Court File and Parties

Court File No.: CR-18-9108 Date: 2022-03-28 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Andre Marco Tully, Defendant/Applicant

Counsel: T. Hamilton, for the Crown N. Gorham, for the Defendant/Applicant

Heard: August 10 and November 26, 2021; January 4, 27 and February 18, 2022

Ruling Re: Charter Sections 8, 9, 10 and 24(2)

Charney J.:

[1] The Applicant, Andre Tully was arrested on November 3, 2018 in the City of Vaughan and charged with:

a. Using a weapon, namely a motor vehicle, contrary to s. 267(a) of the Criminal Code;

b. Operating a motor vehicle while being pursued by the police in order to evade the police contrary to s. 249.1 of the Criminal Code[^1];

c. Operating a motor vehicle in a manner that was dangerous to the public contrary to s. 249(2) of the Criminal Code;

d. Possession of a loaded prohibited firearm contrary to s. 95 of the Criminal Code;

e. Possession of a prohibited firearm contrary to s. 92 of the Criminal Code;

f. Possession of a firearm while prohibited from doing so by reason of an order made pursuant to s. 109 of the Criminal Code contrary to s. 117.01 of the Criminal Code; and

g. Possession of a substance, namely Diacetylmorphine (Heroin), for the purposes of trafficking, contrary to s. 5 of the Controlled Drugs and Substances Act.

[2] The Applicant alleges that the police violated his rights under sections 8, 9 and 10(b) of the Charter, and applies for an order under s. 24(2) excluding evidence – a firearm, ammunition and drugs – seized by the police on November 3, 2018. He also seeks an Order declaring s. 12 of the Cannabis Control Act, 2017, S.O. 2017, c.26, sch.1. to be invalid and of no force or effect.

[3] This application raises four issues:

a. Was the initial detention of the Applicant an unlawful pretext stop contrary to s. 9 of the Charter?

b. Was the proposed search under s. 12 of the Cannabis Control Act, 2017, S.O. 2107, c. 26, Sched. 1 (Cannabis Control Act) a violation of Charter s. 8?

c. Did the police violate the Applicant’s Charter s. 10(b) right to counsel?

d. If the answer to any of these questions is yes, should the evidence seized be excluded under Charter s. 24(2)?

Facts

[4] Only Detective Ford testified at the voir dire. Detective Cooke was unable to attend for medical reasons, and his evidence at the preliminary inquiry was admitted on consent under s. 715 of the Criminal Code.

[5] On November 3, 2018, Detectives Cooke and Ford and other members of the York Regional Police stationed themselves in the area of Luxy’s Nightclub in the City of Vaughan. A rap artist scheduled to perform at the club that evening had been associated with recent shootings. As a result, police officers were assigned to the area. The police had several concerns, most notably drugs, gangs, gun violence, and impaired driving. All of these activities had been associated with this venue. The police set up a visible presence in the area, including R.I.D.E. stops by members of the Traffic Bureau to confirm sobriety under the Highway Traffic Act. Approximately 25 police officers were involved.

[6] Detectives Cooke and Ford were members of the Organized Crime Unit of the Intelligence Bureau. They arrived at the area between 9:15 p.m. and 9:30 p.m. They were in uniform and driving a marked police cruiser. They were responsible for supervising the other officers, including those officers at the R.I.D.E. traffic stops. Throughout the evening they “slid by” the R.I.D.E. stops, although they did not pull over any other vehicles for sobriety checks.

[7] At approximately 12:48 a.m. Detectives Cooke and Ford observed the applicant driving westbound on Interchange Way, while they were driving eastbound. Detective Cooke was driving the police car. The applicant’s car made a “sharp left turn” into a parking lot. Detective Cooke described it as follows:

I noticed a vehicle coming eastbound[^2] that passed us as we turned around, it pulled into the parking lot rather abruptly, pulled (sic) out its lights and parked in a spot. We turned around, pulled up by the vehicle, activated our roof lights and conducted a traffic stop on that vehicle.

As it passed us it quickly made a sharp left-hand turn in there and as it was turning, it was pulling in and turning out its lights, and that’s what drew us to that vehicle that parked in the parking spot.

[8] Detective Cooke explained that the parking lot that the vehicle turned into was near an Ikea store, and handles the overflow parking when Luxy’s parking lot is full.

[9] Immediately after making their U-turn, Detective Ford, who had access to the mobile terminal, ran the plate. The plate indicated that the car was a rental vehicle. Detective Ford communicated this information to Detective Cooke.

[10] Detective Cooke pulled up behind the vehicle. There is no dispute that the Applicant was detained at this point. Both detectives got out of their car. Detective Cooke went to the driver’s side window to perform a sobriety check. Detective Ford went to the passenger side window to speak with the passenger and watch out for Detective Cooke’s safety.

[11] Detective Cooke knocked on the driver’s window several times. Detective Cooke identified himself as a police officer and asked the driver to shut off the car and roll down his window. After several times knocking the driver rolled down his window, and Detective Cooke informed the driver that they were stopping him because he had pulled into the parking lot quickly and that they were doing sobriety checks of people showing up in the area.

[12] The Applicant replied that he had parked to attend the concert and just wanted to get out of his car and go to the concert. Detective Cooke asked the Applicant if he had been drinking or consuming drugs, and asked for his licence, ownership and insurance. The Applicant told him that it was a rental vehicle. The Applicant did provide Detective Cook with his driver’s licence.

[13] At the same time Detective Ford was speaking to the passenger in the car. The passenger had rolled down her window and Detective Ford could immediately smell burnt cannabis. The passenger told Detective Ford that she had just smoked a joint. Detective Ford told the passenger that smoking a joint in the car was a violation of the “Cannabis Act” and he was going to search the car and the occupants under the “Cannabis Act”. Detective Ford asked the passenger to get out of the car.

[14] While this conversation between Detective Ford and the passenger was taking place, Detective Cooke told the Applicant to remain in the car, and that he was going to be searched under the Cannabis Act. He noticed that the Applicant was “very fidgety” and leaning forward. Detective Cooke could not see the Applicant’s hands, and felt that the Applicant was getting louder and agitated. Detective Cooke noticed a bag between the Applicant’s feet and saw the Applicant moving his feet in an effort to move the bag under the seat. Detective Cooke told the Applicant not to touch the bag. As the bag was moved it opened and Detective Cooke could see what he believed was the handle of a handgun. Detective Cooke yelled “Gun” and “Do not touch the bag”. At that point the Applicant moved his hand to the gear shift and put the car in gear.

[15] Both Detectives Cooke and Ford had thought that the car’s engine was off. The passenger had begun to open her car door to comply with Detective Ford’s direction, but before she could get out, the car “fired up and he started taking off”. This was at approximately 12:52 a.m.

[16] Given that the police first observed the Applicant driving at approximately 12:48 a.m., I conclude that there were approximately 3 minutes (give or take 30 seconds) between when the police pulled up behind the Applicant’s car and the Applicant fled.

[17] Detective Cooke was between the Applicant’s car and another car in the parking lot. In order to get away the Applicant’s car went forward and to the left. As the Applicant’s car turned, Detective Cooke was knocked over by the Applicant’s car. Fortunately, Detective Cooke sustained only minor injuries – a cut hand and a bruise on his hip.

[18] Detective Ford called for back up, and a police chase ensued. After less than two minutes the Applicant’s car stopped, and he was arrested.

[19] The police conducted a search of the surrounding area and found a loaded handgun in the area near where the Applicant’s car had travelled. Heroin and ammunition were also located inside the vehicle. A DNA swab was taken from the grip of the gun. The police obtained a DNA warrant, got a sample of the Applicant’s DNA, and sent the two samples in for testing. The DNA testing confirmed that the DNA from the gun originated with the Applicant (one trillion times more likely if the profile originates from the Applicant than from an unknown person unrelated to the Applicant).

[20] At the time of this incident, the Applicant was bound by 3 lifetime s. 109 orders which banned the Applicant form possessing prohibited weapons for life.

Analysis

a) Was the initial detention of the Applicant an unlawful pretext stop contrary to s. 9 of the Charter?

[21] Both Detectives Cooke and Ford testified that the Applicant was stopped as part of a random sobriety check under the Highway Traffic Act, R.S.O. 1990, c. H.8 (HTA). The purpose of the stop was to confirm his ability to drive, not to conduct a criminal investigation.

[22] The Applicant argues that the “sobriety check” was only a pretext, and that the police lacked reasonable and probable grounds to detain him and ask him questions. While the HTA authorizes the police to randomly stop vehicles for the purposes of a sobriety test, it does not permit them to use the sobriety test as a pretext for a criminal investigation.

