Court File and Parties

COURT FILE NO.: CR-20-764 DATE: 20220808

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Her Majesty the Queen, Respondent AND Darryl Arthur Dwarika, Applicant

BEFORE: Justice Spencer Nicholson

COUNSEL: V. Mazza, for the Respondent B. Ritter, for the Applicant

HEARD: February 22 and 23, 2022

PRE-TRIAL RULING—CHARTER APPLICATION

NICHOLSON J.:

Background:

[1] On October 19, 2021, Darryl Dwarika was operating his motor vehicle in the Municipality of North Perth when he encountered a RIDE program established by the OPP. During the routine stop, Mr. Dwarika was engaged by Detective Constable Leslie who used his flashlight to do a quick scan of the driver and the interior of the vehicle. In doing so, DC Leslie observed a bong.

[2] Mr. Dwarika was directed to pull into a nearby parking lot. As DC Leslie approached the vehicle, Mr. Dwarika handed the bong to him through his window.

[3] Thereafter, DC Leslie advised Mr. Dwarika that he would be searching the motor vehicle and his person pursuant to the Cannabis Control Act, 2017, S.O. 2017, c. 26 (“CCA”). $354.20 was located in Mr. Dwarika’s pockets. In a black duffle bag located in the rear seat of the vehicle, DC Leslie found a sunglasses case containing a clear white container with suspected crystal meth inside. He also found two working scales with a white powdery substance within the duffle bag.

[4] DC Leslie then arrested Mr. Dwarika for possession for the purpose of trafficking a Schedule 1 substance, advised him of his right to counsel and continued his search. More narcotics were located in a clear plastic bag in the front seat area. A knife and a locked safe were also discovered. The locked safe was opened pursuant to a warrant later and contained further drugs.

[5] Mr. Dwarika applies to exclude all of this evidence under s.24(2) of the Charter on the basis that his s.8 Charter rights were violated by these searches and that DC Leslie failed to afford him his s.10(b) right to counsel. During argument, Mr. Dwarika did not press the alleged s.10(b) argument very vigorously.

[6] In short, Mr. Dwarika argues that DC Leslie lacked the requisite reasonable grounds under the CCA to conduct the searches of Mr. Dwarika’s person and vehicle.

Evidence on Application:

[7] The only witness on the application was DC Leslie. I do not intend to recite all of his evidence.

[8] DC Leslie was a forthright, even-keeled witness who answered questions professionally and fairly. He was prepared to make appropriate concessions during cross-examination. He did not over-reach in his evidence. My overall impression of DC Leslie is that he is an intelligent, conscientious police officer. He was a good witness on his own behalf. I find that he was credible.

[9] DC Leslie was participating in a RIDE program that night with a neighbouring OPP detachment. He described that the purpose of the RIDE program is to create a stationary checkpoint to stop motorists and ultimately combat impaired driving. In pursuit of the RIDE program, every vehicle is stopped and the officer engages in a brief interaction with the driver. Additionally, DC Leslie would perform a quick walk around of the vehicle to ensure that it had no defects. The overall purpose of the stop is to look for evidence of impairment.

[10] DC Leslie was asked to provide his understanding of the CCA. He explained that its purpose is to regulate the movement and possession of cannabis. He indicated that if the police officer has reasonable grounds to believe that the driver or occupant of a vehicle is in contravention of the CCA, the vehicle and any occupants may be searched. DC Leslie further explained that it is his understanding that the CCA does allow for cannabis to be in a vehicle if it is not easily accessible or if it is still within its original packaging. A police officer can conduct a CCA search if there is loose cannabis within a vehicle. DC Leslie also acknowledged that the CCA does not permit an officer to go fishing for evidence relating to other offences.

[11] DC Leslie described the CCA as fairly new legislation. He has completed some online training with the OPP in relation to its provisions and has had day to day experience with CCA searches.

[12] DC Leslie has also engaged in approximately 25-30 RIDE programs per year.

[13] On October 19, 2019, Mr. Dwarika entered the RIDE program stop at approximately 10:30 pm. He was driving an F-150 pick-up truck. He was alone. DC Leslie described that the pick-up truck was a four-door quad cabin, with front and rear passenger seats. The backseat was a bench seat. There was a centre console between the driver’s and passenger’s seat in the front.

[14] Mr. Dwarika had his window down when DC Leslie came to his door. They spoke briefly and then DC Leslie performed a walk around of the pick-up truck, using his flashlight to observe into the interior of the vehicle. He observed a bong, which he described as a vessel used to consume marijuana. It was located behind the central console, within reach, with a towel lying over it. DC Leslie thought that this was an attempt to conceal the bong.

[15] DC Leslie described that the rear bench seat was cluttered. The bong was sitting on top of other belongings and was visible above the centre console, in the middle seat. He was able to recognize it as a bong by its cylindrical tube, which was sticking out of the towel. He described that it was definitely within reach of the driver, who would be able to turn and grab it from the driver’s seat. At that time, DC Leslie could not see the duffle bag.

