COURT FILE NO.: 7793/17

DATE: 2019-12-18

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Joseph Chapman, Counsel for the Respondent

Respondent

• and -

BRUCE WILLIAM READER

Gregory Lafontaine, Counsel for the Applicant

Applicant

HEARD: November 19, 2018; written submissions

RASAIAH J.

reasons on charter application

OVERVIEW

1The applicant Bruce William Reader (“Mr. Reader”), stands charged with the following offences alleged to have occurred on December 12, 2016:

a. Possession of marijuana for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”);

b. Possession of cocaine for the purpose of trafficking, contrary to s. 5(2) CDSA;

c. Possession of oxycodone, contrary to s. 4(1) CDSA; and

d. Possession of property obtained by crime, contrary to s. 355(b) of the Criminal Code of Canada, R.S.C., 1985, c. C-46

2Mr. Reader brought an application seeking a finding that his rights under ss. 8, 9, 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms, s 7, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 (“Charter”) were infringed, and seeking an order that the evidence seized be excluded pursuant to s. 24(2) of the Charter.

3The Crown and defence relied on the application records filed, the transcript of the preliminary inquiry, the blended voir dire testimony of Provincial Constable Gravel (“PC Gravel”), their respective factums, books of authorities, and written submissions.

SUMMARY OF THE FACTS

[4] On December 12, 2016, PC Gravel, an officer with the Ontario Provincial Police, was on duty working at the Blind River Detachment.

5He was patrolling Highway 17 (Trans-Canada Highway) near Dean Lake Road, Huron Shores, located between Blind River and the Town of Iron Bridge, travelling eastbound in a fully marked police vehicle.

6He observed a westbound vehicle. He decided to conduct a random traffic stop to check for sobriety and documentation. PC Gravel turned around, got behind the vehicle, and activated his emergency lights. The vehicle proceeded to pull over onto the shoulder.

7PC Gravel had no concerns regarding the operation of the vehicle before he decided to conduct the stop. He described the driving as normal.

8Before approaching the vehicle, PC Gravel ran the vehicle’s licence plate. The plate was registered to a 2016 white Jeep Cherokee which was owned by a female, out of Sault Ste. Marie. The vehicle stopped was a 2016 white Jeep Cherokee. He queried the plate to make sure the registered owner had a valid driver’s licence, for officer safety concerns, and to determine if the vehicle was stolen or involved in some type of accident. No concerns were flagged by him from this check.

9On the voir dire PC Gravel stated that when he first exited his police vehicle to make his approach, he immediately detected a strong odour of air freshener coming from the vehicle. PC Gravel also detected a faint odour of marijuana at the driver’s window. He was not able to determine if the odour of marijuana was burnt or fresh. However, at the preliminary inquiry, the officer stated that he detected an odour of marijuana on his first approach. His evidence on the preliminary inquiry was such, that the smell of freshly sprayed air freshener was observed by him on his second approach.

10As PC Gravel approached the vehicle, he observed that there was a younger lone male adult occupant.

11When he approached the vehicle, the officer scanned the inside the vehicle with his flashlight. He did that from where he positioned himself which was behind the A pillar of the vehicle. He noticed no weapons. PC Gravel only had his police vehicle lights, Mr. Reader’s vehicle lights and his flashlight to illuminate the area at the time. It was dark. It was stormy.

12At the preliminary inquiry, when asked if he searched the back seat with his flashlight, PC Gravel indicated that his cruiser headlights were on the vehicle and he could see boxes through the back window as he approached. He scanned the vehicle to see how many occupants were in it, whether there was a backseat full of people and whether there was someone was in the front seat. PC Gravel denied that at the initial time of the traffic stop he was searching to see whether there was any contraband in the back of the vehicle. PC Gravel testified “100 percent” that the use of the flashlight was for officer safety.

13PC Gravel advised Mr. Reader that he stopped him to check for sobriety, and to check his driver’s licence, insurance, registration. This interaction commenced at 12:40 a.m.

14He asked Mr. Reader to surrender his documents. He said nothing to Mr. Reader at this time about smelling marijuana and/or air freshener.

15The officer experienced no issues with Mr. Reader in terms of his cooperation or the way Mr. Reader looked when he initially spoke to him. He detected no odour of alcohol. Mr. Reader wasn’t obstructive. PC Gravel agreed that he may have seen Mr. Reader reach to take his documents out of the glove compartment of the vehicle but he did not recall it.

16PC Gravel identified Mr. Reader with the licence he produced. Mr. Reader had a date of birth of August 5, 1993 and was 23 years old. Mr. Reader’s address was in Echo Bay, Ontario.

17When PC Gravel went back to his police vehicle with Mr. Reader’s documents, PC Gravel agreed that he did not believe that he had grounds to arrest Mr. Reader based on his observations, and no reason to believe that Mr. Reader was “up to no good” at that point. He continued the highway traffic investigation.

18PC Gravel went back to his vehicle and ran queries of the licence, insurance, and registration. He also queried a “warrants check” and a criminal records check. He articulated that this last query was done to make sure that there were no outstanding warrants, and/or any officer safety concerns while he was at the roadside.

19The licence, insurance and registration queries all returned as valid with no issues. The warrants check and criminal record query came back negative. The officer was at his vehicle doing these checks for approximately 10 minutes. Once everything was confirmed as valid and clear, the officer started his return to the vehicle to return Mr. Reader’s documents to him.

20On his return approach to the vehicle, PC Gravel again detected a strong odour of air freshener and the faint odour of marijuana. The odour hadn’t changed. The air freshener was still strong.

