COURT FILE NO.: CR-21-0761-00 DATE: 2023 07 24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING J. Kingdon, for the Crown Respondent
- and -
ZACHARY BYFIELD S. Bernstein, for the Applicant Applicant
HEARD: May 30, June 1, and 8, 2022
REASONS FOR DECISION Barnes J.
Introduction
[1] The Applicant, Mr. Zachary Byfield, faces firearms-related charges. On July 6, 2020, police discovered a firearm in a satchel found in his possession. The police found the satchel after a search conducted pursuant to s. 12(3) of the Cannabis Control Act, 2017, S.O. 2017, c. 26, Sched. 1 (“CCA”). The Applicant is a Black man. He alleges a violation of his rights under ss. 8 and 10(b) of the Charter of Rights and Freedoms (“Charter”). His primary basis for bringing this Charter application is racial profiling. He seeks exclusion of the firearm pursuant to s. 24(2) of the Charter. For the reasons that follow, I have found that the police violated his ss. 8, 9 and 10(b) rights.
[2] Contemporary knowledge of the interplay between race relations with the police and the Charter supports a less expansive interpretation of the police search powers under s. 12(3) of the CCA. Such an approach is consistent with the intent of Parliament.
[3] I have found that Constable Lenis breached the Applicant’s s. 8 Charter right when he conducted the safety search of the Applicant because his decision to conduct a safety search of the Applicant was based on racial bias.
[4] Constable Lenis had reasonable grounds to conduct a search of the Applicant and his vehicle pursuant to section 12(3) of the CCA. However, those grounds were tainted by the racial bias which formed the basis of his decision to conduct a safety search of the Applicant. Thus, I have found that Constable Lenis breached the Applicant’s ss. 8 and 9 Charter rights when he conducted his search of the Applicant and his vehicle.
[5] During the initial interaction, Constable Lenis detained the Applicant for investigative purposes when he conducted the search of the Applicant and his vehicle pursuant to section 12(3) of the CCA. At this time, the detention occurred pursuant to public welfare legislation. Thus, the Applicant’s s. 10(b) rights were briefly suspended. I have found that under these circumstances, Constable Lenis did not breach the Applicant’s s. 10(b) rights.
[6] Subsequently, Constable Lenis arrested and detained the Applicant during the firearms investigation. I have found that Constable Lenis breached the Applicant’s s. 10(b) rights when he failed, under these circumstances, to provide the Applicant with access to counsel within a reasonable time.
[7] Due to these breaches of the Applicant’s Charter rights, I have excluded the firearm and other evidence obtained pursuant to s. 24(2) of the Charter.
Facts
On motel grounds
[8] At 11:40 p.m. on July 6, 2020, Peel Police Service officer, Constable Lenis was patrolling the parking lot of a motel in the City of Brampton. He was in uniform and driving a marked police vehicle.
The police purpose
[9] The motel and parking lot are private property. The owners of the property authorized police to check for loiterers. Constable Lenis relied on the provisions of the Trespass to Property Act (“TPA”) for the authority to carry out this request.
[10] Constable Lenis’ intention was to ask persons who were not authorized to be on the motel property to leave. To carry out this objective, it was his intention to speak to any person in an occupied vehicle in the parking lot. He explained that, from his experience, unauthorized persons were usually on the premise to solicit prostitution.
[11] Constable Lenis explained that since he was investigating a possible infraction of a provincial offence, persons who refused to answer his questions were nonetheless free to leave.
The police database check
[12] Constable Lenis described the area as a high problem and crime area. For officer safety reasons, Constable Lenis ran the license plates of occupied vehicles before approaching the vehicles. He did this because he wanted to know as much as possible about the persons in the vehicles before he approached.
[13] Constable Lenis observed a vehicle parked in the northeast corner of the parking lot in between other parked vehicles. The engine was off. The vehicle’s windows were tinted. Constable Lenis observed two people seated in the front seats of the vehicle. It is not disputed that the Applicant was seated in the driver’s seat and there was a female in the front passenger seat.
[14] He also observed what looked like a lit cigarette near the driver’s side window of the vehicle. To avoid detection, Constable Lenis immediately backed up and parked his vehicle. He ran the vehicle’s license plate through a police database. He conducted the check to determine who the registered owner was and if the registered owner was wanted for any outstanding charges.
[15] This electronic search yielded no information of concern (i.e., no outstanding charges or warrants, no information the vehicle was stolen, etc.). Constable Lenis did not conduct an Ontario Ministry of Transportation check and thus, did not see a picture of the Applicant.
[16] At this point, Constable Lenis concluded that he had no reason to believe that the Applicant was a “troublemaker”. He decided to approach the driver’s side of the Applicant’s vehicle.
Constable Lenis’ initial observations
[17] At 11:42 p.m., Constable Lenis approached the driver’s side of the vehicle. He testified that he noticed that the front passenger windows were tinted and rolled up.
[18] Constable Lenis saw what looked like the flame of a cigarette inside the vehicle. He determined that it could have been held by either the driver or the passenger. He could not be sure at this point.
[19] In cross-examination, Constable Lenis agreed that in his notes, he wrote that the windows were up as he approached the vehicle, and he observed two occupants. A male was in the driver’s seat, and a female was in the passenger seat. He agreed that he could see these people before the windows were rolled down. He could not tell the race of these individuals. He explained that this was because the windows were tinted.
[20] Constable Lenis’ notation is as follows:
“…approach vehicle windows. Vehicle windows are up and observe two occupants, driver’s seat male, passenger seat female. Driver rolls down window as I observe blunt...”
[21] He subsequently corrected his testimony. He said his notes were not accurate because they were made after the fact. It was a dynamic situation, and he wrote down what he recalled at the time. He said he made his observation through the front windshield (not the front driver’s side window). This windshield was not tinted. At this time, he asserted that he was unable to see the gender of the people. This contradicted his earlier testimony and his notes that he could see the gender of the occupants when he first made his observations.
[22] Constable Lenis said he could not tell the race of the occupants until the Applicant rolled down the driver’s side window. At that time, he determined that the Applicant was a teenage Black male with dreads, and the female was of Indian descent. This testimony contradicts Constable Lenis’ notation in his notes.
[23] In the context of these contradictions, I do not accept Constable Lenis’ testimony that he could not determine the gender of the occupants of the vehicle when he first approached the vehicle. I conclude that when Constable Lenis first approached the Applicant’s vehicle, the vehicle’s front windows were up and tinted. Despite the tint, he was able to determine the gender of the occupants just as he recorded in his notes.
[24] The Applicant rolled down the driver’s side window. Constable Lenis explained that he was enforcing the TPA. He asked the Applicant if he was staying at the motel. The Applicant told Constable Lenis that he was staying at the motel, and he could call a friend to produce the key as proof. The Applicant was very cooperative during this interaction with Constable Lenis.
Investigative detention under the Cannabis Control Act
[25] During this interaction, Constable Lenis observed the Applicant holding something rolled up in cigarette paper. He guessed that it was a joint or blunt but was not sure. Constable Lenis detected an odour of marihuana. Constable Lenis believed that the Applicant was smoking marihuana in the vehicle. At that point, Constable Lenis’ TPA investigation changed to an investigation under the CCA.
[26] He told the Applicant and the female passenger that they were detained for a search pursuant to the CCA. Constable Lenis informed the Applicant and the female passenger of their rights to counsel and the police caution in a paraphrased fashion. He did not provide this information verbatim. The specific contents of the right to counsel and the caution provided are unclear. Constable Lenis could not recall what the Applicant said in response to the rights to counsel and caution. Constable Lenis has no record of the female passenger’s response.
[27] Constable Lenis told the Applicant that he would not be placed in handcuffs so he could call a lawyer if he wished to do so. Constable Lenis asked the Applicant and the female passenger to exit the vehicle. Both complied. He asked the Applicant for identification. The Applicant provided his Ontario driver’s license.
[28] Constable Lenis stepped backwards toward the trunk area of the Applicant’s vehicle. This was because the vehicle was parked beside another vehicle. There was not enough space for both of them.
Safety (pat down) search
[29] Constable Lenis testified that the Applicant had a satchel around his neck when he got out of his vehicle. Constable Lenis told the Applicant to remove the satchel and place it on the trunk. The Applicant complied. The Applicant began to empty the contents of his pocket and place them beside the satchel.
[30] The Applicant was very cooperative. Constable Lenis had no safety concerns and yet he decided to conduct a safety search of the Applicant. His focus was on the Applicant as the driver’s seat in possession of what he believed was marihuana.
