Court File and Parties

Court File No.: CR-22-123 Delivered Orally: 2024-07-05 Corrected Date: 2024-09-13 Ontario Superior Court of Justice

Between: His Majesty The King – and – Thomas Nsiah, Defendant

Counsel: Alex Morris, for the Crown Kim Schofield, for the Defendant

Heard: March 18-19, 2024

Corrected Judgment: The text of the original Judgment was corrected on September 13, 2024 and the description of the correction is appended.

Reasons for Judgment

Casullo J.:

Overview

[1] Thomas Nsiah is charged with possession of cocaine and fentanyl for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, and possession of property obtained by crime, contrary to s. 354(1) of the Criminal Code.

[2] The decision to investigate Mr. Nsiah arose as a result of confidential information received about drug trafficking.

[3] As is his right, Mr. Nsiah did not testify at the trial proper. He did, however, give evidence on the section 8 challenge as outlined below.

[4] The case against Mr. Nsiah is comprised of purely circumstantial evidence.

[5] Three OPP officers testified at trial: DC Buligan, the investigative lead, who was present at the take down and supervised the roadside search of the car; DC McGuire who testified about surveillance, the take down, and the search of Mr. Nsiah and the car at the detachment; and DC Brennan, who testified about surveillance and the lodging of Mr. Nsiah.

Background

[6] On September 10, 2020, Mr. Nsiah was travelling from the Greater Toronto Area to Alliston in a Chrysler 300. The police conducted a stop of Mr. Nsiah’s vehicle on Y Street Street and arrested him for trafficking.

[7] A search of the car incident to arrest was conducted at the detachment, which led to the discovery of 28.8 grams of fentanyl, 31.1 grams of crack cocaine, and 3.7 grams of cocaine. The drugs were located in a hidden compartment beneath the gear shift console, along with a list of phones numbers and several cell phones.

[8] The combined street value of the drugs was between $15,488 and $22,421.

[9] Surveillance had been conducted of Mr. Nsiah for a number of months before his arrest. On May 28, 2020 he was seen driving a grey Elantra. On September 4, 2020 he was seen driving a black Mercedes. On May 27, 2020, June 1, 2020, June 10, 2020, June 24, 2020, and September 1, 2020, he was observed driving the Chrysler 300.

[10] Following Mr. Nsiah’s arrest, police executed the following search warrants:

• X Drive, where they located 2 digital scales with powdered residue, confirmed to be controlled substances, over $5,000 CA, a health card, and social security number in a third party’s name; and
• Y Street, where they located 2 digital scales, a spoon with filter and powdered residue, and a Samsung electronic tablet.

[11] The above paragraphs were introduced into evidence as part of an Agreed Statement of Facts.

Positions of the Parties

[12] Mr. Nsiah maintains that his section 8 Charter of Rights and Freedoms (“Charter”) rights were breached when he was strip searched at the detachment, and he seeks either a stay of proceedings or exclusion of the evidence pursuant to s. 24(2) of the Charter. Further, Mr. Nsiah submits that the Crown has not proved beyond a reasonable doubt that he had knowledge and control of the concealed drugs.

[13] The Crown’s position is that the search conducted at the detachment was not a strip search. If it is found to be a strip search, then the appropriate remedy falls short of a stay of proceedings or the exclusion of evidence. In respect of knowledge and control, the Crown submits that in light of the value of the concealed drugs in the car, the only reasonable inference to be drawn is that Mr. Nsiah had direct knowledge and control of them.

The Issues

Issue #1: Was Mr. Nsiah subject to a strip search?

[14] Following his arrest, Mr. Nsiah was taken to the Nottawasaga detachment. He was processed in the booking area, which is essentially a long rectangular hallway with multiple doors. Along one wall there is a podium for processing paperwork, as well as a bench where a prisoner might sit. The booking area was video recorded. The video recording was taken by two separate cameras offering different perspectives of the hallway. Footage of Mr. Nsiah being processed was entered as Exhibit 2.

[15] Three officers were present in the booking area while Mr. Nsiah was processed. DC Brennan, who filled out the paperwork, DC McGuire, who searched Mr. Nsiah’s person, and PC Oschnick, who was the arresting officer and the transporting officer. PC Oschnick did not take an active role in processing Mr. Nsiah – he stood and watched, somewhat removed from the booking area.

