COURT FILE NO.: CR-21-3000332 DATE: 20240626

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – SHAGGHARY SCOTT

Counsel: Lisa Will, for the Crown Jamie Kopman, for Mr. Scott

HEARD: July 10-12, 2023

REASONS FOR JUDGMENT ON CHARTER APPLICATION AND TRIAL

R. MAXWELL J.

Overview

[1] On August 22, 2020, the Applicant was driving a car on Sheppard Avenue East in Toronto when he was pulled over for speeding. In the course of the stop, the Applicant was directed to get out of the car and the car was searched, resulting in the seizure of a firearm. The Applicant was charged with numerous firearm offences arising out of the search of the car and seizure of one firearm. [1]

[2] The Applicant brought an application alleging that the police breached his rights under ss. 8, 9, 10(a) and 10(b) of the Charter associated to the search of the car. He sought to have the firearm excluded as evidence, pursuant to s. 24(2) of the Charter.

[3] On consent of the parties, the matter proceeded as a blended voir dire with the evidence on the Charter application applying to the trial. The Crown called PC Perry and PC Lam, who conducted the stop and were involved in searching the car, and PC Selvakumar, who assisted in searching the car and who located the firearm.

[4] The Applicant testified on the voir dire and the trial.

[5] Following the conclusion of the evidence and submissions, the matter was adjourned. I delivered oral reasons for judgment on October 3, 2023, granting the Charter application and excluding the firearm evidence. The charges against the Applicant were dismissed. Written reasons were to follow. Due to unforeseen technical issues, the release of these written reasons was regrettably delayed [2]. These are my reasons for judgment.

The Evidence

[6] On August 22, 2020, PC Perry and his partner PC Lam were conducting speed enforcement. PC Perry has been a police officer with Toronto Police Service for 24 years. On August 22nd, he was on the last night of training PC Lam, who at that time, had been on the force for three months. He and PC Lam were in uniform, traveling in a marked cruiser.

[7] At 4:20am, they set up their cruiser on a driveway to a plaza on McCowan Road. The posted speed limit in the area is 50 km/hr.

[8] PC Perry testified that, at 4:27am, he observed a Toyota SUV travelling in the westbound curb lane on Sheppard Avenue East. The vehicle overtook another vehicle and, according to PC Perry, appeared to be speeding. PC Perry testified that, sitting in the passenger’s seat of the cruiser, he pointed a Dragon Eye Lidar radar device out of his window and recorded the Toyota to be traveling at a rate of 81 km/hr. He testified that he repeated the test by pulling the trigger of the device. The Toyota registered a second speed reading of 79 km/hr.

[9] The Toyota then passed the cruiser and came to a stop at a red light. PC Perry and PC Lam moved their cruiser from its stationary position to be behind the Toyota sitting at the red light. When the light turned green, PC Perry and PC Lam activated their emergency roof lights to signal for the Toyota to pull over. The Toyota immediately signaled right and began to pull over to the side of the roadway. PC Perry recorded in his notes and testified that the car “smoked the curb”, meaning it hit the curb with force, when pulling over. On the in-car camera, the car’s tire appears to make contact with the curb, although not with any significant force.

[10] PC Lam testified that she was in the driver’s seat of the cruiser. She observed the Toyota traveling westbound on Sheppard Avenue, approaching their location at a high rate of speed. She testified it was one of the only cars on the road at that time and she noticed it because of its high rate of speed. She testified that PC Perry instructed her to pull the Toyota over.

[11] Based on the in-car camera recording, at approximately 4:29am, PC Perry approached the driver’s side of the car while PC Lam approached on the passenger’s side. The Applicant was seated in the driver’s seat and was the only person in the car. PC Perry testified that he asked the Applicant for his driver’s licence and insurance, which the Applicant provided. He observed that the Applicant was smoking a cigarette and asked him to put it out because he suffers from allergies. The Applicant complied.

[12] PC Perry testified that he told the Applicant the reason that he was pulled over, although he did not make a note of what he said, nor did he have an independent recollection of what he told the Applicant. He testified that, “commonly, I let people know why they are being stopped.”

[13] PC Perry testified that the car had been rented through a phone application called Turo, which allows people to rent out their cars privately to others. PC Perry testified that although he was wearing a face mask, he was able to detect an odour of alcohol coming from the Applicant’s breath. On the in-car camera, PC Perry can be heard asking the Applicant “how much have you had to drink?”. The Applicant admitted he had consumed alcohol earlier in the evening. PC Perry testified that the Applicant admitted to having two drinks, but then changed it to one or 1 ½ drinks. PC Perry also asked the Applicant, “where are you coming from?”. PC Perry can be heard on the in-car camera saying to the Applicant, words to the effect, “drinking and driving buddy” after the Applicant acknowledged consuming alcohol earlier that evening.

[14] PC Perry testified that with only the observation of an odour of alcohol coming from the Applicant’s breath, the admission of alcohol consumption earlier in the evening, and his perception that the tire of the Applicant’s car had “smoked” or hit the curb, he did not feel he had grounds to arrest the Applicant for impaired driving. He testified he was “forming suspicion” to make a demand for a sample of the Applicant’s breath into an approved screening device. It was unclear from PC Perry’s evidence why he did not feel he had reasonable suspicion to make the demand for a sample of breath into the approved screening device based on the information he had.

[15] PC Perry testified that as he stood at the driver’s side speaking with the Applicant and looking at his documentation, PC Lam was looking in the car on the passenger’s side with her flashlight. He testified that PC Lam told him there was a red “Solo” cup directly behind the driver’s seat on the floor. A review of the in-car camera video captures PC Lam saying, “There’s a cup in the backseat.” PC Perry can be heard stating to PC Lam, “Yeah, he’s been drinking”.

[16] At 4:31am, PC Perry can be heard on the in-car camera video radioing for an approved screening device. PC Perry did not however read the Applicant the demand, nor did he advise him that he was being investigated for impaired driving and/or over 80mg operation of a conveyance, nor was he given his rights to counsel or caution.

[17] PC Perry testified that he believed he had grounds to search the inside of the Applicant’s car for open alcohol under the Liquor Licence Act. At 4:32am, he directed the Applicant to get out of the car then asked him to open the back door of the car. He testified that PC Lam then retrieved the cup from behind the driver’s seat, which he testified was 1/3 full of a yellow-coloured liquid that appeared to be alcoholic.

[18] At 4:33am, PC Perry can be heard telling the Applicant, “Now that you have alcohol in the car, we can search for other alcohol under the Liquor Licence Act.” He further advised the Applicant he was “going to try to get someone here to see if you have had too much to drink.” PC Perry then took the Applicant to his scout car and directed PC Lam to continue searching the car for alcohol under the LLA.