[16] DC Leslie described that Mr. Dwarika was cooperative at all times. He pulled ahead into a nearby parking lot when directed to do so. DC Leslie had to walk to the parking lot and when he approached, he could see Mr. Dwarika moving inside the vehicle. When he arrived at the vehicle, Mr. Dwarika handed him the bong through the window, unprompted.

[17] DC Leslie described that the bong had obviously been used in the past. He turned it upside down and some water came out of it. On cross-examination, he indicated it was a few drops. He also observed some cannabis residue on the bong itself. DC Leslie explained that, technically, residue equalled cannabis, which would constitute a CCA offence but indicated that he would typically educate the driver with a warning about the presence of residue, rather than issue charges.

[18] DC Leslie also described that the right to counsel is suspended during roadside stops such as the RIDE program. However, he acknowledged that should the driver’s legal jeopardy change, he would be required to give a s.10(b) warning. Thus, he did not initially provide Mr. Dwarika with his right to counsel warning when he stopped him.

[19] When Mr. Dwarika handed DC Leslie the bong, DC Leslie advised him that he was going to conduct a search under the CCA. Mr. Dwarika stepped out of the vehicle and was given a pat down search. He had large amounts of cash falling out of his pocket and had to retrieve the money from the ground.

[20] DC Leslie opened up the rear driver’s side door and started his search there. There was a duffle bag near where he had seen the bong. DC Leslie could not say whether the duffle bag was open or closed. Inside the duffle bag was a sunglasses case. He opened it and found a dime bag containing what he believed was crystal methamphetamine.

[21] DC Leslie paused his search and arrested Mr. Dwarika for possession of a controlled substance under s.4(1) of the Controlled Drugs and Substances Act (“CDSA”) at 10:35pm. He handcuffed Mr. Dwarika and searched him incidental to arrest. He had several $20 and $50 bills, a cellphone and in his back pocket a glass tube with methamphetamine in it. He read Mr. Dwarika his s.10(b) rights at 10:40pm. Mr. Dwarika indicated that he understood and wished to speak to his lawyer. He was advised that once they had finished investigating the scene, he would be put in touch with his lawyer. Mr. Dwarika was in the rear of the cruiser at this juncture. DC Leslie testified that had nothing changed, Mr. Dwarika would have been released on a recognizance.

[22] DC Leslie resumed his search, relying on the CCA and his search powers incident to arrest. The latter, he explained, would be to locate further evidence of the CDSA offence and for officer safety.

[23] DC Leslie continued searching the duffle bag and found two working scales, including a 20g weight. He thus felt he had reasonable grounds to make a s.5(2) CDSA arrest for possession for the purpose of trafficking. He re-read Mr. Dwarika his s.10(b) right to counsel.

[24] DC Leslie continued his search, now indicating that it was mainly a drug investigation, although the CCA was “still in play”. He searched the centre console and found further drugs. Within the duffle bag, a set of brass knuckles and a flick knife, both prohibited weapons, were found. Later, an imitation gun was found by another officer.

[25] Some open alcohol was found within the vehicle as well. Mr. Dwarika was read an approved device demand at 11:00pm and the sample registered “zero”. At 11:17pm, Mr. Dwarika was transported to the detachment in Listowel. Subsequently, a safe was found in the rear of the vehicle. It was not opened until a warrant was obtained. Mr. Dwarika was able to call his counsel at 11:26pm from the Listowel detachment.

[26] DC Leslie indicated that there was no questioning of Mr. Dwarika during the transport to the station or at the scene after he was given his s.10(b) warning.

[27] When the safe was opened, it contained 240g of crystal methamphetamine and 2.6g of cocaine.

[28] On cross-examination, DC Leslie acknowledged that there was nothing in the manner in which the pick-up truck was being operated that gave him any concern. When he interacted with Mr. Dwarika, there was no noticeable odour of alcohol or cannabis. Mr. Dwarika appeared fully capable of understanding the interaction. There were no signs of impairment whatsoever.

[29] DC Leslie could not say how long the bong was. It was a “normal” looking bong. Maybe three inches had been visible from under the towel. It was his impression that it was being intentionally concealed. DC Leslie agreed that he could not determine when the bong had last been used. He could not say whether the bong had been used while Mr. Dwarika was driving. He agreed that it was not still warm to the touch.

[30] On cross-examination, DC Leslie indicated that the presence of a used bong in a vehicle within reach of the driver provides reasonable grounds to conduct a CCA search. If there is a used bong, it was his experience that there would usually be marijuana within the vehicle too.

[31] DC Leslie could not say whether the duffle bag was zipped up or otherwise fastened. There is no indication within his notes, one way or the other.

