A. OVERVIEW

[1] The Applicant Jahmal Graham (hereinafter, Graham) is charged in an Indictment with three counts alleging possessions of a prohibited firearm with accessible ammunition, possession of cocaine for the purpose of trafficking, and possession of proceeds of crime. These three possession offences relate to a handgun, ammunition, about three ounces of cocaine, and $14,880 in cash that was all found in a single satchel or shoulder bag, together with two digital scales. The satchel was found by the police in the trunk of a car, after a warrantless search incident to the arrest of the three occupants of the car. The Applicant Graham was the front seat passenger of the car.

[2] Graham brought a pre-trial Motion alleging ten separate violations of ss.8, 9, 10(a) and 10(b) of the Charter of Rights, and seeking exclusion of the seized evidence pursuant to s.24(2) of the Charter. The Charter violations are alleged to have unfolded sequentially, over an approximately 20 minute time period at the roadside in Scarborough, after a motor vehicle stop on January 23, 2016. The lawfulness of the warrantless search of the car’s trunk depends on the lawfulness of the antecedent arrests of the occupants of the car. Those warrantless arrests depend for their lawfulness on the grounds discovered during the vehicle stop and on the lawfulness of the vehicle stop.

[3] In these circumstances, the parties agreed that the onus on the Charter Motion shifted to the Crown, in order to establish the lawfulness of the arrest. The Crown, therefore, agreed to call the two arresting officers on the Motion. See R. v. Brown (1996) 1996 CanLII 1794 (ON CA), 47 C.R. (4th) 134 (Ont. CA). This viva voce evidence was completed in less than a day. The parties sensibly agreed to tender all of the other evidence on the Motion in the form of documentary exhibits, photographic exhibits, and Agreed Statements of Fact. No defence evidence was called on the Motion.

[4] I heard oral argument on the second day of the Motion. At the end of argument, I dismissed the Motion, with reasons to follow. The next day, the jury was selected and the trial commenced. After a short trial at which the accused and his brother both testified, denying that Graham was in possession of the unlawful contents of the satchel (in the sense that he admitted carrying the satchel earlier in the evening but denied knowledge of its contents), the jury convicted Graham on all three counts. After the jury returned their verdicts, I conducted a brief separate judge alone trial and convicted Graham of three further counts (that were severed at the outset of the jury trial) alleging breach of probation and breach of two earlier s.109 firearms prohibition orders. All of the convictions were entered on October 5, 2018. Graham is currently awaiting sentence on all six counts.

[5] These are my Reasons for dismissing the Charter Motion on the second day of the trial.

B. FACTS

[6] The evidence of the two arresting officers over-laps at the early stages of their investigation. Accordingly, I will summarize that part of their evidence together.

[7] P.C. Piraisoody and P.C. Marshall were on general patrol, in uniform and in a marked police car, on the evening of January 23, 2016. At the start of their shift they were briefed on the location of recent offences in their east Scarborough division, in order to focus their general patrol on these areas and to show a police presence. In particular, they were briefed about a recent shooting just west of the intersection at McGowan Rd and Lawrence Ave East. While on general patrol, they came to a stop at this intersection at a red light, immediately behind a white Chevy Cruze. They were westbound on Lawrence Ave. When the light turned green, both officers observed the Chevy Cruze accelerate quickly, aggressively “tail-gating” the car ahead of it, and then abruptly changing lanes to the right without signaling. A Nissan Pathfinder was in the lane to the right and it had to brake hard in order to avoid a collision with the Chevy Cruze, as the Chevy Cruze was changing lanes.

[8] At this point, the two officers decided to initiate a Highway Traffic Act stop, in order to investigate the driver of the Chevy Cruze for an unsafe lane change and for failing to signal. P.C. Marshall was driving and he activated the police car’s emergency lights. The Chevy Cruze pulled over to the curb and came to a stop. Its rear and side windows were heavily tinted (as confirmed by the later police photographs). As a result, the two officers had no idea how many occupants were in the car, their gender, or their ethnicity. It is the normal practice of the officers to “run” the license plate of a stopped car through the police computer, before approaching the car, although the officers had no specific recall or note of having followed this practice in this particular case. The location of the vehicle stop was less than 500 metres from the intersection where the officers first observed the Chevy Cruze. The officers did not have a contemporaneous note of the time of the vehicle stop but P.C. Piraisoody estimated it was about 10:08 pm. Police records indicated that the officers “ran” a license check on the car at 9:58 pm. This issue, concerning the exact timing of the events in the chronology, will be reviewed in more detail below.

[9] P.C. Marshall approached the driver’s side of the car and P.C. Piraisoody approached the passenger’s side. At this point, the accounts of the two officers necessarily diverged. P.C. Marshall advised the driver that he was stopped for an unsafe lane change and asked for his license, insurance, and ownership documents. The driver, Trevor Pearson, explained that the car belonged to a friend’s mother and he was in a hurry to return it. He did not have his driver’s license or the insurance with him, but he identified himself verbally. According to P.C. Marshall, there was a strong smell of alcohol emanating from the car and the driver was nervous, with his chest heaving and his hands shaking as he produced the ownership. P.C. Marshall asked the driver if he had been drinking. The driver replied “no” and explained that the smell of alcohol in the car was from his two friends. P.C. Marshall could see that there were two passengers in the car. P.C. Marshall testified that, in his view, the driver of the car was “detained” and was not free to leave, as P.C. Marshall intended to go back to the police car and prepare a ticket for the unsafe lane change. The passengers, on the other hand, were free to leave at this stage, according to P.C. Marshall.

[10] P.C. Piraisoody’s account of developments at the point when he approached the passenger side of the car was that he saw a silhouette of a front seat passenger through the tinted window. He stood by the door and knocked on the window, it was rolled down, and he asked the front seat passenger if there was anyone else in the car. The Applicant Graham was the front seat passenger and he was not under investigation, according to P.C. Piraisoody. Graham advised the officer, in answer to his question, that there is “one more in the back seat”. P.C. Piraisoody then knocked on the back window, it was rolled down, and he observed the rear seat passenger not wearing a seat belt. This is a Highway Traffic Act offence. The rear seat passenger was Ricardo Fraser. P.C. Piraisoody asked him for his identification, as he was now under investigation for the seat belt offence. The passenger did not have identification but gave his name and date of birth verbally. It was a cold and windy night, about -15° Celsius, and P.C. Piraisoody had to lean in close to the window in order to get Fraser’s name and date of birth. P.C. Piraisoody was using his flashlight. He smelled alcohol on Fraser’s breath and observed two open bottles of Ciroc vodka on the floor behind the driver’s seat. This is an offence under the Liquor License Act.

[11] P.C. Piraisoody was of the view that only the driver (Pearson) was “detained”, at the time of the initial Highway Traffic Act stop. However, the rear seat passenger (Fraser) was soon under investigation for the seat belt infraction and all three occupants were under investigation for the Liquor License Act infractions, once P.C. Piraisoody saw the two open liquor bottles. He was investigating two separate offences under the Liquor License Act: in relation to the driver, for having readily accessible open alcohol in the car; and in relation to all three occupants, for having open alcohol in a car (that is, at a location outside of a residence or licensed premises). The rear seat passenger, Fraser, told P.C. Piraisoody that he was enjoying a Saturday night and he had consumed a few drinks. His speech was slurred, according to P.C. Piraisoody.

[12] At this point, P.C. Piraisoody returned to the front seat passenger window and asked Graham for his identification. Graham did not provide any documents but he gave his name and date of birth verbally. P.C. Piraisoody testified that he asked Graham for his identification, at this point, because he was now under investigation for the Liquor License Act offence. Graham advised that he was on his way to see his girlfriend and acknowledged that he had consumed a few drinks. He asked P.C. Piraisoody how long the investigation would take and he said that he was texting his girlfriend. P.C. Piraisoody could see that Graham had his cell phone in his hand and that he was texting someone. P.C. Piraisoody told Graham that they were still investigating and told him to stop texting. He did not give Graham a definite time, concerning the length of the investigation, but he told Graham that he was not free to leave until the investigation was finished. Graham seemed concerned and asked a number of times as to how long the investigation would take. In P.C. Piraisoody’s view, Graham was “detained” at this point and was not free to leave, as a result of the Liquor License Act investigation. Graham was told by P.C. Piraisoody that the police were now investigating the bottles of alcohol in the car. Although P.C. Piraisoody could not recall the exact words that he used, he did tell Graham that “there is open alcohol in the car” and they were being “investigated”. P.C. Piraisoody testified that he told Graham to “stop texting” due to officer safety concerns. The car was stopped near a barber shop on Lawrence Ave East, which is where the recent shooting had occurred. A person had died in the shooting. There was a lot of criminal activity in the area. P.C. Piraisoody was concerned, in the circumstances, that Graham could have been texting someone to come to their location. In addition, there were three occupants of the car and only two officers so P.C. Piraisoody felt that they could not yet remove the occupants from the car and search the car. Finally, the officers were still taking down information as to the identity of the three occupants and had not yet run CPIC checks, to determine “who they were dealing with”. In all these circumstances, P.C. Piraisoody did not immediately advise Graham of his right to counsel, even though he was detained for the Liquor License Act investigation. He was concerned about the timing of giving this advice, when the officers did not yet have “back-up”.

