COURT FILE NO.: CR-22-285-00 DATE: 2023 09 07

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING -and- JUSTIN SHARMA

Counsel: Sam Weinstock for the Crown respondent Joel Hechter for the defendant applicant

HEARD: May 15-18, 2023

CHARTER RULING

D.E. HARRIS J.

[1] The applicant challenges on Charter grounds the police stop of his SUV and its subsequent search under the Cannabis Control Act. A loaded handgun was found as well as a quantity of fentanyl.

[2] The Charter rights implicated are the section 9 right not to be arbitrarily detained for the stop and the section 8 right to be free from unreasonable search or seizure for the search. The essence of the applicant’s challenge is a frontal attack against the credibility of the four police officers involved in the stop and search. It is argued that the officers collaborated to falsify both their notes and testimony on this pre-trial motion.

[3] It is important to explore all the pertinent surrounding circumstances: R. v. Mayor, 2019 ONCA 578 at para. 15. In relation to the stop, the main question is why the police stopped the SUV. The police officer witnesses all testified that the stop of the SUV was because of a burned-out headlight. The defence disputes this and argues that the real reason for the stop was suspicions of the applicant involving possession of a firearm from several months previous.

[4] In summary, two marked police cruisers were involved in the stop of the applicant’s SUV. The officers in one of the police cars, PC Rice and PC Murad, testified that there was a brief meeting with the officers from the other cruiser, PC Lumsden and PC Charron, just moments prior to the stop. PC Lumsden discussed stopping the SUV which he had just observed but had lost in traffic before he could stop it. PC Rice and Murad testified that they were told by PC Lumsden that he had queried the plate and found that the SUV was registered to 8 Hoyle Drive in Brampton. PC Lumsden said that this was an address associated with previous suspicions of firearm possession.

[5] Contrary to this evidence from PC Murad and Rice, PC Lumsden and PC Charron had no notes or testimonial recollection of this meeting with their fellow officers. They denied it took place. The defence alleges that this absence of memory is false. Counsel points to the fact that three of the four officers were in fact directly involved in investigating these prior suspicions. The defence argues that it was these suspicions that constituted the real reason for the stop, not the headlight as testified by the officers.

[6] The ultimate questions with respect to the stop of the SUV in relation to the prior meeting are:

i. Did the meeting take place and was the previous firearm allegation mentioned?;

ii. If the meeting did occur and the firearm was mentioned, did the two officers’ absence of any memory or notes of it demonstrate an attempt at deliberate concealment?; and

iii. If there was deliberate concealment, what inference ought to be drawn in relation to whether there were Charter violations committed by the police in the stop and search of the SUV?

[7] With respect to the second part of this application-the search of the SUV- all four police officers testified to smelling burnt cannabis coming from Mr. Sharma’s vehicle after it was stopped. The odour of marijuana was legally insufficient on its own to conduct a search of the vehicle under section 12(3) the Cannabis Control Act which allows for searches of motor vehicles if there are grounds to believe there is improperly packaged, accessible marijuana. The key evidence which the police testified supplied the additional grounds for the search was the observation of marijuana visible in the interior of the SUV. But the defence impugns the officers’ credibility, relying on discrepancies between their testimony about where the marijuana was found.

I. THE STOP

i. THE CIRCUMSTANCES OF THE STOP

[8] The applicant was driving his family’s BMW X5 SUV when he was stopped by the police on March 29, 2021 at about 11:09 p.m. in front of 23 Zia Dodda Crescent in Brampton. Officer Lumsden together with a new trainee officer, Officer Charron. PC Charron was driving. The officers had seen the X5 a few minutes before and both testified that there was no headlight illuminated on the passenger side. They queried the licence plate on their cruiser’s system and discovered that it was registered to 8 Hoyle Drive. By the time they turned around and went after the vehicle, they had lost it in traffic.

[9] When the SUV was seen again soon after, it was pulled over by PC Lumsden and Charron. Another squad car pulled in just behind their cruiser. PC Murad, also a new officer still in training, was driving and was with PC Rice. These officers also testified that the headlight on the passenger side of the vehicle was burned out.

[10] There was evidence questioning the police observation of the burned-out headlight. The defence called Mr. Sharma’s mother, Reena Banjani. She testified that after her son was arrested, she could not remember distinctly whether all the lights in the front of the car were working. There are at least three on each side and a fourth fog type light can be activated as well. There is only one headlight on each side; the others are smaller amber lights. Soon after the incident, Ms. Banjani testified that the SUV was taken in for service because one of the amber lights on the passenger side was out. She did not mention anything awry with the headlight. It can be inferred from her evidence, although it is not certain, that the headlights were working properly at the time of the stop, contradicting the evidence of the four police officers.

