COURT FILE NO.: CR-18-872

DATE: 2019 02 04

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

J. Campitelli, for the Crown

• and -

EARLE CAMPBELL-NOEL AND DWAYNE WILLIS

J. Giuliana, for Earle Campbell-Noel

N. Macchia, for Dwayne Willis

HEARD: December 7, 2018

REASONS FOR JUDGMENT

Dennison J.

OVERVIEW

[1] The applicants seek to exclude a firearm, ammunition and drugs that were seized by police on May 15, 2017 pursuant to s. 24(2) of the Charter. The applicants submit that their s. 9 Charter rights were violated. They submit that the police’s Highway Traffic Act, R.S.O. 1990, c. H.8, stop was a ruse or pretext to allow police to criminally investigate two Black males. The applicants further submit that the subsequent search of the vehicle violated their s. 8 Charter rights, as the search was not truly incidental to Mr. Campbell-Noel’s arrest for driving while under suspension. Lastly, the applicants submit that their s. 10(b) Charter rights were violated.

[2] The parties agreed that the transcripts from the discovery proceedings containing the evidence of Acting Sergeant (“A/S”) Robinson, P/C French, PC Cogan, PC Al-Jamal, PC Zara and PC Newton were admissible on this application. A/S Robinson and PC French were further cross-examined before me.

FACTS

Observations of the Vehicle

[3] On the evening of May 15, 2017, A/S Robinson was the road supervisor for 12 Division. He had been a police officer for fourteen years. He was in police uniform in a fully marked SUV police cruiser. He had a nineteen year old civilian member cadet with him that evening.

[4] A/S Robinson was stopped at a red light at the corner of Cawthra Road and Burnhamthorpe Road. He was heading westbound. He noticed a vehicle stopped at the same light traveling in the same direction. It was stopped short of the line slightly behind him despite the fact that the lane was empty. This drew his attention.

[5] A/S Robinson explained that it was his usual habit to look in the car stopped beside him at the light to see who is in the vehicle and what is happening. Usually the occupants of the vehicle are looking at him as he is police identified SUV.

[6] In this case, he was not able to see inside the vehicle as it was to his right and behind him. At the discovery hearing, A/S Robinson testified that when the light turned green the vehicle proceeded ahead of him. He allowed the vehicle to go ahead of him so that he could take a look at the vehicle to look at the occupants.

[7] On this application, he similarly testified that he let the vehicle pass to look inside it.

Q. What you do then is allow the vehicle to get ahead of you so you can look inside.

A. No. What I usually do in my practice is that I wait a couple of seconds and you can safely proceed and I am in no rush at that time so I can make observations of the vehicle that passes me.

Q. We understand that is your general practice. In this case you say let them go ahead so you can look inside.

A. yes.

Q. It was at that point that you looked inside that you made your grounds to look in the vehicle.

A. Not at that point.

[8] He testified that he did not make an observation of the occupants of the vehicle prior to stopping it.

[9] At the discovery, A/S Robinson testified that after the vehicle passed him, at approximately 1:53 a.m., he observed the vehicle make a slight movement towards the centerline into his lane where he was traveling: “it didn’t go right into my lane but there was a slight movement over into the lane and back into the lane” On the application, he described the movement as “encroaching on the lane. I recall it moving slightly into the lane, on the line. Not into my lane but close into my lane.”

[10] A/S Robinson decided to stop the vehicle for a sobriety check given that,

a) The vehicle did not stop at the line at the intersection but stayed back.

b) The vehicle veered in the lane.

c) It was the time of night when bars were closing and people starting driving home from bars.

d) The vehicle was traveling in an area known to have a lot of bars and a lot of drinking and driving occurrences.

[11] After deciding that he was going to stop the vehicle, A/S Robinson conducted a “rolling marker check” on the vehicle. He testified that he did this rather than just run it through his own computer as the computers were not working very quickly. Additionally, he wanted to create a teaching moment to show the cadet that you can check a vehicle without looking at the computer all the time. He agreed that it was rare to do a “rolling marker”, but also stated that he uses them “more often than others.”

[12] In a “rolling marker”, the officer calls dispatch to verbally ask them to do a check on the licence plate of a vehicle. The vehicle in this case was a four door silver Toyota vehicle with a licence plate number of YSW954. The dispatch provided the name and address of the registered owner and advised that there were some cautions attached to that licence plate for some Criminal Code, R.S.C., 1985, c. C-46 offences, as well as some special interest police entries. A/S Robinson could not recall what those entries were. There was no information suggesting that the vehicle was stolen. He agreed that all of the officers in 12 Division could hear the call over the radio.

[13] A/S Robinson activated his lights when he was close to Central Parkway, which was the next major intersection after Cawthra Road. He was behind the vehicle, which did not give any indication that it intended to stop. He testified that ninety-nine percent of the time the vehicle pulls over. While his primary concern was the sobriety check, he was getting a little concerned that there may be more than just a concern about drinking and driving as the vehicle did not stop. He was also cognizant of the fact that they were near the Absolute Towers, which is a higher crime area. He was approximately two to three kilometers between Cawthra Road and the Absolute buildings.

[14] Near Absolute Avenue, A/S Robinson decided to use his sirens to make sure that the driver of the vehicle was aware that a police vehicle was behind him and wanted him to stop. The vehicle travelled along the curved road to 80 Absolute Avenue, where the vehicle stopped at the gate going into the building. The vehicle did not speed. It did not straddle the lines on the road or appear to have any difficulty manoeuvring turns. It took the vehicle approximately ten to twenty seconds after the sirens were activated to stop. A/S Robinson stopped right behind the vehicle.

[15] PC French was working as a breath technician that evening. He had been an officer for six years at the time of the allege offence. He was nearby at the Square One Plaza, which has a high number of drinking and driving occurrences because of the bars in the area. Four of the five top locations for impaired driving in Peel Region are in 12 Division. PC French heard the rolling marker. Given that it was late at night, he decided to attend the area. He did not recall any other communications for assistance.

[16] A/S Robinson testified it is not uncommon for officers to attend during a routine traffic stop at night as officers are often alone in a cruiser. A/S Robinson denied that he called for assistance prior to stopping the vehicle.

The Vehicle is Stopped

[17] The vehicle stopped at the north entrance of the Absolute plaza off Absolute Avenue. A/S Robinson exited the vehicle and approached the driver. His primary intention was to check the sobriety of the driver and obtain his driver’s licence, ownership, and insurance.

[18] When he approached the driver, the driver rolled down the window. A/S Robinson saw that there were two occupants in the vehicle – the driver and a passenger in the front seat. A/S Robinson said ‘hello’ and asked the driver, Mr. Campbell-Noel, for his licence, ownership, and insurance. The driver immediately asked why he was stopped. He said he was going to record the conversation. A/S Robinson said that was fine. The officer advised him that he was conducting a sobriety check. He again asked the driver for his identification. They had a bit of a back and forth over why the driver was stopped and why he was required to provide identification. At one point, A/S Robinson advised the driver that he could be arrested if he failed to identify himself under the Highway Traffic Act. A/S Robinson agreed that at no point during the interaction did he ask any questions about what the driver had to drink but he explained that he did not ask those questions because the driver was refusing to identify himself. He did not smell any alcohol on his breath and was ultimately satisfied that Mr. Campbell-Noel was not impaired.

[19] When PC French arrived, he could hear that the driver was giving A/S Robinson a hard time about providing identification. PC French parked his cruiser in front of the vehicle and exited. PC French recalled that A/S Robinson advised him that he stopped the vehicle for the purpose of checking sobriety and said that there “was some weaving in and out of the lane or some sort of Highway Traffic Act violation that made him want to conduct a traffic stop”.

[20] PC French approached the driver and told him that he was obligated to provide documentation. The driver, Mr. Campbell-Noel, was cooperative and compliant when speaking with PC French. PC French did not observe any obvious signs of impairment. The driver advised PC French that he did not have any physical identification on him. The driver provided PC French and A/S Robinson with his name, Earle Campbell-Noel, and his date of birth. PC French took this information and went back to his police cruiser and conducted a computer search on MTO and CPIC.

[21] A/S Robinson observed two females come from the building that he believed were associated with the two males in the car. One of the females began to film what was happening with her phone. The driver was not happy about being stopped. The driver told him that the vehicle was his friend’s dad’s vehicle and he did not know the name of the dad, so A/S Robinson was concerned about the status of the vehicle. They were in a high-density area where there is a lot of illegal activity. A/S Robinson started to get concerned, as this was not a routine situation. He also had a cadet with him and was concerned for his wellbeing.

[22] The passenger, Mr. Willis, was sitting in the car was not asked any questions or asked to provide identification.

[23] PC Al Jamal and PC Zara arrived on scene after PC French.

[24] PC Al-Jamal had been an officer for just over a year at the time of this incident. She testified that A/S Robinson requested assistance for a traffic stop at approximately 2:03 a.m. over the radio. She attended the scene as she was not far away. She arrived at approximately 2:04 a.m.

[25] When she arrived, she saw A/S Robinson and PC French standing beside the driver’s side of the vehicle. PC Al-Jamal testified, “there was a conversation between A/S Robinson and PC French and I believe they said that the driver may have been suspended”. She heard the driver questioning why he was pulled over. Her notes stated “driver was advised that the reasons for the traffic stop was to check for sobriety. Male Driver did not have ID and verbally identified himself as Earle Campbell.” These were things that she heard personally. She also noted there were two females in the area when she arrived.

[26] PC Zara had also been an officer for a year at the time of this incident. He testified that at approximately 2:06 a.m., A/S Robinson requested an additional unit on a traffic stop, saying there was no rush. PC Zara decided to attend.

[27] When he arrived, he saw the vehicle stopped at the north entrance of the parking lot of the Absolute building. When he approached the vehicle, he noticed two females standing close to the vehicle. He asked them to step back. The females were not very cooperative at first, but they did move back. He thought they were somehow associated with the two males.

Mr. Campbell-Noel is Arrested for Driving while Suspended

[28] PC French ran the name and date of birth provided on CPIC and the MTO to try and verify the driver’s identity. A digital picture came up which satisfied PC French that Mr. Campbell-Noel properly identified himself. CPIC stated that he was a suspended driver for unpaid fines.

[29] PC French exited his cruiser and advised A/S Robinson that Mr. Campbell-Noel was a suspended driver. He then returned to his cruiser to get a better look at CPIC, as there was a lengthy list of information. There was a weapon’s prohibition and he wanted to ensure there were not additional conditions or any offences being committed. There was nothing else of relevance.

[30] PC French got out of his cruiser and advised A/S Robinson that the only outstanding offence was the driving while under suspension. At this point, Mr. Campbell-Noel was out of the vehicle and it appeared that A/S Robinson was in the process of arresting him.

[31] A/S Robinson advised Mr. Campbell-Noel that he was under arrest for driving under suspension. He asked him to get out of the car. Mr. Campbell-Noel complied. A/S Robinson did not give Mr. Campbell-Noel his rights to counsel or his caution at this time.

[32] A/S Robinson felt the hostility from Mr. Campbell-Noel. He testified that he did not want to escalate the situation, so he did not immediately handcuff Mr. Campbell-Noel upon arrest as this was a Highway Traffic Act stop.

