COURT FILE NO.: CR-22-89 DATE: 2023 04 28

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – PARTEEK GHUMAN

Counsel: Ms. J. Briscoe, for the Crown Mr. R. Posner, for Parteek Ghuman

HEARD: April 4, 5, 6 and 12, 2023

RULING ON VOIR DIRE:

APPLICATION MADE PURSUANT TO

SECTIONS 8, 10(B) AND 24(2) OF THE CHARTER

CHOZIK J.

INTRODUCTION

[1] The Applicant, Parteek Ghuman, stood trial on two charges: possession of fentanyl for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 and obstruction of justice contrary to s. 129 (a) of the Criminal Code, R.S.C. 1985, c. C-46. The charges arose out of a motor vehicle stop and a search of his vehicle conducted by an officer of the Halton Regional Police Service (“HRPS”).

[2] The Applicant alleged that the Officer violated his right to be secure against unreasonable search or seizure and his right to counsel guaranteed under s. 8 and s. 10(b) of the Charter. The Applicant sought an order excluding evidence seized from his car pursuant to s. 24(2) of the Charter. This evidence included approximately 318 grams of fentanyl, a digital scale, two cell phones, and Canadian currency that was found both loose and bundled with elastics. The defence also sought to exclude evidence that the Applicant gave the Officer a false name when he was stopped.

[3] By agreement, the trial proceeded in a “blended” fashion. A voir dire was held. The Crown called two witnesses: the Officer and D.C. Pateman. Other non-contentious evidence was filed with the consent of the defence. The evidence at the voir dire then applied to the trial.

[4] There were three issues to be decided on the Application:

1. Was the warrantless search of the Applicant’s vehicle reasonable?
2. Was the Applicant informed of and given the right to retain and instruct counsel without delay?
3. If these constitutional rights were violated, would the admission at his trial of the illegally obtained evidence bring the administration of justice into disrepute?

[5] At the conclusion of the voir dire, in brief oral Reasons given on April 12, 2023, I found that the Applicant’s rights under s. 8 and s. 10(b) of the Charter were violated. I concluded that the breaches were very serious, that the impact on the Applicant’s interests was significant and that the admission of the evidence would bring the administration of justice into disrepute. Evidence of the drugs, cash, digital scale, cell phones and the false name was excluded. Given no other evidence of the offences, the Applicant was acquitted.

[6] I indicated that more detailed Reasons for my decision would follow. These are those Reasons.

BACKGROUND

[7] Many of the key facts on the Application were not in dispute.

[8] On Sunday September 13, 2020, the Officer, with two and a half years of experience, was on uniform patrol working a night shift. He was in his police cruiser in the parking lot of the Admiral Inn in Burlington running queries on the license plates of cars in the parking lot. The Admiral Inn is in a high crime area, known for human trafficking, drug trafficking and drug use. The Officer was running license plates looking for stolen vehicles and evidence of other crimes.

[9] At 7:03 pm, the Applicant’s vehicle caught his attention. It travelled on a nearby road at a high speed. The Officer followed it, “paced” it for about 30 to 60 seconds and stopped it.

[10] There is no dispute that the Officer stopped the Applicant’s vehicle lawfully, exercising his authority under the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”). He had determined that it was being driven at a speed of 79 km in a posted 60 km zone. While he “paced” it, he ran a computer check on the license plate. The results indicated that the Applicant, who was the registered owner of the car, was a novice driver and that his driver’s license had been suspended. Based on these two undisputed facts, the Officer had lawful authority to stop the vehicle pursuant to the HTA.

[11] What initially was a lawful stop under the HTA quickly became a full search of the vehicle and its contents ten minutes later.

[12] When he ran the license plate of the car while “pacing” it, the Officer learned that the Applicant was the subject of an on-going drug investigation. There was a “surveillance hit” registered on CPIC. The “hit” identified the Applicant, the registered owner of the vehicle, as a 19-year-old South Asian male. The “hit” instructed officers not to “divulge interest” to the Applicant. A “special” note indicated: “if arrested or contact made, immediately contact D.C. Pateman”. D.C. Pateman’s phone number and email were set out in the “hit”.

[13] The “surveillance hit” was requested on CPIC by D.C. Pateman. He testified that he was investigating the Applicant and his associates for drug trafficking. The investigation was in its infancy. D.C. Pateman acknowledged that he was not happy about the Officer arresting the Applicant. It meant that the investigation was at an end before the police had an opportunity to fully extract its fruits.

