COURT FILE NO. CR-23- 219 DATE: November 10, 2024

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING D. Mangat, for the Crown Respondent

– and –

DYLAN DLAMINI, BRANDON VIRGO AND KHIBANT WRIGHT R. Fedorowicz for D. Dlamini, C. Hannak for B. Virgo, and H. Hussain for K. Wright Applicant / Accused

HEARD: September 9-11, 2024

RULING: PRE-TRIAL CHARTER APPLICATION

L. Shaw J.

Introduction

[1] The applicants are charged with eleven firearm offences as a result of two firearms and ammunition found following a search of a vehicle in which they were occupants. The search was conducted pursuant to s. 12(3) of the Cannabis Control Act, 2017, S.O. 2017, c. 26, Sched. 1 (“CCA”).

[2] The applicants argue that the police did not have reasonable grounds to search them or the vehicle and therefore the search violated their s. 8 Charter right to be free from unreasonable search or seizure, and their s. 9 Charter right not to be arbitrarily detained. They also argue that there was an unreasonable delay in informing them of the reason for their detention and providing them with their rights to counsel in violation of s.10(a) and (b) of the Charter.

[3] As a result of these breaches, the applicants argue that evidence seized from the vehicle should be excluded pursuant to s. 24(2) of the Charter. The evidence which they seek to exclude includes a Glock 26 firearm plus magazine and bullets, a Glock 22 firearm plus magazine and bullets, a Rudsak side bag, a Champion fanny pack, and cannabis found in the vehicle. The applicants also seek to exclude as evidence a stun gun, duct tape, ski mask, and zip ties found in the trunk of the vehicle.

[4] The Crown argues that there were reasonable grounds to conduct the search and therefore there was no breach of either s. 8 or 9 of the Charter. The Crown also argues that there were no breaches of s. 10(a) and (b) as any delay in informing the applicants of the reason for their detention was justifiable on the basis of officer safety and that the applicants were promptly informed of their rights to counsel upon their arrest.

[5] As a general overview, the vehicle, driven by the applicant, Mr. Dlamini, was stopped by OPP officer PC Sultan on August 10, 2022 on Highway 410 for a violation under the Highway Traffic Act, R.S.O. 1990, c. H.8. As a result of detecting the smell of burnt cannabis from the vehicle and observations of what he described as cannabis residue in the vehicle, PC Sultan called for officer assistance to conduct a search of the applicants and the vehicle pursuant to the CCA. Following the arrival of two other officers, the applicants were removed individually from the vehicle; PC Sultan conducted a pat down search of each of them. A second officer, PC Yeboah, searched the vehicle and found a weapon in a black satchel on the floor of the front passenger seat. The applicants were arrested at that point and read their rights to counsel and caution. Following the discovery of a second firearm in a backpack on the floor in the rear passenger seat, the applicants were again arrested and read their rights to counsel and caution.

[6] The applicants are three young Black men. While the application for Mr. Dlamini alleged racial bias, no questions were asked of the officers in connection with that allegation and counsel advised it was not being pursued.

Issues to be Decided

[7] The issues to be decided on this application are as follows:

i) Has the Crown proven, on a balance of probabilities, that the warrantless search of the vehicle and satchel found on the floor of the front passenger seat pursuant to the CCA was reasonable?

ii) Was the delay in informing the applicants of the reason for their detention justifiable?

iii) Were the applicants informed of and given the right to retain and instruct counsel without delay?

iv) If these constitutional rights were violated, would the admission of the evidence seized from the vehicle at trial bring the administration of justice into disrepute? In other words, should the evidence be excluded?

[8] The reliability and credibility of the two officers who testified is central to this application. These reasons will address why I have reliability concerns and that, as a result, I find that the Crown has not satisfied its onus to prove, on a balance of probabilities, that the search was reasonable. There was therefore a breach of both s. 8 and 9 of the Charter.

[9] I do not find a breach of either ss. 10(a) or (b). The delay in informing the applicants of the reason for their detention and then providing them with rights to counsel was reasonably justifiable given the circumstances of the roadside stop.

[10] As a result of my findings, and analysis under s. 24(2) of the Charter, while the ss. 8 and 9 breaches were serious, I am satisfied that the evidence seized should not be excluded.

Review of the Evidence

i) The Vehicle Stop PC Sultan’s Evidence

[11] PC Sultan was a relatively new and inexperienced officer at the time of this traffic stop. He graduated from police college in December 2020 and the OPP academy in March 2021. He was assigned to a detachment where he worked with another officer who coached him for four to six months. At the time of this traffic stop, he had been working on his own for about one year. He has now been with the Ontario Provincial Police for four years.

[12] PC Sultan initiated a traffic stop of the applicants’ vehicle at 7:50 pm on August 10, 2022 as it travelled north on Highway 410. The vehicle, a 2021 Honda Civic, was driven by Mr. Dlamini. PC Sultan initiated the stop as he could not see in the vehicle as the windows were tinted too dark in violation of the HTA. Before he initiated the stop, he ran a query of the vehicle’s licence plate to determine its ownership; it was a leased vehicle registered to a numbered company. PC Sultan activated the exterior lights on his cruiser and the applicants’ vehicle came to a stop on the left shoulder of Highway 410, just south of Queen St. PC Sultan stopped his cruiser behind the applicants’ vehicle. No issue is taken with this initial stop.

[13] After the vehicle stopped, PC Sultan exited his cruiser and approached the driver side of the vehicle. Mr. Dlamini partially rolled down the driver window. PC Sultan requested that he fully roll all the windows down; Mr. Dlamini complied. At that time, PC Sultan observed two other passengers in the vehicle whom he had not seen prior to the stop. Mr. Wright was sitting in the front passenger seat and Mr. Virgo was in the rear passenger seat.

[14] PC Sultan told Mr. Dlamini the reason for the stop under the HTA and asked for his licence and insurance. Mr. Dlamini complied and handed him the documentation. PC Sultan confirmed that the photograph on the driver licence matched the person driving. As this was occurring, PC Sultan smelled a strong odour of cannabis. PC Sultan testified on cross-examination that the odour was of burnt cannabis. There was no challenge to PC Sultan’s evidence about what he smelled.

[15] Although it was a clear and sunny day, PC Sultan testified that he removed his flashlight that was clipped to his vest and used it to look inside the vehicle while he stood at the driver’s door. He did not record using his flashlight in his notes, which were very detailed. He testified that he observed cannabis residue which he described as a fine grain, green, leafy-like substance inside the driver door pocket, where the handle is located to open the door. He also made observations of the same substance in the gear shift area located between the driver and passenger seat.

[16] As a result of the smell of burnt cannabis and his observations of cannabis residue inside the vehicle, PC Sultan believed that cannabis was being improperly stored in the vehicle, was accessible to the driver and had been smoked recently. He concluded that there was a violation of the CCA and that he had grounds to search the applicants and the vehicle. He did not inform the applicants of this belief or his intentions to conduct a search pursuant to the CCA.

