Court File and Parties

Court File No.: CR-21-5282 Date: 2023-04-27 Ontario Superior Court of Justice

Between: His Majesty The King – and – Hussein Al Hayawi, Applicant

Counsel: Richard Pollock, for the Federal Crown Robert Dipietro Jr., for the Applicant

Heard: April 3 and 4, 2023

Ruling on Charter Application

DUBÉ J.

Introduction

1On January 15, 2019, Police Constable (“PC”) William Gordon and Dale Roorda stopped the applicant’s vehicle as a result of alleged offences under the Highway Traffic Act, R.S.O., 1990, c. H.8 (“HTA”). Upon speaking with the applicant, who was the sole occupant and driver, PC Roorda detected a strong smell of marihuana emanating from inside the vehicle.

2A warrantless search was subsequently commenced, and the applicant was arrested for possessing a large quantity of marihuana discovered sticking out of a satchel that was located on the passenger seat. PC Roorda conducted a further search of the vehicle incident to arrest and discovered additional illicit substances and three firearms.

3As a result of the arrest of the applicant and search of his vehicle, the applicant was charged with fourteen offences: three counts of possessing a restricted/prohibited firearm without a permit contrary to the Criminal Code, R.S.C. 1985, c. C-46 (“Criminal Code”); three counts of occupying a motor vehicle knowing that located therein was a prohibited/restricted firearm contrary to the Criminal Code; one count of unlawfully transporting a firearm; one count of possessing a prohibited cartridge magazine without a permit contrary to the Criminal Code; three counts of possession of a Schedule I substance, namely MDNA, oxycodone, and alprazolam, contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”); two counts of possession of a Schedule I and IV substances for the purpose of trafficking, namely cocaine and methamphetamine contrary to the CDSA; and one count of possession of cannabis for the purpose of trafficking, contrary to the Cannabis Act, S.C. 2018, c.16 (“Cannabis Act”).

4The applicant has brought an application pursuant to the Canadian Charter of Rights and Freedoms (“Charter”) alleging an infringement of his ss. 8, 9 and 10(a) and (b) rights.

5On April 3 and 4, 2023, a blended trial/voir dire was conducted with respect to the application, and the applicant sought the following relief:

a) An order allowing the application and declaring that the search of the applicant’s vehicle was unlawful, unreasonable, and in violation of his rights under s. 8 of the Charter;

b) An order declaring that upon the applicant’s detention, he was not informed of the reasons thereof nor was he advised of his rights to counsel, contrary to ss. 10(a) and (b) of the Charter;

c) An order declaring that the arrest of the applicant was arbitrary, and in contravention of s. 9 of the Charter; and

d) An exclusion of the evidence pursuant to s. 24(2) of the Charter.

6Before the trial commenced, counts 11, 12 and 13 (simple possession of MDMA, oxycodone, and Alprazolam) were withdrawn at the request of the federal prosecutor.

7At the start of the trial, counsel for the applicant made several admissions, including:

• Jurisdiction;
• The identity of the applicant;
• The substance of the drugs;
• The continuity of all exhibits.

8The two-day trial of this matter is scheduled to continue July 12, 2023.

9The applicant did not testify on the voir dire.

The Evidence

PC William Gordon

10PC Gordon has been a police officer for 15 years.

11On January 15, 2019, PC Gordon and his partner, PC Roorda, were on routine patrol in a marked Windsor Police cruiser. PC Roorda was the driver and PC Gordon was the passenger. At 8:34 p.m., while at a red light on the corner of Ouellette Avenue and Tecumseh Road and heading eastbound, PC Gordon observed a blue Dodge Charger with a rear number plate that was not illuminated, which is an offence under the HTA.

12Although PC Gordon had sufficient grounds to stop the vehicle, after the light turned green, he proceeded to conduct a query of the licence plate as the cruiser proceeded eastbound behind the vehicle to gather further information for officer safety purposes. The query revealed that the registered owner was Abdul Al Hayawi, and that the vehicle was associated to the applicant, Hussein Al Hayawi, who was a suspended driver. By the time the two vehicles had almost reached Hall Avenue, the query was complete, and PC Roorda activated the emergency lights. The Dodge Charger subsequently pulled into the parking lot of an apartment building without issue.