[14] Significantly, although he knew about the “hit” before he stopped the Applicant’s vehicle, the Officer did not note that he had this information in his notes. It was not until the morning of the preliminary inquiry, 18 months later, that he told the Crown that he knew the Applicant was the target of an ongoing drug investigation before he stopped him.

The Stop

[15] The Officer stopped the Applicant’s vehicle at 7:05 pm. He approached the driver’s side of the vehicle. The Applicant was the lone occupant. He told the Applicant the reasons for the stop: speeding, and the fact that the registered owner’s driver’s license was suspended. He asked the Applicant for his driver’s license, ownership, and insurance. According to the Officer, the Applicant appeared very nervous and was visibly shaking. He produced the ownership and insurance but told the officer that his driver’s license was at home. He verbally identified himself to the officer as “Jeshaun” (not Parteek) Ghuman, and provided him with a date of birth.

[16] The Officer returned to his cruiser and queried the name and date of birth provided by the Applicant. It came back as a real person. The Officer testified that he then genuinely believed that he was dealing with “Jeshaun Ghuman”, and not the Applicant who was the target of the ongoing drug investigation.

[17] The Officer testified that when he returned to speak to the Applicant, he detected a strong smell of cannabis in the car. He asked the Applicant about it. The Applicant said that it was his brother’s car and that his brother smoked marijuana. The Officer did not ask who his brother was.

[18] According to the Officer, at that point he was investigating the “smell of marijuana”. He told the Applicant to step out of the vehicle and that he was going to conduct a search of the vehicle as authorized under the Cannabis Control Act, 2017, S.O. 2017, c. 26, Sch. 1 (“CCA”). He testified repeatedly, in chief and in cross-examination, that his search was based on the smell of marijuana in the vehicle.

[19] Before he began the search, the Officer also asked the Applicant if there was “anything illegal in the car”. He testified that this was “a general question” he usually asked before conducting a search. The Applicant responded that he did not know what was in the car. The Applicant reached into the backseat of the car, grabbed a black backpack, and placed it on the front passenger seat. The Officer testified that he believed the Applicant when he said that it was his brother’s car and that he did not know what was in the car.

The Search, the Arrest, and Rights to Counsel

[20] The Officer started the search on the driver’s side of the vehicle at 7:15 pm. He first saw a small amount of cannabis shake on the floor of the driver’s seat and found an empty Ziploc bag from which he said he could smell marijuana. The Officer testified that neither the shake nor the empty bag were responsible for the smell of cannabis he had detected. The Officer did not seize any of the shake or the empty Ziploc bag.

[21] Next, the Officer saw a large quantity of cash in the centre console. Some of the cash was loose and some was rolled up and fastened by elastics. The Officer asked the Applicant, who was standing at the side of the road, why he had so much cash. The Officer admitted that this question was part of an investigation into a criminal offence. He was no longer investigating an offence under the CCA. The Applicant said he was on his way to a buy a BMW in Oakville. The Officer acknowledged that at this point, the Applicant was under investigative detention and should have been given his rights to counsel.

[22] The Officer next unzipped the black backpack which the Applicant had put on the front passenger seat. Inside the front pocket of the backpack, he located two Ziploc bags containing a purple rock substance he believed was fentanyl.

[23] The Officer arrested the Applicant for possession of a controlled substance under the Controlled Drugs and Substances Act. The arrest was at 7:19 pm. The Officer read the Applicant the rights to counsel from the back of his notebook. In response to the question “do you wish to call a lawyer now”, the Applicant said “yeah, I don’t have one.” The Applicant was then placed in the cruiser.

[24] The Officer continued to search the vehicle. At 7:22 pm he located digital scales in the backpack and more fentanyl in the car, including two baggies on the floor of the rear passenger side, and then a small amount of what he believed was fentanyl in a dime bag in the front centre console area near the gear shift.

[25] From start to finish the search of the vehicle took 15 minutes. During the search, until his arrest, the Applicant stood at the side of the road with P.C. Morris. P.C. Morris had arrived shortly after the Officer started the search. The Officer had called for backup earlier when he decided to search the vehicle. P.C. Morris was not called as a witness. The Officer testified that her purpose in being there was as backup to watch the Applicant. Later, she secured the tow of the vehicle to the detachment.