[16] At 12:55:50 DC McGuire took Mr. Nsiah’s shoes off, one at a time. At 12:56:30, Mr. Nsiah removed his belt. At about 12:56:50 Mr. Nsiah’s pants are down, and back up at 12:57:03, and then they were once again lowered and raised.

Officer Brennan

[17] While he did not have an independent recollection of Mr. Nsiah being processed, after watching the video footage DC Brennan thought that Mr. Nsiah was wearing shorts or boxers under his jeans. Ms. Schofield asked DC Brennan whether, if the shorts were boxers, this constituted a strip search. DC Brennan testified that if clothing was removed, that would constitute a strip search.

[18] He testified that there were protocols for strips searches: they had to be approved by a supervisor, and specific paperwork needed to be filled out. DC Buligan was the supervisor of the unit on September 20, 2020.

[19] DC Brennan further testified that if this was indeed a strip search, it should have been conducted off-camera, while the officers conducting the search remained on-camera.

[20] When pressed, DC Brennan testified that in 2020, he did not view the search as being a strip search. He testified that in 2024, he understands that if someone’s clothing is removed to their underwear, that does constitute a strip search.

DC McGuire

[21] DC McGuire took the lead in lodging Mr. Nsiah at the detachment. He described conducting a pat-down frisk search. He understood a pat-down search to be the removal of external layers of clothing and the emptying of pockets.

[22] Without looking at the video, he could not recall whether Mr. Nsiah’s pants were down.

[23] In examination in chief, DC McGuire said that in his 17 years of service he had never conducted a strip search.

[24] In cross-examination, DC McGuire admitted that his understanding of where to stop when asking a prisoner to remove layers of clothing had changed since 2020. To wit, in 2020 he understood that removing clothing to one layer of garments was sufficient and did not constitute a strip search. Today he understands this would be an improper search.

[25] When asked to describe his training in respect of searches, DC McGuire testified that the training he was given, versus the training he retained, were two different things.

[26] After watching the video, DC McGuire agreed that Mr. Nsiah took his pants off based on his instruction. Much like DC Brennan, he thought the shorts looked like regular sporting shorts, not boxer briefs, although he had no independent recollection of what Mr. Nsiah was wearing.

[27] DC McGuire could not recall why he asked Mr. Nsiah to take his pants down twice. Each time they were down he appeared to search the inside of the pant legs.

[28] In re-direct, DC McGuire confirmed that the search of Mr. Nsiah’s person was largely conducted for safety reasons. He also said there was an evidentiary component, as drugs are known to be smuggled in by an accused on their person.

DC Buligan

[29] DC Buligan did not return to the detachment until after Mr. Nsiah was processed. He confirmed he was the supervisor on staff that day and, if an enhanced search – or strip search – was required, he would be the one to order it.

[30] In this case he did not give such an order, as the circumstances did not meet the R. v. Golden threshold. In other words, in his opinion there were no grounds to order a strip search.

[31] DC Buligan further confirmed that if Mr. Nsiah was indeed strip searched, such a search should have occurred off-camera. The Nottawasaga detachment had a counsel phone call booth that detainees used to call their lawyers, and DC Buligan said this room could have been used to conduct the search.

[32] After watching the video, DC Buligan queried whether the shorts worn by Mr. Nsiah under his jeans were indeed boxers, or sport shorts.

Legal Principles

[33] The power to search incident to arrest grants police “considerable leeway in the circumstances of an arrest they do not enjoy in other circumstances”: R. v. Caslake, [1998] 1 S.C.R. 51, at para. 20.

[34] In Caslake, at para. 14, the Supreme Court set out three conditions to establish a valid search incident to arrest:

a. The arrest must be lawful; b. The search must be truly incidental to arrest; and c. The search must be conducted in a reasonable manner and not in an abusive fashion.

[35] Mr. Nsiah does not take the position that his arrest was unlawful.

