COURT FILE NO.: CR-5-48/18

DATE: 20180911

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

STASKY ST. CLAIR

Thomas Mack, for the Crown

Paula Rochman, for the accused

HEARD: July 23-26, 2018

K.L. Campbell J.

Pre-Trial Charter Ruling

I

Overview

[1] The accused, Stasky St. Clair, currently faces a 14-count indictment that charges him with a number of firearm and drug-related offences. Essentially, the Crown alleges that (1) the accused was in unlawful possession of a loaded Ruger semi-automatic handgun, with a prohibited over-capacity magazine, while he was in his motor vehicle; (2) the accused’s possession of this firearm, ammunition and prohibited device were all in violation of a number of orders prohibiting him possessing such items; (3) the accused was unlawfully in possession of marihuana; and (4) the accused was in possession of cocaine for the purpose of trafficking. All of these offences are alleged to have been committed by the accused in Toronto on August 9, 2017.

[2] Essentially, in the early morning hours of August 9, 2017, the attention of two uniformed members of 22 Division of the Toronto Police Service (TPS), who were on general patrol in their marked police car, was drawn to the area of a Petro-Canada gas station at the south-west corner of Evans Avenue and Brown’s Line in Toronto. A tow truck was partially parked in a live lane of traffic on Evan’s Avenue leading into the gas station, and the accused was involved in some sort of dispute or confrontation with a group of four or five other men in an adjoining parking lot.

[3] When they arrived in the area, the driver of the tow truck told the police about some reckless driving in which the accused had just been engaged. While driving his Acura MDX sport utility vehicle (SUV), the accused had almost “T-boned” the tow truck, and then sped off at a high rate of speed until turning quickly into the gas station. The accused then exited his vehicle and engaged in the dispute with the four or five other men in the adjoining parking lot. The nearby confrontation seemed to quickly dissipate with the arrival of the police. The accused walked back to his Acura, and the group of men, with whom the accused had been arguing, dispersed. One of the police officers then went to speak to the accused to see if everything was alright. Upon doing so, the officer smelled fresh marihuana emanating from the accused and/or the inside of the accused’s vehicle, and he also observed a number of other indicia of marihuana possession.

[4] The officer then placed the accused under arrest for possession of marihuana. When he did so, the accused claimed that he had a license for medicinal marihuana. The accused then produced a credit-card sized “MedReleaf” card indicating, basically, that the accused was entitled to consume three grams of marihuana each day. The police officer, who had a history of working with the Drug Squad of the TPS, examined this card and believed it to be a “fake.” The accused was then subjected to a brief “pat-down” search, during which the police found both a plastic bag of marihuana and a marihuana grinder in his pants pocket. The accused was then handcuffed and placed in the back of the police car.

[5] Incident to this arrest, the other police officer then searched the interior of the Acura MDX for further evidence of unlawful marihuana possession. In so doing, the officer quickly discovered the installation of an after-market compartment on the passenger side of the front, center console. When the officer opened this compartment, he discovered a loaded semi-automatic firearm with an over-capacity magazine filled with bullets. The accused was then arrested for his unlawful possession of this loaded firearm.

[6] When the accused was taken to 22 Division, the officer-in-charge of the station authorized the two arresting officers to conduct a “strip search” of the accused. The search was conducted in a private room. During this search, the police officers noticed that the accused had a black plastic bag protruding between the cheeks of his buttocks. In spite of repeated demands by the officers to keep his hands away from the bag and that area of his body, the accused continued to make repeated efforts to keep the bag in that location and/or to push the bag into his rectum. In trying to prevent the accused from doing this, a wrestling match developed between the accused and the officers. Ultimately, one of the officers slapped the accused in the face, and the other officer kneed the accused in the chest. The police officers described these actions as “distraction strikes” that permitted them to take the accused to the floor and gain physical control over him, thereby preventing the accused from any further efforts to conceal the plastic bag. The police discovered that this black plastic bag contained a number of smaller packages of crack and powder cocaine. Consequently, the accused was charged with the unlawful possession of these controlled substances for the purpose of trafficking.

[7] The accused has brought an application seeking the exclusion of the firearm, ammunition, magazine and the drugs under s. 24(2) of the Canadian Charter of Rights and Freedoms, claiming that they were all obtained in violation his right to be secure against unreasonable searches and seizures guaranteed by s. 8 of the Charter. More particularly, defence counsel argued that the initial arrest of the accused for his possession of marihuana was unlawful, in that it was not based upon reasonable and probable grounds. In the result, defence counsel contends that the subsequent searches of the accused and his vehicle were unreasonable, and that the evidence seized by the police during those searches should be excluded.

[8] At the conclusion of the hearing of this application, I advised the parties that the application was dismissed and that all of the evidence obtained by the police was admissible in evidence. I also advised the parties that I would subsequently provide them with reasons explaining this decision. These are those reasons.

II

The Facts

A. Introduction

[9] On the voir dire proceedings that were conducted in relation to this pre-trial application, which spanned four days, the Crown called four witnesses, namely, the tow truck operator (Greg Cochrane), the two investigating police officers (Det. Cst. Kwang-Jae Lee and Cst. Nitin Bhandari), the officer-in-charge of 22 Division on the night in question (Det. Wayne Jackson), and another officer, unconnected to this investigation, who was recently detailed to conduct some internet research regarding the “MedReLeaf” website (Det. Cst. Tav Garcia). Defence counsel cross-examined each of these witnesses. The parties also relied upon a number of agreed statements of fact. Other evidentiary materials were also provided to the court, including some preliminary inquiry testimony, police officer notes, and certain photographic evidence.

[10] I do not propose to review the details of all of the evidence on this application as it is unnecessary. There is no doubt that, in some respects, the evidence is conflicting and inconsistent. While most of the important events of August 9, 2017 took place over a relatively short period of time, the individuals who witnessed and participated in those events (i.e. Mr. Cochrane, Det. Cst. Lee, and Cst. Bhandari) described them, in some respects, quite differently. Some of the factual inconsistencies will have to be resolved, but for the most part these differences are inconsequential. In any event, I have no hesitation in concluding that all of the witnesses who testified on this application were honestly telling the truth as they personally observed and recalled the relevant events.

[11] Defence counsel argued that, given the inconsistencies in the various accounts by Mr. Cochrane, Det. Cst. Lee, and Cst. Bhandari, the two police officers must be fabricating aspects of their evidence. I disagree. In these circumstances, it is important to appreciate the frailties of human perception and memory. Each of the three witnesses (i.e. Mr. Cochrane, Det. Cst. Lee and Cst. Bhandari) who witnessed the events in and around the Petro-Canada gas station observed the relevant events from different locations and from their own unique perspectives. Most of the important events unfolded in a very short span of time – a matter of a few minutes. During this brief time period, the participants were engaged, at least in part, in different activities. They had different discussions. Their attentions were focused upon different things. In addition, these events took place approximately a year ago. Accordingly, it should come as no surprise that these witnesses saw and recalled the relevant events differently in some respects.

[12] With that observation in mind, and without reviewing in detail all of the evidence adduced on the pre-trial voir dire proceedings, I find the relevant facts to be as follows.

B. The Near-Collision with the Tow Truck

[13] Just moments before 1:25 a.m. on August 9, 2017, Mr. Cochrane, a 53-year-old man, was working as a tow truck driver, as he had for the previous 28 years. He was driving his tow truck eastbound on Evans Avenue, in the right-hand lane, approaching Brown’s Line in Toronto. He was on his way to have coffee with a friend.

[14] At that point, Mr. Cochrane saw a black Acura MDX come “out of nowhere,” from the parking lot of a townhouse complex on his right, and quickly turn eastbound onto Evans Avenue. The accused was driving this vehicle and was its sole occupant. In making this turn, the Acura MDX almost collided with the tow truck. To avoid this collision, Mr. Cochrane swerved quickly to the left, moving his tow truck into the left-hand lane of Evan’s Avenue and partially into the center, turning lane for both eastbound and westbound traffic.

[15] Mr. Cochrane continued to watch as the Acura MDX raced toward the intersection of Evans Avenue and Brown’s Line, and then made a quick right turn into the Petro-Canada gas station located at the south-west corner of that intersection. In racing into this right turn, the Acura MDX was described by Mr. Cochrane as “bouncing all over the place,” with vehicle going up into the air and onto just “two wheels.”

[16] Mr. Cochrane followed the Acura MDX to the nearby Petro-Canada gas station and parked his tow truck on the road near the entrance to the gas station. He was intending to “scream” at the driver of the Acura MDX about what had just happened. He did not get a chance to do so, however, because as soon as the accused parked his Acura MDX in the gas station parking lot, the accused exited his vehicle and went running and “screaming” at a group of four or five young men who were in the adjoining strip-mall plaza parking lot.