13Once both vehicles were stopped, PC Roorda exited the cruiser and attended at the driver’s door as PC Gordon made his way to the passenger side of the applicant’s vehicle. While at the passenger side, PC Gordon noted that the windows were heavily tinted, which obscured his ability to get a clear look inside the vehicle, but he was eventually able to determine that the driver was the sole occupant.

14At some point, PC Gordon overheard what he assumed to be PC Roorda agreeing to a request by the applicant to exit and inspect the burnt-out number plate light. When the driver opened the door to exit the vehicle, PC Gordon detected what he believed through experience to be a “very strong” odour of “fresh marihuana” from the vehicle. As the applicant proceeded to the rear of the vehicle, PC Roorda advised PC Gordon that he observed a knife and pointed towards the side panel of the driver’s door, which was left open by the applicant. PC Gordon subsequently moved over to the rear driver side of the vehicle and observed a knife in the pocket of the door, which was in a sheaf and approximately 12 inches long. At this point, PC Roorda had positioned himself at the rear driver’s side quarter panel as the applicant proceeded to inspect the burnt-out light.

15During this period, PC Gordon testified that the officers were still pursuing the initial HTA infraction for non-illumination of a number plate. Further, the applicant was being investigated for driving under suspension, which was an arrestable offence, although PC Gordon did not intend to arrest him. As a result of the ongoing HTA investigations, PC Gordon testified that the applicant was not free to leave the scene.

16With the applicant still at or near the rear of the vehicle, PC Roorda made his way to the open driver’s door. Shortly after attending that location, PC Roorda told PC Gordon to place the applicant under arrest for possession of cannabis over 30 grams, which he did at 8:46 p.m. The applicant was subsequently handcuffed and provided with his rights to counsel (“RTC”) and caution from his notebook, which he said he understood. When provided with an opportunity to contact counsel, the applicant stated that he wished to speak to his mother. Since there was no privacy at the scene, PC Gordon advised the applicant that he would be able to speak to a lawyer or his mother once they attended the detention unit.

17PC Roorda was then observed to be inside and searching the interior of the vehicle before advising PC Gordon to arrest the applicant again, this time for possession for the purpose of trafficking times five. PC Gordon did so and provided the applicant with his RTC and caution. When asked if he wished to contact counsel, the applicant again requested to call his mother.

18After searching inside the vehicle, PC Roorda was observed to attend the rear of the vehicle with a key in hand. PC Roorda opened and began to search the trunk while PC Gordon remained with the applicant, who he sat down in an area away from the vehicle. PC Gordon testified that he did not believe a warrant was required to search the trunk as it was conducted incident to the arrest. When the trunk was searched, a large hockey bag located inside was found to contain the following:

a) A Bushmaster 223 rifle; b) Two Canuck 12-gauge shotguns; c) Ammunition.

19A large clear Ziplock bag of marihuana was also seized in the area where the spare tire would normally be situated.

20After the firearms were discovered, the applicant was arrested for a third time at 8:48 p.m. and provided with his RTC and caution. The applicant again wished to contact his mother.

PC Sean Jones

21PC Jones provided evidence with regard to items that were seized by PC Roorda from the applicant’s vehicle during the search, and later filed as exhibits at the trial. These items are as follows:

a) Exhibit #1 – a black shoulder satchel; b) Exhibit #2 – a large black hockey bag; c) Exhibit #3 – five bags of cocaine (from bag A to E); i. Bag A – 17.7 grams ii. Bag B – 24.1 grams iii. Bag C – 1.1 grams iv. Bag D – 1.5 grams v. Bag E – 2.0 grams d) Exhibit #4 – one bag of crystal methamphetamine – 18.3 grams; e) Exhibit #5A and B – two plastic bags of cannabis; i. Exhibit #5A – 189.8 grams ii. Exhibit #5B – 103.2 grams f) Exhibit #6 – black infinity digital scale – no residue; g) Exhibit #7 – larger black infinity digital scale – white residue; h) Exhibit #8 – a black Alcatel flip cellphone; i) Exhibit #9 – a LG smart cellphone.

PC Dale Roorda

22PC Roorda has been a patrol officer with the Windsor Police for 30 years.

23On January 15, 2019, he and his partner PC Gordon were on general patrol in the City of Windsor. While driving eastbound and approaching Hall Avenue on Tecumseh Road East, he observed an older Dodge Charger at approximately 8:34 p.m. with a burnt-out number plate light, which is an infraction under the HTA. The window tinting also prevented him from being able to see inside the vehicle, which was another HTA offence.

