Court File and Parties
COURT FILE NO.: 23-16121 DATE: 2024-09-20 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – JUSTIN DYER and IVOR SHAWN YOUNG Defendants
Counsel: N. Young, for the Crown H. Singh for Justin Dyer A. Banister-Thompson for Ivor Shawn Young
HEARD: August 28, 29 and 30, 2024
J. SPEYER J.
A. Introduction
1Mr. Dyer was the driver of a white KIA SUV that was pulled over by the police during the early morning hours of October 1, 2022. Mr. Young was a passenger in the vehicle. The police searched the vehicle and found marijuana, cocaine and a loaded handgun. Mr. Dyer and Mr. Young apply pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms for an Order excluding that evidence at their trial.
B. The issues
2The defendants claim that their Charter-protected rights conferred by ss. 9, 10(a), 10(b) and 8 were infringed:
Both defendants submit that the police infringed s. 9 of the Charter by engaging in racial profiling when they decided to pull over the defendants’ vehicle, and by relying on a pretext to stop that vehicle to conduct a criminal investigation.
Both defendants submit that the police infringed s. 10(a) of the Charter by failing to advise them of the reasons for their detention.
Both defendants submit that the police infringed s. 10(b) of the Charter by failing to comply with the informational and implementational aspects of their right to counsel. They submit that the police questioned them before they were able to contact counsel, thus violating the duty to hold off. Mr. Young alone raises a delay in his opportunity to speak with counsel as an aspect of an alleged s. 10(b) violation. Mr. Dyer submits that his s. 10(b) rights were infringed when the officer advising him of his right at the time of arrest told him that he would not be able to speak with his girlfriend to get the name of a lawyer.
Both defendants submit that the police infringed s. 8 of the Charter by conducting a warrantless search that was not authorized by the Cannabis Control Act, 2017, S.O. 2017, c. 26, Sched.1, (CCA).
C. The evidence
3The facts of this case are largely not in dispute because Constables Petschenig and Grainger activated their body-worn cameras during their interactions with the defendants. The only evidence about what happened before the traffic stop that lead to the search of the SUV was the evidence of Constables Petschenig and Grainger. I will deal with some of that evidence now to provide context for the analysis that follows. I will address some specific evidentiary issues when I analyze the issues to be determined.
4Constables Petschenig and Grainger were excellent witnesses. They both gave their evidence in a straightforward manner. Their answers to the questions asked were responsive, both in examination in chief and in cross-examination. I accept their evidence.
5PC Petschenig was driving a marked police vehicle. PC Grainger was his partner. They were on uniform patrol, and before their interaction with the white KIA SUV began, they were conducting a proactive patrol in the area of the downtown Whitby bars. The Hotel Royale was one such establishment. PC Petschenig testified that they were looking for drivers leaving the hotel to check the sobriety of the drivers. His usual routine was to drive through the parking lots along the backs of the bars, and to stop cars that were driving through the parking lots to check the drivers’ sobriety. He had an approved screening device (ASD) in his police vehicle.
6As he approached the rear of the Hotel Royale, through a laneway to the north of the Hotel, PC Petschenig saw two vehicles leaving the parking lot behind the Hotel through an alleyway that runs south from the Hotel, through a funeral home parking lot, to Dundas Street West. One of those vehicles was the white KIA SUV. The other was a black sedan.
7PC Petschenig proceeded southbound in the alleyway behind the Hotel to try to catch up to the vehicles. He intended to check the sobriety of the drivers. The vehicles turned right onto Dundas Street West and proceeded westbound for one block, to Byron Street. They turned left to proceed southbound on Byron Street South. PC Petschenig saw them turn onto Byron Street South. But he encountered a red light, and waited for it to turn green to proceed. When PC Petschenig made his left turn onto Byron Street South, he could see the two vehicles proceeding southbound about ½ kilometre ahead of him. As the two vehicles travelled southbound on Byron Street South, PC Petschenig got closer. He closed the distance between the two vehicles and his police vehicle to about 100 to 200 metres. The two vehicles turned left on Arthur Street, drove for one block on Arthur Street, and then turned right to proceed southbound for one block on Brock Street South. PC Petschenig followed.
8PC Petschenig closed the distance between his police vehicle and the white KIA SUV as it proceeded into the left turn lane at the intersection of Brock Street South and Consumers Drive. The black sedan, which was further ahead, continued straight through the lights. At that intersection, PC Petschenig chose to follow the white KIA SUV because it was closer and was travelling slower than the black sedan.
9As the SUV, followed by the police vehicle, made its left turn, at 12:30:28 a.m., PC Petschenig activated the emergency lights of the police vehicle while PC Grainger, seated in the front passenger seat of the police cruiser, used the mobile data terminal (MDT) present in the vehicle. They followed the white KIA SUV as it pulled off the roadway into the parking lot of a McDonalds. At 12:30:43 a.m., PC Grainger is seen typing on the MDT keyboard. The SUV parked in a designated parking area. PC Petschenig parked the police vehicle perpendicular to, and behind the SUV. By this time, the officers had learned (in response to a licence plate query on the MDT) that the registered owner of the SUV was unlicensed.
10At 12:31:03 a.m., PC Petschenig approached the driver’s side of the SUV on foot and PC Grainger approached the passenger’s side. The driver’s window was down and Mr. Dyer looked back at the officer who asked: “Hey, sir, how’s it going?” PC Petschenig told Mr. Dyer that his body-worn camera was recording. He told Mr. Dyer that the reason he pulled him over was that “you guys” were leaving the Royal, a reference to the Hotel Royale, and that he was just checking to make sure that the driver was sober. He asked Mr. Dyer if he had anything to drink that night. Mr. Dyer responded that he did not have anything to drink and that he was the designated driver. He then corrected himself and told the officer he had one beer, an hour or two earlier.
11As PC Petschenig spoke with the driver, PC Grainger used his flashlight to illuminate the inside of the vehicle. He could not do so through the front passenger side window, because it was tinted, so he moved to the front of the SUV, and pointed his flashlight at the front driver’s side of the SUV, illuminating the driver, as PC Petschenig spoke with the driver.
12At 12:31:45 a.m., PC Petschenig read a demand to Mr. Dyer to provide a sample of his breath into an ASD. Mr. Dyer got out of his vehicle at the direction of PC Petschenig and stood at the rear of his vehicle while PC Petschenig retrieved his ASD from the rear of his police vehicle.
13While PC Petschenig was retrieving the ASD, PC Grainger told him at 1:32:05 a.m., that there was a grinder in the cupholder. PC Petschenig continued with his sobriety investigation. He explained to Mr. Dyer what the consequences of various ASD readings could be. At 12:33:12 a.m., Mr. Dyer provided a suitable sample of his breath into the ASD. The machine produced a reading of 15, which PC Petschenig explained meant that “he was legal”. Then, at 12:34:15 a.m., PC Petschenig asked Mr. Dyer if he had his driver’s licence with him. Mr. Dyer indicated that he had it and walked to the passenger side of his SUV. PC Petschenig told PC Grainger that Mr. Dyer was just grabbing his stuff and that he only blew “a 15.”
14While Mr. Dyer was out of the SUV providing a sample of his breath into the ASD, PC Grainger, having observed the marijuana grinder in the cupholder, asked Mr. Dyer if he’d had anything to smoke that night. Mr. Dyer responded “no”. From 12:32:18 a.m. until 12:34:23 a.m., when Mr. Dyer returned to the SUV to retrieve his licencing documents, PC Grainger remained at the front of the SUV with his flashlight illuminating the driver’s seat area. PC Grainger did not use his flashlight during this time to illuminate other parts of the interior of the SUV.
15At 12:34:30 a.m., Mr. Dyer opened the front passenger side door of his car and reached into the car. PC Grainger told him that he had a few questions. He said “The grinder – could you open that up for me? And the plastic bag, is that weed in the bag?” Mr. Dyer showed him a baggie, that did not contain cannabis, and produced the marijuana grinder from the front console area of the car, opened it, and showed it to PC Grainger. PC Grainger stated that there was a little bit of weed in the grinder and then asked: “How much weed is in the car?” He told Mr. Dyer that he wanted to make sure that there was not too much readily available to him.
16In response, Mr. Dyer walked around the front of his car, entered the driver’s seat at 12:35:00 a.m., reached into the floorboard area behind the driver’s seat, and into a backpack from which he pulled out a baggie containing a small amount of cannabis. At 12:35:45 a.m., PC Grainger told Mr. Dyer that the cannabis was readily available and that what they needed to do was make sure that there was less than 30 grams of cannabis in the car. He asked Mr. Dyer if there was more than that in the car, and Mr. Dyer responded that there was probably a little more. PC Grainger told him they were going to have a quick look. He asked Mr. Dyer if he had any cannabis on his person.
17Constable Grainger conducted a quick pat down search of Mr. Dyer which was limited to patting his pockets and looking at his waistband.
18During the interactions between Mr. Dyer and the officers, the front driver’s side door of the car was open, and the rear driver’s side window was partly open. The volume of the conversations that Mr. Dyer had with the officers was conversational and no one raised their voices. But their interaction beside and inside the car would have been overheard by the passengers in the car.