[23] Section 216(1) of the HTA states:

A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a motor vehicle to stop and the driver of a motor vehicle, when signalled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.

[24] The Crown argues that the sobriety check was consistent with the statutory authority granted by s. 216(1) of the HTA, which authorizes the police to stop a vehicle even in the absence of reasonable suspicion or reasonable grounds to believe that an offence is being committed. The constitutional validity of what is now s. 216(1) of the HTA was upheld by the Supreme Court of Canada in R. v. Ladouceur, 1990 CanLII 108 (SCC), [1990] 1 S.C.R. 1257, which held that routine random vehicle checks were justified under Charter s.1.

[25] In Brown v. Durham Regional Police Force (1998), 1998 CanLII 7198 (ON CA), 43 O.R. (3d) 223 (C.A.) the Court of Appeal recognized that s. 216(1) of the HTA “authorizes the stopping of vehicles for what may be broadly described as highway regulation and safety purposes” but that the “detention authorized by s. 216(1) of the H.T.A. is circumscribed by its purpose.” If the highway safety concerns are merely a “ruse” or “pretext” used by the police to stop a vehicle then s. 216(1) does not provide lawful authority to stop the vehicle or detain the occupants, and the s. 9 Charter violation cannot be justified under Charter s.1. See also: R. v. Simpson (1993) 1993 CanLII 3379 (ON CA), 12 O.R. (3d) 182 (C.A.) and R. v. Humphry, 2011 ONSC 3024 at para. 79:

[79] Section 216(1) of the Highway Traffic Act authorizes a police officer to stop a vehicle, even in the absence of any reasonable grounds to believe that an offence is being committed against the Act. Arbitrary stops pursuant to this statutory provision have been held to violate s. 9 of the Charter, but are nevertheless saved by s. 1 of the Charter, provided the officer’s true purposes for the arbitrary stop relate to enforcement of the Highway Traffic Act. In this regard, fixed road blocks can be used to stop entirely innocent drivers and random roving stops, without any articulable grounds, have also been held to be justified under s. 1 of the Charter, provided the police act on the basis of “reasons related to driving a car such as checking the driver’s license and insurance, the sobriety of the driver and the mechanical fitness of the vehicle”. In other words, the s. 1 justification for arbitrary H.T.A. stops depends on the officer’s subjective motivation, and not on the existence of objective grounds. [citations omitted]

[26] In Brown the Court of Appeal recognized that the police may have multiple purposes for stopping the vehicle, and that this will not invalidate the stop “as long as the other purposes motivating the stops are not themselves improper”.

[27] “The existence of a concurrent criminal law search purpose does not, in itself, preclude the existence of a valid regulatory search purpose”: R. v. Sandhu, 2011 ONCA 124, at para. 51.

[28] In Sandhu the Ontario Court of Appeal stated, at para. 62:

Accordingly, the issue for the trial judge was not simply whether Officer Leeman had a criminal law purpose -- even a predominant criminal law purpose -- as events progressed. Rather, the issues were whether Officer Leeman actually formed a legitimate intention initially to search the tractor-trailer for regulatory purposes (whether he possessed a concurrent criminal law purpose or not), and if he did, whether that legitimate intention was still subsisting when Officer Leeman opened the trailer doors.[emphasis added].

[29] See also Humphry at para. 91:

There is now a strong line of binding authority holding that the kind of dual purposes for a motor vehicle stop, described by P.C. Stuart, do not violate s. 9 of the Charter. Where the police proceed to stop a vehicle for proper regulatory purposes under the Highway Traffic Act, the fact that they also have criminal investigative interests which, standing alone, would not justify the stop, does not give rise to an arbitrary detention…

[30] At the time the police officers decided to conduct the sobriety check, Detective Ford acknowledged that there was no basis to believe that the driver was impaired. There were no indicia of impaired driving. The information that they had collected at that point was that the vehicle was a rental vehicle, and that it made a “sharp” or abrupt left turn into a parking lot and turned out its lights and parked. The car was not speeding. Detective Ford agreed that there were many other vehicles in the parking lot and the lot was being used as overflow parking for the nightclub.

[31] Detective Ford acknowledged that when the licence plate check revealed that the car was a rental vehicle, “the thought did cross my mind” that rental vehicles are often used by drug dealers to avoid detection. He acknowledged that this was not reasonable and probable grounds to stop the vehicle for a criminal investigation.

[32] Detective Ford also acknowledged that when he saw the Applicant’s car make the sharp left turn into the parking lot, he thought that the Applicant might be trying to avoid the police, although he acknowledged that he had “no reason for that conclusion, nothing to substantiate that”.

[33] In the present case, Detectives Moore and Ford were not engaged in the kind of organized program of roadside spot checks dealt with in R. v. Hufsky, 1988 CanLII 72 (SCC), [1988] 1 SCR 621. There was a R.I.D.E. program of random stops as part of the police activity that evening, but the R.I.D.E. stops were being made by other police officers. Detectives Moore and Ford were supervising that program by “sliding by” the stops, but Detectives Moore and Ford did not themselves stop any other vehicles during the more than three hours that they were patrolling in the vicinity of the nightclub.

[34] As I understand the case law relating to s. 216 of the HTA, police may stop a motor vehicle in three circumstances:

i. As part of an organized random spot-check program like the R.I.D.E. campaign, a program in which police establish checkpoints at the side of the road and pull over motorists at random to check their sobriety: R. v. Hufsky, 1988 CanLII 72 (SCC), [1988] 1 SCR 621.

ii. A “random routine” check not part of any organized program. In Ladouceur the Supreme Court described this, at p. 1283, as “the incidental random spot check, not part of an organized program like R.I.D.E. and not a stop based on some articulable cause”.

iii. If they have a reasonable suspicion that the driver is violating some law relating to highway regulation or safety, even if there is a “dual purpose”. Indeed, the police may stop the vehicle for a dual purpose even if the criminal investigative purpose is predominant: R. v. Nolet, 2010 SCC 24, at para. 43.

[35] See also R. v. McColman, 2021 ONCA 382, at para. 67.

[36] The “dual purpose” analysis also applies to random police spot checks. In Nolet, the appellant was initially pulled over in a random police spot check. The “officer made no secret at trial of his interest in finding contraband” (para. 33). In Nolet, the Supreme Court found, at para. 43, that “the officer’s concurrent interest in contraband (even if it was predominant)” did not render the HTA search unlawful or unreasonable under Charter s. 1. The Court stated, at para. 37:

It is to be expected that RCMP officers patrolling the Trans-Canada Highway are interested in any number of potential infractions including criminal offences as well as provincial matters. It could hardly be otherwise. However, as pointed out by Martin J.A., “[t]he lawful search was not converted into an unlawful or an unreasonable search because the officers, in addition, had the expectation that the search might also uncover drugs”: R. v. Annett (1984), 1985 CanLII 3654 (SCC), 17 C.C.C. (3d) 332 (Ont. C.A.), at p. 335, leave to appeal refused, [1985] 1 S.C.R. v.

[37] In the present case, the sobriety check did not fall into either the first or third category of vehicle stops described above. The question is whether this stop fell into the second category listed above: a “random routine” check, not part of any organized program. In Ladouceur, the Supreme Court held that these kinds of stops were also justified under Charter s. 1, at p. 1276:

It might be sought to distinguish the Hufsky decision on the ground that it applied to an organized program of roadside spot checks, whereas this case concerns the constitutionality of completely random stops conducted by police as part of a routine check which was not part of any organized program. It might well be that since these stops lack any organized structure, they should be treated as constitutionally more suspect than stops conducted under an organized program. Nonetheless, so long as the police officer making the stop is acting lawfully within the scope of a statute, the random stops can, in my view, be justifiably conducted in accordance with the Charter.

[38] The Supreme Court expressly rejected the conclusion of the Ontario Court of Appeal that only random stops conducted as part of an organized program of stopping, like the R.I.D.E. program, or road-blocks where all vehicles are required to halt, could be justified under Charter s. 1.

[39] When Detective Cooke got out of his car, he approached the Applicant and advised him that this was a sobriety stop. He asked for his driver’s licence and insurance, as permitted by the Supreme Court’s decision in Hufsky, at p. 638:

In my opinion the demand by the police officer, pursuant to the above legislative provisions, that the appellant surrender his driver's licence and insurance card for inspection did not constitute a search within the meaning of s. 8 because it did not constitute an intrusion on a reasonable expectation of privacy. Cf. Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145. There is no such intrusion where a person is required to produce a licence or permit or other documentary evidence of a status or compliance with some legal requirement that is a lawful condition of the exercise of a right or privilege.