[19] At approximately 4:34am, PC Perry advised the Applicant that he was going to give him a demand, but that if he could not get it (the approved screening device), he would not test him. At 4:35am, he asked the Applicant “how far away are you from home?” The Applicant responded to the question.

[20] Although PC Perry told the Applicant that he would read a demand for a sample of his breath, he did not read any demand at this time. PC Perry testified that before he could read the Applicant the demand, PC Lam came to him to advise that she had found a bag inside the car which contained several small bags of a white powdery substance.

[21] PC Perry testified that, at this point, he had reasonable grounds to believe the Applicant was in possession of a controlled substance and at 4:36pm, he placed the Applicant under arrest for possession of a controlled substance. PC Perry continued to have a conversation with the Applicant, asking him “Do you know what that drug might be?” and “What is that, coke?”, eliciting a response from the Applicant that he thought it could be “molly”. At 4:37am, radio dispatch advised that an approved screening device was on its way to the scene.

[22] PC Perry testified that the Applicant began to struggle when he and PC Lam attempted to handcuff him after he was placed under arrest for possession of a controlled substance.

[23] At 4:39am, PC Perry read the Applicant his rights to counsel related to the drug arrest and cautioned him at 4:40am. PC Perry recorded in his memobook that the Applicant, on receiving his rights to counsel “makes no election right now”. However, the in-car camera footage shows that after reading the Applicant his rights to counsel, PC Perry stated to the Applicant “You don’t have to decide right now” before the Applicant responded to the question of whether or not he wished to speak to a lawyer. I will review the details of the exchange between PC Perry and the Applicant in greater detail below.

[24] At approximately 4:42am, PC Perry read the demand for a sample of breath into an approved screening device to the Applicant. He had no recollection and he did not make any notation of when the approved screening device arrived at the scene.

[25] Sometime after reading the demand but before the approved screen device was administered, PC Perry directed the officers on scene (who had arrived in response to his call for back up) to continue searching the car. He testified that just before the approved screening device was administered, he received information that one of the searching officers, PC Selvakumar, had located a firearm under the driver’s seat of the car. An over-capacity magazine was also located inside the car.

[26] The approved screening device test was then administered at 4:49am, which resulted in a “fail”. At 4:50am, PC Perry placed the Applicant under arrest for both operating a motor vehicle while the concentration of alcohol in his blood exceeded 80mg of alcohol in 100ml of blood and possession of a firearm. He read the Applicant his rights to counsel and testified that the Applicant could not decide if he wanted to speak to a lawyer.

[27] At 4:53am, PC Perry read the Applicant a demand for a sample of his breath into an approved instrument. He testified that he and the Applicant had a conversation about the consequences of failing to provide a sample because the Applicant asked about it.

[28] The Applicant was transported to 41 Division.

Arguments Raised on the Charter Application

[29] On behalf of the Applicant, Mr. Kopman raises several alleged breaches.

[30] First, Mr. Kopman argues that the Applicant was arbitrarily detained in breach of s. 9 of the Charter as a result of the traffic stop conducted by PC Perry and PC Lam. He submits that there is a lack of evidence that the officers had grounds to stop the Applicant for speeding. He argues there was a further arbitrary detention when the Applicant was detained once PC Perry formed reasonable suspicion that the Applicant was operating a motor vehicle with alcohol in his body but he was not given a demand for a sample of his breath into an approved screening device “forthwith”.

[31] Second, Mr. Kopman submits that the Applicant was not advised of the reason for his continued detention once the investigation shifted from an investigation into speeding under the HTA to a criminal investigation into impaired driving, nor was he provided with his right to retain and instruct counsel without delay, contrary to ss. 10(a) and (b) of the Charter. The Applicant was also not cautioned and was asked several questions to elicit information from him. He further submits that there were additional breaches of s. 10(b) of the Charter in PC Perry’s failure to convey to the Applicant that he had the right to speak to a lawyer “without delay” and in failing to ascertain the Applicant’s decision as to whether he wished to speak to a lawyer.

[32] Finally, Mr. Kopman submits that the warrantless search conducted on the Applicant’s car, said to have been conducted pursuant to the LLA, violated s. 8 of the Charter because PC Perry lacked reasonable and probable grounds to believe that open alcohol or alcohol unlawfully stored would be located.

Analysis

[33] The outcome of the application is driven primarily by my assessment of the reliability and credibility of PC Perry’s evidence, the officer who directed all of the activity at the roadside. On a review of all the evidence, I conclude that PC Perry was unreliable and, at times, misleading about important elements of the evidence. I further conclude that PC Perry demonstrated an overall cavalier approach in his dealing with the Applicant and careless disregard for the rights of the Applicant which resulted in a number of serious breaches of the Applicant’s Charter rights. His cavalier approach was reflected in his dealings with the Applicant that night, his notetaking following the incident, and the manner in which he gave evidence in these proceedings.

[34] In particular, while I find that the initial stop under the Highway Traffic Act for speeding was not arbitrary and was lawful, the police breached the Applicant’s right to be advised of the reason for his continued detention once the investigation shifted from a speeding infraction into an investigation for possible alcohol-related offences under the Criminal Code, in violation of s. 10(a) of the Charter.

[35] I further find that PC Perry failed to read the Applicant the demand for a sample of his breath into the approved screening device “forthwith”.

[36] I further find that there were breaches under s. 10(b) of the Charter in the police failure to give the Applicant his rights to counsel once he was detained for impaired driving, and later, a failure to ascertain whether the Applicant wished to speak to counsel without delay, once he was given his rights to counsel.

[37] Finally, the Applicant’s rights under s. 8 of the Charter were breached when his car was searched without lawful authority. The police lacked grounds to search the Applicant’s car under the LLA. The warrantless search was not authorized by law.

[38] The compound nature of the breaches, and the officers’ serious departure from their obligation to protect the Applicant’s Charter rights leads to the conclusion that the appropriate remedy in this case is to exclude the evidence of the firearm located in the vehicle under s. 24(2) of the Charter.

I. Was The Applicant Arbitrarily Detained When he was Stopped by PC Perry and PC Lam? Was the Applicant Advised of the Reason for the Initial Stop?

[39] A “detention” occurs when the police assume control over the movement of a person by demand or direction which may have significant legal consequences and which prevent or impede access to counsel: R. v. Therens, [1985] 1 S.C.R. 613. There is no question that the Applicant was detained when PC Perry and PC Lam pulled him over at 4:07am: R. v. Mellenthin, [1992] 3 S.C.R. 615, 76 C.C.C. (3d) 481 at 485; R. v. Simpson (1993), 79 C.C.C. (3d) 482 (Ont. C.A.) at 488.

