Court File and Parties

COURT FILE NO.: CR-22-163

DATE: 20230823

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: HIS MAJESTY THE KING AND IDRISSO PALMER, Defendant

BEFORE: Justice Spencer Nicholson

COUNSEL: M. Gardiner, for the Crown M. Farquhar, for the Defendant

HEARD: May 29 and 31, 2023

REASONS

NICHOLSON J. (ORALLY):

[1] Idrisso Palmer stands accused of two counts relating to the possession of a loaded handgun on March 6, 2021 in the City of London. This matter proceeded by way of a blended voir dire and trial, as Mr. Palmer sought to exclude the handgun from evidence based on an alleged violation of his section 8, 9 and 10 (a) and (b) Charter rights. The parties agreed that the determination of the Charter issues would determine the outcome of the trial.

[2] The parties tendered an Agreed Statement of Facts to assist the court. There was no issue as to identity. Furthermore, it was agreed that Mr. Palmer was not licenced to possess or acquire firearms in Canada. There was no issue with respect to the continuity of the items seized by the police officers. It was further agreed that 15 grams of white powder seized by the police was cocaine. Finally, it was agreed that the firearm recovered from Mr. Palmer was a Lorcin L25 .25 calibre auto semi-automatic handgun. The handgun was operable and properly test fired. It was agreed to constitute a prohibited firearm pursuant to s. 84 of the Criminal Code. Furthermore, the .25 calibre auto cartridge seized while loaded in the handgun was found to be “ammunition” within the meaning of s. 84 of the Code.

[3] The Court heard from four witnesses at trial, being the four police officers involved in the accused’s arrest. The witnesses included Detective Constable Joel Pavoni, Detective Constable Andrew Stanley, Police Constable Jordan Thomas and Detective Constable Devon Wagner.

[4] I pause to note that each of DC Pavoni and DC Stanley have been with the London Police Services (“LPS”) for over 20 years. At the relevant time, they were part of the LPS’ “Core Unit”. PC Thomas joined the force in November of 2018, although he started working for the Peel Police Services in 2016. DC Wagner, who is now with the OPP, had been with the London Police Services for three years as of the date of the alleged offences.

Relevant Factual Matrix:

[5] The LPS, in an effort to deter crime, has increased the visibility of its officers in certain areas of the City that it deems to be high crime areas. Thus, the Core Unit is tasked with crime deterrence and enforcement in high crime areas. One such area is the Super 7 Motel located on Wellington Road South. In their testimony, DC Pavoni and DC Stanley described this as a notorious hotel known for drugs, firearms, prostitution and human trafficking. It is a chronic problem motel. Thus, the Super 7 Motel was a regular stop on the LPS’ Core Unit’s patrol route.

[6] As part of the LPS’ initiative, DC Pavoni and DC Stanley were patrolling the south end of London on March 6, 2021. Their patrol route took them to the Super 7 Motel.

[7] The officers were driving a marked police SUV, with lights on its roof and police markings on its sides. The officers were wearing full police uniforms. DC Stanley was driving.

[8] At 11:47 pm, the officers pulled into the parking lot of the Super 7 Motel. They had not been called to the motel but were simply doing a routine patrol of its parking lot. There was a white Chrysler 300 parked backed up against one of the motel rooms, within a marked parking spot. It was facing the road and was running. Its headlights were on. Mr. Palmer and three others were occupying the car. The number of occupants, however, was not immediately ascertainable to the police officers.

[9] The officers’ attention was immediately drawn to the vehicle because it was running. The time of day and its location were the main reasons why the officers were interested in the Chrysler. According to both officers, it was their intention to speak to the occupants of the vehicle and make general inquiries, but they did not intend to detain them at that point. The officers did not suspect that the occupants of the Chrysler had been involved in any specific offence.

[10] Accordingly, they pulled up in front of the running vehicle, with the fronts of the two vehicles facing each other. The headlights of the police SUV were shining into the interior of the Chrysler. The location of the vehicles will be discussed in greater detail later in these Reasons. The officers got out, approached the idling vehicle and observed smoke coming from its windows. DC Pavoni testified that he could see the smoke and smell marijuana as soon as he exited the police SUV. DC Stanley also testified that he could see smoke and smell marijuana when he exited the police SUV.

[11] The officers engaged the driver of the vehicle, a woman, in conversation. They asked what they were doing there and where they were from. She identified herself and produced her driver’s license. One of the male occupants in the rear of the vehicle identified himself as “Taptap”. Taptap had a marijuana joint smouldering at his feet and indicated that they had come out of the motel to smoke marijuana in their car.

[12] The other rear-seated occupant identified himself, falsely, as “Brodie Bere”. Mr. “Bere” was wearing gloves and a Covid mask over his face. DC Pavoni described that he seemed very nervous.

[13] DC Stanley spoke to the male sitting in the front passenger seat, who identified himself as the accused, Idrisso Palmer. DC Pavoni did not speak with Mr. Palmer, although he did observe him.

[14] DC Pavoni testified that given the smoke and the smell of marijuana, he had, by that time, determined that they had reasonable grounds under the Cannabis Control Act, 2017 (“CCA”) that would allow them to conduct a search of the vehicle and its occupants. DC Stanley similarly testified. In his testimony, DC Pavoni accurately described the power to search the vehicle and occupants under the CCA unless certain exemptions applied.

[15] According to DC Pavoni, he did not wish to conduct a CCA search of the four occupants of the vehicle without first calling for back-up. This was for safety reasons, as the number of occupants of the vehicle outnumbered he and DC Stanley. If one of the officers searched the vehicle, the other would be required to monitor the four occupants of the vehicle, in a location where criminal activity was prevalent. Therefore, DC Stanley called for additional officers to attend before the search was conducted.