[13] P.C. Marshall recalled a discussion at some point during the traffic stop that involved both officers and the driver of the car and the front seat passenger. These two occupants asked if Pearson could drive Graham to a nearby coffee shop in order to get a cup of tea for Graham. P.C. Marshall said “no”, as the driver was detained. This conversation was never put to P.C. Piraisoody and so its exact timing was never clarified, in terms of any “detention” of Graham. However, P.C. Piraisoody made it clear in cross-examination that Graham never asked to leave at the time of the officer’s brief initial contact with him, when the car was first stopped. It was only after P.C. Piraisoody went to the rear passenger window, saw the open liquor bottles, and then returned to the front passenger window to ask Graham for his identification, that Graham began texting someone and began asking to leave. By this point, Graham was not free to leave, according to P.C. Piraisoody.

[14] P.C. Marshall had left his memo book in the police car and so he asked P.C. Piraisoody to come to the driver’s side of the car and make a note of the driver’s verbal identification. The two officers walked to the rear of the Chevy Cruze in order to switch sides. As they passed each other, P.C. Piraisoody advised P.C. Marshall that there was open alcohol in the car. P.C. Marshall testified that he was now of the view that all three occupants were under Liquor License Act investigation and that there would be a search of the car under the authority of that Act.

[15] P.C. Marshall had his flashlight out and as he came to the passenger side of the Chevy Cruze he saw a strip of torn blue plastic, with something inside, on the ground near the rear passenger window. P.C. Marshall believed that it contained drugs as he had seen drugs packaged in this way on many prior occasions. After P.C. Piraisoody had made a note of Pearson’s name and his date of birth, at the driver’s side of the car, he returned to the passenger side of the car. P.C. Marshall pointed out a ripped up piece of blue plastic at the curb. It was very close to the rear passenger window. P.C. Piraisoody had not noticed it when he was first at the passenger side. He picked it up, looked at it, and smelled it. It was still warm, although it was a cold night. P.C. Piraisoody had previously seen marijuana packaged in this way and he believed that it was a small one gram package of marijuana. He also believed that it would have been weathered and would have blown away if it had been on the ground for long. P.C. Marshall agreed with this latter point as it was a windy night. Both officers were now of the view that the three occupants of the car were the subject of a Controlled Drugs and Substances Act investigation. P.C. Piraisoody advised the occupants of the car that he had picked up the baggie and he asked them if it had come from the car and asked who it belonged to. They all denied throwing the baggie out of the car. P.C. Piraisoody agreed that he should not have questioned the occupants of the car about the offence under investigation when they were detained and had not yet been advised of their right to counsel.

[16] At this point, the two officers returned to their police car. P.C. Marshall took the keys from the driver before the officers left the Chevy Cruze. The officers’ plan was to arrest all three occupants of the car for possession of the discarded marijuana. They did not know which one of the occupants had thrown the marijuana out of the car and could not link it to any specific occupant. P.C. Piraisoody testified that he believed it came from the rear passenger (Fraser), as it was closest to him, and P.C. Marshall testified that he simply believed it came from the car. P.C. Piraisoody testified that the investigation began under the Highway Traffic Act, it became a Liquor License Act investigation, and it then evolved into a Controlled Drugs and Substances Act investigation. Both officers explained that they did not immediately arrest the three occupants of the car because of officer safety concerns. There had been a recent shooting nearby, it was a high crime area, there were three persons in the car to be arrested and handcuffed but only two officers, and so one person could escape. In these circumstances, the officers decided to return to their police car and call for “back up”. They did not advise the three occupants of the car of their rights to counsel, although they were detained and were to be arrested, because it was not yet safe.

[17] Upon returning to their police car, P.C. Piraisoody “ran” the three names of the occupants of the Chevy Cruze through the police computer system. He was attempting to confirm the identities of the three occupants, as the officers had only been given verbal identifications. He was also checking for any warrants or court orders. P.C. Piraisoody found police photographs of Graham and Pearson and confirmed their identities. He also found that Graham had convictions for attempt murder, possession of firearms, and possession of cocaine for the purpose of trafficking. There was a caution in the computer system to the effect that Graham was “armed and dangerous”. P.C. Piraisoody found that Pearson had convictions for robbery and possession of stolen goods and there was a caution that he was “violent”. There was no information about Fraser in the police computer system. The above information about Graham and Pearson heightened P.C. Piraisoody’s officer safety concerns. P.C. Marshall made a call for “back up” over the police radio system.

[18] While the two officers were in the police car, running computer checks and waiting for “back up”, P.C. Marshall kept the Chevy Cruze under observation. He saw it rocking from side to side for a short period of time. He inferred that there must have been a lot of movement inside the car, in order to cause this sideways rocking, although he could not see any such movement due to the heavy tinting of the Chevy Cruze’s rear window. He believed the occupants were hiding something in the car. P.C. Piraisoody was focused on the searches that he was conducting on the police computer. P.C. Marshall advised P.C. Piraisoody of his observations, stating that the Chevy Cruze was shaking or moving. This further added to P.C. Piraisoody’s officer safety concerns as he thought the occupants of the car might be getting “armed up”.

[19] At 10:13 pm, according to the officers’ notes, the “back-up” officers arrived (P.C. Carter and P.C. Parker). P.C. Marshall and P.C. Piraisoody advised the “back-up” officers that the three occupants of the car were to be arrested for possession of marijuana and that the car was to be searched for more drugs and for open alcohol. According to the way they sometimes framed their testimony, P.C. Marshall and P.C. Piraisoody may have believed that the occupants of the car were already under arrest in some sense, although this apparent belief was never explained or explored by the parties.

[20] The two officers described their grounds for arrest slightly differently, tending to emphasize the matters within their own personal knowledge. Both officers believed that the marijuana found at the curb came from inside the car, for the reasons set out above, and this was their main ground for arrest. In addition, P.C. Marshall relied on his observations that the driver (Pearson) was breathing heavily and shaking when first approached. P.C. Marshall also relied on his observations of a very noticeable movement of the car which inferred that the occupants were trying to hide something. Finally, P.C. Marshall relied on the fact that the occupants seemed anxious to leave. P.C. Piraisoody believed that there were more drugs inside the car, aside from the small package of marijuana found at the curb. He based this belief on the way the marijuana was packaged, in a small one gram package that sells for about $10, his prior experience that drug dealers usually carry multiple small packages like this for sale, and the CPIC computer information he received, in particular, Graham’s prior conviction for possession of cocaine for the purpose of trafficking. P.C. Piraisoody added that the information he received from P.C. Marshall, about the movement of the car, caused him to be concerned that the occupants were hiding something. P.C. Marshall testified that he did not rely on the criminal backgrounds of two of the occupants.

[21] Aside from the above grounds to arrest the occupants of the car for possession of marijuana, both officers believed that they had authority under the Liquor License Act to search the car for open alcohol. P.C. Piraisoody believed that he would find the two open vodka bottles that he had observed and he believed that he would find more alcohol. Both P.C. Marshall and P.C. Piraisoody made it clear that they would have searched the car for open alcohol, even if they had not observed the small package of marijuana at the curb.

[22] P.C. Carter, one of the “back-up” officers, did not testify but there was an admission that he arrested the back seat passenger (Fraser), that he did a pat search, and that he found a small baggie of marijuana on Fraser’s person. It was similar to the baggie found at the roadside. No other marijuana was found. P.C. Carter advised the other two officers that he had found this similar baggie of marijuana on Fraser’s person.

[23] P.C. Piraisoody proceeded to arrest Graham (the front seat passenger) and P.C. Marshall proceeded to arrest Pearson (the driver). The three occupants of the car were in the same positions as when the car had been stopped. Nothing appeared to have changed. There was an admission that all three occupants were arrested for possession of marijuana, advised of the reason for their arrests, and advised of their rights to counsel. They had not previously been advised of any arrest or of their rights to counsel. P.C. Marshall handcuffed and did a pat search of Pearson and found no drugs or weapons. P.C. Piraisoody handcuffed Graham and did a pat search. He found no weapons and no marijuana or alcohol on Graham’s person. Graham was cooperative and no force was used. Graham stated that he wanted to call his lawyer.

[24] Once the three occupants had been arrested and removed from the car, P.C. Marshall proceeded to search the car without a warrant. The officers believed that they had common law authority to search the car for evidence and for any weapons, incident to the arrests. They also believed that they had statutory authority to search for open alcohol under the Liquor License Act and for more marijuana (apparently under the Criminal Code or the Controlled Drugs and Substances Act). P.C. Marshall searched the front seat area and found nothing of significance aside from a torn off piece of plastic in the glove box that was similar to the kind used to package drugs. In the back seat area, he found the two open bottles of Ciroc vodka that P.C. Piraisoody had observed. Most significantly, he noticed that the rear passenger side seat folded down and that it was not fully locked into place. He was able to pull the seat down without having to engage or pull the lever mechanism that is usually located near the head rest and that secures the seat in place. In light of the rocking movement that he had previously observed in the car, he believed that the occupants of the car had placed something behind this folding seat.

