Court File and Parties

COURT FILE NO.: 282/19 (St. Catharines) DATE: 20200402

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – SISTO SEVEN MARQUETTE Applicant

Counsel: Stephanie Ford, for the Respondent Brenda V. Sandulak, for the Applicant (Accused)

HEARD: March 9-10, 2020

R. A. Lococo J.

Reasons for Decision

I. Introduction

[1] In an 11-count indictment, Sisto Seven Marquette is charged with several criminal offences following a roadside traffic stop. He is charged with possession of cocaine and possession of cannabis (marihuana), in each case for the purpose of trafficking, contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19. He is also charged with several firearm offences under the Criminal Code, R.S.C. 1985, c. C-46 (a total of seven counts), relating to a single unloaded semi-automatic handgun. He is further charged with two counts under the Criminal Code alleging breach of release conditions relating to firearm possession and alcohol consumption. As well, Mr. Marquette faces charges in the Ontario Court of Justice under the Highway Traffic Act, R.S.O. 1990, c. H.8.

[2] The offences are alleged to have occurred on August 9, 2018. Mr. Marquette was arrested on that date following a traffic stop in St. Catharines for exceeding the speed limit. He was subsequently committed for trial on the charges before this court, following a preliminary hearing. A jury trial is scheduled to commence June 29, 2020.

[3] Mr. Marquette has brought an application pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms, alleging infringement of his Charter rights under s. 9 (arbitrary detention), s. 10(b) (rights to counsel) and s. 8 (search and seizure). Relying on s. 24(2), he seeks exclusion of evidence, alleging that its admission would bring the administration of justice into disrepute.

[4] For the reasons below, I have concluded that there has been no breach of Mr. Marquette’s Charter rights. Accordingly, I am dismissing his application.

II. Factual Background

[5] There is no real dispute about what occurred the evening of Mr. Marquette’s arrest, as outlined by the police witnesses at the preliminary hearing. On Friday, August 9, 2018, Constable Nigel Thompson of the Ontario Provincial Police was conducting speed enforcement on Highway 406 in St. Catharines. His police cruiser was equipped with an electronic speed recording device, as well as an approved screening device (ASD) for use if a breath demand for roadside screening were made pursuant to s. 254 of the Criminal Code.

[6] At 10:50 p.m., PC Thompson stopped a vehicle recorded to be travelling well above the speed limit. The vehicle came to a stop on an off-ramp next to a live lane of traffic. The driver was Mr. Marquette, who had turned 18 years old earlier that month. At that time, he was subject to conditions imposed upon his release following his arrest on criminal charges (as a youth) on two occasions in the previous three months.

[7] PC Thompson testified that when the car window was opened, he noted the strong smell of marihuana. In answer to his inquiry, Mr. Marquette explained that he had smoked a joint earlier. PC Thompson asked if there was anymore marihuana in the vehicle. Mr. Marquette answered yes. He then reached for a backpack in the rear seat, pulled two buds of marihuana from a clear plastic bag in the backpack, and handed them to PC Thompson. From his vantage point, PC Thompson could see more marihuana in the bag – there was a large quantity. At the officer’s request, Mr. Marquette exited the vehicle. PC Thompson then arrested him for marihuana possession, at 10:51 p.m.

[8] After arresting Mr. Marquette, PC Thompson noticed the smell of alcohol on Mr. Marquette’s breath, and observed that his eyes were red and his face flushed. He asked Mr. Marquette if he had consumed any alcohol. He replied that he had two beers 30 minutes earlier. At 10:52 p.m., PC Thompson made a demand for an ASD breath sample. Mr. Marquette replied that he understood the demand. PC Thompson then placed Mr. Marquette in the police cruiser. The officer testified that he decided to wait 15 minutes before administering the ASD breath test to ensure there were no contaminants in Mr. Marquette’s breath from smoking.

[9] After placing Mr. Marquette in the police cruiser, PC Thompson returned to Mr. Marquette’s vehicle and performed a cursory search. He located two large Ziplock bags of marihuana in the backpack and a large roll of cash in the centre console. A second police officer, PC Shawn Richard, arrived at 11:03 p.m. Upon opening the driver’s side door of the vehicle, PC Richard saw a black handgun on the driver-side floor board. The handgun was not loaded. It was later identified as a Glock model 19 semi-automatic handgun, a prohibited weapon. PC Richard then arranged to have the vehicle towed to the police station, stating that he did not consider it safe to continue searching the vehicle next to a live lane of traffic.

[10] After PC Richard’s arrival on the scene, PC Thompson returned to the police cruiser and demonstrated the ASD for Mr. Marquette. At 11:07 p.m. Mr. Marquette provided a suitable ASD breath sample, which indicated a “fail” reading (over 100 mg of alcohol in 100 ml of blood). PC Thompson then arrested Mr. Marquette for operating a motor vehicle with more than 80 mg of alcohol in 100 ml of blood (driving while ‘over 80’). PC Thompson then conducted a “frisk search” of Mr. Marquette, locating another large band of cash.

