KIERAN MORRISON

and –

JOLANI RAGUETTE

Deniz Sarikaya, for the Applicant, Kieran Morrison

Susannah Chung-Alvares, for the Applicant, Jolani Raguette

Defendants/Applicants

HEARD: November 8-10, 12 and 16-18, 2021, at Toronto, Ontario

Michael G. Quigley J.

Reasons For Decision

Introduction

[1] Kieran Morrison and Jolani Raguette (sometimes called “the Applicants”), are charged under the Controlled Drugs and Substances Act (“CDSA”)[^1] and the Criminal Code of Canada (the “Code”)[^2] with possession of marijuana for the purposes of trafficking, firearms related offences, possession of proceeds of crime, and failure to comply offences.[^3]

[2] These charges arise, almost happenstance, out of events leading up to and on September 18, 2018, that took place at the gas station property located at 3449 Dundas Street West in Toronto.

[3] In brief, on Monday, September 17, 2018, Detective Constable Tyler Steel (“DC Steel”) of the Toronto Police Service (“TPS”), was granted a CDSA search warrant for “Piff Express” (“Piff”), located at 3449 Dundas Street West. It had previously been operating as an illegal marijuana dispensary. On September 17, but more importantly, again on September 18, DC Steel claimed to have observed customers coming to the front entrance of Piff, ringing the doorbell and trying to open the door. However, they could not gain entry because the door was locked. The shop was dark. It appeared to be out of business and closed.

[4] However, a short while later on the afternoon of September 18, DC Steel claimed to have observed the Applicants in a grey-green vehicle, now known to be a Dodge Avenger, located inside a Quonset type tent structure on the south side of the gas station, beyond the covered plaza where three rows of gas pumps were located.

[5] From two different vantage points, one located across the street, and one in front of the convenience store on the west side of the gas station, DC Steel claimed to have observed the occupants of the vehicle, now known to be Messrs. Morrison and Raguette, wave or beckon to at least two separate customers to come towards them. DC Steel claimed to have observed them exchange words, and then engage in two separate hand-to-hand drug transactions. Both defendants then resumed sitting in the vehicle under the tent.

[6] Based on these observations, DC Steel returned to the Division, and quickly assembled a team to return to 3449 Dundas Street West. The plan was to execute the search warrant that DC Steel had obtained on his second attempt against Piff, if it was open, but either way and in any event, it was also to arrest the two individuals DC Steel claimed to have seen allegedly engaging in drug transactions.

[7] Moments after the officers arrived on-scene, but with no further investigation or drug transactions observed, they were ordered to takedown the vehicle and arrest the occupants. At 3:42 PM, officers arrested both Mr. Morrison and Mr. Raguette as they sat in the motor vehicle, in the driver's seat and the front passenger seat, respectively. They were charged with the marijuana trafficking offences, and then with the firearms offences as well, after a firearm was observed and located behind the front passenger's seat on the floor.

[8] I heard this voir dire as a Case Management Judge appointed under s. 551.1 of the Code. In their applications, Messrs. Morrison and Raguette challenge the admissibility of the firearm, the marijuana and other evidence seized on the basis that the police violated their rights under the Canadian Charter of Rights and Freedoms[^4] (the “Charter”).

[9] The Applicants claim that there were no reasonable and probable grounds present here that would have permitted the police to act as they did, to arrest either of them, or to search the vehicle allegedly incident to that claimed unlawful arrest. They claim that they were unlawfully arrested in violation of s. 9 and unlawfully subjected to search and seizure contrary to s. 8 of the Charter. They ask the Court to exclude the evidence arising out of these searches at their trial, pursuant to s. 24(2), and say to do otherwise would bring the administration of justice into disrepute.

[10] I find that the Applicants’ accusations of Charter breaches are serious. They are claimed to undermine the good faith of the police conduct. At a minimum, the Applicants claim these errors demonstrate persistent and negligent police conduct. At its highest, they argue that the evidence of DC Steel is facially insufficient to form either subjective or objectively reasonable and probable grounds to make an arrest, because they claim the evidence makes clear that he never saw or could have made the core, and other critical observations he claims to have seen and made.

[11] Moreover, they assert that his evidence suffers from a toxic blend of credibility and reliability concerns. They contend that any of the subsequent evidence of the other police officers, which I note itself demonstrates considerable inconsistency, cannot save this matter. The reason is simple: the asserted absence of reasonable and probable grounds to arrest causes the detention and arrest of the Applicants to be unlawful from the outset, necessarily resulting in an unlawful search because it was incident to an unlawful detention and arrest.

[12] For these and further reasons set out below, the Applicants argue that the admission of any evidence flowing from the breach of their rights under ss. 8 and 9 of the Charter in these circumstances would be fundamentally unfair. They say the evidence obtained ought to be excluded pursuant to s. 24(2) of the Charter. I agree.

[13] The onus rests on the Crown to establish (i) that police had reasonable and probable grounds to detain and arrest the Applicants, (ii) that the search that yielded the evidence of unlawful conduct was incident to a lawful detention and arrest, and (iii) that the police acted in good faith.

[14] In my view, the Crown has not discharged its burden of persuasion relative to any of these three issues, and as such, I find that the police breached the Applicants’ Charter rights.

[15] Having found that the Applicants’ Charter rights have been breached, the burden of persuasion shifts to the Applicants to demonstrate under s. 24(2) on a balance of probabilities that the admission of the impugned evidence would bring the administration of justice into disrepute, applying the principles in R. v. Grant[^5], as developed in subsequent caselaw, most recently the November decision of the Court of Appeal in R. v. Tutu[^6].

[16] After carefully reviewing and considering those decisions within the constellation of particular facts present in this case, I find that admission of the impugned evidence would bring the administration of justice into disrepute under s. 24(2) of the Charter. The evidence will be excluded.

Evidence on the voir dire

[17] This voir dire was heard over eight days from November 8 to 18, 2021. There were two agreed statements of fact filed by counsel, and evidence was received from four police officers and one civilian witness. DC Steel alone occupied most of the first week. As well, DCs Scott Kangas, Lorne Foster, and Robert Chudzinski testified on their involvement. A private investigator, Mr. James Marlow, also testified about the photographs and videos of the site he created on behalf of the defence. He made the videos and took those photos of the scene 10 months later, in July 2019. There was also extensive other photographic evidence, video evidence, and cartographic evidence of the location, consisting not only of satellite generated images from Google Maps, but also a hand-drawn map prepared by DC Steel as he testified, all of which were received and made Exhibits.[^7]

[18] The story commences on August 21, 2018. On that day, DC Steel conducted a police database search of 3449 Dundas Street West in Toronto. Police had allegedly received complaints that an illegal marijuana dispensary was operating, adjacent to an Esso gas station and a car wash. That search yielded three results.

[19] Then, on August 28, 2018, a search warrant obtained by a member of a different team of police investigators, DC Hwang, was executed by members of the TPS at 3449 Dundas Street West. Drugs were seized, arrests were made, and the Piff dispensary operating out of the storefront was shut down. Although he was not personally involved, DC Steel knew that Piff had been the subject of that other search warrant on August 28. He also knew that the officers led by DC Hwang had found it operating as an illegal marijuana dispensary, that arrests resulted from that search, and that the police closed it down.

[20] Despite the dispensary having been closed on August 28, 2018, DC Steel claimed that TPS continued to receive complaints about Piff operating as an illegal dispensary after that date. He conducted internet searches and said he confirmed that Piff was still advertising the sale of marijuana products online. It is unknown whether those sites were active at the time he found them or were remnants of Piff before it was shut down.

[21] On September 3, 2018, DC Steel received information from Officer Procter about the Dundas Street West location. Based on that information, DC Steel attended at 3449 Dundas Street West, to see if the former Piff storefront was back in operation. He stationed himself across the street in the Shoppers Drug Mart parking lot. As he watched the Piff storefront, he initially observed people approaching the door and knocking, but they were unable to gain entry.

[22] When DC Steel personally approached the store that day, he too discovered that the door was shut and locked. He was unable to gain entry. He did not observe any lights on or any activity within the storefront. He was told by persons near the storefront that the dispensary was no longer in operation. They told him to go elsewhere to purchase marijuana.

[23] Later on September 3, 2018, DC Steel applied for the first time for a warrant to search the Piff location, even though he had not heard or seen anything to corroborate the earlier information provided by Officer Procter, and in particular, had not heard or seen anything to corroborate that the Piff dispensary was up and running again.

[24] On September 4, 2018, Justice of the Peace Kenneth Bhattarcharjee denied DC Steel’s request. His Worship Bhattarcharjee refused to issue the warrant because he was not satisfied that there were reasonable and probable grounds to believe that further offences had been committed since the execution of the search warrant on August 28, 2018. Furthermore, His Worship found that there was “insufficient credible and reliable evidence” that the operation was back up and running. In his judgment, the evidence presented by DC Steel simply did not support anything beyond a “mere suspicion.”

[25] Even though the Justice encouraged him to do so, DC Steel did not conduct any further investigation between September 4, 2018, when the first warrant request was refused, and September 17, 2018, when, for the second time, he once again sought a warrant to search the Piff location. He requested that warrant based on the exact same Information to Obtain (“ITO”) that had been presented earlier to Bhattarcharjee J.P.

[26] However, DC Steel did not disclose that he had requested and been denied a warrant two weeks earlier. The new Justice of the Peace would have had no idea of this when considering whether to grant DC Steel’s request for a new warrant. This time the warrant was granted.

[27] Even though he now had a warrant, the next day, September 18, DC Steel became concerned and started to question whether the Piff storefront was actually open and operating again as an illegal marijuana dispensary. He said he was concerned because he did not want to waste police resources if the Piff dispensary was not actually up and running again. To resolve this concern, DC Steel decided that he would drive out to 3449 Dundas Street West again on September 18, 2018, in order to make further personal observations.

[28] DC Steel parked his un-marked, undercover police car across the street from the Piff store front, in the parking lot of the Shoppers Drug Mart. He parked in the exact same location (“Location 1”) from which he had made his observations on September 3. That was the most southerly parking space in the Shoppers Drug Mart parking lot, immediately north of a grass and concrete boulevard and sidewalk that fronted onto Dundas Street West. He commenced making his observations from that location. Satellite mapping evidence reveals that the distance from Location 1 to the Piff storefront was approximately 160 feet.

[29] The Piff building shared a parking lot with some self-serve car wash bays and an Esso gas station. DC Steel immediately noticed a white tent structure, with a domed, Quonset like roof, situated at the back of the gas station, beyond the Piff building. He said he could see two vehicles parked side-by-side under the tent. He did not initially notice anyone inside or around those vehicles. His attention was trained on the Piff building itself.

[30] DC Steel did not observe any activity inside or outside of the Piff storefront from Location 1 that suggested a dispensary was in operation. Just over ten minutes later, however, he did observe a light-skinned male attempt to gain entry to the premises, but the premises appeared to be closed. That male walked away when he was unable to gain entry. No further observations were made of that male.

[31] A further ten minutes later, DC Steel observed another person, a brown male, attempt to gain entry to the Piff premises. However, when the brown male did not gain entry, DC Steel observed an unknown black male by the driver’s side of what appeared to be a grey-green-blue Dodge Avenger, parked in the tent-like structure south of the storefront. The Dodge Avenger was parked in the tent, on the east side, facing north. He said he saw the black male beckon or wave to the brown male to come over. DC Steel said the man waving looked like he was in his 20s or 30s and he testified he was dressed in green clothing. He had a skinny build. From that distance, DC Steel acknowledged he could not make out the license plate numbers of the vehicle under the tent. He said he could see that the plates looked to be different from Ontario license plates, and he thought it might be a prairie province license plate, such as from Manitoba or Saskatchewan.

[32] According to DC Steel, as he continued to make observations from Location 1, the two men walked towards each other and then turned to walk back towards the Dodge Avenger. There was a black Jeep, parked facing south beside the Dodge Avenger, on the west-side of the tent.

[33] At the tent, the brown male followed the black male between the two cars, towards the rear of the tent. DC Steel testified that he saw the black male open the rear driver’s side door and lean into the car. He also testified that he could see the black male’s “shoes in the shadows below the rear door”, but he could not provide a description of those shoes. Surprisingly to me, when asked, he testified as well that he could see that the sleeves of the black male’s green shirt were “elasticized”, even from such a significant distance.

[34] As discussed later in these reasons, I questioned whether these observations could be accurate, not only because the view of the black male would have been significantly obscured by the open rear driver side door, but also by the brown male who was also standing in front of that black male, facing south, between the two cars, but standing on the north side of the rear driver side door.

[35] Nevertheless, DC Steel claimed that he had a “clear and unobstructed view” from his parking space across the street at the Shoppers Drug Mart, not only of the Piff building and storefront, but also the tent.