[31] Constable Lenis testified that he conducted the safety search of the Applicant because he was concerned that the Applicant had a weapon. He testified that although he was also concerned that the woman would have a weapon, he could not conduct a pat-down search of her because he was a male officer. Constable Lenis said he conducted the safety search in order to feel more comfortable.
[32] Constable Lenis testified that he did not search the Applicant because he consciously or unconsciously believed that he might have a weapon because he was a young Black man in the parking lot.
[33] Constable Lenis denied conducting the safety search based on a hunch. He said he conducted the safety search of the Applicant just in case he had a weapon. Constable Lenis explained that this was due to past experiences unrelated to the Applicant.
[34] Constable Lenis told the Applicant and the female passenger that they were not free to leave and that he would be searching the vehicle for cannabis. At 11:44 p.m., Constable Lenis requested assistance over the police radio. At 11:47 p.m., Constable Mossip arrived on the scene. Constable Lenis told Constable Mossip that he had instructed the Applicant and female passenger to stand by while he conducted a CCA search. Constable Mossip stood by and kept watch over the Applicant and the female passenger. Neither party was placed in handcuffs at this time.
[35] Constable Lenis began searching the front passenger seat. He found a freshly lit cannabis cigarette in the front console. In the rear seat, he found a marihuana grinder and baggies under a rear seat hand rest. Constable Lenis said the grinder and baggies were in plain view. He was challenged on the plausibility of making such an observation if these items were under the hand rest. He insisted that the items were positioned such that they were still in plain view. I accept his evidence that the items were in plain view.
[36] Overall, Constable Lenis searched the driver’s seat, as well as the front and rear seats. He confined his search to areas where the driver could hide cannabis or reach for cannabis.
[37] Upon completing the search of the car, Constable Lenis began to search the satchel and the items the Applicant had retrieved from his pockets and placed on the trunk of the vehicle. Constable Lenis found a firearm in the satchel.
The firearms investigation
[38] Constable Lenis testified that at this point, Constable Mossip was standing with the Applicant and the female passenger a short distance away. Constable Lenis said he walked up to the Applicant and told him that he would be placed under arrest for unauthorized possession of a firearm. Based on this version of events, Constable Lenis would have informed Constable Mossip, the Applicant and the female passenger of the discovery of the firearm at the same time.
[39] Constable Mossip had a different recollection of events. Constable Mossip saw the satchel in Constable Lenis’ hands; however, he said Constable Lenis called him over to inform him that he had found a firearm. Constable Mossip said Constable Lenis was standing at the passenger side of the vehicle when he called him over.
[40] The Applicant submits that this contradiction leads to the conclusion that the Applicant did not have the satchel around his neck when he exited the vehicle. I disagree. The contradiction relates to where Constable Lenis was when he told Constable Mossip that he had found the gun. It does not contradict Constable Lenis’ evidence that the Applicant had the satchel around his neck when he exited the vehicle.
[41] As noted, Constable Lenis has previously testified that some crucial entries in his notebook were inaccurate. I have articulated areas of his testimony I find contradictory. Where there is a divergence in the evidence between Constable Lenis and Constable Mossip, I accept the version articulated by Constable Mossip.
Arrest and rights to counsel
[42] Constable Lenis testified that when he approached the Applicant to inform him of the firearm charge, he also noticed a second male coming out of the motel. This male is the Applicant’s co-accused, Mr. Ta’jee Thompson. Constable Lenis further testified that Mr. Thompson was directing random slurs at him and Constable Mossip and was recording their interactions with the Applicant on his cellphone. However, Constable Mossip did not recall any recording by Mr. Thompson. Mr. Thompson told Constable Mossip that he and the Applicant were staying at the motel. He said they were staying at room 315 and produced a motel key.
[43] Constable Lenis said he told Mr. Thompson to stand back while he and Constable Mossip began to arrest the Applicant. The Applicant kept asking the police why they were arresting him. He was not complying with police commands to submit to the arrest. The Applicant was non-violent but resistive to the police efforts. Constable Mossip and Constable Lenis wrestled the Applicant to the ground and arrested him at 11:53 p.m.
[44] There is no evidence that the Applicant suffered any injuries. No medical attention was required.
[45] Constable Lenis testified that Mr. Thompson was recording the Applicant’s arrest. He said Mr. Thompson was removing items the Applicant had placed on the trunk and placing them in his own satchel. Constable Lenis stopped helping Constable Mossip with the arrest of the Applicant and turned his attention to Mr. Thompson. However, Constable Mossip did not recall seeing Mr. Thompson do any of these things. I am satisfied that, at this point, his focus was on completing the arrest of the Applicant. The Applicant, though resistive, was non-violent and Constable Mossip had the arrest well under control at this point. This allowed Constable Lenis to disengage from the arrest.
[46] Constable Lenis ran back to the trunk area of the Applicant’s car, removed the gun from the Applicant’s satchel, proved it safe and put it back into the satchel. He told Mr. Thompson to stop touching the Applicant’s items. Mr. Thompson did not listen. Constable Lenis arrested him for obstructing justice.
[47] By this time, additional police officers arrived in the area, and the female passenger had left the scene. Constables Lenis and Mossip provided her description to Constable Tingle, who then found and arrested her nearby. Constable Lenis explained to the Applicant and Mr. Thompson that they were under arrest and will be placed in a police cruiser. The Applicant was not cooperative and kept trying to speak to Constable Lenis. Constable Lenis cut him off and told him that the priority at that time was to place the Applicant in the police cruiser.
[48] The Applicant was placed in the police cruiser at 12:10 a.m. Constable Lenis told the Applicant he was arresting him for unauthorized possession of a firearm and asked him if he understood. The Applicant asked if Constable Lenis could read him his rights to counsel. Constable Lenis complied. The Applicant responded, “No, I don’t understand. Can you call my lawyer?”. This response was provided at 12:12 a.m. Constable Lenis explained the meaning of the right to counsel. There is no issue with the content of the rights to counsel and caution as read to the Applicant after his arrest. Constable Lenis completed the informational component of his legal obligation under s. 10(b) of the Charter just after 12:14 a.m.
[49] The Applicant told Constable Lenis that Latoya Graham was his counsel. After receiving this information, Constable Lenis exited his police cruiser to brief the police officers who had arrived on the scene on what had transpired. He tried to find identification for Mr. Thompson, and he transferred custody of the firearm to another officer. Constable Lenis described the scene at this point as chaotic.
[50] After the Applicant’s arrest, another police officer searched the trunk of the Applicant’s car with negative results. It is unclear which statutory or common law authority was relied on for this search.
[51] At 12:30 a.m., Constable Lenis called Ms. Graham and told her that her client had been arrested and will be contacting her once he was at the police division. Constable Lenis then left the scene with the Applicant in his police cruiser. They arrived at the police division at 12:39 a.m.
[52] Police processing of the Applicant was complete by 12:55 a.m. Constable Lenis called Ms. Graham again. At 12:56 a.m., the Applicant had a private conversation with his lawyer.
[53] Constable Mossip took custody of Mr. Thompson. At the scene, Constable Mossip offered Mr. Thompson an opportunity to contact counsel using the mobile communication unit in his police cruiser. Mr. Thompson declined. At the police division, while waiting to be processed, Constable Mossip provided Mr. Thompson with another opportunity to contact counsel using the mobile communication unit. Mr. Thompson declined.
Issues and Analysis
[54] The crux of the Applicant’s complaint is that racial bias is the reason for Constable Lenis’ decision to conduct the TPA and CCA searches, as well as the safety search. This would constitute a breach of his ss. 8 and 9 Charter rights. He also alleges s. 10(b) breaches while detained for the CCA search and while under arrest for the firearms charge.
[55] I address the issues raised by the Applicant below. Given my finding on the role unconscious racial bias played in the ss. 8 and 9 breaches, I will begin with the issues raised by the police officer’s decision to conduct a safety search of the Applicant.
Was Officer Lenis’ decision to conduct a safety search of the Applicant motivated to any degree by the Applicant’s race?
[56] Constable Lenis had no reasonable grounds to believe that the Applicant posed a risk to his safety or the safety of any other person. Thus, the safety search was unlawful and a breach of the Applicant’s s. 8 Charter rights.
[57] The Crown concedes that the safety search constitutes a s. 8 Charter breach but contends that there is no evidence that racial profiling was a factor in the decision to conduct a safety search.
[58] The Applicant submits that racial profiling was the primary reason for the safety search and the breach of his s. 8 rights.