C. The Confrontation in the Parking Lot

[17] At approximately at 1:25 a.m. on August 9, 2017, Det. Cst. Lee and Cst. Bhandari were on uniformed general patrol in a marked police vehicle, driving westbound on Evans Avenue approaching Brown’s Line. Det. Cst. Lee was driving the vehicle.

[18] At that point, the officers’ attention was drawn to the tow truck parked in the live lane of traffic near the entrance to the Petro-Canada gas station. At the same time, they also witnessed a heated dispute that was taking place between the accused and the group of other young men in the adjoining strip-mall parking lot. The accused appeared to be “primarily the aggressor” in this confrontation. The group of males was moving slowing toward the accused. The accused was right in front of them, yelling at them. The accused appeared to be angry, and he was throwing his hands up into the air. He was standing his ground against the group of men. Both Det. Cst. Lee and Cst. Bhandari, who are experienced police officers, thought that it was “very rare” or “very unusual” to see one man standing up in a dispute against a group of four or five other males. The body language of all of the males was confrontational, in that they seemed to be “blading” their bodies and “squaring up” against each other. Det. Cst. Lee thought that there was going to be a physical fight.

[19] Given these observations, Det. Cst. Lee decided to pull the police car into the Petro-Canada gas station so that the officers’ visible presence might prevent a fight. This proved to be effective as, when the marked police vehicle was pulled into the entrance of the gas station, the accused broke away from the group of other men and returned to his vehicle. The group of young males also seemed to disperse, speed-walking away from the police vehicle and ultimately heading westbound on Evan’s Avenue.

D. The Actions of the Accused at his Motor Vehicle

[20] Det. Cst. Lee observed that when the accused arrived at the driver’s side of his black Acura MDX vehicle, the accused open the driver’s door of the vehicle and then appeared to look down towards his waist area and take something out from his waistband. However, the accused had his back towards the police car, so Det. Cst. Lee could not see exactly what the accused was doing with his hands. The accused then leaned into his vehicle, on the driver’s side, but towards the front passenger side. This whole movement was “very quick” and took just a few seconds.

[21] At this point in time, Mr. Cochrane began telling the two police officers the details of the vehicular incident that occurred earlier between him and the accused. Mr. Cochrane described how the accused had almost “T-boned” his tow truck just minutes earlier, how he had “almost run him off the road,” and how the accused then went “screaming” into the Petro-Canada gas station with his vehicle almost up on “two wheels.” Mr. Cochrane suggested to the officers that they should “go get him [the accused].” As this conversation was taking place, Det. Cst. Lee noticed that the accused had entered his vehicle and was sitting in the driver’s seat.

[22] The parties agreed that, as of August 9, 2017, the accused was the registered lessee of this black, four-door, 2007 Acura MDX SUV, and had been the registered lessee of this vehicle for approximately the preceding ten months.

E. The Arrest of the Accused for Unlawful Possession of Marihuana

[23] Det. Cst. Lee then got out of the police car and went to see if the accused was okay. Cst. Bhandari remained in the police car talking to Mr. Cochrane.

[24] When Det. Cst. Lee approached the Acura MDX, the accused was alone in his vehicle and there was no one else in the general vicinity. As the officer approached the driver’s side of the Acura MDX, the accused got out of his vehicle and approached the officer. When the officer asked him if he was okay, the accused started yelling apologies to the tow truck driver for his earlier driving maneuvers.

[25] It was at this point that Det. Cst. Lee detected a strong odour of fresh marihuana emanating from the accused and/or his vehicle. Further, when the officer looked inside the Acura MDX, through the open driver’s window, he saw some marihuana flakes and residue on the center console of the vehicle, and a silver marihuana grinder on the driver’s seat. In addition, Det. Cst. Lee noticed that the accused had a “Blackwoods cigar package” sticking out of his right front pants pocket. In the same pocket, the officer noticed a circular object that he believed to be another marihuana grinder. At this point in time, approximately 1:26 a.m., Det. Cst. Lee formed the opinion that the accused was unlawfully in possession of marihuana and arrested him for possession of marihuana.

[26] Det. Cst. Lee had previously served on the Drug Squad of the TPS for a period of some three years and, as a result of that experience, he is very familiar with marihuana. During the course of his career as a police officer, Det. Cst. Lee estimated that he has been involved, hundreds of times, in the seizure of quantities of marihuana. Further, Det. Cst. Lee is able to tell the difference between the distinctive smells of fresh, raw marihuana and smoked, burnt marihuana. He is also quite familiar with the appearance and use of marihuana grinders. Det. Cst. Lee explained that Blackwoods Cigars are flavoured cigars that are often used by marihuana users to smoke marihuana, by simply replacing some of the tobacco in the cigars with marihuana.

[27] After the accused was placed under arrest, he advised Det. Cst. Lee that he had a medicinal marihuana card. The accused then produced a plastic, credit card-sized, green and white coloured, card from “MedReleaf.”

[28] The front of the card displayed the name “MedReleaf,” as well as a phone number and internet website address. The back of the card displayed the name of the accused, his patient number, his date of birth, and the name of his physician. It indicated that his prescription was for three grams of marihuana per day. The card also included an expiry date of February 21, 2018. The back of the card also indicated that, when it was presented in conjunction with a valid piece of government issued photo identification, the card served to “verify that the named individual is a registered patient of MedReleaf Corp.”

[29] The card appeared, to Det. Cst. Lee, to be “old and dirty,” and some of the letters on the card were faded away. There was no indication that this card was issued from the government. For example, it did not indicate that it had been issued by Health Canada or the Province of Ontario. Rather, it appeared to be a “membership card” for the “MedReleaf” company. Moreover, Det. Cst. Lee had never heard of “MedReleaf. In the result, Det. Cst. Lee was not satisfied that this was a “legitimate” card that proved that the accused was lawfully permitted to possess marihuana. Indeed, Det. Cst. Lee thought it was a “fake” card.

[30] While Det. Cst. Lee had not received any police training in how to distinguish a legitimate medicinal marihuana license from a fake one, he had seen approximately 20 fake medical marihuana cards in his experience as a police officer. Some of these invalid cards appeared, in various different colours, to have been issued in the United States. Some cards were laminated, some were plastic, and some displayed photographs of the individuals. Sometimes people even produced membership cards to illegal marihuana dispensaries as if they were licenses for medicinal marihuana.

[31] Det. Cst. Lee thought that the card produced by the accused was similar in appearance to the fake medicinal marihuana cards that had been produced to him on earlier occasions. It was not a government issued, medicinal marihuana license, containing photo-identification. Nor was it accompanied by any identifiable doctor’s prescription for marihuana for the accused.

[32] Ultimately, Det. Cst. Lee concluded that, in all of the circumstances, the accused was in unlawful possession of marihuana for recreational, not medicinal, purposes. In the result, he continued with his arrest of the accused. While Cst. Bhandari may have glanced at the “MedReleaf” card produced by the accused, he deferred to the decision of Det. Cst. Lee, who was much more experienced in relation to drug investigations.

[33] On this application, however, the parties agreed that, in fact, the accused was legally entitled to possess marihuana for medicinal purposes. Further, the parties agreed that the “MedReleaf” card that the accused produced to the police was issued by that company, which legally distributes medical marihuana in Canada, and that the card accurately described the accused’s legal entitlement to possess marihuana.

[34] Around the time of his arrest, the accused also produced his driver’s license because, between 1:27 and 1:28 a.m., Cst. Bhandari used this driver’s license number to access information about the accused using the Canadian Police Information Centre (CPIC) computer database. Information from this database provided the two officers with a body of information about the accused, including the details of his significant criminal record. This information included the fact that the accused had previously been convicted of the unlawful possession of a firearm, and the fact that he was subject to a lifetime firearms prohibition order.

F. The Results of the Pat-Down Search

[35] After he decided to continue with the arrest of the accused, Det. Cst. Lee conducted a “field search” or “pat-down” search of the accused incident to his arrest. During this search, Det. Cst. Lee found the following in the accused’s right front pants pocket: (1) a clear plastic bag of fresh marihuana; (2) a silver marihuana grinder (with a marihuana leaf embossed on top) containing some loose marihuana inside; and (3) the Blackwood’s cigar package. The marihuana in possession of the accused was not in any branded “MedReleaf” packaging. In the accused’s wallet, the officer also discovered $340.

[36] Once this search was completed, Det. Cst. Lee advised the accused of his right to counsel and cautioned him about making any statements to the police. Subsequently, at 1:29 a.m., Det. Cst. Lee put Mr. St. Clair in handcuffs and placed him in the back seat of the police vehicle.

