OSHAWA COURT FILE NO.: CR-21-15496
DATE: 20211215
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
TEVIN ELLIS
Applicant
Paul Greenway, for the Respondent pgreenway@oshawalawyers.com
Tobias Okada-Phillips, for the Applicant tobias.okadaphillips@roylelaw.ca
HEARD: November 29-30, 2021
REASONS for ruling on S. 8, S. 10(B), and s. 24(2) APPLICATION
LEIBOVICH J.
[1] Mr. Ellis is charged with one count of possession of a Schedule I substance, namely Fentanyl, for the purpose of trafficking, one count of possession of a Schedule I substance, namely Cocaine, for the purpose of trafficking, one count of possession of a Schedule I substance, namely Methamphetamine, for the purpose of trafficking, and one count of possession of a Schedule II substance, namely MDMA, for the purpose of trafficking.
[2] The charges arose out of a police traffic stop in the early morning hours of November 21, 2019. The officer searched the car driven by Mr. Ellis pursuant to the Cannabis Control Act, 2017, S.O. 2017, c. 26, Sched. 1 (“CCA”). During the course of that search, the officer found a bag containing different packages of drugs. Counsel for Mr. Ellis has brought an application to have the evidence obtained as a result of the search excluded. Counsel submits that the officer did not have the requisite grounds to search the car and, even if he did, the manner of the search violated Mr. Ellis’s rights under s. 8 of the Charter. Counsel also submits that Mr. Ellis’ rights under s. 10(b) of the Charter were violated as Mr. Ellis’ was not informed immediately of his rights to counsel. The Crown submits that there was no breach of Mr. Ellis’ s. 8 rights as the officer had grounds to believe that marijuana was accessible in contravention of the CCA and thus he was authorized to search the car. The Crown concedes that there was a breach of Mr. Ellis’ s. 10(b) rights as there was an approximately 17-minute unexplained delay in providing him his rights to counsel. However, the Crown submits that a proper analysis under s. 24(2) of the Charter supports the inclusion of the seized evidence.
[3] The application thus raises the following issues:
a. Was the search of Mr. Ellis’ car unlawful?
b. Was there a breach of Mr. Ellis’ s. 10(b) rights?
c. Should the drugs found in the search of Mr. Ellis’ car be excluded pursuant to s.24(2) of the Charter?
Brief Factual Overview
[4] At approximately 2:00 a.m. on November 21, 2019, PC Mullen saw a smart car travelling southbound on Highway 12. There was very little traffic. The smart car was swerving within its lane. PC Mullen activated his roof lights and initiated the traffic stop. He was concerned that the driver might be impaired or in medical distress. There is no issue taken regarding the decision to stop the car. PC Mullen testified that he approached the driver’s side of the car. There was a very strong smell of freshly burnt marijuana. He told the driver he was being stopped because of his poor driving. The driver said that he had smoked earlier in the night. The driver also said that there was no marijuana in the car. The officer asked him when he had smoked but he did not answer.
[5] PC Mullen asked the driver to step outside. He told the driver that he was searching the car to see if there was marijuana that was accessible. At the motion, PC Mullen was asked by the Crown what were his grounds to search the car:
A: The Cannabis Act
Q: What do you need to search under the Cannabis Act?
A: Reasonable and probable grounds to believe that there was marijuana within the vehicle
[6] He testified that he had reasonable grounds based on the smell of marijuana and the driver’s admission that he had been smoking. PC Mullen agreed in cross-examination that he did not notice any bag when he spoke to the driver. He did not see marijuana crumbs, or pipe, or any other drug paraphernalia. PC Mullen agreed in cross-examination that his suspicions were roused when Mr. Ellis did not answer the officer’s question regarding when he consumed the marijuana. PC Mullen agreed that he had decided that he was going to search the car when he asked Mr. Ellis to exit the car. After Mr. Ellis exited the car, PC Mullen was satisfied that Mr. Ellis was not impaired. He was not stumbling, and he was able to have a conversation.
[7] PC Mullen testified that this stop was the only stop and search he had ever done under the CCA. Prior to the stop, he had taken an online training course that contained different videos. Since he testified at the preliminary inquiry, he reviewed the online material. He did so, on his own volition, because he recognized that the answers he gave at the preliminary inquiry regarding his lack of knowledge of the operation of the CCA were terrible.