[40] The detention of a person is arbitrary and therefore unlawful unless it is authorized by law: R. v. Mann, [2004] 3 S.C.J. 49, at para. 35.

[41] The Applicant bears the onus of establishing, on a balance of probabilities, that there was a breach of s. 9 of the Charter.

[42] Mr. Kopman asserts that the Applicant’s detention by PC Perry was arbitrary on the basis that there is no direct evidence to support PC Perry’s evidence that the Applicant was driving at a rate of 81 km/hr and 79 km/h in a 50 km/hr zone. Specifically, in the absence of evidence from the Dragon Eye Lidar radar device, he submits that I should have doubt about the credibility and reliability of PC Perry’s evidence that this was his reason for stopping the Applicant.

[43] He points to PC Perry’s evidence in cross-examination that he did not immediately advise the Applicant that he had been stopped for speeding but rather, asked him to put out his cigarette. PC Perry also failed to make any note in his memobook of having advised the Applicant that he had been stopped for speeding.

[44] He further points to the fact that PC Perry took no steps to confirm the results of the radar speed device, such as recording the result on the in-car camera which was recording throughout the incident. Nor did he check the results from the radar device after he returned to the station. In cross-examination, PC Perry testified that his understanding was that the results of the radar device are erased once the trigger is pulled after a reading, re-setting the device. He accepted the suggestion put to him in cross-examination that he may be mistaken about this and the results may have been retained on the device for a period of time.

[45] Finally, he points out that the Applicant was never issued a speeding ticket.

[46] Mr. Kopman submits that PC Perry’s failure to take steps to immediately advise the Applicant of the reason for the stop, his failure to make any note of having advised the Applicant of the reason for the stop, and his failure to preserve the results of the radar device which would have confirmed or refuted that the Applicant was speeding, all raise questions about the bona fides of the stop: R. v. Waterman, [2006] O.J. No. 4607, at para. 57. He submits that the Applicant was not stopped for any reason connected to legitimate highway safety concerns, nor was the stop in furtherance of any policy underlying s. 216(1) of the HTA, governing police powers to stop cars while in the lawful execution of their duties. He submits that the purported HTA basis for the stop is an ex post facto attempt to justify the initial detention.

[47] I do not accept this submission.

[48] There is no basis in the evidence to suggest that the officers pulled the Applicant over for any reason other than a speeding violation. While the notes of both PC Perry and PC Lam recording their encounter with the Applicant are lacking (a point I will return to later), I accept their evidence that they observed the Applicant’s Toyota to be traveling at a high rate of speed and that PC Perry, using a radar device, obtained speed readings of 81 km/hr and 79 km/hr. There is no evidence to corroborate the testimony of the officers about the results of the radar device (such as data from the Dragon Eye Lidar radar device), however I believe both officers’ evidence that, based on their personal observations of the Toyota as it approached, and the reading on the radar device, they concluded that the Applicant was speeding. Finally, the in-car camera captures PC Perry advising the Applicant, “I got you going 81 in a 50”, a reference to his speed.

[49] There is nothing in the evidence that the officers had an ulterior motive for initially pulling over the Applicant. I accept PC Lam’s evidence that she ran the vehicle’s plate number. She had no recollection of the results she obtained, but there is no evidence to suggest that the search produced any information about the Applicant that prompted the officers to stop and investigate him.

[50] I find that the initial detention of the Applicant was for speeding under the HTA and was not arbitrary.

[51] On the issue of whether the Applicant was advised of the reason for the stop, PC Perry had no notes of having advised the Applicant of the reason for the stop. He also had no independent recollection of what he said. I therefore do not place any weight on PC Perry’s evidence about his normal practice of advising detainees of the reason for the detention.

[52] However, based on the in-car camera video which, in my view, is the most reliable source of evidence of what happened at the roadside, I am satisfied that the Applicant had sufficient information to understand that he was being stopped for speeding. In particular, the in-car camera recorded PC Perry telling the Applicant that he “got him going 81 in a 50”. In his testimony, the Applicant acknowledged hearing this information and accepted that he “could assume I’m going over the limit” and that he knew, in hearing this information, he was speeding.

[53] Therefore, while I find that neither PC Perry nor PC Lam expressly told the Applicant that he was being stopped for speeding under the HTA, the Applicant understood that was the reason for the initial stop.

II. Was the Applicant Being Detained for Investigation into Impaired Driving? If so, were the Applicant’s Rights under 10a of the Charter Breached When the Police Failed to Advise of the Reason for his Detention and under 10b for Failing to Provide the Applicant with Rights to Counsel and Caution?

[54] I find, based on all of the evidence, that the investigation quickly shifted from an HTA investigation into speeding to an impaired driving investigation under the Criminal Code once PC Perry formed reasonable suspicion that the Applicant was driving with alcohol in his body.

[55] I find that the reasonable inference to draw from the evidence is that PC Perry formed reasonable suspicion that the Applicant was driving with alcohol in his body when he smelled alcohol coming from the Applicant’s breath and then obtained an admission from the Applicant that he had consumed 1-2 drinks at some point earlier in the evening. All of this happened within a minute of the Applicant being pulled over.

[56] I do not accept PC Perry’s evidence that he was not engaged in an impaired driving investigation once he had this information. He clearly was, stating to the Applicant, immediately after getting the information, words to the effect “drinking and driving buddy”. Further, he almost immediately requested an alcohol tester be delivered to the scene. I accept PC Perry’s evidence that he may not have, at this time, formed reasonable and probable grounds to arrest the Applicant for impaired driving, however I do not accept that he had not formulated reasonable suspicion that the Applicant had been operating a motor vehicle with alcohol in his body with the information he had. Indeed, PC Perry himself stated to PC Lam when she advised him that she observed a red “Solo” cup on the floor in the backseat, “Yeah, he’s been drinking”. Within a minute, at 4:31am, he radioed for an approved screening device to be delivered to the scene.

[57] I find that at this time, PC Perry was detaining the Applicant to further the investigation into impaired driving. I find further that PC Perry failed to advise the Applicant of the reason for his continued detention, specifically, that he was under investigation for impaired driving under the Criminal Code.

[58] Under s. 10(a) of the Charter, “Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefore”. The Court of Appeal for Ontario held that the word “promptly” is “a positive term…mean(ing) ‘immediately’”: R. v. Nguyen, 2008 ONCA 49, at para. 20. The Court went on to state in Nguyen, at para. 21, that where the informational component of s. 10(a) of the Charter is easy to fulfill, the breach of the obligation to provide that information cannot be considered to be a trivial matter”.