[17] PC Sultan did not have any other verbal exchanges with any of the applicants. He did not ask them if they had recently smoked cannabis. He had no concerns that Mr. Dlamini was impaired. He agreed that his concern was that cannabis was in the vehicle that was not properly stored.

[18] This initial interaction with the applicants lasted approximately 20 seconds before PC Sultan returned to his vehicle to run a query on Mr. Dlamini’s driver licence. As a result of result of the query, PC Sultan learned that Mr. Dlamini’s license was suspended.

[19] PC Sultan radioed for officer assistance when he returned to his vehicle as he knew he was going to conduct a search of the applicants and the vehicle pursuant to the CCA. For officer safety reasons, he wanted other officers present as there were three occupants in the vehicle and he did not want to search the occupants and vehicle until the other officers arrived.

[20] PC Sultan also testified that he did not want to tell the applicants that he intended to search them and their vehicle until after backup officers arrived as he past experiences where drivers fled. On re-examination, he testified about a specific experience in January 2022 when someone pulled a gun on him on the shoulder of highway 401 and then attempted to flee by running into traffic. He also heard other officers speak of experiences with persons attempting to flee when informed they were going to be searched. Since then, it had been his practice not to inform drivers of his intent to do a CCA search until backup officers are present.

[21] PC Sultan waited in his cruiser until the first officer, PC Amyotte, arrived approximately 10 minutes later. Officer Yeboah was the second to arrive. PC Sultan testified that the three officers met near his car and spoke for about one minute about why he had radioed for assistance and next steps.

[22] PC Sultan then returned to the applicants’ vehicle and informed the applicants that they and the vehicle were going to be searched pursuant to the CCA. He told the driver to get out of the car and the other two occupants to remain and that they would be searched one at a time.

[23] PC Sultan did not advise the applicants of their rights to counsel or caution before he commenced the search. His evidence was that he was trained that rights to counsel and caution are not required to be read prior to searches conducted pursuant to the CCA and in accordance with that training, he has never done so.

PC Yeboah’s Evidence

[24] PC Yeboah has been with the OPP for six years. He arrived at the scene at 8:04 pm in response to the call for assistance from PC Sultan at 7:52 pm. He was travelling in the opposite direction and so parked his vehicle on the southbound shoulder of the 410, across the median from the applicants’ vehicle.

[25] When he arrived, he observed PC Sultan and Amyotte standing between the Honda Civic and police cruiser. They appeared to be speaking with the driver of the vehicle. Contrary to PC Sultan’s evidence, PC Yeboah testified that he did not speak with either officer but walked to the Honda Civic and stood beside the driver door as there were two occupants in the vehicle. According to PC Yeboah, a briefing with PC Sultan was not necessary as he knew that the occupants and the vehicle were going to be searched pursuant to the CCA given the officer call for assistance from PC Sultan.

[26] As PC Yeboah stood beside the vehicle waiting for PC Sultan to complete the search of Mr. Dlamini, he could smell cannabis. He also observed the front passenger, later identified as Mr. Wright, pull his sweater over his face. He thought this was suspicious behaviour. He recalled that Mr. Wright asked him if he could call a taxi; he told him he had to wait. PC Yeboah testified that he also observed Mr. Wright try to push or kick a black bag that was at his feet under the passenger seat. At the time, he did not consider this conduct suspicious. He did not record this observation in his notes.

[27] PC Yeboah testified that given Mr. Wright’s suspicious behaviour, he told him to exit the car and walk to the rear. Around the same time, PC Sultan completed the search of Mr. Dlamini. PC Yeboah remained standing beside the vehicle and then told the rear passenger, Mr. Virgo, to exit the vehicle to be searched by PC Sultan. Once Mr. Virgo left the car, PC Yeboah began a search of the vehicle.

[28] PC Yeboah described the applicants as compliant.

[29] PC Yeboah did not inform the applicants of their right to counsel while he stood beside the vehicle. Similar to PC Sultan’s evidence, he testified that he was trained that rights to counsel are not required prior to conducting searches under the CCA. He testified when cross-examined that searches under the CCA are similar to searches under the Liquor Licence Control Act, 2019, S.O. 2019, c. 15, Sched. 22 (LLCA) and rights to counsel are not given prior to searches.

ii) Search of the Applicants and the Vehicle and their Arrest PC Sultan’s Evidence

[30] PC Sultan removed Mr. Dlamini from the vehicle and escorted him to the front of his cruiser where he conducted a pat down search. PC Sultan directed Mr. Dlamini to place his hands on the cruiser to conduct the search. When nothing of concern was found, including any firearms, Mr. Dlamini was directed to stand beside PC Amyotte near the cruiser. PC Sultan then removed Mr. Virgo, the rear seat passenger, from the car and conducted a pat down search of him at his cruiser followed by the same search of Mr. Wright. Nothing of concern was found.

[31] PC Sultan described all three accused as understandably nervous but cooperative.

[32] As PC Sultan was completing the pat down search of Mr. Wright, PC Yeboah, who had commenced searching the vehicle, yelled for everyone to get on the ground as he found a firearm in the vehicle. PC Sultan grabbed Mr. Wright and took him to the ground. At 8:07 pm he told Mr. Wright that he was under arrest for possession of a firearm. PC Sultan escorted Mr. Wright to his cruiser and at 8:10 pm read him his rights to counsel and caution.

[33] At 8:11 pm, PC Yeboah, who continued to search the vehicle, announced that a second firearm was found. At 8:15 pm, PC Sultan re-arrested Mr. Wright and read him his rights to counsel and caution for a second time.

[34] PC Sultan took possession of the two firearms once they were made safe. He called for the vehicle to be towed. He left the scene at 8:23 pm with Mr. Wright and arrived at the Mississauga detachment at 8:38 pm.

[35] The applicants do not argue that there was any delay with implementation of their right to counsel.

PC Yeboah’s Evidence

[36] After the last passenger left the vehicle, PC Yeboah began to search the interior of the car. He entered through the driver’s door. He observed flakes of cannabis on the driver and passenger floorboard areas and on both seats. PC Yeboah then leaned over the driver’s seat to search the front passenger side of the vehicle.

[37] PC Yeboah testified that from the driver’s’ side, he observed a black bag on the floor of the front passenger seat. He reached for the bag and picked it up. The bag felt very heavy, like there was a heavy metal object in it. Based on his experience, he believed it was a firearm and so he opened the bag. Upon seeing a firearm in the bag, he exited the car, announced he found a firearm and demanded the applicants to get to the ground.

[38] PC Yeboah walked to the back of the vehicle and placed Mr. Virgo under arrest for possession of a firearm. At 8:08 pm, four minutes after he arrived on the scene, PC Yeboah read Mr. Virgo his rights to counsel and caution from the card in his notebook. Mr. Virgo said he understood and did not want to speak with a lawyer.