[16] During this time, neither DC Pavoni nor DC Stanley specifically advised any of the occupants that they were being detained or that they were going to be searched pursuant to the CCA. However, DC Stanley testified that there was a discussion with the occupants about them having marijuana in a vehicle. One of the rear seat passengers suggested that they could be simply given a ticket and that the officers “get on with it”. None of the occupants were advised of their rights to counsel. While awaiting the back-up, DC Pavoni testified that he continued to make “small talk” with the occupants of the Chrysler. This included discussing the City of Windsor and why they had come to London. It was his evidence that he wished to keep them “happy” until the back-up had arrived.

[17] DC Pavoni testified that he understood that when a person is being investigatively detained, the police are required to advise them of their right to counsel. In this situation, he felt that had he done so, it would have increased the risk to him and his partner.

[18] PC Thomas and DC Wagner responded in separate vehicles to DC Stanley’s call for assistance. PC Thomas arrived first and then DC Wagner. Both arrived within a few minutes of the call as they had been parked in a nearby parking lot. Upon their arrival, DC Stanley explained to PC Thomas and DC Wagner that they were conducting a CCA investigation. He then returned to the vehicle and according to his evidence, explained to the occupants that they would be searching the vehicle pursuant to the CCA.

[19] In his evidence, DC Pavoni described that when the other officers arrived “it became apparent to everyone that they were going to be searching the car, including the occupants”.

[20] When PC Thomas and DC Wagner arrived, DC Pavoni advised the occupants that they were going to be removed from the vehicle and searched. He dealt with Taptap, who exited the vehicle, was subjected to a pat down search for weapons and was told to sit on the curb. When DC Pavoni did so, he told Taptap that he and the vehicle were going to be searched as marijuana had been smoked within the vehicle. He did not give Taptap his rights to counsel warning. He turned him over to another officer and is not sure if another officer gave Taptap his rights to counsel warning. He then began dealing with Mr. Bere which was interrupted when he was advised that a weapon had been found on Mr. Palmer.

[21] Meanwhile, Mr. Palmer had been asked to exit the vehicle by PC Thomas and was then escorted to the rear of the vehicle. Mr. Palmer asserted to PC Thomas that the police required a search warrant before they could search him. PC Thomas told him that they did not. PC Thomas did a pat-down search at 12:00 am. During that search, PC Thomas located the handgun in a “kangaroo pocket” of Mr. Palmer’s sweatshirt. It is this handgun that Mr. Palmer seeks to exclude from evidence at trial. The handgun had a round in the chamber. The police also located some drugs as well.

[22] Mr. Palmer was arrested in relation to the handgun and PC Thomas read him his rights to counsel at 12:04 am. Mr. Palmer was then taken into custody. Mr. Palmer indicated that he understood his rights and indicated that his mother had his lawyer’s phone number. PC Thomas did not permit Mr. Palmer to contact his mother to get the lawyer’s number while at the scene.

[23] The officers left the Super 7 Motel at 12:26 am, with Mr. Palmer in custody. There was a brief delay in leaving the motel as the officers were dealing with the three other occupants and running checks on Mr. Palmer. They also needed to access the occupants’ motel room key so that Mr. Palmer could retrieve his mother’s keys. Mr. Palmer was paraded at the police station at 12:45 am. He was not given an opportunity to speak to a lawyer prior to that time.

[24] The remaining occupants were released unconditionally. It was subsequently discovered during the drive to the police station that Mr. Bere had given a false identity and was really Robert LeBret who was wanted in Windsor for attempted murder.

[25] I note that Mr. Palmer’s Charter application had initially raised racial profiling as grounds for excluding the evidence. Mr. Palmer is a black male. The court heard evidence that Mr. Bere was Caucasian. The driver’s name suggests that she was racialized, but I heard no specific evidence regarding her appearance. I have no evidence of the race of the fourth occupant of the Chrysler.

[26] None of the officers were cross-examined with respect to racial profiling and in my view, it was incumbent upon counsel for the defence to put assertions of racial profiling to the officers. In that regard, I note the comments of Charney J. in R. v. Tully, 2022 ONSC 1852, at para. 71, where he stated as follows:

71. The allegation of racial profiling—even unconscious racial profiling—is a serious allegation. In my view, it should not be made unless the allegation is expressly put to the police officer so that the officer may be given a chance to explain their actions. The fact that policy may be found to have been motivated by unconscious racial bias even if they are being entirely truthful makes this principle of trial fairness more important, not less.

[27] I agree with Justice Charney’s comments in Tully. The defense did not do enough during cross-examination to bring this issue to the forefront from an evidentiary basis, nor allow the police officers to respond to the allegation in their testimony. I reject the arguments concerning racial profiling in this case which were expressly abandoned in oral argument in any event.

Key Evidence and Findings of Fact:

[28] The credibility of the police officers was not seriously undermined during cross-examination. I have no concerns with the truthfulness of any of the evidence of the four officers that testified. I do note, however, that there were minor variances between each officer’s evidence.

[29] Both DC Pavoni and DC Stanley testified that other than the location at which they found the Chrysler 300, neither had any reason to detain the occupants of the vehicle prior to detecting the smell of marijuana. I find that the officers did not detect the smell of marijuana until after they had parked their police SUV and exited the vehicle. However, I do accept that they had reasonable grounds to suspect that there was improperly stored cannabis within the Chrysler before they reached the vehicle. Thus, up until detecting the smell of marijuana, the officers had no probable cause to detain the Chrysler or its occupants.

[30] The Super 7 Motel has a central building with parking lots on both the north and south side of it. Each of those two parking lots is ringed by motel rooms. The Chrysler was located in the north most parking lot. There were two entrances from Wellington Road South into that parking lot.

[31] Both DC Pavoni and DC Stanley attempted to depict how the police SUV was parked relative to the Chrysler. In Exhibit 4, DC Pavoni drew the police cruiser as oriented in the same east/west direction as the Chrysler, with their fronts pointing towards each other. They were not directly across from one another but were slightly offset with the middle of the SUV roughly lined up with the passenger side of the Chrysler. DC Pavoni testified that there was enough room between the two vehicles that an F-150 pick-up truck could pass between them. There were no cars parked on either side of the Chrysler.