[32] It was DC Leslie’s view that he would be negligent in performing his duties if he did not conduct a CCA search after finding the bong. He also felt that an unopened case of beer, or an unopened bottle of beer, would have led to further inquiries too.

[33] Mr. Dwarika told him that the duffle bag belonged to his girlfriend.

[34] DC Leslie stated that the presence of a brand-new bong would not have given him the requisite grounds to search under the CCA. In his view, the used bong was the key evidence to form reasonable grounds of the presence of marijuana. The bong was located in a place that was readily accessible to the driver and he subjectively believed that there was more marijuana in the vehicle. From his experience, it was his belief that there would be opened cannabis in the vehicle, located near the used bong. However, until he did a search, he would not know whether the cannabis was readily available to the driver.

Legal Analysis:

The Cannabis Control Act:

[35] The CCA prohibits transporting cannabis in a vehicle or boat unless the cannabis is in its original packaging and has not been opened or is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle or boat (see: s.12(1) and (2) of the CCA).

[36] S.12(3) of the CCA authorizes a police officer to search, without a warrant, a vehicle or boat where he or she has reasonable grounds to believe that cannabis is being contained in a vehicle or boat in contravention of s.12(1).

[37] Both parties agree that s.12 of the CCA is similar to s.32 of the Liquor Licence Act, R.S.O. 1990, c. L.19, (now repealed as of November 29, 2021) and s.42 of the recently enacted Liquor Licence and Control Act, 2019, S.O. 2019. Those provisions permit police officers who reasonably believe that liquor is contained in a vehicle in an open or readily available fashion to search the vehicle and any person found in the vehicle. The similarities between the CCA and the legislation in relation to alcohol have been noted in several cases, including R. v. Burke, 2020 ONCJ 516, Q. v. Phillips, 2021 ONSC 5343, R. v. Williams, 2021 ONCJ 630 and R. v. McKenzie-Walcott, 2022 ONSC 1350.

[38] The Crown submits the intent of the CCA is to prohibit ready access to cannabis while operating or having care or control of a motor vehicle. I agree.

[39] The issue to be decided therefore is whether DC Leslie had reasonable grounds to believe that there was unpackaged or readily available cannabis within Mr. Dwarika’s truck. Reasonable grounds have both an objective and a subjective component, both of which must be present for a valid search (see: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C. R. 241 (S.C.C.) and R. v. Simpson (1993) 1993 CanLII 3379 (ON CA), 79 CCC (3d) 482 (Ont.C.A.)). The officer must have an honest belief that the offence is being committed. The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were reasonable grounds for the belief. The standard of reasonable and probable grounds lies somewhere between reasonable suspicion and proof beyond a reasonable doubt. It does not require the establishment of a prima facie case. It must, however, be more than a “hunch” based entirely on intuition.

Other Applicable Legal Principles:

[40] The police do not require reasonable and probable grounds to stop and detain a motor vehicle. Random stops have been held to be constitutional (see: R. v. Ladouceur (1990), 1990 CanLII 108 (SCC), 56 C.C.C. (3d) 22 (SCC)).

[41] S.10(b) rights are suspended or limited at the time of roadside investigations pursuant to s.1 of the Charter, because the exercise of those rights is not compatible with the operational requirements of statutory and common law police powers to stop and investigate motor vehicles (see: R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3 (S.C.C.) and R. v. Graham, 2018 ONSC 6718, 2018 CarswellOnt 19200, at para. 51).

[42] In R. v. Nolet, 2010 SCC 24, Binnie J. described the court’s analysis in cases involving searches conducted during roadside stops as follows, at para. 4:

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 the inquiry. …

Application of the Legal Principles to the Facts:

Section 8:

[43] Based on DC Leslie’s testimony, the primary information that led him to form his subjective belief that he had reasonable grounds for a CCA search was the presence of the used bong. It also mattered to him that it appeared that there had been effort made to conceal the bong’s presence. Otherwise, there were no signs of impairment on the part of Mr. Dwarika. There was no smell of marijuana. DC Leslie had not observed any erratic driving on the part of Mr. Dwarika.

[44] It cannot be disputed that the bong in this case was within Mr. Dwarika’s reach and therefore readily accessible. He was able to reach behind him to retrieve the bong and hand it to DC Leslie as the officer approached his window. Arguably, Mr. Dwarika handing the bong to DC Leslie indicates a recognition that the presence of the bong, if not voluntarily surrendered, could be problematic.

[45] It does matter that the bong had been used, as evidenced by the presence of water and the cannabis residue noted by DC Leslie. I disagree that whether or not the bong was warm is a determining factor. While a warm bong may be indicative of its recent use, the lack of warmth does not, in my view, detract from an officer’s reasonable grounds that cannabis will be found within the vehicle in contravention of s.12 (1) and (2) of the CCA.

[46] “Cannabis” is defined in the CCA as having the same meaning as in subsection 2(1) of the Cannabis Act (Canada). In the Cannabis Act (Canada), “cannabis” means a cannabis plant and anything referred to in Schedule 1 but does not include anything referred to in Schedule 2.

