COURT FILE NO.: CRIMJ(P) 1820/19 DATE: 2022 02 28

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Patrick Quilty for the Crown

• and –

ELIJAH MCKENZIE-WALCOTT Paul Aubin for the Appellant

HEARD: December 13-14, 2021 by Zoom video conference

CHARTER RULING

D.E. HARRIS J.

[1] The Applicant defendant challenges a search of his person and his vehicle conducted under the Cannabis Control Act, 2017, S.O. 2017, Chapter 26 (the “CCA”). He argues that his rights under Section 8, 9, 10(a) and 10(b) of the Charter were violated and requests that the loaded handgun and several ounces of cannabis seized by the police be excluded from evidence.

THE EVIDENCE

[2] While driving erratically on Highway 427 just north of Highway 407 in Mississauga, the Applicant was stopped on June 3, 2019 at 1:53 a.m. for a sobriety check by P.C. Dunfield of the Ontario Provincial Police (OPP). No issue was taken with the stop; the defence application focuses on the subsequent search and as a secondary matter, Section 10 of the Charter.

[3] P.C. Dunfield approached the Applicant’s front driver’s window and immediately smelled the strong and pungent odour of marijuana. He used his flashlight to inspect the interior of the car and testified that he saw, between the driver’s seat and the door, a large green marijuana stem. The stem and the odour, in his mind, supplied him with the grounds to conduct a search under Section 12 of the CCA for improperly packaged marijuana in the car. The four occupants were asked to step out of the vehicle.

[4] The officer, when the driver’s door was opened, noticed “copious amounts of marijuana residue” in the same general area as where the stem had been observed. The four occupants were asked to turn inside out the pockets of their pants and place the contents on the trunk of the police cruiser. The Applicant placed a pack of cigarettes on the trunk. The officer looked in it and saw a significant amount of hashish. The Applicant, with some difficulty, then removed what turned out to be a handgun from his pocket and handed it to P.C. Dunfield. A subsequent search of the car turned up approximately five ounces of cannabis located in different areas of the car.

[5] The Applicant is charged with various firearm offences for possession of the gun and with marijuana offences.

THE VALIDITY OF THE SEARCH

[6] The search was conducted under Section 12 of the provincial CCA which reads,

12(1) Transporting cannabis 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.

12(2) Exception 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.

12(3) Search of vehicle or boat 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.

[7] The interplay of these subsections means that if an officer has reasonable grounds to believe that cannabis is in a car but is not in its original packaging, is not packed in closed baggage or is readily available to a person in the car, a warrantless search of the car under ss. 3 is authorized: R. v. Nzita, [2020] O.J. No. 3109, 465 C.R.R. (2d) 301 (Ont. C.J.) at para. 28. In this case, the search was lawful within the CCA if the officer had reasonable grounds to believe that there was unpackaged or readily available cannabis in the car.

[8] The wording and legislative purpose of Section 12 closely resembles the search power in Section 32 of the Liquor Licence Act. That provision allows for the search of a vehicle based on alcohol being in an open container or being readily accessible because it is not in fastened baggage: see R. v. Poulin [2004] O.J. No. 1354 (S. Ct. Jus.); R. v. Campbell, [1996] O.J. No. 4478 (Ont. C.J.); R. v. Ishmael, 2005 ONCJ 219; R. v. Bernard, 2010 ONCJ 523 (Ont.C.J.); R. v. Sappleton, 2021 ONSC 430 (Ont.S.C.) at para. 50. Both Section 12 and Section 32 are concerned with highway sobriety and safety, a matter of fundamental public importance.

[9] Reasonable grounds has both an objective and a subjective component. Both must be present if a search is to be valid: R. v. Storrey, [1990] 1 S.C.R. 241 at para. 16-17; R. v. Feeney, [1997] 2 S.C.R. 13 at para. 139; R. v. MacKenzie 2013 SCC 50, [2013] 3 S.C.R. 250 (S.C.C.).

[10] Officer Dunfield testified in this case that the strong odour of marijuana together with the stem he observed on the floor of the car supplied him with the grounds to search under Section 12 of the CCA. The defence challenges the validity of both the objective and subjective grounds supporting the search.

THE PRESENCE OF OBJECTIVE GROUNDS

THE ODOUR OF MARIJUANA

[11] Officer Dunfield testified that it was his belief that the smell of burnt marijuana emanating from the Applicant’s car was not enough on its own to vest him with grounds to search. This was based on his knowledge of the judgment of the Court of Appeal in R. v. Polashek, 134 C.C.C. (3d) 187, 172 D.L.R. (4th) 350 (Ont. C.A.). He was correct in this assessment.

[12] In Polashek, the Appellant was pulled over for a traffic violation. The officer detected a strong smell of marijuana emanating from the vehicle. The Court of Appeal held that the smell alone was not enough for reasonable grounds to believe that the Appellant was in possession of marijuana. The Court quoted with approval from an American case, State v. Secrist, 582 N.W.2d 37 (U.S. Wis. Ct. App. 1998), at 39-40,

Unlike in Mitchell [State v. Mitchell, 482 N.W. 2d 364 (1992)], where the lingering smoke in the vehicle indicated that the marijuana had been smoked quite recently, here there was no indication as to when the marijuana had been smoked or by whom. The smell of marijuana lingers, and thus it could have been smoked five minutes ago or several hours ago. See Schoendaller, 578 P.2d at 734 (noting officer’s testimony that “mere odor of marijuana might linger in an automobile for more than a day”).