[59] The purpose of s. 10(a) of the Charter is to promptly inform a person who is detained of the reasons for the detention so that the detainee understands the extent of their jeopardy such that they can exercise the right to counsel under s. 10(b) of the Charter in a meaningful way.

[60] It is well established that to comply with s. 10(a), the police need not use any particular words, provided the information is conveyed in a clear and simple manner: R. v. Mann, [2004] 3 S.C.R. 59, at para. 21. See also R. v. Breault, 2023 SCC 9; R. v. Ward, 2020 ONSC 5808. With that said, PC Perry telling the Applicant that he was going to “try to see if he had too much to drink”, in the circumstances, does not amount to sufficient information for the Applicant to have known that this was the reason for his detention or that he was being investigated for a criminal matter. PC Perry did not explain to the Applicant what offence was under investigation, he did not issue the demand, the caution, or rights to counsel. Any of these steps could have provided the Applicant with some information that he was no longer being investigated solely for speeding, or for possible unlawful storage of alcohol in his car, but for a criminal offence of impaired driving. The Applicant’s understanding of the situation was rendered murkier by PC Perry’s statements to him that he would not test his breath if he could not get an alcotester delivered to the scene. This equivocal information did not clearly communicate to the Applicant that he was under investigation for a criminal offence.

[61] I find that from 4:30am to approximately 4:37am, PC Perry was detaining the Applicant to further the impaired driving investigation without advising the Applicant of the reason for his detention, without providing him with his rights to counsel, and without providing him with a caution.

[62] There is no reasonable explanation for holding off in advising the Applicant of the reason for his detention, or in reading him his rights to counsel or providing a caution. PC Perry testified that “everything happened fairly quickly”, referring to the fact that, immediately after PC Lam advised him there was a red “Solo” cup in the backseat of the car, he directed a search of the car which led to the seizure of the cup, suspected drugs, and a firearm. Leaving aside the fact that the search of the Applicant’s car was unlawful (which I will return to), even if PC Perry had lawful authority based on reasonable grounds to search the car, there was nothing preventing PC Perry from providing the Applicant with his rights and the caution in relation to the ongoing impaired driving investigation before the search of the car began. There were no unusual circumstances which warranted or required PC Perry to hold off in giving the Applicant his rights to counsel and caution.

[63] I conclude therefore that the Applicant’s rights under s. 10(a) and (b) were breached.

III. Was there a Breach of the Applicant’s Rights under s. 9 of the Charter in the Failure to Issue a Demand for his Breath into an Approved Screening Device “Forthwith”?

[64] As the Court of Appeal for Ontario explained in R. v. Quansah, 2012 ONCA 123, at para. 21, the “forthwith” requirement is inextricably linked to the constitutional integrity of then s. 254(2) of the Criminal Code (now s. 320.27(2)). Provided a demand is made “forthwith”, the suspension of a detainee’s right to instruct counsel is reasonable. The Supreme Court of Canada recently re-affirmed in Breault that “forthwith” means “immediate” and is “not synonymous with “time reasonably necessary”, for example, waiting for an approved screening device to arrive: para. 51.

[65] At the time of formulating his suspicion, PC Perry was required to make a demand for a sample of breath into the approved screening device “forthwith.” In my view, that suspicion formed when PC Perry obtained information that the Applicant had consumed 1-2 alcoholic beverages earlier in the evening and he detected an odour of alcohol coming from his breath. I do not accept his evidence that it was not until PC Lam retrieved the red “Solo” cup containing what appeared to him to be beer that he formed reasonable suspicion that the Applicant was operating a conveyance with alcohol in his body. However, even if I accept that PC Perry formed reasonable suspicion when he saw the contents of the Solo cup and called for an approved screening device, he still did not issue the demand at that time. PC Perry did not read the demand until 4:42am, approximately 11-12 minutes after forming reasonable suspicion.

[66] PC Perry had various explanations for why he did not issue the approved screening device demand “forthwith”. He testified that he did not give the demand when he formed his suspicion because it coincided with PC Lam advising him that she had located a bag with a powdery substance inside the car. He also pointed to the fact that he did not have an alcotester with him and radioed for one to be delivered to the scene. Finally, he testified that he had not decided, if the instrument arrived, whether he would administer the test or not.

[67] None of these explanations provides a justification for the failure to give the approved screening device demand forthwith. While there may be circumstances which trigger the need for a flexible interpretation of the immediacy requirement, the circumstances of this case do not present “unusual circumstances” as contemplated by the Supreme Court of Canada in R. v Bernshaw, [1995] 1 S.C.R. 254. The unavailability of the alcotester is not an unusual circumstance justifying a departure from the “forthwith” requirement: Breault, at para. 60.

[68] Further, PC Perry’s indecision about whether he would actually administer the approved screening device does not impact on the requirement to give the demand forthwith and take a sample forthwith.

[69] Finally, the fact that PC Lam searched the car and located a bag believed to contain a controlled substance also did not create “unusual circumstances” necessitating a more flexible approach to the immediacy requirement. PC Lam secured the bag and there was no immediate need to address the suspected controlled substances when PC Perry was in the midst of investigating possible impaired driving.

[70] PC Perry’s evidence was that the Applicant was being detained to allow police to search his car for open alcohol, pursuant to the LLA, not for impaired driving. As noted above, I do not accept this position. Further, as I will explain below, I find that the search of the Applicant’s vehicle was not authorized under the LLA. There was no lawful authority to detain the Applicant for this purpose. However, even if the police were engaged in a lawful search of the Applicant’s car under the LLA, PC Perry delegated other officers to conduct the search and played no role in searching the car. There was no reason for PC Perry to delay in given the demand, or providing the Applicant with his rights to counsel and caution in relation to the impaired driving investigation.

[71] I therefore find that the Applicant’s rights under s. 9 of the Charter were breached when PC Perry failed to issue the approved screening device demand forthwith.

IV. Was the Applicant’s Car Unlawfully Searched in Breach of s. 8 of the Charter?

[72] Section 8 of the Charter states, “Everyone has the right to be free from unreasonable search and seizure.”

[73] Warrantless searches and seizures are presumptively unreasonable and violate s. 8 of the Charter. Where a search is warrantless, the presumption that it violates s. 8 of the Charter may be rebutted where the Crown establishes, on a balance of probabilities, that the search was authorized by law (either by statute or common law authority) and was done in a reasonable manner: R. v. Caslake, [1998] 1 S.C.R. 51, at paras. 10-11.

