COURT FILE NO.: CR-22-3 DATE: 2023 03 20

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – Jeremy Menary

Ms. J. Briscoe, for the Federal Crown Ms. M. Chant, for the Provincial Crown Mr. M. Luft, for Jeremy Menary

HEARD: January 5 and 6, and March 7 and 9, 2023

REASONS FOR DECISION ON CHARTER APPLICATION

CONLAN J.

I. The Background

[1] Jeremy Menary (“Menary”) is facing several criminal charges arising from his arrest by police in Burlington, Ontario during the early morning hours of December 30, 2019. He was found to be in personal possession of a loaded 9mm Glock handgun with a 15-round magazine inside it, $4230.00 in cash, and 7 grams of cocaine. In addition, the motor vehicle that he was in possession of contained 246 pills of fentanyl, 41.7 grams of marihuana, other cannabis products, 8 bottles of liquid hydrocodone syrup and codeine oral solution, and 2 cellular telephones.

[2] Menary applies to exclude all of that evidence under section 24(2) of the Charter, alleging violations of his sections 8, 9, 10(a), and 10(b) rights.

[3] A voir dire was held on January 5 and 6 and March 7 and 9, 2023. Menary testified. The three police officers on scene testified. The Court reserved its decision, with the trial’s commencement date of March 27th looming in the very near future.

[4] For the reasons that follow, the Charter application is dismissed.

II. Analysis

The Evidence on the Voir Dire

Jeremy Menary, the Accused

[5] Menary just turned 30 years old. He was 29 years of age when he testified, and he was 26 years old when the incident occurred. He has no criminal record.

[6] In direct examination, he gave the following evidence about his interactions with the police at around 2:00 a.m. on December 30, 2019, on a residential street (Marley Court) in Burlington, Ontario:

i. he was parked on the street, waiting for a friend whom he had driven to that area in a Toyota minivan that he had rented; ii. that friend had told him not to park in the driveway of the house that the friend attended, so Menary parked some distance away down the street; iii. he was alone in the van; iv. a uniformed police officer pulled up behind him, and the officer approached on foot the driver’s side door of the van; v. he rolled down the window; vi. the officer said that he was investigating a suspicious vehicle call; vii. the officer asked him questions, like what was he doing there and whose vehicle was it; viii. the officer asked to see the rental agreement for the van, and Menary gave it to him from the glove box; ix. the officer asked to see his driver’s licence, and Menary gave it to him; x. Menary then noticed a second police officer near the van’s driver’s window, just “hovering” there; xi. the first officer left the driver’s window area; xii. the second officer started asking him questions, like what was he doing there, where was he from, and questions about the tattoos on his face; xiii. Menary asked the second officer if he could use his cellular telephone, but that officer responded in the negative – he said something like “not now, hold tight”; xiv. Menary asked to use his cellular telephone because he was feeling weird and uncomfortable, and he wanted to call his father or his lawyer, Mr. Luft; xv. at the request of the second officer, without any explanation for why it was necessary, Menary stepped out of the van and inside the rear of the van (through the sliding rear passenger door); xvi. a third police officer arrived on scene just as Menary was exiting the van; xvii. questioning from the police officers continued, with many of the same questions being asked repeatedly; xviii. the third police officer asked him what he did for a living; xix. the third police officer asked him about his jewellery; xx. the third police officer asked him about a bottle that was inside the van’s driver’s door pocket, and that officer grabbed the bottle and looked at it before placing it back where it was; xxi. that bottle was a prescription bottle that contained codeine; xxii. he had no trouble answering the questions from the police officers, and he had no difficulty focussing, staying awake, standing, and walking; xxiii. one of the police officers stated that all was okay with the driver’s licence but that they still needed to do another quick search; xxiv. Menary was told to stand up, which he did, and the first police officer searched his body, finding and taking money from his sweater pocket and a gun from a pouch or satchel that was underneath his jacket; xxv. Menary was taken to the ground and told he was under arrest for impaired driving, possession of a firearm, and possession of drugs (later in examination-in-chief, and again in re-examination, Menary clarified his evidence to say that he was not told about the arrest for impaired when he was on the ground but rather was only told about that alleged offence after he was placed inside the police vehicle); xxvi. he had not consumed any drugs that morning or the late evening before, and he was not impaired; xxvii. after being placed inside the police vehicle, he gave the full name of his lawyer, Mr. Morrie Luft, to the officer, even spelling the lawyer’s name; xxviii. at the police station, he did some physical tests; and xxix. he spent 4-5 days in jail before being released on bail, and he was never charged with an impaired-related offence.

[7] In cross-examination by the federal prosecutor, Menary stated that he had been staying at a hotel in Mississauga, “clearing his mind”, while his residence was with his parents and siblings in Toronto. He was at the hotel from December 26th to December 30th. He drove someone named “Jason” from the hotel to Marley Court in exchange for $100.00. He did not know what Jason was doing there. He never saw or spoke with Jason again, after the arrest.

[8] Menary admitted in cross-examination that all of the stuff found by the police officers inside the van was his.

[9] In cross-examination, Menary described the initial interaction with the first police officer as follows. The van was on, with loud music playing, but the engine was not running. He was not asleep inside the van. The officer asked him what he was doing in the area, and he replied that he was waiting for someone and then going to his grandmother’s place in Hamilton to give her some money for Christmas. He had about $3500.00 in cash on him, and he planned to give $1500.00 to his grandmother.

[10] Menary agreed with Ms. Briscoe’s suggestion, in cross-examination, that all of the first police officer’s questions were about the van and licensing. He could not explain to Ms. Briscoe why there is another person’s name on the van’s rental agreement, or why the agreement is from November 2019 (many weeks prior to the incident). He stated that he rented the van properly from some company called “Platinum”.

[11] Although he did not know it at the time, because he now knows that the rental agreement had another person’s name on it, he understands why the police officer was asking a lot of questions about the van, he told Ms. Briscoe in cross-examination.

[12] In cross-examination, Menary stated that the first police officer used his flashlight to look around inside the van, while standing outside the van. When that first police officer returned to the van after checking the driver’s licence, he asked Menary to exit the van and to sit in the middle, through the sliding side door, which Menary did.

[13] Menary stated in cross-examination that it was while the first police officer was checking his driver’s licence that he told the second police officer, “I want to call my lawyer or my dad”, to which the second police officer said, “let’s just hang on a sec”.

[14] Menary admitted to Ms. Briscoe that he had a loaded gun on his person. It was for his personal protection because of all of the money and drugs that he had, he told Ms. Briscoe. He did not know where the gun came from. He did not know how the gun became loaded.

[15] Menary agreed with Ms. Briscoe, in cross-examination, that, before the gun was found, the police were interested in the van and issues related to licensing. He agreed further, as indicated above, that the first police officer’s questions were all about the van and licensing.

[16] Menary was questioned by Ms. Briscoe about the liquid codeine bottle that was inside the van, the photograph of which is Exhibit 2. He stated that the bottle was his, though he could not explain why the name on the prescription label appears to have been scratched-off and why the bottle appears to be from a pharmacy in New York State. He bought the bottle from someone, he said, in case his cough got worse over the holidays. He could not remember who he bought it from. He did not consume any of the liquid shortly prior to the incident with the police.

