COURT FILE NO.: CR-21-0057-0000

DATE: 2022-09-22

Superior Court of Justice – Ontario

B E T W E E N:

HIS MAJESTY THE KING

Ryan Morrow, for the Crown

• and -

WAHAI KANNEH

Ari Goldkind, for the Defence

HEARD: May 24, 25, 26, June 20, and July 15, 2022

REASONS FOR RULING ON S. 24(2) APPLICATION

Petersen J.

Introduction

[1] On the afternoon of November 21, 2020, Wahai Kanneh was driving a Kia Forte on Highway 407 in Burlington when he was pulled over by an Ontario Provincial Police officer because the numbers on his licence plate were obstructed by mud. What began as a routine roadside stop for apparent violations under the Highway Traffic Act, R.S.O. 1990, c. H.8 evolved into a much more serious investigation into possible offences under the Cannabis Control Act, 2017, S.O. 2017, c. 26, Sched.1; the Criminal Code of Canada, R.S.C., 1985, c. C-46; and the Controlled Drugs and Substances Act, S.C. 1996, c. 19.

[2] Mr. Kanneh was detained by the side of the road for over two hours. During that time, he made inculpatory statements to the police before he was afforded rights to counsel. The investigating officer conducted progressively intrusive searches of his person and vehicle. The officer discovered pills that were later determined to be fentanyl, a loaded restricted handgun, ammunition, a professional data card reader, four branded data-strip cards and twenty blank data-strip cards. Mr. Kanneh was ultimately charged with multiple criminal offences, including several firearms offences, possession of a controlled substance, possession of falsified credit cards, and unauthorized possession of credit card data.

[3] Prior to his trial, Mr. Kanneh applied for a declaration that his rights guaranteed by ss. 8, 9 and 10 of the Canadian Charter of Rights and Freedoms were violated and for an order pursuant to s. 24(2) of the Charter excluding the evidence obtained by the police. I dismissed his Application. These are the reasons for my ruling.

Credibility Findings

[4] The only witness who testified during the Application hearing was the investigating officer, Constable Christopher Lamb. The Crown also adduced evidence by way of documentary exhibits.

[5] Constable Lamb was cross-examined at length, including on the issue of inconsistencies between his testimony at the preliminary inquiry and his testimony before me. The inconsistencies related to the officer’s evolving understanding of the law and not to his factual account of what transpired during the roadside stop. As discussed below, the inconsistencies were explained satisfactorily.

[6] With respect to the facts of what transpired, I accept Constable Lamb’s evidence in its entirety. I found him to be a reliable historian. He occasionally needed to refer to his contemporaneous notes to refresh his memory of certain details, but he demonstrated an independent, reasonably comprehensive, and coherent recollection of the incident. Moreover, the documentary record corroborated the accuracy of significant elements of his account, including the timeline of the events.

[7] I also found Constable Lamb to be an honest witness. He was precise about the facts of which he was confident and was upfront about his lack of certainty when his memory was unclear. He did not overstate his evidence to try to undermine the Defence position. He was cross-examined at length with a tenor that clearly challenged his credibility, yet he did not become defensive or argumentative. Furthermore, his answers were responsive to the questions asked. He did not obfuscate or attempt to evade answering difficult questions. On the contrary, he was refreshingly forthright and candid. Notably, he readily made concessions of facts that were not in the Crown’s favour.

[8] Constable Lamb did not resist admitting mistakes that he made on the day in question, which the Crown concedes resulted in an infringement of the Applicant’s s. 10(b) Charter rights to counsel. Nor did the officer downplay those errors. He acknowledged that he had an incorrect understanding of the law at the time of his interaction with Mr. Kanneh and on the date when he testified at the preliminary inquiry. His candour and humility in this regard were relevant factors in my positive assessment of his credibility.

[9] The officer’s testimony was plausible, internally consistent, and supported in part by documentary records, the accuracy of which are not contested. Finally, there was no contradictory evidence as to the substance of what happened at the roadside.

[10] For all these reasons, I have accepted Constable Lamb’s account of the way in which the roadside stop was conducted. The only remaining issues for me to decide are the extent to which Mr. Kanneh’s Charter rights were violated and whether the evidence gathered by the police should be excluded from his trial.

Analysis of Charter Claims

[11] The following sections of the Charter are relevant to the issues in dispute:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

2. Everyone has the right to be secure against unreasonable search or seizure.

3. Everyone has the right not to be arbitrarily detained or imprisoned.

4. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right; and

(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

The Initial Traffic Stop was Lawful

[12] The Applicant acknowledges that the roadside stop itself was lawful. The police have statutory authority to stop and briefly detain a motorist under s. 216(1) of the Highway Traffic Act if they have a “reasonable suspicion” that the driver is violating a provincial regulatory statute such as the Highway Traffic Act: Brown v. Durham Regional Police Force (1998), 1998 7198 (ON CA), 43 O.R. (3d) 223 (Ont. C.A.), at para. 54; R. v. Graham, 2018 ONSC 6718, at paras. 36, and 45-47. This detention is, however, circumscribed by its purpose. It must be brief unless other grounds are established that permit a further detention.

[13] In this case, Constable Lamb testified that he flagged Mr. Kanneh’s vehicle because he observed it travelling on Highway 407 with thick mud that appeared to have been streaked by hand across the licence plate and rear portion of the trunk. The Crown adduced an entry-gate photograph of the car captured by a camera associated with the highway toll system. It shows the unusual pattern of mud on the rear of an otherwise clean vehicle. The mud obscures the licence plate.

[14] Section 13(2) of the Highway Traffic Act stipulates that every licence plate shall be kept free from dirt and obstruction. Section s.13(3.1) of that Act states that a licence plate shall not be obstructed by any material that prevents the entire plate, including the numbers, from being identified by an electronic toll system. When Constable Lamb observed the mud on the Kia Forte, he reasonably suspected that the driver may have intentionally dirtied the license plate to evade the highway’s toll system.

Mr. Kanneh was Detained

[15] The Crown concedes that, once the Kia Forte was pulled over by police and for the entire duration of the roadside stop, Mr. Kanneh, the driver of the vehicle, was “detained” within the meaning of ss. 9 and 10 of the Charter: R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3 at para. 2; Graham, at para. 37.

The Alleged Charter Breaches

[16] The Applicant submits that there were multiple sequential breaches of his constitutional rights during the roadside detention, both prior to and subsequent to his arrest. The alleged breaches are summarized as follows:

➢ s. 10(a) – The officer did not promptly advise Mr. Kanneh of the evolving reasons for his ongoing detention.

➢ s. 9 – Mr. Kanneh’s detention became arbitrary when it continued for the purposes of conducting baseless investigations under the Cannabis Control Act and the Criminal Code.

➢ s. 10(b) – The officer did not inform Mr. Kanneh of his right to counsel without delay and did not facilitate an opportunity for him to consult counsel when requested.

➢ s. 8 – The officer conducted a warrantless and groundless search, purportedly pursuant to the Cannabis Control Act. That unreasonable search resulted in a seizure of items from Mr. Kanneh’s person, which in turn resulted in a charge under the Controlled Drugs and Substances Act and a further search incident to that arrest. The legality of the second search is contingent on the legality of the first, so both searches are unconstitutional.

[17] I will address these alleged breaches in chronological order.

The First 27 Minutes (3:53 PM to 4:20 PM)

[18] Constable Lamb pulled Mr. Kanneh’s vehicle over on the right shoulder of Highway 407 at approximately 3:53 PM. He exited the police cruiser and approached Mr. Kanneh’s Kia Forte from behind. He went to the passenger side to avoid proximity to moving traffic. While walking up to the vehicle, he noticed that it had very dark tinted windows – so dark that he was unable to see inside while standing right outside the car.

[19] He knocked on the front passenger window. Mr. Kanneh, who was seated in the driver’s seat, opened the front passenger door. Constable Lamb was taken aback by this. He explained that it is uncommon for drivers to open a door during a traffic stop. He asked Mr. Kanneh why he did not simply lower the passenger window. Mr. Kanneh responded that he had recently had the windows tinted and therefore could not lower them. Constable Lamb believed this explanation because he observed green tape over the open/close switch for the window on the inside passenger side door.

[20] The front passenger seat of the car was unoccupied. Due to the dark tinting on the windows, Constable Lamb was unable to see into the rear of the vehicle. For his own safety, he wanted to know whether there was anyone in the back seat. He asked if he could open the rear passenger door and take a look. Mr. Kanneh agreed, and Constable Lamb did so. He saw nothing of concern and closed the rear door. He then informed Mr. Kanneh of the reason for the stop, namely the suspected Highway Traffic Act violations. Based on the totality of the evidence, I infer that this occurred around 3:55 PM.