G. The Search of the Acura MDX – Finding the Loaded Firearm

[37] The two police officers then collectively decided to search the Acura MDX vehicle, incident to the arrest of Mr. St. Clair, for further evidence of unlawful marihuana possession. They believed that there might well be further marihuana inside the vehicle. It was Cst. Bhandari who conducted this search, commencing at approximately 1:33 a.m., when he opened the front passenger door of accused’s vehicle.

[38] Cst. Bhandari described how his line of sight was “immediately drawn” to an “after-market compartment” located on the side of the center console in the foot well area on the passenger side of the Acura MDX. This compartment had a sliding plastic cover that was a different texture of material and different colour tone than the console. It appeared to be “out-of-place” in the vehicle. Cst. Bhandari had previously seen and searched these kinds of after-market compartments on numerous occasions and had seen police intelligence information about how such compartments were used to hide contraband in motor vehicles.

[39] When he slid the top of this compartment back, Cst. Bhandari saw what appeared to be the “receiver” portion of a handgun (i.e. the pistol grip portion of the firearm), protruding from the end of a black athletic tube-style sock. When Cst. Bhandari pulled this item out of this compartment and removed the sock, he uncovered a nine-millimeter Ruger model P95DC semi-automatic handgun. As the handgun had some “weight” to it, Cst. Bhandari believed that it was loaded with some ammunition. When Cst. Bhandari released the magazine from the handgun, a bullet fell out of it. This was a nine-millimeter “Windriver” center-fire bullet. When the officer slid back the “slide action” of the handgun, another bullet with the same markings was ejected from the ejection port. This showed that the firearm was operable and had been made “ready” to fire. The 14 bullets that the officer found in the magazine were the same as the other two bullets from the handgun.

[40] This firearm, its over-capacity magazine, and its ammunition were seized by Cst. Bhandari. The accused was again placed under arrest by Det. Cst. Lee, this time for unlawfully possessing a firearm, and once again advised of his right to counsel. The accused was then transported to the 22 Division station, arriving there at 2:06 a.m.

[41] The parties are agreed that (1) the handgun found in the accused’s motor vehicle is a fully functioning “prohibited firearm;” (2) the detachable box cartridge magazine found within the firearm, which was capable of holding 15 cartridges of nine-millimeter Luger calibre center-fire ammunition, is “prohibited device;” and (3) on August 9, 2017, the accused was not the holder of a registration certificate, or a firearms acquisition certificate, or a license that would have permitted him to lawfully possess any of these items.

H. The Results of the Strip Search

[42] After the accused was booked into the station, the acting officer-in-charge of the 22 Division station, Det. Wayne Jackson, authorized a “level three” search – also known as a “strip search” – of the accused. Det. Jackson explained that such authorizations are granted or denied on a case-by-case basis. Det. Jackson further explained that he was ultimately responsible for the safety of the accused and the others in the facility, and he anticipated that the accused would be kept in custody and would, ultimately, be going into the general jail population with other prisoners. In these circumstances, and especially having regard to the charges against the accused, which related to his possession of a firearm and marihuana, Det. Jackson believed that the accused might have some type of contraband on his person which could potentially harm himself or others. Accordingly, he considered it appropriate to authorize the “level three” search.

[43] This search commencing at 2:25 a.m., and was conducted in a private room by the two investigating police officers. The handcuffs were removed from the accused during this search. Items of clothing were removed, checked and then given back to the accused, so that he was never entirely without clothing. During the course of this strip search, it quickly became apparent to the officers that the accused had a black plastic bag between his buttocks and, despite repeated warnings from the officers to keep his hands away from that area, the accused repeatedly reached around behind his body in apparent attempts to insert the plastic bag into his rectum. Given the continued violent physical resistance of the accused to prevent the police from recovering this plastic bag, the officers determined that they had to use force to distract the accused and bring him under their physical control. Det. Cst. Lee slapped him in the face twice, and Cst. Bhandari kneed him once in the chest. Ultimately, by using these “distraction strikes”, the police officers were able to bring the accused to the ground, return him to handcuffs, and seize the black plastic bag from between his buttocks.

[44] With respect to the substances that were found inside the black plastic bag seized from the accused, the parties agreed that (1) the substances found inside that black plastic bag were submitted for analysis and were determined to be 13.64 grams of crack cocaine (divided into two clear plastic bags) and 9.44 grams of powder cocaine; (2) if the crack cocaine was distributed as pre-packaged $10-$20 increments, the 13.64 grams of crack cocaine would amount to 136 doses or pieces of crack cocaine that would have a total street value of between approximately $1,400 and $2,728; (3) if the powder cocaine was sold at the gram level, the 9.44 grams of powder cocaine would have a street value of between approximately $755 and $944; and (4) given the quantities of the crack cocaine and powder cocaine, the packaging, and where it was found, the accused was in possession of the crack cocaine and the powder cocaine for the purposes of trafficking.

III

Analysis

A. Was the Warrantless Arrest of the Accused Based on Reasonable Grounds?

1. Introduction

[45] Defence counsel contends that the arrest of the accused, for being in unlawful possession of marihuana, was unlawful and in violation of s. 8 of the Charter of Rights, as it was not based upon the necessary reasonable and probable grounds. I disagree. While the accused was, in fact, lawfully in possession of marihuana, the police officers subjectively believed that the accused was not lawfully in possession of marihuana, and that belief was objectively reasonable in all of the circumstances. While it ultimately turned out that the accused was not guilty of the offence of being in unlawful possession of marihuana, his arrest was lawful as it was based upon reasonable and probable grounds. Accordingly, the arrest of the accused was not in violation of s. 8 of the Charter.

2. Reasonable and Probable Grounds for Arrest – The General Principles

[46] According to the combination of ss. 495(1)(a) and (b) of the Criminal Code, R.S.C. 1985, chap. C-46, a peace officer may arrest without warrant a person who has committed an indictable offence or who, “on reasonable grounds,” the peace officer believes has committed or is about to commit an indictable offence, or a person whom the peace officer finds committing a criminal offence.

[47] The statutory requirement of “reasonable grounds” means that (1) the police officer effecting the arrest must subjectively believe that he or she has reasonable and probable grounds to arrest the accused; and (2) this belief must be objectively reasonable, in the sense that a reasonable person in the position of the officer must be able to conclude that there were, indeed, reasonable and probable grounds for the arrest. See R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, 53 C.C.C. (3d) 316, at pp. 249-251; R. v. Hall (1995), 1995 CanLII 647 (ON CA), 22 O.R. (3d) 289, 39 C.R. (4th) 66 (C.A.), at pp. 298-299; R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743, 117 C.C.C. (3d) 193 (C.A.), at para. 20, leave denied, [1997] S.C.C.A. No. 571; R. v. Muller, 2014 ONCA 780, 122 O.R. (3d) 721, at para. 36; R. v. Amare, 2014 ONSC 4119, [2014] O.J. No. 5225, at para. 83, affirmed, 2015 ONCA 673, 343 C.R.R. (2d) 103, at paras. 6-13; R. v. Notaro, 2018 ONCA 449, 27 M.V.R. (7th) 1, at paras. 34-36, 39-40.

[48] As I have noted on earlier occasions, much has been written about the objective standard of “reasonable grounds” or “reasonable and probable grounds” in an effort to provide this important legal threshold standard with a greater degree of precision. See, for example, Can v. Calgary (Police Service), 2014 ABCA 322, 315 C.C.C. (3d) 337, at paras. 107-173; R. v. Shinkewski, 2012 SKCA 63, 289 C.C.C. (3d) 145, at para. 13; R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, at paras. 21-23; R. v. Grant and Campbell, 2015 ONSC 1646, [2015] O.J. No. 1229, at para. 92; R. v. Aguas, 2015 ONSC 3462, 335 C.R.R. (2d) 312, at paras. 55-56; R. v. Gordon, 2018 ONSC 1297, at para. 43; R. v. Williams, 2018 ONSC 3654, at paras. 104-105, 108-111. The governing appellate court jurisprudence articulates the following principles surrounding the practical application of this standard:

• Proof of reasonable and probable grounds does not require proof of the commission of the alleged offence beyond a reasonable doubt, or even the establishment of a prima facie case against the accused. See R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, 52 C.C.C. (3d) 193, at p. 1168; R. v. Storrey, at pp. 249-251; Dumbell v. Roberts, [1944] 1 All E.R. 326 (C.A.), at p. 329; Illinois v. Gates, 462 U.S. 213 (1983), at p. 235.