No grounds to conduct a safety search
[59] Constable Lenis conceded that the Applicant was detained when he instructed the Appellant to step out of the vehicle. The purpose of the detention was for Constable Lenis to investigate whether the Applicant was in contravention of s. 12(1) of the CCA. Prior to conducting the search under s. 12(3) of the CCA, Constable Lenis conducted a safety (pat-down) search of the Applicant.
[60] A quick pat-down search of a detainee for safety concerns is lawful if the officer believes on reasonable grounds that his or her safety, or the safety of others, is at risk. Such a belief cannot be based on a hunch, or a vague or non-existent concern for safety. It must be based on objectively discernable facts and cannot be turned into a fishing expedition. This analysis requires an assessment of the totality of circumstances leading to safety search: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at paras. 43 – 45.
[61] Constable Lenis conceded that he had no reason to be concerned about his safety or the safety of others prior to conducting the safety search of the Applicant. This exchange with the Applicant’s counsel is unequivocal:
Q. You had no concern that he was a threat to you, even before you patted him down. You’ve already told us that.
A. Yes, he was very compliant.
[62] Constable Lenis’ safety search of the Applicant did not comply with Mann and was unlawful. This is conceded by the Crown. The safety search was a breach of the Applicant’s s. 8 Charter rights.
The impact of unconscious racial bias
[63] Constable Lenis is a conscientious police officer in the discharge of his duties. He was concerned about issues of security, public safety, and public order; however, his decision to investigate the Applicant and to conduct a safety search was influenced by racial profiling.
[64] The Applicant submits that his race played a role in Constable Lenis’ decision to conduct the safety search. The Crown disagrees and submits that no reference was made to the Applicant’s race prior to, or during Constable Lenis’, interaction with the Applicant. I have concluded that at an unconscious level, race played a role in Constable Lenis’ decision.
[65] The analysis of Charter rights and breaches must occur from a perspective that acknowledges the existence of systemic racism. In R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, the Supreme Court of Canada provides some principles to guide a contemporary Charter analysis:
At para. 71: “Evidence about race relations relevant to the detention analysis, like all evidence of social context, can be derived from “social fact” or the taking of judicial notice. The information necessary to inform the reasonable person can take the form of reliable research and reports that are not the subject of reasonable dispute; and, rarely, direct, testimonial evidence.”
At para. 73: “Thus, to truly engage in the “realistic appraisal of the entire interaction”, as required in Grant (at para. 32), courts must appreciate that individuals in some communities may have different experiences and relationships with police than others and such may impact upon their reasonable perceptions of whether and when they are being detained.”
At para. 76: “…the concept of racial profiling is primarily concerned with the motivation of the police. It occurs when race or racial stereotypes about offending or dangerousness are used, consciously or unconsciously, to any degree in suspect selection or subject treatment…”
At para. 83: “ Evidence about race relations that may inform whether there has been a detention under s. 9, like all social context evidence, can be proved in legal proceedings by direct evidence, admissions, or by the taking of judicial notice. The realities of Charter litigation are that social context evidence is often of fundamental importance, but may be difficult to prove through testimony or exhibits. To be sure, social context evidence is a type of ‘social fact’ evidence, which has been defined as ’social science research that is used to construct a frame of reference or background context for deciding factual issues crucial to the resolution of a particular case’ (R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at para. 57).”
At para. 93, in reference to the 2018 report by the Ontario Human Rights Commission entitled, A Collective Impact: Interim report on the inquiry into racial profiling and racial discrimination of Black persons by the Toronto Police Service: “The OHRC report reveals recurring themes: a lack of legal basis for police stopping, questioning or detaining Black people in the first place; inappropriate or unjustified searches during encounters; and unnecessary charges or arrests (pp. 21, 26 and 37).”
[66] Racial minorities are treated differently by the police: Le, at para. 90. Racial profiling is a day-to-day reality in the lives of minorities affected by it: Le, at para. 80, as cited in Peart v. Regional Police Services Board, [2006] O.J. No. 4457 (C.A.), at para. 94.
[67] More than 20 years ago, the Supreme Court also noted that visible minorities and marginalized individuals, such as African Canadians, are likely to represent a disproportionate number of personal searches by the police: R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 83.
[68] Racial profiling is a circumstance where a state actor, without factual grounds or reasonable suspicion, exposes a person or group to differential treatment or scrutiny based on presumed membership in the group defined by race, color, ethnic or national origin or religion. It matters not whether such action was taken for reasons of safety, security or public order: Quebec v. Bombardier Inc., 2015 SCC 39, [2015] 2 S.C.R. 789, at para. 33.
[69] Racial profiling has two components: attitudinal and causation. The attitudinal component is present when a person in authority accepts that race or racial stereotypes are relevant in identifying the propensity to commit a crime or to be dangerous. The causation component is present where such race-based thinking consciously or unconsciously motivates or influences the decisions of a person in authority, to any degree, in the selection and/or treatment of the person or group subject to such action: R. v. Dudhi, 2019 ONCA 665, 147 O.R. (3d) 546, at para. 66; Le, at para. 76.
[70] Direct evidence of racial profiling is rare. All the circumstances surrounding the event must be considered in order to determine whether the police action has been motivated by racial profiling: Dudhi, at para. 75-76; Peart v. Peel Regional Police Services, at para. 95. Where such an analysis of the evidence demonstrates that the circumstances relating to the police encounter correspond to racial profiling and provide for the inference that the police officer is lying about the reason the accused was the target of police action, the record is capable of supporting the conclusion that such police action was based on racial profiling: R. v. Brown, 64 O.R. (3d) 161 (C.A.), at para. 45.
[71] However, the fact that a police officer may not be consciously lying about his motivation, does not mean he did not unconsciously engage in racial profiling. Racial profiling can occur even when an officer is unconscious of the fact that the formulation of reasonable grounds has been tainted by considerations of racial stereotypes. This circumstance is explained by the Court of Appeal in R. v. Sitladeen, 2021 ONCA 303, 155 O.R. (3d) 241, at para. 54, as follows:
“To summarize, the case law from Brown onward recognizes that in cases where an officer had objective grounds to detain a person or stop a vehicle but was also subjectively motivated by racial stereotypes, the officer is unlikely to admit his bias. The matter becomes more complicated when the officer is unaware that he was influenced by race because of unconscious bias. The officer may not be consciously lying about his motivation, but that does not mean he did not unconsciously engage in racial profiling. It is the role of the trial judge in such cases to consider all the circumstances that led to an accused's detention and/or arrest and to determine whether they correspond to the phenomenon of racial profiling, as understood in the social science literature, the reports of inquiries into race relations with police, and the case law. The trial judge can then decide whether those corresponding circumstances form a basis to infer that the record is capable of supporting a finding that the stop was based on racial profiling, contrary to the evidence of the officer.” [Footnotes omitted.]
[72] The reasonableness of the police officer’s grounds is defeated if the formulation of such grounds is based on, and therefore contaminated by, race or racial stereotypes because the inclusion of such considerations constitutes improper reasoning. This remains the case, even if the police officer’s decision was not motivated solely or even mainly by race or racial stereotypes: Dudhi, at para. 62.
[73] It follows, therefore, that while a jurist’s personal experiences will invariably form the lens through which they view evidence, that personal experience cannot be the evidence itself. Jurists come from different communities and do not have homogeneous relationships and experiences with police. Instead, what is required is an understanding of the concept of racial profiling as understood in the social science literature, the reports and the inquiries into race relations with the police, and the case law: Sitladeen, at para. 54. I refer to some of these reports and inquiries below.
Reports and inquiries into the state of police race relations
[74] Black people are more likely to be arrested, charged, and overcharged by Toronto police. Black people are more likely to be struck, shot or killed by Toronto Police. [1] The manner in which Black communities are subjected to a disproportionate burden of law enforcement is consistent with systemic racism and anti-Black bias. [2]
[75] Several reports on race relations with the police conducted across Canada confirm that racial profiling in the exercise of police power is a national problem. I reference 16 of these reports from across Canada. [3] The following are salient excerpts from 8 of these reports.
[76] There is a historical connection between slavery and systemic racism: [4]
To understand the perceptions of policing held by members of some communities, it is important to consider how policing developed and responded to their communities. Two such groups are the Indigenous and Black communities.
Members of Black communities also recount a long history of discrimination, oppression, and marginalization, the effects of which resonate to this day. Similar to the concerns of the Indigenous peoples, members of Black communities noted that historical discrimination has often placed them at odds with the police, leading to fear and distrust. Within Black communities, there is a prevailing perception that they have always been over-policed and targeted as criminals. This, some say, reinforces insidious stereotypes associating Blacks with criminality.