[11] PC Thompson read Mr. Marquette the standard “caution statement” at 11:15 p.m., followed by “rights to counsel” at 11:16 p.m. Mr. Marquette replied that he understood. In response to PC Thompson’s inquiry about counsel, Mr. Marquette directed the officer to a lawyer’s card in his wallet.

[12] At 11:17 p.m., PC Thompson made a breath demand, to be administered at the police station. He then left with Mr. Marquette for the police station in Niagara Falls, arriving at 11:34 p.m. Upon arrival at the police station, Mr. Marquette was processed and placed in a police cell.

[13] At 11:47 p.m., PC Thompson called the number on the business card for Mr. Marquette’s counsel, leaving a voicemail when nobody answered. At 11:50 p.m. he tried a second number he had for that counsel, with the same result. At 11:59 p.m., PC Thompson advised Mr. Marquette that his lawyer had not called back and asked if he wanted to speak to duty counsel. Mr. Marquette said yes. He spoke to duty counsel by telephone in private a short time later. He was returned to his cell at 12:12 a.m.

[14] In order to allow further time for Mr. Marquette’s counsel of choice to call back, PC Thompson waited a further 28 minutes before turning Mr. Marquette over to the BAT officer (breath technician) to administer the breath test. The breath test occurred at approximately 12:40 a.m., one hour and 50 minutes after the traffic stop. The breath samples Mr. Marquette provided indicated readings of 60 mg and 50 mg in 100 ml of blood, below the legal limit.

[15] Upon further search of Mr. Marquette’s vehicle while he was with the BAT officer, PC Thompson and PC Richard located 21.1 grams of cocaine and a rolled up $20 bill. The cash in Mr. Marquette’s possession was counted and determined to be $3,150. Crown counsel indicated that two cell phones were also located in the vehicle.

[16] At 3:36 a.m., police received a call back from Mr. Marquette’s counsel of choice. At 3:39 a.m., Mr. Marquette spoke with his counsel by telephone privately. At 8:30 a.m., Mr. Marquette made an inculpatory videotaped statement to police.

III. Position of the Parties and Matters to be Decided

(a) Defence Position

[17] The defence argues that following a legal traffic stop relating to Mr. Marquette’s compliance with the Highway Traffic Act, subsequent police conduct breached Mr. Marquette’s Charter rights under s. 9 (arbitrary detention), s. 10(b) (rights to counsel) and s. 8 (search and seizure). The defence position is summarized below.

[18] After stopping Mr. Marquette, PC Thompson had no justifiable grounds for asking any questions beyond those relating to compliance with driving laws and ensuring highway safety. The smell of marihuana alone was not sufficient to suspect Mr. Marquette was impaired. There was no lawful basis to question him about the marihuana smell or to ask whether there was “anymore marihuana” in the vehicle. When PC Thompson asked Mr. Marquette about the smell of marihuana, the investigation moved from an investigation of a driving offence to a criminal investigation. Mr. Marquette was detained for that purpose. Before being asked about the marijuana smell (or at latest before being asked if there was “anymore marihuana”), Mr. Marquette should have been informed of his right to counsel and provided the opportunity to contact counsel. As a result, there were breaches of his Charter right under s. 9 not to be arbitrarily detained and his rights to counsel under s. 10(b).

[19] The defence also argues that but for Mr. Marquette’s participation in the Charter-breaching conversation with PC Thompson, PC Thompson would have had no grounds to (i) arrest Mr. Marquette for the drug offences, (ii) make breath demands and administer breath testing, (iii) arrest him for driving while ‘over 80’, or (iv) search his vehicle or his person. In addition, before asking if Mr. Marquette had “anymore marihuana” in the vehicle, PC Thompson did not take the necessary steps to ensure that Mr. Marquette was providing voluntary, informed consent to any resulting seizure: see R. v. Wills (1992), 7 O.R. (3d) 337, at pp. 24-25. As well, Mr. Marquette was not informed of his right to counsel until 26 minutes after the traffic stop, by which time searches/seizures of evidence at the roadside scene had already occurred. Therefore, in addition to breaches of his Charter rights under ss. 9 and 10(b), his right to be secure against unreasonable search and seizure under s. 8 was also breached.

[20] The defence also submits that, after weighing the factors set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the admission of the evidence obtained following the Charter breaches would bring the administration of justice into disrepute, having regard to all the circumstances. The impugned evidence includes (i) the drugs and the handgun in Mr. Marquette’s vehicle, (ii) the cash in the vehicle and on his person, and (ii) his subsequent videotaped statement to police. In all the circumstances, that evidence should be excluded under s. 24(2) of the Charter.