• Proof of reasonable and probable grounds does not even require proof of the commission of the offence on the civil standard of the balance of probabilities, or on the basis of a 51% probability. See R. v. Hall, at p. 298; Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 114; R. v. Jacobson (2006), 2006 CanLII 12292 (ON CA), 207 C.C.C. (3d) 270, 37 C.R. (6th) 320 (Ont.C.A.), at para. 22; R. v. Loewen, 2010 ABCA 255, 260 C.C.C. (3d) 296, at para. 18, affirmed, 2011 SCC 21, [2011] 2 S.C.R. 167; R. v. Spence, 2011 BCCA 280, 87 C.R. (6th) 242, at para. 31; United States v. Garcia, 179 F.3d 265 (C.A., 5th Cir., 1999), at p. 269.

• In considering whether the arresting officer was objectively possessed of the necessary reasonable and probable grounds, the court must take into account all of the circumstances known by the arresting officer and appreciate that a trained and seasoned police officer is entitled to draw inferences and make deductions drawing on his or her years of experience. See R. v. Rajaratnam, 2006 ABCA 333, 214 C.C.C. (3d) 547, at para. 25; R. v. Juan, 2007 BCCA 351, 222 C.C.C. (3d) 289, at paras. 17-20, 27-28; R. v. Bush, 2010 ONCA 554, 259 C.C.C. (3d) 127, at para. 61; R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 48; R. v. Muller, at para. 37; R. v. Biccum, 2012 ABCA 80, 286 C.C.C. (3d) 536, at para. 21.

• The threshold of reasonable and probable grounds demands more than establishing merely a reasonable suspicion of the commission of the offence. See R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 85.

• The standard of reasonable and probable grounds is used to define the point at which the state’s interest in detecting and preventing crime begins to prevail over the individual’s liberty interest in being left alone, namely, at the point where credibly-based probability replaces suspicion. In short, the threshold requires that there must be a “reasonable probability.” See Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, 14 C.C.C. (3d) 97, at pp. 167-168; R. v. Debot, at p. 1166; Baron v. Canada, 1993 CanLII 154 (SCC), [1993] 1 S.C.R. 416, 78 C.C.C. (3d) 510, at pp. 446-447.

• Beyond these principles, it may not be possible to more precisely define the nature of the standard of reasonable and probable grounds, or affix specific mathematical percentages, as it is a commonsense threshold designed to provide a practical and non-technical standard based on probabilities, and which permits consideration of the totality of circumstances in each individual case. See R. v. Campbell, 2010 ONCA 588, 261 C.C.C. (3d) 1, at paras. 52-54, affirmed, 2011 SCC 32, [2011] 2 S.C.R. 549; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 29, 62, 69; R. v. MacKenzie, at para. 71; R. v. Canary, at para. 22; Illinois v. Gates, at pp. 238, 244; Ornelas v. United States, 517 U.S. 690 (1996), at pp. 695-696; Maryland v. Pringle, 540 U.S. 366 (2003), at p. 371; Safford Unified School District v. Redding, 129 S.Ct. 2633 (2009); Florida v. Harris, 133 S.Ct. 1050 (2013), at p. 1055.

[49] In determining the objective reasonableness of a police officer’s subjective belief that he or she has the necessary grounds for an arrest, it is worthwhile recalling that such decisions are often “made quickly [by officers] in volatile and rapidly changing situations” where detached “[j]udicial reflection is not a luxury the officer can afford.” See R. v. Golub, at para. 18; R. v. Lawes, 2007 ONCA 50, [2007] O.J. No. 50, at para. 4; R. v. Carelse-Brown, 2016 ONCA 943, 343 C.C.C. (3d) 365, at paras. 47-48.

3. The Effect of Potentially Exculpatory Explanations and Evidence

[50] Police officers are obliged to consider and weigh any potentially exculpatory evidence in determining whether and/or how to proceed with their investigation concerning an accused who has been lawfully arrested. However, police officers are not obliged to accept, at face-value, any exculpatory explanation or evidence that may be provided by an accused. Indeed, the police may disregard information which they have good reason to believe is unreliable. Nor are the police obliged to discontinue or suspend other potential aspects of their investigation until they have fully investigated and drawn any final conclusions about the effect of any such exculpatory explanations and evidence. In short, the police need not completely rule out any potentially innocent inferences, defences or lawful excuses before properly proceeding with the arrest of an accused. See Chartier v. Quebec (Attorney General), 1979 CanLII 17 (SCC), [1979] 2 S.C.R. 474, 48 C.C.C. (2d) 34, at p. 499; R. v. Golub, at para. 21; R. v. Godoy, 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311, 131 C.C.C. (3d) 129, at para. 20; R. v. Shinkewski, at para. 13; R. v. Chehil, at para. 33; R. v. McKenzie, at para. 72; R. v. Depace, 2014 ONCA 519, 317 C.R.R. (2d) 296, at para. 8; R. v. Henareh, 2017 BCCA 7, [2017] B.C.J. No. 479, at para. 52; R. v. Lofty, 2017 BCCA 418, 357 C.C.C. (3d) 516, at paras. 57-67, leave denied, [2018] S.C.C.A. No. 14; R. v. Manlove, 2018 BCCA 37, [2018] B.C.J. No. 172, at paras. 24-27; R. v. Ha, 2018 ABCA 233, 71 Alta. L.R. (6th) 46, at paras. 30-39; Bruce A. MacFarlane, Robert J. Frater and Croft Michaelson, Drug Offences in Canada (2016, 4th ed.), at § 24:120.40.

[51] Further, the fact that an accused may, ultimately, be found not guilty of the alleged offence for which he or she was arrested does not establish that the arrest of the accused was not based on reasonable and probable grounds. See R. v. Biron, 1975 CanLII 13 (SCC), [1976] 2 S.C.R. 56, 23 C.C.C. (2d) 513, at pp. 71-75; R. v. Anderson (1996), 1996 CanLII 3099 (BC CA), 111 C.C.C. (3d) 540, [1996] B.C.J. No. 2157, at para. 43; leave denied, [1997] S.C.C.A. No. 10.

[52] For example, in R. v. MacCannell, 2014 BCCA 254, 314 C.C.C. (3d) 514, a police officer experienced in marihuana investigations stopped the truck driven by the accused for speeding. After speaking with the accused and obtaining his relevant documentation, the officer walked past the rear door of the truck, where he detected an overwhelming odour of vegetative marihuana. Based solely on that odour, the officer arrested the accused for possession of marihuana. The subsequent search of the truck revealed the presence of both marihuana plants and bulk marihuana. The accused was ultimately convicted of possession of marihuana for the purpose of trafficking. On his appeal against conviction, the accused argued that the officer did not have the necessary reasonable grounds to arrest him because the officer failed to consider other potential innocent inferences or lawful excuses. More specifically, defence counsel argued that the accused might have been authorized to possess marihuana under the Marihuana Medical Access Regulations, SOR/2001-227, or that the odour the officer detected could have been from an earlier use of the truck to transport marihuana. The British Columbia Court of Appeal rejected these arguments. Garson J.A., delivering the judgment of the Court, concluded as follows, at para. 45:

The [reasonable grounds] standard does not require an officer to satisfy him or herself that there is evidence of proof beyond a reasonable doubt or even a prima facie case. All that the officer must have is an objectively reasonable basis for believing the suspect is presently in possession of marihuana, without necessarily ruling out potentially innocent inferences, defences or lawful excuses.

[emphasis added]

[53] Similarly, and more recently, in R. v. Lofty, a police officer caught the accused speeding. When the officer stopped the accused’s truck and approached the driver’s door, the accused appeared nervous and there was an extremely strong odour of air freshener emanating from the truck. After collecting the relevant documentation from the accused, the officer returned to his police car and wrote the accused a speeding ticket. The officer also learned, when he accessed the CPIC database, that the accused had been arrested a few months earlier for possessing a large quantity of marihuana. When the police officer returned to the accused’s truck, he detected the slight odour of vegetative marihuana emanating from it. Believing the accused to be in possession of marihuana, the police officer arrested him. When the officer searched the vehicle’s trunk, he discovered numerous plastic bags, each containing approximately a half-pound of marihuana. The accused was charged, and ultimately convicted of, possession of marihuana for the purpose of trafficking. The accused contended at trial, and on appeal, that his arrest was unlawful as it was not based upon the necessary reasonable and probable grounds. In rejecting this argument, Frankel J.A., delivering the judgment of the British Columbia Court of Appeal, adopted the approach earlier outlined in R. v. MacCannell, and summarized the law in this regard as follows, at para. 65:

Exculpatory, common, neutral, or equivocal information should not be discarded when assessing a constellation of factors. However, the test for reasonable [grounds to believe] will not be stymied when the factors which give rise to it are supportive of an innocent explanation. We are looking here at [a reasonable probability, not proof beyond a reasonable doubt, a prima facie case, or proof on a balance of probabilities]. Are the facts objectively indicative of the [reasonable probability] of criminal behaviour in light of the totality of the circumstances? If so, the objective component of the test will have been met. If not, the inquiry is at an end.

