R. v. Dillon and Shifara, 2025 ONSC 3166

NEWMARKET COURT FILE NO.: CR-23-91105149-00
DATE: 20250527
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN: HIS MAJESTY THE KING – and – CASH ALEXANDER DILLON and JARRA JOSHUA SHIFARA
D. Mideo, for the Respondent Crown
B. Vandebeek and A. Rice, for Cash Dillon
R. Chartier, for Jarra Shifara
HEARD: May 12, 13, 14, 15, 16, 23, 2025
REASONS FOR DECISION ON CHARTER APPLICATION – S. 8, 9, 10, 24(2)
CHRISTIE J.

Overview

[ 1 ] Cash Dillon and Jarra Shifara stand charged, jointly, with the following offences alleged to have been committed in October to December, 2022:
a. Possession of a restricted firearm without licence (x2) – contrary to s. 92(1) CC ;
b. Possession of a loaded restricted firearm without licence – contrary to s. 95(1) CC ;
c. Possession of a restricted firearm with readily accessible ammunition without licence – contrary to s. 95(1) CC;
d. Offer to transfer firearms and prohibited devices – magazines – when not authorized to do so – contrary to s. 99(1)(b) CC;
e. Import into Canada firearms and prohibited devices – magazines – when not authorized to do so – contrary to s. 103(1)(a) CC;

[ 2 ] Jarra Shifara is also charged individually, but on the same indictment, with possession of cocaine for the purpose of trafficking, alleged to have been committed on December 30, 2022 – s. 5(2) of the CDSA

[ 3 ] Jarra Shifara is also charged individually, on a separate indictment, with the following offences alleged to have been committed on December 30, 2022:
a. Possession of a firearm while prohibited – s. 117.01(1) of the CC ;
b. Fail to comply with term of probation prohibiting the possession of weapons – s. 733.1(1) of the CC

[ 4 ] In very brief summary, it is alleged that, in the course of a vehicle stop to check for sobriety, police formed grounds for a Cannabis Control Act ( CCA ) search of the vehicle and occupants – the driver being Mr. Shifara and the passenger being Mr. Dillon. During the search of Mr. Dillon, a loaded Glock firearm was said to have been located in his groin area. During the search of the car, a second Glock firearm was said to have been located in the back passenger seat area. Also, during the search of the vehicle, police claim to have located, a white substance and a significant amount of cash in the centre console. During the booking process search of Mr. Shifara, cocaine was said to have been found in his jacket.

[ 5 ] A two-week jury trial is scheduled to commence on June 2, 2025.

[ 6 ] Both Mr. Dillon and Mr. Shifara have brought Charter applications declaring breaches of their rights under ss. 8, 9, 10(a) and 10(b) of the Charter and seeking to exclude all evidence obtained pursuant to section 24(2) of the Charter . In broad terms, the Applicants argue that PC Thomas was not credible about the reason for the stop and the steps that he took throughout, in that he used sobriety and the CCA as a reason to stop, detain, and search, while the real reason was to investigate potential criminal activity. In the alternative, the Applicants argue that, even if PC Thomas is found to be credible as to his developing reasons to stop, detain, and search, he was improperly using an investigative detention to gain grounds to search under the CCA , without telling Mr. Shifara and Mr. Dillon the reason for their detention or advising of rights to counsel. As for the searches conducted, the Applicants argue that PC. Thomas did not have grounds to search pursuant to section 12 of the CCA , and the search was conducted in an intrusive manner. The Applicants argue that the various breaches must lead to exclusion of all statements and evidence obtained.

[ 7 ] The Crown concedes that there has been a s. 10(b) breach in relation to both Mr. Dillon and Mr. Shifara, however, argues that this breach does not warrant exclusion of evidence under s. 24(2). The Crown also concedes that if a s. 9 breach is made out in the context of a pretext stop or racial profiling, neither of which the Crown concedes, this would lead to exclusion under s. 24(2).

[ 8 ] The Charter application included viva voce evidence from three police officers: Evan Thomas, Michael Walton, and Michael Wu. During the testimony of each officer, in car camera video from their police vehicle, capturing relevant events from this occurrence, was played in court and each were entered as Exhibits.

Summarized Evidence

PC Evan Thomas

[ 9 ] Evan Thomas was the officer who conducted the stop of the vehicle. He has been a police officer for 5.5 years, always with York Regional Police. In December 2022, he was a uniform officer with 2 District Headquarters in Richmond Hill .

[ 10 ] On December 29-30, 2022, he was working 7 pm to 7 am, conducting general patrol, which included answering calls and proactive policing. He was wearing a standard police uniform. He was driving a police vehicle with subdued marking, which was equipped with an in-car camera system. The recording is triggered in a number of ways, such as manually by pressing a button or if the roof lights are activated. There is typically audio with the video, that turns on with the video, both from the car and from a microphone the officer wears, but for some reason the body microphone did not pick up any audio for this event. PC Thomas did acknowledge that the audio can be manually turned off. PC Thomas stated that he intended for the audio to be working during this event. He was alone in the vehicle.

[ 11 ] At the start of his shift, it was 8 degrees Celsius. He did not know what it was at the time of the vehicle stop, but described it as mild and that he was comfortable wearing a shirt with nothing underneath.

[ 12 ] At around 1:00 am, he stated that he had partnered with PC Michael Walton (2567) and they were planning to do proactive impaired driving enforcement in the area of Yaz Lounge, a licenced establishment, which is in the area of Yonge and Elgin Mills Road. They were planning to stop vehicles leaving the establishment to check for driver sobriety. As for why they decided to do this in the area of Yaz Lounge, he explained that they were assigned to the “23 sector” and this was one of the licenced establishments in the sector. This area was not known to PC Thomas as a drug dealing area.

[ 13 ] PC Thomas explained that, before doing the enforcement, around 10:45 pm on December 29, he attended and ran licence plates in the parking lot. He testified that he did this in order to establish a timeline of the vehicles there, as if he saw the vehicle leaving later on, he could establish a timeline of how long the driver might have been drinking. He did the queries on the computer in his car. He also did a bit of foot patrol in the parking lot and spoke to a few people. PC Thomas agreed that, when doing such queries, he would be getting a bunch of data on the registered owner of the car, including a CPIC check, which would tell him whether they have a criminal record, or were on release conditions. PC Thomas agreed he could have just written the plates down in his memobook, rather than running the queries as he did. In re-examination, PC Thomas explained that he was doing it on his computer versus his notes because it was a little easier, as he could look at multiple licence plates, be typing them and running them at the same time, and the system also logs when a query is done, so when it is run again in the future, it would show that it was run on that day at that time with the badge number associated. While it was not clear when, at some point he was drawn away from this activity.

[ 14 ] At about 1:05 am on December 30, 2022, he returned to Yaz Lounge. He queried a couple more plates while waiting for patrons to leave. One of the plates piqued his interest. The registered owner of the vehicle was on federal parole, meaning the person had been convicted of a crime serious enough to be on this release, so he put himself on a suspicious vehicle call so that he was not drawn away on another call. At that time, he stated that his intent was to maintain observation on the vehicle or wait for people to start leaving whichever happened first. He testified that there was no action that he could take in relation to this vehicle at the time, but if this vehicle left, this was something that he wanted to have in mind. He stated that if this vehicle left the parking lot, it would have been a dual-purpose stop, for sobriety and parole enforcement.

[ 15 ] At approximately 1:35 am, PC Thomas and PC Walton had a discussion and decided they were going to start doing their proactive impaired enforcement. PC Thomas was aware that PC Walton had already stopped two vehicles. They decided to take turns stopping cars. When one stopped a vehicle, the other would be waiting for the next vehicle leaving the parking lot and coming in their direction, unless needed to assist. After the plan was developed, PC Walton stopped one vehicle and the next vehicle to stop would be PC Thomas. They were sitting just south of Elgin Mills Road East, on Enford Road, in a private drive on the east side facing westbound. This was about 100-200 metres from Yaz Lounge. From their location, they could just see the south end of the parking lot, not people walking to their vehicles.

[ 16 ] At 1:44 am, PC Thomas observed a red sedan pull out of the parking lot of Yaz Lounge. It went south out of the parking lot, made a left turn, and went eastbound on Elgin Mills Road toward them. The vehicle passed by Enford Road. PC Thomas pulled out, went north up to Elgin Mills, and followed the vehicle. He did not know how many occupants there were and did not see anyone inside the vehicle. As he followed the vehicle, he observed the plate – CVBB762. He performed a query on his in-car computer and learned the registered owner was a female, May Al-Bayati.

[ 17 ] PC Thomas turned on his emergency lights and stopped the vehicle in the area of Elgin Mills Road East and Blue Grass Blvd. He explained that he stopped the vehicle for the purpose of checking on the driver’s sobriety. He stated that he approached the vehicle, let the driver know that the stop was recorded by the in-car camera, let him know the reason for the stop, and demanded the driver’s licence, ownership and proof of insurance. At that point, he saw that there were two males in the vehicle, the driver, Mr. Shifara, and the passenger, Mr. Dillon. The driver provided an Ontario driver’s licence which was how he was identified. PC Thomas did not note whether he got the ownership or insurance and he did not recall if he got those documents. This conversation to get the documents took place at the driver’s window with the window down all the way.

[ 18 ] According to PC Thomas, as soon as he approached the window, he smelled a strong odor of cannabis coming from the open driver’s window. When speaking with the driver, Mr. Shifara, he mentioned that he was coming from Yaz Lounge, having dropped off shoes to his girlfriend. Mr. Shifara’s words did not seem slurred or stuttered. He did not seem to have any trouble speaking. His eyes did not appear red, glossy, or watery. He was coherent, was able to have a dialogue, and spoke normally without any issues. He appeared awake and alert and his movements were smooth and fluid – not fumbling. In PC Thomas’ opinion, having done a number of impaired arrests, he did not believe his sobriety was in issue, but was concerned about the strong odor of cannabis in the vehicle. PC Thomas did not recall if the smell was fresh or burnt, just that it was quite strong. PC Thomas explained that, since this time, he now makes sure to properly document in his notes whether the smell was fresh or burnt cannabis because he knows it is an important detail. However, he explained that this was not just a faint smell that he felt was coming from someone’s clothes from having smoked earlier, but rather a very strong odor that hit him when he walked up to the vehicle. PC Thomas testified that he was satisfied with the driver’s sobriety, but he did still have concerns about the CCA investigation because of the odor causing him to suspect that there was cannabis in the vehicle stored improperly, so he shifted from sobriety to then wanting to investigate under the CCA .

[ 19 ] Using the time stamp on the in-car camera video, PC Thomas confirmed that, by 1:45:46 am, he had already told the driver that the in-car camera was recording, explained the reason for the stop, asked for his documents, and would have asked about consumption of intoxicants. In cross-examination, PC Thomas testified that he did not recall exactly what he asked the driver, as in whether he asked where he was coming from, but that he would have asked if he had consumed alcohol as that would have been part of the sobriety check. PC Thomas stated that he had an independent recollection of asking Mr. Shifara if he had consumed any alcohol or marijuana, however, he agreed it was not in his notes or report that he asked these questions or what his response was.

[ 20 ] After being referred to his preliminary hearing evidence, PC Thomas testified that, based on his experience now, he would probably tell the driver that he would be right back and that he wanted to talk to him about the smell of cannabis, but he wanted to go to his vehicle, perform queries, and grab another unit.