[36] In Caslake, at para. 19, the Supreme Court cites with approval the three purposes behind a search incident to arrest, as established by L’Heureux-Dube J. in Cloutier v. Langlois, [1990] 1 S.C.R. 158:

a. to ensure the safety of the police and the public; b. to protect evidence from destruction; and c. to discover evidence of the offence for use at trial.

[37] Strip searches have been defined as “…the removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person’s private areas, namely genitals, buttocks, breasts (in the case of a female), or undergarments”: see R. v. Golden, [2001] 3 S.C.R. 679, 2001 SCC 83 at para. 47.

[38] The Supreme Court confirmed in Golden that strip searches may be conducted incident to arrest, setting out a list of conditions at paras. 91-94 and 98, confirming that the search must:

a. be conducted as incident to a lawful arrest; b. not be conducted as a matter of routine or an inevitable consequence of every arrest; c. be conducted for the purpose of discovering weapons or evidence on the body of the arrested person related to the reason for the arrest; d. be based on reasonable and probable grounds for concluding a strip search is necessary in the circumstances of the arrest in addition to reasonable and probable grounds justifying the arrest; e. not be conducted based on a mere possibility that the person is concealing evidence; and f. be conducted in a reasonable manner.

[39] Mr. Nsiah gave evidence on the strip search. He described what he was wearing – a sweater, a pair of boxers, jeans, running shoes and a belt – as his normal attire. There were no underwear underneath his boxers. He said the pair of jeans he wore that day were “slim fit.”

[40] During cross-examination Mr. Nsiah confirmed that he wore his jeans down below his boxers.

Analysis and Findings

[41] I have watched the video of DC McGuire searching Mr. Nsiah. Mr. Nsiah’s jeans sit at his hips, and his boxers are exposed by at least a couple of inches. His belt holds his pants in place – when he undid his belt at DC McGuire’s instruction, his jeans dropped to his ankles.

[42] I accept Mr. Nsiah’s evidence that he wore nothing beneath the boxers. His account was straightforward and credible, and not successfully challenged by the Crown. Unfortunately the boxers could not be produced at trial – he looked for them at his lawyer’s instruction, but he could not find them. Mr. Nsiah did testify that they were cotton, and likely purchased at Walmart.

[43] This was indeed a strip search.

[44] There is no audio accompanying the video, thus there is no evidence to suggest that DC McGuire asked Mr. Nsiah whether he wore underwear beneath his boxers before he asked him to remove his jeans.

[45] There was nothing in the evidence before me to suggest that any weapons or drugs had been found on Mr. Nsiah’s person or in the Chrysler 300 at the time he was arrested. The detailed search of the car happened at the detachment, which did not take place until after DC Buligan returned at 1:18. Thus, there were no safety concerns to justify such a search, and the strip search was neither warranted nor authorized.

[46] Further, the search was conducted without DC Buligan’s authorization. As the supervising officer that evening, this was his decision to make as to whether a strip search was justified.

[47] There were no detailed notes made of the search, nor any cogent or proper recording.

[48] The strip search was not conducted in private. Instead, it was conducted in the booking area, with three officers in close proximity.

[49] Strip searches represent a significant invasion of privacy, and can be humiliating, degrading, and traumatic: Golden, at para. 83.

[50] There is no evidence that the frisk of Mr. Nsiah revealed the presence of a possible weapon or drugs on Mr. Nsiah’s person. DC McGuire had no compelling reasons for performing a strip search in the circumstances of the arrest: Golden, at para. 95.

[51] The onus is on the Crown to establish that the police had reasonable and probable grounds for concluding a strip search was necessary. They have failed to do so here. There was no deliberate concealment or behaviour on Mr. Nsiah’s part to establish grounds for a strip search.

[52] I find that the strip search of Mr. Nsiah was unreasonable, and his s. 8 Charter rights were violated.

Issue #2: Should the evidence be excluded pursuant to s. 24(2) of the Charter?

[53] Compounding the decision to conduct this particular strip search was the understanding of the officers involved. Golden was decided in 2001. Mr. Nsiah was arrested in 2020. DC Buligan testified that in his view, the lowering of a detainee’s pants to search their underwear did not constitute a strip search. He was not alone in this view. Both DC Brennan and DC McGuire understood that in 2020, asking a detainee to remove their clothing to their underwear was not a strip search.