[25] After pulling down the folding rear seat and looking into the trunk from the rear seat area, P.C. Marshall saw a satchel or shoulder bag. He seized it and unzipped it and saw the handle of a gun, a box of ammunition, and money. He placed the satchel back where he found it, called the SOCO officers, and did not touch it any further. The SOCO officers arrived and photographed the crime scene. A number of photographs were made exhibits on the Charter Motion, including photographs of the satchel located immediately behind the folding rear seat. The satchel was at the rear of the trunk, behind a spare tire. P.C. Marshall testified that it would be difficult to reach this location if you were standing at the open trunk at the back bumper of the car. The arresting officers never opened the trunk. The satchel was seized from the rear seat. After the satchel was photographed in the trunk, it was searched thoroughly and it was found to contain three individual bags of cocaine and two digital scales, in addition to the gun, ammunition, and cash.

[26] In cross-examination, both P.C. Piraisoody and P.C. Marshall agreed that their understanding of the Liquor License Act was that it permitted open alcohol to be stored or carried in the trunk of a car in a closed bag, where it would not be readily accessible. P.C. Marshall explained that his observations of the rocking movement of the car, and of the folding rear seat that was not fully closed, led him to believe that the occupants of the car had moved drugs or open alcohol from the passenger compartment of the car to the trunk of the car. When he opened the folding back seat and found the satchel located at the back of the trunk, near the open back seat, he believed that drugs or open alcohol had been transferred to the satchel. It was these three circumstances – the rocking motion of the car, the unhinged or unlocked state of the folding back seat, and the location of the satchel at the back of the trunk – that led P.C. Marshall to seize and search the satchel.

[27] Upon discovery of the gun and ammunition in the satchel, the three occupants of the car were re-arrested for further offences and were again advised of their right to counsel.

[28] One final area of evidence on the Charter Motion concerned the exact times when various events in the above chronology took place. Neither officer was making contemporaneous notes as the events unfolded. They both wrote up their notes after the arrests, after the search of the car, and after they had returned to the station. P.C. Piraisoody estimated that the officers first saw the Chevy Cruze at 10:04 pm at the intersection of Lawrence and McGowan, that the motor vehicle stop was at 10:08 pm, that “back-up” officers arrived at 10:13 pm, that he arrested Graham at 10:15 pm, and that the satchel with the gun was found at 10:21 pm. He entered these times in his memo book without checking their accuracy against police records such as the radio calls, the ICAD computer reports, or the CPIC searches. P.C. Piraisoody testified that he conferred with P.C. Marshall about these estimated times before he independently wrote up his notes.

[29] P.C Marshall testified that, like P.C. Piraisoody, he recorded the time of the motor vehicle stop as 10:08 pm in his notes. However, unlike P.C. Piraisoody, he did check the police ICAD computer records once he was back at the station and he saw that the officers had notified the dispatcher that they were on a motor vehicle stop at 10:12 pm. This would have been after they returned to their police car and after he had called for “back-up”. Accordingly, he estimated that his call for “back-up” was at 10:10 pm and he entered this time in his notes. He had no time entered in his notes as to when the officers first saw the Chevy Cruze at the stop light at the intersection of Lawrence and McGowan.

[30] In cross-examination, the CPIC records were put to both officers. Neither officer had checked these records when writing up their notes. The CPIC records showed that the officers “ran” a license plate check for the Chevy Cruze at 9:58 pm. This was six minutes prior to P.C. Piraisoody’s estimate that he first saw the Chevy Cruze at 10:04 pm at the intersection of Lawrence and McGowan. It was ten minutes prior to the officers’ estimate that the motor vehicle stop was at 10:08 pm. P.C. Piraisoody had no explanation for this discrepancy except that the times noted in his memo book were only estimates, that his estimates were based on looking at his watch at the time, and that his watch was not synchronized with CPIC. The next entry on the CPIC records indicates a 10:12 pm criminal record check relating to Graham. P.C. Marshall similarly had no real explanation for the 9:58 pm time in the CPIC records for the license plate check. He testified that it was P.C. Piraisoody who “ran” the license check, while P.C. Marshall drove the police car. The note in P.C. Marshall’s memo book was that they stopped the Chevy Cruze at 10:08 pm. He agreed that it was “possible” the officers “ran” the license plate at an earlier point but he had no recollection of this actually occurring.

[31] The final source of evidence in relation to this timing issue is the police radio records. They were never put to either officer, in chief or in cross-examination, and these records were never checked by the officers at the time. They were tendered by the parties at the end of the Charter Motion, as part of an Agreed Statement of Fact. It was agreed that the times in these police radio records are accurate. They indicate that P.C. Marshall made a call for “back-up” at 10:03 pm, asking if there was another police unit in the area. He repeated this request at 10:04 pm, stating over the radio that they would be “taking three males out of a car and searching”. At 10:11 pm P.C. Marshall called the dispatcher, advising that they should be “marked on a vehicle stop” and giving the Chevy Cruze’s license plate number. This 10:11 pm call to the dispatcher is consistent with the 10:12 pm ICAD record, showing that the officers were entered in the police computer system as being on a motor vehicle stop at that point. Finally, at 10:15 pm P.C. Carter responded to the radio call for “back-up” by advising that he was “on route”.

C. ANALYSIS

[32] Defence counsel, Mr. Dimitrijevic, alleged ten distinct Charter violations that proceed chronologically, as the events summarized above unfolded. I will analyse each one of the ten alleged Charter breaches in their chronological order.

(i) The initial motor vehicle stop and s.9 of the Charter

[33] The first Charter breach was not identified or described in the Applicant’s written materials. It emerged at the hearing and relied heavily on the evidence concerning the timing of the various investigative events. In this regard, the Applicant submits that the two officers lied about when they began investigating the Chevy Cruze. There is a ten minute discrepancy between the officers’ estimate, that they stopped the Chevy Cruze at 10:08 pm pursuant to Highway Traffic Act powers, and the CPIC records which show that the officers conducted a license plate check for the car at 9:58 pm. The officers testified that their normal practice was to conduct these license plate checks at the time of a motor vehicle stop. Counsel submitted that a finding that the officers had lied about when they commenced their investigation of the motor vehicle was subversive of their explanation of the lawfulness of the motor vehicle stop. Absent a lawful basis, the vehicle stop would violate s.9 of the Charter. Counsel relied on R. v. Pino (2016) 2016 ONCA 389, 337 C.C.C. (3d) 402 at paras. 91-8 (Ont. C.A.), concerning the impact of a finding that police officers lied when providing their account of an arrest or detention.

[34] I cannot accept the submission that this is a case of police perjury. In my view, the two arresting officers were credible witnesses. In terms of their demeanour, they both appeared to be bright young officers who generally understood the legal limits of their powers. They answered questions thoughtfully and respectfully and they were never stubborn, defensive or argumentative. Their two accounts were generally consistent in those areas where their observations over-lapped. No internal inconsistencies in their own accounts were put to them, with one minor exception that P.C. Marshall explained satisfactorily. Their accounts made sense, in the context of the known facts, and there was nothing irrational or improbable about their accounts. Finally, there was no contradictory evidence as to the substance of what happened at the roadside on the evening in question.

[35] The only flaw in their evidence was that their memo book notes were unreliable as to the exact timing of the investigative events. This is because the times in their notes were reconstructed afterwards, as estimates, without checking these ex post estimates against reliable contemporaneous police records, such as the radio calls and the CPIC computer checks. This one failing, in the reliability of one narrow aspect of their notes, has been explained and it hardly justifies a finding of perjury. Furthermore, nothing turns on the exact timing of the investigate events. I am satisfied, based on the CPIC records, that the motor vehicle stop likely occurred at about 9:58 pm (when the officers “ran” a license plate check for the car). After their initial roadside investigation, the officers returned to their police car and called for “back-up” at 10:03 pm and 10:04 pm (based on the radio call records). The “back-up” officers arrived at about 10:15 pm (again, based on the radio calls) and the arrests and search of the car ensued. The officers’ estimates in their memo books as to the timing of these events are unreliable but there is a simple explanation for that unreliability, as set out above. More importantly, the accurate times for the various investigative events (derived from contemporaneous police records) do not undermine the officers’ accounts as to the substance of what they did in the course of their roadside investigation. In other words, the accurate times fit and make sense, in the context of the investigative steps described by the officers and the amount of time that would be required to complete those steps.