These perceptions are grounded in historical reality… It is a [little-known] fact that Black people were considered ‘property’ well into the 1800s here in Canada. Canada had its own legacy of slavery, notwithstanding Lieutenant Governor John Grace Simcoe’s call in 1792 for an end to its ‘practice.’ A system of slave patrols, sanctioned by the United States Congress’ Fugitive Slave Act of 1850, pursued slaves and monitored Black people in general as far north as Canada.
By coming to grips with these historical realities, we can make sense of the dynamics today between Black communities and the police.” [Footnotes omitted.]
[77] Indigenous and Black people are over-represented in arrests, charges laid and strip searches: [5]
At page 167: “Black people are significantly over-represented in six of the 16 offences categories: minor violence, fraud, drug possession, drug trafficking, driving infractions, and driving under the influence.”
At page 247: “The results presented above reveal that Indigenous people and Black people are significantly over-represented in arrests involving a broad range of offences. However, further analysis reveals that both groups are far more represented in common, public disorder offences, and administration of justice charges than crimes involving serious violence.
These findings point to the prominent role the police play in enforcing public order and how this type of law enforcement can lead to the disproportionate criminalization of Indigenous and IBPOC peoples. The gross over-representation of Indigenous and Black people in administration of justice charges further demonstrates how initial contact with the justice system can lead to further criminalization and a cycle that is difficult to escape.”
At page 248: “It is also important to note that Black and Indigenous people are highly over-represented in arrest incidents in which charges were recommended by the police but rejected by the Crown. Once again, is this evidence of Crown leniency with respect to Black and Indigenous offenders, or evidence that Black and Indigenous people are more likely to be subject to low quality arrests with little chance of conviction. Clear answers are not possible with the current data, but these issues should be flagged for further investigation.”
“…significant racial disparities exist with respect to strip searches across the police jurisdictions examined in this study. However, much of this disparity can be explained by racial differences in arrests. After benchmarking for arrests, only Black people emerge as significantly over-represented in strip search statistics.”
[78] Black people are over-represented in police enforcement in Toronto. [6] At p. 37 of the TPS Report, “enforcement action” is defined as, “For the purposes of the analyses, incident reports of arrests resulting in charges (including released at the scene) or released without charges; Provincial Offences Act Part III tickets; summons; cautions; diversions; apprehensions, and those with role type ‘subject’ or ‘suspect’”. The following statistic at p. 45 of the TPS Report demonstrates this fact:
Black people were 2.2 times more over-represented in enforcement actions compared to their presence in Toronto.
[79] Black and other marginalized people are over-represented in drug arrests: [7]
“Chief McCaffrey explained that “years of over policing of Indigenous, Black and other marginalized people by conventional policing services have caused significant mistrust of police.
Professor Akwasi Owusu-Bempah provided the example of arrests for minor drug offences, where studies from Canada and other countries suggest that members of different racial groups use drugs at similar rates, yet there are stark differences in drug possession arrests between racial groups. He expressed that:
While some of these differences can likely be attributed to officer behaviour and institutional policies and practices, the heightened police presence in the lives of Black and Indigenous people also plays an important role.” [Footnotes omitted.]
[80] Black people are over-represented in the number of stops conducted by the police: [8]
“Many witnesses provided evidence about practices of racial profiling by Canadian police services. For example, with respect to racial profiling against Black Canadians, author Robyn Maynard explained to the Committee that:
Studies conducted in Toronto, Edmonton, Montreal, Halifax and Vancouver demonstrate that Black people are stopped by police at a rate anywhere from two to six times more frequently than white residents.” [Footnote omitted.]
[81] The potential for abuse via enforcement of public welfare legislation: [9] “Some SIU investigations involving members of Black communities describe police arresting or charging the civilian, without a proper legal basis. For example:
“In February 2015, a Black male was arrested by two officers outside a night club after refusing to leave the area. In his report, the SIU Director noted that the officer who chose to provide a statement to the SIU had difficulty identifying the predicate offence justifying the arrest. The Director took issue with the officer’s assertions of grounds under the Trespass to Property Act because the complaint was on public property at the time of the arrest. The Director also questioned the officer’s assertions of grounds to arrest the complainant for public intoxication under the Liquor Licence Act, stating that “an arrest for that offense is not made out in the absence of significant intoxication and a real safety threat posed by the arrestee, neither of which appears to have been in evidence at the time.” [Footnotes omitted.]
Race is part of the contextual analysis
[82] The case law, reports, and inquiries into police relations confirm that some racialized communities may have different experiences and relationships with police than others. As per Le, Sitladeen and other binding appellate cases, this is an important contextual fact which must be considered in any Charter analysis.
[83] Thus, there is a recognition in binding appellate jurisprudence that in a principled Charter analysis of the exercise of state power, a presumption of racial neutrality in the exercise of state power, or one that presumes racial profiling, is an error in principle. Rather, what is required is an informed contextual analysis which considers the larger, historic and social context of race relations between the police and various racial groups in our society: Le, para. 75.
The CCA Search Power
[84] For reasons articulated below, I have concluded that Constable Lenis had reasonable grounds to believe that the Applicant was in contravention of s. 12(1) of the CCA and thus, his authority to conduct a search pursuant to s. 12(3) of the CCA was triggered.
[85] In Dudhi, the Court found that the officer’s remarks shortly after arresting a racialized man reflected [the officer’s] belief that there is a link between brown skin and drug dealing: see paras. 71-78. Thus, although there was direct evidence in Dudhi that could support the attitudinal component of a finding of racial profiling, it is important to recall that direct evidence of racial profiling is rare. Therefore, the totality of the interaction between the Applicant and the police should always be assessed in order to determine whether the attitudinal component of racial profiling is present.
[86] Constable Lenis’ purpose at the parking lot was to enforce the TPA. His intention was to question any person in a vehicle in the parking lot to determine if they were staying at the motel, working in the motel or had any other business in the motel.
[87] Constable Lenis ran the Applicant’s vehicle license plate in the police database. These checks did not provide information on the Applicant’s race. The Applicant's vehicle windows were tinted. All Constable Lenis could see was that there were two occupants in the vehicle.
[88] Constable Lenis testified that he could not see that there was a male and female in the front seat of the vehicle until the Applicant rolled down his driver’s side window. The front windshield of the vehicle was not tinted. The front passenger windows were tinted lighter than the back windows.
[89] In effect, Constable Lenis testified that he did not know the Applicant’s gender until the Applicant rolled down the driver’s side window. This testimony contradicts his notes. In his notes, he wrote that he approached the vehicle while the windows were up, and he observed a female in the passenger seat and a male in the driver’s seat.
[90] Constable Lenis explained that this discrepancy between his notes and his testimony was because he made his notes after the fact and back at the police station. Despite this explanation, I accept the version in his notes because it reflects his earliest recollection after his encounter with the Appellant.
[91] I conclude that before the Applicant rolled down his window, Constable Lenis could see through the front windshield into the vehicle. This windshield was not tinted. Constable Lenis could tell the gender of the occupants in the vehicle and from that vantage point, the only reasonable inference is that he saw that the Applicant was a young Black man seated in the driver’s seat and there was a female in the front passenger’s seat who he presumed was of Indian decent.
[92] At the very minimum, Constable Lenis knew that the Applicant was a young Black man when the Applicant rolled down the driver’s side window. The Applicant was seated in the driver’s seat. He saw a lit cigarette-like object in the Applicant’s hand. It was lit. Constable Lenis smelled marihuana. The Applicant was compliant. None of his police checks prior to his interaction with the Applicant, nor the Applicant’s conduct during their interaction caused him any safety concerns whatsoever.
[93] The female passenger did not cause him to have any safety concerns. Constable Lenis said he could not have searched the female because of her gender. It is clear there was no reason or basis to take any reasonable precautions to address safety concerns until a female officer arrived because there were no such concerns.
[94] Constable Lenis said if he had any safety concerns he would have placed the Applicant in handcuffs while he investigated him. Constable Lenis said his decision to conduct a safety search was based on his prior experiences in the area as a policeman, and not based on anything the Applicant had done. Constable Lenis regarded the area as a high-crime area.
[95] Constable Lenis denied that he conducted the safety search because he believed that the Applicant was a Black man and was therefore most likely in possession of a weapon. However, something happened to lead Constable Lenis to discount or forget the fact that he could still search Mr. Lenis pursuant to his grounds under the CCA. There was absolutely no objective danger. When viewed objectively, the only remaining fact is the Applicant’s race. He was a Black man in a place the officer regarded as a high‑crime area known for prostitution and in the company of a female passenger. The case law, reports, and inquiries into police race relations above confirm that the impact of race on how the police relate to certain communities cannot be ignored.