Assessing whether a particular constellation of facts gives rise to a reasonable [belief] should not – indeed must not – devolve into a scientific or metaphysical exercise. Common sense, flexibility, and practical everyday experience are the bywords, and they are to be applied through the eyes of a reasonable person armed with the knowledge, training and experience of the investigating officer.

[emphasis in original]

[54] These principles were, in effect, applied by Brophy J. in R. v. Munro (unreported, May 1, 2014, Ont.C.J.) in somewhat similar factual circumstances. In that case, two police officers stopped a motor vehicle being driven by the accused. They arrested the accused for operating a motor vehicle while his driver’s license was suspended. As one of the officers was searching the vehicle incident to arrest, the other officer learned that the accused had not actually received notice that his license had been suspended. By the time this information was communicated to the searching police officer, the officer had found a bag containing 4.2 grams of marihuana inside the pocket of the driver’s door of the vehicle. The accused was then arrested for having the unlawful possession of marihuana. When arrested for that offence, the accused said that he had a medical marihuana license and directed the officer to its location under the driver’s sun visor of his vehicle. Candidly, the searching police officer indicated that she was not sure if this medical marihuana license was valid or not, and she, thereafter, continued to search the vehicle and continued with the arrest of the accused. Defence counsel argued that this continued search was contrary to s. 8 of the Charter of Rights, as the presence of the medical marihuana license should have caused the police to immediately “cease” their search of the vehicle. The trial judge held, however, that the police were entitled to continue with their search of the vehicle incident to the arrest. In finding that the arrest of the accused had been lawful, Brophy J. held that the police had properly taken into account the fact that the accused had a medical marihuana license, and also properly determined that they could continue with her investigation, including their search of the accused’s vehicle incident to the arrest of the accused.

4. The Lawfulness of the Arrest of the Accused in the Present Case

[55] The application of these legal principles in the circumstances of this present case leads me to conclude that Det. Cst. Lee possessed the necessary objectively reasonable and probable grounds to arrest the accused and to continue with that arrest, even after the accused claimed to be able to possess marihuana for medicinal purposes and produced his MedReleaf card, because Det. Cst. Lee found the accused committing a criminal offence.

[56] First, I find, as a matter of fact, that Det. Cst. Lee honestly, subjectively believed that (1) he had the necessary reasonable and probable grounds to arrest the accused for being in unlawful possession of marihuana; (2) the MedReleaf card presented by the accused was a “fake;” and (3) the accused was in possession of marihuana for recreational, not medicinal, purposes. Det. Cst. Lee struck me as an honest witness and I have no hesitation accepting his testimony to this effect.

[57] Second, I conclude that the beliefs of Det. Cst. Lee were objectively reasonable. When Det. Cst. Lee first encountered the accused outside his Acura MDX, Det. Cst. Lee detected a strong odour of fresh marihuana emanating from the accused and/or his vehicle. As an experienced Toronto Drug Squad officer, Det. Cst. Lee was very familiar with marihuana and its distinctive smell in its fresh, raw, vegetative state. I appreciate that the sense of smell may be “highly subjective,” and smells are often “transitory” and “incapable of objective verification.” See R. v. Polashek (1999), 1999 CanLII 3714 (ON CA), 45 O.R. (3d) 434, 134 C.C.C. (3d) 187 (C.A.), at para. 13. I also appreciate that Cst. Bhandari did not also smell this marihuana. Nevertheless, I accept as honest and truthful the testimony of Det. Cst. Lee that he smelled “fresh marihuana” coming from the accused and/or the inside of the Acura MDX.

[58] The law is well-settled that the smell of marihuana alone can provide the necessary reasonable and probable grounds for an arrest. See R. v. Harding, 2010 ABCA 180, 256 C.C.C. (3d) 284, at paras. 21-30; R. v. Morris, 2013 ONCA 223, 282 C.R.R. (2d) 1, at para. 8; R. v. Hoang, 2013 ONCA 430, at para. 5; R. v. Cousins, 2014 ONSC 5837, [2014] O.J. No. 4720, at para. 26; R. v. Safarzadeh-Markhali, 2014 ONCA 627, 122 O.R. (3d) 97, at paras. 3-7, 9-10, 16-18, affirmed, 2016 SCC 14, [2016] 1 S.C.R. 180; R. v. MacCannell, at paras. 34-50; R. v. Gonzales, 2017 ONCA 543, 136 O.R. (3d) 225, at para. 97.

[59] Further, when Det. Cst. Lee looked inside the accused’s vehicle, through the open driver’s window, he saw some marihuana flakes and marihuana residue on the center console of the vehicle, and a marihuana grinder on the driver’s seat. Det. Cst. Lee also noticed that the accused had a “Blackwoods cigar package” (commonly used by marihuana users) sticking out of his right front pants pocket, as well as a circular object in that same pocket that the officer believed to be another marihuana grinder. This testimony, which I accept as honest, truthful and accurate, fully supports the conclusion that the subjective belief of Det. Cst. Lee that the accused was in unlawful possession of marihuana, was objectively reasonable. At that point in time, Det. Cst. Lee possessed the necessary reasonable and probable grounds to arrest the accused for the unlawful possession of marihuana and was, accordingly, entitled to arrest the accused for this offence.

[60] Thereafter, when the accused claimed that he had a medicinal marihuana card and produced his “MedReleaf” card, Det. Cst. Lee examined the card, and ultimately concluded that it was “fake.” In this regard, the officer noted that the card was “old and dirty” and some of the letters on the card were faded away. Further, it was not a government-issued card from Health Canada or the Province of Ontario. Rather, it appeared to be a “membership card.” The officer had never heard of “MedReleaf.” While Det. Cst. Lee had not been given any formal police training in relation to how to distinguish a legitimate medicinal marihuana license from an illegitimate one, he did have considerable personal experience in dealing with fake medical marihuana cards. Based on this experience, the card produced by the accused seemed, to Det. Cst. Lee, to be similar in appearance to those fake medical marihuana cards. He expected that any legitimate medical marihuana license would be some type of photo-identification, government-issued license, perhaps accompanied with an identifiable doctor’s prescription for marihuana for the accused. Ultimately, this assessment of the “MedReleaf” card turned out to be in error. However, in my view, this did not undermine the fact that Det. Cst. Lee still had reasonable and probable grounds to proceed with his arrest of the accused and with his investigation – including the pat-down search of the accused and the search of his vehicle, both incident to the lawful arrest of the accused.

[61] Det. Cst. Lee was required to carefully consider and weigh the potentially exculpatory explanation from the accused in determining whether and/or how to proceed with the investigation concerning an accused who had already been lawfully arrested – which he did. That said, the officer was not obliged to accept, at face-value, that potentially exculpatory explanation. Further, the police were not obliged to immediately suspend other potential aspects of their investigation, such as their searches incident to the arrest of the accused, until they had further and more fully investigated the exculpatory explanation provided by the accused, and the evidence he provided in support of that explanation. To paraphrase the language of Garson J.A. in R. v. MacCannell, at para. 45, the police were not required to rule out all potentially innocent inferences, defences or lawful excuses before proceeding with the arrest of an accused and their coincident investigations surrounding that arrest.

[62] Indeed, in my view, the police were duty-bound to continue with their investigation in this case. Having concluded that he had reasonable and probable grounds to believe that the accused was in unlawful possession of marihuana, Det. Cst. Lee was obliged to conduct the searches necessary in order to discover the whereabouts of that marihuana. The marihuana could have been somewhere on the accused’s person and/or somewhere in his motor vehicle. Even if Det. Cst. Lee had simply accepted, at face-value, the information on the “MedRefleaf” card produced by the accused, that card did not suggest that the accused was entitled to possesses limitless quantities of marihuana. The police were, at a minimum, entitled to pursue their investigation in order to determine whether the quantities of marihuana possessed by the accused (in his vehicle and/or on his person) were within the quantities he was lawfully entitled to possess for medicinal purposes. As Cory J. stated, in delivering the judgment of the Supreme Court of Canada in R. v. Storrey, at para. 25, “it has long been the rule in Canada […] that the police can continue their investigation subsequent to an arrest,” as the “essential role of the police is to investigate crimes” and “[t]hat role and function can and should continue after they have made a lawful arrest.” As Cory J. explained, the “continued investigation will benefit society as a whole, and not infrequently the arrested person.”