[17] Menary stated, in cross-examination, that he intended to sell the three bottles of hydrocodone, the photograph of which is Exhibit 3. He bought those from someone, he said. He also intended to sell the 5 bottles of codeine oral solution, the photograph of which is Exhibit 4.

[18] Menary agreed, in cross-examination, that the liquid substances that were inside the van can cause drowsiness. He stated further that he had no knowledge of the fentanyl and the white pills being inside the van.

[19] Menary testified, in cross-examination, that it was about 15 minutes between his first interaction with the police and his arrest on the ground. He was given his right to counsel once he was placed inside the police vehicle, and that is when he gave the full name of Mr. Luft. Once at the police station, the police tried to reach Mr. Luft by telephone.

Officer Ryan Pirillo (“Pirillo”)

[20] Pirillo, as with all of the police officers who testified on the voir dire, was called by the Crown and cross-examined by Mr. Luft.

[21] Pirillo was the second police officer on the scene but the first to testify on the voir dire. He told the Crown, in examination-in-chief, the following:

i. he was dispatched to a suspicious motor vehicle call, arriving on scene at 2:32 a.m.; ii. the first police officer, Walker, was already there; iii. the van was running, with the engine on, and Walker was speaking with the driver with the driver’s window down; iv. the driver appeared to be “dazed”, was staring off into space, was mumbling, was speaking slowly, was slow to obey commands, and was showing signs of impairment; v. at some point, Walker left the van’s driver’s door area to check the driver’s licence; vi. he (Pirillo) asked the driver to step out of the van, and as that happened he saw a bottle in the driver’s door pocket; vii. Menary was then sitting on the edge of the rear passenger compartment of the van, with the sliding side door open; viii. at 2:40 a.m., the driver was arrested by Pirillo for impaired by drug; ix. the driver was then searched incidental to the arrest, which is standard practice, and found to be in personal possession of a loaded handgun, cash, and cocaine; x. at 2:49 a.m., Menary now inside the police vehicle, the formal notice of arrest was read to him for impaired operation, the handgun, and the drugs; xi. Menary was asked if he understood the notice of arrest, and he answered “yes”; and then the right to counsel was read at 2:50 a.m., which Menary stated that he understood; and then Menary stated that he wanted to call a lawyer, Mr. Luft; and then the caution was read at 2:50 a.m.; and then the DRE demand was read at 2:51 a.m.; and then they left the scene at 2:57 a.m.; and then they arrived at the police station at 3:20 a.m.; xii. at 3:27 a.m., he called Mr. Luft but received only an automated message with a second number to call; xiii. at 3:28 a.m., he called that second number and left a voicemail message for Mr. Luft; xiv. at 3:29 a.m., he offered duty counsel to Menary, which offer was refused; and xv. Menary was then turned over by Pirillo to the DRE officer.

[22] In cross-examination, Pirillo was challenged about his evidence that Menary was slow to obey commands. He stated that the said evidence referred to Walker’s request for Menary’s driver’s licence, but he acknowledged that his notes do not refer specifically to the request for the driver’s licence but simply say that Menary was slow to obey commands. He also admitted that, at the preliminary inquiry, he did not testify that Menary was slow to provide his driver’s licence. In fact, at the preliminary inquiry, Pirillo could not recall if Walker asked Menary for his driver’s licence.

[23] The slowness of Menary having provided his driver’s licence was a part of Pirillo’s grounds for the arrest of Menary for the impaired offence, Pirillo stated late in the cross-examination.

[24] Pirillo was challenged further in cross-examination about his evidence that Menary was speaking slowly and/or mumbling. He could not recall anything specific that Menary said.

[25] Pirillo, in cross-examination, could not recall who directed Menary to exit the van. He could not say how long Menary was outside of the van before he was arrested. He could not say when he knew that the van was a rental. He could not say whether he or Walker, between 2:32 and 2:40 a.m., told Menary that he was being detained and/or being investigated for something.

[26] In cross-examination, Pirillo could not recall whether he handled and/or looked closely at the bottle inside the van’s driver’s door pocket before the arrest at 2:40 a.m., and that evidence in cross-examination was inconsistent with Pirillo’s evidence at the preliminary inquiry.

[27] Pirillo, in cross-examination, could not recall whether he asked Menary about drug consumption before the arrest at 2:40 a.m.

[28] In cross-examination, Pirillo agreed that Menary was not slow to exit, and had no difficulty exiting, the van.

[29] Pirillo agreed in cross-examination that he asked Menary some questions while Walker was checking the driver’s licence and while Menary was seated in the middle passenger compartment of the van, like why Menary was there, and where Menary was from, and whose van it was.

[30] Mr. Luft asked Pirillo why Menary was ordered to exit the driver’s seat of the van. Pirillo answered that there were grounds to believe that he was impaired by drug. Then why not arrest him right away, Mr. Luft asked. Pirillo had no real answer to that except to say that he wanted to ask some questions of Menary himself because he was not present during all of the earlier exchange between Menary and Walker.

[31] In cross-examination, Pirillo agreed that it was before the arrest at 2:40 a.m. that he was told by Walker that a CPIC search done by Walker had revealed that Menary was flagged by the Toronto Police Service as being armed and dangerous.

[32] Pirillo clarified in cross-examination that he was the officer who actually arrested Menary.

[33] In cross-examination, Pirillo stated that he could not recall the third police officer on scene, McMichael, asking Menary any questions about the codeine bottle. Pirillo did not ask Menary any questions about that bottle, he stated.

[34] Pirillo testified, in cross-examination, that he never heard Menary ask to call a lawyer and/or his father before Menary was provided with his right to counsel.

[35] Pirillo agreed with Mr. Luft that, at least from the time that he was on the scene, Menary was not free to leave.

[36] When told by Mr. Luft, in cross-examination, that Menary had passed the DRE tests and had, in fact, performed “well”, Pirillo answered that he was surprised at that information.

[37] Pirillo stated in cross-examination that he did not observe Menary to have any balance issues at the scene. Two video clips were played for Pirillo during the cross-examination, one of Menary exiting the police vehicle at the police station and walking inside the building (Exhibit 11) and the other of Menary being paraded before the booking sergeant and then sitting down inside the building (Exhibit 12), and this Court will observe now that neither clip shows any sign of impairment on the part of Menary.

[38] Pirillo agreed in cross-examination that no drugs were smelled by him, emanating from the van.

[39] Pirillo denied the suggestions by Mr. Luft that Menary was not impaired and, further, that Menary was arrested for impaired only to justify why he was searched by the police.

Officer John McMichael (“McMichael”)

[40] McMichael was a fairly new police officer at the time of the incident involving Menary. He was the third officer on scene but the second to testify during the voir dire.

[41] The most salient portions of his evidence are summarized below:

i. at one point, he was alone with Menary at the van, while Walker and Pirillo were at Walker’s police vehicle; ii. while alone with Menary, he asked him some questions about his tattoos; iii. Menary was speaking slowly, his head bobbing, and his eyes closing; iv. through the open driver’s door, he saw a prescription bottle in the pocket of the door, and he picked it up and looked at it; v. Menary never asked him for an opportunity to speak with his father and/or a lawyer; vi. Walker (not Pirillo) was the arresting officer; vii. he did not observe any balance problems for Menary at the scene, however, he knew at the time from prior experience that unsteadiness on one’s feet is sometimes less of a factor with an impaired by drug investigation (as opposed to impaired by alcohol); viii. Menary’s level of impairment at the scene was the same as that during the later DRE testing process, and he agreed upon being shown during cross-examination a video clip of the DRE testing at the police station (Exhibit 13) that Menary’s speech during the DRE testing was coherent and fairly normal (he also stated that Menary’s speech was comparatively worse at the roadside); ix. during the search of the van incidental to the arrest, he found 9 bottles of hydrochloride codeine in the rear cargo compartment, white pills labelled “TEC” in a bag in the front area, and marihuana in the rear cargo compartment, and some white powder; and x. he remembers seeing a CPIC caution for Menary for firearms/weapons, but that was after Menary was arrested.