[11] Under s. 62(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 [HTA], a “lamp” is required on each side of the front of a vehicle. Subsection 33 makes it an offence to contravene this requirement. If both headlights were illuminated, even if one of the amber lights was not, there was no violation of the HTA and the police were not justified in stopping the vehicle. On the other hand, if the testimony of the police officers is accepted, they had the legal power to pull over the SUV under the HTA.

ii. THE MEETING BETWEEN THE FOUR OFFICERS

[12] There was contradictory evidence between the four officers about whether or not there was a meeting between them discussing the SUV after it was first seen on the road prior to it being stopped. Officers Lumsden and Charron said there was no meeting and had no notes of it, although PC Lumsden paid lip service to the “possibility” that it might have occurred. Furthermore, PC Lumsden denied that the prior incident at 8 Hoyle Drive came up when he queried the plate of the SUV nor did he remember the address at the time.

[13] Contrary to this evidence, Officer Rice had in his notebook and testified that just before the stop of the SUV, he and PC Murad met up with PC Lumsden and PC Charron. According to PC Rice, Lumsden advised that he had just seen a vehicle he recognized from a BOLO (Be On the Look Out) for possession of a firearm from 8 Hoyle Drive. He said the vehicle was a black BMW SUV X5. He had just seen it northbound on Via Romano Road at Ebenezer.

[14] PC Murad’s evidence about the content of the meeting was similar. His notes were identical to PC Rice’s up to the time of the stop. The order of the words and the words themselves were virtually identical. They must have made their notes together. There is no other possible explanation.

[15] At the discovery and in this motion, PC Murad added that the cruisers were parked driver to driver--facing opposite directions--and PC Lumsden was talking past him (Murad) and the driver--PC Charron-- to PC Rice who was in the passenger seat of the other cruiser. The meet up lasted a few minutes. Importantly, neither Rice nor Murad remembered or had in their notes that PC Lumsden said anything about the SUV having a burnt-out headlight.

[16] PC Murad also testified that during the meet up, the SUV passed them. PC Charron led a pursuit with PC Murad following in his cruiser. It was at this point that PC Murad noticed that the passenger headlight was burnt out.

[17] Did the meeting testified to by the two officers take place? It can be safely said at the outset that there is no apparent reason that Rice and Murad would remember a meeting that never happened. Nothing was put forward on this hearing which would suggest why the two officers would both conjure up a false memory. In further exploring whether the meeting took place and what was said if it did, it is necessary to incorporate the background of the prior incident as it came out in the evidence.

iii. THE “BOLO” INVOLVING 8 HOYLE DRIVE

[18] The meeting between the four officers takes on significance not only from its closeness in time to the March 29, 2021 stop, and the subject matter of the meeting, but from the fuller historical background to the firearms allegation discussed. The BOLO from December, 2020 was focussed on the address of 8 Hoyle, the applicant and his parents’ home address. Both the vehicle involved in that incident and the BMW X5 from this incident, were registered to the Hoyle address. In the discovery of June of 2022, PC Rice said that he was not familiar with the address 8 Hoyle Drive when PC Lumsden mentioned it in the meet up just before the SUV was stopped. PC Charron testified in the discovery that she had never been to the Hoyle address before.

[19] In fact, three of the four officers had dealings with the BOLO pertinent to 8 Hoyle Drive on December 7 and 8th, 2020, about four months before the stopping of Mr. Sharma’s SUV and the finding of the gun and drugs. The BOLO, and related radio broadcasts, pertained to an SUV with the licence plate CRCJ448, registered to 8 Hoyle Drive. This is a different vehicle then was the subject of the stop in this case but was also registered to 8 Hoyle Drive as well. A series of police event chronologies suggest that the content of the BOLO was that a vehicle had failed to stop for Waterloo Police. The OPP had gotten involved, and the Peel Regional Police was asked to investigate, as the vehicle was registered to the address of 8 Hoyle Drive in Brampton. Peel police officers were asked to attend the residence to ascertain who was driving the vehicle. The OPP initially warned that the “parties may be in possession of a handgun”, but at 1:28 a.m. a communication update from Waterloo police advised that it was not clear whether a criminal offence had been committed and none of the parties were arrestable.

[20] Records obtained by the defence reveal that PC Rice was the Peel officer dispatched to 8 Hoyle Drive, at 1:18 am on December 8, 2020. Just moments before, PC Charron and another officer were dispatched to the same address. PC Rice was present at the address at 2:28 a.m. that night and did checks on the Applicant. Mr. Sharma’s mother, called by the defence, testified that on the night of December 8-9, 2020, after midnight, there was a banging on her door at home. It was PC Rice. He left his card for her and she took a photo that was entered into evidence. PC Rice wanted to talk to her son, Justin Sharma, about an incident in Waterloo involving a girl. PC Rice also asked about the vehicle in the driveway and Ms. Banjani said it was owned by an uncle.