(Emphasis Added)

[13] After agreeing with these observations, the Court of Appeal per Rosenberg J.A. held at paragraph 13 in reference to the trial evidence in Polashek,

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. Given Constable Ross’ admission that he could not from the odour alone determine whether the marijuana had been smoked recently or even if he was detecting the smell of smoked marijuana, the presence of odour alone did not provide reasonable grounds to believe that the occupant was committing an offence. 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 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.”

(Emphasis Added)

[14] Justice Rosenberg left open the possibility that there might be cases in which the police officer’s detection of the smell of marijuana might be enough for reasonable grounds (para. 14):

The circumstances under which the olfactory observation was made will determine the matter. It may be that some officers through experience or training can convince the trial judge that they possesses sufficient expertise that their opinion of present possession can be relied upon.

[15] Neither the officer himself nor the Crown claimed that Officer Dunfield had attained this level of expertise. The officer had a good deal of experience with the smell of marijuana. He had been involved in 160 drug occurrences between July 2015 and 2017 and had done about 8 CCA searches a month in the nine months before the stop in this case for a total of 72. But he never testified that the smell of marijuana in this case led him to believe that the marijuana had been smoked recently. In fact, he was clear in testifying that in his mind, based on Polashek, the odour he noted did not in itself give him the power to search.

[16] The ultimate issue in this case is essentially the same issue as in Polashek. The issue in Polashek was whether the smell of marijuana detected gave rise to an inference, amounting to reasonable grounds, that there was marijuana in the car. The answer from the Court of Appeal was that the smell was not enough. The issue in the case at hand is whether there was unpackaged or readily accessible marijuana in the car. The improperly packaged element adds an extra layer to the issue that was before the court in Polashek but is not of significant importance given the evidence in this case. Like in Polashek, the main issue comes down to whether there were reasonable grounds to believe that there was cannabis in the car.

[17] In Polashek, Justice Rosenberg ultimately found that the trial judge was correct that there were reasonable grounds for the search: para. 18. There was not only the officer’s observation of the odour of marijuana. There was other evidence to supplement it. The Appellant, when the officer told him he smelled marijuana, said that the officer was wrong and then looked over both shoulders to the back of his car. This was odd behaviour. In addition, the Court said the trial judge was correct to rely on the stop being in Malton, a place where the officer said there were a lot of drugs and where he had seized drugs in similar circumstances on 40 to 50 occasions.

[18] Based on Polashek and the officer’s evidence that he did not believe the smell itself gave him grounds, it would seem that the next step, as in Polashek, would be to examine the evidence with respect to other factual components of the officer’s reasonable grounds: i.e. the marijuana stem.

[19] But Mr. Quilty for the Crown disagreed with the holding in Polashek that odour is not enough by itself. His position, contrary to the officer’s evidence, was that the smell was enough. Mr. Quilty argued,

…I think cannabis has become much more ubiquitous in the last 20 plus years…You know, you see judges, you know … in the late 1990s. You know, from a judge's perspective -- I suspect judges on the Court of Appeal in the 1990s, you know, probably didn't partake, to put it that way. They might not have honestly to say -- they might have honestly believed, you know, how can you -- I'm thinking back. How can they, how can they know that's the smell of cannabis? I mean, everyone now knows what cannabis smells like. I mean, you can smell it 10 times on any walk through your local park. It's so much more ubiquitous that I would think, if the Court of Appeal was deciding Polashek 20 years later, and the question is, you know, can the smell of cannabis, you know, afford you grounds to believe that there is cannabis there, they might have provided a different answer, you know? Reading Polashek, to me, is a lot -- is a little bit of the Court of Appeal saying, how can an officer possibly, you know, what cannabis smells like and find, just based on the smell, their grounds?

(Emphasis Added)

[20] I reject Mr. Quilty’s argument that Polashek should not be followed. At no time did Mr. Quilty attempt to bring his argument within the Supreme Court of Canada’s decisions specifying when trial courts may depart from appellate authority: see Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331 (S.C.C.) at para. 44; Bedford v. Canada (Attorney General), 2013 SCC 72, [2013] 3 S.C.R. 1101 (S.C.C.) at para. 42. As a Crown Attorney, he had a clear obligation to do so if he was to succeed in arguing that there should be a departure from a judgment of the Ontario Court of Appeal. As was said in Carter,

44 The doctrine that lower courts must follow the decisions of higher courts is fundamental to our legal system. It provides certainty while permitting the orderly development of the law in incremental steps.

[21] Mr. Quilty must have known that he had no realistic prospect of meeting the two preconditions required: 1. There was no new legal issue raised; 2. There was no change in the circumstances or evidence that “fundamentally shifts the parameters of the debate” (Carter para. 44).