[63] In summary, in my view, in the circumstances of the present case the arrest of the accused was lawful, as were the subsequent investigative steps taken by the police, and there was no violation of the accused’s constitutional rights under s. 8 of the Charter of Rights.

B. Were the Subsequent Searches Incident to the Lawful Arrest of the Accused?

1. Search Incident to Arrest – General Principles

[64] Generally speaking, warrantless searches and seizures are presumptively unreasonable. Nevertheless, the courts have long recognized the power of police officers to perform warrantless searches and seizures when they are truly incidental to the lawful arrest of an individual. The rationale for this long-standing search and seizure power is that when police officers arrest an individual, they need to be able to prevent any possible escape, protect themselves against any weapons that may be in the possession of the accused (or within his or her immediate surroundings), and preserve any available evidence of the alleged offence for which the accused is being arrested. As the Supreme Court of Canada noted in R. v. Beare; R. v. Higgins, 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387, 45 C.C.C. (3d) 57, at p. 404, the police power to search incident to arrest exists due to the need to properly arm the police “with adequate and reasonable powers for the investigation of crime” in recognition of the reality that “[p]romptitude and facility in the identification and the discovery of indicia of guilt or innocence are of great importance in criminal investigations.” See also R. v. Debot, at p. 1146. In other words, the real need for the police to be able to promptly and efficiently pursue their investigation upon lawfully arresting an individual is an important foundational consideration underlying the power to search incident to arrest.

[65] Accordingly, as a general rule the police may search lawfully arrested individuals and their immediate surroundings to discover any object that may be a threat to the safety of the police, the accused or the public, or which may facilitate an escape, or which may provide evidence against the accused for the crimes for which he or she was arrested. See Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158, 53 C.C.C. (3d) 257, at pp. 180-182, 186; R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607, 113 C.C.C. (3d) 321, at paras. 33-39; R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, 121 C.C.C. (3d) 97, at paras. 17-19, 22-25; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at paras. 23-24, 75, 84; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 14; R. v. Canary, at para. 33.

[66] However, as the Supreme Court of Canada confirmed in R. v. Fearon, at paras. 13-14, the permissible scope of any particular search incident to arrest turns on a number of different aspects of the search, including such important matters as (1) the nature of the crime for which the accused is being arrested; (2) the circumstances surrounding the arrest; (3) the nature of the items seized; and (4) the place and time of the search in relation to the time of the arrest. Accordingly, the permissible scope of any individual search incident to arrest will be affected by the particular circumstances of the individual case. See also R. v. Caslake, at paras. 15-16. In each case the court must weigh the competing interests involved to determine whether the search is “reasonable” and in compliance with s. 8 of the Charter, in light of the “public purposes served by effective control of criminal acts” while at the same time respecting “the liberty and fundamental dignity of individuals.” See Cloutier v. Langlois, at pp. 181-182; R. v. Caslake, at para. 17; R. v. Golden, at para. 87.

[67] Searches that are truly incidental to a lawful arrest do not themselves have to be based upon reasonable and probable grounds, but in undertaking such searches the police must be seeking “to achieve some valid purpose connected to the arrest.” This will turn on what the police are searching for and why they are searching for it. The police must have in mind, when the search is conducted, one of the purposes for a valid search incident to arrest and must reasonably believe that this purpose may be served by the search that is undertaken. See R. v. Caslake, at paras. 19-25; R. v. Nolet, at paras. 49-52; R. v. Muller, at para. 38.

2. The “Pat Down” or “Frisk” Search of the Accused Incident to Arrest

[68] Generally speaking, where an individual has been lawfully arrested, the police may perform a reasonable pat-down or frisk search of the arrestee. In other words, the officer is usually permitted to run his or her hands quickly over the body of the accused, outside his or her clothing, for purposes of (1) ascertaining what, if any, objects or weapons may be on the arrestee’s person; and (2) discovering and preserving any evidence of the alleged offence. In some circumstances, where justified, such searches may include an examination of the arrestee’s pockets. See Cloutier v. Langlois, at pp. 185-186; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at paras. 40-50, 66-67; R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, at para. 20; R. v. Waniandy (1995), 1995 ABCA 100, 162 A.R. 293, [1995] A.J. No. 131 (C.A.); R. v. Osanyinlusi, [2006] O.J. No. 2529 (S.C.J.), at paras. 37-49; R. v. Amofa, 2011 ONCA 368, 235 C.R.R. (2d) 1, at paras. 15-26; R. v. Nesbeth, 2008 ONCA 579, 238 C.C.C. (3d) 567, at para. 18, leave denied, [2009] S.C.C.A. No. 10; R v. Tuduce, 2014 ONCA 547, 314 C.C.C. (3d) 429, at paras. 29, 49-55, leave denied, [2015] S.C.C.A. No. 303,

[69] I have no doubt that when Det. Cst. Lee conducted his pat-down or frisk search of the accused, after arresting him for unlawfully possessing marihuana, the officer was acting reasonably, proportionally, and for a valid purpose – namely, namely, to find any marihuana in the accused’s possession and to discover any potential weapon that might pose a threat to the safety of the police, the accused and/or the public. See R. v. Peterkin, 2015 ONCA 8, 319 C.C.C. (3d) 191, at paras. 44-54, 59; R. v. Muller, at para. 43.

3. The Police Search of the Vehicle Incident to the Arrest

[70] There are many authorities that permit the search of motor vehicles incident to the lawful arrest of the accused. The principle articulated in those authorities is that the police, in arresting an accused, should be able to search not only the accused’s person, but also his “immediate surroundings” as he or she may equally be able to secure a weapon or destroy evidence in that surrounding area. This principle is generally applied so as to permit the police to search the interior and trunk of the motor vehicle being driven by the accused, or within his or her immediate control. See, for example R. v. Speid, [1991] O.J. No. 1558, 8 C.R.R. (2d) 383 (C.A.), leave denied, [1992] 1 S.C.R. xi; R. v. Klimchuk (1991), 1991 CanLII 3958 (BC CA), 67 C.C.C. (3d) 385, 8 C.R. (4th) 327 (B.C.C.A.), at pp. 402-403; R. v. Smellie, 1994 CanLII 1612 (BC CA), [1994] B.C.J. No. 2850, 95 C.C.C. (3d) 9 (C.A.), at para. 29-47, leave denied, [1995] 2 S.C.R. ix; R. v. Polashek, at paras. 25-26; R. v. Alkins, 2007 ONCA 264, 218 C.C.C. (3d) 97, at paras. 2, 26-38; R. v. Shankar, 2007 ONCA 280, 153 C.R.R. (2d) 298, at paras. 10-17; R. v. Tontarelli, 2009 NBCA 52, 247 C.C.C. (3d) 160, at paras. 50-51; R. v. Crocker (2009), 2009 BCCA 388, 247 C.C.C. (3d) 193, at para. 78, leave denied, [2010] 1 S.C.R. viii; Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710 (2009); R. v. Nolet, at para. 49; R. v. Valentine, 2014 ONCA 147, 316 O.A.C. 302, at paras. 42-48, 58.

[71] Nevertheless, as Lamer C.J.C. noted in R. v. Caslake, at para. 23, the right to search a car incident to arrest in any given case, and the scope of that search, will depend on a number of factors, including “the basis for the arrest, the location of the motor vehicle in relation to the place of the arrest, and other relevant circumstances.” The police must be attempting to achieve some valid purpose connected to the arrest, such as protecting evidence from destruction, or discovering evidence of the offence for which the accused is being arrested. As Watt J.A. recently observed in R. v. Tsekouras, 2017 ONCA 290, 353 C.C.C. (3d) 349, at para. 87, leave denied, [2017] S.C.C.A. No. 225, “[w]hat matters is that there be a link between the location and purpose of the search and the grounds for the arrest.” See also R. v. Ellis, 2013 ONSC 1494, 278 C.R.R. (2d) 324, at para. 76, affirmed, 2016 ONCA 598, 132 O.R. (3d) 510, at paras. 39-42.

[72] In the circumstances of the present case, in my view the police were justified in searching the Acura MDX incident to the arrest of the accused. The police had reasonable and probable grounds to believe that the accused was in unlawful possession of fresh marihuana, and that this fresh marihuana was on his person and/or in his motor vehicle. While some marihuana was found on the accused’s person, the police were entitled to search his motor vehicle to determine whether there was any additional marihuana located therein. That was what they did.

[73] By the time Cst. Bhandari began to search the Acura MDX, the police had obtained considerable information from the CPIC database about the accused. It is possible that, as a result of that information, the officers may have been concerned about the risk that there might have been a firearm or other weapon located inside the Acura MDX. The fact that the police had gathered this information from the CPIC database, or even had that concern, did not, however, prevent them from searching the accused’s vehicle for further marihuana, as they did.