24PC Gordon ran the plates through the police computer, and it was determined that a previous driver associated with the vehicle had a suspended licence, which is an arrestable offence. With the results of the computer query and after considering the HTA infractions as well as the vehicle being older and in poor condition, PC Roorda decided to stop the vehicle and make a demand for a driver’s licence, proof of insurance and ownership. He subsequently activated the cruiser’s emergency lights and the vehicle pulled over and stopped without issue in the parking lot of a plaza off Hall Avenue.

25PC Roorda exited the cruiser and walked up to the driver side window, which was down approximately four inches. He advised the driver of the reasons for the stop, attempted to determine how many people were in the vehicle and demanded the above-mentioned documents. While talking with the driver, PC Roorda detected a “strong” or “heavy”, “pungent” odour of cannabis, which was not smoke, emanating from inside the vehicle. PC Roorda testified that although not an expert, he had a hunch, due to the strong odour of marihuana, that there was a large amount of marihuana in the vehicle.

26Based on the odour of marihuana alone, PC Roorda stated that he had grounds under s. 8 of the Cannabis Act (possessing over 30 grams of marihuana), and not the HTA, to conduct a search of the vehicle. PC Roorda testified that despite the odour, he continued the ongoing HTA investigation without knowing whether the applicant would ultimately be ticketed for traffic offences or arrested. At no time did PC Roorda have concerns with respect to the applicant’s sobriety.

27When asked to produce his documentation, the driver, who verbally identified himself as Hussein Al Hayawi, with a birthdate of December 23, 1996, advised that he left his driver’s licence at home. After providing proof of ownership and an insurance card through the small gap in driver’s side window, the applicant asked if he could get out of the car and confirm that the light was not operating – PC Roorda said yes.

28When the applicant exited the vehicle, PC Roorda immediately observed a large hunting knife in the side pocket of the driver’s door. He told the applicant not to make any gestures towards the knife before he grabbed and secured same. The officer then pointed the applicant towards the back of the vehicle, where PC Gordon was standing nearby. Although he is not certain, PC Roorda believes he would have told PC Gordon about the knife. PC Roorda subsequently followed the applicant to the rear of the vehicle and then placed his hand under the light to demonstrate to the applicant that it was not working.

29After the demonstration, PC Roorda walked back to the driver’s side door, which was wide open, with the applicant following behind him. The officer testified that although not detained, the applicant was still not free to leave while he investigated whether 30 grams or more of marihuana was in the vehicle. PC Roorda conceded that the applicant was not told that he was not free to leave the scene, nor was he provided with his RTC, because as he explained, the applicant had not been arrested.

30PC Roorda initially testified that after “he might have stuck” his head in the open driver’s side door “a little bit” while using a flashlight, he observed a large clear Ziplock bag containing marihuana (Exhibit #5B) which was sticking out of a small satchel (Exhibit #1) located on the passenger seat. In cross-examination, PC Roorda was less equivocal, and eventually admitted that it was only after his head and body were partially inside the vehicle, did he first observe the marihuana.

31I pause at this point to comment on an area that I found rather odd with respect to PC Roorda’s evidence. It appears that after the applicant attempted to conceal the interior of the vehicle from PC Roorda by opening, only slightly, the heavily tinted window when he first spoke with the officer, he then strangely leaves the door wide open after he exits the vehicle, providing PC Roorda and anyone else nearby, an opportunity to observe all that was inside, including an illegally large quantity of marihuana situated essentially in plain view on the passenger seat (and, to be discussed soon, a scale and plastic baggies on the centre console). With that being said, I am however reluctant to comment further about this area since the evidence of both officers was not thoroughly explored by either counsel during the voir dire.

32PC Roorda went on to testify that he believed, based on the large quantity of marihuana he observed in the bag and the strong odour, that it was greater than 30 grams. As a result, PC Roorda advised PC Gordon to arrest the applicant under the Cannabis Act for possessing more than 30 grams of marihuana. He then subsequently conducted a physical search of the satchel and of the vehicle’s interior as incident to that arrest.

33The search of the satchel resulted in the discovery of suspected cocaine (Exhibit #3), methamphetamine (Exhibit #4), oxycodone, Zanax, MDNA and an Infinity portable scale. PC Roorda also located another Infinity portable scale in the cupholder of the vehicle’s centre console together with a roll of clear plastic bags (Exhibit #9). Another smaller steak knife was seized from the same pocket of the driver’s side door where the large hunting knife was located.