[26] Once he completed his search of the Applicant’s vehicle, the Officer requested a K9 unit to do a secondary search of the vehicle. P.C. Gibson arrived with a canine at 7:38 pm and performed the secondary search. The Officer contacted and spoke with the detective on duty for the regional drug unit, to advise of the drug arrest. It is the policy of the HRPS to then send a police officer assigned to the drug unit to assist the uniform patrol officer. D.C. Pateman attended later at the station. The Officer debriefed him and turned over the seized evidence.

[27] Despite the Applicant responding affirmatively at 7:19 pm to the question of whether he wanted to contact a lawyer, and his search of the vehicle being concluded ten minutes later at 7:29 pm, the Officer remained at the scene with the Applicant lodged in the back of his cruiser until 8:01 pm.

[28] At 8:01 pm, the Officer departed the scene with the Applicant. They arrived at the detachment at 8:21 pm. The Officer then called duty counsel and left a message at 8:28 pm. Although he was the officer in charge, The Officer testified that he did not know whether or when the Applicant spoke with counsel. He thought the Applicant had spoken to counsel because when he re-arrested the Applicant at 9:43 pm for obstruction of justice, possession of proceeds of crime and driving while his license was suspended, and re-read the rights to counsel, the Applicant said he had already spoken to a lawyer.

[29] It was agreed by the parties that the Applicant spoke to duty counsel at 8:38 pm.

ANALYSIS

Issue One: Was the Search of the Vehicle Reasonable?

[30] There was no dispute that the search of the Applicant’s vehicle was without prior judicial authorization. The seizure of the vehicle and its transportation to the police detachment was also warrantless. Warrantless searches and seizures are presumptively unreasonable unless justified by the Crown. A search or seizure will be reasonable if it is authorized by law, the law itself was reasonable and the manner in which the search or seizure was carried out was reasonable: R. v. Collins, [1987] 1 S.C.R. 265, at p. 278; R. v. Lee, 2017 ONCA 654, at para. 82.

[31] In this case, the Crown sought to justify the search of the vehicle as lawful under the Cannabis Control Act.

[32] Section 12 of the CCA states:

Transporting cannabis

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

Exception

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

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

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

Search of vehicle or boat

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

[33] To justify the warrantless search, the onus was on the Crown to demonstrate, on a balance of probabilities, that the requisite elements of the section are made out.

[34] The intent of the provincial legislation is to ensure that drivers of vehicles and boats do not have marijuana readily available for consumption. To that end, when it is being transported in a car or boat, cannabis must be either sealed in its original packaging or packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle: R. v. Williams, 2021 ONCJ 630; R. v. Myers, unreported decision, June 16, 2021 (Pirraglia J., Newmarket), at paras. 26 to 28; R. v. Sappleton, 2021 ONSC 430, at paras. 42-50.

[35] The Crown argued that the smell of marijuana was sufficient for the Officer to form grounds to believe that cannabis was being transported illegally and authorized him to search the vehicle.

[36] I did not accept the Crown’s argument that the search in this case was authorized under the CCA. First, the smell of cannabis alone, without more, is not a sufficient legal basis for a search under the CCA. Second, I did not believe the Officer’s evidence that he had grounds to search the vehicle under the CCA. Indeed, he admitted at one point in cross-examination that he realized in retrospect that the smell of cannabis alone was not grounds to believe it was being transported illegally and that he had no authority to search under the CCA.

Grounds for the Search

[37] Courts must be cautious about concluding that searches or arrests based on smells are justified: R. v. Newell, 2015 ONCJ 564, at para. 18. In R. v. Polashek (1999), 45 O.R. (3d) 434 (CA), at para. 13, Rosenberg J.A. made clear that:

The sense of smell is highly subjective and to authorize an arrest solely on that basis puts an unreviewable discretion in the hands of the officer. By their nature, smells are transitory and thus largely incapable of objective verification. A smell will often leave no trace.

[38] In this case, the perceived smell of cannabis did not give rise to reasonable grounds for a search of the vehicle. This was not a case where the perception of the smell of marijuana was accompanied by observations of drugs, drug paraphernalia, an admission of recent consumption or possession, any indicia of impairment, or any other indicia that cannabis was being transported illegally or within reach of the driver: R. v. Osit, 2017 ONCJ 824, at para. 26.

