.

[50] P.C. Perks acknowledged that his notes regarding the pat-down search make no mention of his having felt a large hard object in Mr. Brown’s right jeans pocket before lifting up any clothing. His notes state:

Escort says found a knife. One to two seconds later, I lifted male’s shirt and noticed a gun handle sticking out of male’s right front jeans pocket.

[51] P.C. Perks explained that his notes are for the purpose of refreshing his memory and do not necessarily include every detail. He agreed that it was a mistake not to include in his notes the reason as to why he lifted up the shirt. He also agreed that he made no mention at the preliminary hearing of having felt a large hard object prior to lifting up the shirt. At the preliminary hearing, he testified as follows:

As we were conducting the pat down search my escort advised that he had found a knife. Approximately a second or two after hearing him say that, I lifted up the male’s shirt and observed a handle sticking out of his front right jeans pocket.

[52] P.C. Perks maintained that he specifically recalls and has an independent recollection of feeling the hard object in the pocket and that that is the reason why he lifted the shirt.

[53] P.C. Kung searched Mr. Brown incidental to his arrest as P.C. Pershin stood by. He searched Mr. Brown’s pockets and removed various items, including $441.83 in cash, a cell phone and three bandanas. He also removed his toque and belt. He did not remove any other clothing. After the search, he placed Mr. Brown in the rear passenger seat of his scout car. He then left the car, turned over the property he had seized to P.C. Perks, including the knife, returned to the car and advised Mr. Brown that he was under arrest for possession of a loaded gun.

[54] P.C. Kung advised Mr. Brown of his rights to counsel by reading those rights from the back of his memo book. He asked Mr. Brown if he understood and if he wanted to call a lawyer. Mr. Brown stated that he wanted to call his wife so that she could pick up their son at school. P.C. Kung then asked Mr. Brown, “Do you have a lawyer?” Mr. Brown replied, “Yes.” P.C. Kung could not recall if Mr. Brown ever told him who his lawyer was or whether he ever determined whether Mr. Brown wanted to speak to counsel. He stated that these matters may not have been pursued at the scene because it was anticipated that contact with counsel would be facilitated at 54 Division, which was only a two-minute drive away. There is no evidence that Mr. Brown’s rights to counsel were not implemented at the police station.

[55] P.C. Kung also cautioned Mr. Brown by reading the caution from the back of his memo book.

[56] P.C. Kung agreed in cross-examination that he did as thorough a search of Mr. Brown after his arrest as he felt he could do in the circumstances. A more thorough search would have entailed removing all of Mr. Brown’s various layers of clothing. However, no clothes other than his belt and toque were removed as the search was conducted at the side of the road and in very cold weather. Mr. Brown was in handcuffs, which prevented his jacket from being completely removed. P.C. Kung opened the jacket and felt the front of Mr. Brown’s body. He may also have felt around his back. He patted down Mr. Brown’s arms and legs. Mr. Brown was compliant during the search.

[57] P.C. Perks did not see or participate in the search of Mr. Brown incidental to his arrest as he was occupied with trying to remove the ammunition from the fully-loaded .38 calibre revolver that he had seized. His attempts in this regard were unsuccessful. P.C. Kung, after advising Mr. Brown of his rights to counsel and cautioning him, left the car and tried to assist in proving the gun safe. However, neither he nor P.C. Pershin succeeded in this endeavour. P.C. Kung went back and asked Mr. Brown how to unload the gun but Mr. Brown was of no assistance. As a result, P.C. Perks ended up carrying the loaded firearm with him in the front seat of the scout car as he and P.C. Kung drove Mr. Brown to the police station.

Arrival at 54 Division

[58] Officers Kung and Perks left the scene with Mr. Brown at 3:49 p.m. and arrived at 54 Division at 3:51 p.m. P.C. Kung exited the car and went into the station to find an officer who could prove the gun safe. At 4:00 p.m., P.C. Hogan came out and took the gun from P.C. Perks.

[59] There was a discrepancy between the evidence of P.C. Perks and P.C. Kung as to which of them removed Mr. Brown from the scout car.

[60] P.C. Perks recalled that at some point he opened the rear passenger door and asked Mr. Brown to get out. He did not notice anything unusual about the back seat. P.C. Kung then commenced a search of the seat and came back out of the car holding a little baggie containing white powder, which later proved to be 5.49 grams of crack cocaine. P.C. Perks testified that he and Mr. Brown were standing within two feet of the scout car at the time. The officers then escorted Mr. Brown into the station and paraded him in front of Staff Sergeant Ellis. Mr. Brown was later strip-searched. No contraband was found on his person.

[61] P.C. Perks was not entirely certain whether Mr. Brown had been seated in the rear passenger side or the rear driver’s side of the scout car, although he was “fairly confident” or “pretty sure” he was on the passenger side.

[62] According to P.C. Kung, he was the one who removed Mr. Brown from the car. He opened the door, asked Mr. Brown to get out, and then closed the door. A second or two later, and without moving from where he had been standing, P.C. Kung decided that in light of the weapons found on Mr. Brown’s person, he should search the back seat immediately and in Mr. Brown’s presence rather than searching it later. It is police policy to check the back seat after transporting a prisoner.

[63] P.C. Kung testified that when he reopened the rear door, he noticed a two-inch gap between the seat and the back rest. This aroused his suspicions. He lifted up the seat and discovered the cocaine, which he showed to Mr. Brown. He asked Mr. Brown what it was. Mr. Brown stated that he didn’t know and that it wasn’t his. [The Crown does not seek to admit into evidence any statements or utterances made by Mr. Brown.] P.C. Kung then advised Mr. Brown that he would be charged with possession of cocaine. P.C. Perks was standing by with Mr. Brown as he conducted the search of the back seat.

Officers’ Evidence regarding Mr. Brown’s Conduct and Demeanour

[64] At no time during his interaction with the three officers did Mr. Brown do or say anything that would arouse suspicion. He was polite and co-operative. He stopped his vehicle without incident and produced the documents requested by P.C. Pershin. He stayed in his vehicle while P.C. Pershin checked the validity of the insurance card, conducted various computer checks and completed the summonses.

[65] Mr. Brown got out of his vehicle when asked to do so by P.C. Pershin. He complied with P.C. Kung’s direction to walk over to the scout car and place his hands on the trunk. At no point did Mr. Brown move in a suspicious manner, such as “blading” his body, which might suggest he had a gun. P.C. Pershin testified that Mr. Brown was similarly polite and co-operative during his previous interactions with him.

LEGAL ANALYSIS

The Roadside Stop

[66] The detention of Mr. Brown as a result of this roadside stop may be broken into four different time periods as events unfolded:

i) First Time Period: The initial detention as a result of the vehicle stop pursuant to s. 73(3) of the HTA;

ii) Second Time Period: The interval of time between the vehicle stop and P.C. Pershin’s request that Mr. Brown get out of the car;

iii) Third Time Period: P.C. Pershin’s advising Mr. Brown that he was under investigative detention and his request that he step out of the car so that he could search it; and

iv) Fourth Time Period: The pat-down safety search, which led to the discovery of the knife and loaded revolver. The detention at that point crystallized into an actual arrest, which led to a more thorough search by the roadside.

[67] I will first consider whether Mr. Brown’s s. 8 and/or s. 9 Charter rights were breached during these time frames. I will then deal with the issue of whether there were violations of his s. 10(a) and (b) Charter rights.

First Time Period: The initial detention as a result of the vehicle stop pursuant to [s. 73(3)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html) of the [HTA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html)

[68] Mr. Brown was detained when P.C. Pershin pulled him over for the s. 73(3) violation. Counsel for Mr. Brown submits that this detention was arbitrary.