[22] The bizarre, gratuitous speculation that the judges in Polashek did not likely “partake” was unhelpful. No more needs to be said about it. Mr. Quilty’s further point that the public is now more familiar with the smell of marijuana than they were then, misconstrues the issue. There was no attack in Polashek or here on the accuracy of the officer’s olfactory observation. Polashek and the American case upon which it relies, State v. Secrist, make clear that the issue is not the smell itself but the question of whether it can be temporally connected to the accused. The key holding was that the smell of marijuana lingers. Smells are highly subjective and transitory and are generally incapable of objective verification. Thus, when a police officer smells burnt marijuana in a car, and there is no smoke observed, it cannot generally be said when the marijuana was burnt. It could have been hours or even days before. For this reason, following Polashek, odour by itself does not confer reasonable grounds on a police officer to believe marijuana is currently in the car.

[23] Officer Dunfield, although he said the smell was “pungent” never testified that the smell was “fresh” or anything of that nature which could assist in pinpointing the time of possession. Polashek holds that this type of observation is unreliable for the formation of search grounds. The situation is not significantly different than the odour of cigarettes or cigars. It is difficult to tell with any degree of exactitude when the tobacco was consumed.

[24] There has been no change in the basic premise in Polashek that marijuana smell lingers and is too subjective to positively ascertain when it was burnt. No reason has been suggested to depart from the binding authority of Polashek. I therefore conclude, as did Officer Dunfield, that the smell of marijuana was not enough on its own to form grounds that there was marijuana in the car. Being that the time the marijuana was consumed was incapable of being ascertained, more evidence was required to raise to the level of reasonable grounds. Attention must turn to the marijuana stem the officer said he saw on the floor of the car.

THE STEM

[25] There is a credibility issue raised by defence counsel about whether the officer ever actually saw the marijuana stem. That can await the conclusion on the validity of the objective grounds. For present purposes, Crown and defence agree that, in law, the stem is not cannabis. This follows from the plain language of the legislation.

[26] The CCA in its definition provision in Section 2 states that “cannabis” has “the same meaning as in subsection 2(1) of the Cannabis Act (Canada).” (S.C. 2018, c. 16). That section incorporates Schedule 1 which states that cannabis is any part of the plant except as specified in Schedule 2. Schedule 2 excludes “stalk” from the cannabis definition.

[27] Although there was little questioning of Officer Dunfield on the point, his notes indicate that he considered the presence of the marijuana stem as constituting an offence in and of itself under Section 12(1) of the CCA. At the same time, he admitted that there was no leafy material or marijuana on the stem. It appears from the record that Officer Dunfield, despite his extensive CCA search experience, was not aware that the stalk was not cannabis. Ultimately he was wrong that the stem itself constituted a violation of the CCA.

[28] While the presence of the stem did not, in and of itself, establish grounds that there was a violation of the CCA, Mr. Quilty argued that this did not mean it could not contribute to reasonable grounds. I agree. The additional facts in Polashek supplementing the smell of marijuana are an obvious example. Other examples are easy to imagine.

[29] However, the real problem here is that, like the smell of marijuana, as a piece of evidence, the observation of the stem lacked a temporal component. The stem could have been months or even years old. There was no evidence permitting any assessment of its recency. Taken cumulatively with the smell, as it must be and was by Officer Dunfield, it did not significantly contribute to grounds for the search.

[30] In conclusion, Polashek holds that smell is not enough, absent special expertise. The stem seen by Officer Dunfield was not marijuana in itself. Because it was impossible to tell how long it had been there, the stem did not materially increase the grounds to believe that there was unpackaged marijuana in the car.

[31] In conclusion, the objective grounds to believe that there was improperly packaged cannabis in the car were insufficient.

THE “COPIOUS AMOUNTS OF MARIJUANA RESIDUE”

[32] Officer Dunfield, after ordering the four occupants out of the vehicle, noticed after the Applicant exited the driver seat that there was “copious amounts of marijuana residue” in the same area as he had seen the stem--on the floor between the driver’s door and the driver’s seat. It was unclear what the word “residue” referred to. Mr. Quilty argued that it was like “breadcrumbs” scattered through this area of the car. That is probably accurate enough but the word “residue” in context has no obvious meaning. The difficulty is whether this was stalk or whether it was actually cannabis. I infer it was the latter or a combination of the two. This what the officer testified to in his preliminary hearing evidence.

[33] Mr. Quilty argued that the copious residue fortified the officer’s legal grounds for the search. I cannot agree. The search began when the reasonable grounds crystalized in the officer’s mind and, believing Section 12 of the CCA to be met, he ordered the Applicant and the others out of the car. The search was either valid at that point or it was not.

[34] As part of his argument, Mr. Quilty argued that the police had the right to order the Applicant out of the car in order to continue a sobriety investigation:

-- this is still a sobriety check, in general, and the Cannabis Control Act search is simply one of the investigative techniques. And the -- during a sobriety check the police are entitled to conduct sort of any -- take any reasonable steps to investigate a person's sobriety. So that can include making them do a sobriety test, asking questions, et cetera, et cetera. … In this case, it could be for the purpose of clearing the vehicle and searching. But I don't think it's part of the -- the officer didn't need the power of the Cannabis Control Act to ask the driver to step out of the vehicle.

And as I said at the beginning, a Cannabis Control Act search is, essentially, part of an impaired driving investigation in the same way.