[21] Defence counsel argues that Constable Lamb’s request to open the rear door before even telling Mr. Kanneh why he was pulled over is evidence that the officer was investigating suspected criminal activity from the outset. I am not persuaded by this argument. I accept Constable Lamb’s testimony that, as a lone officer conducting a traffic stop, he was being cautious about his safety and simply wanted to know how many occupants were in the vehicle. The unexpected opening of the passenger side front door startled him and likely heightened his vigilance about his safety. I believe his evidence that he did not, at that point in the chronology, suspect any criminal activity. He was simply conducting a routine roadside stop for apparent Highway Traffic Act violations.

[22] In the circumstances, Constable Lamb’s momentary delay in informing Mr. Kanneh of the reason for stopping his vehicle does not give rise to an infringement of s. 10(a) of the Charter: R. v. Gonzales, 2017 ONCA 543, at para. 128. The officer had legitimate concerns about his safety, which he was entitled to address: R. v. Mellenthin, 1992 50 (SCC), [1992] 3 SCR 615, at para. 19. The requisite information was conveyed promptly, as required by s. 10(a).

[23] After explaining the reason for the traffic stop, Constable Lamb requested Mr. Kanneh’s driver’s licence and the ownership and insurance papers for the vehicle. Mr. Kanneh produced an Alberta driver’s licence and Alberta health card. Constable Lamb verified that the photograph on the driver’s licence matched Mr. Kanneh’s appearance. Mr. Kanneh was initially unable to locate the vehicle documents in the centre console. He told Constable Lamb that the car was a rental from Alberta and said he had “gone off-roading” with it – an implied explanation for the mud on the rear of the vehicle. Mr. Kanneh then searched inside the glove box. He produced a stack of documents, including a Hertz rental agreement.

[24] By this point in time, there was a secondary investigative purpose to Mr. Kanneh’s detention. Constable Lamb testified that, as soon as the front passenger door was opened, he detected the odour of stale cannabis emanating from inside the vehicle. He distinctly remembered that the smell was not fresh, but rather was that of burnt cannabis.

[25] Constable Lamb further testified that, while Mr. Kanneh was looking for documents in the glove compartment, he observed green and brown cannabis shake in the handle well of the front passenger door, and on the floor between the passenger seat and the door. He testified that, based on his experience, such small pieces commonly spill and fall when someone rolls cannabis.

[26] Defence counsel urged me to reject the officer’s testimony about the odour of cannabis and the presence of cannabis shake. I am cognizant of the “idiosyncratic and vague” quality of “olfactory evidence” and of its susceptibility to fabrication by police officers who have no other basis to justify detaining or arresting someone: R. v. Tshilombo, 2021 ONCJ 478, at para. 12; R. v. Polashek (1999), 1999 3714 (ON CA), 134 C.C.C. (3d) 187, at para. 13. In the circumstances of this case, however, I have concluded that Constable Lamb was truthfully relaying his observations.

[27] At the preliminary inquiry, Constable Lamb testified that he recalled smelling the odour when he “initially approached” the vehicle. He was cross-examined about that prior statement. Defence counsel suggested that it was not plausible for him to have smelled the cannabis outside, as he walked up to the vehicle, before the car door was opened. Constable Lamb denied that was what he meant by the statement, “when I initially approached.”

[28] Defence counsel submits that Constable Lamb made inconsistent statements about when the odour was first detected. I reject this submission. Based on the transcript from the preliminary inquiry and Constable Lamb’s testimony before me, I find that the statement he made during the preliminary inquiry was intended to specify that he first smelled the odour of cannabis during his initial interaction with Mr. Kanneh, as opposed to during one of the subsequent interactions. He walked back to his police cruiser and then returned to Mr. Kanneh’s vehicle more than once during the roadside stop. His evidence is that he smelled the cannabis each time he attended at the side of the vehicle, but that he first detected the odour when the passenger door was opened during his initial interaction with Mr. Kanneh. His testimony before me was not materially different from the prior evidence he gave on this point at the preliminary inquiry. I accept his evidence as credible.

[29] Constable Lamb did not seize the cannabis shake as evidence, nor even photograph it with his cell phone. No physical evidence of the shake was adduced by the Crown at trial. The failure to gather this evidence is obviously not best police practice, particularly since the shake formed part of the officer’s grounds for conducting a search under the Cannabis Control Act, which in turn resulted in the seizure of items that formed grounds for arrest under the Controlled Drugs and Substances Act. Clearly, Constable Lamb ought to have collected the cannabis shake as evidence. However, based on his overall credibility, I am not prepared to infer from the lack of physical evidence that he lied under oath about having observed pieces of (what he believed was) cannabis shake in the vehicle.

[30] The absence of physical evidence of the cannabis shake is a weakness in the Crown’s case, but it does not give rise to a reasonable inference that the officer engaged in perjury. Considering how the events unfolded, including the officer’s subsequent discovery of pills that he reasonably believed were oxycodone and of a loaded handgun in the vehicle, his attention was understandably diverted to other matters. As the trial judge noted in the factually similar case of R v. Williams, 2021 ONCJ 630 (at para. 68), “the failure to seize the marihuana or take photographs of it is completely explained by the turn of events that occurred.” The shake became of relatively peripheral concern as Constable Lamb concentrated on the primary tasks of collecting and preserving evidence of serious criminal offences, and of ensuring that Mr. Kanneh was properly arrested and taken into custody.

[31] Defence counsel argues that Mr. Kanneh was entirely compliant throughout the roadside stop, so it could not have been the volatility of the situation that led the officer to overlook the important task of collecting or at least documenting the evidence of cannabis shake. I agree that it was not a volatile situation, but it was nevertheless a dynamic and rapidly escalating situation in which a routine traffic stop transformed into an investigation into much more serious offences. In the circumstances, it stands to reason that Constable Lamb’s attention was no longer focused on the cannabis shake.

[32] Moreover, no charges were laid under the Cannabis Control Act. Constable Lamb initially suspected a possible violation of s.12 of that Act, which states:

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.

(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.

[33] However, no cannabis other than the shake was located inside the car. Constable Lamb explained that there was insufficient shake to pick up and smoke, so he felt that a charge of cannabis-readily-available would be weak. The necessity of collecting the shake as evidence was therefore diminished in his mind. He overlooked the significance of the shake as evidence of his grounds to conduct a search.

[34] The officer’s failure to collect or at least photograph the shake is regrettable but it is, in all the circumstances, understandable. It is not a basis to doubt the veracity of his testimony. I believe his evidence that he saw what looked like cannabis shake.

[35] At this point in the chronology, Constable Lamb returned to his cruiser to examine Mr. Kanneh’s identification and vehicle documents. I infer from the totality of the evidence that this occurred around 4:04 PM. He reviewed the papers and did the usual computer searches to ensure that the driver was properly licensed and that the vehicle insurance had not expired.

[36] Constable Lamb then examined the Hertz rental car agreement. He verified that the licence plate on the vehicle matched the rental agreement and that the agreement was in Mr. Kanneh’s name. It had an effective date of June 26, 2020. It showed that the car had been picked up at the VIA Rail station in Edmonton and was due to be returned to the same location on July 3, 2020. Constable Lamb noted that it was close to five months overdue. That fact, combined with the oddity of a person paying to have windows tinted on a rental vehicle, and the fact that Mr. Kanneh was three provinces away from where the vehicle was supposed to have been returned, raised suspicions in Constable Lamb’s mind about possible auto theft.

[37] Constable Lamb testified that the mud on the car’s licence plate then took on a different significance in his mind. It occurred to him that Mr. Kanneh may have applied the mud not simply to evade the highway toll system, but possibly to avoid detection of a stolen vehicle. He decided to take steps to investigate this suspected criminal offence.

[38] While seated in his cruiser, he conducted a further search of a police database and learned that the rental car had not been reported stolen. He felt that he should nevertheless check that Mr. Kanneh was authorized to be operating the vehicle, since the rental agreement showed that return of the car was months overdue.

[39] He called three phone numbers that appeared on the Hertz rental agreement. Cell phone records confirm that the first call was made at 4:07 PM. That number was out of service. The second call connected to a Hertz location that was closed. The third call, made at 4:11 PM, resulted in a voicemail greeting and Constable Lamb was placed on hold. Phone records show that the call lasted just over 20 minutes; for most of that time, he was on hold.

[40] After a couple minutes on hold, he exited the police cruiser with his cell phone in his vest (still on hold) and returned to the passenger side of Mr. Kanneh’s vehicle. He testified that he wanted Mr. Kanneh to understand that it would be a bit longer than a regular traffic stop. He said he wanted to share his observations with Mr. Kanneh because, in his experience, it helps to keep the situation calm if everyone understands the direction in which things are going.

[41] He advised Mr. Kanneh (at approximately 4:13 PM) that he was checking with Hertz to make sure that Mr. Kanneh could still operate the motor vehicle because it was so severely overdue. Mr. Kanneh then stated that he rented the car in Alberta a few months earlier, drove it to Ontario and was unable to pay for the extra time because of a problem with his credit card. Constable Lamb found it concerning that Mr. Kanneh was unable to pay for the extra time because that meant the vehicle was probably not still rented to him, and it made the suspected auto theft more likely.