[69] Mr. Brown originally sought an order striking down s. 73(3) of the HTA as unconstitutional on the basis that it violates ss. 7 and 15 of the Charter and could not be saved under s. 1. That application was abandoned at the outset of this hearing.

[70] Part of the anticipated argument by the defence with respect to the alleged s. 7 Charter violation was that s. 73(3) is unconstitutionally vague. Although defence counsel, during his final submissions, did not ask this court to declare s. 73(3) unconstitutional, he did assert that s. 73(3) is arbitrary because it does not provide sufficient criteria for its enforcement. It was submitted that police officers are left without any guidelines in terms of determining whether a tinted window “substantially obscures” the interior of a vehicle. As a result, a vehicle stop such as the one in this case, which was based on a s. 73(3) violation, is arbitrary and thereby constituted a violation of Mr. Brown’s s. 9 Charter rights.

[71] For the following reasons, I find that Mr. Brown was not arbitrarily detained when P.C. Pershin pulled over his vehicle for the s. 73(3) violation.

[72] As counsel for the Attorney General of Ontario submitted, s. 73(3) does not authorize detention and therefore does not engage s. 9 of the Charter. The lawful authority to stop Mr. Brown’s car came not from s. 73(3) but from s. 216(1) of the HTA, which provides as follows:

A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a motor vehicle to stop and the driver of a motor vehicle, when signaled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.

[73] Mr. Brown has not challenged the constitutional validity of s. 216(1), which has, in any event, been upheld by the Supreme Court of Canada in R. v. Ladouceur, [1990] 1 S.C.R. 1257, (1990) 56 C.C.C. (3d) 22. In Ladouceur, the Court held that a random stop pursuant to s. 216(1) is arbitrary but saved by s. 1 and is therefore constitutionally valid. Consequently, had P.C. Pershin randomly stopped Mr. Brown under s. 216(1), the stop would not have been unconstitutional.

[74] In Brown et al. v. Regional Municipality of Durham Police Service Board (1999), 43 O.R. (3d) 223, 131 C.C.C. (3d) 1, at para. 24, (C.A.), Doherty J.A. described the scope of the detention pursuant to s. 216(1) as follows:

The detention authorized by s. 216(1) of the HTA is circumscribed by its purpose. The detention is limited to the roadside and must be brief, unless other grounds are established for a further detention. The police may require production of the documents which drivers are required to have with them and may detain the vehicle and its occupants while those documents are checked against information available through the computer terminal in the police vehicle. The police may also assess the mechanical fitness of the vehicle, examine equipment for compliance with safety standards and from outside of the vehicle, make a visual examination of the interior to ensure their own safety in the course of the detention. [Footnotes and citations omitted.]

[75] At paras. 37 to 41, Doherty J.A. goes on to find that while there is no sound reason for invalidating an otherwise proper stop because the police used the opportunity afforded by that stop to further some other legitimate interest, there are strong policy reasons for invalidating a stop where the police have an additional improper purpose. Examples of “improper purposes” include purposes that are illegal, that involve the infringement of a person’s constitutional rights or that have nothing to do with the execution of a police officer’s public duty. There is no evidence of any improper purposes in the present case.

[76] In summary, the police may stop a motorist pursuant to s. 216(1) on the basis of a reasonable suspicion of a violation of a HTA offence or at random, as long as the stop has a valid HTA purpose (and absent any improper purpose). As counsel for the Attorney General pointed out, even if s. 73(3) were repealed, the police could still stop a car with tinted windows pursuant to s. 216(1) out of general safety concerns; for example, to ensure that the driver was not underage, was not using a cell phone or was wearing a seat belt. All of these matters could have been a potential concern in the present case because P.C. Pershin, as a result of the tinting, could not see the driver or even how many people were in Mr. Brown’s car.

[77] Counsel for Mr. Brown submits that s. 73(3) is arbitrary because it provides no criteria for enforcement. With respect, I disagree. Section 73(3) applies only to those drivers whose windows are tinted. The area of risk or degree of tint that is prohibited is also set out – that is, from the perspective of a person outside the vehicle, the tint must not “substantially obscure” the interior of the vehicle.

[78] There is no requirement that a law provide empirical certainty as to its scope. In Cochrane v. Ontario (Attorney General), 2008 ONCA 718, 92 O.R. (3d) 321, at paras. 38-39, leave to appeal refused [2009] S.C.C.A. No. 105, which dealt with the issue of whether the definition of “pit bull” was unconstitutionally vague, the Court stated as follows:

On the other hand, certainty is not the standard and legislation is not unconstitutionally vague simply because it is subject to interpretation. As the Supreme Court of Canada held in Nova Scotia Pharmaceutical Society, at pp. 638-639:

Legal rules only provide a framework, a guide as to how one may behave, but certainty is only reached in instant cases, where law is actualized by a competent authority. In the meanwhile, conduct is guided by approximation. The process of approximation sometimes results in quite a narrow set of options, sometimes in a broader one. Legal dispositions therefore delineate a risk zone, and cannot hope to do more, unless they are directed at individual instances.

Language is not the exact tool some may think it is. It cannot be argued that an enactment can and must provide enough guidance to predict the legal consequences of any given course of conduct in advance. All it can do is enunciate some boundaries, which create an area of risk. But it is inherent to our legal system that some conduct will fall along the boundaries of the area of risk; no definite prediction can then be made. Guidance, not direction, of conduct is a more realistic objective.

It is sufficient for the law to delineate an area of risk. It is only ‘where a court has embarked upon the interpretative process, but has concluded that interpretation is not possible’ that a law will be declared unconstitutionally vague: Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, at para. 79.

[79] In Cochrane, at para. 43, the Court lists a number of statutory provisions that the Supreme Court has upheld as not being vague. In my view, the language of s. 73(3) cannot be said to be less certain than the language used in any of those provisions.

[80] The Court in Cochrane noted that “these cases demonstrate that a law will not be struck down as being vague simply because reasonable people might disagree as to its application to particular facts.” Accordingly, with respect to s. 73(3), there might in some cases be a factual dispute as to whether a particular car’s window is so tinted that it “substantially obscures the interior of the motor vehicle when viewed from outside the motor vehicle.” However, this factual uncertainty in a particular case is not sufficient to invalidate the legislation for vagueness or to support a finding that it is arbitrary. I note that in the present case, P.C. Pershin testified that the windows of the Acura were tinted to such a degree that he was unable to see who was driving. His evidence in this regard plainly and unambiguously met the standard set by s. 73(3).

[81] I agree with the reasoning in R. v. Belair, [2005] ONCJ 345, [2005] O.J. No. 2894, at para. 58, where, in rejecting a vagueness challenge to s. 73(3), Adams J. stated:

I believe the test under s. 73(3) HTA is intelligible. A reasonable member of the public knows or ought to know about viewing into a motor vehicle. It gives fair notice to any person who adds tinting that this action may be impermissible. The accused has fair opportunity to retain opinion evidence which may contradict the prima facie case presented by the Crown. It provides coherent judicial interpretation for the trial justice who may or may not believe the prosecution or defence in the opinion on factual evidence. In other words, the defence evidence that it ‘does not fairly obscure’ may be credibly accepted over the Crown evidence which is contrary to the same set of facts.

[82] I conclude that there was no violation of Mr. Brown’s s. 9 Charter rights when P.C. Pershin pulled over his vehicle for a s. 73(3) violation. In addition, as stated earlier in these reasons, I am satisfied that P.C. Pershin told Mr. Brown why he had pulled him over – that is, because of the car’s tinted windows.