[54] It appears that in 2020, searches of detainees in this jurisdiction were conducted as a matter of routine, and without regard to the edict as set out in Golden at para. 95:

The requirement that the strip search be for evidence related to the grounds for the arrest or for weapons reflects the twin rationales for the common law power of search incident to arrest. Strip searches cannot be carried out as a matter of routine police department policy applicable to all arrestees, whether they are arrested for impaired driving, public drunkenness, shoplifting or trafficking in narcotics. The fact that a strip search is conducted as a matter of routine policy and is carried out in a reasonable manner does not render the search reasonable within the meaning of s. 8 of the Charter. A strip search will always be unreasonable if it is carried out abusively or for the purpose of humiliating or punishing the arrestee. Yet a “routine” strip search carried out in good faith and without violence will also violate s. 8 where there is no compelling reason for performing a strip search in the circumstances of the arrest.

Legal Principles

[55] Section 24(2) of the Charter provides:

Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[56] In R. v. Grant, [2009] 2 S.C.R. 353, 2009 SCC 32, at para. 71, the Supreme Court provided a road map for trial judges to apply when hearing applications to exclude evidence:

When faced with an application for exclusion under s. 24(2), 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 state 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. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[57] The balancing exercise mandated by s. 24(2) is a qualitative one. In all cases, it is the long-term repute to the administration of justice that must be assessed, and the lines of inquiry are to be viewed on a long-term, forward-thinking and societal basis.

The Seriousness of the Charter-infringing Conduct

[58] In Grant, the Supreme Court recognized that police conduct can range from blameless conduct, to conduct demonstrating a wilful or reckless disregard of Charter rights: see Grant, at para. 74.

[59] Here, the Charter-infringing conduct was not deliberate or egregious. However, the failure of each officer to possess a foundational understanding of strip searches twenty years after Golden was decided makes the Charter violation serious: R. v. Brown, 2012 ONCA 225, at para 26.

[60] As the Supreme Court held in R. v. Harrison, [2009] 2 S.C.R. 494, 2009 SCC 34, at para 25:

Systemic or institutional abuse of constitutional rights may be an aggravating factor rendering police misconduct more serious. The police are expected to comply with the law, especially the Charter.

The Impact of the Breach on the Charter-protected Interests of the Accused

[61] This line of inquiry concerns the impact that the breach had on Mr. Nsiah. The impact should be considered on a spectrum, ranging from “fleeting and technical, to profoundly intrusive:” Grant, at para. 76.

[62] By its nature, a strip search is intrusive. Documenting it on videotape compounds the significant invasion of a detainee’s privacy.

[63] In this case, there was no justification underlying the decision to search Mr. Nsiah in this manner.

[64] The search interfered with Mr. Nsiah’s personal privacy. He was asked to lower his jeans not once, but twice. I concede that the period of time he was in his underwear did not exceed 10 seconds. Nevertheless, as he was processed in the booking hall, which is a hallway, open to anyone present in the detachment, Mr. Nsiah was twice required to lower his jeans to his underwear. And it was recorded. The impact on Mr. Nsiah was not fleeting.

Society’s Interest in an Adjudication on the Merits

[65] In Grant at para. 84, the Supreme Court reminds triers of fact that: “The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice.”

[66] On the other hand, the proliferation of drugs continues to take its toll on innocent citizens and communities. A not insignificant amount of drugs were found in the car Mr. Nsiah was driving. Excluding this evidence would leave the Crown without a case to present, thereby obviating the truth-seeking function of the trial.

[67] The balancing exercise I am called upon to conduct is difficult in light of these competing interests. I am mindful of jurisprudence from the Supreme Court concerning the application of s. 24(2): R. v. Omar, [2019] 3 S.C.R. 100, 2019 SCC 32, where the Supreme Court adopted Brown J.’s dissenting opinion at the Court of Appeal (R. v. Omar, 2018 ONCA 975, 144 O.R. (3d) 1) and admitted the handgun, ammunition and cocaine into evidence, thereby restoring the convictions at trial; and R. v. Le, [2019] 3 S.C.R. 3, 2019 SCC 34, in which the Court excluded the evidence of drugs and weapons.