[36] In considering their reliability, it was noteworthy to me that the distance to the tent from DC Steel’s position at Location 1 was approximately 213 feet, a distance roughly equal to two thirds of the length of a football field. As well, he was in a high-traffic area. As the videos prepared by Mr. Marlow disclosed, DC Steel would have been looking across 4 lanes of mid-afternoon traffic on Dundas Street West. This must have prevented a continuous and uninterrupted view of the tent, much less of the activity he claimed to be able to see going on in the shadows within the tent.

[37] DC Steel did acknowledge that his view of the two men was obscured for a short period, at the point when they met each other between the storefront and the tent. He marked that location on his hand drawn map. However, he later conceded that he was mistaken about the gas pumps obstructing his view, but could not state what it was that had obscured his vision. Was it cars passing on Dundas Street? Was it cars moving in between the gas pumps or the location of the pumps themselves? He could not say.

[38] In cross-examination, DC Steel was reminded of his conflicting testimony at the preliminary hearing. In response, he admitted that he had not actually seen any object being passed from the black male to the brown male. This stood in sharp contrast to the quite detailed description he had earlier provided of an item being passed from the black male to the brown male in the 3’ to 4’ gap between the two vehicles in the tent.

[39] At that point, DC Steel explained that he did not actually see an exchange take place. His conclusion that a hand-to-hand transaction had taken place, was based upon his belief that the black male’s fist looked closed rather than open, nothing more. He could not say what it was, but said he believed that an “object” had been passed.

[40] Given that he was making those allegedly precise and detailed observations of limited hand movements within the shadows of the tent from a distance of 213 feet, I consider it very unlikely that DC Steel actually saw these actions. It appears more likely on his evidence, at its highest, that DC Steel could only have suspected, or inferred from what he claims to have seen that there was an object passed between the males. However, it is plain on his own evidence that he did not see any object change hands and the satellite images, photos, and videos entered into evidence add to my doubt that the purported observations by DC Steel at this time would have been possible. DC Steel also conceded in cross-examination that it was possible he could have been mistaken about his observations.

[41] Following those events, a short time later DC Steel said he observed a white female attempting to gain entry to the Piff premises. When she was unable to do so, she was observed walking away. Whether any gestures were made towards her from anyone located in or around the tent is unknown, but DC Steel did not observe any.

[42] DC Steel decided he wanted to gain a better view of what was going on, so he drove across the street from the Shoppers parking lot and parked at the gas station, in front of the Esso convenience store and Coffee Club Café, located on the west side of the gas station property. Except for the most southerly parking spot, which was occupied, DC Steel reversed into the southern-most available spot along the west side of the gas station. The evidence shows that the distance from DC Steel’s new location (“Location 2”) to the tent was approximately 103 feet. He was looking east and had an oblique angled view of the very front of the tent only, though he claimed he could see quite a bit of the front of the Dodge Avenger.

[43] From Location 2, DC Steel said that he then observed two white males, so called “metalheads” (because they were wearing rock band T-shirts), walking toward the premises but he did not see either of the white males trying to gain access to the Piff premises. He said one of them passed multiple $20 bills to the other while they were walking. He said that he could specifically see that the bills were “folded like an accordion.” Then he said he saw a second, unknown, black male in blue clothing wave or beckon the two white males over to the car, from the passenger side of the Dodge Avenger that was located inside the tent.

[44] DC Steel said he observed the man with the $20 bills start to approach the car under the tent, while the other white male stood back some distance. He testified that he saw the white male with the $20 bills follow the black male towards the back of the tent, in the narrow space between the Dodge Avenger and the black Jeep. However, he had to acknowledge that he lost sight of them at this point, as his view was not only obscured by the west side of the tent, but also by the black Jeep whose rear end was protruding north beyond the front of the tent. DC Steel agreed in cross-examination that there were items at the back of the tent that would have prevented the Jeep from parking right up to the rear of the tent. Importantly, even though it would plainly have impacted his ability to make observations, he had no recollection of how far the rear of the Jeep protruded from the front of the tent.

[45] DC Steel wanted to be able to see any transaction that might occur between the white male and the occupants of the Dodge Avenger. He very slowly drove his car eastbound toward the tent-like structure, at a crawling pace with his foot on the brake. He said he stopped briefly right in front of the tent structure to gain a better view down between the two vehicles in the tent. He said that was when he observed and make his “big observation” of a hand-to-hand transaction, but that he had not stopped for so long as to attract attention and blow his cover.

[46] DC Steel testified that his observations were made as he was looking south, through the passenger side window of his unmarked vehicle, when that vehicle was at a point directly south of the gas pumps. His evidence was that from that point, his “big observation” point, he could see the man wearing green who conducted the initial transaction, sitting in the driver’s seat of the Dodge Avenger. He said the man wearing blue was now at the driver’s side of the vehicle. DC Steel said that he saw the man with the $20 bills hand the money to the man in blue. He testified that he saw the man in blue holding an object that looked like a plastic, Ziploc bag. He did not see where the man in blue got the object from, and he did not see him hand it to the man who had given him the money.

[47] DC Steel testified in-chief that after having observed the white male and the second black male engage in what he believed was a hand-to-hand transaction, he began to accelerate and turned northward towards the exit to Dundas Street, after his vehicle passed by the last south-easterly located gas pump. Only a short time later in cross-examination, however, DC Steel had no alternative but to resile from his original testimony that he had stopped directly south of the gas pumps to observe what was happening between the two men located in the tent. He was forced to materially change this part of his evidence after he was confronted with photo images introduced by the defence that plainly showed that the tent was not located directly south of the gas pumps, but in fact some distance southeast of the pumps, much closer to the car wash bays.

[48] In his initial testimony, DC Steel had claimed to have looked over his shoulder, after turning his vehicle north after he passed the last southeast gas pump, but after being confronted with the actual location of the tent, DC Steel changed his testimony on this part of his actions as well. He said that he continued east without turning, after passing the last gas pump, and that it was only at that more easterly point that he turned his head right to look through his passenger window to see the alleged transaction taking place in between the two vehicles in the tent. Only then, he said, had he made his “big observation” out of his front passenger side window.

[49] The problem with this revised story was that the photo images and videos certainly made it appear that if his vehicle had continued east after passing the tent, without looking ahead to see what was in front of him, DC Steel’s vehicle would most likely have had a very unhappy confrontation and collision with the car wash building, or the cars that were parked on its west side.

[50] The images and videos put to DC Steel in cross-examination show that if DC Steel had turned north, rounding the last gas pump, as he originally testified, any activity in or near the tent would have been behind him, and his view would have been obstructed by darkness, as per the videos, and limited on account of having to look back while allegedly accelerating and driving away.

[51] DC Steel agreed in cross examination that he did not actually see the black male hand any item to the white male during that claimed interaction. He also agreed that he could not say what the opaque object was in the white male’s hand or what, if anything, it held. It bears noting, once again, as he did innumerable times during his testimony, that DC Steel conceded at numerous times throughout his cross-examination that he might have been mistaken about many of his observations.

[52] Regardless of what he may have observed or thought he observed, DC Steel’s new alleged observations led him to change plans. He said he believed he had observed the two black males sitting dealing marijuana in baggies out of their car to would-be customers of Piff.

[53] DC Steel left the gas station and returned to 11 Division. He conducted a briefing, for a total of four minutes, recounting his alleged observations. It was decided that he and other members of his team, DCs Kangas, Foster, Suhali, and Chudzinski would return to 3449 Dundas Street West. DC Foster was the “road boss”, and in charge.

[54] DC Steel testified that one of the goals upon returning to 3449 Dundas Street West was to conduct “further investigation” of the two males. The evidence shows, however, that there was no further investigation conducted. DC Kangas testified that the objectives of the team heading to 3449 Dundas Street West were to confirm that the Piff dispensary was closed, and to see if the persons of interest waved him over.

[55] DC Kangas agreed in cross-examination that a wave would not be enough to constitute reasonable and probable grounds for arrest. Further, both he and DC Foster acknowledged that as members of the Major Crime Unit (“MCU”), as opposed to the drug squad team, they would never try to engage in a drug transaction with persons of interest to obtain evidence, because of the risks to officer safety that might arise were they to attempt to do so.

[56] Based on all of the evidence, it is clear and I find that the intention of DC Steel, which was shared by all, was to take the warrant and execute it against Piff if it was open when they got there, which was unlikely given the state of their knowledge, but that in any event, they planned to arrest and charge the two unknown black males in the Dodge Avenger with possession of marijuana for the purposes of trafficking.

[57] After the briefing, DC Steel reattended 3449 Dundas Street West with those officers. DC Steel was unable to recall if he was in the car with anyone else at that time. DC Kangas could not recall if DC Foster was in the same car as DC Steel, but he believed that there was just one MCU vehicle parked in the west side of the parking lot. In fact, there were at least two. DC Steel testified that he parked one spot further north from his prior Location 2 on the west side of the parking lot, as a car was now occupying his previous spot. The distance from DC Steel’s third location (“Location 3”) to the tent was approximately 107 feet.

[58] Most of the officers travelled in a silver Dodge van. As they approached the target address, the van stopped a few hundred feet from the gas station, and DC Kangas got out and started to walk along Dundas Street towards the gas station. The other vehicles would arrive and situate themselves appropriately for what was expected to transpire. Upon arriving at the location, DC Kangas, in plainclothes, walked over to the Piff premises. When he could not gain entry, he stepped back about 1-2 feet from the front door, remaining on the sidewalk immediately in front of the door. He then looked over at the Dodge Avenger, parked in the tent-like structure. The distance from DC Kangas’ location to the tent, at this point, was approximately 83 feet.

[59] DC Kangas testified that from this vantage point outside the doors of the Piff dispensary, he could not see if anyone was in the car and only when he saw the front passenger’s arm extend out of the open front passenger window and wave him over, was he able to see that there was at least one occupant.

[60] However, photographs and satellite images show that observation of a purported wave by the passenger would not have been possible by DC Kangas. When shown Scenes of Crime Officer (“SOCO”) photographs, DC Kangas took the position that the Dodge Avenger was not fully backed into the tent and he denied that the front passenger side of the vehicle was fully within the tent, despite agreeing that at least the front tire, and at least a portion of the front hood, appeared to be well inside the shadow of the tent.

[61] On this point, DC Steel testified that from his parking spot located obliquely to the west, he saw the driver (in green clothing) open the door and half-stand outside of the car and wave DC Kangas over. However, once again the video and photographic evidence, supplemented by the testimony of DCs Kangas, Foster, and Chudzinski, suggest that a view of the persons in the Dodge Avenger would not have been possible from DC Steel’s admitted location. This follows given the obstruction created by the west side of the tent and the Jeep parked partially sticking out of the tent, blocking the view from the west.

[62] In any event, it was clear from DC Foster’s evidence that the goal of the MCU officers on scene was not to conduct observations of the tent, but to simply keep their eyes on DC Kangas, and on the front entrance of Piff, in order to insure his safety. There was no other evidence from any officer of a wave by any of the occupants of the Dodge Avenger.

[63] DC Kangas testified that he walked south towards the middle of the tent and then veered west until he went about ¾ of the length of the gas station roof towards the west, towards the location of DC Foster’s MCU vehicle, before giving a signal for takedown. In other words, on his evidence, DC Kangas walked across, in front of and well past the front of the tent to a point that he said was closer to the westerly located gas pumps, before giving the takedown signal.

[64] However, DC Steel testified that DC Kangas never moved away from the Piff storefront to any material degree. He had remained in front of the Piff storefront at all times. DC Foster also testified that DC Kangas was still very close to the Piff storefront and had just started walking south of the storefront, past several signs beside the sidewalk on that side of the plaza, when he gave the signal. DC Chudzinski testified that DC Kangas had only walked 10-15 metres in the direction towards the tent before he gave the signal for takedown.

[65] DC Kangas, DC Foster, and DC Chudzinski, all acknowledged in their testimony that none of them were able to see persons within the target vehicle from their respective vantage points, all on the premises of the gas station, until they were closer to the vehicle. This is in contrast with DC Steel’s earlier testimony that he claimed to be able to see the occupants interact with others beside the vehicle, and with very precise detail, when he was situated across the street in the parking lot of the Shoppers Drug Mart over 200 feet away.

[66] DC Kangas agreed in cross-examination that he kept his eyes on the target vehicle as he walked towards it and did not observe any movement in and around the car. Officers testified that other than removing the accused from the vehicle, and DC Chudzinski opening the rear passenger door to pick up and replace the gun, no one touched or handled the car until PC Hough arrived to take SOCO photos.