[33] A/S Robinson conducted a pat down search for safety reasons. There were officers in the area and he did not quite know who the driver was. He did not have any confirmation about identification other than the verbal identification. During the search, A/S Robinson felt a large bulge in Mr. Campbell-Noel’s pocket. He was not sure what it was so he reached into his pocket and pulled out what was a large bundle of cash.

[34] PC Al-Jamal also participated in the search of Mr. Campbell-Noel. A/S Robinson did not recall that she assisted but deferred to her evidence on this point. She testified that A/S Robinson handcuffed Mr. Campbell-Noel immediately after he stepped out of the vehicle. She testified that A/S Robinson was on the left side and she searched his right side. She was not aware of anything being located on Mr. Campbell-Noel as a result of the search incident to arrest.

[35] PC Al-Jamal also testified that while she was assisting in the pat-down search, she heard PC French say the passenger was arrestable for firearms. She did not know where the passenger was at that time. She had no involvement with Mr. Willis.

[36] A/S Robinson testified that once he found the cash, he handcuffed Mr. Campbell-Noel. At this point, A/S Robinson had some safety concerns and believed that Mr. Campbell-Noel may be involved in criminal behaviour and he was concerned that he may have weapons.

A/S Robinson Wants to Seize the Vehicle

[37] A/S Robinson testified that after he found the cash, he decided to seize the vehicle. He wanted to further investigate the identity of the driver and the status of the vehicle. He was concerned as Mr. Campbell-Noel did not know the owner of the car and was not sure if he was authorized to drive the vehicle.

[38] A/S Robinson took the cash and put it in his trunk. He then asked Mr. Campbell-Noel who the passenger was. Mr. Campbell-Noel said “Bob”. A/S Robinson did not believe him. He did not pursue this further as he just wanted to know the passenger’s name so he could ask him to get out of the car and to advise him that the vehicle was being seized and would be towed.

[39] A/S Robinson left Mr. Campbell-Noel with other officers and went to the passenger side of the vehicle where Mr. Willis was still sitting. He asked “Bob” to exit the vehicle, as it was being seized and then towed. No officers spoke to Mr. Willis prior to this point. He was not asked any questions. He was not told he was free to go, nor was he told to remain.

[40] Mr. Willis took a bag with him as he stepped out of the vehicle. He proceeded to walk towards the building. A/S Robinson took the bag and told him it was staying in the vehicle. The bag was put back in the car and Mr. Willis started to walk away. PC Zara testified that he heard A/S Robinson tell Mr. Willis to put the bag back in the vehicle.

[41] A/S Robinson testified that he told Mr. Willis to leave the bag, as he did not know if it was his bag. He wanted to secure the scene and confirm everything including whether the car was stolen and who owned the property. He did not have a chance to ask Mr. Willis if it was his bag as the firearm was found quickly thereafter. A/S Robinson testified that If Mr. Willis had stayed and identified the bag at a later point he would have considered giving the bag to Mr. Willis. When A/S Robinson was asked if he was going to give the bag back to Mr. Willis, he testified that he “was dealing with the circumstances as they were happening to me. It was too fluid, too quick of a time to know what next steps I was going to do.”

[42] A/S Robinson also testified that his authority to seized the vehicle came from the Highway Traffic Act. He also testified that when a vehicle is seized, an inventory would be done on the vehicle and an investigation would be started into who owns the vehicle and the belongings. Arrangements would be made for the owners to obtain their belongings.

The Search of the Vehicle Incident to Arrest for Driving While Suspended

[43] After Mr. Campbell-Noel was arrested for driving while under suspension, PC French began to search the vehicle incident to arrest. It is not clear whether the search commenced prior to Mr. Willis exiting the vehicle. PC French was not instructed to search the vehicle by A/S Robinson. There is no evidence that he knew that A/S Robinson found the cash on Mr. Campbell-Noel.

[44] PC French testified that he was looking for Mr. Campbell-Noel driver’s licence to seize it and return it to the MTO. In PC French’s experience, it was not uncommon for suspended drivers to have at least one version of their driver’s licence still on them. In his opinion, people lie to him about this. He thought it was a possibility that Mr. Campbell-Noel was lying about not having a driver’s licence on him. The first place he looked was the centre console, as it seemed like the most likely spot in which to place small things. He agreed in cross-examination that he did not need the driver’s licence to prosecute Mr. Campbell-Noel for this offence. PC French also agreed in cross-examination that he did not do an MTO check to see if the licence was returned. He testified that he had no knowledge that such a search could be conducted. He also testified that he had no idea if the MTO had a hotline to contact as he has never been provided any such information in his training. He agreed that he did not inquire if identification was found on Mr. Campbell-Noel prior to conducting his search. PC French denied that he was conducting a criminal investigation when he searched the vehicle and that the only thing he was looking for was the driver’s licence.

[45] PC French lifted up the lid of the centre console and immediately observed a handgun. At this point, it became a criminal investigation. PC French opened the gun and found five live rounds of ammunition. He took the bullets out and put the gun in his pants to secure it.

The Arrests for the Firearm Offences

[46] As Mr. Willis was walking away, PC French advised officers to arrest the passenger for possession of a firearm. A/S Robinson and PC Zara grounded Mr. Willis and handcuffed him. Mr. Willis was arrested at 2:08 a.m. Mr. Campbell-Noel was also arrested for possession of the firearm.

Seizing the Cell Phones

[47] As soon as PC French made the statement about the firearm, the two females who were in the area started walking away towards the Absolute buildings. A/S Robinson requested that PC Al-Jamal seize the cellphone of one of the females. He testified that he wanted to freeze everything as the matter would be turned over to detectives and they could obtain a warrant to search the phone. PC Al-Jamal went over and told the female that they were investigating possession of an unauthorized firearm and the phone may have evidence on it and she needed it for the investigation. She testified that if the female did not give her the phone, she would have likely gone back to ask A/S Robinson for further direction.

The Further Search of the Vehicle

[48] After PC French found the handgun, he searched the rest of the vehicle. This search was much more thorough. He found a backpack in the back seat. It was zipped closed. Inside the bag, there was a large Ziploc bag with white powder that he believed to be cocaine, as well as a small black digital scale. There was also a box of .32 calibres Remington ammunition in a Ziploc bag. There was a paper bag containing approximately 50 loose rounds of nine-millimetre calibre ammunition. There was a large quantity of crack cocaine that was in the shape of a brick. There were also four brown boxes loose in the backpack containing .22-calibre ammunition. He did not recall searching the trunk and he did not find any identification. PC Newton testified that after he placed Mr. Willis in the cruiser, he assisted in searching the vehicle, including the trunk.

[49] Upon finding the narcotics and ammunition in the vehicle, PC French advised the officers to arrest Mr. Campbell-Noel and Mr. Willis for the additional offences.

[50] Once back at 12 Division, all of these exhibits were turned over to PC Al Jamal.

Rights to Counsel Given to Mr. Campbell-Noel

[51] A/S Robinson arrested Mr. Campbell-Noel for driving while under suspension. He testified that he did not read him his rights to counsel at that time. A/S Robinson testified that once he found the cash, he put it in his trunk. He then asked Mr. Campbell-Noel the name of the passenger as he decided to seize the vehicle. He then went over and asked the passenger to exit.

[52] PC Al-Jamal testified that she was conducting a pat down search of Mr. Campbell-Noel when she heard PC French’s instruction to arrest the passenger for a firearm offence. She did not read Mr. Campbell-Noel his rights to counsel as she was not the arresting officer for the driving while under suspension offence.

[53] PC Zara took custody of Mr. Campbell-Noel and escorted him to his cruiser at 2:10 a.m. He advised Mr. Campbell-Noel that he was under arrest for possession of a firearm and read him his rights to counsel and the caution. Mr. Campbell-Noel asked to speak to counsel, Mr. Heath.

[54] At 2:13 a.m., PC French advised PC Zara to arrest Mr. Campbell-Noel for trafficking under the Controlled Drugs and Substances Act, S.C. 1996, c. 19. He advised Mr. Campbell-Noel of this additional charge and re-cautioned him. Mr. Campbell-Noel again indicated that he wished to speak to Mr. Heath.

[55] At 2:20 a.m., A/S Robinson removed Mr. Campbell-Noel from the cruiser. He and PC Zara conducted a secondary search of Mr. Campbell-Noel despite the fact that Mr. Campbell-Noel had previously been searched. It was a joint decision to conduct the search. PC Zara explained that “based on the circumstances that he had those drugs in the vehicle, and now a more, you could say in-depth search to make sure there was no kind of small drugs hidden on him that we wouldn’t have found the first time”.

[56] By 2:24 a.m., PC Zara was en route to the station with Mr. Campbell-Noel. Once at the station, at approximately 2:34 a.m., PC. Zara contacted a phone number for Mr. Heath that was on the Law Society of Upper Canada’s website. When he called this number, it provided three emergency contact numbers for Mr. Heath. At 2:43 a.m., PC Zara called all three numbers but no one answered. He then asked Mr. Campbell-Noel if he wanted to speak to duty counsel, as he was not able to contact Mr. Heath. He did not. PC Zara was able to locate another number for Mr. Heath that was on the prisoner management system. He called that number and left a message for Mr. Heath. He did not know if or when Mr. Campbell-Noel spoke to Mr. Heath. Mr. Campbell-Noel was not questioned by any officers prior to speaking to counsel.

Rights to Counsel Given to Mr. Willis

[57] Mr. Willis was arrested on the firearm charge at 2:08 a.m. At approximately 2:10 a.m., PC Newton arrived on scene after hearing that a firearm was involved. A/S Robinson advised him that Mr. Will was under arrest for possession of a firearm and possession for the purpose of trafficking cocaine.

[58] PC Newton testified that he took custody of Mr. Willis and took him back to his cruiser. He searched Mr. Willis for further weapons and put him in the back of the cruiser. He advised him of his rights to counsel and cautioned him. Mr. Willis advised that he understood these rights and provided PC Newton with the name Kim Schofield. In cross-examination, PC Newton testified that Mr. Willis first indicated that he wanted to speak to David Heath. He then mentioned another lawyer, and then finally stated that the lawyer he wants to talk to is Kim Schofield. No officers questioned Mr. Willis prior to him speaking with counsel.

[59] Mr. Willis arrived back at the station at 2:39 a.m. A message was left for Ms. Schofield at 2:50 a.m. After leaving a message, PC Newton searched Mr. Willis and found a small amount of marijuana on his person. Acting Staff Sergeant Hackenbrook then granted permission to strip-search Mr. Willis at approximately 3:38 a.m.

[60] Male officers stripped and searched Mr. Willis in a private room. During the search, a quantity of fentanyl was found in Mr. Willis’ underwear.

[61] Acting Staff Sergeant Hackenbrook also authorized a strip search of Mr. Campbell-Noel that was conducted in a private room by male officers. Nothing was found as a result of that search.

POSITIONS OF THE PARTIES

[62] The applicants submit that the police engaged in a pattern of conduct that violated their ss. 8, 9 and s. 10(b) Charter rights. They submit that the police stopped their vehicle as the result of racial profiling or, in the alternative, used the Highway Traffic Act as a ruse or pretext to stop the vehicle and conduct a criminal investigation. As the detention was illegal, so was everything that flowed from the detention. Mr. Willis also argues that he was detained when he left the car and was told to put his bag back in the vehicle.

[63] The applicants further submit that there was no legitimate purpose for searching the vehicle after arresting Mr. Campbell-Noel for driving while under suspension.

