REASONS FOR DECISION

CASULLO J.:

OVERVIEW

[1] Jemar Holmes is charged with possession of cocaine for the purposes of trafficking, possession of cannabis for the purposes of distribution; and failure to comply with release conditions x2. The offences are alleged to have taken place in the City of Toronto on February 4, 2021.

[2] Mr. Holmes elected to be tried by a judge sitting without a jury.

[3] Mr. Holmes brings an application for an order declaring that his rights as protected by ss. 8 and 10(a) of the Canadian Charter of Rights of Freedoms have been breached, and as a consequence the cocaine and cannabis seized from his vehicle upon arrest should be excluded under s. 24(2) of the Charter.

[4] The Crown disagrees that Mr. Holmes’ Charter rights were breached. However, if there was a breach, it submits the evidence should still be admitted, as to exclude it in these circumstances would bring the administration of justice into disrepute.

[5] The case proceeded before me as a blended voir dire.

[6] An agreed statement of facts was made an exhibit in this trial pursuant to which the parties agreed to the following:

(a) The date, jurisdiction, and identification of Mr. Holmes as the person arrested on February 4, 2021;

(b) All photographs from the investigation were admissible;

(c) Four Health Canada Certificates speaking to the weight of the controlled substances (one kilogram of cocaine and one pound of cannabis) were admissible;

(d) The technical wiretap evidence was admissible;

(e) The transcripts accurately reflected the information provided by the telephone companies;

(f) The text messages were accurately recorded on the transcripts;

(g) The one kilogram of cocaine was admitted to be such an amount that it would be possession for the purposes of trafficking if possession and nature are proven beyond a reasonable doubt; and

(h) None of the officers who drew their firearms filed a Use of Force report.

FACTS

[7] Accurately determining the facts of this case is complicated by many circumstances, including the number of officers involved, and the dynamic nature of the investigation. The Crown called twelve officers from York Regional Police Services as witnesses at trial, but I include only the testimony I believe is necessary to make my determinations.

[8] While I do not address each and every argument raised during the trial, counsel can rest assured I did consider them.

Case for the Crown

Detective Anandvir Gill – York Regional Police, 16 Years at Time of Trial

[9] Detective Gill was the wire-room co-ordinator on Project Hammer. He was not part of the surveillance team.

[10] On February 4, 2021, beginning at around 1:27 p.m., he intercepted two calls, Sessions 310 and 113, both entered as exhibits at trial. The calls were between Man Kit Mark Phung and John Carlos Christofilopoulos, both primary targets of Project Hammer. Their voices were familiar to Detective Gill.

[11] In Session 310, Mr. Christofilopoulos requested a kilo of cocaine from Mr. Phung. The two discussed how the kilo should be divided – initially it was to be split into four pieces, but that changed to three pieces. A number of individuals were mentioned during this call, including “JF”, identified as Joshua Ferrer, “Met”, identified as Jordan Metodiev, and “Peso”, a name that Detective Gill understood had not been attributed to anyone.

[12] Detective Gill did not believe that Mr. Holmes was mentioned during this first call.

[13] In Session 113 Mr. Phung and Mr. Christofilopoulos discussed the same transaction concerning the kilo of cocaine, and how it had been broken up, with potentially one of the pieces being short a gram. They also discussed that JF would be “grabbing” it.

[14] Detective Gill played Sessions 310 and 113 for Detective Ghaznavi. Based on what he heard, Detective Ghaznavi instructed him to have the two Project Hammer surveillance teams out that day change their objectives. Detective Weisher’s team was to redeploy and conduct surveillance on Joshua Ferrer. If Mr. Ferrer met with Mr. Phung as described in the intercepts, then an arrest was to be made shortly thereafter on his direction.

[15] The second team, led by Detective Cruz, were advised to conduct surveillance on Mr. Phung, to try and cover the drug meeting. If someone other than Mr. Ferrer was observed meeting with Mr. Phung to conduct the exchange, then they were tasked to follow whoever that person was.

[16] At 4:10 p.m. Detective Gill overheard Detective Ghaznavi tell Detective Cruz’ team that Mr. Holmes was in the geographic vicinity of Mr. Phung.

[17] Following Mr. Holmes’ arrest, Detective Gill was instructed to attend at 4 Division to do paperwork, process the seized property, and prepare the bail package in respect of Mr. Holmes.

[18] At 8:34 p.m., Detective Gill spoke with Mr. Holmes, who said he would like to speak with his lawyer again. Detective Gill facilitated Mr. Holmes’ request at 8:43 p.m.

Detective David Ghaznavi – York Regional Police, 18 Years at Time of Trial

[19] Detective Ghaznavi was the co-lead officer in charge of Project Hammer, an ongoing, large-scale investigation into firearms trafficking and drug trafficking in the GTA that began operating in 2020. Detective Ghaznavi first become involved in the project in September 2020.

[20] On February 4, 2021, Detective Ghaznavi was working the wire room with Detective Gill, who was manning the equipment. Detective Gill intercepted and played him two phone calls between Mr. Phung and Mr. Christofilopoulos, known drug dealers and two of Project Hammer’s primary targets.

[21] In the first call, Session 310, the name “Jay” is mentioned a couple of times. Detective Ghaznavi said Jay was a known nickname for Mr. Holmes. The name “Peso” was mentioned, which he also associated with Mr. Holmes. Detective Ghaznavi had encountered these names prior to February 4, 2021.

[22] In the second call, Session 323,[^1] Mr. Christofilopoulos told Mr. Phung “later, man”, which Detective Ghaznavi understood to mean the drug transaction would happen later that day.

[23] Based on these calls, Detective Ghaznavi determined a drug transaction was imminent, and Mr. Holmes would be meeting with an individual to pick up a kilogram of cocaine.

[24] There was a team of six surveillance officers already on duty, led by Detective Cruz. Their objective was to surveil Mr. Phung. However, based on the intercepts, at 4:05 p.m. Detective Ghaznavi told Detective Cruz that the objective had changed to Mr. Holmes, whose cellphone coordinates placed him in the vicinity of Mr. Phung’s home. Detective Ghaznavi told Detective Cruz that if Mr. Holmes was seen to transact with Mr. Phung, he was to be arrested after he left the area of the drug exchange, when it was safe to do so.

[25] Detective Ghaznavi advised Detective Cruz that Mr. Holmes was in breach of a recognizance to remain in his home unless with his surety, and was therefore arrestable for this breach. He also advised him that Mr. Holmes’ prior charge was for attempt murder and assault. He relayed this information because in his view, it could have a bearing on how any arrest was carried out.

[26] At 4:15 p.m., Detective Cruz radioed Detective Ghaznavi to advise that he had located Mr. Holmes’ car in a plaza in Mississauga. Detective Ghaznavi remained on the radio, listening as the team radioed in what they were observing in real time.

[27] He heard that Mr. Holmes left the plaza and parked in a laneway close to Mr. Phung’s home. Mr. Phung was seen walking to Mr. Holmes’ car with a green reusable bag in his hand. Mr. Phung got into Mr. Holmes’ car, and the two drove a short distance away.

[28] At this point, Detective Ghaznavi instructed Detective Cruz and/or his team to arrest Mr. Holmes based on the drug transaction, as soon as it was safe to do so. But he was not to be arrested in the vicinity of the transaction, as Detective Ghaznavi did not want the investigation compromised. To wit, if Mr. Holmes was arrested close to Mr. Phung’s home, Mr. Phung would realize that he was being watched. This could lead Mr. Phung and his associates to modify the way they had been operating throughout the course of the investigation, including dropping phones, changing the way transactions were conducted, or even leaving the country. This could seriously jeopardize the entire project.

[29] Once Mr. Phung got out of Mr. Holmes’ car, Mr. Holmes drove toward Toronto, taking Highway 403 to the Gardiner Expressway. Detective Cruz and his team followed Mr. Holmes, but they lost sight of him for a period of time. In light of this, Detective Ghaznavi lost confidence that the drugs were still in the car, and advised Detective Cruz that the grounds for arrest had changed from the drug transaction to breach of recognizance.

[30] Detective Ghaznavi understood that once Mr. Holmes was arrested for the breach, he would be placed into custody and his car would be searched in the area within the reach of Mr. Holmes – the front and back seats. This search would be incident to arrest.

[31] While Detective Ghaznavi gave the direction to arrest Mr. Holmes, he was not the officer out on the road. Thus, he left the manner in which the arrest was facilitated to Detective Cruz, including whether and how Mr. Holmes’ car was searched following the arrest.

Cross-examination

[32] Detective Ghaznavi testified that the time it took the team to affect the arrest was longer than he would have wanted – about 35 minutes had lapsed between the drug transaction in Mississauga and the takedown in Toronto.

[33] He confirmed his testimony that the team had lost sight of Mr. Holmes, conceding that this was not recorded in his notes. While he thought the drugs might still be in the car, he instructed the team to arrest Mr. Holmes for breach of his recognizance instead of drugs. In his view, if Mr. Holmes was arrested for the drug transaction so far away in distance and time from where it had taken place, he would know that police had been surveilling him, again potentially compromising the integrity of the investigation.

[34] Detective Ghaznavi was cross-examined extensively on whether, once the team had lost sight of Mr. Holmes, he felt that he no longer had grounds to arrest on the drug charge. Detective Ghaznavi would not agree or disagree to this:

Q. Okay. So, now to go back to my original question. Would you or would you not agree that when you received information that Detective Cruz and his team had lost sight of the vehicle, you no longer believed you had grounds for arrest him for possession of drugs, agree or disagree?

A. I don't want to be held into that box. I would just like to say that my grounds were definitely less at that point.

Q. When you say you don't want to be held in that box,...

A. Of agree or...

Q. ...if you had already had –

A. ...disagree.

Q. Let me finish the question. Either you have reasonable and probable grounds, or you don’t.

A. Yes.

Q. Do you not agree with that?

A. Yes.

Q. Do you not agree with that statement...

A. Yes.

Q. ...as a fact?

A. Yes.

Q. So I'm asking you, did you believe once that - once you’ve lost sight - once the team lost sight of Mr. Holmes, did you or did you not have reasonable and probable grounds to arrest Mr. Holmes for possession of drugs?

A. I definitely believed they were lesser, yes.

Q. Okay. Again, did you still have them? Yes or no.

A. Again, there's varying degrees of where that is or not. To me, in this specific circumstance it was unfortunate that the vehicle was misplaced. I would’ve rather it happened shortly after the event, but it didn't. So my - although I believed there were still grounds to make the arrest on the drug transaction, I didn't want to expose the investigation. It was an unfortunate set of circumstances there.

[35] Detective Ghaznavi clarified that he had initially instructed Detective Cruz to arrest Mr. Holmes for both the drugs and the breach.

[36] His belief that the nicknames Jay and Peso belonged to Mr. Holmes was based on previous intercepts between Mr. Holmes and someone else, during which Mr. Holmes referred to himself as either Jay or Peso, or someone else had referred to him as Jay or Peso. These intercepts were from phones associated with Mr. Holmes, as well as with another individual.