[42] Constable Lamb next told Mr. Kanneh (at approximately 4:14 PM) that he smelled cannabis in the car and could see pieces of cannabis inside the vehicle. Mr. Kanneh then stated that a friend of his had rolled and smoked a joint in the front passenger seat and left the joint in the centre console of the car. Constable Lamb thought this utterance made it more likely that there was cannabis readily available to Mr. Kanneh in the vehicle and more likely that the cannabis was not sealed in its original packaging.

[43] When Mr. Kanneh made this second inculpatory remark, Constable Lamb interjected and cautioned him that he was not obliged to say anything and that if he did, his statements could be used as evidence against him.[^1] Mr. Kanneh made no further self-incriminating utterances that day.

[44] Constable Lamb informed Mr. Kanneh of his intention to conduct a search pursuant to the Cannabis Control Act. He felt it was not safe to do so alone, particularly at the side of a busy highway, so he waited for back-up. Another officer, Constable Meyer, arrived soon thereafter at 4:16 PM. Constable Lamb briefed the second officer and gave him his cell phone, which was still on hold with Hertz. He asked Constable Meyer to follow up with that aspect of the investigation while he conducted a search for cannabis-readily-available.

[45] The cannabis search began at 4:20 PM. Mr. Kanneh was not given his rights to counsel until 4:48 PM, after pills were discovered by Constable Lamb during the cannabis search and Mr. Kanneh was arrested (at 4:46 PM) for possession of a controlled substance.

Alleged Breaches of s. 10(a) of the Charter

[46] The Applicant argues that he was not promptly informed of the reasons for his ongoing detention prior to his arrest, apart from the initial reason for the traffic stop. Defence counsel submits that the additional reasons for detention – namely, the suspected unlawful storage of cannabis in the vehicle and the suspected auto theft – both materialized very early during Constable Lamb’s first interaction with Mr. Kanneh. Crown counsel submits that the auto theft investigation did not crystallize until later during the roadside stop, when Constable Lamb returned to his cruiser and examined the Hertz rental agreement.

[47] Constable Lamb conceded during his cross-examination that smelling the odour of burnt cannabis and observing the presence of cannabis shake added a new dimension to Mr. Kanneh’s situation. He acknowledged that, based on those observations, he formed the intent to investigate the suspected unlawful storage of cannabis in the vehicle, in addition to the suspected Highway Traffic Act offences that had initially prompted the traffic stop. The reasons for Mr. Kanneh’s detention therefore evolved, in that moment (around 3:58 PM), from a simple Highway Traffic Act roadside stop to include investigative detention for a potential Cannabis Control Act violation.

[48] Constable Lamb did not immediately share his observations with Mr. Kanneh or tell Mr. Kanneh that he suspected there was cannabis readily available in the vehicle. He waited until approximately 4:14 PM to do so. During his testimony, he provided no explanation for this 16-minute delay. I agree with Defence counsel that Mr. Kanneh’s s. 10(a) right to be informed promptly of the new reason for his ongoing detention was thereby violated.

[49] There is a temporal aspect to s. 10(a) of the Charter. The wording of the section imposes the duty to inform at a discrete point in time, namely “promptly” upon arrest or detention. There is no requirement that the police convey the requisite information more than once, unless the reason for arrest or detention changes: R. v. Evans, 1991 98 (SCC), [1991] 1 S.C.R. 869, at paras. 26-32; R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 22. In cases of investigative detention, where the focus of the investigation shifts, s. 10(a) requires that police advise the detainee of the change “very shortly after” the detainee becomes the suspect of a new offence: Evans, at para. 29. This is because s. 10(a) is an adjunct to the right to counsel guaranteed by s. 10(b): Evans, at para. 26; Gonzales, at para. 124. An individual can only exercise their right to counsel meaningfully if they know the extent of their jeopardy: R. v. Black, 1989 75 (SCC), [1989] 2 S.C.R. 138, at para. 30; Gonzales, at para. 124.

[50] The third reason for Mr. Kanneh’s ongoing detention, namely the investigation of possible auto theft, did not arise at the same time as the cannabis investigation. Constable Lamb testified that, when he learned the car was rented, he found it strange that a person would have paid to have the windows tinted on a rental car, but he did not give it much thought at that moment. He also testified that, when the vehicle papers were handed to him, he glanced at the rental agreement but did not examine it closely while standing on the side of the road. It was only later, after he returned to his cruiser, that he reviewed the Hertz agreement in detail and noticed the long overdue status of the rental car. It was then that the significance of the tinting of the windows “clicked” for him, and the mud streak on the rear of the vehicle took on a more sinister significance as evidence that the vehicle might be stolen. At that point, which I infer was around 4:06 PM, the reasons for Mr. Kanneh’s detention expanded to include investigative detention for a suspected criminal offence.

[51] The evidence shows that Constable Lamb advised Mr. Kanneh of this additional reason for his detention at about 4:13 PM, as soon as he returned to the Kia Forte for a second time. Constable Lamb was still on hold with Hertz, but he recognized that Mr. Kanneh should not be required to wait an extended period without knowing why the roadside stop was taking longer than usual. He therefore informed Mr. Kanneh of the developments rather than waiting until he connected with Hertz. He did so promptly, as required by s. 10(a).

[52] Defence counsel argues that Constable Lamb did not adequately convey the new criminal jeopardy that Mr. Kanneh was facing. When determining whether there has been compliance with s. 10(a) of the Charter, the substance of what the detainee can reasonably be expected to have understood, rather than the formalism of the precise words used by the police, governs the analysis. Section 10(a) does not require that detainees be told of the technical charges they may ultimately face: R. v. Roberts, 2018 ONCA 411, at para. 78. The question is whether what the detainee was told, viewed reasonably in all the circumstances of the case, was sufficient to: (i) permit them to make a reasonable decision about whether to submit to detention, and (ii) meaningfully exercise their right to counsel under s. 10(b): Evans, at para. 30; Gonzales, at paras. 122-125. The police are not required to employ any specific legal terms but must convey, in clear and simple language, the substance of the reason(s) for the person’s detention: Graham, at para. 49; Gonzales, at para. 122.

[53] In this case, Constable Lamb conveyed the essence of the reason for Mr. Kanneh’s ongoing detention. Based on the words he used, Mr. Kanneh could reasonably be expected to have understood that the police were now investigating whether he had unilaterally and unlawfully decided to keep the rental car for months without the rental agency’s permission. He could reasonably be expected to have understood that he was now under investigation for a potential theft of the vehicle, which was a much more serious offence than the Highway Traffic Act infraction pertaining to mud on his licence plate. There was therefore no breach of s. 10(a) in connection with the criminal aspect of Mr. Kanneh’s investigative detention.

Alleged Breaches of s. 10(b) of the Charter Prior to Arrest

[54] Defence counsel argues that Mr. Kanneh was entitled to be given his s. 10(b) rights to counsel as soon as the reason for the roadside detention evolved beyond a suspected Highway Traffic Act violation to include investigation of a suspected Cannabis Control Act violation, and again when the investigation expanded to include a possible Criminal Code violation for auto theft.

[55] The Crown concedes that a s. 10(b) breach occurred but disagrees with the Defence about when it materialized. Crown counsel argues that the well-established suspension of s. 10(b) rights during traffic stops applies in the context of an investigation and search pursuant to the Cannabis Control Act: Williams at paras. 74-75; R. v. Tully, 2022 ONSC 1852, at paras. 154-155. The Crown argues that the suspension of s. 10(b) also extended to cover part of the roadside criminal investigation. The Crown’s position is that the breach of s. 10(b) was not triggered as soon as the purpose of the roadside stop transitioned into a cannabis investigation or a criminal investigation, but rather when the duration of the Applicant’s detention ceased to be transitory. The Crown does not identify the precise point in the chronology when this occurred.

[56] Section 10(b) of the Charter contains both an informational component (requiring police to advise detainees of their right to counsel) and an implementational component (requiring police to allow detainees to exercise their right to consult counsel). The implementational component implicitly includes a duty on the police to hold off questioning until the detainee has had a reasonable opportunity to consult counsel: Sinclair, at para. 27.

[57] The rights guaranteed by s. 10(b) intersect with and reinforce the right to silence protected by s. 7 of the Charter: R. v. Herbert, 1990 118 (SCC), [1990] 2 S.C.R. 151, at paras. 107-109; Sinclair, at para. 29. One of the concerns that has animated the Court’s interpretation of s. 10(b) is a recognition of the need to mitigate the unfairness that prevails when the police understand a detainee’s right to choose whether to speak to them, but the detainee lacks that understanding: R. v. Lafrance, 2022 SCC 32, at para. 71. Properly and purposively interpreted, s. 10(b) guarantees every detainee an opportunity to obtain legal advice relevant to (among other things) the choice about whether to cooperate with a police investigation.