[47] Schedule 1 reads as follows:

1. Any part of a cannabis plant, including the phytocannabinoids produced by, or found in, such a plant, regardless of whether that part has been processed or not, other than a part of the plant referred to in Schedule 2;

2. Any substance or mixture of substances that contains or has on it any part of such a plant;

3. Any substance that is identical to any phytocannabinoid produced by, or found in, such a plant, regardless of how the substance was obtained.

[48] Schedule 2 reads as follows:

1. A non-viable seed of a cannabis plant

2. A mature stalk, without any leaf, flower, seed or branch, of such a plant

3. Fibre derived from a stalk referred to in item 2

4. The root or any part of the root of such a plant.

[49] Thus, the cannabis residue would appear to fall within Schedule 1 and not within Schedule 2. The residue would constitute “any substance…that contains” any part of a cannabis plant. Therefore, DC Leslie’s conclusion that the cannabis residue found upon the bong was technically a breach of the CCA appears well founded. I agree with the Crown that this is a viable path towards a finding that there was improperly stored cannabis readily accessible to the driver of the pick-up truck, given the bong was within easy reach of Mr. Dwarika. The CCA prohibits any cannabis from being in the vehicle unless it is within its original packaging or packed in fastened baggage or is not readily available.

[50] However, I will also address whether DC Leslie had reasonable grounds to believe that there was a CCA contravention permitting him to search the vehicle and Mr. Dwarika’s person.

[51] Mr. Dwarika relies upon R. v. Shaw, [2021] O.J. No. 2296. In that case, the officer stopped a vehicle which he believed was the subject of a “be on the lookout” announcement. After determining that the vehicle that he stopped was not the same vehicle, he nonetheless investigated the occupants of the vehicle. Importantly, the court rejected the officer’s evidence that he smelled marijuana and thus held that there were no reasonable grounds to support a CCA search.

[52] The trial judge in Shaw noted that the CCA permits marijuana to be located in baggage that is fastened or closed and stated that the officer had no right to search for cannabis within two pieces of luggage found in the trunk of the car that were fastened closed.

[53] Mr. Dwarika also relies upon R. v. McKay, [2004] O.J. No. 5915, R. v. Poulin, [2004] O.J. No. 1354, and R. v. Campbell, [1996] O.J. No. 4478, all decisions involving the Liquor Licence Act. Furthermore, following the hearing of the application, counsel provided me with the recent decision of R. v. McKenzie-Walcott, 2022 ONSC 1350.

[54] In McKay, the investigating officer testified that he detected the odour of alcohol on the breath of the accused driver, the driver’s eyes were “a little bloodshot” and he perceived that the driver had been driving evasively. It should be noted that Robinson J. was very skeptical of the evidence of the police officers. The evidence was excluded in that case on the basis that the officers lacked reasonable grounds for the Liquor Licence Act search.

[55] In Poulin, the bottle of alcohol that caused the officer to have concern was sealed. Nonetheless, the investigating officer continued his search, resulting in the discovery of a handgun and ammunition. There were glaring issues with the officer’s testimony regarding the presence of the seal such that the judge questioned its reliability. He rejected the officer’s evidence that he smelled alcohol on the driver’s breath or that the driver admitted that he had been drinking. The handgun evidence was excluded on the basis that there were no reasonable grounds to conduct the search.

[56] In Campbell, the bottle found within the accused’s vehicle was corked and there was no evidence that it could be opened without the use of an opener. Thus, the trial judge found that there was no basis upon which the officer could have formed an opinion that there was liquor readily available to any person in the vehicle. Therefore, the search was unauthorized and the fruits of the search, a handgun, were excluded.

[57] In McKenzie-Walcott, Harris J., relying upon R. v. Polashek, 1999 CanLII 3714 (ON CA), 134 C.C.C. (3d) 187, held that the smell of burnt marijuana emanating from the accused’s car, without more, was not enough to form reasonable grounds for a CCA search. Harris J. noted that when a police officer smells burnt marijuana in a car, and there is no smoke observed, it cannot generally be said when the marijuana was burnt. It could have been hours or even days before. Thus, the odour of marijuana by itself, does not confer reasonable grounds on a police officer to believe marijuana is currently in the car.

[58] Harris J. rightly noted that in R. v. Polashek, Doherty J.A. for the Court of Appeal left open the possibility that in some cases the detection of the smell of marijuana might be enough for reasonable grounds.

[59] In my view, these cases are readily distinguishable. Cases involving searches under the acts regulating liquor or cannabis in motor vehicles are contextual and fact-driven. In Shaw, McKay, Poulin, Campbell and McKenzie-Walcott, the facts did not establish reasonable grounds. In all of these cases, the court questioned the validity of the testimony of the police officers, which significantly undermined the existence of reasonable grounds. In Poulin and Campbell, the facts also demonstrated compliance with the relevant liquor legislation in that the bottles remained sealed.