[37] Detective Ghaznavi confirmed his understanding that upon Mr. Holmes’ arrest on the breach charge, the car could be searched, not only in the area of reach, but also an inventory search, as the car would be towed. He could not conceive of a circumstance where the car would not be searched despite the arrest being only for the breach. He confirmed that while it was important that the car be searched, he did not give Detective Cruz explicit instructions to do so.

[38] When asked what the search of the car would entail if Mr. Holmes were arrested on the breach charge, Detective Ghaznavi said the officers would be looking for evidence of the breach, and in particular Mr. Holmes’ cell phone, which would link him to the location of the transaction.

[39] Detective Ghaznavi then changed his answer and said the search would be a dual-purpose one, looking for the cell phone and the drugs.

[40] Detective Ghaznavi said he did not call off the arrest after the team lost sight of Mr. Holmes, because he felt there was a good chance the drugs were still in the car. If he was arrested for the breach, the car would be searched, and the drugs would likely be found.

[41] If Detective Ghaznavi were conducting the search himself, he would want the cell phone, and hope that the drugs were within reach of Mr. Holmes. Detective Ghaznavi understood that police have a common law right to search a car after any arrest.

[42] Detective Ghaznavi was also questioned about the Mobile Surveillance Request form (“MSR”) completed in respect of Mr. Holmes. MSRs are multi-page documents provided to surveillance teams, containing background information on the individual they are tasked with surveilling. The MSR completed in respect of Mr. Holmes indicated that Mr. Holmes was on bail for attempt murder, assault, and assault with a weapon, and that he was under house arrest.

[43] The MSR also contained a risk assessment which concluded as follows: Mr. Holmes was not known to be combative with police, he had never been the subject of a surveillance investigation, he was not confirmed to be in possession of weapons, he was not known to engage police in pursuits, and he was not associated to gangs or organized crime.

[44] The MSR indicated that Mr. Holmes’ mother was his surety, and that she resided on Church Street. Mr. Holmes’ address was identified as 38 Ianuzzi Street. Under “Associates,” Mr. Holmes was identified as being closely associated to, and living with, Mr. Christofilopoulos, who lived at 38 Ianuzzi Street.

[45] Detective Ghaznavi agreed that he did not relay the contents of the MSR’s risk assessment to Detective Cruz.

Detective Constable Eduardo Cruz – York Regional Police, 22 Years at Time of Trial

[46] Detective Constable Cruz was the Road Boss on February 4, 2021. His team consisted of himself and Detectives Baltkois, McClure, Rouillard, Conlan, and Bailey.

[47] Detective Constable Cruz’ team was initially detailed to Mr. Phung, but at 4:08 p.m. their objective had changed to Mr. Holmes. Detective Constable Cruz believes he received the MSR via email, but there was no opportunity to review it until he returned to the station later that evening. Detective Ghaznavi told him Mr. Holmes was on bail for attempt murder, and he had conditions that he was not to be out of his house unless he was working or in the presence of his surety.

[48] Detective Constable Cruz recalled Detective Ghaznavi telling him he would like Mr. Holmes in custody for breaching his bail conditions.

[49] From 4:08 p.m. to 4:20 p.m., Detective Constable Cruz (in his unmarked police car) and Detective Ghaznavi (back at headquarters, via Detective Constable Cruz’ cellphone) listened to Detective McClure, who had eyes on Mr. Holmes, over the radio. Detective McClure described the transaction in Mississauga between Mr. Holmes and Mr. Phung in real time. Listening live allowed Detective Ghaznavi to make decisions in what Detective Constable Cruz described as a fluid situation.

[50] At 4:20 p.m., Detective Ghaznavi instructed Detective Constable Cruz to arrest Mr. Holmes for breach of his recognizance.

[51] Each member of the team drove their own unmarked car and wore civilian clothing. They followed Mr. Holmes from the plaza in Mississauga to Highway 403, and then onto the Gardiner Expressway, toward Toronto. Mr. Holmes was driving too fast for a takedown to be safely conducted on either highway.

[52] Mr. Holmes took the Jarvis Street exit off the Gardiner Expressway, staying in the left curb lane. Traffic was heavy, and the team caught up to him as he approached a set of lights. Once his car was surrounded – Detective Rouillard in front, Detective Conlon on his passenger side, and Detective Constable Cruz immediately behind, Detective Cruz called the takedown. It was 4:57 p.m., and the officers activated their emergency lights and approached Mr. Holmes.

[53] Through Detective Constable Cruz, Session 44 was introduced as evidence. This cellphone intercept captured Mr. Holmes at the time of his arrest. Mr. Holmes was speaking with a friend, making dinner plans, when Mr. Holmes exclaimed “holy fuck…what the fuck man,” followed by two unknown men saying “hands up,” one after the other.

[54] Detective Constable Cruz reached Mr. Holmes’ car first. He had his gun drawn and pointed at the driver as he approached the driver’s window. He told Mr. Holmes he was under arrest, and instructed him to put his hands up, lower his window, and turn off his car. Mr. Holmes complied.

[55] Detective Constable Cruz testified that he drew his gun based on his training. Officers do not know what they are walking toward. Particularly in instances where cars have tinted windows, it is not possible to immediately assess threats to safety. They are trained to draw their guns until the situation they face is clear.

[56] Once the car was turned off Detective Constable Cruz put his weapon away. Mr. Holmes was instructed to get out of his car, and Detective Constable Cruz handcuffed him. Detective Constable McClure, who had by now joined him, conducted a quick pat down of Mr. Holmes. Mr. Holmes offered no resistance and was at all times compliant, co-operating with the officers’ demands.

[57] Detective Constable Cruz advised Mr. Holmes he was under arrest for breach of recognizance and read him a brief rights to counsel, following which Detective McClure took custody of him.

[58] Detective Constable Cruz returned to his car and advised Detective Ghaznavi, still listening on speakerphone, that Mr. Holmes was in custody.

[59] At 5:05 p.m., he returned to Mr. Holmes, who was sitting on the curb to the left of his car. He once again gave him a quick rights to counsel, but said that given the circumstances he could not affect the call immediately, as he could not guarantee Mr. Holmes privacy, and he may have to wait until they got to the district. Mr. Holmes said he understood. Detective Constable Cruz later learned that Mr. Holmes was in fact given the opportunity to call his lawyer from the scene.

[60] At 5:20 p.m., after the green bag with the cocaine was located in Mr. Holmes’ car, Detective Rouillard read Mr. Holmes his rights a second time, advising him he was now being charged with possession for the purposes of trafficking.

[61] Detective Constable Cruz testified that Mr. Holmes’ car was searched twice. He could not recall whether he instructed an officer to conduct the search, or whether an officer at the scene said they would search the vehicle. The first search was incident to arrest for breach of bail, and the officer (whom he thought was Detective Constable McClure) was looking for evidence, weapons, any means of escape, which in his view is permitted pursuant to caselaw.

[62] At 5:48 p.m., Detective Ghaznavi instructed Detective Constable Cruz to tow Mr. Holmes’ car to get it off of the road, but they need not seal it or hold it for an expert examination (when members of forensics go through the vehicle). Ten minutes later, at 5:58 p.m., Detective Ghaznavi told Detective Constable Cruz that the trunk could be searched. Detective Constable Cruz instructed Detective Constable Rouillard to search the trunk, where he located a grey plastic garbage bag containing what was ultimately determined to be a pound of cannabis.

[63] At 6:12 p.m., before leaving the scene, Detective Constable Cruz asked Constables Snellings and McCarthy (who had arrived in uniform and a marked cruiser) to give Mr. Holmes his rights to counsel on video, as the car they were escorting him in had video capabilities. This occurred at 6:19 p.m.

[64] At 6:30 p.m., Detective Bailey instructed him to cancel the tow, because Mr. Holmes’ mother was coming to pick the car up.

Cross-examination

[65] Detective Constable Cruz confirmed his instructions from Detective Ghaznavi were to not lose sight of Mr. Holmes, and to arrest him as soon as possible. Detective Constable Cruz agreed he was never instructed to arrest Mr. Holmes on the drug charges.

[66] He confirmed that from the time Mr. Holmes was located at the plaza to the takedown in Toronto, he was always within sight of someone on his team. If they had lost sight of Mr. Holmes this would definitely have been included in the notes, along with a time entry.

[67] When he returned to his car immediately after the takedown to provide an update, Detective Ghaznavi, asked what they found in the car, Detective Constable Cruz told him they had not searched the car yet. At that exact time, one of the officers came over to his car to advise that the green reusable bag had been found, with three vacuum-sealed packages inside. The green bag was given to him for safe keeping.

[68] In Detective Constable Cruz’ view, Mr. Holmes’ detention was not dual-purpose (drugs and breach), but was for the breach of his recognizance only. However, he also said that the search was for evidence of drugs, because the team had observed a drug transaction, and they were specifically looking for the green reusable bag.

[69] There was a discrepancy between Detective Constable Cruz’ evidence at the preliminary inquiry and his trial concerning his instructions to Detective Rouillard. At the preliminary inquiry he testified that he told him to search the car incident to arrest, but at trial he testified he told Detective Rouillard to search the trunk after the cocaine was found. I find nothing rests on this.

[70] During Detective Constable Cruz’ cross-examination, an entry from central notes (discussed in further detail below) came to light, which occurred after Mr. Phung had exited Mr. Holmes’ car. The notes indicate that Detective Constable Rouillard observed Mr. Holmes travelling through a commercial plaza on his way to Eglinton Avenue East, when he was seen to briefly stop and “reach in the back”.

Detective Constable Lisa Conlan – York Regional Police, 18 Years at Time of Trial

[71] Along with being a member of Detective Constable Cruz’ surveillance team on February 4, 2021, Detective Constable Conlan was tasked with being the central note taker. The note taker records significant occurrences for the officers as they happen over the course of the assignment. For example, she made note of times and locations, which allowed the officers to complete their tasks without the need to make notes for themselves.

[72] The notes are input in rough form in her notebook while out in the field. Once back at the station she reviews her rough notes and fleshes them out. She then creates a type-written report which she emails to the team.

[73] The team members review this report, and advise whether any additions or deletions were required. They then review her notebook notes and add their initials at the end, signifying they are satisfied that both her notebook notes and the report are accurate.

[74] Her notes do not indicate that the team lost sight of Mr. Holmes, even for a short period, between the transaction in Mississauga and the takedown in Toronto. This would have been a significant occurrence had it happened, and she would have made note of it.

[75] Detective Constable Conlan received information over the radio that Mr. Holmes was arrestable for breach of his recognizance, as he was on house arrest. The team was advised that the underlying charges were attempt murder, which factored into how the arrest was conducted. She recalled receiving the MSR, but she did not recall if she read it on the day in question, which she described as very dynamic.