[64] Counsel submits that Mr. Campbell-Noel’s s. 10(b) Charter rights were violated but concedes that the breach is brief as it only relates to the time between his arrest for driving while under suspension until his arrest for the firearm offence. He submits that this breach fits into a pattern of misconduct. The applicant submits that the s. 10(b) Charter breach is an example of the blatant disregard for the applicant’s Charter rights.

[65] Mr. Willis in his factum submits that his s. 10(b) Charter rights were violated as he waited over 3.5 hours until he spoke to counsel. This argument was not addressed in oral argument.

[66] The applicants did raise any Charter arguments with respect to the strip searches.

[67] The Crown submits that the police had articulable cause and conducted a lawful Highway Traffic Act stop. There is no basis to find that the stop was the result of racial profiling or was done as a ruse to criminally investigate the occupants of the vehicle. The Crown further submits that there is no basis to find that Mr. Willis was psychologically detained, but rather the evidence shows that he felt free to leave as he was doing just that prior to his arrest.

[68] With respect to the search of the vehicle, the Crown submits that the applicants did not have a reasonable expectation of privacy in the borrowed car where the driver was driving while under suspension. Therefore, s. 8 of the Charter is not engaged. Even if there was a reasonable expectation of privacy, the search was authorized by law, as it was a legitimate search incident to arrest.

[69] The Crown submits that the applicants’ s. 10(b) Charter rights were not breached. The Crown submits that police advised Mr. Campbell-Noel of his rights as soon as the situation was under control. The officers did not try to illicit information from the applicants and the officers made every effort to put both applicants in contact with the counsel of their choice.

[70] With respect to s 24(2) of the Charter, if there were any breaches found, they are minor and technical and the admission of the firearm and narcotics seized would not bring the administration of justice into disrepute.

ANALYSIS

[71] The applicants submit that numerous Charter violations occurred during this traffic stop. As noted by Binnie J. in R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 4, roadside traffic stops “sometimes develop in unpredictable ways.” Therefore, it is necessary for the court to “proceed step by step through the interactions of the police and the [applicants]” starting from the initial stop: R. v. Nolet, at para. 4. At each step along the way, the court must determine whether, as the situation developed, the police acted within their lawful authority.

Did the Stop of the Vehicle Violate s. 9 of the Charter?

[72] The first thing to determine is whether the police had the lawful authority to stop the vehicle or whether the police violated the applicants’ s. 9 Charter rights. Section 9 of the Charter establishes that “[e]veryone has the right not to be arbitrarily detained or imprisoned.” The purpose of the section is to protect individual liberty from unjustified state interference.

[73] The Supreme Court of Canada explained the meaning of “detention” in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 44:

Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.

[74] A traffic stop under s. 216 of the Highway Traffic Act is a lawful and justifiable exercise of police authority in furtherance of the highway legislation and public safety. While Highway Traffic Act stops violate s. 9 of the Charter, they are saved by s. 1 of the Charter provided that an officer’s true purpose is to enforce the legislation: R. v. Hufsky, 1988 72 (SCC), [1988] 1 S.C.R. 621.

[75] Where police exercise their power to stop and detain occupants of a motor vehicle pursuant to s. 216(1) of the High Traffic Act based on criteria that are relevant to highway safety concerns, they are not acting arbitrarily. Those criteria are sometimes referred to as "articulable cause": see R. v. Wilson, 1990 109 (SCC), [1990] 1 S.C.R. 1291.

[76] The Ontario Court of Appeal in Brown v. Durham Regional Police Force (1988), 1998 7198 (ON CA), 43 O.R. (3d) 223, (C.A.), at paras. 52-54 discussed “articulable cause” in the context of traffic stops as follows:

The phrase "articulable cause" has been used in two different ways in the s. 9 jurisprudence. The phrase has been used in cases where "articulable cause" is said, when considered in combination with other factors, to supply the legal justification for detention. In Simpson, supra, at p. 202 O.R., p. 501 C.C.C., articulable cause as a factor justifying detention was described as:

…a constellation of objectively discernable facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation.

This description was approved by the majority in R. v. Jacques, 1996 174 (SCC), [1996] 3 S.C.R. 312, at pp. 325-26, 110 C.C.C. (3d) 1, at p. 11.

The phrase "articulable cause" used in connection with stops made under s. 216(1) does not refer to factors which standing alone would justify interference with the liberty of the subject, but rather refers to the reasons behind the exercise of the statutory power to stop and detain. Articulable cause exists under s. 216(1) if the police have a reason for stopping the vehicle which is legitimately connected to highway safety concerns. In this context, articulable cause is used only to distinguish between those lawful stops which are random and, therefore, arbitrary and those lawful stops which are selective and not arbitrary.

When articulable cause is used in reference to a stop under s. 216(1), it may refer to a stop flowing from a reasonable suspicion that a driver is violating some law pertaining to highway regulation and safety. It may also refer to more generalized safety concerns as in the case of the officer who stops trucks because experience teaches that trucks are more likely to be unsafe. Since the lawfulness of the stop does not depend on the existence of articulable cause, it is unnecessary to connect that cause to a specific person, offence or investigation as long as that cause is legitimately connected to legitimate highway safety concerns.

[77] Valid highway safety concerns cannot be used by police officers to mask improper motives for traffic stops. A traffic stop cannot be used as a ruse for general criminal investigative work: see R. v. Mellenthin, 1992 50 (SCC), [1992] 3 S.C.R. 615, at pp. 486-488.

[78] A traffic stop cannot be executed based on racial profiling: R. v. Ladouceur, 1990 108 (SCC), [1990] 1 S.C.R. 1257; and Brown v. Durham Regional Police Force. The seriousness of this concern was addressed by Doherty J.A. in Peart v. Peel (Regional Municipality) Police Services Board (2006), 2006 37566 (ON CA), 43 C.R. (6th) 175 (Ont. C.A.), at para. 91:

Racial profiling is wrong. It is wrong regardless of whether the police conduct that racial profiling precipitates could be justified apart from resort to negative stereotyping based on race. For example, a police officer who sees a vehicle speeding and decides to pull the vehicle over in part because of the driver’s colour is engaged in racial profiling even though the speed of the vehicle could have justified the officer’s action: Brown v. Durham Regional Police Force (1998), 1998 7198 (ON CA), 131 C.C.C. (3d) 1 (Ont. C.A.). Police conduct that is the product of racial profiling and interferes with the constitutional rights of the target of the profiling gives rise to a cause of action under the Charter.

[79] Racial profiling continues to be a huge concern. The Ontario Human Rights Commission (“OHRC”) recently published its report “A Collective Impact: Interim report on the inquiry into racial profiling and racial discrimination of Black persons by the Toronto Police Service”, November 2018, Government of Ontario. In that report, the OHRC raised serious concerns about racial profiling and racial discrimination of Black people by the Toronto Police Service in use of force incidents, stops, questioning, searches and charges. This is not just a Toronto problem. This problem also exists in Peel Region: see also “Applying the Racial Profiling Correspondence Test”, David M. Tanovich, Criminal Law Quarterly, Vo. 64, p. 359.

[80] Courts have a responsibility to ensure that racial profiling is not the real motive for the motorist’s detention. As discussed by Doherty J.A. in Brown v. Durham Regional Police Force, courts must be vigilant against the improper use of police powers under the Highway Traffic Act,

While I can find no sound reason for invalidating an otherwise proper stop because the police used the opportunity afforded by that stop to further some other legitimate interest, I do see strong policy reasons for invalidating a stop where the police have an additional improper purpose. Highway safety concerns are important, but they should not provide the police with a means to pursue objects which are themselves an abuse of the police power or are otherwise improper. For example, it would be unacceptable to allow a police officer who has valid highway safety concerns to give effect to those concerns by stopping only vehicles driven by persons of colour. Section 216(1) of the H.T.A. does not, in my view, authorize discriminatory stops even where there is a highway safety purpose behind those stops.

When I refer to improper police purposes, I include purposes which are illegal, purposes which involve the infringement of a person's constitutional rights and purposes which have nothing to do with the execution of a police officer's public duty. Officers who stop persons intending to conduct unauthorized searches, or who select persons to be stopped based on their sex or colour, or who stop someone to vent their personal animosity toward that person, all act for an improper purpose. They cannot rely on s. 216(1) of the H.T.A. even if they also have highway safety concerns when making the stop.

The police purposes, when effecting a stop and detention, must be ascertained from the evidence of the officers involved, the persons detained, and other evidence concerning the conduct of the stops. If the police routinely searched every vehicle stopped it would be easy to infer that one of the purposes behind the stops was to facilitate the conduct of unreasonable searches. Similarly, if only people of colour were stopped at a checkpoint, the inference could be made that the stop was discriminatory and, therefore, improper.

[81] Evidence of racial profiling is rarely proven by direct evidence as it is unlikely that an officer would admit that he or she was motivated by racial stereotypes. Evidence of racial profiling is generally proven from inferences drawn from circumstantial evidence. There may be a variety of factual indicators that can support the inference that police conduct was racially motived despite the existence of an apparent justification for the conduct. As noted by Morden J.A. in R. v. Brown (2003), 2003 52142 (ON CA), 64 O.R. (3d) 161 (Ont. C.A.), at para. 45:

Where the evidence shows that the circumstances relating to a detention correspond to the phenomenon of racial profiling and provide a basis for the court to infer that a police officer is lying about why he or she singled out the accused person for attention, the record is then capable of support a finding that the stop was based on racial profiling.

[82] The onus remains on the applicant to demonstrate that it was more probable than not that the real reason for the traffic stop was that the motorist was Black: see R. v. Brown, at para. 11.

[83] The applicants assert that when one looks at the reasons for the traffic stop and conduct of the officers during the stop there are a variety of indicators from which one can readily infer that the stop was racially motivated. The applicants submit that evidence for the reason for the stop may be called into question for several reasons. These reasons include:

1. A/S Robinson testified that it was his usual practice to look inside a vehicle. There is no basis to believe that he did not do so in this case as well.

2. There was no evidence of bad driving, aside from one movement in the lane. It did not even go over the white line. The vehicle did not speed or swerve.

3. PC French said that the A/S Robinson told him that the vehicle was weaving in and out of a lane or there was some sort of HTA offence that made him want to conduct the stop.

4. A/S Robinson did a rolling marker that drew the attention of other officers in the area in advance of the stop, signalling it was more than a routine HTA stop.

5. A/S Robinson said that he did not call for assistance prior to the rolling marker. The applicants submit that A/S Robinson put in a call for assistance prior to the stop which demonstrates this was more than a routine traffic stop.

[84] I will address each of these in turn.

1. A/S Robinson’s Reason for Stopping the Vehicle

[85] The applicants submit that A/S Robinson denied seeing the occupants of the vehicle because that would have meant that he knew they were Black prior to the traffic stop. This would allow him to deny that the stop was racially motivated. They note that it would have been totally contrary to his usual practice for him not to see the occupants of the vehicle.

[86] I am not prepared to reject A/S Robinson’s evidence that he did not see the occupants of the vehicle. His evidence was consistent regarding what he observed and his reasons for stopping the vehicle.