[32] DC Stanley drew, in Exhibit 5, a slightly different orientation of the police SUV. He also drew the fronts of the vehicles as pointing towards each other. However, he placed the police SUV on an angle so that its very front was pointed at the passenger side front corner of the Chrysler. He also depicted the police SUV as being offset slightly to the south of the Chrysler. In this manner, there would be more space for the Chrysler to drive past the SUV.

[33] I also note that the parking lot had parking spaces located in its central area and not just lining its perimeter. Both officers’ drawings showed the police SUV as stopped perpendicular with and straddling several of these parking spots.

[34] Although the precise location of the police SUV drawn by DC Pavoni and DC Stanley do not match, I find that little turns on the small difference between their descriptions. Both testified that the Chrysler had sufficient room to drive past the police SUV and I find as a fact that it did have enough room to do so. Neither officer was successfully challenged on this issue during cross-examination.

[35] Both officers testified that they had not detained the Chrysler when they pulled in front of it. However, they also both testified that after they detected the presence of cannabis, had the vehicle driven away, they would have stopped it on the road. DC Pavoni testified that after he smelled the marijuana, had the occupants of the vehicle attempted to leave, he would have advised them that they were detained. However, he added that when he was speaking to the occupants, he did not think that they had been detained at that point. DC Stanley echoed this sentiment—had the occupants attempted to leave he would have detained them.

[36] Both DC Pavoni and DC Stanley testified that they were concerned about officer safety during the encounter, and thus chose not to advise the occupants of the Chrysler that they were being detained upon detecting the smell of marijuana or the reason for them being detained. DC Pavoni testified that he was worried about possible weapons or that such a warning might initiate flight. I accept that in the context of a location with a known propensity for criminal activity this decision was justified. DC Pavoni had previously investigated gun offences at the Super 7 Motel. Furthermore, the officers were initially outnumbered four to two. Finally, DC Pavoni testified as to being concerned about Mr. Bere acting very nervously, wearing gloves and a mask. Thus, I accept that the reason that the officers held off in advising the occupants of the vehicle that they were being investigatively detained legitimately related to officer safety concerns.

[37] I find as a fact that PC Thomas and DC Wagner arrived on the scene within a few minutes of DC Stanley requesting back-up. PC Thomas testified that the call for back-up occurred at 11:54 pm. By 12:01 am, PC Thomas had completed the search of Mr. Palmer and arrested him for possessing the firearm. By 12:04, Mr. Palmer was provided his right to counsel warning. Accordingly, PC Thomas and DC Wagner must have arrived within a very short period of time.

[38] Finally, I note that all the police officers testified that the occupants of the vehicle were cooperative throughout. This must be tempered by the fact that Mr. LeBret did falsely identify himself. Nonetheless, despite DC Pavoni and DC Stanley having concerns regarding officers’ safety, I find that the occupants of the vehicle did not present themselves in a threatening manner at any time.

Legal Analysis:

[39] I am mindful of the approach described in R. v. Nolet, 2010 SCC 24, at para. 4. There the Court described that roadside stops sometimes develop in unpredictable ways and it is therefore necessary for the court to proceed step by step through the interactions of the police and the accused from the initial stop onwards to determine whether, as the situation developed, the police stayed within their authority.

[40] Accordingly, I have attempted to address the Charter issues by determining:

(a) whether there was an arbitrary detention when the police pulled their SUV and parked it near the Chrysler;

(b) if so, whether the police violated Mr. Palmer’s s. 10 (a) and (b) rights by not informing the occupants promptly of the reason they were detained, or immediately providing them their right to counsel warning;

(c) whether the police subsequently failed to adequately comply with s. 10 (b); and

(d) whether the police were justified in searching the Chrysler and its occupants pursuant to the CCA.

Detention:

[41] Section 9 of the Charter affords everyone the constitutionally enshrined right not to be arbitrarily detained or imprisoned. Section 10 (a) provides that everyone has the right on arrest or detention to be informed promptly of the reasons therefor. Section 10 (b) ensures that detainees are given the right to retain and instruct counsel without delay upon being arrested or detained.

[42] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, and in R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 40, the Supreme Court of Canada described a “detention” for Charter purposes. The Court adopted the general principle that a person is detained where he or she submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist (see: Grant at para. 28). This includes not only physical constraint, but also psychological constraint. This includes where a reasonable person in the subject’s position would feel compelled to comply with a restrictive or coercive demand (see: Suberu, at para. 22 and R. v. Le, 2019 SCC 34, 434 D.L.R. (4th) 631, at para. 25). The Court in Grant, Suberu and Le confirmed that determining whether an individual has been psychologically detained is an objective test.

[43] The Court also noted that not all stops made by the police constitute a “detention”. At paragraph 41 of Grant, the Court noted that “general inquiries by a patrolling officer present no threat to freedom of choice.” In R. v. Mann (2004), 2004 SCC 52, 185 C.C.C. (3d) 308 (S.C.C.), the Supreme Court stated at para. 19,

“the police cannot be said to “detain”, within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview.”

[44] In Suberu, supra, the Supreme Court of Canada noted that s. 9 does not dictate that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Not every police encounter, even with a suspect, triggers an individual’s right to counsel under s. 10 (b).

[45] In Grant, the Court summarized, at para. 44, factors that may assist in determining whether a reasonable person in the individual’s circumstances would conclude that they have been deprived by the police of the liberty of choice. The Court noted the following:

(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or singling out the individual for focussed investigation.

(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others and the duration of the encounter.

(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

[46] In Le, supra, the Supreme Court of Canada distinguished between assessing how a person’s race and minority status should be considered in the detention analysis and the separate and distinct inquiry as to whether the police were engaged in racial profiling. As noted, I do not consider that the police were engaged in racial profiling in the case before me. Nonetheless, Mr. Palmer’s race and minority status are a consideration in determining whether he was, objectively, psychologically detained.