[76] Detective Constable Conlan’s vehicle was stopped to the right of Mr. Holmes’ car when the order to arrest was made. She drew her gun and approached the passenger side of Mr. Holmes’ car. She believed Detective Bailey advanced along side her, with his gun drawn as well. Once she confirmed Mr. Holmes was alone in his car, she put her gun back in its holster.

[77] During a high-risk take down, it is the individual officer’s decision as to whether they draw their gun. In this instance, the team had been advised Mr. Holmes was on house arrest for attempt murder, which factored into how she approached the car.

[78] Detective Constable Conlan searched Mr. Holmes’ car twice. The initial search was incident to arrest, and she was initially looking for weapons. She entered his car from the driver’s side. She noticed a cell phone, but did not seize it. She then saw that there was a dog in the backseat. Once she determined the dog was friendly, she removed it and took it to her own car.

[79] She returned to Mr. Holmes’ car a second time, entering through the rear driver’s side door. She conducted this second search based what she testified were her reasonable and probable grounds to believe there were drugs in the car. These grounds were formed when Mr. Phung entered Mr. Holmes’ car with the green reusable bag, which the surveillance team believed contained drugs.

[80] In the backseat Detective Constable Conlan saw some clothing, and then she noticed that the rear folding seat on the passenger side did not align with the rear folding seat on the driver’s side. Because she believed this was an area “within reach” of Mr. Holmes, she pushed the passenger side rear folding seat forward. It moved easily because it was not latched or secured. Once she folded the seat down she saw the reusable green bag. It was in the trunk proper, but immediately behind the seat. She considered the bag to be Mr. Holmes’ property as it was within reach. She removed the bag and handed it over to Detective Constable Cruz. The green bag contained 3 vacuum-sealed bags of cocaine just as the intercepted calls described.

Cross-Examination

[81] Detective Constable Conlan provided an overview of how information is disseminated during surveillance. The team receives their directive from the team leader. The team leader receives direction from the investigators in charge of the project. The team members are not privy to the information from the investigator. She confirmed that they received the MSR each day, which comes from the investigator. The team follow instructions, they do not make decisions. For example, the decision to arrest a subject would come from above.

[82] Detective Constable Conlan confirmed that at 4:08 p.m. the team’s objective changed from Mr. Phung to Mr. Holmes. Mr. Holmes was located at 4:14 p.m., and at 4:20 p.m. the team received a quick debriefing over the radio regarding the arrest details. Specifically, they were told to arrest Mr. Holmes for breaching his house arrest condition. She believes that the team was advised that the charge was attempt murder, and that there was a weapons charge as well, although this was not recorded in her notes.

[83] Following the takedown Mr. Holmes was secured and in police custody fairly quickly. She agreed he would be handcuffed and not left alone without an officer guarding him.

[84] Once Mr. Holmes was secured, Detective Constable Cruz instructed her to search his car. She would not say that he explicitly directed her to look for the green bag, but she could not recall what his exact instructions were.

[85] Detective Constable Conlan did not see any weapons in the front seat, nor in the back seat when she removed the dog.

[86] She confirmed that when she returned to the car the second time, her focus was on locating the drugs which she had reasonable and probable grounds to believe were in the car. While she noticed the back seats were not aligned, she could not see what was in the trunk without moving the seat forward.

[87] Her reasonable and probable grounds to search the car were based on the fact that Mr. Holmes met with Mr. Phung, a known drug dealer, to conduct what the team understood to be a drug transaction. Mr. Phung was seen entering Mr. Holmes’ car with a green bag. No officer actually saw Mr. Phung get out of Mr. Holmes’ car. Her notes indicate that Detective Constable Baltkois reported “it is believed Phung exits the vehicle.”

[88] Detective Constable Conlan conceded it was possible that Mr. Phung took the bag with him when he exited the car.

[89] Had Detective Constable Cruz not instructed her to search the car, she would have done so of her own accord. This was because she had reasonable and probable grounds to believe there were drugs in the car.

[90] Detective Constable Conlan did not know what Mr. Holmes had been charged with when she searched his car. She agreed that she should have “checked that.”

[91] While the first search of the front seat, was incident to arrest, the second search of the back seat was of her own accord. Again, she had reasonable and probable grounds to believe there were drugs in the car.

[92] When Detective Constable Conlan searched the car the second time, Mr. Holmes was safely in custody, his car was secure, and there was no realistic prospect that any evidence in the car would be lost or destroyed. Despite this, it did not occur to Detective Constable Conlan to apply for a search warrant.

[93] Detective Constable Conlan agreed that according to her evidence at the preliminary hearing, the only grounds she provided for searching the car was incident to arrest, not based on reasonable and probable grounds.

[94] During re-direct, Detective Constable Conlan confirmed that at the preliminary inquiry, she was not asked whether she had any other grounds to search the car. She recalled having an independent recollection of forming reasonable and probable grounds on February 4, 2021.

Detective Constable Christopher McClure – York Regional Police, 25 Years at Time of Trial

[95] Detective Constable McClure was part of the surveillance team that was initially tasked with monitoring the movements of Mr. Phung. Their objective was to identify and photograph any associates who would meet up with him over the course of the day. At approximately 3:15 p.m. on February 4, 2021, he set up surveillance at a condominium building located on Four Springs Avenue in Mississauga.

[96] At 4:08 p.m., Detective Constable Cruz advised the team that Mr. Holmes was expected to be attending the area to conduct a transaction or transfer of drugs with Mr. Phung. They were provided with a brief physical description of Mr. Holmes and of his car, a white Honda Accord.

[97] Detective Constable McClure located Mr. Holmes’ car in a plaza on Hurontario Street. It was unoccupied. He next spotted Mr. Holmes walking toward the car carrying a white plastic shopping bag. Mr. Holmes boarded his car and drove away.

[98] The team followed Mr. Holmes as he drove out of the plaza and parked about a quarter of a kilometre away in a laneway between two rows of townhouses. He lost sight of the car at that point, and next saw Mr. Holmes’ car when it stopped near a black SUV belonging to Mr. Phung. He did not see anything further concerning that stop.

[99] While he did not observe the transaction personally, he understood that Mr. Phung was carrying a green reusable bag when he got into Mr. Holmes’ car.

[100] Shortly after the meeting between Mr. Holmes and Mr. Phung, Detective Constable Cruz instructed the team, over the radio, to stop Mr. Holmes for breach of recognizance. The team was not instructed to stop him for the drugs.

[101] When the call came to arrest Mr. Holmes in downtown Toronto, Detective Constable McClure was parked behind Detective Constable Cruz, who was parked immediately behind Mr. Holmes. The two of them approached Mr. Holmes’s car. Detective Constable McClure did not draw his gun.

[102] Detective Constable Cruz told Mr. Holmes he was under arrest, and instructed him to exit his car, which Mr. Holmes did willingly. He then placed Mr. Holmes in handcuffs. Detective Constable McClure did not recall what Detective Constable Cruz told Mr. Holmes he was under arrest for.

[103] A quick pat-down safety search uncovered $890 in a wallet in his left side pants pocket.

[104] Detective Constable Rouillard read Mr. Holmes his rights to counsel and caution in relation to the breach of his recognizance. It was 5:17 p.m. Mr. Holmes said he wanted to call his lawyer. At 5:23 p.m. Detective Constable McClure allowed him to use his work cell phone. He made the call to the lawyer, advising him that Mr. Holmes was under arrest for breach of conditions. Mr. Holmes was then secured in the rear of one of the police vehicles so he could speak to his lawyer in private.

[105] The only search Detective Constable McClure was involved with was when he retrieved Mr. Holmes’ cell phone from the Honda, at Mr. Holmes’ request, so he could call his mother to come retrieve the car and the dog.

Cross-Examination

[106] Detective Constable McClure confirmed that he was able to identify Mr. Holmes in the parking lot of the plaza based on the description that had been provided over the radio.

[107] He confirmed that the pat down search of Mr. Holmes was done for officer safety.

[108] Detective Constable McClure clarified that Mr. Holmes was read his rights to counsel twice. His notes indicted that the first rights to counsel was given at 5:15 p.m., but no time is given for his second rights to counsel. When he spoke with Mr. Holmes’ lawyer before handing the phone to Mr. Holmes, he could not recall whether he said Mr. Holmes was under arrest for just the breach, or whether he also mentioned he was under arrest for drugs.

[109] Detective Constable McClure saw Detective Constable Conlan search Mr. Holmes’ car. He did not know whether she was detailed to do so, or whether she searched it of her own accord.

[110] Detective Constable McClure would only search a vehicle incident to arrest if he was searching for evidence relating to the offence the person was arrested for. In this particular situation, he did not believe he had the legal authority to search Mr. Holmes’ car. However, he agreed in re-direct that Detective Constable Conlan may have received information that he did not, which would lead her to believe she could search the car.

Detective Constable Robert Baltkois – York Regional Police, 32 Years (Retired)

[111] On February 4, 2021, Detective Constable Baltkois’s team was initially tasked with surveilling Mr. Phung. At 4:08 p.m., the team was instructed to change their objective to Mr. Holmes. Once Detective Constable McClure had located Mr. Holmes at the plaza, the team set up surveillance in the general area.

[112] Detective Constable Baltkois was in the vicinity of the townhouse complex, and watched Mr. Holmes as he remained parked in the laneway for about seven minutes. Mr. Holmes then put his car into reverse and drove past Detective Constable Baltkois. At the same time, Detective Constable Baltkois noticed a man walking toward Mr. Holmes from the direction of the townhouse complex. The man, whom he believed to be Mr. Phung, was carrying a green reusable shopping bag. Mr. Holmes stopped his car to let the man get in on the front passenger side, and the two drove away. Photographs of the man getting into Mr. Holmes’ car, taken by Detective Constable Baltkois, were entered as exhibits.

[113] Once Mr. Holmes drove away Detective Constable Baltkois lost sight of the car, although he heard one member of the surveillance team advise over the radio that the man they believed to be Mr. Phung had exited Mr. Holmes’ car.

[114] The team followed Mr. Holmes as he left Mississauga and drove toward Toronto. The takedown was called once Mr. Holmes took the Jarvis Street exit off the Gardiner Expressway. Mr. Holmes’ car was boxed in, and Detective Constable Baltkois’s vehicle was positioned directly in front of him. His role was to remain in his car to ensure Mr. Holmes did not try to drive away. Once Mr. Holmes was out of the vehicle and securely in police custody Detective Constable Baltkois got out of his car. At no time did he draw his gun.

[115] Detective Constable Baltkois’s only interaction with Mr. Holmes was when Detective Constable McClure brought him over to his vehicle so he could sit inside and speak with his lawyer in private. This happened at 5:23 p.m.

[116] Detective Constable Baltkois understood that Detective Constable Conlan located the green reusable bag containing the cocaine at 5:14 p.m.

Cross-Examination

[117] Detective Constable Baltkois agreed that the instructions from Detective Constable Cruz were to arrest Mr. Holmes for breach of recognizance, not for a drug-related offence.