[21] Disclosure reveals that PC Lumsden was also involved in investigating the BOLO around the time it was broadcast originally. He did two CPIC checks on December 8 and one on the 9th, 2020 not with respect to the vehicle from the BOLO but rather on the SUV stopped in this case, licence no. CKAN989. This vehicle and its plate were not mentioned anywhere in the BOLO. It is fair to infer that PC Lumsden most likely saw this vehicle parked in the driveway of 8 Hoyle Drive or close-by.

[22] Lastly on the issue of the stop, the defence obtained by way of disclosure, communications between PC Lumsden and a PC Dollan. At 12:53 a.m. on March 30, 2021, or a little less than three hours after the applicant’s stop and the finding of the gun and drugs, this exchange took place:

Dollan: SICK pinch man damn Lumsden: thanks its the bolo from hole why i stopped member opp Dollan: he was the guy that took off from waterloo a while ago with that young girl and then took off from me in his bmw as well Lumsden: yes exactly

[23] PC Lumsden acknowledged writing this. The conversation clearly states that the reason he stopped the SUV was because of the BOLO and that Mr. Sharma “took off” from the Waterloo police with a girl previously. PC Dollan appears to have had some involvement with the applicant and the BMW as well. In the conversation, no mention is made of stopping the vehicle because of the burned-out headlight.

[24] It is significant that the officers who stopped the applicant and his SUV on March 29, 2021 had just four months before investigated him and his address for a firearms allegation are of obvious importance. By itself, this does not mean much. However, it does support an inference that the meeting testified to by the two officers did take place and, as they testified, the BOLO was discussed at it.

II. THE SEARCH

i. THE MARIJUANA OBSERVED IN THE VEHICLE

[25] PC Lumsden testified that he went to the driver’s window after the stop and told the applicant that he was pulled over for the headlight. He testified that he smelled burnt marijuana emanating from the car. PC Charron testified that she went to the passenger window and smelled the same thing. PC Murad said he was next to PC Lumsden during the conversation with the applicant and testified that he smelled marijuana too.

[26] PC Lumsden advised PC Rice of the odour and then PC Rice, about eight minutes after the stop, came to the window to make his own observations and smelled it for himself.

[27] The defence attacked the reliability of these observations. There was evidence from the applicant’s mother that there was a recently installed deodorant tree hanging from the driver’s rear-view mirror of the SUV. One of the police photographs shows a clean, intact cellophane package from this type of tree. It is called “Black Ice.” Mr. Hechter brought in a new unopened one. He opened it up. The smell was overpowering and, to my nose, extremely unpleasant.

[28] I can take judicial notice of the odour of burning cannabis: see generally R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, 33 C.R. (6th) 1, 202 C.C.C. (3d) 1, and more specifically see R. v. Jang, 2015 BCSC 387 at para. 34. Since legalization, the odour of burning cannabis is ubiquitous on urban streets. It is as prevalent if not more so than cigarette smoke. In my opinion, the Black Ice deodorant smells nothing like cannabis. And although overpowering and toxic, it is incapable of fully masking the smell of burnt cannabis, itself a distinctive and very cloying, penetrating odour.

[29] I conclude that there are no significant reliability concerns with respect to the police olfactory observations of burning marijuana. But credibility remains a live issue. That was the main thrust of the applicant’s attack.

[30] The law is clear that burnt marijuana by itself can rarely if ever supply police grounds for a Cannabis Control Act search of a vehicle under Section 12(3) of the Act. The leading authority is R. v. Polashek, 134 C.C.C. (3d) 187 (Ont. C.A.). I discussed Polashek in a previous Section 12(3) case (R. v. McKenzie-Walcott, 2022 ONSC 1350) and will not delve back into it in detail now. Simply put, the law is that the odour of burnt marijuana may linger well after it is smoked and is too subjective and unreliable to itself form reasonable grounds that there is marijuana in a vehicle. As Jang points out as well at para. 30, another less significant factor going against grounds to search for improperly packaged cannabis arises from the reflection that an occupant may have smoked all the marijuana that was in the vehicle, leaving none remaining.

[31] The police officers in this case appeared to understand that the odour of marijuana was insufficient. All, however, testified that they observed cannabis in plain view prior to the search. However, there are disconcerting discrepancies between the cannabis observations of the different police officers.