[39] The perceived smell of cannabis also did not explain why the Officer unzipped the backpack and searched it. Had there been cannabis in the backpack, it was being lawfully transported: it was inside baggage zipped shut in the backseat, where it was not readily available to the driver.

[40] In its factum, the Crown argued that had the cannabis been properly packaged the officer should not have been able to smell it. This argument was not supported by the evidence. The Officer testified that smell alone is not indicative as to how cannabis is transported. He testified that fresh cannabis could be in a trunk or a safe, well out of reach of a driver, and still smell really strong.

[41] The Officer testified that he was trained to detect the smell of marijuana at the police college and to distinguish between the smell of burnt and fresh marijuana. He gave no evidence as to whether the smell in the Applicant’s car was that of “burnt” or “fresh” marijuana. In some cases, the smell of “burnt” marijuana in a car or boat can give rise to reasonable grounds to believe that it is being transported illegally: R. v. Omar, [2022] O.J. No. 5032, at para. 16. There was no such evidence in this case.

[42] The Officer also testified that he had no concerns about impairment. He testified that he did not even conduct an investigation in this regard. I therefore inferred that he had no concerns about recent consumption of cannabis by the driver.

[43] The Officer testified that the smell in the car was strong. It “stunk”. It was a “stench”. Yet there was nothing found in the car that could explain this perceived smell. The shake on the floor did not cause that smell. There was no other cannabis in the car. The source of the purported smell remains a mystery.

[44] The Officer’s evidence about his grounds for the CCA search was internally inconsistent. For the most part, he said his grounds were that there was a smell of cannabis in the car. He seemed to believe that the smell of cannabis was sufficient for his grounds, though at times he seemed confused. Occasionally during his testimony, when prompted, he would add that he also had grounds to believe cannabis was in the car and that it was being transported illegally. I did not believe this aspect of his evidence.

[45] The crux of his evidence about his grounds to search the vehicle is summed up at pages 64 to 66 of the preliminary inquiry transcript, which he adopted at this trial. There, the following exchange took place:

Q: I thought you and I agreed – and perhaps I’m mistaken – that the fact that you smell cannabis in a vehicle doesn’t mean it’s being transported illegally. Right? A: No. That was my belief at the time. Q: You obviously agree with me, I take it, that the fact that you can smell cannabis in a vehicle doesn’t mean it’s being transported illegally. Right? Obviously. A: I believe that – I believe it’s a possibility that it is, yes. Q: You believe what’s a possibility that what is? A: That cannabis – if I can smell cannabis within a vehicle when I’m speaking to a driver- Q: Yes. A: - at the driver’s – at the driver’s side door- Q: Yes. A: - that I believe that there is cannabis within the vehicle that’s being transported illegally. Q: You mean that when you smell it, it’s possible that it’s being transported illegally? That’s your point? A: Yeah. Q: It’s in the realm of possibilities, right? A: Correct. Q: Okay, I understand. Now I understand. Because you smelled cannabis in the vehicle, there was a possibility that it may have been transported illegally, correct? A: Correct. I formed reasonable grounds that there was cannabis in the vehicle. Q: I’m sorry? I beg your pardon? I’m sorry, I didn’t understand that. A: Oh, you just – you cut me off, sorry. Yeah, that was – that was- yeah. So that was my belief based off of that that there were – that there was cannabis within the vehicle – Q: Yes, sure. A: - right, being stored illegally. Q: There are two things. You believed there was cannabis in the vehicle. That’s not illegal, right? You and I agree on that, right? A: Correct. Q: And so you had reasonable grounds to believe that there was cannabis in the vehicle. I guess that’s your point. Now I’m putting two and two together. You’re saying you had reasonable grounds to believe there was cannabis in the vehicle, is that what you’re saying? A: Correct. Q: And a possibility that it was being transported illegally, is your point? A: Correct. Q: Okay. All right. You had reasonable grounds to believe there was cannabis in the vehicle; and you didn’t have reasonable grounds to believe that it was being transported illegally, but you recognized that it was a possibility? Do I have that right? A: Correct. Q: Understood; and so based on that you decided to conduct a search, right? A: Correct. Q: And your understanding obviously of the Cannabis Control Act, based on what I’m hearing right now, is that when you have reasonable grounds to believe that there’s cannabis in the vehicle – and a possibility that it’s being transported illegally – then you may of course conduct a search of the vehicle without a warrant. Correct? A: Correct.