[36] For all the above reasons, I am satisfied that an honest and reliable account of the investigative reasons for the motor vehicle stop emerged on the Charter Motion, through a combination of the arresting officers’ testimony and the contemporaneous police records. The police do not require reasonable and probable grounds to stop and detain a motor vehicle. Random stops have been held to be constitutional, in this motor vehicle context, provided they are made for Highway Traffic Act purposes. In this case, the officers had abundant Highway Traffic Act reasons to stop the Chevy Cruze, given the driving offences observed by both officers. Furthermore, there was no discriminatory purpose for the stop. Accordingly, there was no s.9 violation when the Chevy Cruze was pulled over by the police and the driver was detained. See: R. v. Hufsky (1988), 1988 CanLII 72 (SCC), 40 C.C.C. (3d) 398 at 406-7 and 409 (S.C.C.); R. v. Ladouceur (1990), 1990 CanLII 108 (SCC), 56 C.C.C. (3d) 22 at 37 and 44 (S.C.C.); R. v. Mellinthin (1992), 1992 CanLII 50 (SCC), 76 C.C.C. (3d) 481 at 487 and 490 (S.C.C.); Brown et al v. Durham Regional Police Force (1998), 1998 CanLII 7198 (ON CA), 131 C.C.C. (3d) 1 at 13 and 21-2 (Ont. C.A.); R. v. Brown (2003), 2003 CanLII 52142 (ON CA), 173 C.C.C. (3d) 23 at 29 (Ont. C.A.); R. v. Humphrey (2011), 2011 ONSC 3024, 237 C.R.R. (2d) 109 at paras 77-89 (Ont. S.C.J.).

(ii) The roadside detention of the passenger Graham and s.9 of the Charter

[37] Once the Chevy Cruze had been pulled over by the police for a Highway Traffic Act investigation, there is no doubt that the driver of the motor vehicle (Pearson) was “detained.” See: R. v. Elias; R. v. Orbanski (2005), 2005 SCC 37, 196 C.C.C. (3d) 481 at 496 (S.C.C.). The officers both understood this basic legal proposition.

[38] The second alleged Charter violation concerns whether the front seat passenger (Graham) was also “detained” and, if so, whether that detention violated s.9 and s.10 of the Charter. The Applicant Graham submits that he was “detained” at the time of the initial Highway Traffic Act investigation, when P.C. Piraisoody came to the front passenger window with his flashlight and had a brief exchange with Graham. The Applicant also relied on the conversation, described by P.C. Marshall, in which the driver and front seat passenger both asked if they could drive to a nearby coffee shop for a cup of tea, while the officers completed their investigation. P.C. Marshall would not let the driver Pearson, who was detained, take his passenger Graham for a cup of tea. In all these circumstances, the Applicant submits there was a “psychological detention” of the front seat passenger and it was unlawful.

[39] The law relating to whether a passenger in a motor vehicle is “detained,” during a Highway Traffic Act investigation of the driver, “demands a fact specific inquiry.” See: R. v. Harris (2007), 2007 ONCA 574, 225 C.C.C. (3d) 193 at paras. 7-8 and 17-22 (Ont. C.A.). In some cases, passengers have been found to be “detained” and in other cases they have been found not to be “detained.” It all depends on whether the particular facts of the case meet the Suberu and Grant test for “detention”, namely, “whether or not the interaction [with the police] involved a significant deprivation of liberty.” See: R. v. Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1 at paras. 6-7 and 37-52 (S.C.C.); R. v. Suberu (2009), 2009 SCC 33, 245 C.C.C. (3d) 112 at paras. 23-35 (S.C.C.); R. v. Humphrey, supra at paras 115-128.

[40] In my view, the Applicant Graham was not “detained” at the time of the initial motor vehicle stop. Both officers testified that the passengers were free to leave, at this early stage of the investigation. More importantly, the brief interaction between Graham and P.C. Piraisoody at the front passenger window involved nothing more than an assessment of the number of passengers in the car. Once Graham advised P.C. Piraisoody that there was a second passenger in the back seat, P.C. Piraisoody immediately moved to the rear passenger window and began to interact with Fraser. There was nothing in the brief exchange between Graham and P.C. Piraisoody that could possibly rise to the level of a “significant deprivation of liberty” and a “psychological detention.” Counsel’s further reliance on the later conversation between P.C. Marshall and the two occupants of the front seat, about leaving to get a cup of tea, is factually misconceived for two reasons. First, P.C. Marshall was telling the driver (Pearson) that he could not leave in order to drive Graham to a nearby coffee shop for a cup of tea. Second, the exact timing of this conversation is somewhat uncertain because it was never put to P.C. Piraisoody. However, P.C. Piraisoody was clear in his testimony that Graham only asked to leave at the next Liquor License Act stage of the investigation, by which time Graham was “detained”. P.C. Piraisoody testified that Graham never asked to leave at the time of the initial Highway Traffic Act stop.

[41] In all these circumstances, I am satisfied that the Applicant Graham was not “detained” at the initial stage of the investigation. Accordingly, neither s.9 nor s.10 of the Charter were even engaged in relation to Graham, let alone violated.

(iii) The detention of Graham for “open alcohol” and s.9 of the Charter

[42] The third alleged Charter violation arose at the next stage of the investigation, once P.C. Piraisoody had observed two open bottles of vodka in the back seat area of the Chevy Cruze. At this point, both officers testified that all three occupants of the car were under investigation for Liquor License Act infractions and they were not free to leave. In other words, there was an admitted “detention” of the Applicant Graham at this point in the chronology. As a result, s.9 and s.10 of the Charter were now engaged.

[43] The Applicant submits that there was no lawful basis to detain him for a Liquor License Act investigation because the “open alcohol” was closest to the rear seat passenger (Fraser) and P.C. Piraisoody had detected an odour of alcohol on Fraser’s breath alone.

[44] There were two separate offences under the Liquor License Act that the officers were investigating. The driver (Pearson) was being investigated under s.32 of the Act, for having “care or control of a motor vehicle” with liquor that was open and “readily available” behind the driver’s seat. The two passengers (Graham and Fraser) were being investigated under s.31 of the Act for consuming liquor in a place other than a residence, licensed premises, or “a private place as defined in the regulations”. Regulation 718 defines a “private place” in a way that excludes a motor vehicle being operated on “a highway… within the meaning of the Highway Traffic Act”.

[45] In Brown et al. v. Durham Regional Police, supra at pp. 21-2, Doherty J.A. applied the well established common law standard of “reasonable suspicion that [a driver] is violating some law”, in determining whether an investigative detention pursuant to a provincial regulatory statute was lawful. More recently, in R. v. Darteh, 2016 ONCA 141, the Court (Doherty, Cronk, and La Forme JJ.A.) elaborated on how the common law test for investigative detention applies in the context of a provincial regulatory investigation, such as the present case (at paras. 2, 4, and 7):

At trial, the appellant alleged numerous infringements of his Charter rights. He brought an application to exclude from evidence the handgun and for a stay of proceedings. The trial judge dismissed the application. Among other things, he found that the appellant had been lawfully detained for a brief investigation for offences under the Trespass to Property Act, R.S.O. 1990, c. T-21, and the Liquor License Act, R.S.O. 1990, c. L-19. The appellant was convicted of various firearms and weapons offences and of assaulting the police.

The police may detain a person for investigative purposes if they have reasonable grounds to suspect that the person is connected to particular criminal activity and that such a detention is reasonably necessary in the circumstances: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 45. The standard “reasonable grounds to suspect” requires that the police have a “reasonable suspicion” or a suspicion that is grounded in objectively discernible facts, which could then be subjected to independent judicial scrutiny: R. v. Williams, 2013 ONCA 772, 313 O.A.C. 195, at paras. 22-23.

The actions noted above [in the Court’s summary of the grounds for detention in that case] may have been lawful and each of the facts, if considered in isolation, may have been insufficient. However, when the totality of facts is viewed together, they are capable of grounding a reasonable suspicion that the appellant may be engaged in trespass or liquor-related offences. Reasonable suspicion may be grounded in a constellation of factors, even if any one of those factors on its own would not have been sufficient: R. v. Nesbeth, 2008 ONCA 579 , 238 C.C.C. (3d) 567, at paras. 1-2 and 17-18.

Also see the trial judgement in that case, R. v. Darteh, 2014 ONSC 895 at paras 160-164 and 178-180.

[46] In my view, the officers’ grounds to detain and investigate all three occupants of the car for Liquor License Act infractions, easily rose to the standard of “reasonable suspicion”. There were two large bottles of open vodka on the floor of the rear seat, both bottles had been partially consumed, there was a strong odour of alcohol coming from the car, it was a Saturday night, both passengers acknowledged having been out drinking, the driver was nervous and attributed the strong smell of alcohol in the car to his two passengers, and Graham appeared to be anxious to leave. In particular, the fact that two separate vodka bottles had been opened and partially consumed, and the strong odour of alcohol coming from the car, reasonably inferred that more than one person had been drinking in the car. It was unlikely that the rear seat passenger (Fraser) had been drinking on his own from two separate bottles of vodka.

[47] For all the above reasons, the detention of the Applicant Graham for a Liquor License Act investigation was lawful and there was no s.9 Charter violation.