[40] In addition to requiring production of various documents associated with the operation of a motor vehicle, a police officer, acting under the authority of s. 216(1) of the HTA, may also make a visual examination of the interior of the vehicle to ensure their own safety during the detention: Brown at para. 24; Ladouceur, at pp. 1286-87.

[41] Similarly, during an HTA stop, the police have the right to attend at the passenger side of the car and speak to the passengers. This does not turn the stop into a criminal investigation. See R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] 3 SCR 341, at para. 28:

Once the car had been pulled over and the driver said she did not have any ownership information, the officer had every right to look for documents pertaining to the ownership or registration of the vehicle. Similarly, he had the right to open the back door and look into the rear of the vehicle for safety reasons and to speak with the passenger in the back seat. See R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 S.C.R. 615, at p. 623.

[42] Thus, once Detectives Cooke and Ford stopped the Applicant’s car, they conducted themselves in accordance with the authorized limits of a legally permissible sobriety spot check.

[43] There are, however, limits on the kind of “incidental random spot check, not part of an organized program like R.I.D.E.” permitted by Ladouceur. In R. v. Mayor, 2019 ONCA 578, the Court of Appeal stated, at para. 7:

However, the existence of these powers does not automatically make motor vehicle stops lawful because the police are not free to use these powers for some other purpose, including to further a criminal investigation. The Legislature granted the police these powers for the purpose of ensuring road safety: Brown v. Durham Regional Police Force (1998), 1998 CanLII 7198 (ON CA), 43 O.R. (3d) 223 (C.A.), at pp. 242-243. The court must ensure that the police use these powers in a manner consistent with this purpose. As a result, if the police do not have road safety purposes subjectively in mind, they cannot rely on the Highway Traffic Act powers to authorize the stop…

[44] Even in Ladouceur, the Court recognized: “It might well be that since these stops lack any organized structure, they should be treated as constitutionally more suspect than stops conducted under an organized program”. Ladouceur was decided before the Court’s more contemporary recognition of and concern with racial profiling, which may add an additional component to the suspect nature of this category of stops.

[45] For example, in R. v. Gonzales, 2017 ONCA 543, the Court of Appeal concluded, at para. 68, that the police were in the area where the stop occurred for a single purpose having nothing to do with highway regulation or vehicular safety. The police officer in that case was on patrol for the sole purpose of investigating daytime residential break-ins. He stopped the appellant’s van to pursue the investigation for the break-ins. The Court concluded that the police could not rely on s. 216 of the HTA as authority for the stop.

[46] Our case is more difficult than Gonzales. Detectives Cooke and Ford testified that one of the purposes for the police presence in the area was a concern about impaired driving due to alcohol and drug use at the nightclub. They acknowledge that it was not their only purpose, but were adamant that it was one of their concerns. Looking at the police activities as a whole, I do not doubt this for a moment.

[47] The issue in this case, however, is not simply whether a concern for impaired drivers was one of the reasons that Detectives Cooke and Ford were on patrol that night. Nor is the issue simply whether Detective Cooke and Ford had a criminal law purpose - even a predominant criminal law purpose - as events progressed.

[48] Rather, the issue, to paraphrase the Court of Appeal in Sandhu, is whether Detectives Cook and Ford actually formed a legitimate intention initially to stop the Applicant’s car for a regulatory purpose (whether they possessed a concurrent criminal law purpose or not). In making this assessment, the court must consider “not only the officers’ explanations for the stop, but also all of the surrounding circumstances”: Mayor at para. 15.

[49] Based on Detectives Cooke and Ford’s evidence, I conclude that they did not have a regulatory purpose when they initially decided to stop the Applicant’s car. As indicated, in the three hours that Detectives Cooke and Ford were on patrol that evening, they did not stop a single other car for a sobriety check. Nor was the Applicant’s car stopped at random.

[50] Based on Detectives Cooke’s and Ford’s evidence, I find that the decision to stop the Applicant’s car, the reason why it was chosen among all the possible cars that night, was the detectives’ hunch (my word, not theirs) that a rental car might be involved in drug dealing. The “sobriety check” was a pretext to stop the car to support that criminal investigation.

[51] I do not have to make any adverse credibility findings against the detectives to come to this conclusion. Detective Ford appeared to be entirely honest in describing his thought process prior to the stop. He acknowledged that there were no indicia of impairment, and that the Applicant had not violated any provision of the HTA, and he acknowledged that none of his concerns gave rise to a reasonable suspicion that the Applicant was involved in criminal activity. It was clear from his evidence that his concern was primarily based on the fact that the car was a rental car, which in his experience is often used by drug dealers to avoid detection, and that the decision to stop the car was made when that information came to light.

[52] Detectives Cooke and Ford believed – incorrectly - that this authorized them to conduct a sobriety check, and they were careful to restrict their initial stop and interaction with the Applicant to the parameters of a valid sobriety check.

[53] No doubt Detectives Cooke and Ford and the other police officers involved in this operation had multiple safety concerns when they went on patrol in the area of Luxy’s Nightclub that evening, including gangs, gun violence, drugs and impaired driving. Even accepting that, I find that they did not have a legitimate regulatory purpose when they made the decision to stop the Applicant’s car at 12:48 a.m.

Conclusion

[54] Accordingly, I conclude that the initial detention was not within the police authority to conduct a random stop under s. 216 of the HTA and violated the Applicant’s right under s. 9 of the Charter.

Racial Profiling

[55] The Applicant also alleges that the sobriety check engaged many indicia of racial profiling. While I have already concluded that the initial stop infringed the Applicant’s rights under s. 9 of the Charter, I must also consider this argument because it may be relevant to the Charter s. 24(1) analysis, R. v. Le, 2019 SCC 34, at para. 78:

Racial profiling is also relevant under s. 24(2) when assessing whether the police conduct was so serious and lacking in good faith that admitting the evidence at hand under s. 24(2) would bring the administration of justice into disrepute.

[56] While Detective Cooke was unable to see who was driving the car before the stop, Detective Ford acknowledged that he saw that it was a black man driving the car.

[57] The Applicant argues that the police in this case offered no sensible explanation for why they chose to stop only the Applicant for a sobriety check as opposed to the countless other people that they must have passed that night. The Applicant argues that the police interpreted entirely insignificant facts – a “sharp” left turn, parking in a parking lot, driving a rental car – as somehow noteworthy. Attributing significance to the insignificant is one potential indication that unconscious bias is at play.

[58] The Supreme Court of Canada defined racial profiling in R. v. Le, 2019 SCC 34, at paras. 76 and 78:

[T]he concept of racial profiling is primarily concerned with the motivation of the police. It occurs when race or racial stereotypes about offending or dangerousness are used, consciously or unconsciously, to any degree in suspect selection or subject treatment…

Thus, racial profiling is anchored to an internal mental process that is held by a person in authority — in this case, the police. This means that racial profiling is primarily relevant under s. 9 when addressing whether the detention was arbitrary because a detention based on racial profiling is one that is, by definition, not based on reasonable suspicion.

[59] In R. v. Dudhi, 2019 ONCA 665, the Ontario Court of Appeal stated, at para. 55:

The attitudinal component is the acceptance by a person in authority, such as a police officer, that race or racial stereotypes are relevant in identifying the propensity to offend or to be dangerous: Peart v. Peel Regional Police Services Board (2006), 2006 CanLII 37566 (ON CA), 43 C.R. (6th) 175 (Ont. C.A.), at para. 90, leave to appeal dismissed, [2007] S.C.C.A. No. 10. The causation component requires that this race-based thinking must consciously or unconsciously play a causal role. Meaning, race or the racial stereotype must motivate or influence, to any degree, decisions by persons in authority regarding suspect selection or subject treatment.

[60] The Court continued at para. 63:

Where race or racial stereotypes are used to any degree in suspect selection or subject treatment, there will be no reasonable suspicion or reasonable grounds. The decision will amount to racial profiling.

[61] And at para. 66:

In sum, there are two components to racial profiling. The first is the attitudinal component, which is the acceptance by a person in authority that race or racial stereotypes are relevant in identifying the propensity to offend or to be dangerous. The second is the causation component, which requires that this race-based thinking consciously or unconsciously motivate or influence, to any degree, decisions by persons in authority in suspect selection or subject treatment.