[42] Perhaps most important, McMichael acknowledged the following in cross-examination. He knew at the time that there was a difference between a detention and an arrest. Once he saw the bottle in the van’s driver’s door pocket, Menary was not free to leave the area. His understanding at the time was that the right to counsel arises on detention, including an investigative detention, and that upon detention you must tell the subject the reason for the detention. He did not do that with Menary. He did not give Menary his right to counsel. There was no cause for not having told Menary the reason for his detention and for not having given him his right to counsel. He knew at the time that the brown bottle contained a substance that might cause impairment. He asked Menary if the bottle was his, and he knew at the time that the said question could have caused Menary to incriminate himself in what was, at that point, an impaired by drug investigation. He asked Menary about the bottle two or three times, and it was clear that Menary did not want to answer those questions about the bottle. Admittedly, it would have been better for him to have advised Menary of the reason for his detention before asking him questions about the brown bottle, he told Mr. Luft. He does not believe that he told the other police officers about the brown bottle before Menary was arrested.

[43] McMichael denied the suggestions made by Mr. Luft, in cross-examination, that Menary was not impaired at all but, rather, the police made-up the impaired allegation afterwards in order to justify their earlier search of Menary at the roadside.

Officer Forrest Walker (“Walker”)

[44] Walker was the first and, by far, the most experienced police officer on the scene of the incident involving Menary. He was an Acting Sergeant for that night shift. He was the third and final officer to testify on the voir dire.

[45] The following summarizes Walker’s evidence in direct examination:

i. dispatched to the scene at 2:21 a.m., he arrived at 2:28 a.m.; ii. he immediately ran the van’s licence plate, and the plate came back to a company; iii. he approached the driver’s door window with his flashlight and observed very loud music from within the van and the driver slumped over and unresponsive; iv. the driver remained unresponsive even after Walker repeatedly pounded on the driver’s door window, which window was up the entire time; v. Walker opened the door, reached across and turned off the engine; vi. he saw a small medicine bottle, codeine, with the name scratched off, in the driver’s door pocket (Exhibit 2), which bottle he handled and then put back where it was; vii. he tried to awaken the driver by shaking him; viii. the driver woke-up and showed very large pupils which did not contract even with the flashlight shining on his face, which was unusual; ix. the driver could not answer where he was, and his speech was slurred; x. when asked whose van it was, the driver produced a rental agreement in someone else’s name; xi. Walker asked who rented the van, and the driver answered that he did; xii. the driver produced a valid driver’s licence; xiii. Walker noticed the van’s GPS which showed as the destination a nearby address on the same street, Marley Court; xiv. asked to step outside the van to check on his possible impairment, the driver was very unsteady on his feet, so much so that he was directed to sit down in the middle compartment of the van; xv. Menary was staring off into space, his movements were delayed, his actions were slow, and he had a placid effect about him; xvi. Walker conducted some computer queries from inside his police vehicle, and on Exhibit 14 is contained the information that he saw that morning (numbers 1 and 2 he saw before he approached the van, and the others he saw after he interacted with the driver and obtained his driver’s licence); xvii. entry number 4 on Exhibit 14, the “special interest police”, or “SIP” caution, did not cause Walker concern that morning because he perceived no threat from Menary, and that may be why there is nothing about that caution in his notes, he said; xviii. at 2:40 a.m., he returned to the van and arrested Menary for impaired by drug; and xix. everything else followed from that arrest – the search of Menary’s person and the seizure of the money and the drugs and the loaded handgun, Menary being taken to the ground, Menary being arrested for further offences regarding the gun and the narcotics, and the search of the van and more evidence being found therein.

[46] In cross-examination, Walker’s evidence was the following:

i. Menary was detained and not free to go, without any doubt, from the moment that he woke-up after being shaken by Walker; ii. the codeine in the van’s driver’s door pocket played no role in Walker’s grounds for the arrest of Menary for impaired by drug; iii. he never told Menary that he was detained, or at least he is not sure if he ever did so, and the reason for that is because he was still investigating; iv. more specifically, he does not know if he ever said anything to Menary about his detention for, or about Walker’s investigation of, Menary’s impairment and/or his possession of a possibly stolen van, and although it was “low priority” it is true that Walker asked Menary some of the questions that he asked him because he was concerned that the van may be stolen; v. for example, he asked Menary who rented the van because that question was relevant to whether the van might be stolen; vi. for clarity, he has no evidence to offer about advising Menary of his detention, or the reason for his detention, until the time of the arrest at 2:40 a.m.; vii. he directed Menary to exit the van because that was relevant to all things that he was considering at that moment – impairment, possession of a stolen motor vehicle, and a potential medical episode being experienced by the driver; viii. it was at the time of the arrest, immediately before the actual arrest, at 2:40 a.m., that he formed his grounds for the arrest; ix. At 2:40 a.m., just before the actual arrest, Menary was still unfocussed, swaying, with his pupils very wide, although none of that is in Walker’s notes at the place where or just before the place where his notes mention the arrest; x. he does not recall if he told any other police officer on scene about the SIP caution; and xi. it is false that Menary was arrested for impaired only to search him, in light of what Walker had discovered with regard to the SIP caution.

The Positions of the Defence and the Crown

[47] The Applicant, Menary, on whose burden it is to demonstrate, on a balance of probabilities, a violation of his Charter right(s) and that the evidence ought to be excluded under section 24(2), argues that his sections 8, 9, 10(a) and 10(b) protections were breached by the police.

[48] With regard to section 9, which Charter right provides that everyone has the right not to be arbitrarily detained or imprisoned, Menary alleges that his arrest was unlawful in that it was absent reasonable and probable grounds to believe that he was impaired.

[49] The arrest for impaired, Menary argues, took place after the gun was found on his person. That argument reflects the overall theory of the defence, namely, that the impaired by drug allegation was a ruse. Menary was, in fact, searched and the gun found, among other items, and then the police concocted the impaired allegation afterwards in order to justify the search. Part of the proof of that ruse, Menary submits, is the unreasonably nonchalant attitude exhibited by Walker, while testifying on the voir dire, about the SIP caution that he read on his police vehicle’s onboard computer.

[50] Menary submits, further, that he was not impaired at all, and in support of that proposition he relies not only on his own evidence but also on the video clips collectively filed as Exhibit 16, especially that of the DRE testing procedure that took place at the police station.

[51] He was able to give and spell properly the full name of his lawyer, Mr. Luft, and he passed the DRE tests, and those facts are proof that he was not impaired, Menary asserts.

[52] Why is there no evidence of any of the three police officers having ever asked Menary if he consumed any drugs? If he was so impaired, why was Menary not arrested much sooner in the interactions that he had with the various police officers? Those questions, and their logical answers, point towards a conclusion that he was not impaired, the Applicant submits.