[58] Ordinarily, s. 10(b) affords a detainee a single consultation with a lawyer. However, in exceptional circumstances, a further opportunity to consult a lawyer is constitutionally mandated. This will arise where developments in the police investigation render it necessary to ensure that the detainee is able to make a well-informed choice about whether to speak to the investigators. There are a variety of circumstances in which this may occur, such as, for example, where there is a change in the jeopardy facing the detainee: Sinclair, at paras. 47 and 54.

[59] These constitutional rights are subject to reasonable and demonstrably justifiable limits pursuant to s. 1 of the Charter. Such limits include the brief suspension of s. 10(b) rights to counsel in circumstances where the immediate exercise of those rights is incompatible with the operational requirements of statutory and common law police powers to stop a motor vehicle for road safety purposes, such as to investigate a suspected traffic violation, the sobriety of the driver, or the mechanical fitness of the vehicle: Orbanski, at paras. 41-51; R. v. Harris, 2007 ONCA 574, [2007] O.J. No. 3185 (QL), 87 O.R. (3d) 214 (Ont. C.A.), at paras. 45-49; and Graham at para. 51. A brief suspension of s. 10(b) rights is also constitutionally permissible when it is due to legitimate concerns for officer or public safety: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 42; R. v. Wilson, 2015 ONSC 6687, at para. 61.

[60] I agree with the Crown that a roadside investigation under the Cannabis Control Act is analogous to an investigation under other regulatory statutes, such that a brief suspension of s. 10(b) Charter rights will apply. For example, in Williams, the driver of a vehicle was pulled over by police because the validation ticket on his licence plate had expired. The officer asked him whether he had been smoking marijuana because a strong odour of cannabis was detected emanating from the vehicle. No rights to counsel were administered prior to the questioning. The trial judge found that these facts were indistinguishable from those in numerous other cases in which no s. 10(b) breach was found, despite the police questioning a driver (without rights to counsel) about their consumption of alcohol upon forming a reasonable suspicion that the driver may be impaired: Williams, at paras. 74-75.

[61] Similarly, in R. v. Sappleton, 2021 ONSC 430, at para. 39, the trial judge held that questioning a driver (without rights to counsel) who has been pulled over for a traffic violation does not constitute a breach of s. 10(b) if the questions are directed at determining whether a search of the vehicle for cannabis is warranted.

[62] In this case, Constable Lamb did not suspect that Mr. Kanneh was impaired. He did not question Mr. Kanneh about cannabis consumption or about the state of any cannabis inside the vehicle (e.g., whether it was unopened in its original packaging). Mr. Kanneh volunteered information about a friend who had rolled and smoked a joint in the passenger seat. This was a spontaneous utterance, but Constable Lamb would have been acting lawfully had he elicited that information during his first interaction with Mr. Kanneh by asking questions about the source of the cannabis odour or about the state of any cannabis stored in the vehicle.

[63] The jurisprudence clearly establishes that a temporary suspension of rights to counsel is justifiable in such circumstances pursuant to s.1 of the Charter. But the suspension must be brief and is only reasonable in so far as it can be justified by concerns for officer or public safety, or by the operational requirements of the exercise of statutory and common law police powers to stop a motor vehicle for road safety purposes: Suberu, at para. 42; Orbanski, at paras. 45-60; Wilson, at paras. 61-66; Graham, at para. 51; R. v. Grant, 2021 ONCJ 90, at para. 127 (“Grant (ONCJ)”); and R. v. Commisso, 2020 ONSC 957, at paras. 36 and 44. The extent to which a suspension of s. 10(b) rights can continue to be justified under s.1 of the Charter, where the purpose of the roadside detention transitions from a Highway Traffic Act violation to the investigation of a different offence, is a context-specific issue that will need to be determined based on the specific facts of each case.

[64] The Crown relies on the decision in Grant (ONCJ) to support its submission that a suspension of s. 10(b), which is triggered by a lawful traffic stop, continues to be constitutionally justified after a roadside detention evolves into a search pursuant to the Cannabis Control Act. In Grant (ONCJ) during a routine traffic stop, a police officer decided to conduct a sobriety check on the driver because he smelled the odour of burnt cannabis emanating from the car and noticed cannabis shake on the centre console. During the sobriety check, the driver admitted that he had consumed drugs two hours earlier and produced a baggy from his pocket, stating that it was “just weed.” The driver displayed no signs of impairment, but the officer decided to search the vehicle and the other occupants of the vehicle based on a suspected breach of s. 12(1) of the Cannabis Control Act. Neither the driver nor any of the other occupants were given rights to counsel. Ultimately, one of the passengers was found to be in possession of a handgun and a variety of illicit drugs were discovered inside the vehicle.

[65] The trial judge in Grant (ONCJ) found that the ongoing suspension of the accused’s rights to counsel during the search “fell within the scope of reasonable and necessary measures for road safety purposes” (para. 131) and constituted a justifiable limit on their s. 10(b) rights. Although the facts in Grant (ONCJ) bear some similarity to the facts of this case, there are two critical differences.

[66] First, the length of the delay in providing rights to counsel was much shorter in Grant (ONCJ). The trial judge held (at para. 130) that it was unnecessary to decide “the extent to which a suspension of 10(b) is a justifiable limit to conduct a search pursuant to [Cannabis Control Act] and for how long” because,

From the moment the roadside stop transitioned to a search pursuant to [Cannabis Control Act] to the time the gun was found, was likely inside of five minutes [footnote omitted]. Once the gun was seized, the defendants were immediately arrested and immediately read their rights to counsel.

[67] In contrast, Mr. Kanneh was detained for 55 minutes before his rights to counsel were administered.

[68] The second major distinction between this case and Grant (ONCJ) is the fact that the roadside detention transitioned into both a cannabis investigation and an auto theft investigation. The criminal investigation was unrelated to any road safety concerns; it was not, for example, connected to a drinking and driving offence.

[69] Rights to counsel should have been administered in this case around 4:15 PM, promptly after Constable Lamb informed Mr. Kanneh of the criminal investigation and advised Mr. Kanneh of his intention to search the vehicle for cannabis-readily-available. Although the officer needed to wait for back-up before conducting the search, there is no evidence to suggest that his safety would have been jeopardized by giving Mr. Kanneh an opportunity to consult with counsel before the second officer arrived on scene.

[70] In that regard, the facts of this case are also distinguishable from those in Sappleton, another decision cited by the Crown. In Sappleton, a lone officer stopped a vehicle for a traffic violation then discovered, while running standard checks on the driver, that the driver had an outstanding charge of assault, was in breach of the terms of his recognizance, and was the subject of a Special Interest Police notification cautioning that he was believed to be in possession of a firearm. In those circumstances, the trial judge held (at paras. 32-36) that the potential imminent threat to officer safety justified extending the suspension of s. 10(b) until: (i) a second officer arrived on scene, (ii) the officers questioned the driver about the presence of a firearm on his person, and (iii) the driver complied with the officers’ direction to exit the vehicle.

[71] In this case, the failure for 55 minutes to inform Mr. Kanneh of his right to counsel and to afford him an opportunity to exercise that right went beyond the scope of reasonable and necessary measures for road safety purposes, or for officer and public safety purposes. It did not constitute a justifiable limit on his rights under s. 10(b) of the Charter.

The Searches and Arrests (4:20 PM to 6:01 PM)

[72] Before reviewing the parties’ submissions and analyzing the issues under ss. 8 and 9 of the Charter, I will briefly summarize what happened during the latter part of the roadside stop.

[73] As noted previously, the initial cannabis search commenced at 4:20 PM. Constable Lamb began by advising Mr. Kanneh of the search authority under s. 12(3) of the Cannabis Control Act, then said he intended to conduct a search for cannabis readily available. He asked Mr. Kanneh to exit the vehicle, empty his pockets and turn them inside out. Mr. Kanneh complied. No cannabis was found. He then conducted a pat-down search of Mr. Kanneh, feeling for objects that could contain cannabis. He felt a hard cylinder-like object in Mr. Kanneh’s front left chest pocket. He asked Mr. Kanneh to remove the object and Mr. Kanneh complied.

[74] The object was a plastic pill bottle commercially labelled as “Aleve Liquid Gels”. It was closed but not sealed. Constable Lamb opened the bottle because he thought it might contain either fresh cannabis or rolled cannabis joints, which would have been readily available to Mr. Kanneh while he sat in the driver’s area of the vehicle. Inside the bottle, Constable Lamb observed pressed white pills that did not match the description of “liquid gels” printed on the bottle. He thought that this was a red flag that warranted further investigation, so he placed the bottle with the pills inside his police cruiser and then resumed the search for cannabis-readily-available.

[75] It should be noted that, although the Applicant did not raise this as an infringement of his s. 10 Charter rights, Constable Lamb conceded during his cross-examination that he ought to have advised Mr. Kanneh, at that point, that he was now also under investigative detention for a possible breach of the Controlled Drugs and Substances Act, and ought to have administered rights to counsel. This was, in my view, a proper concession.