[ 21 ] PC Thomas confirmed that, based on the odor alone, he would not have grounds to search a car. According to PC Thomas, neither the smell of fresh or burnt cannabis, alone, would provide him grounds to search under the CCA , but both could lead to asking more questions about cannabis in the vehicle or looking around the vehicle. According to PC Thomas, regardless of whether the smell is burnt or fresh, both are indicators that there could be cannabis in the vehicle. As for whether he would ask questions without informing the person that he was investigating under the CCA , he stated that he would tell the person that he is investigating under the CCA and wanted to inquire about cannabis in the vehicle. PC Thomas explained that even a stem could constitute a piece of marijuana readily available.

[ 22 ] During this initial interaction at the car, PC Thomas did not recall asking Mr. Dillon, the passenger, any questions. He suggested that he may have casually acknowledged his existence but there was no conversation.

[ 23 ] PC Thomas confirmed that when he smelled the odor, he wanted to continue that investigation, and Mr. Shifara and Mr. Dillon were not free to leave, although he acknowledged that he did not tell them they were not free to leave or advise of rights to counsel. PC Thomas agreed that Mr. Shifara was very cooperative.

[ 24 ] After receiving the driver’s licence, in terms of continuing the investigation under the CCA , based on the strong odor of cannabis, PC Thomas suspected that there was cannabis in the vehicle. Given how strong it was, he suspected that it may have been stored improperly, but based on just the smell, he wanted to ask more questions about that. He knew that, if it was stored improperly, there was search authority under the CCA . He wanted to make sure that, if the investigation continued to that point, he had another unit there to assist him, for officer safety, because if he was trying to deal with two people at once, it was better to have another unit there. As for his understanding of what improperly stored cannabis meant, he testified that it meant it was readily available to the driver or anyone in the vehicle, meaning that if someone can reach and access the cannabis, if it’s stored in an unsealed package, or any where the driver can readily access it within the vehicle.

[ 25 ] It was suggested to PC Thomas in cross-examination that he should have advised Mr. Shifara that things had changed and that this was no longer an impaired driving investigation, but rather this was now a CCA investigation. PC Thomas stated that he did not recall exactly what his words were to Mr. Shifara before he returned to his vehicle with the documents, but he did not recall saying that. He agreed that he could have or should have told him, if he did not, but he did not recall whether he said this or not. It was then suggested to PC Thomas that he should have given Mr. Shifara his rights to counsel. PC Thomas said that, at that point, his understanding was that, with a brief traffic stop such as this, there was case law saying that rights to counsel are temporarily suspended, which was why he did not do that. PC Thomas agreed that, during his testimony at the preliminary hearing on December 7, 2023, he stated that he was not sure what the case law was regarding cannabis searches, rights to counsel, and caution. He explained that at that time he did not recall the exact case and details of said case about rights to counsel being temporarily suspended during a brief investigation such as this – he could not recall it off the top of his head. He did not recall where he received his understanding from.

[ 26 ] With the driver’s licence in his possession, PC Thomas returned to his vehicle and performed a query of the driver, Mr. Shifara. [Using the in-car camera video, PC Thomas confirmed that the sounds just before 1:47:01 am were him performing these queries on Mr. Shifara.] PC Thomas agreed that he had determined he was not impaired but had not confirmed that Mr. Shifara was a licenced driver. PC Thomas acknowledged that he knew that this type of query would provide information about the driver’s other criminality and that he would get information on prior convictions, outstanding charges, or if he was on bail. PC Thomas explained that he wanted to confirm the driver’s licence status because, if he asked questions at the window and the driver said there was no cannabis and he had no further grounds to believe there was cannabis readily available to the driver, he would be free to go, so he wanted to ensure he was a licenced driver. He also wanted to make sure that he knew who he was dealing with in case there were safety concerns, which there ended up being.

[ 27 ] When PC Thomas did the query on his computer, he observed that Mr. Shifara had a firearm prohibition and had received a suspended sentence and probation for possession of an unauthorized firearm in a vehicle previously. This drew an officer safety concern. This was another reason that he ensured another officer was with him. PC Thomas requested another unit to attend over the radio, and shortly after, PC Walton arrived. PC Thomas agreed that he could have commenced his CCA investigation without backup and, if it led to grounds to search, he could have then called for backup. He stated that, at that point, with the information he had about Mr. Shifara, that brought up a safety concern so he definitely wanted to have back up knowing that information. PC Thomas agreed that it was after he learned of the prior conviction when he called for back up, but did not agree that this was the only reason he called for back up. In re-examination, PC Thomas explained that, if everything was the same except there was only the driver in the car, he would have still called for back up, as when he reached the point of searching the vehicle, he would have to turn his back to the driver while searching the vehicle which would be a major safety concern.

[ 28 ] PC Walton arrived and stopped beside PC Thomas’ vehicle. They spoke through their car windows. PC Thomas let PC Walton know about the officer safety concern as a result of Mr. Shifara’s previous conviction because he believed it was pertinent information and officer safety was of utmost importance. He did not recall if he said anything else. [On the in-car camera video, just before 1:49:01 am, PC Thomas can be heard saying “convicted of firearms charges….reeks like weed in there”. He confirmed that this was him speaking to PC Walton.] As for his intent in saying this to PC Walton, PC Thomas testified that he wanted to make sure PC Walton knew of the officer safety concern and that he knew of the investigation that was going on, in that PC Thomas had smelled a strong smell of cannabis. PC Thomas agreed that there was no discussion of a game plan, as they had worked closely together before, including CCA investigations, and they know how the other person works. The person who initiated the stop would lead and the other would be there for officer safety or maybe to engage with the other persons. They had worked together on the same platoon the entire time PC Thomas was a police officer. PC Thomas assumed PC Walton knew this was a CCA investigation because he had told PC Walton that there was the smell of cannabis.

[ 29 ] After that discussion, PC Thomas went back to the driver’s side to speak to the driver and PC Walton went to the passenger’s side. PC Thomas did not recall his exact words to Mr. Shifara before he started asking about the cannabis in the vehicle. PC Thomas agreed he did not give rights to counsel at that time. PC Thomas agreed that the occupants of the vehicle were detained – not free to leave.

[ 30 ] Back at the driver’s side, PC Thomas stated that he asked Mr. Shifara how much cannabis was in the vehicle. Mr. Shifara said there was no cannabis in the vehicle. PC Thomas said he knew what cannabis smelled like and he thought there was cannabis in the vehicle. PC Thomas stated that the tints on the car were very dark, and he could not see into the back of the car whatsoever. Mr. Shifara then said there was an ashtray and reached behind him to the area behind the centre console on the floor. Mr. Shifara brought forward a black draw string bag with the draw strings open. PC Thomas saw what looked like the outline of a tray with raised sides – 3 x 8 inches – with lumps on top of it. The bag was not much bigger than the tray. When PC Thomas first saw the bag, it looked like a rolling tray, not unlike those he had seen in other investigations – a tray commonly used to roll joints and catch residue. PC Thomas asked Mr. Shifara what was inside the bag, and he initially produced one grinder that contained tobacco residue. There was clearly more in the bag, so he asked what else was in the bag. Mr. Shifara produced another grinder which appeared empty. There were still lumps in the bag on the tray so he asked what else was in the bag. Mr. Shifara then pulled out the whole tray which had an opaque black bag, about 3 x 4 inches, which appeared to be sealed, which was consistent with bags of cannabis he had seen previously. [On the in-car camera, just before 1:50:42 a.m., PC Thomas explained that Mr. Shifara had handed him these items.] On that tray, PC Thomas also observed what appeared to be small pieces of cannabis around the edges of the tray – 2 mm to 4 mm in size. He did not recall how many pieces he saw but it was enough that it was noticeable. This was green, dry, unburnt cannabis. PC Thomas agreed that it was not enough to fill up a full cigarette and was not enough to be sent to Health Canada for analysis. In looking at a photograph of the tray – marked as Exhibit 1 - PC Thomas stated that it was possible that some pieces of marijuana fell off the tray during the events. He did not agree that the only marijuana on the tray when he first saw it was that depicted in the photograph. PC Thomas confirmed that the sealed black package, believed to contain cannabis, did not factor into his grounds to search.

[ 31 ] After seeing the small pieces of cannabis residue on that tray, PC Thomas believed that cannabis was stored in a manner that was readily available to either of the occupants of the vehicle contrary to the CCA . PC Thomas knew that, if cannabis is stored in a manner readily available to the driver or another occupant of the vehicle, s. 12(3) provides the authority to search the vehicle for additional unlawfully stored cannabis. At that point, he knew he would be searching the vehicle and occupants for cannabis. According to PC Thomas, he let the driver know that there was cannabis stored in a manner readily available and that he would be searching him and the vehicle. PC Thomas did not recall the exact words he told him. PC Thomas did not have any conversation with the passenger. PC Thomas did not recall if he had any conversation with PC Walton at that time. As to when the CCA investigation turned into a CCA search, he stated that it was after he was presented with the bag with the grinders and the tray having the residue.

[ 32 ] In cross-examination, when asked whether it was his belief that he could search a person and a car without telling the person that he was investigating under the CCA , he stated, “I would have told him that he was being investigated and explained why we were searching the vehicle”. PC Thomas agreed that this was not in his notebook entries or report – that he told Mr. Shifara that he was going to search the car under the CCA – however, he claimed that it is his common practice when searching vehicles for cannabis that he explains why he is searching the vehicle. PC Thomas again agreed that it was not in his notes or report that he provided this information, but that this was his independent recollection of what happened. He stated, “Looking back, do I wish I could have made sure that was also in my notes? Absolutely I do. But there is a lot of detail from a couple hours of investigation that I was trying to put into my notes, over 60 pages, or around 60 pages of notes or so if I’m correct. Yes, it’s an important detail. I believe I informed them and I know I did inform them of why they were being searched.” He then corrected that it was about 45-50 pages of notes.

[ 33 ] PC Thomas asked the driver to exit the vehicle and brought him back to the front of his police vehicle. [With the use of the in-car camera video, stopped at 1:51:31 am, PC Thomas explained that what had just been seen was that he and Mr. Shifara walked back to his cruiser and there was a conversation before searching him, in that he was telling Mr. Shifara his grounds to search the vehicle, that he believed there was cannabis unlawfully stored within the vehicle, confirmed he would be searching him, and that he “would have presumably” asked him if he had anything on him that could harm him while searching.] PC Thomas did not recall if Mr. Shifara responded to this. In cross-examination, PC Thomas agreed that what he claims to have told Mr. Shifara was not in his notebook or his typed report. He agreed it was important and that he missed noting it. He agreed that he did not advise Mr. Shifara of his rights to counsel.

[ 34 ] PC Thomas searched Mr. Shifara directly in front of his police vehicle. According to PC Thomas, when he commenced this CCA search, he did not have any thoughts of a Criminal Code investigation or charges. He did a pat down search and then emptied his pockets to ensure there was no additional cannabis. He did not locate any other cannabis on his person. He did not handcuff Mr. Shifara during this time. Mr. Shifara had been cooperative throughout.