[74] The Charter protects an individual’s reasonable expectation of privacy. As set out in R. v. Edwards, [1996] 1 S.C.R. 128, at 150-151, a reasonable expectation of privacy is determined on the basis of the totality of the circumstances, including:

(a) Presence at the time of the search;

(b) Possession or control of the property or place searched;

(c) Ownership of the property or place;

(d) Historical use of the property or item;

(e) The ability to regulate access (to exclude or admit others);

(f) A subjective expectation of privacy; and

(g) The objective reasonable of the expectation.

[75] PC Perry purported to have authority to search the Applicant’s car under s. 32 of the LLA. Section 32(5) of the LLA provides:

(5) A police officer who has reasonable grounds to believe that liquor is being unlawfully kept in a vehicle or boat may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it.

[76] In assessing whether PC Perry had reasonable grounds to believe that the Applicant was unlawfully keeping alcohol in his car, I recognize that roadside stops can develop in unpredictable ways. A roadside stop is not a static event and information may emerge which may entitle the police to take further investigative steps.

[77] The Supreme Court of Canada stated in R. v. Nolet, [2010] 1 S.C.R. 851, at para. 4, that in order to determine whether the police “stayed within the scope of their authority, having regard to the information lawfully obtained at each stage of their inquiry”, a step-by-step analysis of the interaction of the police and the accused is required.

[78] The Court went on to hold, at para. 39, that police powers, whether conferred by statute or common law, are abused when they are exercised in a manner that violates the Charter rights of the accused.

[79] In this case, while I find that PC Perry and PC Lam initially lawfully stopped the Applicant for speeding under the HTA, the subsequent search of his car which resulted in various seizures, including a firearm, was not authorized under the LLA (or any other statute or under common law) and was therefore, unlawful. That is because PC Perry did not have reasonable grounds to believe the Applicant was unlawfully keeping alcohol in the car.

[80] PC Perry testified that while he was speaking to the Applicant, PC Lam was looking into his car on the passenger’s side with her flashlight. In examination in chief, PC Perry testified that PC Lam told him that there was a red “Solo” brand cup behind the driver’s seat on the floor. PC Perry testified in examination in chief that PC Lam told him there was something in the cup. It was based on this information he allegedly received from PC Lam that PC Perry testified he had authority to direct a search the car for open alcohol under the LLA.

[81] I have serious reservations about the credibility and reliability of PC Perry’s evidence concerning his grounds for directing a search of the Applicant’s car. His evidence about the basis for the search was internally inconsistent and contradicted by other evidence. I find he was not truthful when he stated in his evidence that PC Lam told him, before opening the car and retrieving the cup, that there was liquid or “something” in the cup, giving him grounds to search the car. The evidence, as a whole, does not support PC Perry’s contention that he had this information in formulating subjective grounds to believe he could search the car without a warrant. Without that information, there was no subjective basis (and certainly no objectively reasonable basis) for directing a search of the car under s. 32 of the LLA.

[82] First, the in-car camera evidence is inconsistent with PC Perry’s evidence that PC Lam told him there was liquid in the red “Solo” cup. On the in-car camera video, PC Lam can be heard telling PC Perry that she saw a red cup in the backseat. She does not say anything about seeing any contents in the cup.

[83] The in-car camera also shows that PC Perry did not know what, if anything, was in the cup. PC Perry can be heard asking the Applicant, “is that open alcohol in the car?” This suggests that he did not know what, if anything, was in the cup. There was no audible response from the Applicant.

[84] Second, PC Lam herself testified that she could not see inside the cup when she shone her flashlight into the backseat and could not have said whether there was anything inside the cup until the car was opened and the cup removed.

[85] Further, PC Perry made no note of receiving information from PC Lam (or anyone) that the red cup had something in it. His notes indicate that PC Lam told him she saw a red cup in the backseat and that he looked through the window and saw the cup as well. However, he did not see any liquid inside the cup, nor did PC Lam tell him there was liquid inside the cup.

[86] When PC Perry was challenged on the truthfulness of this aspect of his evidence in cross-examination, he revised his evidence. He stated he could not remember whether PC Lam told him there was liquid in the cup or not, but he was “definitely under the impression” there was liquid in the cup. Since his “impression” did not come from information from PC Lam, or information he possessed himself, it can be inferred that PC Perry was operating on a hunch or an assumption that the cup might contain alcohol.

[87] He then went on to suggest that he reasonably believed the cup must have had some liquid in it or it would not have remained upright in the backseat when the Applicant was driving. Leaving aside the speculative nature and questionable logic of this suggestion, I do not accept that this thought crossed PC Perry’s mind at the time. He made no note of it in his memobook and he did not raise it in his examination in chief. Rather, it appeared to be something he thought of as he was testifying to substantiate his subjective grounds.

[88] In cross-examination, PC Perry linked the smell of alcohol coming from the Applicant’s breath to his belief that the cup contained alcohol. However, he never mentioned this as a factor in his evidence in chief, he made no note in his memobook that this was a factor in formulating grounds to search the car, and he acknowledged in cross-examination that he had not made any observations to support an inference that the Applicant had been drinking from the red “Solo” cup, that the Applicant was drinking at all in inside the car, or that the car itself smelled of alcohol. He did not observe alcohol anywhere in the car.

[89] In my view, taking the evidence as a whole, I find PC Perry made an assumption that the cup had alcohol in it when he learned there was a red “Solo” cup in the backseat. He may have had a suspicion that the cup might contain alcohol because the cup is the style of cup often used to consume beverages at a party and because the Applicant admitted to consuming alcohol earlier that night. An assumption, or a suspicion, does not amount to reasonable grounds.

[90] In any event, even if PC Perry felt he had subjective grounds to search, the grounds were not objectively reasonable.

[91] There are certainly circumstances in which officers can draw reasonable inferences based on the circumstances to form grounds that there is open alcohol in a vehicle. For example, in R. v. Annetts (1984), 17 C.C.C. (3d) 332 (Ont. C.A.), the investigating officers observed a six pack of beer in a parked car at an airport. One bottle was half-full of liquid and its cap was removed. The officers were aware that liquor had been stolen from one of the airlines. Upon observing the open alcohol in the vehicle, the officers searched the vehicle. The Court stated at p. 334 “[p]atently, the officers had reasonable grounds to believe that liquor was being unlawfully kept or had in the motor vehicle. Accordingly, s. 48 [the then governing section of the LLA] was clearly applicable and conferred upon the officers’ authority to search the vehicle.”