[35] But the officer testified unequivocally that upon smelling the marijuana coming from the car, his initial purpose of checking sobriety arising from the erratic driving shifted to a Section 12 CCA marijuana investigation. His evidence was that the sobriety issue disappeared. The interaction with the Applicant continued. The Applicant was asked for and produced his driving documentation. The order to get out of the car after the officer observed the marijuana stem was for a Section 12 CCA purpose and had nothing to do with sobriety.

[36] The Crown’s argument was a distortion of the evidence and treated the officer’s stated grounds for ordering the occupants out of the car as an inconvenience to be casually brushed aside. An officer’s viewpoint cannot be simply dispensed with in this fashion. Mr. Quilty relied heavily in his submissions on Justice Binnie’s reasons in R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851 (S.C.C.). Although dealing with random stops, Justice Binnie said apropos of the issue in this case,

23 Random roadside stops must be limited to their intended purposes. “A check stop does not and cannot constitute a general search warrant for searching every vehicle, driver and passenger that is pulled over”, per Cory J., in Mellenthin, at p. 629. It thus becomes necessary to examine the authority claimed by the police at each step from the original demand to the appellants to pull their truck over on the Trans-Canada Highway to the discovery of the cash and subsequently the marijuana a couple of hours later as well as the follow-up “inventory search” the next morning, to determine at what point, if at all, the police infringed the rights of the appellants under s. 8 or s. 9 of the Charter. A roadside stop is not a static event. Information as it emerges may entitle the police to proceed further, or, as the case may be, end their enquiries and allow the vehicle to resume its journey.

[37] Another way to look at it is that objective and subjective search grounds must coincide and operate concurrently. If there is a subjective belief but it is not objectively reasonable, the search is unlawful. If there is an objective basis for a search but the police on their evidence lacked subjective grounds, the search is also unlawful. In this case, that means that if the police no longer had a sobriety check investigative purpose, their actions cannot in law be justified on that basis.

[38] As the officer testified, his purpose was to search for cannabis and had nothing to do with sobriety. While it is theoretically possible that the finding of the copious amounts of marijuana might have Section 24(2) exclusion ramifications, on this record it does not contribute to the Section 8 breach issue.

THE PRESENCE OF SUBJECTIVE GROUNDS

[39] The defence attacked Officer Dunfield’s credibility and argued that he did not actually observe either the cannabis stem or the “copious amounts of marijuana” purportedly discovered in the search of the car at the roadside.

[40] Officer Dunfield testified that after smelling the marijuana in the car, he trained his flashlight on the interior of the car. The Supreme Court held many years ago that in these circumstances examining a car with a flashlight is not a search: R. v. Mellenthin, [1992] 3 S.C.R. 615 (S.C.C.) at para 19.

[41] The officer testified that he shone his flashlight straight down from the top of the window. Because he is tall, over six feet, he was able to see the area between the driver’s door armrest and the driver’s seat. He saw the large green marijuana stem.

[42] The area between the driver’s door and the driver’s seat would be difficult to observe in those circumstances. Mr. Quilty sternly warned that a conclusion that it was impossible would likely lead to reversal on appeal. He had tried it on his car and he could see the area clearly. That was both unattractive and unpersuasive. In my view, it is possible that the officer saw a stem in these circumstances but unlikely. Obviously, one would need the same car—a Nissan Sentra—in order to determine the matter with any degree of certainty or fairness. The bigger issue, however, was how the officer could identify a marijuana stem while looking down with a flashlight at a vantage point of three feet or so from the floor of the car. Again, that is possible but unlikely. Other not insubstantial factual issues were raised by the defence, including how the officer could see the stem but did not see the “copious amounts” of marijuana said to be scattered in the same area of the vehicle.

[43] The major problem however is what happened after the observations of the stem and the copious marijuana. Officer Dunfield did not take pictures at any point, even after the vehicle was towed back to the police station. Nor did Officer Dunfield examine the stem or the copious marijuana.

[44] Furthermore, Officer Dunfield never seized either the stem or the marijuana “residue” as evidence. In fact, Officer Dunfield left the stem and the copious marijuana in the car where he first observed them. There was no evidence what happened to the car, whether it was seized or whether it was given back to the Applicant. But it is clear the marijuana and the stem were simply left there. Officer Dunfield never said that he was too busy and simply forgot about it. There was no explanation offered.

[45] Officer Dunfield ruefully admitted that if he knew then what he knows now, he would have documented this evidence by either photographing it or seizing it. In all of his previous investigations, he had never seized such evidence before. Mr. Quilty argued that Officer Dunfield could not know that there would later be a challenge to his actions in this case:

…the officers were not thinking… we should also seize evidence and anticipate two and a half years. Defence is going to bring a Charter application and we'll have to… justify … they had their grounds. And then the further investigation confirmed their grounds, and they seized the actual evidence…

I think it makes sense that the officers didn't photograph or seize -- at this point, once they get back to the station, they're not concerned with this -- like, this was the, the stem and the residue was the basis for a -- what was intended to be a quick CCA search, which may or may not have resulted in a traffic ticket.