[46] Although in re-examination the Officer said that he knew that to conduct a search under the CCA, he had to have reasonable grounds to believe there is cannabis within the vehicle and there is an offence in regard to it being stored improperly, and that he believed he had those grounds, I did not accept this to be the case. There was nothing to support this claim, and it was inconsistent with much of his testimony. Ultimately, I took his evidence to be that he had reasonable grounds to believe that there was cannabis in the vehicle but that there was only a “possibility” that it was being transported illegally. He expressly acknowledged in cross-examination that he did not have reasonable grounds to believe that cannabis was being transported illegally.

[47] The Officer testified that when he asked the Applicant if there was anything “illegal” in the car, he was thinking about illegal drugs (not cannabis) and knew that he had to advise the Applicant of his rights to counsel. I find that the Officer had clearly embarked on a criminal investigation before he searched the vehicle.

[48] As a result, I found that when he searched the Applicant’s vehicle, the Officer did not have reasonable grounds to believe cannabis was being transported contrary to the CCA. I therefore concluded that the search conducted by the Officer was not authorized by law and was not reasonable.

Credibility and Reliability of The Officer’s Evidence

[49] In addition to the internal inconsistencies about his grounds to conduct a CCA search of the vehicle, I also found other aspects of the Officer’s evidence troubling. First, I did not believe his evidence that he genuinely believed that he was dealing with “Jeshaun” at the roadside. Second, I did not believe his explanations for why he omitted the information about the “surveillance hit” from his notes. Taken together with the still unknown source of smell of cannabis in the car, these led me to reject the Officer’s evidence that he had lawful grounds to search the vehicle.

[50] I did not believe The Officer’s evidence that he believed he was dealing with “Jeshaun” at the roadside. Despite only two-and-a-half years of experience policing, he had done 20 CCA searches prior to this one. He admitted that he knew that identifying who he was dealing with as an investigator was an important part of his job. He also testified that he knew that sometimes drug dealers or those involved in crime lie about their name.

[51] The Officer knew that the registered driver of the vehicle was a suspended driver: the Applicant did not have a driver’s licence on him. The Officer admitted that the Applicant also matched the description of the person in the “hit”: he was male, South Asian, and looked to be approximately 19 years old.

[52] The Officer testified that the Applicant was visibly nervous and shaking. He tried to dismiss the significance of this observation by saying that it was not unusual for a suspended driver to be nervous and shaking. This explanation made no sense in light of the Officer’s evidence that he thought he was dealing with “Jeshaun”. “Jeshaun” was not a suspended driver, and the Officer knew it.

[53] In cross-examination, the Officer admitted that if he believed the man he was dealing with was “Jeshaun”, and he believed the other things this man said (that it was not his car, and that he did not know what was in the car), then it must be that the officer arrested “an innocent man”; an obviously absurd result logically flowing from his claims.

[54] I found that the Officer’s claim he believed he was dealing with “Jeshaun” incredible. I concluded that the officer was trying to distance himself from the fact that when he stopped the vehicle, he knew and believed he was onto the target of an ongoing drug investigation. In the end, he admitted that the possibility that he was dealing with the Applicant “crossed” his mind.

[55] I also did not accept the Officer’s explanations for why he did not include the “surveillance hit” as part of his notes. He testified at this trial that he did not include this information because he thought he was not supposed to, so that it would not be disclosed to an accused. In cross-examination, he admitted that he knew he could redact other sensitive information from his notes. He then admitted that he knew he could redact the “hit” as well.

[56] The Officer’s evidence was inconsistent about why he hid this information but then told the Crown about it on the morning of the preliminary inquiry. At the preliminary inquiry the Officer testified that he disclosed the information because the investigation was closed. At trial he said it was because he reviewed his notes that morning and remembered about it. It came to him for the first time that morning.

[57] The Officer testified that had the investigation not been closed, he would have withheld the fact that the received the “surveillance hit” from the Crown and the court at the preliminary inquiry. This is very concerning. The Officer had sworn an oath to tell the truth, the whole truth and nothing but the truth, but admitted that he would have withheld relevant evidence from the court. This gave me some pause about his credibility and reliability.

[58] Although he repeatedly asserted that he conducted the search of the vehicle under the CCA, the Officer also admitted at one point that he knew he was walking into a drug investigation as soon as he saw the “hit” on his screen.