[92] However, even in cases in which police observe an open beer can or bottle in a vehicle, different inferences can arise, which may or may not be consistent with grounds to believe there is open alcohol in a car, as Varpio J. observed in R. v. Beauchamp and Smoke, 2021 ONSC 16, at para. 21.

[93] In this case, there were no “patently obvious” indicators that the Applicant’s car contained open alcohol, nor were there circumstances upon which it could be reasonably inferred that the car contained open alcohol.

[94] The presence of the red “Solo” cup alone does not provide an objective basis to believe that the cup, or the car, contained alcohol. The cup could have simply been discarded in the backseat. There is a lack of evidence from either PC Perry or PC Lam of any observations or information obtained to substantiate, beyond speculation, that either the cup or the car contained open alcohol. For example, if either had seen spilled liquid in the car or around the cup, or seen identifiable alcohol bottles or containers within the car, there may have been subjective grounds to search the car, and those grounds would be, arguably, objectively reasonable.

[95] The presence of the cup, in combination with the observation of an odour of alcohol coming from the Applicant’s breath and his admission that he consumed alcohol earlier in the evening, in my view, does not change my conclusion that PC Perry lacked grounds to search the car for open alcohol. While these observations support an inference that the Applicant had been drinking at some point, they do not provide grounds to believe that the cup, or the car, contained open alcohol.

[96] If PC Perry lacked objectively reasonable grounds to believe that alcohol was being unlawfully kept in the Applicant’s car, and he had no other valid reason for directing the Applicant to open the backdoor of the car to search the car, then the search of the car was unreasonable. I find the search was not authorized by law and violated the Applicant’s rights under s. 8 of the Charter.

V. Was there a Further Breach of s. 10(b) of the Charter by the Police Failing to Advise the Applicant that He had the Right to Speak to a Lawyer “Without Delay” and/or in Failing to Obtain the Applicant’s Decision on Whether he Wished to Speak to Counsel?

[97] When PC Perry finally provided the Applicant with his rights to counsel, following his arrest for possession of a controlled substance, the manner in which he provided rights to counsel was not compliant with s. 10(b) of the Charter. PC Perry recorded in his notes (in shorthand “DYWTCALN”) that he asked the Applicant if he wanted to call a lawyer. He then noted in his memobook that he explained the options of counsel of choice and duty counsel and that in response, the Applicant “makes no election”.

[98] In reviewing the in-car camera footage, this does not reflect an accurate account of the Applicant’s response to receiving rights to counsel. In cross-examination, PC Perry accepted that he told the Applicant he could not call a lawyer at that time because he could not give him privacy. He accepted on cross-examination that he did not check to see if all the vehicles had cameras running or whether there was a way to give the Applicant privacy.

[99] In essence, he modified the Applicant’s rights to counsel to advise him that he could speak to a lawyer, but not right away. He did so without first ascertaining whether, in fact, he could afford the Applicant privacy for a call to counsel or even waiting to hear the Applicant’s response or hear his question.

[100] In receiving the explanation of counsel of choice vs. duty counsel, the Applicant responded that he “had a question”. Rather than letting the Applicant ask his question, PC Perry told him to “hang on”. He then proceeded to tell the Applicant that he did “not have to make a decision now.”

[101] Ultimately, PC Perry never ascertained whether the Applicant wished to speak to a lawyer when he was arrested for possession of a controlled substance. He testified that he did not follow up because the Applicant did not indicate he wished to speak to a lawyer and it “never came up again.”

[102] In my view, it is not accurate to say the Applicant “made no election”. PC Perry did not seek out his election and rather, preempted him by telling him he did not have to make a decision now and by failing to listen to the Applicant’s question about his rights to counsel.

[103] When the Applicant was later arrested for possession of a firearm and impaired driving and re-read his rights to counsel, PC Perry adjusted the wording of rights to counsel in a manner that again did not convey to the Applicant that he had a right to speak to counsel “without delay”. While he recorded in his memobook the shorthand “DYWTCALN”, suggesting that the standard language for rights to counsel had been provided, PC Perry did not give the standard language. Rather, he asked the Applicant “Do you wish to call a lawyer at the station?”

[104] The issue is not whether the police could have implemented rights to counsel at the roadside. The issue is whether the Applicant would have been aware that he had the right to access counsel “without delay”. The Court of Appeal for Ontario noted in R. v. Devries, 2009 ONCA 477, 244 CCC (3d) 354, at para. 31:

It is important to distinguish between the nature of the rights guaranteed by s. 10(b) and the further question of whether the police have properly complied with a detainee's right to consult with counsel in any given case. The constitutional right is the right to speak with a lawyer "without delay". All detainees are entitled to that right and must be so advised by the police. The language used by the police cannot suggest that the right to speak with a lawyer only arises at some point later on in the detention. If the detainee, having been told he or she has a right to speak with a lawyer "without delay", chooses to exercise that right, the police must then afford him or her a reasonable opportunity to do so. Whether the steps taken by the police to make a telephone available to a detainee, in circumstances where he or she can speak with counsel, comply with the implementational requirements of s. 10(b) turns on the facts of the specific case and not on whether the police properly informed the detainee of his or her right to speak with counsel without delay (emphasis added).

[105] I find that PC Perry failed to provide the informational component of rights to counsel in that his language suggested to the Applicant that the right to speak to a lawyer only existed at some point later in the detention. It was also improper for PC Perry to talk over the Applicant and fail to ascertain whether he wished to speak to a lawyer.

[106] Taken in isolation, PC Perry’s deviations from the standard “10b” language might appear somewhat minor. However, PC Perry’s approach to giving rights to counsel must be put in context. As I have found, the Applicant was detained pursuant to an impaired driving investigation without having been given his rights to counsel or a caution. He had not been provided with a demand for a sample of his breath into the approved screening device. An unlawful search into his car was underway. His jeopardy was rapidly changing with the discovery of the powdery substance and later, the firearm.

[107] In these circumstances, it was paramount that the Applicant be aware of his right to speak to counsel without delay and to be given the opportunity to voice his election and exercise his right to counsel.