[53] There are so many material inconsistencies in the evidence among the three police officers that it cannot be safely relied upon by this Court, Menary suggests, including on the issue of whether he was impaired, in fact, or even on the question of whether he was showing signs of impairment. As just one example cited by Mr. Luft in his closing submissions, Pirillo stated that Walker was talking to the van’s driver through the open driver’s door window when Pirillo first arrived on the scene, while Walker was adamant in his testimony that the said window was up the entire time.

[54] The defence argument in relation to section 8, the Charter protection that ensures that everyone has the right to be secure against unreasonable search or seizure, is premised on a finding that the search of Menary’s person was not incidental to any lawful arrest, regardless of whether that search occurred before (as Menary suggests) or after (as the police suggest) the arrest for impaired.

[55] The defence position regarding sections 10(a) and (b), which Charter protections guarantee, respectively, that everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor and (b) to retain and instruct counsel without delay and to be informed of that right, is that Menary was detained for several minutes before he was arrested at 2:40 a.m., and neither of those Charter protections was respected during that period of pre-arrest detention.

[56] In his closing submissions, Mr. Luft conceded that the pre-arrest period of detention lasted approximately 10 minutes.

[57] On section 24(2) of the Charter, Menary argues that this was “obvious and egregious police misconduct”, in the words of Mr. Luft in his closing submissions, and if this Court accepts the defence theory of the case, the ruse, then the exclusion of all of the evidence is the only reasonable answer. If violations of all of sections 8, 9, 10(a), and 10(b) are found by this Court, then the case for exclusion is very strong, Mr. Luft submitted in his closing argument. Alternatively, even if sections 10(a) and (b), alone, are found to have been violated by the police, then exclusion should still result, according to Mr. Luft.

[58] The two major cases highlighted by Mr. Luft in his closing submissions were R. v. Nguyen, 2008 ONCA 49, [2008] O.J. No. 219 (C.A.), dealing with sections 10(a) and (b) and 24(2) of the Charter, and R. v. Kanneh, 2022 ONSC 5413, [2022] O.J. No. 4709 (S.C.J.), dealing with the same sections.

[59] Ms. Chant, for the Provincial Crown, submitted that the arrest of Menary for impaired was a lawful one, and thus, there was no violation of section 9 of the Charter.

[60] Ms. Chant conceded that the detention of Menary commenced when Walker stated that it did, that is when Menary first woke-up after being shaken by Walker, but Ms. Chant submitted there was no violation of either section 10(a) or (b) of the Charter because the detention was under the Highway Traffic Act, R.S.O. 1990, chapter H.8, as amended (“HTA”), section 216(1), and, thus, a brief suspension of Menary’s section 10(a) and (b) Charter rights was justified.

[61] Section 216(1) HTA provides that “[a] police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a vehicle…to stop…”. Ms. Chant submitted that the said section was relevant because this was an investigation of a suspicious vehicle call made to the police.

[62] Ms. Chant argued that there was no violation of section 8 of the Charter because the searches of Menary’s person and his van were done incidental to his lawful arrest. The Crown’s principal position is that the said searches occurred after the arrest of Menary for impaired, however, the alternative position is that this Court could still find a lawful search incidental to an arrest where that arrest occurred just after the search was conducted, citing as authority for that proposition the decisions in R. v. Grant and Campbell, 2015 ONSC 1646 (S.C.J.) and R. v. Larsen, [2021] O.J. No. 1507 (S.C.J.).

[63] On section 24(2) of the Charter, Ms. Briscoe, for the Federal Crown, referred to the Kanneh, supra decision and also relied on these two cases: R. v. Mengesha, 2022 ONCA 654 and R. v. Tim, 2022 SCC 12. There was absolutely no bad faith here by the police; in fact, there was the presence of good faith, it was submitted by Ms. Briscoe. Besides, nothing turns on any potential breach(es) of section 10(a) and/or 10(b) of the Charter because, like in Kanneh, supra, nothing incriminating was obtained by the police during those 10 minutes or so of the pre-arrest detention of Menary, Ms. Briscoe argued.

[64] Mr. Luft, in reply submissions, stated that what occurred here was clearly not a stop under the HTA. And, contrary to the Crown’s argument, there was no good faith exhibited by the police officers, it was submitted.

[65] During the closing submissions of counsel, this Court asked whether, regardless of the determination of the section 10(a) and (b) Charter issues, the Court could consider all of the evidence gathered by the police during the period of the pre-arrest detention of Menary in deciding whether there were reasonable and probable grounds for the arrest of Menary. Ms. Chant answered that question in the affirmative. Mr. Luft answered that question in the potential negative, stating that if the Court found violations of both sections 10(a) and (b), then this may be more like the situation with an information to obtain a search warrant that is found to contain evidence that was obtained contrary to the Charter. In the analogy provided by Mr. Luft, that impugned evidence would normally be excised from the judicial determination of whether the warrant could reasonably have been granted. Similarly, this Court could ignore the evidence gathered by the police during the pre-arrest period of detention in deciding whether the police had reasonable and probable grounds to arrest Menary at 2:40 a.m. (the section 9 Charter issue), Mr. Luft submitted.

The Relevant Legal Principles

Section 9 of the Charter

[66] Fairly recently, the Court of Appeal for Ontario, in R. v. Desilva, 2022 ONCA 879, at paragraphs 56 through 60, summarized the applicable legal principles pertaining to a warrantless arrest.

[56] Section 495 of the Criminal Code requires an arresting officer to have a subjective belief that there are reasonable and probable grounds to arrest. That belief must also be objectively reasonable. It is clear, however, that police are not required to establish a prima facie case for conviction before making an arrest: R v. Storrey, [1990] 1 S.C.R. 241, at p. 251.

[57] There is no difference between “reasonable grounds” and “reasonable and probable grounds”: R. v. Loewen, [2011] 2 S.C.R. 167, 2011 SCC 21, at para. 5. The “reasonable grounds to believe” standard requires something more than a reasonable suspicion, but less than either “proof of beyond reasonable doubt” or the lesser standard in civil matters of “proof on the balance of probabilities”: R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1166; Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100, 2005 SCC 40, at p. 145; R. v. Spence, 2011 BCCA 280, 87 C.R. (6th) 242, at paras. 31, 33; and R. v. Ha, 2018 ABCA 233, 363 C.C.C. (3d) 523, at para. 70; see also, R. v. Kang-Brown, [2008] 1 S.C.R. 456, 2008 SCC 18, at para. 75; R. v. Mahmood, 2011 ONCA 693, 107 O.R. (3d) 641, at para. 114. The Supreme Court has also described the standard as one of “reasonable probability” or “reasonable belief”: Debot, at p. 1166.

[58] The key determination that a court must make is whether a reasonable person, with the same knowledge, training and experience as the arresting officer, would believe that reasonable grounds existed to make the arrest. In so doing, the court must look at the cumulative effect of the totality of the circumstances, bearing in mind any exigent circumstances: Storrey, at pp. 250-51; R. v. Beaver, 2022 SCC 54, at para. 72; R. v. Tim, 2022 SCC 12, at para. 24; Canary, at paras. 21-22 and 30; and R v. Amofa, 2011 ONCA 368, 85 C.R. (6th) 265, at para. 19.