[118] Detective Constable Baltkois confirmed that his pickup truck was situated directly in front of Mr. Holmes’ car when the takedown call was made. Instead of getting out, however, he put his pickup truck into reverse and slowly backed up toward Mr. Holmes’ car, intentionally making contact. This was part of his training. The car in front backs up to create a distraction, affording the arresting officers the element of surprise. There was no damage to either vehicle and no accident report was required.

[119] When asked whether a high-risk takedown was always employed when arresting someone who is driving a vehicle, Detective Constable Baltkois said that depended on the circumstance, but the majority of the time it was the method used. He did recall information being disseminated over the radio that Mr. Holmes was in possession of narcotics, and they did not want the package getting to its intended destination.

[120] With respect to the MSR, Detective Constable Baltkois recalled that it was sent to the team electronically on their phones before they started surveilling Mr. Holmes. He recalled reviewing the document when he received it, although he did not think he went through the entire document, as things were unfolding quickly that day.

[121] Detective Constable Baltkois understood that if someone is arrested while driving their car, then the police power to search incident to arrest extended to their vehicle, regardless of what that person was arrested for.

[122] Detective Constable Baltkois confirmed that the team never lost sight of Mr. Holmes’ car from the time it was first located by Constable McClure to the takedown.

[123] In re-direct, Detective Constable Baltkois described what he meant by a dynamic situation:

A. So when we’re conducting surveillance, especially in areas that are very congested, heavy traffic and there’s a lot of information coming from different areas; from our observation points to the - the road boss is giving us information on the radio system. And we’re trying to navigate through traffic. Sometimes it can get - it can get overwhelming.

So at times, somebody might say something on the radio system, and you might not either hear it or remember it, because you’re trying not to - you’re - you’re doing something else.

Q. Right. And when things become dynamic, and they’re moving quickly, are there certain priorities or things that you have at the front of your mind to make sure are always taking place?

A. Yeah. Safety is the biggest one. So when we’re navigating through heavy traffic or - I’m not saying at this time it was, but if we were theoretically travelling at high speeds, it would - the paramount issue would always be safety. The safety of myself, safety of the person we’re doing surveillance on and safety of the public around us.

Detective Constable Brent Rouillard – York Regional Police, 16 Years at Time of Trial

[124] Detective Constable Rouillard was part of the surveillance team detailed to surveil Mr. Phung on February 4, 2021. That objective changed when the team received information that Mr. Phung was going to meet with Mr. Holmes to exchange a large amount of cocaine. Mr. Holmes was familiar to Detective Constable Rouillard – he had surveilled him previously in connection with Project Hammer.

[125] The team was advised that Mr. Holmes was on conditions for attempt murder, and that he was in breach of his house arrest condition.

[126] When their objective changed to Mr. Holmes, the team was instructed to arrest Mr. Holmes, for the breach, when it was safe to do so.

[127] Detective Constable Rouillard recalled that his vehicle was immediately behind Mr. Holmes’ car when the takedown was ordered, contrary to Detective Constable Cruz’ evidence. His role during the takedown was to stay in his car in case Mr. Holmes tried to flee. He got out of his car once Mr. Holmes was out of his vehicle and in police custody.

[128] At 5:15 p.m., Detective Constable Rouillard read Mr. Holmes his rights to counsel and caution, advising that he was under arrest for breach of recognizance. This was done at Detective Constable Cruz’s direction.

[129] Mr. Holmes indicated he wanted to speak to counsel. That was not immediately facilitated, and Mr. Holmes remained on the concrete median to the left of his car, under the Gardiner Expressway.

[130] Shortly after his exchange with Mr. Holmes, the of cocaine was located in Mr. Holmes’ car. At 5:20 p.m., and again pursuant to Detective Cruz’ direction, Detective Constable Rouillard read Mr. Holmes his rights to counsel and caution once again, this time for possession for the purposes of trafficking.

[131] Mr. Holmes said he wished to speak with his lawyer. Detective Constable McClure retrieved his own personal work phone, and took Mr. Holmes to the back of Detective Constable Baltkois’ unmarked vehicle, so he could speak to his lawyer in private.

[132] While Detective Constable Rouillard said he searched Mr. Holmes’ person both after the first rights to counsel and after the second rights to counsel, his notes suggest Mr. Holmes’ person was not searched until after he was read his second rights to counsel at 5:20 p.m. The search revealed a Honda key, a blue mask, various other keys, $890 in cash, various cards, a cold drink receipt, and a lottery ticket, all of which were placed in a property bag.

[133] At 5:58 p.m., Detective Constable Cruz instructed him to search the trunk of the car. Detective Constable Rouillard could not recall whether he was told why he was to search the trunk, but by that point he had overheard that the car was going to be released to Mr. Holmes’ mother. Inside the trunk he found a grey plastic shopping bag with a vacuum sealed package of cannabis inside. The bag appeared to contain more cannabis than for just personal consumption, and it was seized at Detective Constable Cruz’ direction.

[134] Detective Constable Rouillard did not challenge the instruction to search the trunk. He deferred to the lead investigator, who was privy to more information than he was. He explained that the surveillance team is given very limited information, enough to allow them to do their job. He followed what he believed to be a lawful order from a superior.

[135] Mr. Holmes remained in the back seat of the unmarked police vehicle until a marked police cruiser attended the scene, at which point Detective Constable Rouillard handed over custody of Mr. Holmes to Officer (now Detective Constable) Snellings. He also retrieved the seized items from Detective Constable Cruz’ car and handed them over to Officer Snellings as well.

[136] Detective Constable Rouillard provided a glimpse into the challenges faced by officers during surveillance:

Q. Can you please explain for the Court in these types of surveillance situations, what role - fluid situation, or a fast-paced situation plays in the decisions that you make.

A. Yes. I’ll try and answer the question, because...

Q. Yes.

A. ...it’s a complicated one.

Q. Yes.

A. And again, without --

Q. I’m not asking...

A. Yeah.

Q. ...you to go into investigative...

A. Giving too much...

Q. ...technique, no.

A. ...techniques. Everything happens in a moment. The subject that you’re watching is driving at whatever speed, going through traffic. I can almost confidently say, they’re never doing the speed limit. And you have to maintain observations of that. You have to control your own vehicle, and your environment. When something’s going to happen and for this example, the arrest of Mr. Holmes, everything happens in a split second.

You’re throwing on your vest. You’re looking left and right. You’re watching the subject. And it - that is the focus. You don’t have a lot of pre-planning time, because we can’t predict when something’s going to happen.

Q. And what role does - that is for - I mean, does safety play a role in this fluid situation you just described.

A. 100 percent. It’s - it’s always about safety. Our safety and, you know, even the safety of, in this particular instance, Mr. Holmes.

Cross-Examination

[137] Detective Constable Rouillard had seen Mr. Holmes previously while conducting surveillance on Project Hammer, in the company of Mr. Christofilopoulos. Detective Constable Rouillard believed Mr. Holmes was an associate of Mr. Christofilopoulos.

[138] He confirmed that the team received instructions from their Road Boss, Detective Constable Cruz, to arrest Mr. Holmes for breach of recognizance, specifically, breach of his house arrest condition. He understood that Mr. Holmes was allowed to be a work, at either a candy store or candy factory. He believed this information came from Detective Constable Cruz.

[139] Detective Constable Rouillard confirmed that the first time he read Mr. Holmes his rights to counsel he did not advise him that he was being detained in relation to a drug investigation. When asked why, he said that while he suspected Mr. Holmes was in possession of cocaine, he was not certain.

[140] Detective Constable Rouillard read Mr. Holmes his rights a second time because his jeopardy had changed. When asked whether he thought it strange that the team was instructed to arrest Mr. Holmes for breach of his recognizance instead of for the cocaine, Detective Constable Rouillard replied that he lots of thoughts, but he took direction from his superiors, and did only what he was told.

[141] When asked what legal authority he thought he had to search the trunk, Detective Constable Rouillard testified that he understood the car was being released to Mr. Holmes’ mother, and he had the grounds to search in order to protect or preserve any evidence that might be contained in it. By evidence, he meant of possession for the purposes of trafficking.

[142] By 5:58 p.m., the cocaine had already been found, so the search was conducted to determine whether there were more drugs in the trunk. He confirmed that he would not have searched the vehicle if it was being seized by police.

Detective Constable Richard Bailey – York Regional Police, 34 Years at Time of Trial

[143] Detective Constable Bailey was second-in-command of the surveillance team. They were initially detailed to surveil Mr. Phung, but their objective switched to Mr. Holmes after information was received about an imminent drug transaction between Mr. Holmes and Mr. Phung.

[144] Along with the change in direction, the team was advised that Mr. Holmes was on a release order to reside with his surety. Detective Constable Bailey understood that Mr. Holmes could be out of his home for medical reasons, or employment, or in the presence of his surety.

[145] The team was also advised that Mr. Holmes was on bail for attempt murder, information that Detective Constable Bailey said played a role, at least in his mind, as to how the arrest was approached. Attempt murder is a violent offence that oftentimes incudes weapons, and those involved in the drug culture often carry weapons.

[146] At 4:20 p.m., Detective Constable Cruz instructed the team to arrest Mr. Holmes for failing to comply with his recognizance, as he was out of his home without his surety.

[147] Detective Constable Bailey’s car was behind Detective Constable Conlan’s when the call came over the radio to arrest Mr. Holmes. He got out of his car and approached the passenger side of Mr. Holmes’ vehicle alongside Detective Constable Conlan. He does not recall whether he drew his firearm, or simply had his hand on his gun, ready to draw if necessary.

[148] The scene was chaotic in the immediate aftermath of the takedown – traffic was blocked, and people were yelling from the sidelines.

[149] Mr. Holmes was taken into custody almost immediately, and Detective Constable Bailey helped maintain vehicular and pedestrian safety at the scene. He had no interaction with Mr. Holmes either at the scene or at 4 District. He did release the car and the dog to Mr. Holmes’ mother.

[150] Detective Constable Bailey was standing close by Detective Constable Rouillard when he searched Mr. Holmes’ trunk, and saw him remove a grey shopping bag which turned out to contain a large quantity of cannabis.

Cross-Examination

[151] Detective Constable Bailey confirmed that the team was never instructed to arrest Mr. Holmes for a drug offence.

[152] Detective Constable Bailey confirmed that if the right situation presented itself, he would search a vehicle following an arrest even in the absence of instructions from a superior.

[153] Detective Constable Bailey’s understanding of search incident to arrest is that an officer can search for certain things – evidence related to the offence, or weapons, or means of escape.

[154] Detective Constable Bailey spoke with Mr. Holmes’ mother, who expressed surprise that Mr. Holmes was out driving and not at work at Jubilee Candy.

[155] During re-direct Detective Constable Bailey confirmed that the surveillance team is detailed to do only specific tasks. Investigators in the wire room have a broader overview of the assignment, and are being apprised of developments as things unfold. They are in possession of information the surveillance team is not privy to, and the surveillance team typically does not question the instructions they receive.