4. The Strip Search – The Recovery of the Cocaine

[74] The power to search a person incident to his or her arrest does not automatically entitle the police to routinely conduct an invasive “strip search” of the arrestee in every case. Rather, such intrusive personal searches can only be justified as reasonable where certain preconditions are met. First, the arrest of the accused must be lawful. Second, the strip search must be truly incidental to the arrest, in that it must be undertaken in order to collect or preserve evidence of the alleged offence for which the accused has been arrested, or to search for potential weapons in order to ensure the safety of the police, the arrestee and/or other members of the public. Such a search cannot be carried out abusively, or for the purpose of humiliating or punishing the arrestee. Of course, where an arrestee is going to be entering the jail or prison population, there is a greater need to ensure that the arrestee is not concealing weapons or illegal drugs on his or her person prior to his or her entry into that prison environment. Third, as a strip search is a much more intrusive type of personal search, a higher degree of justification is required. In order to meet the constitutional standard of reasonableness necessary to justify a strip search, the police must establish that they have reasonable and probable grounds for concluding that a strip search is necessary in the particular circumstances of the case. See R. v. Flintoff (1998), 1998 CanLII 632 (ON CA), 126 C.C.C. (3d) 321, 16 C.R. (5th) 248 (Ont. C.A.), at paras. 23-24; R. v. Golden, at paras. 24-26, 90-99; R. v. Muller, at paras. 18-20, 54-73; R. v. Mammadov, 2014 ONCA 328, 64 M.V.R. (6th) 250, at paras. 13-14; R. v. Saeed, 2016 SCC 24, [2016] 1 S.C.R. 518, at paras. 6-7, 40-42, 52-65, 74-83; R. v. Gonzales, 2017 ONCA 543, 136 O.R. (3d) 225, at paras. 135-139; James A. Fontana and David Keeshan, The Law of Search & Seizure in Canada (10th ed., 2017), at pp. 1063-1068.

[75] Further, where these preconditions to conducting a strip search incident to arrest are met, the strip search itself must be conducted in a reasonable manner that does not infringe s. 8 of the Charter. Generally, absent exigent circumstances, strip searches should only be conducted at the police station where a greater level of privacy can be provided to the arrestee. They should be conducted in a manner that ensures the health and safety of all involved. Strip searches should be authorized by a police officer acting in a supervisory capacity. The police officers carrying out the strip search should be of the same gender as the arrestee. The number of police officers involved in the strip search should be no more than is reasonably necessary in the circumstances. The minimum degree of force that is necessary to conduct the strip search should be employed. The search should be carried out in a private area such that no one other than the individuals engaged in the search can observe the search. The strip search should be conducted as quickly as possible and in a way that ensures that the arrestee is not completely undressed at any one time. The strip search should involve only a visual inspection of the arrestee’s genital and anal areas without any physical contact. If the visual inspection reveals the presence of a weapon or evidence in a body cavity (not including the mouth), the arrestee should be given the option of removing the object himself or of having the object removed by a trained medical professional. A proper record should be kept of the reasons for and the manner in which the strip search was conducted. These various indicia of a reasonably executed strip search were outlined by the Supreme Court of Canada in R. v. Golden, at paras. 58-59, 99-102.

[76] In the circumstances of the present case, the strip search of the accused was reasonable and conducted in accordance with the governing jurisprudence under s. 8 of the Charter of Rights. Beyond contending that the initial arrest of the accused was unlawful, defence counsel for the accused did not suggest otherwise.

[77] The necessary preconditions to conducting a strip search of the accused were met. The arrests of the accused for the offences of possession of marihuana and possession of a loaded firearm were lawful. The strip search was truly incidental to the arrest, in that it was undertaken for the purpose of collecting any potential evidence of the alleged offences and to seize any potential weapons. It is important to recall in this regard that it was anticipated that the accused was going to remain in detention together with other prisoners. In my view, the police had reasonable and probable grounds for concluding that a strip search was necessary in the particular circumstances of this case. See R. v. Thomas (2005), 2005 CanLII 30048 (ON CA), 201 O.A.C. 266 (C.A.), affirming, (2004), 2004 CanLII 8097 (ON SC), 22 C.R. (6th) 375, [2004] O.J. No. 1920 (S.C.J.); R. v. Muller, at paras. 54-73.

[78] In addition, in my view the strip search was conducted in a reasonable manner. It was conducted in a private room at the police station, where others would not be able to observe the search. There was nothing inherently unsafe or unhealthy about the manner in which the strip search was conducted. The strip search of the accused was authorized by the officer in charge of the police station, acting in a supervisory capacity. The two investigating police officers who carried out the strip were the same gender as the accused. The presence of these two officers was reasonably necessary for the strip search of the accused. While some degree of force was ultimately employed by the officers during the course of the search, the officers used no more force than was necessary to conduct the search and seize the contraband that they had observed. The search was conducted as efficiently as possible in all of the circumstances. The accused was never completely undressed at any one time. The strip search did not involve any direct physical contact with the accused’s genital or anal regions. A record was kept of the reasons for the search and the manner in which the search was conducted. See R. v. Golden, at paras. 58-59, 99-102.

C. Alternatively – Should the Evidence Be Excluded Under Section 24(2) of the Charter?

1. Introduction

[79] I have concluded that the arrest of the accused was lawful, and that the subsequent “pat-down” search of his person, the search of his motor vehicle, and the strip search of his person in the police station were all lawfully conducted incident to that arrest. There has been no violation of the constitutional rights of the accused protected by s. 8 of the Charter of Rights. Accordingly, technically speaking, there is no need to consider the admissibility of the semi-automatic firearm, the over-capacity magazine and the ammunition that were seized by the police from the Acura MDX, or the admissibility of the cocaine seized from the accused during the subsequent strip search at the police station, under s. 24(2) of the Charter of Rights. However, having heard full argument on this issue, I consider it appropriate to express my conclusions on this topic as well.

[80] In summary, in the event that I had concluded that the subjective belief by Det. Cst. Lee, that he possessed the necessary reasonable and probable grounds to arrest the accused, was not objectively reasonable in all of the circumstances, and that the arrest of the accused was, accordingly, unlawful and in violation of s. 8 of the Charter of Rights, I would have concluded that the firearm, the magazine, the ammunition, and the cocaine seized by the police were still admissible under s. 24(2) of the Charter.

[81] This analysis requires the court to assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to the following three factors: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits. The court must consider all of the circumstances of the case in conducting this balancing assessment. See R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 71-75; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 2-3, 22-42; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 98-113; R. v. Beaulieu, 2010 SCC 7, [2010] 1 S.C.R. 248, at paras. 5-8; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 45-48; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at paras. 80-98; R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408, at paras. 45-52; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at paras. 75-81; R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at paras. 37-42; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at paras. 78-89; R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at paras. 59-64; R. v. Tsekouras, at paras. 78, 102-113.

2. The Seriousness of the State Conduct

[82] With respect to the first prong of the test, namely, the seriousness of the state conduct, the court must consider whether the admission of the evidence would send the message to the public that courts condone deviations from the rule of law by failing to dissociate themselves from the fruits of unlawful conduct. Accordingly, the more severe or deliberate the state misconduct is leading to the Charter violation, the greater the need for courts to dissociate themselves from that misconduct by excluding the evidence. The goal is not to punish the police or deter Charter breaches, but to preserve public confidence in the rule of law and its processes. See R. v. Grant, at para. 72-75; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at paras 43-47.

[83] Accordingly, inadvertent or minor violations of the Charter are at one end of the spectrum of conduct, while wilful or reckless disregard of Charter rights is at the other. Extenuating circumstances, such as the need to prevent the disappearance of evidence, may mitigate the seriousness of police misconduct. Good faith will also reduce the need for the court to disassociate itself from the police conduct, but negligence or wilful blindness by the police cannot properly be viewed as good faith. Deliberate, wilful, or flagrant disregard of Charter rights may require exclusion of the evidence. Further, if the Charter-infringing police misconduct was part of a pattern of abuse, such conduct would support the exclusion of the evidence. See R. v. Grant, at paras. 74-75; R. v. Boussoulas, 2010 ONSC 5542, 320 C.R.R. (2d) 64, at paras. 157-158, affirmed, 2018 ONCA 222; R. v. Daniels, 2015 ONSC 283, 326 C.R.R. (2d) 57, at paras. 33-35, affirmed, 2017 ONCA 551, 385 C.R.R. (2d) 188, at para. 16.