[39] PC Yeboah placed Mr. Virgo in his cruiser and at 8:11 pm returned to the vehicle to continue the search. When he searched the back seat area of the car, he saw a Champion backpack on the floor where Mr. Virgo had been sitting. He picked it up and it felt heavy. He opened the bag and found another firearm. He told PC Sultan to rearrest the applicants.

[40] PC Yeboah returned to his vehicle at 8:14 pm and read Mr. Virgo his rights to counsel in connection with the second firearm. He asked if he understood, and Mr. Virgo said yes. He asked if he wanted to call a lawyer now and Mr. Virgo said no. At 8:16 pm, he read the caution and asked Mr. Virgo if he understood, and Mr. Virgo said he did.

[41] PC Yeboah went back to the applicants’ car at 8:18 pm to make the firearms safe. He removed a bullet from the chamber of the Glock 22 found on the floor of the front passenger seat. He then gave the firearms to PC Sultan to bring to the station. PC Yeboah left the scene at 8:26 pm with Mr. Virgo and arrived at the detachment at 8:37 pm.

iii) Photographs

[42] PC Sultan testified that he took photographs of the vehicle at the scene after the applicants were placed under arrest.

[43] He identified a photograph of the front passenger seat showing a black bag or satchel on the floor. This was the bag in which the first firearm was found by PC Yeboah.

[44] He took another photograph that he identified as the centre cup holder area, between the driver and passenger seats. He identified a burned cannabis joint in a cup. He did not see this at the time he formed his belief that there were contraventions of the CCA. In the top of the photograph, he identified a very small portion of the edge of the gear shift area where he saw some cannabis residue.

[45] He identified two photographs he took of two of the door pockets. He could not identify which of the two photographs was the driver door where he saw the cannabis residue. He identified what he described as green leafy flakes in the door pocket area that he observed when he first interacted with Mr. Dlamini.

[46] PC Yeboah took a photograph of what he said was cannabis residue on the floorboard of the front passenger seat and a photograph of what he said was green cannabis flakes on the car seat.

[47] PC Yeboah also took a photograph of the contents of the Champion backpack found on the rear seat. The contents included the firearm and a sealed bag of cannabis.

[48] In addition to taking these photographs, PC Sultan was present when the SOCO officer photographed the vehicle and contents after it was towed to the detachment.

[49] At the conclusion of all the evidence, the Crown and defence advised that it was an agreed fact that over 200 photographs were taken of the Honda Civic between those taken by PC Sultan at the scene and the SOCO officer. It was also an agreed fact that none of the photographs show the driver door pocket or the centre gear shift area where PC Sultan said he observed cannabis residue during his initial interaction with Mr. Dlamini that, together with the odour, formed his reasonable grounds to believe that there were contraventions of the CCA.

Analysis and Factual Findings

Was there a breach of ss. 8 and 9 of the Charter?

[50] Pursuant to s. 8 of the Charter, every person has the right to be secure against unreasonable search and seizure. As the applicants and the vehicle were searched by the police, s. 8 of the Charter is engaged.

[51] Searches or seizures conducted without a warrant are presumptively unreasonable: Hunter v. Southam Inc., [1984] 2 S.C.R. 145 at p. 161. For a search to be reasonable under s. 8 of the Charter, it must be authorized by law, the law itself must be reasonable, and the search must be carried out in a reasonable manner: R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851 at para. 21. Where the search is authorized by legislation, in this case the CCA, the Crown has the burden to demonstrate that the search was reasonable.

[52] The search of the applicants and their vehicle was conducted pursuant to s. 12 of the CCA. According to that section, police have authority to detain persons as it is an offence to drive or be in the care and control of a vehicle where there is open cannabis in the vehicle. According to s. 12:

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.

[53] If an officer has reasonable grounds to believe that cannabis is in a vehicle but is not in its original packaging, is not packaged in closed baggage, or is readily available to a person in the vehicle, the warrantless search would be lawful: R. v. McKenzie-Walcott, 2022 ONSC 1350, at para. 7.

[54] When assessing reasonable grounds for a search, the court must determine whether the officer had subjective reasonable and probable grounds on which to base the search and whether those grounds are justifiable from an objective point of view: R. v. Fyfe, 2023 ONCA 715, 432 C.C.C. (3d) 145, at para. 52.

[55] The smell of burnt cannabis, on its own, is not sufficient to provide reasonable grounds to search: R. v. Polashek (1999), 1999 3714 (ON CA), 134 C.C.C. (3d) 187 (Ont. C.A.), at paras. 13-14. In Polashek, the Court of Appeal noted, at para. 13, that “smells are transitory, and thus largely incapable of objective verification. A smell will often leave no trace.” At paras. 14-15, the Court of Appeal found that there may be some circumstances under which odour may provide reasonable and probable grounds for the search, such as the demeanour of the accused, any statements made, or the time and location of the arrest.

[56] I am satisfied that there were no circumstances in this case for which the smell of burned cannabis alone provided reasonable grounds to search the vehicle. There was nothing unusual about the applicants’ behaviours, the location of the arrest, or any comments they made which would provide a basis for the smell alone to provide reasonable and probable grounds to search. Furthermore, PC Sultan testified that it was his understanding that more than the smell of cannabis was required to conduct a warrantless search under the CCA.

[57] Neither PC Sultan’s nor PC Yeboah’s evidence of smelling burned cannabis was challenged. The critical issue is whether I am satisfied, on a balance of probabilities, that in addition to smelling burnt cannabis, PC Sultan observed cannabis residue in the vehicle. If I do not accept his evidence of what he saw, then the officers had no reasonable and probable grounds to search the applicants’ and their vehicle, or detain them, and their ss. 8 and 9 Charter rights were violated.

PC Sultan’s Observations

[58] PC Sultan had a professional demeanour when he testified. He was not argumentative or defensive during vigorous cross-examination, even when accused of being untruthful about what he observed in the vehicle. I am mindful, however, that while I can consider the way a witness testifies in assessing that witness’s credibility and reliability, I cannot overly rely on demeanour: R. v. D.P., 2017 ONCA 263, at para. 26, leave to appeal refused, [2017] S.C.C.A. No. 261.

[59] PC Sultan did not overstate his evidence. He agreed with many suggestions put to him on cross-examination. For example, he agreed that the applicants were co-operative when he interacted with them. He also agreed with the suggestion that the photographs he took which he said was of the cannabis residue was also consistent with dirt or tobacco.

[60] The key challenge to PC Sultan’s evidence are the photographs that he took of the vehicle at the scene, after the applicants’ were arrested, and the photographs taken in his presence by the SOCO officer. Although he testified that he took photographs of the cannabis residue he observed in the driver door pocket and gear shift area, it is an agreed fact that there are no such photographs.