(b) Crown’s Position

[21] The Crown disputes that there has been any breach of Mr. Marquette’s Charter rights. The Crown position is summarized below.

a. Mr. Marquette was lawfully detained. His questioning constituted permissible inquiries relating to driving enforcement, which includes confirming the sobriety of drivers. b. Any shift in police purpose during the brief investigation did not detract from the legitimate driving enforcement investigation. c. PC Thompson had reasonable and probable grounds to arrest Mr. Marquette for marihuana possession and for driving while ‘over 80’. d. Any delay in advising Mr. Marquette of his rights to counsel resulted from the on-going investigation and did not impact on implementation of those rights. e. The search of Mr. Marquette’s vehicle and person were lawful searches incident to arrest.

[22] In the alternative, if the court determines that Mr. Marquette’s Charter rights have been infringed, the Crown argues that admission of the evidence would not bring the administration of justice into disrepute. Among other things, the offences charged are serious, involving both drug trafficking and firearms. The police officers acted in good faith, demonstrated by their diligent efforts to allow Mr. Marquette to speak to his counsel of choice before the breath test was administered. In all the circumstances, the evidence should not be excluded under s. 24(2).

(c) Matters to be Decided

[23] There is no dispute that the initial traffic stop of Mr. Marquette for driving enforcement purposes was lawful and did not in itself raise any Charter issues. Accordingly, the issues to be determined are as follows:

a. Roadside police questioning: Did the roadside questioning of Mr. Marquette breach his Charter rights? b. Rights to counsel upon arrest: If not previously breached, were Mr. Marquette’s s. 10(b) rights to counsel breached in connection with his arrest for marihuana possession? c. Legality of searches: Were the searches of Mr. Marquette’s vehicle and his person lawful searches incident to arrest? d. Exclusion of evidence: If Mr. Marquette’s Charter rights were breached, would the admission of the evidence bring the administration of justice into disrepute?

[24] In the balance of these Reasons, I will address each of those issues in turn.

IV. Roadside Police Questioning

[25] Did the roadside questioning of Mr. Marquette breach his Charter rights?

[26] There is no dispute that the initial traffic stop of Mr. Marquette was lawful and in itself did not raise any Charter issues. The speed enforcement equipment in PC Thompson’s police cruiser indicated that Mr. Marquette’s vehicle significantly exceeded the speed limit. The officer was clearly acting in the lawful execution of his duties when he initiated the traffic stop and approached Mr. Marquette’s vehicle.

[27] The Supreme Court of Canada has confirmed that even a random traffic stop (authorized in Ontario under s. 216 of the Highway Traffic Act) is lawful under the Charter “if the police act within the limited highway-related purposes for which the powers were conferred”: R v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 22. Therefore, the driver’s detention for those purposes does not in itself breach the Charter right in s. 9 not to be arbitrarily detained or give rise to rights to counsel under s. 10(b): Nolet, at para. 22, R. v. Harris, 2007 ONCA 574, 87 O.R. (3d) 214, at para. 47. In R. v. Ladouceur, 1990 SCC 108, [1990] 1 S.C.R. 1257, at p. 1287, the Supreme Court further described the permitted highway-related purposes as “reasons related to driving a car such as checking the driver’s licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle.”

[28] In R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3, the Supreme Court recognized that when making a traffic stop, police are entitled to engage in questioning within the scope of their duties. Each of those prosecutions involved a roadside traffic stop, one of them random, the other for breach of driving laws. In each case, the police officer who approached the vehicle smelled alcohol. He asked the accused whether he had been drinking and he answered yes. In each case, the accused was given a sobriety test (in one case a roadside breath test, in the other physical coordination tests), which the accused failed, leading to his arrest for drinking and driving offences. It was conceded in each case that the accused was not given rights to counsel prior to his arrest. The court considered whether the accused’s s. 10(b) rights were infringed when the police officer (i) asked the accused whether he had been drinking, and (ii) carried out the roadside sobriety tests, in each case without first giving the accused rights to counsel. The Supreme Court held that in neither circumstance was there a breach the accused’s s. 10(b) rights: Orbanski, at para. 60.

[29] In reaching its decision that the initial questioning did not result in a Charter breach, the court in Orbanski did not set out any prescribed language that the police must or must not use in their interactions with the detained person in carrying out their duties, stating as follows (at paras. 45 and 47):

The screening of drivers [to test their sobriety] necessarily requires a certain degree of interaction between police officers and motorists at the roadside. It is both impossible to predict all the aspects of such encounters and impractical to legislate exhaustive details as to how they must be conducted…. [A]ny enforcement scheme must allow sufficient flexibility to be effective. The police power to check for sobriety, as any other power, is not without its limits; it is circumscribed, in the words of the majority of this Court in [R. v. Dedman, 1985 SCC 41, [1985] 2 S.C.R. 2,] by that which is "necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference" (p. 35).