PC Murad

[32] PC Murad testified that he saw marijuana in the driver’s floor matt area near where the gun was found. He was the only one of the officers who testified to seeing cannabis in this area although they all had a good opportunity to do so. PC Lumsden took pictures during his very systematic search. His picture of this area clearly does not show anything resembling cannabis. The total evidence leads to the conclusion that PC Murad was obviously wrong. There was no marijuana in this area.

PC Lumsden and PC Charron

[33] PC Lumsden testified that when he initially approached the car he observed marijuana leaf residue in the centre console, in front of the cup holders. There were loose flakes of marijuana. In cross-examination, he said that the marijuana was “fairly obvious.” He testified at the discovery that the marijuana was all over around the cup holders. He could see into the cup holders.

[34] Mr. Sharma’s mother testified on this application and introduced pictures of the SUV taken from a position approximately where PC Lumsden was standing. The centre console was difficult to see and it was not possible to see into the cup holders. Although this evidence tended to suggest that PC Lumsden could not have seen the area around the centre console area or into the cup holders as he claimed, because of the dynamics and the various different positions the officer and driver could have occupied, this evidence is of relatively minor weight.

[35] PC Lumsden’s partner that day, PC Charron, testified that like him, she observed residue in the central console area. It was in front of the gear shift and was leafy. She was using her flashlight and looking through the passenger side front window. In testimony, she was unsure whether the window was up or down. She did not observe cannabis anywhere else.

[36] The problem with the observations of PC Lumsden and PC Charron was that neither PC Murad nor PC Rice saw cannabis in this area. That is particularly noteworthy with respect to PC Rice. He was the officer designated to search the vehicle. He testified that he began the search at 11:17 p.m. and ended at 11:45 p.m. A half-hour search of the passenger compartment of an SUV is a thorough, careful search. PC Lumsden testified that he always uses the same method. He searches in a clockwise direction beginning with the driver’s seat. He takes photographs of anything noteworthy as he is proceeding.

[37] The firearm was found in the first minute of the search. It was under the driver’s seat, one of the first places searched. PC Rice photographed it with his cell phone. PC Rice did not notice any cannabis in the central console area and consequently took no pictures of the area. That constitutes a stark inconsistency with the evidence of PC Lumsden and his partner PC Charron. There is no suggestion that the marijuana supposedly seen by Officers Charron and Lumsden could have disappeared after they saw it.

PC RICE

[38] PC Rice testified that he saw cannabis in the back seat, driver’s side, of the SUV and, in addition to the odour, this supplied him with grounds for the search. He referred to what he saw as “buds” or “shake.” PC Lumsden, at a point prior to commencing the search, claimed to have seen marijuana on the “rear floorboard” as well. A photograph PC Rice took shows the cannabis in the back seat. Mr. Hechter argued that the substance shown in the photograph could have been tree leaves or other detritus. While that is possible, a reasonable conclusion from the photograph is that it depicts cannabis.

[39] There is, however, a major problem with PC Rice’s evidence with respect to the cannabis in the backseat driver’s side. The metadata for the photograph from his cell phone indicates that it was taken at 11:58 p.m. There was no indication that this could have been a mistake or an incorrect time. But the search and the photographing of items of interest according to PC Rice’s evidence and documented in his notes ended at 11:45 p.m., 13 minutes before. No explanation was tendered why the photograph was taken outside of the half hour duration of the search. It was inconsistent with PC Rice’s evidence that he photographed as he went about the search. There was no evidence that any of the other photographs taken and introduced into evidence were likewise outside the half hour search period.

III. CONCLUSIONS

[40] Although the evidence has been grouped under two different headings--the stop and the search--the officers’ credibility cannot be divvied up this way. A cumulative approach looking at the strengths and weaknesses of their evidence in totality is required.

[41] The police could legitimately and within their powers have stopped the SUV if one of its headlights was out. This proposition is uncontroversial and follows directly from subsections 62(1) and (33) of the HTA: see R. v. Wilson, [1990] 1 S.C.R. 1291.

[42] In addition, if the stop was because of the absence of a headlight, the police could have hoped to develop grounds for a search of the vehicle upon making observations of the vehicle and the driver without falling afoul of any common law or Charter prohibition. As long as the reason for the stop was genuine and the subsidiary purpose was itself not unlawful or tainted by an improper motive or intention, it was a legitimate way to proceed: Brown v. Durham Regional Police Force (1998), 43 O.R. (3d) 223 (Ont. C.A.) at paras. 31-43; R v Humphrey, 2011 ONSC 3024 at paras 22-23, 90.