21While he was at the vehicle returning Mr. Reader’s documents, PC Gravel used his flashlight to scan the interior of the vehicle. He articulated that the use of the flashlight was for officer safety reasons and to scan the parts of the interior of the vehicle he had not scanned before. He was now positioned at a different location at the vehicle. In terms of officer safety concerns, PC Gravel agreed that he was more comfortable at this point. Further, PC Gravel stated that he always uses his flashlight at night for officer safety when he approaches a vehicle that he has pulled over roadside. He also stated that to him, it wasn’t any different than looking in the vehicle during the daytime. He was doing the same thing, just that he needed the flashlight because it was too dark in the vehicle and at the location of the stop.

22This time, when PC Gravel scanned the vehicle, PC Gravel observed Mr. Reader to have a bottle of air freshener between his legs. On the armrest and in the centre console all around the cup holders, PC Gravel saw green flakes and shake (marijuana) in plain view. He did not observe these items on his initial approach.

23Upon making these observations PC Gravel immediately advised Mr. Reader that he was under arrest for possession of marijuana. Mr. Reader made some utterances at this time that “it was bull shit”, and asked “where?” PC Gravel pointed with his flashlight to the centre console. PC Gravel stated that Mr. Reader then proceeded to swipe everything off the armrest and from the centre console on to the floor and passenger seat of the vehicle.

24PC Gravel asked Mr. Reader to exit the vehicle.

25Mr. Reader exited and was handcuffed by PC Gravel. While being escorted to PC Gravel’s vehicle, Mr. Reader uttered that “he was going away for a real long time”. PC Gravel advised Mr. Reader not to say anything further until he was provided with his rights to counsel.

26Once inside the police vehicle, Mr. Reader was provided with rights to counsel and cautioned. This occurred at 12:53 a.m. Mr. Reader indicated that he would like to talk to a lawyer at the detachment.

27After Mr. Reader was read his rights to counsel and cautioned, PC Gravel questioned Mr. Reader about the utterance he made about “going away for a long time”. Mr. Reader admitted that he had over 50 pounds of marijuana and eight to ten ounces of cocaine inside the motor vehicle.

28PC Gravel left the police vehicle. He opened the back door of the Jeep. He saw two large boxes, one sealed and one open (one was taped up, one was not). He saw numerous vacuum sealed packages in the open box, filled with green bud substance that he believed to be marijuana. PC Gravel returned to the police vehicle. Mr. Reader was re-arrested at 12:56 a.m. for trafficking related charges and was again read his rights to counsel and caution by PC Gravel.

29From the Jeep, PC Gravel seized approximately 72 pounds of marijuana, 394 grams of cocaine, 4 oxycodone pills, and $751 of Canadian currency. There was also a black batman’s leather bag on the floor of the passenger seat that contained what PC Gravel believed to be Mr. Reader’s personal contraband and personal drug use items.

30At 1:33 a.m. Mr. Reader was brought to the Blind River detachment.

31The Jeep was towed and parked inside the sealed garage at the Blind River Detachment where it was later searched at 2:55 a.m. PC Gravel indicated that the search was a continuation of the search incident to arrest that had commenced at the roadside which could not be completed there.

32Prior to continuing the search of the vehicle at the detachment, PC Gravel assisted with lodging Mr. Reader and implementing Mr. Reader’s right to counsel, which Mr. Reader declined as being of “no use”.

33PC Gravel weighed the drugs at the station.

34Photographs were taken by another officer. No photographs were taken of the floor or passenger seat of the vehicle, or of shake or marijuana flakes in the interior of the vehicle.

35PC Gravel prepared a Report to Justice and a property list. The property list did not specifically identify any of the marijuana as shake.

36Samples of the drugs were taken for analysis. The samples were identified as cocaine and marijuana. Certificates of the analyst were produced that confirmed same.

37The total street value of the drugs was estimated to be $350,000.

ANALYSIS

Standing

38The Crown challenged Mr. Reader’s standing to bring the application.

39I find that Mr. Reader has standing to bring the constitutional challenges before the court, based on the totality of the circumstances: R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128; R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] 3 S.C.R. 341. The following evidence and considerations led me to conclude that in this case, Mr. Reader established a subjective expectation of privacy that was objectively reasonable.

40Mr. Reader was present when the vehicle was searched. He was the sole occupant of the vehicle at the time of the search. He had complete care and control over the vehicle at the time of the stop. Mr. Reader was operating the vehicle late at night on the Trans-Canada Highway near Dean Lake Road, Huron Shores, located between Blind River and the Town of Iron Bridge. The vehicle was described as a new 2016 vehicle. While the vehicle was registered to a third party, the vehicle was not identified as stolen, which the officer checked at the time of the stop. The officer spoke to the registered owner of the vehicle at some point but could not recall the date or time or the details of the conversation. The registered owner’s address was identified as being in Sault Ste. Marie, Ontario.

41These facts can and do reasonably support a conclusion that Mr. Reader had consent to operate the vehicle, and accordingly, could control access to the vehicle and exclude others from it.

The Detention

42I find that there was no violation of Mr. Reader’s s.9 Charter rights.

43PC Gravel started his shift at 6:00 p.m. prior to his contact with Mr. Reader which started at 12:40 a.m. He was patrolling Highway 17 (Trans-Canada Highway) near Dean Lake Road, Huron Shores, located between Blind River and the Town of Iron Bridge.

44The officer had been performing RIDE checks in Iron Bridge prior to this stop, and had stopped a vehicle “recently” prior to this stop for the same purpose. The officer explained that it was less than two weeks before Christmas. His goal was to make sure the driver wasn’t drinking alcohol, or impaired, and had proper documentation. He articulated that he was relying on s. 216 of the HTA as his authority for this stop.