The Case for the Defence

[156] As is his right, Mr. Holmes did not call any evidence, nor did he testify at trial.

The Evidence

[157] Based on the information set out above, I find the following as facts.

[158] On February 4, 2021, the surveillance team was initially detailed to surveil Mr. Phung. However, based on the intercepts between Mr. Phung and Mr. Christofilopoulos, the surveillance team’s objective was changed, and they were detailed to surveil Mr. Holmes.

[159] Mr. Holmes was not a stranger to Project Hammer. Detective Ghaznavi was familiar with his nicknames, Jay and Pedro. Detective Constable Rouillard had surveilled him previously. Mr. Holmes’ phone, which police were tracking, was in the vicinity of Mr. Phung’s home. The MSR indicated that, contrary to his bail conditions that he reside with his surety, Mr. Holmes was living with Mr. Christofilopoulos.

[160] Mr. Holmes was located in a plaza, alone, in Mississauga. Mr. Holmes was seen to leave the plaza, and park in a laneway. Mr. Holmes next drove from his spot in the laneway toward a man who was walking toward him. The man was carrying a green reusable grocery bag. The man was photographed holding the green reusable shopping bag as he got into Mr. Holmes’ car. There was some confusion as to whether this man was Mr. Phung or Johnson Nguyen. I understand it to be Mr. Nguyen, although nothing rests on this point.

[161] A short while later Mr. Holmes’ car was spotted on Armdale Road, where it stopped briefly in the vicinity of a black Acura RDX. It is believed this is when Mr. Nguyen got out Mr. Holmes’ car. While no team member actually saw this occur, Mr. Holmes was alone in his car when the takedown occurred 35 minutes later. It stands to reason then, that Mr. Nguyen got out of the Honda when the car stopped on Armdale Road.

[162] Mr. Holmes drove toward Toronto, taking Highway 403 to the Gardiner Expressway. Throughout, the surveillance team never lost sight of Mr. Holmes.

[163] Mr. Holmes took the Jarvis Street exit off of the Gardiner Expressway, and was slowed down by rush hour traffic. At 4:57 p.m., the team had positioned themselves around Mr. Holmes’ car such that he was boxed in, and Detective Cruz called the high-risk takedown. Four officers approached Mr. Holmes’ car. Two of them, and possibly three, had their guns drawn.

[164] Given the hour of the day, and the location of the takedown, the situation would have been frenzied. Heavy rush hour vehicular and passenger traffic would have ground to a halt. The officers were required to process myriad pieces of information, comprehend the immediate issues, respond to the situation as it unfolded and take appropriate action, all within milliseconds. Detective Bailey confirmed that bystanders were yelling. Safety – for themselves, the public, and Mr. Holmes – was paramount.

[165] Mr. Holmes was told he was under arrest for breaching the conditions of his recognizance. He was removed from his car without incident. Mr. Holmes was immediately given a cursory rights to counsel by Detective Cruz, although given the dynamic situation, he was not immediately offered an opportunity to call his lawyer. Based on the evidence, it is unclear whether Detective Cruz read Mr. Holmes’ his rights a second time as he testified.

[166] At 5:15 p.m., Detective Constable Rouillard read Mr. Holmes his rights to counsel and caution. A call to his lawyer was not immediately facilitated.

[167] Mr. Holmes’ car was searched twice by Detective Constable Conlan. The first search was incident to arrest and confined to the front seat. Detective Constable Conlan did not find any evidence of the offence Mr. Holmes’ was arrested for, breach of his bail conditions.

[168] The second search was based on what Detective Constable Conlan said were her reasonable and probable grounds to believe there were drugs in Mr. Holmes’ car. These grounds were formed when the drug transaction between Mr. Holmes and Mr. Nguyen, back in Mississauga, was observed by members of the surveillance team.

[169] The second search was confined to the back seat, and only in the area within Mr. Holmes’ reach. When Detective Constable Conlan pushed the rear passenger seat forward, she found the green bag with the cocaine in the trunk, immediately behind the rear passenger seat. She turned the bag over to Detective Constable Cruz.

[170] At 5:20 p.m., Detective Constable Rouillard read Mr. Holmes his rights to counsel and caution a second time. The arrest scene had calmed down by this time, and Mr. Holmes was provided an opportunity to speak to his lawyer from the backseat of Detective Constable Baltkois’ unmarked vehicle.

[171] At 5:58 p.m., Detective Rouillard searched the trunk of Mr. Holmes’ car and discovered one pound of cannabis.

[172] At 6:08 p.m., Officer Snellings of York Regional Police Service arrived on the scene on a transport call. Officer Snellings was to transport Mr. Holmes to 4 District in Vaughan.

[173] At 6:19 p.m., Officer Snellings read Mr. Holmes his rights to counsel a third time. At 6:36 p.m. she left the scene with Mr. Holmes, as well as the cocaine, the cannabis, and Mr. Holmes’ personal property, and travelled to 4 District.

[174] Once at 4 District Mr. Holmes was booked into a cell, and his personal belongings lodged. At 8:43 p.m. Mr. Holmes was provided another opportunity to speak to his counsel, at his request.

ANALYSIS

[175] There is no dispute that the officers had reasonable and probable grounds to arrest Mr. Holmes for breaching the conditions of his recognizance. Accordingly, the following live issues are left for me to determine:

A. Charter Application

(i) Whether Mr. Holmes’ s. 8 Charter rights to be free from unreasonable search and seizure violated when his car was searched;

(ii) Whether Mr. Holmes’ s. 10(a) Charter rights to be informed of all the reasons for his detention violated when, at the time of his arrest, he was only told that he was being arrested for breach of his recognizance;

(iii) Whether the high-risk takedown of Mr. Holmes was unreasonable in the circumstances, constituting a breach of his s. 8 Charter rights; and

(iv) If Mr. Holmes’ s. 8 or 10(a) Charter rights were breached, whether the evidence seized from his car, namely the cocaine and the cannabis, should be excluded pursuant to s. 24(2).

[176] If Mr. Holmes’ Charter rights were not breached, or if I find his Charter rights were infringed but the evidence is saved following a s. 24(2) analysis, then the following remained of the Crown’s case to be determined:

B. Crown’s Onus

(i) Has the Crown proven the essential elements of possession beyond a reasonable doubt?

(ii) Has the Crown proven that cannabis was possessed for the purposes of distribution? and

(iii) Has the Crown proven that Mr. Holmes was bound by a recognizance on February 4, 2021?

A. Charter Application

A(i) Section 8 Right to be Free from Unreasonable Searches

Search Incident to Arrest

[177] Warrantless searches are presumptively unreasonable.

[178] The leading authority on police power to conduct a search incident to arrest is R. v. Caslake, 1998 CanLII 838 (SCC), [1998] S.C.J. No. 3, in which the Supreme Court stated, at para. 15:

Since search incident to arrest is a common-law power, there are no readily ascertainable limits on its scope. It is therefore the courts’ responsibility to set boundaries which allow the state to pursue its legitimate interests, while vigorously protecting individuals’ right to privacy.

[179] The power of search incident to arrest extends to vehicles, which are legitimately the objects of searches incident to arrest: Caslake, at para. 15.

[180] As explained in Caslake (paras. 19 and 20) the officer’s search much be “truly incidental” to arrest. This is both a subjective and objective inquiry:

The restriction that the search must be “truly incidental” to the arrest means that the police must be attempting to achieve some valid purpose connected to the arrest. Whether such an objective exists will depend on what the police were looking for and why. There are both subjective and objective aspects to this issue. In my view, the police must have one of the purposes for a valid search incident to arrest in mind when the search is conducted. Further, the officer’s belief that this purpose will be served by the search must be a reasonable one.

[181] To be clear, this is not a standard of reasonable and probable grounds, the normal threshold that must be surpassed before a search can be conducted. Here, the only requirement is that there be some reasonable basis for doing what the police officer did. To give an example, a reasonable and probable grounds standard would require a police officer to demonstrate a reasonable belief that an arrested person was armed with a particular weapon before searching the person. By contrast, under the standard that applies here, the police would be entitled to search an arrested person for a weapon if under the circumstances it seemed reasonable to check whether the person might be armed. Obviously, there is a significant difference in the two standards. The police have considerable leeway in the circumstances of an arrest which they do not have in other situations. At the same time, in keeping with the criteria in Cloutier, there must be a “valid objective” served by the search. An objective cannot be valid if it is not reasonable to pursue it in the circumstances of the arrest. Detective Constable Conlan testified that her search of the front seat of Mr. Holmes’ car was incident to arrest based on the breach charges. She testified that she was searching the car for weapons.

[182] She saw Mr. Holmes’ cellphone on the console, but did not seize it. Recall that Detective Ghaznavi testified this would be something he would hope to find in a search incident to arrest, as it could link Mr. Holmes to the calls that had been intercepted. Clearly Detective Constable Conlan did not share this view, as she passed the cellphone by.

[183] No weapons were found in in the front of the car. Detective Constable Conlan then removed the dog from back seat and placed it in her vehicle.

[184] The second search revealed the cocaine. While she was searching from the back seat, Detective Constable Conlan noticed that one of the rear split seats did not align with the other. Because this was within reach of Mr. Holmes, she believed it was fair game to search. She pushed the rear passenger seat forward. She found the green reusable bag with the cocaine, in the trunk proper, but immediately behind the rear passenger seat.

[185] Detective Constable Conlan’s evidence in respect of the searches was difficult to follow. She appeared to confuse the common law right to search Mr. Holmes’ vehicle after arrest with searches based on reasonable and probable grounds. Neither did she appear to fully grasp the limits on a search incident to arrest. Having said this, I found her evidence to be credible, as she did not appear to intend to mislead the court. She simply had difficulty articulating her grounds.

[186] I am satisfied that Detective Constable Conlan’s first search of Mr. Holmes car was a search incident to arrest, although tenuously so. I say tenuously because she could not articulate what type of evidence might be connected to the reason for the arrest on the breach charge. However, such evidence may well have been uncovered. For example, evidence to support the fact that Mr. Holmes was actually working for the candy company at the time of his arrest, and not actually in breach of his recognizance.

Reasonable and Probable Grounds

[187] This leads me to the second search of Mr. Holmes’ car. Detective Constable Conlan testified that when she returned to search the car the second time, she was looking for the green bag of drugs, as she had reasonable and probable grounds to believe the drugs were in the car.

[188] Her reasonable and probable grounds were formed in Mississauga, based on the following information:

(a) Mr. Phung, a drug dealer, was their initial target;

(b) The team was told Mr. Holmes was going to meet with Mr. Phung; and

[189] Defence counsel submits these are scant and insufficient grounds. However, the overall context in which Detective Constable Conlan’s grounds were formed must be considered, not just their individual elements. Project Hammer had been in operation for over six months, and probably closer to a year. Project Hammer was an investigation into drug trafficking. On any given day there were two to three surveillance teams assigned to surveil individuals of interest as part of the investigation.