[96] From all the circumstances, it is reasonable to infer that this is the circumstance referred to in Sitladeen at para. 54. Constable Lenis’ actions were based on the unconscious racial bias from which it is reasonable to conclude the Applicant’s race and accompanying racial stereotypes were relevant in identifying a propensity to commit a crime or to be dangerous. Thus, the causation component is present.
[97] In the result, in addition to the absence of any lawful objective grounds for the safety search, the safety search was also unlawful because it was based on unconscious racial stereotypes of Black men being associated with crime or dangerousness. The safety search was therefore contaminated by racial profiling.
Was Officer Lenis motivated to any degree by the Applicant’s race when the decision was made to investigate him pursuant to the Trespass to Property Act, or in any subsequent investigative actions?
[98] Constable Lenis had reasonable grounds to search the Applicant and his vehicle pursuant to s. 12(3) of the CCA; however, I find that these grounds were tainted by racial profiling.
Positions of the Parties
[99] The Applicant submits that Constable Lenis’ decision to investigate him was entirely driven by his race. Constable Lenis relied primarily on his conclusion that the odor emanating from the Applicant’s vehicle was marihuana in order to conclude that he had reasonable grounds to enforce the search power under s. 12(3) of the CCA. He had no reasonable grounds to detain the Applicant and to search his vehicle.
[100] In addition, the Applicant further submits that even if Constable Lenis did have reasonable grounds to search his vehicle, his expansive search of the interior of the vehicle exceeds the ambit of the search permitted under s. 12(3) of the CCA. The search of the areas of the vehicle outside of the immediate reach of the Applicant was unreasonable, for example, the search of the back seat.
[101] The Applicant argues that the decision to detain and search was tainted by racial profiling and insufficient grounds. Therefore, the search was unreasonable, and the Applicant was arbitrarily detained.
[102] In contrast, the Crown submits that this is not a “marihuana smell only” case. In addition to the smell, Constable Lenis observed the Applicant smoking a rolled-up cigarette-like object while seated in the driver’s seat. These grounds are sufficient from an objective and subjective basis. Once reasonable grounds were established, Constable Lenis was authorized to search the entire vehicle. There were no Charter breaches.
Analysis
[103] Every person is prohibited from having care or control of a vehicle or boat, whether or not it is in motion, while the vehicle or boat contains cannabis: CCA, s. 12(1). This prohibition is not absolute. The boat or vehicle can contain cannabis if the cannabis is in its original packaging and has not been opened or if it is “ packaged in baggage that is fastened closed or is not otherwise readily available to any person in a vehicle or boat” (emphasis added): CCA, ss.12(2)(a), 12(2)(b).
[104] A police officer with reasonable grounds to believe that s. 12(1) of the CCA has been contravened “may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it”: CCA, s. 12(3).
[105] In parliamentary debates related to the enactment of the CCA, the Attorney General of Ontario indicated that the purpose of the CCA is to protect the public from the havoc caused by drug-impaired driving. Parliament’s intent in enacting the CCA is to protect public health and safety, protect youth and restrict their access to cannabis, and provide law enforcement with the tools to achieve these objectives: Ontario, Legislative Assembly, Official Report of Debates (Hansard), 41st Parl., 2nd Sess., No. 115 (2 November 2017), at p. 6143-6144 (Hon. Yasir Naqvi); Ontario, Legislative Assembly, Official Report of Debates (Hansard), 42nd Parl., 1st Sess., No. 30 (1 October 2018), at p. 1342. (Hon. Caroline Mulroney); See also R. v. Nzita, [2020] O.J. No. 3109, at para. 23.
[106] Section 32(1), of the Liquor Licence Act, R.S.O. 1990, c. L.19 (“LLA”), prohibits any person from having care and control of a motor vehicle, whether it is in motion or not, while the vehicle contains alcohol. The legislative intent for the LLA is the same as that for the CCA: R. v. Burke, 2020 ONCJ 516, at paras. 18-21.
[107] In effect, the purpose of the police search powers under the CCA and LLA is to provide law enforcement with the authority to conduct brief roadside detention for the express purpose of conducting legitimate roadside safety investigations including sobriety tests.
[108] The extent of the s. 12(3) search power is limited by the CCA’s regulatory purpose and the circumstances in which it is exercised. Inevitably, common law principles must be invoked to ensure that the enforcement scheme is flexible and able to meet the objectives of Parliament but constrained to what is reasonable having regard to the importance of the public purpose of the legislation and the nature of the liberty interfered with. Regulatory search powers, like the police use of random check-stop programs, “must not be turned into a means of conducting either an unfounded general inquisition or an unreasonable search”: R. v. Mellenthin, [1992] 3 S.C.R. 615, at para. 15; see R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3, at para. 27; R. v. Dedman, [1985] 2 S.C.R. 2, at para. 35.
[109] In my view, applying the general principles articulated in Le, an assessment of what is reasonable in all the circumstances when an officer is operating pursuant to s. 12(3) of the CCA requires consideration of the context in which the search power is enforced by the police. Thus, it reasonably follows that part of that context is contemporary knowledge and understanding of police race relations, which includes undisputed unlawful and disproportionate utilization of law enforcement tools, consciously or unconsciously, against certain segments of the population. That this search power provides opportunity for disproportionate treatment of some racial communities is certainly not one of the intended purposes of Parliament in enacting the CCA. Thus, an interpretation of this police search power in a manner that heightens the probability of increased adverse impacts on vulnerable populations is not the intent of Parliament.
[110] The warrantless search power under s. 12(3) of the CCA is identical to the warrantless search power under s. 32(5) of the LLA. In order to give effect to the intent of the legislature, some courts have relied on judicial interpretations of the limits of the LLA search power to prescribe the same search power limits to s. 12(3) of the CCA. The principle is as follows: “[T]here is no need for an officer to form reasonable grounds that cannabis is being stored in each part of the vehicle or on the person of the occupants in order for s. 12(3) to authorize a warrantless search of the vehicle or of an occupant” (emphasis added): R. v. Williams, 2021 ONCJ 630, at para. 63; and R. v. Grant, 2021 ONCJ 90, at paras. 103-107. The same principle is articulated with respect to s. 32(5) of the LLA: R. v. Annett (1984), 17 C.C.C. (3d) 332 (Ont. C.A.); R. v. J.F., 2015 ONSC 3068, at paras. 63-69; R. v. Graham, 2018 ONSC 6718, at paras. 79-84.
[111] A contrary principle is articulated in R. v. Sappleton, 2021 ONSC 430, which stands for the proposition that an officer must form reasonable grounds that cannabis is being stored in each part of the vehicle or on the person of the occupants in order for s. 12(3) of the CCA to authorize a warrantless search of the vehicle or of an occupant: Sappleton, at paras. 62-65.
[112] Williams, Grant and Sappleton are distinguishable as these cases did not consider s. 12(3) of the CCA in the context of the overarching principles articulated in Le on how the issue of police race relations informs Charter analysis. This same distinction in relation to Annett, J.F. and Graham, applies with respect to section 32(5) of the LLA.
[113] There is a distinction between a principled assessment of the circumstances of a particular case to determine whether racial profiling was a factor in the actions of the police (this was the case in Grant and Sappleton), versus statutory interpretation to determine whether there can be congruence between Charter compliance and the intent of Parliament.
[114] Following Le, the latter approach must of necessity be conducted in the context of an understanding (not a presumption) that individuals in some communities may have different experiences and relationships with police than others: Le, at para. 73. It is a reality that racial minorities are treated differently by police: Le, at para. 90. Unjustified stops of Black people by law enforcement is a recurring theme: Le, at para. 93. Racial profiling is a day-to-day reality in the lives of minorities affected by it: R. v. Le, at para. 80; Peart v. Peel Regional Police Services, at para. 94. I have previously referenced the numerous reports and inquiries which confirm this fact. Such analysis captures the reality that racial profiling is often difficult to prove by direct evidence, therefore increasing the necessity of a consideration of all of the circumstances surrounding the police action: Dudhi, at para. 75-76.
[115] Parliament did not have the benefit of some of the post-2018 cases and reports referenced in this judgment, but the existence of racial profiling and disproportionate treatment of Black and racialized people in Ontario was still known and documented in other pre-2018 case law and reports, within this context, it could not have been the intention of Parliament to pass legislation which may advertently or inadvertently be used to racially profile certain communities. This is even more so because racial profiling is a phenomenon which is difficult to prove. The public safety and health objective of parliament includes the public safety and health of all communities.