[8] PC Mullen testified that it was his understanding at the time of the stop that marijuana could not be readily available in a car. The marijuana could be in the trunk, but it could not be in the car itself unless it was pre-packaged, but he was not sure. He was unsure if marijuana could be anywhere but the trunk.
Search of the car
[9] The car was very small. It only had two front seats and no back seats. PC Mullen testified that he reached behind the driver’s seat and found a small brown duffle bag[^1]. In chief he testified that the bag was 6-12 inches behind the driver’s seat. In cross-examination, he agreed that all he could say was that the bag was behind the driver’s seat. If he had a flashlight, he would have used it. He does not recall how far he reached back. He was on the driver’s side when he reached into the car. He does not know if he was standing or kneeling. There was nothing blocking the front of the car to the back of the car. He did not go through the trunk of the car.
[10] The bag he found was zipped but not locked. He asked Mr. Ellis what was in the bag. Mr. Ellis did not answer. He opened the bag. The bag did not contain marijuana, but it did contain Ziploc bags with some white powder and a scale. It was subsequently determined that the Ziploc bags contained 68.2 grams of cocaine, 4.9 grams of Fentanyl, 30.9 grams of heroin and Fentanyl mix, 4.7 grams of MDMA, 6 grams of heroin and 1.5 grams of methamphetamine. PC Mullen placed Mr. Ellis under arrest at 2:13 a.m. At 2:30 a.m., PC Mullen provided Mr. Ellis with his rights to counsel. The caution was given at 2:34 a.m. and he was transported at 2:45 a.m. to the police station. PC Mullen could not say what he was doing for the 17 minutes from 2:13 a.m. to 2:30 a.m. or why there was a delay.
Law and Analysis
1) Was the search of Mr. Ellis’ car unlawful?
[11] Section 12(3) of the CCA provides police officers with the authorization to search a vehicle or boat, and any person found in it, without a warrant where the officer “has reasonable grounds to believe that cannabis is being contained in a vehicle or boat in contravention of subsection (1)”. Section 12 of the CCA reads as follows:
12 (1) No person shall drive or have the care or control of a vehicle or boat, whether or not it is in motion, while any cannabis is contained in the vehicle or boat.
Exception
(2) Subsection (1) does not apply with respect to cannabis that,
(a) is in its original packaging and has not been opened; or
(b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle or boat.
Search of vehicle or boat
(3) A police officer who has reasonable grounds to believe that cannabis is being contained in a vehicle or boat in contravention of subsection (1)may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it. [emphasis added]
[12] PC Mullen was authorized to search Mr. Ellis’ car if he had reasonable grounds to believe that cannabis was being contained in the car in violation of the CCA. As stated by de Sa J. in R. v. Sappleton, 2021 ONSC 430, [2021] O.J. No. 220, at para. 57:
That said, I do agree with the defence that the police must possess the requisite grounds to believe that marijuana is stored in contravention of the regulations in order to search the vehicle. Again, the police are only authorized to search a vehicle/person for marijuana being transported in contravention of the regulations if they possess the requisite grounds.
[13] The Crown submits that the officer had the requisite grounds to conduct the search based on:
The strong smell of freshly burnt marijuana;
Mr. Ellis’ admission that he had smoked marijuana; and
Mr. Ellis’ refusal to answer when he had smoked the marijuana.
[14] The Crown submitted that:
The smell of freshly burnt marijuana infers that it was used within a close proximity of time. PC Mullen asked whether the Applicant had smoked cannabis earlier, the Applicant admitted that he smoked earlier in the night. When asked how long ago by PC Mullen, the Applicant did not respond. Due to PC Mullen’s immediate observations of an odour of freshly burnt marijuana and the Applicant’s admission that he smoked earlier that night but refusal to answer exactly when, it is reasonable to infer that marijuana was readily available for use in the vehicle because the Applicant was the lone occupant in the vehicle and had recently consumed marijuana.
[15] In my view, PC Mullen did not have, subjectively or objectively, reasonable grounds to believe that marijuana was in the car in violation of the CCA.