Whether a particular screening measure will fall within the scope of authorized police action is a question that necessarily calls for a case-specific inquiry.

[30] The Supreme Court expressed similar sentiments, in Nolet. In that case, after stopping an empty commercial tractor-trailer in a “spot check” on the Trans-Canada Highway, RCMP officers discovered evidence of several trucking regulatory violations. In the course of their investigation, “[o]ne discovery led to another”, leading the police to discover a significant amount of marihuana and cash concealed in the vehicle: Nolet, at para. 2. The accused were charged with drug offences and possession of crime proceeds. They alleged that their Charter rights had been infringed. The Supreme Court did not agree. In that context, the court made the following comments about roadside stops (at paras. 3-4):

Clearly random checks of vehicles for highway purposes must be limited to their intended purpose and cannot be turned into "an unfounded general inquisition or an unreasonable search": R. v. Mellenthin, 1992 SCC 50, [1992] 3 S.C.R. 615, at p. 624.

Nevertheless, roadside stops sometimes develop in unpredictable ways. It is necessary for a court to proceed step by step through the interactions of the police and the appellants from the initial stop onwards to determine whether, as the situation developed, the police stayed within their authority, having regard to the information lawfully obtained at each stage of their inquiry.

[31] In Nolet, at para. 32, the court also considered whether the continuation of the regulatory investigation became unlawful once the police suspected criminal activity, causing the investigation to fall “outside any valid regulatory purpose”. At para 36, the Supreme Court confirmed the view of the court below that “the lawful aim [a valid regulatory investigation] cannot be used as a pretext, ruse or subterfuge to perpetuate the unlawful aim [an unfounded criminal investigation].” At para. 37, the court went on to find that having more than one purpose does not in itself alter the legality of the investigation, as follows:

It is to be expected that RCMP officers patrolling the Trans-Canada Highway are interested in any number of potential infractions including criminal offences as well as provincial matters. It could hardly be otherwise. However, as pointed out by Martin J.A., "[t]he lawful search was not converted into an unlawful or an unreasonable search because the officers, in addition, had the expectation that the search might also uncover drugs": R. v. Annett (1984), 17 C.C.C. (3d) 332 (Ont. C.A.), at p. 335, leave to appeal refused, [1985] 1 S.C.R. v.

[32] The defence argues that following Mr. Marquette’s detention for driving enforcement purposes, PC Thompson had no justifiable grounds for asking any questions beyond those relating to driving-related matters. In particular, the defence submits that there was no legal basis to question Mr. Marquette about the smell of marihuana, since the smell alone was not sufficient to suspect Mr. Marquette was impaired.

[33] In support of that position, the defence relies on the Ontario Court of Appeal decision in R. v. Polashek (1999), 45 O.R. (3d) 434. In that case, after a roadside stop for a Highway Traffic Act violation, the police officer detected a strong odour of marihuana from the vehicle while speaking to the driver. The officer told driver that he smelled marihuana. The driver looked around the vehicle and said “No, you don’t.” Based on the smell, the driver’s response, the area in which the driver was stopped, and the time of night, the officer believed he had grounds to arrest the driver. Upon a cursory search of the driver’s person, the officer found what he believed to be cannabis resin and arrested the driver for marihuana possession: Polashek, at p. 6. The driver challenged the legality of the arrest and search on the basis that the mere smell of marihuana did not provide reasonable and probable grounds for arrest. The Court of Appeal declined to interfere with the trial judge’s finding that the officer had reasonable and probable ground to arrest the driver. In reaching that conclusion, the court made the following observations about the defence argument that the mere smell of marihuana did not provide grounds for arrest (Polashek, at pp. 9-10):

Had Constable Ross based his arrest of the appellant solely on the presence of the odour I would have held that there were not reasonable and probable grounds to make the arrest…. The sense of smell is highly subjective and to authorize an arrest solely on that basis puts an unreviewable discretion in the hands of the officer. By their nature, smells are transitory, and thus largely incapable of objective verification. A smell will often leave no trace. As Doherty J.A. observed in R. v. Simpson (1993), 12 O.R. (3d) 182 (C.A.) at p. 202: ". . . subjectively based assessments can too easily mask discriminatory conduct based on such irrelevant factors as the detainee's sex, colour, age, ethnic origin or sexual orientation."

On the other hand, I would not go so far as was urged by the appellant that the presence of the smell of marijuana can never provide the requisite reasonable and probable grounds for an arrest. The circumstances under which the olfactory observation was made will determine the matter.

[34] Relying on the finding in Polashek that the smell of marihuana alone does not provide sufficient grounds to arrest, the defence argues that there was no legal basis to question Mr. Marquette about the smell of marihuana. The defence also submits that when Mr. Marquette was asked about the smell of marihuana (or at latest when he was asked if there was “anymore marihuana”), the investigation moved from a driving investigation to a criminal investigation, engaging Mr. Marquette’s Charter rights.