[60] It has been held that liquor found within a backpack that is unzipped by 4 to 6 inches does not meet the conditions set out in s.32 of the Liquor Licence Act. The liquor would not be considered to be located in baggage that is fastened closed or not otherwise readily available to any person in the vehicle (see R. v. F. (J.), 2015 ONSC 3068).

[61] In R. v. Graham, 2018 ONSC 6718, the investigating officer noted two open bottles of liquor on the floor behind the driver’s seat, a clear violation of the Liquor Licence Act. A subsequent search located a satchel or shoulder bag within the trunk, which was accessible to the rear passenger through a folding rear seat. The satchel was searched and cocaine, scales, weapons and cash were located. Code J. stated as follows at paras. 80 and 81:

80 In my view, there are two reasons why this argument cannot succeed. The first reason is legal and the second reason is factual. The legal reason is that the warrantless search power found in s.32(5) of the Liquor Licence Act is framed as follows:

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.

It can be seen that the statutory power to search the car does not require reasonable grounds to believe that liquor was being unlawfully kept in the satchel in the trunk. It only requires reasonable grounds to believe that liquor was being “unlawfully kept in a vehicle”. At that point, the vehicle can be searched, presumably to seize any such unlawful alcohol but also to seize any relevant evidence, for example, invoices relating to purchase and sale of the alcohol or identification documents. The police in the present case had abundant grounds to believe that there was liquor “being unlawfully kept” in the Chevy Cruz (the two open bottles of vodka in the back seat area). Accordingly, they had authority to search the vehicle, including the satchel in the trunk, pursuant to s.32(5).

81 R. v. Annett (1984), 1985 CanLII 3654 (SCC), 17 C.C.C (3d) 332 (Ont. C.A.) is a case that is directly on point. The police had observed an “open six-pack of Molson Canadian Beer…on the front passenger floor of the vehicle. One bottle had its cap removed and appeared to have been partially consumed”. The police searched the trunk of the car and “located a brown vinyl bag. Inside the bag he [the searching officer] found a plastic bag containing 195 grams of cocaine”. An appeal from conviction for the cocaine offence was dismissed. Martin J.A. (Zuber and Goodman JJ.A concurring) held that the search of the vinyl bag in the trunk did not violate s. 8 of the Charter. He reasoned as follows:

Patently, the officers had reasonable grounds to believe that alcohol was being unlawfully kept or had in the motor vehicle. Accordingly, s.48 was clearly applicable and conferred upon the officers authority to search the vehicle. No point was or could be made of the fact that Constable Twigg mistakenly referred to the “Liquor Control Act” rather than the Liquor Licence Act as his authority.

In our view, the finding of the trial judge that the search was made pursuant to the provisions of s.48 and was reasonable is a finding which he was entitled to make and it is supported by the evidence. The 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. The evidence obtained pursuant to the search, in our view, was, therefore, properly admitted.

[62] In Q. v. Phillips, supra, Fowler Byrne J., in dealing with s.12 of the CCA, stated as follows at paras. 60 to 62:

60 I do not accept P.C. Emilio’s evidence that there was an open tin of cannabis on the center console of Mr. Phillips’ vehicle as well as cannabis in a cigar wrapper on Mr. Phillips’ lap. The existence of this tin was raised for the first time during this hearing. P.C. Emilio was confronted with his evidence at the preliminary hearing where he stated that upon approaching the vehicle, he saw marijuana “in the centre console, folded up in a cigar wrapper.” There is no mention of an open tin. The preliminary inquiry took place in November 2019, only seven months after the alleged events. Also, in cross-examination, P.C. Emilio admitted hat the forensics officer that assisted that day only recorded receiving six sealed tins of marijuana, which were found in the backpack containing the firearm. There is no record of an opened tin being retrieved. P. C. Amara gave evidence of only seeing loose cannabis on the dashboard, on cigar paper, and not about seeing an open tin on the centre console. Accordingly, I find that P.C. Emilio discovered loose cannabis in the vehicle, contrary to the CCA, only when Mr. Phillips showed it to him. This is, nonetheless, a violation of s.12 of the CCA. The police had the authority to search Mr. Phillips’ vehicle.

61 In these circumstances, it was reasonable for the police to search a backpack that was within arm’s reach of Mr. Phillips and which was only secured by a zipper. The modern approach to statutory interpretation requires me to read the legislation in its entire context in its ordinary sense within the scheme and intention of the act I am interpreting: Application under s.83.28 of the Criminal Code (Re), 2004 SCC 42, at para. 34. Utilizing these principles, the words “fastened closed” should be read in conjunction with “…or is not otherwise readily available…”. In J.F., McKinnon J. found that a partially unzipped backpack would not qualify as being “fastened closed” for the purpose of the LLA and that liquor found in this manner would be readily available to anyone in the car.