[43] What the police could not do is stop the applicant based only on the BOLO information. The information was stale, it involved a different vehicle, and the foundation for the information at the time of the BOLO was unsourced. The BOLO itself stipulated that the parties (i.e. the applicant) were not “arrestable”, a lower standard but nonetheless pertinent.

[44] In what was curious testimony, PC Rice testified that in his view, the police could stop the vehicle on the basis of the BOLO even though it was four months old and involved a gun in a different vehicle registered to the same address. That is clearly wrong as a legal proposition and Mr. Weinstock for the Crown wisely conceded as much.

[45] The existence of the BOLO several months earlier would in other circumstances not be a concern. A stop on proper grounds with the intention of further investigation hoping to find evidence in plain view is permissible and could well be indicative of good police work.

[46] The problem returns to the question of the meeting: whether it happened and, if so, why it is being disclaimed. Two officers noted the meeting; the other two did not and denied it happened. Mr. Hechter emphasized the importance of good notetaking. He made reference to the report of Nova Scotia’s Mass Casualty Commission where it was written,

… [n]ote taking is the single front-line member practice that has the greatest potential to enable effective supervision and, in turn, to facilitate democratic accountability for low-visibility decision-making.

Turning the Tide Together: Final Report of the Mass Casualty Commission, v. 5: Policing, at 606

[47] Also see Schaeffer v. Woods, 2013 SCC 71 at paras. 62-67; R. v. Eagle, [1996] O.J. No. 2867 (Gen. Div.) at paras. 15-16.

[48] The Mass Casualty Commission refers to the importance of notes when low-visibility decisions are being made by the police. The importance of scrutinizing low-visibility decisions and actions had been previously emphasized by the Supreme Court in R. v. Le, 2019 SCC 34:

87 In Grant, Binnie J. took judicial notice of how race could affect a s. 9 detention analysis when he observed how experience tells the courts that “[a] growing body of evidence and opinion suggests that visible minorities and marginalized individuals are at particular risk from unjustified ‘low visibility’ police interventions in their lives” (para. 154; see also, R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679 (S.C.C.), at para. 83; R. v. Brown (2003), 64 O.R. (3d) 161 (Ont. C.A.), at para. 9).

[49] This case showcases an important function of police notes to aid in furthering law enforcement accountability. The notes of Murad and Rice hold the other two officers accountable for the meeting. Without their notes, the meeting before the stop may not have been revealed.

[50] In my view, based on all the evidence, the meeting as testified to by PC Rice and Murad undoubtably occurred. The meeting was immediately before the stop, it involved discussions about the stop and the substance of the meeting included a prior investigation they had all, but for Murad, been personally involved in. The meeting was of critical importance in the investigation; it was not a minor or forgettable adjunct to the stop. Also, the prior BOLO investigation was of a very serious allegation involving guns and human trafficking or kidnapping. It supplied good reason for heightened interest in the SUV.

[51] Officers in one of the cruisers had notes and recollection of the meeting; the officers in the other cruiser had neither. On all the evidence, failed memory is not a viable alternative explanation. The omission of the meeting from their notes and their denial of it occurring could not have been an accident.

[52] There was some suggestion by the defence that PC Murad’s notes which referred to the meeting were made before those of the other officers and that provided some explanation for the discrepancy in the notes. He was a trainee and did not have any tasks to perform after the arrest. It is clear that PC Rice simply copied PC Murad’s notes. Deviating from PC Murad’s notes about the meeting would raise eyebrows. While not a crucial finding, perhaps that is how it came about that these two officers together in one cruiser had notes and a recollection and the other two in the other cruiser did not.

[53] The key inferences against the police in this case arise from the effort on behalf of PC Lumsden and PC Charron to hide the meeting from scrutiny. The concerns with respect to the lack of notes or memory of the meeting do not exist in isolation. The differing evidence about the marijuana in the SUV also raises suspicions. PC Murad’s evidence that there was marijuana on the driver’s seat mat is proved to be untrue on the basis of the other officers’ evidence and the photograph. PC Lumsden and PC Charron’s key evidence about marijuana in the console area is rebutted by the lack of a photograph of it and the contrary evidence of PC Rice. PC Rice’s testimony and photograph of marijuana on the mat in the back seat, behind the driver’s seat, is undermined by the fact the photograph was taken well after the search of the vehicle concluded. There was no explanation for the discrepancy.

[54] PC Lumsden was a nervous witness. He chugged compulsively on his water bottle during his testimony and seemed unsettled. This tends to support to some degree the concerns with respect to his evidence in this case. In the end, I am driven to the conclusion that the absence of notes or recollection of the meeting just before the SUV stop was purposeful.