[61] I will review his evidence about the driver door pocket area.

[62] PC Sultan testified that one of the two photographs he took of the door pocket area was the driver’s door, where he observed cannabis residue, but he did not know which one. He circled on the photographs what he said was the cannabis residue he saw. Based on the photographs alone, it is difficult to see what he marked and that it was green leafy-like substance. If it was, it was a very tiny amount.

[63] PC Sultan agreed that photographs of the cannabis residue he observed after smelling burned cannabis were important evidence to document. He agreed he was present when the SOCO officer took photographs as he wanted to make sure the evidence was properly documented. He also agreed that he wanted the SOCO officer to take photographs of the two areas where he saw the cannabis residue after he smelled burnt cannabis.

[64] After agreeing about the importance of documenting what he observed, PC Sultan was then confronted with the suggestion, based on the configuration of the door in the two photographs, that neither photograph could be of the driver door pocket. After a series of questions, PC Sultan agreed with that suggestion. He was not defensive or argumentative when he agreed that neither photograph was the driver’s door. Although he made this concession, he appeared surprised that there was no photograph of the driver door pocket.

[65] While insisting that he took a photograph of the driver door pocket, PC Sultan also conceded that it was possible he did not. He agreed that this was a significant oversight on his part and agreed it was surprising that there was no photograph of the driver door pocket where he saw the cannabis residue.

[66] On the second day of his cross-examination, PC Sultan again insisted that he took a photograph of the driver door pocket, but he did not know where it was. I do not accept that evidence. If there was such a photograph, it would have been disclosed by the Crown. I find that PC Sultan was mistaken about there being a photograph of the driver door pocket. That was critical evidence that he failed to document despite his testimony that he intended to document his observations of the cannabis.

[67] Accordingly, the two photographs he took at the scene of a door pocket do not corroborate PC Sultan’s evidence of the cannabis residue he observed in the driver door pocket.

[68] I will now deal with the gear shift area.

[69] One of the photographs PC Sultan took was of the cupholder area showing a burned joint. In that photograph, there is a very small area showing just the edge of the gear shift. PC Sultan circled that area and said it showed cannabis residue. Looking at the marked area, I do not see green leafy-life substance as described by PC Sultan. The area he circled looks like brown dirt.

[70] PC Sultan agreed that he did not take a photograph of the gear shift area where he made his observation. The photograph in which you can see the small edge of the gear shift area is actually a photograph of the centre cupholder area in which a burned joint appears to be visible in a cup. PC Sultan did not see the joint or any cannabis residue in this area when he interacted with Mr. Dlamini.

[71] Despite wanting the SOCO officer to take photographs of the gear shift area and the driver door pocket area, none were taken. When asked why, PC Sultan’s response was that they were just not taken.

[72] On the second day of his cross-examination, PC Sultan appeared to resile from his evidence about being present with the SOCO officer to ensure that the evidence was documented, including what he observed. He testified that he did not direct the SOCO officer about what photographs to take as that officer was the specialist in documenting evidence.

[73] By the time the SOCO office was involved, the focus would have been on the firearm investigation. As such, documenting the cannabis found in the vehicle was likely not the priority for that officer. While I accept that PC Sultan would not have been directing the SOCO officer, his evidence was that he wanted the cannabis residue he observed documented. At the very least, he could have ensured that the SOCO officer took photographs of the cannabis in the two areas of the car which formed his grounds to believe that there was a contravention of the CCA.

[74] I consider the lack of photographic evidence to be problematic particularly given PC Sultan’s initial testimony that his observations of the cannabis he observed were documented by himself and the SOCO officer. While PC Sultan was a relatively inexperienced officer, he clearly recognized and appreciated the importance of documenting the evidence of cannabis residue he saw in the vehicle given the photographs he took at the scene. In addition to taking photographs of the interior pockets of two other doors, he also took photographs of other areas where he said there was cannabis residue including on the car seats and floor and in the cupholder area. It is therefore puzzling that PC Sultan claims to have seen cannabis in the driver door pocket and surrounding the gear shift but failed to document it with photographs. He took photographs of the interior pockets of two other doors, but not the critical one – the driver’s door. He also knew the seriousness of the criminal investigation following the discovery of the firearms and that the basis for the warrantless search under the CCA would be critical.

[75] The Crown argues that the lack of photographs taken of the driver’s door pocket and gear shift area was an oversight and that I should accept PC Sultan’s evidence of what he observed. The difficulty with that is PC Yeboah, who commenced searching the vehicle pursuant to the CCA, testified that while he did see cannabis residue on the floorboards and on the car seats, he did not see any in the two areas where PC Sultan said he observed the residue.

[76] PC Yeboah’s role was to search the vehicle for cannabis. He testified that he had experience conducting such searches. He made a mental note of where he observed cannabis as he searched the vehicle. He entered the car by the front driver door. He would have been able to observe the driver door pocket area. He testified that from the front seat, he reached over to pick up the black bag from the passenger floor. At that point, he would have been leaning over the gear shift area and presumably be in the best position to see the cannabis residue in that area, yet he did not. PC Yeboah’s evidence does not corroborate PC Sultan’s evidence of where he saw the cannabis residue.

[77] PC Sultan’s insistence that there were photographs of the areas where he made observations of the cannabis residue to support his reasonable grounds to search the applicants and the vehicle when none exist, is troubling. The fact that the SOCO officer also failed to document those two areas is also troubling given PC Sultan’s evidence that he wanted the officer to take photographs to document his observations.

[78] This was a fluid and dynamic situation unfolding on the side of a busy highway – moving from an HTA stop to a CCA search to criminal charges when the firearms were located. While the focus at that point would have been on the firearms found in the car, PC Sultan knew enough to photograph the cannabis he observed in the interior of the vehicle at the scene. When he did so, the situation was under control as all three applicants, who were compliant throughout, were arrested by that point. His attention was not distracted by the discovery of two firearms in the vehicle as evidenced by the photographs he took of cannabis observed in other areas of the vehicle.

[79] The lack of photographic evidence is not necessarily fatal to a finding the cannabis was observed in a vehicle. In R. v. Kanneh, 2022 ONSC 5413, there was no physical evidence introduced by the Crown of the cannabis shake that the officer testified he observed in the stopped vehicle; the cannabis was not seized nor did the office take photographs of it. Peterson J found at paras. 29 and 30 that the failure to gather this evidence was not best police practice, particularly as the shake formed part of the officer’s grounds for conducting a CCA search, and the officer ought to have done so. However, based on the court’s finding that the officer was a credible witness, Peterson J was not prepared to infer from the lack of physical evidence that the officer was lying under oath about having seen cannabis shake in the car.

[80] A similar finding was made in R. v. Williams, 2021 ONCJ 630, at para. 68, where the court found that the failure to seize the cannabis or photograph it was explained by the turn of events that occurred – where an HTA stop became a CCA search leading to serious criminal charges.