34After discovering the other drugs, PC Roorda testified that he likely advised PC Gordon to arrest the applicant for possession for the purpose of trafficking under the CDSA. Once the search of the interior of the vehicle was complete, PC Roorda took the keys out of the ignition to search the trunk for additional evidence. When the trunk was opened, PC Roorda observed a large hockey bag (Exhibit #2) and inside discovered three firearms, an empty magazine, and ammunition (56, 12-gauge shells; 19, 7.62 rifle rounds; 2 centre fire rounds; 12, .22 calibre long rounds.) The firearms were subsequently examined and rendered safe. PC Roorda testified that none of the firearms were loaded. Also seized from the hockey bag were the following: a Mastercraft Sawzall, zip ties, a full and medium sized bolt cutter, hammer, pry bar, and LG cell phone (Exhibit #8B). Finally, a second large clear Ziplock bag containing marihuana (Exhibit #5A) was discovered in the area where the spare tire would normally be located.

35PC Roorda testified that he eventually issued the applicant Part 3 summons in relation to four HTA infractions, namely, improper number plate light contrary to s. 62(19) of the HTA, window tint, no clear view contrary to s. 74(1)(a) of the HTA, no insurance card contrary to s. 3(1) of the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25, and drive while under suspension contrary to s. 53(1) of the HTA (Exhibits #11 to #14).

36The veracity of all three officers was not contradicted or seriously challenged on the voir dire. Even though I had some concerns with regards to PC Gordon’s and PC Roorda’s evidence, including the one area noted above, and I found a few relatively minor inconsistencies between their testimony, overall, I can think of no cogent reason why their evidence ought not be accepted in its entirety as true and accurate.

Position of the Parties

The Applicant

37In the absence of reasonable and probable grounds, PC Roorda searched the applicant’s vehicle thereby infringing s. 8 of the Charter. When the search occurred, the nature of the investigation had transitioned from an investigation under the HTA to one under the Cannabis Act. As a result, the detention was no longer authorized pursuant to the HTA and therefore illegal and arbitrary. At that point, the applicant ought to have been advised of the reason for his detention and his RTC. Accordingly, the applicant’s rights were infringed under both ss. 9 and 10(a) and (b) of the Charter.

38Further, the applicant submits that given the seriousness of the breach and the significant impact on his privacy interests, all evidence that the police seized during the search ought to be excluded under s. 24(2) of the Charter.

The Federal Crown

39The position of the federal prosecutor is that the search was valid and based on reasonable and probable grounds, thereby rendering lawful the subsequent search of the vehicle. Even if the police did not have the requisite grounds to search the vehicle, the large amount of marihuana, which contravened the Cannabis Act, was legally discovered in plain view while PC Roorda was still outside the vehicle and scanning the inside of the vehicle for officer safety purposes. The Crown also argues that even if the search is found to be unreasonable, the evidence should not be excluded under s. 24(2) of the Charter.

Analysis

Sections 8, 9 and 10(a) and (b) of the Charter

40Based on the evidence of the officers, which was not contradicted or seriously challenged, I find as follows:

a) That the police stopped the applicant’s motor vehicle pursuant to a lawful HTA investigation which resulted in the applicant being issued four Part 3 Summons for HTA infractions, namely, for improper number plate light, window tint, no clear view, no insurance card, and drive while under suspension.

b) That when initially stopped, the applicant was lawfully detained as incident of the anticipated brief roadside HTA investigation and therefore the detention did not trigger his s. 10(b) rights: see R. v. Harris, 2007 ONCA 574 (“Harris”) at paras. 46-48.

c) That when initially stopped, PC Roorda had the right to attend at the passenger side of the vehicle and speak with the driver, request driving related documents and visually examine the inside of the vehicle with the aid of a flashlight, if necessary, to ensure officer safety or as necessary incident to the lawful HTA investigation: see R. v. Tully, 2022 ONSC 1852 (“Tully”) at paras. 39-42; R. v. Mellenthin, [1992] 3 S.C.R. 615 (“Mellenthin”) at para. 14.

41Shortly after the stop, PC Roorda and PC Gordon, who was situated on the passenger side of the vehicle, both detected a strong odour of marihuana emanating from inside the vehicle.