19Mr. Dyer was instructed by PC Grainger to “hang out” at the rear of the vehicle. PC Petschenig interjected that he would also have to see Mr. Dyer’s drivers licence, and Mr. Dyer returned to the front of the vehicle to retrieve his documents at about 12:37 a.m.. At the same time, PC Grainger asked Mr. Young to step out of the vehicle so that the police could make sure that he did not have any marijuana. Mr. Young stepped out of the SUV at 12:37:10 a.m.. Constable Grainger conducted a quick pat-down search of Mr. Young, and then allowed him to retrieve his cell phone and other personal items that had been removed from his pockets.
20At 12:38:05 a.m., PC Grainger asked the front seat passenger, Ms. Lowe, if she minded stepping out of vehicle because of the cannabis and asked her if she had any cannabis in her possession. She responded that she did not.
21When Mr. Dyer appeared to be having trouble locating his documents, PC Petschenig asked him if he had a health card. At 12:37:24 a.m., Mr. Dyer produced an expired driver’s licence, together with a paper licencing document and provided them to PC Petschenig at 12:37:40 a.m.. PC Petschenig took the documents, told Mr. Dyer “I’ll be right back buddy”, and took the documents to his police vehicle, where he conducted queries on his mobile date terminal. At 12:38:57 a.m., PC Petschenig got out of his vehicle and returned to speak with Mr. Dyer about his renewal of his driver’s licence.
22PC Petschenig explained that he was waiting for all the returns to come in on his inquiries, but provided Mr. Dyer an opportunity to explain the process of his licence renewal. Mr. Dyer did so. PC Petschenig received information from the Ministry of Transportation that the licence had not been renewed because there was a $36 renewal fee to be paid and that the licence expired on September 21, 2022. He explained this to Mr. Dyer and told him that he was “not going to jam you up” on account of the expired licence. PC Petschenig testified that the fine for driving without a licence was much more than $36, and that he exercised his discretion not to pursue the licencing issue because Mr. Dyer had been extremely polite to him. He testified that he would have let another licenced and sober driver drive the SUV away. PC Petschenig asked the passengers if they were licenced drivers, sober, and willing to drive the car. Mr. Young had only a G1 licence. The female front seat passenger had a licence, but had something to drink, and said that she would rather not drive.
23At 12:38:15 a.m., PC Grainger explained to all three occupants of the SUV, who were standing in the area behind the SUV, that the officers were just going to give it a quick search “just to make sure there’s no cannabis at all”. Mr. Dyer then said that he had weed on him, went to the front passenger side of the vehicle, and produced a plastic bag containing apparent marijuana from a backpack. PC Grainger responded that “we’ll figure it out” and told Mr. Dyer that “we appreciate the honesty”. Mr. Dyer returned to stand behind his SUV while PC Grainger continued his search of the SUV.
24At 12:39:04 a.m., an unidentified police officer, who was standing by, asked PC Grainger: “Just open cannabis?” PC Grainger responded “yeah” and “there might be a lot of cannabis”, referring to items contained in a backpack that had been located on the rear floorboard, behind the centre console. PC Grainger, referring to a bag of apparent marijuana, noted that its contents were “over 30”. PC Grainger explained in his evidence that although possession of that amount is an offence under the Cannabis Act, he did not charge anyone with possession of that amount, and had no interest in charging anyone with that ticketable offence. He would have exercised his discretion to issue a caution if that was all that there was.
25PC Grainger asked Mr. Young and Ms. Lowe to provide their identification to PC Petschenig. He removed Ms. Lowe’s driver’s licence from a purse located in front of the front passenger seat. He told her that he had it and told her not to let him forget that he had it. He explained that, because there was cannabis readily available in the car, everyone had to identify themselves and be searched. He told Ms. Lowe that she would not be searched. He explained in his evidence that there was no female officer present to search Ms. Lowe and that in the circumstances, he did not see a need to call for a female officer.
26PC Grainger continued to search the SUV. At 12:42:02 a.m., he pulled a black backpack from the back seat area. He pulled a plastic bag containing apparent marijuana out of the backpack and then said “There’s a gun. There’s a fucking gun.” PC Grainger testified that he was surprised to find the gun, and his tone when he found it supports that evidence. He immediately left the BMW and walked to where PC Petschenig was standing with the vehicle occupants.
27At 12:42:20 a.m., PC Grainger advised PC Petschenig that there was a “lot of weed” in the car, and that unfortunately there was also a firearm in the vehicle. He then advised Mr. Dyer, Mr. Young, and the female passenger that they were all under arrest, and told them to put their hands behind their backs. As they were being handcuffed, PC Grainger asked if someone could tell him if the firearm was real or not and said that “it’d be nice to know”. In his evidence, PC Grainger explained that he asked the question, not to elicit evidence, but that it would be nice to know if it was real so that they don’t accidentally shoot someone.
28At 12:42:59 a.m., PC Petschenig told Mr. Dyer that he was under arrest for possession of a firearm. He cautioned Mr. Dyer not to say anything because his body-worn camera was recording him. He escorted Mr. Dyer to the side of his police vehicle and conducted a pat-down search. At 12:44:30 a.m., he told Mr. Dyer that he was arresting him for possession of a firearm and possession of more than 30 grams of cannabis. He read Mr. Dyer his right to counsel from his notebook and cautioned him that he did not have to say anything, and that anything he said could be used in evidence. Mr. Dyer was asked if he wanted to call a lawyer and he responded “no”. He expressed his concern that someone come to pick up his car. At 12:45:40 a.m., PC Petschenig asked Mr. Dyer whether he knew if the firearm was real and did not receive a response. PC Petschenig transferred custody of Mr. Dyer to two other officers for the purpose of transporting Mr. Dyer to 17 Division, because Mr. Young had been placed in the rear of his vehicle.
29At 12:43:33 a.m., after Mr. Young was handcuffed, PC Grainger escorted him to the side of his police vehicle and told him that he did not have to say anything, but that anything he said could be used against him. PC Grainger advised Mr. Young that he was under arrest for possession of a firearm and possession of more than 30 grams of cannabis. He advised him of his right to retain and instruct counsel in standard terms, and asked if he understood. Mr. Young understood.
30Mr. Young asked if could look in his phone to find a phone number, and PC Grainger told him that back at the station, they could go through his phone with him to find a lawyer’s phone number if that is what he wanted to do. He also told him that back at the station he could provide Mr. Young with a list of lawyers. Mr. Young said that he did not want to call a lawyer right then. PC Grainger told Mr. Young to let him know if he changed his mind. He placed Mr. Young in the rear seat of his vehicle, and told Mr. Young that he could change his mind at any time about a lawyer.
31At 12:46:19 a.m., PC Grainger, having placed Mr. Young in the rear of his police vehicle, told PC Petschenig that he was going to continue his search of the SUV. PC Grainger then proceeded to search the SUV, while other officers looked on. He found a more cannabis, cocaine, and scales.
32At 12:49:40 a.m., PC Petschenig, PC Grainger, and another officer discussed the need to begin the transport of the three persons under arrest to 17 Division. During their discussion they reviewed which of the three had requested to speak to a lawyer. They noted that the other attending officers would need to transport immediately to 17 Division. The officers were alive to the need to accommodate requests that had been made to speak to a lawyer, and they acted to facilitate those requests.
33At 12:49:57 a.m., Acting Sergeant Bastien (ph) arrived on scene. His role was to assess the situation and come up with a plan to deal with the evidence and the transport of the arrestees to the cells. He was shown what had been found in the car. He spoke with the other officers at the side of the SUV until 12:54:45 a.m..
34At 12:55:24 a.m., PC Petschenig returned to the police vehicle in which Mr. Dyer was placed and told him that his jeopardy had changed: he was now arrested for possession of a firearm and possession for the purpose of trafficking. His right to counsel was again recited. PC Petschenig asked Mr. Dyer if he wanted to call a lawyer. Mr. Dyer said “yeah”. PC Petschenig asked him who he wanted to call, and Mr. Dyer said that he wanted to call his girlfriend because she had his lawyer’s number. PC Petschenig told him that he could only call a lawyer and asked him if he knew the name of his lawyer. Mr. Dyer responded that he did not. PC Petschenig told Mr. Dyer that at 17 Division he could provide him with a book that contained a list of lawyers, or he could be provided duty counsel. Mr. Dyer responded “that’s fine”. PC Petschenig asked whether he wanted to look at the list of counsel or speak with duty counsel. Mr. Dyer said that he would look in the book. PC Petschenig reiterated what Mr. Dyer was charged with and cautioned him about his right to remain silent and that anything he said could be used in evidence.
35In his evidence, PC Petschenig candidly acknowledged that he made a mistake when he told Mr. Dyer that he would not be permitted to talk to his girlfriend to get a lawyer’s phone number. He explained that there was a lot going on, but that he made a mistake, and realized that he should have told Mr. Dyer that he could facilitate his ability to call his girlfriend.
36At 12:56:55 a.m., PC Grainger returned to his police vehicle and advised Mr. Young that he had to read information to him again and search him again. At 12:57:35 a.m., Mr. Young was removed from the police vehicle by PC Grainger who explained that he had searched Mr. Young for cannabis, but that he had not conducted a more thorough search incident to arrest. Mr. Young advised that the handcuffs were digging in, and PC Grainger ensured that Mr. Young’s watch was removed to alleviate the pressure, and that the handcuffs were adjusted. Mr. Young asked if he could see who called his phone most recently, in case it was someone who could help him, and PC Petschenig showed him his phone so that he could see who called him last. At 12:59:39 a.m., PC Grainger advised Mr. Young that he was under arrest for possession of an unauthorized firearm, possession of over 30 grams of cannabis, and possession for the purpose of trafficking a Schedule 1 substance. Mr. Young was re-read his right to counsel. He understood, and said that he did not want to call a lawyer right then. PC Grainger explained that when they got to the station, they would contact a lawyer or duty counsel for him. Mr. Young was re-cautioned. PC Grainger concluded this interaction with Mr. Young at 1:01:35 a.m..