Second Time Period: The interval of time between the vehicle stop and P.C. Pershin’s request that Mr. Brown step out of the car

[83] While the initial stop of Mr. Brown’s car was in relation to the HTA, the stop evolved into an investigation under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (CDSA), as soon as P.C. Pershin smelled marijuana coming from the driver’s side of the vehicle. He spoke to Mr. Brown about the smell and then proceeded with the HTA investigation, which led to the CAIA investigation. After completing the investigations with respect to the provincial offences, which culminated in the issuance of five summonses, P.C. Pershin turned his mind back to the criminal investigation.

[84] The fact that P.C. Pershin’s initial focus was on the HTA offence did not necessarily preclude him from pursuing the criminal investigation. A court must proceed step by step through the interactions of the police and a detainee from the initial stop onwards to determine whether, as the situation developed, the police stayed within their authority, having regard to the information lawfully obtained at each stage of their inquiry: R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851.

[85] In the present case, after the initial lawful stop, P.C. Pershin spoke to Mr. Brown and obtained his driver’s licence, ownership, and insurance card, which he immediately suspected was invalid. P.C. Pershin returned to his scout car, where he called the insurance company and received information that the card was, in fact, false. He then approached Mr. Brown and told him to arrange for a tow truck.

[86] As noted above, as Mr. Brown was making a call on his cell phone, P.C. Pershin returned to his scout car, where he conducted further computer checks that had a dual purpose: to obtain further information regarding the lack of insurance and to find out if Mr. Brown had a criminal record or outstanding charges. He wanted to determine whether Mr. Brown had provided the false insurance card to any other officer, which would have constituted a further offence under the CAIA. He learned that Mr. Brown had been convicted in 2008 for operating a vehicle without valid insurance. He also learned that Mr. Brown had been charged in 2004 and 2007 with firearms offences.

[87] P.C. Pershin made out the five summonses under the HTA and CAIA. When they were completed, he again approached Mr. Brown, this time with a view to proceeding with the criminal investigation. Up until that point, virtually all of the time that Mr. Brown had been detained at the roadside had been taken up by P.C. Pershin’s investigation of the HTA and CAIA offences. Pursuant to those investigations, P.C. Pershin asked Mr. Brown to produce documents that all drivers are required to carry with them. The officer also conducted computer checks of those documents, made certain calls in connection with the suspect insurance card, and made out the summonses. All of these actions by P.C. Pershin were within the scope of the detention authorized by s. 216(1) of the HTA, as described by Doherty J.A. at para. 24 in Brown. I conclude that Mr. Brown’s detention pursuant to the HTA and CAIA during this second time period was lawful.

[88] I also find that Mr. Brown’s detention with respect to the more serious offence of possession of marijuana was lawful and, for the reasons discussed below, find that there were sufficient grounds for an investigative detention with respect to that offence. From an objective point of view, there were sufficient grounds for arrest. In any event, even if P.C. Pershin had not detected the smell of marijuana, thus obviating the need for the criminal investigation, Mr. Brown would still have been detained at the roadside up until the end of the second time period. It was only when P.C. Pershin handed Mr. Brown the summonses, told him that he was under investigative detention and asked him to step out of the car that Mr. Brown was then detained solely with respect to the criminal investigation.

[89] I conclude that Mr. Brown was not arbitrarily detained during the period between the time of the vehicle stop and the time that he was asked by P.C. Pershin to get out of the car.

Third time period: P. C. Pershin’s advising Mr. Brown that he was under investigative detention and his request that he step out of the vehicle so that he could search it

[90] P.C. Pershin testified that he asked Mr. Brown to step out of the car so that he could search the area of the driver’s seat. But for that search, there was no need to have Mr. Brown exit the vehicle. Had Mr. Brown not been asked to get out of the vehicle, the pat-down search that led to the seizure of the knife and gun would not have occurred.

[91] P.C. Pershin testified that he had an honest belief that Mr. Brown was in possession of marijuana and believed that he had sufficient grounds for an investigative detention in relation to that offence. The officer was of the mistaken view that he could lawfully search the Acura pursuant to an investigative detention. He now realizes that he could only have lawfully searched the car if he had sufficient grounds for arrest. He testified that he did not believe that he had sufficient grounds to arrest Mr. Brown for the possession of marijuana.

[92] Crown counsel acknowledges that if P.C. Pershin only had grounds for an investigative detention and not grounds for arrest, then he would have lacked the lawful authority to carry out a warrantless search of the vehicle. The search of the vehicle would, in that case, constitute a breach of Mr. Brown’s s. 8 Charter rights. In addition, without grounds to arrest Mr. Brown, P.C. Pershin’s request that Mr. Brown step out of the vehicle for the purpose of conducting the unlawful search of the car, and the pat-down search that followed, would have violated Mr. Brown’s ss. 8 and 9 Charter rights. However, Crown counsel submits that at the time that P.C. Pershin asked Mr. Brown to get out of the car, there were, from an objective point of view, reasonable grounds for arrest. Therefore, the fact that the officer searched the car prior to Mr. Brown’s arrest did not result in the violation of either Mr. Brown’s ss. 8 or 9 Charter rights.

[93] Crown counsel relies on three cases to support her position: R. v. Polashek, (1999), 45 O.R. (3d) 434, [1999] O.J. No. 968 (C.A.); R. v. Amofa, 2011 ONCA 368, [2011] O.J. No. 2095; and R. v. Debot, [1989] 2 S.C.R. 1140. These cases hold that so long as an officer has probable cause to arrest a suspect, the fact that he or she postpones the decision until after the search is not fatal. Referring to Martin J.A.’s judgment in the Court of Appeal, the Court in Debot explained the reasoning behind this proposition at para. 30:

This is so because the reasonable belief that the suspect has committed the offence of being in possession of a prohibited drug may turn out to be erroneous. Alternatively, the officer may still have reasonable grounds for making the arrest but conclude there would be no chance of obtaining a conviction without the evidence. In these circumstances an arrest would be pointless.

[94] The position of the defence is that P.C. Pershin did not have sufficient grounds for an investigative detention let alone sufficient grounds for arrest. Furthermore, even if the grounds for an investigative detention did exist, that did not authorize P.C Pershin to search the car, which Mr. Brown owned and in which he had a reasonable expectation of privacy. This unlawful search was the sole basis for P.C. Pershin’s request that Mr. Brown step out of the car, which led to the pat-down search and which constituted violations of Mr. Brown’s ss. 8 and 9 Charter rights.

[95] Counsel for Mr. Brown distinguished Polashek, Amofa, and Debot from the present case on the basis that the arresting officers in those cases, at the time of the search, subjectively believed that they had grounds to arrest the accused but chose not to. In the present case, P.C. Pershin did not subjectively believe that he had grounds to arrest Mr. Brown at the time of the search. Even if there were, objectively, sufficient grounds for arrest, the absence of P.C. Pershin’s subjective belief that such grounds existed, means that the two-pronged test in R. v. Storrey, [1990] 1 S.C.R 241 has not been met. The defence therefore submits that the searches of Mr. Brown’s car and his person constituted violations of his ss. 8 and 9 Charter rights.

Were there sufficient grounds for an investigative detention?

[96] In R. v. Simpson (1993), 12 O.R. (3d) 182, 79 C.C.C. (3d) 482 (C.A.), Doherty J.A., speaking for the Court, held that where a person is detained in the course of efforts to determine whether the person is involved in criminal activity being investigated by the police, the detention can only be justified if the detaining officer has some articulable cause for the detention. There must be a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is implicated in the activity under investigation. This is a lesser standard than the requirement of reasonably-based probability necessary for an arrest.