[116] An interpretation of s. 12(3) of the CCA which enhances the probability that certain communities, for example, Black people, will be subjected to a disproportionate number of unjustified searches, could not have been the parliamentary intent. Therefore, a less expansive interpretation of the CCA search power is warranted.
[117] Therefore, I prefer the principle articulated in Sappleton. In effect, an officer is authorized by s. 12(3) of the CCA to conduct a warrantless search when the officer has articulable reasonable grounds to believe that cannabis is being stored in contravention of s. 12(1), in each part of the vehicle or on the person of the occupants the officer intends to search. In other words, regardless of where cannabis is discovered, the said discovery must be sufficient to support the officer’s reasonable grounds that cannabis may be stored in contravention of s. 12(1) of the CCA in any place the officer intends to search (i.e., in any compartment of the vehicle or on the person of the occupants).
[118] In effect, a lawful exercise of the search power under s. 12(3) of the CCA requires the peace officer to have reasonable grounds to believe that marihuana has been stored in contravention of s. 12(1) in the place in the vehicle where the peace officer intends to search.
[119] The premise for any lawful search is reasonable grounds to believe that section 12(1) of the CCA has been contravened. The specific place the officer intends to search must be reasonable in all the circumstances. The extent of the search is limited by the exceptions to the general prohibition set out in ss. 12(2)(a) and (b). One of which applies in situations where the cannabis “is not readily available to any person in the vehicle or boat”.
[120] The extent of this search power must be circumscribed by the purpose of the legislation. A lawful s. 12(3) search is one that is exercised reasonably. To be clear, it must not unreasonably restrict the police's ability to investigate whether there has been an infraction of s. 12(1) and must be reasonable to prevent overreach and abuse. This must particularly be the case within the context of the potential adverse impacts on vulnerable populations, and the extent of the search must be cognizant of the liberty interests engaged.
[121] The Applicant submits that Constable Lenis targeted him for investigation because of his race and though he was not an expert in what marihuana should smell like, he relied extensively on the smell of marihuana to form his grounds to believe that the Applicant was in violation of s. 12(1) of the CCA. Thus, his warrantless search pursuant to s. 12(3) of the CCA was unlawful.
[122] Constable Lenis observed the Applicant in the driver’s seat. He saw a substance that looked like marihuana wrapped in rolling paper in the Applicant’s hand. It was lit. Constable Lenis smelled marihuana emanating from the Applicant’s car. In effect, it was reasonable for Constable Lenis to infer that the Applicant was smoking the object in his hand and that what he was smoking was marihuana. The Crown submits that this constitutes reasonable grounds on an objective and subjective basis to authorize the activation of the search power pursuant to s. 12(3) CCA.
[123] I agree with the Crown’s submission. This is not a circumstance where Constable Lenis relied solely on the odor of marihuana to form his grounds. The constellation of his observations constitutes the requisite reasonable grounds to authorize the CCA warrantless search power.
[124] However, I find that Constable Lenis’ actions when he instructed the Applicant to exit the vehicle is instructive of his motive in targeting the Applicant for investigation. Once the Applicant was out of the vehicle, Constable Lenis decided to conduct a safety search of the Applicant. There was no reasonable objective or subjective basis for this decision. He decided to conduct a safety search for a purpose unconnected to legitimate objective concerns for his safety or the safety of others.
[125] In the absence of any safety concerns, Constable Lenis’ decision to conduct a safety check first instead of conducting a search pursuant to the CCA is instructive. When this factor is considered together with factors previously articulated to support a finding of racial profiling, I conclude that Constable Lenis’ decision to target the Applicant for a search under s. 12(3) of the CCA was tainted by racial profiling.
[126] In effect, while Constable Lenis sought to conduct the CCA investigation, he had concluded that based on the Applicant’s race, the Applicant had the propensity to be dangerous, potentially carry a weapon, and commit crimes, hence the need for a safety search. The search was not simply to investigate whether s. 12(1) of the CCA had been violated, but also to determine whether other crimes could be uncovered. This secondary purpose was based on racial profiling.
[127] As a result of my finding that Constable Lenis’ grounds to search were tainted by racial profiling, the subsequent search of the Applicant and his vehicle was unlawful. This constitutes a s.8 Charter breach. The Applicant’s detention was also arbitrary; thus, his s. 9 Charter rights were breached.
Were the Applicant’s section 10(b) Charter rights breached when he was detained for the purpose of conducting the section 12(3) search?
[128] The Applicant’s s. 10(b) Charter rights were not breached when he was detained for the search conducted under s. 12(3) of the CCA.
[129] It is not in dispute that the Applicant was detained at the time Constable Lenis asked him to step out of his vehicle for the purpose of the s. 12(3) search. The Applicant submits that he was entitled to be informed of his rights to counsel and be provided with an opportunity to exercise that right. He submits that, instead, Constable Lenis advised him of his right to counsel in a paraphrased and incomplete manner and did not provide him with a meaningful opportunity to exercise that right.
[130] The Crown submits that due to the CCA’s regulatory purpose, s. 10(b) rights are suspended for brief roadside detentions that occur for the purpose of conducting a valid road safety check under the CCA. Therefore, the Crown submits that although Constable Lenis did not provide legally valid s. 10(b) rights to the Applicant, there is no s. 10(b) breach because the Applicant’s s. 10(b) rights were suspended during the brief roadside detention to conduct the CCA investigation.
Analysis
[131] When the police have reasonable grounds to suspect that a person has a connection to a crime and the detention is necessary on an objective basis, the police may detain a person for investigative purposes: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at paras. 43–45.
[132] As soon as the person is detained, the police have an obligation to inform the person of their rights to counsel. This obligation is immediate: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 41. This obligation requires the police to inform the detainee of their right to speak to a lawyer, provide them with a reasonable opportunity to exercise that right (except in urgent and dangerous circumstances), and to cease questioning the detainee until that reasonable opportunity has expired: R. v. Bartle, [1994] 3 S.C.R. 173, at para. 17.
[133] Persons under arrest or detention require urgent advice on topics such as the legality of the detention, arrest or search, the scope of the police authority, the right against self-incrimination, information on what to expect in custody, how long might the detention last, steps that can be taken to secure their liberty, etc. A person detained by the police cannot access such advice without the assistance of the police because of their detention. Therefore, persons detained must be advised of their rights to counsel immediately: R. v. Debot, [1989] 2 S.C.R. 1140, at p.1144; Bartle, at p.191; Suberu, at para. 41; R. v. Noel, 2019 ONCA 860, at paras 22 – 26.
[134] The right to counsel is not absolute. It is subject only to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society, pursuant to s. 1 of the Charter. These prescribed limits are set by the express words of the statute, by necessary implication from the words of the statute, or by the application of common law principles. Instances, where these limits apply, include the scope of police power exercised under legislation designed to enhance the safety of public roads through the conduct of sobriety checks on drivers: see Orbanski.
[135] In effect, these limits prescribe the extent of the individual’s Charter rights concurrently with the scope of the police power in the circumstances: R v Orbanski; R v Elias, 2005 SCC 37, [2005] 2 S.C.R. 3.
[136] Therefore, it follows that in analyzing the scope of the police power under road safety legislation, the question to be answered is whether in all the circumstances, the full information and implementation of s. 10(b) rights will unreasonably impede the police's ability to lawfully comply with the provisions of the statute and frustrate the important public purpose the legislation is intended to achieve. When the answer to this question is in the affirmative, the individual’s s. 10(b) rights should be suspended; however, the said suspension should be no more than is required to reasonably facilitate the lawful exercise of the police authority under the legislation. The protections provided by s. 10(b) remain a valid consideration, and therefore any such suspension must be brief: Orbanski; R v Elias, R. v. Thomsen, [1988] 1 S.C.R. 640.
[137] Section 10(b) Charter rights are suspended for brief roadside detentions for the purpose of legitimate roadside investigations: R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3; R. v. Saunders, [1988] O.J. no. 397 (C.A.); R. v. Smith (1996), 28 O.R. (3d) 75 (C.A.). This applies to the power to investigate and search pursuant to s. 12 of the CCA: R. v. Grant, 2021 ONCJ 90, at paras. 121–132; R. v. Williams, at paras. 74-75.
[138] In a breathalyzer case, the demand to provide a breath sample into a roadside screening device is a detention under s. 10(b). The suspension of the rights to counsel until the breathalyzer stage is reasonable because the roadside screening test must be administered quickly to comply with the statutory prescription of two hours to conduct a breathalyzer test, and the important public purpose of checking the sobriety of drivers: see R. v. Thomsen, [1988] 1 S.C.R. 640.
[139] Unlike in legislation governing roadside screening device and breathalyzer application, there are no statutorily prescribed time limits which impact the exercise of the search power under s. 12(3) of the CCA.