37Between 1:01:40 a.m. and 1:23:30 a.m., PC Grainger and PC Petschenig worked to seize and package evidence from the SUV. At 1:03:42, they turned their attention to the seizure of the gun and proving it safe. That process was recorded on their body-worn cameras. During this time, they were the only officers remaining on scene, in addition to their sergeant. They were not familiar with the workings of the gun, and it took them some time to determine how to open the slide to remove the chambered round. They extracted a magazine loaded with 45 calibre ammunition from the gun, and ejected one live round from the chamber. They finished making the gun safe by 1:08:40. They then continued to search the vehicle and package seized items in evidence bags.
38While they were searching, at 1:13 a.m., PC Petschenig told Mr. Young that they were just completing their search of the car and then they would bring him to the station. He responded “OK”. PC Petschenig asked Mr. Young: “Would you like to call a lawyer on the sergeant’s phone right now?” Mr. Young declined that offer, indicating that he would make that call when they got to the station. PC Petschenig told him that if he changed his mind, he should let him know.
39At 1:19:05 a.m., as the two officers completed processing the items seized at the scene, PC Petschenig noticed a pair of glasses. He approached Mr. Young and asked him whether they were reading glasses and whether he needed them to see. Mr. Young responded “yes”. PC Petschenig told Mr. Young that he would let his sergeant know at the station that Mr. Young needed the glasses to see.
40At 1:23:45 a.m., PC Petschenig and PC Grainger left the scene with Mr. Young in the backseat of their vehicle. They arrived at 17 Division at 1:32:57 a.m..
41Mr. Young was brought before the booking sergeant at 1:52:48 a.m.. He was asked if he wanted to speak to a lawyer and he responded that he wanted to talk to duty counsel. He left the booking area at 2:02:55 a.m.. The time spent in the booking area was no more than was reasonably required to ensure that Mr. Young would not be a danger to himself or others, and was routine.
42While Mr. Young was being booked, PC Petschenig called duty counsel for Mr. Dyer, and left a voice mail message asking duty counsel to call back, as is the usual practice. After Mr. Young was booked, PC Petschenig placed a call to duty counsel for him.
43PC Petschenig waited until Mr. Dyer spoke with duty counsel. Mr. Dyer was removed from his cell at 2:58 a.m. to speak with duty counsel, and he was returned to his cell at 3:02 a.m.
44At 4:05 a.m., Mr. Dyer and PC Petschenig were seated in an interview room. PC Petschenig advised Mr. Dyer of an updated list of charges that would be laid against him. He was re-advised of his right to counsel. PC Petschenig asked Mr. Dyer if he wished to speak to a lawyer again because his charges had changed and Mr. Dyer said no, that he was satisfied with his earlier discussion with counsel.
45At 4:30 a.m., PC Grainger removed Mr. Young from his cell and took him to an interview room to advise him of new charges and to re-advise him of his right to counsel. Mr. Young told PC Grainger that he had not yet spoken with duty counsel. The cell sergeant told PC Grainger that duty counsel had not called back for Mr. Young. PC Grainger returned Mr. Young to his cell and placed another call to duty counsel. Duty counsel called for Mr. Young at 5:50 a.m. Mr. Young was removed from his cell to speak with duty counsel,.
46Every second of the officers’ time spent at the scene is accounted for. At no time did the officers waste time. They administered the ASD to Mr. Dyer promptly and took no more time than required to ascertain the status of his drivers’ licence. After the search transitioned to a search pursuant to the Cannabis Control Act, after the grinder containing marijuana readily available to the occupants of the SUV was seen in plain view, the officers were engaged in searching the SUV, arresting and securing the occupants and advising them of their rights, the collection and preservation of evidence, proving the gun safe and securing it, and conferring with their sergeant to co-ordinate the tasks that needed to be done. They worked steadily and methodically. They were not cross-examined about what, if anything, they could have done differently to reduce the time spent at the scene.
D. The claim of racial profiling and other alleged s. 9 violations
(a) The claim of racial profiling
47Both defendants submit that race was used by the police as a reason to pull over the SUV, and to continue the investigation after the SUV was stopped, thus violating their right to be free from arbitrary detention.
48The Crown submits that the evidence in this case does not support a finding that the police officers were affected by race, and that the officers’ attitudes affected the course of their conduct.
(i) The legal principles
49In R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 77, the Supreme Court reiterated the definition of racial profiling articulated by that court in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, [2015] 2 S.C.R. 789, at para. 33:
Racial profiling is any action taken by one or more people in authority with respect to a person or group of persons, for reasons of safety, security or public order, that is based on actual or presumed membership in a group defined by race, colour, ethnic or national origin or religion, without factual grounds or reasonable suspicion, that results in the person or group being exposed to differential treatment or scrutiny.
Racial profiling [also] includes any action by a person in a situation of authority who applies a measure in a disproportionate way to certain segments of the population on the basis, in particular, of their racial, ethnic, national or religious background, whether actual or presumed.
50The components of racial profiling were summarized by Paccioco J.A. in R. v. Dudhi, 2019 ONCA 665, 147 O.R. (3d) 546, at paras. 54-55.:
54Racial profiling has two components: (1) an attitudinal component; and (2) a causation component. As Brown and Martin JJ. explained in R. v. Le, 2019 SCC 34, at para. 76, for the majority of the Court:
[T]he concept of racial profiling is primarily concerned with the motivation of the police. It occurs when race or racial stereotypes about offending or dangerousness are used, consciously or unconsciously, to any degree in suspect selection or subject treatment. [Citations omitted.]
55The attitudinal component is the acceptance by a person in authority, such as a police officer, that race or racial stereotypes are relevant in identifying the propensity to offend or to be dangerous: Peart v. Peel Regional Police Services Board (2006), 43 C.R. (6th) 175 (Ont. C.A.), at para. 90, leave to appeal dismissed, [2007] S.C.C.A. No. 10. The causation component requires that this race-based thinking must consciously or unconsciously play a causal role. Meaning, race or the racial stereotype must motivate or influence, to any degree, decisions by persons in authority regarding suspect selection or subject treatment.
51Where race or racial stereotypes are used to any degree in suspect selection or subject treatment, there will be no reasonable suspicion or reasonable grounds. The decision will amount to racial profiling and the decision will be unreasonable. Such a decision cannot satisfy the legal standards for suspect selection or subject treatment: Dudhi, at paras. 62-63.
52A claim of racial profiling demands both proper framing and evidence: R. v. Tutu, 2021 ONCA 805, 407 C.C.C. (3d) 137, at para. 38; Le; Dudhi; R. v. Sitladeen, 2021 ONCA 303, 155 O.R. (3d) 241. Racial profiling can rarely be proved by direct evidence. Rather, racial profiling can be revealed by, and inferred from, the totality of the circumstances.
(ii) The evidence
53There is little dispute about what happened during the interaction between the defendants and PC Petschenig and PC Grainger, because both officers had body-worn cameras and activated the audio recording capability of those cameras when they interacted with the defendants. Those recordings are in evidence, and the recordings provide good high resolution evidence of what happened.
54Both officers treated Mr. Dyer and Mr. Young with nothing but dignity and respect. The officers were polite, calm, pleasant, and civil towards them at all times. The officers conducted themselves professionally. They did not display any hint of anti-Black bias.
55In addition to what the officers said and did, and how they said and did it, as clearly displayed on their body-worn camera recordings, they both testified that they did not know that the occupants of the SUV were Black until after the vehicle had come to a stop and they approached the SUV on foot. I believe them.
56Both officers were credible witnesses. They both answered questions from the Crown and defence counsel in an equally responsive and respectful manner. Their explanations for what they did, and why they did it, made sense. Their evidence about their subjective reasons for doing things is supported by the recordings of what they said and did. They were skillfully and extensively cross-examined and their evidence did not reveal the slightest hint of anti-Black bias or acceptance of negative race-based stereotyping.
57Any differences in the evidence of the two officers does not cause me to doubt their credibility and reliability. To the extent that there are differences as to the route driven between the evidence of PC Petschenig, the driver, and PC Grainger, the passenger, it is apparent that PC Petschenig had a much better recollection of the route driven. His evidence about this was clear and certain. PC Grainger was uncertain of the route driven.
58The discussion between Mr. Dyer and PC Grainger, at 12:36:15 a.m., where Mr. Dyer said “you guys just seen me in the parking lot”, and PC Grainger responded: “I know. That’s why we’re checking you for sobriety”, does not cause me to doubt the credibility and reliability of the two officers. The officers acknowledged that they may have interacted with Mr. Dyer in the parking lot hours earlier that evening because they were looking for a particular vehicle known to be driven by a suspended driver. But the officers had no recollection of that brief encounter when they dealt with Mr. Dyer. The officers did not associate that encounter with the SUV and black sedan that left the hotel parking lot. I believe their evidence on this issue.