[67] When DC Kangas was shown the SOCO photo taken by PC Hough of the front passenger window rolled up, he suggested that the passenger could have rolled it up after he had passed by the tent, despite all other officers testifying that DC Kangas never passed by the tent, and despite DC Kangas agreeing that his team descended upon the suspects swiftly with a goal of catching them by surprise. DC Kangas maintained that he was waved over by the passenger who remained seated in the car, despite DC Steel’s earlier observations entailing either of the accused exiting the vehicle to interact with purported customers. The fact that the accused remained in the car with the windows rolled up is inconsistent with any suggestion that they intended to interact with or would have beckoned to DC Kangas.

[68] At that point, members of 11 Division surrounded the car, and directed the Applicants to exit the vehicle. Once outside, Mr. Morrison and Mr. Raguette were arrested, and searched incident to arrest. DC Steel testified that it was possible he went into the pockets of Mr. Raguette.

[69] The vehicle was also searched, allegedly incident to the arrest of both Applicants. DC Chudzinski located a firearm in the rear passenger seat floorwell area. While it was tucked so close to the side of the floorwell directly below the rear passenger window that I questioned whether it would or could have been visible as he claimed, DC Chudzinski said he could see it “in plain view” down through the window before he opened the rear passenger side door.

[70] Once the accused were advised of the further firearm charges, PC Hough was called to photograph the scene. Subsequently, the car was searched again, incident to arrest, with the officers locating a large quantity of marijuana, $690 in cash, baggies, a digital scale, and identification in the name of each of the Applicants, found within their respective satchel bags within the vehicle.

[71] Officers did not obtain a warrant for the vehicle. Instead, officers testified that the vehicle was searched twice, incident to arrest, while the accused had been removed and handcuffed, and were in police custody. The Applicants were compliant and cooperative despite being subjected to full level three strip searches.

[72] Prior to their arrest, neither Mr. Morrison nor Mr. Raguette were known to the officers. None of the officers knew their names or any other information about them, including whether either of them had a criminal record. The police had no information about either the brown male or the two white males who allegedly interacted with and engaged in hand-to-hand transactions with the occupants of the Dodge Avenger. DC Steel did not follow and stop any of those individuals as part of his investigation to determine if they were in possession of marijuana that might have been obtained from the occupants of the vehicle. There was little to no investigation conducted relative to the Dodge Avenger.

[73] Finally, I will note there are a number of agreed facts in this case, reflected in Exhibit 1 and Exhibit 13. These uncontested facts include (i) that the firearm discovered in and recovered from the car is a “restricted firearm”, and the chambered and other clipped rounds, which were successfully test fired, are “ammunition”, both as defined in s. 84 of the Code; (ii) that the cumulative weight of the loose and rolled cannabis found in the vehicle was 283.24 grams; (iii) that the driver of the vehicle was Kieran Morrison and the passenger was Jolani Raguette, neither of whom was authorized or otherwise permitted to possess a restricted firearm; and finally, (iv) that when arrested on September 18, 2018, Kieran Morrison was bound by a recognizance as indicted in the Indictment.

The issue and applicable principles

[74] The issue on this Charter application is whether the arrest of the Applicants was lawful, and thus whether the contraband seized was lawfully obtained in the course of a search incident to a lawful arrest.

[75] If the arrest was not lawful, then the police will have breached the Applicants’ s. 8 Charter rights. The burden to establish a lawful arrest falls on the Crown. If it succeeds in discharging that burden, then the contraband seized from the Applicants will be admissible at their trial. If the Crown fails to prove the arrest and search were lawful, the burden will shift to the Applicants to show, under s. 24(2) of the Charter, that the evidence ought to be excluded on the basis that its admission would bring the administration of justice into disrepute.

[76] A warrantless arrest is authorized by s. 495 of the Code. This section reads in part:

495 (1) A peace officer may arrest without warrant

(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence…

[77] In R. v. Storrey, the Supreme Court of Canada instructs that the s. 495 power of arrest requires that an arresting officer have a reasonable subjective belief that he has reasonable and probable grounds on which to base the arrest. In addition, however, those grounds must be justifiable from an objective point of view. As Cory J. cautions, at p. 250:

It is not sufficient for the police officer to personally believe that he or she has reasonable and probable grounds to make an arrest. Rather, it must be objectively established that those reasonable and probable grounds did in fact exist. That is to say, a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest. [Citations omitted; emphasis added.][^8]

[78] Stated somewhat differently, the objective reality check requires that a reasonable member of the public placed in the position of the officer would conclude on the basis of the facts gathered by the officer, not the officer’s suspicions or speculations, that there were indeed reasonable and probable grounds for the arrest[^9].

[79] The absence of reasonable subjective belief will render an arrest unlawful because if the officer is found not to have a reasonable subjective belief, it will generally preclude the objective test from being satisfied. In R. v. Feeney, Sopinka J. states as follows at paras. 34-35:

In my view, as the lack of subjective belief on the part of the officer would suggest, the requirement that, objectively speaking, reasonable and probable grounds for an arrest exist prior to forcible entry is not met. The objective test as set out in Storrey, supra, is whether a reasonable person, standing in the shoes of the officer, would have believed that reasonable and probable grounds to make the arrest existed. Any finding that the subjective test is not met will generally imply that the objective test is not met unless the officer is to be considered to have an unreasonably high standard.

In any event, in my view the objective test was not met regardless of the officer's views. An arrest cannot be made solely for the purpose of investigation, but if grounds exist on a subjective and objective basis, the fact that police intend to continue the investigation and do so does not invalidate the arrest: see Storrey, supra.[^10]

[80] Specifically, police officers are not required to establish a prima facie case for conviction before making an arrest.[^11] The standard is one of “reasonable probability,” but the cases show that “reasonable belief” also adequately describes the threshold.[^12] In assessing an officer’s grounds, a court is to consider the probative value of the cumulative effect of the relevant circumstances.

[81] If the grounds for an arrest were nothing more than a hunch – i.e., based entirely on the intuition of an experienced officer – then the arrest will not be lawful. However, even if an officer has some objective grounds for his claimed belief, that on its own will not resolve the issue.

[82] A constellation of objectively discernible facts may still only tally up to provide an arresting officer with reasonable grounds to suspect that the arrestee is criminally implicated in the activity under investigation. In these circumstances, an arrest would be unlawful notwithstanding the presence of some objective grounds in the form of reasonable suspicion.

[83] The decision in R. v. Kang-Brown[^13] shows that “suspicion”, “reasonable suspicion”, and “reasonable and probable grounds” are legal terms of art that carry different meanings. At para. 75, Binnie J. explains that “suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable suspicion” means something more than a mere suspicion and something less than a belief based on reasonable and probable grounds. He continues:

[T]he fundamental distinction between mere suspicion and reasonable suspicion lies in the fact that in the latter case, a sincerely held subjective belief is insufficient. Instead, to justify such a search, the suspicion must be supported by factual elements which can be adduced in evidence and permit an independent judicial assessment.

What distinguishes “reasonable suspicion” from the higher standard of “reasonable and probable grounds” is merely the degree of probability demonstrating that a person is involved in criminal activity, not the existence of objectively ascertainable facts which, in both cases, must exist to support the search.[^14]

[84] Police officers may rely on information from confidential sources, on hearsay, and on information obtained from other officers in order to establish reasonable and probable grounds to believe someone has committed, or is about to commit, an indictable offence. Equally, an officer who possesses reasonable and probable grounds sufficient to ground an arrest may “transfer” those grounds to another officer and order that officer to arrest a suspect.[^15]

[85] Nevertheless, R. v. Debot requires the presence of a causal link showing that the arresting officer’s belief is firmly grounded in credible and reliable information, from reliable and proven sources, in addition to credible and reliable first-hand information derived from his or her own investigation. In Debot, the arresting officer was merely following his Sergeant’s orders. In this case, DC Steel was one arresting officer and DC Kangas the other, but the arrests are entirely predicated upon DC Steel’s belief. DC Kangas could have had no belief independent of DC Steel.

[86] Officers must also take account of exculpatory, neutral, or equivocal information, as part of the constellation of factors when they consider whether reasonable and probable grounds are present to permit an arrest to be mde. While they are not obliged to seek out exculpatory factors or to rule out possible innocent explanations before arresting a suspect, an arrest will not be objectively reasonable when police are confronted with exonerating information and can make reasonable inquiries but fail to do so.[^16]

Analysis

[87] I have divided my analysis into four separate parts. First, I consider the credibility and reliability of the evidence of DC Steel, and to a lesser extent, DC Kangas. The assessment of DC Steel’s evidence is central because he was the only person who is claimed to have had reasonable and probable grounds to arrest either Mr. Morrison or Mr. Raguette. The actions of all other officers were motivated by what DC Steel told them in the brief meeting that preceded the team going to the target site for the takedown.

[88] Regrettably, I note at the outset that apart from its actual content, which is discussed below, the credibility and reliability of DC Steel’s evidence was undermined, at least in part, by the fact that there continued to be new and important but previously unknown disclosure that emerged from DC Steel’s notes, for the entire first week of the voir dire.

[89] The second and third parts of my analysis consider and set out my findings on whether the legal test is met. They consider, sequentially, (i) whether DC Steel had an honest and reasonable subjective belief that he had reasonable and probable grounds to arrest the Applicants, and (ii) if he did, whether that belief can pass the muster of being objectively reasonable.

[90] In the fourth part, I briefly address the legality of the search of the Dodge Avenger and the Applicants. In that portion of my reasons, I also address submissions made by Crown counsel in closing on the relevance, if any, of the Cannabis Control Act and the Ontario Court of Justice’s 2021 decision in R. v. Grant[^17] relating to that legislation and the search power set out within it.

(i) Assessment of the evidence of DC Steel and the other officers

[91] The question of whether DC Steel had reasonable and probable grounds to arrest is inextricably linked and intertwined with my assessment of whether his evidence is credible and reliable, considered on its own, and in relation to the evidence of other officers and third-party objective evidence, such as the videos, the photographs and the maps that were introduced into evidence.

[92] Unfortunately, it is disturbing to me that the evidence of DC Steel was not only plagued with internal and external inconsistencies, but that there were also aspects of the evidence that emerged during his testimony and in the evidence as a whole, that call into question whether his evidence can be relied upon.

[93] The inconsistencies in DC Steel’s testimony affect two crucial questions I must consider in evaluating his evidence. First, they raise a significant concern about a general carelessness with respect to telling the truth. As I will describe, this point was evident in the officer’s evidence about obtaining a warrant to search Piff.

[94] Second, the accumulation of inconsistencies, and the likely physical impossibility of some of DC Steel’s alleged observations, raise profound concerns about the acuity of what he saw, and thus whether he could have formed the requisite honest reasonable subjective belief.

[95] One example of this latter concern is seen in his evidence about the white tent, where it was located, the locations from which he made his observations, and his later admissions of the extent to which he could have been mistaken. This problem was compounded by the questionable likelihood that any individual could purport to see the kind of detail in alleged hand to hand transactions that he purported to describe from a distance of 213 feet, across the four lanes of afternoon traffic on Dundas Street West and through the area of the gas station where the gas pumps necessarily would have partially obstructed his view, and where cars were also moving to access or leave the covered gas pump plaza area.

[96] The credibility and reliability problems that plagued DC Steel’s evidence were extensive, but they do require enumeration. These “inconsistencies” or outright errors relate to his notes and failures to disclose them, to the statements he made and did not make in the ITOs, and to the plethora of “mistakes”, outright inaccuracies, mistaken personal observations, and inconsistencies with his own prior evidence and the testimony of other officers.

[97] They are grouped under the following six distinct headings: (i) The problems with notes and disclosure; (ii) The evidence relating to the ITOs; (iii) The location of the white tent; (iv) DC Steel’s claimed observations; (v) DC Steel’s identification of the wrong person; and (vi) external inconsistencies of DC Steel’s evidence.

1. The Problems with Notes and Disclosure

[98] While he gave his evidence at trial, it became clear over several days that DC Steel had not only not maintained his notes in accordance with TPS policy but also that he had not disclosed all his notes. Over the first three to four days of the hearing, we learned that DC Steel did not disclose his notes from any of August 30, 2018, September 4, 2018, September 16, 2018, and September 17, 2018, all dates relevant to the entire chronology. The trial was halted several times over the ensuing dates to permit notes to be copied and disclosed to defence counsel.

[99] On the first day of the hearing, DC Steel referred to his notes from August 30, 2018. Not only had these notes not been disclosed, but DC Steel had mistakenly testified at the preliminary hearing that he did not have any involvement in this investigation between August 21, 2018, and September 3, 2018 (see Preliminary Hearing Transcript June 26, 2019, p. 60).

[100] On the second day of the hearing, he referred to his notes from September 16, and 17, 2018. These notes had not previously been disclosed. Once again, the hearing was halted and delayed while we awaited and then received these notes. At this point, as a precaution given the gaps that had already been identified, DC Steel was asked to provide a scanned copy of all his notes from this entire investigation.