42PC Roorda testified that while the nature of the investigation changed when he detected the odour of marihuana, he still pursued the HTA investigation without knowing whether the applicant would ultimately receive tickets for traffic offences or instead, be arrested. In this regard, I find that the existence of concurrent or multiple investigations does not invalidate an otherwise lawful vehicular stop and investigation under the HTA, so long as the continuing regulatory police powers do not violate the accused’s Charter rights: see R. v. Nolet, 2010 SCC 24 (“Nolet”) at para. 39.

43Both the applicant and PC Roorda attended the rear of the vehicle when the applicant asked if he could confirm that the number plate was not illuminated. After exiting the vehicle, a large hunting knife was observed by PC Roorda in a door pocket within arms length of where the applicant was seated in the driver’s seat. Once the knife was temporarily seized by PC Roorda for safety purposes, which I find to be reasonable in the circumstances, the officer testified that he showed the applicant that the light was not operable.

44PC Roorda testified that he believed based on the heavy, pungent odour that the applicant possessed more than 30 grams of marihuana, which is contrary to the Cannabis Act. Although the officer relied on the odour of marihuana alone to justify the search, he also testified that the location of the large knife in the vehicle was part of “the totality of what happened that day” and a factor he found to be consistent with someone who may be involved in the drug trade. The officer also admitted at trial that his decision to ultimately search the vehicle had nothing to do with the ongoing HTA investigation.

45I find that while the driver’s side door remained wide open, PC Roorda decided to seize the opportunity and at least visually inspect the inside of the vehicle shortly after the applicant was done examining the rear number plate light. As a result, the issue now becomes whether PC Roorda had the lawful authority to conduct a warrantless search of the applicant’s vehicle for marihuana.

46A warrantless search is presumptively unreasonable and contrary to s. 8 of the Charter: see Nolet, at para. 21.

47Since it appears that PC Roorda relied exclusively on the Cannabis Act to conduct the search, I will not refer to the provincial legislation, the Cannabis Control Act, 2017, S.O. 2017, c. 26 as it played no role in the officer’s subjective grounds to search the vehicle: see R. v. Omar, [2022] O.J. No. 5032 (S.C.) (“Omar”) at paras. 18 and 38.

48Section 8(1)(a) and (2)(a)(b) of the Cannabis Act states the following:

Possession

8 (1) Unless authorized under this Act, it is prohibited

(a) for an individual who is 18 years of age or older to possess, in a public place, cannabis of one or more classes of cannabis the total amount of which, as determined in accordance with Schedule 3, is equivalent to more than 30 g of dried cannabis;

Punishment

(2) Subject to section 51, every person that contravenes subsection (1)

(a) is guilty of an indictable offence and is liable

(i) in the case of an individual who is 18 years of age or older, to imprisonment for a term of not more than five years less a day,

(b) is guilty of an offence punishable on summary conviction and is liable

(i) in the case of an individual who is 18 years of age or older, to a fine of not more than $5,000 or imprisonment for a term of not more than six months, or to both,

49The “odour of vegetative cannabis more strongly suggests an available inference that the presence of cannabis is currently in the vehicle as opposed to the odour of burnt cannabis, which is a less reliable indicator of whether cannabis is currently present…”: see Omar, at para. 36. I find that odour alone, without more, is not enough to form grounds that marihuana was in the vehicle: see R. v. McKenzie-Walcott, 2022 ONSC 1350 at paras. 22-24. The smell of marihuana, whether burnt or not, is too subjective and transitory and therefore an unreliable indicator with respect to whether marihuana is present in a vehicle, or that the amount of marihuana exceeded 30 grams.

50While weapons are often associated with people involved in the drug trade, the presence of a knife within arms-reach of the applicant did not materially assist the officer to form the requisite grounds to search. Accordingly, while I find that PC Roorda sincerely believed that he had the grounds to search the vehicle under the Cannabis Act, objectively, he fell short of that standard: see R. v. Storrey, [1990] 1 S.C.R. 241 at paras. 16-17.

51Once it became clear that PC Roorda had moved to a search under the Cannabis Act, the applicant was illegally detained as there was no reasonable and probable grounds to conduct that search. Accordingly, the applicant ought to have been given his ss. 10(a) and (b) Charter rights. Further, the applicant’s detention was not only illegal, but also arbitrary and contrary to s. 9 of the Charter: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (“Grant”) at para. 56.

52The issue now becomes whether what PC Roorda did before he discovered the marihuana even constituted a “search” within the meaning of s. 8 of the Charter.