[87] A/S Robinson testified at the discovery that the vehicle was stopped at the light to his right and slightly behind him. He testified,

What I usually do is when you’re driving around you’re always looking and I like, if a car’s parked beside me or stopped beside me I like to look in see who’s there, what’s happening. Usually everyone is looking at us because we’re in a big white vehicle with lights on it. That just kind of, I just made a little mental note that it was a little bit odd but that in itself, wasn’t, I kind of dismissed it after that. When the vehicle when the light went green, I didn’t immediately and I just don’t, do that for safety reasons too, because a lot of people run red lights, I usually wait a second or two before I go through the green light. I allowed the vehicle to go ahead of me so I could take a look at the vehicle, take a look at the occupants take a look at whatever I can see, see anything. That’s when I noticed, or that’s when I observed the vehicle moving to the lane slightly. That’s when I made the decision to conduct a sobriety check on the vehicle.

[88] At the discovery, he was never asked if he actually saw inside the vehicle. When he testified on the application, he reiterated his evidence that it was his practise to look into the vehicle. He also testified that he let the vehicle pass him to look into it. He testified that he did not make an observation of the occupants of the vehicle prior to stopping it.

[89] A/S Robinson was forthright in his testimony that it was his usual practice to look into a vehicle when it was stopped beside him and that he tried to do so in this case. His ability to see in the car was limited because the vehicle did not stop beside him but rather was behind him in his periphery. He testified that he did not see the occupants prior to the stop. His evidence was not challenged on this point. While I recognize that it is difficult to raise challenges of racial profiling, he was not asked nor was any evidence called as to whether the windows on either car were opened, closed, or tinted, or what the lighting was like at that time of night, all of which may have affected or undermined his credibility.

[90] A/S Robinson was also consistent in his testimony regarding his reasons for stopping the vehicle, which were,

1. The area in which the vehicle was travelling,

2. The time of night,

3. The fact that the vehicle did not stop at the line at the traffic light but rather held back from the police cruiser, and

4. The vehicle moved in its lane in an unusual manner and touched the line but did not cross the line.

[91] I find that these reasons provide articulable cause for stopping the vehicle for a sobriety check.

1. The Lack of Bad Driving

[92] I also do not find that the fact that there was limited evidence of bad driving supports the applicants’ position that the stop was a ruse. A/S Robinson evidence regarding his reasons for deciding to stop the vehicle was clear and consistent. The veering in the lane was only one factor that he considered in determining whether to stop the vehicle. He agreed that the veering of the vehicle on its own may not have been enough, but that was not the only factor he considered. A/S Robinson also considered the time of night, the location, and the fact that the vehicle did not stop beside the police vehicle at the red light in determining that he was going to conduct a sobriety check on the driver of the vehicle.

2. Inconsistency Between PC French’s and A/S Robinson’s Evidence

[93] I do not find the fact that PC French testified that A/S Robison “advised that he had stopped the vehicle for the purpose of checking sobriety said there was some weaving in and out of a lane or some sort of HTA offence that made him want to do that” demonstrates that A/S Robinson was lying about the reason for the stop. As noted above, A/S Robinson’s evidence regarding the driving he observed was clear and consistent. In contrast, PC French’s evidence regarding what was said was vague and not very detailed. I find any inconsistency in their evidence to be of no consequence.

3. The “Rolling Marker” was Used to Signal this was More than a Routine Traffic Stop

[94] I also disagree with the applicants’ suggestion that the “rolling marker” was done to alert the other officers that the stop was more than just a traffic stop. A/S Robinson testified that the computers were slow and that he was using the rolling marker as part of a teaching moment. This made sense as he had a cadet with him that evening. He was supposed to train him. PC French testified that the computers were no slower than usual on that evening. This evidence did not undermine A/S Robinson’s evidence that the computers were slow.

4. Call for Assistance

[95] The applicants also suggest that A/S Robinson called for assistance prior to stopping the vehicle which is an indicia that the court can rely on in finding that was more than a routine traffic stop.

[96] I am not satisfied that A/S Robinson called for assistance prior to stopping the vehicle. I say this for several reasons.

[97] First, A/S Robinson observed the vehicle veer in the lane at 1:53 a.m. A/S Robinson’s evidence was that the distance from Cawthra Road to where the vehicle stopped was approximately two to three kilometers. P.C. Al-Jamal said she received the call at 2:03 a.m., which would be 10 minutes after the vehicle swerved. The vehicle was not speeding or doing anything out of the ordinary, so it should have taken less than 10 minutes to travel two or three kilometers.

[98] Second, the events noted by PC Al-Jamal when she arrived demonstrate that the discussion between the officers and Mr. Campbell-Noel had already been commenced from which I infer that the call was placed after the vehicle was stopped. PC Al-Jamal arrived at the scene of the traffic stop at approximately 2:04 a.m. The females were already present. She testified that “she believed there was a conversation between A/S Robinson and PC French and they said the driver may have been suspended.” She also referred to her notes in which she heard the following conversation: “driver was advised that the reasons for the traffic stop was to check for sobriety. Male Driver did not have ID and verbally identified himself as Earle Campbell.” It is unclear to me based on her evidence at what point she arrived on scene at the time Mr. Campbell identified himself or at the time of his arrest. Either way, it is reasonable to infer that she received the call for assistances after the vehicle was stopped.

[99] The inconsistency between PC Zara’s and PC Al-Jamal’s evidence with respect to timing of a call for assistance makes it difficult to determine at what point A/S Robinson made a call for assistance. It is unclear to me if they were referring to the same call or different calls for assistance. PC Zara testified that at approximately 2:06 a.m. A/S Robinson requested an additional unit on a traffic stop and there was no rush. PC Zara decided to attend. He also saw the two females and went to talk to them to ask them to step back. In contrast, PC Al-Jamal said she received the call for assistance at 2:03 a.m.

[100] Third A/S Robinson said he observed the two females come out of the building as PC French was conducting the check with respect to Mr. Campbell-Noel. Both PC Zara and PC Al-Jamal testified that the two females were present when they arrived.

[101] I find that the call for assistance happened shortly after the vehicle was stopped, although I cannot determine precisely what time. I also do not find that A/S Robinson was unduly escalating the situation by asking for assistance, given that the driver was being hostile and two females attended on scene that appeared to have some connection to the two males

5. Other Indicia to Consider

[102] The manner in which an officer deals with a driver and/or passengers in a vehicle may provide some indicators from which one may infer that the detention of the occupants was not for a legitimate purpose. For example, in R. v. Smith, 2015 ONSC 3548, 338 C.R.R. (2d) 1, a vehicle was stopped because the driver turned too quickly in front of a police officer, leading that police officer to believe that he was engaged in criminal activity. He was immediately detained, handcuffed, and then arrested for careless driving. The court found that the stop was racially motivated. Similarly, where officers use excessive force or respond to perceived danger with excessive force, this may lead to the inference that the stop was racially motivated: see Elmardy v. Toronto Police Services Board, 2017 ONSC 2074, 136 O.R. (3d) 483.

[103] Similarly, where all of the persons in the vehicle are asked for their identification and CPIC inquiries are made on all occupants in the car, this may be considered to be indicia, when looking at the totality of the circumstances, that the police were actually conducting a criminal investigation. Broad inquisitive questions asked by police that are not related to legitimate Highway Traffic Act concerns may also be indicia that the police are fishing for information for a criminal investigation: see R. v. Cartwright, 2017 ONSC 6858, 397 C.R.R. (2d) 41; and R. v. Grant.

[104] In this case, the conduct of A/S Robinson when he stopped the vehicle was consistent with it being a routine traffic stop and not an improper criminal investigation. A/S Robinson asked Mr. Campbell-Noel for his driver’s licence and insurance. He told him he was being stopped for a sobriety check. A/S Robison readily admitted that he did not ask Mr. Campbell-Noel any questions about drinking as he did not get that far, given the argument they were having about whether Mr. Campbell-Noel was required to identify himself. A/S Robinson did not arrest first and then ask questions. He asked questions related to his investigation into the sobriety of the driver. He did not ask unrelated questions, such as, is there anything in your possession that you should not have?

[105] Similarly, A/S Robinson made no effort to gather any information about the passenger, Mr. Willis. He did not request that Mr. Willis remain in the vehicle or provide identification. He did not ask Mr Willis any questions nor did he conduct a CPIC on Mr. Willis during the traffic stop.

[106] I do not find that A/S Robinson’s notes about Mr. Willis’ bag provide any evidence that the initial purpose of the stop was for an improper purpose. His notes, which were made after the fact, stated that he kept Mr. Willis’ bag because he “believe[d] possession of firearms unknown what is inside. Safety of community until investigation is complete.” The situation at the point that he was planning on seizing the vehicle was different from the time of the initial stop. When A/S Robinson asked Mr. Willis to get out of the car, he was concerned that something more was going on. He had just found approximately $3000 cash on Mr. Campbell-Noel in a situation where Mr. Campbell-Noel did not immediately stop for police and could not identify the owner of the vehicle. When the vehicle was stopped, two females arrived on scene who appeared to be associated to the two men. They were in a high-density area that also has a high level of criminal activity late at night. It is in that context that he made the note after the fact.

[107] I have taken into account the totality of the circumstances and recognize the difficulties in proving that an officer initiated a stop based on racial profiling. I am not satisfied on the balance of probabilities that the traffic stop was more likely than not the result of racial profiling or a ruse by the officer to conduct a criminal investigation.

Was Mr. Willis Detained?

[108] Mr. Willis was not physically detained. He was not told to remain in the car. The issue to be determined is whether he was psychologically detained. This is an objective analysis as explained by the Supreme Court of Canada in R. v. Grant, at para. 31:

This second form of psychological detention — where no legal compulsion exists — has proven difficult to define consistently. The question is whether the police conduct would cause a reasonable person to conclude that he or she was not free to go and had to comply with the police direction or demand. As held in Therens, this must be determined objectively, having regard to all the circumstances of the particular situation, including the conduct of the police. As discussed in more detail below and summarized at para. 44, the focus must be on the state conduct in the context of the surrounding legal and factual situation, and how that conduct would be perceived by a reasonable person in the situation as it develops.

[109] Mr. Willis submits that the fact that four police cruisers were on scene and that the vehicle was blocked in by police cruisers would result in a Black person feeling like they were detained. I am prepared to accept that a reasonable person in that situation would feel like they were required to remain in the car until told otherwise by the police but that does not determine whether his s. 9 Charter rights were breached. The detention must also be arbitrary.

[110] A/S Robinson had the lawful authority to pull over the vehicle to conduct a sobriety check. The brief detention of Mr. Willis flowed from the decision to pursue the Highway Traffic Act stop. Once Mr. Campbell-Noel was arrested, A/S Robinson went to the vehicle and told Mr. Willis to get out of the car. I do not find that Mr. Willis’ detention during the Highway Traffic Act stop was arbitrary: see R. v. Harris, 2007 ONCA 574, 87 O.R. (3d) 214, at paras. 23-27.

[111] Mr. Willis argues that he was arbitrarily detained when he was told to put the bag back in the car. That submission is not persuasive for two reasons. First, after the bag was put back in the vehicle, Mr. Willis started to leave. Second, Mr. Willis was not told that he had to remain, just that the bag had to remain; See also R v. Reid, 2019 ONCA 32 at para.40.

[112] I am not satisfied that Mr. Willis’ s. 9 Charter rights were violated.

Did the Search of the Vehicle Violate s. 8 of the Charter?

[113] At the start of this application, the issue of whether the applicants had standing to address the s. 8 Charter issue was raised. I heard submissions on this issue and gave a bottom line decision that Mr. Campbell-Noel had standing to raise the s. 8 Charter issue but reserved my decision with respect to Mr. Willis until after hearing all of the arguments. These are my reasons.