No objective grounds
[16] Reasonable grounds to believe does not require proof on a balance of probabilities, much less proof beyond a reasonable doubt. But it requires more than an experience-based hunch or reasonable suspicion. The standard is one of “credibly-based probability”. R v. McNeill, 2020 ONCA 313, [2020] O.J. No. 2282, at paras. 30-34.
[17] The officer had the following bits of information:
He smelled freshly burnt marijuana;
Mr. Ellis had admitted that he smoked marijuana earlier in the night but did not say when;
Mr. Ellis told him that there was no marijuana in the car;
PC Mullen did not see any marijuana crumbs, pipe or any drug paraphernalia in the car;
PC Mullen did not see any containers or bags in the car; and,
PC Mullen did not believe that Mr. Ellis was impaired.
[18] I agree that the smell of marijuana is a factor that can be considered. As stated by the Court of Appeal in R. v. Gonzales, 2017 ONCA 543, [2017] O.J. No. 3437, at para. 97:
No bright line rule prohibits the presence of the smell of marijuana as the source of reasonable grounds for an arrest. However, what is dispositive are the circumstances under which the olfactory observation was made. Sometimes, police officers can convince a trial judge that their training and experience is sufficient to yield a reliable opinion of present possession. As with any item of evidence, it is for the trial judge to determine the value and effect of the evidence: R. v. Polashek (1999), 1999 CanLII 3714 (ON CA), 134 C.C.C. (3d) 187 (Ont. C.A.), at para. 14; R. v. Morris, 2013 ONCA 223, 106 W.C.B. (2d) 279, at para. 8; R. v. Hoang, 2013 ONCA 430, 107 W.C.B. (2d) 661, at para. 5
[19] But in this case, I do not see how the smell of freshly burnt marijuana along with an admission of prior consumption earlier in the night provides reasonable grounds to believe there is marijuana in the car any more than the smell of alcohol and an admission to drinking provides reasonable grounds to believe that there is alcohol in the car. Even if it does, it certainly does not provide reasonable grounds to believe that there is marijuana in the car that is stored in contravention of the CCA, especially given the bits of information set out above.
[20] The Crown placed great emphasis on Mr. Ellis’ refusal to answer when he smoked the marijuana as supportive of the officer having the requisite grounds. I disagree. Mr. Ellis’ silence when asked when he smoked marijuana added nothing to the evidentiary matrix that was before PC Mullen. Furthermore, PC Mullen, when asked what was his basis to believe that there was marijuana in the car, referenced only the smell of marijuana and the admission by Mr. Ellis that he had consumed marijuana earlier, although he admitted in cross-examination that Mr. Ellis’ silence on this point roused his suspicions.
No subjective grounds
[21] I have already indicated that objectively there were no reasonable grounds to believe that marijuana was stored in contravention of the CCA. A close look at PC Mullen’s evidence reveals that he himself did not subjectively have reasonable grounds to believe that marijuana was being stored in contravention of the CCA. PC Mullen testified that his authority to search the car was the CCA and that he was required to have reasonable grounds to believe that there was marijuana in the car. That is not the requirement. Rather he was authorized to conduct a search, without a warrant, if he had “reasonable grounds to believe that cannabis is being contained in a vehicle or boat in contravention of subsection (1)” which states how cannabis can and cannot be stored.
[22] PC Mullen never explained why he thought that there was cannabis in the car stored in contravention of the CCA. The Crown submits that this is, in essence, semantics, because he testified that he told Mr. Ellis that he was searching the car to see if there was any marijuana that was accessible, and therefore PC Mullen must have had the correct legal test in his mind when he conducted the search. However, in my view, it shows the opposite. PC Mullen did not tell Mr. Ellis or the court that he searched the car because he thought or believed that marijuana was stored improperly and could be easily accessed. Rather, he testified that he told Mr. Ellis that he wanted to “make sure” that no marijuana was accessible. PC Mullen, by his own admission, did not have a good understanding of the CCA, and had never conducted a search prior to this incident or since under the CCA. He erroneously believed that he simply needed reasonable grounds to believe that marijuana was in the car and that such grounds allowed him to check if the marijuana was accessible to the driver, not that he needed reasonable grounds to believe that there was marijuana in the car being transported in violation of the CCA.