[190] February 4, 2021 was no different. Detective Constable Cruz’ team was tasked with surveilling Mr. Phung, a principal target in Project Hammer. Two calls had been intercepted that day, between Mr. Phung and another principal target, Mr. Christofilopoulos. These calls led the lead investigator, Detective Ghaznavi, to conclude that a drug transaction was imminent. Detective Ghaznavi’s conclusion was based on his years of experience generally, and his intimate knowledge of Project Hammer. He was familiar with names, with nicknames, with voices, and with how drug transactions were transpiring.

[191] Based on the two calls, Detective Ghaznavi instructed Detective Cruz’ team to change their objective from Mr. Phung to Mr. Holmes. Mr. Holmes’ cell phone had been detected in the area of Mr. Phung’s home in Mississauga, and it was understood that Mr. Holmes would be picking up the drugs from Mr. Phung. The surveillance team was tasked with observing this potential transaction.

[192] Mr. Holmes was located, alone, in a plaza close to Mr. Phung’s home. During the surveillance that ensued, he drove to a laneway and parked there for about seven minutes. He did not move until Mr. Nguyen started walking towards him. Mr. Nguyen was carrying a green reusable shopping bag, and appeared to be coming from the condominium complex. Mr. Holmes drove toward Mr. Nguyen, stopping to let him board his car. A short time later Mr. Holmes’ car stopped briefly, in the vicinity of Mr. Phung’s Acura RDX.

[193] Thus, Detective Constable Conlan’s reasonable and probable grounds were formulated while carrying out her duties during a bona fide drug investigation. Drug dealers, drug transactions, drug culture – this was the raison d’être of Project Hammer. Detective Constable Conlan’s grounds were not formed in the context of a random traffic stop, during which drugs were seen in the car. They were formed in the face of real-time information and observations during surveillance.

[194] The second search is complicated, however, because at that point Mr. Holmes had only been arrested on the breach charge. Despite what the team knew and had observed, a conscious decision had been made not to arrest him for drugs. At first blush, this would appear to be fatal. Certainly, this is Mr. Holmes’ argument.

[195] Detective Ghazanvi’s evidence on this point is problematic. He testified that he had initially instructed the team to arrest Mr. Holmes on both the drug and breach charges. When the team lost sight of Mr. Holmes he felt the grounds to arrest on the drug charges were less tenable, as Mr. Holmes may have disposed of them. Thus, he instructed the team to only arrest for the breach.

[196] In so deciding, Detective Ghaznavi was clearly trying to protect the integrity of the project. He was candid in this regard. Arresting Mr. Holmes for trafficking in the vicinity of the drug transaction could have revealed the ongoing investigation, with disastrous results.

[197] Detective Ghaznavi testified that it would have been reasonable to arrest Mr. Holmes for the drug transaction, just further afield from where it took place. Given the breach of his recognizance, he would have wanted Mr. Holmes to believe that they observed the drug transaction during the course of investigating him for the breach. The hope was that arresting for the breach would not lead Mr. Holmes to suspect there was an ongoing drug investigation. Detective Ghaznavi said that the 30 to 35 minutes it took to affect the takedown was much longer than he would have liked.

[198] However, arresting Mr. Holmes in Toronto for drugs as opposed to the breach charge, where there was a significant gap in both time and distance between the transaction and the takedown, had the potential to wreak even more havoc on the investigation. Thus, the decision was made to arrest Mr. Holmes only on the breach charge.

[199] To an officer, every member of the surveillance team testified that Mr. Holmes was never out of their sight between Mississauga and Toronto. Why then would Detective Ghaznavi say the car was misplaced, which bore directly on HIS decision to change instructions and arrest for the breach only? That remains a question mark. His testimony was certainly confusing on this issue. Perhaps he misunderstood what he heard over the radio that day. However, I find nothing nefarious in this discrepancy. It certainly does not rise to the level of an untruth and an attempt to deceive and mislead the Court, as defence counsel submits.

[200] I do not agree that Detective Ghaznavi was evasive about the grounds. He gave his evidence in a forthright manner. It was the same evidence he gave at the preliminary inquiry. He testified that there were multiple reasons why he made the decision he did, including the ongoing investigation. In a perfect world the takedown would have happened closer to the transaction, but he emphasized the dynamic nature of these situations, saying this was an “unfortunate set of circumstances.”

[201] I find that while Mr. Holmes was initially arrested for the breach charge, he was also investigatively detained for the possession charge. In R. v. Mann, 2004 SCC 52, 3 S.C.R. 59, at para. 34, the Supreme Court found that an investigative detention must be supported by reasonable grounds. In light of what had transpired since the team received the change in directive from Mr. Phung to Mr. Holmes, as outlined above, Detective Constable Conlan had a reasonable suspicion that Mr. Holmes was implicated in the drug transaction, and that the drugs were still in his car.

[202] As the Court of Appeal held in R v. DeBot, 1986 CanLII 113 (ON CA), [1986] O.J. No. 994,

It is axiomatic that a search may not precede an arrest and serve as part of its justification, for example, where prohibited drugs are found on the suspect’s person in the course of the antecedent search and constitute the probable cause for the subsequent arrest. On the other hand, it is well established in the United States that where probable grounds exist for arresting a person, apart altogether from evidence discovered by a search, the fact that the search preceded the arrest does not preclude it from being a search incident to a valid arrest, where the arrest quickly follows on the search: see People v. Simon (1955), 290 P. 2d 531; United States v. Rogers (1971), 453 F. 2d 860; State of Maine v. LeBlanc (1975), Me., 347 A. 2d 590; In The Matter of John Doe, a Child (1976), 547 P. 2d 566; Rawlings v. Kentucky (1980), 100 S. Ct. 2556 at p. 2564.

[203] The Court of Appeal reinforced this principle in R. v. Richards, 2015 ONCA 348, [2015] O.J. No. 2478, at para. 41,

A search conducted prior to arrest will nonetheless be incidental to that arrest if: (1) prior to the search, the police had reasonable and probable grounds for the arrest; and (2) the arrest occurs quickly after the search: DeBot, at pp. 223-25 (Ont. C.A.); R. v. Polashek (1999), 1999 CanLII 3714 (ON CA), 134 C.C.C. (3d) 187 (Ont. C.A.), at para. 21; R. v. Grant and Campbell, 2015 ONSC 1646, [2015] O.J. No. 1229, at paras. 87-88.

[204] There is both a subjective and an objective component to the reasonable grounds analysis. The question to be answered is whether, based on the facts, a reasonable person standing in the shoes of the police officer, with the same knowledge, experience and training, would have believed the grounds existed.

[205] As O’Marra, J. held in R. v. Anang, 2015 ONSC 3463, [2015] O.J. No. 2933, at para. 31:

The test for reasonableness does not require that the matter be viewed from the perspective of a reasonable layperson but rather from the standard of a reasonable person “standing in the shoes of the police officer.” The reasonable person must be deemed to have the same level of experience as the officer whose actions are being scrutinized. An objective assessment of the grounds will thus include consideration of the officer’s experience as well as the dynamics within which he or she acted. See R. v. Hanson, [2009] O.J. No. 4152, at paras. 58 and 59 (SCO); and R. v. Tran, 2007 BCCA 491, [2007] B.C.J. No. 2341, at para. 12.

[206] Detective Constable Conlan was looking for the cocaine that she believed was in Mr. Holmes’ car. This knowledge was based on the information she had available to her, including the intercepts and the surveillance. I concede that no one on the surveillance team saw Mr. Nguyen leave Mr. Holmes’ vehicle. Further, no one knows whether, if he left, he took the drugs with him. However, it was subjectively reasonable to believe that the drugs were still in the car. Perhaps not beyond a reasonable doubt, but certainly more than suspicion or a hunch: R. v. Shepherd, 2009 SCC 35, [2009] S.C.J. No. 35, at para. 23.

[207] Detective Constable Conlan had the subjective grounds to search the car.

[208] Detective Constable Conlan also had objective grounds to search the car. This was based on the cumulative effect of not only the intercepts and the surveillance, but also the scope and intent of Project Hammer, a wide-spread and ongoing investigation into drug trafficking; the connection between Mr. Phung and Mr. Christofilopoulos, the primary targets; and the surveillance conducted on February 4, 2021 in furtherance of Project Hammer’s objective.

[209] There were reasonable and probable grounds to arrest Mr. Holmes for cocaine prior to the search of the car, thus the first part of the DeBot test is satisfied.

[210] The second part of the DeBot test is also satisfied. The green reusable bag with the cocaine was found at 5:17 p.m., and Mr. Holmes was arrested for possession at 5:20 p.m.

[211] The same grounds that support Detective Constable Conlan’s lawful search of the car’s interior extend to Detective Constable Rouillard’s search of the car’s trunk. See R. v. Ahmad, 2020 SCC 11, [2020] 1 S.C.R. 577, at para. 82, where the Supreme Court confirmed that “police officers must be able to rely on the investigative work of other officers and it is not necessary for the particular officer making the call to personally have all the information that supports reasonable suspicion … Police work often relies on multiple officers conducting individual parts of an investigation.”

[212] Thus, the searches did not result in any s. 8 violation.

A(ii) Section 10(a) Right to Adequacy of Reasons for Arrest

[213] Section 10(a) of the Charter provides that upon arrest, every person has the right “to be informed promptly of the reasons therefor”. One feature of the right to be promptly advised of the reason for one’s detention “lies in its role as an adjunct to the right to counsel” as individuals can only exercise their s. 10(b) rights in a meaningful way if they know the extent of their jeopardy: R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 SCR 869, at para. 31.

[214] Mr. Holmes was arrested on a charge of breach of recognizance, and was informed of such. He was also investigatively detained for the charge of possession for the purposes of trafficking, based on the cumulative knowledge of the team over the course of that afternoon. The arresting officers failed to advise Mr. Holmes about the investigative detention. Accordingly, he remained unaware of the full extent of the jeopardy he faced, and his s. 10(a) Charter rights were breached.

A(iii) Section 8 Right to be Free From Unreasonable Seizure

[215] Mr. Holmes submits that the manner in which his arrest was affected was unreasonable, because his arrest at gunpoint was unnecessary and an extreme measure. He relies on the Court of Appeal’s decision in R. v. Pino, 2016 ONCA 389 in support of this argument.

[216] In Pino, the trial judge found that although the police had reasonable and probable grounds to arrest Ms. Pino, her s. 8 Charter rights were breached because the masked takedown at gunpoint was unreasonable. As the Court of Appeal held, at para. 24: “When an accused challenges the “manner” of a search, the Crown must justify the police’s conduct. Here, the police offered no specific justification for an armed take-down”.

[217] In this case, the officers who drew their guns, as well as the officers who did not, testified that the decision to arrest at gunpoint is left to the individual officer’s discretion. They base their decisions on the facts known to them.

[218] Detective Constable Cruz and Detective Constable Conlon drew their firearms. Detective Bailey could not recall if he drew his gun or not. Detective Constable Conlon believed Detective Bailey had his gun drawn as he approached Mr. Holmes’ car alongside of her.

