COURT FILE NO.: CR-24-288 DATE: 2025 04 29 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ROBERT CAMERON Carlos Rippell, for the Applicant Applicant
- and - HIS MAJESTY THE KING Carrie Vanden Broek, for the Respondent Crown Respondent HEARD: October 17-18, 2024; April 8, 2025 REASONS ON CROWN VOLUNTARINESS APPLICATION AND DEFENCE APPLICATION MADE PURSUANT TO THE CHARTER OF RIGHTS AND FREEDOMS MANDHANE J. INTRODUCTION [ 1 ] This case involves a traffic stop under the Highway Traffic Act, R.S.O. 1990, c. H.8 ( HTA ) that quickly escalated into a criminal investigation for firearms offences. The accused, a middle-aged Black man, was driving a Jeep on a residential street in the middle of the afternoon when he was stopped by a patrolling police officer with the Peel Regional Police Services. Using automated intelligence, the officer’s mobile data unit (MDU) told him that the registered owner of the Jeep had outstanding drug charges in Toronto, had a suspended license, and that—if the driver was also the owner—he could be charged with traffic offences and the Jeep could be impounded for seven days. On that basis, the officer stopped the Jeep to determine whether the driver was indeed the owner. Before stepping out of his cruiser, the officer called for police back up. [ 2 ] The accused was immediately cooperative and identified himself as the owner. Within two minutes of their initial interaction, the officer had the accused handcuffed in the back of his cruiser without access to his phone or personal property. A few minutes after that, the officer advised the accused that he was under arrest for driving while suspended and read him his rights to counsel; the accused did not want to speak to a lawyer at that time. [ 3 ] Twenty minutes later, while the accused was still handcuffed in the back of the cruiser, the officer instructed a backup police officer to do an “inventory search…in case of anything.” After the back up officer found some license plates, the officer asked the accused to identify whose they were; the accused told him they were his girlfriend’s (“the license plate statements”). The back up officer then found a firearm underneath a mat in the cargo area of the Jeep. The accused was charged with firearms offences and read his rights to counsel and caution. The accused responded that he wanted to speak to his lawyer; but the officer could not reach counsel while on the scene. While still handcuffed in the back of the cruiser, the officer asked the accused to confirm that the contents of the Jeep belonged to him (“the contents question”). [ 4 ] The accused is charged with possession of an unlicensed firearm and related offences contrary to the Criminal Code , R.S.C., 1985, c. C-46 (“Code”). The trial is set for July 28, 2025, for five days with a jury. As case management judge, I heard two applications. First, the defence brings a Charter application seeking to exclude evidence about the accused’s utterances to police and the firearm obtained through the search of his Jeep. The defence says that the police violated the accused’s right not to be arbitrarily detained (s. 9), right to be free from unreasonable search and seizure (s. 8), and right to counsel (s. 10(a) & (b)). The defence says that I should exclude the evidence because the breaches are egregious and systemic (s. 24(2)). Second, the Crown asks me to declare the license plate statements voluntary. [ 5 ] The Crown says that the arrest, detention and search were all reasonable and that the license plate statements were voluntary because there was no coercion exerted or quid quo pro offered. The Crown admits that the officer breached the accused’s right to counsel by asking the “contents question,” but says that the breach was inadvertent, did not result in any incriminating statements being made or seizure of any further real evidence. On that basis, the Crown says that I should not exclude the firearm. [ 6 ] To decide the defence application, I must answer the following questions on a balance of probabilities standard: a. Section 9: Has the Defence proven that the accused’s arrest and detention in the back of the police cruiser was unnecessary? b. Section 8: Has the Crown proven that the warrantless search of the Jeep was reasonable? c. Section 10(b): Has the defence proven that the accused was improperly interrogated after asserting his right to counsel? d. Section 24(2): If Mr. Cameron’s Charter rights were breached, would admitting the firearm and statements to police bring the administration of justice into disrepute? [ 7 ] Based on my answers to these questions, I would exclude the firearm and the accused’s utterances from being relied upon by the Crown at trial. The police officer’s decision to handcuff and detain the accused inside his cruiser for driving while suspended was arbitrary and unreasonable; all that was necessary was a brief roadside detention. The police officer conducted a pre-text search of the Jeep without a warrant or legal authority. The police officer’s questioning of the accused after he asked to speak to counsel of choice was an obvious and egregious violation of his rights. [ 8 ] The Charter breaches are especially serious because the officer subjected the accused to differential and degrading treatment in part because he was Black. The evidence must be excluded because systemic anti-Black racism in law enforcement undermines the administration of justice, the rule of law, and the broader social contract, and case law shows that racial profiling is a systemic and intractable problem within the Peel Regional Police Service. A STEP-BY-STEP BREAKDOWN OF THE TRAFFIC STOP [ 9 ] Traffic stops develop in unpredictable ways. That is why I must proceed step-by-step through the interaction between the officer and the accused to determine