[76] Constable Lamb then commenced a search of the Kia Forte. He was careful only to search areas that would have been within reach of the driver’s seat because Mr. Kanneh was the sole occupant of the vehicle. During the search, he once again observed the green and brownish pieces of what he believed to be cannabis shake on the floor and in the door handle area of the front passenger side. He also noticed ash in the centre console area, which aligned with the odour of burnt cannabis that he was still detecting, and with Mr. Kanneh’s statement that someone had earlier smoked a joint inside the vehicle.

[77] On the rear passenger seat of the vehicle, Constable Lamb saw a backpack with two large compartments that were zippered shut and two smaller compartments that were open. Toiletries inside the open compartments were in plain view. He did not open the closed compartments and did not search for cannabis inside any of the bag’s compartments because he felt that, as a single occupant driver of the vehicle, it would have been difficult for Mr. Kanneh to reach back and access the contents of the bag. Even if the bag contained cannabis, Constable Lamb was of the view that it would not have been readily available to Mr. Kanneh, so the transportation of cannabis in that fashion would not violate s.12 of the Cannabis Control Act.[^2]

[78] Constable Lamb completed the search and advised Mr. Kanneh that no cannabis was found. He then returned to his police cruiser to examine the pills in the plastic Aleve bottle. He donned gloves to do so. The pills were white, hard pressed, and marked on both sides – one side bore the letters TEC and the other side had a single straight line dissecting the pill. Based on his experience, he believed that the pills were oxycodone, but he was uncertain, so he did a quick internet search on his police computer, which confirmed his belief that the markings were consistent with oxycodone. He then exited the cruiser and placed Mr. Kanneh under arrest (at 4:46 PM) for possession of a Schedule 1 controlled substance.

[79] Constable Lamb handcuffed Mr. Kanneh and conducted a more thorough search of his person incident to the arrest. He found nothing of concern. He read Mr. Kanneh his rights to counsel at 4:48 PM and asked whether Mr. Kanneh understood. Mr. Kanneh responded affirmatively. He then asked, “Do you wish to call a lawyer now” and Mr. Kanneh answered, “Not right now.” He cautioned Mr. Kanneh about his right to silence and placed Mr. Kanneh in the rear of the police cruiser.

[80] At 4:52 PM, Constable Lamb commenced a more thorough search of the Kia Forte incidental to the arrest of Mr. Kanneh under the Controlled Drugs and Substances Act. He testified that he was searching for further evidence of the offence charged. He opened the compartments of the backpack on the rear passenger seat, thinking that he might find more pills inside. Instead, he discovered a handgun (at 4:57 PM). He immediately suspended the search, advised Constable Meyers that a handgun had been located, and placed Mr. Kanneh under arrest for careless storage of a restricted firearm.

[81] At 4:59 PM, Constable Lamb once again read Mr. Kanneh his rights to counsel and cautioned him about his right to silence. Mr. Kanneh confirmed that he understood. The officer asked, “Do you wish to talk to a lawyer now?” Mr. Kanneh responded, “Yes, can I call my brother?” A call to his brother was not facilitated. Constable Lamb told Mr. Kanneh that he could talk to anyone he chose, but it had to be someone who would give him legal advice. Constable Lamb explained that the police could get in touch with duty counsel if Mr. Kanneh wanted them to. Mr. Kanneh indicated that he understood. At 5:01 PM, Mr. Kanneh requested to consult with duty counsel.

[82] Constable Lamb then made a couple of calls to duty counsel on his work-issued cell phone. He left voicemail messages. Duty counsel returned his call at 5:23 PM. Mr. Kanneh was handed the phone while seated alone in the rear of the police cruiser. His private telephone consultation with duty counsel ended at 5:26 PM.

[83] Constable Lamb confirmed with Mr. Kanneh that he understood and was satisfied with the legal advice given to him. Constable Lamb recalled that Mr. Kanneh then asked again if he could speak to his brother. He was not afforded the opportunity to do so.

[84] No investigative questions were asked by police of Mr. Kanneh prior to him exercising his right to counsel.

[85] Constable Lamb then returned to the Kia Forte. He testified that his priority, at that point, was to prove the firearm safe, meaning to remove any ammunition from its chamber or magazine. He observed one round in the chamber and eight rounds in the fixed magazine. He also noticed that the hammer of the firearm was pulled back. No safety was engaged. The handgun was loaded and cocked. He testified that just driving over a large bump could have resulted in the accidental discharge of the firearm.

[86] Constable Lamb bagged the handgun for evidence. He noted that the serial number on the firearm had been obliterated.

[87] He then continued to search the contents of the backpack, where he located a knotted sock that contained 32 rounds of 9 mm ammunition, the same caliber as the handgun. At that point, he suspended the search of the vehicle because it was starting to get dark. He arranged to have the vehicle towed to the police station. The two officers and Mr. Kanneh departed the scene around 6:01 PM.

[88] Given the passage of time, Constable Lamb obtained judicial authorization before continuing the search of the vehicle at the police detachment. When the search resumed, the data strip cards and professional data card reader were located inside the backpack, and Mr. Kanneh was consequently charged with offences related to credit card fraud.

[89] Mr. Kanneh was not charged with theft of a motor vehicle. Constable Lamb testified that Constable Meyers confirmed with Hertz that Mr. Kanneh was not authorized by Hertz to be in possession of the Kia Forte. Hertz requested that the vehicle be returned but did not report it to be stolen.

[90] Constable Lamb further testified that the pills found inside the Aleve bottle were sent to Health Canada for analysis. They were determined to be fentanyl, not oxycodone.

Alleged Breaches of s. 8 of the Charter

[91] The s. 8 arguments in this case all rest on the alleged unreasonableness of the initial cannabis search. The only challenge to the constitutionality of the subsequent search incident to Mr. Kanneh’s arrest is that it was tainted by the unlawfulness of the first cannabis search, because his arrest flowed from the discovery of pills during that first search. There is no independent complaint about the second search incident to arrest.

[92] The Crown bears the onus of demonstrating, on a balance of probabilities, that the warrantless cannabis search was reasonable: R. v. Yaghoubi-Araghi, 2021 ONSC 5060, at para. 125. A search is reasonable under s. 8 of the Charter where: (i) it is authorized by law, (ii) the law itself is reasonable, and (iii) the search is conducted in a reasonable manner: R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, at para. 23.

[93] The issues in this case are whether the search was authorized by law and whether it was conducted reasonably. Mr. Kanneh does not challenge the constitutional validity of s. 12(3) of the Cannabis Control Act, which states:

(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.

[94] Defence counsel’s principal s. 8 argument is that the search was not authorized by law because Constable Lamb had no reasonable grounds to believe that cannabis was readily available to Mr. Kanneh inside the vehicle. During cross-examination, Defence counsel suggested to Constable Lamb that he must have noticed the backpack on the rear seat of the vehicle at the very outset of the roadside interaction, when he opened the rear passenger door to look inside. Constable Lamb could not recall whether he noticed the bag at that point but acknowledged that he might have. Defence counsel then suggested that he became fixated on getting into the bag to search for evidence of a suspected criminal offence. Constable Lamb denied this suggestion, noting that he did not search inside the backpack during his initial search of the vehicle for cannabis readily available. This uncontested fact supports the Crown’s position that the cannabis search was not pretextual.

[95] I have already explained why I accept Constable Lamb’s testimony as credible. With respect to his grounds to conduct a search for cannabis-readily-available, I believe that he detected the odour of stale burnt cannabis emanating from inside the vehicle, that he saw what he believed to be cannabis shake in the front passenger side of the car, and that Mr. Kanneh told him a friend had rolled and smoked a joint in the passenger seat and left the joint in the centre console area.

[96] While it would have been preferable for Constable Lamb to seize or at least document the cannabis shake, his failure to do so does not preclude the Crown from relying on his testimony about the shake as part of the formation of his reasonable grounds to conduct the initial cannabis search: Williams, at para. 72. No offence contrary to s. 12(1) of the Cannabis Control Act was ultimately charged in this case. I am, therefore, not required to determine whether the Crown has proven that offence beyond a reasonable doubt. The only issue for me to determine is whether the Crown has established, on a balance of probabilities, that Constable Lamb had formed reasonable grounds to believe that cannabis was contained in the vehicle contrary to s.12(1) of the Cannabis Control Act.

[97] With respect to Mr. Kanneh’s statement about his friend rolling and smoking a joint inside the vehicle, and leaving the joint on the centre console, Defence counsel argues that it cannot be used as grounds for the search because it was made before Mr. Kanneh was cautioned and given his s. 10(b) rights to counsel. The Crown argues that the statement was not elicited by Constable Lamb but, rather, was occasioned by the officer’s compliance with his s. 10(a) obligation. The Crown further submits that the statement was spontaneously uttered before a caution or rights to counsel could reasonably have been delivered.