[59] In the end, I could not rely on the Officer’s evidence about his reasons for the search of the Applicant’s vehicle. The Officer contradicted himself multiple times when testifying. He seemed confused about what exactly he needed to formulate reasonable grounds for a search under the CCA. He admitted that he had no lawful authority to search the vehicle, then retracted the admission. I could not have confidence in the truth or accuracy of his evidence on this critical point.

[60] For these reasons, I concluded that the warrantless search and seizure in this case was not reasonable.

Issue Two: Was the Applicant Informed of his Right to Counsel Without Delay?

[61] It is trite law that a person must be read their right to counsel upon arrest or detention. Section 10(b) has an informational component and an implementational component. Not only must a person be told of his right to retain and instruct counsel immediately upon arrest or detention, but he must also be given an opportunity to exercise that right by being afforded an opportunity to speak to a lawyer or duty counsel without delay: R. v. Bartle, [1994] 3 S.C.R. 173.

[62] It is not disputed that the Applicant was not informed of his rights to counsel when he was first detained. The Officer testified that when he asked the Applicant about the cash on the console, he did so for an investigative purpose. He admitted that he had embarked on a criminal investigation. He was interrogating the Applicant. He admitted that the Applicant was detained at that point and should have been read his rights to counsel. He was not read those rights until after his arrest, a few moments later. On this basis, a violation of the s. 10(b) informational component is made out.

[63] The Applicant was arrested and read his rights at 7:19 pm. It was agreed that the Applicant asserted the right when the Officer asked him if he wished to call a lawyer now and the Applicant said: “yeah, I don’t have one.” The Officer explained that the Applicant could call duty counsel, and the Applicant said “okay.” Instead of implementing that right, the Officer continued to search the vehicle and then remained at the scene until 8:01 pm. No steps were taken by the police to implement the Applicant’s right to counsel until 8:28 pm, when the Officer placed the call to duty counsel.

[64] The Crown argued that there was no s. 10(b) violation in this case. It argued that the Applicant’s rights to counsel during a roadside CCA investigation were temporarily suspended: R. v. Williams, 2021 ONCJ 630, at paras. 74-75.

[65] I accept that the police are not required to give rights to counsel to a detained person during a brief traffic stop. Suspension of s. 10(b) rights has been found to be a reasonable limit under s. 1 of the Charter for brief roadside detentions during legitimate road safety investigations, including sobriety checks: R. v. Orbanski, 2005 SCC 37, at para. 3; R. v. Grant, 2021 ONCJ 90, at para. 121. However, this was neither a brief traffic stop, nor a legitimate search under the CCA.

[66] I found that the Applicant was detained and should have been read his rights to counsel when the Officer asked him if there was anything “illegal” in the car. His was not a “general” question. If the Officer was searching for cannabis (a legal substance) why ask about something “illegal”? It is a question from which I inferred that the Officer had clearly embarked on a criminal investigation. The Officer admitted this. Indeed, it is more than likely that the Officer had embarked on a criminal investigation even earlier, as he acknowledged that what had begun as a traffic stop transformed into a criminal drug investigation as soon as he smelled marijuana.

[67] The Crown argued that the delay in implementing the Applicant’s right to counsel was justified, and that the right was implemented at the first reasonable opportunity once the Applicant was safely transported and booked at the detachment. The Crown argued that the Applicant could not be given the opportunity to speak to duty counsel safely or privately at the roadside, that he had to remain at the scene while his vehicle was searched and that he was given the opportunity to speak to duty counsel in privacy and safety as soon as practicable.

[68] I disagreed. On the evidence, no reason was apparent for why the Applicant had to remain on the scene until 8:01 pm. He was arrested at 7:19 pm. The Officer completed the search of the vehicle at 7:29 pm. Two other officers were on the scene by then: P.C. Morris and P.C. Gibson. P.C. Gibson conducted a secondary search of the vehicle. P.C. Morris dealt with towing the vehicle. Why did the Officer have to remain on the scene? If he did, why could P.C. Morris not transport the Applicant to the detachment? The delay in implementing the Applicant’s rights to counsel was not adequately explained.

[69] There was no urgency at the scene, there were no dynamic or exigent circumstances. The Officer simply sat in his cruiser making calls while the Applicant was imprisoned in the back of the cruiser, wanting and waiting to speak to a lawyer.