[23] The search of the car was not authorized. Mr. Ellis’ s. 8 rights have been breached.
Was the manner of search unreasonable?
[24] The applicant submits that in addition to the search being unauthorized by law, the manner in which the officer searched Mr. Ellis’ car was unreasonable as was his decision to open the bag that he found. I disagree. Assuming that the search had been authorized, the manner in which PC Mullen conducted the search was perfectly reasonable. In essence, PC Mullen searched the small smart car by reaching from the front to the back. There was no back seat. If he had the requisite grounds to conduct the search, he was certainly allowed to search behind the driver’s seat as there was nothing separating the back from the front.
2) Was there a breach of Mr. Ellis’ rights pursuant to s. 10(b) of the Charter?
The initial roadside questioning
[25] In his written material, Counsel for the Applicant submitted that Mr. Ellis’ s. 10(b) rights were violated at the initial point of his stop by the police. Counsel did not pursue this submission in oral argument. PC Mullen stopped Mr. Ellis’ car because he was concerned that Mr. Ellis was impaired or in medical distress due to his driving. It is not suggested that Mr. Ellis was arbitrarily detained. PC Mullen told Mr. Ellis he was stopped because of his poor driving. PC Mullen asked Mr. Ellis if he had consumed marijuana and if so, when he had consumed it. PC Mullen was perfectly entitled to ask those questions and was not required to advise him at this stage of his rights to counsel. PC Mullen was not conducting a criminal investigation. Rather, he was conducting a Highway Traffic Act investigation. As stated by Doherty J. in R. v. Harris, 2007 ONCA 574 at para. 47:
As Mr. Dawe acknowledges in his factum, it was accepted at trial that the police are not required to give a detained person his s. 10(b) rights during a brief lawful Highway Traffic Act roadside stop. That concession was not qualified on appeal. I think the concession is consistent with those cases that hold that the exercise of the rights guaranteed by s. 10(b) is incompatible with the brief roadside detention contemplated by a stop made for road safety purposes: see R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3, [2005] S.C.J. No. 37, 196 C.C.C. (3d) 481; R. v. Smith (1996), 1996 CanLII 1074 (ON CA), 28 O.R. (3d) 75, [1996] O.J. No. 372, 105 C.C.C. (3d) 58 (C.A.); R. v. Saunders, 1988 CanLII 197 (ON CA), [1988] O.J. No. 397, 41 C.C.C. (3d) 532 (C.A.).
[26] Again, there is no dispute that PC Mullen was engaged in a valid Highway Traffic Act investigation.
The delay in providing Mr. Ellis with his rights to counsel
[27] In R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 2, 37-42, the Supreme Court of Canada held that the “right to counsel” duties that are imposed upon the police by s. 10(b) of the Charter are triggered immediately upon an arrest or detention. The Court held, in short, that the phrase “without delay” in s. 10(b) means “immediately.” In the result, upon any detention or arrest, the informational duty and implementation obligation cast upon the police must be immediately executed. The Supreme Court held that the immediacy of the obligation cast upon the police is subject only to concerns for officer or public safety, or reasonable limits that are prescribed by law and justified under s. 1 of the Charter. See also: R. v. Thompson, 2020 ONCA 264, [2020] OJ No 1757 at para. 67. R. v. Wong, 2015 ONCA 657, 127 O.R. (3d) 321, at para. 50.
[28] Mr. Ellis was arrested at 2:13 a.m. He was given his rights to counsel at 2:30 a.m. PC Mullen had no explanation for the delay in providing Mr. Ellis with his rights to counsel. The Crown properly concedes that there was a breach of s. 10(b).
3) Should the evidence be excluded pursuant to s. 24(2) of the Charter?
[29] The s. 24(2) analysis is contextual and must account for all the circumstances. The key to the s. 24(2) analysis is the balancing of the following factors: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society's interest in the adjudication of the case on the merits: R. v. Grant, 2009 SCC 32, [2009] S.C.R. 353, at para. 71.
(1) The seriousness of the Charter-infringing state conduct
[30] The task with respect to this factor is to situate the state conduct on a scale of culpability. In assessing the seriousness of the conduct, the Supreme Court in R. v. Grant, supra, at paras. 74 and 75 provided the following guidance:
State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.
Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach: R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, per Cory J. “Good faith” on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: R. v. Genest, 1989 CanLII 109 (SCC), [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v. Kokesch, 1990 CanLII 55 (SCC), [1990] 3 S.C.R. 3, at pp. 32-33, per Sopinka J.; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59. Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.
[31] In this case there are two breaches. I do not believe that PC Mullen acted in bad faith or set out to violate Mr. Ellis’ rights under the Charter. I believe he was guided by simple public safety concerns. But the absence of bad faith does not equate with good faith. PC Mullen was a credible witness and he was candid about his lack of understanding, at the time of arrest, of the CCA. Nevertheless, he proceeded to conduct a search of Mr. Ellis’ car with his rudimentary knowledge. As stated by Jamal J.A. (as he then was) in R. v. Thompson, 2020 ONCA 264, [2020] O.J. No. 1757 at para. 88:
Even though the police did not deliberately set out to violate the appellant's rights under s. 9, their failure to appreciate their duties led to this result: see Wong, at para. 63.
[32] PC Mullen also breached Mr. Ellis’ s. 10(b) rights. I agree with the Crown that the breach could have been more egregious as there is no evidence that PC Mullen questioned Mr. Ellis in between the time he was arrested and the rights to counsel were given. To be clear, I am not stating, as the Crown submitted, that the police’s Charter compliant behaviour of putting Mr. Ellis in touch with counsel mitigates the seriousness of this breach, as discussed in R. v. Reilly, 2021 SCC 38. Rather, PC Mullen’s lack of questioning of Mr. Ellis during this period of delay made the breach less aggravating. However, at the same time PC Mullen has given no explanation for the delay and one would think that the rights to counsel would have naturally followed the arrest of Mr. Ellis. Again, as stated by Jamal J.A. in R. v. Thompson, supra, at para. 90:
The police did not advise the appellant of his right to counsel “immediately”, as required by well-established jurisprudence under s. 10(b), but waited without justification before doing so: Suberu, at paras. 41-42. As this court recently noted, “[t]he law around s. 10(b) is clear and long-settled. It is not difficult for the police to understand their obligations and carry them out”: R. v. Noel, 2019 ONCA 860, at para. 34.
[33] The Charter-infringing conduct was serious. This line of inquiry tips towards exclusion.
(2) The impact of the breach on the Charter-protected interests of the accused
[34] The second line of inquiry demands a consideration of the seriousness of the breach from the perspective of the accused. The impact of a breach may range from fleeting and technical to profoundly intrusive.
[35] With respect to the s. 10(b) breach, the impact was minimal. The police did not try to question the appellant before advising him of his right to counsel and he made no inculpatory comments: R. v. Thompson, supra, at para. 100.
[36] The police searched Mr. Ellis’ car without the lawful justification to do so. As stated by de Sa J. in R. v. Sappleton, supra, at paras. 71-72:
There is no doubt that there is a diminished expectation of privacy in a vehicle.
“The reasonable expectation of privacy in a car must, from common experience and for the good of all, be greatly reduced.”: R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] 3 SCR 341, at paras. 38-39. As the majority of this Court stated in R. v. Wise, 1992 CanLII 125 (SCC), [1992] 1 S.C.R. 527, at p. 534, the expectation of privacy in a vehicle cannot be as high as that in a home or office.
[37] The search of the car was, in addition, relatively quick. Mr. Ellis was stopped at 2:00 a.m. and he was arrested at 2:13 am, the search having been completed during these 13 minutes. However, a person in Mr. Ellis’s position would still have the expectation to be left alone. As stated by the Court of Appeal in R. v. Hartflett, 2016 ONCA 248 at paras. 47 and 48:
The case law has consistently held that drivers have a reduced expectation of privacy in their vehicles: see Caslake, at para. 15; Nicolosi, at para. 9. However, a reduced expectation of privacy does not mean that an unjustified search is permissible. As stated by McLachlin C.J. in Harrison, “[a] person in the appellant's position has every expectation of being left alone - subject, as already noted, to valid highway traffic stops”: Harrison, at paras. 31-32.