[62] The test for racial profiling was recently considered by the Court of Appeal in R. v. Sitladeen, 2021 ONCA 303. In that case the Court reaffirmed, at para. 43, that the test for racial profiling does not require the trial judge to find that a police officer lied about their motivation for a stop or arrest. Since the attitude that underlies racial profiling may be consciously or unconsciously held, “a police officer need not be an overt racist to engage in conduct based on unconscious racial stereotyping”. The Court repeated its earlier statement from R. v. Brown (2003), 2003 CanLII 52142 (ON CA), 64 O.R. (3d) 161, that:

A racial profiling claim is rarely going to be proved by direct evidence. That would require an admission by the officer that racial stereotypes influenced the decision to stop the accused. Accordingly, if racial profiling is to be proven, it “must be done by inference drawn from circumstantial evidence”.

[63] The Court explained, at paras. 48-49:

[T]he focus of the correspondence test is not necessarily whether the circumstances demonstrate that the officer was lying, i.e., deliberately misleading the court, but rather, whether the circumstances give the court a basis to reject the officer's evidence as untrue because they are indicative of racial profiling.

This approach to the correspondence test is consistent with the concept of unconscious bias, where a person either does not recognize, or does not acknowledge his own bias. An officer who has unconsciously allowed racial stereotypes to influence his decision to detain a racialized person may not believe he is being untruthful, and therefore may not be lying when he testifies that racial stereotypes played no role in the decision. Nevertheless, a trial judge is entitled to reject that evidence as untruthful, if the judge is satisfied, based on the circumstances consistent with racial profiling, that unconscious bias and racial profiling were factors in the decision.

[64] The Court summarized its analysis at para. 54:

To summarize, the case law from Brown onward recognizes that in cases where an officer had objective grounds to detain a person or stop a vehicle but was also subjectively motivated by racial stereotypes, the officer is unlikely to admit his bias. The matter becomes more complicated when the officer is unaware that he was influenced by race because of unconscious bias. The officer may not be consciously lying about his motivation, but that does not mean he did not unconsciously engage in racial profiling. It is the role of the trial judge in such cases to consider all the circumstances that led to an accused's detention and/or arrest and to determine whether they correspond to the phenomenon of racial profiling, as understood in the social science literature, the reports of inquiries into race relations with police, and the case law. The trial judge can then decide whether those corresponding circumstances form a basis to infer that the record is capable of supporting a finding that the stop was based on racial profiling, contrary to the evidence of the officer. Ultimately, to reach a conclusion about racial profiling, the trial judge is not required to find that a police officer who testifies that race played no role in the decision to detain or arrest was lying.

[65] It is also important to note that the Court, at para. 67, rejected the suggestion that there was a presumption of racial profiling wherever a police officer becomes aware of the racial identity of a suspect before making a traffic stop. The onus of proof is on the accused when a Charter breach is alleged.

[66] The Applicant argues that there is circumstantial evidence from which a finding of racial profiling may be made. He argues that an examination of all the circumstances in this case leads to the conclusion that the articulated factors that led the police to stop his car – the rental car, the sharp left turn and parking – correspond to the phenomenon of racial profiling as understood in the various sources identified by the Court in Sitladeen. He argues that these factors would not have led the police to stop him had Detective Ford not observed his race before the stop.

[67] The Crown takes the position that the Applicant did not raise the issue of racial profiling in his Notice of Charter Application. While he alleged that the initial stop was a “pretext stop” there is no indication in his Notice of Charter Application that there was an allegation of racial profiling. Nor did the Applicant put the question of racial profiling to Detectives Cooke or Ford, other than to ask if they saw that the Applicant was black before the car was stopped.

[68] The Crown argues that the basic principle of fairness articulated by the courts in Browne v. Dunn (1893), 6 R. 67 (H.L.), 1893 CanLII 65 (FOREP) requires that this allegation be put to the police whose motivation is impugned. Stated generally, what has become known as “the rule in Browne and Dunn”, is a requirement that any counsel intending to impeach a witness on a particular aspect of a case, must give the witness the chance to address the contradictory evidence in cross-examination while he or she is in the witness-box.

[69] Fundamentally, the rule is one of fairness. As Watt J.A. observed in R. v. Quansah, 2015 ONCA 237, at para. 77, the rule is rooted in the following considerations of fairness:

i. Fairness to the witness whose credibility is attacked:

The witness is alerted that the cross-examiner intends to impeach his or her evidence and given a chance to explain why the contradictory evidence, or any inferences to be drawn from it, should not be accepted…

ii. Fairness to the party whose witness is impeached:

The party calling the witness has notice of the precise aspects of that witness’s testimony that are being contested so that the party can decide whether or what confirmatory evidence to call; and

iii. Fairness to the trier of fact:

Without the rule, the trier of fact would be deprived of information that might show the credibility impeachment to be unfounded and thus compromise the accuracy of the verdict.

[70] The Applicant takes the position that he was not required to put the allegation of racial profiling to the police because racial profiling is often the result of unconscious bias, and the police officer, as the Court of Appeal found in Sitladeen, “may not believe he is being untruthful, and therefore may not be lying when he testifies that racial stereotypes played no role in the decision”. Since the Court does not have to find that the police officer was lying to conclude that the police were motivated by racial bias, the Applicant can make this allegation without impugning the credibility of the police officer and the rule in Browne and Dunn does not apply.

[71] The allegation of racial profiling – even unconscious racial profiling – is a serious allegation. In my view, it should not be made unless the allegation is expressly put to the police officer so that the officer may be given a chance to explain their actions. The fact that police may be found to have been motivated by unconscious racial bias even if they are being entirely truthful makes this principle of trial fairness more important, not less.

[72] In R. v. Clayton, 2005 CanLII 16569 (ON CA), [2005] O.J. No. 1078 (reversed on other grounds, 2007 SCC 32) Doherty J.A. stated at para 7:

I can dispose of the racial profiling argument quickly. There is no basis in the trial record for this submission which, as indicated above, was made for the first time on appeal. It is unfair to those who are the target of this serious allegation to raise it for the first time on appeal.

[73] See also R. v. Tutu, 2021 ONCA 805, at para. 38: “[A] claim of racial profiling demands both proper framing and evidence”.

[74] In this regard I adopt the statement of Mossip J. in R. v. Mai, 2013 ONSC 2359, at para. 228:

[I]in terms of trial fairness and fairness to witnesses, such allegations should be strongly rejected by the court where there has been absolutely no opportunity for the officers whose credibility has been impugned, and whose reputations and careers are at stake, to answer the allegations in any way.

Conclusion

[75] For these reasons, while I did find that this was a pretext stop and a violation of the Applicant’s Charter s. 9 right not to be unreasonably detained, the allegation of racial profiling is rejected.

b) Was the proposed search under s. 12 of the Cannabis Control Act a violation of Charter s. 8?

[76] Section 12 of the Ontario Cannabis Control Act prohibits persons from driving a motor vehicle while any open cannabis is in the vehicle. Section 12(3) authorizes the police to enter and search a vehicle or a person in the vehicle without a warrant if they have “reasonable grounds to believe” that there is cannabis in the vehicle. Section 12 provides:

12 (1) No person shall drive or have the care or control of a vehicle or boat, whether or not it is in motion, while any cannabis is contained in the vehicle or boat.

Exception

(2) Subsection (1) does not apply with respect to cannabis that,

(a) is in its original packaging and has not been opened; or

(b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle or boat.

Search of vehicle or boat.

(3) A police officer who has reasonable grounds to believe that cannabis is being contained in a vehicle or boat in contravention of subsection (1) may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it.

Application of the Cannabis Control Act to this Case

[77] As indicated above, Detective Ford could smell burnt cannabis as soon as the passenger opened her window, and she readily admitted that she had just smoked a joint. On this basis he advised her that he was about to search the car and the persons in the car pursuant to the “Cannabis Act”. Detective Cooke communicated similar information to the Applicant on the driver’s side of the car. The original “sobriety stop” quickly turned into a proposed search under s.12(3) of the Cannabis Control Act.

[78] At this point, the Applicant put the car into gear and drove off. No search was ever conducted under the Cannabis Control Act. Neither the driver nor the passenger was charged with a Cannabis Control Act offence arising from this incident.

[79] The Crown takes the position that since, as events unfolded, the Applicant drove off before any search could be conducted under the Cannabis Control Act, it is not necessary for the Court to opine on its validity.