[97] The Supreme Court in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 34, stated:

The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised on reasonable grounds. 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.

[98] An evaluation of the basis for an investigative detention must take into account the context in which the detention occurs. As with an arrest, a decision to detain must sometimes “be made quickly in volatile and rapidly changing situations … on available information that is often less than exact or complete”: R. v. Golub (1997), 34 O.R. (3d), 117 C.C.C. (3d) 193 (C.A.), at para. 18.

[99] In the present case, P.C. Pershin testified that his grounds for the investigative detention of Mr. Brown were based on what he described as the strong and pungent smell of fresh, dried up marijuana, as opposed to burnt marijuana, that immediately emanated from Mr. Brown’s car when the driver’s window was rolled down. P.C. Pershin had smelled both unburned and burnt marijuana during his training at the Ontario Police College.

[100] As noted above, P.C. Pershin’s testimony as to whether he also relied on his prior interactions with Mr. Brown was somewhat problematic. In his examination-in-chief, he testified that he did rely on those interactions. At the preliminary hearing, he stated that his grounds were based solely on the smell of marijuana. In cross-examination, he ultimately adopted his evidence at the preliminary hearing, although he was also clear that his previous contacts with Mr. Brown were in his mind. As stated earlier, I accept P.C. Pershin’s evidence that his previous contacts with Mr. Brown were in his mind – they were, after all, the reason that he immediately recognized Mr. Brown when Mr. Brown rolled down his window. However, I find that P.C. Pershin, for one reason or another, did not factor the previous encounters into the calculus when considering whether he had the grounds for an investigative detention. He could have referenced his previous interactions with Mr. Brown in deciding whether he had sufficient grounds for an investigative detention, but he did not.

[101] In my view, there was clearly a constellation of objectively discernable facts that gave P.C. Pershin reasonable cause to suspect that Mr. Brown was in possession of marijuana. The smell of marijuana, which was strong and pungent, was immediately apparent to the officer as Mr. Brown rolled down the driver’s window. Mr. Brown was the only person in the car. The fact that the smell was of fresh dried marijuana as opposed to burnt marijuana was indicative that the substance was either in the car or on Mr. Brown’s person. Even if P.C. Pershin’s prior interactions with Mr. Brown, in which he observed Mr. Brown smoking marijuana and, on another occasion, observed him in the company of a male who was arrested for the possession of multiple drugs, is not taken into account, there were ample grounds for the investigative detention. Both the subjective and objective prongs of the test for investigative detention have been met.

[102] The grounds for an investigative detention did not, of course, give P.C. Pershin the lawful authority to search the car or to ask Mr. Brown to get out of the car to facilitate that search. The warrantless search of the car and the request that Mr. Brown exit the vehicle would only have been lawful if he had grounds to arrest Mr. Brown. P.C. Pershin did not subjectively believe he had such grounds.

Were there sufficient grounds to arrest Mr. Brown for possession of marijuana?

[103] Crown counsel submits that at the time that P.C. Pershin asked Mr. Brown to get out of the car, there existed, from an objective point of view, the grounds to arrest him. Therefore, the fact that the officer searched the car prior to Mr. Brown’s arrest did not result in a violation of either Mr. Brown’s ss. 8 or 9 Charter rights.

[104] The question of whether the strong smell of marijuana emanating from a vehicle can provide sufficient grounds for arrest was considered by the Court of Appeal in Polashek. In that case, the officer stopped the appellant’s vehicle for an HTA infraction. During a 20 to 30-second conversation with the appellant, who remained in the vehicle, the officer noticed “a strong odour” of marijuana emanating from the vehicle. However, the officer saw no smoke and, unlike P.C. Pershin in the present case, could not tell whether the odour was of burnt or unburned marijuana. When he told the appellant that he smelled marijuana, the appellant looked to his right and then over both shoulders to the rear of the vehicle and said, “No, you don’t.” Based on the smell, the appellant’s response to the question, the area where he stopped the appellant, and the time of night, the officer believed that he had grounds to arrest the appellant for possession of narcotics.

[105] The Court found that had the officer based his arrest of the appellant solely on the presence of the odour, there would not have been reasonable and probable grounds to make the arrest. At paras. 13-15, Rosenberg J.A., speaking for the Court, stated:

Given Constable Ross’ admission that he could not from the odour alone determine whether the marijuana had been smoked recently or even if he was detecting the smell of smoked marijuana, the presence of odour alone did not provide reasonable grounds to believe that the occupant was committing an offence. The sense of smell is highly subjective and to authorize an arrest solely on that basis puts an unreviewable discretion in the hands of the officer. By their nature, smells are transitory, and thus largely incapable of objective verification. A smell will often leave no trace. As Doherty J.A. observed in R. v. Simpson, at p. 202: “… subjectively based assessments can too easily mask discriminatory conduct based on such irrelevant factors as the detainee’s sex, colour, age, ethnic origin or sexual orientation.”

On the other hand, I would not go so far as was urged by the appellant that the presence of the smell of marijuana can never provide the requisite reasonable and probable grounds for an arrest. The circumstances under which the olfactory observation was made will determine the matter. It may be that some officers through experience or training can convince the trial judge that they possess sufficient expertise that their opinion of present possession can be relied upon. Even in this case, the Crown adduced sufficient evidence from which the trial judge could reasonably conclude that Constable Ross accurately detected the odour of marijuana rather than some other substance.

However, Constable Ross did not make his arrest solely on the basis of the odour of marijuana. He testified that a combination of circumstances gave him the grounds to make the arrest.

[106] Rosenberg J.A. went on to note that in determining that he had grounds to arrest the appellant, Constable Ross also took into account the appellant’s response to his question, the area where he stopped the appellant, and the time of night. He concluded that the trial judge’s finding of reasonable grounds was not unreasonable. The officer was, therefore, entitled to search the appellant as an incident of a lawful arrest.

[107] Unlike the arresting officer in Polashek, P.C. Pershin was in a position, as a result of his training, to distinguish between the smell of burnt and unburned marijuana.

[108] P.C. Pershin did not believe that he had grounds to arrest Mr. Brown, a conclusion that he appeared to reach without taking into account his prior interactions with Mr. Brown. In assessing whether, from an objective point of view, reasonable and probable grounds for arrest existed, I do take those prior interactions into account, even though they were not relied upon by P.C. Pershin. That I am not precluded from considering such evidence is supported by Brown J.’s decision in R. v. Ji Yi, [2006] O.J. No. 1315.

[109] In Ji Yi, the appellant appealed his conviction on a charge of “Over 80.” One of the grounds of appeal was that the trial judge, in determining whether the arresting officer had reasonable and probable grounds to arrest the appellant and make the breathalyzer demand, erred by considering grounds that were not considered or testified to by the officer. In dismissing this ground of appeal, Brown J. stated, at para. 20:

Notwithstanding the Appellant’s arguments to the contrary, the trial judge was not precluded from considering evidence in the objective component of the test simply because the officer did not articulate it as one of her grounds. The objective test is not what is articulated by the arresting officer but whether the officer’s opinion is based on facts known by or available to the officer at the time the officer formed the requisite belief. [Emphasis added.]