[59] While the reasonable grounds requirement does not rise as high as a balance of probabilities or a prima facie case, mere hunches or intuition based on an officer’s experience are not sufficient: R. v. MacKenzie, [2013] 3 S.C.R. 250, 2013 SCC 50, at para. 64, as cited in Beaver, at para. 72. As this court has held, the standard is satisfied at the point where credibly-based probability replaces suspicion: R. v. Dhillon, 2016 ONCA 308, 335 C.C.C. (3d) 144, at para. 25. The determination of whether objective grounds exist should be guided by common sense, flexibility, and practical everyday experience: MacKenzie, at para. 73; Canary, at para. 22.

[60] This assessment is made “at the time of the arrest”, bearing in mind that an arrest may be a dynamic process, not necessarily a discrete point, and information may be continuously gathered and processed up to the time that the detainee is arrested: Tim, at para. 24; Ha, at paras. 70, 75. The Charter protects citizens from police conduct, not imagination, and consequently, breaches are determined not based on what officers intend to do, but what they actually do: R. v. Clayton, [2007] 2 S.C.R. 725, 2007 SCC 32, at para. 48.

[67] As indicated in the above section of these reasons, during the closing submissions of counsel, this Court asked whether, regardless of the determination of the section 10(a) and (b) Charter issues, the Court could consider all of the evidence gathered by the police during the period of the pre-arrest detention of Menary in deciding whether there were reasonable and probable grounds for the arrest of Menary.

[68] The decision of the Court of Appeal for Ontario in R. v. Milne, and the decision of Justice De Sa in R. v. Lau, 2018 ONSC 2550, at paragraph 40, referring to Milne, supra, stand for the proposition that the Crown was correct in answering that question in the affirmative.

[69] It is a moot point, however, given this Court’s determination of the section 10(a) and (b) Charter issues.

Section 8 of the Charter

[70] In Desilva, supra, at paragraphs 63 through 65, the Court summarized the applicable legal principles relating to searches incidental to arrest.

[63] The ultimate question of whether there were reasonable grounds to arrest is reviewed on a standard of correctness: Canary, at para. 24.

[64] A valid search incidental to arrest must be: (a) lawful; (b) incidental to the arrest, in the sense that it is connected to the arrest, either as a means to discover and preserve evidence connected to the arrest, protect safety, or protect against escape; and (c) conducted reasonably: R. v. Saeed, [2016] 1 S.C.R. 518, 2016 SCC 24, at para. 37; Canary, at para. 33.

[65] The discovery of evidence in support of the arrest is one of the rationales for an incidental search: R v. Stillman, [1997] 1 S.C.R. 607, at para. 33.

Sections 10(a) and 10(b) of the Charter

[71] In our case, this Court is not called upon to resolve any debate about when the period of Menary’s detention at the roadside began. The Crown has conceded that it began when Menary woke-up in the driver’s seat of the van, after being shaken by Walker.

[72] Suffice it to say that I agree with that concession, as it is consistent with the purposive approach to the meaning of “detention” as summarized by the Supreme Court of Canada in R. v. Suberu, 2009 SCC 33, at paragraphs 20 through 25 therein, with reference to the Court’s decision in R. v. Grant, 2009 SCC 32.

[20] Section 10(b) protects the right of a person in detention or under arrest to obtain legal counsel. It reads:

10. Everyone has the right on arrest or detention (b) to retain and instruct counsel without delay and to be informed of that right;

[21] In Grant, we adopted a purposive approach to the definition of “detention” and held that a “detention” for the purposes of the Charter refers to a suspension of an individual’s liberty interest by virtue of a significant physical or psychological restraint at the hands of the state. The recognition that detention can manifest in both physical and psychological form is consistent with our acceptance that police actions short of holding an individual behind bars or in handcuffs can be coercive enough to engage the rights protected by ss. 9 and 10 of the Charter.

[22] While a detention is clearly indicated by the existence of physical restraint or a legal obligation to comply with a police demand, a detention can also be grounded when police conduct would cause a reasonable person to conclude that he or she no longer had the freedom to choose whether or not to cooperate with the police. As discussed more fully in Grant, this is an objective determination, made in light of the circumstances of an encounter as a whole.

[23] However, this latter understanding of detention does not mean that every interaction with the police will amount to a detention for the purposes of the Charter, even when a person is under investigation for criminal activity, is asked questions, or is physically delayed by contact with the police. This Court’s conclusion in Mann that there was an “investigative detention” does not mean that a detention is necessarily grounded the moment the police engage an individual for investigative purposes. Indeed, Iacobucci J., writing for the majority, explained as follows:

“Detention” has been held to cover, in Canada, a broad range of encounters between police officers and members of the public. Even so, the police cannot be said to “detain”, within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be “detained” in the sense of “delayed”, or “kept waiting”. But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint. In this case, the trial judge concluded that the appellant was detained by the police when they searched him. We have not been urged to revisit that conclusion and, in the circumstances, I would decline to do so. [Emphasis added; at para. 19.]

[24] As explained in Grant, the meaning of “detention” can only be determined by adopting a purposive approach that neither overshoots nor impoverishes the protection intended by the Charter right in question. It necessitates striking a balance between society’s interest in effective policing and the detainee’s interest in robust Charter rights. To simply assume that a detention occurs every time a person is delayed from going on his or her way because of the police accosting him or her during the course of an investigation, without considering whether or not the interaction involved a significant deprivation of liberty would overshoot the purpose of the Charter.

[25] For convenience, we repeat the summary set out in Grant, at para. 44:

1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.

2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors: (a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation. (b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter. (c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

[73] It is unclear what precise time that was, when Menary woke-up after being shaken by Walker, but we know that it would have been at about 2:30 a.m. Walker arrived on the scene at 2:28 a.m. It would have taken no more than a couple of minutes for him to run the licence plate, walk up to the driver’s door, make a few observations of the driver, open the door, turn off the van, see the small codeine bottle in the driver’s door pocket, and then shake Menary to wake him up.

[74] We know, as well, that there was no compliance with either section 10(a) or 10(b) of the Charter until after the arrest of Menary at 2:40 a.m. Thus, at a minimum, about 10 minutes elapsed between the detention of Menary and the fulfillment of his section 10(a) and (b) Charter protections.

[75] Neither section 10(a) nor section 10(b) of the Charter employs the word “immediately”. The former uses the word “promptly”, while the latter includes the expression “without delay”.

[76] In our case, the Crown makes no argument that the word “promptly” connotes any longer period of time, and thus would justify a longer period of delay in the police complying with section 10(a) of the Charter, compared to the expression “without delay” as used in section 10(b), and of course any such argument would be inconsistent with the plain meaning of those words.

[77] The law is clear that the police must inform an individual of a right to counsel immediately upon detention, and there is no such thing as some blanket or general suspension of the right to counsel for investigatory purposes. Suberu, supra, at paragraphs 43 and 45.

[78] In other words, my reading of Suberu, supra is that, although not every encounter between an individual and the police will amount to a “detention” for the purposes of the Charter, once a detention is found, including an investigative detention, the police duties to comply with sections 10(a) and (b) arise immediately – from the moment that the individual is detained, subject only to concerns about officer or public safety (none existed in our case, and none was argued by the Crown) or to reasonable limitations that are prescribed by law and justified under section 1 of the Charter [none was argued by the Crown, but for section 216(1) HTA].