[81] In my view, those cases are distinguishable from the facts in this case. This is not a situation where no effort was made to document the evidence; the opposite is true. PC Sultan testified that he wanted to take photographs to document what he observed as he knew it was important evidence. PC Sultan took several photographs of the cannabis residue in the car after the applicants were arrested but not of the two areas which were the basis for him to believe there were contraventions of the CCA. His evidence was that he fully intended to document what he observed to support his grounds for a CCA search, yet he failed to do so. What he documented was evidence of cannabis residue in the vehicle, but not in the places where he observed it. This is problematic as he knew that the smell of cannabis was insufficient on its own to believe there was a contravention of the CCA leading to grounds for a warrantless search.

[82] The applicants argue that I should find that PC Sultan was not being truthful and that there were no photographs taken of the driver door pocket and gear shift area as there was no cannabis residue in those two areas.

[83] The applicants point to an internal inconsistency in PC Sultan’s evidence with respect to the use of his flashlight to support their assertion that he was not a credible witness. In chief, PC Sultan testified that Mr. Dlamini rolled down all the windows at his request. When he was cross-examined about why he used his flashlight, he said that he believed the rear passenger window was still rolled up, so he needed the flashlight to look for cannabis residue after he smelled it.

[84] While PC Sultan may have been trying to justify his evidence about why he needed to use a flashlight to look in the vehicle on a clear and sunny day, this inconsistency does not rise to the level of tainting all of PC Sultan’s evidence to the point that I reject his evidence in its entirety.

[85] The applicants also point to PC Sultan’s failure to describe the cannabis he observed in his notes. In his notes he referred to cannabis residue. When he testified, he described it as a green leafy-like substance. He agreed that the description of what he observed, including its colour, was important. He explained that he simply did not include it in his notes.

[86] PC Sultan’s notes were very detailed. While I question why he did not include a more detailed description of what he observed in his notes, it does not lead me to reject his evidence in its entirety.

[87] I do not find that PC Sultan deliberately attempted to mislead the court when he testified in chief that one of the photographs was of the driver door pocket. Despite some inconsistencies in his evidence, I found that he was a credible witness. However, given the totality of the evidence, I am unable to reconcile PC Sultan’s evidence of what he observed, his intention to document it, and then his failure to do so.

[88] I find that I cannot rely on PC Sultan’s evidence given his insistence that there was a photograph of the driver door pocket area when there was not. I also find his evidence unreliable as he knew the importance of documenting the cannabis he observed to support his grounds to search under the CCA, yet he failed to do so.

[89] I also have concerns with the reliability of his evidence given the brief period of time in which he made the observation and the location of that observation.

[90] PC Sultan was challenged about how he could see the contents of the driver door pocket from where he stood outside the vehicle during the 20 seconds that he interacted with Mr. Dlamini.

[91] In McKenzie-Walcott, the officer was challenged about being able to see the area between the drivers’ door armrest and the driver’s seat, Harris J concluded that while it would be possible to see that area, it was unlikely. It is not clear to me, however, whether Harris J was commenting on the same interior pocket area or on the floor area between the driver’s seat and the armrest.

[92] PC Sultan made his observation of what was in the driver pocket door in two to three seconds. While he may have been able to see into the driver door pocket, I question the reliability of what he observed in that door pocket based on the very brief time he made the observation.

[93] The other photographs taken by PC Sultan appear to show what could be cannabis residue in other areas of the car. However, evidence discovered after a search cannot be used to justify the search after the fact. The evidence to support a search must be available to the police at the time of the search; R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at para. 20. The Crown cannot rely on “ex post facto justifications” of searches by their results: R. v. Genest, 1989 109 (SCC), [1989] 1 S.C.R. 59, at p. 89.

[94] While I cannot use the evidence of what was discovered when the car was searched to justify the search, I can consider that evidence in assessing PC Sultan’s credibility and reliability. Those photographs appear to show a small amount of something green and flaky that could be cannabis residue that both PC Sultan and PC Yeboah testified they saw in the vehicle. The burned joint in the cupholder could also be the source of the odour of burned cannabis that they both smelled. This could support the credibility and reliability of PC Sultan’s evidence of what he saw in the driver door pocket and gear shift area. However, when I consider the totality of the evidence, and the absence of evidence, I am not satisfied on a balance of probabilities that I can rely on PC Sultan’s evidence of his observations of seeing cannabis residue in the driver door pocket and gear shift area to justify his grounds to conduct a search pursuant to the CCA.

[95] As a result, PC Sultan’s uncorroborated oral evidence of what he observed is insufficient to discharge the Crown’s onus to prove, on a balance of probabilities, that the warrantless CCA search was reasonable. There was therefore a breach of the applicants’ s. 8 Charter rights to be secure against unreasonable search and seizure.

[96] Pursuant to s. 9 of the Charter, everyone has the right not to be arbitrarily detained. There is no dispute that the applicants were detained from the moment their vehicle was stopped. Given my finding that the search was unreasonable, the detention that followed was unlawful and arbitrary. The police had no right to detain the applicants based on the smell of burned cannabis alone.

PC Yeboah’s Search of the Vehicle and Satchel

[97] Given my finding that there was a breach of s. 8 of the Charter, PC Yeboah’s search of the satchel located on the front passenger seat of the vehicle would also be a s. 8 breach. I will nonetheless address the issue separately as it has a bearing on the s. 24(2) analysis.

[98] The applicants argue that PC Yeboah’s search of the satchel was not reasonable on the basis that PC Yeboah testified that he had a suspicion the satchel held a firearm after he picked it up rather than having reasonable and probable grounds to believe there was a firearm in it.

[99] The issue of whether the search of a satchel found in a vehicle that was being searched pursuant to the CCA was reasonable was canvassed in R. v. Moulton, 2023 ONCJ 140. In Moulton, Henschel J found that the police were authorized to briefly detain the applicant to search him and his vehicle pursuant to the CCA for further cannabis. The court then addressed the search of the satchel in the vehicle in which a firearm was found.

[100] The police officer in Moulton testified that when he began his search of the vehicle, he was searching for cannabis readily available. He picked up a satchel he saw on front passenger seat, that was fastened closed, because it was the first thing within reach of the driver. He testified that he believed, based on his experience, that males store cannabis in satchels. When he picked up the satchel, it was heavy which caused him concern as he believed there was a firearm inside the satchel. He opened the bag and saw a firearm.

[101] Justice Henschel reviewed several authorities that dealt with the extent of the search authorized under s. 12(3) of the CCA. She rejected those decisions that found a search of a closed satchel was not authorized under the CCA as those decisions were inconsistent with the public safety legislative intent of the CCA. She found that section 12(3) of the CCA does not restrict the scope of the search and that searches of bags in a vehicle, whether or not fastened closed were authorized: Moulton, at paras. 232-251.