[55] The inference to be drawn is similar in kind to that drawn from an accused’s after the fact conduct, formerly termed consciousness of guilt: R. v. Calnen, 2019 SCC 6 at paras. 106-126; R. v. Rodgerson, 2015 SCC 38; R. v. White, 2011 SCC 13. Deliberate efforts were made by the police to hide the meeting from subsequent scrutiny. The objective must have been to conceal what the officers believed could portray them and what they did in an unfavourable light.

[56] The efforts at concealment of the pre-stop meeting allow for only two possible explanations. The first scenario is that the headlight was not out on the SUV and the police pulled the applicant over solely on the basis of the vague, insufficiently grounded, four-month-old BOLO information. The only other possibility is that the headlight was in fact out and the police did not realize that the BOLO information could in law legitimately co-exist with the burnt-out headlight reason for the stop. The possession of the BOLO information as a subordinate purpose of the stop would not in law invalidate the stop on Charter grounds. But the police may not have known this. The irony of this is that if true, the police did not have to hide the influence of the BOLO on their conduct as it was entirely proper and within the bounds of Charter compliance.

[57] In my view, the first alternative is the more likely. A reasonable and informed police officer would likely know that their investigation of a driver is not limited to the specific reason it was stopped initially. They can use other information to continue their investigation in appropriate circumstances.

[58] Other factors to further this conclusion are that Mr. Sharma’s mother tends to confirm that the headlight was not out. In addition, according to Officers Rice and Murad, the headlight was not mentioned at the meeting between the four officers immediately before the stop.

[59] The conversation between PC Dollan and PC Lumsden a few hours after the arrest clinches the likelihood that it was the BOLO not the headlight which led to the stop. I would not regard this conversation as a smoking gun, conclusive in itself, but it does add to the impression that the BOLO played a much larger role in this stop then PC Lumsden let on.

[60] In the end, the finding is that the stop was based on the BOLO; the SUV did not have a burnt-out headlight. The stop was without proper grounds. The detention was arbitrary. Section 9 was breached. With respect to the search, contrary to the police evidence, there was no marijuana on the driver’s matt nor on the central console. With respect to the marijuana on the back matt behind the driver, there is a reasonable possibility based on all the evidence that it was not there at the time the vehicle was stopped nor when it was searched between 11:17 p.m. and 11:45 p.m. by PC Rice. It could not form grounds upon which to base a search.

[61] Although there are few certainties as to what happened here, there is one central fact. The police evidence on the main factual aspects of the stop and the search is entirely untrustworthy. PC Lumsden and PC Charron deliberately left the meeting out of their notes and testimony for their own purposes. The stated reason of a burned-out headlight for the stop is unreliable.

[62] Similarly, the totality of the police observations made of supposed cannabis during the search of the SUV is incapable of being reasonably relied upon. As a result, the objective grounds to support a CCA search were absent: R. v. Storrey, [1990] 1 S.C.R. 241. The search was unlawful and hence unreasonable.

[63] The defence has met their onus to show that the stop was arbitrary and the search unlawful and unreasonable. Breaches of sections 9 and 8 of the Charter have been demonstrated.

THE CONFIDENTIAL INFORMANT ISSUE

[64] Mr. Sharma, following his arrest, refused to give a statement to the police, relying on his right to remain silent. After he warded off their persistent efforts over a considerable period of time, the police finally relented and did not press any further. Mr. Sharma was then taken to another interview room. Two new officers came in. Both testified on this application that their purpose was to attempt to enlist Mr. Sharma as a confidential informant. At this, they were unsuccessful. Mr. Sharma was no more tempted by this than he had been to talk to the police about the allegations against him.

[65] Originally in his factum, Mr. Hechter applied for a stay of proceedings based on abusive police conduct. He objected to the police making overtures to enlist him as a confidential informant when Mr. Sharma had just been arrested and detained. It was argued that Mr. Sharma was in a vulnerable state and it was inappropriate for the police to attempt to persuade him at such a juncture.

[66] During his submissions at the oral hearing, Mr. Hechter wisely backed away from this position. It would be a misstep for a judge to dictate to the police when and how a person ought to be enlisted to become an informant. This, barring some extraordinary circumstance, must be left to the police who have the experience and expertise in this highly sensitive, delicate, and hands-on process. Mr. Hechter’s pivot was that the police were remiss in failing to keep any record of their interaction with the applicant when they proposed he become a confidential informant. They consciously did not take notes or cause an audio or video recording be made.

[67] I agree with this submission. The reasons behind the necessity to keep some kind of record was well-exemplified by the evidence of the two officers on this hearing. Their meeting with the applicant took place a full two and a half years before their testimony. They had no notes, aid memoire, video or audio documenting what happened or capable of refreshing their memory. Their evidence was essentially, “I would have said X” based on what they usually said and did in similar situations. Understandably, they had no idea what the applicant had said during the interview except that he had declined their offer.