53It is clear from the evidence that immediately after PC Roorda formed his grounds to search the vehicle, and before the marihuana was first located, the applicant was not questioned about the odour of marihuana, was not directed to exit the vehicle, nor was there a search of his person – all of which could have formed elements of an unlawful search. The applicant was certainly questioned during the stop, but only in relation to the HTA investigation and on his own initiative, requested and was allowed to exit the vehicle to confirm that his rear number plate light was not operable. As it relates to the applicant’s desire to examine the light, I find that this was something that PC Roorda was more than willing to accommodate, as it would provide him with a much better opportunity to conduct at least a visual examination of the interior of the vehicle.

54When PC Roorda looked inside the vehicle, he used a flashlight. Using a flashlight is normally justified as necessary incident to a lawful detention and investigation or for police safety purposes: see Mellenthin, at para. 14. In this case, PC Roorda did not specifically train his flashlight inside the vehicle to assist him with the HTA investigation but instead, to locate marihuana. The record is thin, but I also find that shortly after the applicant exited the vehicle, the officer would have satisfied himself of one of his initial objectives, namely, that no one else was in the vehicle. I also find that when PC Roorda returned to the open driver’s door and shined the flashlight inside the vehicle, he had no immediate police safety issues since the knife found in the pocket of the driver’s door had already been seized and the applicant was under the watch of PC Gordon near the rear of the vehicle. In fact, when asked why he used the flashlight, PC Roorda did not refer to any specific safety concerns but instead said “…to give me a better picture of what’s inside.” As a result, I am satisfied that the flashlight used by PC Roorda was an integral part of the visual scan that resulted in the marihuana being discovered inside the vehicle.

55PC Roorda initially testified that he may have stuck his head inside the vehicle, but later conceded that his body was in fact partially inside the driver’s door at the time he discovered the marihuana. Whether his body was inside or outside the vehicle when he located the marihuana is of no real importance, as I am satisfied that the sole purpose for his attendance at the driver’s door at this point was not in furtherance of the HTA investigation, but instead to attempt to find, at least through a visual examination, the source of that pungent odour.

56Accordingly, I find that PC Roorda’s conduct, including his use of a flashlight, all constituted elements of a search, albeit without the requisite grounds, within the meaning of s. 8 of the Charter.

57I note that while it may have been assumed, PC Roorda was never asked, nor did he ever say whether a hands-on physical search would have even taken place if he failed to observe the marihuana (or perhaps other illicit substances or contraband) in plain view when he initially looked inside the vehicle. In any event, it appears that within seconds after leaning his body inside the vehicle, PC Roorda discovered the marihuana, which resulted in the applicant being arrested by PC Gordon for possessing more than 30 grams contrary to the Cannabis Act. When provided with his RTC and caution and then asked if he wished to contact counsel, the applicant requested to call his mother instead. After being arrested and given his RTC on two further occasions during the search, the applicant repeated that he only wished to contact his mother.

58By this point, what would have been a relatively brief roadside HTA investigation turned into a longer (although the exact time is unknown), more intrusive detention, and then an arrest and subsequent search of the vehicle incident to that arrest. As a result of the vehicle search, which included the satchel on the front seat and the hockey bag in the trunk, a significant quantity of various drugs and three firearms together with ammunition were seized by police. There is no evidence to suggest that the applicant was ever searched by the police during the roadside stop.

59While the defence did not press this issue hard during submissions, it appears that after the applicant was arrested and given his s. 10(b) rights, the police failed to facilitate access to counsel by providing him at the scene with the use of a cellphone (PC Gordon testified he had a police-issued cell phone while PC Roorda was not sure if he had been issued one yet). Both officers testified that because of the lack of privacy, it was their practice to hold off until the applicant was at the police station before facilitating contact with counsel. Whether, in the circumstances, the officers’ reasons for denying the applicant access to a cellphone at the scene was correct, the evidence is clear that when asked on three occasions if he wished to exercise his s. 10(b) rights, the applicant requested to speak only to his mother and not counsel – thereby not triggering his s. 10(b) rights: see R. v. Tremblay, [1987] 2 S.C.R. 435 at para. 7; R. v. Cheema, 2018 ONSC 229 at para. 31; R. v. Zoghaib, 2005 ONSC 7000 at paras. 49-54, aff’d 2006 ONCA 209. When a detainee does not tell the police the reason why he or she wishes to speak to a third party, there is no obligation on the police to determine why the detainee made such a request.