[80] In my view, even though the proposed search was never conducted, the Cannabis Control Act remains an integral part of the sequence of events that led to the seizure of the gun. Arguably, it was this proposed search that caused the Applicant to flee the scene. If s. 12 of the Cannabis Control Act is invalid, this might be a factor in determining whether the evidence was “obtained in a manner” that infringed the Charter, even though there was a break in the chain of events. The issue is whether the Charter infringement had a causal, temporal or contextual connection to the evidence sought to be excluded: R. v. Pino, 2016 ONCA 389, at para. 72. The jurisprudence has accepted that courts should examine the “entire ‘chain of events’ between the accused and the police”: Pino, at para. 72

[81] This is also consistent with the Supreme Court of Canada’s decision in Nolet, where the Court stated, at para. 4:

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

Title of the Act

[82] In their testimony, the officers referred to their intention to search the car under the “Cannabis Act”. As a preliminary matter, the Applicant takes the position that the police relied on the wrong statutory authority in their proposed search.

[83] There is a federal Cannabis Act, S.C. 2018, c. 16, which was enacted to create a legal framework for controlling the production, distribution, sale and possession of cannabis when cannabis was legalized in Canada. There is no dispute that the federal legislation did not authorize the search of the Applicant’s motor vehicle.

[84] The Applicant argues that we cannot know whether the police intended to search the car under the federal Cannabis Act or the provincial Cannabis Control Act.

[85] I reject this argument for two reasons. Firstly, it is clear from Detective Ford’s testimony that his reference to the search provisions under the “Cannabis Act” was a reference to what is now titled the provincial Cannabis Control Act. The question is whether the police had the statutory authority to search the car, not whether the police officer can correctly identify the current title of the statute which authorized the search: Regina v. Annett, 1984 CanLII 3450 (ON CA); [1984] OJ No 192, at para. 12.

[86] Moreover, on the date that this incident occurred, what is now the Ontario Cannabis Control Act, 2017 was in fact titled as the Cannabis Act, 2017.

[87] When the Ontario Cannabis Control Act, 2017 was first enacted on December 12, 2017, it was titled “Cannabis Act, 2017”. The title of the Act was changed to the Cannabis Control Act by Bill 36, the Cannabis Statute Law Amendment Act, 2018, S.O. 2018, c. 12, Schedule 1, s. 1. Pursuant to s.2 (2) of Bill 36, in combination with s. 25(1) of Schedule 1, most of Bill 36 came into force on Royal Assent on October 17, 2018 (two weeks before this incident). But s. 25(2) of Schedule 1 provided that s. 1 of Schedule 1, which changed the title of the Act from Cannabis Act, 2017 to Cannabis Control Act, 2017, did not come into force until “a day to be named by proclamation of the Lieutenant Governor”.

[88] That proclamation by the Lieutenant Governor can be found in the Ontario Gazette, Volume 151, Issue 48, December 1, 2018, 151-G583E. It proclaims November 16, 2018 as the day on which s. 1 of Schedule 1 of the Cannabis Statute Law Amendment Act, 2018 comes into force.

[89] Thus, the title of the Act was changed two weeks after the events in this case occurred, and the police officers were using the correct title of the Act when they stopped the Applicant’s car and told him and his passenger that they would be searching the car under the “Cannabis Act”.

Applicant’s Position – Charter s. 8

[90] The Applicant argues that s. 12 of the Cannabis Control Act authorizes an unreasonable search because the Act permits the police to search without a warrant not just the motor vehicle but every person in the car even if only one person admits to possessing cannabis. That is what happened in this case – the Applicant was going to be searched because his passenger confessed to smoking a joint in the car.

[91] The Applicant also argues that even if s. 12 is valid, the police did not have reasonable grounds to believe that there was open cannabis in the vehicle.

Interpretation of s. 12 of the Cannabis Control Act

[92] The constitutional validity of s. 12(3) of the Cannabis Control Act was considered by the Ontario Court of Justice in the case of R. v. Nzita, 2020 O.J. No. 3109. Brunet J. upheld the validity of the provision under both s. 7 and s. 8 of the Charter.

[93] The first issue to be considered in the Nzita case was the proper interpretation of s. 12(3). The statutory interpretation argument advanced by the Applicant in Nzita was not pursued by the Applicant in this case, but should be referenced because it is an important starting point to the determination of the validity of the impugned provision.

[94] The Applicant in Nzita took the position that s. 12(3) permitted the police to search a vehicle even if the cannabis was in its original or closed package as required by s. 12(2). The Court rejected this interpretation as inconsistent with a plain reading of the provision read as a whole. It is only if the police have reasonable grounds to believe that open cannabis (i.e. not in compliance with the exception found in s. 12(2) of the Act) is in the vehicle that the Act authorizes the police to search the vehcile or persons in it.

[95] I agree with the analysis (at paras. 16 – 29) and interpretation (para. 30) of s. 12 set out by Brunet J. in Nzita. Section 12(3) of the Cannabis Control Act authorizes the police to search the car and persons in the car only if there are reasonable grounds to believe that there is open cannabis in the vehicle.

Charter s. 8

[96] The issue is whether the warrantless search authorized by s.12(3) of the Cannabis Control Act violates Charter s. 8. Section 8 contains its own internal limitation: it prohibits only “unreasonable” searches and seizures: Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, at para. 55.

[97] Searches or seizures conducted without a warrant are presumptively unreasonable: Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R.145, at p. 161. Where legislation authorizes a warrantless search, the burden of establishing reasonableness rests with the state: Goodwin at para. 56.

[98] A warrantless search or seizure may be found to be reasonable where it meets the test in R. v. Collins (1987), 1987 CanLII 84 (SCC), [1987] 1 SCR 265, at para. 23: “A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable”.

[99] In Goodwin, the Supreme Court summarized the factors that the court should consider in assessing the reasonableness of a statute authorizing a warrantless search, at para. 57:

This Court has generally declined to set out a “hard and fast” test of reasonableness... In my view, this flexible approach remains compelling. This Court has nonetheless identified certain considerations that may be helpful in the reasonableness analysis, including “the nature and the purpose of the legislative scheme . . . the mechanism . . . employed and the degree of its potential intrusiveness[,] and the availability of judicial supervision” [citations omitted].

Legislative Purpose

[100] Thus, to assess the constitutional validity of s. 12 of the Cannabis Control Act, we must begin with the purpose of the Act generally, and the purpose of s. 12 in particular.

[101] A law’s purpose can be inferred from explicit legislative statements, the text of the law read in its context, extrinsic evidence such as legislative history and evolution, as well as prior judicial interpretations: R. v. Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180, at para. 31; R. v. N.S., 2022 ONCA 160, at para. 48.

[102] The general purposes of the Cannabis Control Act are set out in s. 1 of the Act:

The purposes of this Act are,

(a) to establish prohibitions relating to the sale, distribution, purchase, possession, cultivation, propagation and harvesting of cannabis in order to,

(i) protect public health and safety,

(ii) protect youth and restrict their access to cannabis, and

(iii) ensure the sale of cannabis in accordance with the Ontario Cannabis Retail Corporation Act, 2017 and the Cannabis Licence Act, 2018;

(b) to deter illicit activities in relation to cannabis through appropriate enforcement and sanctions; and

(c) to provide for approved youth education or prevention programs, including culturally appropriate programs for Indigenous youth, as an alternative to enforcement and sanctions

[103] Section 12 of the Cannabis Control Act relates specifically to the regulation of the possession of cannabis in order to protect public health and safety. The specific health and safety concerns that are the focus of s. 12 are health and safety concerns related to impaired driving.

[104] To accomplish this purpose, s. 12 of the Act regulates two legal but highly regulated activities: driving a motor vehicle[^3] and possessing cannabis. Separately, each of these activities poses some heath and safety risks, together they pose a serious health and safety risk.

[105] The Supreme Court of Canada has frequently recognized the compelling nature of this government’s objective: “The objective of removing impaired drivers from the roads is compelling”, Goodwin at para. 58.

[106] While the Goodwin case dealt with alcohol, the same principle applies to impaired driving caused by the consumption of cannabis. In R. v. Clay, 2003 SCC 75, the Supreme Court of Canada, in upholding the former Criminal Code prohibition on the simple possession of cannabis, stated, at para. 40:

In any event, the effects of a psychoactive drug like marihuana on users in the acute phase, where for example operation of motor vehicles or other complex machinery by any user constitutes a public danger (which to some extent is more problematic than alcohol intoxication because of the absence of a simple and effective screening device for detection), lay a rational basis for extending the prohibition to all users should Parliament consider it good public policy to do so. [Emphasis added.]