[ 35 ] At that point, uniformed officer PC Smith (2427) was there, who stayed with Mr. Shifara at the front of PC Thomas’ vehicle while he gathered his belongings that had been removed during the search. PC Thomas went to the passenger side of the vehicle and started talking to the passenger, Cash Dillon. According to PC Thomas, he informed Mr. Dillon of what was going to be happening with the search and had him exit the vehicle, instructing him to go to the rear of the subject vehicle / front of the police vehicle. As for what he said to Mr. Dillon, PC Thomas stated that he told Mr. Dillon that there was cannabis improperly stored within the vehicle and that the vehicle and the occupants were going to be searched under the authority of the CCA . PC Thomas testified that Mr. Dillon stepped out of the vehicle, and he observed Mr. Dillon kind of grabbing at his groin or crotch area of his pants. When Mr. Dillon was walking back, he turned the front of his body away from PC Thomas and was, according to PC Thomas, “blading” toward the red sedan as if trying to hide something from the police. He described “blading” as turning his body away, so as to put his body between the officer and something he was trying to hide from the officer, and kind of side stepping along the side of the vehicle. At that time, PC Thomas was beside or behind him, toward the curb. PC Thomas felt this was remarkable, and also mentioned that, as he came to the back of the vehicle, he immediately hooked around the back of the vehicle and stayed there, and started again pulling towards his groin area, with his hands outside his pants. It made PC Thomas think that there was something in his pants that he was trying to adjust.

[ 36 ] Given this and what PC Thomas knew about the history of the driver, his concern was a little bit heightened that he had something concealed, specifically a weapon, within his pants, as this is one of the characteristics of an armed person. When watching the in-car camera from PC Walton’s vehicle, PC Thomas stated that Mr. Dillon kept his body very close to the vehicle, almost touching the vehicle, which people do not typically do in the winter as they do not want to touch the salty vehicle, and that also drew his attention. He agreed he did not have that last comment in his notes but watching the video refreshed that memory.

[ 37 ] When asked whether he had concerns about a Criminal Code investigation, he stated that he did have thoughts when he saw Mr. Dillon step out of the vehicle and the characteristics of an armed person, such as turning away from him and trying to pull at something in his pants. This made PC Thomas think that he might have something on him and he had a safety concern, however, he did not know what Mr. Dillon had. According to PC Thomas, the search was still for cannabis. PC Thomas confirmed that this was the first time he thought there might be something other than cannabis that he was trying to move or conceal in his pants.

[ 38 ] PC Thomas agreed that it is not necessarily uncommon for men to adjust themselves when they get out of the car. He agreed anything is possible. PC Thomas agreed that this may be an innocuous thing for a man to adjust themselves in public. However, PC Thomas felt that the totality of knowing the driver had been convicted of possessing a firearm and seeing those characteristics, which his training taught him are those of an armed person, it was in the back of his mind that there was a heightened safety concern. However, PC Thomas did not have grounds to arrest Mr. Dillon and was still acting under his CCA authority. He agreed that this added nothing to how he conducted the search.

[ 39 ] PC Thomas brought Mr. Dillon to the front of his police vehicle. Mr. Dillon was not handcuffed at this time. He explained that, as part of a search, one of the things he instructs is for people to widen their stance, to allow police to move around them and access things concealed in the groin area, and also to put the person in a position of disadvantage for officer safety. PC Thomas stated that he instructed Mr. Dillon to do this on multiple occasions, and every time he would widen his stance for a few seconds and then bring his legs back in. This made PC Thomas believe that there was something between his legs that he was trying to keep there or keep PC Thomas from detecting. PC Thomas found a wallet during the search. It contained approximately $200 in twenty-dollar bills. He continued the search. When searching between his legs, PC Thomas again instructed him to widen his stance and he seemed to be trying to avoid separating his legs, concerning PC Thomas about something between his legs. As the search continued between his legs, PC Thomas felt, in his groin area, a hard heavy metallic object with a squared off edge. With all of the other concerns, he suspected that this was a firearm. At that point, he placed Mr. Dillon in handcuffs for his safety because he believed there was a weapon on his person, and he wanted to continue to properly search him if there was a weapon.

[ 40 ] Using the in-car camera video, just prior to 1:58:25 am, PC Thomas appears to have a brief conversation with Mr. Dillon and then Mr. Dillon goes from his hands on the cruiser to his hands behind his back. PC Thomas explained that he was placing Mr. Dillon in handcuffs, the reason being that he felt something hard in his pants that he believed to be a firearm or a weapon, and he was putting him in handcuffs for his safety while he confirmed what it was and retrieved what it was. According to PC Thomas he advised PC Walton that he thought Mr. Dillon had a gun in his pants and asked PC Walton, for safety, to put Mr. Shifara in handcuffs until he confirmed.

[ 41 ] Mr. Dillon was said to be wearing tight pants which would have made it impossible to remove anything without undoing them, so he tried to move his body away from vehicles passing, undid the button, zipper and belt and saw a brown handgun. He removed that handgun and placed it in the windshield wiper area of the hood of his vehicle. He let the other officers on scene know what was found and let both parties know that they were under arrest for possession of a firearm. This was at 1:59 am. At the time, PC Thomas did not know whether it was loaded or not, but later found out when it was cleared that it was loaded. The magazine was in the gun when found. A photograph of the handgun was marked as Exhibit 5.

[ 42 ] As for when this shifts from a Criminal Code investigation to grounds to lay criminal charges, he stated that this was when he located the gun in Mr. Dillon’s pants.

[ 43 ] After telling Mr. Dillon he was under arrest, PC Thomas claimed that he told Mr. Dillon that he had a right to talk to a lawyer and did not need to say anything to them unless he wished to do so. This was the first time any rights to counsel or caution was given. He did not read it out of his memobook but let him know he had those rights. The reason he did not read it from his memobook was because both parties were still on the road, he had not finished his search, and did not know what else was on his person. He wanted to make sure his rights were satisfied, but for officer safety, he did not feel that pulling out his notebook and reading would be safe. He wanted to make sure he was safely lodged in the vehicle to read the rights. Mr. Shifara was with PC Walton on the sidewalk. PC Thomas believed that PC Walton effected his arrest. PC Thomas agreed that, by that point, he had gotten through most of the search of Mr. Dillon, but he knew there were parts that he had not searched and he wanted to make sure he did not miss anything before lodging him in the cruiser.

[ 44 ] He then continued the search of Mr. Dillon and lodged him in his police vehicle just before 2:01:44 on the in-car camera. Nothing else was found during the remainder of the search.

[ 45 ] According to PC Thomas, when conducing a search under the CCA , he does a pretty thorough search. He explained that he searches the same way whether under the CCA or otherwise – the entire body including the groin area. That is what he had been taught. PC Thomas agreed that, when searching under the CCA, he is looking for cannabis improperly stored and readily accessible to the occupants of the vehicle. If not properly sealed, it should be in the trunk. PC Thomas explained that people do conceal things from the police in their pants, and he has found weapons and drugs in the past. He felt it was possible for someone to conceal marijuana in their pants, although he had not seen it. In re-examination, PC Thomas described that the search of the groin area entails using the back of his hand to run up and along the inner part of the leg – up one side and down the other – to feel if there is anything abnormal concealed within the groin area of the pants.

[ 46 ] As Cst. Smith was clearing the firearm, PC Thomas observed there to be live rounds in the magazine that PC Smith removed. PC Thomas then briefly spoke with Acting Sgt. Kolarsky (1688) and PC Smith and requested that someone deal with the cannabis in the vehicle to ensure the evidence was captured, for someone to search the vehicle incident to arrest, and for someone to deal with the firearm to make sure it was properly seized. After this discussion, PC Thomas got back into his vehicle at 2:03 am. He then informed Mr. Dillon that he was under arrest for possession of a firearm, possession of a prohibited device, possession of a firearm knowing its loaded, and unauthorized possession. He then read Mr. Dillon the rights to counsel from his memobook, including providing him with a bit more information about what duty counsel was in response to Mr. Dillon’s question. Mr. Dillon stated, “Do I have to have a lawyer right now?” to which PC Thomas stated that he did not have to speak to a lawyer if he did not want to but it was his right to speak to one and if he did not have one they would get him a lawyer for free back at the station where he could speak to a lawyer in a place of privacy. When asked if he wanted to do that, Mr. Dillon said “yeah”. He was satisfied that Mr. Dillon understood by his responses. PC Thomas then read the primary caution to Mr. Dillon from his memobook, which Mr. Dillon said, “I understand.”

[ 47 ] Using the in-car camera video, it was clear that PC Thomas then left the vehicle and spoke with Acting Sgt. Kolarsky. PC Thomas testified that he knew that PC Wu (2612) was performing the search incident to arrest of the vehicle, along with Acting Sgt. Kolarsky. PC Thomas testified that Acting Sgt.Kolarsky let him know they found a large quantity of money, about $5000 in cash, wrapped together in rubber bands, one plastic bag containing two separate plastic bags of a white powdery substance suspected to be cocaine, a digital scale, and two cell phones, all said to be located in the centre console of the vehicle. Toward the end of that conversation, another officer, PC Wu came over and placed some items on the hood of the car at about 2:06:19 am.

[ 48 ] Due to the items located together in the centre console, PC Thomas stated that he formed grounds that both parties were in possession of a Schedule 1 substance for the purpose of trafficking. At 2:06 a m, PC Thomas advised Mr. Dillon that he was also under arrest for possession of a controlled substance for the purpose of distributing it and that he had the same rights. Mr. Dillon indicated that he understood. PC Thomas asked if Mr. Dillon still wished to call a lawyer and, just before 2:07:18 am, he said “yeah”. PC Thomas again reminded Mr. Dillon that he did not need to say anything unless he wished to do so and anything he did say could be used as evidence.

[ 49 ] Just prior to 2:08:52 am, PC Thomas can be seen outside his vehicle, holding up a number of items toward the camera and then placing those items in a bag. PC Thomas explained that he took the cash, the drugs, the scales, the cell phone, and put it in a property bag, sealed it, and put it on the dash of his car intending it to be captured by the camera. PC Thomas stated that the point was to get a better view of what the pieces of evidence were on the camera, to establish continuity.

[ 50 ] At 2:09 am, Acting Sgt. Kolarsky put over the radio that there was a second firearm located in the backseat of the vehicle. PC Thomas was in his vehicle when he received this information. At that time, PC Thomas advised Mr. Dillon that he was going to be charged with possession of the second firearm.

[ 51 ] PC Thomas stated that he confirmed Mr. Dillon’s identity with a Florida driver’s licence, at some point, which Mr. Dillon verbally confirmed as well. PC Thomas knew the licence was provided by another officer, but he did not know who.

[ 52 ] Mr. Dillon was then transported to 2 District Headquarters in Richmond Hill. The drive was about 6 minutes. They left the roadside at 2:12 am and arrived at 2:18 am. PC Walton had arrived at the station first with Mr. Shifara. PC Thomas assisted in booking Mr. Shifara, including assisting with a search, specifically searching the jacket that Mr. Shifara was wearing. In one of the chest pockets, PC Thomas found what he described as a “dime bag” containing a white powdery substance that he suspected to be cocaine. PC Thomas did not recall the exact size of the dime bag – estimating two inches by two inches at the biggest. Nothing else noteworthy occurred during the booking of Mr. Shifara, other than he had some relatively small amount of cash. At 2:30 am, PC Thomas advised Mr. Shifara that he was going to be charged with possession of a controlled substance and let him know of his rights to counsel and caution. He said he understood his caution and right to speak to a lawyer and he wanted to speak to the same lawyer he informed PC Walton about. Mr. Shifara was lodged in a cell at 2:37 am and then his property was processed.