45Random stops pursuant to the Highway Traffic Act are justified pursuant to s. 1 of the Charter when the stop is to determine the mechanical fitness of the vehicle, the possession of a valid licence and proper insurance, and the sobriety of the driver. Police are not required to have grounds to suspect that the driver is committing an offence in relation to the operation of a motor vehicle: R. v. Ladouceur, 1990 CanLII 108 (SCC), [1990] 1 S.C.R. 1257 at para. 44 and Brown v. Durham at para. 21.

46The defence questioned PC Gravel about his history in respect of conducting traffic stops. PC Gravel testified that generally, he could stop up to 20 vehicles in an evening and 100 in a week, relying on s. 216 of the HTA, to check for sobriety and documentation. Sometimes there are much less. PC Gravel stated that his goal in doing this is public safety, checking for: no insurance, drive while under suspensions, and impaired drivers.

47The defence questioned PC Gravel about his practice of recording the history of his traffic stops in his notes (a copy of which was not filed). About keeping those notes, the officer stated that when he first started doing a lot of traffic stops and started “getting items off of the highway”, his coach officer at the time advised him to put that information in his notes. His coach officer was an officer from Smooth Rock Falls.

48PC Gravel acknowledged that said notes/records included 70 traffic stops or 70 charges from routine stops. He believed them to include 25 suspended drivers, 30 “drive no insurance” offences, 4 impaired offences, and 3 “fail sobriety test” occurrences. In terms of drugs, PC Gravel has recorded just over 230 stops where there was either contraband found or weapons. He had been recording these stops since 2008.

49PC Gravel knew and agreed that making these notes was not a common practice in Blind River. He agreed that the amount of stops that he makes could be more than his average colleague and that his name could come up quite a bit on these kinds of stops. He agreed that he may have made a lot more of these stops than any other officer at his detachment. PC Gravel however did not keep track of what other officers did and focused on his own work.

50This evidence regarding PC Gravel’s historical stops and note taking were not persuasive for me to find that the officer uses the HTA as a mask to hide his criminal investigations. The officer is a general law enforcement officer whose duties include general law enforcement, highway patrol and calls for service. As such it would not be unusual or unreasonable that he would conduct HTA stops regularly during his employment for the purposes he articulated. I see nothing wrong with keeping the notes. He was trained to keep these records. It was recommended to him by his coach that he do so. Keeping records in this manner, in my view, does not fit with someone who is surreptitious and ostensibly uses HTA stops as a pre-text for unfounded criminal investigations. Further, I did not receive an explanation on the number of stops. For all I know, the 230 stops occurred over nine years (he started recording in 2008) which mathematically averages out to approximately 25 a year, or 2-3 per month. In my view, this is not significant for a full-time general law enforcement officer charged in part with highway patrol duties. This amount is not reflective of an officer who is “extensively relying” on the HTA as a pre-text to conduct criminal investigations.

51When giving his evidence, the officer did not present as an overzealous officer. He presented as someone who was keeping records of his experience as he was coached to do.

52PC Gravel denied the defence suggestion that he profiled the applicant as a young man driving a new car and I accept his evidence. He didn’t know that there was a young man driving the vehicle before he stopped the vehicle. The vehicle was registered to a female and it was dark outside. There were no lights at that location. It was dark inside the vehicle when the officer approached it.

53PC Gravel stated that there are occasions that traffic stops go in a criminal direction. He agreed that it was “a function of his managing, to sort of observe or detect criminality during a s. 216 HTA stop and that this is what took place in this case”.

54I find and accept the officer’s evidence that the traffic stop was a random stop intended to be for purposes of conducting a check for sobriety and documentation; road safety concerns, pursuant to the Highway Traffic Act, RSO 1990, c H.8 (“HTA”).

55I am not persuaded that the officer used HTA authority as a pretext to conduct an unfounded criminal investigation, or to conduct an investigation for potential criminality, or that such purposes were on equal footing as any genuine s. 216 HTA concern.

56I am not persuaded that the evidence established that PC Gravel has a history of extensive reliance upon ostensibly dual-purpose stops aimed at the detection and seizure of contraband from motor vehicles. Neither do I accept that such a characterization is reflected by the manner in which he conducted the stop that is before the court.

57I accept that the detention commenced and proceeded as a highway traffic investigation until such time as PC Gravel took steps to complete it. On the officer’s return approach, he was intending to give Mr. Reader back his documents and send him on his way.

58I find and accept the officer’s evidence that this is a case where the traffic stop evolved into a criminal investigation.

59I also accept the officer’s evidence that prior to his return approach, he did not believe that he had grounds to arrest or to believe that Mr. Reader was up to no good at that time. He did not investigate or ask any questions of Mr. Reader about drugs. He continued the traffic stop to determine if Mr. Reader had proper documentation.

60The fact that PC Gravel detected the odour of marijuana and air freshener on his initial approach did not vitiate the validity of the stop. The question of whether PC Gravel suspected something more may be going on with Mr. Reader after he detected the odour of marijuana and air freshener is only relevant if the decision to investigate Mr. Reader for highway traffic matters was not a bona fide decision. The fact that an officer may be suspicious that a driver may also be involved in other unlawful activity does not transform what would otherwise be a valid HTA stop into an arbitrary detention: Brown v. Durham (Regional Municipality) Police Force, 1998 CanLII 7198 (ON CA), [1998] O.J. No. 5274 at paras. 25-31 and R. v. Harris, 2007 ONCA 574 at paras. 28-32.