[84] Even where the breach of the accused’s Charter rights is not the result of any “wilful disregard” for those rights, if the Charter violation constitutes a significant departure from the standard of conduct expected of police officers, such conduct cannot be condoned by the courts, and this aspect of the inquiry will lean in favour of the exclusion of the evidence. See R. v. Taylor, at para. 39.

[85] In the present case, the arrest of the accused and the police searches of his person and his vehicle were all performed honestly and in good faith. Det. Cst. Lee subjectively believed that he possessed the necessary reasonable and probable grounds to arrest the accused, and to continue his investigation by searching the accused and his vehicle incident to that arrest. I have concluded that he was quite correct in this regard. If, however, contrary to my conclusion, those grounds were not reasonably and objectively founded, then the resulting s. 8 breach of the Charter was based upon an honest and understandable mistake by the police. This good faith, in my view, goes a great distance in minimizing the seriousness of any potential s. 8 Charter breach.

[86] The appellate court jurisprudence supports the conclusion that, in cases where the police have been honestly mistaken about possessing the necessary reasonable grounds to arrest an accused, and the resulting search incident to that unlawful arrest is a breach of s. 8 of the Charter, the good faith of the police officers is an important consideration in the admission of the evidence under s. 24(2) of the Charter. See, for example, R. v. Fearon, 2013 ONCA 106, 114 O.R. (3d) 81, at para. 78, affirmed, 2014 SCC 77, [2014] 3 S.C.R. 621, at paras. 89-98; R. v. Loewen, 2011 SCC 21, [2011] 2 S.C.R. 167, at paras. 11-13; R. v. Chau (2000), 2000 CanLII 17015 (ON CA), 140 O.A.C. 56, 150 C.C.C. (3d) 504 (C.A.), at paras. 17-20; R. v. Malcolm, [2006] O.J. No. 2568 (C.A.), at paras. 2-3; R. v. Shankar, at paras. 18-23. This case is no different. The good faith of the police officers, in this case, in honestly believing that they had the necessary objective reasonable grounds to arrest the accused, significantly undermines the seriousness of any possible s. 8 Charter breach.

[87] In my view, the good faith of the police officers in the circumstances of this case strongly supports the admissibility of the evidence seized by the police.

3. The Impact of the Charter Violations

[88] As to the second prong of the governing test, the impact of the Charter violations, the court must assess the extent to which the breaches undermined the Charter-protected interests of the accused. Needless to say, the more serious the impact on those protected interests, the greater the risk that admitting the evidence may signal to the public that Charter rights are of little value to citizens. The courts are expected to look at the interests engaged by the infringed right and examine the degree to which the Charter violation impacted on those interests. See R. v. Grant, at para. 76-78; R. v. Paterson, at paras. 48-50.

[89] With respect to the police search of the motor vehicle, there is no gainsaying the fact that the accused had a significantly reduced expectation of privacy in his Acura MDX. The appellate courts have consistently held that an individual’s privacy interest in a vehicle and its contents are “markedly decreased” relative to the privacy interest that individuals have in their home, office or bodily integrity. See, for example, R. v. Wise, 1992 CanLII 125 (SCC), [1992] 1 S.C.R. 527, 70 C.C.C. (3d) 193, at pp. 533-534; R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] 3 S.C.R. 341, 118 C.C.C. (3d) 405, at paras. 19-25; R. v. Caslake, at para. 34; R. v. Calderon (2004), 2004 CanLII 7569 (ON CA), 188 C.C.C. (3d) 481, 23 C.R. (6th) 1 (Ont.C.A.), at paras. 54, 98; R. v. Alkins, at paras. 40, 55. Accordingly, to the extent that there was any potential violation of s. 8 of the Charter in the police search of the Acura MDX, any such breach had but a minimal impact upon the Charter-protected interest of privacy the accused had in his motor vehicle. This conclusion, therefore, supports the admissibility of the firearm, the over-capacity magazine and the ammunition.

[90] With respect to the strip search of the accused at the police station, however, the accused had a significantly increased expectation of privacy in his bodily integrity, and the strip search impacted very substantially upon those important privacy interests. Accordingly, to the extent that there was any potential violation of s. 8 of the Charter in the strip search conducted by the police, that breach had a significant impact upon the Charter-protected interest of privacy the accused had in the integrity of his person, and supports the exclusion of the cocaine seized by the police.

4. The Truth-Finding Function of the Trial

[91] As to the third avenue of inquiry, the court must determine whether the truth-seeking function of the trial is better served by admission of the evidence, or by its exclusion. In so doing, the court must consider the impact of the admission of the evidence as well as the impact of failing to admit the evidence. This prong of the inquiry entails a consideration of the reliability of the evidence and its importance to the Crown’s case against the accused. If the Charter violation has undermined the reliability of the evidence, this will support its exclusion. However, if the evidence is reliable notwithstanding the Charter breach, its exclusion undermines the accuracy and fairness of the trial from the perspective of the public and may tend to bring the administration of justice into disrepute. Furthermore, the importance of the evidence to the Crown’s case is also a factor to be considered under this aspect of the inquiry. The exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively terminates the prosecution. See R. v. Grant, at para. 79-84; R. v. Paterson, at paras. 51-52.

[92] In the present case, there is no question that the loaded semi-automatic firearm, the over-capacity magazine and the ammunition found in the accused’s vehicle, and the crack and powder cocaine found in the plastic bag between the accused’s buttocks, are inherently reliable and objective pieces of evidence which are crucial to the determination of the merits of this case. If any of this evidence is excluded, the Crown’s case must fail in relation to the charges that flowed from the discovery of that evidence. However, if this evidence is admitted, the Crown would appear to be able to establish that accused had the loaded, semi-automatic firearm, the over-capacity magazine, the ammunition and the crack and powder cocaine unlawfully in his possession. In my view, society’s interest in the adjudication of criminal trials on their merits would be seriously undermined if this kind of highly reliable and critical evidence were excluded. It is important to recall in this regard that the city of Toronto and the greater Toronto area continue to be troubled by gun violence and drug trafficking – offences which seem all too frequently to be committed in tandem, and often with tragic results. Accordingly, this third aspect of the governing s. 24(2) analysis clearly favours the admission of the physical evidence of the firearm, the magazine, the ammunition and the crack and powder cocaine. See R. v. Grant, at para. 139; R. v. Blake (2010), 2010 ONCA 1, 251 C.C.C. (3d) 4, at para. 31; R. v. Jones, 2011 ONSC 4158, [2011] O.J. No. 3069, at para. 67; R. v. Duhamel, 2012 ONSC 6448, [2012] O.J. No. 5392, at para. 85; R. v. Danvers 2005 CanLII 30044 (ON CA), [2005] O.J. No. 3532, 199 C.C.C. (3d) 490 (C.A.) at para. 77; R. v. Williams, 2014 ONSC 3005, 11 C.R. (7th) 124, at para. 28.

5. Conclusion

[93] There is no overarching rule that governs how these three factors should be balanced in determining the admissibility of evidence. Mathematical precision is clearly not possible, but careful consideration of these factors provides a flexible and helpful decision tree. See R. v. Grant, at para. 86. In considering any potential breach of s. 8 of the Charter in this case, and in balancing each of the three prongs of the s. 24(2) Charter analysis, against the background of all of the factual circumstances of this case, I have reached the alternative conclusion that the evidence of the firearm, over-capacity magazine and ammunition, as well as the crack and powder cocaine, are all admissible under s. 24(2) of the Charter in any event.

IV

Conclusion

[94] In summary, in my view the accused was lawfully arrested for the unlawful possession of marihuana, as there existed the necessary reasonable and probable grounds to justify his arrest for that offence in the circumstances of this case. Further, the police were lawfully entitled to conduct the “pat-down” or “frisk” search of the accused and to search the interior of the accused’s Acura MDX motor vehicle incident to the accused’s lawful arrest. Accordingly, in seizing the semi-automatic firearm, it’s over-capacity magazine and the ammunition for the firearm, the police did not violate the rights of the accused protected by s. 8 of the Charter of Rights. Similarly, as the police were lawfully entitled to conduct the strip search of the accused incident to his lawful arrest, and they conducted that search reasonably, the police did not breach the accused’s rights under s. 8 of the Charter in seizing the plastic bag that contained crack cocaine and powder cocaine from between his buttocks.

[95] Alternatively, even if these searches were undertaken in violation of s. 8 of the Charter of Rights, the evidence obtained by the police during the course of those searches is still admissible pursuant to s. 24(2) of the Charter of Rights.

Kenneth L. Campbell J.

Released: September 11, 2018

COURT FILE NO.: CR-5-48/18

DATE: 20180911

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

STASKY ST. CLAIR

PRE-TRIAL CHARTER RULING

K.L. Campbell J.

Released: September 11, 2018