62 Likewise, even a fully zipped up backpack is not sufficiently “fastened” so as to be inaccessible to any occupant of a vehicle. Accordingly, when interpreting whether cannabis that is not in its original packaging is fastened closed, it should be interpreted as fastened closed in a manner that does not make it readily accessible. A zipped-up backpack, within reach of an occupant of a motor vehicle, is readily available and therefore not fastened closed within the meaning of the CCA.

[63] Factoring all of the above cases, I find that DC Leslie did have reasonable grounds to conduct a CCA search. I accept his evidence that in his experience where there is a used bong, there is frequently marijuana present. While the bong was not still warm to the touch, the presence of water was indicative of recent use and I accept DC Leslie’s evidence that he believed that there had been some effort made to conceal the bong.

[64] In my view, the presence of a used bong located within arm’s reach of the driver of a vehicle, with some evidence that it had been attempted to be concealed from view, provides a sufficient objective basis for a person standing in the shoes of this experienced police officer to reasonably believe that there is marijuana in the vehicle in contravention of the CCA.

[65] In this case, DC Leslie commenced his search in the vicinity of where he had observed the bong. There he located the duffle bag. While I am somewhat troubled with his inability to state whether the duffle bag was open or zipped up, in neither case could the duffle bag be considered to be “fastened” pursuant to the CCA. Even if it were zipped up, it would be incongruous with the objectives of the CCA if an occupant of a vehicle could have a bag containing cannabis which could easily be zipped and unzipped in close proximity to him or her. The bag could not have been fastened or DC Leslie would not have been able to open it. I conclude that the search of the duffle bag, ostensibly for readily available cannabis, was a legally justified search under the CCA.

[66] Nothing I have said should be taken to apply to an unused or “new” bong. That circumstance is not before me. However, if a driver of a motor vehicle wishes to transport a used bong such that he or she does not attract scrutiny under the CCA, the used bong must be kept in a location that is not readily accessible to any of the occupants of the vehicle, including the driver.

[67] In my view, this determination is entirely in keeping with the important objectives of the CCA--that is to regulate the safe transport of a substance, although legal, whose consumption impairs the ability of a driver to safely operate his or her motor vehicle on a highway. This includes detecting drivers who have already consumed cannabis, but also those that might consume cannabis later while operating the motor vehicle.

[68] Having concluded that DC Leslie’s search of the vehicle was justified under the CCA, it follows that the search of the duffle bag, and its contents was also legally justified (see: R. v. Graham and Q. v. Phillips, supra). Furthermore, DC Leslie was entitled to search areas in the front of the vehicle where cannabis could be “readily available to any person in the vehicle” (see: R. v. Grant, 2021 ONCJ 90 at paras 107-108)). The CCA specifically authorizes the police to search any person that was an occupant of the vehicle.

[69] I agree with the Crown’s submissions that once the search of the duffle bag uncovered further drugs, DC Leslie’s continued search of Mr. Dwarika’s vehicle was now justified on two bases. First, DC Leslie was entitled to continue his CCA search. Secondly, having arrested Mr. Dwarika for possession of drugs, he was entitled to search incidental to arrest to uncover further evidence of a crime (R. v. Caslake (1998), 1998 CanLII 838 (SCC), 121 C.C.C. (3d) 97). The search of Mr. Dwarika was also justifiable on the grounds of officer safety.

[70] In my opinion, the ongoing searches were all justified pursuant to the CCA and there were no breaches of Mr. Dwarika’s section 8 Charter rights.

Section 10(b):

[71] When DC Leslie located the drugs within the duffle bag, he appropriately recognized that Mr. Dwarika’s legal jeopardy had changed. On the evidence, I find that DC Leslie stopped his search and read Mr. Dwarika his rights to counsel. When he resumed searching the duffle bag and located evidence suggesting drug trafficking, DC Leslie once again paused his search and read Mr. Dwarika his rights to counsel.

[72] In R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, the duty upon the police was described in para. 38, as follows (per McLachlin C.J. and Charron J.):

38 Once engaged, s.10(b) imposes both informational and implementational duties on the police. The informational duty requires that the detainee be informed of the right to retain and instruct counsel without delay. The implementational obligation imposed on the police under s.10(b), requires the police to provide the detainee with a reasonable opportunity to retain and instruct counsel. This obligation also requires the police to refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach a lawyer, or the detainee has unequivocally waived the right to do so.

[73] It was held that this obligation arises at the outset of detention and must be provided immediately, “without delay”. There is a constitutional obligation upon the police to facilitate the requested access to a lawyer at the first reasonably available opportunity following a detainee’s request to speak to counsel. The arresting officer is constitutionally mandated to facilitate the requested access to a lawyer at the first reasonably available opportunity. Exceptions justifying some delay would include police or public safety, or the need to preserve evidence where there is a risk of its loss.