[ 53 ] At 2:49 am, Mr. Dillon was brought in for the booking process. PC Thomas also participated in the search of Mr. Dillon at that time. Nothing was found. At 3:04 am, Mr. Dillon was lodged in a cell. At 3:08 am, PC Thomas contacted duty counsel for Mr. Dillon as per his request. The call went to an automated system, so he left a message. At 3:22 am, duty counsel called back. It was transferred to a private room. PC Thomas brought Mr. Dillon to the private room at 3:23 am where he remained until 3:26 am.

[ 54 ] As for Mr. Shifara, at 3:33 am, Mr. Shifara’s counsel called back for him. At 3:36 am, Mr. Shifara was brought to a private room. At 3:49 am, Mr. Shifara indicated that the call was done, and he was taken back to his cell. PC Thomas did not know who the lawyer was.

[ 55 ] At 7:13 am on December 30, 2022, duty counsel called back, and Mr. Dillon was brought to a private room to speak to them again, which completed at 7:32 am. PC Thomas did not know why this second call occurred.

PC Michael Walton

[ 56 ] PC Walton testified that he had been a police officer since April 2018, all with the York Regional Police. In December 2022, he was assigned to uniform patrol in 2 District Headquarters in Richmond Hill.

[ 57 ] On December 29, 2022, his shift began at 6 pm and ran until 6 am. He was in uniform. He was driving a marked police vehicle – SUV – equipped with an in-car camera system with video and audio. Both were working that evening.

[ 58 ] At 1:15 am, PC Walton was conducting proactive policing in his patrol area in the district, specifically investigating impaired driving. He was focusing on the area of Yonge Street and Elgin Mills Road in Richmond Hill. He described this area as having many establishments that serve alcohol, including Yaz Lounge. Not specifically Yaz Lounge, but the area of Yonge and Elgin Mills Road was known to him for drug activity.

[ 59 ] He was conducting traffic stops. Initially, it was any vehicles in the area, but this moved to a focus on the plaza on the northeast corner where Yaz Lounge was located. PC Walton did stop one vehicle leaving that plaza during that time. Nothing came of the stop as far as charges.

[ 60 ] At 1:35 am, PC Thomas got involved with him. PC Walton explained that they were reverse parked in the area of Enford Road, with a visual of Elgin Mills Road. The plan was that, once a vehicle left the south entrance of the plaza, they would take turns conducting traffic stops for the purpose of sobriety. PC Walton did the first stop and PC Thomas was not involved.

[ 61 ] At 1:44 am, PC Thomas had conducted a stop. PC Walton remained where they were positioned and advised PC Thomas that if he needed him for anything to let him know; otherwise he would remain there keeping a visual of the plaza. From that position, he could see the parking lot of Yaz Lounge, and vehicles exiting that parking lot, but not the front doors.

[ 62 ] PC Thomas then came over the radio asking for a second unit, which indicated to PC Walton to go assist based on their earlier conversation, so he pulled out and went to assist on his traffic stop. PC Walton turned onto Elgin Mills. PC Thomas had the vehicle stopped in the right-hand lane, and PC Walton stopped right beside to create a bit of an offset on Elgin Mills Road. He said he was stopped pretty much door to door with PC Thomas’ cruiser. PC Walton stated that these were live lanes of traffic, although the traffic was low at that time.

[ 63 ] As PC Walton stopped his vehicle, he engaged his emergency lights because he was in a live lane of traffic. He rolled down his passenger window. PC Thomas was in the driver’s seat of his vehicle. PC Thomas advised him that the driver of the vehicle was convicted of a firearm offence, which PC Walton said was relevant in the sense of officer safety. He explained that this provided a contextual history of the person being encountered. PC Thomas also told PC Walton that the vehicle “reeks” of cannabis. As for what that meant to him, he stated that, because they were conducting a sobriety check, there was a possibility that the driver might be impaired. From the in-car camera, it appeared this conversation occurred just before 1:48:59 am. PC Walton asked PC Thomas, “How has he been?”, in order to understand the behaviour of the driver so far, and PC Thomas said that he had been good, in other words compliant. PC Walton did not ask any questions about what kind of investigation they were conducing at that time or what they were looking for. He was just going along with the investigation PC Thomas was conducting.

[ 64 ] PC Walton stated that he had worked with PC Thomas for a couple of years at that time and worked with him fairly often. As for CCA stops, they had not done that often together – less than ten times.

[ 65 ] At 1:49:05 am, PC Walton got out of his cruiser and went to meet PC Thomas so they could approach the vehicle. PC Walton approached the passenger side and PC Thomas went to the driver’s side. PC Walton explained that it would be practice for the person who initiated the stop to attend to the driver’s side and the person assisting would go to the passenger side. This vehicle was a red Kia sedan with plate CVBB762. PC Walton agreed that Mr. Dillon, the passenger, was detained for the CCA investigation. When he got to the passenger side, the window was up. He could partially see inside. He could tell there was a passenger in the passenger seat because of the screen illumination from the passenger’s cellular device. When he arrived at the window, PC Walton knocked on the glass to alert the passenger he was there. The passenger rolled down the window. He made a comment to the passenger that it smells like cannabis. The window then went further down. The passenger did not respond. PC Walton did not notice a smell of cannabis before the window went down. According to PC Walton, he believed it was the smell of fresh cannabis and that it was strong in the sense that, upon walking up to the vehicle he did not smell anything but, as the window went down, the odor was immediately hitting him in the face. PC Walton was just making observations while PC Thomas was speaking with the driver.

[ 66 ] PC Walton had his flashlight shining inside the vehicle. PC Thomas was speaking to the driver about his observations of the smell of cannabis in the vehicle. PC Walton could hear the conversation that PC Thomas was having with the driver. From what he recalled, PC Thomas was advising the driver that he smelled cannabis. The driver then reached to the back over his right shoulder and pulled what looked like a velvet or suede type bag and from that bag there was a tray and a grinder. PC Walton did not have any conversation with the driver. As for whether PC Thomas asked for things to come out of the bag or how things came out of the bag, PC Walton stated that he did not recall exactly how. As for what came out of the bag, PC Walton saw a grinder and a black tray which to him looked like a rolling tray. PC Walton saw cannabis on the tray – describing it as an amount he would consider as left over from rolling a joint. While this was going on, he was not having any conversation with the passenger .

[ 67 ] According to PC Walton, the driver handed over these items to PC Thomas and PC Thomas then requested the driver to exit the vehicle and the driver did. They proceeded to the front of PC Thomas’ cruiser and PC Walton remained with the passenger at the vehicle. As for whether PC Thomas said anything to the driver after the items were provided, PC Walton stated, “To my recollection no.” As for whether PC Thomas said anything to the driver prior to the driver getting out, PC Walton stated that the best he could remember was PC Thomas pointing out to the driver that this was cannabis, pointing to the black tray and bag. As for what prompted the driver to exit the vehicle, PC Walton stated, “That would be PC Thomas engaging in a cannabis search”. As for whether PC Thomas said anything about this cannabis search to the driver, PC Walton said not that he could recall.

[ 68 ] PC Walton observed PC Thomas and the driver go to the front of PC Thomas’ police vehicle. PC Walton said that his focus was split between the passenger and what was going on between PC Thomas and the driver. The passenger window was still down. At this point, PC Walton had some conversation with the passenger. He explained that, this being the end of December, it was cold. He asked the passenger to keep the window down, understanding it was cold, but due to the tint of the window he could not see. He explained it was small talk with the passenger. He recalled asking him his relationship to the driver. He told him the reason they initiated the traffic stop and gave him an “education piece” of the stop. In the conversation, the passenger said he was from Florida. PC Walton assumed he might not be fully well versed on the CCA in Ontario, so he explained proper storage of cannabis, such as in the trunk, and potential consequences for having cannabis readily available to the driver. In the opinion of PC Walton, the floor of the driver’s side backseat would be readily accessible. PC Walton stated that he explained to Mr. Dillon that if it resulted that there was no further cannabis or the contravention was not of a massive amount, he did not know what the result might be – such as a ticket – but that would be up to PC Thomas. In cross-examination, PC Walton explained that there is no hard and fast rule as to what determines that cannabis is readily available to the driver but rather it is situation specific, and the police have a level of discretion. He also agreed that there was a level of discretion in determining when to use the search power under the CCA .

[ 69 ] PC Walton told Mr. Dillon about the search powers under the CCA . He advised Mr. Dillon that once PC Thomas was done searching Mr. Shifara that he would be searched next and then the vehicle would be searched, with the purpose being to ensure there was no further contravention of the Cannabis Control Act . PC Walton did not recall PC Thomas engaging in that sort of conversation with any people in the vehicle.

[ 70 ] While PC Walton was still waiting for PC Thomas to finish his search, he noticed fidgety movements from Mr. Dillon in the vehicle, specifically Mr. Dillon looking around and putting his hands into the waist pocket of his jacket or hoodie – centre abdomen above the beltline. PC Walton asked Mr. Dillon to keep his hands visible, for safety reasons, and Mr. Dillon complied. PC Walton agreed that it was cold that night and he took it that Mr. Dillon was cold.

[ 71 ] At no time during the interaction at the passenger window was Mr. Dillon told he could leave or given rights to counsel.

[ 72 ] PC Walton stated that there is always a safety concern, but Mr. Dillon was pretty upfront, not threatening or aggressive, so there was no heightened safety concern specifically with Mr. Dillon. However, the driver, having a firearm conviction, increased the safety concern of the totality of the situation.

[ 73 ] PC Thomas then finished his search of Mr. Shifara and was ready to search Mr. Dillon. PC Walton was not aware of the search with Mr. Shifara yielding anything and he was not advised of anything. At 1:54 am, Mr. Dillon got out of the vehicle and walked with PC Thomas beside the red vehicle and over to the front of PC Thomas’ vehicle. PC Walton stated that he did not have a long enough time with Mr. Dillon to assess the front of his body. He did not notice Mr. Dillon grabbing at his genital area.

[ 74 ] PC Walton was then positioned to the side of the red vehicle, between PC Thomas in front of his vehicle and Mr. Shifara off to the side on the grassy sidewalk. Mr. Shifara was not in handcuffs. While PC Thomas was searching Mr. Dillon, PC Walton was maintaining some control of this active scene, including anything PC Thomas needed as assistance, maintaining control of the vehicle, and watching to ensure no interference from Mr. Shifara or anyone else that might pass by. There were no issues with Mr. Shifara.

[ 75 ] PC Walton was also observing the search of Mr. Dillon. In terms of Mr. Dillon’s demeanour, he seemed verbally compliant and engaging but when it came to the search there was a struggle when PC Thomas tried to search the lower half of the body – like a stiffening up of the body to prevent the search from continuing. As shown on the in-car camera, just before 1:58:14 am, PC Walton was moving progressively closer to Mr. Shifara. PC Walton explained that he had been observing the search of Mr. Dillon by PC Thomas and the further instruction being given so that the search could be done. He was moving closer to Mr. Shifara in possible anticipation of any type of escalation occurring. If Mr. Shifara took out his phone and wanted to call a lawyer at that time, he would have been permitted to do so.