The Criminal Record Check

61PC Gravel ran CPIC queries of the licence, insurance, and registration, and a criminal records check. He articulated that he ran this latter query to make sure there were no outstanding warrants, and/or no officer safety concerns while he was at the roadside.

62I find that PC Gravel did not violate Mr. Reader’s s.8 Charter rights by conducting such a search of the CPIC system that included a criminal record check and/or check for outstanding warrants.

63PC Gravel was entitled under s. 216 of the HTA to ask Mr. Reader for identification for purposes related to enforcement of the HTA. As such, PC Gravel could, pursuant to Brown v. Durham, conduct a CPIC inquiry using that identification. PC Gravel properly and lawfully obtained the identification for legitimate HTA purposes. He is authorized to use the identification for other legitimate police purposes: R. v. Harris at paras. 31, 65 and 68.

64Accordingly, this check did not taint the lawfulness of the stop and the detention.

65Even if I am incorrect in finding that the check was not a violation in this case, I find that the check never led to anything. Mr. Reader was properly detained at this point. His arrest was based on the officer’s observations of the odours, the air freshener can and the shake, not anything arising from this check.

Use of the Flashlight

66I find no s. 8 Charter violation with respect to the officer’s use of his flashlight. I do not find that the uses amounted to warrantless searches in this case.

67In Brown v. Durham, at para. 24, the court wrote:

In addition to requiring production of various documents associated with the operation of a motor vehicle, a police officer, acting under the authority of s. 216(1) of the HTA, may also make a visual examination of the interior of the vehicle to ensure their own safety during the detention.

68At the outset of a detention, an officer is entitled to make observations of what is in plain view, as aided by the officer’s flashlight, just as the officer would be entitled to make observations of what is in plain view, unaided by a flashlight, during the daylight hours. See: R. v. Ceballos, 2014 ONSC 2281, [2014] O.J. No. 1800 (Sup. Ct.) at para. 72-78.

69In R. v. Mellenthin, [1992] 3 S.C.R. 616 at para. 14, the court wrote:

There can be no quarrel with the visual inspection of the car by police officers. At night the inspection can only be carried out with the aid of a flashlight and it is necessarily incidental to a check stop program carried out after dark. The inspection is essential for the protection of those on duty in the check stops. There have been more than enough incidents of violence to police officers when vehicles have been stopped. Nor can I place any particular significance upon the fact stressed by the appellant that the police only made use of a flashlight after the request had been made of the appellant to produce the necessary papers and not when the constable first approached the car. Although the safety of the police might make it preferable to use the flashlight at the earliest opportunity, it certainly can be utilized at any time as a necessary incident to the check stop routine.

70The flashlight was necessary to observe the interior of the vehicle. The area was not a well-lit area. They were on the side of the highway. It was dark out. It was dark in the vehicle. It was stormy. PC Gravel was working alone. Mr. Reader was not known to PC Gravel. It was the early hours of the morning. They were in an area of low traffic. PC Gravel was not able to see the entirety of the interior of the vehicle on his initial approach from where he was standing. At the point the officer is in his vehicle running the queries, Mr. Reader is still in the Jeep in the driver’s seat. On the return approach, PC Gravel had been away from Mr. Reader for 10 minutes. He only had his police vehicle lights, Mr. Reader’s vehicle lights, and his flashlight to illuminate the area at the time.

71On this first initial roadside approach, the officer looked inside the vehicle with his flashlight. However, he did not agree that his first look with his flashlight would have been thorough.

72The officer further stated that he used his flashlight for every traffic stop at nighttime. For officer safety reasons, he used it to scan the interior of the vehicle, whether it is his first approach or second approach, just to make sure there is nothing that can harm him at the roadside. His use is in line with R. v. Mellenthin.

73Neither use was an intrusive search. He was not leaning into the vehicle or putting his arm into the vehicle. He was outside of the vehicle. Each use was a quick visual inspection.

74PC Gravel described what he did as being no different than looking in the vehicle during the daytime. He was doing the same thing he would do during the daytime, just that he needed the light because it was dark outside and dark in the vehicle. When questioned further about the second look being for officer safety concerns, PC Gravel stated that he is concerned about officer safety every time he goes to the vehicle but did not dispute that he was a little bit more comfortable at the time. In my view, the defence’s focus on the decreased officer safety component of the second approach in these circumstances does not preclude the use of the flashlight in the manner it was used: R. v. Mellenthin.

75During the second scan of the interior of the vehicle with his flashlight, PC Gravel noticed several things he hadn’t noticed on the first approach in plain view.

76Making observations of items that are in plain view within a vehicle from outside does not intrude upon a reasonable expectation of privacy and is not a search: R. v. Ceballos.

The Arrest

77I find that PC Gravel possessed both subjective and objective reasonable grounds to arrest Mr. Reader for possession of marijuana having regard for the totality of the circumstances. A reasonable person placed in the position of the officer would be able to conclude that there were reasonable and probable grounds for the arrest: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241 at para. 17.

78The officer had 10 years of experience.

79PC Gravel had observed marijuana before, during his training, during other traffic stops and emergency response team duties he had performed. He had exposure to outdoor grows as well as indoor grows.

80Since 2008, PC Gravel had conducted 230 stops that involved drugs and/or weapons.

81PC Gravel understood the significance of the odour of air freshener as a masking agent to hide the odour of drugs in a vehicle.

82I accept that the officer saw the shake, and that the substance was in plain view. PC Gravel saw the shake when he was at the vehicle for the purpose of returning Mr. Reader’s documents. He was still lawfully engaged in the execution of his duties and in lawful position.