[102] While PC Yeboah was not asked why he reached for the black satchel, I am satisfied that if an officer has reasonable grounds to believe that cannabis is stored improperly, the officer may search the entire vehicle and all occupants; independent grounds for each aspect of the search is not required.

[103] I will comment on PC Yeboah’s credibility as counsel for Mr. Wright urged me to reject his entire evidence based on his testimony of seeing Mr. Wright kick or nudge the black bag at his feet. This observation was not in his notes.

[104] Before he was confronted about the missing entry in his notes, PC Yeboah was cross-examined about his notetaking and the importance of keeping detailed notes that are relevant to an investigation. He agreed that he was not in a rush when he made his notes, one hour after the arrest, at the detachment. He agreed that he had a clear recollection of what occurred. He also knew that he could add critical details as a late entry.

[105] PC Yeboah became defensive when cross-examined about his note-taking practices and insisted that the reason he takes notes is to refresh his memory. He was reluctant to agree with the reasonable suggestion that his notes were important, not just to refresh his memory, but also for use by Crown and defence counsel.

[106] PC Yeboah’s evidence was that he might not include an important detail in his notes if he had a clear recollection of it. He seemed to be suggesting that he did not need to make entries to refresh his memory if it was something he knew he would recall.

[107] I reject that evidence. Officers do not make notes only about things they might not recall so that their memory is refreshed. Their notes are important to disclose to the Crown and defence. I find PC Yeboah’s evidence that he may not record an important detail in his notes if it was something he would remember to be perplexing and illogical.

[108] In PC Yeboah’s notes, the only suspicious behaviour he described was Mr. Wright covering his face with his sweater. He did not make a note of Mr. Wright asking for a taxi or his observation of Mr. Wright’s attempt to kick or push the black bag, in which a firearm was subsequently found, under the seat. He testified that it was only when he prepared a typed copy of his notes in preparation for this hearing that he realized this detail was not in his notes. He did not inform the Crown of this prior to the hearing. His evidence was that he always remembered seeing Mr. Wright kick or nudge the bag under the car seat.

[109] His explanation for not including the detail of seeing Mr. Wright kick the bag at his feet was that at the time he made the observation, he did not think it was suspicious. While that may provide some explanation, by the time he made his notes, PC Yeboah knew that this was a serious criminal investigation involving firearms and ammunition. A firearm was found in the black bag that he said he saw Mr. Wright attempt to kick or push under his seat. That behaviour arguably connects Mr. Wright to the black bag and suggests he knew what was in it as the inference would be that he was trying to hide the bag. In my view, that observation would have seemed far more suspicious than Mr. Wright pulling his sweater over his face.

[110] Based on this evidence, counsel for Mr. Wright urged me to reject all of PC Yeboah’s evidence. At the same time, all defence counsel urged me to accept PC Yeboah’s evidence that he did not see cannabis in the two areas where PC Sultan said he saw it.

[111] While I am troubled by PC Yeboah’s explanation of why he did not record his observation of seeing Mr. Wright kick the black bag, the balance of his evidence was relatively consistent with PC Sultan’s evidence, other than whether or not the officers spoke after PC Yeboah arrived on the scene.

[112] I am not prepared to reject the entirety of PC Yeboah’s evidence based on his failure to record in his notes all his observations of Mr. Wright’s behaviour in the vehicle.

Was there a Breach of ss. 10(a) and 10(b) the Charter

[113] Pursuant to ss. 10(a) and (b) of the Charter:

Everyone has the right on arrest or detention:

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right.

[114] Pursuant to s. 10(a), a detained person is entitled to be informed of the reason why they are being restrained. This includes persons detained for investigative purposes: R. v. Nguyen, 2008 ONCA 49, 55 C.R. (6th) 82, at paras. 16 and 19.

[115] Police may delay telling detainees of the reason for their detention where there is valid officer or public safety concerns: R. v. Gonzales, 2017 ONCA 543, 136 O.R. (3d) 225, at para. 128.

[116] In Gonzales, the Court of Appeal found that there was no breach of s. 10(a) while the officer waited in his cruiser for seven minutes for other officers to arrive. In that case, the applicant’s vehicle was stopped to investigate residential break-ins in the area. When the vehicle was stopped, the officer noticed the odour of cannabis and he saw several sealed large cartons that the officer suspected was cannabis. The driver of the vehicle failed to respond to direct questions and the officer suspected that the applicant was in possession of cannabis. The officer asked the driver for his drivers’ license, insurance and ownership and told him that he wanted to make sure the driver was entitled to operate the van, had a valid licence, and was properly insured. He did not tell the driver about the break-ins or his suspicions about cannabis. There was a passenger in the car.

[117] The Court of Appeal found that ideally, the officer should have informed the driver of the reason he was being detained without delay, but as he was alone with two occupants of a car that was fully operable, and as he was armed but not protected and concerned with his safety, the delay was justifiable. The Court of Appeal found that the seven minute delay did not amount to an infringement of s. 10(a) in those circumstances: at para. 128.

[118] PC Sultan’s uncontested evidence is that he informed the applicants of the reason for the initial traffic stop. It is not in dispute that the applicants were detained once their vehicle was stopped. It is not in dispute that PC Sultan did not inform the applicants that they were being detained for investigative purposes under the CCA at any time during the 10 minutes that he waited for back-up officers to arrive.

[119] PC Sultan’s explanation for not informing the applicants of the reason they were being detained was a concern for officer safety, as he was on his own and there were three occupants in the vehicle. He was also concerned that they could flee, based on his past experience.

[120] In my view, given the totality of the circumstances, it was not unreasonable for PC Sultan to delay informing the applicants that they were being detained pursuant to the CCA until after the other officers arrived. PC Sultan had valid officer safety concerns as he was outnumbered. Furthermore, the vehicles were stopped on the side of a busy highway. For officer and public safety reasons, even though the applicants were cooperative and gave PC Sultan no reason to think they would flee, it is not unreasonable that PC Sultan waited for other officers to arrive before informing the applicants of the reason for their detention under the CCA.

[121] Defence counsel argued that based on the evidence that the applicants were cooperative, there was no basis to conclude that officer safety was a valid concern. I do not agree. Despite the conduct of the applicants, there is a legitimate concern for officer safety in a situation where a police officer is outnumbered, as in this case. Furthermore, PC Sultan only had an initial 20 second interaction with the applicants. While they may have been cooperative during that brief time, that should not form the basis for an officer at this sort of stop to conclude that officer safety was not an issue when he was outnumbered.

[122] There was no breach of s. 10(a). The delay in informing the applicants of the reason for their detention under the CCA until backup officers arrived was justifiable given the circumstances and context of the traffic stop.