whether, as the situation developed, the officer stayed within his authority given the information he had at that time: R. v. Nolet , 2010 SCC 24 , at para. 4 . The traffic stop [ 10 ] One Sunday afternoon around 3:00 p.m. in October 2023, Peel Regional Police Service Officer Anand Gandhi was patrolling the residential area of Bovaird Drive and Gillingham Drive in Brampton. He was in uniform with a body-worn camera, and driving a police cruiser equipped with an MDU, and an automated license plate reader (ALPR). The officer explained that, through a form of “artificial intelligence,” the ALPR system used cameras mounted on the outside of his cruiser to scan passing vehicles; automatically relay their license plate information to the MDU, which then automatically cross-checked it against Ontario Ministry of Transportation databases; and then automatically alerted the officer via the MDU about the vehicle and its registered owner(s). [ 11 ] While passing a red Jeep going in the opposite direction, the ALPR read the license plate and the MDU notified Officer Gandhi that the registered owner, “Robert Cameron,” was “under suspension” for medical and administrative reasons, that his vehicle was “impound eligible,” and that he had outstanding drug charges in Toronto. From this point onwards, Officer Gandhi testified that he knew that he had the legal authority to tow the Jeep pursuant to s. 55.1 of the HTA because “impound eligible” meant that an officer was required to impound the vehicle for seven days. [ 12 ] At 3:08 p.m., Officer Gandhi made a U-turn, followed the Jeep, and pulled it over. He testified that his only investigative plan was to determine if the driver was the registered owner. However, before exiting his cruiser or confirming the driver’s identity, Officer Gandhi called for backup and advised dispatch that he was aware of the driving suspension and the criminal charges. Officer Gandhi explained that he called for backup before determining whether the driver was the registered owner because his experience told him that it was more efficient to call first and cancel later if needed because it was a busy time of day traffic-wise which meant he would have to wait for backup to arrive. Arrest and detention for traffic offences; seizure of phone [ 13 ] When Officer Gandhi approached the Jeep at 3:09 p.m., the accused was cooperative and identified himself as the owner and provided his identification. He told the officer that he did not know that his license was suspended but explained that he was just getting some takeout. Officer Gandhi said that his investigative plan at this point was to arrest the accused, confirm the suspensions with the Canadian Police Information Centre (“CPIC”), and then release the accused on a summons. [ 14 ] At 3:10 p.m., Officer Gandhi arrested the accused for driving while suspended, asked him to step out of the Jeep and turn around with his hands up, and handcuffed him in the back. He then walked the accused over to his police cruiser, confirmed verbally that the accused did not have anything dangerous, patted him down over and under his jacket and around his waistband (his underwear is visible in the video), seized his phone and wallet, and held his personal items in the front cabin of the cruiser. As of 3:11 p.m., Officer Gandhi admitted that the accused was totally confined in the backseat of the cruiser because his hands were cuffed behind his back, the cruiser did not unlock from the inside, and he did not have access to his phone. [ 15 ] Officer Gandhi acknowledged that police power to arrest is “awesome” and that he could have exercised his discretion not to arrest the accused. Officer Gandhi specifically denied treating the accused differently or handcuffing him behind his back because of the way he looked, i.e. because he was a Black man. The officer maintained that it was his “common practice” to handcuff and place suspended drivers in the back of his cruiser because it was a “safe place” to speak with them. The officer could not say whether his practice was consistent with the law, his training or standard police practice. He testified that he had not received any training on how to use his arrest powers under the HTA . He denied detaining the accused because he was Black, but also admitted that he had stopped another vehicle earlier that day for driving on a medical suspension but did not place the female driver in handcuffs or in the back of his cruiser, explaining that her vehicle was not being impounded and “she was just around the corner from her ill father’s residence.” [ 16 ] Officer Gandhi admitted that he did not have lawful authority to seize the accused’s phone and that it was “possible” that the accused had a high degree of privacy in its contents but explained that he seized the phone because it was a search incident to arrest under the HTA . The parties agree that there is no such authority. The officer explained that “by definition,” if a person was in his custody, he would seize all their personal property, whether it was weapons or anything else. He said that doing so was consistent with his training as a Peel police officer. He said his plan was to release the property back to the accused after he confirmed the suspension with CPIC and wrote up the summons. He said it was typical for a person under arrest for a suspended license to spend 1.5 hours handcuffed in the back of his cruiser without access to their phone or property. Rights to counsel on the HTA offences; seizure of keys [ 17 ] At 3:11 p.m., a special constable arrived on the scene and walked over to Officer Gandhi, who was outside the cruiser. Officer Gandhi testified that special constables sometimes respond to “routine” or “low priority” calls but that, in this instance, he was waiting for an “actual” officer. On cross-examination, he admitted that a traffic stop was a low priority matter but denied calling for police backup because he had already decided to search the Jeep because of the outstanding drug charges. While talking to the special constable, Officer Gandhi disabled the microphone on his body-worn camera because the conversation with the special constable was “private” and police policy at the time was unclear as to whether he was supposed to keep his microphone on when dealing with other officers. The Crown did not adduce evidence of any “unclear” policy and Officer Gandhi admitted that the policy was now clear that his microphone was meant to stay on during the entirety of the interaction with the accused. [ 18 ] At 3:12 p.m., while his microphone was still disabled, Officer Gandhi read the accused his rights to counsel and caution, and recorded the answers in his police notebook. When asked whether he wanted to call a lawyer, Officer Gandhi testified that the accused said, “No, not right now.” His evidence in this regard was not challenged. Officer Gandhi then continued to speak with the special constable until 3:15 p.m. but could not remember any part of their conversation. [ 19 ] At 3:15 p.m., after turning his microphone back on, Officer Gandhi opened the door to the police cruiser, asked the accused for his car keys (which the accused did not have on his person), and then asked him to step out so that he could search him to retrieve them. The accused complied and let the officer search his pockets but they were not on his person. At 3:16 p.m., Officer Gandhi retrieved the keys from the Jeep and returned to the cruiser. He told the accused that the keys were in the ignition and that he was going to keep them in the front of the cruiser because he “didn’t want anyone running off with your car.” Officer Gandhi testified that he needed the keys to tow the Jeep but also admitted that he had not yet confirmed the suspension with CPIC or called for a tow truck. [ 20 ] At 3:17 p.m. the Officer began to type information into his MDU to confirm the suspension with CPIC, and radioed dispatch to advise that he had the accused in custody and that he was “still alone right now.” About 90 seconds later, the officer engaged the accused in further conversation, asking him if he knew why he was suspended for medical reasons, to which the accused replied, “I am not sure…” After reminding the accused that he did not have to speak to him, the officer asked him again to provide a reason for the medical suspension. At that point, the accused replied, “I would prefer to have a lawyer to speak to.” Officer Gandhi then stated, “You don’t have to tell me buddy…I just see that its ‘medical reason’ and I am just wondering if it was like a heart attack or like a stroke or something like that...?” The accused replied, “I might have to go look into it,” to which the officer confirmed again, “yeah, yeah, yeah, you don’t have to say anything to me in that regard, man.” Search of Jeep; “license plate statements” [ 21 ] At 3:31 p.m., Officer Gandhi advised the accused that his Jeep was being seized. He testified that the Jeep was going to be towed to a private impound lot that was under contract to the police. Officer Gandhi had still not started writing up the summons. [ 22 ] At this point, Officer Mudhar arrived as backup and approached the cruiser. Officer Gandhi instructed him to do a careful inventory of the Jeep, told him that he would call for the Jeep to be towed, and instructed Officer Mudhar to keep his body-worn camera turned on “in case of anything.” Here, Officer Gandhi says that the search of the Jeep was authorized by s. 55.2 of the HTA because it allowed him to impound the Jeep which necessarily required him to conduct an inventory of its contents. Officer Gandhi testified that police policy required him to do an inventory search before impounding the Jeep to document any valuables or existing damage. He testified that they did an inventory search regardless of whether the vehicle was going to be held by police or in a private impound lot. Officer Gandhi admitted that he did not have any other grounds to search the Jeep at that time, and that he still had not written up the summons. [ 23 ] While Officer Mudhar began his search, Officer Gandhi remained in the cruiser and engaged the accused in conversation again, saying, “You do realize you can’t be driving, right?” The accused did not reply. The officer then asked the accused for his address, which he provided, and asked him, “How far is that from here?” and, again, the accused answered that it wasn’t far. After obtaining the accused’s phone number, Officer Gandhi started to enter the information into the MDU. [ 24 ] A few minutes later, Officer Mudhar approach the Jeep and showed Officer Gandhi some license plates that he had found inside. Officer Gandhi then asked the accused whose license plates they were. The accused responded that they were his girlfriend’s, explained why he had them in his car, and provided her name, address, and the model of her vehicle. Officer Gandhi then asked the accused, “Have you had anything to drink?” to which the accused replied, “No.” Officer Gandhi stated that he was not investigating an offence at this point but just clarifying “what’s going on.” Officer Gandhi had still not started writing up the summons at this point in the interaction. Firearms arrest and right to counsel; “contents question” [ 25 ] At 3:26 p.m., Officer Mudhar gestured to Officer Gandhi to come over to the Jeep and showed him some contents. Again, Officer Gandhi turned off his microphone before speaking with Officer Mudhar. During their interactions, Officer Gandhi learned that Officer Mudhar had found a firearm underneath the cargo mat, which itself was covered in