83In general, I found that the officer answered all questions asked of him respectfully and in a frank and straightforward manner.

84I acknowledge that there were some inconsistencies in some of the officer’s evidence. Most were minor in my view.

85The defence pointed to the inconsistent evidence pertaining to the timing of the officer’s observations of the odour of air freshener, inconsistencies in the evidence the officer gave at the preliminary inquiry, and on the voir dire, as being a great difference.

86The versions of PC Gravel’s evidence on the timing of the air freshener observations are indeed different. At the preliminary inquiry, the officer stated that he detected an odour of marijuana on his first approach. His evidence was such, that the smell of freshly sprayed air freshener was detected by him on his second approach. On the voir dire, PC Gravel stated that when he first exited his police vehicle, he immediately detected a strong odour of a vehicle air freshener coming from the vehicle. On cross-examination, when he was being asked if he noticed this as he was walking up to the vehicle, the officer stated that “the smell was the overpowering odour of an air freshener as he exited his vehicle”. He could not recall if the vehicle driver side window was down or not. He was parked within one car length behind Mr. Reader to ten metres back.

87First when considering this point, I noted that I have no explanation from the officer for the inconsistency. The officer was not asked about it.

88I have also considered that inconsistencies vary in nature and importance. In my view, the timing of the smell of the air freshener is not material. It does not change PC Gravel’s reasonable and probable grounds that he relied on for the arrest and could have easily been an innocent mistake on his part.

89Accordingly, based on the above, this inconsistency did not cause me to negatively assess the officer’s credibility as seriously weakened and/or cause me to reject his evidence as not credible.

90Another issue, in my view, was why the officer didn’t see the shake on his first approach.

91I accept from the evidence and find that it is reasonable to conclude that the officer may not have seen the shake on his first approach because of the location he positioned himself at. The officer described his position at the vehicle, on his initial approach, as being “just behind the A pillar, just behind where the driver sits”. He stood at the A pillar so that, when he talked to the driver, “the driver has to be uncomfortable in his seat to look back and talk to him”. At this point PC Gravel testified that he “is not scanning all the passenger seats, he is just focused on the driver and obtaining his documents”. He does not approach past where the driver is sitting. He is more concerned for safety at this point.

92On cross-examination, PC Gravel stated that on his second approach he stood in the area of the driver side window because he knew “there was no safety concerns, so that way he was standing parallel to Mr. Mr. Reader, looking inside the vehicle, now he could get a more better search over towards the seat as well as for other weapons or whatever”.

93Accordingly, with it being dark at the location and inside the vehicle, and PC Gravel’s initial position on his first approach, I find that not seeing the shake on the first approach is not an issue.

94I am also not persuaded that it was improbable that the officer detected an odour of marijuana. The officer testified that the baggies located in some or one of the boxes were not tightly sealed. More particularly, there were individual zip-lock baggies inside of vacuum bags, but all the air “was not sucked out” suggesting that there was something wrong with the seal on those bags, as all of the other bags were perfectly sealed. PC Gravel testified that the applicant had 16 grams of marijuana on the floor of the passenger seat that was in a small plain zip-locked baggie so the odour of marijuana was quite distinct even though the baggie itself was sealed. He stated it was easier to smell when in this small baggie. This baggie was not presented as being vacuum sealed like the others.

95There was a can of air freshener and the officer recorded the name of it. He observed the can between Mr. Reader’s legs on the second approach. He observed the odour again, to be as strong as it was on his initial approach.

96A number of photographs were taken at the detachment by the scenes of the crime officer (“SOCO officer”).

97The evidence is that there are no photographs of shake on the floor of the vehicle or the passenger seat of the vehicle or the console. PC Gravel agreed that if there are no such photographs, then the SOCO officer did not take such photographs. When it was put to the officer that the SOCO officer is to take photos of anything that is evidence of the commission of the offence, PC Gravel stated that defence would have to ask the SOCO officer but agreed that taking such photos might have had evidentiary value.

98I also noted that the evidence of shake was not limited to the shake PC Gravel stated he saw in plain view on the armrest and console. PC Gravel identified that shake was seized from the black leather bag believed to belong to Mr. Reader.

99I did not receive evidence from the SOCO officer.

100None of the photographs were tendered on the voir dire.

101Given the foregoing, I do not conclude that the lack of photos of shake on the floor or passenger seat of the vehicle leads to the conclusion that PC Gravel lied about seeing shake or that his credibility is weakened by it. He was not responsible for taking the photos. He was not able to answer why the SOCO officer did not take any photos of the floor or the passenger seat. He did not make any excuses for the lack of the photos. The photos were not put to PC Gravel. He was not asked about the baggie(s) of shake he identified as seizing.

102In my view, the absence of photos of the floor and the passenger seat of the vehicle ought not to be visited on PC Gravel’s credibility.

103A property list was filed with the application record which details Canadian currency, drugs and other items seized. The defence identified that there is no specific reference to shake on the property list.

104PC Gravel had testified that Mr. Reader had swept the shake he had observed in plain view onto the floor and passenger seat of the vehicle.

105PC Gravel testified that he seized 72 pounds of marijuana, 383 grams of cocaine, 16 grams of marijuana and 1.1 grams of cocaine respectively (that he described as personal use drugs). Mr. Reader’s personal use marijuana items were located in a small backpack in the vehicle, four white pills and some other small clear baggies of green shake believed to be marijuana shake.

106There is a notation of 16 grams of marijuana on the property list. Some of the descriptions are generalized as “marijuana” and some are outlined as “marijuana bud”. The officer was not asked about the property list descriptions against his evidence and/or the items he seized, at either the preliminary inquiry or during the voir dire.