59PC Grainger explained that he ran the licence plate of the SUV to learn if the vehicle was stolen and whether the registered owner of the vehicle was licenced. He described this as standard practice. I accept his evidence about this. That reasonable investigative step was not motivated, at all, by the colour of the defendants’ skin.
60Random stops pursuant to the Highway Traffic Act are justified pursuant to s. 1 of the Charter when the stop is undertaken to determine the mechanical fitness of the vehicle, the possession of a valid licence and proper insurance, and the sobriety of the driver. Police are not required to have grounds to suspect that the driver is committing an offence in relation to the operation of a motor vehicle: R. v. Ladouceur, [1990] 1 S.C.R. 1257 at pp. 1288-9.
61I find that PC Petschenig and PC Grainger first learned that Mr. Dyer and Mr. Young were Black men after the SUV stopped in the McDonalds parking lot and the officers approached on foot and looked into the SUV. I accept their evidence that the windows of the SUV, except the front windshield, were heavily tinted. This was clearly visible on the body-worn camera recordings. I accept their evidence that until they were positioned behind the SUV in the left turn lane of Brock Street South, the distance between their vehicle and the SUV prevented them from seeing the occupants of the SUV. I accept the evidence of PC Petschenig and PC Grainger that they realized the defendants were Black men when they approached the SUV after it was stopped. I accept the evidence of PC Petschenig that he first observed the skin colour of the occupants of the SUV when he approached the driver’s side of the SUV and Mr. Dyer put his window down. I accept the evidence of PC Grainger that he first saw the skin colour of the occupants of the SUV when he approached the passenger side of the SUV and illuminated the occupants of the vehicle with his flashlight, a standard officer safety procedure, and realized that the occupants were Black. I accept the evidence of both officers that they did not see the occupants of the SUV enter the vehicle in the hotel parking lot before it left the parking lot.
62The defence points to the fact that a second police vehicle pulled into the McDonald’s parking lot at 12:34:31 a.m. as evidence that the officers were affected by racial bias or stereo-typing. PC Petschenig explained that it was normal practice for a nearby cruiser to attend whenever officers conducted traffic stops at night. I accept that the arrival of the second cruiser reflected that reasonable and prudent practice.
63The defendants also submit that if the police were conducting a road safety stop they would have pulled the SUV over on Byron Street when they caught up to the SUV, or on Arthur Street or on Brock Street. Their failure to do so, it is argued, reveals that their purpose was not related to road safety. This submission fails because the evidence I accept is that the police did not catch up to and position their vehicle behind the SUV so that it could be pulled over, until the SUV entered the left turn lane on Brock Street, at the intersection of Consumers Drive. The officers then acted promptly to signal the SUV to pull over by activating their emergency lights. The officers were clear in their evidence that they did not observe any indicia of impaired driving and so considered it unnecessary to drive more aggressively in a residential neighbourhood to catch up to the SUV more rapidly. That decision strikes me as sensible, and I accept their evidence about this.
64I find that there is no evidence that illegitimate thinking about race or racial stereotypes factored into the investigation of Mr. Dyer and Mr. Young. I find that the decisions made by the police to pull over the SUV, and in relation to both defendants as the investigation unfolded, were reasonable. The officers did not engage in improper thinking. They did not use race or racial stereotypes to any degree in suspect selection or subject treatment. There was no racial profiling.
(b) Other alleged s. 9 violations
65Mr. Dyer also submits that he was arbitrarily and unreasonably detained because the police did not send him on his way after he passed the ASD test. This submission can be dismissed summarily. After Mr. Dyer passed the ASD test, PC Petschenig continued his investigation of whether Mr. Dyer was a licenced driver, which he was entitled to do given that records accessed on the police MDT indicated that Mr. Dyer did not possess a valid driver’s licence. Concurrently, PC Grainger pursued his investigation into the presence of readily accessible cannabis in the SUV, based on his observation of the grinder in the cupholder. For the police to have released an unlicenced driver with readily accessible cannabis in the vehicle onto the public highway without further investigation would have been irresponsible.
66The defence submits that the police officers conducted a pretext stop, in that they stopped the SUV and conducted the search of the SUV under the pretence that that they were conducting regulatory investigations pursuant to the provisions Highway Traffic Act and of the Cannibis Control Act, when they were in fact conducting a criminal investigation. This rendered the detention of the defendants arbitrary. This submission can also be dismissed summarily.
67Had the police invoked their regulatory investigative powers as a pretext for conducting a criminal investigation, that would amount to an unconstitutional arbitrary detention. In R. v. Mellenthin, [1992] 3 S.C.R. 615, at p. 624, the court explained:
Check stop programs result in the arbitrary detention of motorists. The programs are justified as a means aimed at reducing the terrible toll of death and injury so often occasioned by impaired drivers or by dangerous vehicles. The primary aim of the program is thus to check for sobriety, licences, ownership, insurance and the mechanical fitness of cars. The police use of check stops should not be extended beyond these aims. Random stop programs must not be turned into a means of conducting either an unfounded general inquisition or an unreasonable search.
68In this case, the police did not use their power to stop the SUV to check the sobriety and licencing status of the driver to conduct an unreasonable search. I accept the evidence of the PC Petschenig and PC Grainger about why they pulled over the SUV. I find that they decided to pull over the SUV to check the sobriety of the driver, and that information they obtained before the SUV was stopped caused them to also take steps to determine whether he was a licenced driver. I find that the only reason that their investigation of the SUV and its occupants continued was because, in the course of conducting that lawful investigation, PC Grainger saw the grinder in the cupholder, readily accessible to the driver and vehicle occupants.
69There is no evidence that the stop was a pretext stop. The evidence that I accept establishes that it was not.
E. Sections 10(a) and (b)
70The rights conferred by ss. 10(a) and 10(b) arise upon arrest or detention. Everyone has the right, when arrested or detained, to be advised of the reason for their arrest or detention (s. 10(a)). Everyone has the right, when arrested or detained, to be advised of their right to counsel, and the police have a concomitant duty to facilitate the implementation of that right (s. 10(b)).
71Mr. Dyer submits that he should have been advised of the reason for his detention and his right to counsel when the officers began to search his vehicle pursuant to their Cannabis Control Act powers. Additionally, he submits that when the police became aware that there were more than 30 grams of cannabis in the SUV, that the character of the search changed to a search pursuant to the Cannabis Act, S.C. 2018, c. 16, and he should have been advised of that, and re-read his right to counsel.
72Mr. Young submits that he was detained from the moment that the SUV was pulled over. He acknowledges that he knew the reasons for that detention because he was in a position to hear the interactions between PC Petschenig and Mr. Dyer during which Mr. Dyer was clearly told of the reasons for the stop, and was the subject of a demand that he provide a breath sample into an ASD. Mr. Young submits that after 12:34 a.m., he was not advised of the reason for his detention, or advised of his right to counsel until 12:44 a.m., and that this amounts to a breach of his s. 10(a) and s. 10(b) rights. Mr. Young submits that he should have been advised of the reasons for his detention and his right to counsel when Mr. Dyer completed providing a breath sample at 12:34 a.m. and before PC Grainger asked Mr. Dyer to show him the grinder. In the alternative, the officer should have advised Mr. Young of his right to counsel when he continued his investigation to determine whether there was more than 30 grams of cannabis in the SUV.
73Mr. Dyer and Mr. Young also allege a breach of their right to counsel on the basis that they were asked, before they had an opportunity to speak with counsel, whether the gun was real.
74Mr. Young alone submits that his right to counsel was breached because he did not have an opportunity to speak with duty counsel until 5:50 a.m., which was 5 hours and 6 minutes after his arrest.
75I will address the various submissions discreetly, but begin with a consideration of when detention, the event that triggers s. 10(a) and s. 10(b) rights, occurred.
(a) When did detention commence?
76There is no dispute in this case that the defendants were detained before they were arrested at 12:42:20. As to when they were first detained, both defendants submit that their detention began when the SUV was pulled over at 12:30:28. The Crown concedes that Mr. Dyer was detained when the SUV was directed by the police to pull over and Mr. Dyer complied with that direction. The Crown submits that Mr. Young was not detained until he was directed by PC Grainger to step out of the SUV at 12:37:10.
77Whether a passenger in a vehicle that is stopped by the police is detained requires a fact-specific inquiry: R. v. Harris, 2007 ONCA 574, 87 O.R. (3d) 214, at para. 21; R. v. Johnson, 2013 ONCA 177, 297 C.C.C. (3d) 87, at para. 34.
78As the Supreme Court of Canada explained in Le, at para. 26, “a detention exists in situations where a reasonable person in the accused’s shoes would feel obligated to comply with a police direction or demand and that they are not free to leave”. To determine when Mr. Young was detained “requires an assessment of the encounter as a whole and not a frame-by-frame dissection as the encounter unfolds”: Le, at para. 27.
79I must consider the circumstances giving rise to the encounter as they would reasonably be perceived by Mr. Young, the nature of the police conduct, including the language used, the use of physical contact, the place where the interaction occurred, the presence of others, and the duration of the encounter, and the particular characteristics and circumstances of Mr. Young, including his age, physical stature, race, and level of sophistication: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 31 and 44.