60As a result, under all the circumstance, I do not find that the police inaction at the scene amounted to be a breach of the applicant’s s. 10(b) rights. In any event, at no time did the applicant participate in a process or was put in a position where he potentially could have or did incriminate himself.

61In conclusion, I find that the applicant’s arrest and the search of the vehicle was unlawful and unreasonable because it lacked reasonable and probable grounds to believe that an offence had been committed under the Cannabis Act. Further, at that moment when PC Roorda intended to search the vehicle for marihuana, the applicant’s detention also became unlawful and therefore arbitrary, and he ought to have been given his RTC. Accordingly, as a result of the police conduct at the scene, the applicant’s rights under ss. 8, 9, and 10(a) and (b) of the Charter were infringed.

Section 24(2)

62In Grant, the Supreme Court of Canada held that s. 24(2) requires that judges assess and balance the effect of admitting evidence that resulted from a breach of the Charter, having regard to the following factors:

a) The seriousness of the Charter-infringing state conduct;

b) The impact of the breach on the Charter-protected interests of the applicant, and

c) Society’s interest in the adjudication of the case on its merits.

Seriousness of the Charter-Infringing State Conduct

63The Charter standards for a search by police based on the odour of burnt marihuana was settled and has been in place since R. v. Polashek (1999), 172 D.L.R. (4th) 350, 45 O.R. (3d) 434 (C.A.), but the power to search based on a heavy, pungent vegetative odour of marihuana is less settled or at least less definitive. As noted in Omar at para. 36, the odour of vegetative marihuana more strongly suggests that cannabis is currently in the vehicle. In this case, that inference is even greater when the odour of fresh marihuana is coupled with the presence of a large hunting knife within arms reach of the driver. However, the problem as I see it is that not only did PC Roorda testify that he believed, based on the odour alone, that marihuana was physically present in the vehicle, but that its weight exceeded 30 grams, thereby constituting an offence under the Cannabis Act. I find that PC Roorda was mistaken and ought to have known, based on the circumstances, that the odour of marihuana, even when coupled with other factors, including the knife, were legally insufficient to justify a search of the vehicle under the Cannabis Act. I am however nonetheless satisfied that the breaches were not wilful or deliberate and that PC Roorda honestly believed at the time that he had sufficient grounds to search the vehicle.

64Further, the initial part of the search was not at all invasive until the marihuana was discovered, and it transitioned into a physical search (albeit, as a direct result of the unlawful visual search) – and again, it is still unclear in my mind whether PC Roorda even intended to conduct a physical search when he first shined the light inside the vehicle. Although the applicant was denied his s. 10(b) rights during that short period leading up to and including the initial visual search when he was unlawfully detained, he was not questioned about the marihuana or ordered by police to exit the vehicle to facilitate a search. The applicant was also not searched at this or apparently any other time at the roadside, although arguably the police could have arrested the applicant for driving while under suspension, which likely would have justified at least a protective pat down search. While I cannot conclude, in all the circumstances, that PC Roorda’s conduct was, on the scale of things, one of the more significant departures from Charter standards as it relates to police search powers, I still find that the unlawful arrest and detention of the applicant and the search of the vehicle, in the absence of reasonable and probable grounds, will “inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute”: see Grant, at para. 74.

65As an additional aggravating factor, there were multiple breaches of the applicant’s Charter rights and no extenuating circumstances that mitigated the seriousness of the breaches, such as the violation being motivated by a situation of urgency. Even though I do not find that the police acted in bad faith, and in fact I make a positive finding that PC Roorda honestly but mistakenly believed that he had grounds to search the vehicle and its contents, nonetheless “…ignorance of Charter standards must not be rewarded or encouraged, and negligence or wilful blindness cannot be equated with good faith”: see Grant, at para. 75.

66In terms of tempering the seriousness of the breaches, I am satisfied that the s. 10 Charter violations were relatively brief and, as indicated, no attempt was made by police through questioning or other potentially incriminating processes to elicit evidence from the applicant. Further, on each occasion when the officer discovered the quantity of marihuana, the other drugs and ultimately the firearms, the applicant was promptly arrested and given his s. 10(b) rights and caution. Finally, I find that at all times during the investigation, both officers acted professionally and treated the applicant with respect.