(iv) Whether s.10(a) and s.10(b) of the Charter were violated during the Liquor License Act investigation

[48] Once the Applicant Graham was detained for a Liquor License Act investigation, the next alleged Charter violation concerns compliance with ss.10(a) and 10(b) of the Charter. The Applicant submits that he was not advised of the reason for his detention or advised of his right to counsel at this stage of the investigation. The officers agree that Graham was not advised of his right to counsel until some time later, when the “back-up” officers arrived and the three occupants of the car were all arrested. However, P.C. Piraisoody insisted that he complied with s.10(a) by advising Graham that “there is open alcohol in the car” and that they were being “investigated”, as summarized above.

[49] In terms of the s.10(a) issue, I have already set out my reasons for finding the officers’ testimony to be credible. There is nothing to contradict P.C. Piraisoody’s account that he advised Graham, in substance, as to the reason for the investigative detention. Although P.C. Piraisoody could not recall the exact words that he used, and it appears that he did not use formal or legalistic language, the law relating to s.10(a) requires the police to advise a detainee as to the substance of the reason for their detention. McLachlin J., as she then was, explained this point in R. v. Evans (1991), 1991 CanLII 98 (SCC), 63 C.C.C. (3d) 289 at 302-3 (S.C.C.), speaking for the majority of the Court:

When considering whether there has been a breach of s.10(a) of the Charter, it is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern. The question is whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline to submit to arrest, or alternatively, to undermine his right to counsel under s.10(b).

[50] I am satisfied that the above summary of what P.C. Piraisoody told Graham, concerning the reasons for the investigative detention, complied with the Evans approach to s.10(a) of the Charter.

[51] The s.10(b) issue is more complex. The police undoubtedly delayed advising the detainees of their s.10(b) rights until the time of their arrests. On behalf of the Crown, Mr. Fraser notes that there was an ongoing Highway Traffic Act investigation of both the driver (Pearson) and the rear seat passenger (Fraser). It is only Graham who was not the subject of any Highway Traffic Act investigation. The law is clear that s.10(b) rights are suspended or limited at the time of these roadside investigations, pursuant to s.1 of the Charter, because the exercise of s.10(b) rights is not compatible with the operational requirements of statutory and common law police powers to stop and investigate motor vehicles. Accordingly, the police did not have to advise Pearson and Fraser of their s.10(b) rights at this Highway Traffic Act stage of the investigation. See: R. v. Orbanski, supra at para 41; R. v. Harris, supra at paras 45-49; R. v. Suberu, supra at paras 43-5; R. v. Humphrey, supra at para. 108-114.

[52] It would be odd, in the particular circumstances of this case, if the law required the police to comply with s.10(b) in relation to one of the three roadside detainees (Graham) but not in relation to the other two detainees (Pearson and Fraser). It may well be that the same s.1 Charter analysis applies to a roadside Liquor License Act investigation of “open alcohol” in a car, as applies to a roadside Highway Traffic Act or Criminal Code investigation of drinking and driving, licensing infractions, or motor vehicle safety and driving infractions. These various types of roadside investigations are all arguably much the same, in terms of appropriate s.1 limits on s.10(b) rights.

[53] I need not decide this issue in this particular case because officer safety concerns quickly arose and became the predominant concern. The officers intended to search the car for open alcohol pursuant to the Liquor License Act, an issue that will be discussed below. This would require removing the three occupants from the car and detaining them at the roadside, while the car was searched. There had been a recent fatal shooting in the area, there was a lot of criminal activity in the area, the officers had no identification documentation relating to the three occupants, they had not yet “run” a CPIC check to confirm the occupants’ identities and determine “who they were dealing with,” Graham had been texting someone and was anxious to leave, and the officers needed additional police assistance in order to remove and detain three occupants while searching the car. In all these circumstances, I am satisfied that the officers had legitimate officer safety concerns at the time of the Liquor License Act investigative detention.

[54] The leading authority concerning the requirement that a detainee be advised of ss.10(a) and 10(b) rights “without delay”, that is, “immediately” upon detention, is R. v. Suberu, supra at para 42, where the Court stated:

To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(b) creates an ill-defined and unworkable test of the application of the s. 10(b) right. The right to counsel requires a stable and predictable definition. What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police. In our view, the words "without delay" mean "immediately'' for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, 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. [Emphasis added].

[55] I am satisfied that the delay in this case in advising Graham of his s.10(b) rights, until the “backup” officers had arrived (which I estimate to be about 13 minutes, from approximately 10:02 pm to 10:15 pm), was due to “concerns for officer or public safety,” and was therefore justified, according to the principles set out in Suberu. Accordingly, there was no s.10(b) violation at this stage of the investigation.

(v) Whether s.8 of the Charter was violated when Graham was asked for his name and date of birth

[56] The fifth alleged Charter violation concerns the fact that P.C. Piraisoody asked Graham for his name and date of birth, once Graham was detained and under investigation for a Liquor License Act infraction. It was submitted that this questioning of a detainee, in order to obtain information about identity that would then facilitate police data base searches, violated s. 8 of the Charter. The Applicant relies on the principles set out in R. v. Harris, supra in support of this submission. However, the Applicant devoted little time to this particular Charter argument because Mr. Dimitrijevic conceded that it was unlikely, if successful, to lead to the exclusion of any evidence.

[57] In my view, R. v. Harris, supra is distinguishable from the present case. In Harris, the accused was one of two passengers in a motor vehicle that was stopped for a Highway Traffic Act investigation of the driver. In addition, the two passengers were found to be detained on the particular facts of the case. While detained, they were asked to identify themselves. These circumstances are all similar to the present case. However, the critical distinguishing feature between the two cases is that P.C. Piraisoody did not initially ask Graham to identify himself, at the time of the Highway Traffic Act stop, and only asked for his identity at a later point, once Graham came to be under investigation for the Liquor License Act infractions. In Harris, the passengers were asked for identification as a routine incident of the initial Highway Traffic Act investigation of the driver, in order to facilitate a general police data base search concerning passengers who just happened to be in the car and who were not under investigation for any offence. Doherty J.A. (McMurtry C.J.O. concurring), speaking for the majority, summarized the key facts of the case as follows (at paras 8 to 10):

Constable Lipkus asked the driver for his licence, ownership and insurance. The driver produced the necessary documentation. Lipkus asked Harris and the other passenger for identification. Lipkus testified that he was contemplating giving Harris a ticket for failing to wear his seatbelt. He also testified that he routinely asked all passengers in vehicles stopped for Highway Traffic Act, R.S.O. 1990, c. H.8, purposes to identify themselves. Lipkus put it this way:

It is just a routine - routine investigation - it helps us conduct our investi gation thoroughly. If there is anything pertinent or anything important that these three parties will have on them or this vehicle that could involve, as I said, anything from probations to recognizance, whether the vehicle was stolen or not, to numerous types of other information , it allows us to act as police officers and enforce the laws.

Lipkus testified that he used the identification to obtain information through CPIC about driver 's licences, criminal records, whether persons were on probation or bail, or whether they were under some "level of surveillance". The trial judge summarized his evidence in these terms, at para. 19:

[T]he primary purpose, at least in his mind, for these checks was to obtain as much information as possible so that the individual in question can be as thoroughly investigated, simply for general purposes, as CPIC will allow.

The trial judge specifically rejected the officer's testimony on cross-examination that the request for information related to officer safety concerns. She also concluded that the request for identification was unrelated to Harris's seatbelt violation:

It is clear from P.C. Lipkus' evidence that his request for Mr. Harris' identity did not relate to driving offences. He did testify that he was considering charging Mr. Harris for a seatbelt violation but it is clear that there was no nexus in his mind between this consideration and his request for Mr. Harris’ name. It is clear from the portion of his evidence that I have quoted at paragraph 18 above that he asked for Mr. Harris' name simply out of routine and that this was the routine that he followed whenever he pulled a vehicle over. [Emphasis of Doherty J.A.]

[58] Based on the above facts, Doherty J.A. described the s.8 violation as follows (at paras 38-41):

The Crown next argues that a person has no or, at its highest, a minimal expectation of privacy in his or her name. The Crown submits that merely providing one's name reveals little, if anything, of any personal nature concerning that person. In some contexts, there will be considerable merit to this submission. However, in the present case, Harris was under police detention. Lipkus was not asking Harris to identify himself out of some sense of curiosity or so he could greet Harris by name should they meet again. Lipkus had a very specific purpose in mind when he asked for identification. He intended to use that identification to access a wealth of personal information about Harris before allowing Harris to proceed on his way. That information included whether Harris had a criminal record, was subject to any outstanding court orders and, if so, the terms of those orders. Although Crown counsel submits that the officer's request for identification was "not directed at obtaining incriminating information in relation to unrelated criminal conduct", I think that was precisely one of the reasons Lipkus asked Harris for identification. Why else would Lipkus use the identification to determine whether Harris was in breach of any outstanding court orders?

Given the information readily available to Lipkus through CPIC, I see no functional difference between Lipkus asking Harris to identify himself and then checking that identification through CPIC, and Lipkus asking Harris a series of questions about his criminal past, his bail status, and the terms of any bail that Harris might be under. Lipkus's immediate access to information available on CPIC made Lipkus’s request for identification the equivalent of Lipkus asking Harris whether he was breaching any court orders at that moment.