[101] However, the scanned copy that was provided did not include DC Steel’s notes from August 21, 2018, but what this scanned copy did include, for the first time, was DC Steel’s notes from September 4, 2018. These notes had not previously been disclosed, nor were they even known to exist.

[102] The notes from September 4, 2018, were particularly important, revealing, and disconcerting, because that was the day on which the first search warrant that DC Steel had applied for relative to Piff was denied when the Justice considered the request to be based on mere suspicion. Importantly, neither counsel nor I knew that until this revelation on the third day of the hearing. That was the first time counsel and I learned that an earlier warrant had not only been asked for, and denied, but had also not been disclosed.

[103] To enable us to know more about this problematic development, I ordered that the ITO to obtain that warrant, which was in the sealed records of the Ontario Court, was to be unsealed and disclosed. With the assistance of Crown Counsel and a staff member at the Ontario Court who happened to be working late that day, we were able to receive it the next morning.

2. The evidence relating to the ITOs

[104] When the materials relating to the initial search warrant were disclosed on November 10, 2021, halfway through the voir dire hearing, we learned that DC Steel was denied a search warrant for Piff on September 4, 2018, because the Justice of the Peace found that there was insufficient credible and reliable evidence that Piff continued to operate, such as to permit a warrant to issue.

[105] DC Steel testified that he “worked on a search warrant for Piff Express” on September 16, 2018. On September 17, 2018, he applied for and received the warrant from a different Justice of the Peace, but with and on the basis of the exact same ITO.

[106] This ITO lacked crucial information. For example, DC Steel did not include the fact that a warrant had been denied on a previous date. He did not include the reasons why the Justice of the Peace denied the warrant. He did no further investigation of Piff.

[107] Even though he had now received a warrant on his second attempt, DC Steel went to Piff on September 18, 2018, to see whether it was open. He testified that he was not sure that Piff was still operating, and he did not want to “waste police resources”, by executing a warrant on a location that was closed. DC Steel did not advise the Justice of the Peace that he was not sure Piff was operating when he applied for the warrant.

[108] On a related note, DC Steel testified at the preliminary hearing that “[he] did make it inside and did verify [Piff] was operating as an illegal marijuana dispensary, and that was on September 3.”[^18] Unfortunately, despite this testimony, the evidence before me showed that DC Steel had never actually been inside Piff, and that he never personally confirmed that it was in operation.

3. The location of the white tent

[109] DC Steel was asked to draw a map of the 3449 Dundas Street West gas station location that he had been observing from the Shoppers parking lot across the street. In doing so, DC Steel identified Locations 1, 2 and 3 on the map, from which he made his sequential observations. In preparing that hand-drawn map, he incorrectly placed the white tent, where the drug transactions allegedly occurred, directly south of the Esso gas pumps.

[110] In cross-examination, it was suggested to DC Steel that the location of the white tent on his diagram was incorrect. and that it was actually located some distance east of the gas pumps. DC Steel denied that suggestion and maintained that the location he had indicated on his hand-drawn map, directly south of the plaza of six gas pumps, was correct.

[111] DC Steel was then shown a video of the entire 3449 Dundas Street West location. It showed the white tent to the south-east of the Esso gas pumps. DC Steel testified that the gas station looked different in the video, and that the white tent was in a different location in the video than it had been at the time of the incident. Furthermore, DC Steel testified that he believed the gas station could have been a Husky gas station at the time of the incident.

[112] However, DC Steel was then shown SOCO photos taken on the day of the arrest. Those photos left no doubt (i) that the gas station was an Esso station at the time of the incident and arrest on September 18, 2018, and (ii) that the tent was in the exact same position on that day as it was shown in the video. DC Steel admitted again that he was mistaken.

4. DC Steel’s claimed observations

[113] Based on the diagram he drew, DC Steel testified that when the brown male and the black male met on the east side of the gas station, one of the gas pumps obstructed his view from Location 1. However, after seeing the video, he agreed that the gas pump could not have obstructed his view because the tent was east of the gas pumps. He then altered his evidence and testified that something else had blocked his view, but that he could not recall what it was. DC Steel acknowledged that he made no notes about any obstruction.

[114] DC Steel testified that he made his “big” observation of the alleged second hand-to-hand drug transaction while “driving through the gas station.” He testified that he stopped, momentarily, south of the gas pumps. He explained that he felt that he could do that without putting his undercover status at risk because he could act as if he was getting gas, which he said would give him cover from suspicion. From that momentary vantage point, DC Steel claimed to have observed the drug transaction involving the “metalheads” which transpired in the 3-4’ space between the two vehicles parked, one entirely within the tent and the second protruding from the back of the tent.

[115] DC Steel testified that when he made his “big” observation, of the transaction between the white male and the black male who was dressed in blue, he was located directly and immediately north of the tent. He told me that he had a direct line of sight into the tent at that moment as he drove by the tent. Specifically, he explained that he was looking south, at the space between the driver side of the Avenger and the Jeep parked to the west, as he said he witnessed the second hand-to-hand transaction take place.

[116] The problem here is that despite the precise detail he provided, DC Steel’s evidence relative to the location of the tent, including the careful drawing he prepared, is entirely inconsistent with the actual location of the tent, relative to the gas pumps and the do-it yourself car wash bays to the east. Therefore, DC Steel could not have made his “big” observation of a hand-to-hand transaction from a location directly and immediately north of the tent. It was geographically impossible. When he was confronted with this problem in cross-examination, DC Steel changed his testimony. In his revised evidence, he said that he must have made his “big” observation of a hand-to-hand transaction while turning left from a point on the east side of the gas pump plaza, not directly south of them as he had originally maintained.

5. DC Steel’s identification of the wrong person

[117] DC Steel testified that the passenger in the Dodge Avenger looked to be in his late teens or early twenties. By contrast, he testified that the driver looked to be in his twenties or early thirties.

[118] At the preliminary hearing, DC Steel was asked to identify the passenger, Mr. Raguette. That identification was important because Mr. Raguette was the person that DC Steel actually arrested as the takedown unfolded.

[119] However, at the preliminary hearing, the person DC Steel identified as the passenger, Mr. Raguette, who he had arrested, was not Mr. Raguette, but was actually Mr. Morrison.[^19] DC Steel testified that he made this mistake because he spent more time with and looking over at Mr. Morrison on the other side of the car than he did with or looking at Mr. Raguette. He also testified that the passenger of the Dodge Avenger looked younger than the driver. I found it difficult to accept this explanation when he was the officer who arrested Mr. Raguette, cautioned him, and read him his rights to counsel.

6. External inconsistencies of DC Steel’s evidence.

[120] On the diagram that he prepared and that was entered as an Exhibit, DC Steel drew the black Jeep SUV parked fully inside the tent. It is clear from the SOCO photos, however, taken within hours of the arrest, that the black Jeep SUV was never parked fully in the tent. It was parked with its rear cargo area sticking out from the north side of the tent, by perhaps a foot or two. This protrusion of the back of the Jeep from the front of the tent would have made it physically impossible for DC Steel to have had a sight line that would have permitted the observations he claimed to have made from Location 2.

[121] DC Steel testified that the driver of the Dodge Avenger had waved DC Kangas over to that vehicle. Apart from the obvious logistical difficulty that DC Steel could not have seen the driver of the Dodge Avenger do much of anything, since the back of the protruding Jeep would have obstructed his view given his evidence of where he was parked, to the contrary, DC Kangas specifically testified that it was the passenger who had waved him over.

[122] The accumulation of evidential problems that I find to be present in DC Steel’s evidence, not surprisingly, necessarily has a significant negative impact on my assessment of this case. As for the evidence of the other officers, there was considerable inconsistency in their recollections and accounts of what transpired as well. At the time of and just before the takedown, DC Steel did not know where the other police cars were located when he was at Location 3. On DC Foster’s evidence, however, the silver Dodge police van must have been parked virtually right beside DC Steel within one or two parking spaces. It is unclear how DC Steel would not have known that.

[123] After the takedown signal was given, DC Steel said it was he who drove forward to box in the suspects’ vehicle, but he admitted he had no recollection what car he was driving. After boxing it in, he said he quickly exited with his gun drawn and went to the passenger side of the Dodge Avenger to arrest Mr. Raguette. Although DC Steel insisted he had been the one to box in the suspects’ vehicle, the SOCO photos plainly show it was the silver Dodge van, that the Road Boss, DC Foster thought was being driven by DC Suhali, that boxed in the applicants’ vehicle and prevented them from leaving.

[124] There is no evidence of what vehicle DC Steel was driving, either during his surveillance from Locations 1 and 2, or during the takedown. He had no idea if he drove the same car during his September 18 surveillance before he returned to the station, and when he returned for the takedown. There is no evidence on that subject to assist me on evaluating what could or did happen, or why he thought he was the driver who boxed in the Dodge Avenger. Plainly, however, the evidence of others and the SOCO photos show that it was not DC Steel’s vehicle, but rather the silver Dodge van that transported other officers to 3449 Dundas Street West, that is boxing in the Dodge Avenger.

[125] DC Steel and DC Foster both said that from their vantage point at Location 3, DC Kangas was still very close to the entry door to Piff, and on that east side of the gas pump promenade, when he gave the takedown signal. DC Foster was firm on that evidence because he testified that he was focused entirely on DC Kangas’ actions and locations. His only concern at that time was with the safety of DC Kangas.

[126] However, DC Kangas gave entirely different evidence. He said that was not at all where he was located. He testified that he had walked south from the doors of Piff, the full distance and depth of the gas pump plaza area on the east side, then turned right, and had continued to walk west directly in front of and past the opening of the white tent. He testified he walked at least three quarters of the width of the gas pumps plaza, and well past the western end of the white tent, before he gave the takedown signal.

[127] DC Kangas’ evidence was not without its own internal difficulties. He acknowledged that he had no information on Piff, and that he had no idea what was said in DC Steel’s ITOs. He admitted he was unable to see anything inside the Dodge Avenger vehicle, saw no one exit the vehicle, and saw no activity around the vehicle. All he saw was a hand extending from the passenger side window waving him over, but he also said he could see a silhouette of another person on the driver’s side as he progressed towards the vehicle. However, when asked, he admitted that no one else, none of the other officers located obliquely to the west, could possibly have seen the passenger wave to him. He acknowledged that their view would have been completely obstructed by the tent and the Jeep.

[128] At the Preliminary Inquiry in June 2021, the following exchange took place between then defence counsel and DC Kangas, as recorded at page 56 Line 22, to page 57 Line 21:

Q. And the vehicle, the Dodge, was parked inside a tent, an opaque tent, right?

A. A white tent, canvas style.

Q. Right. And it was parked in the west parking spot facing north, right?

A. It was parked east of the -- sorry, no, there’s two spots, it was on the east spot facing north.

Q. Okay.

A. ‘Cause the Jeep was to the right of it.

Q. The Jeep was to the right of it?

A. Correct.

Q. Okay. So the Jeep was closer to where your colleagues were parked, right?

A. Correct.

Q. And so really from where your colleagues were parked, it wouldn’t be possible for them to see the passenger’s side of the Dodge, right?

A. The passenger’s side?

Q. Yes.

A. No, I don’t have that answer, but I don’t think so, no.

Q. You don’t think so, right?

A. No.

Q. Okay. And so you tell us that the person sitting in the passenger’s seat waved you over, right?

A. That’s correct.

Q. And that’s when you signal the takedown?

A. Correct.

Q. And really, there’s no way for anyone else to confirm that that person waved you over, right?

A. Correct.

Q. Because of the way the angle of the car is parked?

A. That’s correct.

Q. Okay. And there’s really, other than your evidence, there’s no way for us to corroborate or to question whether or not you were waved over, right?

A. Yes.

[129] There are two problems with verifying what was or was not seen. DC Kangas admitted that merely seeing a person wave him over to a vehicle would not provide him with grounds to arrest. DC Steel said he saw a wave from the vehicle towards DC Kangas, but what he claimed to have seen was the person on the driver side of the vehicle wave towards DC Kangas, not the person on the passenger side. He maintained this view despite the oblique angle of his view, an angle that other officers admit would have blocked his view. Contrary to DC Steel’s evidence, DC Kangas was certain it was the passenger who waved to him.

[130] Apart from the plain fact that the location of the Dodge Avenger inside the tent would have prevented DC Steel from seeing a person waving from the driver’s side door (the Jeep was in the way), the testimony of these officers cannot be reconciled. Crown counsel argued that this creates no problem, and that the fact that they each report having seen a different person waving might mean they were both waving, working in a joint venture as she suggested. She argued this would serve to corroborate DC Steel’s overall evidence that both males were waving potential purchasers over. However, that was not the evidence of the two officers. I find that Crown counsel’s suggestion that this could corroborate anything or resolve the conflict in their evidence, must be dismissed as utter unsustainable poppycock.