[46] Mr. Quilty ascribed exceptional investigatory naivete to Officer Dunfield. I do not think that is plausible. Officer Dunfield has been a law enforcement officer for 18 years and at the time of the incident, he had been a police officer for 14 years. He sole task over those years has been to investigate criminality, apprehend alleged criminals and go to court to testify as a witness against accused persons. He testified that he had been doing traffic stops at this point in his career and nothing else. He had done about 72 CCA searches in the nine months before this incident. In addition, he knew full well the gravity of the Applicant’s firearm offences. While in full context, a layperson may not understand the wisdom of documenting evidence which led directly to the finding of a handgun, I cannot believe a police officer of Officer Dunfield’s experience would not. To expect this much does not attribute unreasonable investigative acumen to Officer Dunfield, only a most rudimentary level.

[47] The final piece of evidence on this issue comes from Officer Caringi who assisted with the roadside arrests and then with the search of the Applicant’s vehicle back at the police station. Officer Dunfield initially said that he searched the driver’s side of the vehicle and Officer Caringi took the passenger side. Later, Officer Dunfield’s evidence changed and he said that he searched the glovebox and seized marijuana there but did not know with certainty who searched what area.

[48] Officer Caringi testified that he searched the driver’s side and Officer Dunfield searched the passenger side. I accept his evidence. Officer Caringi said that he found a small black scale coated with cannabis residue housed in the driver’s door. He found in the driver’s side rear door a water bottle containing a zip lock bag of cannabis. Officer Caringi was asked in cross-examination whether he had seen the marijuana stem Officer Dunfield had said he had seen between the driver’s seat and the door. He said he did not. He also made no mention of the “copious amount” of cannabis that Officer Dunfield saw on the floor of the driver’s area. When I suggested in argument at the end of the voir dire that P.C. Caringi must not have put in his notebook that he saw either of them as this would surely have been elicited by the Crown in re-examination, Mr. Quilty adamantly disagreed. However, he later resiled from this position in light of the fact that the P.C. Caringi’s notes formed part of the Applicant’s motion record. In fact the notes contained no reference to the stem or the copious marijuana.

[49] Officer Caringi did make a note however at the end of the search that he advised Officer Dunfield that he had found the drug scale. That seems to suggest that Officer Dunfield, as the arresting officer and the police officer with more experience, was heading up this investigation and that Officer Caringi was reporting to him. If Officer Caringi had seen the stem and the copious marijuana, clearly he would have informed his superior officer just as he had informed him of the scale.

[50] Mr. Quilty argued forcefully that the copious marijuana residue was not cannabis under the CCA and therefore did not warrant being noted. The first point was clearly incorrect. If it was not stalk, seed or root material as catalogued in Schedule 2 of the federal Act —and there was no evidence that it was—it must have been cannabis under the CCA. P.C Dunfield testified at the preliminary inquiry, which formed part of the record in this case, that it was cut up marijuana. If there was any leafy substance to the so-called residue, it was cannabis. But the main point is that any police officer searching the vehicle would naturally have made a note of “copious amounts” of the residue, however it was characterized. It must have been conspicuous and was unquestionably relevant to the investigation, just as the scale was.

[51] Mr. Quilty attempted to bolster Officer Dunfield’s credibility in submissions. He argued,

…I would think the most powerful corroborative evidence of PC Dunfield's observations of the residue and the, the stem… the police… did, in fact, find a substantial amount of cannabis in the car. And before Your Honour says, well, that's just an ex post facto justification, we can't find the officer had grounds solely because he ended up finding something

…there's a difference between, you know, an officer who says, here's the information I had, is that enough? And saying, well, they found a gun, so clearly, he was right. That's an ex post facto justification, but the officer clearly had grounds if you accept his evidence. The only way he doesn't have grounds is if you essentially find that he perjured himself. So you have to find the officer has no credibility. And if you're talking about credibility, surely the fact that he’s actually -- you know, he actually found cannabis is relevant to the fact that he says he saw this in the car. … what the defence wants you to say is I don't believe the officer actually saw this cannabis in the car, the stem and the residue. But the fact that there was substantial amount of cannabis in the car makes it that much more unlikely [sic], especially in the absence of any contradictory evidence, that the officer did have that smell and did see the -- this -- the stem and did see the residue. So that, that, in my submission isn't -- it's not an ex post facto justification. It's not saying, you know, officer, you didn't have enough. You just got lucky with what you actually found. You know, you only had a suspicion, not grounds and you just happened to get lucky.

(Emphasis Added)

[52] An attempt to support police grounds underlying a search by reference to what was discovered in the subsequent search is indisputably an ex post facto justification. Case law beginning from the time of the foundational search and seizure case of Hunter v. Southam Inc., [1984] 2 S.C.R. 145 at paras. 27-31 has prohibited ex post facto reasoning without exception: R. c. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215 (S.C.C.) at para. 84; R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142 (S.C.C.) at para. 20; R. v. Feeney, [1997] 2 S.C.R. 13, at para. 45; R. v. Genest, [1989] 1 S.C.R. 59 (S.C.C.), at pp. 89-91; R. v. Gimson, [1991] 3 S.C.R. 692 (S.C.C.), at p. 693; R. v. Greffe, [1990] 1 S.C.R. 755 (S.C.C.) at paras. 24, 44; R. v. Wong (1990), 60 C.C.C. (3d) 460, [1990] 3 S.C.R. 36 (S.C.C.) at para. 19; R. v. Kokesch, [1990] 3 S.C.R. 3, at p. 29.