[35] I disagree. When PC Thompson asked about the smell of marijuana, he was acting within “the limited highway-related purposes” permitted by law: Nolet, at para. 22. Those permitted purposes include “checking … the sobriety of the driver”: Ladouceur, at p. 1287. While the smell of marijuana alone would not have provided grounds to arrest Mr. Marquette for drug possession, it nonetheless provided sufficient grounds for further inquiries related to the sobriety of Mr. Marquette, clearly a permitted highway-related purpose.

[36] I have reached the same conclusion about the further inquiry of whether Mr. Marquette had “anymore marihuana”. If present in the vehicle, marihuana would have been available for his use while operating the vehicle. Therefore, whether there was “anymore marihuana” was a relevant consideration in checking Mr. Marquette’ sobriety.

[37] As well, consistent with the court’s determination in Nolet, the fact that (at the time of the traffic stop) it would have been a criminal offence to possess even a small amount of marihuana does not detract from the legitimacy of the highway-related purpose of the inquiries. The officer’s inquiries about the smell of marihuana and its presence in the vehicle served both purposes. There is no basis to conclude that one purpose was a “pretext, ruse or subterfuge” for another illegitimate purpose.

[38] In all the circumstances, I find that PC Thompson in his questioning of Mr. Marquette acted reasonably in carrying out permitted highway-related purposes, as contemplated by Nolet and Ladouceur. Accordingly, that questioning did not breach Mr. Marquette’s s. 9 right not to be arbitrarily detained or require him to be provided rights to counsel under s. 10(b).

V. Rights to Counsel Upon Arrest

[39] Were Mr. Marquette’s s. 10(b) rights to counsel breached in connection with his arrest for marihuana possession?

[40] Given my finding that Mr. Marquette’s Charter rights were not breached in the initial questioning, it is clear that PC Thompson had reasonable and probable grounds to arrest Mr. Marquette, as contemplated by s. 495(1) of the Criminal Code and R. v. Storrey, 1990 SCC 125, [1990] 1 S.C.R. 241. Those grounds were based on the smell of marihuana, Mr. Marquette’s statement that he had smoked marihuana prior to driving, his confirmation that there was marihuana in the vehicle, and PC Thompson’s observation of the marihuana. After seeing the marihuana and being handed two buds by Mr. Marquette, PC Thompson asked him to exit the vehicle and promptly arrested him, a minute after the initial traffic stop.

[41] Under s. 10(b) of the Charter, everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. The s. 10(b) right to counsel consists of two parts: the informational component (to be made aware of the right to counsel) and the implementational component (to be provided the opportunity to consult counsel): see R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 27. Mr. Marquette was arrested at 10:51 p.m. He was cautioned and informed of his right to counsel 24-25 minutes later at 11:15 to 11:16 p.m., following his arrest for driving while ‘over 80’. There was no attempt to contact counsel until 11:47 p.m., after he arrived at the police station. In these circumstances, were his s. 10(b) rights infringed?

[42] According to the defence, assuming PC Thompson was not required to give Mr. Marquette his rights to counsel before then, the officer was clearly required to do so “without delay” once Mr. Marquette was under arrest for drug possession. Defence counsel argues that Mr. Marquette should have been promptly advised of his right to counsel and provided the means to contact counsel while still at roadside by providing him with a police cellphone or allowing him to use his own cellphone (two of them being found upon subsequent search of his vehicle). Alternatively, Mr. Marquette could have been promptly taken to the police station to allow him to contact counsel from there.

[43] Once again, I disagree. Consistent with the Crown’s position, I have concluded that in the unusual circumstances of this case, Mr. Marquette’s rights to counsel were superseded until after the results of the ASD breath test were available, after which he was arrested for driving while ‘over 80’ and promptly informed of his right to counsel.

[44] Within a minute of Mr. Marquette’s exit from the vehicle and his arrest for drug possession at 10:51 p.m., PC Thompson made an ASD breath demand, after forming reasonable grounds to suspect that Mr. Marquette had alcohol in his system (as required by s. 254 of the Criminal Code) based on the smell of alcohol on his breath, his red eyes, his flushed face and his admitted alcohol consumption. Once the breath demand was made, Mr. Marquette was required by s. 254 to provide forthwith a breath sample that, in the officer’s opinion, would enable proper analysis of the sample. PC Thompson then decided to wait 15 minutes before administering the breath test in order to ensure the result was not tainted by Mr. Marquette’s smoking, as the officer was entitled to do under s. 254. During that time, PC Richard located a firearm in Mr. Marquette’s vehicle at 11:03 p.m. A short time later (at 11:07 p.m.), PC Thompson administered the ASD breath test, which registered a “fail”. As a result, the officer had reasonable and probable grounds to arrest Mr. Marquette for driving while ‘over 80’. He did so, followed by a “frisk search” of Mr. Marquette. At 11:15 to 11:16 p.m., Mr. Marquette was cautioned and informed of his right to counsel. At 11:17 p.m., PC Thompson made a further breath demand to be administered at the police station, and promptly left for the station.