[107] While cannabis has now been legalized, the potential harms and safety concerns identified by the Supreme Court in Clay and R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, at para. 135, remain legitimate concerns for government regulation. Indeed, with the legalization of cannabis the need for regulation became even more compelling.

[108] The Crown in its factum has cited several passages from Hansard when the Attorney General of Ontario introduced Bill 36 (Cannabis Statute Law Amendment Act, 2018). Some of these passages are also cited by Brunet J. in Nzita, at paras. 23 - 27. These passages confirm what is obvious from the text of the statute itself: road safety and combatting drug-impaired driving are central purposes of the Act.

[109] This conclusion is consistent with other cases have that have considered the purpose of s. 12 of the Cannabis Control Act. In R. v. Williams, 2021 ONCJ 630 West J. stated, at para. 65:

I agree with the Crown that the legislative objective behind the Cannabis Control Act is the prevention of drug-impaired driving or operation of a motor vehicle, which represents a threat to the life and safety of members of the public using the roads both as drivers or pedestrians. Further, I agree with the Crown’s submission: “It would entirely defeat the purpose of the legislation if a passenger in the vehicle could conceal marijuana on their person, consequently rendering themselves immune from search, and then return to the vehicle and be in a position to offer that marijuana to the driver for consumption.”

[110] See also: R. v. Grant, 2021 ONCJ 90, at paras. 101 – 103.

Regulatory Search

[111] The Supreme Court has recognized “that the characterization of a search or seizure as either criminal or regulatory is relevant in assessing its reasonableness. Where an impugned law’s purpose is regulatory and not criminal, it may be subject to less stringent standards”: Goodwin, at para. 60.

[112] The Cannabis Control Act is regulatory legislation rather than criminal legislation. It is enacted pursuant to the provincial legislative power regarding, inter alia, the regulation of highway traffic and safety: Goodwin, at para. 31 and cases cited therein; Nzita, at paras. 31-36.

[113] In assessing the validity of the search powers in s. 12(3) of the Act, it is significant that the search powers apply only to a motor vehicle. Driving a motor vehicle is the most dangerous and heavily regulated activity in which most individuals will commonly be involved.

[114] In this regard, the following from the Supreme Court’s decision in Goodwin, at para. 63 is apposite:

Driving on highways is, of course, a highly regulated activity, and drivers expect that the rules of the road will be enforced. This reality, combined with the scheme’s location within a broader regulatory framework targeting driving and highway safety, supports characterizing the regime as regulatory and applying a more flexible standard in assessing its reasonableness.

[115] Moreover, the Supreme Court of Canada has recognized the “reduced expectation of privacy in a motor vehicle”, a factor that is directly relevant to the Charter s. 8 analysis. The Supreme Court stated in R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] 3 SCR 341, at paras. 38 and 39:

First, I believe the trial judge failed to take into account the reduced expectation of privacy in a motor vehicle. As the majority of this Court stated in R. v. Wise, 1992 CanLII 125 (SCC), [1992] 1 S.C.R. 527, at p. 534, the expectation of privacy in a vehicle cannot be as high as that in a home or office:

Society . . . requires and expects protection from drunken drivers, speeding drivers and dangerous drivers. A reasonable level of surveillance of each and every motor vehicle is readily accepted, indeed demanded, by society to obtain this protection. All this is set out to emphasize that, although there remains an expectation of privacy in automobile travel, it is markedly decreased relative to the expectation of privacy in one’s home or office. [Emphasis added by the Supreme Court in Belnavis.]

A person can expect that his home can and should be a safe castle of privacy. A person cannot possibly have the same expectation of a vehicle. Vehicular traffic must be regulated, with opportunities for inspection to protect public safety. A dangerous car is a threat to those on or near our roads. The reasonable expectation of privacy in a car must, from common experience and for the good of all, be greatly reduced. The high expectation of privacy attaching to the home may well extend to an attached garage, but it should not extend to the car within when it leaves the premises.

[116] Finally, the regulatory nature of Section 12 of the Cannabis Control Act is confirmed by its location within a broader regulatory framework dealing with the “sale, distribution, purchase, possession, cultivation, propagation and harvesting of cannabis”.

Mechanism of Search

[117] The nature of the search authorized by s. 12 of the Cannabis Control Act is less intrusive than the Automatic Roadside Prohibition (ARP) scheme considered by the Supreme Court of Canada in the Goodwin case:

a. The search authorized by s. 12 of the Cannabis Control Act is less intrusive than the demand for bodily samples (breath samples) that were required in the scheme for testing impaired drivers in Goodwin (Goodwin at para. 65).

b. Section 12(3) of the Cannabis Control Act requires the threshold of “reasonable grounds”, rather than the lower standard of “reasonable suspicion” that was at issue in Goodwin (Goodwin, at para. 62).

c. Unlike the consequences of a failed ASD test in Goodwin, the reasonableness of the grounds for the search can be reviewed by a court before any penalty is imposed (Goodwin, at paras. 63 and 70-71). The Crown will bear the burden due to the warrantless nature of the search.

[118] Section 12 of the Cannabis Control Act is drafted in substantively similar language to s. 32 of the Liquor Licence Act, R.S.O. 1990, c. L.19. Section 32 of the Liquor Licence Act regulates the conveyance of liquor in a vehicle or boat. Like s. 12(3) of the Cannabis Control Act, s. 32(5) of the Liquor Licence Act authorizes the police to search the vehicle and all of its occupants if they have reasonable grounds to believe that open liquor is in the vehicle.

[119] Section 32 of the Liquor Licences Act provides:

Conveying liquor in vehicle, boat

32 (1) No person shall drive or have the care or control of a motor vehicle as defined in the Highway Traffic Act or a motorized snow vehicle, whether it is in motion or not, while there is contained in the vehicle any liquor, except under the authority of a licence or permit.

Exception

(2) Subsection (1) does not apply if the liquor in the vehicle,

(a) is in a container that is unopened and the seal unbroken; or

(b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle.

Search of vehicle or boat

(5) A police officer who has reasonable grounds to believe that liquor is being unlawfully kept in a vehicle or boat may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it.

[120] The concern of both statutes is the same: open alcohol or open cannabis provides easy access to the driver and may result in alcohol or drug impaired driving. If there are reasonable grounds to believe that alcohol or cannabis is being unlawfully kept in a vehicle, this gives rise to serious and immediate traffic safety concerns that require immediate attention and resolution. Authorizing the police to search and seize alcohol or cannabis in these circumstances helps ensure that drivers will not have access to these substances while driving.

[121] It is also significant that motor vehicles and boats have the obvious ability to move rapidly. This ability makes obtaining a warrant impracticable, another reason why the mechanism of post-search judicial review is reasonable in this context: Nzita, at para. 42. While the Supreme Court has declined to establish a blanket exception for vehicle searches in the criminal context, R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 SCR 223, at p. 189, it is reasonable in the regulatory context at issue in this case where the specific concern is the presence of open cannabis in the vehicle. Open cannabis, or open liquor, in a vehicle is an inherently “exigent circumstance”.

[122] Indeed, it is difficult to imagine how the prohibitions on carrying open alcohol and open cannabis in a motor vehicle could be practically enforced if the search powers in s. 12(3) of the Cannabis Control Act or s. 32(5) of the Liquor Licence Act were invalidated.

[123] For these reasons, I find that the provisions of s. 12 of the Cannabis Control Act are reasonable. The warrantless search authorized by s. 12(3) of the Cannabis Control Act does not infringe Charter s. 8.

Charter s. 1

[124] If I am wrong that the warrantless search authorized by s. 12(3) of the Cannabis Control Act does not infringe Charter s. 8, I would uphold the legislation as a reasonable limit under Charter s. 1.

[125] In this regard I note that because Charter s. 8 includes the same standard as Charter s. 1 -reasonableness – the analysis under Charter s. 8 is very similar to the Charter s. 1 analysis. Both provisions require the Court to examine “the nature and the purpose of the legislative scheme . . . the mechanism . . . employed and the degree of its potential intrusiveness” (Goodwin, at para. 57).

[126] Given this parallel analysis, it would be surprising if I came to a different conclusion under Charter s. 1 than under s. 8. The corollary is also true: “The government has a difficult task in seeking to uphold as reasonable provisions, such as those in issue here, which have been found to authorize unreasonable searches”: Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7, at para. 58.

[127] As Professors Hogg and Wright note in Constitutional Law of Canada, 5th ed, p. 38:26: “[T]he fact is that s.1 has never saved a law found in breach of s. 8, and s. 1 is rarely even mentioned in s. 8 decisions”.