[110] Mere suspicion, conjecture, hypothesis or “fishing expeditions” do not constitute reasonable and probable grounds for arrest. On the other hand, reasonable and probable grounds are not to be equated with proof beyond a reasonable doubt or a prima facie case. In my view, the following factors, when considered cumulatively and from an objective point of view, constituted reasonable and probable grounds for the arrest of Mr. Brown on a charge of possession of marijuana:

i) The smell of marijuana that P.C. Pershin immediately detected when Mr. Brown rolled down the driver’s window was strong and pungent;

ii) The smell was of fresh dried marijuana as opposed to burnt marijuana;

iii) P.C. Pershin had been exposed to the smell of both burnt and unburned marijuana during his training at Police College. There is no evidence to suggest that he had difficulty in detecting the difference between the two kinds of smells;

iv) Mr. Brown was the sole occupant of the vehicle;

v) In 2010, P.C. Pershin observed Mr. Brown smoking marijuana in the stairwell of an apartment building. He cautioned but did not charge him.

vi) Later that same year, Mr. Brown was with another male who was found in possession of multiple narcotics. That male was arrested and charged. The next day, Mr. Brown was seen in the company of the same male.

[111] In summary, I agree with Crown counsel that from an objective point of view, there were reasonable and probable grounds to arrest Mr. Brown. However, the subjective part of the test in Storrey has not been met: P.C. Pershin did not subjectively believe that he had grounds to arrest Mr. Brown at the time of the search.

[112] I agree with counsel for Mr. Brown that the absence of the subjective requirement distinguishes this case from the decisions in Polashek, Amofa, and Debot. The arresting officers in those cases, at the time of the search, subjectively believed that they had grounds to arrest the accused but chose not to, whereas P.C. Pershin has testified that he did not believe he had sufficient grounds for arrest.

[113] In R. v. Feeney, [1997] 2 S.C.R. 13, the Court made it clear that both the subjective and objective requirements must be met for a warrantless arrest to be legal. At paras. 24 and 29, Sopinka J. stated:

Section 495(1)(a) sets out the subjective requirement for a warrantless arrest: the peace officer himself or herself must believe reasonable grounds exist. An objective requirement was added in R. v. Storrey, [1990] 1 S.C.R. 241: objectively there must exist reasonable and probable grounds for the warrantless arrest to be legal.

Whether or not the trial judge was correct in concluding that the objective standard was met, a conclusion with which I disagree below, the trial judge erred by relying exclusively on an objective standard. According to the plain wording of s. 495, the peace officer may arrest someone only if, on reasonable grounds, he or she believes the person to have committed an indictable offence. An objective standard was added in Storrey, supra, but this did not displace the subjective requirement: see Storrey, supra, at p. 250. Indeed, it would be inconsistent with the spirit of the Charter to permit a police officer to make an arrest without a warrant even though she or he does not believe reasonable grounds for the arrest exist. The absence of subjective belief, therefore, rendered the arrest in the present case unlawful irrespective of the existence of objective grounds for the arrest and the effect of the Charter on powers of police officers to enter a dwelling house without a warrant in order to effect an arrest. [Emphasis added.]

[114] In R. v. Serratore, [2006] O.J. No. 4454, McDermid J. dealt with the same issue as the one before this court: although the arresting officer in that case did not believe that she had grounds to arrest the accused for possession of marijuana when she commenced a search of his vehicle, McDermid J. found that from an objective point of view, those grounds did, in fact, exist. Since the subjective requirement in Storrey had not been met, he held that the search was unlawful and consequently there was a breach of the accused’s ss. 8 and 9 Charter rights. However, the fact that the objective requirement had been satisfied was a factor that McDermid J. took into account in his s. 24(2) analysis: the breaches were not that serious since reasonable and probable grounds to arrest the accused existed before the commencement of the search.

[115] In considering the subjective and objective requirements set out in Storrey, Marshall J., in R. v. Day (2013), 332 Nfld. & P.E.I.R., [20113] N.J. No. 18, at para. 22, stated:

The two-pronged test in Storrey, supra, appears to have a very straightforward application – firstly, the officer formulates subjective reasonable and probable grounds for the arrest and, secondly, the court assesses whether the grounds are objectively justifiable. The test is not to be applied in the reverse. The court does not determine that objective grounds exist and then conclude that, as a result, the police had subjective grounds for the arrest when the police are in doubt on the issue.

[116] The two-pronged test in Storrey has not been met in the present case, given the absence of P.C. Pershin’s subjective belief that he had grounds to arrest Mr. Brown. The search of the car therefore constituted a breach of Mr. Brown’s s. 8 Charter rights. In addition, P.C. Pershin’s request that Mr. Brown step out of the car for the purpose of conducting that unlawful search and the pat-down search that followed violated Mr. Brown’s ss. 8 and 9 Charter rights.

Fourth time period: The pat-down safety search, which led to the discovery of the knife and loaded revolver

[117] After Mr. Brown exited his vehicle, Constables Perks and Kung conducted the pat-down search and located the folding knife and loaded firearm. The detention at that point crystallized into an actual arrest, which led to a more thorough search of Mr. Brown by the roadside and ultimately to the level 3 strip search at the police station.

Was the pat-down search reasonably necessary?

[118] For the reasons already stated, the pat-down search constituted a violation of Mr. Brown’s ss. 8 and 9 Charter rights.

[119] Counsel for Mr. Brown submits that the pat-down search was also unreasonable because it was not necessary in the circumstances. Mr. Brown was co-operative throughout his interaction with the officers and there was nothing in his demeanour that aroused suspicion. [In fact, Mr. Brown remained remarkably cool given the fact that he had a fully loaded revolver in his front pants pocket.] P.C. Pershin had left Mr. Brown alone in the Acura while he completed various computer checks and made out the summonses in his scout car. It apparently did not concern the officer that he could not see Mr. Brown or what he was doing in the car during that interval of time.

[120] P.C. Pershin did not call for back-up, although he did ask Constables Perks and Kung to stand by when they happened upon the scene. P.C. Pershin testified that he assumed that the officers understood that his purpose in having them stand by was for officer safety. He wanted them to remain in order to keep watch over Mr. Brown while he searched the vehicle.

[121] I note that the last computer check that P.C. Pershin conducted before approaching Mr. Brown’s car for the third and last time indicated that Mr. Brown had been charged with firearms offences in 2004 and 2007. This was information that P.C. Pershin did not previously have. He obviously thought that it was of some significance because he took steps to communicate it to Constables Perks and Kung, to whom he intended to “hand off” Mr. Brown while he searched the car. In addition to advising the officers about the previous firearms charges, P.C. Pershin also told them about the shooting incident in which Mr. Brown had lost an eye and that the accused was driving with a false insurance card. Constables Perks and Kung already knew from their earlier conversation with P.C. Pershin about the Acura’s tinted windows and the smell of marijuana emanating from the vehicle.

[122] When P.C. Pershin told the other officers that he was going to search the Acura, P.C. Kung responded that he and P.C. Perks would do a pat-down search of Mr. Brown for weapons. There is no evidence that P.C. Pershin disagreed with or voiced any disapproval of this decision.

[123] Both P.C. Kung and P.C. Perks testified that the pat-down search was necessary for officer safety in light of what they considered to be serious information given to them regarding Mr. Brown’s background. They testified that they would not have felt safe until such a search was conducted. I accept their evidence in this regard and find that they did not conduct the search for the purpose of searching for evidence.

[124] In my view, P.C. Kung’s and P.C. Perks’ safety concerns were reasonable and justified, even after taking into account the variances in their testimony as to the exact information provided to them by P.C. Pershin, as referred to earlier in these reasons. The fact that Mr. Brown had previously been charged with firearms offences, whether or not those charges resulted in convictions, raised obvious concerns with respect to officer safety. There was also a concern regarding the safety of the public as this vehicle stop took place at a busy intersection in the middle of the afternoon.