[114] Section 8 of the Charter provides that “[e]veryone has the right to be secure against unreasonable search or seizure”. As recently discussed by the Supreme Court of Canada in R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, there are two stages to the applicable analysis. First, the conduct or search must invade a person’s reasonable expectation of privacy in the subject matter of the search. Second, the manner of the execution of the search or seizure must be unreasonable.

[115] In this case, the onus rests on the applicants to establish that they had a reasonable expectation of privacy. The onus then shifts to the respondent to demonstrate that the warrantless search of the vehicle was reasonable.

Does Mr. Campbell-Noel have a Reasonable Expectation of Privacy in the Vehicle or the Items Seized from Within the Vehicle?

The Applicability of the Law

[116] The applicants submit that the recent Supreme Court of Canada decision in Jones changed the landscape when considering whether there is a reasonable expectation of privacy, and overrides the analysis in R. v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128. They submit that where the Crown seeks to assert that items seized or place searched belonged to the applicants, then a reasonable expectation of privacy has been made out and the applicants have standing to challenge the search.

[117] The Crown asserts that Jones slightly modified the old analysis. Where the Crown seeks to argue in its theory of the case that the matter searched or item seized belonged to the applicants, then the court may presume that the applicants have a subjective expectation of privacy in the items seized. The court still must consider the Edwards factors and consider the totality of the circumstances to determine if the expectation of privacy was reasonable.

[118] I do not agree with the applicants that where the Crown asserts that the applicants have an interest in the property, that this means that a reasonable expectation of privacy has automatically been established.

[119] In Jones, the Supreme Court of Canada held that when considering the subjective expectation of privacy, the appellant was entitled to rely on the Crown’s theory that it was the appellant who authored the text messages as opposed to having to testify that he authored the text messages to establish standing. As the court noted, to hold otherwise creates a catch-22 for the appellant as he was either forced to admit that he was the author of the text messages or forgo the ability to challenge the admission of the evidence at the trial proper.

[120] The court in Jones at para. 35 held that it is also necessary to consider whether the applicant’s subjective expectation of privacy is objectively reasonable in the totality of the circumstances. As the court noted, this was the focus in R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608.

[121] I agree with the respondent that if Jones changed anything in the s. 8 Charter analysis in relation to territorial searches, it is limited to how the subjective expectation of privacy is considered, as opposed to overriding the Edwards analysis. My view of the law is confirmed by jurisprudence decided subsequent to the Jones decision, including the recent Supreme Court of Canada decision in R. v. Reeves, 2018 SCC 56, 367 C.C.C. (3d) 129, at para. 28, where the court held:

In assessing whether a claimant has a reasonable expectation of privacy in an item that is taken, courts must consider “the totality of the circumstances” (Edwards, at para. 45). In particular, they must determine (1) the subject matter of the alleged seizure; (2) whether the claimant had a direct interest in the subject matter; (3) whether the claimant had a subjective expectation of privacy in the subject matter; and (4) whether this subjective expectation of privacy was objectively reasonable (Cole, at para. 40; R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at para. 11). The reasonable expectation of privacy standard is normative, rather than descriptive (Tessling, at para. 42; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 18; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 14). The question is whether the privacy claim must “be recognized as beyond state intrusion absent constitutional justification if Canadian society is to remain a free, democratic and open society” (R. v. Ward, 2012 ONCA 660, 112 O.R. (3d) 321, at para. 87, per Doherty J.A.). Further, the inquiry must be framed in neutral terms — “[t]he analysis turns on the privacy of the area or the thing being searched and the impact of the search on its target, not the legal or illegal nature of the items sought” (Spencer, at para. 36; see also R. v. Wong, 1990 56 (SCC), [1990] 3 S.C.R. 36, at pp. 49-50; Patrick, at para. 32).

[122] See also R. v. Le, 2018 ONCA 56, 402 C.R.R. (2d) 309.

[123] The importance of the subjective expectation element is attenuated in the s. 8 Charter analysis and therefore the evidentiary foundation required to establish that element is modest. The subjective expectation has never been a high hurdle: see R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 37. Given that the Crown’s theory is that the gun and drugs belong to the applicants, I am prepared to find that the applicants had a subjective expectation of privacy for the sake of the Charter argument.

[124] Edwards listed a number of factors that may be considered in determining whether there was a reasonable expectation of privacy. The subjective expectation of privacy is but one factor that may be considered; it is not the decisive factor, nor do I read Jones as making it the decisive factor. The factors include,

1. Presence at the time of the search;

2. Possession or control of the property or place searched;

3. Ownership of the property or place;

4. Historical use of the property or item;

5. The ability to regulate access, including the right to admit or exclude others;

6. The existence of a subjective expectation of privacy;

7. The objective reasonableness of the expectation of privacy.

Does Mr. Campbell-Noel have a Reasonable Expectation of Privacy in the Vehicle or the Items Seized from Within the Vehicle?

[125] The jurisprudence has held that drivers of motor vehicles have a reasonable expectation of privacy, albeit it is reduced given that driving is a highly regulated activity: see R. v. MacKenzie, 2013 SCC 50, [2013] S.C.R. 250, at para. 31.

[126] The Court of Appeal’s decision in R. v. Belnavis, 1996 4007 (ON CA), 29 O.R. (3d) 321 (Ont. C.A.) supports my view that Mr. Campbell-Noel, as the driver, had a reasonable expectation of privacy in the vehicle. In that case, Ms. Belnavis was stopped for speeding. The officer asked for Ms. Belnavis’ identification. She said she did not have it with her. She was then taken to the police cruiser. She advised police that the vehicle belonged to a friend but she did not provide a name. The officer suspected that the vehicle was stolen. While the officer waited to receive further information about the vehicle, he went back to the vehicle and spoke to the passenger sitting the back seat (which I will deal with when considering Mr. Willis). It was then that he observed three bags of clothing. The clothing had price tags on them. He placed Ms. Belnavis under arrest. The car was towed to the police station. Once at the police station, the officer went out and searched the trunk of the vehicle and found more bags of new clothing.

[127] The Court of Appeal held at para. 33 that in the totality of the circumstances, Ms. Belnavis had established a reasonable expectation of privacy in relation to the vehicle:

I am satisfied, on a consideration of the totality of the circumstances, that Ms. Belnavis established a reasonable expectation of privacy in relation to the Nissan. She was present when the search occurred, and had possession of and control over the vehicle. The evidence compels the conclusion that Ms. Belnavis had the owner's consent to operate it. As such, she could control access to the vehicle and exclude others from the vehicle. Control of access is central to the privacy concept: R. v. Edwards, supra, at pp. 147-48 S.C.R., pp. 151-52 C.C.C.; Rawlings v. Kentucky, 100 S.Ct. 2556 (1980), per Blackmun J. (concurring), at p. 2565. I am also satisfied, despite the reduced expectation of privacy which attaches to a motor vehicle (R. v. Grant, 1993 68 (SCC), [1993] 3 S.C.R. 223 at p. 241, 24 C.R. (4th) 1, at p. 18), that it is reasonable for a person who is driving a motor vehicle with the owner's consent to expect that agents of the state cannot invade that vehicle absent a demonstrable state interest which is sufficiently compelling to override the driver's entitlement to maintain the privacy of the vehicle. To deny Ms. Belnavis a privacy interest in the vehicle would, in my view, ". . . see the amount of privacy and freedom remaining to citizens diminished to a compass inconsistent with the aims of a free and open society": R. v. Wong, 1990 56 (SCC), [1990] 3 S.C.R. 36, at p. 46, 60 C.C.C. (3d) 460, at p. 478, per La Forest J.

[128] By the time the Supreme Court of Canada heard the appeal, the only issue was whether the passenger, Ms. Lawrence, had a reasonable expectation of privacy.

[129] The present case is similar to Belnavis. Mr. Campbell-Noel was driving the vehicle when police stopped it. He was in lawful possession of the vehicle as a friend loaned it to him and he had the keys. He could therefore regulate who had access to the vehicle.

[130] The Crown argues that Mr. Campbell-Noel did not have a reasonable expectation of privacy in the vehicle because he was a suspended driver. She submits that as a suspended driver, he was not authorized to drive the car. The police therefore had the authority to seize the vehicle and the authority to conduct an inventory search.

[131] The Crown relies on the decision of R. v. Balendra, 2016 ONSC 5143, 363 C.R.R. (2d) 345 in support of its position. That case is distinguishable on its facts from the case at bar. In R. v. Balendra, the judge found that the driver had no reasonable expectation of privacy in the vehicle in large measure because there was no evidence that the driver had the consent of the owner to operate the vehicle. The judge recognized at para. 44 that,

Generally, individuals can have a reasonable expectation that state agents cannot enter a vehicle driven by them in order to examine its contents: R. v. Belnavis, 1996 4007 (ON CA), [1996] O.J. No. 1853; (1996) 29 O.R. (3d) 321 (Ont. C.A.); confirmed 1997 320 (SCC), [1997] 3 S.C.R. 341. However, this was not a case, such as Belnavis, where there is any evidence that the driver had the consent of the owner to operate the vehicle, which in Belnavis was found to give rise to the driver’s ability to control who entered or who was excluded from the vehicle. Such control was considered to be central to the privacy concept: para. 31 (C.A.). [Emphasis added]

[132] It was in this context that the trial judge also considered the fact that the driver was a suspended driver. As the trial judge held at para. 45:

Applying the Edwards framework to the facts surrounding the vehicle in this case, the applicant cannot establish that he had a reasonable expectation of privacy in relation to that location. Of central importance to this case, the applicant’s suspended status as a driver means that he can have no expectation of privacy in respect of a vehicle that he is without lawful status to be operating. What he can expect, in fact, is that on discovery of his presence in and operation of a vehicle, he will be immediately stopped from having any possession of or control over that vehicle in accordance with the provisions of the Highway Traffic Act. His control is fleeting at best. The fact that he holds the keys does not cloak him with the authority to control who enters or uses that vehicle. Even more significantly, the evidence establishes that the applicant was not the owner of the vehicle. […] As the party with the onus to establish standing, the applicant could have introduced contradictory evidence about either his ownership of the vehicle, or authorization given to him by the registered owner to operate the vehicle, the latter of which would have gone some distance toward establishing his possession or control of the vehicle. There is no such evidence. The evidence provided by Officer Humber was that it was registered as a stolen vehicle. No contradictory evidence was advanced by the applicant. There is no evidence to establish that the applicant had any ability to regulate access to the van. [Emphasis added.]

[133] The facts in the present case are different. Mr. Campbell-Noel had consent to drive the vehicle.

[134] The fact that there is legislation that permits police to seize a vehicle where the driver is suspended is what can make the subsequent seizure and search of the vehicle lawful. The fact that a person is driving while under suspension is a factor to consider as it relates to the person’s connection to the car. It is not determinative of whether there is a reasonable expectation of privacy.

[135] I also note that while there are laws that permit police to seize a vehicle, it is not mandatory. The ability to seize a vehicle should not result in the automatic finding that suspended drivers do not have a reasonable expectation of privacy because they are not authorized to drive the vehicle. As noted by A/S Robinson, he had many options with respect to how to deal with the vehicle. He could have contacted the owner of the vehicle. He could have asked the passenger to drive it. As A/S Robinson testified, it was a fluid situation and things were moving quickly.