VI. Additional Findings with Respect to PC Perry’s Evidence

[108] I make some additional findings which raise further concerns about the overall reliability of PC Perry’s evidence. The analysis of the Charter breaches reveals that PC Perry’s testimony about the events that night was lacking in reliability and was at times misleading, when viewed in light of the in-car camera footage. His failure to accurately record information in his memobook extended beyond those parts of the interaction that relate specifically to the Charter breaches. There was, in my view, an overall lack of attention to creating an accurate record of the interaction. A few examples include the following:

• PC Perry recorded in his memobook and testified at the trial that the Applicant’s car “smoked the curb” meaning it hit the curb with some force. I find, based on the in-car camera recording, that this is an exaggeration. While the Applicant’s tires contacted the curb as he pulled over for the officers, he was moving at a slow speed and the contact might be more accurately described as grazing the curb;
• PC Perry recorded in his memobook and testified at the trial that the Applicant resisted during his arrest for possession of a controlled substance and that there was “a bit of a struggle”. Other than adjusting the Applicant’s position as they attempted to handcuff him, the Applicant does not appear to be struggling with the officers on the in-car camera recording;
• PC Perry testified that once the powdery substance was located inside the car, the Applicant “blurted out” that the substance located was “molly” or MDM. However, the Applicant’s statement that the substance “might be molly” came only after PC Perry questioned him about what the white substance was, before giving him is right to counsel or a caution in relation to the CDSA offence. A short time later, he again asked him, “what do you think it is” and the Applicant responded, “It might be molly”. To say that the Applicant blurted out any information about the substance is not accurate;
• While PC Perry recorded the Applicant’s responses to the question about the substance in his memobook and testified to same at trial, he neglected to record in his memobook any of the Applicant’s exculpatory statements made after the discovery of the powdery substance. Specifically, the Applicant can be heard telling PC Perry that while a quantity of marijuana located in the car belonged to him, the powdery substance did not belong to him. He also neglected to note the Applicant’s response to learning that a firearm was located in the car when he stated, “Oh my f***ing God. Are you serious?” In response to why these comments were not recorded in his memobook and were left out of his testimony in chief, PC Perry said of the former, “I’ve heard it 100 times, people saying it’s not theirs. I can’t write everything down.” Of the latter, he testified, “Obviously he’ll be upset that there is a gun located in the car, but he’s in control of the car, so his utterances really don’t mean much to me.”

[109] While I accept that police notes are meant as an aide memoire for officers testifying about events and are not, in and of themselves evidence, police notes on central issues such as the accused person’s response to rights to counsel, any statements made by the accused and grounds for taking investigative steps, should be accurate and complete. Incomplete or inaccurate notetaking does not always reflect shortcomings in the actual conduct of an investigation. However, in this case, there is a correlation between the quality of PC Perry’s notes and the manner in which he conducted the investigation. Further, because PC Perry relied on his notes in giving his evidence, his viva voce evidence suffered from reliability concerns. He attempted to excuse or explain his incomplete and/or inaccurate notes of the event by indicating that the video would speak for itself, only to then be confronted with points in his evidence or in his notes which were contradicted by the in-car camera video.

VII. Should the Evidence be Excluded under Section 24(2) of the Charter?

[110] The Supreme Court of Canada recently affirmed, in R. v. Beaver, 2022 SCC 54, at para. 94 that there are two components to determining whether evidence must be excluded under s. 24(2) of the Charter. The first component, the threshold requirement, asks whether the evidence was “obtained in a manner” that infringed or denied a Charter right or freedom. If the threshold requirement is met, the second component, the evaluative component, asks whether, having regard to all the circumstances, admitting the evidence would bring the administration of justice into disrepute.

[111] In assessing whether evidence is “obtained in manner” that infringes an accused’s Charter rights, the temporal, contextual, and causal relationship between the evidence and the accused’s Charter-protected interests must be taken into account: R. v. Beaver, 2022 SCC 54; R. v. Wittwer, 2008 SCC 33, at para. 21.

[112] In this case, all of the Charter-infringing conduct took place within the approximate 30-minute time frame that the Applicant was stopped by the police at the roadside. As such, the seizure of the evidence and the Charter breaches all form part of the same transaction. I am satisfied that the evidence of the firearm and other items seized satisfy the s. 24(2) “obtained in a manner” prerequisite.

[113] In R. v. Grant, 2009 SCC 32, at para. 71, and more recently re-affirmed in Beaver, 2022 SCC 54, at para. 116, the Supreme Court of Canada set out three factors for consideration in determining whether the admission of evidence obtained in a manner which infringes Charter rights would bring the administration of justice into disrepute:

A court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system, having regard to: (1) the seriousness of the Charter-infringing conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits

[114] As Fairburn J. (as she then was) stated in R. v. Moulton, 2015 ONSC 1047, at para. 122:

The purpose of s. 24(2) is to preserve the reputation of the administration of justice. The concept of bringing the administration of justice into disrepute relates to the reputation of justice as a whole and the need, through Charter rulings, to inspire (and not undermine) the public’s confidence in the justice system. It involves an objective inquiry that explores what the reasonable person, knowing “all of the relevant circumstances and the values underlying the Charter, would conclude” in terms of whether admitting the evidence in an individual case would adversely impact the reputation of justice as a whole: Grant at para 68. This long-term, forward-looking approach to s. 24(2) can only be achieved by assessing each of the individual categories set out in Grant.

[115] Balancing the relevant considerations is a qualitative determination and is not capable of mathematical precision: Beaver, 2022 SCC 54, at para. 117.

Seriousness of the Charter-Infringing Conduct

[116] On the first factor, the seriousness of the Charter-infringing conduct, “the court’s task … is to situate that conduct on a scale of culpability with inadvertent or minor violations at one end and wilful or reckless disregard of Charter rights at the other.”: R. v. Marakah, 2017 SCC 59, [2017] S.C.J. No. 59 at para. 61; Grant, para. 74). The more wilful, reckless, or deliberate the misconduct, the more the court will need to dissociate from that conduct: Moulton, 2015 ONSC 1047, at para. 123.

[117] The Court in Beaver, 2022 SCC 54, at para. 121, further articulated the assessment as existing on a “scale of culpability”. At one end of the scale is conduct that is willful or reckless disregard of Charter rights, systemic patterns of Charter-infringing conduct, or a major departure from Charter standards. On the other end of the scale is conduct that is inadvertent, technical, minor, or conduct that reflects an understandable mistake. The more severe the conduct, the greater the need for the court to dissociate from it.

[118] Good faith effort by the police to comply with Charter protections will reduce the need to dissociate from the conduct. However, as the court noted in Grant, at para. 75, unfamiliarity with the law, negligence and wilful blindness must not be confused with good faith and should not be “rewarded or encouraged.” See also R. v. Kokesch, [1990] 3 S.C.R. 3, at pp. 32-3; R. v. Buhay, 2003 SCC 30, at para. 59.