[125] Taking into account the previous firearms charges, the other information provided to the officers regarding Mr. Brown’s background and the totality of the circumstances, I find that the pat-down search was reasonably necessary.

Was the pat-down search carried out within the parameters outlined in R. v. Mann?

[126] In Mann, the Court held that a pat-down search must be conducted in a reasonable manner and must be confined in scope to an intrusion reasonably designed to locate weapons. The search in Mann went beyond the initial pat-down when the officer conducting it reached into the appellant’s front pouch pocket after feeling a soft object in the pocket. The trial judge had found that there was no reasonable basis for reaching into the pocket. The Court held that this more intrusive search violated the appellant’s reasonable expectation of privacy in the contents of his pocket.

[127] In the present case, P.C. Kung first patted down Mr. Brown’s left jacket pocket and his left front jeans pocket. He then turned his attention to the back jeans pockets, which were covered by Mr. Brown’s large thick jacket. The only way that the officer could effectively pat down the back pockets for weapons in these circumstances was to lift up the jacket. He first lifted up the left side of the jacket and patted down the left back jeans pocket. He felt something hard in that pocket, but it apparently did not concern him. He did not reach into that pocket. He then lifted up the right side of the jacket, at which point he immediately observed the black pocket knife protruding from Mr. Brown’s right back pocket. After making a brief comment to Mr. Brown, he seized the knife.

[128] I find that P.C. Kung’s pat-down search of Mr. Brown was conducted in a reasonable manner and, pursuant to Mann, was confined in scope to an intrusion reasonably designed to locate weapons. It was reasonable in the circumstances for P.C. Kung to lift up Mr. Brown’s thick jacket so that he could properly pat down the back jeans pockets for weapons. At no point did P.C. Kung reach into any of Mr. Brown’s pockets.

[129] P.C. Perks testified that a few seconds after P.C. Kung discovered the knife, he felt a large hard object in Mr. Brown’s right front jeans pocket. He did not know what it was. He then lifted up Mr. Brown’s shirt and saw the handle of the gun protruding from the pocket. Mr. Brown was immediately handcuffed and the firearm was seized.

[130] P.C. Perks’ testimony that he felt a large hard object in the pocket before lifting up Mr. Brown’s shirt was somewhat problematic, given the absence of any notation to this effect in his notes. He also made no mention at the preliminary hearing of having felt a large hard object in the pocket before lifting up the shirt. P.C. Perks acknowledged that he erred in failing to include this detail in his notes but testified that he specifically recalls feeling the object in the pocket – that was what motivated him to lift up the shirt.

[131] Even if P.C. Perks’ explanation is rejected and he did not feel the handle of the gun before lifting up the shirt, it was reasonable for him to lift up the shirt to facilitate the pat-down of the pocket. He did not lift up the shirt with the intention of reaching into the pocket. In addition, the officers, having already discovered the knife, had grounds to arrest Mr. Brown for carrying a concealed weapon and therefore, from that point onward, could have lawfully conducted a search incidental to arrest. Such a search would have entailed searching and emptying the contents of all of Mr. Brown’s pockets and would have led to the discovery of the firearm in any event.

[132] As already stated, given the absence of P.C. Pershin’s subjective belief that he had grounds to arrest Mr. Brown when he asked him to step out of the car, the pat-down search that followed constituted a violation of Mr. Brown’s s. 8 Charter rights. However, I am satisfied that the pat-down search was conducted within the parameters outlined in Mann.

Mr. Brown’s [ss. 10 (a)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) and (b) [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) rights

Were Mr. Brown’s [ss. 10(a)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) and (b) [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) rights violated before he was asked to step out of the car?

[133] Up until the point where P.C. Pershin asked Mr. Brown to step out of the car – that is, from the start of the first time period to the end of the second time period – Mr. Brown was lawfully detained at the roadside with respect to three investigations, which arose in the following order:

i) the investigation of the “tinted windows” HTO offence;

ii) the investigation regarding the possession of marijuana, contrary to s. 4(1) of the CDSA; and

iii) the investigation of the false insurance card, contrary to the CAIA.

[134] Although P.C. Pershin advised Mr. Brown of the reason for the vehicle stop – that is, the tinted windows – he never advised him that he was also being detained with respect to the more serious offence of possession of marijuana. Nor did he advise him of his s. 10(b) Charter rights.

[135] Mr. Brown’s detention with respect to the marijuana offence commenced almost immediately after the vehicle stop. P.C. Pershin based the investigative detention on observations that he made within moments of approaching the vehicle; namely, the strong and pungent smell of fresh dried marijuana and the fact that Mr. Brown was the sole occupant in the car. He had a brief conversation with Mr. Brown about the smell. It was clear from that point onward that P.C. Pershin had no intention of allowing Mr. Brown to leave the scene – that is, that he intended to detain him – until he had conducted further investigation into the drug offence, including searching his vehicle. Yet P.C. Pershin did not advise Mr. Brown of the reason for his detention or give him his rights to counsel. Mr. Brown was not advised that he was being detained with respect to the marijuana investigation until P.C. Kung took custody of him about twenty minutes later. He was not given his s. 10(b) rights until after the pat-down search.

[136] In R. v. Suberu, 2009 SCC 33, [2009] S.C.R. 460, the Supreme Court made it clear that once an individual is detained, s. 10(b) is engaged and guarantees an individual the right to retain and instruct counsel without delay, and to be informed of that right. At para. 42, the Court stated that the words “without delay” mean “immediately” for the purposes of s. 10(b). The Court went on to state that the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention, subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter. McLachlin C.J. and Charron J., who authored the majority judgment, cited the companion cases of R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3, as examples of a reasonable limit on an individual’s s. 10(b) rights.

[137] In Orbanski, the accused was the subject of a motor vehicle stop after he was observed swerving and going through a stop sign. The officer, after approaching the vehicle, smelled alcohol and asked the accused if he had been drinking. He also asked him to perform roadside sobriety tests, which the accused failed. The accused was then arrested for impaired driving. After providing breath samples, he was charged with impaired driving and “over 80.” The accused was not advised of his rights to counsel until after his arrest. The Supreme Court held that the screening measures used for assessing the sobriety of the driver were authorized by law and incompatible with the exercise of the right to counsel by the detained motorist at the roadside. However, the resulting limitations of the driver’s s. 10(b) rights were reasonable and demonstrably justified under s. 1 of the Charter. The Court held that affirming the validity of such screening measures for the limited purpose of assessing the sobriety of the driver at the roadside properly balances the strong public interest in combating the social evil of drinking and driving with the need to protect the Charter rights of individuals.

[138] Unlike the detention of the accused in Orbanski, the detention of Mr. Brown with respect to the possession of marijuana was not related in any way to road safety. There is no evidence that P.C. Pershin had any concerns about Mr. Brown’s sobriety or his ability to operate a motor vehicle as a result of the consumption of marijuana. P.C. Pershin’s delay in giving Mr. Brown his s. 10(b) rights was not caused by a need to conduct sobriety tests or to take other investigative steps regarding the CDSA offence. Nor was it necessary for P.C. Pershin to delay giving Mr. Brown his s. 10(b) rights out of any officer or public safety concerns at that point. It was not until later on, after he asked Mr. Brown to step out of the vehicle, that those concerns arose, particularly in the minds of Constables Kung and Perks. In the meantime, P.C. Pershin was content to leave Mr. Brown alone in his vehicle while he conducted computer searches in his scout car and completed his investigations with respect to the HTO and CAIA offences. In these circumstances, there was no reason for P.C. Pershin to delay advising the accused that he was being detained with respect to the offence of possession of marijuana or to delay giving him his rights to counsel. Mr. Brown could have exercised those rights by using his cell phone as he sat in his car waiting for P.C. Pershin to complete his investigation and paperwork pertaining to the provincial offences.