80The circumstances giving rise to the encounter as they would reasonably have been perceived by Mr. Young support the conclusion that his detention began when the SUV was pulled over. He was seated in the back seat of a vehicle that pulled over in response to police direction. Mr. Young knew, from the moment the SUV was directed to stop, that the driver, Mr. Dyer, was subject to police direction. The SUV was Mr. Young’s means of transportation during the early morning hours. While the sobriety check was conducted, PC Grainger stood outside the SUV on the passenger side, watching the vehicle occupants. While, from the perspective of the police, this was a reasonable step to take, to ensure their safety and ability to conduct the sobriety check without interruption, Mr. Young would reasonably have perceived that he had no option but to remain in the SUV.
81The nature of the police conduct involved directing a motor vehicle to stop, parking their police vehicle behind and perpendicular to the SUV, demanding that the driver provide a sample of his breath into an ASD, and requiring the driver to get out of the vehicle and provide said sample and to provide his licencing documents. The lawful nature of those directions, and the reasonable manner in which they were given, does not lessen their directory nature. Mr. Young saw and heard the directions given to Mr. Dyer, and Mr. Dyer’s compliance with those directions. Mr. Young would reasonably have believed that he had no choice but to await the outcome of the police investigation of Mr. Dyer’s sobriety and licencing status.
82While there was no direction given by the police to Mr. Young until he was directed to step out of the SUV, the interaction before that moment occurred in a sparsely occupied parking lot, late at night. He was not told by the police that he was free to leave. He had no reason to believe that he had any option but to remain in the SUV.
83Mr. Young is a Black man. He was 29 years of age at the material time. It is necessary to consider the impact race may have had on the perception of the reasonable person in the shoes of Mr. Young. I take into account the social context of race relations between the police and Black persons in our society. Mr. Young is presumed to be aware of this context: Le, at paras. 75 and 82. The history of relations between police and racialized communities, as reviewed in Le, at paras. 89-97, would have had an impact on a reasonable person in the shoes of Mr. Young. That impact would have caused that reasonable person to believe that he was not free to leave the SUV and walk away.
84I find that Mr. Young was detained from the moment the police directed the SUV in which he was riding to pull over.
(b) Was there a breach of s. 10(a)?
85Section 10(a) requires that persons detained for investigative purposes must be told, in clear and simple language, of the reasons for the detention: R. v. Mann, 2004 SCC 52, at para. 21. No precise words need be used.
86The defendants submit that when they were detained for investigative purposes the police were required to advise them of the reasons for the detention immediately. They submit that in this case, PC Grainger should have told the defendants that he was determining whether there was cannabis readily available in the SUV, and that if there was, the officers would search the SUV.
87The Crown responds that the constitutional requirement that detainees be informed of the reasons for their detention does not require that the information be provided in any particular form. The Crown submits that, at every stage of this investigation, the police told the defendants what they were doing, and thereby complied with the requirements of s. 10(b). I agree.
88A person is entitled to be informed of the reason why they are being detained, unless the circumstances are such that they know why. The reasons do not need to be expressed in technical or precise language, but must, in substance, inform the person in language that is sufficiently clear and simple to enable them to understand why they are detained: R. v. Nguyen, 2008 ONCA 49, 231 C.C.C. (3d) 541, at para. 16.
89When PC Petschenig first spoke with Mr. Dyer, he told him that he pulled him over because he had left the Hotel Royale, and that he was checking to make sure that Mr. Dyer was sober. He asked Mr. Dyer if he’d had anything to drink that night. Mr. Dyer responded that he was the designated driver and that he had consumed one beer an hour or two earlier. Mr. Dyer’s responsive answers to PC Petschenig’s questions reveal his clear understanding of what he was told and asked. This conversation occurred within easy earshot of Mr. Young.
90PC Petschenig read an ASD demand to Mr. Dyer and directed him to get out of the car to provide a sample of his breath into an ASD, again within easy earshot of Mr. Young. Mr. Dyer clearly comprehended what he was required to do.
91PC Grainger advised PC Petschenig, as the latter was retrieving his ASD, that there was a grinder in the cupholder. Mr. Dyer would have heard that. I am unsure whether that would have been audible to Mr. Young, who was still seated in the rear seat of the SUV.
92When Mr. Dyer returned to the SUV to retrieve his licencing documents, PC Grainger asked him to open the grinder. PC Grainger told him that there was a little bit of cannabis in the grinder and asked how much cannabis was in the car. He told Mr. Dyer that he wanted to make sure that there was less than 30 grams of the cannabis in the car. Mr. Dyer told him that there was probably more, and PC Grainger told him that he was going to have a quick look. The words of PC Grainger made it abundantly clear to Mr. Dyer that the reason for his investigation was to determine the quantity of cannabis in the SUV.
93Mr. Young would have heard the exchange between Mr. Dyer and PC Grainger through the open front passenger door.
94After PC Grainger asked Mr. Dyer how much cannabis was in the car, Mr. Dyer leaned into the driver’s seat area through the open driver’s door and reached into the rear floorboard area, where Mr. Young was seated, and pulled a baggie containing a small amount of cannabis from a backpack. PC Grainger asked Mr. Dyer if there was more cannabis in the SUV, and he responded that there probably was a little more. The reason for their detention was readily apparent to both Mr. Dyer and Mr. Young.
95At 12:37 a.m., PC Petschenig advised PC Grainger and Mr. Dyer that he still needed to see Mr. Dyer’s driver’s licence. The dual nature of the investigation by the two officers was readily apparent. PC Grainger at this time directed Mr. Young to step out of the vehicle so that the police could make sure that he did not have any marijuana. While PC Petschenig sought information regarding the status of Mr. Dyer’s driver’s licence, PC Grainger told all three occupants of the SUV that they were going to search the SUV to make sure there was no cannabis there. Mr. Dyer responded by saying that there was cannabis, and he proceeded to pull another bag of apparent cannabis out of a backpack.
96PC Grainger testified that he did not advise Mr. Dyer and Mr. Granger when Mr. Dyer produced a bag of apparent cannabis that appeared to weigh more than 30 grams that he was then investigating an offence under the Cannabis Act, which permits enforcement of unlawful cannabis possession by way of a ticket where the amount possessed is between 30 and 50 grams, because he had no interest in charging anyone with that ticketable offence, and would have released the men with a warning if no more cannabis was found. PC Grainger was not investigating a Cannabis Act offence, and therefore had no reason to tell Mr. Dyer and Mr. Grainger that he was. In any event, it was plain to Mr. Dyer and Mr. Young that PC Grainger was searching the vehicle to determine how much cannabis was in the vehicle, and that they were detained for that purpose, as well as for the purpose of PC Petschenig’s investigation of the status of Mr. Dyer’s driver’s licence.
97The officers did explain the reasons for their detention to Mr. Dyer and Mr. Young. They did so in clear and simple language that Mr. Dyer and Mr. Young plainly understood. As events unfolded, and the gun was found, and the men were arrested, the police updated them of the reasons for their arrest. When the cocaine and scales were found, the police again updated the men about the additional reasons for their arrest.
98Throughout their dealings with Mr. Dyer and Mr. Young, the police officers complied with their obligation to promptly inform them of the reasons for their detention and arrest. There was no breach of s. 10(a) of the Charter.
(c) Was there a breach of the informational component of s. 10(b)?
99Section 10(b) of the Charter requires the police to inform detained and arrested persons of their right to retain and instruct counsel without delay.
100Mr. Young submits in his factum that the police were required to advise them of their right to counsel at the conclusion of the impaired driving investigation. Mr. Dyer, in his factum, adopts this position. In oral submissions, counsel clarified that Mr. Young and Mr. Dyer should have been told of their right to retain counsel after Mr. Dyer completed the ASD test, and before PC Grainger asked Mr. Dyer to show him the grinder.
101The Crown responds that PC Grainger’s direction to Mr. Dyer to show him the grinder, and to thereafter ask him if there was more cannabis in the SUV was a lawful exercise of his authority conferred by the CCA, which is similar in character to the police powers to investigate drinking drivers pursuant to the Criminal Code and the Highway Traffic Act provisions that prohibit the transportation of open liquor in a vehicle. The well-established suspension of s. 10(b) rights during a roadside investigation into the sobriety of a driver, the licencing of the driver, and the safety of the vehicle should also apply to a roadside investigation into whether cannabis is readily available to the occupants in a vehicle.
102It is well-established that the exercise of the right to counsel is incompatible with the operational requirements inherent in making a demand of a motorist to provide a sample of their breath into an ASD or to perform a roadside sobriety test, and that those operational requirements implicitly create a reasonable limit, prescribed by law, that is justified under s. 1 of the Charter. However, the suspension of the right to be informed of the right to counsel in such circumstances must be brief, and is reasonable only to the extent that the suspension of the right can be justified by the operational requirements of the exercise of the lawful police powers to stop a motor vehicle for road safety purposes: Harris, at para. 47; R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3, at paras. 52-60.
103Section 12(3) of the CCA provides a police officer in Ontario, who has reasonable grounds to believe that cannabis is contained in a vehicle, unless it is in its original packaging and has not been opened, or is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle, with the power to enter and search the vehicle and search any person found in it without a warrant. The constitutional validity of this search power has not been challenged in this case.
104Apart from the nature of the substance involved, the search power conferred by s. 12 of the CCA is not materially different from that conferred by s. 32 of the Liquor Licence Act (LLA) in relation to readily available liquor in a motor vehicle:
32 (1) No person shall drive or have the care or control of a motor vehicle as defined in the Highway Traffic Act …, whether it is in motion or not, while there is contained in the vehicle any liquor, except under the authority of a licence or permit.