[98] I have already found that Constable Lamb violated Mr. Kanneh’s s. 10(a) right by inexplicably delaying 16 minutes before saying anything to Mr. Kanneh about his cannabis observations and his intention to investigate the suspected unlawful storage of cannabis in the vehicle. I therefore reject the Crown’s submission that the disputed statement about Mr. Kanneh’s friend was occasioned by the officer’s compliance with his s. 10(a) obligations.

[99] I nevertheless agree with the Crown that Mr. Kanneh’s statement was not elicited by the police officer questioning him. The statement was made in reaction to Constable Lamb appropriately (albeit belatedly) sharing information about the additional reasons for Mr. Kanneh’s ongoing detention beyond the suspected Highway Traffic Act violations. Mr. Kanneh’s utterance was spontaneous and was made during the brief period when Mr. Kanneh’s s. 10(b) rights to counsel were suspended. Mr. Kanneh’s statement is therefore admissible as evidence of the officer’s reasonable grounds to conduct a search pursuant to s. 12(3) of the Cannabis Control Act.

[100] The evidence establishes reasonable grounds to believe that cannabis, not in its unopened original packaging, was readily available to Mr. Kanneh while he had care and control of the vehicle. Constable Lamb, for that reason, had lawful authority to search both the vehicle and its sole occupant pursuant to s.12(3) of the Cannabis Control Act.

[101] Defence counsel submits that, even if Constable Lamb had reasonable grounds to conduct a search, opening the pill bottle found on Mr. Kanneh’s person was “problematic” because it was a secured container. This submission implicitly relies on the exception in s. 12(2)(b) of the Cannabis Control Act, which stipulates that cannabis may be contained in a motor vehicle if it is “packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle.”

[102] Defence counsel argues that the pill bottle was fastened closed and therefore could not lawfully be opened and searched. I reject this argument because the plastic bottle was not sealed and its proximity to Mr. Kanneh’s reach (in his chest pocket) meant that its contents were “otherwise readily available” to him as he drove the vehicle: Sappleton, at paras. 43-51; Yaghoubi-Araghi, at paras. 136-138.

[103] There were no other challenges to the reasonableness of the manner in which the cannabis search was conducted.

[104] For all the above reasons, I conclude that there was no breach of s. 8 of the Charter.

The Alleged Breaches of s. 9 of the Charter

[105] Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained. The arbitrariness of a detention turns on its legality: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 54 (“Grant (SCC)”)

[106] The Applicant typically bears the onus of establishing that an impugned detention was unlawful: R. v. Nartey, 2013 ONCA 215, at para. 14. However, in circumstances where a person is detained by police for the purpose of a warrantless search, the Crown must prove that both the search and the detention were lawful. This shift in the onus occurs to avoid inconsistent outcomes because of conflicting burdens of proof: R. v. Gerson-Foster, 2019 ONCA 405, at para. 75.

[107] There is a mixed onus in this case. The Applicant bears the persuasive burden of establishing that the detention for criminal investigative purposes was unlawful, and the Crown bears the burden of establishing that the detention pertaining to the cannabis investigation was lawful.

[108] I have already concluded that the cannabis search was lawful because Constable Lamb had formed reasonable grounds to believe that there was cannabis contained in the vehicle in contravention of s.12(1) of the Cannabis Control Act. The roadside search pursuant to s.12(3) of the Cannabis Control Act necessarily entailed the driver’s corresponding detention. The Crown has therefore established that Mr. Kanneh was lawfully detained for the purposes of the cannabis search.

[109] Prior to the commencement of the cannabis search, Mr. Kanneh was detained for the purpose of the auto theft investigation. He submits that his detention became arbitrary around 4:06 PM when Constable Lamb checked the police database and ascertained that the rental car he was driving had not been reported stolen.

[110] Defence counsel concedes that, based on the circumstances initially known to Constable Lamb, he was permitted to detain Mr. Kanneh temporarily for dual purposes under the Highway Traffic Act and the Criminal Code, while he ran the vehicle’s licence plate and driver information through the police databases. However, as soon as the officer confirmed that the vehicle was not reported stolen (4:06 PM), Defence counsel argues that Mr. Kanneh was entitled to continue on his way with at most a traffic ticket for an obstructed licence plate. The Defence submits that the ongoing restriction of Mr. Kanneh’s liberty while Constable Lamb attempted to contact the rental agency constituted unlawful and arbitrary detention contrary to s. 9 of the Charter.

[111] Whereas detention during the exercise of a search power requires reasonable grounds, an investigative detention (in the absence of a search) is justified based on the lower threshold of reasonable suspicion. The police possess common law powers to detain a person for investigative purposes if the officer reasonably suspects the individual might be involved in the criminal activity under investigation and the person’s detention is reasonably necessary in the circumstances: R. v. Mann, 2004 SCC 52, at paras. 20 and 34. The officer’s subjective suspicion that someone might be connected to a criminal offence must be objectively reasonable in all the circumstances. In other words, it must be based on objectively discernible facts. The presence of competing reasonable possibilities does not negate the reasonableness of the officer’s suspicion because “the reasonable suspicion standard addresses the possibility of uncovering criminality, and not the probability of doing so”: R. v. Chehil, 2013 SCC 49 at paras. 26-32.

[112] The grounds for reasonable suspicion cannot be assessed in isolation: Chehil, at para. 29. The information obtained by Constable Lamb from the police database is a relevant consideration in analyzing the s. 9 Charter claim, but it is just one in a large constellation of factors. Constable Lamb possessed additional relevant information. The rental agreement suggested that the vehicle was severely overdue and should have been returned to Hertz in Alberta (three provinces away from Ontario) more than four months earlier. Mr. Kanneh had recently had the windows tinted on the vehicle, incurring an expense that might mean he intended to keep the car and not return it to its rightful owner. Furthermore, Constable Lamb reasonably suspected that Mr. Kanneh may have smeared mud on the licence plate to avoid identification of the vehicle’s ownership.

[113] Given the totality of these circumstances, the fact that Hertz had not reported the vehicle as stolen does not negate the reasonableness of Constable Lamb’s suspicion that Mr. Kanneh might have stolen it. The reasonableness of his suspicion was further fortified, a few minutes later, by Mr. Kanneh’s spontaneous admission that he had not paid Hertz to extend the rental agreement because of a problem with his credit card. As Constable Lamb testified, police have a duty to investigate possible crimes, even if no offence has been reported by a victim or complainant.

[114] Defence counsel submits that, even if the officer’s suspicion was reasonable, Mr. Kanneh’s detention was not reasonably necessary to conduct the auto theft investigation because Constable Lamb had Mr. Kanneh’s driver’s licence and therefore knew how to find him later. He could have let Mr. Kanneh go while he followed up with Hertz.

[115] The reasonable necessity of Mr. Kanneh’s detention must be assessed in the totality of the circumstances, which includes the fact that Mr. Kanneh furnished both an Alberta driver’s licence and Alberta health card. Constable Lamb had no local address for him, did not know where he was residing in Ontario, or whether the address on his driver’s licence was current. In these circumstances, and given the overlapping cannabis investigation, the officer’s decision to detain Mr. Kanneh was reasonably necessary in the performance of his duties.

[116] For the above reasons, I conclude that Mr. Kanneh’s detention prior to his arrest was lawful. He does not challenge the lawfulness of his ongoing detention after he was charged with offences under the Controlled Drugs and Substances Act and Criminal Code. There is no breach of s. 9 in this case.

Alleged Breach of s. 10(b) Post-Arrest

[117] Although Defence counsel did not press this argument during oral submissions, his factum included an allegation that the implementational component of s. 10(b) of the Charter was violated after Mr. Kanneh’s arrest for careless storage of a restricted firearm. The facts supporting this alleged Charter breach have already been summarized above. In short, Mr. Kanneh twice requested to call his brother and was not permitted to do so. Defence counsel argues that Constable Lamb ought, at minimum, to have made inquiries about why Mr. Kanneh wanted to call his brother and to have ascertained whether it was to obtain the name of counsel or to get in touch with counsel.

[118] It is a trite principle of law that the s. 10(b) right to retain and instruct counsel includes the right to choose a particular lawyer: R. v. Willier, 2010 SCC 37, at para. 35. When a detainee expresses a desire to contact his counsel of choice, the police cannot directly refer the detainee to duty counsel instead. The police must provide a reasonable opportunity to reach preferred counsel: R. v. Brydges (1990), 1990 123 (SCC), 53 C.C.C. (3d) 330 (S.C.C.), at para. 13; Willier, at para. 29. This may include permitting a phone call to a friend or relative to obtain the name of counsel of choice: R. v. Kumarasamy, [2002] O.J. No. 303, at paras. 24-25.

[119] However, a detainee is not always entitled to make a call to a friend or relative upon arrest. The determination about whether this must be permitted is made on a case-by-case basis: Kumarasamy, at para. 26.