[131] DC Kangas would also not admit the likely impossibility of some of his observations. Based on the SOCO photos taken the same day, it is evident to me that virtually all of the front hood of the Dodge Avenger would have been in shadow at the time of the takedown. First, there was no evidence of any sunlight shining into the tent. That is not surprising, since the Quonsett tent was oriented on a north south axis, with the closed back panel of the tent reducing the amount of light that would be admitted from the south.

[132] More importantly, there was only about a foot of room from the passenger side of the Dodge Avenger to the side of the tent, inadequate room to stand up. DC Steel confirmed that point when he testified that he banged his head on the tent structure as he went to the passenger door to arrest Mr. Raguette. The SOCO photo shows that virtually the entire front portion of the Dodge Avenger was inside the tent, except the front bumper and grill. It appears to me from that photo that most of the front passenger side tire was in shadow and within the tent. This materially reduces the likelihood that DC Kangas did or could have seen Mr. Raguette wave to him from the passenger side, given the angles of view involved, the proximity of the curvature of the tent roof to the side of the vehicle, and DC Kangas’ location according to DC Foster and others.

[133] I accept without hesitation that whether reasonable and probable grounds to arrest are present in any alleged criminal situation must always be determined on the whole of the circumstances and the reasonability of the beliefs of the officers, and not on a seriatim parsing of the veracity of particular facts that are claimed to inform the officer’s views. That said, I also acknowledge that this analysis has identified and focused on a plethora of particular inconsistencies in the evidence I heard from the police officers, evidential problems that I have found to be very troubling. In my view, however, there is no conflict between these propositions, and decisions like R. v. Amofa[^20], which remind me that the analysis of alleged Charter violations must not be reduced to an over-analytical parsing of events into static moments, are not to be read as permitting an application judge to gloss over important errors on detail, simply because the determination of reasonable and probable grounds is to be made on the whole of the evidence.

[134] This follows because the commitment in all criminal cases is to the ascertainment of the truth, and determinations of guilt or innocence cannot be made based on alleged facts that prove to be untrue or unreliable, or assumptions or speculations that are divorced from reality. The presence of reasonable and probable grounds to arrest cannot be grounded in mere suspicion, no matter how well educated that suspicion may be, and officers cannot proceed to arrest even when such suspicions are present, if they do not have evidence that establishes the facts to support the intrusion on the liberty of the subject that is inherent in the power of arrest.

[135] Obviously, no witness is ever presumed to tell the truth simply because of who they are. For example, despite their typical extensive experience in testifying, a witness is not believed simply because he or she is a police officer. Indeed, that experience may itself be cause for special scrutiny precisely because they have experience in how to testify. Instead, the testimony of all witnesses, regardless of their status, must always be assessed on its own merits: whether it is logical; whether it is consistent; and whether it is in accord with common sense, human experience, and known facts that are adduced during the trial.

[136] On this application, I must determine whether there is reason to suspect the credibility of DC Steel or any of the other witnesses. The caselaw shows that a reliable approach in making that determination is to consider whether the witness has provided different accounts of the event on different occasions. Of course, there will always be some inconsistencies on minor matters, and they are to be expected. However, as we caution jurors, inconsistencies on material issues can demonstrate carelessness with the truth. They can undermine the Court’s ability to be confident in the witness’s evidence, as a whole. In R. v. M.G.[^21] at para. 23, Galligan J.A. instructs that:

Probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions, whether on oath or not. Inconsistencies on minor matters or matters of detail are normal and are to be expected. They do not generally affect the credibility of the witness. This is particularly true in cases of young persons. But where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken the inconsistency can demonstrate a carelessness with the truth. The trier of fact is then placed in the dilemma of trying to decide whether or not it can rely upon the testimony of a witness who has demonstrated carelessness with the truth.

[137] This exactly states my present dilemma. It is open to the me to accept testimony notwithstanding inconsistencies in the evidence, but I can only do that after I have considered the totality of the inconsistencies to assess whether the evidence is reliable, particularly in cases where there is no supporting evidence on the central issue.[^22]

[138] Crown counsel argued that DC Steel’s “independent investigation” was more than sufficient to form the reasonable grounds required to support the warrantless arrest of the Applicants. In support of that assertion, she noted that the arresting officer’s knowledge and experience must also be considered when evaluating whether reasonable grounds were present.

[139] An officer’s training and experience may provide an objective, experiential basis for forming grounds sufficient to arrest, and the Supreme Court has observed that where an experienced officer has an honest, subjective belief, that is itself some evidence, although not conclusive proof, that the belief is objectively reasonable.[^23] While that may be true, however, an officer’s experience can be no substitute for, nor can it diminish the primary need for there to be evidence to provide credibility to and support the acuity of an officer’s observations.

[140] In re-examination, Crown counsel put a photograph[^24] to DC Steel, a photo that she obtained from Google Maps. The photo is dated August, 2018, and was thus recorded much closer to the events of September 18, 2018, than the July 2019 date of the videos entered into evidence by the defence.

[141] This photo shows that the gas station and convenience store located at 3449 Dundas Street West on that date operated under the Esso brand, and it shows the white tent in the same location where it was located a month later, when DC Steel’s observations were allegedly made and the Applicants were arrested. The photo appears to have been taken, without magnification, from the parking spot at or close to the Shoppers Drug Mart across from 3449 Dundas Street West that DC Steel identified as his “Location 1” vantage point.

[142] Exhibit 12 shows there were no vehicles located in the white tent that day. Crown counsel used the photo to clarify DC Steel’s uncertainty that it was an Esso station at the time of the offences, and with respect to the series of red coloured “pillars” that had been attached to each of the gas pumps, apparently a marketing feature rolled out as part of a new Esso clean gas promotion program.

[143] I found that photo to be helpful. It likely explained what had obscured DC Steel’s view from Location 1 and it confirmed he was mistaken about the location of the tent. To me, however, it was important because it shows how dark the inside of that tent was generally, even when there were no cars present or parked within the tent. Even more important, in my analysis, is that it clearly demonstrates that an observer stationed at Location 1 could simply not have seen the detail that DC Steel said he observed, and it is this particular problem, both at Locations 1 and 2, that casts the credibility of the officer’s testimony into doubt.

[144] In summary, having considered the totality of DC Steel’s evidence and the cumulative effect of all the inconsistencies in his testimony, I cannot help but find that his credibility is suspect and subject to doubt on many important parts of his evidence on material matters, either for the inconsistencies in the retelling, or simply in the outright impossibility of some of the claimed observations. I find that these flaws in DC Steel’s evidence and the inconsistencies with other officers’ evidence, call his credibility as a witness into serious question. As Galligan J.A. observed, above, this conclusion places me in the dilemma of trying to decide whether I can rely upon DC Steel’s testimony in the face of his seeming carelessness with the truth of his observations. As the following paragraphs will show, I am unable to accept DC Steel’s evidence as reliable.

(ii) The subjective test

[145] I now turn to the reliability of his evidence and whether it can support DC Steel’s claim that he did have a reasonable subjective belief that he had reasonable and probable grounds to arrest the Applicants. I will then turn to consider if he did, whether that belief can pass muster of being objectively reasonable.

[146] I accept the submissions of defence counsel and find that there are at least three reasons why the inconsistencies in DC Steel’s testimony makes his evidence unreliable.

[147] The first reason is that his “mistakes” were only admitted at the 11th hour, so to speak, while this voir dire was ongoing. R. v. Stinchcombe[^25] and other authorities show that the process of disclosure is not intended to be piecemeal or to take place during the proceedings themselves. DC Steel would not admit to his extensive factual mistakes until he was confronted with objective facts that directly contradicted his evidence, and that thus called into doubt that he could have seen what he claimed to have seen, or that his descriptions of what he says he saw can be relied upon.

[148] One particularly damaging example of this problem arose when DC Steel insisted on the layout of his diagram and the location of the white tent, when he was faced with the irrefutable evidence to the contrary that emerged from the video footage, and in fact the TPS’s own SOCO photos taken on the day of the arrest. He even went as far as to testify that he thought it was a different gas station at the time of the incident. This either demonstrates an unsuccessful effort on his part to back-pedal out of an evidential corner, or it simply provides yet another example of the unreliability of his observations.

[149] Second, DC Steel had no explanation to offer for his mistakes. When the truth emerged, DC Steel simply admitted to making mistakes without providing any excuse or explanation for the many mistakes in his evidence as between the preliminary inquiry and this voir dire, or internally within his evidence as a whole. I will add here that I respect the officer’s candour in this regard. Rather than trying to bob and weave his way out of the evidential impossibilities that confronted him, DC Steel ultimately acknowledged the numerous mistakes that were present throughout his evidence. On this I accept that he was being truthful, but I reject the suggestion of Crown counsel that his acknowledgement of his numerous mistakes demonstrated his truthfulness, and showed that he did indeed have a reasonable subjective belief that he had reasonable and probable grounds to arrest. Given that these admissions of mistakes are in relation to the very facts that allegedly provided him with a reasonable subjective belief, I find this assertion by Crown counsel to be without foundation or merit.

[150] Third, as the factual descriptions of the evidence on this voir dire show, the sheer number of inconsistencies in DC Steel’s evidence is overwhelming. Not only that, but he failed in his disclosure obligations, which itself calls into question carelessness with ensuring all relevant facts are brought forward. Of considerable significance to me in this analysis was the unfortunate last-minute disclosure relative to the September 4, 2018, search warrant.

[151] DC Steel had been denied the warrant for Piff on September 4 by the Justice of the Peace, with an admonishment to do more fulsome investigation because what he had presented did not meet the requirements for a search warrant to issue. The original Justice, Bhattarcharjee J.P. said it amounted to nothing more than “mere suspicion”. However, DC Steel admitted that he did not conduct any further investigation of any kind between September 4 and September 17.

[152] Yet on that date, only two weeks later, he went before a different Justice, with an identical ITO, and this time received a warrant. When asked if they were exactly the same, he said “they may have been.” But that was not just a possibility but rather the indisputable fact because only seconds later he admitted, “[y]es I just made a copy and went to a JP – a different one.” Were it not for that admission, however, his notes would incorrectly have left a different impression that he put positive effort into revising the ITO document. His notes record that DC Steel “worked on the second ITO” until 11:00 pm on September 16 before going before a new Justice of the Peace – not much additional work evident, at least to my eye.

[153] It is important to me that DC Steel appears to have committed a serious breach of his duties on this occasion by failing to make any mention to the new Justice of the fact (i) that he had applied for an earlier warrant for the same address; (ii) that his request for that warrant had been denied; (iii) that he had conducted no further investigation as the prior JP had instructed him to do; and (iv) that the ITO he was placing before the new Justice was nothing more than a copy of the earlier ITO that was denied.

[154] Crown counsel suggested in argument that the issuance of the warrant in response to the second ITO somehow bolsters PC Steel’s credibility and reliability. I reject this proposition because it defies logic. I cannot help but conclude that the second Justice of the Peace would, or at least could have had a quite different understanding of the ITO if these deficiencies had been known to him or her. I must also reject Crown counsel’s contention that the ITO was full, fair and frank, and that the errors contained within it were made in good faith.

[155] DC Steel’s description of the location of the tent that is central to the case was inconsistent and outright wrong. He was mistaken about where exactly he was located when he observed the hand-to-hand drug transaction, in the narrow space located between the two vehicles, the location where he made his “big” observation.

[156] Crown counsel argues that the fact that DC Steel does not claim that everyone he saw approaching Piff was summoned over to the Dodge Avenger, makes him a credible witness, and supports the credibility of his story. Similarly, he was cross examined that he could be or indeed was mistaken about what he saw. He admitted he did not know what he saw. Crown counsel suggests this also bolsters his credibility, because the issue is his honest belief as to what he saw.

[157] I find this assertion to be profoundly flawed. I accept that he could be mistaken, and that the issue is his honest belief, but when the officer is shaken to the core on the two critical issues that are needed to ground the existence of an honest belief, this does not and never could enhance his credibility. I accept that he is being truthful when he acknowledges all of the inconsistencies and things that he may not have or could not have seen. However, where he acknowledges, as he has here, that he does not actually know if the things he believed were happening were in fact happening, then I can find no evidential foundation to support any belief, much less a reasonable one, in his own subjective mind, to meet the requirements of the subjective part of the test. The contrary argument is without any sustainable foundation.

[158] In conclusion on this point, I find that DC Steel’s evidence is unreliable. It cannot possibly satisfy the subjective test for grounds to arrest, because one cannot tell what, if anything, is credible or not, and reliable or not. DC Steel made important mistakes in crucial areas of his evidence that impact his observations which in turn allegedly provided the subjective grounds for his belief. The inconsistencies in his evidence cannot be assessed or reconciled because there is no explanation for them. This necessarily defeats the existence of a reasonable subjective belief. Suspicion? Yes. Reasonable subjective belief? No.