[140] The purpose of Constable Lenis’ interaction with the Applicant was to conduct a TPA investigation which very quickly turned into a CCA investigation. He approached and began to interact with the Applicant at 11:42 p.m. He immediately made certain observations which gave him reasonable grounds to conduct a CCA investigation. At that point, the Applicant and his companion were not free to leave. The detention crystalized at 11:42 p.m.
[141] Constable Lenis asked the Applicant to exit the vehicle so that he could search the Applicant’s vehicle pursuant to s. 12(3) of the CCA. He conducted a safety search and directed the Applicant to stand by in a nearby location. Constable Lenis had radioed for backup. Upon Constable Mossip arriving on the scene, Constable Lenis began to search the car; After searching the car, Constable Lenis searched the Applicant’s satchel. Constable Lenis located the firearm in the satchel and informed Constable Mossip and the Applicant of his findings. This finding immediately converted the CCA investigation into a firearm investigation. The Applicant was arrested at 11:53 p.m.
[142] The Applicant was detained for 11 minutes prior to the firearms investigation. Duration alone does not resolve the issue as to whether the detention was brief. I must consider what took place during that 11-minute period. I note that the following things occurred: Constable Lenis and the Applicant had a conversation about whether he was staying at the motel; Constable Lenis made his cannabis-related observations and told the Applicant and female passenger to exit the vehicle; Constable Lenis told them they were detained so that he could conduct a CCA search; Constable Lenis gave them incomplete information about their rights to counsel, and he told them that they were detained until another police officer arrived on scene; Constable Lenis conducted an unwarranted safety search of the Applicant. He told them to wait until another officer came so that he could search the vehicle. Constable Mossip arrived 3 minutes later at 11:47 p.m.
[143] Constable Lenis began a search of the vehicle and the Applicant’s personal items. The Applicant was arrested for the firearms offence at 11:53 p.m. Between 11:47 p.m. and 11:53 p.m., Constable Lenis searched the vehicle and the Applicant’s satchel, and informed the Applicant that he would be arrested for a firearms offence; the Applicant was resistant to the arrest. Constable Mossip and Constable Lenis struggled with the Applicant. The Applicant fell to the ground. Constable Mossip arrested the Applicant while he was on the ground.
[144] From the evidence, I cannot determine whether in all the circumstances, there was a reasonable opportunity for Constable Lenis to fully (lawfully) discharge his s. 10(b) obligations without impeding the police's ability to lawfully enforce the provisions of the CCA. In other words, could Constable Lenis have lawfully discharged his s. 10(b) obligations without frustrating the implementation of the police ability to enforce the valid public purpose (driver sobriety and road safety) the legislation is intended to achieve? As previously noted, if the answer to the question is yes, it will mean the period of detention was not brief and the Applicant’s s. 10(b) rights would have been breached.
[145] In the absence of sufficient evidence to allow me to reach a definitive conclusion on this question, I conclude that the 11-minute period between the initial detention and the Applicant’s arrest was brief. Therefore, the Applicant’s s. 10(b) rights were suspended at that time and there was no breach of his section 10(b) rights during that period.
Were the Applicant’s section 10(b) rights breached when the firearms investigation began?
[146] The Applicant’s s. 10(b) Charter rights post-arrest were breached. In all the circumstances, Constable Lenis failed to provide him with an opportunity to exercise his rights to counsel within a reasonable time.
[147] The Applicant was arrested at 11:53 p.m. Constable Lenis informed him of his rights to counsel at 12:10 p.m. The Applicant submits that his s. 10(b) rights were breached post-arrest because Constable Lenis failed to advise him of his rights to counsel immediately and failed to utilize the mobile communication unit in his police vehicle to enable him to speak to counsel. He had expressed a desire to speak to counsel. He provided the name of counsel to Constable Lenis. Constable Lenis called his lawyer and told her that the Applicant will speak to her at the station.
[148] The Applicant subsequently spoke to his lawyer after he was processed at the police station. The Applicant submits that this delay was unreasonable. He contrasts his circumstances with that of Mr. Ta’jee Thompson.
[149] Constable Lenis and Constable Mossip travelled in separate police vehicles. Constable Mossip had custody of Mr. Thompson and Constable Lenis had custody of the Applicant.
[150] Constable Mossip provided Mr. Thompson with his rights to counsel and an opportunity to contact counsel on scene using the mobile communication device in his police vehicle. Mr. Thompson refused. At the police station, as they waited in the police cruiser for Mr. Thompson to be processed, Constable Mossip offered Mr. Thompson another opportunity to contact counsel using the mobile communication device. Mr. Thompson refused.
[151] The Crown submits that Constable Lenis’ delay was reasonable. This was a chaotic scene with other police officers on scene. Constable Lenis had to brief the other officers who had arrived on scene. He also had to ensure that the female passenger with the Applicant was not successful in fleeing the scene. He arrested Mr. Thompson and turned him over to Constable Mossip. These activities took time and in all the circumstances, Constable Lenis’ decision to wait until 12:10 a.m. before advising the Applicant of his rights to counsel and to wait until the Applicant had been processed at the police station before giving him an opportunity to speak to counsel is reasonable. Hence there was no s. 10(b) breach.
[152] Mr. Thompson was arrested at 11:53 p.m. by Constable Mossip. Constable Lenis had to disengage from the arrest and speak to and eventually arrest Mr. Thompson for obstructing justice. The female passenger was fleeing the scene on foot. Constables Lenis and Mossip provided Constable Tingle her description so that she could be arrested for the firearms offence. Constable Mossip explained that police officers were arriving on scene and had to be briefed on what was going on.
[153] The Applicant resisted entering the police cruiser. Constable Mossip had to deliver a strike to his left thigh to get him into Constable Lenis’ police vehicle. The Applicant was placed in the police cruiser at 12:10 a.m. He was then advised of his rights to counsel. There was a 17-minute delay to his rights to counsel. This does not comply with the immediacy requirement; however, the police officers were confronted with a dynamic situation as described. It was necessary for officer or public safety to take steps to ensure that the police were fully in control of the situation. These are one of the exceptions to the immediacy requirement articulated in Suberu. In such a circumstance, the delay was reasonable and did not constitute a s. 10(b) breach.
[154] Constable Lenis advised the Applicant of his rights to counsel at 12:10 a.m. He completed the process at 12:14 a.m. The Applicant told him he wanted to speak to his lawyer and provided the name of counsel.
[155] Constable Lenis left the Applicant alone in the police vehicle for another 16 minutes to continue to address a still chaotic scene. Once again, he briefed the officers on scene and transferred the firearm to another police officer. He returned to the Applicant and called his lawyer and told her that the Applicant had been arrested and will be calling her when he arrived at the police station.
[156] During his early interaction with the Applicant, Constable Lenis had put out a call for assistance over the radio which warranted the dispatch of multiple officers to the scene. I am satisfied that the additional 16-minute delay was warranted in the circumstances also for concerns of addressing the chaos on scene and the firearm. The circumstances at that time raised issues of officer and public safety which had to be addressed. Those issues had been addressed by the time Constable Lenis returned to the Applicant at 12:30 a.m. The Applicant spoke to his counsel 26 minutes later at the police station.
[157] I do not mean to suggest that police officers should always use their mobile communication devices in their police vehicles to comply with the obligation to provide the detainee a reasonable opportunity to consult with counsel. What constitutes a reasonable opportunity will depend on the circumstances: R. v. Prosper, [1994] 3 S.C.R. 236.
[158] In other words, whether a “reasonable opportunity” requires the use of the mobile communication devices in the police vehicle will depend on the circumstances. In this case, Constable Lenis’ decision not to use the mobile communication device was based on what was most convenient.
[159] The Applicant had waited 17 minutes to be advised of his rights to counsel and an additional 36 minutes since he expressly requested to speak to counsel and provided the name of counsel to Constable Lenis. Further delay driven by what is convenient for the officer is unreasonable. In this circumstance, Constable Lenis should have offered the Applicant the opportunity to use the mobile communication device to contact counsel. Constable Lenis failed to provide the Applicant with a reasonable opportunity to speak to counsel. As a result, the Applicant’s s. 10(b) rights were breached.
Should the firearm be excluded pursuant to section 24(2) of the Charter?
[160] The firearm is excluded pursuant to s. 24(2) of the Charter.
[161] An analysis under s. 24(2) of the Charter is to determine whether a reasonable person, who understands the circumstances and Charter values, would conclude that admission of the evidence obtained in violation of the Applicant’s rights, would bring the administration of justice into dispute. Three factors should be considered in this analysis: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. I apply and balance those factors below.