[68] I return, however to the principles articulated in Grant. The Charter-infringing conduct was deliberate, and Mr. Nsiah’s Charter interests were breached. While the drugs are reliable evidence, their admission would bring the administration of justice into disrepute.

[69] State conduct that takes “a casual approach to the protection of Charter values” cannot be supported: R. v. Wong, 2015 ONCA 657, 127 O.R. (3d) 321, at para. 88.

[70] Therefore, the evidence of the drugs is excluded.

[71] Considering my finding on the s. 24(2) application, I need not consider Mr. Nsiah’s alternate argument, a stay of proceedings pursuant to s. 24(1).

Issue #3 – Has the Crown proven beyond a reasonable doubt that Mr. Nsiah had knowledge, consent and control of the drugs?

[72] In the event I am wrong in finding that Mr. Nsiah’s Charter-protected rights were infringed, and the evidence should not be excluded, I find that the Crown has not satisfied the Court that Mr. Nsiah had knowledge and control of the drugs found in the Chrysler 300.

Relevant Facts

[73] Once the Chrysler 300 was brought to the detachment, DC McGuire, DC Malay and DC Buligan conducted the search. After checking the glovebox, the seat, and under the seat, DC McGuire noticed that the console for the electronic gear shift over the transmission was not sitting right. He also noticed some abrasion around the edges. Using his fingertips, he was able to pull the console cover up without any instruments.

[74] DC McGuire explained that while these console panels are designed to remain in place, most car owners do not realize they can be lifted.

[75] In the cavity below the gear shift panel DC McGuire found an ounce of cocaine, an ounce of fentanyl, and a smaller package of cocaine.

[76] DC Brennan testified that no fingerprints were taken of the car’s exterior or interior, including the console panel. Further, no fingerprints were taken of the drugs, or the cell phones found within the cavity below the console panel.

[77] Similarly, no DNA analysis was conducted of the Chrysler 300 or the items found within it.

[78] Over the course of six months of surveillance, Mr. Nsiah was seen to drive the Chrysler 300 five times, and two other cars on two other days of surveillance. The surveillance dates ranged from May 27 to September 10, with no explanation of what happened to the Chrysler 300 in between those dates – for example, who else drove it, or where it was parked when not in use.

[79] The Chrysler 300 is not registered in Mr. Nsiah’s name.

Legal Principles

[80] Possession as defined in s. 2 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”) incorporates the Criminal Code, R.S.C., 1985, c. C-46 definition of possession at s. 4(3):

(3) For the purposes of this Act,

(a) a person has anything in possession when he has it in his personal possession or knowingly

(i) has it in the actual possession or custody of another person, or

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

[81] The Court of Appeal in R. v. Bains, 2015 ONCA 677, [2015] O.J. No. 5191 provided a helpful overview of the essential elements of possession at paras. 154-157:

[154] Section 2(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, as amended (“CDSA”), incorporates the definition of “possession” found in s. 4(3) of the Criminal Code so that any CDSA offence of which possession is an essential element may be proven in any manner permitted by s. 4(3) of the Criminal Code.

[155] Under s. 4(3), possession includes personal possession, constructive possession and joint possession: R. v. Morelli, [2010] 1 S.C.R. 253, 2010 SCC 8, at para. 15. Knowledge and control are essential elements in both personal and constructive possession: Morelli, at para. 15.

[156] Constructive possession does not involve an accused having physical custody of a subject matter. Constructive possession is established where an accused has the subject matter in the actual possession or custody of another person, or in any place, whether belonging to or occupied by the accused or not, for the benefit of the accused or someone else: Morelli, at para. 17. To establish constructive possession, the Crown must prove beyond a reasonable doubt that an accused (Morelli, at para. 17):

(i) knows the character of the object; (ii) knowingly puts or keeps the object in a place; and (iii) intends to have the object in the place for his or her use or benefit or the use or benefit of some other person.