[70] Every moment counts for a person detained in police custody. The courts have stated that the right to counsel is a “lifeline” for a detained person: R. v. Rover, 2018 ONCA 745, at para. 45. In R. v. Noel, 2019 ONCA 860, at paras. 23 and 26, the Court of Appeal wrote as follows:

The right to consult counsel without delay exists because those who are arrested or detained are apt to require immediate legal advice that they cannot access without help, because of their detention: R. v. Bartle, [1994] 3 S.C.R. 173, at p. 191; R v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 41: R. v. Rover, 2018 ONCA 745, 143 O.R. (3) 135, at para. 34. …

Beyond this, the right to counsel is also important in providing “reassurance” and advice, on such questions as how long the detention is apt to last, and what can or should be done to regain liberty: Debot, at p. 1144; Suberu, at para. 41. As Doherty J.A. said in R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 45:

The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.

[71] The purpose of the s. 10(b) right was fully animated in this case. The Applicant was under the control of the police, subject to an unconstitutional detention and unreasonable searches which yielded incriminatory evidence. He was in serious legal jeopardy and needed legal advice. He was constitutionally entitled to it, without delay: R. v. McGuffie, 2016 ONCA 365, at paras. 41-44.

[72] The Applicant had asked to speak to a lawyer at 7:19 pm. For no apparent reason, no steps were taken by the police to implement his right to do so for over an hour. The implementational component of s. 10(b) was thereby breached.

[73] As a result, I found that the Applicant’s s. 10(b) rights to counsel were violated.

Issue Three: Would the Admission of the Evidence Bring the Administration of Justice into Disrepute?

[74] In deciding whether evidence obtained in a manner that contravened the Charter should be excluded, the court must consider and balance (1) the seriousness of the Charter-infringing state conduct, (2) the impact of that conduct on the Charter protected interests of the accused and (3) society’s interest in an adjudication on the merits: R. v. Grant, 2009 SCC 32, at paras. 67-86.

[75] The first two inquiries pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter protected interests, the stronger the pull for exclusion. The third inquiry pulls in the opposite direction, toward the inclusion of evidence. If the first and second inquiry make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: R. v. McGuffie, 2016 ONCA 365 at paras. 62-63.

[76] With respect to the s. 10(b) violation, there need not be a causal connection between the breach and the discovery of the impugned evidence.

[77] To decide whether there is a connection between the breach and the discovery of the evidence, the entire “chain of events” between the accused and the police or the whole transaction or course of conduct should be considered: R. v. Pino, 2016 ONCA 389. The connection between the evidence and the breach may be causal, temporal or contextual or any combination of these factors, but it must not be too tenuous or remote: Pino, at para. 73; R. v. Rover, 2018 ONCA 745, at para. 35.

[78] In respect of s. 24(2), the Crown argued that the violations were not serious. The Officer was not abusive, and the violations of constitutional rights were neither systemic, deliberate nor egregious. The Crown argued that the Applicant had effectively abandoned his privacy interests in the vehicle and the backpack by telling the Officer that he was “Jeshaun”, that the car was not his and that he did not know what was in it. The Officer’s omission of the “surveillance hit” from his notes was of no consequence: the information was disclosed at the preliminary inquiry. The Applicant spoke with duty counsel that evening, and no questioning was conducted until he had done so. None of the evidence was derived from the breach of his right to counsel.

[79] The Crown argued that there is a strong public interest in having a trial on the merits in a case involving a dangerous drug such as fentanyl. The admission of the evidence would not bring the administration of justice into disrepute. Its exclusion would. Ultimately, the Crown took the position that the Applicant had not met his onus to justify exclusion of the evidence.

[80] I did not accept the Crown’s arguments.

Seriousness of the Violations

[81] In my view, the violations of the Applicant’s constitutional rights in this case were very serious. The Officer used the pretext of searching the vehicle for illegally transported cannabis under the Cannabis Control Act as a ruse to launch into a drug investigation without any regard to the s. 8 or s. 10(b) rights of the Applicant. In my view, the defence established through skillful cross-examination that the officer probably intended to search the vehicle from the moment he learned the Applicant was the subject of the drug investigation.

[82] During the unlawful search, the Applicant was arbitrarily detained at the roadside. He should have been informed of his rights to counsel as soon as he was detained. The Officer admitted that the Applicant was detained and had been interrogated before he was advised of his right to counsel. The Applicant asked to exercise his right to counsel and was entitled to do so without delay. The Officer failed to ensure that the Applicant had access to the lifeline he is constitutionally guaranteed.