[ 76 ] At some point, Mr. Dillon was placed in handcuffs. PC Thomas stated, “I feel something hard.” PC Walton did not recall PC Thomas saying what he thought that item was. PC Walton moved his position closer to Mr. Shifara to maintain control of the scene, to prevent Mr. Shifara from engaging with PC Thomas or Mr. Dillon while the search was happening, or retreating to the vehicle. PC Thomas proceeded with the search. He reached into the groin area and pulled out a brown firearm. PC Thomas then advised Mr. Dillon he was under arrest for a firearm. PC Walton then took physical control of Mr. Shifara, by placing his hand on his arm, and told him he was also under arrest for possession of a firearm. PC Walton also advised that he did not need to say anything to him, had a right to speak to a lawyer, once they get to the police vehicle he would formally read the rights from his notebook, and at some point he would be able to speak to a lawyer. He did not read from his notebook at that time as it was not practical, but it was important that Mr. Shifara was made aware of some form of his rights because he was under arrest. PC Walton did not have a recollection of his response other than an informal nod of an understanding.

[ 77 ] PC Walton then conducted a search of Mr. Shifara. He understood the search he had already been through was a cannabis search and this would be less invasive than a search for a firearm or search incident to arrest. PC Walton did not see the entirety of PC Thomas’ search, but for his own safety, with Mr. Shifara coming into his police vehicle, and bringing him back to the station, he ensured that he did a thorough search of him so that no weapons were coming into the police vehicle. PC Walton stated that, for him, the difference between the cannabis search and this search would be where he would consider reasonable for a person to store cannabis on their person, versus where it would be reasonable to store or conceal a firearm. Nothing noteworthy was found on Mr. Shifara.

[ 78 ] PC Walton then brought Mr. Shifara to his police vehicle. At around 2:04 am, he read his rights to counsel from the back of the notebook. Mr. Shifara said he understood and provided his lawyer of choice, which was Geary Tomlinson. PC Walton took note and said he would try to get a hold of that lawyer. PC Walton testified that he did not do it right then as it was not practical to do so as he was in the back of the cruiser at the side of the road where there was no privacy that was practical to be fulfilled. PC Walton stated that Mr. Shifara said that, if he was unable to get Mr. Tomlinson, that he wanted him to reach out to his brother to try to get a hold of counsel, to which PC Walton agreed. PC Walton then provided the primary and secondary caution. Mr. Shifara said that he understood.

[ 79 ] At that time, a search was being conducted of the vehicle. It came over the radio that a second firearm was located in the vehicle. [Just before 2:09:24 am on the in-car camera, officers can be seen taking a firearm from the backseat.] PC Walton rearrested Mr. Shifara for possession of a second firearm and he went through the process again – reading from his memobook. None of his answers changed. PC Walton advised that he would get his call back at the station.

[ 80 ] Shortly after that, PC Walton transported Mr. Shifara back to the station for booking. The drive commenced at 2:11 am, and they arrived at the station at 2:18 am.

[ 81 ] At the police station, PC Walton testified that, during the booking of Mr. Shifara, there was a clear baggie with blue print containing white powder found on his person. PC Thomas rearrested Mr. Shifara for possession of a controlled substance. PC Walton suspected that the baggie contained cocaine.

[ 82 ] After the booking process and Mr. Shifara was placed into his cell, Mr. Dillon was next brought into the booking hall. PC Walton assisted with the search of Mr. Dillon. Nothing of note was found.

[ 83 ] At 3:08 am, PC Walton called the phone number 416-256-1210 and left a message. He got this number from an online search for Mr. Tomlinson. At 3:12 am, PC Walton called Mr. Shifara’s brother. He did not recall where he got the name and number from. He left a message. He made another attempt at 3:44 am to reach counsel, leaving another message for Mr. Tomlinson. PC Walton was not made aware of any calls back.

[ 84 ] At 7:17 am, PC Walton took Mr. Dillon out of his cell and brought him to a private room where he was put in contact with a lawyer. The call completed at 7:23 am. PC Walton opened the door and asked if he was satisfied to which he said yes. He was then brought back to his cell.

PC Michael Wu

[ 85 ] PC Michael Wu testified that he had been a police officer for 7 years, all with the York Regional Police. On December 29, 2022, he was stationed at 2 District Headquarters. He was working in uniform patrol, wearing full uniform, and operating a marked cruiser that had an in-car camera system.

[ 86 ] At 1:48 am, PC Wu drove by the traffic stop, made sure the officers were all ok, and left the scene.

[ 87 ] He returned at 2:01 am, as Acting Sgt. Kolarsky came over the air saying there were two in custody. He returned to render aid. When he arrived on scene, he met Acting Sgt Kolarsky who briefed him that there were two in custody for possession of a firearm, the vehicle had not been searched, and he was tasked with searching the vehicle. Acting Sgt. Kolarsky was assisting with the search from the passenger side of the vehicle. As for his understanding of the basis for searching the vehicle, he said that it was a search incident to arrest.

[ 88 ] During the search, he did not open the glove box but did open the centre console. He did not remove any parts of the car during the search. He did search the trunk, including lifting the cover on the spare tire.

[ 89 ] The search of the vehicle was completed at 2:24 am. During the search of the vehicle, he and Acting Sgt Kolarsky found the following:
a. A pair of scissors inside the pocket of the handle of the driver’s side door;
b. Wallet inside driver’s side door;
c. Cell phone in front seat;
d. Significant amount of cash inside centre console – approximately $5000;
e. White substance in centre console;
f. Driver’s licence belonging to May Al-Bayati in centre console;
g. Firearm on back passenger seat, in the centre, inside a black toque – when found the magazine was inside the firearm and the slide was forward and engaged;
h. White plastic ammunition / bullet tray in trunk

[ 90 ] Officer Wu had no involvement with Mr. Dillon or Mr. Shifara.

Analysis

Cannabis Control Act

[ 91 ] Section 12 of the Cannabis Control Act reads as follows:

Transporting cannabis
12 (1) No person shall drive or have the care or control of a vehicle or boat, whether or not it is in motion, while any cannabis is contained in the vehicle or boat.

Exception
(2) Subsection (1) does not apply with respect to cannabis that,
(a) is in its original packaging and has not been opened; or
(b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle or boat. 2018, c. 12 , Sched. 1, s. 12 (1).

Search of vehicle or boat
(3) A police officer who has reasonable grounds to believe that cannabis is being contained in a vehicle or boat in contravention of subsection (1) may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it.

Arbitrary Detention

[ 92 ] There is no dispute in this case that Mr. Dillon and Mr. Shifara were detained from the outset of this traffic stop.

[ 93 ] Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained or imprisoned. A detention and arrest will be “arbitrary” if it is not authorized by law, the authorizing law is arbitrary, or the manner in which the detention is carried out is unreasonable.

[ 94 ] In R. v. Mann , 2004 SCC 52 , the majority of the Supreme Court of Canada declined to recognize a general power of detention for investigative purposes. However, the Court accepted that police officers may detain for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual detained is connected to a particular crime and that such a detention is necessary. The Court also recognized that, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, he or she may engage in a protective pat-down search of the detained individual. The Court made it clear that a search is not justified based on a “vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition”, even one gained by experience, in the absence of objective grounds. The Court stated as follows:

[34] The case law raises several guiding principles governing the use of a police power to detain for investigative purposes. The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer’s reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test.

[35] Police powers and police duties are not necessarily correlative. While the police have a common law duty to investigate crime, they are not empowered to undertake any and all action in the exercise of that duty. Individual liberty interests are fundamental to the Canadian constitutional order. Consequently, any intrusion upon them must not be taken lightly and, as a result, police officers do not have carte blanche to detain. The power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest.

[40] The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down search incident to an investigative detention. Such a search power does not exist as a matter of course; the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk. I disagree with the suggestion that the power to detain for investigative searches endorses an incidental search in all circumstances: see S. Coughlan, “Search Based on Articulable Cause: Proceed with Caution or Full Stop?” (2003), 2 C.R. (6th) 49, at p. 63 . The officer’s decision to search must also be reasonably necessary in light of the totality of the circumstances. It cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition.

[45] To summarize, as discussed above, police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. In addition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonable manner. In this connection, I note that the investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police. The investigative detention and protective search power are to be distinguished from an arrest and the incidental power to search on arrest, which do not arise in this case.

See also R. v. MacKenzie , 2013 SCC 50 , [2013] 3 S.C.R. 250 at paragraphs 35 , 38

[ 95 ] The duration and nature of an investigative detention must be tailored to the investigative purpose of the detention and the circumstances in which the detention occurs See: R. v. McGuffie , 2016 ONCA 365 at paragraph 38 .

[ 96 ] Random stops of vehicles are justified if undertaken for the purpose of public safety on the highway, such as checking for driver sobriety, licences, ownership, insurance, and mechanical fitness. See R. v. Hufsky , 1988 SCC 72 , [1988] 1 S.C.R. 621; R. v. Ladouceur , 1990 SCC 108 , [1990] 1 S.C.R. 1257

[ 97 ] It is a violation of section 9 of the Charter to use a legal authority to detain an individual as a pre-text to conduct another type of investigation. Police interventions occurring solely on the basis of pretext are unlawful. In R. v. Mayor , 2019 ONCA 578 , the Court stated:

[9] However, if the officer does not have a legitimate road safety purpose in mind and is using the Highway Traffic Act authority as a mere ruse or pretext to stop a vehicle in order to investigate a crime, then the detention will be unlawful. As Doherty J.A. held in Brown , the Highway Traffic Act powers will not authorize police stops if the police use these powers as a "ruse" to justify a stop for another purpose: at p. 234. Likewise, in R. v. Nolet , 2010 SCC 24 , [2010] 1 S.C.R. 851, at para. 36 (citations omitted), the Supreme Court emphasized that courts should not permit the police to invoke road safety detention powers as "a plausible façade for an unlawful aim." Accordingly, in R. v. Humphrey , 2011 ONSC 3024 , 237 C.R.R. (2d) 109, at para. 88 , Code J. held that using Highway Traffic Act powers "as a mere 'ruse' or 'pretext' for a broad and unfounded criminal investigation" would violate s. 9 of the Charter .