[157] As with other offences, Crown counsel may prove the essential elements of constructive possession by direct evidence, by circumstantial evidence or by a combination of direct and circumstantial evidence. Where the subject matter of which an accused is alleged to be in possession is a controlled substance of significant value, it may be open to a trier of fact to infer not only knowledge of the nature of the subject, but also knowledge of the substance itself: R. v. Blondin, [1971] 2 C.C.C. (2d) 118, at p. 121 C.C.C.; R. v. Fredericks, [1999] O.J. No. 5549 (C.A.), at paras. 3-4; R. v. To, [1992] B.C.J. No. 1700; and R. v. Bryan, 2013 ONCA 97, at para. 11. It is a reasonable inference that such a valuable quantity of drugs would not be entrusted to anyone who did not know the nature of the contents of the bag or other container.

Analysis and Findings

[82] The drugs were concealed under the panel of the gear shift console. Because they were not in Mr. Nsiah’s immediate possession, the Crown must prove constructive possession beyond a reasonable doubt.

[83] The Crown concedes that its case is circumstantial, but submits that when relying on circumstantial evidence, it is not incumbent upon the Crown to prove each fact that supports an inference of guilt beyond a reasonable doubt: R. v. Morin, [1998] 2 S.C.R. 345 at paras. 360-362.

[84] The Crown does have to prove that the only reasonable inference that can be drawn from the facts is that Mr. Nsiah had knowledge and control of the drugs that were in the car he was driving. The Crown submits that when, as here, there are high-value items found in hidden compartments in a car, knowledge and control is the only reasonable inference to be drawn.

[85] The Crown relied on R. v. Buchanan, 2020 ONCA 245 to ground its argument on this issue. In Buchanan, the accused was stopped and arrested for being in possession of controlled substances. A search of the car he was driving revealed heroin, cocaine, cash, and a loaded firearm. A search of Mr. Buchanan’s person revealed ownership and insurance documents for the car, albeit in someone else’s name. Inside the car there were financing documents dated only weeks before the offence. The documents were addressed to Mr. Buchanan, and suggested that he personally owed money for the car.

[86] Buchanan can be readily distinguished on the facts. Here, the indicia of care, control and ownership of the Chrysler 300 are glaringly absent. There is no evidence of its ownership beyond the fact that it was not registered in Mr. Nsiah’s name.

[87] DC McGuire’s testimony serves to highlight the limitations of the Crown’s evidence. During cross-examination he confirmed that no forensic evidence (fingerprints or DNA) was taken of either the Chrysler 300, or the items found within the cavity. Thus, beyond their being concealed in the vehicle, there is nothing to link Mr. Nsiah to the drugs.

[88] Drawing inferences of one’s knowledge from circumstantial evidence is a difficult exercise, but as the British Columbia Court of Appeal held in R. v. To, [1992] B.C.J. No. 1700, at para. 41:

It must be remembered that we are not expected to treat real life cases as a completely intellectual exercise where no conclusion can be reached if there is the slightest competing possibility. The criminal law requires a very high degree of proof, especially of inferences consistent with guilt, but it does not demand certainty.

[89] Further, as Davies J. held in R. v. Khan, 2019 ONSC 2002, at para. 28:

Knowledge is not, however, an inescapable inference from the possession of drugs of a significant value. In fact, individuals dealing in large quantities of drugs have a clear incentive to take steps to protect their identity, which might include relying on couriers and drivers who do not [know] the nature of the operation or who else is involved. I must, therefore, look at the totality of the evidence in this case to determine whether knowledge or wilful blindness is the only reasonable inference.

[90] Given the absence of evidence linking Mr. Nsiah to the Chrysler 300 other than as a person who drove it on six occasions, including the day of his arrest, I find the possibility that someone put the drugs in the Chrysler 300 without Mr. Nsiah’s knowledge to be reasonably available.

Conclusion

[91] Mr. Nsiah’s Charter rights were breached. Applying the Grant analysis to these particular facts, I am satisfied that the evidence obtained from the Chrysler 300 must be excluded.

[92] In the alternative, the Crown has not met it onus to establish that the only reasonable inference available to me is that Mr. Nsiah knew the drugs were in the Chrysler 300 the day he was arrested.

Justice A. Casullo Released: September 13, 2024

1. Addresses are anonymized as X Drive and Y Street.