107I was not provided with the Report to Justice to determine what if any other items may have been listed in that document. At the preliminary inquiry, PC Gravel identified that he prepared a Report to Justice and a property list.

108I also noted that there was no issue raised in the evidence or argument about the existence of the air freshener cannister and/or the personal use marijuana items found in the black duffle bag that the officer indicated he observed. I noted that those items were not on the property list. Again, I was not provided with the photographs of what was seized from the vehicle, and/or the contents of the black duffle bag.

109Accordingly, I do not agree that the property list speaks for itself and it does not cause me to find that the officer did not observe shake as he articulated, or seize any shake, or find that his credibility is seriously weakened on that issue or any other issue based on the property list.

Sections 10(a) and 10(b) of the Charter

110Section 10(a) of the Charter provides that everyone has the right on arrest or detention to be informed promptly of the reasons therefor.

111I have found that PC Gravel up until the observation of the shake in plain view was conducting a highway traffic act investigation.

112I am satisfied and accept PC Gravel’s evidence that he promptly advised Mr. Reader of the reasons for each of his arrests based on the evidence.

113The officer testified that when he advised Mr. Reader that he was under arrest, Mr. Reader uttered that he “did not have any weed and that it was all bull shit” (“Utterance #1). The officer advised him that he could smell the odour and the air freshener, and that he saw the can and marijuana that he described as being in plain view.

114Before getting out of the vehicle, the officer testified that Mr. Reader looked over toward the centre console, asked “where”, at which time, he indicated with his flashlight that it was all around the centre console and that he could see it clearly. At this point, the officer stated that Mr. Reader used his right arm and wiped the shake onto the passenger seat as well as onto the floor.

115When Mr. Reader exited the vehicle, he was upset but complied without any issues. PC Gravel felt Mr. Reader was upset because “he knew he got caught”.

116The officer testified that as Mr. Reader was walking to the police vehicle, Mr. Reader uttered that “he was going away for a long time” (Utterance #2). It was at this point, he told Mr. Reader not to say anything to him until he provided him with his proper rights to counsel and caution once at the vehicle.

117Section 10(b) of the Charter provides that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.

118Upon detention, an accused must be informed of his rights to counsel as per paragraphs 37, 38, 41 and 42 of R. v. Suberu 2009 SCC 33:

Once an individual is detained, s. 10(b) of the Charter is engaged and guarantees an individual the right to retain and instruct counsel without delay, and to be informed of that right. The issue raised on this appeal asks whether the words "without delay" require the police to execute their duties to facilitate a detainee's right to counsel immediately upon detention, or whether this obligation can be fulfilled at a later point in time.

Once engaged, s. 10(b) imposes both informational and implementational duties on the police. The informational duty requires that the detainee be informed of the right to retain and instruct counsel without delay. The implementational obligation imposed on the police under s. 10(b), requires the police to provide the detainee with a reasonable opportunity to retain and instruct counsel. This obligation also requires the police to refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach a lawyer, or the detainee has unequivocally waived the right to do so.

A situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. In order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase "without delay" must be interpreted as "immediately". If the s. 10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises.

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

119When an accused asks to speak to a lawyer, the police have a duty to “hold off” questioning an accused pending the implementation of the right: R. v. Willier 2010 SCC 37, [2010] 2 S.C.R. 429.

120The officer stated that “with every traffic stop he wants to make sure it’s safe for him and for the individual he is arresting; that once the individual is properly secured, meaning handcuffed, searched and placed in the backseat of his vehicle, he reads the rights to counsel and caution…so he can properly turn on the lights, and properly read from the issued OPP card, proper Charter and rights to counsel”.

121Given the lighting, weather and road conditions, and their location on the side of highway (not fully off of the roadway), it made sense that PC Gravel wanted to read Mr. Reader his rights to counsel and caution once he was back inside the police vehicle.

122I find that given the circumstances as set out above, it was reasonable and justifiable on the basis of safety concerns to wait until Mr. Reader was secured in the car to deliver the rights to counsel and caution. The vehicle was one car length back to 10 metres away. It was 12:53 a.m., approximately one to two minutes after Mr. Reader’s arrest when PC Gravel read Mr. Reader his rights to counsel and cautioned him inside the vehicle.

123Therefore, I find there was no violation of Mr. Reader’s s. 10(b) Charter rights by reading the rights in the cruiser.

124In terms of implementing Mr. Reader’s rights to counsel, I find the officer did not meet his duties. Mr. Reader was not provided with a reasonable opportunity to exercise his right and PC Gravel did not refrain from eliciting evidence from Mr. Reader until Mr. Read had reasonable opportunity to exercise his right.

125The officer stated that Mr. Reader advised him that he would speak to a lawyer once at the Blind River Detachment. Mr. Reader did not have a specific lawyer he wished to contact at that time.

126There was no plan to offer access to counsel at the roadside.

127PC Gravel indicated that if the applicant had asked to use the phone, he would have had to get a sergeant to attend with the sergeant’s phone and they would have contacted duty counsel there. PC Gravel acknowledged that he did not offer to arrange for someone to come to the roadside with a phone for the applicant to use. When it was put to the officer that the situation was such that it was not obvious that there was a phone that the applicant could have used, the officer agreed, but testified that he made it clear to the applicant when he explained to him that if he wanted to talk to a lawyer that they could get a lawyer for him. I am not confident that the officer appreciated the vagueness of that offer.