[123] The next issue is whether there was a breach of s. 10(b) for failing to advise the applicants of their right to counsel prior to the searches, after being told of the CCA investigation. The applicants argue that they were entitled to be given their 10(b) rights to counsel as soon as the reasons for their roadside detention evolved from an HTA stop to an investigation under the CCA.

[124] Section 10(b) has both an informational and implementation component. The informational duty requires police to inform the detained person of their right to retain and instruct counsel without delay. The implementation duty requires police to provide the detained person with a reasonable opportunity to retain and instruct counsel. There was no argument about a delay in the implementation component.

[125] Based on PC Sultan’s evidence, he informed the applicants’ of the reason for their detention at approximately 8:00 pm. The firearm was found seven minutes later at 8:07 pm. Rights to counsel were given to Mr. Virgo at 8:08 pm by PC Yeboah. PC Sultan gave Mr. Wright his rights to counsel at 8:10 pm. I heard no evidence about what time Mr. Dlamini was given rights to counsel. Although it was not raised as an issue, I presume rights to counsel were given to him by PC Amyotte at around the same time.

[126] There are several decision which have found that rights to counsel can be temporarily suspended during a CCA investigation: R. v. Grant, 2021 ONCJ 90 at paras 127-131; Williams at para 75 and Kanneh at paras. 60-63.

[127] In Kanneh, Peterson J addressed the issue of when and for how long a suspension of 10(b) is justifiable at the roadside. In that case, the accused’s vehicle was pulled over at 3:53 pm due to an apparent HTA infraction which became a CCA investigation. The officer told the accused at 4:14 pm he smelled cannabis in the car and could see pieces of cannabis inside the vehicle. He told the accused he was going to conduct a search under the CCA. He wanted to wait for back-up as he was alone and on the side of a busy highway. Another officer arrived at 4:16 pm. The cannabis search began at 4:20 pm. The accused was not given his right to counsel until 4:48 pm, after pills were discovered in the search at 4:46 pm. In discussing the suspension of 10(b) rights at a roadside stop, Peterson J stated at para. 63:

The jurisprudence clearly establishes that a temporary suspension of rights to counsel is justifiable in such circumstances pursuant to s.1 of the Charter. But the suspension must be brief and is only reasonable in so far as it can be justified by concerns for officer or public safety, or by the operational requirements of the exercise of statutory and common law police powers to stop a motor vehicle for road safety purposes: Suberu, at para. 42; Orbanski, at paras. 45-60; Wilson, at paras. 61-66; Graham, at para. 51; R. v. Grant, 2021 ONCJ 90 (”Grant (ONCJ)”); and R. v. Commisso, 2020 ONSC 957, at paras. 36 and 44. The extent to which a suspension of s. 10(b) rights can continue to be justified under s.1 of the Charter, where the purpose of the roadside detention transitions from a violation to the investigation of a different offence, is a context-specific issue that will need to be determined based on the specific facts of each case.

[128] In Kanneh, the accused was detained for 55 minutes before his rights to counsel were administered. Peterson J found that his rights to counsel ought to have been given at 4:15 pm, 22 minutes after the initial HTA stop, when the officer informed the accused of his intention to search the vehicle pursuant to the CCA. At that time, there was also a criminal investigation as the vehicle may have been stolen. Peterson J found that the delay went beyond the scope of reasonable and necessary measures for road safety purposes, or for officer and public safety purposes: at paras. 67–69, 71.

[129] Justice Rahman relied on Kanneh in R. v. Morgan, 2023 ONSC 6855. In Morgan, two officers pulled over a vehicle in which there were two occupants. The initial stop was for a traffic stop but it then became a CCA search during which a firearm was discovered. Both the driver and occupant were handcuffed and searched. The accused was then arrested for firearm offences and given his 10(b) rights. This was over ten minutes after he was initially detained for a traffic stop and nine minutes after he was detained under the CCA. Justice Rahman found that there were no operational, officer safety, or safety search concerns to justify the delay. He found that there was no need to have the accused handcuffed and searched before advising him of his 10(b) rights.

[130] In this case, there was a brief passage of time from when the applicants were told of the reason for their detention (at approximately 8:00 pm) and the discovery of the firearm (at approximately 8:07 pm). Immediately after the firearm was discovered, the applicants were arrested and given their rights to counsel and caution. There was not a lengthy passage of time as in Kanneh nor were they placed in handcuffs as in Morgan before being given their rights to counsel.

[131] In Moulton, the applicant’s vehicle was stopped at a RIDE stop at 12:19 am. That stop turned into a CCA search of the vehicle during which a firearm was found. The applicant was arrested and given his rights to counsel at 12:25 am, after the firearm was found. The officer’s evidence was that he did not give the applicant his right to counsel prior to his arrest as he did believe he was required to do so as it was a RIDE stop and then a CCA investigation. He expected that after a short detention, the applicant would be on his way.

[132] Henschel J. found that the applicant’s 10(b) rights were suspended from the time of the stop until his arrest. This 6 minute delay while the CCA investigation took place fell within the scope of reasonable and necessary measure for road safety purposes and was a justifiable limit on the limit on the accused’s rights to counsel under s. 10(b).

[133] In my view, the delay in giving rights to counsel in this case was brief and justifiable, as in Moulton. Where an officer has reasonable grounds to believe that cannabis is in a vehicle that is not in its original packaging, is not packaged in closed baggage or is readily available to a person in the vehicle, there are public safety concerns which justifies a brief detention of s. 10(b) rights.

[134] In this case, the applicants were detained for approximately 18 minutes. There was approximately an eight minute delay in giving them rights to counsel after they were informed of the CCA reason for their detention. Had the search of the vehicle continued for a longer period and their rights to counsel suspended for a longer period, I might have come to a different conclusion and found the delay was not brief or justifiable.

[135] Having found that the 10 minute delay in informing the applicants of the reason for their detention for officer safety reasons, I find that the eight minute delay for the search of themselves and the vehicle under the CCA prior to the discovery of the firearm leading to their immediate arrest and their rights to counsel was reasonable. There was no breach of s. 10(b).

Should the Evidence be Excluded?

[136] The onus is on the applicants to prove, on a balance of probabilities, that the admission of evidence obtained in manner that violates the Charter would bring the administration of justice into disrepute.

[137] Section 24(2) of the Charter requires the court to consider the effect of the admission of the evidence on the long-term repute of the administration of justice. An analysis must be conducted following the factors set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71 (“Grant (SCC)”), being: a) the seriousness of the Charter-infringing state conduct; b) the effect of the breach on the accused’s Charter-protected interests; and c) society’s interest in the adjudication of the case on the merits.

Was the Charter-infringing State Conduct Serious?

[138] The first branch of the Grant test requires consideration of the seriousness of the Charter-infringing state conduct. This necessitates placing the police conduct along a spectrum running from minor, inadvertent conduct at one end, through negligence, to deliberate, wilful, or flagrant conduct at the other end. The more severe and deliberate the state conduct, the more serious the breach and the more the court will be required to distant itself from that conduct through the exclusion of evidence linked to the conduct: R. v. Keshavarz, 2022 ONCA 312, 413 C.C.C. (3d) 263, at para. 105; and Grant (SCC), at para. 72.