[219] Decisions made by police in respect of how they conduct an arrest are to be “assessed in light of the information reasonably available to them at the time the decision was made”: R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at para. 4.

[220] Each officer testified that the fact that Mr. Holmes was on a recognizance for attempt murder was a key factor in how they carried out the takedown. Detective Constable Cruz took into consideration the fact that the windows in Mr. Holmes’ car were tinted, preventing him from conducting a risk assessment as he approached the car. Detective Bailey considered the fact that in the drug culture, weapons are involved in drug transactions.

[221] As Cromwell, J. observed in Cornell, at para. 24:

[T]he police must be allowed a certain amount of latitude in the manner in which they decide to enter premises. They cannot be expected to measure in advance with nuanced precision the amount of force the situation will require … It is often said of security measures that, if something happens, the measures were inadequate but that if nothing happens, they were excessive. These sorts of after-the-fact assessments are unfair and inappropriate when applied to situations like this where the officers must exercise discretion and judgment in difficult and fluid circumstances. The role of the reviewing court in assessing the manner in which a search has been conducted is to appropriately balance the rights of suspects with the requirements of safe and effective law enforcement, not to become a Monday morning quarterback.

[222] I find that the officers’ decision to draw their firearms was justified on the information available to them at the time, including the fact that Mr. Holmes was on a recognizance for an attempt murder charge. The arrest was carried out in a reasonable manner. The guns were drawn only as they approached Mr. Holmes’ car, and were immediately re-holstered when each officer was satisfied there were no safety risks.

[223] Further, the very public nature of the high-risk takedown demanded it. Mr. Holmes was an unknown entity. He may have had a passenger with him, who would also be an unknown entity. The safety of the immediate public – in their cars, and as pedestrians – justified guns drawn in the event occupants of the car resisted arrest and put the public in danger.

[224] Mr. Holmes submits that Detective Ghaznavi’s failure to point out Mr. Holmes’ low-risk assessment as set out in the MSR was a calculated decision, because he hoped it would justify a search of Mr. Holmes’ car. Had he advised that the MSR did not provide that Mr. Holmes was a high risk, the officers might have decided not to search the vehicle based on claimed safety concerns. I do not find favour with this argument. The situation unfolded the afternoon of February 4, 2021 in a rapid progression of information coming in and split-second decisions being made. The team all received the MSR electronically, but only one officer had the time to read it.

[225] The fact that no officer completed a use of force report does not diminish the reasonableness of their actions in these circumstances. This case differs from that of R. v. Hassan, 2020 O.J. No. 1573, where not only did the officers fail to complete a use of force report, but those officers who drew their guns failed to indicate, in either their notes or the investigative action reports, that the arrest was conducted at gunpoint.

[226] The Crown has satisfied me that the use of force in this case was justified and that there was a risk of both officer and public safety that warranted a high-risk takedown at gunpoint. Thus, there was no s. 8 violation.

A(iv) Should the Evidence be Excluded

Analysis on Section 10(a) Charter Breach

[227] Having found that Mr. Holmes’ s. 10(a) Charter rights were violated, a determination of whether the evidence located by Detective Constable Conlan ought to be excluded pursuant to s. 24(2) of the Charter is required.

[228] I am guided in this determination by the Supreme Court’s decision in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32. When considering whether to exclude the evidence, I am to assess and balance the following factors: the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter protected interests of the accused, and society’s interest in the adjudication of the case on its merits.

[229] As the Supreme Court of Canada held in R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 143:

This Court has previously observed that, when considering the seriousness of the Charter-infringing conduct, a court’s task is “to situate that conduct on a scale of culpability” (Paterson, at para. 43). The operating premise here is that inadvertent, technical or otherwise minor infringements impact less upon the rule of law and, therefore, upon the reputation of the administration of justice than wilful or reckless disregard of Charter rights (Grant, at para. 74; Harrison, at para. 22).

[230] The breach of Mr. Holmes’ s. 10(a) Charter rights was a technical one. The cocaine was found in Mr. Holmes’ car minutes after he was arrested for breaching his bail conditions. The arrest for possession followed very shortly thereafter. Thus, for a period of five minutes, Mr. Holmes was detained without a complete picture of the charges he faced.

[231] This was a fleeting breach, and in the timespan during which it existed, nothing would have unfolded any differently. The evidence demonstrated that in the immediate aftermath of the arrest, there was no opportunity for Mr. Holmes to speak with counsel from the roadside while the breach was operational.

[232] When Mr. Holmes was arrested the second time, the commotion surrounding the takedown had calmed down sufficiently, and his request to speak with his lawyer could be facilitated. Detective Constable McClure even allowed Mr. Holmes to use his own work-issued cell phone to make the call.

[233] The encroachment on Mr. Holmes’ liberty interest was momentary, and he made no inculpatory statements while the breach was operational.

[234] As the Supreme Court held in Grant in para. 71, the following three-part test is to be applied when considering the admissibility of evidence when Charter breaches are alleged:

When faced with an application for exclusion under 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to:

(1) the seriousness of the Charter-infringing state conduct;

(2) the impact of the breach on the Charter-protected interests of the accused; and

(3) society’s interest in the adjudication of the case on its merits.

(1) Seriousness of the Charter Infringing State Conduct

[235] When assessing the seriousness of the police conduct “the court’s task … is to situate that conduct on a scale of culpability with inadvertent or minor violations at one end and wilful or reckless disregard of Charter rights at the other.” (R. v. Marakah, 2017 SCC 59, [2017] S.C.J. No. 59 at para. 61; Grant, at para. 74).

[236] The conduct of the police, in the fluid and rapidly evolving aftermath of the takedown, does not represent a disregard of Mr. Holmes’ Charter rights. There was a team of officers involved. At times one might not know what the other was doing. Detective Constable Conlan conceded she did not know whether Mr. Holmes had been arrested for both the breach and the drugs when she searched his car.

[237] In my view, there was no police conduct that the court should wish to dissociate itself from, and admitting the evidence would not undermine public confidence in the administration of justice. This factor favours inclusion.

(2) Impact on the Charter Protected Interests of the Accused

[238] The impact of the breach on Mr. Holmes does not warrant exclusion of the evidence. By the time Mr. Holmes spoke with his lawyer at the roadside, which was within a reasonable period of time, he was fully apprised of the extent of the jeopardy he faced.

[239] Mr. Holmes’ rights were not seriously, or even significantly, compromised. This factor does not favour exclusion.

(3) Society’s Interest in an Adjudication on the Merits

[240] I find that this final factor weighs heavily in favour of admitting the evidence. Society’s interest in the adjudication of this case on the merits is a high one. The evidence uncovered during the search of Mr. Holmes’ car is integral to the Crown’s case, and highly reliable. The charges Mr. Holmes faces are serious, and there is a significant societal interest in adjudicating trafficking crimes on the merits. Excluding the evidence would seriously undermine public confidence in the criminal justice system. This third factor favours inclusion.

(4) The Section 24(2) Balancing Process

[241] The Supreme Court in Grant held as follows at para. 127:

As a general rule, however, it can be ventured that where reliable evidence is discovered as a result of a good faith infringement that did not greatly undermine the accused’s protected interest, the trial judge may conclude that it should be admitted under s. 24 (2). On the other hand, deliberate and egregious police conduct that severely impacted the accused’s protected interest may result in exclusion, notwithstanding that the evidence may be reliable.

[242] Here I have not found there to be any deliberate or egregious police conduct. The evidence is both reliable and crucial to the Crown’s case. In all of the circumstances, I find that the admission of the evidence would not bring the administration of justice into disrepute.

Analysis on Section 8 Charter Breaches – In the Alternative

[243] In the event I am wrong in finding that Mr. Holmes’ s. 8 Charter rights were not infringed, I am not satisfied that, when viewed either independently or cumulatively, the breaches would be such that the evidence should be excluded.

[244] As Henschel, J. held in R. v. Ruscica, [2017] O.J. No. 6615, 2017 ONCJ 864, at para. 98:

Exclusion of evidence is not automatic upon a finding that it was obtained in a manner that violated the Charter. Section 24(2) of the Charter requires the Court to exclude evidence only if it is established that, having regard to all the circumstances, its admission would bring the administration of justice into disrepute. The accused bears the burden of proving this on a balance of probabilities.

(1) Seriousness of the Charter Infringing State Conduct

[245] If there was an infringement of Mr. Holmes’ Charter rights, there was nothing in the evidence before me to suggest that the police officers who took an active role in the takedown and searches willfully neglected or disregarded his rights. Each officer was acting on the instruction of a superior. The decision to arrest Mr. Holmes was based on facts that were discernible to police at the time. As noted above, the culmination of the evidence led them to conclude that a drug transaction involving a kilogram of cocaine had transpired.

[246] Not every officer who approached Mr. Holmes drew their weapons. Those who did provided a rational justification for doing so. Further, the searches to Mr. Holmes’ vehicle were not conducted in an unreasonable manner.

(2) Impact on Mr. Holmes’ Charter Protected Interests

[247] As provided for in Grant, the impact of a Charter breach may range from fleeting and technical to profoundly intrusive. See Grant, at para. 76.

[248] In this case, the manner in which the arrest was carried did not represent a substantial impact on his Charter-protected interests. The officers were not aggressive, and Mr. Holmes’ dignity was not impaired by their actions. However, neither can the way in which the arrest was carried out be said to be a minimal intrusion. The police approached his car with their guns drawn. It was only Mr. Holmes’ compliance with the officers’ demands that resulted in Mr. Holmes being treated reasonably and not subdued by force.

[249] The impact of the breach, if there was one, was serious. This inquiry favours exclusion.

(3) Society’s Interest in an Adjudication on the Merits

[250] Again, this factor weighs heavily in favour of admission. Excluding the evidence would seriously undermine public confidence in the criminal justice system.

(4) The Section 24(2) Balancing Process

[251] In conducting this balancing exercise of Mr. Holmes’ s. 8 Charter rights, I once again find that the admission of the evidence would not bring the administration of justice into disrepute.

Conclusion on Charter Issues

[252] Mr. Holmes’ application to exclude the evidence obtained during the search of his car is dismissed.

[253] I turn now to the balance of the issues to be determined.

B. Crown’s Onus

B(i) Elements of Possession

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

(3) For the purposes of this Act,

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

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

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

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

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

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

[155] Under s. 4(3), possession includes personal possession, constructive possession and joint possession: R. v. Morelli, [2010] 1 S.C.R. 253, [2010] S.C.J. No. 8, 2010 SCC 8, at para. 15. Knowledge and control are essential elements in both personal and constructive possession: Morelli, at para. 15.

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

(i) knows the character of the object;

(ii) knowingly puts or keeps the object in a place; and

(iii) intends to have the object in the place for his or her use or benefit or the use or benefit of some other person.