128PC Gravel emphatically denied that he told the applicant that he was going to search and tear apart every box, and search his vehicle from stem to stern, before the applicant indicated that he had marijuana. PC Gravel denied that he said, “well, listen, we’re going to search, you know that we’re going to find whatever you’ve got in there”. He indicated he would not say that to an individual. I accept this. At this point the officer already had authority to search the Jeep incidental to the arrest of Mr. Reader for possession of marijuana.

129The officer stated that he felt that Mr. Reader understood his rights to silence. He believed that Mr. Reader didn’t have to talk to him, and that Mr. Reader was choosing to talk to a lawyer when at the detachment, so…he questioned Mr. Reader about his utterance about “going away for a long time” and how much marijuana Mr. Reader had in the vehicle or what he had in the vehicle. It was at this time the officer stated that Mr. Reader told him that he had over 50 pounds of weed as well as eight to ten ounces of cocaine (“Admission”). In my view, this is a plain s. 10(b) Charter violation as per R. v. Willier 2010 SCC 37, [2010] 2 S.C.R. 429.

130PC Gravel requested another officer to attend to assist him at the scene.

131The officer did not write down the time that the other officer arrived on the scene.

132When Mr. Reader made the Utterances he did in this case, he knew he was being arrested for a criminal offence. He made some of the utterances before his rights to counsel could be given in the circumstances. He made them without prompting or threats or inducements from the officer. They were spontaneous.

133Therefore, the Utterance about “going away for a long time” was made by the accused in a fashion that did not violate his Charter rights. He made a spontaneous utterance while walking back to the cruiser. The delay in reading rights to counsel was reasonable in the circumstances and therefore made in a Charter-compliant fashion.

134The Utterances and Admission made by Mr. Reader as to what there was in the Jeep were made in a clear violation of R. v. Willier in that the officer did not “hold off” to enable reasonable efforts to implement rights to counsel.

Search Incident to Arrest

135Based on the arrest for possession of marijuana, which I have found was validly made, I find that the officer would have been justified in searching the vehicle incident to arrest. It served a purpose relatable and connected to the arrest for possession of marijuana and was reasonable.

136In Stonefish, 2019 ONCA 914 the finding on the search of the accused’s vehicle incident to arrest was questioned by the appellant. The Court of Appeal, at para 16, articulated that the court accepted the principle set out in para. 99 of the court’s decision in R. v. Gonzales, 2017 ONCA 543, namely:

Where the justification for a search incident to arrest is to find evidence, there must be some reasonable prospect of securing evidence of the offence for which the arrest has been made: Caslake, [R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51], at para 22. A search incident to arrest may include a search of an automobile of which the arrested person is in possession of, but the scope of that search will depend on several factors.

137In Stonefish, not unlike the case at bar, there was a small amount of marijuana observed by the officer in the vehicle cup holder. The court articulated that this fact led quite naturally to a search for more marijuana elsewhere in the vehicle. PC Gravel’s observation of shake on the armrest and on the console around the cup holders leads quite naturally to a search for more marijuana elsewhere in the vehicle.

138The manner of the search at the roadside was reasonable. The officer looked inside the vehicle in locations where more drugs could possibly be located.

The Search of the Vehicle at the Detachment

139At the roadside, another officer who was working the nightshift, remained with the vehicle until a tow truck arrived. The vehicle was towed to the detachment and secured. PC Gravel stated that they decided to continue the search there. At the time, the roads were very slushy, and it was snowing. It was dark. There was no lighting in the area. Snow plows were trying to get by where they were parked. The vehicle was not completely off the roadway, so it was towed for officer safety and safety of those travelling the roadway. He described the detachment search as a continuation of the search that commenced at roadside which he described as being incident to arrest for possession of marijuana.

140At the detachment a more thorough search was undertaken where there was more lighting. What they found roadside was seized at the roadside. They found nothing additional during the detachment search. The vehicle was eventually returned to the registered owner, after asset forfeiture unit assessment was concluded. No warrant was ever obtained to search the vehicle.

141I accept the evidence of the officer and find that the subsequent search of the vehicle back at the station was truly a continuation of the search commenced incident to arrest founded on a lawful arrest, that there was a reasonable basis to continue the search at the detachment, that the search was conducted in a reasonable manner, that it did not fall out of the scope of lawful search incident to arrest, and accordingly, no warrant was required. It was late at night. It was dark in this location. The vehicle was on the side of the TransCanada Highway. Evidence was being located in the Jeep related to the arrest, which was the purpose of the search. Photographs needed to be taken. Given the weather situation and highway conditions, I accept that it was in everyone’s safety interests to continue the search back at the station. The continuation of the search of the vehicle commenced at 2:55 a.m., approximately one hour and twenty-five minutes after PC Gravel left the roadside and arrived at the detachment. Mr. Reader was brought to the detachment at1:33 a.m. The officer was not asked about what time the vehicle arrived at the station. I find that it was after PC Gravel arrived back at the detachment given that another officer was waiting for a tow truck when PC Gravel left the roadside. In addition, before the continued search, there were other matters PC Gravel had to attend to such as booking Mr. Reader, lodging Mr. Reader and attending to Mr. Reader’s s. 10(b) Charter rights.

142Even if I am incorrect in concluding this, I note the fact that nothing came of this subsequent search. No further evidence came out of this search. The officer testified that all of the physical evidence the applicant seeks to exclude was found and seized at the roadside; he seized it himself.

The Report to Justice

143The officer was obligated to file a Report to Justice. Failure to do so and/or in a timely manner can constitute a Charter violation: R. v. Garcia-Machado, 2015 ONCA 569 at para. 55.