[53] “The evidence to justify [a search] must be apparent in the record and available to the police at the time they acted.” Cornell at para. 20. Prior grounds are necessary to constitute a lawful search. If prior grounds governing the state’s right to intrude into an individual’s right to privacy were not a prerequisite, Section 8 of the Charter would be a dead letter. Justice Dickson (as he then was) wrote in Hunter v. Southam at para. 27,

If the issue to be resolved in assessing the constitutionality of searches under s. 10 were whether in fact the governmental interest in carrying out a given search outweighed that of the individual in resisting the governmental intrusion upon his privacy, then it would be appropriate to determine the balance of the competing interests after the search had been conducted. Such a post facto analysis would, however, be seriously at adds with the purpose of s. 8. That purpose is, as I have said, to protect individuals from unjustified state intrusions upon their privacy. That purpose requires a means of preventing unjustified searches before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place. This, in my view, can only be accomplished by a system of prior authorization, not one of subsequent validation.

(Emphasis in Original)

[54] Taken to its extreme, ex post facto reasoning would justify any search in which contraband was found. An officer would have free rein to search anyone. If illegal material was found, the fact of its discovery would justify the search. If nothing was found, no one would be the wiser.

[55] Lastly, a comment should be made about a statement made by the officer at the end of the cross-examination. Mr. Aubin’s questioning clearly implied that he was accusing the officer of fabricating evidence although he did not explicitly confront him. In the peroration of the cross-examination, P.C. Dunfield offered that he had never lied on the witness stand in his 18 years as a police officer. When Mr. Quilty was asked in submissions whether this assertion enhanced or diminished the officer’s credibility and reliability, he answered in this way,

– I mean, I've been a lawyer for a long time, but I've certainly never been on the stand, and I've never been accused of lying, probably over and over, but you know, every officer gets accused of lying in every single case, you know, they do.

THE COURT: I don't think it's quite true.

MR. QUILTY: It's not far off. And, you know, I might get sick of that too. If you're constantly -- you're just trying to do your job and in every case, you know, people accuse you of lying. You know, especially in the circumstances you're in now, you don't – no matter what you do, you can't do your job perfectly, and there's going to be a Charter application accusing you of lying and being racist, and, you know, and all of that. I mean, I might get sick of it, too and if I was being cross-examined in the middle of it, I might say, look, I've never lied under oath. It's not valid…

-- police seem to be the only profession where an imperfect investigation means they violated, you know, Charter rights and did a terrible job. I mean, if I was accused of violating Charter rights every time I didn't run a trial perfectly, or if Your Honour was accused of violating Charter rights every time you’re successfully appealed, that would, you know -- everyone makes mistakes. There's not -- you know, I can't say I, I can't say I've never -- I've run only perfect trials. I'm sure Your Honour can't say, he's only given perfect judgments, you know. But when it comes to police, any, any mistake that gets made gets turned into, you know, how could the police possibly, you know, have done this? … the police are not legally trained. They're, they're required to make fast-paced decisions at the side of the road. They don't have the opportunity to hear submissions, or to spend four days hashing out the law. And yet, you know, they get criticized more harshly when they make a mistake on the law than judges. You know, when they make a mistake, it's -- you know, this is a serious offence, this should be excluded, the police should know this. If a judge makes the mistake, it's, you know, we'll just order a new trial-type thing, which, which seems to be unfair. It seems to be if lawyers and judges are making mistakes about the law, and they do regularly, given the, the Court of Appeals seem to send back, you know, half the cases that come up on them these days.

[56] This panegyric advocating in favour of the police was misguided. Police officers occupy the front line in investigating crime. By the nature of this work, their conduct often comes under the scrutiny of Sections 7 through 11 of the Charter of Rights and Freedoms. As a consequence, when allegations of Charter breaches are litigated, police are often at the centre of the dispute. Lawyers and judges are in a different position for too many reasons to bear enumeration. Arguing that police are unfairly criticized compared with lawyers and judges is a facile contention leading nowhere in particular.

[57] Furthermore, contrary to the Crown’s argument, I do not believe that Officer Dunfield’s assertion that he was always honest was an exasperated reaction to defence questioning. It seemed much more deliberate than that.

[58] In Charter motions, evidence is what carries the day, not the vehemence of a denial. It is true that an earnest, strong denial of the allegations is bound to make an impression on a finder of fact. It is natural to give credence to a strongly voiced denial if only because of its audacity. However, what counts in this case is the powerful accumulation of circumstantial evidence mounted by Mr. Aubin showing that the officer did not actually observe the cannabis stem and the copious marijuana. The circumstantial evidence, in my opinion, must prevail over the officer’s denial. The officer’s vouching for his good character failed to enhance his credibility.

[59] Lastly, Mr. Quilty urged that no negative credibility finding should be made against the officer,

… You know, I know, Your Honour recently did a case with a Officer Corona, who, you know, has been criticized and found by numerous judges to have been lying under oath based on a -- based on an original case where, where that was found. I make no comment on whether that original case was a fair finding or not, but I mean, if Your Honour, based on either my own screw-up as a Crown, I'll take responsibility for that, was to find that PC Dunfield has perjured himself in a written decision because his evidence wasn't corroborated. I mean, that's going to follow him and on your own ruling, any judge can simply rely on that and say, you know, well, he perjured himself then, he must have perjured himself now.