A person under police detention who is being asked to incriminate himself has more than a reasonable expectation of privacy with respect to the answers to any questions that are put to him by the police. That person has a right to silence unless he or she makes an informed decision to waive that right and provide the requested information to the police: R. v. Hebert (1990), 1990 CanLII 118 (SCC), 57 C.C.C. (3d) 1 (S.C.C.). In the circumstances, Harris's identification in response to the officer's question constitutes a seizure and attracts s. 8 protection.

The seizure was unreasonable. As in Mellenthin, Lipkus had no reason to suspect Harris of anything when he questioned him and requested his identification. The purpose for the stop and the consequential detention of Harris and the other occupants of the vehicle had nothing to do with the request for Harris's identification. The purpose of the stop did not justify an at large inquiry into Harris’s background or his status in the criminal justice system. That was the effect of the request for identification. Just as in Mellenthin, Lipkus expanded a Highway Traffic Act stop into a broader and unrelated inquiry. Harris’s identification of himself provided the entrée into that broader and unrelated inquiry. [Emphasis added]

[59] The facts of Harris are unusual because the accused was detained but he was not under any legitimate investigation for any offence. He was simply the subject of an “at large inquiry” into any possible misconduct that might be revealed by police data base searches. Doherty J.A. found that the request for identification violated s.8 in these circumstances. However, he went on to hold that the evidence eventually seized from the accused was, nevertheless, admissible. Doherty J.A.’s s.24(2) analysis, in this regard, is important to the present case because he held that the officer could have properly asked the passenger Harris for identification if he was investigating and summonsing Harris for an offence (at paras 65, 67 and 73):

Had Lipkus decided to give Harris a ticket for not wearing a seatbelt, he was entitled under the Highway Traffic Act to ask Harris for identification so that he could issue the ticket. He was entitled to do this even if, as the law stood at the time, Harris was under no statutory duty to provide identification. As Lipkus was entitled to request identification for the purposes of giving Harris a ticket for the seatbelt violation, if Harris provided the identification, Lipkus could, under the authority of Brown, conduct a CPIC inquiry using that identification. Had this occurred, the inquiry would of course yielded the same results as the inquiry actually conducted by Lipkus.

It is a fair inference that had Lipkus properly understood the limits of his authority on a Highway Traffic Act investigation, he would have turned his mind specifically to whether he should issue a ticket to Harris for not wearing a seatbelt. I think it is a fair inference that had Lipkus understood that he needed a specific reason for requesting identification from the passenger, he would have adverted to the seatbelt violation and requested an identification for the purposes of issuing a ticket to Harris. There is no reason to think Harris would have responded any differently had Lipkus requested identification for the purpose of giving Harris a ticket for not wearing a seatbelt. In my view, Harris would have felt just as compelled to answer the question and would have identified himself.

Lipkus had the lawful authority to ask Harris exactly the same question that he in fact asked him. There is a strong likelihood that had he turned his mind to the seatbelt violation, Lipkus would have requested identification for that purpose, would have received exactly the same answer from Harris, would have conducted exactly the same CPIC inquiry, would have obtained exactly the same information, and would have pro ceeded exactly as he did. Lipkus's error as to the reason he was entitled to demand identification had no effect on the nature of the question, Harris's response, or the events subsequent to that response. The availability of a lawful basis to ask the question had Lipkus turned his mind to it, in my view, renders the breach less serious than it otherwise would have been. [Emphasis added].

[60] In the case at bar, P.C. Piraisoody had a lawful basis to ask Graham for identification, at the point in time when the request was made. Graham was by then under investigation for a Liquor License Act offence and P.C. Piraisoody would need to have his identification in order to charge him and summons him to court. It has always been lawful to ask a criminal suspect for his identification. Indeed, the police are obliged to try to ascertain an accused’s true identity for bail purposes and in order to compel appearance to court. Furthermore, the offences of obstruct justice and obstruct police require suspects to either remain silent or to answer truthfully, when asked by the police for their identification. See: R. v. Moore (1978), 1978 CanLII 160 (SCC), 43 C.C.C. (2d) 83 (S.C.C.); R. v. Spezzano (1977), 1977 CanLII 1371 (ON CA), 34 C.C.C. (2d) 87 at 95-6 (Ont. C.A.); R. v. Greaves (2004), 2004 BCCA 484, 189 C.C.C. (3d) 305 at 325-7 (B.C.C.A.); Rice v. Connolly, [1966] 2 All E.R. 649 at 652 (Q.B.D.); Glanville Williams, “Demanding Name and Address” (1950) 66 L.Q.R. 465.

[61] For all these reasons, there was no violation of s.8 of the Charter when Graham was asked for his identification in the course of the Liquor License Act investigation.

(vi) The arrest for possession of marijuana and s.9 of the Charter

[62] The sixth alleged Charter violation concerns the arrest of the Applicant Graham for possession of marijuana. The Applicant submits that there was no evidence that the marijuana came from the car or, in the alternative, that it came from Graham. In this regard, Mr. Dimitrijevic relies on the fact that neither officer actually saw the marijuana being thrown from the car or could link the marijuana to one specific occupant. In addition, counsel relies on P.C. Piraisoody’s belief that it was likely that the marijuana was thrown out of the car by the rear seat passenger (Fraser), because he was closest to where the marijuana was found at the curb.

[63] In order to be lawful and in compliance with s.495 of the Criminal Code and s.9 of the Charter, a warrantless arrest requires subjective belief in reasonable and probable grounds that an offence has been committed and objective existence of such grounds. See: R. v. Storrey (1990), 1990 CanLII 125 (SCC), 53 C.C.C. (3d) 316 at 322-4 (S.C.C.); R. v. Feeney (1997), 1997 CanLII 342 (SCC), 115 C.C.C. (3d) 129 at 144-151 (S.C.C.); R. v. Grant, supra at paras. 54-6. In applying this standard, it has been held that “the test for finding reasonable grounds for arrest is not as exacting as it might be in other situations where reasonable grounds are required” because “the officer’s decision to arrest must be made quickly in volatile and rapidly changing situations,” without the “luxury” of time for “judicial reflection”, and while relying on “available information which is often less than exact or complete,” per Rosenberg J.A. in R. v. Polashek (1999), 1999 CanLII 3714 (ON CA), 134 C.C.C. (3d) 187 at para. 19 (Ont. C.A.) and per Doherty J.A. in R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 117 C.C.C. (3d) 193 at para. 18 (Ont. C.A.).

[64] In applying this standard to the present case, it must be remembered that the officers did not immediately arrest the occupants of the car for the marijuana offence, upon discovering the small baggie discarded at the roadside. Although some of the language used by the officers in their testimony suggests that they may have believed that some kind of “arrest” had occurred at this early point, neither the Crown nor defence ever explored or explained this point about the timing of the “arrest”. As a matter of law, there are only two ways to actually arrest a suspect. There can be a “custodial arrest,” which requires “the actual seizure or touching of a person’s body with a view to his detention.” Alternatively, there can be a “de facto arrest,” which requires “the pronouncing of words of arrest to a person who submits to the arresting officer.” See: R. v. Latimer (1997), 1997 CanLII 405 (SCC), 112 C.C.C. (3d) 193 at paras. 24-5 (S.C.C.); R. v. Whitfield, 1969 CanLII 4 (SCC), [1970] 1 C.C.C. 129 at 130 (S.C.C.). Neither form of arrest occurred at the point in time when the officers discovered the small baggie of marijuana at the roadside and then returned to their police car to call for “back-up.” In my view, the officers deliberately delayed making an arrest because of their officer safety concerns. There was no more than a common law investigative detention at the stage in the chronology when the marijuana baggie was found.

[65] By the time “back-up” officers arrived, and the arrests were carried out, the following grounds existed to justify P.C. Piraisoody’s arrest of Graham for possession of marijuana:

• the finding of the baggie at the roadside, which appeared and smelled like marijuana, based on P.C. Piraisoody’s experience and based on its packaging;

• the fact that the baggie was still warm on a cold night, was not weathered, had not blown away on a windy night, was close to the car, and had not been noticed when the officers first approached the car, all tended to infer that it had been thrown out of the car by one of the occupants, after the police had stopped and then approached the car;

• the evidence already summarized above, in relation to the “open alcohol,” to the effect that the three occupants of the car were out together on a Saturday night sharing two bottles of vodka and that they were in a hurry to leave;

• the observations of a sideways rocking of the car, suggesting to the officers that the occupants of the car may have been trying to hide contraband of some kind;

• Graham’s recent conviction for possession of cocaine for the purpose of trafficking (see: R. v. Debot (1986), 1986 CanLII 113 (ON CA), 30 C.C.C. (3d) 207 at 220-1 (Ont. C.A.), aff’d (1989) 1989 CanLII 13 (SCC), 52 C.C.C. (3d) 193 at 215-216 (S.C.C.);

• P.C. Piraisoody’s prior experience with small one gram amounts of marijuana packaged in strips of plastic and sold for $10, to the effect that they are usually part of multiple similar packages carried for sale by drug traffickers.