[139] The only reason offered by P.C. Pershin for his delay in giving Mr. Brown his s. 10(b) rights was that he decided to investigate the HTO and CAIA offences first. The result of this decision was that Mr. Brown’s ss. 10(a) and (b) rights with respect to the more serious CDSA offence were effectively put on hold. P.C. Pershin admitted that, in hindsight, he should have dealt with the marijuana investigation first but explained that he got side-tracked by the false insurance card. In any event, the fact that P.C. Pershin decided to investigate the HTO and CAIA offences first ought not to have affected the accused’s s. 10(a) and (b) rights vis-à-vis the more serious drug offence.

[140] Crown counsel submitted that P.C. Pershin was not required to advise Mr. Brown that he was being detained in regard to the marijuana offence or to give him his s. 10(b) rights because Mr. Brown was being detained pursuant to the HTA and CAIA offences in any event. It was only after P.C. Pershin had completed his investigation of the HTA and CAIA matters and when Mr. Brown was being detained solely with respect to the marijuana investigation that s. 10(b) was engaged. With respect, I disagree. Although there was only “one detention” in the sense that Mr. Brown was continuously detained from the time that his vehicle was pulled over, the nature of that detention changed when P.C. Pershin detected the smell of marijuana and he decided to pursue the criminal investigation. That investigation ultimately led to his demand that the accused step out of his car so that he could search it. Had the vehicle stop simply resulted in an investigation into the tinted windows and the invalid insurance card, P.C. Pershin would have issued the summonses and Mr. Brown would have been free to leave the scene after making arrangements for a tow truck.

[141] Given the change in the nature of the detention after P.C. Pershin detected the smell of marijuana, the officer was required, in my view, to advise Mr. Brown that he was being detained with respect to the offence of possession of marijuana and to advise him of his rights to counsel. I conclude that there was a violation of the accused’s ss. 10(a) and (b) Charter rights.

[142] No evidence was obtained as a result of these s. 10 Charter breaches.

Were Mr. Brown’s [ss. 10(a)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) and (b) [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) rights violated after he was asked to step out of the car?

[143] When P.C. Pershin approached Mr. Brown’s vehicle for the third and last time, he asked him to step out of the car and told him that he was under investigative detention. He did not specifically tell him that the investigative detention was with respect to the possession of marijuana, although Mr. Brown may have presumed as much, given the officer’s statement that he intended to search the vehicle and his earlier comment that he smelled marijuana emanating from the car. In any event, as soon as Mr. Brown exited the vehicle, he was “handed off” to the custody of Constables Perks and Kung, who then promptly advised him that he was under investigative detention regarding the possession of marijuana. As a result, there was no violation of Mr. Brown’s s. 10(a) rights at this point.

[144] P.C. Kung also told Mr. Brown that he would be patting him down for weapons. He did not advise him of his rights to counsel.

[145] According to Suberu, at para. 42, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention, “subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter.”

[146] For the reasons already given, I am satisfied that P.C. Kung’s and P.C. Perk’s safety concerns were reasonable in light of the information about Mr. Brown provided to them by P.C. Pershin. Given the circumstances, the delay in advising Mr. Brown of his rights to counsel until after the pat-down search was justified under s. 1 of the Charter.

[147] Following the search and the seizure of the knife and gun, Mr. Brown was arrested, cautioned and advised of his rights to counsel, which he exercised after his arrival at 54 Division. Defence counsel did not take the position that Mr. Brown, after his arrest, ought to have been able to speak to a lawyer at the scene rather than waiting until he arrived at the police station.

Did P.C. Kung’s question, “Any weapons?” constitute a search for the purposes of s. 8? Did asking this question without first advising Mr. Brown of his rights to counsel result in a [s. 10(b)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) breach?

[148] Prior to commencing the pat-down search, P.C. Kung asked Mr. Brown, “Any weapons?” to which Mr. Brown replied, “No.” [The Crown does not seek to tender Mr. Brown’s response as part of its case.] Counsel for Mr. Brown submits that the question “Any weapons?” constituted a search in the sense that it amounted to the same thing as looking in Mr. Brown’s pockets. Counsel relies on the Court of Appeal decision in R. v. Harris, 2007 ONCA 574, 87 O.R. (3d) 214 to support his position.

[149] In Harris, the Court held that answers to police questions may, in some circumstances, give rise to a s. 8 Charter claim. The appellant in that case was a passenger in a motor vehicle stopped by the police after the driver failed to signal a left turn. The officer asked all of the occupants, including Harris, who was sitting in the front passenger seat, to identify themselves. He then checked the names through the police computer system and discovered that Harris was on bail and in violation of his curfew. Harris was arrested, and found to be in possession of crack cocaine.

[150] Doherty J.A., speaking for the Court, found that Harris was not arbitrarily detained when asked for his identification. However, in the circumstances, Harris’ identification, in response to the officer’s question, constituted a seizure that attracted s. 8 protection. The seizure was unreasonable because the officer had no reason to suspect Harris of anything when he questioned him and asked him for his identification. The purpose for the stop did not justify an at large inquiry into Harris’ background or his status in the criminal justice system, which was the effect of the request for identification.

[151] At para. 43, Doherty J.A. stated that some questioning will constitute a search for the purpose of s. 8 and other questioning will not. The nature of the questions and the context in which those questions are asked are important considerations in determining whether the questions constituted a search.

[152] In the present case, P.C. Kung asked Mr. Brown the question “Any weapons?” just prior to commencing the pat-down search. The question was not asked with a view to obtaining evidence or an incriminating statement or as the basis for launching into a new investigation. Instead, P.C. Kung posed the question out of justifiable concerns for officer safety. He and P.C. Perks testified that they prefer to know if a detainee is in possession of any sharp objects, such as needles or unsheathed knives, before they commence a search so that they can govern themselves accordingly. Whether Mr. Brown answered “yes” or “no” or refused to answer at all, the officers would still have proceeded with the pat-down search. In the circumstances, I find that the question “Any weapons?” did not constitute a search for the purpose of s. 8 of the Charter.

[153] I also find that there was no requirement for P.C. Kung to advise Mr. Brown of his s. 10(b) rights to counsel before asking this question. On the facts of this case, P.C. Kung’s inquiry as to whether Mr. Brown had any weapons was an integral part of the pat-down search and cannot realistically be parsed from the physical act of the search itself. It is on the same footing or akin to directives an officer might give to a detainee, such as telling him to stand up or “move over here” so that the pat-down search can be carried out safely and effectively.

[154] I recognize that there may be cases where a question such as “Any weapons?” may not be an integral part of a search but more of a freestanding inquiry that gives rise to s. 7 Charter concerns and the right to silence. However, this case is not one of them.

[Section 24(2)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[155] Section 24(2) of the Charter states:

Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[156] The Court in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, identified three lines of inquiry relevant to the determination of whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute. They are:

(1) The seriousness of the Charter-infringing state conduct (the admission of the evidence may send the message that the justice system condones serious state misconduct);

(2) The impact of the breach on the Charter-protected interests of the accused (the admission of the evidence may send the message that individual rights count for little); and

(3) Society’s interest in the adjudication of the case on its merits.