[60] First, Mr. Quilty has misunderstood my reasons in R. v. Holloway, 2021 ONSC 6136, [2021] O.J. No. 4741 (Ont. S.C.). It is far from every case in which a prior negative credibility finding by a judge will be properly considered subsequently. That was repeatedly acknowledged in Holloway. The situation permitting use of the prior adverse findings there was unusual. Second, if this was a warning to be careful in finding facts, it was paternalistic. If it was an argument that a negative finding should not be made because it might harm the officer’s career, it was an invitation to abdicate judicial responsibility.

[61] Mr. Quilty’s arguments that police are unfairly treated compared with lawyers and judges and his further contention that a negative finding should not be made because it could harm P.C. Dunfield’s career require one further comment. Justice Abella said in Ontario (Attorney General) v. Clark, 2021 SCC 18, 456 D.L.R. (4th) 361 (S.C.C.),

43 [It was concluded in R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297] that “Crown objectivity and the separation of Crown from police functions are elements of the judicial process which must be safeguarded” (para. 70). This sentiment was echoed by Binnie J., when he said:

… Crown prosecutors must retain objectivity in their review of charges laid by the police, or their pre-charge involvement, and retain both the substance and appearance of even-handed independence from the police investigative role. This is the Crown Attorney’s “Minister of Justice” function and its high standards are amply supported in the cases. … [para. 137, dissenting on other grounds]

45 In R. v. Beaudry 2007 SCC 5, [2007] 1 S.C.R. 190, the Court made it clear that prosecutorial independence from police is not a one way street. The police "have a particular role to play in the criminal justice system ... and it is important that they remain independent of the executive branch". Accordingly, the relationship between prosecutors and the police is not a "hierarchical" one. In discharging their respective duties, both the police and the prosecutor have a "discretion that must be exercised independently of any outside influence". Cooperation is encouraged, but independence is mandatory.

[62] There is a reasonable apprehension that the Crown’s crucial independence from the police was lost in this case together with the fundamental quasi-judicial Minister of Justice role vital to the prosecution of criminal offences. As was said by Justice Moldaver in R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309 (S.C.C.) at para. 61,

[The Crown’s] role was that of a quasi-judicial officer. Her function was to be "assistant to the Court in the furtherance of justice, and not to act as counsel for any particular person or party" (Boucher v. The Queen, [1955] S.C.R. 16, at p. 25).

(Emphasis Added)

CONCLUSION ON SECTION 8 OF THE CHARTER AND THE GROUNDS FOR THE SEARCH

[63] Section 8 and Section 9 of the Charter were breached in this case when the occupants were ordered out of the car. The smell of marijuana which could have dated from days before together with the stem of marijuana which could also have been many days or weeks old, failed to meet the threshold of objective grounds. Subjective grounds were also absent. The cumulative force of the difficulty in perceiving the stem, the failure to document or to seize the stem or the “copious” marijuana and the fact that P.C. Caringi did not see either of these items weigh against the veracity of P.C. Dunfield’s observations. I conclude that neither the stem nor the copious marijuana existed.

[64] Both the objective and subjective elements of reasonable grounds were absent in this case. The search was unlawful and unreasonable within Section 8 of the Charter. In the circumstances, Section 9 was also breached.

SECTION 24(2) OF THE CHARTER

I. Seriousness of the Charter-Infringing State Conduct

[65] The first Grant factor evaluates the seriousness of the breach for the purpose of preserving and encouraging public confidence in the courts and ensuring adherence by law enforcement to the rule of law. There is a spectrum of state misconduct under this first line of inquiry beginning with inadvertent, technical errors extending all the way to wilful or flagrant disregard for individual rights and interests: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (S.C.C.) paras. 72-75; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 (S.C.C.) at para. 23. A court must be careful to preserve the integrity of the process and protect individual rights against state intrusion. It is vital that there be unequivocal judicial disassociation from state misconduct.

[66] The police conduct in this case is close to the most serious end of the spectrum. Once the officer smelt the marijuana, it was tempting to cut corners in order to search the occupants and the car. But the officer knew full well that the odour was not enough. The temptation to search, in the absence of the Section 12 CCA threshold being met, had to be resisted, as difficult as it might have been.

[67] While the objective threshold for the search was not met, the officer bolstered his subjective grounds after the fact in an attempt to justify what he had done. His conduct exhibited bad faith and a deliberate and wilful disregard for the Applicant’s Section 8 privacy rights and the Section 9 right to be left alone. This case exemplifies what was said in Grant at para. 72,

The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.

[68] This is not a case in which the law was ambiguous or unclear and the officer could not have known the limitations of his search powers. He knew full well, having read and correctly interpreted Polashek. He made calculated efforts to skirt the effect of the law. In addition, the officer’s misleading testimony about the stem and the copious marijuana aggravates the seriousness of the Charter breach and requires further distancing from it: Harrison at para. 26. Taking everything into account, the first Grant factor leans heavily towards exclusion.

II. Impact on the Charter-Protected Interests of the Accused

[69] Mr. Quilty argued that the intrusion on the Applicant’s privacy rights was minor as the search was conducted by Officer Dunfield in a respectful, non-aggressive manner. The occupants were asked to empty and turn inside out their pockets. It was during this search that the Applicant turned over the handgun from his pocket.