[ 98 ] The Applicants argue that this was a pretext stop – a ruse – and that PC Thomas used sobriety and the CCA to stop, detain, and search, while the real reason was to investigate criminal activity. The Applicants point to several factors which they argue make this a reality:
a. His licence plate checks and queries demonstrate he was focused on criminality. Before the sobriety stop occurred, PC Thomas was out running licence plates through his in-car database. He acknowledged that running such checks would give him background on past alleged and proven criminal conduct. His explanation for this was that he wanted to know how long the vehicles were parked at this liquor-serving establishment, which would give him some potential information about how long someone might have been drinking. The Applicants suggest that this does not ring true, as he could have marked the tires with chalk or wrote the plates in his notebook to keep track, which would have avoided him getting criminal background information. PC Thomas also takes particular interest in the “federal parolee”, which is confirmed by the communication logs, even though there is no suggestion that this person is doing anything wrong. The Applicants suggest that PC Thomas clearly has “crime on the mind”, rather than sobriety or any HTA investigation.
b. The Applicants suggest that PC Thomas failed to ask Mr. Shifara whether he had been drinking. There was nothing in his notes or typed report about this, despite the fact that he did note other utterances of Mr. Shifara. The Applicants suggest that there is no reason to believe that he asked the obvious questions about sobriety or did the obvious checks. The Applicants also point out that, when he testified in examination in chief, he made no mention of asking Mr. Shifara whether he had been drinking. When he was confronted with this in cross-examination, he said he would have asked because that is his general practice, and then after a break, he said that he did ask. The Applicants state that it is questionable that he would have this sudden independent recollection, given that he relied on his notes extensively in his testimony, with nothing in his notes, nothing in his report, and nothing said in examination in chief. The Applicants suggest that PC Thomas was not being honest and the fact that he did not ask about sobriety suggests that he was not interested in sobriety at all.
c. PC Thomas did not ask Mr. Shifara or Mr. Dillon whether or not they had consumed cannabis. Again, there is nothing in his notes or report. The Applicants point out that PC Thomas admitted that he did not ask Mr. Dillon about cannabis consumption. If he had CCA concerns as he claims when he noted the smell, the Applicants question why he would not ask Mr. Dillon if he had been smoking. According to the Applicants, this supports the argument that he did not have the regulatory purpose that he suggests, but rather wanted to “fish for criminality”.
d. PC Thomas decided to conduct a query on Mr. Shifara after determining he was sober. The Applicants state that this demonstrates that he had a “mindset of criminality” and that he was using the database to get information on criminal conduct. The Applicants point out that PC Thomas suggested in cross-examination that he was conducting this query to ensure that Mr. Shifara was a properly licenced driver because when he returned to the vehicle and asked the question about marijuana in the car, if the response was no, he could drive off. However, the reality is that, after confirming Mr. Shifara was a properly licenced driver, he did go back and ask Mr. Shifara whether there was marijuana in the car and the answer was no, however, this answer was not good enough for him, and he engaged in further questions.
e. PC Thomas had no objective basis to continue with a further search once he went back to do the query.
f. The call for backup only occurred once PC Thomas did the query and discovered Mr. Shifara’s previous conviction for a firearm in a motor vehicle. According to the Applicants, PC Thomas was certainly then interested in a criminal investigation, which was his motivation all along.
g. PC Thomas pushed for admissions to gain grounds under the CCA . After PC Thomas retuned to the vehicle and asked how much marijuana was in the vehicle and was told none, he was simply not willing to stop there. He then interrogated Mr. Shifara with his flashlight shining in the car. PC Thomas was not going to stop until he got the answer he wanted.
h. He interpreted innocuous conduct of Mr. Dillon, such as grabbing his groin and turning his body away, as cause for safety concerns. The Applicants also noted that PC Thomas suddenly remembered during testimony, with no mention in his notes or report, that he found it peculiar that someone would stay so close to a dirty vehicle in winter.
i. PC Thomas ultimately does a full “criminal style” search of both occupants, from the lining of the hood to their groin area.

[ 99 ] The Applicants also raise the issue of racial profiling in their written materials. They conceded in oral argument that there was no overt racial profiling on the record, however, suggest that unconscious racial profiling must be considered given how PC Thomas dealt with this situation. In R. v. Byfield , 2023 ONSC 4308 , Barnes J. stated:

[71] However, the fact that a police officer may not be consciously lying about his motivation, does not mean he did not unconsciously engage in racial profiling. Racial profiling can occur even when an officer is unconscious of the fact that the formulation of reasonable grounds has been tainted by considerations of racial stereotypes. This circumstance is explained by the Court of Appeal in R. v. Sitladeen , 2021 ONCA 303 , 155 O.R. (3d) 241…

While the Applicants acknowledge that there is no direct evidence of racial profiling, such is rare. The Applicants encourage this court to consider the possibility of racial profiling as a contextual factor in this case.

[ 100 ] According to the Applicants, when one looks at the totality of the circumstances, the motivations of PC Thomas are clear. He used sobriety and the CCA as an excuse for his true motives. It should be noted that the Crown concedes that a determination that this was a pretext or racial profiling would amount to a breach of s. 9 and exclusion.

[ 101 ] Having considered the entirety of the circumstances very carefully, this court is not of the view that this was all a pretext or contrived reason used by PC Thomas to justify the detention. Frankly, there is nothing wrong with PC Thomas having an interest in or keeping an eye out for criminality. Officers can have more than one thing in mind. Given the things that PC Thomas did follow through on, this court does not accept that he created a false or contrived reason to justify detention where he had no legitimate reason. This court accepts that he had a legitimate reason.

[ 102 ] The plan of PC Thomas was to do sobriety investigations. He provided a reasonable explanation as to why he was running plates from the parking lot of a licenced establishment, giving him a reference point as to how long the vehicles had been there. This was relevant to his purpose. The fact that he happened to learn other things about the registered owners is not forbidden. There was certainly nothing hidden about what PC Thomas was doing as he believed that the system kept track of when and which officer had run the plate. The fact that he could have recorded the licence plates in other ways, such as noting them in his notebook, does not cause this court to be concerned about his true motives. This court would note that the Crown’s argument that marking the tires with chalk might have alerted the drivers to a police investigation did not seem to be a good reason not to do this. The fact that the driver might be alerted and choose not to drive impaired would seem to be a good result. In any event, this court is not concerned about the method chosen by the officer.

[ 103 ] As for the suggestion that PC Thomas did not even bother to ask the driver whether he had been drinking or consumed cannabis, this court finds that he did ask these questions. He testified that he approached the vehicle, let the driver know that the stop was recorded by the in-car camera, let him know the reason for the stop, and demanded the driver’s licence, ownership and proof of insurance. In cross-examination, PC Thomas testified that he did not recall exactly what he asked the driver, as in whether he asked where he was coming from, but that he would have asked if he had consumed alcohol as that would have been part of the sobriety check. PC Thomas stated that he had an independent recollection of asking Mr. Shifara if he had consumed any alcohol or marijuana, however, he agreed it was not in his notes or report that he asked these questions or what his response was. He does note in his memobook that he was satisfied that the driver was not impaired and the indicators as to why he believed this to be the case. Given that the purpose of the stop was to check on the sobriety of the driver, there was no reason to ask Mr. Dillon about marijuana consumption.

[ 104 ] The fact that he took the driver’s licence back to his vehicle and ran it, despite having concluded that the driver was sober, is not indicative of anything, but rather appears to be typical police procedure when pulling over a vehicle. Ensuring the person has a valid licence to drive would seem reasonable in these circumstances. It was only at that point that his purpose turns completely in another direction – the Cannabis Control Act direction.

[ 105 ] The fact that PC Thomas found Mr. Dillon’s actions in grabbing his groin and turning away to be noteworthy is not surprising. The actions as described by PC Thomas and as seen on the in-car camera video are noteworthy. The fact that those actions could have an innocent explanation does not detract from PC Thomas’ legitimate concern in the totality of the circumstances. Even upon seeing these actions, PC Thomas does not handcuff or ground Mr. Dillon. He just remains more vigilant. There is nothing wrong with extra vigilance.

[ 106 ] As for unconscious bias, there is simply no reason to believe that this played any part in this interaction. Mr. Shifara and Mr. Dillon were permitted to remain in the vehicle when PC Thomas went back to conduct the query. Mr. Dillon was permitted to remain in the vehicle when Mr. Shifara was taken out for a search. Mr. Shifara remained on the grassy sidewalk area at the beginning of the search of Mr. Dillon. The interactions appear to be respectful. Neither of them are handcuffed until PC Thomas believes he has located a weapon in Mr. Dillon’s pants. While unconscious bias is obviously difficult to recognize, there is simply no reason to believe that it was active in this case.

[ 107 ] Alternatively, the Applicants argue that, if this was not a pre-text, there was still a violation of s. 9, as there was no authority for an investigative detention to gain grounds to conduct a search under s. 12(3) of the CCA . In contrast, the Crown argued that it would have been negligent for PC Thomas to let the vehicle simply leave without investigating further given the smell of marijuana. In this court’s view, this was exactly what PC Thomas was required to do if he did not have the basis for an investigative detention and did not have grounds under the CCA . PC Thomas went too far with no authority to do so. He was most certainly reckless in his conduct which resulted in one breach of Charter rights after another, starting with an arbitrary detention.

[ 108 ] This court has considered R. v. Grant , [2022] O.J. No. 2472 (SCJ) , in which Justice Spies found that the officer breached the accused's rights by questioning the accused about the presence of marijuana in the vehicle in order to create a basis for a search under the CCA . However, Justice Spies accepted that in appropriate factual circumstances an officer could ask questions in furtherance of CCA enforcement objectives. Justice Spies gave the example that an officer who smelled fresh marijuana could ask questions about whether there was marijuana in the car to determine if there were reasonable grounds to believe that there was an open source of fresh marijuana in the vehicle in which case it would be reasonable to believe that it was not being transported legally. In Grant , Justice Spies conducted a factual and context specific assessment and concluded that the officer was not justified in asking the accused questions related to the presence of marijuana in the car in the absence of a proper factual basis to ask the questions. She stated:

[146] For these reasons I find that PC Miller's questions of Mr. Grant were for the purpose of finding grounds to conduct a CCA search. There were no reasonable grounds for the questions that PC Miller asked, and the information the officer received from Mr. Grant was an unlawful seizure of information contrary to s. 8 of the Charter . Furthermore, PC Miller's warrantless seizure of the Ziploc bag and the grinder was also unlawful, and his search of these items contravened Mr. Grant's rights under s. 8 of the Charter . There is no evidence that Mr. Grant was aware of, let alone waived, his rights under s. 8 of the Charter .

[ 109 ] While this court does not necessarily agree with all of the comments of Justice Spies, the decision has been considered.

[ 110 ] As stated earlier, it is clear that both Mr. Dillon and Mr. Shifara were detained from the moment that PC Thomas smelled marijuana – right from the outset of this interaction. While PC Thomas was wanting to check on the licensing status of the driver, Mr. Shifara, he also wanted to continue the CCA investigation by asking more questions and he ultimately did so. After confirming that there were no licensing problems, PC Thomas approaches the car and starts questioning Mr. Shifara about marijuana in the vehicle. Clearly both occupants were detained.

[ 111 ] At the point that PC Thomas returns to the vehicle and starts questioning Mr. Shifara about marijuana in the vehicle, he no longer has any sobriety concerns, by his own admission. He is now asking questions of Mr. Shifara in order to gain grounds to search the vehicle and the occupants. The smell of marijuana in a car is not sufficient grounds to believe that cannabis was improperly stored in the vehicle. The officer admits that this was not sufficient and that he wanted to ask more questions. The questions directed at Mr. Shifara result in information being provided that PC Thomas claims formed the grounds for his search of the occupants and the vehicle. While this court is satisfied that the smell and rolling tray with loose cannabis pieces is a sufficient basis upon which to trigger s. 12(3) of the CCA , which will be addressed below, asking questions of Mr. Shifara to get to that point was not proper. While certainly Mr. Shifara could have been asked about his consumption, there was no reason to ask if there was marijuana in the car. Nothing was in plain view. The officer is not entitled to ask questions to further his investigation for which he admittedly has no reasonable grounds at the time. At this point, the detention was arbitrary.

[ 112 ] This court accepts that the detention was not arbitrary for long, as the rolling tray with marijuana pieces would have provided grounds to believe that there was improperly stored marijuana that was readily available to the occupants. However, the detention was nevertheless arbitrary, and it resulted in information being obtained that the police officer had no right to ask for. There is no statutory or common law authority to support a detention to gain grounds to conduct a regulatory search under the CCA . When asked about the authority, the Crown only pointed back to the CCA . The Crown stated that the CCA empowers the officer to ensure that cannabis is not readily available in the vehicle and empowers the officer to take investigative steps before he has the authority to search under the CCA . There is nothing in the CCA that provides authority for an investigative detention in order for the officer to gain grounds that he admittedly did not yet have. The only possible authority would be a common law investigative detention power. Clearly, these circumstances would not justify an investigative detention as it does not meet the requirements in Mann – reasonable grounds to suspect that the individual is connected to a particular crime and that such a detention is necessary. Mann made it clear that the brief in duration detention does not impose an obligation on the detained individual to answer questions posed by the police. A decision from this court in line with what the Crown suggests would be new law unsupported by past precedent.