[136] I am also prepared to assume that Mr. Campbell-Noel had a subjective expectation of privacy in the items located in the car as it is conceded by the Crown that he was in possession and control of those items.

[137] For these reasons, I find that Mr. Campbell-Noel had a reasonable expectation of privacy in the vehicle and, as a result, the items located in the vehicle.

Did Mr. Willis have a Reasonable Expectation of Privacy in the Vehicle?

[138] With respect to Mr. Willis, the passenger, I conclude that he did not have a reasonable expectation of privacy after having considered the totality of the circumstances. Again, the factual situation in this case is similar to Belnavis where the Supreme Court of Canada found that the passenger of the vehicle did not have a reasonable expectation of privacy. As the court stated at para. 22:

The approach outlined in Edwards makes it clear that the question as to whether a passenger will have a reasonable expectation of privacy in a vehicle will depend upon the totality of the circumstances. All of the relevant facts surrounding a passenger’s presence in the vehicle will have to be considered in order to determine whether the passenger had a reasonable expectation of privacy. In this case, although Lawrence was present at the time of the search, there are few other factors which would suggest she had an expectation of privacy in the vehicle. First, her connection to the vehicle was extremely tenuous. She did not own the vehicle, she was merely a passenger in a car driven by a friend of the owner of the vehicle. There was no evidence that she had any control over the vehicle, nor that she had used it in the past or had any relationship with the owner or driver which would establish some special access to or privilege in regard to the vehicle. Lawrence did not demonstrate any ability to regulate access to the vehicle.

[139] In this case, there was no evidence regarding how long Mr. Willis was in the vehicle. He did not own the vehicle. He was merely a passenger. There is no evidence of what, if any, connection he had to the owner of the vehicle or to Mr. Campbell-Noel. There was also no evidence that he had any control over the vehicle.

[140] In finding that Ms. Lawrence, the passenger, did not have a reasonable expectation of privacy in Belnavis, the Court of Appeal found that Ms. Lawrence had not established that she had a subjective expectation of privacy in the vehicle. As the court noted at paras. 41-42:

Lawrence's failure to demonstrate a reasonable expectation of privacy in the vehicle does not extinguish her privacy claim in its entirety. She could still have a reasonable expectation of privacy with respect to the things seized. There is no basis for that claim in respect of the matters seized from the trunk of the car or the purse in the front seat. Ms. Lawrence did, however, claim to own the clothing in one of the three bags found in the back seat of the car. She did not identify which bag was hers. Both Pugliese and Edwards recognize that an "ownership" claim in respect of the things seized, even in relation to contraband, may establish a reasonable expectation of privacy in relation to that property. On the evidence adduced on the voir dire, the trial judge could have found that Lawrence's assertion of ownership gave her a privacy interest in the contents of one of the bags.

A finding that Lawrence had a reasonable expectation of privacy with respect to the contents of one of the bags would not, standing alone, permit Lawrence to clear the first hurdle of the s. 8 inquiry. As Lawrence's claim to a reasonable expectation of privacy in relation to the contents of the bag rested on her asserted ownership of the material in one of the bags, it was incumbent upon her to show that she claimed an ownership interest in a particular bag and that material from that bag was offered in evidence in support of one or more of the charges in the information. She did neither, no doubt because she claimed a privacy interest in the entire vehicle. On this record, it cannot be said which bag Lawrence claimed as hers, nor whether any of the charges referred to property from the bag claimed by Ms. Lawrence. She has failed to demonstrate a reasonable expectation of privacy in respect of any of the merchandise referred to in the charges set out in the information.

[141] Assuming that Jones requires the court to find that Mr. Willis had a subjective expectation of privacy in the items in the vehicle, is that sufficient to find that Mr. Willis had a reasonable expectation of privacy in the vehicle or the items in the vehicle, given the totality of the circumstances? I do not find, given the totality of the circumstances, that this factor is sufficient to tip the scales to find that Mr. Willis had a reasonable expectation of privacy with respect to the vehicle. As noted above, there is evidence that he did not have any control of the vehicle or who accessed it. There was a complete lack of evidence with respect to Mr. Willis’ connection to the vehicle.

[142] Similarly, I cannot find, in the totality of the circumstances, that Mr. Willis had a reasonable expectation of privacy in the items seized from the vehicle. Accepting that the applicant has established a subjective expectation of privacy, this subjective expectation of privacy was not reasonable in the circumstances. The console was not locked. The bags were not locked. There was no evidence that he had any control over the bags in the car. After considering all of the relevant factors under the Edwards analysis, I find he did not have a reasonable expectation of privacy in the items seized in the car. Therefore, I need not consider whether the search of the vehicle violated Mr. Willis’ s. 8 Charter rights.

Was the Search of the Vehicle Reasonable?

[143] This was a warrantless search of the vehicle and therefore the onus is on the Crown to demonstrate that the search was reasonable.

[144] When dealing with warrantless searches, the Crown bears the onus to establish on the balance of probabilities that (i) the search was authorized by law; (ii) the law is reasonable and (ii) the search was carried out in a reasonable manner.

[145] The Crown relies on the common law authority to search the vehicle incident to Mr. Campbell-Noel’s arrest for driving while under suspension.

[146] The issue to be determined is whether the search incident to arrest was reasonable. As noted in R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51, at para. 15, courts have a duty to ensure that a search incident to arrest is conducted in pursuit of a legitimate state interest:

Since search incident to arrest is a common-law power, there are no readily ascertainable limits on its scope. It is therefore the courts’ responsibility to set boundaries which allow the state to pursue its legitimate interests, while vigorously protecting individuals’ right to privacy. [Emphasis added]

[147] The court also held that the authority to search is not the result of a reduced expectation of privacy of the arrested individual. Rather, it arises out of a need for law enforcement authorities to gain control of things or information that outweighs the individual’s interest in privacy.

[148] There are three main purposes of a search incident to arrest: (1) to ensure the safety of the police and public, (2) to protect evidence from destruction at the hands of the arrestee, and (3) the discovery of evidence that can be used at trial.

[149] As explained in Caslake, the search must be “truly incidental” to the arrest, meaning the police must be attempting to achieve some valid purpose connected to the search: para. 19. It is a subjective and objective inquiry:

19 The restriction that the search must be “truly incidental” to the arrest means that the police must be attempting to achieve some valid purpose connected to the arrest. Whether such an objective exists will depend on what the police were looking for and why. There are both subjective and objective aspects to this issue. In my view, the police must have one of the purposes for a valid search incident to arrest in mind when the search is conducted. Further, the officer’s belief that this purpose will be served by the search must be a reasonable one.

20 To be clear, this is not a standard of reasonable and probable grounds, the normal threshold that must be surpassed before a search can be conducted. Here, the only requirement is that there be some reasonable basis for doing what the police officer did. To give an example, a reasonable and probable grounds standard would require a police officer to demonstrate a reasonable belief that an arrested person was armed with a particular weapon before searching the person. By contrast, under the standard that applies here, the police would be entitled to search an arrested person for a weapon if under the circumstances it seemed reasonable to check whether the person might be armed. Obviously, there is a significant difference in the two standards. The police have considerable leeway in the circumstances of an arrest which they do not have in other situations. At the same time, in keeping with the criteria in Cloutier, there must be a “valid objective” served by the search. An objective cannot be valid if it is not reasonable to pursue it in the circumstances of the arrest. [Emphasis added]

[150] As held by Doherty J.A. in R. v. Lim (1990), 1 C.R.R. (2d) 136, at para. 50, “in considering whether a search is in fact an incident of arrest, one must consider the police motives for the timing and place of the arrest and the relationship in time and place between the arrest and the search”. For example, as stated by Doherty J.A. in Belnavis, arresting a person for outstanding traffic fines did not authorize the search of a trunk. As he noted, “[t]he authority to search as an incident of the arrest does not extend to searches undertaken for purposes which have no connection to the reason for the arrest.”

[151] PC French did not testify that he searched the vehicle incident to arrest due to officer safety concerns. Rather, his evidence was that he was searching the vehicle to look for Mr. Campbell-Noel’s driver’s licence to seize and return it to the MTO. He testified, “it’s not uncommon by any means for suspended drivers to have a least one copy of the driver’s licence still on them.” He further testified that, “people lie to me all the time. It’s not uncommon for suspended drivers to have their licence presented as valid identification”. Based on his previous experience, he stated this happens “all the time,” including “last Tuesday”.

[152] The first place he searched for the licence was the console between the two front seats. He explained that it seemed like the most likely spot where it would have been, “sitting right there beside the driver, common reach, people normally keep small things like that there”. When he lifted up the center console, he immediately observed a revolver. At that point, he yelled to arrest the passenger.

[153] The applicants submit that PC French is lying when he states that he was looking for Mr. Campbell-Noel’s driver’s licence. They submit that this was really a fishing expedition in furtherance of a criminal investigation. They point to the fact that PC French did not wait until A/S Robinson had completed his search of Mr. Campbell-Noel, nor did he call MTO to see if the driver’s licence was turned in.

[154] I accept PC French’s evidence that he searched the vehicle to look for the driver’s licence. He testified in a candid and forthright manner. He was unshaken in his evidence. He explained why he was searching for the driver’s licence and explained why he looked in the console. He believed that he was justified in searching the vehicle to look for the licence to return it to the MTO. He was also clear in his evidence that that a search incident to arrest does not permit an officer to search carte blanche for any criminal activity. He believed looking for the licence in the console was a proper search incident to arrest.

[155] Despite PC French’s subjective believe, I do not find that the search of the vehicle was reasonable as the search was not “truly incidental” to the arrest. PC French did not conduct the search for officer safety reasons. Therefore, the only basis to search was to prevent the destruction of evidence or to discover evidence that could be used at the accused’s trial.

[156] PC French admitted that he did not require the driver’s licence to charge Mr. Campbell-Noel with driving while under suspension. It was also not evidence that was required to prove the offence. Mr. Campbell-Noel provided his name and date of birth and PC French was satisfied that Mr. Campbell-Noel was being truthful, as the photograph from the MTO search depicted Mr. Campbell-Noel. It was on that basis that PC French had reasonable and probable grounds to advise A/S Robinson to arrest Mr. Campbell-Noel for driving while under suspension. The search was not truly incidental to the arrest.

[157] This case is distinguishable from the situation where a driver fails to identify him or herself as required by the Highway Traffic Act. In that situation, a search of the vehicle may be reasonable as discussed in in R. v. Caprara (2006), 2006 18518 (ON CA), 211 O.A.C. 211 where the Court of Appeal for Ontario held at para. 9:

We reject the appellant’s argument that the search for identification evidence was unnecessary because the police already knew his identity. The trial judge made no such finding. On the contrary, she found that although the police “would have been quite certain [who the appellant was]”, they were not sure of his identity and in the words of Sergeant Nichol, this was “not a guessing game”. Likewise, we reject the appellant’s alternate submission that the police had no reasonable basis for thinking that they might find identification evidence in the vehicle. In our view, it was perfectly reasonable for them to think that there might be a wallet, a briefcase or perhaps a cardholder in the car containing evidence of the appellant’s identity. Furthermore, the area in which the drugs were found (around the floor mat underneath the armrest that separated the two front seats) was one where a wallet or cardholder could reasonably be expected to have been located.