[45] In these circumstances, I agree with Crown counsel that PC Thompson satisfied the informational component of the s. 10(b) right to counsel when he advised Mr. Marquette of his rights to counsel following his arrest for driving while ‘over 80’.

[46] Based on previous case law, in the context of an ASD breath demand, a detainee’s rights to counsel are superseded by the requirement to provide the breath sample forthwith: see Orbanski, at paras. 52-53 and 60, relying on R. v. Thomsen, 1988 SCC 73, [1988] 1 S.C.R. 640. PC Thompson made the ASD breath demand at 10:52 a.m. upon forming the grounds to do so, within a minute of arresting Mr. Marquette for drug possession. As indicated in Nolet, at para. 4, “roadside stops sometimes develop in unpredictable ways.” In the dynamic circumstances of this case, I have concluded that there was “no realistic opportunity” to inform Mr. Marquette of his right to counsel and provide him with the opportunity to exercise that right prior to the ASD breath demand: see R. v. Cote (1992), 6 O.R. (3d) 667, at p. 6; R. v. Latour (1997), 34 O.R. (3d) 150, at p. 12; R. v. Torsney, 2007 ONCA 67, 221 O.A.C. 191, at paras. 8-13. Once the breath demand was made, Mr. Marquette’s s. 10(b) rights were superseded until after the breath test was administered. Once the breath test occurred and the “fail” reading obtained, PC Thompson arrested Mr. Marquette and promptly advised him of his rights to counsel, as he was required to do under s. 10(b).

[47] As explained further below, I have also concluded that there was no breach of the implementational component of Mr. Marquette’s rights to counsel in this case. In that regard, I agree with Crown counsel that there was no realistic opportunity to permit Mr. Marquette to consult with counsel before arriving at the police station. Some of the relevant considerations are addressed below.

a. I see no merit in the suggestion that Mr. Marquette could have been allowed to use one of the cell phones later found in his vehicle. Around the same time, a firearm was located in the vehicle, which had not been thoroughly searched at roadside for safety reasons. Allowing Mr. Marquette to use one of the cell phones in the vehicle had the prospect of interfering with the integrity of the investigation as well as raising issues of officer safety: see R. v. McWhirter, 2017 BCSC 2314, at para. 155. b. As also noted in McWhirter, in light of privacy and safety issues, the police are under no legal duty to provide their own cell phone to a detained individual: see R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 27. c. It would have been problematic at roadside to provide Mr. Marquette with the required privacy to consult counsel. Being next to a live lane of traffic, safety was also an issue. d. Once informed of his right to counsel, Mr Marquette was promptly taken to the police station, where neither access to a telephone nor the privacy to consult counsel was an issue. e. As discussed further below, Mr. Marquette was not able to speak to counsel of choice until approximately four hours after initial attempts to reach counsel shortly before midnight on a Friday evening, supporting the conclusion there was no realistic opportunity to consult with counsel prior to arriving at the police station.

[48] I have also concluded that there was no breach of the implementational component of Mr. Marquette’s rights to counsel once they arrived at the police station. After Mr. Marquette was placed in a cell, PC Thompson diligently tried to reach Mr. Marquette’s chosen counsel, first calling the telephone number on the business card he was given and leaving a message, then calling another number the officer had for that counsel, with the same result. After advising Mr. Marquette that counsel had not called back, PC Thompson asked if Mr Marquette wanted to speak to duty counsel. Mr. Marquette did so. Rather than immediately turning him over to the breath technician, PC Thompson waited a further 28 minutes to allow further time for counsel of choice to call back. Counsel ultimately called back approximately four hours after the initial message was left for her. In the interim, the technician proceeded with the breath test, which resulted in readings below the legal blood alcohol limit.

[49] In all the circumstances, I conclude that a breach of Mr. Marquette’s s. 10(b) rights to counsel has not been established.

VI. Legality of Searches

[50] Were the searches of Mr. Marquette’s vehicle and his person lawful searches incident to arrest?

[51] Under s. 8 of the Charter, everyone has the right to be secure against unreasonable search or seizure. A police search will be reasonable if it is authorized by law, the law itself is reasonable and the manner in which the search is carried out is reasonable: R. v. Collins, 1987 SCC 84, [1987] 1 S.C.R. 265, at p. 278. Absent a warrant, a police search is presumed to be unreasonable. The burden of proof in on the Crown to show that a warrantless search is reasonable on a balance of probabilities: Collins, at pp. 277-78, citing Hunter v. Southam Inc., 1984 SCC 33, [1984] 2 S.C.R. 145, at p. 161.