[47] The Supreme Court noted that visible minorities may because of their background and experience feel especially unable to disregard police directions and feel that by asserting their right to walk away, they will be seen to be acting evasively (at para. 72).

[48] I have been referred to several cases in which police vehicles have been involved in impeding the path of an accused’s vehicle. I find R. v. Thompson, 2020 ONCA 264, particularly relevant to this case.

[49] In Thompson, the accused was sitting in a parked but running motor vehicle in a parking lot at night. Two police officers had driven to the parking lot after receiving an anonymous tip about drug dealing that was taking place out of a car. They found the accused’s vehicle parked with its engine running. Although they had no basis to believe the car’s occupants were engaged in criminal activity, they parked two police cruisers directly behind it, boxing in the accused’s vehicle so that he could not drive away. The officers approached the vehicle from both sides and one officer smelled burnt marijuana from the open driver-side window. The accused was arrested for possession of marijuana and when the car was searched, cash and other drugs were found.

[50] In Thompson, Jamal J.A. (as he then was) described that an inquiry under s. 9 involves first determining whether the claimant was detained and, if so, then a consideration of whether the detention was arbitrary (at para. 28). A detention without at least reasonable suspicion is unlawful and therefore arbitrary (Grant, at para. 55 and Thompson, at para. 65).

[51] Jamal J.A. reiterated that the presiding judge must apply an objective test to determine whether a reasonable person would perceive that they were being detained. He held that the accused had been arbitrarily detained when the police cruisers were used to block his vehicle’s path. Importantly in that case, the evidence was that both police vehicles were parked in a manner that essentially completely prevented the accused’s vehicle from reversing should its driver have chosen to do so.

[52] In Thompson, Jamal J.A. described the circumstances giving rise to the encounter. He noted that the police had not been called to the scene to provide general assistance, to maintain order or to respond to unfolding events. He noted that they approached the accused’s car because they thought it was suspicious for a car to have its engine running late at night. In his view, a reasonable person would not perceive this action as “assisting in meeting needs or maintaining basic order”.

[53] Jamal J.A. also noted that the police conduct was authoritative. They were uniformed and in marked police cars. They placed themselves on either side of the car to question the occupants. They looked into the car with flashlights and directed a passenger to roll down her window. They directed the occupants to produce identification and vehicle ownership documents.

[54] In R. v. Spurgeon, (unreported—London Court File No. 122/22), a decision of Grace J., two police officers were dispatched to a property to conduct a welfare check in relation to two males who appeared to be sleeping in a vehicle parked in a driveway. The officers were not sent to the property to investigate criminal activity. The engine on the vehicle was running and there were two occupants in the vehicle. The officers approached the vehicle and engaged the occupants in conversation. They obtained some answers that were unsatisfactory to the police officers. A license plate search determined that the vehicle’s license plates had been stolen the previous day.

[55] Grace J. determined that, considering all of the circumstances, an “atmosphere was created that would lead a reasonable person to conclude the police had taken control of the situation and that it was impossible for Mr. Spurgeon to leave without permission”. He cited and relied upon Thompson, supra.

[56] Applying these legal principles, it is my view that there was a psychological detention in this case. I conclude that, objectively, a reasonable person in Mr. Palmer’s circumstances would construe that his choice to leave the scene had been removed by the actions of DC Pavoni and DC Stanley.

[57] In coming to that conclusion, I accept that the London Police Services have a justifiable and laudable goal in establishing a highly visible police presence in areas of London in which there is demonstrably higher crime. For the sake of this decision, I accept the evidence of the police officers that the Super 7 Motel was one such area. Nonetheless, Charter rights are not to be lessened or loosened in such areas. Rather, it is my view that Charter rights must be applied uniformly across Canada.

[58] In Le, supra, the Court described that a suspect’s presence in a so-called high crime area is not by itself a basis for detention (see Le, at para. 60).

[59] Accordingly, the fact that the accused and his fellow occupants were idling in a parking lot known to the police to be an area of high crime does not permit police officers to disregard or suspend Charter rights.

[60] Nor would I feel comfortable if a police force were able to simply label a region or zone as a high crime area to effectuate, even unintentionally, the curtailing of Charter rights.

[61] In determining that there was a psychological detention in this case, I begin with the fact that the police officers arrived in a large, marked SUV and were fully uniformed. An individual in the shoes of Mr. Palmer would undoubtedly take note of their presence.

[62] While I accept the evidence of the police officers that there was sufficient space between where the police SUV stopped and the parked Chrysler for the Chrysler to drive away, I do not accept that this is determinative. In Thompson, the police vehicles did not leave any space for the accused’s vehicle to depart. I do not, however, take that to mean that by allowing some space for the vehicle to depart, there cannot still be a “detention”. Each case must be considered in light of its own specific circumstances. Here, the police SUV was still stopped very close to the Chrysler. More importantly, it was parked in a manner that, in my view, signalled to the occupants of the Chrysler that they were not free to drive away, even if it was theoretically possible to do so. The SUV was parked, on the evidence of either DC Pavoni or DC Stanley, in a way that would partially obstruct the Chrysler’s path. More importantly, the police SUV was, in my view, a psychological impediment to the Chrysler’s departure, even if not an actual impediment.

[63] It is also important to my conclusion that the police SUV’s headlights were directly pointing at the Chrysler, at a height above the Chrysler’s own lights and shining into the Chrysler. Again, this would communicate to the occupants of the Chrysler that they were the specific target of police attention, and in my view, signal that the police were removing from them their choice to freely leave the scene.