67Overall, and especially after considering the number of breaches and relative seriousness of the s. 8 Charter breach, I find that the first inquiry strongly favours exclusion of the evidence.

Impact on the Charter-Protected Interests of the Applicant

68In Grant, at para. 76 the Court stated that the focus at this stage is “on the seriousness of the impact of the Charter breach on Charter-protected interests of the applicant.” The more serious the impact, the greater the risk that admission of the evidence would bring the administration of justice into disrepute: see R. v. Morrison, [2015] O.J. No. 7793 (S.C.) at para. 63.

69In this case, the initial HTA stop was lawful and but for the discovery of the marihuana, it would have been short: see R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 (“Harrison”) at para. 30. The subsequent breach of the applicant’s ss. 9 and 10 rights, at least as it relates to the visual search of the vehicle, was not invasive and relatively brief. A more intrusive detention and physical search of the vehicle and its contents incident to his unlawful arrest commenced only after a large quantity of marihuana was discovered by the police, sticking out from a satchel that was located essentially in plain view on the passenger seat. It is this unlawful search, and not the other breaches, that had a direct and causal connection to the discovery of the marihuana. During the roadside stop, the applicant’s encounter with police was not at all demeaning to his dignity (see Harrison, at para. 30) and while he was handcuffed and unlawfully detained, the impact on his person was limited since the police apparently did not physically search him, even incident to arrest.

70Importantly, not only did the applicant have a lower expectation of privacy in a motor vehicle as opposed to, for instance, a dwelling house (see Harrison, at para. 30), he had little to no privacy interest in a vehicle that was not even registered in his name: see R. v. Bakal, 2021 ONCA 584 at para. 131 (per Paciocco J.A.). Further, without more in terms of a nexus between the applicant and the contents of the vehicle, he also had little to no privacy interest in the satchel, which was located nearby, or the hockey bag that was discovered by police inside the trunk of a vehicle that was under his care and control, but again owned by someone else.

71This case is different from the circumstances in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 (“Mann”). In Mann, the relatively non-intrusive nature of the detention and search of the accused by police, when weighed against the absence of any reasonable basis for the search, resulted in the exclusion of evidence. In the case at hand, the search by PC Roorda was rooted in the presence of a heavy and pungent odour of fresh marihuana that emanated from the vehicle, as well as perhaps a large knife found near the applicant – which PC Roorda testified was part of the totality of circumstances. Although I found the grounds not objectively reasonable, there was certainly an underlying evidentiary basis that PC Roorda relied on before he searched the vehicle.

72In sum, I find that the second inquiry is near the low end of the spectrum in terms of favouring exclusion.

Society’s Interest in Adjudication on the Merits

73Since this is a case in which “one, but not both, of the first two inquiries pushes strongly toward exclusion of the evidence”, the third inquiry is important: see Tully, at para. 174.

74At the third stage of the inquiry the question is whether “the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion”: see Grant, at para. 79.

75Relevant factors in this analysis include the seriousness of the charge, the reliability of the evidence, and the importance of the evidence to the prosecutor’s case. There is no doubt that the charges in this case are extremely serious. The presence of firearms together with large quantities of drugs located in the vehicle created a lethal and direct threat to the community. If the highly reliable evidence seized by police is excluded from the trial, the prosecutor’s case against the applicant is gutted.

76In relation to the third inquiry, I find, as did the Court in R. v. McColman, 2023 SCC 8 (“McColman”), the following at para. 73:

In light of the reliability and importance of the evidence as well as the seriousness of the alleged offence, the third line of inquiry pulls strongly in favour of inclusion. Admission of the evidence in this case would better serve the truth-seeking function of the criminal trial process and would not damage the long-term repute of the justice system.

77As a result, the third inquiry strongly favours the admission of the evidence.

Balancing of Factors

78Although there were multiple breaches, including a relatively serious violation of the applicant’s s. 8 right that resulted in a negative, albeit fairly minimal, impact on the applicant’s Charter-protected interests, after considering the very serious nature of the charges and the highly reliable evidence that is critical to the prosecutor’s case, I am satisfied that the case for exclusion in the first and to a lesser extent in the second line of inquiry is clearly outweighed by the third line of inquiry: see McColman, at para. 74.

79Accordingly, in all the circumstances, I find that the evidence should not be excluded.

Conclusion

80In conclusion, I find that the evidence seized by the police from the motor vehicle driven by the applicant is admissible at the trial.

Brian D. Dubé