[52] There are several circumstances in which the Crown is able to demonstrate that a warrantless search is nonetheless reasonable for the purposes of s. 8 of the Charter. One of those circumstances is search incident to arrest, which the Supreme Court has described as “an established exception to the general rule that warrantless searches are prima facie unreasonable”: R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 84.

[53] At common law, police are permitted to conduct a search incident to arrest but are subject to certain limits in doing so. In case law relating to search incident to arrest, the courts recognize the state’s interest in investigating and punishing criminal conduct, and at the same time uphold the importance of protecting the privacy and individual rights of citizens: see Cloutier v. Langlois, 1990 SCC 122, [1990] 1 S.C.R. 158, at pp. 182-83.

[54] Depending on the circumstances, a search incident to arrest may include a “frisk search” of the person arrested as well as a search of the immediate surroundings, including a vehicle connected to the arrest: see Cloutier, at p. 185; R. v. Caslake, 1998 SCC 838, [1998] 1 S.C.R. 51, at paras. 15-23. In Caslake, at paras. 16-17, the Supreme Court declined to find that there was any strict temporal limit for the search (relative to the arrest), focusing instead on whether the search was “truly incidental to the arrest in question.”

[55] In R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 16, the Supreme Court described the limits of the search incident to arrest power in the following terms:

Although the common law power to search incident to arrest is deeply rooted in our law, it is an extraordinary power in two respects. The power to search incident to arrest not only permits searches without a warrant, but does so in circumstances in which the grounds to obtain a warrant do not exist. The cases teach us that the power to search incident to arrest is a focussed power given to the police so that they can pursue their investigations promptly upon making an arrest. The power must be exercised in the pursuit of a valid purpose related to the proper administration of justice. The central guiding principle is that the search must be, as the case law puts it, truly incidental to the arrest.

[56] Relying on Cloutier, the Supreme Court in Caslake, at paras. 19-20, further described a “valid purpose” of search incident to arrest in the following terms:

[T]he three main purposes of search incident to arrest are [1] ensuring the safety of the police and public, [2] the protection of evidence from destruction at the hands of the arrestee or others, and [3] the discovery of evidence which can be used at the arrestee's trial. 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…. Further, the officer's belief that this purpose will be served by the search must be a reasonable one.

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.

[57] In the present case, following the traffic stop, the police officers carried out the following searches/seizures: (i) the “seizure” of the two marijuana buds when Mr. Marquette handed them to PC Thompson after he inquired if Mr. Marquette had “anymore marijuana”; (ii) PC Thompson’s cursory search of Mr. Marquette’s vehicle following his arrest for marihuana possession, during which the officer located two large Ziplock bags of marihuana and roll of cash; (iii) PC Richard’s cursory search of the vehicle, in which he found the Glock semi-automatic handgun; (iv) PC Thompson’s “frisk search” of Mr. Marquette following his arrest for driving while ‘over 80’, in which the officer located another large band of cash; (v) the search of the vehicle at the police station, during which PC Thompson and PC Richard located 21.1 grams of cocaine, a rolled up $20 bill and two cell phones.

[58] I have not included in the foregoing list the taking of breath samples from Mr. Marquette roadside and later at the police stations, which constitute seizures for the purpose of s. 8: see R. v. Bernshaw, 1995 SCC 150, [1995] 1 S.C.R. 254, at para. 51; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 13. Given the findings I have already made, there is no issue that the breath samples were lawfully taken in accordance with s. 254 of the Criminal Code and s. 8 of the Charter.

[59] The Crown argues that the searches/seizures listed above involving Mr. Marquette’s person and his vehicle were lawful as being incident to arrest. There was no breach of Mr. Marquette’s rights under s. 8 of the Charter. I agree.

[60] I have already found that PC Thompson had reasonable grounds to arrest Mr. Marquette for marihuana possession, as contemplated by s. 495(1) of the Criminal Code and Storrey. As well, given the “fail” reading for the ASD breath test, the officer had reasonable grounds to arrest him for driving while ‘over 80’.

[61] Each of the searches/seizures listed above were made for a valid purpose, being the protection and/or discovery of evidence. In the case of the officers’ cursory searches of the vehicle and PC Thompson’s “frisk search” of Mr. Marquette, officer safety was also an additional valid purpose for the search. One of those cursory searches resulted in the discovery of a semi-automatic handgun, an obvious safety concern, even though the weapon turned out to be unloaded.

[62] Each of those searches/seizures was carried out in a reasonable and proportionate manner. Their timing was proximate to the arrests or, in the case of the detailed search of the vehicle, was carried out at the police station as soon as it was safe to do so.