[128] Still, Professors Hogg and Wright conclude that there remains room for s. 1 analysis, at p. 38:26:

[T]he Supreme Court of Canada in Hunter v. Southam (1984) has elaborated a set of requirements for legislation that authorizes a search or seizure, and by this ruling has given a particular meaning to the word “unreasonable” in s. 8. The word “reasonable” in the entirely different context of s. 1 is not restricted in the same fashion. Although the words are the same, the tests they require are different. In principle, therefore, it is possible to imagine a law that fails the narrow test of reasonableness in s. 8, but passes the broader test of reasonableness in s. 1.

[129] Given the parallel inquiries, I’m not sure that the contexts are as “entirely different” as Professors Hogg and Wright suggest. In any event, I will keep the Charter s. 1 analysis brief, since it essentially repeats the points made above.

[130] The province bears the burden of justifying the violation of s. 8 under s. 1 of the Charter. To do so, it must demonstrate, on a balance of probabilities, that the search authorized by s.12(3) of the Act has a pressing and substantial objective and that the means chosen to achieve that objective are proportionate. The proportionality test comprises three inquiries: (1) whether the means adopted are rationally connected to the objective, (2) whether the law is minimally impairing of the violated right, and (3) whether the deleterious and salutary effects of the law are proportionate to each: Goodwin, at para. 79.

[131] As indicated, the purpose of s. 12 of the Act is the promotion of road safety and combatting impaired driving. This has been recognized in innumerable Supreme Court decisions as a compelling and substantial government objective.

[132] The means adopted are rationally connected to the legislative objective. The presence of open cannabis in a motor vehicle is prohibited by s. 12 of the Act because open cannabis provides easy access to the driver and may result in drug impaired driving. Precisely the same rules apply to open alcohol in a car for precisely the same reasons. The law permits the police to search the vehicle and occupants only if the police have reasonable grounds to believe that there is open cannabis in the car. Obtaining a warrant in these circumstances is impracticable. Both driving and the possession of cannabis are highly regulated activities, and s. 12 is an integral part of that regulation.

[133] Section 12(3) does not permit the police to demand or seize bodily samples.

[134] There are no alternatives that would permit the legislature to achieve its objective as effectively. Cannabis, like alcohol, can be easily kept in a pocket or purse, and can easily be passed from the passenger to the driver and back again. Permitting only a search of the vehicle, or only a search of the driver, or only a search of the person who admitted to smoking cannabis, would make it a simple matter to circumvent the law: R. v. F., 2015 ONSC 3068, at para. 68; Williams, at para. 65.

[135] The salutary effects of the legislation are significant, and, given the highly regulated nature of driving and the importance of reducing impaired driving, the salutary effects of the legislation are proportionate to the deleterious effects. Allegations of improper searches can be properly litigated and supervised by a court, which attenuates any deleterious effects with regard to seized evidence. This permits the “meaningful review” that the Supreme Court found was missing in Goodwin, at para. 83.

[136] See also the s. 1 analysis at paras. 47-48 of Nzita.

Did the Officers have reasonable grounds to conduct the search

[137] The search provisions in s. 12(3) of the Cannabis Control Act requires “reasonable grounds” before a search is conducted.

[138] Detective Ford’s subjective belief that he had reasonable grounds to search the car was, in my view, objectively reasonable. When the passenger rolled down the window there was a strong smell of burnt cannabis, and the passenger admitted to him that she had just smoked a joint. That was objectively reasonable grounds to believe that there was open cannabis in the car. The passenger did not have to admit to having more cannabis before a search under s. 12(3) could be reasonable.

Conclusion re: Cannabis Control Act

[139] As indicated above, the Supreme Court in Collins held, at para. 23, that “[a] search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable”.

[140] In this case I have dealt with the first two of those requirements: the proposed search was authorized by s. 12(3) of the Cannabis Control Act and the law itself is reasonable. I have also confirmed that the police had objectively reasonable grounds to search the car.

[141] I cannot address the third step – the manner in which the search was carried out – because the search was aborted by the Applicant’s flight.

[142] I conclude, however, that the police stayed within their authority, having regard to the information lawfully obtained at this specific stage of their inquiry.

Charter s. 10(b)

[143] Finally, the Applicant argues that the police violated his Charter s. 10(b) right to counsel without delay.

[144] To address this issue, it is important to examine the sequence of events that occurred in the approximately 3 minutes that the Applicant was detained before he fled the scene.

[145] The initial stop was ostensibly conducted as a random stop under the HTA. There is no dispute that the Applicant was detained as soon as the police pulled up behind the Applicant. The police immediately advised the Applicant that he was being stopped for a sobriety check and asked for his driver’s licence and insurance as permitted by the Supreme Court in Husky and Ladouceur.

[146] While the right to counsel is triggered from the moment a driver is “detained” within the meaning of s. 10, the Supreme Court has held that the suspension of s. 10(b) rights for brief roadside detentions is a reasonable limit under Charter s. 1: R. v. Orbanski; R. v. Elias, 2005 SCC 37, at paras. 54-60.

[147] In Orbanski, the Supreme Court recognized that when making a traffic stop, police are entitled to engage in questioning within the scope of their duties. The Supreme Court held that the temporary suspension of Charter s. 10(b) in these circumstances was justified under Charter s. 1 because the exercise of s. 10(b) rights is not compatible with the operational requirements of statutory and common law police powers to stop and investigate motor vehicles.

[148] The Crown takes the position, therefore, that if the court concludes that this was a valid HTA sobriety stop, that the Applicant’s s. 10(b) rights were validly suspended.

[149] On the other hand, the Crown concedes, correctly in my view, that if the court concludes that this was a pretext stop, then the s. 10(b) informational right had to be provided immediately, and the Applicant’s s. 10(b) right to be informed of his right to counsel was infringed. While Detective Cooke had legitimate safety concerns once he observed the gun in the car, he could have advised the Applicant of his right to counsel before he made that observation.

[150] Given this concession by the Crown, it is not necessary to consider whether Orbanski applies to a traffic stop conducted under s. 12(3) of the Cannabis Control Act (or by analogy s. 32(5) of the Liquor Licence Act), since the pretext HTA stop occurred first in the sequence of events. I do, however, want to make the following observations because they may be relevant to the Charter s. 24(2) analysis.

[151] Once the Cannabis Control Act became an issue, the Applicant fled the scene before the police had any real opportunity to advise him of his right to counsel. Detective Ford testified that he explained to the passenger why he was going to search her and asked the passenger to get out of the car. He stated that he generally waits until the person has complied with the request to get out of the car before reading their rights. In this case, the passenger was just opening the car door when the Applicant put the car into gear and took off.

[152] At the same time, Detective Cooke observed the gun on the floor of the car. This observation, rather than advising the Applicant of his right to counsel, became Detective Cooke’s main concern. The Supreme Court of Canada has also found that the informational duty to advise a detainee of his right to counsel “does permit a delay on the basis of concerns for officer or public safety”: R v. Suberu, 2009 SCC 33, at paras. 2 and 42; R. v. Gonzales, 2017 ONCA 543, at para. 128; R. v. Wu, 2017 ONSC 1003, at para. 78.

[153] Detective Cooke clearly had legitimate officer safety concerns when he saw the gun. The Applicant immediately fled the scene before the concern for officer safety could be addressed.

[154] While I do not have to decide the issue of whether the s. 1 justification for briefly suspending Charter s. 10(b) rights identified in Orbanski applies to the Cannabis Control Act phase of the investigation, I note that Code J. concluded that the Orbansk analysis likely did apply under the analogous provisions of the Liquor Licence Act. Code J. stated, in R. v. Graham, 2018 ONSC 6718, at para. 52:

It may well be that the same s.1 Charter analysis applies to a roadside Liquor License Act investigation of “open alcohol” in a car, as applies to a roadside Highway Traffic Act or Criminal Code investigation of drinking and driving, licensing infractions, or motor vehicle safety and driving infractions. These various types of roadside investigations are all arguably much the same, in terms of appropriate s.1 limits on s.10(b) rights.

[155] Code J. concluded (at para. 53) that he did not have to decide this issue because officer safety concerns quickly arose at the same time that the officers intended to search the car for open alcohol pursuant to the Liquor Licence Act. I agree, however, with his analysis on this point, and, given the similarity between s. 12(3) of the Cannabis Control Act and s. 32(5) of the Liquor Licence Act, the analysis would apply equally to both provisions.

[156] See also: R. v. Grant, 2021 ONCJ 90, at paras. 127-131, where Calsavara J. applies Code J.’s analysis in Graham to a search conducted under s. 12(3) of the Cannabis Control Act.