[66] Although the evidence of marijuana possession was stronger in relation to Fraser, because of his close proximity to the baggie found at the curb, there are good reasons not to let this fact, that is relied on by the defence, dominate the analysis. First, the ex post evidence discovered in the search of Fraser incident to arrest, disclosing a second similar small baggie of marijuana on Fraser’s person, must be ignored. The police did not have this evidence at the time of the arrests. Second, the above six circumstances provided some evidence of joint possession by the three occupants of the car or of aiding and abetting. Third, stronger proof in relation to Fraser, for purposes of prosecution and likely conviction, is a very different standard than “reasonable and probable grounds,” which means something less than a “prima facie case.” See: R. v. Shepherd (2009), 2009 SCC 35, 245 C.C.C. (3d) 137 at 146 (S.C.C.); R. v. Debot, supra at 219 (Ont. C.A.), aff’d supra at 213 (S.C.C.).

[67] For all these reasons, I am satisfied that the above six circumstances provided P.C. Piraisoody with reasonable and probable grounds to arrest Graham for possession of marijuana. Accordingly, there was no violation of s.9 of the Charter at the time of arrest.

[68] I should add that a contrary finding, that there was a lack of reasonable and probable grounds to arrest Graham for possession of marijuana and a violation of s.9 of the Charter, would likely have had no impact on the s.24(2) issue. If the police were short of reasonable and probable grounds in relation to Graham, they were only just short. In other words, the violation was the result of a close judgement call and was not serious. Furthermore, the police had abundant grounds to arrest the back seat passenger Fraser in relation to the marijuana and they had abundant grounds to search the car for “open alcohol,” pursuant to the Liquor Licence Act, as will be discussed below. In these circumstances, the search of the car would have proceeded in exactly the same way and the satchel with its unlawful contents would have been discovered in exactly the same way, regardless of the decision to arrest Graham. In other words, any s.9 violation would have had little or no impact on Graham’s Charter protected interests relating to the search. It would be unreasonable to exclude the evidence, pursuant to s.24(2), in these circumstances. See: R. v. Harris, supra at paras. 68-74; R. v. Dene, 2010 ONCA 796 at para. 6; R. v. T.G.H. (2014), 2014 ONCA 460, 314 C.C.C. (3d) 473 at 490-1 (Ont. C.A.); R. v. MacMillan (2013), 2013 ONCA 109, 296 C.C.C. (3d) 277 at 303-4 (Ont. C.A.); R. v. Nolet (2010), 2010 SCC 24, 256 C.C.C. (3d) 1 at para. 54 (S.C.C.).

(vii) The questioning of the suspects about the marijuana offence and s.10(b) of the Charter

[69] The Crown concedes the seventh Charter violation, correctly in my view. P.C. Piraisoody should not have questioned the three suspects, including the Applicant Graham, about the discarded baggie of marijuana. At this point in the investigation, the three occupants of the car were all detained but they had not yet been advised of their s.10(b) rights. Furthermore, the police intended to arrest the three occupants. The police delayed the arrests, and delayed complying with s.10(b) of the Charter, because of legitimate officer safety concerns, as discussed above. In these circumstances, the police were obliged to hold off on any questioning of the suspects. See: R. v. Manninen (1987) 1987 CanLII 67 (SCC), 34 C.C.C. (3d) 385 at 392-3 (S.C.C.).

[70] I will address the impact of this s.10(b) violation, in relation to s.24(2) of the Charter, after considering the other alleged violations.

(viii) The delay in advising the detainees of their ss.10(a) and 10(b) Charter rights in relation to the marijuana investigation

[71] The eighth alleged Charter violation was added, as a brief afterthought towards the end of oral argument. Mr. Dimitrijevic submitted that there was no legitimate officer safety justification for any delay in advising the Applicant Graham of his s.10(a) and s.10(b) rights in relation to the marijuana investigation, once P.C. Marshall had taken the keys to the car and once P.C. Piraisoody had implicitly told the three occupants that the small discarded baggie of marijuana was being investigated by the police. In other words, it would have been apparent to the detainees that they were under investigation for the marijuana and that they were not free to leave. It was submitted that this diminished any officer safety concerns.

[72] In my view, this argument is factually misconceived. I have already found that the police had legitimate officer safety concerns. The circumstances that gave rise to those concerns included the following: a recent fatal shooting in this precise location; the amount of crime generally in the neighbourhood; the fact that the officers had no identification documentation from any of the three occupants, had not yet “run” CPIC checks on the three occupants, and did not yet know “who they were dealing with”; the fact that Graham had been texting someone and was anxious to leave, after the roadside stop and after the evolving investigation was under way; and the fact that the car and the occupants could not be searched, including for weapons, until “back-up” arrived. None of these circumstances were altered or alleviated by the seizure of the car keys or by the questioning of the three occupants about the small baggie of marijuana found at the roadside. To advise the occupants that they were now under arrest for a criminal offence, and that they had the right to confer with counsel, would have escalated the three occupants’ jeopardy at a point in time when the officers were not yet in control of the situation and were not yet able to safely carry out arrests.

[73] For all these reasons, there is no merit to the eighth alleged Charter violation.

(ix) The continuing arrest and detention of Graham, the searches incident to arrest, and ss.8 and 9 of the Charter

[74] The ninth alleged Charter violation concerns the ongoing arrest and detention of the Applicant Graham, and the related searches of his person and the car, at a point in time after P.C. Carter had found the second small baggie of marijuana on Fraser’s person. Assuming P.C. Carter found this second baggie and advised the other officers that he had found it, at an early stage of the marijuana investigation (a point that is somewhat unclear), Mr. Dimitrijevic submits that the pending plan to also arrest and search Graham and search the car should have been terminated. Mr. Dimitrijevic submits that there was no longer any basis to believe that Graham possessed more marijuana, or that there was more marijuana in the car, given the link that was now firmly established between Fraser and the marijuana.

[75] Once again, this argument is factually misconceived. As summarized above in relation to the sixth alleged Charter violation, there were reasonable grounds to support a belief in joint possession and to support a belief that there was more contraband hidden in the car. The fact that two one gram amounts had been found, both packaged in a manner that traffickers use to package small amounts for sale, combined with the observations of a rocking movement of the car, gave the officers grounds to believe that there was a larger amount (the trafficker’s source of supply or “stash”) either stored in the car or hidden on the person of one of the other occupants. See: R. v. Polaschek, supra at paras. 25-6; R. v. Alkins (2007), 2007 ONCA 264, 218 C.C.C. (3d) 97 at paras. 26-49 (Ont. C.A); R. v. Rochwell (2012), 2012 ONSC 5594, 268 C.R.R. (2d) 283 at paras. 36-45 (Ont. S.C.J.).

[76] For all the above reasons, the police were entitled to arrest Graham and to search the car, even after P.C. Carter found the second baggie of marijuana on Fraser’s person. This one development in the investigation did not end or exhaust the officers’ grounds for arresting the other occupants and searching the car. Indeed, it arguably enhanced their grounds.

[77] I should add that this ninth alleged Charter violation, like the sixth alleged Charter violation, is entirely academic and could not lead to the exclusion of the seized evidence. The police had a lawful basis to search the car for more marijuana, in any event, incident to Fraser’s arrest and regardless of Graham’s arrest. That common law power to search does not require reasonable and probable grounds. Furthermore, the police had a lawful basis to search the car for “open alcohol,” pursuant to the Liquor Licence Act investigation. The search would have proceeded in the same manner and the satchel with its unlawful contents would have been seized, even if Graham was not arrested. For the reasons set out above in relation to the sixth alleged Charter violation (at para 68), this ninth alleged violation, even if successful, could not reasonably lead to the exclusion of the seized evidence pursuant to s.24(2).

(xi) The search of the trunk and the satchel pursuant the Liquor License Act and s.8 of the Charter

[78] In my view, the search of the trunk and the satchel was authorized at common law, as a search for more drugs incident to the arrests for possession of marijuana. The line of reasoning in Polashek, Alkins, and Rochwell supports this analysis, as explained above in relation to the ninth alleged Charter violation. Accordingly, the tenth alleged Charter violation is somewhat academic as it focuses on the alternative Liquor License Act justification for the search of the trunk and the satchel.

[79] The Applicant Graham submits that s.32(1) of the Liquor License Act prohibits driving or “care or control of a motor vehicle” while there is liquor in the car, but s.32(2)(b) exempts liquor that “is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle”. Mr. Dimitrijevic’s argument is that any liquor contained in a closed satchel in the trunk of the car would clearly fall within the s.32(2)(b) exemption. Accordingly, he submits that there was no basis to search the satchel in the trunk for more alcohol pursuant to the s.32(5) warrantless power of search that is found in the Liquor License Act.