Seriousness of the Charter-infringing state conduct
[162] This inquiry requires an assessment of whether the admission of the evidence will send a message to the public that the justice system condones the states’ unlawful conduct: Grant, at para. 71.
[163] The Crown submits that there was no racial profiling. Within that context, the Crown submits that the safety search breach is less serious because it was open to Constable Lenis to have searched the Applicant pursuant to his authority to conduct a lawful search under s. 12(3) of the CCA.
[164] In addition, the Crown further submits that while it was open for Constable Lenis to have offered the mobile communication unit to the Applicant, he was not obligated to. His decision to wait until he got to the police station was reasonable.
[165] I have reached a different conclusion. The focus of the analysis is on what Constable Lenis was thinking at the time he conducted the safety search, and not on whether there was another lawful basis available for him to conduct the search. Racial profiling was involved.
[166] In describing the state of police race relations, I have referred to a Toronto Police report that Black people are more likely to be arrested, charged, and overcharged by Toronto police. Black people are more likely to be struck, shot or killed by Toronto Police. [10] The manner in which Black communities are subjected to a disproportionate burden of law enforcement is consistent with systemic racism and anti-Black bias. As previously described, this is an example of a wider systemic problem. This phenomenon cannot be condoned by the court. This is a serious breach which favors exclusion.
[167] Constable Lenis’ decision to wait until they returned to the police station is serious when viewed in its proper context. There were several minutes of delay in advising him of his right to counsel and an additional several minutes of delay in providing the Applicant with an opportunity to exercise that right. Several minutes of delay was caused by considerations of police convenience. Under all the circumstances, Constable Lenis’ decision to not offer the mobile communication device is a serious s. 10(b) breach which warrants exclusion of the evidence.
Impact of the breach on the Charter-protected interests
[168] This requires an assessment of the extent to which the breach undermined the interest protected by the right infringed: Grant, at para. 76.
[169] Premised on the argument that there was no racial profiling and that there were reasonable grounds for a s. 12(3) search, the Crown takes the position that the impact on the Applicant’s Charter-protected rights was minimal.
[170] In addition, the Crown submits that while there was a delay in putting the Applicant in touch with his lawyer, no incriminating statements were elicited, his lawyer was informed that he would be contacting her, and he was provided with an opportunity to consult with his counsel in private back at the police station.
[171] The Applicant was subjected to a safety search for reasons (most probably unconscious) related to his race. In addition, he was subject to a search of his person, belongings, and vehicle for reasons tainted by his race. In effect, this constituted state interference with his reasonable expectation of privacy because he was Black. This is a serious factor warranting exclusion.
[172] The s. 10(b) breach represents a delay of his right to counsel, in effect, a deprivation of a lifeline in the face of the state’s interference with his liberty or the sake of convenience to the state. This factors exclusion.
Society’s interest in the Adjudication on the merits
[173] This line of inquiry requires an assessment of whether the truth-seeking function of the trial is better served by the admission of the evidence or by its exclusion. The reliability and importance of the evidence to the prosecution’s case are important considerations: R v Grant, at paras. 79, 83.
[174] In a free and democratic society, the truth-seeking function of a trial is not better served by the admission of evidence tainted by racial profiling. In this context, society has a vested interest in having a justice system that is above reproach. That is especially the case here as modern-day society is aware of and taking more seriously the painful realities of anti-Black racism, even in its unconscious forms, and in the over-incarceration of Black persons.
[175] The firearm is reliable evidence. It is central to the prosecution’s case. Without it, the prosecution has no case. This is a serious offence. The frequent occurrence of death and injury by firearms in our society is well documented.
[176] The assessment under this factor favors admission of the evidence.
The balance favours exclusion
[177] The serious harm firearms can cause in society is well documented and cannot be underestimated. The importance of ensuring that law enforcement have the tools and ability to effectively investigate, prevent and deter firearms crimes is of paramount importance. Impacts on public safety are plain, obvious and cannot be underestimated.
[178] However, in a free and democratic society, the results of a Charter infringement cannot justify the said infringement. The Charter breaches are serious and constitute a serious state interference in the Appellant’s section 8, 9 and 10(b) rights. As noted, the breaches include a safety search without legal basis; a safety search based on racial profiling; a CCA search tainted by racial profiling and unreasonable delay in providing the Appellant with a reasonable opportunity to speak to his counsel (a detainee’s lifeline) because of considerations of police convenience.
[179] Upon an assessment of the Grant factors as previously articulated, I conclude that on balance, the admission of the firearm will bring the administration of justice into disrepute. The firearm is excluded.
Barnes J. Released: July 24, 2023
[1] Toronto Police Service, Race & Identity Based Data Collection Strategy: Understanding Use of Force & Strip Searches in 2020 Detailed Report (Toronto, June 2020). [2] Ontario Human Rights Commission, A Collective Impact: Interim report on the inquiry into racial profiling and racial discrimination of Black persons by the Toronto Police Service (Government of Ontario, November 2018) [3] Toronto Police Service, Race & Identity Based Data Collection Strategy: Understanding Use of Force & Strip Searches in 2020 Detailed Report (Toronto, June 2020); The Honourable Michael H. Tulloch, Report of the Independent Police Oversight Review (Queen's Printer for Ontario, 2017); Office of the Independent Police Review Director, Breaking the Golden Rule: A Review of police strip searches in Ontario, by Gerry McNeilly (March 2019); House of Commons, Systemic Racism in Policing in Canada: Report of the Standing Committee on Public Safety and National Security, 43-2, (June 2021) (Chair: Hon John McKay); Ontario Human Rights Commission, A Collective Impact: Interim report on the inquiry into racial profiling and racial discrimination of Black persons by the Toronto Police Service (Government of Ontario, November 2018); Legislative Assembly of British Columbia, Transforming Policing and Community Safety in British Columbia, (42-3) (April 2022) (Chair: Doug Routley); Scot Wortley, Racial Disparities in British Columbia Police Statistics: A preliminary examination of a complex issue (September 2021); British Columbia, Office of the Human Rights Commissioner, Equity is Safer: Human Rights Considerations for Policing Reform in British Columbia (November 2021); Edmonton, Safer For All: Report and Recommendations of the Community Safety and Well-Being Task Force (March 2021); Human Rights Watch, Submission to the Government of Canada: Police Abuse of Indigenous Women in Saskatchewan and Failures to Protect Indigenous Women from Violence (June 2017); Manitoba, Southern Chief's Organization, First Nation Experiences of Racism in Policing Survey Report (2021); Canadian Centre for Policy Alternatives, Safer Schools Without Policing Indigenous and Black Lives in Winnipeg, by Fadi Ennab (October 2022); Québec, Commission des droits de la personne et des droits de la jeunesse, Review of Implementation of the Recommendations Issued in the Report of the Consultation on Racial Profiling and its Consequences (2020); Halifax, Nova Scotia: Street Checks Report, by Dr. Scot Wortley (March 2019); Office of the Independent Police Review Director, Broken Trust: Indigenous People and the Thunder Bay Police Service, by Gerry McNeilly (December 2018); Nunavut, Police Services and Inuit in Nunavik (Arctic Québec): Knowing each other better to help each other better, by Marie-Ève Marchand, Pascale Laneuville, Caroline Hervé, and Francis Lévesque (January 2020). [4] The Honourable Chief Justice Michael H. Tulloch, Report of the Independent Police Oversight Review (Queen’s Printer for Ontario, 2017), at pp. 26-27. [5] Scot Wortley, Racial Disparities in British Columbia Police Statistics: A preliminary examination of a complex issue (September 2021), at pp. 167, 247-248. [6] Toronto Police Service, Race & Identity Based Data Collection Strategy: Understanding Use of Force & Strip Searches in 2020 Detailed Report (Toronto, June 2020) (“TPS Report”). [7] House of Commons, Systemic Racism in Policing in Canada: Report of the Standing Committee on Public Safety and National Security, 43-2, (June 2021) (Chair: Hon John McKay), at pp. 55-56. [8] House of Commons, Systemic Racism in Policing in Canada: Report of the Standing Committee on Public Safety and National Security, 43-2, (June 2021) (Chair: Hon John McKay), at pp. 57. [9] Ontario Human Rights Commission, A Collective Impact: Interim report on the inquiry into racial profiling and racial discrimination of Black persons by the Toronto Police Service (Government of Ontario, November 2018), at p. 23. [10] Toronto Police Service, Race & Identity Based Data Collection Strategy: Understanding Use of Force & Strip Searches in 2020 Detailed Report (Toronto, June 2020).