Exception
(2) Subsection (1) does not apply if the liquor in the vehicle,
(a) is in a container that is unopened and the seal unbroken; or
(b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle.
(5) A police officer who has reasonable grounds to believe that liquor is being unlawfully kept in a vehicle … may at any time, without a warrant, enter and search the vehicle … and search any person found in it.
105The provisions of the CCA and the LLA relating to the transportation of alcohol and cannabis respectively, are directed at road safety and preventing the risk of marijuana and alcohol use by the driver or other occupants of the vehicle. Society requires and expects protection from intoxicated and dangerous drivers: R. v. Sappleton, 2021 ONSC 430, [2021] O.J.No. 220, at para. 50. Possession of readily accessible liquor or cannabis in a motor vehicle is a road safety concern. The search of a vehicle and the persons found in the vehicle for such items occurs in the same operational environment as a search of a driver, whether by ASD or a field sobriety test, for evidence of alcohol consumption exceeding the legal limit, or for impairment by either alcohol or drugs.
106Just as the operational requirements of roadside sobriety testing implicitly create a reasonable limit on s. 10(b) rights, prescribed by law, that is justified under s. 1 of the Charter, the operational requirements of the CCA search power implicitly create a similar reasonable limit on s. 10(b) rights, prescribed by law, that is justified under s. 1 of the Charter: R. v. Graham, 2018 ONSC 6718, [2018] O.J. No. 5992, at paras. 51-52: R. v. Palmer, 2023 ONSC 4842, [2023] O.J. No. 3730, at para. 79; R. v. Tully, 2022 ONSC 1852, [2022] O.J. No. 1455, at paras. 150-155; R. v. Kanneh, 2022 ONSC 5413, [2022] O.J. No. 4709, at para.60; R. v. Balkaran, 2024 ONCJ 144, [2024] O.J. No. 1300, at paras. 120-128.
107The facts of this case are similar those in R. v. Stonefish, 2019 ONCA 914, [2019] O.J. No. 5966. In Stonefish, the Court of Appeal considered the constitutional validity of a vehicle search that began as a search authorized by the Highway Traffic Act to investigate the sobriety and licencing status of the driver. The search became a search for marijuana after the officers saw a small amount of marijuana in a marijuana grinder in a cupholder in the car, smelled the odour of marijuana, and heard the driver acknowledge that he had smoked some marijuana. The Court of Appeal rejected as “too granulated” a submission that when the situation changed from a routine traffic stop to an active criminal investigation, the police should have immediately advised the detainee of his Charter rights and refrained from asking questions of him.
108It is important to recall that PC Petschenig’s investigation of the sobriety and licencing status of Mr. Dyer continued concurrently with PC Grainger’s investigation of the cannabis in the SUV that was triggered by the presence of the grinder in the cupholder. The officers did not pivot from a regulatory investigation to a criminal investigation. The investigations in this case evolved incrementally and concurrently. As in Stonefish, the fact that there was a small amount of marijuana in a grinder in the cup holder led quite naturally to a search for more marijuana elsewhere in the car.1
109The detention of Mr. Dyer and Mr. Young in the course of a roadside regulatory investigation of matters related to road safety and licencing requirements during which their s. 10(b) right to be advised of their right to counsel was suspended, did not take on the quality of a criminal investigation that triggered a requirement to advise Mr. Dyer and Mr. Young of their s. 10(b) rights until the gun was found. When the gun was found, the officers immediately and correctly advised them of the reason for their detention, and of their right to counsel. The duration of their detention before they were advised of their right to counsel was about 13 minutes, from the time the police activated their emergency lights, to the time the rights to counsel were read. In the interim, the police were faced with a dynamic situation, that they were prepared to resolve without laying charges, and during which they were prepared to send the occupants of the SUV on their way if a licenced driver was available to drive the SUV, and with a caution in relation to possessing more than 30 grams of cannabis, until the gun was found.
110In the circumstances of this case, the police did not infringe Mr. Dyer’s and Mr. Young’s right to be informed of their right to counsel on detention, by not providing that information to them before 12:43 a.m., when they were arrested.
(d) Was there a breach of the implementation component of s. 10(b)?
111Mr. Young alone submits that the delay in affording him an opportunity to speak with duty counsel breached his right to retain and instruct counsel without delay.
112Mr. Dyer submits that the implementation component of s. 10(b) was breached when he asked PC Petschenig whether he could contact his girlfriend to obtain a lawyer’s number, and PC Petschenig told him that he could not.
113Both Mr. Young and Mr. Dyer submit that their s. 10(b) rights were infringed when the police asked them, before they had an opportunity to speak with counsel, whether the gun was real, thus failing to comply with their duty to hold off questioning until the arrested persons had an opportunity to speak with counsel.
114The Crown submits that the delay experienced by Mr. Young in speaking with duty counsel does not amount to a breach of s. 10(b) because the police made reasonable efforts to put him in touch with duty counsel, and that the failure of duty counsel to call back in a timely way does not lie at the feet of the state. The Crown concedes that Mr. Dyer’s s. 10(b) right was breached when PC Petschenig told him that he could not contact his girlfriend to obtain a lawyer’s number. The Crown acknowledges that when the officers asked Mr. Dyer and Mr. Young whether the gun was real, that could elicit an incriminating answer, although if an answer was provided it would not be admissible at trial.
(i) Did the delay in facilitating Mr. Young’s consultation with duty counsel breach s. 10(b)?
115At 12:44 a.m., after the gun was found, Mr. Young was advised of his right to counsel. When asked if he wanted to speak with a lawyer then, he responded “no”. After the cocaine was found by the police, and Mr. Young was re-read his right to counsel, he said that he did not want to talk to a lawyer then either. PC Grainger reminded him that there would be free duty counsel available to him at the police station, and Mr. Young said that that was what he wanted to do.
116Mr. Young was kept at the scene longer than the other arrested persons because he was seated in the rear of PC Petschenig’s vehicle. Other police vehicles had been summoned to transport Mr. Dyer and the female front seat passenger to the police station, while PC Petschenig and PC Grainger completed their duties at the scene. At 1:13 a.m., recognizing that Mr. Young’s transport to the police station was delayed, PC Petschenig spoke to Mr. Young and offered him the use of the Sergeant’s cell phone to call counsel. Mr. Young declined that opportunity.
117The delay in facilitating Mr. Young’s ability to speak with counsel at the scene did not amount to, or contribute to, a breach of the police obligation to facilitate his right to speak with counsel immediately upon his arrest. As Fairburn, A.C.J.O. explained in R. v. Keshavarz, 2022 ONCA 312, 413 C.C.C. (3d) 263 at paras. 72-74, the need to facilitate an accused’s ability to speak with counsel in a timely way, and the need to protect the safety of the public and preserve evidence, are both laudable goals that may, in some circumstances, collide. In such cases,
the law permits a delay in the facilitation of the right to counsel, but only where the police have turned their minds to the specific circumstances of the case and concluded “on some reasonable basis, that police or public safety, or the need to preserve evidence, justifies some delay in granting access to counsel”: Rover, at para. 27: Keshavarz, at para. 74.
118Officers Petschenig and Grainger were required to seize and preserve the drugs and gun that were found in the SUV. To do that in a way that maintained the integrity of that evidence, and to do that safely, required them to do their work in a particular and methodical fashion. They did that. They worked efficiently. They realized that their work impacted Mr. Young’s ability to speak with counsel, and so offered him the use of their sergeant’s cell phone to call a lawyer. He declined that opportunity. The officers turned their minds to the specific circumstances they were presented with, and were justified in delaying Mr. Young’s ability to contact counsel. Notwithstanding that justification, they were appropriately diligent in affording Mr. Young an opportunity to contact counsel at the scene. No Charter infringement occurred before Mr. Young arrived at the police station.
119At 1:42 a.m., at his booking, Mr. Young asked to speak with duty counsel. PC Petschenig placed a call to duty counsel for Mr. Young at 1:57 a.m., and left a message asking duty counsel to call back. At 4:31 a.m., PC Grainger spoke with Mr. Young to advise him of all charges he was then facing and re-advised him of his right to counsel. At that time, PC Grainger learned that Mr. Young had not yet spoken with duty counsel. PC Grainger was unable to recall with any certainty whether he placed another call to duty counsel, or whether that was done by PC Petschenig or by the cell supervisor, but he was sure that a second call was made to duty counsel.
120Mr. Young spoke with duty counsel when duty counsel called back at 5:50 a.m.
121Section 10(b) of the Charter guaranteed Mr. Young the right to retain and instruct counsel without delay. He wanted to speak with counsel, and the police were required to make reasonable efforts to connect him with his counsel of choice: R. v. Edwards, 2024 ONCA 135, 413 C.C.C. (3d) 263, at para. 36. In Edwards, at para. 38, Doherty J.A. explained that, notwithstanding some cases suggesting otherwise, “these authorities do not intend to, and more importantly could not as a matter of law, depart from the “reasonable diligence” standard repeatedly accepted in the Supreme Court of Canada jurisprudence”. Doherty J.A. concluded at para. 42 that “[t]he purpose of s. 10(b) is best served by testing police compliance with their requirements against the reasonable diligence standard.”
122Mr. Young’s counsel of choice was duty counsel. After his arrest, at 12:44 a.m., Mr. Young told PC Grainger that he did not want to call a lawyer then. He declined an opportunity to call counsel from the scene at 1:13 a.m., preferring to wait until he arrived at the police station. On his arrival at the police station, after he was asked whether he wished to speak with counsel and he said that he wanted to speak with duty counsel, the police acted with reasonable diligence in placing a call to duty counsel on his behalf.