[64] There are many other similarities with Thompson. This is not a case in which the police were responding to unfolding events. Similar to Thompson, the police had not been called to the scene to provide general assistance, to maintain order or to respond to unfolding events. Here the officers similarly approached the Chrysler because they thought it was suspicious for a car to have its engine running late at night. I agree with Jamal J.A.’s assessment that a reasonable person would not perceive the police officers’ actions as “assisting in meeting needs or maintaining basic order”.

[65] Again, similar to Thompson, the police officers approached the Chrysler on either side, in an authoritative fashion, and engaged the occupants in conversation, including requiring that the occupants identify themselves. However, I find that the detention was already underway at that juncture.

[66] Finally, I have considered the police officers’ actions from the perspective of Mr. Palmer. As the caselaw notes, it is not necessary for Mr. Palmer to have testified for me to arrive at conclusions about how he would have perceived the actions of the police officers.

[67] Mr. Palmer is a racialized individual. He was 23 years of age at the time of this incident. Pursuant to Le and Grant, supra, these are relevant considerations in this analysis. In this particular case these factors strengthen the case for a finding that Mr. Palmer was detained.

[68] Thus, in the particular circumstances of this case, I find that a reasonable person in Mr. Palmer’s position, would conclude that he was not free to leave the scene without the permission of the police officers. Rather, the police officers had effectively taken control of the situation and a reasonable person would conclude that none of the occupants of the Chrysler were free to leave.

[69] The police may detain a person for investigative purposes if they have reasonable grounds to suspect that the person is connected to particular criminal activity and if the detention is reasonably necessary in the circumstances (see: Mann, supra, at para. 45). Both officers testified that they had no reason to believe that the people in the vehicle were engaged in criminal activity, except perhaps that their vehicle was located in a high crime area at night. This is not a case like Suberu, in which the police officer had a reason to wish to speak with Mr. Suberu in relation to a specific crime. This falls far short of the reasonable grounds to suspect requirement needed to initiate an investigative detention. Accordingly, I conclude that the detention in this case was also arbitrary, and that Mr. Palmer’s s. 9 Charter right was violated.

[70] There was a manner, in my view, in which DC Pavoni and DC Stanley could have pulled into the Super 7 Motel parking lot, parked their police SUV and carried on with the remainder of their activities that would not have infringed upon Mr. Palmer’s s. 9 right not to be arbitrarily detained. I will return to this when I address the s. 24(2) analysis.

Section 10 rights:

[71] In Suberu the Supreme Court held that s. 10 (b) mandates that an individual be advised of his right to retain and instruct counsel immediately upon being detained. As described in Thompson, supra, the test is not “as soon as practicable”. Similarly, a person must be advised of the basis for their detention immediately under s. 10 (a).

[72] However, Suberu does explicitly refer to exceptions to the immediacy requirement for concerns regarding officer or public safety (at para. 42).

[73] Mr. Palmer argues that based on the evidence of the police officers, the occupants of the Chrysler were cooperative throughout such that there is no basis to conclude that officer safety was a valid concern. While I accept that the evidence in this case establishes that the occupants of the Chrysler were not aggressive, I disagree that there were not valid officer safety concerns at play.

[74] First of all, police officers have a legitimate concern for their safety when engaged in situations such as the one confronting DC Pavoni and DC Stanley. The situation can change quickly, and the consequences can be dire. Thus, even if the Chrysler’s occupants were being cooperative, the police officers could not be assured that their cooperation would continue.

[75] Furthermore, I accept the officers’ testimony about the fact that they were outnumbered creating a safety concern. The officers also could not be confident that the four occupants of the Chrysler were the only individuals on scene, as there were hotel rooms nearby. The criminal notoriety of the motel is a legitimate factor in this part of the analysis as well and would impact the officers’ safety concerns. Finally, it was DC Pavoni’s testimony that had they advised the occupants that they were going to be searched, he was concerned that they might flee or access a weapon, creating greater risk.

[76] Accordingly, in the circumstances in which DC Stanley and DC Pavoni found themselves, it is my opinion that they were justified in delaying advising the occupants of the Chrysler that they were being investigatively detained on the basis of a CCA violation until back-up arrived. Similarly, assuming without deciding that the police officers were required to give a s. 10 (b) caution at the outset of the CCA investigation, I find that there was a valid basis to delay in providing the right to counsel warning. Had the officers advised the occupants of the Chrysler that they were being detained and/or read them a s. 10 (b) caution, I find that there was a legitimate concern that the situation could have escalated and imperilled the safety of the police officers.

[77] I note that Code J. concluded similarly in R. v. Graham, [2018] O.J. No. 5992, 2018 ONSC 6718, at paras. 48-55 that officer safety justified a delay in complying with ss. 10 (a) and (b) of the Charter in the context of a Liquor License Act detention until back-up officers had arrived, which in that case took approximately 13 minutes. In the case before me, we are dealing with a similarly short timeframe.

[78] In this case, the occupants of the Chrysler clearly knew that they were being investigated in relation to the presence of marijuana in their vehicle. A conversation ensued in relation to the officers simply giving the occupants tickets. Furthermore, on the evidence, PC Thomas and DC Wagner arrived within five or six minutes of the formation of the grounds for a CCA investigation. At that time, DC Stanley testified, and I accept, that he advised the occupants of the vehicle that they and the vehicle were being searched pursuant to the CCA. Accordingly, the occupants of the Chrysler were advised of the reason for their detention promptly upon the safety of the officers being ensured. Thus, although ss. 10 (a) and (b) were not complied with “immediately”, I find that the brief delay was justified on the grounds of officer safety and that Mr. Palmer’s s. 10 (a) and (b) Charter rights were not infringed by that delay.

[79] I have considered that none of the officers advised the occupants of their s. 10 (b) rights once PC Thomas and DC Wagner arrived at the scene. There is authority for the proposition that s. 10 (b) rights are incompatible with traffic stops. Given that this was a CCA investigation by that time, this has a number of hallmarks in which s. 10 (b) rights were held to be suspended (see: Graham, at para. 52; Tully, supra, at para. 146-147; R. v. Grant, 2021 ONCJ 90, [2021] O.J. No. 744 at paras. 128-131 and R. v. Kanneh, [2022] O.J. No. 4709, 2022 ONSC 5413, at para. 60).