[68] The reasons are relatively obvious why for both an accused and the police, there should be a record of what has taken place when the police proposition an individual to become a confidential informant.

[69] The officers’ position which they portrayed as standard procedure in Peel, is clearly an unsatisfactory state of affairs. It has long been the case that interviews and conversations between police and suspects or accused persons, particularly in police stations, are recorded by video or at least audio. The courts have left no doubt on the subject: see e.g. R. v. Moore-McFarlane (2001), 56 O.R. (3d) 737 (C.A.).

[70] Of course, the difference in a confidential informant context is the threat that the identity of the informant could be revealed. The critical importance of protecting informant identity needs little elaboration. The jurisprudence is emphatic and unequivocal. The privilege cannot be overcome by countervailing considerations and is subject only to the “innocence at stake exception”: R. v. Leipert at paras. 9-14, 20.

[71] I disagree with the police position that the possibility that an informer police- relationship could be formed in an interview like the interview with Mr. Sharma in this case ought to lead to a rule that no record ought to be made of the interaction. Some record ought to be made. In this jurisdiction, the police regularly keep separate notebooks or ledgers which contain notes of interactions with confidential informants. These notebooks are maintained and stored separately and special procedures have been put in place. I recently presided over a matter in which the ledgers were released to the defence as part of disclosure after judicially supervised redactions. The same could be done in this context.

[72] I am reluctant to go any further and dictate what type of record ought to be made, whether notes, video or audio. But it is painfully obvious from the evidence on this motion that the current position of deliberately not making a record is unsatisfactory. A procedure to cause a record to be made and maintained ought to be adopted.

[73] There is no need to consider a remedy with reference to this issue because there was no breach of the Charter nor was there any evidence derived from the police suggestion to the applicant that he become an informant.

SECTION 24(2) OF THE CHARTER AND THE ISSUE OF REMEDY

[74] Mr. Winestock for the Crown concedes that if the reasons for the stop or the search were deliberately false, the evidence of the gun and drugs must be excluded under Section 24(2) of the Charter. In this case, the reasons for both the stop and the search were false. I agree with the Crown concession that the evidence must be excluded.

[75] Mr. Hechter argued that not only should the evidence be excluded but the prosecution should be stayed for an abuse of the court’s process under the residual, integrity of the system rationale. The underlying factual premise is that these four officers all flagrantly violated the Charter and told untruths in their evidence with respect to the stop and the search.

[76] The abuse of process submission was a reasonable one in the circumstances. This is a close call. But with some hesitation, I reject a stay. A stay for abuse of process must only be imposed in the “clearest of cases”: see R. v. Babos, 2014 SCC 16. In this case, there is another fully effective remedy available. Exclusion vindicates the bedrock values at stake. While that does not foreclose a stay, to go further is unnecessary in the circumstances of this case.

[77] With reference to exclusion, the Crown’s concession expedites consideration of section 24(2). Only a few comments are necessary. First, knowing and intentional Charter violations with respect to both the stop and search of a motor vehicle are at the very far end of the seriousness spectrum under the first Grant factor and, at least if accompanied by misleading testimony as it was here, will likely outweigh the other two Grant factors towards exclusion.

[78] There is no more serious violation than when police wilfully violate the Charter as they did in this instance. Principle and the caselaw make that clear: R. v. Grant, 2009 SCC 32 at para. 39: R. v. Tim, 2022 SCC 12, at para. 82; R. v. Beaver, 2022 SCC 54, at para. 134. Here, the police stopped the vehicle with full knowledge that they did not have the legal authority to do so. They then searched the vehicle knowing that they did not have the grounds necessary under the CCA.

[79] Police are entrusted to enforce criminal and quasi-criminal prohibitions. At the same time, the common law and the Charter restrict police action. In their duty to enforce the law, the police must at the same time uphold Charter rights. This is no easy feat. There is a natural inclination towards maximum efficiency including more arrests and more charges. But law enforcement efficiency without limits, and particularly Charter limits, would fundamentally transform our society for the worse. As Justice Binnie said in his concurring judgment in R. v. Clayton, 2007 SCC 32 at para. 68, “A society that valued police efficiency and effectiveness above other values would be a police state.”