(iii) The objective test

[159] For this part of the test to be satisfied, there must be some objective justification or verification of DC Steel’s belief. There are two areas of concern relating to whether the evidence would cause a reasonable member of the public in DC Steel’s shoes to conclude that there were reasonable and probable grounds, and not just mere suspicion.

[160] First, there are concerns about the acuity of his observations. DC Steel was incorrect about the location of the tent; and he identified the wrong person in court at the preliminary hearing. In addition, his observations from Location 1 were made across a busy Dundas Street; through a plaza with a gas station; inside a tent with shade in the narrow space between two parked cars. For his observation of the second transaction, he was driving through the plaza while looking in the opposite direction. Indeed, DC Steel testified that he could be mistaken about his observations.

[161] Second, even if his observations are accepted as accurate, DC Steel did not see any items pass between the parties. For the first transaction, he admitted that he did not see an item change hands. Similarly, for the second transaction, he did not see an item exchanged between the passenger of the Dodge Avenger and one of the “metalheads”.

[162] Considering the totality of the circumstances, these observations do not provide any objective justification for DC Steel’s belief that what he observed was a drug transaction. There was no verifiable evidence that Piff had been open after August 28, 2018. There was some suspicion that it was open on September 3, 2018, but certainly no indication that it was open on any date after that. Of the three people who attended Piff, only one went to the Dodge Avenger. The two “metalheads” did not go to Piff before going to the Dodge Avenger. None of the individuals were known to police.

[163] If there were no reasonable grounds to arrest the Applicants then the arrest was arbitrary and unlawful.[^26] This is so regardless of the fact that any of the officers who arrested or searched the Applicants, and the Dodge Avenger vehicle, may have acted in what they believed to be good faith in reliance on the information provided by DC Steel.[^27] It is also not sufficient for DC Steel to personally believe that he had reasonable and probable grounds for an arrest. Rather, it must be objectively established that those reasonable and probable grounds did in fact exist. That is to say, the court must find that a reasonable person, standing in the shoes of DC Steel, would have believed that reasonable and probable grounds existed for arrest.[^28]

[164] Underlying DC Steel’s suspicions of the Applicants was the idea that the storefront at 3449 Dundas Street West was operating as an illegal marijuana dispensary. He formed his suspicion, merely on the basis of internet searches without anything more. There was no corroboration of that suspicion on the part of DC Steel. In fact, when DC Steel had previously attended at the storefront on September 3, 2018, he was unable to gain entry and the storefront appeared closed. That was the only time DC Steel attempted to gain entry to the storefront.

[165] By all accounts, there was no illegal marijuana dispensary operating out of 3449 Dundas Street West on either September 18, 2018, or on September 3, 2018, when DC Steel previously attended that location. In fact, there was no basis to believe that an illegal marijuana dispensary was operating at the storefront since a search warrant had been executed, by DC Hwang’s team of police officers, on August 28th, 2018. On that date, marijuana was seized, and persons were charged. Given his knowledge of that fact and his personal observations of the “locked-up”, “lights-out” state of the Piff dispensary, it appears that it would have been more reasonable to conclude that any illicit operation at Piff ceased after that search warrant was executed, than that it was continuing. This also undermines the good faith of seeking the second search warrant for Piff.

[166] Neither of the Applicants, Mr. Morrison and Mr. Raguette, nor their Dodge Avenger, were previously known to DC Steel. Moreover, DC Steel did not know any of the persons who are alleged to have completed transactions with one or the other of the Applicants. None of those three persons - the brown male or the two white males - were pursued by DC Steel and stopped or investigated for drug possession arising from what he said were the hand-to-hand transactions he witnessed. He could have had no idea what they possessed because he never bothered to inquire.

[167] As was the situation in R. v. Biadi[^29], these two accused were not known by DC Steel to have had any involvement in the drug trade and police observations of their brief meetings could be accounted for by any number of possible other explanations. In Biadi, the officers had information on the accused provided by a confidential informant, but it was conceded that the anonymous informant’s tip was unreliable. In this case, however, there was no information from any source about Messrs. Morrison and Raguette.

[168] Even if DC Steel had a hunch or suspicion about an illegal marijuana dispensary operating in the vicinity of the location of the white tent, he took no steps to corroborate or try to identify facts to support or corroborate a factual foundation for that suspicion. It is plain to me that the unreliability of the information he had, and the absence of any information about the Applicants, including their identity, and/or the existence of any criminal record, should have increased the obligation of police to have investigated more, and to have observed something more than an alleged hand-to-hand transaction, about which the officer himself acknowledged that he was or could easily have been mistaken. Not all persons who approached the storefront were claimed by DC Steel to have been waved over and to have had interactions with the Applicants, and of course, DC Steel admitted that he actually did not observe any drugs being exchanged at any time.

[169] The purported observations by DC Steel are doubtful and his credibility is undermined by the fact that some of his observations would appear impossible. Even if I were to accept DC Steel’s evidence, any subjective belief held by DC Steel was not reasonable. Observing unknown, black males interact with an unknown brown male and two unknown white males, in the vicinity of a premise that was thought to be operating as an illegal marijuana dispensary does not lend itself to any reasonable subjective view that criminal activity has occurred. A reasonable person would not conclude that the Applicants were engaged in drug activity.

[170] Appellate authority reminds me that the analysis of alleged Charter violations must not be reduced to an over-analytical parsing of events into static moments,[^30] but that Charter compliance must instead be assessed contextually, bearing in mind the totality of circumstances.[^31]

[171] I find that a consideration of the totality of circumstances known to him may point at its highest to the existence of a hunch or a reasonable suspicion on DC Steel’s part, but the innumerable mistakes, errors, corrections, admissions, and the sheer impossibility of too many observations, points more to the failings and superficiality of DC Steel’s investigation.

[172] I find that a reasonable person in the position of DC Steel looking at the dynamics of this situation would conclude, based on the evidence that is probative, that there were not reasonable and probable grounds to arrest either Mr. Morrison or Mr. Raguette.

[173] It is for these reasons that I find that, in the circumstances of this case looked at as a whole and in its totality, the police did not have reasonable and probable grounds to arrest Mr. Morrison or Mr. Raguette on September 18, 2018. I find that the arrest of both Applicants was not lawful and violated their ss. 8 and 9 Charter rights

(iv) Was the search and seizure incident to arrest unlawful?

[174] It was not referenced extensively during the voir dire, but Crown counsel did raise arguments in the Crown’s factum that the Applicants’ s. 8 Charter rights against unreasonable search and seizure were not violated. Both Applicants claim that police unlawfully searched the Dodge Avenger on the basis that DC Steel lacked sufficient grounds for an arrest, which then lead to the search. The Applicants also argued that there were no exigent circumstances that justified a warrantless search of the vehicle for marijuana.

[175] In order to be constitutionally sound, the search of a person or place must comply with three conditions: (i) it must be authorized by law; (ii) the law authorizing the search must be reasonable; and (iii) the search must be executed in a reasonable manner.[^32] This case involved a “warrantless search” and is thus presumed to be unreasonable, and the Crown bears the burden of persuasion to justify it.[^33] However, even absent a search warrant, the common law powers vested in all police officers ex officio will permit them to search individuals “incident” to their arrest in compliance with the Charter,[^34] provided the arrest itself was lawful and the search was truly incidental to the arrest in question.[^35]

[176] In this case, Crown counsel argues that the police did not search inside the vehicle until DC Chudzinski observed the firearm in the passenger footwell. He quickly opened the door, secured the handgun, and in the process discovered it was loaded. Thus, says the Crown, the search of the vehicle was apparently done incident to the arrest of Mr. Morrison and Mr. Raguette for a firearms offence, and only after the police discovered a loaded firearm in the back seat of the vehicle. At a minimum, the Crown says police had a responsibility and authority at that stage to confirm there were no further firearms or other dangerous weapons inside that car.

[177] Crown counsel asserted that the officers were also entitled to search the vehicle in this case incident to arrest of the accused if they had grounds to believe that the accused were in unlawful possession of marijuana. A relatively recent decision of K. Campbell J. in R. v. St. Clair[^36] is on point. In that case, the accused was pulled over and questioned by police, after another driver had called in to report that the accused was driving dangerously. While questioning the accused, the officer smelled fresh marijuana on his person and in his vehicle. The officer arrested the accused for marijuana possession, but the accused claimed had a license to possess medical marijuana. The officer did not believe his statement and claimed that the license appeared to be fake. Police then searched the accused’s vehicle and found illegal weapons as well as marijuana and drug paraphernalia in the vehicle.

[178] The Court found that the police were justified in searching a vehicle incident to the arrest of the accused where the police had reasonable and probable grounds to believe that the accused was in unlawful possession of fresh marijuana and that this fresh marijuana was on his person and/or in his motor vehicle. While some marijuana was found on the accused’s person, the police were entitled to search his motor vehicle to determine whether there was any additional marijuana located therein.

[179] However, the commencement of the entire chain is quite different from the circumstances present here. First, the accused in St. Clair was lawfully stopped because of a citizen 911 call concerning dangerous driving, and because as soon as the window was rolled down, the officer immediately smelled the evidence of the offence, and promptly arrested the accused. That was a lawful arrest as well. They then searched the vehicle and found firearms. As such, it is understandable how the court concluded that the search was incident to a lawful arrest.

[180] Crown counsel referred to s. 489(2) of the Code and claimed it permits the warrantless seizure of anything that the seizing officer has reasonable grounds to believe (a) has been obtained by the commissions of an offence under a federal Act, (b) has been used in the commission of an offence under a federal Act or (c) will afford evidence in respect of an offence under a federal Act, provided that the seizing officer is lawfully present in a place pursuant to a warrant or otherwise in the execution of duties.

[181] This is the seizure power, but Crown counsel then went on to submit that an officer need not have reasonable grounds to believe that an offence has been committed under s. 489(2)(c). In her submission, it is enough to merely have reasonable grounds to believe the thing “will afford evidence in respect of an offence” under the Code or any other federal act.

[182] I reject that position in its entirety. The flaw in this argument is that it assumes that the seizing power was exercised under s. 489(2)(c), but this is not a case where the police had a warrant. As such, they could only have detained the Applicants or otherwise have been lawfully present there in the execution of their duties if they had lawful grounds for arrest. This was not a search that could be made legal because something illegal was found after the police detained and arrested the Applicants, when they had no authority to detain and arrest them in the first place. The reason is simply because there was an absence of reasonable and probable grounds to detain or arrest in the first place, based on the incredibility and unreliability of so many key aspects of DC Steel’s evidence.

[183] The search allegedly conducted incident to arrest could only be valid if it was a lawful arrest. As such, where there was no warrant and an absence of reasonable and probable grounds to detain or arrest in the first place, the search could only have been lawful if the exigent circumstances called for it. In this case, however, there were no exigent circumstances, in my view, that permitted the vehicle to be searched at that time. The Applicants were under arrest. There was no present threat to officer safety. There was no reason that the officers could not have taken the brief time that would have been required to obtain a warrant.

[184] It is enough to dispose of this issue and conclude that it was not a lawful search incident to arrest based on my finding that the search was undertaken without the requisite reasonable and probable grounds to arrest the Applicants, and that there was an absence of exigent circumstances that called for the vehicle to be searched immediately. In the end, the officer acknowledged that he could not say whether he had actually observed any drug transactions. Given the absence of other evidence, as opposed to suspicion, that can fill in for the unreliability of his key alleged observations, in my view the search cannot be saved.

[185] Finally, in closing argument, Crown counsel made a novel, but in my view factually flawed argument that apart from all else, these officers could have searched the Dodge Avenger and the Applicants under the provincial legislation found in the Cannabis Control Act, 2017 (“CCA”).[^37] This was the first time mention of that statute had been made during this proceeding.

[186] Sections 6 through 13 of the CCA contain the provincial prohibitions respecting cannabis relevant in the province of Ontario. It is not a criminal statute like the Code or the CDSA. It is a quasi-criminal statute that is regulatory in nature. Section 12 contains prohibitions relative to “Transporting Cannabis.” Subsections 12(1) and (3) read as follows:

Transporting cannabis

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.

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.

[187] Once an officer has “reasonable grounds” to believe that cannabis is being contained in a vehicle or boat in contravention of the CCA, these provisions purport to entitle that officer to search the occupants and the vehicle or boat itself to ensure there is no other cannabis illegally stored and accessible to anyone in that vehicle or boat.

[188] In Grant (2021)[^38], the court found that the finding of handgun during a valid CCA search was lawful. However, here, Crown counsel sought also to invoke the CCA as a legal basis for what occurred in this case. She says that the police believed that the two Applicants were in the motor vehicle and in possession of marijuana, in order to sell to would-be clients of the now-closed Piff dispensary. This is claimed to provide alternative grounds to the Criminal Code grounds that I have found were absent.