[80] A CCA investigation does involve road safety concerns, since the Chrysler 300 could have driven away. Given the number of cases that have concluded that there is a suspension of 10 (b) rights during a CCA investigation, I am content that the failure to provide a right to counsel warning does not violate s. 10 (b) in these particular circumstances.

[81] It must be kept in mind that speaking to counsel could not have prevented the search of Mr. Palmer under the CCA.

[82] There is also an implementational aspect to s. 10 (b). As noted in Suberu, at para. 38:

[38] Once engaged, s. 10 (b) imposes both informational and implementational duties on the police. The informational duty requires that the detainee be informed of the right to retain and instruct counsel without delay. The implementational obligation imposed on the police under s. 10 (b), requires the police to provide the detainee with a reasonable opportunity to retain and instruct counsel. This obligation also requires the police to refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach a lawyer, or the detainee has unequivocally waived the right to do so.

[83] I have concerns about DC Pavoni making small talk with the occupants of the Chrysler, while waiting for back up and ostensibly delaying providing s. 10 rights because of safety issues. There was a real risk that the occupants would provide self-incriminating evidence and, in my view, DC Pavoni ought not to have engaged them in such conversation if he was not going to advise them why they were being detained.

[84] I have also considered that Mr. Palmer was provided his informational right to counsel upon being arrested following the search. However, he was not provided with the implementational right to counsel for approximately another hour.

[85] The difficulty I have in this case is that the evidence on that point was not well developed. PC Thomas was asked whether he allowed Mr. Palmer to contact his mother, who he indicated knew the name of his lawyer. In reply, I heard evidence explaining why there was a delay in transporting Mr. Palmer to the police station as they had to retrieve his mother’s keys from the hotel room.

[86] Again, it must be considered that the failure to provide Mr. Palmer with his implementational right to counsel had no bearing on the finding of the firearm. Mr. Palmer made no incriminating statements that have been sought to be admitted into evidence against him. Although a s. 10 (b) breach can be considered if it demonstrates a pattern of police conduct in the totality of the circumstances that would justify the exclusion of evidence under s. 24 (2), the delay in providing Mr. Palmer with the ability to exercise his right to counsel had little other impact on this case.

The CCA Search:

[87] A warrantless search is presumptively unreasonable and contrary to s. 8 of the Charter. In the absence of a warrant, the Crown must establish on a balance of probabilities that the search was authorized by law, that the law itself is reasonable and that the manner in which the search was carried out is reasonable (see: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265).

[88] Section 12 of the CCA prohibits the transportation of cannabis within a vehicle unless it is in its original packaging, which has not been opened, or is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle. Subsection 12 (3) authorizes a police officer who has reasonable grounds to believe that cannabis is being contained in a vehicle contrary to s. 12 (1) to enter and search, at any time, without a warrant, the vehicle and search any occupants of the vehicle.

[89] Section 12 of the CCA has been held to be constitutionally valid in R. v. Nzita, 2020 O.J. No. 3109 and again in Tully, supra. Mr. Palmer did not challenge the validity of the CCA in the proceedings before me.

[90] With respect to the s. 8 Charter issue in this case, it is important to consider that the evidence of DC Pavoni and DC Stanley, which I accept, is that both smoke and the smell of marijuana was detected emanating from the windows of the Chrysler immediately when they exited the police SUV.

[91] Indeed, during oral arguments, counsel for Mr. Palmer conceded that by this time, the police officers had reasonable grounds to believe that there was cannabis improperly stored within the Chrysler.

[92] This concession is well-founded. As both smoke and the smell of marijuana was emanating from an idling vehicle, DC Pavoni and DC Stanley had reasonable grounds to believe that cannabis was located within the vehicle and not being stored in the requisite manner—rather it was being consumed by at least one of the occupants. Accordingly, I find that the search of both the vehicle and all of its occupants was justified by s. 12(3) of the CCA and Mr. Palmer’s s. 8 Charter rights were not infringed.

[93] To the extent that questioning the occupants of the Chrysler about their identities constituted a “search” the questions were asked following the detection of the cannabis and were thus also authorized by the CCA. By this juncture, the situation had morphed into a traffic stop as it was a CCA investigation involving a running vehicle. As noted by Code J., in Graham, supra, at para. 60, it is lawful to ask a criminal suspect for his identification. Thus, identifying the occupants of the Chrysler did not violate Mr. Palmer’s s.8 Charter rights.

[94] Nothing about the manner in which Mr. Palmer was searched would constitute a violation of his s. 8 rights.

[95] I therefore conclude that Mr. Palmer’s s. 8 Charter rights were not infringed.

S.24(2) Analysis:

[96] Having found that the police officers violated Mr. Palmer’s s. 9 Charter right not to be arbitrarily detained, the next step is to determine whether the handgun and ammunition found when Mr. Palmer was searched ought to be excluded from evidence pursuant to s. 24(2) of the Charter.

[97] S. 24(2) first requires that the evidence sought to be excluded was obtained in a manner that infringed a Charter right. If so, the exclusion of the evidence is appropriate if it is established that, having regard to all of the circumstances, the admission of the evidence would bring the administration of justice into disrepute. The onus is upon Mr. Palmer. The question to be determined is whether a reasonable person informed of all the relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

“Obtained in a Manner”:

[98] The following considerations guide the court’s approach to the “obtained in a manner” requirement in s. 24(2):

• The approach should be generous, consistent with the purpose of s. 24(2);

• The court should consider the entire “chain of events” between the accused and the police;

• The requirement between the evidence and the breach may be causal, temporal or contextual, or any combination of these three connections;

• But the connection cannot be either too tenuous or too remote.