[80] When the police knowingly violate the Charter, it falls in direct conflict with their duty. The Supreme Court said in Grant at paragraph 75, “[w]ilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct.” (Emphasis added). That is why a deliberate and wilful breach is so serious. The police are fulfilling a vital role on behalf of the community. The rule of law--a broad concept applying to every facet of the criminal process--requires the police, as the front line of the justice system, to at the same time respect the civil rights of individuals: Tim, at para. 82; R. v. Davis, Jaggernauth and Walker, 2017 ONSC 4775 at para. 57. Deliberately deviating from the Charter strikes against our most cherished values and the innate sense that those who enforce the law must themselves conform with the law. The importance of the integrity and reputation of the administration of justice requires adherence to this principle.

[81] It is the obligation of the judiciary in deciding section 24(2) issues to safeguard the reputation of the administration of justice. This is accomplished by an affirmation of societal values: Grant at paras. 68, 102. It is true that the police who work on behalf of the community to protect it are not bound by the Marquess of Queensbury rules: R. v. Rothman at p. 697; R. v. Oickle, 2000 SCC 38 at paras. 66, 86. Criminal law enforcement may require subterfuge and ingenious stratagems. But there are some bright line standards the violation of which leaves no choice but to exclude the resulting evidence.

[82] The conduct in this case is a clear example. It demonstrates bad faith. Although there is little analysis in the authorities of what precisely constitutes bad faith, of necessity it must lie at the other end of the spectrum from good faith: Harrison, paras. 23, 39. Good faith includes reasonable reliance on what the police believe the law to be: R. v. Duarte at para. 65. In contrast, bad faith exists when the police knowingly violate the law. In cases of bad faith, the police know that their actions violate the Charter but go ahead nonetheless. This is even more disconcerting in this instance where trainee officers were ensnared in the web of false evidence.

[83] The police in the present circumstances were effective and efficient in the means they employed, a stop and search. But this was not admirable police work. To those who might be impressed with these seizures, it must be remembered that an important aspect of flagrant breaches of the Charter is that it is generally impossible to know what other misconduct has been committed by the police officer in other cases: Grant at para. 75. However, the more wilful and deliberate the breach, the more likely there have been other instances in which the police have again deliberately violated the Charter but their conduct escaped scrutiny as that no relevant evidence were turned up.

[84] There is an element of dishonesty involved in wilful breaches of the Charter. In this case, that is compounded by testimonial dishonesty. Officers Lumsden and Charron falsely disavowed knowledge of the pre-stop meeting. All four officers testified about the headlight being out and were less than forthright about their observations of cannabis in the SUV. This decided lack of candor increases the strength of the arguments to exclude in this case. The Supreme Court said in R. v. Harrison, 2009 SCC 34:

26 I note that the trial judge found the officer's in-court testimony to be misleading. While not part of the Charter breach itself, this is properly a factor to consider as part of the first inquiry under the s. 24(2) analysis given the need for a court to dissociate itself from such behaviour. As Cronk J.A. observed, "the integrity of the judicial system and the truth-seeking function of the courts lie at the heart of the admissibility inquiry envisaged under s. 24(2) of the Charter. Few actions more directly undermine both of these goals than misleading testimony in court from persons in authority" (para. 160).

[85] Also see R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at paras. 102–103; R. v. Bakal, 2021 ONCA 584, 157 O.R. (3d) 401 at para. 125.

[86] In this instance, together with the dishonesty in deliberately violating what were known to be Charter requirements, the dishonest testimony in court was for the purpose of concealing these Charter violations. It is not every case in which there are knowing and intentional breaches of the Charter that the police then attempt to conceal or minimize based on dishonest testimony on the witness stand. For example, in Harrison, there was no dishonesty with respect to the breach but there was an attempt to mislead on the witness stand.

[87] Given the seriousness of the two breaches and the misleading testimony to cover them up, there is a powerful obligation to disassociate our community from the violations of the Charter committed by the police in this case. It would prioritize efficiency and effectiveness over the fundamental Charter values of the right to be left alone and the right to personal privacy. Despite the presence of deadly weapons and drugs and the accused’s obvious guilt, it would devalue our community if the court were not to disassociate and repudiate itself from the police misconduct.

[88] In terms of the impact of the two breaches--the second Grant category--the police breaches permitted stopping of the applicant’s SUV and the search of it in circumstances where neither was permissible within the strictures of the Charter. Mr. Sharma’s right to be left alone and right to privacy were both flagrantly violated. Therefore, the impact of the breaches strongly favours exclusion as well.

[89] The third test--importance of an adjudication on the merits—strongly supports admission of the evidence particularly with a gun and fentanyl involved. Nonetheless, in the balancing, given the strength of the first and second factors, the third factor is incapable of serving as an equal counterweight. The net effect of the three factors clearly points to exclusion.

[90] For these reasons, as counsel was previously advised, the evidence gathered in the search of the SUV was excluded.

D.E. HARRIS J.

Released: September 13, 2023