[157] As the Supreme Court stated in Nolet, “A roadside stop is not a static event”. In this case, the Applicant was detained for approximately 3 minutes when he fled the scene. The initial detention was the pretext HTA stop, and the police violated his right to counsel by not immediately advising him of that right. The stop quickly transitioned into a Cannabis Control Act stop, and officer safety issues were identified almost simultaneously. The Applicant fled the scene about 3 minutes after the detention began.

Charter s. 24(2)

[158] I have concluded that the initial detention of the Applicant was not within the police authority to conduct a random stop under s. 216 of the HTA and therefore violated the Applicant’s right under s. 9 of the Charter.

[159] The violation of the Applicant’s Charter s. 9 rights triggers a Charter s. 24(2) analysis: should the gun found by the side of the road and the ammunition and drugs found in the Applicant’s rental car be excluded as evidence at the trial?

[160] In Pino the Court of Appeal directed the courts to consider the entire “chain of events” between the accused and the police to assess whether the evidence seized and the Charter breach are part of the same transaction or course of conduct. As long as the court can discern a causal, temporal or contextual connection that is not too tenuous or remote the evidence meets the “obtained in a manner” component of s. 24(2).

[161] The Crown takes the position that the gun found by the side of the road near where the Applicant’s car stopped after he fled was not connected to the Charter s. 9 violation. The Crown argues that the Applicant’s action in fleeing the stop breaks any causal or temporal connection to the Charter violation. Similarly, the drugs and ammunition were found in the Applicant’s car after the chase, when he was searched incident to his arrest. The Applicant does not take issue with the validity of the search incident to the arrest.

[162] Looking at the entire chain of events, I am satisfied that there is a causal and temporal connection between the evidence obtained and the s. 9 breach. It was the initial detention that enabled Detective Cooke to observe the gun in the car, and that enabled Detective Ford to smell the burnt cannabis. The initial detention was the instigation or initial cause of all that followed, and that led to the evidence that constitutes the case for the Crown: Gonzales, at para. 165.

[163] While, in my view, there is no connection between the s. 10(b) breach and the evidence obtained, I will still consider the violation of s. 10 in the context of the s. 24(2) analysis.

[164] There are three lines of inquiry in deciding whether the evidence seized should be excluded under s. 24(2) of the Charter. These are: 1) the seriousness of the Charter-infringing state conduct, 2) the impact of the breach on the Charter-protected interests of the accused, and 3) society’s interest in the adjudication of the case on its merits: R. v. Grant, 2009 SCC 32.

[165] In R. v. McGuffie, 2016 ONCA 365, at paras. 62- 63, the Court of Appeal summarized the post-Grant paradigm as follows:

The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society’s interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case.

In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence. [Citations omitted].

Seriousness of the Charter-Infringing Conduct

[166] The Crown concedes that if the stop was a pretext stop, the police misconduct was serious: Gonzales at para. 168. Pretext stops are, by definition, a deliberate breach of s. 9 of the Charter.

[167] The Charter s. 10(b) violation was a by-product of the Charter s. 9 violation, and in my view falls into the less serious end of the spectrum. There was no connection between the Charter s. 10(b) breach and any of the evidence found, and the s. 10 (b) violation lasted only approximately 3 minutes because the Applicant fled the scene.

The impact on the Applicant’s Charter-protected interest

[168] I consider the impact on the Applicant’s Charter-protected interests to be moderate.

[169] The initial Charter violation was arbitrary detention under s. 9 of the Charter, curtailing the Applicant’s liberty and privacy interests. The Applicant had only a limited expectation of privacy in the place that he was stopped and questioned, that is a rental vehicle: R. v. Bakal, 2021 ONCA 584, at para. 131, per Paciocco J.A. concurring. The actions of the police when they initially stopped the car – asking to see his driver’s licence and insurance, asking whether the driver had been drinking, speaking with the passenger - were minimally intrusive and consistent with the authorized limits of a legally permissible HTA sobriety stop: R. v. Harrison, 2009 SCC 34 at para. 30.

[170] The police did not physically search the Applicant before he fled. While the police did see the gun in the rental vehicle, the Applicant apparently disposed of and abandoned the gun after he fled. The gun was not found on the Applicant or in the vehicle, but at the side of the road. The Applicant had neither possession nor control of the gun when the police found it. The police found the drugs and ammunition in the rental vehicle following a valid search incident to the arrest after the Applicant fled the scene.

[171] In other words, the Applicant’s own conduct, by fleeing the scene, injuring Detective Cooke, and disposing of the gun, gave the police lawful grounds to detain him and had the effect of limiting the impact of the pretext stop on his Charter protected interests.

[172] The second Charter violation was the breach of the Applicant’s s. 10(b) right to counsel. As indicated, there is no causal connection between the brief violation of s. 10(b) and the finding of the gun and drugs. “While a causal relationship between the breach and the evidence need not exist…its absence is a factor in the s. 24(2) analysis that weighs against the exclusion of evidence resulting from a s. 10(b) breach: R. v. Lenhardt, 2019 ONCA 416, at para. 11”: R. v. Do, 2019 ONCA 482, at para. 12.

[173] The Charter s. 10(b) violation was, again, only three minutes, which places it at the very low end of this aspect of the Grant spectrum.

Society’s Interest

[174] Since this is a case in which “one, but not both, of the first two inquiries pushes strongly toward exclusion of the evidence” the third inquiry is important.

[175] The evidence obtained is real and reliable evidence. Its exclusion would end the Crown’s case on all but the dangerous driving related offences. As Jamal J.A. (as he then was) stated in R. v. Griffith, 2021 ONCA 302, at para. 77: “Here, the gun and drugs are reliable evidence and essential to the Crown’s case for what are extremely serious offences. The admission of this evidence would better serve the truth-seeking function of the criminal trial process than its exclusion.”

[176] In R. v. Omar, 2018 ONCA 975, 144 O.R. (3d) 1, at paras. 135-138, Brown J.A. (dissenting) found that the inherent dangerousness of illegal firearms and society’s “desire to live free from the lethal threat” posed by them should inform whether the exclusion of a firearm obtained in violation of the Charter will undermine public confidence in the administration of justice. The Supreme Court of Canada, without further comment, agreed substantially with Brown J.A.’s reasons: 2019 SCC 32, at para. 1.

[177] See also, R. v. Bzezi, 2022 ONCA 184, at paras. 9 and 26, where the Court of Appeal upheld the trial judge’s determination that “society has a high interest in protection against and prosecution of cases involving firearms”.

Balancing of Factors

[178] In Griffith, the Court of Appeal stated, at para. 78:

The final step in the s. 24(2) analysis involves balancing the factors under the three lines of inquiry to assess the impact of admission or exclusion of the evidence on the long-term repute of the administration of justice. Such balancing involves a qualitative exercise, one that is not capable of mathematical precision: Harrison, at para. 36. As Doherty J.A. recently noted in Hobeika, “[t]he nature of the s. 24(2) inquiry means, in some cases, different judges will reasonably arrive at different conclusions with respect to admissibility”: at para. 89.

[179] Brown J.A.’s comments in Omar are particularly apposite to the facts of this case. Given the limited impact on the Applicant’s Charter protected interest in this case, it is my view that the public interest in the administration of justice in this matter requires a trial on the merits.

[180] Accordingly, I conclude that the long-term repute of the administration of justice does not favour the exclusion of evidence in this case.

Conclusion – Charter s. 24(2)

[181] Balancing the three Grant factors, I conclude that the admission of the evidence discovered during and following the detention would not bring the administration of justice into disrepute. The application to exclude the evidence under s. 24(2) is therefore dismissed.

Ontario Superior Court of Justice

Her Majesty the Queen – and – Andre Marco Tully, Defendant/Applicant

Ruling Re: Charter Sections 8, 9, 10 and 24(2)

Justice R.E. Charney

Released: March 28, 2022

[^1]: Sections 249 and 249.1 of the Criminal Code were repealed on December 17, 2018, one month after these charges were laid, and replaced with s. 320.13 of the Code. Sections 249 and 249.1 continue to apply to offences that took place when they were in force: Interpretation Act, RSC 1985, c I-21, s. 43. [^2]: Detective Cooke later corrected this, stating that the vehicle was travelling westbound, although the direction is not significant for the purposes of this analysis. [^3]: Section 12 applies to both motor vehicles and boats. I will reference only motor vehicles in this decision, although the analysis applies equally to both.