construction materials and debris. [ 26 ] At 3:27 p.m., Officer Gandhi radioed dispatch to say that they had found a firearm, and told the accused that “search incident to the vehicle” had located a firearm. At 3:28 p.m., Officer Gandhi arrested the accused for unauthorized possession of a firearm , and read him his right to counsel and caution a second time (this time on camera). At 3:29 p.m., the accused advised Officer Gandhi that he wished to speak with counsel of choice, and that counsel’s phone number was in his wallet. Officer Gandhi searched the wallet at 3:31 p.m. At 3:32 p.m., with his microphone on, Officer Gandhi instructed Officer Mudhar to make the firearm safe of any ammunition and to continue the “inventory.” After re-entering the cruiser at 3:36 p.m., Officer Gandhi called the accused’s lawyer, left a message, and asked him to call back. He could not get in touch with counsel while on the scene. [ 27 ] Officer Gandhi then disabled his microphone again and had further interactions with Officer Mudhar, while taking photos of the firearm and ammunition seized. [ 28 ] After turning his microphone back on, around 3:43 p.m., Officer Gandhi asked the accused whether he was taking any medication. At 3:45 p.m., Officer Gandhi instructed Officer Mudhar to take the firearm back to the station. Officer Gandhi told the supervising officer who arrived on the scene that the accused “lived around the corner.” At 3:47 p.m., the supervising officer instructed Officer Gandhi to do an inventory search incidental to the Jeep being towed, referring to the fact that people sometimes disputed the contents of the vehicle after the fact. Officer Gandhi had not yet called a tow truck at this point. [ 29 ] Around 3:53 p.m., Officer Gandhi asked the accused, “Is everything in the vehicle all yours?” Officer Gandhi explained that the “contents question” was a “general blanket statement,” and that he was just making casual conversation. While Officer Gandhi admitted that the focus of the investigation had now shifted to the firearm and that he knew he had to wait to question the accused until he had spoken to counsel, he denied doing anything inappropriate by asking the contents question. [ 30 ] Officer Gandhi eventually transported the accused to the police station, where he was lodged a 4:24 p.m. pending a bail hearing the next morning. CHARTER ANALYSIS [ 31 ] Because the accused was driving while suspended, the defence concedes that Officer Gandhi had the legal authority to stop the Jeep, to check the accused’s ownership and identification, to briefly detain him at the roadside to write up a summons, to require that the Jeep be impounded at the accused’s expense, and to release the accused at the roadside: HTA , s. 55.1. The parties also agree that Officer Gandhi had the discretionary authority to arrest the accused, though they disagree on whether he should have exercised it: HTA , s. 217(2) . [ 32 ] I now turn to the alleged Charter breaches. a. Section 9: Was the accused’s arrest and detention in the back of a police cruiser unnecessary? [ 33 ] The defence argues that the accused’s arrest and detention in the back of the cruiser was unnecessary and breached his s. 9 rights . The power to arrest and detain for purely regulatory offences must be used sparingly and only where reasonably necessary in the totality of the circumstances: R. v. Aucoin, 2012 SCC 66 , at para. 39 . The Supreme Court has said that it will be a “rare case in which it will be reasonably necessary to secure a motorist in the rear of a police cruiser,” and found that it was not reasonable to do so even where the traffic stop took place at night during a crowded holiday, where the driver was intoxicated, and where his car was going to be impounded: at para. 43. [ 34 ] From my step-by-step breakdown of the traffic stop, I find that the following facts are relevant to assessing whether Officer Gandhi stayed within the confines of the law when he arrested and detained the accused: • Officer Gandhi called for police backup and told them that the accused had outstanding criminal charges before confirming that the driver was the owner of the Jeep. • Officer Gandhi only learned that the accused was a Black man after pulling him over but before deciding whether to arrest and detain him. • Officer Gandhi arrested the accused before asking him why he was suspended, and before confirming the MDU suspension information with CPIC. • Officer Gandhi handcuffed and detained the accused in the back of his cruiser before giving him his rights to counsel and before confirming the suspension with CPIC, and even though his ultimate plan was to release him at the roadside. • Officer Gandhi seized the accused’s phone without any legal authority and before confirming the suspension with CPIC. • Officer Gandhi disabled his microphone while speaking to the special constable for about four minutes, did not take notes about their conversation, and could not recall what they spoke about at trial. • Officer Gandhi dismissed the special constable from the scene in favour of waiting for police backup even though he admitted that this was a low priority traffic stop. • Officer Gandhi seized the accused’s keys before confirming the suspension with CPIC, writing up the summons, or calling for a tow. [ 35 ] Based on these facts, I reject Officer Gandhi’s testimony that he exercised his discretion in favour of arresting and detaining the accused in the back of the cruiser because this was “common practice” and necessary based on the safety concerns inherent with roadside stops. Foremost, there were no objective safety concerns or risk that the accused would flee. This was a routine traffic stop for suspended driving; the stop took place on an empty suburban street on a Sunday afternoon; the accused