[120] In this case, Mr. Kanneh first requested to call his brother after he was arrested for careless storage of a restricted firearm. He made the request in response to being read his rights to counsel for the second time and being asked whether he wanted to speak to a lawyer (having declined to do so after the first arrest). When Mr. Kanneh asked to call his brother, Constable Lamb explained that he had the right to talk to anyone he chose, but that it had to be someone who would give him legal advice. The officer further explained that the police could get in touch with duty counsel. Mr. Kanneh then requested to speak with duty counsel. There was no indication from Mr. Kanneh that the reason he wanted to speak to his brother was to get in touch with counsel of his choosing.

[121] Defence counsel argues that Mr. Kanneh’s request to speak to his brother “made sense” because he was not ordinarily resident in Ontario. His out-of-province status does not, in my view, lead to a necessary or even reasonable inference that he wanted to speak to his brother for the purpose of getting in touch with a particular lawyer. Constable Lamb had no way of knowing whether the brother resided in Ontario or whether he had means to put Mr. Kanneh in touch with counsel. Constable Lamb was under no obligation to make further inquiries of Mr. Kanneh to ascertain whether his brother would help him contact counsel. Mr. Kanneh clearly expressed a desire to speak to duty counsel after being told that he could speak to any counsel of his choosing. At that point, Constable Lamb acted appropriately by making calls to duty counsel.

[122] The second time that Mr. Kanneh requested to speak to his brother was immediately after he verbally confirmed that he understood and was satisfied with the legal advice he had received from duty counsel. In these circumstances, Constable Lamb could not reasonably be expected to understand that he wanted to speak to his brother so that he could contact different counsel for advice.

[123] For the above reasons, I conclude that there was no breach of Mr. Kanneh’s s. 10(b) rights to counsel after his arrests.

Remedy

[124] Mr. Kanneh asks the court to remedy the breaches of his Charter rights by excluding the evidence gathered by the police. Section 24 of the Charter states:

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under section (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[125] Section 24(2) does not create an automatic exclusionary rule when evidence is obtained in a manner that infringes a Charter right. The Applicant bears the onus of establishing that, having regard to all the circumstances, the admission of the evidence at his trial would bring the administration of justice into disrepute: R. v. Griffith, 2021 ONCA 302, at para. 51.

Was the Evidence Obtained in a Manner that Breached Charter Rights?

[126] I found no violation of rights protected by ss. 8 and 9 of the Charter. Mr. Kanneh’s detention was not arbitrary. The searches that led to the discovery of the fentanyl, loaded handgun, ammunition, data strip cards and data card reader were reasonable. There was no violation of Mr. Kanneh’s Charter rights after his arrest. The breaches of ss. 10(a) and 10(b) prior to his arrest are therefore the only bases upon which the exclusion of evidence could be justified.

[127] Section 24(2) of the Charter is triggered only where evidence is “obtained in a manner” that violates an accused’s Charter rights. Courts have adopted a generous interpretation of this phrase. In accordance with the jurisprudence, I must examine the entire chain of events between Mr. Kanneh and the police and determine whether there is a connection between the breach of his ss. 10(a) and 10(b) rights and the discovery of the incriminating evidence. The connection may be causal, temporal, or contextual, or any combination of these three, as long as it is not too tenuous or remote: Griffith, at para. 52.

[128] In this case, the section 10 breaches occurred before the evidence was discovered. Although the discovery of the evidence was not causally connected to the breaches, it was both temporally and contextually connected. The breaches and the discovery of the evidence occurred relatively close in time. Indeed, the discovery of the fentanyl pills occurred while the s. 10(b) breach was ongoing. There was a continuum of events, commencing with the lawful roadside stop and culminating in Mr. Kanneh’s arrest. The breaches and the discovery of the evidence both occurred in the context of the same transaction between Mr. Kanneh and the police.

[129] For the above reasons, I have concluded that the evidence was obtained in a manner that violated Mr. Kanneh’s rights. Section 24(2) of the Charter is engaged: Griffith, at paras. 55-56.

Seriousness of the Charter-Infringing State Conduct

[130] A balancing of three factors must be undertaken to determine whether evidence obtained in violation of a Charter right should be excluded pursuant to s. 24(2): Grant (SCC), at para. 71. The first factor is the seriousness of the police conduct. The court’s task is to situate the conduct on a spectrum of culpability: R. v. Jennings, 2018 ONCA 260, [2018] O.J. No. 1460 (Ont. C.A.), at paras. 26; R. v. Buchanan, 2020 ONCA 245, at para. 49. The operating premise is that inadvertent or otherwise minor infringements impact less upon the rule of law and, therefore, upon the reputation of the administration of justice: R. v. Le, 2019 SCC 34, at para. 143.

[131] The central question is whether the Charter breach(es) involve state conduct “from which the court should be concerned to dissociate itself”: R. v. Harrison, 2009 SCC 34, at para. 22. This will be the case where, for example, there was a major departure from constitutional standards; there is evidence of a systemic problem or pattern of Charter-infringing conduct; or the police knew (or ought to have known) that their conduct was not Charter-compliant and acted intentionally, recklessly or in bad faith: Harrison, at paras. 22 and 25; Griffith at paras. 57-58. Negligent breaches of Charter rights can also fall at the more serious end of the spectrum: Le, at para. 143; Buchanan, at paras. 52-53. Where a Charter breach is merely of a technical nature or reflects an understandable mistake, dissociation will be less of a concern: Harrison, at para. 22; Griffith, at para. 57.

[132] In this case, the breaches of ss. 10(a) and 10(b) of the Charter both resulted from the investigating officer’s incorrect understanding of the law of detention. At the preliminary inquiry, Constable Lamb testified that Mr. Kanneh’s s. 10 rights were not engaged prior to his arrest because he was not detained. Before me, Constable Lamb acknowledged that Mr. Kanneh was detained throughout the roadside stop. He readily admitted that he ought to have administered rights to counsel earlier during the roadside interaction.

[133] Constable Lamb’s comprehension of the scope of the meaning of detention evolved after the preliminary inquiry. He explained that his cross-examination at the preliminary inquiry alerted him to a potential error in his understanding of the law. He said he subsequently gained knowledge from more experienced officers. Before me, he admitted that he was wrong in his understanding of the legal definition of detention at the time of the traffic stop and on the date of the preliminary inquiry. He stated that, looking back on it now, he recognizes that Mr. Kanneh was detained because Mr. Kanneh would have felt that he was unable to leave. Constable Lamb testified that this progression in his understanding of the law resulted in a change in his practice. He said he would conduct himself differently if he had to do Mr. Kanneh’s roadside stop over again today.

[134] As with other aspects of the officer’s testimony, I accept this evidence as credible. Constable Lamb withstood a robust challenge to his credibility on this issue. Defence counsel cross-examined him at length about a preparation meeting he had with the Crown in advance of giving his testimony before me, and about other communications between him and Crown counsel regarding his testimony at the preliminary inquiry. In my view, the cross-examination elicited no evidence to support the Defence submission that Constable Lamb changed his testimony because the Crown either told him explicitly what to say or insinuated that he should alter his evidence to shore up his answers.

[135] The evidence elicited at the preliminary inquiry damaged the prosecution’s case and the Crown subsequently conceded a breach of s. 10(b). Constable Lamb’s testimony at the preliminary inquiry not only caused the Crown to re-evaluate the merits of its case, the experience of being cross-examined also made Constable Lamb question the correctness of his understanding of the law. He acted responsibly by speaking to more experienced officers who enlightened him. He was then faced with a decision about how to handle the situation when he testified before me. He chose to acknowledge his mistakes. He gave testimony that was different from what he stated at the preliminary inquiry on the issue of Mr. Kanneh’s detention, and readily acknowledged that difference. I am satisfied that he chose to do this independently. There is no basis upon which I could find that the Crown put its thumb on the scales of s. 24(2) by telling Constable Lamb what to say.

[136] The Crown argues that the officer’s Charter-infringing conduct was not particularly serious and amounted to technical breaches of ss. 10(a) and 10(b). The Crown further submits that Constable Lamb’s errors were understandable because the law on the topic of temporary suspension of s. 10(b) rights is complex and the Cannabis Control Act was still relatively new legislation at the time of the roadside stop.

[137] I agree with Defence counsel that the relative novelty of the Cannabis Control Act and the complexity of the law with respect to the suspension of s. 10(b) rights are not relevant considerations in assessing the seriousness of the impugned state conduct in this case. Constable Lamb’s misunderstanding of the law had nothing to do with either of those things. Rather, he did not correctly understand the meaning of “detention” in s. 10 of the Charter. This is a fundamental error that cannot be explained by novel legislation or nuances in the jurisprudence. It was not a miscalculation on a point of law that is unclear. In short, it was not an understandable mistake.