[74] The “without delay” requirement is crucial in protecting detainees from the risk of involuntary self-incrimination (Suberu, supra, at para. 40).

[75] In R. v. Grant, 2021 ONCJ 90, relying on R. v. Graham, it was posited that s.10(b) rights are suspended or limited at the time of roadside investigations, including under the Liquor Licence Act and CCA, pursuant to s.1 of the Charter, 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. As noted above, this appears consistent with the Supreme Court of Canada’s analysis in Orbanski, supra. However, once DC Leslie discovered the drugs within the duffle bag, the investigation had evolved into a CDSA investigation. S.10(b) was re-engaged at that juncture.

[76] I find that DC Leslie complied with the informational aspect of s.10(b) at each stage that Mr. Dwarika’s legal jeopardy worsened. However, Mr. Dwarika repeatedly indicated that he wished to contact his lawyer. This was delayed until he was taken back to the nearest police station, approximately 45 minutes.

[77] DC Leslie testified that he did not elicit, or indeed obtain, any evidence from Mr. Dwarika during this time, which I accept. This complies with the implementational component of the right to counsel that implicitly includes a duty on the police to hold off questioning until the detainee has had a reasonable opportunity to consult counsel.

[78] However, DC Leslie testified that he did not provide Mr. Dwarika the opportunity to contact his lawyer from his police cruiser due to the inability to provide him with privacy. I do not accept this explanation. It would have been, in my view, entirely possible to afford Mr. Dwarika with the requisite privacy, either within the cruiser or outside the cruiser to make a brief telephone call to his counsel, as he requested. DC Leslie did not adequately turn his mind to this.

[79] I find that DC Leslie’s failure to do so breached Mr. Dwarika’s s.10(b) right to counsel.

Section 24 Analysis:

[80] Although I have concluded that DC Leslie did not violate Mr. Dwarika’s s.8 right to be free of unreasonable search, I will proceed to conduct the s.24 analysis with respect to that alleged breach. Furthermore, I have concluded that DC Leslie did breach Mr. Dwarika’s s.10(b) right to counsel such that the s.24 analysis must be conducted in relation to that breach.

[81] S.24(2) of the Charter requires the exclusion of the evidence it if is established that, having regard to all of the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. The onus is upon Mr. Dwarika on a balance of probabilities.

[82] R. v. Grant, 2009 SCC 32 is the leading case on s.24(2) of the Charter. Therein, the Supreme Court of Canada stated that the purpose of s.24(2) is to “maintain the good repute of the administration of justice”. The question is whether a reasonable person informed of all the relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

[83] The Grant analysis is tripartite. First, the court must assess the seriousness of the Charter-infringing state conduct. Secondly, the court must assess the impact of the breach on the Charter protected interests of the accused. Thirdly, the court must consider society’s interest in the adjudication of the case on its merits.

Seriousness of the Breaches:

[84] This factor focuses on the seriousness of the breach with a view to preserving and encouraging public confidence in the courts. There is a spectrum of state misconduct running from inadvertent, technical errors to wilful or flagrant disregard for individual rights and interests. The court must not condone significant state misconduct. The more serious or deliberate the breach, the greater the need for the courts to dissociate itself from the misconduct in order to preserve confidence in the justice system and the rule of law (Grant, supra, at paras 72-75).

[85] I shall begin with the s.10(b) breach. It is my view that the breach was not serious. As described, s.10(b) rights are suspended during brief traffic stops, such as the RIDE program that was in operation here. Thus, DC Leslie was correct in concluding that there was no initial requirement to provide right to counsel. DC Leslie was very careful to provide the informational component of Mr. Dwarika’s right to counsel at every step where Mr. Dwarika’s legal jeopardy changed. His failure to provide the implementational component was due to his regard for Mr. Dwarika’s right to privacy and the distance from where the RIDE program had been set up to the police station in Listowel. The call was facilitated within a reasonable time, almost immediately, once they arrived at the station. Most importantly, DC Leslie did not attempt to elicit any information from Mr. Dwarika during the relevant time period. In fact, no evidence was obtained from Mr. Dwarika that would not otherwise have been obtained as a result of the s.10(b) breach.

[86] The s.10(b) breach was not serious in my opinion.

[87] With respect to the alleged s.8 breach, I find that DC Leslie was conscientious and attempting to properly apply the provisions of the CCA as he understood them. In my view, if there was a s.8 breach, it was a “close call”. This is not a situation in which DC Leslie used the presence of the bong as a pretext to conduct a search. I did not have any concerns with his truthfulness as a witness. I find that he was at all times acting in good faith and legitimately felt that it would be negligent if he did not conduct a CCA investigation in the circumstances he faced. He was also required to make decisions in a short period of time.

[88] I conclude that the s.8 breach, if there was one, was not serious.