was totally compliant and not intoxicated; he exited the Jeep willingly; and the outstanding charges were for non-violent crimes. Officer Gandhi could not offer any reason as to why his interactions with the accused could not have taken place at the roadside, or why a special constable could not have assisted with “low priority” tasks like verifying information with CPIC, drafting a summons, arranging for a tow, itemizing contents, or releasing the accused at the roadside. [ 36 ] It also strikes me as odd that Officer Gandhi disabled his microphone while speaking to the special constable. I reject his evidence that he disabled it because police policy was unclear at the time. His explanation about the “privacy interest” in officer communications makes no sense whatsoever. There can be no privacy interest in the professional communications between law enforcement personnel engaged in an active traffic investigation–these are precisely the types of interactions that body-worn cameras are meant to capture. Officer Gandhi’s evidence was also internally inconsistent because he did not disable his microphone when he instructed Officer Mudhar to conduct an “inventory search,” and did not disable it after his supervisor arrived on the scene and referenced the need to do an “inventory search.” Based on this inconsistency, I am prepared to infer that Officer Gandhi disabled his microphone selectively to tell the special constable that he was going to wait for a police officer to arrive as backup because he suspected that the accused might have drugs in the Jeep. [ 37 ] It was also telling that the officer could not point to any legal authority, training, or police policy to support his “common practice” of detaining suspended drivers in the back of a cruiser for up to an hour and a half at a time. In general, he exhibited a troubling lack of knowledge about the law. For example, he admitted that he had never heard of the principle of restraint when it comes to arresting and detaining criminally accused persons. He did not make any reference to the legal requirement on officers to release a person arrested under the HTA as soon as practicable after serving them with a summons: Provincial Offences Act, R.S.O. 1990, c. P.33, s. 149(1). Officer Gandhi’s evidence about his “common practice” was also internally inconsistent because he admitted in cross-examination that he had exercised his discretion not to detain a female suspended driver in the back of his cruiser during a roadside stop earlier that very same day. [ 38 ] Taken as a whole, the arrest and detention were not reasonably necessary for safety reasons. While defence counsel notes that this finding alone is sufficient to establish the s. 9 breach, he argued that it was “open to me” to find that the officer had engaged in racial profiling as part of his overall treatment of the accused. Therefore, I go on to consider whether Officer Gandhi was motivated by racial bias when arresting and detaining the accused because it is relevant to my analysis under s. 24(2). [ 39 ] An officer engages in racial profiling when race or racial stereotypes are used, either consciously or unconsciously, and to any degree, in the selection or treatment of a suspect: R. v. Le , 2019 SCC 34 , at para. 76 . In R. v. Brown (2003), 64 O.R. (3d) 161 (C.A.), the Court of Appeal defined racial profiling as illegitimately using race as a proxy for criminality or general criminal propensity, and noted that the attitudes that underpin racial profiling can be consciously or unconsciously held: at paras. 7-9. [ 40 ] Racial profiling is not a human characteristic or inherent flaw: it is an act of discriminatory decision-making. Racial profiling is a decision that is tainted by illogic reasoning that replaces individualization with stereotype: R. v. Bailey, 2024 ONSC 2136 , at paras. 4-8 . In that regard, racial profiling has two inherent components: attitude and causation: R. v. Dudhi , at 2019 ONCA 665 , para. 54 . In short, to constitution racial profiling the stereotyped thinking must consciously or unconsciously play a causal role in the officer’s decisions regarding suspect selection or treatment. [ 41 ] Racial profiling will rarely be proven with direct evidence because that would require a police officer to admit to being influenced by racial stereotypes, even where they might be unaware of that influence: Brown , para. 44 . The record will be capable of supporting a finding of racial profiling where the circumstances of the detention correspond to the phenomenon of racial profiling and provide a basis for the court to infer that the police officer is lying about why he or she singled out the accused person for attention: Brown , para. 45 . In R. v. Sitladeen, 2021 ONCA 303 , at para. 49 , the Court of Appeal clarified that it is not necessary for a court to find that an officer lied when he denied relying on racial stereotypes because racial profiling can be grounded in the officer’s unconscious racial biases. [ 42 ] While there was no direct evidence of racial profiling here, there is ample circumstantial evidence from which I can draw an inference that Officer Gandhi’s decision to arrest and detain the accused was motivated in part by the fact that he is a Black man. Indeed, Officer Gandhi’s decision has common indicia of racial profiling, namely, deviations from standard police practice (i.e. not using restraint when arresting or detaining), failing to assess the totality of the situation (i.e. not observing the lack of safety concerns or risk of absconding), and an insufficient non-discriminatory reasons for the treatment (i.e. resort to “common practice”): see Elmardy v. Toronto Police Services Board, 2017 ONSC 2074 ; Nassiah v. Peel Regional Police Services Board, 2007 HRTO 14 . [ 43 ] On a balance of