[79] The purpose and ambit of section 216(1) HTA was discussed, very neatly, by Justice Code at paragraphs 79 through 81 of the decision in R. v. Humphrey, 2011 ONSC 3024.

[79] Section 216(1) of the Highway Traffic Act authorizes a police officer to stop a vehicle, even in the absence of any reasonable grounds to believe that an offence is being committed against the Act. Arbitrary stops pursuant to this statutory provision have been held to violate s. 9 of the Charter, but are nevertheless saved by s. 1 of the Charter, provided the officer’s true purposes for the arbitrary stop relate to enforcement of the Highway Traffic Act. In this regard, fixed road blocks can be used to stop entirely innocent drivers and random roving stops, without any articulable grounds, have also been held to be justified under s. 1 of the Charter, provided the police act on the basis of “reasons related to driving a car such as checking the driver’s license and insurance, the sobriety of the driver and the mechanical fitness of the vehicle”. In other words, the s. 1 justification for arbitrary H.T.A. stops depends on the officer’s subjective motivation, and not on the existence of objective grounds. See: R. v. Hufsky (1988), [1988] 1 S.C.R. 621, 40 C.C.C. (3d) 398 at 406-7 and 409 (S.C.C.); R. v. Ladouceur (1990), [1990] 1 S.C.R. 1257, 56 C.C.C. (3d) 22 at 37 and 44 (S.C.C.); R. v. Mellenthin (1992), [1992] 3 S.C.R. 615, 76 C.C.C. (3d) 481 at 487 and 490 (S.C.C.).

[80] Given the fragile constitutional basis for these kinds of random “check-stops”, the above line of authority places strict limits on the scope of police questioning and police procedures in the course of such a stop. As Cory J. stated in Ladouceur, supra at 44, explaining the narrow s. 1 justification for random H.T.A. stops:

Finally, it must be shown that the routine check does not so severely trench upon the s. 9 right so as to outweigh the legislative objective. The concern at this stage is the perceived potential for abuse of this power by law enforcement officials. In my opinion, these fears are unfounded. There are mechanisms already in place which prevent abuse. Officers can stop persons only for legal reasons, in this case reasons related to driving a car such as checking the driver’s licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle. Once stopped the only questions that may justifiably be asked are those related to driving offences. Any further, more intrusive procedures could only be undertaken based upon reasonable and probable grounds. Where a stop is found to be unlawful, the evidence from the stop could well be excluded under s. 24(2) of the Charter. [Emphasis added.]

[81] In other words, if the police exceed the narrow s. 1 road safety justifications for a random stop, the s. 9 breach can no longer be saved and the Charter will be violated. In Mellinthin, supra at 487 and 490, Cory J. quoted the above passage from Ladouceur and reiterated the point:

The police use of check stops should not be extended beyond these [road safety] aims. Random stop programs must not be turned into a means of conducting either an unfounded general inquisition or an unreasonable search. … The rights granted to police to conduct check-stop programs or random stops of motorists should not be extended.

Section 24(2) of the Charter

[80] In R. v. Tim, 2022 SCC 12, the majority of the Supreme Court of Canada found three Charter violations – a breach of section 9 in the accused’s unlawful arrest and two breaches of section 8 in the unreasonable search of the accused’s person and the unreasonable search of his motor vehicle. The case, like ours, involved a loaded handgun and fentanyl, among other items.

[81] Although the Court found that the Charter violations were serious enough to pull toward exclusion of the evidence, though weakly, and although the Court found further that the impact on the Charter-protected interests of the accused pulled even stronger toward exclusion, the Court nevertheless admitted the evidence under section 24(2) of the Charter, concluding as follows at paragraphs 96 through 100 of the decision.

[96] The third line of inquiry considers factors such as the reliability of the impugned evidence and its importance to the Crown’s case. It asks “whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion” (Grant, at para. 79). Reliable evidence critical to the Crown’s case will generally pull toward inclusion (see Grant, at paras. 80-81; Harrison, at paras. 33-34).

[97] Here, the evidence seized was reliable and relevant to the Crown’s prosecution of serious offences. The appellant concedes that the admission of this evidence would better serve the truth-seeking function of the criminal trial process than its exclusion. I agree.

(d) The Final Balancing

[98] The final step in the s. 24(2) analysis involves balancing the factors under the three lines of inquiry to assess the impact of admission or exclusion of the evidence on the long-term repute of the administration of justice. Such balancing involves a qualitative exercise, one that is not capable of mathematical precision (see Grant, at paras. 86 and 140; Harrison, at para. 36). Each factor must be assessed and weighed in the balance, focussing on the long-term integrity of, and public confidence in, the administration of justice (see Grant, at para. 68). The balancing is prospective: it aims to ensure that evidence obtained through a Charter breach “does not do further damage to the repute of the justice system” (Grant, at para. 69). The balancing is also societal: the goal is not to punish the police, but rather to address systemic concerns by analyzing “the broad impact of admission of the evidence on the long-term repute of the justice system” (Grant, at para. 70; see also Le, at para. 139).

[99] I have concluded that the first line of inquiry under Grant pulls weakly toward exclusion and the second does so moderately, but the third pulls strongly toward admission. In my view, on these facts, the final balancing does not call for exclusion of the evidence to protect the long-term repute of the justice system. A relatively inexperienced police officer made an honest mistake about the legal status of gabapentin, a prescription drug that is traded on the street and that the appellant tried to hide during a lawful traffic collision investigation. That led to an arrest and searches incident to arrest, and to the discovery of a loaded gun, ammunition, and fentanyl — a drug that has been described as “public enemy number one” (R. v. Parranto, 2021 SCC 46, at para. 93, per Moldaver J.). Excluding this evidence would simply punish the police — which is not the purpose of s. 24(2) — and would damage, rather than vindicate, the long-term repute of the criminal justice system.

[100] I conclude that the admission of the evidence would not bring the administration of justice into disrepute. I would therefore admit the evidence and affirm the convictions on all charges.

The Law as Applied, Factual Findings, and Conclusions

The Burden and the Standard of Proof, and this Court’s Short Conclusion

[82] As stated above in these reasons, it is the Applicant, Menary, who has the burden to demonstrate, on a balance of probabilities, a violation of his Charter right(s) and that the evidence ought to be excluded under section 24(2).

[83] This Court concludes that the Applicant has failed to meet that burden. No Charter violation was committed, and thus no evidence ought to be excluded.

The Defence Submissions and Theory of the Case, Ably Made, are Not Accepted

[84] Menary submits that the impaired by drug allegation was a ruse. He was, in fact, searched and the gun found on his person, among other items, and then the police concocted the impaired allegation afterwards in order to justify the search.

[85] This Court does not accept that. I am not suggesting that Menary was deliberately lying when he testified about the chronology of events at the roadside, but I am saying that he is mistaken. After all, during his testimony in-chief, he did change his evidence about when he was advised of his arrest for impaired. There is nothing wrong with changing one’s evidence; my point is simply that he may not have a clear memory of when that arrest occurred.

[86] I prefer the evidence of the police officers, particularly Walker, about the sequence of events in terms of the arrest for impaired and the subsequent search of Menary’s person.