[189] This is an argument that has no factual or legal foundation in these circumstances. Even more importantly, it was a theory that first “popped up” and was advanced by the Crown, and only provided to defence counsel, after the evidence had been called. As such, there was no further opportunity for examination or cross-examination on the impact or relevance much less the purported legal validity of the CCA in this case, an interesting question since criminal law is an area of exclusive federal legislative competence.

[190] There is no mention of the CCA in the Crown’s factum. Neither DC Steel nor any of the other officers mentioned the CCA nor were they asked about it by Crown counsel. Much more importantly, unlike the case of Grant (2021), there is no evidence that any of these officers were even aware of the existence of the CCA, much less that it played any role at all in precipitating their actions. Neither did they claim justification for their actions based on the CCA.

[191] Hunter v. Southam[^39] and a plethora of decisions of the highest appellate courts in the land make plain, that to authorize a search or have legal grounds to search, there must be full compliance with the guarantee provided under section 8 of the Charter that everyone has the right to be secure against unreasonable search or seizure. The standard is the presence of reasonable and probable grounds, not just “suspicion” or even “reasonable suspicion.”[^40]

[192] In any event, the arrest made in this case was not for contravention of the CCA, but rather under the CDSA for possession of marijuana for the purposes of trafficking, and the search of the vehicle was claimed to be justified solely as a search incident to that arrest according to the officers, not on any other theory.

[193] Not surprisingly, having only received Crown counsel’s summary of submissions very early on the last morning of the voir dire, defence counsel were taken aback and frankly objected to being confronted at that time with this new theory advanced by the Crown. I am sympathetic to their reaction and concern that Crown counsel was seeking to buttress her argument with legislation that was not relied on by the police. They said this implicitly acknowledged that otherwise the TPS did not have reasonable and probable grounds to arrest, or to search incident to arrest. However, I accept Crown counsel’s less nefarious explanation that this was not her intent, but it matters not, because as these reasons show, I find it has no relevance to the live questions that were to be resolved on this voir dire.

[194] The circumstances of this matter can be summed up neatly and succinctly. The claimed reasonable and probable grounds for the arrests of Mr. Morrison and Mr. Raguette rely entirely on the observations, supposed investigation, and conclusions reached by DC Steel. Apart from that evidence, there is no other evidence that could support the formation of the belief by anyone else. The evidence of DC Kangas, while also problematic in terms of what could have been observed in the moments preceding the arrest, is quite irrelevant to that question. Without the evidence of hand-to-hand transactions, not only capable of being seen but having actually resulted in exchanges of money for drugs, there are no grounds for detention or arrest in this case grounded in more than suspicion.

Should the evidence be excluded under s. 24(2) of the Charter?

[195] The Applicants were subjected to a number of Charter breaches as a result of their unlawful arrest and the initial search of each of them, the vehicle, the satchels each of them possessed, and they were both subsequently strip searched. Both the seriousness of the Charter-infringing conduct and the impact of the breaches on the Applicants’ Charter-protected interests favour exclusion, whereas society’s interest in adjudication favours admission. The question is whether the Applicants have discharged their burden to establish that, on balance, the admission of the unlawfully obtained evidence would bring the administration of justice into disrepute. If the answer is yes, the evidence must be excluded.

[196] In Grant in 2009, and again ten years later in 2019 in R. v. Le[^41], the Supreme Court sets out the overarching principles that frame the analysis. First, the concern of the inquiry is the overall reputation of the justice system in the long run, viewed from the perspective of a reasonable person. Second, the focus is prospective, keeping in mind that a Charter breach in and of itself, whether sanctioned or not, damages the reputation of the administration of justice. Third, the focus is intended to be societal, systemic, and broad. It is not about specific police conduct, nor is it about any particular accused person.

[197] In Le, the Supreme Court of Canada summarized the analysis at para. 140:

What courts are mandated by s. 24(2) to consider is whether the admission of evidence risks doing further damage by diminishing the reputation of the administration of justice – such that, for example, reasonable members of Canadian society might wonder whether courts take individual rights and freedoms from police misconduct seriously. [Emphasis in original.]

Balancing the three lines of inquiry from Grant will determine whether the admission of evidence tainted by a Charter breach would bring the administration of justice into disrepute.

(i) Seriousness of Charter-infringing state conduct

[198] The absence in this case of reasonable and probable grounds to arrest that can pass tests of honest subjective and objective reasonability is very troubling. I accept that DC Steel stated in his evidence that he believed he had the requisite subjective and objective grounds to arrest and search the Applicants. However, the significant incredulous aspects of his evidence and the unreliability of so many of his key observations call into question how he could have had such a belief based on anything more than a mere hunch or suspicion.

[199] The task is to situate the state conduct on a scale of culpability. In R. v. Paterson[^42] the Supreme Court reaffirmed that “good faith errors must be reasonable.” At para. 44, Brown J. states in part, as follows:

While “'[g]ood faith' on the part of the police will ... reduce the need for the court to disassociate itself from the police conduct” (Grant 2009, at para. 75), good faith errors must be reasonable (R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59). This Court has cautioned that negligence in meeting Charter standards cannot be equated to good faith (Grant 2009, at para. 75). Even where the Charter infringement is not deliberate or the product of systemic or institutional abuse, exclusion has been found to be warranted for clear violations of well-established rules governing state conduct (R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 24-25). [My emphasis.]

[200] As well, in R. v. Le, Brown and Martin JJ., writing for the majority, provide helpful insight into the real meaning and significance of “good faith” in this context as described at para. 147 of their reasons:

But an absence of bad faith does not equate to a positive finding of good faith and the officers were not acting in “good faith” simply because they were not engaged in racial profiling. Rather, for state misconduct to be excused as “good faith” (and, therefore minor) infringement of Charter rights, the state must show that the police “conducted themselves in a manner… consistent with what they subjectively, reasonably, and non-negligently believed to be the law” (R. v. Washington, 2007 BCCA 540, 248 B.C.A.C. 65, at para. 78). [My emphasis.]

[201] DC Steel said he believed, and the Crown argued that he had acted in good faith. The problem is that DC Steel knew better than to allow so many errors and deficiencies to arise. He knew he had continuous and full disclosure obligations but honoured those more in the breach than in the observance. Those deficiencies would not have been revealed were it not for diligent defence counsel. He knew he needed to make full, frank, and fair disclosure to the Justice of the Peace when seeking a warrant, but knowingly did the opposite. One can only infer that he must have felt that it was more important for him to have a warrant than to ensure that it was grounded in facts that he knew to be true but chose not to disclose. He certainly knew that the undisclosed information could have affected the Justice’s decision whether to issue the warrant. Further, he failed to do the further investigation he was admonished to do by the Justice if the ITO was to meet the appropriate standard, as a factual matter, rather than being founded on mere suspicion.

[202] Of equal if not greater importance, apart from those deficiencies in his conduct, DC Steel allowed himself to come to believe that he did have an honest and reasonable subjective belief that he had reasonable and probable grounds to arrest, when his own acknowledgements of the deficiencies and uncertainties of his observations necessarily undermined such a conclusion, and simply could not, in my judgment, meet the objective requirement.

[203] I find that the police conduct here cannot meet the standard that is required. Frankly, it sometimes becomes evident, as it did here, that the stories of officers can only diverge so fundamentally from each other and independent verifiable facts, because they are rushing to meet what they perceive their job to be, yet continuously failing to respect the legal parameters within which they must discharge their duties. This cannot be acceptable to the public. The end does not justify the means.

[204] Our justice system must not turn a blind eye to taking legal shortcuts out of a perceived need for expediency. It is not enough for police officers to allow themselves to believe the requisite grounds are present, just because of prior experience in similar situations. Absent objective evidence that the suspected offence has or is about to take place, there are no grounds to arrest because the absence of evidence leaves the belief as a mere suspicion, without the necessary investigative corroboration. Failure to insist upon procedural and evidential compliance with core legal values and requirements risks compromising the public’s faith in our system of justice, because if members of the public perceive that shortcuts can be permitted in this case, what is to reassure them that the same might not occur to them, if the tables were turned?

[205] I find that these are serious Charter breaches. The need to be able to establish a subjective belief in reasonable and probable grounds that is objectively reasonable, is a fundamental core value and a foundation of the Charter rights protecting citizens against arbitrary detention and unreasonable search and seizure. It is very serious, in my view, when lax adherence to the rules and Charter values is advanced as adequate to detain and arrest without more rigorous corroboration of allegedly illegal conduct, and the seriousness of that conduct is materially aggravated when it leads to a search incident to arrest that cannot be valid because the detention and arrest was not lawful.

[206] The inadequacies here belie the existence of “good faith” as anything more than a hollow platitude. The police may not have intentionally acted in bad faith by ignoring procedural compliance in this case, but as the Court admonished in Grant, negligence in meeting Charter standards cannot be equated to good faith: at para. 75. The gravamen of the unlawful detention and arrest and the consequential unlawful search incident to arrest puts these Charter violations past the midpoint and towards the more serious end of the continuum. The serious and disconcerting flavour of that conduct is only rendered more distasteful by DC Steel’s seeming absence of care for the accuracy of evidence, by the multiplicity of errors, and from his lax approach to his disclosure obligations that revealed itself throughout the days he testified. The seriousness of Charter infringing conduct is not to be looked at seriatim, but collectively.

[207] In this case, two individuals were arrested, charged, searched incident to arrest, and strip searched, without the requisite reasonable and probable grounds being present. DC Steel did little to investigate his hunch that the storefront at 3449 Dundas Street West was operating as an illegal marijuana dispensary. In fact, his attendance on September 3 and 18, 2018, and any further investigative steps he failed to take, would have revealed that there was no such dispensary operating illegally. That paired with the fact that he had no knowledge regarding the Applicants and did not conduct any further investigative steps regarding either of them or any persons who had purported interactions with them, underlines the overall negligence by DC Steel, who acted on nothing more than a mere suspicion. DC Steel then went on to make representations of what the Applicants submit are untenable observations.

[208] These actions cannot be considered to have been in good faith, and this factor weighs toward exclusion. Hunch or suspicion naturally based on the officer’s experience? Of course. But an honestly held reasonable subjective factually based belief, that could itself pass muster as objectively reasonable? No, and the officer’s own evidence makes the point. There was no justification for the arrest. I find that this conduct weighs heavily in favour of exclusion. It was no different in 2009 when Grant was decided than it is today. We ought not to be condoning lax adherence to Charter directives, now 40 years after the Charter’s enactment as a core part of the constitutional law of Canada.

[209] There are entirely too many examples over those decades of a seeming absence of care, not by all, but by too many police officers to operate within the law, or to accept that individuals’ constitutional rights, as embodied in the Charter, are not to be glossed over based on the continuing and seemingly pervasive warped perspective that getting the guns and drugs off the street, or whatever the alleged crime is, is more important than worrying about the inconvenience of Charter dictates, and discharging their duties within the law. Yes, too bad; sometimes there will be those pesky inconvenient delays necessary to obtain a warrant to ensure the legality of their conduct, rather than running the risk that precipitous conduct may be found to be illegal, and the further risk that admission of evidence so obtained, would bring the administration of justice into disrepute.

(ii) Impact on the applicant’s Charter protected interests

[210] The second step in the Grant analysis requires me to consider the impact of the breach on the Charter-protected interests of the Applicants, recognizing that admission of the evidence may send the message that their individual rights enumerated in the Charter count for little.

[211] Crown counsel noted that there was no evidence before me that either of the Applicants is the registered owner of the vehicle, so the Crown submitted that their expectation of privacy was necessarily diminished. Nevertheless, this does not diminish the fact that Mr. Morrison and Mr. Raguette were both searched, and their vehicle was thoroughly searched. Their rightful expectations of liberty and privacy were violated in a manner that was hardly trivial.

[212] The Applicants were arrested without reasonable and probable grounds. They were subjected to intrusive searches of their bodies, their vehicle, and their bags and satchels found within the vehicle. The impact on the Charter-protected interests of both Applicants was considerable.

[213] In R. v. Le, above, Brown and Martin JJ. directly address the question of the impact of a section 9 violation as follows at paras. 152-153:

152 What interests, then, of Mr. Le are protected by s. 9 of the Charter? This question was answered by this Court in Grant, at para. 20: "[t]he purpose of s. 9, broadly put, is to protect individual liberty from unjustified state interference" (emphasis added). Such interference extends not only to "unjustified state intrusions upon physical liberty, but also against incursions on mental liberty by prohibiting the coercive pressures of detention ... from being applied to people without adequate justification" (para. 20). Underlying this purpose is an uncontroversial principle that is inherent to a free society founded upon the rule of law: "government cannot interfere with individual liberty absent lawful authority to the contrary" (J. Stribopoulos, "The Forgotten Right: Section 9 of the Charter, Its Purpose and Meaning" (2008), 40 S.C.L.R. (2d) 211, at p. 231). Absent compelling state justification that bears the imprimatur of constitutionality by conforming to the principles of fundamental justice (Grant, at para. 19), Mr. Le, like any other member of Canadian society, is entitled to live his life free of police intrusion.