[157] These lines of inquiry are to be viewed in a long-term, forward-looking, and societal perspective: Grant, at para. 71.

Inquiry 1: Seriousness of the Charter-infringing State conduct

[158] At this stage, the court must consider the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law and risk bringing the administration of justice into disrepute: Grant, at para. 74.

[159] Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach. “Good faith” on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith. Evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion: Grant, at para. 75.

[160] P.C. Pershin did not deliberately breach any of Mr. Brown’s Charter rights. The vehicle stop was lawful and not part of a ruse. P.C. Pershin pulled over Mr. Brown’s car because of the tinted windows (an offence that Mr. Brown ultimately pleaded guilty to) and for no other reason. There is no question that upon approaching the vehicle, P.C. Pershin detected the smell of marijuana. Unlike one of the officers who testified in R. v. Taylor, 2011 ONSC 1737, [2011] O.J. No. 1356, there is no suggestion that P.C. Pershin fabricated his evidence regarding the smell in order to detain the accused arbitrarily or to conduct an unlawful search.

[161] P.C. Pershin acted in good faith in the sense that he believed that he had the lawful authority to search the car pursuant to his investigative detention of Mr. Brown. Although P.C. Pershin’s mistake as to the law in this regard is of concern, that concern is somewhat ameliorated by the fact that P.C. Pershin actually had reasonable and probable grounds to arrest Mr. Brown for the possession of marijuana. Although he did not subjectively believe he had the grounds to arrest him – it could perhaps be argued that the officer had an unreasonably high standard in this regard – such grounds, from an objective point of view, did in fact exist. Had P.C. Pershin arrested Mr. Brown, there would have been no violation of Mr. Brown’s ss. 8 or 9 Charter rights: the search of the car and P.C. Pershin’s request that he step out of the car for that purpose would have been lawful, as would the pat-down search, which led to the discovery of the knife and handgun.

[162] I have also found that the pat-down search was conducted within the parameters of Mann and not in an abusive fashion. The police followed standard procedure with respect to the search incidental to arrest.

[163] P.C. Pershin acted with restraint in searching the car. He restricted that search to the driver’s side of the vehicle and did not search the trunk. No evidence was obtained as a result of this search.

[164] Although the breaches of Mr. Brown’s ss. 10(a) and (b) Charter rights were not causally connected to the discovery of the knife, firearm or crack cocaine, they must be taken into account in assessing the overall conduct of the police. The number of Charter violations is obviously a relevant consideration.

[165] As noted above, I find that P.C. Pershin did not deliberately breach Mr. Brown’s rights to counsel. He had lawfully detained the accused with respect to the HTA offence at the time that he smelled the marijuana, and then became distracted by the CAIA investigation after Mr. Brown produced the false insurance card. Unfortunately, the officer did not apply his mind to the change in the nature of the accused’s detention once he had determined that he would be searching the car, which entailed asking Mr. Brown to step out of the vehicle. As a result, P.C. Pershin failed to advise Mr. Brown that he was being detained with respect to the marijuana offence (although he had mentioned in a brief conversation with the accused that he could smell marijuana coming from the car) and also failed to advise him of his s. 10(b) rights. P.C. Pershin then proceeded to investigate the provincial offences first, a decision that, in hindsight, he regretted.

[166] P.C. Pershin did advise Mr. Brown that he was under investigative detention when he asked him to step out of the vehicle. Almost immediately thereafter, P.C. Kung told Mr. Brown that the detention was with respect to the marijuana investigation. P.C. Kung’s delay in advising the accused of his rights to counsel was justified as a result of officer safety concerns, which were shared by both P.C. Kung and P.C. Perks. After the seizure of the knife and gun and Mr. Brown’s arrest, P.C. Kung promptly advised Mr. Brown of the reason for the arrest, cautioned him and gave him his rights to counsel. Mr. Brown was able to exercise those rights after his arrival at the police station.

[167] In summary, the conduct of the officers does not in any way suggest a wilful or reckless disregard for Mr. Brown’s Charter rights. The breaches were neither deliberate nor egregious. I find that the seriousness of the Charter-infringing behaviour in this case tends toward the lower end of the spectrum.

Inquiry 2: Impact on the Charter-protected interests of the accused

[168] The second line of inquiry involves a consideration of the seriousness of the breaches from the perspective of the accused. Charter breaches can range from the fleeting and technical to the profoundly intrusive. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute: Grant, at para. 76.

[169] To determine the seriousness of the infringement from this perspective, the court must look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests. An unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not: Grant, at paras. 77-78.

[170] Based on my findings, Mr. Brown’s detention became arbitrary and his s. 8 rights were violated when he was asked to step out of his car. P.C. Pershin then proceeded to search the car and Mr. Brown was subjected to a pat-down search. These Charter violations took place after the breach of Mr. Brown’s s. 10(a) and (b) rights, although the s. 10 breaches, like the search of the car, did not result in the obtaining of any evidence.

[171] Although the detention was not lengthy and the pat-down search not overly intrusive, it took place in public at the roadside and during rush hour. Mr. Brown had a reasonable expectation of privacy in the Acura, which he owned. While it is true that this privacy interest is less intense than the interest in one’s home, it is still a significant interest: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 30-31; and R. v. Belnavis, [1997] 3 S.C.R. 341, at para. 19.

[172] Taking into account all of the circumstances, I find that the impact of the Charter violations on Mr. Brown’s liberty and privacy interests, though not egregious, was significant.

Inquiry 3: Society’s interest in an adjudication on the merits

[173] In this third line of inquiry, the court must consider factors such as the reliability of the evidence and its importance to the Crown’s case.

[174] The evidence of the knife, the firearm and the crack cocaine is highly reliable and essential to the Crown’s case; without it, there is no case. These considerations favour admission because to do so would promote the public interest in having the case adjudicated on its merits.

Balancing the factors under the three lines of inquiry

[175] The Court in Grant acknowledged that the balancing of the factors under the three lines of inquiry is qualitative in nature and not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favours exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstance, admission of the evidence would bring the administration of justice into disrepute. In all cases, it is the long-term repute of the administration of justice that must be assessed.

[176] When the three-stage inquiry is applied to this case, a balancing of the factors favours admission of the evidence. The Charter-infringing police conduct was neither deliberate nor egregious and falls somewhere in the lower half of the spectrum in terms of seriousness. Had P.C. Pershin determined that he had the grounds to arrest Mr. Brown, which I have found existed from an objective point of view, there would have been no breach of Mr. Brown’s ss. 8 and 9 Charter rights. The impact of the Charter breaches on Mr. Brown’s protected interests was significant but certainly not at the most serious end of the scale. The knife, firearm and cocaine constitute highly reliable evidence and are essential to a determination on the merits.

[177] Taking into account and weighing all of these matters, I find that the admission of the evidence would not, on balance, bring the administration of justice into disrepute. The impact of the breach on Mr. Brown’s Charter rights weighs in favour of exclusion. However, society’s interest in having this case adjudicated on its merits strongly favours the admission of the evidence. This, plus the absence of egregious conduct on the part of the police, tips the balance in favour of admission. The repute of the justice system would not suffer from allowing the evidence to be admitted at Mr. Brown’s trial.

CONCLUSION

[178] As the accused has not established on a balance of probabilities that the admission of the evidence would bring the administration of justice into disrepute, the application is dismissed. The knife, firearm and crack cocaine are admissible.

GARTON J.

Released: June 18, 2013

COURT FILE NO.: 0152/12-12-12-70000276-0000

DATE: 20130618

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

JASFA BROWN

ruling

GARTON J.

Released: June 18, 2013