[ 113 ] Once the initial traffic stop for sobriety was concluded, there was no HTA purpose, and the investigation shifted solely to the CCA , the Applicants detentions turned arbitrary.

Section 10(a) and 10(b)

[ 114 ] Section 10(a) of the Charter provides that everyone has the right on arrest or detention to be informed promptly of the reasons therefor.

[ 115 ] Recently, in R. v. McGowan-Morris , 2025 ONCA 349 , the Court of Appeal provided some guidance on 10(a) and 10(b) rights in relation to Cannabis Control Act searches. The accused Respondent was a passenger in a Jeep that the police pulled over to investigate a potential contravention of the CCA . Another passenger ran from the vehicle but was caught by police. The Respondent was removed from the vehicle and grounded. The police found two handguns and an extended magazine in the Jeep. The Respondent and the other passenger were tried together on various firearm offences, and both applied to exclude evidence based on violations of s. 8, 9, 10(a) and 10(b). The trial judge held that the Respondent’s rights under s. 9, 10(a) and 10(b) were infringed and excluded the evidence under s. 24(2). The Respondent was acquitted. The trial judge did not exclude any evidence as it related to the other passenger, but he was acquitted. The Crown appealed the Respondent’s acquittal on the basis that the trial judge’s findings on the Charter were in error. The appeal was allowed, and new trial ordered. In relation to s. 10(a), the Court stated:

[39] The informational component demands, "at a minimum", that the police advise the detainee "in clear and simple language the reasons for the detention": R. v. Mann , 2004 SCC 52 , [2004] 3 S.C.R. 59 , at para. 21 . If the police have multiple reasons for detaining an individual, they must disclose each reason to the detainee: R. v. Borden , 1994 SCC 63 , [1994] 3 S.C.R. 145 , at pp. 165-166. Moreover, the reason for the detention, whether one or more, must be "legally valid": R. v. Beaver , 2022 SCC 54 , 475 D.L.R. (4th) 575 , at para. 90 . The ultimate question is "whether what the accused was told, viewed reasonably in all of the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline or submit to arrest [or detention], or alternatively, to undermine his right to counsel under s. 10(b)": Evans , at p. 888; Latimer , at para. 30.

[40] Section 10(a) of the Charter requires that the police only explain what they are investigating, not how they intend to investigate the matter and the steps they might take: R. v. Kumarasamy , 2011 ONSC 1385 , at paras. 56- 57 ; Davin Michael Garg and Anil Kapoor, Detention, Arrest, and the Right to Counsel (Emond Montgomery Publications Limited, 2025), at p. 304. Simply put, the "reason" that the police detain an individual is that they suspect that the individual may have committed a particular offence.

[41] These basic principles accord with the purpose of s. 10(a) and ensure that the right sits harmoniously beside s. 10(b). It is the role of counsel, not the police, to explain to a detained person the investigative steps that may be taken during a detention, should they choose to exercise their rights under s. 10(b) of the Charter . In the words of Nguyen , at para. 16, a detainee need only be told in plain, non-technical language, "the reason why the restraint is being imposed": see also R. v. Katerberg , 2019 ONCA 177 , at para. 7 . When the police inform an individual of this basic reason and give them their s. 10(b) right, that individual will have been afforded every opportunity to understand the extent of their jeopardy.

The Court found that the trial judge erred in finding a 10(a) violation where the officer failed to advise of the investigative steps that might be undertaken, rather it was sufficient for the officer to simply advise that they were stopped because they could not have cannabis in the vehicle.

[ 116 ] This court is satisfied that PC Thomas was initially conducting a sobriety check and that stopping and detaining the vehicle and its occupants was reasonable. However, it would seem that PC Thomas, fairly quickly, determined that there were no sobriety issues to be concerned about. Further, immediately upon approaching the driver’s window, he smelled a strong odor of cannabis. By his own admission, at this point, he wanted to further the CCA investigation and ask more questions. While he also wanted to check on the driver’s licencing status, he admittedly was planning to ask more questions to further his CCA investigation. The vehicle and its occupants were not free to leave. When PC Thomas formed this intention, he had a duty to advise the occupants of the vehicle of the reasons for their detention – all of the reasons.

[ 117 ] It is not clear to this court that PC Thomas advised the occupants of any reasons for their detention as he was returning to his cruiser to conduct the query. It was suggested to PC Thomas in cross-examination that he should have advised Mr. Shifara that things had changed and that this was no longer an impaired driving investigation, but rather this was now a CCA investigation. PC Thomas stated that he did not recall exactly what his words were to Mr. Shifara before he returned to his vehicle with the documents, but he did not recall saying that. He agreed that he could have or should have told him, if he did not, but he did not recall whether he said this or not. After being referred to his preliminary hearing evidence, PC Thomas testified that, based on his experience now, he would probably tell the driver that he would be right back and that he wanted to talk to him about the smell of cannabis, but he wanted to go to his vehicle, perform queries, and grab another unit.

[ 118 ] It is absolutely clear to this court that PC Thomas did not advise the occupants that they were detained because they were not permitted to have cannabis readily available to any person in the vehicle – or any information of that nature. Even when PC Thomas returned to the driver’s window after conducting his query, rather than advising the occupants of the reason they were continuing to be detained, PC Thomas walked up to the vehicle and asked how much cannabis is in the vehicle. The Crown concedes that this would be a 10(a) violation if this occurred, however, the Crown suggested that PC Thomas testified that when he returned to the vehicle, he told the occupants that they were being detained under the Cannabis Control Act . This is simply not what PC Thomas testified to. Back at the driver’s side, PC Thomas asked Mr. Shifara how much cannabis was in the vehicle. Mr. Shifara said there was no cannabis in the vehicle. PC Thomas said he knew what cannabis smelled like and he thought there was cannabis in the vehicle. PC Thomas stated that Mr. Shifara then said there was an ashtray and reached behind him to the area behind the centre console on the floor. PC Thomas did not recall his exact words to Mr. Shifara before he started asking about the cannabis in the vehicle. PC Thomas agreed that he did not give rights to counsel at that time. PC Thomas agreed that Mr. Dillon was detained at that time and was not free to leave. There was no suggestion by PC Thomas that he told Mr. Dillon anything.

[ 119 ] The evidence of PC Walton also leads this court to the conclusion that PC Thomas did not inform the occupants of the reason for their detention. As for whether PC Thomas said anything about this cannabis search to the driver, PC Walton said not that he could recall. From what he recalled, PC Thomas was advising the driver that he smelled cannabis. The driver then reached to the back over his right shoulder and pulled what looked like a velvet or suede type bag and from that bag there was a tray and a grinder. While PC Walton did have some discussion with Mr. Dillon about the CCA , this was after Mr. Shifara had incriminated himself and was taken out of the vehicle for a search. PC Walton then told Mr. Dillon about the search powers under the CCA , and that once PC Thomas was done searching Mr. Shifara, he would be searched and then the vehicle would be searched, with the purpose being to ensure there was no further contravention of the CCA . PC Walton did not recall PC Thomas engaging in that sort of conversation with anyone in the vehicle.

[ 120 ] The Crown acknowledges that if the court finds that after conducting the query and upon return to the vehicle PC Thomas immediately launches into questioning about marijuana in the car without offering an explanation about the CCA detention then that is a 10(a) breach. This is precisely what this court has concluded occurred in this case.

[ 121 ] As the case law establishes, PC Thomas was not required to outline his investigative steps, but was required to advise of why the occupants were continuing to be detained. He did not do so and neither did PC Walton. This is a clear 10(a) breach.

[ 122 ] As for 10(b) rights in the context of the CCA , the court in McGowan-Morris stated as follows:

[84] In applying Orbanski in this context, it is helpful to consult first principles. The trigger for all the rights under s. 10 of the Charter is an arrest or a detention. As noted above, in Suberu , the Supreme Court of Canada discussed the limits of investigative detentions and the correlative duties of police officers. McLachlin C.J.C. and Charron J. said, at para. 42: "Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter , the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention" (emphasis added). I note that several cases have more broadly concluded that "exceptional circumstances" - not just safety concerns - may warrant a suspension of s. 10(b): R. v. Brunelle , 2024 SCC 3 , 92 C.R. (7th), at para. 83; R. v. Mian , 2014 SCC 54 , [2014] 2 S.C.R. 689, at para. 74 ; and R. v. Manninen , 1987 SCC 67 , [1987] 1 S.C.R. 1233, at p. 1242.4 Those other exceptional circumstances, however, are not relevant to the present appeal.

[85] Suberu and other caselaw, therefore, make clear that suspensions of s. 10(b) will be lawful in at least two circumstances. First, where there are concerns for officer and public safety: Suberu , at para. 42; R. v. Strachan , 1988 SCC 25 , [1988] 2 S.C.R. 980, at pp. 998-999; R. v. Rover , 2018 ONCA 745 , 143 O.R. (3d) 135, at para. 33 ; R. v. Brown , 2024 ONCA 763 , at para. 35 ; and R. v. Pileggi , 2021 ONCA 4 , 153 O.R. (3d) 561, at paras. 57-63 . And, second, where a limit on the relevant right is prescribed by law and justified under s. 1: Suberu , at para. 42; Orbanski , at para. 33; and Thomsen , at p. 650.

[88] I accept the respondent's submissions and I agree with the trial judge that Orbanski should not be extended to CCA searches. While there are some obvious public safety similarities between sobriety screening stops and the objects of s. 12 of the CCA , there are also some significant differences.

[90] The public safety purpose of s. 12 of the CCA , however, does not bear on the question of whether the statute limits s. 10(b) by necessary implication. When the police initiate a search pursuant to s. 12, the occupants of the vehicle are detained and no longer pose a risk to public safety. Thus, providing the right to counsel immediately upon detention does not hinder the objective of the statute because any risk to public safety is mitigated once the vehicle is stopped. Indeed, while public safety features as a prominent theme throughout Orbanski , Charron J. similarly did not invoke the legislation's public safety objective in assessing whether the statute contained an implied limit on s. 10(b).

[91] Beyond public safety considerations, the similarity to Orbanski fades. Most importantly, I accept the respondent's submission that, in this context, we are not concerned with a mere screening procedure. The legislation at issue in Orbanski authorized police officers to assess the sobriety of drivers by asking questions or using other means; this procedure was necessarily brief. The brief nature of the investigation led Charron J. to conclude that the legislation must include an implied limit on the right to counsel because, otherwise, each sobriety check would "result in longer and often unnecessary detentions": at para. 45.

[92] Section 12(3), by contrast, does not create a brief sobriety screening procedure. As the trial judge recognized, s. 12(3) of the CCA is much more intrusive, permitting a search without a warrant, not just of a potentially liable driver, but all others in the vehicle, perhaps even minors, and the vehicle itself. Suspending the right to counsel will not avoid that result.