123What the police did not anticipate is that duty counsel would not call back promptly. There is no evidence as to why duty counsel did not call back promptly. There is no evidence as to whose responsibility it was to monitor return calls from duty counsel, or if anyone assumed that responsibility.
124PC Grainger spent his time between his return to the police station and about 4:30 a.m. dealing with the seized property and conferring with another officer about the charges to be laid against Mr. Young. PC Grainger transferred custody of the gun, the magazine, and the round from the chamber of the gun to Det. Cst. Lee, who conducted further investigation in relation to the gun’s serial number, and determined that it was stolen. PC Grainger weighed the seized apparent controlled substances.
125At about 4:30 a.m., PC Grainger removed Mr. Young from his cell and brought him to an interview room to advise him that he would face an additional charge of possession of stolen property. He re-read to Mr. Young his right to counsel, because Mr. Young’s jeopardy had changed. PC Grainger was surprised to learn from Mr. Young that he had not yet spoken to a lawyer. PC Grainger confirmed with the sergeant in charge of the cells that duty counsel had not yet called for Mr. Young. PC Grainger remained with Mr. Young until 5:30 a.m., waiting for duty counsel to call back. Another call to duty counsel was placed at about 5:30 a.m. PC Grainger could not recall whether he placed that call, or whether it was made by PC Petschenig, or by a cell supervisor. Duty counsel returned that call at 5:50 a.m. and Mr. Young was then provided an opportunity to speak with duty counsel.
126The police were reasonably diligent in facilitating Mr. Young’s ability to speak with duty counsel until after the initial call was made to duty counsel at 1:57 a.m. It is apparent from the fact that duty counsel called for Mr. Dyer at 2:58 a.m., and that duty counsel called for Mr. Young about 20 minutes after they were called at 5:30 a.m. that something was amiss in relation to the message left for duty counsel to call for Mr. Young. No one adverted to this problem, or did anything about it, until PC Grainger became aware of it at 4:30 a.m. Then, rather than placing another call to duty counsel, PC Grainger elected to wait until 5:30 a.m., when another call was placed.
127By neglecting to follow up with duty counsel after Mr. Young expressed his wish to speak with duty counsel, and duty counsel did not call back within a reasonable time, the police were not reasonably diligent in facilitating Mr. Young’s ability to speak with duty counsel without delay. This is particularly so, given that there was a delay, albeit necessary in the circumstances of this case, in transporting Mr. Young to the police station. Because of this lack of diligence, Mr. Young was required to wait more than four hours between the time he asked to speak with duty counsel at the station, and the time that he spoke with duty counsel. This amounted to an infringement of Mr. Young’s right to retain and instruct counsel without delay.
(ii) Did the failure of PC Petschenig to permit Mr. Dyer to obtain assistance to retain counsel breach s. 10(b)?
128The right to counsel includes the right to contact counsel of choice as well as the right to contact a third party to access counsel of choice: R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, at para. 86; R. v. B.(J.), 2015 ONCA 684, at para. 14.
129PC Petschenig candidly acknowledged in his evidence that when Mr. Dyer asked to speak to his girlfriend to get a lawyer’s name, he should have told Mr. Dyer that he could facilitate Mr. Dyer’s ability to talk to his girlfriend.
130Mr. Dyer submits, and the Crown concedes, that Mr. Dyer’s s. 10(b) right was infringed when PC Petschenig wrongly told him that he could not speak with his girlfriend to get a lawyer’s name.
(iii) Did the police infringe the arrestees’ s. 10(b) rights by asking whether the gun was real?
131Once Mr. Dyer and Mr. Young were arrested, the police had a duty to hold off questioning or otherwise attempting to elicit evidence from them until after a reasonable opportunity to reach a lawyer had been provided, or until they unequivocally waived their right to speak with a lawyer: R. v. McCrimmon, [2010] 2 S.C.R. 402, [2010] S.C.J. No. 36, 2010 SCC 36, at para. 17; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 38 and 60. This duty also prevented PC Petschenig and PC Grainger from interacting with Mr. Dyer and Mr. Young, short of questioning, in a manner that that triggers a response from the accused -- i.e., something that is a "functional equivalent" of an interrogation: Pileggi, at para. 71.
132Both PC Petschenig and PC Grainger asked Mr. Dyer and Mr. Young whether the gun was real. They received no response. There is no evidence to be excluded that flowed from their questions. Their questions do, however, form part of the context in which the admissibility of the seized evidence is to be considered.
133PC Grainger testified that he asked if the gun was real to help him decide how to handle the gun safely, and not to elicit evidence for purpose of incriminating Mr. Dyer and Mr. Young. I accept his evidence about this. The questions were asked immediately after the gun was found, and before the officers had an opportunity to make it safe. PC Grainger testified that he were surprised to find the gun. I accept his evidence about all of this.
134The questions about whether the gun was real were not the functional equivalent of an interrogation. The officers’ purpose was not to elicit incriminating evidence. It was their job to make the weapon safe. Their purpose was to receive information that could affect their handling of what was a very intimidating-looking weapon. I conclude that the police did not infringe Mr. Dyer’s and Mr. Young’s s. 10(b) rights by asking them whether the gun was real. I note that neither officer asked any other questions of Mr. Dyer or Mr. Young about the seized evidence after they were advised of their right to counsel and before they spoke with counsel.
F. Unreasonable search and seizure
135The search of the SUV was conducted without a search warrant, and therefore the Crown bears the onus to demonstrate that the search was Charter-compliant. A warrantless search is presumptively unreasonable and contrary to s. 8 of the Charter, which guarantees to everyone “the right to be secure against unreasonable search or seizure”. In the absence of a warrant, the Crown must establish on a balance of probabilities that the search was authorized by law, that the law itself is reasonable, and that the manner in which the search was carried out was reasonable: R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 21; R. v. Tim, 2022 SCC 12, 467 DLR (4th) 389, at paras. 45-46.
136The Crown submits that the search of the SUV was authorized by s. 12 of the CCA, which is a reasonable law, and that the manner in which the search was carried out was reasonable.
137The defendants submit that s. 12 of the CCA requires that before a police officer can conduct a search of a vehicle and the persons in the vehicle for cannabis, the officer must have reasonable grounds to believe that there is cannabis readily available in the vehicle, and that PC Grainger did not have reasonable grounds to believe that there was cannabis readily available in the vehicle when he saw the grinder, because the grinder might have been empty. Since the search of the grinder was not authorized by s. 12 of the CCA, the Crown has not established that the search was authorized by law, and the search of the vehicle infringed s. 8 of the Charter.
12 (1) No person shall drive or have the care or control of a vehicle or boat, whether or not it is in motion, while any cannabis is contained in the vehicle or boat.
Exception
(2) Subsection (1) does not apply with respect to cannabis that,
(a) is in its original packaging and has not been opened; or
(b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle or boat. 2018, c. 12, Sched. 1, s. 12(1)
Search of vehicle or boat
(3) A police officer who has reasonable grounds to believe that cannabis is being contained in a vehicle or boat in contravention of subsection (1) may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it.
139I believe PC Grainger’s evidence that he initiated a search of the SUV after he saw a marijuana grinder in the front seat cupholder in the console between the driver’s and passenger’s seats. There is no dispute in the evidence that the grinder was there. There is no dispute that the sole use of that grinder was to grind marijuana so that it could be more easily consumed. PC Grainger’s words and actions as captured on the body-worn camera are entirely consistent with his evidence as to his state of mind when he saw the grinder. Whether PC Grainger asked Mr. Dyer to show him the grinder and its contents, or whether he had reached into the vehicle himself to retrieve and examine the grinder is of no moment. He was entitled to take either course of action under Section 12(3) of the CCA because he subjectively believed that the presence of the grinder indicated that cannabis was contained in the grinder, and that the cannabis contained therein was readily available to all persons in the vehicle, and his belief was objectively reasonable.
140PC Grainger’s grounds for his belief were objectively reasonable because the evidence establishes that the grinder was an implement with a very specific function: it was designed and used to consume marijuana. There would be no reason to have the grinder in the SUV, within easy reach of the driver and passengers, unless there was cannabis in the vehicle. Its presence in the cupholder of the SUV provided objectively reasonable grounds to believe that cannabis was contained in the vehicle. PC Grainger’s decision to ask Mr. Dyer to show him the grinder was the least intrusive way for him to confirm whether it contained marijuana and how much it contained.
G. Section 24(2)
141The Crown, reasonably, does not argue that, if any Charter infringement is found, that the seized evidence was not “obtained in a manner” that infringed the Charter rights of the defendants. The “obtained in a manner” threshold for the application of s. 24(2) of the Charter will be surpassed where the connection between the breach and the discovered evidence is causal, temporal, or contextual, or any combination of these three connections, as long as the connection is not “too tenuous or too remote”: R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 72. While there was no causal connection between the discovery of the evidence and the subsequent right-to-counsel infringements, those matters were temporally and contextually connected.
142It remains to consider whether the defendants have established, on a balance of probabilities, that, having regard to all the circumstances, the admission of the seized items into evidence would bring the administration of justice into disrepute, by applying the three factors identified in Grant: R. v. Griffith, 2021 ONCA 302, [2021] O.J. No. 2514, at para. 51.