As Iacobucci J. noted in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 56, the impact of even a minimally intrusive search “must be weighed against the absence of any reasonable basis for justification”. There was no justification for Constable Sinclair's inventory search. I am satisfied the second Grant factor also militates in favour of the exclusion of the evidence in this case.
Also see R v Dunkley, 2016 ONCA 597 at para. 58
[38] This line of inquiry tips towards exclusion.
(3) Society's interest in the adjudication of the case on the merits
[39] As stated by the Court of Appeal in R. v. Thompson, supra, at para. 104:
This inquiry asks whether the truth-seeking function of the criminal trial process would be better served by the admission of the evidence or by its exclusion: Grant, at para. 79; McSweeney, at para. 81. Reliable evidence that is critical to the Crown's case will generally pull towards inclusion: Harrison, at paras. 33-34; R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 62; and McSweeney, at para. 81.
[40] The defence acknowledges that the drugs found are reliable and relevant to the truth-finding function of the courts. Excluding this evidence will lead to the accused being acquitted without a trial on its merits. “It must be remembered that the exclusion of relevant and reliable evidence can undermine the truth-seeking function of the justice system, “thus bringing the administration of justice into disrepute”: R. v. Grant, supra, at para. 81.
[41] This factor tilts towards inclusion.
The balancing
[42] The s. 24(2) analysis requires a balancing of all these factors and all these circumstances, there are no automatic rules, there is no mathematic formula. As stated by the Court of Appeal in R. v. Thompson, supra, at paras. 106 and 107:
The final step under the s. 24(2) analysis involves balancing the factors under the three lines of inquiry to assess the impact of admission or exclusion of the evidence on the long-term repute of the administration of justice. Such balancing involves a qualitative exercise, one that is not capable of mathematical precision: Harrison, at para. 36.
If, however, the first two inquiries together make a strong case for exclusion, the third inquiry “will seldom if ever tip the balance in favour of admissibility”: Le, at para. 142; Paterson, at para. 56; and McSweeney, at para. 81.
[43] In my view, despite the serious charges that cry for an adjudication on their merits, the combination of all the factors and all the lines of inquiry require that the evidence be excluded. The CCA is an important statute. While possessing marijuana is legal, the CCA ensures that it is transported in a manner that does not endanger public safety. A stated by de Sa J., in R. v. Sappleton, supra, at para. 50:
The regulations are directed at road safety and preventing the risk of marijuana use by the driver or other occupants of the vehicle while driving. Society requires and expects protection from intoxicated and dangerous drivers. R v. Burke, 2020 ONCJ 516: R. v. Wise, 1992 CanLII 125 (SCC), [1992] 1 S.C.R. 527, at p. 534: R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] 3 SCR 341, at paras. 38-39. See R. v. F., 2015 ONSC 3068.
[44] With this important mandate, the CCA confers on officers a power to search. However, that power must be used by officers who understand the CCA and how it operates. Care must be taken to ensure that the CCA is not misused. In our case, Mr. Ellis’ car was searched unlawfully by an officer who did not have a firm understanding of the CCA and who then violated his s. 10(b) rights. As stated recently by the Court of appeal in R. v. Tutu, 2021 ONCA 805, [2021] O.J. No. 6369, at para. 36
That said, once the first two lines of inquiry make a case for the exclusion of the evidence, the third inquiry “will seldom if ever tip the balance in favour of admissibility”: Le, at para. 142, and see R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 56. As Doherty J.A. noted in R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 83: “This unpalatable result is a direct product of the manner in which the police chose to conduct themselves.” Even though the evidence here, the drugs and the gun, is highly reliable and critical to the Crown’s case, in our view it must be excluded.
[45] I have concluded that the admission of the evidence in this case would bring the administration of justice into disrepute. All evidence obtained during the search of Mr. Ellis’ vehicle is excluded pursuant to s. 24(2) of the Charter.
Justice H. Leibovich
Released: December 15, 2021
OSHAWA COURT FILE NO.: CR-21-15496
DATE: 20211215
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
TEVIN ELLIS
REASONS FOR ruling on motion
Justice H. Leibovich
Released: December 15, 2021
[^1]: The officer admitted in cross-examination that the picture of the bag that was seized depicts a red and blue/black knapsack. I will not detail the lengthy cross-examination on this point, but PC Mullen’s description of the bag is inaccurate.