probabilities, I find that Officer Gandhi relied on information about the accused’s outstanding charges (of which he was presumed innocent) combined with stereotypes about Black men being more prone to criminality and more dangerous than other people, to justify his decision to arrest and detain the accused. Because of the accused’s outstanding drug charges, the officer’s suspicions about possible criminal activity were already heightened when he approached the Jeep. This explains why he called for police backup for a routine traffic stop before confirming that the driver was the owner. While I accept that the officer did not know what the driver looked like when he first pulled him over, he would have known that the driver was Black immediately upon speaking with him at the roadside. Within two minutes of learning this additional information, Officer Gandhi exercised his discretion to arrest him, pat him down, check his waistband, handcuff him, secure him in the back of his cruiser, and take his phone. Officer Gandhi did all this before asking the accused about the nature of his suspensions, confirming the suspensions in CPIC, writing a summons, or calling a tow truck. The only available inference is that Officer Gandhi subjected the accused to an arbitrary detention in part because he was Black. While I accept Officer Gandhi’s evidence that he did not believe that he was treating the accused differently because of his race, nonetheless, I find that he was influenced by his unconscious racial biases when deciding how to treat the accused. b. Section 8: Was the search of the Jeep reasonable? [ 44 ] The Crown has the burden of proving that the warrantless search of the Jeep was reasonable: R. v. Dunkley, 2016 ONCA 597 , at para. 32 . For a search to be reasonable under s. 8 of the Charter , it must be authorized by law, the law itself must be reasonable and the search must be carried out in a reasonable manner: Dunkley , para. 32 . To be authorized by law, the police must be able to point to a specific statutory provision or common law rule authorizing the search; the search must be carried out in accordance with the procedural and substantive requirements that the law provides; and the search must not exceed its authorized scope: Dunkley , para. 33 , referring to R. v. Caslake, [1998] 1 S.C.R. 51. [ 45 ] The police do not have a “common law” right to conduct an inventory search incident to every traffic stop, and an inventory search does not automatically flow from the right to impound a vehicle: Caslake , at para. 12 ; R. v. Ellis, 2016 ONCA 598 , at para. 56 ; R. v. Harflett, 2016 ONCA 248 at para. 20 .; R. v. Baichu-Tait, 2021 ONSC 6207 , at para. 65 ; R . v. Martin , 2012 ONSC 2298 While the Crown argued that Baichu-Tait was wrongfully decided and therefore not binding on me. I do not accept this submission: Baichu-Tait was not appealed by the Crown and remains good law. In that case, Justice Kurz exhaustively canvassed the same caselaw that the Crown relies upon before me, and applied it to the very same statutory provision to conclude that an inventory search could not be justified in every case where a vehicle as towed under s. 55.2 : at paras. 45-70. [ 46 ] From my step-by-step breakdown of the traffic stop, I find that the following additional facts are relevant to assessing whether Officer Gandhi stayed within the confines of the law when he searched the Jeep: • Officer Gandhi kept his microphone on when he instructed Officer Mudhar to do an “inventory search…in case of anything,” but disabled his microphone while speaking to the officer as the search unfolded. • Officer Mudhar found the firearm in the back of the Jeep, under a cargo mat that was covered in construction debris and other junk, before Officer Gandhi had written up the summons. • Officer Gandhi told the accused that the firearm was found as a “search incident to the vehicle” rather than as part of an inventory search. • Officer Gandhi kept his microphone on while telling his supervisor that he had already done an inventory search. • Officer Gandhi never ended up writing the summons for the HTA offence and the accused was never served with it. [ 47 ] Based on these facts and my findings in relation to s. 9, I reject Officer Gandhi’s evidence that he believed that the search was authorized because he was impounding the vehicle. All the evidence before me points to the “inventory search” of the Jeep being a pretext for a criminal investigation that was tainted by racial bias ( i.e. the unconscious stereotype that Black men are more prone to criminality). I find that Officer Gandhi formed the intention to search the Jeep for evidence of criminal activity immediately after learning that the driver was a Black man. This is the only logical explanation for why Officer Gandhi disabled his microphone while dismissing the special constable who arrived on the scene before the search, kept his microphone on while instructing Officer Mudhar to do an “inventory search…if anything,” disabled his microphone while instructing Officer Mudhar during the search of the Jeep, and why he kept his microphone on when his supervisor arrived on the scene. Three additional facts are also particularly telling in terms of determining the officers overriding motivation for searching the Jeep. The first is Officer Gandhi telling the accused that they found the firearm as a search “incident to the vehicle” rather than as an inventory search pursuant to the HTA or even police policy. This is an obvious Freudian slip. The second is Officer Mudhar’s decision to search underneath the cargo mats after speaking with Officer Gandhi (whose microphone was conveniently disabled during their conversation). There was no reasonable basis for the officers to conclude that there would be valuables