[158] Moreover, the fact that A/S Robinson testified that he was going to seize the vehicle and conduct an inventory search does not assist in determining if the search incident to arrest conducted by PC French was reasonable in the circumstances. There was no evidence before me that PC French’s intention was to conduct an inventory search or that he had a dual purpose for the search. There was no evidence that A/S Robinson instructed PC French to conduct the search. As such, when considering the purpose or motivation of the search that was conducted, A/S Robinson’s intention did not form the basis to conduct the search. A/S Robinson’s evidence that he was seizing the vehicle and intended to tow it, which would have resulted in an inventory search may be relevant to the “discoverability of the evidence” under s. 24(2) Charter analysis, but it not relevant in determining if the search was reasonable.

[159] Ultimately, I find that the search conducted by PC French was not reasonable in all of the circumstances and therefore violated Mr. Campbell-Noel’s s. 8 Charter rights.

Were the Applicants Denied their Right to Counsel?

[160] Counsel for the applicants did not focus extensively on this issue when questioning the witnesses or in their submissions. Neither Mr. Campbell-Noel nor Mr. Willis made any statements to police prior to speaking with counsel. Counsel raise this issue to support their argument that there was a pattern of improper police conduct, such that the evidence should be excluded under s. 24(1) of the Charter.

[161] Section 10(b) of the Charter states that “[e]veryone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right”.

[162] Section 10(b) of the Charter imposes three obligations on the police. Firstly, the police must inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel. Second, if the detainee indicates a desire to exercise this right, the police must provide the detainee with a reasonable opportunity to exercise this right. Third, police must refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity to exercise that right: see R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 29.

[163] In R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, the Supreme Court of Canada held that the phrase “without delay” in s. 10(b) of the Charter requires that police comply with the three obligations “immediately”: para. 2. As explained in Suberu, acting immediately is required to address concerns over compelled self-incrimination and interferences with individual liberty that are triggered as soon as a citizen is detained or arrested. The Supreme Court held, at para. 42, that the immediacy of the obligation cast upon the police is subject only to “concerns for officer or public safety,” or reasonable limits that are prescribed by law and justified under s. 1 of the Charter.

[164] The limited nature of the exception to the immediacy of the right to counsel to accommodate concerns for officer or public safety that were expressed in R. v. Suberu was echoed by echoed by Wilson J. in R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140 where she stated, at pp. 1163-1164:

Section 10(b) also instructs the police to inform a detainee of his or her rights to counsel “without delay”. As I have stated elsewhere, the phrase “without delay” does not permit of internal qualification … As I pointed out in R. v. Jacoy and R. v. Strachan, the phrase does not mean “at the earliest possible convenience” or “after police get matters under control”, or even “without reasonable delay”; to which I add here that “without delay” likewise does not mean “after police have had a chance to search the suspect”. In R. v. Strachan, I suggested … that there may be “situations in which the police for their own safety have to act in the heat of the moment to subdue the suspect and may be excused for not pausing to advise the suspect of his rights and permit him to exercise them ....” In my view, time spent in legitimate self-protection is not an example of the “delay” which has to be justified within a s. 10(b) analysis. The police are not deliberately forestalling advising a suspect of his or her s. 10(b) rights when they could be going ahead. They are not expected to go ahead with undue risk to their own lives or safety. However, there was no suggestion in the present case that the police did not inform the appellant of his right to counsel upon detention because of an apprehension of immediate danger. The appellant was not violent or obstructive and the police do not appear to have suspected him of possessing a weapon. [Emphasis added]

[165] There is a line of authority that states that police are not required give a detained person his or her s. 10(b) Charter rights during a brief lawful Highway Traffic Act stop. It is a justified limitation under s. 1 of the Charter. As explained by Doherty J.A. in Harris, at para. 47:

…it was accepted at trial that the police are not required to give a detained person his s. 10(b) rights during a brief lawful Highway Traffic Act roadside stop. That concession was not qualified on appeal. I think the concession is consistent with those cases that hold that the exercise of the rights guaranteed by s. 10(b) is incompatible with the brief roadside detention contemplated by a stop made for road safety purposes: see R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3, [2005] S.C.J. No. 37, 196 C.C.C. (3d) 481; R. v. Smith (1996), 1996 1074 (ON CA), 28 O.R. (3d) 75, [1996] O.J. No. 372, 105 C.C.C. (3d) 58 (C.A.); R. v. Saunders, 1988 197 (ON CA), [1988] O.J. No. 397, 41 C.C.C. (3d) 532 (C.A.).

[166] I agree with counsel for Mr. Campbell-Noel that the police violated Mr. Campbell-Noel’s s. 10(b) Charter rights as he was not immediately advised of his right to counsel when he was arrested for driving while under suspension.

[167] Mr. Campbell-Noel could have been advised of his s. 10(b) Charter rights by either A/S Robinson or by PC Al-Jamal, who was assisting him. A/S Robinson’s testified that this was a Highway Traffic Act investigation when he arrested Mr. Campbell-Noel and commenced a search for security reasons. PC Al-Jamal assisted him in the search. Mr. Campbell- Noel was handcuffed at some point during the search. A/S Robinson testified that once he found the cash on Mr. Campbell-Noel, things were changing and he was getting concerned and wanted to secure the area. He left and asked Mr. Willis to get out of the car. I understand the officer’s concerns, and that things were unfolding, however, at this point there were other officers on scene, including PC Al-Jamal who was standing with Mr. Campbell-Noel. There was no reason why PC Al-Jamal could not have been instructed to advise Mr. Campbell-Noel of his rights to counsel. As A/S Robinson testified this was still an HTA investigation at this point.

[168] Mr. Campbell-Noel’s s. 10(b) Charter rights were breached during the period he was arrested for driving while under suspension until the time he was arrested for possession of a firearm and read his rights to counsel. The exact time between Mr. Campbell-Noel’s arrest for the two charges is not clear. It can be inferred from the evidence that it was less than six minutes as PC Al-Jamal testified that she arrived on scene at 2:04 a.m. and Mr. Campbell-Noel was arrested at 2:10 a.m. for the firearm offence. On the evidence of PC Zara, it would be less time as he testified that he received the call for assistance at 2:06 a.m. and arrived shortly thereafter. When he arrived, he dealt with the two females and then he saw the driver being placed under arrest.

[169] Once Mr. Campbell-Noel was arrested for possession of the firearm at 2:10 a.m., he was advised of his rights to counsel. Counsel does not dispute that he was given the opportunity to contact his counsel of choice. I agree.

[170] Counsel for Mr. Willis argued that Mr. Willis’ s. 10(b) Charter rights were violated as he was arrested at 2:08 a.m. but did not speak to counsel of his choice for 3.5 hours. I do not find that his s. 10(b) Charter rights were violated. Police properly advised him of his right to counsel and he asked to speak to a particular lawyer. Police ensured that counsel was contacted in a timely manner. Mr. Willis was arrested at 2:08 a.m. for the firearm charges. PC Newton took possession of Mr. Willis and took him back to his cruiser and read Mr. Willis his rights to counsel and cautioned him. Mr. Willis indicated that he wished to speak to Kim Schofield. Mr. Willis was then taken to the police station and arrived there at 2:39 a.m. Police contacted Ms. Schofield at 2:50 a.m. and a message was left for her. It is agreed that counsel returned the original message left by PC Newton and Mr. Willis was provided with an opportunity to speak to counsel. He was not questioned prior to having spoken to counsel.

Conclusions with Respect to Charter Violations

[171] For the reasons outlined above, I find that Mr. Campbell-Noel’s s. 8 and s. 10(b) Charter rights were violated and it is therefore necessary to consider whether the evidence should be excluded as against him pursuant to s. 24(2) of the Charter.

[172] With respect to Mr. Willis, I find none of his Charter rights were violated and therefore it is not necessary to consider whether the evidence should be excluded pursuant to s. 24(2) of the Charter.

Section 24(2) of the Charter

Governing Principles

[173] Section 24(2) of the Charter provides that where,

…a court concludes that evidence was obtained in a manner that infringes or denies any rights or freedoms, guaranteed by the Charter, the evidence shall be excluded if it is established that, having regard to all of the circumstances, that the admission the evidence in the proceedings would bring the administration of justice into disrepute.

[174] In considering whether the evidence “was obtained in a manner” that infringes the Charter, the court applies a generous approach and considers the entire “chain of events” between the police and the accused. The connection between the evidence and the breach may be “causal, temporal or contextual, or any combination of these three connections”: see R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561.

[175] The Supreme Court of Canada in Grant at para. 71 held that the court must assess the effect of admitting the evidence on society’s confidence in the administration of justice having regard to:

a) The seriousness of the Charter-infringed state conduct;

b) The impact of the breach on the Charter-protected interests of the accused; and

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

[176] As the Supreme Court of Canada made clear in Grant and Harrison, evidence cannot be admissible solely on the ground that the offence is serious and the evidence is reliable and central to the Crown’s case. Most recently, the Court of Appeal of Ontario, in R. v. Omar, 2018 ONCA 975 held at para. 56 that “there is no “firearms exception” requiring that guns obtained in breach of Charter rights be admitted into evidence.” The test for considering whether to exclude evidence obtained contrary to the Charter remains the same. The court must bear in mind the long-term and prospective repute of the administration of justice, focusing less on the particular case than on the impact over time of admitting the evidence obtained by infringement of the constitutionally protected rights of the accused.

[177] Doherty J.A., explained the tension between the three Grant factors in R. v. McGuffe, 2016 ONCA 365, 131 O.R. (3d) 643, at paras. 62-63 as follows:

The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society’s interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case: see R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 33-34.

[63] In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence: see e.g. Harrison, at paras. 35-42; Spencer, at paras. 75-80; R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241, at paras. 75-103; Aucoin, at paras. 45-55. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: see e.g. R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 81-89; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 98-112. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence: see e.g. Grant, at para. 140.

[178] The tension between the Grant factors was also recently discussed by Doherty J.A. in in R. v. Le, at para. 151:

What the jurisprudence under s. 24(2) of the Charter recognizes is the problematic nature of the Grant calculus. The relevant age-old philosophical question is this: Do the ends justify the means? The usual answer is that bad means undermine good ends. The answer often yielded by the Grant calculus is this: Sometimes the achievement of a good end can retrospectively justify bad means. This tension is particularly pronounced in the case of guns obtained as a result of Charter-infringing police conduct. For instance, in Grant, the Supreme Court of Canada admitted a firearm. In Paterson, the majority excluded one. As it excluded the conversations in Marakah.

[179] In considering the analysis under s. 24(2) of the Charter, it is also appropriate for judges to reflect on the limits of their own experiences. As noted by Binnie J. in Grant and recently discussed by Sharpe J. in Omar at paras. 58-59:

[58] However, the limited perspective of appellate judges ultimately cuts both ways in s. 24(2) cases. As Binnie J. recognized in his concurring opinion in Grant, visible minorities and marginalized people disproportionately experience “unjustified ‘low visibility’ police interventions in their lives”: at para. 154. Appellate judges may lack direct experience of such police interventions. The limits of the judicial perspective also require judges to recognize that many unlawful police detentions and searches never come before the courts. As the Supreme Court explained in Grant, at para. 75:

It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge.

Placing excessive weight on the fact that a firearm was found in a particular case before the court risks neglecting the reality that many cases of unlawful detentions and searches do not produce incriminating evidence.

[59] These factors require that judges be conscious of how admitting evidence in cases of such unjustified police interventions could affect the long-term repute of the justice system from the perspective of “long-term community values”: R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, at p. 283.