[157] As with other offences, Crown counsel may prove the essential elements of constructive possession by direct evidence, by circumstantial evidence or by a combination of direct and circumstantial evidence. Where the subject matter of which an accused is alleged to be in possession is a controlled substance of significant value, it may be open to a trier of fact to infer not only knowledge of the nature of the subject, but also knowledge of the substance itself: R. v. Blondin, 1970 CanLII 1006 (BC CA), [1971] B.C.J. No. 656, 2 C.C.C. (2d) 118 (C.A.), at p. 121 C.C.C.; R. v. Fredericks, [1999] O.J. No. 5549 (C.A.), at paras. 3-4; R. v. To, [1992] B.C.J. No. 1700, 1992 CanLII 913 (C.A.); and R. v. Bryan, [2013] O.J. No. 673, 2013 ONCA 97, at para. 11. It is a reasonable inference that such a valuable quantity of drugs would not be entrusted to anyone who did not know the nature of the contents of the bag or other container.

[256] The drugs were in the trunk of Mr. Holmes’ car. Because they were not in Mr. Holmes’ immediate possession, the Crown must prove construction possession beyond a reasonable doubt.

[257] The Crown concedes its case is circumstantial with respect to the drugs, but submits that when relying on circumstantial evidence, it is not incumbent upon the Crown to prove each fact that supports an inference of guilt beyond a reasonable doubt: R. v. Morin, [1998] 2 S.C.R. 345 at 360-62.

[258] The Crown does have to prove that the only reasonable inference that can be drawn from the facts is that Mr. Holmes had knowledge and control of the drugs that were in the car he was driving.

[259] Mr. Holmes submits that this is not the only inference. Another reasonable inference could be that Mr. Holmes had borrowed the car, perhaps from the woman who picked it up from the scene, the contents of the bags belonged to her, not Mr. Holmes, and Mr. Holmes did not know about them. This inference is available even in the absence of any evidence from Mr. Holmes.

[260] Drawing inferences of one’s knowledge from circumstantial evidence is a difficult exercise, but as the British Columbia Court of Appeal held in R. v. To, 1992 CanLII 913 (BC CA), [1992] B.C.J. No. 1700, at para. 41:

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

[261] The inference suggested by Mr. Holmes is irrational in my view. Detective Constable Bailey testified that the woman who picked up the car was his mother. I suppose some scenario may exist whereby the drugs would come to be in Mr. Holmes’ mother’s car without Mr. Holmes’ knowledge. But this cannot be said to be a reasonable inference.

[262] Mr. Holmes was the only driver of the white Honda on February 4, 2021. He was detected to be in the vicinity of one of the prime targets of Project Hammer, Mr. Phung. The court heard intercepts in which Mr. Phung and Mr. Christofilopoulos, another prime target (and whom Mr. Holmes is identified to be closely associated with) discussed a kilo of cocaine and how it was to be divided into three pieces. The first of these calls also referred to someone named Jay. Detective Ghaznavi testified that Mr. Holmes used the nickname Jay.

[263] The court also heard Mr. Christofilopoulos say, in Session 113, that “he doesn’t know that we’re taking one today.”

[264] These calls were not intercepted in isolation. They were obtained in the course of an ongoing investigation into drug trafficking.

[265] Defence counsel submits that the intercepts do not directly implicate Mr. Holmes, and that Detective Ghaznavi’s evidence was contradicted by Detective Gill, who testified that of the three names mentioned in the intercept: JF, Met, and Peso, none were Mr. Holmes. However, in that same intercept there a very distinct and clear reference to Jay, whom Mr. Phung said he was getting a “pack ready for right now.” Detective Ghaznavi’s evidence is not contradicted.

[266] The surveillance team saw Mr. Holmes stop to let Mr. Nguyen into his car. He was carrying a green reusable shopping bag. He was photographed getting into Mr. Holmes’ car with the green reusable bag in his hand. The green bag itself was tendered into evidence.

[267] The cocaine, also brought into court, was divided into three pieces as discussed in the intercept. The green bag was large, and the cocaine weighed a kilogram. Neither are of an insignificant size. I agree with the Crown that it strains credulity that Mr. Holmes would not know that Mr. Nguyen got into the front seat of his car with a large green bag, or that he left without taking the bag with him.

[268] Based on the evidence before the court, I am satisfied that Mr. Holmes had exclusive control of the cocaine once Mr. Nguyen exited his car. The police did not lose sight of Mr. Holmes between Mississauga and Toronto. When Mr. Holmes was arrested, he was the sole occupant of his vehicle. The green reusable bag was found inside the vehicle.

[269] I concede that Mr. Holmes was not seen to handle the bag, and that the bag was not in plain view. But I am also struck by the observation of Detective Rouillard, who observed Mr. Holmes to stop his car and “reach in the back” after Mr. Nguyen got out of his car. It is reasonable to infer that this is when Mr. Holmes placed the cocaine in the trunk, directly behind the rear passenger seat.

[270] The Crown does not need direct evidence to prove knowledge and control. In my opinion, the only reasonable inference is that the green reusable bag containing the cocaine was placed in Mr. Holmes’ car by Mr. Nguyen, and Mr. Holmes was aware it was in his car.

B(ii) For the Purposes of Distribution

[271] I am not satisfied that the amount of cannabis found in Mr. Holmes’ car was for the purpose of distribution. Certainly, no evidence was led that this amount of cannabis, in and of itself, is commensurate with possession for the purposes of distribution.

[272] The grey plastic bag in the trunk contained only the cannabis. There was no indicia of distribution found in the car – scales, baggies, or debt lists, for example.

[273] The Crown has not proven the elements of this offence beyond a reasonable doubt.

B(iii) Mr. Holmes was Bound by a Recognizance on February 4, 2021

[274] The defence admits that Mr. Holmes was outside of his home, alone, on February 4, 2021.

[275] The defence further admits that the police served Mr. Holmes with notice pursuant to the Canada Evidence Act, R.S.C., 1985, c. C-5 (CEA) that was filed as an exhibit (the “Notice”).

[276] At trial the Crown sought to admit into evidence certified copies of the Recognizance and the two Informations. Reliance on certified copies of documents triggers s. 23 and 28 of the CEA.

[277] The defence submits that the two certified copies of the Recognizance (unsigned version – Exhibit C; signed version – Exhibit F) and the two certified copies of the Informations (Exhibits D and E) are inadmissible as they fail to comply with the notice requirements provided for in the CEA.

[278] More specifically, the information contained in the Notice was “not reasonable as it failed to identify, with at least some specificity, the Recognizance and Information that the Crown proposed to rely on.” Mr. Holmes did not receive reasonable notice, as it was possible he was bound by more than one Recognizance or Information

[279] If there was no reasonable notice, then the Recognizance and the Informations are inadmissible. In the absence of any evidence that Mr. Holmes was bound by a recognizance on February 4, 2021, the Crown cannot prove the breach of recognizance charges beyond a reasonable doubt.

[280] The defence relies on three Ontario Court of Justice judgments in support of these submissions. While not binding on me, the cases hold informational value.

[281] In R. v. Verde, [2012] O.J. No. 2694, 2012 ONCJ 368, at para. 11, Wright J. confirmed that s. 28 does not require a particular form of notice. Wright J. also confirmed that there is no express requirement that a copy of the subject document accompanies the notice. However, content, information and volume of the notice is important in determining whether the notice is reasonable in all of the circumstances.

[282] Detective Constable Hull confirmed that, on the advice of counsel, Mr. Holmes did not sign the Notice. He also confirmed that Mr. Holmes was not shown a copy of either the Recognizance or the Informations.

[283] However, in my view the Notice provides sufficient specificity. It indicates that Mr. Holmes was at large on a recognizance, and bound to comply with its conditions. It further indicates that he, without lawful excuse, failed to comply with the following conditions:

Remain in your residence at all times except while at court appearances, or meeting with your lawyer, while at employment or school, unless you are in the presence of one or both of your sureties.
Do not possess or consume any unlawful drugs or substances except with a valid prescription in your name.

[284] It cannot be argued that additional identifying information could have been included that more particularized the breach – the location of the offence, for example.

[285] However, the Notice advised Mr. Holmes that the “relevant” Recognizance and Informations would be relied upon. This is reasonable notice that the Recognizance and Informations were directly related to the conditions that were breached. In other words, the very documents that bound Mr. Holmes to his conditions.

[286] The defence argument in this respect fails, and the two copies of the Recognizance and the two Informations are admitted into evidence.

CONCLUSION

[287] Mr. Holmes, please stand.

[288] I find you guilty of one count of possession of cocaine for the purposes of trafficking, and two counts of failure to comply with release conditions.

Casullo J.

Released: February 14, 2024

[^1]: I note that this second call is different from the second call that Detective Gill testified to playing for Detective Ghaznavi. For the purposes of clarity, there were three intercepts between Mr. Phung and Mr. Christofilopoulos, Sessions 310, 323, and 113.

REASONS FOR DECISION

OVERVIEW

FACTS

Case for the Crown

Detective Anandvir Gill – York Regional Police, 16 Years at Time of Trial

Detective David Ghaznavi – York Regional Police, 18 Years at Time of Trial

Cross-examination

Detective Constable Eduardo Cruz – York Regional Police, 22 Years at Time of Trial

Cross-examination

Detective Constable Lisa Conlan – York Regional Police, 18 Years at Time of Trial

Cross-Examination

Detective Constable Christopher McClure – York Regional Police, 25 Years at Time of Trial

Cross-Examination

Detective Constable Robert Baltkois – York Regional Police, 32 Years (Retired)

Cross-Examination

Detective Constable Brent Rouillard – York Regional Police, 16 Years at Time of Trial

Cross-Examination

Detective Constable Richard Bailey – York Regional Police, 34 Years at Time of Trial

Cross-Examination

The Case for the Defence

The Evidence

ANALYSIS

A. Charter Application

A(i) Section 8 Right to be Free from Unreasonable Searches

Search Incident to Arrest

Reasonable and Probable Grounds

A(ii) Section 10(a) Right to Adequacy of Reasons for Arrest

A(iii) Section 8 Right to be Free From Unreasonable Seizure

A(iv) Should the Evidence be Excluded

Analysis on Section 10(a) Charter Breach

(1) Seriousness of the Charter Infringing State Conduct

(2) Impact on the Charter Protected Interests of the Accused

(3) Society’s Interest in an Adjudication on the Merits

(4) The Section 24(2) Balancing Process

Analysis on Section 8 Charter Breaches – In the Alternative

(1) Seriousness of the Charter Infringing State Conduct

(2) Impact on Mr. Holmes’ Charter Protected Interests

(3) Society’s Interest in an Adjudication on the Merits

(4) The Section 24(2) Balancing Process

Conclusion on Charter Issues

B. Crown’s Onus

B(i) Elements of Possession

B(ii) For the Purposes of Distribution

B(iii) Mr. Holmes was Bound by a Recognizance on February 4, 2021

CONCLUSION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 6

Legal Tests 5

Legislation 6