[80] In my view, there are two reasons why this argument cannot succeed. The first reason is legal and the second reason is factual. The legal reason is that the warrantless search power found in s.32(5) of the Liquor License Act is framed as follows:

A police officer who has reasonable grounds to believe that liquor is being unlawfully kept in a vehicle or boat may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it. [Emphasis added]

It can be seen that the statutory power to search the car does not require reasonable grounds to believe that liquor was being unlawfully kept in the satchel in the trunk. It only requires reasonable grounds to believe that liquor was being “unlawfully kept in a vehicle”. At that point, the vehicle can be searched, presumably to seize any such unlawful alcohol but also to seize any relevant evidence, for example, invoices relating to purchase and sale of the alcohol or identification documents. The police in the present case had abundant grounds to believe that there was liquor “being unlawfully kept” in the Chevy Cruze (the two open bottles of vodka in the back seat area). Accordingly, they had authority to search the vehicle, including the satchel in the trunk, pursuant to s.32(5).

[81] R. v. Annett (1984), 1985 CanLII 3654 (SCC), 17 C.C.C. (3d) 332 (Ont. C.A.) is a case that is directly on point. The police had observed an “open six-pack of Molson Canadian Beer… on the front passenger floor of the vehicle. One bottle had its cap removed and appeared to have been partially consumed”. The police searched the trunk of the car and “located a brown vinyl bag. Inside the bag he [the searching officer] found a plastic bag containing 195 grams of cocaine”. An appeal from conviction for the cocaine offence was dismissed. Martin J.A. (Zuber and Goodman JJ.A concurring) held that the search of the vinyl bag in the trunk did not violate s.8 of the Charter. He reasoned as follows:

Patently, the officers had reasonable grounds to believe that liquor was being unlawfully kept or had in the motor vehicle. Accordingly, s. 48 was clearly applicable and conferred upon the officers authority to search the vehicle. No point was or could be made of the fact that Constable Twigg mistakenly referred to the “Liquor Control Act” rather than the Liquor Licence Act as his authority.

In our view the finding of the trial judge that the search was made pursuant to the provisions of s. 48 and was reasonable is a finding which he was entitled to make and it is supported by the evidence. The lawful search was not converted into an unlawful or an unreasonable search because the officers, in addition, had the expectation that the search might also uncover drugs. The evidence obtained pursuant to the search, in our view, was, therefore, properly admitted. [Emphasis added].

[82] In my view, the present case in indistinguishable from Annett on its facts. In terms of the law, the power to search found in s.48(2) of the Liquor License Act during the 1980s is essentially the same as the modern s.32(5) power, set out above. The old s.48(2) power, that applied in Annett, was framed as follows:

A police officer may at any time, without a warrant, enter and search any vehicle or other conveyance in which he has reasonable grounds to believe that liquor is unlawfully kept or had, and search any person found in such vehicle or other conveyance. [Emphasis added].

It can be seen that there is no substantive difference between the two statutory powers. Accordingly, Annett is binding authority concerning the lawfulness of the search.

[83] The second reason why this tenth argument cannot succeed is factual. The two officers both understood that the Liquor License Act permits alcohol to be stored or carried in a closed bag in the trunk of a car. When this legal proposition was put to P.C. Marshall, and he agreed with it, he went on to explain that he searched the closed satchel in the trunk in this particular case because of three unusual factual circumstances: first, the rocking movement of the car that he had observed; second, the fact that the folding rear seat was not fully closed when he entered the back seat of the car; and third, the fact that the satchel was located at the back of the trunk, immediately behind the folding rear seat. In these circumstances. P.C. Marshall reasonably believed that the occupants of the car had transferred drugs or open alcohol from the passenger compartment of the car to the closed satchel in the trunk. On these facts, even if the s.32(5) search power was interpreted restrictively (and contrary to Annett), so as to require reasonable grounds to believe “liquor is being unlawfully kept” in the specific place being searched (that is, in the satchel in the trunk), such grounds did exist on the particular facts of this case.

[84] For all these reasons, the search of the satchel in the trunk of the Chevy Cruze was authorized pursuant to s.32(5) of the Liquor License Act and there was no s.8 violation.

(xii) Exclusion of evidence and s.24(2) of the Charter

[85] It can be seen that of the ten alleged Charter violations, only one has been made out, namely, the seventh violation. It relates to the brief questioning of the suspects about the discarded baggie of marijuana found at the roadside, at a time when the officers had delayed compliance with s.10(b) of the Charter due to officer safety concerns.

[86] In my view, this one violation of the Charter could not reasonably lead to the exclusion of the seized evidence found in the satchel in the trunk. Applying the three sets of Grant factors, the seriousness of the Charter infringing conduct was at the mid-level. Questioning the suspects about the discarded baggie, before advising them of their s.10(b) rights, was clearly wrong and it violated longstanding Charter precepts. On the other hand, P.C. Piraisoody acknowledged his mistake in a responsible way, when testifying. Furthermore, it was his only mistake. In a fast-moving roadside encounter, where the investigation evolved through a series of developments that raised numerous legal and Charter issues, the two officers generally understood the law and faithfully complied with it, except for this one isolated mistake. As Doherty J.A. put it in R. v. T.G.H., supra at para. 56:

Detective Constable Wilson’s decision not to advise the appellant of his right to counsel must be placed in the context of the rest of her conduct. The breach of s.10(b) is the only constitutional breach.

[87] In this regard, Mr. Dimitrijevic relied on a pattern of Charter violations as the main basis for seeking exclusion of the seized evidence. He did not submit that the one isolated s.10 (b) violation, conceded by the Crown, could justify exclusion of the evidence. In my view, the first set of Grant factors does not argue strongly for admission or for exclusion of the seized evidence.

[88] The second set of Grant factors concerns the impact of the s.10(b) violation on the Applicant Graham’s Charter protected interests. In my view, there was virtually no impact. No incriminating statement was obtained. There was no questioning beyond the one brief and unsuccessful inquiry as to whether any one of the three occupants had thrown the baggie out of the car. The police then left the three occupants in the car for a period of time, while waiting for “back up” to arrive. Graham was left in possession of his cell phone during this period. Most importantly, even if Graham had been advised of his s.10(b) rights at the roadside and had called counsel, prior to any questioning, arrests, or searches, there is nothing counsel could have done or said that would have delayed or prevented the arrests, the search of the Chevy Cruze, and the seizure of the evidence. As Doherty J.A. put it in R. v. T.G.H., supra at para 60:

Second, even if the Appellant had been advised of his right to counsel and exercised that right, nothing in this record suggests that anything counsel may have said would have altered the course of the police conduct… The absence of any causal connection between the breach of s.10(b) and the obtaining of the challenged evidence leads me to conclude that the evidence would have been available even if the police had complied with s.10(b). This diminishes, to some degree, the significance of the breach on the Appellant’s Charter protected interests.

[89] I have made findings that the arrest of Graham was lawful and the search of the car incident to arrest and pursuant to the Liquor License Act was also lawful. There were no s.8 or s.9 violations of the Charter. In terms of s.10(b), the law has always been that “the police were not required to suspend the search incident to arrest to permit the appellant to exercise his right to counsel”, per Lamer J., as he then was, in R. v. Debot, supra at p. 198 and per Rosenberg J.A. in R. v. Polaschek, supra at p . 200. Accordingly, the s.10(b) violation had little or no impact on Graham’s Charter protected interests. This second set of Grant factors argues in favour of admission of the evidence.

[90] The third set of Grant factors is society’s interest in an adjudication on the merits. The seized evidence was all highly reliable real evidence that is essential to proof of the Crown’s case on all three counts. Exclusion of this evidence would undermine the public’s confidence in the administration of justice. This last set of Grant factors argues strongly in favour of admission of the evidence.

[91] Balancing all three sets of Grant factors, I am satisfied that they favour admission of the seized evidence pursuant to s.24(2) of the Charter.

D. CONCLUSION

[92] For all the reasons set out above, I dismissed the Charter Motion on the second day of trial and ruled that the Crown could tender the gun, the ammunition, the money, the drugs, and the digital scales seized from the satchel in the trunk of the Chevy Cruze.

M.A. Code J.

Released: November 8, 2018

R. v. Graham, 2018 ONSC 6718

Case Summary

A. OVERVIEW

B. FACTS

C. ANALYSIS

(i) The initial motor vehicle stop and s.9 of the Charter

(ii) The roadside detention of the passenger Graham and s.9 of the Charter

(iii) The detention of Graham for “open alcohol” and s.9 of the Charter

(iv) Whether s.10(a) and s.10(b) of the Charter were violated during the Liquor License Act investigation

(v) Whether s.8 of the Charter was violated when Graham was asked for his name and date of birth

(vi) The arrest for possession of marijuana and s.9 of the Charter

(vii) The questioning of the suspects about the marijuana offence and s.10(b) of the Charter

(viii) The delay in advising the detainees of their ss.10(a) and 10(b) Charter rights in relation to the marijuana investigation

(ix) The continuing arrest and detention of Graham, the searches incident to arrest, and ss.8 and 9 of the Charter

(xi) The search of the trunk and the satchel pursuant the Liquor License Act and s.8 of the Charter

(xii) Exclusion of evidence and s.24(2) of the Charter

D. CONCLUSION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 9

Legal Tests 4

Legislation 5