144In this case, a copy of the Report to Justice was not tendered on the voir dire and was not filed as part of the application record I received. The application record contained simply a copy of the property list. At the preliminary inquiry the officer was asked to identify the Report to Justice. The officer identified that he prepared it. It was filed as an exhibit at the preliminary inquiry, along with the property list (which was attached to it according to the transcript). The officer was not asked at either the preliminary inquiry or on the voir dire, about its completion, and whether it was filed in a timely manner as prescribed. At the preliminary inquiry, the Report to Justice was not identified as being a draft only. The date of the Report to Justice itself was not even identified. As such, I am not able to determine any violation occurred.

Exclusion of Evidence

Section 24(2) of the Charter

145Section 24(2) of the Charter provides that evidence obtained in a manner that infringes or denies Charter rights should be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

146The factors were set out in R. v. Grant, [2009] S.C.C. 32. The court must consider:

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

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

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

147I have found that no breach occurred with respect to the detention, arrest and the search of the vehicle. I have found that in this particular case, the criminal records check was not a breach. In respect of Mr. Reader’s s. 10 Charter rights, I have found that that a breach occurred with respect to police compliance with duties related to implementation of Mr. Reader’s rights to counsel, a breach of s. 10(b) regarding the taking of the Admission.

Seriousness of the Charter Breach

148The s. 10(b) Charter violation is serious. While I am satisfied that the conduct of the officer was not a deliberate attempt to circumvent the Charter, in my view, having 10 years of experience, he ought to have understood that holding off on questioning was required in these circumstances, and failing to timely implement access to counsel is not acceptable. Mr. Reader clearly indicated that he wished to consult counsel. The response was ignorant of Charter standards.

149This factor favours exclusion.

Impact of the Breach on the Protected Interests of the Accused

150Having regard for the chain of events (acknowledging that they are not always determinative of the issue), the entire relationship of the evidence to the breach, and the overall purposes of s. 24(2) of the Charter, I am not satisfied that the search incident to arrest was tainted by the s. 10(b) Charter violation.

151There is no doubt in my view that the police would have discovered the drugs and money during a search incident to Mr. Reader’s arrest for possession of marijuana, that the drugs and money were discoverable independent of the breach.

152I am satisfied on the evidence that the search incident to arrest was going to happen as a result of Mr. Reader’s arrest for possession of marijuana and not because of the information provided by Mr. Reader.

153As for the Admission made by Mr. Reader, he incriminated himself. His right to protection against self-incrimination including the right to silence and the right to choose whether to speak to authorities was unquestionably impacted. The Admission made was proximate to the breach. This factor favours exclusion of the Admission made to PC Gravel in the police vehicle.

Society’s Interest in the Adjudication of the Case on its Merits

154In total, police seized both soft and hard drugs, approximately 72 pounds of marijuana, 394 grams of cocaine, 4 oxycodone pills, and $751 of Canadian currency. Accordingly, the amount of the drugs seized and the type of drugs seized were not insignificant.

155PC Gravel was provided with an approximate street value of the drugs, namely $10 per gram for the cannabis marijuana, and $100 per gram for the street value of the cocaine. He used these values to conclude that the marijuana and cocaine seized had an approximate total street value of $350,000.

156The drugs and money are highly reliable and important to the Crown’s case. The Crown requires this evidence, seeking to establish that Mr. Reader played a part in the distribution of controlled substances. The Crown will not be in a position to proceed without this evidence. Exclusion would gut the Crown’s case.

157Possession of large amounts of drugs for the purpose of trafficking is a serious offence which has wide-ranging societal implications. The allegations are not on the low end of drug prosecutions.

158Exclusion of the evidence would have a negative impact on the societal interests in seeking the truth and having the allegations adjudicated on their merits.

159This factor favours the admission of the evidence arising from the search of the Jeep.

160As to the Admission made by Mr. Reader, the evidence assists the Crown in proving knowledge and possession of the contraband and the role Mr. Reader played in the distribution of controlled substances. However, reliability is undermined because Mr. Reader spoke without access to counsel. This factor favours exclusion of this particular evidence.

Balancing the Factors

161I appreciate that there is no precise formula to apply in balancing the factors and that in each case the factors may weigh differently in the balance. This is such a case as there are different pieces of evidence in this analysis to consider: drugs, money, utterances and admissions.

162Having regard to all of the circumstances, I find that the exclusion of the drugs and the money would be much more likely to bring the administration of justice into disrepute than would the admission of such evidence in the circumstances of this case.

163A reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the exclusion of the evidence would bring the administration of justice into disrepute.

164The fairness of Mr. Reader’s trial would not be compromised by admitting the drugs and the money given the discoverability and connection of this evidence to Mr. Reader’s arrest for possession of marijuana.

165However, the Admission elicited from Mr. Reader after he was given his rights to counsel and cautioned would be much more likely to bring the administration of justice into disrepute than would the exclusion of such evidence, in the circumstances of this case. I am not persuaded that Mr. Reader would have acted in the same manner if the violation had not taken place.

166Exclusion of the Admission will unlikely erode and undermine the public confidence in the administration of justice. Exclusion would enhance the repute of the administration of justice and effectively remedy this breach.

167A reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the Admission made to PC Gravel in the police vehicle would bring the administration of justice into disrepute.

CONCLUSION

168The application is granted in part.

169I find that the applicant’s s. 10(b) Charter rights were infringed.

170The requests for a finding that Mr. Reader’s ss. 8, 9, and 10(a) Charter rights were infringed are denied.

171As remedy for the s. 10(b) Charter violation, the Admission made by Mr. Reader to PC Gravel in the police vehicle is excluded.

172The request to exclude the evidence of the items seized from the Jeep is denied.

Rasaiah J.