(a) The seriousness of the Charter-infringing state conduct
143This factor requires that I consider whether there has been misconduct from which the court should dissociate itself, situating the conduct on a scale of culpability and considering surrounding circumstances that exacerbate or attenuate its seriousness: R. v. McColman, 2023 SCC 8, 423 C.C.C. (3d) 423, at paras. 57-59.
144The more severe and deliberate the state conduct, the more serious the breach, and the more the court will be required to dissociate itself from the state conduct by excluding the evidence linked to that conduct: see Grant, at para. 72; Tim, at para. 82.
145I have found that Mr. Young’s right to speak with counsel was infringed when duty counsel did not call back within a reasonable time, and the police did not follow up to determine what was amiss and therefore were not reasonably diligent in facilitating Mr. Young’s right to speak with counsel, delaying Mr. Young’s ability to speak with duty counsel.
146I have found that Mr. Dyer’s right to be informed of his right to counsel was infringed when PC Petschenig did not let him know that he could obtain the assistance of his girlfriend in locating a lawyer.
147The Charter-infringing conduct in this case does not reflect a systemic problem. Rather, the problems were a product of fact-specific oversight, and not systemic or intentional breaches.
148There is no pattern of Charter-infringing conduct in this case. The police officers advised Mr. Dyer and Mr. Young of the reasons for their detention and then their arrest, updating them as the circumstances, and their jeopardy, changed. The officers turned their minds to, and planned for, the transportation of the three arrestees to the police station to facilitate their contact with counsel, ensuring that those who requested immediate contact with counsel were transported first. When Mr. Young was detained at the scene longer than the others, they made arrangements for him to contact counsel at the scene.
149PC Petschenig’s failure to tell Mr. Dyer that he could obtain assistance from his girlfriend in contacting counsel was a mistake. I believe his evidence about that. I note that when Mr. Young asked to see his cell phone, to see who had been calling him in case it was someone who could help him, PC Petschenig showed him his phone to display the recent calls. In all other respects, PC Petschenig acted diligently to ensure that Mr. Dyer was informed of his right to speak with a lawyer and to facilitate his ability to do that. PC Petschenig’s failure to tell Mr. Dyer about his ability to obtain assistance from his girlfriend occurred in the course of a dynamic, rapidly evolving situation, and PC Petschenig readily acknowledged his error. I have no doubt that PC Petschenig has learned from it. Dissociation is therefore less of a concern than it might otherwise be
150The failure of the police to follow up when duty counsel did not call back for Mr. Young appears to have been inadvertent. There is no evidence about why duty counsel did not return the call for Mr. Young in a timely way, or to suggest that the police had any reason to be concerned that duty counsel would not call back in a timely manner, as had occurred in relation to Mr. Dyer. While PC Grainger could, and should, have called sooner, when the delay became apparent to him, another call was placed to which duty counsel responded. The police efforts to put Mr. Young in touch with duty counsel fell short, but there is no evidence that this was anything but a one-off problem. The police did not set out to intentionally delay Mr. Young’s right to speak with counsel and there was no advantage to the investigation or prosecution in doing so. These circumstances lessen the need for the court to disassociate itself from the deficient efforts to get duty counsel on the line for Mr. Young after the initial call was placed.
151Apart from the delay at the station in facilitating Mr. Young’s ability to speak with counsel, and PC Petschenig’s failure to let Mr. Young know that he could assist him to obtain information from his girlfriend about a lawyer, the police otherwise demonstrated their awareness of their obligations under s. 10(b) of the Charter, and acted diligently to fulfill those obligations.
I find the s. 10(b) infringements that occurred in this case to be of moderate seriousness. These infringements pull slightly in favour of exclusion.
(b) The impact on Mr. Dyer’s and Mr. Young’s Charter-protected interests
152The second Grant factor requires me to evaluate the extent to which the breaches actually undermined the interests protected by the right infringed: Grant, at para. 76; Tim, at para. 90. To make that determination, I must consider the interests that are engaged by s. 10(b) of the Charter and then consider the “degree to which the violation impacted those interests”: Grant, at para. 77.
153The breach of Mr. Dyer’s s. 10(b) right to obtain the assistance of a third party to consult with counsel of choice did not, I find, seriously impact his ability to obtain assistance in regaining his liberty or obtain protection against the risk of involuntary self-incrimination: Suberu, at paras. 40-41. There is no application before me to exclude any statement made by Mr. Dyer, and I infer that no incriminating statement was made. There is no evidence before me that his liberty would have been obtained any sooner had the breach not occurred.
154The breach of Mr. Young’s s. 10(b) right to consult with counsel without delay similarly did not seriously impact his ability to obtain assistance in regaining his liberty or obtain protection against the risk of involuntary self-incrimination: Suberu, at paras. 40-41. There is no application before me to exclude any statement made by Mr. Young, and I infer that no incriminating statement was made. There is no evidence before me that his liberty would have been obtained any sooner had the breach not occurred. It was always the intention of the police to put Mr. Young in touch with counsel, and he knew that: Pileggi, at paras. 122-125.
155While the fruits of a s. 8-compliant seizure can be excluded under s. 24(2) of the Charter, provided that the fruits of that seizure are causally, contextually, or temporally connected to another Charter breach, I may consider the lack of a causal connection in calibrating the seriousness of the Charter-infringing conduct.: R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 87; Griffith, at paras. 25, 33, 48, and 54. The absence of a causal connection is a factor “that weighs against the exclusion of evidence resulting from a s. 10(b) breach”: R. v. Do, 2019 ONCA 482, [2019] O.J. No. 3018, at para. 12; Keshavarz, at paras. 112-115; R. v. DeSilva, 2022 ONCA 879, 421 C.C.C. (3d) 177, at para. 97; R. v. Hamouth, 2023 ONCA 518, at para. 54.
156There was no causal connection between the breaches and the discovery of the loaded, ready-to-fire, handgun and the drugs that were seized from the SUV. The gun and drugs were seized before either s. 10(b) breach occurred. This lessened the impact of the breaches on the defendant’s Charter-protected interests.
157To situate the impact of the breach of each of the accused’s Charter-protected interests on a continuum I have found helpful, and relied upon, the decision of the Ontario Court of Appeal in Griffith, wherein the Court, at paras. 73-75, reviewed other cases where infringements of the right to counsel occurred after evidence was seized and the exclusion of that evidence was sought under s. 24(2). While each case is different, the impact of the breaches in this case is somewhat comparable to the impacts in R. v. Hobeika, 2020 ONCA 750, 153 O.R. (3d) 350, Pileggi, and Griffith, in which the impacts of the s. 10(b) breaches on the appellants’ Charter-protected interests were not so serious, in all the circumstances of those cases, as to require exclusion of the evidence. See also: Keshavarz and DeSilva.
158The impact of the breaches on the Charter-protected interests of Mr. Dyer and Mr. Young was not insignificant. Those impacts pull in favour of exclusion of the seized evidence, but the pull is not strong.
(c) Society’s interest in adjudication of this case on the merits
159The third Grant factor strongly favours the admission of the evidence in this case. The evidence is reliable physical evidence. The evidence is crucial to the Crown’s case. The charges are most serious and engage significant public safety concerns. The admission of the evidence in this case is necessary to serve the truth-seeking function of the trial.
(d) Balancing
160The Charter-infringing conduct of the police in this case was situation-specific. The evidence sought to be excluded was seized in a Charter-compliant manner. The officers generally conducted themselves professionally and demonstrated their commitment to fulfilling their s. 10(b) obligations. They made mistakes. Apart from those mistakes, they conducted this investigation in an exemplary manner. Excluding the evidence would serve to punish the police for their mistakes, and sacrifice the public interest in an adjudication of these very serious charges that implicate public safety by excluding very reliable evidence that was seized before the Charter breaches occurred.
161Balancing the factors and considering all the circumstances of this case, the evidence should not be excluded under s. 24(2) of the Charter. I find that exclusion of the gun, drugs, and other evidence seized from the SUV is not necessary to maintain public confidence in the administration of justice. The admission of the evidence would not damage the long-term repute of the administration of justice: McColman, at paras. 69-71, 73.Rather, to exclude the evidence would undermine that public confidence.
162Finally, Crown counsel acknowledged in his submissions that questions asked by the police during the investigation of Mr. Dyer’s sobriety and licencing status, and during PC Grainger’s CCA investigation, elicited answers that could have an incriminating aspect. While those answers were properly considered on this application to exclude the seized evidence, they are not admissible to prove guilt: R. v. Milne (1996), 28 O.R. (3d) 577 (Ont. C.A.), leave to appeal refused, [1996] 3 S.C.R. xiii; Orbanski, at para. 58. Accordingly, the Crown will not lead those statements at trial.
Released: September 20, 2024
COURT FILE NO.: 23-16121 DATE: 2024-09-20
ONTARIO SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING – and – JUSTIN DYER and IVOR SHAWN YOUNG
REASONS FOR JUDGMENT
Justice J. Speyer
Released: September 20, 2024
1 The investigation in Stonefish was conducted before the implementation of the CCA and the decriminalization of cannabis possession in defined circumstances. Mr. Stonefish was thus arrested for possession of a small amount of marijuana and his vehicle was searched incident to that arrest, However, I do not consider that to be a material distinction in relation to the issue of whether s. 10(b) rights are engaged during the vehicle search.