[89] In my view, the seriousness of the breaches, if any, were at the lower end of the continuum such that this factor favours admission of the evidence.

Impact on the Charter-Protected Interests of the Accused:

[90] The court, at this stage, must consider the extent to which the breach actually undermined the interests protected by the rights infringed upon. An unreasonable search, for example, may impact upon the accused’s privacy interests, which can include their human dignity. An unreasonable search that encroaches on an area in which there is a high expectation of privacy, or is demeaning, is more worthy of condemnation by the court.

[91] Motor vehicles attract less privacy rights than a person’s home, for example. Ensuring public safety on our highways permits the police to conduct traffic stops for, among other things, cannabis that is easily accessible to a vehicle’s occupants. The availability of impairing drugs to the operators of motor vehicles is of the utmost concern to society, at least in part due to the terrible consequences that impaired driving can lead to.

[92] The manner of the search was not intrusive. I note that DC Leslie searched the area of the vehicle in which he had observed the bong first. He interrupted his search to provide Mr. Dwarika with his right to counsel. He ultimately sought a warrant with respect to the safe that was discovered.

[93] I cannot ignore that being stopped and subjected to a search by the police without justification impacts on a motorist’s rightful expectation of liberty and privacy in a way that it much more than trivial (per R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 31). However, in this case, there was a valid justification for the stop—there was a valid RIDE program. This is unlike Harrison where there was no semblance of reasonable grounds.

[94] The right to counsel is important in that it protects a detainee from making self-incriminating statements, for example. I reiterate that DC Leslie did not educe any evidence from Mr. Dwarika prior to affording him the opportunity to speak to counsel. The evidence obtained in the search would have been obtained in any event.

[95] This factor tilts slightly towards exclusion.

Society’s Interests in Deciding the Case on Its Merits:

[96] The third factor requires the court to consider society’s interests in conducting a trial on the merits. The exclusion of evidence under s.24(2) of the Charter most often results in the dismissal of criminal charges as the Crown is left with no case. This is a strong factor in favour of inclusion of evidence. It is well accepted that the third Grant factor almost always weighs in favour of admitting the impugned evidence.

[97] Mr. Dwarika relied upon R. v. McGuffie, 2016 ONCA 365 and R. v. Harrison, where the Court of Appeal and Supreme Court of Canada, respectively, held that if the first two Grant factors favour exclusion, the third factor will be insufficient to prevent exclusion. I have, however, held that the first and second factors do not inexorably lead to exclusion.

[98] The evidence obtained through the search is real evidence. It is very reliable evidence with respect to the offences charged. The Crown’s case entirely depends upon this evidence. Furthermore, the nature of the evidence itself must be considered. The police found prohibited weapons and a substantial quantity of crystal methamphetamine as well as some cocaine. These drugs plague our society. The offences charged are very serious in relation to these drugs.

[99] The third Grant factor, as is usual, strongly points to the admission of the evidence.

Balancing the Grant Factors:

[100] The balancing exercise mandated by s.24(2) is qualitative and not capable of mathematical precision. The evidence must be weighed on each line of inquiry to determine whether, having regard to all the circumstances, its admission would bring the administration of justice into disrepute (Harrison, at para. 36).

[101] I also am mindful of the admonition in Harrison that it is not a contest between the degree of police misconduct and the seriousness of the offence. Allowing 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’ (at paras. 37 and 40).

[102] This is a case in which I find that if there was a s.8 breach, it was far from egregious or brazen, but instead was a reasonable, even if perhaps wrong, interpretation of the provisions of the CCA by a police officer having to make decisions in real time without the benefit of legal analysis. The s.10(b) breach was, in my view, not very serious and was inconsequential to the discovery of the evidence in question. On the other hand, there is no question that the evidence is critical to the Crown’s case and society’s interests in prosecuting offences involving weapons and large quantities of drugs is considerable.

[103] In my view, Mr. Dwarika has not met his burden of persuading me that the admission of the challenged evidence would bring the administration of justice into disrepute.

Disposition:

[104] For the reasons given, I find that DC Leslie had reasonable grounds to search Mr. Dwarika and his motor vehicle pursuant to s.12(3) of the CCA. If I am in error, I would nonetheless admit the evidence obtained from the searches under s.24(2) of the Charter. The admission of the evidence in the circumstances of this case would, in my opinion, not bring the administration of justice into disrepute.

[105] I have found that there was a breach of Mr. Dwarika’s s.10(b) right to counsel in that he was unreasonably delayed an opportunity to contact his lawyer once he requested to do so. However, I also find that no evidence was obtained as a direct result of that breach. No evidence will be excluded pursuant to s.24(2) of the Charter on account of that breach.

[103] Therefore, all of the evidence obtained from Mr. Dwarika’s vehicle and his person are admissible at trial.

Application dismissed.

“Justice S. Nicholson”

Justice Spencer Nicholson

Date: August 8, 2022