[63] The defence also argued that before asking if Mr. Marquette had “anymore marihuana” in the vehicle, PC Thompson did not take the necessary steps to ensure that Mr. Marquette was providing voluntary, informed consent to any resulting seizure (see R. v. Wills, at pp. 24-25). I see no merit in that argument. I have already found that PC Thompson was acting within the highway-related purposes permitted by law when he asked Mr. Marquette whether he had “anymore marihuana”. When he answered in the affirmative, PC Thompson already had reasonable and probable grounds to arrest Mr. Marquette for marihuana possession, based on the smell of marihuana, Mr. Marquette’s statement that he had smoked marihuana prior to driving, and his verbal confirmation that there was marihuana in the vehicle. Whether Mr. Marquette consented to “seizure” of the marihuana that he then handed to the officer is irrelevant – PC Thompson would have been immediately entitled to seize the marihuana incident to Mr. Marquette’s arrest whether or not it had been handed to him. In these circumstances, I do not consider the principles in R. v. Wills to be a relevant consideration.

[64] In all the circumstances, there was no breach of Mr. Marquette’s s. 8 right to be secure against unreasonable search or seizure.

VII. Exclusion of Evidence

[65] If Mr. Marquette’s Charter rights were breached, would the admission of the evidence bring the administration of justice into disrepute?

[66] Having found no Charter breach, it is unnecessary to consider whether evidence should be excluded under s. 24(2) on the basis that its admission would bring the administration of justice into disrepute. I see no point in addressing this issue in any detail, given the balancing exercise that would be required had I found a Charter breach (which would include consideration of the seriousness of a breach that I have not found to be present). I will nonetheless provide the following brief comments.

[67] In R. v. Grant, the Supreme Court outlined the factors to be considered when determining whether to exclude evidence under s. 24(2). According to Grant, at para. 71, if there is a Charter breach, the court must assess and balance the effect of admitting the evidence on society’s confidence in the administration of justice, taking into account the following factors: (i) the seriousness of the Charter-infringing state conduct; (ii) the impact on the Charter-protected interests of the accused; and (iii) society’s interest in the adjudication of the case on its merits.

[68] While I see no reason for detailed analysis relating to those factors, it is clear that some of the evidence before me would be relevant to consider had I found a Charter breach. For example, in considering the first and second factor, I agree with Crown counsel that there was no evidence of bad faith on the part of the officers involved. PC Thompson’s diligent efforts to provide access to Mr. Marquette’s counsel of choice (to the possible detriment of their case against the accused) illustrates that point. In a dynamic situation, they conducted themselves professionally and generally acted in a proportionate, reasonable manner.

[69] In addition, it is worthy of note that once Mr. Marquette received advice from his counsel of choice, he proceeded to make an inculpatory statement to police. That fact may be relevant when considering the impact on the accused’s Charter-protected rights of any delay in providing him with rights to counsel. Mr. Marquette’s age and relative inexperience with the criminal justice system may also be relevant considerations.

[70] As well, when considering the third factor, being society’s interest in the adjudication of the case on its merits, it goes without saying that the charges in this case are serious. The dangers to society’s safety and wellbeing associated with drug trafficking (including possession for that purpose) are well recognized. Combined with firearms offences, those concerns are exacerbated.

VIII. Disposition

[71] For the foregoing reasons, Mr. Marquette’s application alleging breach of his rights under ss. 8, 9 and 10(b) of the Charter is dismissed.

[72] At the conclusion of the application hearing, I adjourned this matter to an assignment court on April 22, 2020 to set a date for an oral decision. Previously, this matter had been further adjourned to June 29, 2020 for trial with a jury.

[73] Since I am releasing these Reasons in writing instead of giving an oral decision, it would have made sense (in simpler times) to vacate the assignment court return date and confirm the June 29 trial date. I hesitate to do so, however, given the disruption to the court schedule arising from the COVID-19 emergency.

[74] By reason of the Chief Justice’s blanket order dated March 15, 2020 relating to the COVID-19 emergency, (i) the April 22, 2020 return date for this matter was adjourned to June 3, 2020, (ii) the accused was required to appear in court at 10:00 a.m. on that date, and (ii) a bench warrant with discretion was issued to return on that date. Out of an abundance of caution, I am not going to attempt to interfere with the June 3 return date (or the bench warrant) for this matter.

[75] This matter will therefore return to court on June 3, 2020 at 10:00 a.m., subject to further order of this court. Since a designation for defence counsel has been filed with the court, she (or her designate) may appear in Mr. Marquette’s stead on that date.

[76] For the time being, the June 29, 2020 trial date remains in place. However, given current circumstances, I suggest that counsel be in touch with the trial coordinator well prior to that date.

The Honourable Mr. Justice R. A. Lococo

Decision date: April 2, 2020 Release date: September 16, 2020