[119] In this case, I find that the breaches of s. 8, 9, 10(a), and 10(b) of the Charter were serious. Overall, there was an alarming disregard for the Applicant’s Charter rights, particularly as it related to the search of the vehicle. As noted in these reasons, I found that on points which were salient to PC Perry’s grounds for the search, his evidence was inconsistent with what is captured on the in-car camera and the evidence of PC Lam. I found his evidence about the red “Solo” cup was inaccurate and misleading.

[120] I also find PC Perry’s lack of reliable notes about the events that occurred during the stop is troubling and reflects a lack of diligence in ensuring that the interaction with the Applicant, and the basis for his investigative steps, were properly documented.

[121] While I accept PC Perry’s evidence that the situation was fluid and things happened quickly, as an officer with 24 years of experience making many roadside stops, PC Perry should have known the importance of taking accurate notes, of forming grounds to search a vehicle, and of the need to provide the applicant with his rights to counsel and demand forthwith in the course of an impaired driving investigation. Being friendly, polite, and conversational with a detainee, as PC Perry was, is commendable, but not at the expense of conducting the investigation in a manner that is Charter compliant.

[122] PC Lam, a trainee at the time, took her directions from PC Perry. Her evidence reflects that while she had a superficial understanding of her powers under the LLA to search a car for unlawfully stored alcohol, and accepted that seeing the red “Solo” cup in the back of the car did not give her grounds to open the car. I find that she took her direction from PC Perry.

[123] I find that while PC Perry and PC Lam did not set out to intentionally breach the Applicant’s Charter rights, their conduct had the effect of doing so several times over, resulting in a constellation of breaches and was the result of careless disregard for the Applicant’s Charter rights. The ultimate lawfulness of the Applicant’s arrest does not diminish the seriousness of the Charter-infringing conduct: Marakah, at para.61.

[124] The first line of inquiry strongly favours exclusion of the evidence.

The Impact of the Breaches on the Applicant’s Charter-Protected Interests

[125] This line of inquiry considers the impact of the Charter breach on the Applicant’s Charter-protected interests. This inquiry lies on a spectrum. The Court in Beaver, 2022 SCC 54, at para. 123, “The greater the impact on the accused’s Charter-protected interests, the greater the risk that admission of the evidence would suggest that Charter rights are of little actual avail to citizens, thus breeding public cynicism and bringing the administration of justice into disrepute.”

[126] While there is a diminished expectation of privacy in a rented car, the Applicant nevertheless had a reasonable expectation of privacy. Even when a car is randomly stopped to ensure public safety, it cannot lead to “unfounded general inquisition or unreasonable search.”: R. v. Mellenthin, [1992] 3 S.C.R. 615, para. 15.

[127] In this case, the intrusion into the Applicant’s reasonable expectation of privacy, in the absence of grounds for such an intrusion, is a serious violation. Moreover, the Applicant was detained without being advised of the reason for his continued detention and without being given rights to counsel or a caution. The delay in providing rights to counsel and caution was not justified. He was not lawfully detained in relation to the impaired driving investigation in the period of time when he had not been issued a demand for a sample of his breath into the approved screening device. The Applicant was without any assistance as to how to respond to the questions and evolving circumstances of the stop.

[128] While not at the most serious end of the spectrum, this factor favours exclusion.

Society’s Interest in Adjudication on the Merits

[129] The final line of inquiry considers societal concerns and asks whether the truth-seeking function of the trial process would be better served by the admission or the exclusion of the evidence: Beaver, 2022 SCC 54, at para. 129; Grant, 2009 SCC 32, at para. 79. Factors which impact the analysis of this line of inquiry include the reliability of the evidence, the importance of the evidence to the Crown’s case, and the seriousness of the offences in issue: Beaver, 2022 SCC 54, at para. 129; Grant, 2009 SCC 32, at paras. 79-84.

[130] There can be no doubt that unlawful possession of a firearm is a serious offence. Society has a strong interest in seeing this case tried on its merits. I recognize that exclusion of the firearm will result in the Crown being unable to prove its case.

[131] Section 24(2) requires a weighing of each line of inquiry. The balancing exercise aims to “ensure that evidence obtained through a Charter breach does not cause further damage to the justice system” and “address systemic concerns involving broad impact of admitting the evidence on the long-term repute of the justice system: Beaver, 2022 SCC 54, at para. 133.

[132] The impact of firearms, particularly handguns, cannot be ignored in considering the potential of a search exclusion but as the Court of Appeal said in R. v. Omar, 2018 ONCA 975 at para 56: “…there is no ‘firearms exception’ …”. The test for considering whether to exclude evidence obtained contrary to the Charter remains the same.

[133] Lauwers J.A. in R. v. Le, 2018 ONCA 56 at para. 151 commented:

What the jurisprudence under s. 24(2) of the Charter recognizes is the problematic nature of the Grant calculus. The relevant age-old philosophical question is this: Do the ends justify the means? The usual answer is that bad means undermine good ends. The answer often yielded by the Grant calculus is this: Sometimes the achievement of a good end can retrospectively justify bad means. This tension is particularly pronounced in the case of guns obtained as a result of Charter-infringing police conduct.

[134] In the circumstances of this case, the reputation of the administration of justice would be jeopardized if the Court does not have sufficient regard for the unacceptable lack of attention to the Applicant’s Charter rights and the multiple breaches which flowed from that conduct.

[135] It is the cumulative effect of the first two lines of inquiry that the Court must consider and balance against the third line of inquiry. The third line of inquiry will seldom tip the scale in favour of admissibility where the first two lines of inquiry favour exclusion: R. v. Lafrance, 2022 SCC 32, at para. 90.

[136] In this case, the first and second lines of inquiry favour exclusion. Bearing in mind all of the circumstances, the seriousness of the breaches, and the number of breaches, I find that the admission of the evidence would bring the administration of justice into disrepute.

Disposition

[137] The evidence of the firearm is excluded under s. 24(2) of the Charter. In the absence of this evidence, the Crown concedes that it cannot establish its case beyond a reasonable doubt. The charges against the Applicant are dismissed.

R. Maxwell J.

Released: June 26, 2024

COURT FILE NO.: CR-21-3000332 DATE: 20240626

ONTARIO SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING – and – SHAGGHARY SCOTT

REASONS FOR JUDGMENT ON CHARTER APPLICATION AND TRIAL Maxwell J.

Released: June 26, 2024

[1] The Applicant was also charged with possession of a controlled substance under the Controlled Drugs and Substances Act arising out of the search, however the Crown invited a dismissal of this charge at the conclusion of the evidence.

[2] A technical computer error resulted in the electronic files in this matter being inaccessible for a significant period of time. Once the file and its contents were fully recovered, the written reasons were completed and released as soon as possible.