[87] In coming to that determination, it is not lost on this Court that there were, as Mr. Luft submitted, several inconsistencies in the evidence among the three police officers who were at the scene. They were not inconsistent, however, on the key issue of whether the arrest for impaired occurred before Menary was searched.

[88] This Court recognizes that there were difficulties with the evidence of each and every witness who testified on the voir dire. How Menary could not have known where the loaded handgun strapped to his chest came from or how it had a magazine with bullets stuffed inside it, for example, is hard to believe, yet that is what he testified to. At the same time, though, each of the three police officers had his own weaknesses exposed during cross-examination by Mr. Luft. Just to give one example for each, Pirillo demonstrated quite a poor recollection, unaided by what must have been rather shoddy notes, about many of the things that happened at the roadside. McMichael, though very candid, confessed to having chosen to ask Menary questions about the brown bottle in the van’s driver’s door pocket even though the rest of his answers in cross-examination, while perhaps wrong in law, suggest that he believed at the time that he should have first told Menary about the reason for his detention and informed him of his right to counsel. Walker, who I think generally was the best witness who testified on the voir dire, for either side, demonstrated an inability to articulate any clear reason why he did not provide Menary with his section 10(a) and (b) Charter protections, pre-arrest.

[89] Imperfections aside, however, I believe Walker over Menary on whether the arrest for impaired preceded the personal search. I find that it did.

[90] Further, I disagree with the entire premise for the Applicant’s theory of the case. The argument is founded on the idea that the police were concerned about the SIP caution that Walker had read on his police vehicle’s onboard computer and decided to search Menary without a warrant and absent any arrest. Feeling uncomfortable with that decision afterwards, in terms of the legal justification for it, the police fabricated the notion that Menary appeared to be impaired and created a false story about an arrest for impaired that precipitated the personal search of the detainee.

[91] The challenge of that premise, however, beyond the fact that it is inconsistent with the evidence of Walker that he was not immediately concerned about the SIP caution, which evidence I accept, is that it flies in the face of what would have been a much simpler and a much more compelling course of action by the police, if in fact it is true that they were prepared to do just about anything to search Menary.

[92] That much more simple and more compelling course of action would have been to conduct a pat-down search of Menary. Period. The very same items would have been discovered, including the loaded handgun. Menary would have been arrested for the very same offences that he is currently facing. And the police could have relied on their powers to search without a warrant and absent any arrest.

[93] There has long been recognized in Canada a power to search incidental to investigative detention. Here, the police could have attempted to justify the quick, non-invasive pat-down search of Menary on the basis that they had reasonable grounds to believe that their safety or that of others was at risk, given the SIP caution reviewed by Walker. R. v. Mann, 2004 SCC 52, at paragraphs 36 through 45.

[94] Nobody is above the potential for lying and deceit, including someone with a badge and a gun. But in our case, I do not accept the argument that these three police officers, in circumstances where it would have been totally unnecessary to do so, have put together this alleged fantasy. It makes no sense to me, particularly in light of the well-recognized common law power of the police to, in limited circumstances, search a detainee without a warrant.

[95] As for Menary’s submission that he was not impaired at all, I agree that, given Exhibit 16 and the result of the DRE testing, it is unlikely that he was, in fact, impaired by drug at the roadside. That misses the point of the section 9 Charter issue, however. I will say more about that below in these reasons.

[96] Why is there no evidence of any of the three police officers having ever asked Menary if he consumed any drugs? If he was so impaired, why was Menary not arrested much sooner in the interactions that he had with the various police officers? Those questions, and their logical answers, point towards a conclusion that he was not impaired, Mr. Luft submitted in his closing argument.

[97] I agree that it is strange that none of the three police officers testified that he asked Menary about any prior consumption of alcohol and/or drugs. That has little relevance to the section 9 Charter issue, however.

[98] On the second point, I disagree that there was any languishing on the part of the police. We are talking about a period of about 10 minutes. I find nothing odd about a police officer taking 10 minutes to form his grounds to believe that an individual is impaired, even in a situation where, as here, the person exhibits clear signs of suspected impairment from the outset.

There was no Violation of Section 10(a) or 10(b) of the Charter

[99] Though I was of the view that this argument was Menary’s strongest, a view that I still hold, upon careful reflection I accept the position of the Crown and find that a brief suspension of Menary’s section 10(a) and 10(b) Charter rights, as a detainee, was justified on the basis of section 216(1) HTA and the jurisprudence decided thereunder.

[100] “Suspension” is the word that I have employed, however, it is not really accurate. It is more accurate to say that Menary’s section 10(a) and 10(b) Charter rights did not arise until immediately after he was arrested at 2:40 a.m. And they were fully respected by the police, at that point in time.

[101] Walker responded to a call about a suspicious vehicle parked on a residential street in the middle of the night. I accept Walker’s evidence that a query of the licence plate revealed that the van was registered to a company, and I accept the import of his evidence that, from the very outset of his interaction with the driver of the van, there was reason to investigate the sobriety of the driver.

[102] This was not a random check-stop, the legality of which depends upon the section 1 Charter justification for arbitrary HTA stops and the line of authority in R. v. Hufsky (1988), [1988] 1 S.C.R. 621, 40 C.C.C. (3d) 398 (S.C.C.), R. v. Ladouceur (1990), [1990] 1 S.C.R. 1257, 56 C.C.C. (3d) 22 (S.C.C.), and R. v. Mellenthin (1992), [1992] 3 S.C.R. 615, 76 C.C.C. (3d) 481 (S.C.C.).

[103] Rather, similar to the facts in Humphrey, supra, with reference to paragraph 86 of that decision, by analogy, if Walker honestly and legitimately stopped the van (or we could add, in our case, kept stopped the van or detained the van and its driver) because of his observations of suspected impairment on the part of the driver, remembering that sobriety of the driver is a recognized highway safety concern underlying section 216(1) HTA, then he had, at a minimum, the articulable cause or reasonable suspicion required to continue to investigate that suspected impairment and suspend, briefly, the invocation of Menary’s section 10(a) and 10(b) Charter rights.

[104] That the sobriety of the driver of a motor vehicle is a legitimate concern underlying the power of the police to stop someone under section 216(1) HTA was made clear in the trilogy of cases referred to above, beginning with Hufsky, supra, including at paragraph 44 of the decision of Cory J. in Ladouceur, supra.

[105] If the sobriety of the driver is a legitimate concern in random, routine check-stop cases, then it must be true that it is also a legitimate concern in a non-random, non-routine check-stop case, as ours, and that point was made clear by Justice Doherty in the Regional Municipality of Durham, supra decision, under part V thereof.

[106] I accept Walker’s evidence that the driver of the van was slumped over and unresponsive, difficult to awaken, had unusually large pupils even in the face of a flashlight, and did not seem to know where he was. Those things, alone, were good reason for Walker to reasonably suspect that the driver may be impaired.

[107] In our case, however, the sobriety of Menary was not the only legitimate concern that justified the section 216(1) HTA stop (or more accurately, detention, as this van was already stopped on the side of the road). The other valid HTA concern, which issue arose very early in the initial interaction between Walker and Menary, was the issue of whether Menary was authorized to operate the van, given that the rental agreement did not have his name on it but rather the name of someone else who was not even present at the scene (which is an undisputed fact).

[108] That, too, in my view, provided Walker with articulable cause or reasonable suspicion to investigate further, which he did in obtaining Menary’s driver’s licence and running some queries on his computer inside his police vehicle, suspending briefly Menary’s section 10(a) and 10(b) Charter rights.