153 The stakes are, therefore, undeniably high when a court is presented with a breach of s. 9. The "interest" to which courts must be attuned is not merely in walking into a house, or down the street. These activities are but manifestations of the interest in one's liberty to make decisions, including decisions of fundamental importance, free from state interference (Grant, at para. 20). These freedoms are to be equally enjoyed by everyone.

[214] With respect to the claimed breach of s. 8, and in particular, the search of the vehicle, defence counsel appropriately concede, in my view, that the Applicants had a reduced expectation of privacy in the vehicle. Be that as it may, the existence of a reduced expectation does not amount to the absence of any expectation of privacy at all. As the court observed in R. v. Harflett[^43]:

47 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.

48 Iacobucci J. noted in 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”.

[215] These principles demonstrate, to my mind, that it is inappropriate to discount the weight or significance of the Appellants’ privacy interests in a case like this, particularly when it was unknown whether the vehicle belonged to either of them. Beyond that obvious point, the fact remains that both Applicants had a substantial expectation of privacy in their individual bodily integrity. The strip search at the station, which was a direct result of the search of the vehicle, was obviously more than merely trifling – it substantially impacted the Applicants’ privacy interests. As such, I find that the second inquiry required under Grant also strongly supports the exclusion of the evidence seized by police.

[216] As both the first and second inquiries favour exclusion, the evidence obtained as a result of the breaches of the Applicants’ Charter rights should arguably be excluded, as discussed further below. This is not the rare case where the third inquiry will tip the balance in favour of admissibility.[^44]

(iii) Society’s Interest in Adjudication on the Merits

[217] Finally, under the third step in Grant, it is necessary to assess and consider society’s interest in the adjudication of the case on its merits. In this case, as in most, this question will favour the admissibility of the evidence, because our society and communities have a strong interest in ensuring that offenders are brought to trial and dealt with according to law. Moreover, I acknowledge that the exclusion of this evidence in the circumstances of this case will have the effect of bringing the Crown’s case to an end even though that evidence is reliable and is relevant to the truth-finding function of the courts.

[218] The charges are serious. However, as the Supreme Court cautions, at para. 84 in Grant, this is not a factor that favours inclusion:

In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)’s focus. As pointed out in Burlingham, the goals furthered by s. 24(2) “operate independently of the type of crime for which the individual stands accused” (para. 51). And as Lamer J. observed in Collins, “[t]he Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to that majority” (p. 282). The short- term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.

[219] Similarly, in R. v. Harrison[^45] the Supreme Court of Canada highlights the problem with putting too much emphasis on the third factor:

[A]llowing the seriousness of the offence and the reliability of the evidence to overwhelm the s. 24(2) analysis “would deprive those charged with serious crimes of the protection of the individual freedoms afforded to all Canadians under the Charter and, in effect, declare that in the administration of the criminal law ‘the ends justify the means’”.

(iv) Balancing of Assessments

[220] As mentioned in Le, at para. 142, “where the first and second inquiries, taken together make a strong case for exclusion, the third inquiry will seldom if ever tip the balance in favour of admissibility”. This principle was recently affirmed by our Court of Appeal in R. v. Tutu, at para. 36:

36 Turning to the third Grant inquiry — society's interest in the adjudication of the case on the merits — there is no doubt that society has a significant interest in the prosecution of firearm and drug offences on their merits. 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.

[221] In this case, like in that case, the first two factors make a strong case for exclusion. There is a public interest in ensuring that constitutional standards are met when police interact with individuals. When long-established constitutional rights are breached the courts should not be seen to condone it.

[222] In determining whether the admission of evidence obtained in breach of Charter rights would bring the administration of justice into disrepute, Grant calls for a balancing of the results of separate questions, each rooted in the public interests engaged by s. 24(2), looked at from a long-term, forward-looking and societal perspective. At the end of the analysis, each of the lines of inquiry must be balanced, but that exercise must be qualitative and not merely mathematical. In undertaking that assessment, I am specifically required to consider the long-term effect of the admissibility or exclusion decision on the reputation of our justice system.[^46]

[223] In paras. 68-70, the court in Grant helps us to understand what may and what may not have a long-term effect on the reputation of our justice system:

68 The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

69 Section 24(2)’s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.

70 Finally, s. 24(2)’s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.[^47] [Emphasis added.]

[224] In a drug case like this, although possession of marijuana has now been legalized in specified quantities, at that time it was not, and police were properly discharging their duties by investigating illegal dispensaries and the like. Trafficking remains a criminal offence. The third factor in this case may not cause a societal concern of the magnitude that exists where very dangerous drugs are involved, drugs like cocaine, crack, oxycontin and fentanyl that potentially risk serious damage and even death to users. However, the aspect of this case that does present a very serious societal concern, is the presence of a firearm in the vehicle of these Applicants, thus joining together the toxic mix of drug dealing and the use of firearms. In this case, the third factor pulls strongly in favour of inclusion and admissibility of the impugned evidence.

[225] Accordingly, and not surprisingly, Crown counsel says failure to admit this evidence, even though I have ruled that it was obtained in violation of the Applicant’s Charter rights, would bring the administration of justice into disrepute.[^48]

[226] I find, however, that it is the opposite conclusion that must prevail here. In doing so I am guided by the analysis in R. v. McGuffie[^49], where Doherty J.A. explains the significance, interaction and relative weight of each of the three Grant factors in determining where the balance point lies in determining admissibility: at paras. 61-64.

[227] Despite society’s strong interest in favour of an adjudication on the merits of this case, given the critical reliability and strength of the evidence, and that the Crown’s case cannot be proven in its absence, I find that it is the contrary case for exclusion that must carry the day. In practical terms, as Doherty J.A acknowledges, in circumstances like these, where both of the first two Grant inquiries push strongly toward the exclusion of the evidence, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. The third inquiry becomes important only when one, but not both, of the first two inquiries push strongly toward the exclusion of the evidence.

[228] That is the result in this case. The seriousness of the Charter infringing state conduct in this case combined with the intrusion on the defendants’ Charter protected privacy interests calls for the evidence seized from the Applicants to be excluded. This follows where, as here, the first and second Grant inquiries make a strong case for exclusion.

[229] To avoid bringing the administration of justice into disrepute, the far stronger case calls for the exclusion of the impugned evidence.

Disposition

[230] I have found that the appropriate remedy in this case is the exclusion of the evidence seized by police, on the basis that its admission in this case would bring the administration of justice into disrepute. That is the remedy that will be granted. The defence applications succeed and, as a result, the evidence seized from Messrs. Morrison and Raguette in breach of their Charter rights must be excluded. The absence of the drugs, firearm and money seized from the Applicants necessarily removes any basis for the prosecution to proceed. It requires that they be acquitted of the charges they face in this case.

Michael G. Quigley J.

Released: January 17, 2022

COURT FILE NO.: CR-19-10000431

DATE: 20220117

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Crown/Respondent

-- and –

KIERAN MORRISON

--and –

JOLANI RAGUETTE

Defendants/Applicants

REASONS FOR DECISION

Michael G. Quigley J.

Released: January 17, 2022

[^1]: Controlled Drugs and Substances Act, S.C. 1996, c. 19. [^2]: Criminal Code of Canada, R.S.C. 1985, c. C-46. [^3]: The specific charges are as follows: Possession of marijuana; Possession for the purpose of trafficking; Possession of a restricted firearm and ammunition; Unauthorized possession of that firearm; Possession of that firearm knowing possession was unauthorized; Carrying it in a careless manner; Unauthorized possession of that firearm while in a motor vehicle; Possession of proceeds of crime under $5,000; Failure to comply with an undertaking (Morrison); and 2 counts of Failure to comply with his recognizance (Raguette). [^4]: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. [^5]: 2009 SCC 32, [2009] 2 S.C.R. 353, (“Grant”). [^6]: 2021 ONCA 805. [^7]: I have attached three of the Exhibits as a Schedule to these reasons as a visual aid in understanding the topography of sightlines and distances involved between the several location points at 3449 Dundas Street West. [^8]: R. v. Storrey, [1990] 1 S.C.R. 241, at p. 250. [^9]: Ibid., at p. 251. [^10]: R. v. Feeney, [1997] 2 S.C.R. 13, at paras. 34-35. [^11]: R. v. Bernshaw, [1995] 1 S.C.R. 254, at para. 51; R. v. Jacobson (2006), 207 C.C.C. (3d) 270, at para. 22 (Ont. C.A.); R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at paras. 62-63, 83; R. v. Latimer, [1997] 1 S.C.R. 217, at para. 26; R. v. Loewen, 2010 ABCA 255, 490 A.R. 72, at para. 18, aff’d 2011 SCC 21, [2011] 2 S.C.R. 167. [^12]: R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1166. [^13]: 2008 SCC 18, [2008] 1 S.C.R. 456. [^14]: Referencing P. Sankoff and S. Perrault, "Suspicious Searches: What's so Reasonable About Them?(1999) 24 C.R. (5th) 123, at pp. 125-126. See also R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 72. [^15]: Debot, at pp. 1166-68. Although Debot refers specifically to searches of suspects, the same standards apply to arrest. [^16]: See R. v. Gerson-Foster, 2019 ONCA 405, at paras. 90-96. [^17]: 2021 ONCJ 90 (“Grant (2021)”). [^18]: See Preliminary Hearing Transcript June 26, 2019, at p.24. [^19]: See Preliminary Hearing Transcript June 26, 2019, p.48-49. [^20]: 2011 ONCA 368, 85 C.R. (6th) 265, at para. 19. [^21]: [1994] O.J. No. 2086 (C.A.) [^22]: Ibid., at paras. 24 and 29. [^23]: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 47. [^24]: See Schedule to these reasons, at Exhibit 12. [^25]: [1991] 3 S.C.R. 326. [^26]: R. v. Loewen, 2011 SCC 21, [2011] 2 S.C.R. 167, at para. 3. [^27]: R. v. Stevenson, 2014 ONCA 842, 317 C.C.C. (3d) 385, at paras. 54 and 57. [^28]: R. v. Brown, 76 N.S.R. (2d) 64 (N.S.C.A.). [^29]: 2014 ONSC 2493. [^30]: R v. Amofa, above. [^31]: R. v. Hanson, [2009] O.J. No. 4152 (S.C.), at para. 58. [^32]: R. v. Collins, [1987] 1 S.C.R. 265, at p. 278. [^33]: Ibid. [^34]: Cloutier v. Langlois, [1990] 1 S.C.R. 158, at p. 182. [^35]: R. v. Caslake, [1998] 1 S.C.R. 51, at paras. 18-19. [^36]: R. v. St. Clair, 2018 ONSC 5173, 51 C.R. (7th) 4, at para. 72. [^37]: S.O. 2017, c. 26, Sched.1. [^38]: 2021 ONCJ 90, at paras. 100-112. [^39]: [1984] 2 S.C.R. 145. [^40]: See R. v. Kang-Brown, above. [^41]: 2019 SCC 34, [2019] 2 S.C.R. 692. [^42]: 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 44. [^43]: 2016 ONCA 248, 336 C.C.C. (3d) 102, at paras. 47-48. [^44]: R. v. Paterson, above at para. 56; R. v. Le, above, at para. 142. [^45]: 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 40. [^46]: Grant, at para. 68. [^47]: Ibid., at paras. 68-70. [^48]: Harrison, at paras. 33-34. [^49]: 2016 ONCA 365, 131 O.R. (3d) 643.

R. v. Morrison and Raguette, 2022 ONSC 17

Case Summary

KIERAN MORRISON

Introduction

Evidence on the voir dire

The issue and applicable principles

Analysis

(i) Assessment of the evidence of DC Steel and the other officers

1. The Problems with Notes and Disclosure

2. The evidence relating to the ITOs

3. The location of the white tent

4. DC Steel’s claimed observations

5. DC Steel’s identification of the wrong person

6. External inconsistencies of DC Steel’s evidence.

(ii) The subjective test

(iii) The objective test

(iv) Was the search and seizure incident to arrest unlawful?

Should the evidence be excluded under s. 24(2) of the Charter?

(i) Seriousness of Charter-infringing state conduct

(ii) Impact on the applicant’s Charter protected interests

(iii) Society’s Interest in Adjudication on the Merits

(iv) Balancing of Assessments

Disposition

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legal Tests 2

Legislation 4