that needed to be documented there. The third is the fact that Officer Gandhi never wrote up a summons for the HTA offences—despite ostensibly searching the Jeep pursuant to the HTA . The totality of the evidence supports a finding that Officer Gandhi relied on stereotypes about Black people being more prone to criminal behavior, combined with the accused’s outstanding charges, to embark on a criminal investigation by searching the Jeep. The search of the Jeep was a pretext search that was not authorized by law and breached the accused’s s. 8 rights. c. Section 10(b): Was the accused interrogated after asserting his right to counsel? [ 48 ] The Crown conceded in its oral argument that Officer Gandhi breached the accused’s rights because he did not hold off on questioning him after he asked to speak to his lawyer, i.e. the contents question. The Crown says that the breach was not serious because it was unintentional and did not result in the taking of any inculpatory statements. With respect, the Crown downplayed the Charter breach. Officer Gandhi asking the accused if “everything in the car was his”—immediately after Officer Mudhar found a firearm, after he asked to speak to counsel, and while detained in the cruiser—was, at worse, an attempt to elicit incriminating evidence, and at best, reckless and cavalier with the accused’s 10(b) rights in the face of very serious charges: R. v. Belsito and Nkrumah , 2024 ONSC 3063 , at para 21-25 . d. Section 24(2): Would admitting the firearm and the statements bring the administration of justice into disrepute? [ 49 ] In determining whether to exclude evidence, I must consider 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 adjudication of the case on its merits: R. v. Grant, 2009 SCC 32 . The objective is not to assign blame, punish the police, or deter future Charter breaches, but to “preserve public confidence in the rule of law and its processes”: R. v. Whittaker , 2024 ONCA 182 , at para. 29 . The seriousness of the state conduct [ 50 ] The Charter infringing conduct was very serious. Officer Gandhi unnecessarily arrested, handcuffed, pat-down searched, and confined the accused in the back of his cruiser for nearly ninety minutes without any legal basis for doing so. The officers searched the accused’s Jeep without legal authority and as a pretext to expose criminal activity. Officer Gandhi continued to question the accused after he asserted his right to counsel. While he did not elicit any incriminating evidence from this interaction, this was an obvious breach that Officer Gandhi himself would not acknowledge as improper: R. v. Paterson , 2017 SCC 15 , [2017] 1 S.C.R. 202, at paras. 44 , 46. Indeed, he showed a cavalier attitude towards the law throughout his interactions with the accused and in his testimony before me : R. v. McGuffie , 2016 ONCA 365 , at paras. 75-78 . For example, by disabling his microphone at key points in the traffic stop, Officer Gandhi deprived this court of cogent evidence about what was in his mind immediately after detaining the accused in the cruiser and while searching the Jeep. [ 51 ] The state conduct was also poisoned by racial discrimination. Officer Gandhi substituted reason for stereotype when he assumed that the accused was more dangerous than other suspended drivers because he was Black. In the absence of any objective safety risk, the officer’s unconscious bias led him to exercise his discretion in favour of arresting and detaining the accused in total physical and psychological isolation for ninety minutes. The officer then relied on stereotypes about Black people being more prone to criminality to illegally search his Jeep. I have no trouble concluding that the main reason that the accused was subjected to the arrest, detention and search was because he was a Black man. Put differently, had the driver been, say, a White woman, I am confident that Officer Gandhi would not have exercised his discretion to handcuff and detain her in the back of his cruiser for over an hour for the sole purpose of writing up a summons. He admitted that, earlier the same day, he had exercised his discretion not to arrest or detain a suspended female driver. Watching the body-worn camera footage I was struck by the disconnect between the officer’s repeated breach of the accused’s Charter rights and the accused’s generally compliant and deferential attitude towards the officer in the face of it. I have no trouble inferring that, as a Black man, the accused would have experienced the situation as potentially dangerous and that he was doing everything in his power not to escalate the situation or “trigger” the officer into using force. [ 52 ] I agree with Justice Barnes that, “[t]he analysis of Charter rights and breaches must occur from a perspective that acknowledges systemic racism”: R. v. Byfield, 2023 ONSC 4308 , at para. 65 . Anti-Black racism is an unacceptable fact of our society. One of the most damaging and persistent stereotypes in the criminal justice system is that Black men are more dangerous and more prone to criminality than White men or men from other races: R v Holloway , 2021 ONSC 6136 , at paras. 