[180] After giving careful consideration to the facts in the case, the breaches involved and the principles set out in the jurisprudence, I have am satisfied that a proper balancing of the Grant factors in this case favours inclusion of the evidence for the reasons set out below.

Seriousness of State Misconduct

[181] This factor involves a determination as to whether the admission of the evidence would send a message to the public that courts condone serious state misconduct. Inadvertent or minor violations may minimally undermine public confidence in the rule of law. In contrast, wilful or reckless disregard for Charter rights or egregious conduct will “’inevitably’ have a negative effect and risk bringing the administration of justice into disrepute”: R. v. Harris, at para. 95. As noted in Grant, at para. 72, “[t]he more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to disassociate themselves from that conduct…”

[182] PC French subjectively believed he had a basis to search the vehicle. He was clear and unshaken in his evidence regarding his basis for the search. In his mind, it was common for persons to lie about not having identification on their persons. He disagreed with the assertion put to him that he viewed a search incident to arrest as providing the ability to search for any criminal activity. He believed searching for the driver’s licence was a proper exercise of his powers to search incident to arrest. For the reasons outlined above, I found that this belief was not reasonable in all of the circumstances and therefore the search was not “truly incidental” to the arrest. I do not find however, that he acted in bad faith when he conducted the search. Where he looked for the identification was a reasonable place for the identification to be located; see Caprara, supra at para. 9.

[183] As recently noted in Omar at para. 46, the absence of bad faith does not equate to good faith: “claims of good faith should be rejected if based on ignorance or an unreasonable application of established legal standards.”

[184] In this case the officer exceeded the boundaries and conducted an unreasonable search incident to Mr. Campbell-Noel’s arrest for driving while under suspension. I do not find that it was a deliberate effort to breach Mr. Campbell-Noel’s rights. As noted in Caslake, “there is no readily ascertainable limits on its scope”. That is why courts must set boundaries to protect Charter rights and allow the state to pursue legitimate interest. I found that the search was not “truly incidental” in this case as police had grounds to believe that Mr. Campbell-Noel was who he said he was. However, this issue does not appear to have been litigated before. Counsel were unable to provide me with any jurisprudence that has considered this issue. The only example provided was Caprara. In that case, the trial judge found that police were not satisfied with the identification of the driver of the vehicle. In those circumstances, the Court of Appeal for Ontario held that a search of a vehicle incident to arrest was reasonable. In all of the circumstances, I do not find the actions of PC French egregious. He conducted what he thought was a lawful search in a reasonable manner by looking for the identification in a location where, in his experience, it was commonly found.

[185] This case is distinguishable from Harrison in which the majority of the Supreme Court of Canada held the breaches were significant. In that case, police stopped a vehicle without any articulable cause. The officer asked for identification of both parties in the car and then determined that the driver’s licence was suspended. He then searched the vehicle “ostensibly” for the missing driver’s licence, beginning his search in the rear cargo area of the SUV, which contained two cardboard boxes that were taped shut. He then asked if there were drugs in the boxes and the occupants said yes. The court also held that the officer’s evidence at trial was misleading.

[186] In this case, there was a lawful basis to stop the car. There was also a lawful basis to arrest Mr. Campbell-Noel for driving while under suspension. PC French did not conduct a wide-ranging search of the vehicle. He looked in a reasonable location for the identification. I did not find PC French’s evidence misleading. While the breach in this case is serious, it is not as significant as what was found in Harrison.

[187] I also do not accept the applicants’ submission that the second search of Mr. Campbell-Noel was indicative of police misconduct. The initial search was done for the purpose of ensuring officer safety. It was a cursory search. The second search was done after Mr. Campbell-Noel was arrested for drug offences. The police were entitled to conduct a more thorough search to see if there was further evidence related to the narcotic offences on Mr. Campbell-Noel’s person.

[188] While I found that police should have advised Mr. Campbell-Noel of his rights to counsel upon his arrest for driving while under suspension, I do not find that it was a deliberate or flagrant breach. It is more of a technical breach. A/S Robinson could have asked PC Al-Jamal to provide Mr. Campbell-Noel with his rights to counsel while he secured the scene to investigate. In coming to this conclusion that this was not a flagrant breach, I have considered the fact that the police complied with s. 10(a) of the Charter and immediately advised Mr. Campbell-Noel that he was being arrested for driving while under suspension. The delay in providing his rights to counsel was short. Police also properly advised him of his rights to counsel in relation to the other offences. Police made prompt efforts to allow Mr. Campbell-Noel to contact counsel and the police did not attempt to illicit any incriminating information from him prior to him speaking with counsel.

[189] Moreover, I am satisfied that the brief delay was motivated by A/S Robinson’s desire to secure the scene as events were unfolding and he was getting concerned. This was a dynamic process. Things were changing quickly. A/S Robinson explained that he was getting concerned once he found the cash. He testified that in his experience, when people that have that amount of cash on them, there is a likelihood that they are involved in criminal activity and that may involve weapons. He also noted there were officers and civilians present. He had not confirmed the driver’s identification and had not confirmed whether the possession of the vehicle was authorized. There were two females that came out of the building that seemed to be related to the two males and he was in a high density, high crime neighbourhood. In all of those circumstances, he delayed giving Mr. Campbell-Noel his rights to counsel.

[190] Counsel also seemed to suggest that I could take into account the seizure of the cell phone from the female who was present. I do not think it is a relevant factor in this case. Any Charter breached alleged with respect to the seizure of the phone from the female relates to her rights and not the applicants. The applicants have no standing to raise this issue as a potential Charter breach.

[191] In considering the seriousness of the breaches, it is not the number of breaches, but the nature of the offending conduct that is important: see Harris, at para. 54. When viewing the s. 8 and s. 10(b) Charter breaches cumulatively, they are not insignificant but are also not at the highest end of the spectrum. They were not deliberate nor was there a flagrant disregard for Mr. Campbell-Noel’s Charter rights. Although it is a close call, I am not satisfied that the breaches are sufficiently egregious to find that this factor should favour exclusion of the evidence.

Impact of the Breach

[192] The impact of the breach on the accused requires an evaluation of the extent to which the breach actually undermines the Charter protected interest that was infringed. As noted in Grant, the impact of the Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused’s Charter rights, the greater risk that the admission of the evidence may signal to the public that Charter rights are of little actual value to the individuals.

[193] The impact on the applicant’s right to privacy as a result of the search of the vehicle is not at the high end of the spectrum and therefore is not as significant a breach involving the search of a home. Mr. Campbell-Noel had a very low expectation of privacy in the motor vehicle, particularly as it was a borrowed vehicle. As noted by the Supreme Court in Belnavis at para. 39:

A person can expect that his home can and should be a safe castle of privacy. A person cannot possibly have the same expectation of a vehicle. Vehicular traffic must be regulated, with opportunities for inspection to protect public safety. A dangerous car is a threat to those on or near our roads. The reasonable expectation of privacy in a car must, from common experience and for the good of all, be greatly reduced. The high expectation of privacy attaching to the home may well extend to an attached garage, but it should not extend to the car within when it leaves the premises.

[194] Discoverability of the evidence is also a factor to consider in assessing the impact of the Charter breach, as affirmed by the Supreme Court of Canada in Grant. However, as noted in R. v. Cote, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 70:

While discoverability may still play a useful role in the s. 24(2) analysis, it is not determinative. A finding of discoverability should not be seen as necessarily leading to admission of evidence. Nor should courts engage in speculation. As stated in Grant, where it cannot be determined with any confidence whether evidence would have been discovered in the absence of the Charter breach, discoverability will have no impact on the s. 24(2) inquiry. [Emphasis added]

[195] The Crown argued that the evidence would have been discoverable as A/S Robinson testified that he was going to seize the vehicle and have it towed. It was argued that an inventory search would have been completed and the firearm, ammunition and drugs would be discovered.

[196] As noted by the Court of Appeal for Ontario in R. v. Harflett, 2016 ONCA 248, 336 C.C.C. (3d) 102, at para. 20, the power to detain an individual under the Highway Traffic Act does “not inevitably include the power to detain or impound a vehicle or the power to conduct an inventory search”. The officer must be able to point to a specific duty or authority to justify the search. The court also held that an “inventory search cannot be justified on the basis of officer safety or any suspicion that he appellant was involved in criminal conduct”: para. 21.

[197] It is my view that it is speculative to presume that the vehicle would have actually been towed. There are simply too many variables and intervening events that could have occurred that would impact this determination. A/S Robinson testified that the situation was “too fluid” and “too quick” to determine what his next steps would be. When he was asked why he did not make efforts to inquire with the passenger to see if he could drive the vehicle, his reason was he “didn’t have the opportunity to do so.” He also said that it would have been an option to contact the owner to get the vehicle but “the situation didn’t allow for this”.

[198] Even if the vehicle was towed, that does not necessarily mean the inventory search would be reasonable. Neither the officer nor the Crown pointed to a particular authority under the Highway Traffic Act that would have authorized seizing the vehicle. It is difficult to assess if the seizure is lawful without knowing the precise authority and without knowing what was done under that authority. In all of the cases provided to me, the constitutionality of the inventory search was considered after the inventory search was completed: see Harflett; R. v. Cartwright, R. v. Nicolosi (1998), 1998 2006 (ON CA), 40 O.R. (3d) 417 (Ont. C.A,); R. v. Wint, 2009 ONCA 52, 93 O.R. (3d) 514; R. v. Cuff, 2018 ONCA 276, 359 C.C.C. (3d) 415.

[199] Simply put, I cannot determine in a factual vacuum whether the vehicle would have actually been seized and towed, nor can I determine whether an inventory search of the vehicle would have been constitutional. I am therefore not prepared to find that the evidence was discoverable for the purpose of the s. 24(2) Charter analysis.

[200] Mr. Campbell-Noel’s s. 10(b) Charter right was not significantly impinged. The police did not attempt to question Mr. Campbell-Noel until he had an opportunity to speak with counsel of his choice: see Grant, at paras. 136-137.

[201] Ultimately, I find that the impact of the breaches on Mr. Campbell-Noel are not significant and therefore this factor favours inclusion of the evidence. There would be even less of an impact on Mr. Willis’ Charter rights.

Society’s Interest in Adjudication on the Merits

[202] The third factor considers the importance of the truth-seeking function of the criminal trial process. This also includes a consideration of the importance of the evidence to the trial process and the seriousness of the offences. These factors must not override the overall importance of s. 24(2) of the Charter, which is to maintain the long-term repute of the justice system.

[203] The evidence in this case is real evidence that is fundamental to the prosecution of the case. The offences are serious. This factor favours inclusion of the evidence.

CONCLUSION

[204] In balancing the three factors, I find that in this case that the admission of the firearm, ammunition and drugs would not bring the administration of justice into disrepute. The Charter violations, while serious, were not reprehensible or done in bad faith. The impact of the Charter violations on Mr. Campbell-Noel did not significantly impinge his Charter rights. I find that a reasonable person, informed of all the relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would not bring the administration of justice into disrepute.

[205] The evidence is therefore admissible.

Dennison J.

Released: February 4, 2019

COURT FILE NO.: CR-18-872

DATE: 2019 02 04

ONTARIO

SUPERIOR COURT OF

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

EARLE CAMPBELL-NOEL AND

DWAYNE WILLIS

REASONS FOR JUDGMENT

Dennison J.

Released: February 4, 2019