[70] Although Mr. Quilty did not cite it, R. v. Hudson, [2005] O.J. No. 5464, 137 C.R.R. (2d) 215, 203 C.C.C. (3d) 305 (Ont. C.A.) also involved a pocket search. LaForme J.A. found that the search was not invasive: para 38. However, that search was in the border context, a context in which an individual’s reasonable expectation of privacy is drastically reduced.

[71] Nonetheless, it is true that the physical nature of the search in this case was not intrusive. Further, there is a lower expectation of privacy in a car. The cases in this area, however, have adopted a broader focus than just looking at the accused pockets. In Harrison, Chief Justice McLachlin said at para. 31,

… being stopped and subjected to a search by the police without justification impacts on the motorist's rightful expectation of liberty and privacy in a way that is much more than trivial. As Iacobucci J. observed in [Mann [2004 SCC 52, [2004] 3 S.C.R. 59]](https://www.canlii.org/en/ca/scc/doc/2004/2004scc52/2004scc52.html) the relatively non-intrusive nature of the detention and search "must be weighed against the absence of any reasonable basis for justification" (para. 56 (emphasis in original)). A person in the appellant's position has every expectation of being left alone -- subject, as already noted, to valid highway traffic stops.

[72] In Harrison, the stop for not having a front licence plate was invalid because the vehicle was registered in Alberta where a front licence plate is not required. However, there are several appellate cases in which, like in this case, valid stops were followed by unreasonable searches or seizures: R. v. Harflett, 2016 ONCA 248, 336 C.C.C. (3d) 102 (Ont. C.A.) at para. 48; R. v. Byfield, [2005] O.J. No. 228, 193 C.C.C. (3d) 139 (Ont.C.A.) at paras. 25-26 and in R. v. Reddy, 2010 BCCA 11, 251 C.C.C. (3d) 151 (B.C.C.A.) at paras. 103-106. In each of those cases, the principle from Mann was relied upon and the second Grant factor was held to favour exclusion. The same is true here.

III. Society's Interest in an Adjudication on the Merits

[73] The law in Ontario is clear as first held in McGuffie that if the first two inquiries incline towards exclusion, this third inquiry will be insufficient to prevent exclusion except perhaps in exceptional circumstances: R. v. McGuffie, 2016 ONCA 365, (2016) 131 O.R. (3d) 643 (Ont. C.A.) at para. 63; R. v. Hillier, 2021 ONCA 180, 155 O.R. (3d) 214 (Ont.C.A.) at para. 42; R. v. McSweeney, 2020 ONCA 2, 384 C.C.C. (3d) 265 (Ont.CA.) at para. 81; R. v. Thompson, 2020 ONCA 264, 62 C.R. (7th) 286, at para. 107; R. v. West, 2020 ONCA 473, [2020] O.J. No. 3151 (Ont.CA.) at para. 41; R. v. Adler, 2020 ONCA 246, 388 C.C.C. (3d) 114 (Ont. C.A.) at para. 46.

[74] In a case called R v. Wilson, 2020 ONSC 6928 (Ont.S.C.) at paras. 25-31, I considered the effect on this issue of R. v. Omar 2019 SCC 32, 435 D.L.R. (4th) 270 (S.C.C.) and R. v. Le, 2019 SCC 34, [2019] S.C.J. No. 34 (S.C.C.). I will not reiterate that discussion here but will simply summarize by saying that McGuffie has not been overruled by the Supreme Court and remains authoritative. The last word of the Supreme Court of Canada is from Le in which it was held at para. 142 that if the first two inquiries support exclusion, “the third inquiry will seldom if ever tip the balance in favour of admissibility (Paterson, at para. 56).” That is especially true in these circumstances when the first inquiry so strongly favours exclusion.

[75] The circumstances in this case are not exceptional. McGuffie applies. Consistent with his refusal to acknowledge the binding authority of Polashek and the tenor of his other submissions, Mr. Quilty repudiated the authority of McGuffie. There was however no articulated reason capable of justifying a departure from the principle of stare decisis.

[76] Examining the third inquiry, it clearly militates towards inclusion of the evidence. The offence here was very serious and the evidence 100% reliable. The judges in the GTA recognize the social evil that guns represent. I have written on the subject several times myself: R. v. Kawal, 2018 ONSC 7531 (Ont. S.C.) at paras. 11-16; R v. Chizanga and Meredith, 2020 ONSC 4647 (Ont. S.C.J.) at paras. 5-39. Yet, as explained by the Supreme Court of Canada, the seriousness of the crime ought not to take on disproportionate significance in the Section 24(2) analysis: Harrison, para. 34, 40; Grant, para. 84.

[77] The third factor is incapable of turning the tide away from exclusion. In balancing the three inquiries, McGuffie governs. The seriousness of the Charter misconduct is the superordinate factor in the analysis. In the end, the handgun, the cannabis, the hash and all other fruits of the search are excluded from evidence. There being no evidence on the Section 95 handgun count on which he was arraigned, Mr. McKenzie-Walcott will be acquitted of that count.

[78] In the result, it is unnecessary to consider Mr. Aubin’s arguments with respect to Sections 10(a) and 10(b) of the Charter.

D.E HARRIS J.

Released: March 1, 2022