46 , 51-56. While Officer Gandhi’s racial bias was likely unconscious and the product of our culture and his own worldview, that is not an excuse or even a mitigating factor in terms of the seriousness of the conduct: Sitladeen , at para. 54 . The fact that Officer Gandhi is himself is racialized—he is a Brown man—does not insulate him from the insidious power of anti-Black racism, stereotype, and racial bias. [ 53 ] The social context for the breach makes it more serious because Black people are over-represented at every stage of the criminal justice system. Anti-Black racism in the criminal justice system impacts individuals, families, and entire communities, many of whom already have long histories of distrust towards police and state authorities rooted in slavery and segregation: Morris, 2018 ONSC 5186 , at para. 22 . The over-representation of Black men in the criminal justice system has caused intergenerational trauma and entrenched poverty within Black communities: Morris , at para. 22 . Generations of Black children have grown up in single-parent families without stable male role-models, caregivers or providers, which in turn increases their exposure to the child welfare and criminal justice systems, which in turn leads to increased social marginalization and continuing criminalization of Black communities. [ 54 ] The overrepresentation of Black people in the criminal justice system has its roots in policing. The Supreme Court of Canada has recognized that racial profiling is systemic insofar as racialized and low-income communities experience disproportionate levels of policing on a day-to-day basis: Le, at paras. 80, 97. Nearly twenty years ago, the Peel Regional Police Services Board acknowledged the existence of racial profiling, that it had no place in law enforcement, and designated it a prohibited practice for which officers are subject to disciplinary action: Peart v. Peel (Regional Municipality) Police Services Board (2006), 217 O.A.C. 269 , at para. 94 . Yet, in the intervening twenty years, Peel police officers have repeatedly been found to have engaged in racial profiling by courts and the human rights tribunal: Holloway ; Byfield , R. v. Morgan , 2023 ONSC 6855 ; R. v. Gala-Nyam , 2023 ONSC 2241 ; R. v. James , 2021 ONSC 3794 ; R. v. Tutu , 2021 ONSC 5375 ; R. v. French , 2022 ONCJ 134 ; JKB v. Peel (Police Services Board) , 2020 HRTO 172 ; Nassiah v. Peel Regional Police Services Board, 2007 HRTO 14 . Clearly, racial profiling is systemic and intractable within Peel police. Impact of the breach on the Charter-protected interests of the accused [ 55 ] But for the Charter- infringing search, the police would not have found the firearm and the accused would have been released on a summons at the roadside that same day. Clearly the breach had a significant impact on the accused since it resulted in the charges before the Court which have been ongoing for many months. Even without the accused swearing an affidavit, I have no trouble finding that his arbitrary detention would have caused him physical and psychological distress. The body-worn camera footage shows that his knees were bent at a sharp angle and his head is nearly touching the top of the cabin. I also find that he would have been scared during the interaction based on the pace at which the events were unfolding, the heavy-handed way he was being treated, and his lived experiences as a Black man: Le, para. 93. Society’s interest in adjudication of the case on its merits [ 56 ] It goes without saying that society has a strong interest in the adjudication of firearm possession cases. Gun crimes pose a grave danger to our society, and cases involving possession of a loaded gun will usually warrant a penitentiary sentence of three years or more: R. v. Nur, 2015 SCC 16 , at paras. 1 & 82 . However, there is also no 'firearms exception' requiring that guns obtained in breach of Charter rights be admitted into evidence—I must still engage in the Grant analysis in every case: Whittaker , at para 60 ; Morgan , para. 96 . Weighing the factors: the evidence should be excluded [ 57 ] Weighing the Grant factors, I would exclude the firearm and all of the accused’s utterances to police. The seriousness of the breaches and the impact on the accused favour exclusion. While firearms offences are serious, admitting the firearm into evidence in the context of this case would bring the administration of justice into disrepute. [ 58 ] The seizure of the firearm was the seed of a poisoned fruit because it was inextricably tainted by the officer’s discriminatory decision to arrest and detain the accused and, ultimately, to illegally search his Jeep. The short-term gains that flow from racial profiling in terms of police investigations and evidence-gathering cannot overshadow the intergenerational trauma that anti-Black racism in policing causes and the social ills it perpetuates: Morgan , at para. 95 . That is why, despite the difficulties of proving it, once it is found, racial profiling cannot be condoned. Racial profiling is offensive to equality and individual human rights: Peart , at para. 93 ; Morgan , at para. 94 . If left unchecked, racial profiling allows law enforcement officials with awesome state powers to erode trust in policing, which may make some members of Black communities less likely to report crimes, and less likely to cooperate with police: Peart para. 93 . On the flip side, if there is no accountability for racial profiling when it is exposed by the courts, members of the Black community may become further alienated from and less likely to participate in the administration of justice as accused persons, victims, witnesses, jurors or prisoners. In short, racial profiling undermines the rule of law, the administration of justice, and the broader social contract. [ 59 ] I would exclude the evidence under s. 24(2) of the Charter . My finding under s. 24(2) is dispositive of the Crown’s voluntariness application. The license plate statements took place while the accused was arbitrarily detained such that they were not voluntary. _____________________ Mandhane J. Released: April 29, 2025 COURT FILE NO.: CR-24-288 DATE: 2025 04 29 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ROBERT CAMERON Applicant - and - HIS MAJESTY THE KING Respondent REASONS ON CROWN VOLUNTARINESS APPLICATION AND DEFENCE APPLICATION MADE PURSUANT TO THE CHARTER OF RIGHTS AND FREEDOMS Mandhane J. Released: April 29, 2025