(see: R. v. Pino, 2016 ONCA 389, at para. 72).

[99] I have no hesitation in finding that the pertinent evidence was obtained in a manner that was causally connected with the infringement of Mr. Palmer’s s. 9 Charter rights. The arbitrary detention of the Chrysler and its occupants by the police set all of the subsequent events into motion. Absent the arbitrary detention, the police would not have detected the cannabis, would not have searched Mr. Palmer and would not have found the firearm.

[100] The s. 10 (b) breaches did not lead to the finding of the firearm or ammunition. The police were authorized to search Mr. Palmer under the CCA and a discussion with counsel could not have prevented that search. Furthermore, Mr. Palmer did not provide any incriminating statements. The police had reasonable grounds to search both the Chrysler and its occupants when they detected smoke and the odour of marijuana. Any statements made no difference in that regard.

[101] However, it would be appropriate for me to consider any s. 10 (b) breach in assessing the totality of the police misconduct here, if any. There was a temporal connection, even if no causal connection.

The Grant Test:

[102] The Grant analysis requires that I consider three aspects (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the accused’s Charter-protected interests; and (3) society’s interest in the adjudication of the case on the merits.

Seriousness of the Breach:

[103] This factor examines the seriousness of the breach with a view to preserving and encouraging public confidence in the courts. There is a spectrum of state misconduct ranging from inadvertent, technical errors to wilful or flagrant disregard for individual rights and interests. The court should not condone significant state misconduct. Where the breach is more serious or deliberate, it is more important for the court to dissociate itself from the misconduct in order to preserve confidence in the justice system and the rule of law (see: Grant, supra, at paras. 72-75).

[104] I reiterate two comments that I made earlier here. The first is that I appreciate the LPS’ interest, and the community’s interest, in targeting areas known to have high incidence of criminality. However, the court must not permit Charter-free zones to exist. The Charter serves to protect the rights of all individuals that come into contact with the state, and this includes those that reside in or frequent high crime areas. Secondly, I profess to having considerable discomfort in law enforcement simply designating areas as high crime areas, thereby eroding Charter protections within those areas.

[105] That is not to say that increased police presence in those areas is not welcome and justified. It is simply to point out that the police should be held to the same Constitutional standards whether or not their actions take place within those zones or elsewhere.

[106] I take into account that both DC Pavoni and DC Stanley are experienced police officers.

[107] I do not consider the s. 9 breach to be particularly serious.

[108] The police are entitled to engage with members of the public. This would include, in my view, parking and exiting the police SUV in the Super 7 Motel parking lot. The police are permitted to approach an idling vehicle but cannot arbitrarily detain that vehicle. My finding that the occupants of the Chrysler were detained hinged considerably on the location and manner in which the police SUV was parked. However, as I alluded to earlier, I may have reached a different conclusion on whether the police officers breached Mr. Palmer’s s. 9 rights had the police SUV simply parked nearby, not in a manner that at least partially obstructed the path of the Chrysler, with its headlights pointed directly at the Chrysler.

[109] At least by the time of trial, it is clear that both DC Pavoni and DC Stanley were aware of the ramifications of boxing the Chrysler in, as they took pains to describe that they had not done so. Their vehicle did not fully obstruct the Chrysler, and, in fact it was possible for the Chrysler to leave the scene by driving around the police SUV. On a reasonable interpretation of Thompson, the police may well have viewed their actions as compliant with s. 9. There was not, in my view, a clear violation of well-established rules governing police conduct because in Thompson, the police vehicle had completely obstructed the accused’s vehicle. That was not the case here.

[110] I have not found that this was a case of racial profiling as the evidence was not developed in a manner that would allow me to do so. This was not a pretext stop as discussed in Tully. I do not have any evidence that the police were aware of Mr. Palmer’s race or age when they stopped the police SUV, and thus, it is hard to fault them for not taking those factors into account when determining if their actions could reasonably be construed as a “detention”. Nothing about the manner in which any of the officers comported themselves at the scene of an evolving situation gives me any great concerns, subject to my comments about s. 10 (b).

[111] I also take into account that the arbitrary detention was extremely brief. By the time that the police approached the Chrysler, there were reasonable grounds established to conduct a search of the Chrysler and its occupants under the CCA.

[112] In short, although I find that the manner in which the police SUV was parked in front of the Chrysler would leave a reasonable person in the shoes of Mr. Palmer with the impression that he was not free to depart the area, this was not an obvious detention. I do not find the police conduct to be a deliberate or wilful breach of Mr. Palmer’s s. 9 rights. I do not find that their actions were negligent, as Grace J. did in Spurgeon. Rather, I would categorize the breach that I have found as being more technical or reflective of an understandable mistake. Determining when and if a psychological detention has occurred is considerably nuanced and fact specific.

[113] I have also considered the s. 24(2) analysis conducted by Jamal J.A. in Thompson, given the substantial similarities to that case. That case was tainted in my view by the Court’s recognition that the Peel Regional Police force has a “chronic problem” in dealing with accuseds’ s.10 (b) Charter protections. I have no similar evidence before me of a chronic issue permeating the London Police Force.

[114] In terms of the s. 10 (b) breach that arguably arose as a result of Mr. Palmer not being afforded counsel until after he was paraded, again I note that the evidence was not well developed, and the onus is upon Mr. Palmer. However, I do not find that the police officers were acting in a deliberate manner in failing to implement Mr. Palmer’s s. 10 (b) right earlier. Rather, they were engaged on the limited evidence before me in attempting to secure Mr. Palmer’s mother’s keys, delaying their progress to the police station. Further, I have no evidence that the police attempted to obtain information from Mr. Palmer after his arrest.

[115] I am concerned about DC Pavoni’s discussion with the occupants of the vehicle while he was awaiting back up. In my view, it is a dangerous practice to engage in small talk because it is difficult to predict what information might be provided. On his evidence, he engaged in topics that were not likely to elicit incriminating evidence. However, of the breaches, this was the more serious breach, in my view.