[83] In all the circumstances, I found that these violations were not the result of an innocent mistake or a misapprehension of lawful authority under the CCA. Each on its own might seem negligent. Cumulatively, these violations amounted to abuse of police powers.

[84] There was no authority to conduct a CCA search. The Applicant’s detention became arbitrary when it continued for the purpose of conducting a criminal investigation. While there is a diminished expectation of privacy in a vehicle, it is a private space. The Applicant’s backpack was searched unlawfully. His right to be informed of the right to counsel upon detention was violated. His right to speak to a lawyer without delay was disregarded.

[85] I have also considered that the Officer who testified on this application at times gave incredible and unreliable evidence. While not part of the Charter breach itself, this is a proper factor to consider as part of the first inquiry under s. 24(2). Misleading testimony from persons in authority undermines the integrity of the judicial system and the truth-seeking function of the court, weighing in favour of exclusion of the unlawfully obtained evidence: R. v. Harrison, 2009 SCC 34 at para. 26.

[86] In this case, however, I do not find that the Officer deliberately intended to mislead the court. He was candid in his account of what happened, and on his own evidence the breaches of the Charter were apparent. While I have concerns about the reliability and credibility of his evidence in respect of his grounds for the search and his reasons for not including the “surveillance hit”’ in his notes, I did not find that the Officer set out to mislead the court.

[87] Regardless, the seriousness of violations and their cumulative effect weighed heavily in favour of exclusion of the evidence obtained.

Impact on the Accused’s Charter Protected Interests

[88] I found that the warrantless search and discovery of evidence and the violations of the Applicant’s rights to counsel formed part of one continuous chain of events of police conduct that took place over a period of approximately 15 minutes. There was a clear causal connection between the s. 8 breach and the discovery of the drugs, digital scale, cell phones and cash. But for the unlawful search, the evidence in the car would not have been discovered.

[89] The impact of the loss of the right to consult counsel without delay is to be evaluated based on the interests it is meant to protect along with the length of the delay: Noel, at para. 27. I found that the delay in implementing the Applicant’s right to counsel was unreasonably lengthy. It remains unexplained.

[90] In my view, the violations of the right to counsel also had significant impact on the Applicant’s Charter protected rights. First, he was detained and not advised of his right to counsel. Then, after he asserted that right, he remained in police control for more than an hour without the police taking any steps to enable his right to speak with a lawyer.

[91] The importance of the Applicant’s call to duty counsel is evident in this case. Until he spoke to counsel, the Applicant maintained the lie that he was “Jeshaun”. After he spoke to duty counsel, he told the police his real identity.

[92] I did not accept the Crown’s argument that the Applicant had abandoned his expectation of privacy when he told the Officer the car was not his. As the driver and operator of the vehicle at the time, and the only person who could regulate access to it, he had an expectation of privacy in it.

[93] I concluded that the cumulative breaches in this case had very significant impact on the Applicant’s Charter protected interests.

Society’s Interests in an Adjudication on the Merits

[94] The police are to be commended for their efforts to get deadly drugs like fentanyl off the streets, and out of our communities. But when the pursuit of these goals relies on abuse of police powers, society’s expectation that fundamental freedoms guaranteed by the Charter will be protected is strongly engaged.

[95] The Officer’s violations of the Applicant’s Charter rights were very serious and amounted to abuse of police authority. He used the ruse of the smell of cannabis to conduct a warrantless search. The Applicant – a racialized young man – was arbitrarily detained at the roadside during the unlawful search. He should have been promptly informed of his right to counsel. He was not. He was interrogated. His personal belongings in the car were searched without any lawful justification. Once informed of his right to retain and instruct counsel without delay, and affirming that he wished to exercise that right, nothing was done by the police to implement that right for over an hour. No explanation was provided for this delay, and none is apparent on the evidence.

[96] While society’s interest in an adjudication on the merits is great, especially given the large quantities of real and deadly drugs that were seized, I concluded that the admission of the evidence would bring the administration of justice into disrepute given the serious, and cumulative disregard of Charter protected rights.

CONCLUSION

[97] For these reasons, the Application was granted, and the evidence excluded.

Chozik J. Released: April 28, 2023