[138] The Court of Appeal for Ontario held in Buchanan, at paras. 52-53:

I do not agree with the suggestion that all negligent police conduct must push toward exclusion [of evidence]. While negligence cannot be equated with good faith (see Grant, at para. 75), neither can it necessarily be equated with bad faith. The key determining factor is not the name given the conduct, but the underlying findings about the conduct.

Negligent police conduct itself may fall on a spectrum. Clear violations of well-established rules governing state conduct may exist at one end of the negligence spectrum, while less clear violations of less clear rules may be at the other.

[139] Defence counsel argues that Constable Lamb’s negligence in failing to appreciate that Mr. Kanneh was detained is serious because it reveals deficiencies in police training. I am not prepared to draw that inference. There is no evidence that Constable Lamb’s misapprehension of the law of detention was caused by improper training. There is no evidence that O.P.P. officers generally receive inadequate training such that there is a systemic problem of failing to administer rights to counsel to detainees. This was just one officer who got it wrong. The breach was isolated rather than institutional, which mitigates the seriousness of the impugned state conduct: Griffith, at para. 79.

[140] Defence counsel argues that the appropriate lens through which the court must analyze the state conduct is on the date of the rights infringement, not the date of the hearing before me. I agree. The fact that Constable Lamb has learned from his mistakes and now knows better is cold comfort to Mr. Kanneh.

[141] There is no evidence that Constable Lamb was heavy-handed or was acting in bad faith on the relevant date. On the contrary, there is evidence that he was making sincere efforts to uphold Mr. Kanneh’s rights despite his confusion about when s. 10(b) rights were triggered. For example, he provided a caution to Mr. Kanneh after Mr. Kanneh made spontaneous self-incriminating utterances. He did not question Mr. Kanneh prior to administering rights to counsel. Furthermore, he carefully limited the scope of the first cannabis search and refrained from looking inside the backpack during that phase of the investigation.

[142] Constable Lamb did not display a flagrant disregard for the Applicant’s rights. The impugned state conduct was not at the most egregious end of the spectrum of seriousness, but he ought to have known that Mr. Kanneh was detained and was therefore entitled to ss. 10(a) and 10(b) rights without delay. His failure to administer those rights promptly constituted an inexcusable breach of long-established Charter rights that involved a marked departure from constitutional standards. It was not merely a technical breach.

[143] The impugned state conduct was not at the gravest end of the spectrum of Charter-infringing behaviour. It was neither deliberate nor reckless. But it was nevertheless a serious breach. It involved the type of negligence that weighs in favour of excluding the evidence under s. 24(2), even though it was not systemic or part of a pattern of intentional police misconduct: Griffith, at para. 67; R. v. Hobeika, 2020 ONCA 750, at para. 82; Buchanan, at para. 53.

Impact of the Breach on the Applicant’s Charter-Protected Interests

[144] The second line of inquiry under s. 24(2) asks whether and to what extent the Charter breaches undermined the interests protected by the rights infringed: Grant (SCC) at para. 76; Le at para. 151; Griffith at para. 68.

[145] Crown counsel argues that the impact of the s. 10(b) breach is minimal because Mr. Kanneh likely would not have invoked his right to speak to counsel in any event. Mr. Kanneh declined to speak to a lawyer when he was given an opportunity to do so upon arrest for possession of a controlled substance. He only later expressed a desire to consult counsel after the handgun was discovered. The Crown argues that Mr. Kanneh therefore likely would not have exercised his right to counsel even if he had been advised of the right in connection with both the cannabis investigation and the auto theft investigation.

[146] I am not prepared to speculate about whether Mr. Kanneh would have exercised his right to counsel sooner had he been fully and promptly informed of all the reasons for his ongoing detention, of the developments in the police investigation, and of his right to speak to counsel without delay. The repetition of rights to counsel could conceivably convey the escalating seriousness of the situation. The wisdom of exercising the right may have registered sooner had Mr. Kanneh been informed of it on each occasion when his jeopardy increased. Even if he had declined to speak to counsel after being advised of the cannabis investigation or the auto theft investigation, he might then have decided to exercise the right to counsel upon his arrest under the Controlled Drugs and Substances Act, rather than waiting until he was arrested for careless possession of a restricted firearm.

[147] I nevertheless agree with the Crown that the rights infringements had minimal negative impact on Mr. Kanneh’s constitutionally protected interests. The temporal breach of s. 10(a) in connection with the cannabis investigation was of relatively brief duration (approximately 16 minutes) and nothing flowed from that breach. Mr. Kanneh’s self-incriminating utterance about a friend having rolled and smoked a joint in his vehicle was unrelated to the breach. The lack of causal connection mitigates the impact of the rights infringement: Griffith, at para. 71.

[148] Similarly, the s. 10(b) breaches of his rights to counsel (in connection with both the cannabis investigation and the auto theft investigation) had minimal impact on his interests. The police did not question him, which distinguishes this case from many others where the attempt by police to elicit evidence prior to administering rights to counsel is an aggravating factor: Griffith, at para. 71.

[149] Moreover, even if Mr. Kanneh’s self-incriminating utterance about not paying for an extension of his Hertz rental agreement had been prompted by police questioning, the statement was made at a time when his s. 10(b) rights were suspended. The statement therefore did not flow from a breach of his rights to counsel.

[150] The minimal impact of the breaches on Mr. Kanneh’s Charter-protected interests weighs substantially in favour of admitting the evidence.

Society’s Interest in the Adjudication of the Case on the Merits

[151] The third factor in the inquiry is society’s interest in the adjudication of the case on the merits. The question is whether the truth-seeking function of the criminal trial process would be better served by the admission of the evidence or by its exclusion: Griffith, at para. 76. In this case, the drugs, the gun, the ammunition, the data strip cards, and the data card reader are all real and reliable evidence. Moreover, it is evidence essential to the Crown’s case. A prosecution almost certainly will not be pursued if the evidence is excluded: R. v. McGuffie, 2016 ONCA 365, at paras. 62-63. The admission of the evidence would advance the court’s truth-seeking function, whereas its exclusion would almost inevitably result in a stay of proceedings.

[152] Furthermore, society has a strong interest in the adjudication of this case on its merits because the charges are very serious. Fentanyl is an extremely dangerous drug that can cause grievous harm to anyone who is exposed to it, including law enforcement officers and first responders: R. v. Olvedi, 2021 ONCA 518, at para. 54. Its introduction into the Canadian illicit drug supply has had devastating and tragic consequences for many communities. Moreover, the proliferation of illegal handguns undermines society’s desire and need for safe communities in which individuals can live free of fear of violence. The public has an obvious interest in curtailing gun-violence: R. v. Reid, 2019 ONCA 32, at para. 67. Both fentanyl and firearms have inflicted a staggering loss of life on the Canadian public.

[153] For the above reasons, society’s interest in the adjudication of the case on its merits weighs heavily in favour of admitting the evidence.

Should the Evidence be Excluded?

[154] The ultimate question under s. 24(2) is whether the long-term repute of the justice system would be better served by admitting or excluding the impugned evidence. All three of the above-discussed factors must be considered and weighed in the balance. The third factor must not assume disproportionate significance simply because the charges faced by the accused are serious. Although the public has a heightened interest in seeing a determination on the merits in cases where the evidence is reliable and the alleged offences are serious, the public also has a vital interest in a justice system that is beyond reproach, particularly in cases where the penal stakes for the accused are significant.

[155] In this case, a balancing of the relevant considerations favours admission of all the evidence. The exclusion of evidence might usefully teach Constable Lamb a hard lesson, but the purpose of s. 24(2) is not to punish or educate police, nor is it to compensate the Applicant. The focus of the inquiry is on the long-term repute of the justice system.

[156] Although the seriousness of the breaches weighs in favour of exclusion, the impugned state conduct is not at the most egregious end of the spectrum. The other two relevant factors strongly support admission of the evidence. On balance, I conclude that the long-term repute of the justice system is better served by admitting the evidence.

[157] The Application is dismissed.

Petersen J.

Released: September 22, 2022

COURT FILE NO.: CR-21-0057-0000

DATE: 2022-09-22

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

His Majesty the King

Ryan Morrow for the Crown

• and –

Wahai Kanneh

Ari Goldkind, for the Defense

REASONS FOR RULING ON S. 24(2) APPLICATION

Petersen J.

Released: September 22, 2022

[^1] There is no allegation of a s. 7 Charter breach based on the failure to provide Mr. Kanneh with an earlier caution regarding his right to silence. Such an argument would likely fail, in any event, because there is no constitutional obligation on police officers to provide a standard “right to remain silent” caution to every person upon detention: R. v. Williams, 2021 ONCJ 630, at para. 70.

[^2] The Crown argues that, during a search conducted pursuant to s. 12(3) of the Cannabis Control Act, police can search for any cannabis in the vehicle, not just cannabis-readily-available to the driver: R. v. JF, 2015 ONSC 3068, at paras. 64-65. It is unnecessary for me to decide that issue.