[116] Overall, the breaches do not constitute misconduct which the court should dissociate itself from. I find the s. 9 breach in this case to have been a difficult determination for the police officers in all the circumstances. The s. 10 (b) implementational breach was relatively brief. There could be an understandable basis for a police officer wishing to engage in small talk to keep subjects of an investigation at ease while back-up arises for legitimate safety reasons.

[117] In my view, the seriousness of the breaches does not clearly weigh in favour of exclusion.

Impact of the Breach upon Mr. Palmer’s Interests:

[118] At this stage of the Grant analysis, the court must consider the extent to which the Charter breach actually undermined the interests protected by the rights infringed upon. This involves identifying the interests protected by the relevant Charter rights and evaluating how seriously the Charter infringements trod upon those interests.

[119] As noted by Jamal J.A. in Thompson, at para. 97, the more serious the impact on Charter-protected interests, “the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute”, citing Grant and Le.

[120] At para. 98, Justice Jamal described that s. 9 of the Charter protects an accused’s liberty from unjustified state interference—his right, absent compelling state justification, “to live his life free of police intrusion”, and “to make decisions, including decisions of fundamental importance, free from state interference”. Again, he cited Le and Grant.

[121] As in Thompson, I conclude that the impact on Mr. Palmer’s s. 9 interest was significant. The psychological detention, although brief, eliminated his option to leave, without any reasonable basis for the police to detain him. This factor weighs in favour of excluding the evidence.

[121] With respect to the s. 10 (b) breach, clearly the right to retain and instruct counsel without delay is important in ensuring that those facing significant legal consequences are provided with the opportunity to obtain advice about how to exercise their rights which can prevent self-incrimination.

[122] In this case, the actual impact of any s. 10 (b) breach upon Mr. Palmer was de minimis. The firearm would have been found whether or not Mr. Palmer was provided with his s. 10 (b) right to counsel earlier.

Society’s Interests in the Adjudication of the Case on the Merits:

[123] The court must then consider society’s interest in conducting a trial on the merits. The exclusion of “reliable evidence” under s. 24 (2) most often results in the dismissal of criminal charges as the Crown is otherwise unable to prove its case. The evidence here is crucial to the Crown’s case, which would otherwise be dismissed. The third factor almost invariably weighs in favour of admitting the impugned evidence.

[124] Obviously, firearm offences are particularly problematic, and the problem is becoming more, not less, prevalent in this community, as with other communities. Illegal firearms are inherently dangerous. However, it is clear from the case law that there is no “handgun exception” to the admission of evidence obtained in breach of the Charter (see, for example, R. v. Omar, 2018 ONCA 975).

[125] Nonetheless, in Omar, Brown J.A., in dissent, wrote at length about the particular need to protect the community from handguns. He noted as follows at para. 135:

[135] However, a community’s desire to live free from the lethal threat of illegal handguns is not the product of a community “wrought with passion” or “otherwise under passing stress due to current events”. It is a most rational desire for a necessary component of the rule of law—the existence of a safe and ordered community in which individuals have the ability to exercise their liberty rights free from fear and threat of harm to their persons. As Grant teaches, the term “administration of justice” in s. 24(2) is not limited to “the processes by which those who break the law are investigated, charged and tried”, but it more broadly “embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole”: at para. 67 (emphasis added by Brown J.A.).

[126] A majority of the Supreme Court of Canada, in R. v. Omar, 2019 SCC 32 allowed the appeal, substantially for the reasons of Brown J.A.

[127] In any event, this is not a case in which I have found that the first two prongs of the Grant analysis call strongly for the exclusion of the evidence. I therefore am not elevating the third factor over the first two by recognizing that handguns are an alarming problem in the community and that the third factor weighs strongly in favour of the admission of the evidence.

The Balancing under s. 24(2):

[128] This part of the exercise is qualitative and not capable of mathematical precision. The evidence must be weighed on each line of inquiry to determine, whether having regard to all of the circumstances, its admission would bring the administration of justice into disrepute.

[129] In R. v. McGuffie, 2016 ONCA 365, at paras. 62-63, the Court of Appeal stated as follows:

[62] The first two inquiries work in tandem in the sense that both 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 strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society’s interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case.

[63] In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence.

[130] In R. v. Harrison, 2009 SCC 34, 2009 2 S.C.R. 494, the Supreme Court reminded us that the balancing is not simply a contest between the degree of police misconduct and the seriousness of the offence. Allowing the seriousness of the offence and the reliability of the evidence to overwhelm the s. 24 (2) analysis would “deprive those charged with serious crimes of the protection of the individual freedoms afforded to all Canadians under the Charter and, in effect, declare that in the administration of the criminal law ‘the ends justify the means’ (at paras. 37 and 40).

[131] In my view, the reputation of the administration of justice would suffer more if the evidence were to be excluded. The police officers were faced with a dynamic and legally complex situation. They did not park the police SUV so as to physically obstruct the Chrysler from leaving. Although, I found a breach of s. 9, in my view it was more of a technical breach. The evidence should not be excluded merely because I found fault with the police officer’s decision to park where they did, as opposed to other permissible locations that could well have led to the same lawful search. In my view, the community would be more concerned with the dismissal of a serious firearms case on such a basis.

[132] Furthermore, any s. 10 (b) breaches did not lead to any of the evidence being discovered in this case. While there are cases in which it is important for the courts to demonstrate its disapproval for breaches even where there is no causal connection between the breach and the discovery of the impugned evidence, I do not find that this is such a case.

Disposition:

[133] Accordingly, I find that Mr. Palmer has not met his onus to exclude the evidence obtained by the police officers. The firearm and ammunition are admissible into evidence. Therefore, I find Mr. Palmer guilty on both counts of the indictment.

“Justice S. Nicholson”

Justice Spencer Nicholson

Date: August 23, 2023