[109] To summarize, First, Menary was detained once he woke-up after being shaken by Walker. Second, in the normal course, given that detention, Walker would have had an immediate duty to inform Menary of the reason(s) for his detention and his right to counsel - Suberu, supra, at paragraphs 43 and 45. Third, there was no officer or public safety concern that would have justified any departure from that duty in our case. Fourth, Menary himself testified that he was told by Walker that he was investigating a suspicious vehicle call, but it is unnecessary to rely on that admission by Menary in terms of deciding the section 10(a) Charter issue. Rather, fifth, the section 10(a) and 10(b) Charter issues are more properly determined, and dismissed, on the basis that this was a valid stop (or, more accurately, continued stop) under section 216(1) HTA, to (i) check the sobriety of the driver and (ii) investigate his status as an authorized or unauthorized operator of the rented van. Sixth, that Walker suspected the possibility of other criminal activity, such as a stolen van, does not, by itself, taint the lawfulness of the stop under section 216(1) HTA - Parsons, supra, at paragraph 29. Seventh, under the authority of R. v. Orbanski; R. v. Elias, 2005 SCC 37, at paragraphs 52-53, and subsequent decisions, police compliance with Menary’s section 10(a) and 10(b) Charter rights was not required during those approximately 10 minutes of the pre-arrest detention of Menary.

[110] In the circumstances of this case, Menary’s section 10(a) and 10(b) Charter rights did not arise until immediately after he was arrested at 2:40 a.m., and consequently this Court finds no violation of either Charter protection.

There was no Violation of Section 9 of the Charter

[111] The question is not whether Menary was, in fact, impaired at the roadside. I am prepared to say that he likely was not, given the result of the DRE testing that was performed not long afterwards.

[112] The question, rather, is whether the police had reasonable and probable grounds to arrest Menary for impaired at 2:40 a.m. They clearly did, in my view, as per the law as summarized in the Desilva, supra decision, referred to above.

[113] This was significantly more than a mere hunch or intuition on the part of Walker, the arresting officer. This was very close to, or at, the level of a prima facie case, which is more than what is required.

[114] I pause here to note a discrepancy between the evidence of Pirillo and that of Walker, which discrepancy is unnecessary to resolve but which should be resolved because, otherwise, Menary would rightfully wonder why nothing was said about it. I understood Pirillo’s evidence to be that he was the officer who arrested Menary at 2:40 a.m. I do not accept that evidence. I accept the evidence of Walker that he effected the initial arrest of Menary. That makes much more sense to me, given that Walker was the most experienced police officer on the scene and the only one who was present for the entire encounter with Menary.

[115] Initially unresponsive and slumped over in the driver’s seat of the van, the van stopped on the side of the road in the middle of the night in the winter; unusually large pupils; an inability to say where he was when asked; slurred speech; staring off into space and being unfocussed; a placid effect about him; and slow movements and actions – Walker testified that Menary exhibited all of these indicia of impairment, and I accept that evidence of Walker.

[116] In totality, looked at both subjectively and objectively, there were reasonable grounds to believe that Menary was impaired by a drug and, thus, reasonable and probable grounds to arrest him for that offence at 2:40 a.m. The arrest was not arbitrary. There was no violation of section 9 of the Charter.

There was no Violation of Section 8 of the Charter

[117] The initial arrest of Menary, for impaired by drug, was a lawful one, as found immediately above. There is no issue taken by the Applicant about the lawfulness of the subsequent arrest for the further offences after the money, the drugs, and the loaded handgun were found during the search of Menary’s person. There is no issue taken by the Applicant about the manner in which either the personal search or the vehicle search was conducted. There is no issue taken by the Applicant about whether the searches were connected to the arrests, and therefore truly incidental to them, in that they were done to discover evidence in support of the offence(s) that Menary was arrested for.

[118] Applying the legal principles as summarized in the Desilva, supra decision, referred to above, there was clearly no violation of Menary’s section 8 Charter right.

All of the Evidence Should be Admitted under Section 24(2) of the Charter

[119] If this Court is wrong about the section 10(a), 10(b), 9, and/or 8 Charter issues, and even assuming that the Court is wrong about all of them, in other words assuming that Menary’s rights were violated by the police in every respect suggested by the Applicant, I would nevertheless admit the impugned evidence under section 24(2) of the Charter.

[120] Having rejected the propounded theory of the Applicant’s case that the impaired allegation and the arrest therefor was a ruse, I, like the Court in Tim, supra, at paragraph 83, would have placed these Charter violations at the less serious end of the scale of culpability. I would have found no bad faith, but also no good faith, on the part of the police. I would have characterized the violations as honest mistakes, lacking in any flagrant disregard for Menary’s Charter rights, and in the absence of any evidence of a systemic problem.

[121] I would have found that the first Grant factor, the seriousness of the Charter-infringing state conduct, pulled weakly toward the exclusion of the evidence.

[122] On the second Grant factor, the impact on the Charter-protected interests of the accused, I would have found that it also pulled weakly toward the exclusion of the evidence. The evidence would have been discovered in any event, as I would have concluded that police compliance with sections 10(a) and 10(b) of the Charter, pre-arrest of Menary, would not have altered the course of events. Menary would still have been arrested for impaired by drug. There would still have existed reasonable and probable grounds for that arrest. The subsequent searches of Menary’s person and the van would still have been incidental to the lawful arrests. These determinations about discoverability, in our case, are made with confidence; they are not impermissible speculation – Tim, supra, at paragraph 94.

[123] I would not have described the Charter violations as “fleeting, technical, transient, or trivial”, but I also would have stated that they, even cumulatively, had no “profoundly intrusive” impact on Menary’s Charter-protected interests – Tim, supra, at paragraph 95.

[124] Ours is a case very different than Nguyen, supra, relied upon by Menary. In that case, unlike ours, there was no HTA stop or investigation. And in that case, unlike ours, the section 10(a) Charter violation, conceded by the Crown in that case, was found to have given rise to the very incriminating evidence that resulted in the accused’s conviction – paragraph 22.

[125] In fact, our case is more like Kanneh, supra, also relied upon by Menary. In that case, the evidence was admitted despite the pre-arrest breaches of sections 10(a) and 10(b) of the Charter, partly on the basis of the discoverability of the impugned evidence and the conclusion by the Court in that case that the breaches had a minimal impact on the accused’s Charter-protected interests – paragraphs 147 through 150.

[126] On the third Grant factor, society’s interest in an adjudication of the case on its merits, I would have concluded that it pulled very strongly, about as strong as possible in fact, in favour of admitting the impugned evidence. The evidence is reliable. It is highly relevant, actually critical to the prosecution’s case.

[127] On the overall balancing exercise, I would not have been able to say it any better or any clearer than did Justice Jamal in Tim, supra, at paragraphs 98-99. A loaded handgun, concealed, on a residential street in the middle of the night. A variety of narcotics including “public enemy number one”, fentanyl. These are very dangerous and very serious matters.

[128] I think that an informed member of the public would be shocked to learn that the evidence was excluded in these circumstances. Admission of the evidence would not bring the administration of justice into disrepute; in fact, the inverse is true.

[129] For all of these reasons, the Charter application is dismissed.

Conlan J.

Released: March 20, 2023