[139] In R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, Doherty J. A. found, at para. 40, that “[c]onstitutional breaches that are the direct result of systemic or institutional police practices must render the police conduct more serious for the purposes of the s. 24(2) analysis”.

[140] Conversely, inadvertent, or minor violations may only minimally undermine public confidence in the rule of law. The court must therefore assess the state’s misconduct and assess it along the continuum of misconduct: Grant (SCC), at para. 74.

[141] While I have found a ss. 8 and 9 breach, it is on the basis of the unreliability of the evidence and the Crown’s failure to discharge its onus to prove on a balance of probabilities that the search was reasonable. This is not a situation where I found there was a breach based on the wilful and deliberate conduct of the police. I do not find that PC Sultan was untruthful or purposely misleading when he testified. I do not find that PC Sultan used the CCA as a ruse to conduct an illegal detention and warrantless search of the applicants and the vehicle.

[142] Nonetheless, to conduct a safety search of a person and to search a vehicle, without reasonable cause to do so is a Charter breach. The broad rights given to police to search under the CCA, must only be used in a manner that does not infringe the Charter right to be free from unreasonable search and being arbitrarily detained. The courts must ensure there is no breach of Charter rights when police conduct these searches, even where the breach is minor or inadvertent.

[143] I therefore consider the breach to favour exclusion of the evidence.

[144] I want to comment on the delay in providing rights to counsel if I am incorrect and there was a delay and a breach of s. 10(b).

[145] Both PC Sultan and PC Yeboah testified that regardless of the length of time of the detention, they have been trained that rights to counsel are not required prior to a CCA search. As reviewed above, that is not correct. Brief delays may be reasonable if there are concerns for officer or public safety or operational requirements. Thus, while there can be a temporary suspension of right to counsel, it must be in circumstances where such a delay is warranted. Officers must turn their minds to the length of the delay and assess if it is justifiable.

[146] Defence counsel argued that given this evidence, the breach was serious as it was the result of institutional police practices that render the police conduct more serious.

[147] The CCA came into force in October 2018. At the time of this stop on August 10, 2022, there was limited caselaw to guide officers on CCA searches. Furthermore, there were decisions that found that searches under the CCA were similar to searches under the LLCA, as PC Yeboah testified.

[148] The officers were incorrect about how long s. 10(b) rights can be delayed, which may be as a result of a lack of training and the evolving caselaw rather than a more general cavalier attitude towards providing rights to counsel. I am satisfied that they both generally understood the importance of providing timely rights to counsel as they complied with s. 10(b) after the firearm was discovered.

[149] In my view, if there was a breach of s. 10(b), I would not consider it to be serious.

The Impact of the Breach or Breaches on the Charter-protected Interests of the Applicants

[150] The second branch of Grant considers the impact of the breach on the Charter-protected interests of the accused. The court must assess “the extent to which the Charter breach actually undermined the interests protected by the right infringed”: Grant (SCC), at para. 76. The more serious the impact on the applicant’s Charter-protected interest, “the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute”: Grant (SCC), at para. 76.

[151] I will start first with the search of the vehicle. There is a diminished expectation of privacy in a vehicle as opposed to a home: R. v. Belnavis, [1997] 3 S.C.R. 341, at paras. 38-39. The impact on the applicants’ privacy rights was further reduced as the applicants did not own the vehicle; R v. Bakal, 2021 ONCA 584 at para. 21. The search of the vehicle was therefore relatively non-intrusive to the applicants’ privacy interest. I do not find that the search of the vehicle in the face of a s. 8 breach to favour exclusion.

[152] The Crown concedes that the pat-down safety searches conducted of each applicant was an invasive search as the applicants had a high expectation of privacy in their bodily integrity. This favours exclusion of the evidence.

[153] If there was a breach of s. 10(b), there was minimal impact on their right against self-incrimination as neither officer asked the applicants any questions before they were arrested for firearms offences. There is no evidence of any inculpatory statements being made prior to being given their rights to counsel.

Society’s Interest in the Adjudication of the Case on its Merits

[154] The third branch of Grant is concerned with society’s interest in adjudication on the merits. Where excluding highly reliable evidence will effectively gut the Crown’s case, a court may be more inclined to admit the evidence: Grant (SCC), at para. 83.

[155] Exclusion of the reliable evidence in this case means the exclusion of the firearms. The Crown’s case will be gutted if the evidence is excluded. The charges before the court are very serious. These factors strongly weigh in favour of the admission of the evidence.

[156] There is a very strong societal interest in the adjudication of a case in which firearms are discovered in an accused’s vehicle. The proliferation of illegal firearms and gun violence is a significant concern as it impacts the safety of communities. The public has an interest in curtailing gun violence.

[157] I agree with the Henschel J’s finding at para. 298 in Moulton that the inherent dangerousness of illegal firearms and society’s interest to be free of the threats they pose should inform whether the exclusion of a firearm obtained in violation of the Charter will undermine public confidence in the administration of justice.

[158] The societal interest in a criminal trial on the merits in this case tilts strongly towards inclusion of the evidence.

The Balancing

[159] In conducting the balancing, the jurisprudence tells us that if the first and second branches of Grant make a strong case for exclusion, the third branch will seldom, if ever, tip the balance in favour of admissibility: R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63; R. v. Dunkley, 2016 ONCA 597, 131 O.R. (3d) 721, at para. 63.

[160] While I have found the first two factors favour exclusion of the evidence, it is not a strong case whereas the third factor strongly favours inclusion of the evidence.

[161] As I have already stated, this was not a case where the police used the HTA and then CCA stop as a ruse to search the applicants and their vehicle. The officers did not act in a way that demonstrated a deliberate and serious disregard for the applicants’ Charter rights. When I consider the totality of the evidence and the conduct of the officers, I am satisfied that the administration of justice will not be brought into disrepute by the admission of the evidence at trial. The interest in seeing the case tried on its merits outweighs the first two factors. In my view, the reputation of the administration of justice would suffer more if the evidence was to be excluded.

[162] Furthermore, even if there was a s. 10(b) breach, that did not lead to any evidence being discovered in this case. If there was a delay, it was brief, and no questions were asked.

[163] The evidence will therefore not be excluded.

L. Shaw J.

Released: November 10, 2024

COURT FILE NO. CR-23- 219 DATE: 2024 11 10

ONTARIO SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING – and – DYLAN DLAMINI, BRANDON VIRGO and KHIBANT WRIGHT

REASONS FOR JUDGMENT ON PRE-TRIAL CHARTER APPLICATION TO EXCLUDE EVIDENCE

L. Shaw J.

Released: November 10, 2024