[94] By contrast, the CCA imposes no time constraints on police officers. There is no requirement that the detention be brief or that the police conduct their investigation without any delay, key factors in Orbanski . Indeed, depending on the circumstances, including the nature of the vehicle and the number of people involved, the police would be unable to complete a competent investigation under the CCA in a swift manner. As the cases demonstrate, occupants of vehicles will need to be removed from the vehicle to permit an effective search. This takes time. The vehicle itself may be searched, a procedure that may also take time.

[95] With that said, I accept the appellant's submission that practical considerations may arise if the police are required to comply with s. 10(b) of the Charter at roadside, especially in a multiple occupant situation. The trial judge was alive to these practicalities. Apprising the driver and passengers of the right to counsel in s. 10(b) of the Charter may result in further delay if a person chooses to exercise their rights. But that is a decision to be made by the rights-holder. Whether a detainee chooses to exercise their right is not a contingency that should detract from the scope of the protection afforded by s. 10(b) of the Charter . Moreover, as LeBel J. signalled in Orbanski , at para. 80, implementational difficulties or inconveniences alone cannot permit a court to read in a rights limitation into a statute.

[97] In any event, I see nothing "odd" in divergent outcomes in Orbanski and the CCA context. As noted above, the power to search places and things without a warrant is a significant point of differentiation, not just in relation to intrusiveness, but also as it relates to the length of time a driver or passenger might be detained. Consequently, I agree with the trial judge that s.1 of the Charter cannot operate to suspend the operation of the right to counsel before conducting a search under s. 12(3) of the CCA .

[100] However, in other situations, when the police stop a vehicle for other purposes, perhaps for an HTA violation or at a R.I.D.E. Checkpoint, the police may ask questions about consumption and make observations of the driver and passengers and other items in plain view in the normal course. It is only when the police form reasonable grounds that the obligations under s. 10(b) of the Charter kick-in. This maintains consistency with Orbanski and subsequent jurisprudence in the area.

The Court of Appeal agreed that there was a s. 10(b) breach. Ultimately, however, balancing the Grant factors, the Court did not exclude any of the seized evidence.

[ 123 ] The Crown concedes that there was a 10(b) breach in relation to both Mr. Shifara and Mr. Dillon at the point where PC Thomas returned to the vehicle after conducting his query.

[ 124 ] From the time PC Thomas initially approached the driver’s window and smelled marijuana, Mr. Dillon and Mr. Shifara were not free to leave. PC Thomas admitted that, by the time he returned to the vehicle, after conducting the query on Mr. Shifara, Mr. Shifara and Mr. Dillon were under investigative detention for the purpose of determining whether he had grounds to conduct a search under the CCA , a purpose that this court has found to be improper. As this court has found, Mr. Dillon and Mr. Shifara were not advised of the reason for their detention.

[ 125 ] The facts in relation to s. 10(b) rights are not in any dispute. Neither Mr. Dillon nor Mr. Shifara were advised of their s. 10(b) rights until PC Thomas was in the midst of searching Mr. Dillon and located the firearm in the groin area of his pants. At that point, PC Thomas, while not reading from his memobook, did at least advise Mr. Dillon that he had a right to counsel. Around this same time, PC Walton provided similar information to Mr. Shifara, after he was also arrested for possession of the firearm found on Mr. Dillon. This informational component of rights to counsel was clearly not timely.

[ 126 ] In this court’s view, there was a clear violation of s. 10(a) and 10(b) of the Charter .

Section 8 – search / manner of search

[ 127 ] The search of the vehicle and the Applicants was warrantless and presumptively unreasonable. The Crown must demonstrate the search was authorized by law.

[ 128 ] In R. v. Grant , 2021 ONCJ 90 , the accused’s vehicle was initially stopped for an expired validation tag, but this transitioned into a sobriety check on the driver, and then into an investigation for a contravention of the CCA . The officer determined that he would be searching the vehicle and its occupants and stated his intention to do so pursuant to s. 12(3) of the CCA . The Court stated:

[106] Once Officer Hansen discovered the cannabis on Mr. Grant's person--which as I have already explained, I find Mr. Grant produced it during a lawful roadside sobriety check--he had the grounds to search the occupants and the car. He did not need independent grounds to believe there would be more cannabis and then only search those areas which could contain illegally stored cannabis.

[107] Again, this is in keeping with the intent and aim of the section: that is road safety. It is public welfare legislation. Once the officer had grounds that cannabis was being contained in contravention of the Act - which he did when the driver produced that baggy from within his pocket--he was entitled to search the occupants and that vehicle to ensure there was no other cannabis illegally stored and accessible to driver before (ticketing or not the driver and) letting the vehicle go on its way. Moreover, as noted by McKinnon J. in J.F. , "[i]t is enough to have reasonable and probable grounds to believe that a person has just contravened s. 32(1) to trigger the search power under s. 32(5). The decision to execute the search need not be contemporaneous with the commission of the offence."

[108] Nonetheless, given the evidence of recent consumption of cannabis, the presence of cannabis shake on the centre console, and the driver's attempted deflection of a further investigation when that baggy of cannabis was produced, there was, objectively, grounds to believe there was more cannabis accessible to the driver. In my view then, if I am wrong on the more expansive view of the search power and J.F . was wrongly decided, Cst. Hansen would have been entitled to search areas in the front cabin of the vehicle, including the occupants, where cannabis could be 'readily available to any person in the vehicle'.

[ 129 ] In R. v. Moulton , 2023 ONCJ 140 , the Applicant was charged with numerous firearm offences. His vehicle was searched purportedly pursuant to the CCA following a RIDE stop. The loaded handgun was located in a satchel on the front passenger seat. The Applicant was the loan occupant. Justice Henschel found no violations of the Charter , and in doing so, she provided a summary of the search powers under s. 12(3) of the CCA, including:
a. Reasonable and probable grounds have both an objective and subjective component. (para 210)
b. This does not require proof on a balance of probabilities, but rather credibly-based probability – more than suspicion or a hunch. (para 211)
c. Evidence must be considered cumulatively and contextually. (para 212)
d. Reasonable grounds to believe does not require the officer to be in a position to dispel or rule out all innocent or innocuous inferences that may be drawn from the same observations. There may be competing explanations. (para 212)

[ 130 ] To search pursuant to section 12 of the CCA , PC Thomas needed reasonable grounds to believe that cannabis was readily available to an occupant. An odor of marijuana is not sufficient and PC Thomas accepted this.

[ 131 ] Having said that, this court does not agree that the pieces of marijuana discovered did not provide reasonable grounds to believe under s. 12(3). While a stem may not be enough to ground a search, this was not a stem. While the pieces were undeniably small, there is no minimal amount required. The Applicant points to R. v. Morgan , 2023 ONSC 6855 , in which Rahman J. questioned whether “crumbs” of cannabis is sufficient to support a belief for the purposes of s. 12(3). However, it must be noted that in that case, Rahman J. found that it was not necessary to decide this issue as he was not satisfied that the officer’s observation was reliable. The Applicants also rely on R. v. McKenzie-Walcott , 2022 ONSC 1350 , in which Harris J. found that a strong odor and a large marijuana stem did not provide reasonable grounds. While this court does not necessarily agree with the conclusion of Harris J., the facts in this case do not involve a stem or the stalk as Harris J. found was not cannabis as defined.

[ 132 ] In the case at bar, the officer was shown a rolling tray with small pieces of fresh marijuana, two grinders, and a sealed bag believed to be marijuana. This was all in addition to the strong odor. Surely this was enough to support reasonable grounds. There is no mention of a minimal amount required in the CCA . This court is satisfied that the smell and small amounts in this case were sufficient for reasonable grounds. It would seem unreasonable for this court to suggest a certain minimal amount requirement when the legislation does not speak to this.

[ 133 ] While this court has concluded that PC Thomas obtained his grounds for the search improperly, this court finds no s. 8 violation in relation to reasonable grounds for the search once that information was known to PC Thomas.

[ 134 ] As for the reasonableness of the manner of the search, the Applicants argue that there was no reasonable basis to believe that there was cannabis in the groin area of either Applicant. PC Thomas confirmed that the purpose of the searches was to locate improperly stored cannabis, not safety. The Applicants argue that even during a Mann safety search, the police are not permitted to swipe the genital area without good reason. There must be a reasonable suspicion that something will be found in that location. The Applicants point out that the possible infractions in the CCA carry maximums of two years in jail and/ or a $250,000 fine for the most serious. Surely, the Applicants argue, this would not permit the police to search the genital area as a matter of course, as the intrusiveness of the search is entirely out of proportion to what the search function is about. The Applicants argue that, if this cannot be done in a criminal context, it certainly should not be done in a regulatory context.

[ 135 ] The Applicants rely on R. v. Byfield , 2005 ONCA 1486 , [2005] O.J. No. 228, (C.A.), which relies on Mann , to argue that searching in the genital area is prohibited unless there is some real reason to do that, and that any suggestion that this should be done with regularity in the context of a CCA search is contrary to years of jurisprudence. In Byfield , the court states:

[21] Finally, even where the detention is lawful and not undermined by improper purposes, if the police exercise the power unreasonably, that action can violate the detainee's rights. Indeed that is what occurred here. The Crown properly conceded that when the first officer touched the appellant in the groin area for reasons unrelated to officer safety but to investigate whether the appellant was carrying contraband he violated the appellant's rights. The Supreme Court of Canada's decision in Mann , decided after the appellant's trial, confirms the correctness of the Crown's concession. The court there held at para. 40 that the "general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down search incident to an investigative detention. Such a search power does not exist as a matter of course; the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk." There is no suggestion in this case that the initial search near the appellant's groin area was motivated by officer safety.

[26] The touching towards the appellant's groin area by the first officer was similar to the touching that occurred in Mann . In light of that case, the violation here could not be properly characterized as minor or "minimal in the extreme". I would also make this observation. In R. v. Mann at para. 18 , Iacobucci J. considered the justification for undertaking modification of the common law to permit the police to conduct investigative detentions short of arrest. He noted that the "unregulated use of investigative detentions in policing, their uncertain legal status, and the potential for abuse inherent in such low visibility exercises of discretionary power are all pressing reasons why the Court must exercise its custodial role". In this case, I have not found it necessary to deal with the appellant's submissions that the initial stop was motivated by racial profiling. These kinds of investigative stops, however, are the very types of police conduct that lend themselves to allegations of racial profiling. An important lesson from R. v. Mann is that the courts must take seriously the violation of a suspect's rights in the course of an investigative stop.

[ 136 ] This court accepts the evidence of PC Thomas that it is common for people to hide things in their pants to conceal it from police. The fact that he had never found marijuana in the groin area of someone’s pants is not determinative. Marijuana is far more easy to hide than a bottle of alcohol, for example. PC Thomas described his search as a swipe with the back of his hand up one leg, across the groin area, and down the other in a horseshoe fashion. The pants were not removed, which would obviously be improper. See R. v. Golden , 2001 SCC 83 . Further, in relation to Mr. Dillon, he was acting in such a way as to create reason to believe that there was something in his pants.

[ 137 ] Having said that, this court questions such an invasive search of a person in the context of a regulatory offence. Generally speaking, a search should be no more intrusive than is necessary to resolve the reasonable suspicion. See R. v. Stairs , 2022 SCC 11 at para 80 . This was not a search in the context of an investigative detention but rather as directly permitted under the CCA . While the CCA does permit a search of the person, and does not purport to restrict the scope of the search in any way, surely a search in this regulatory context cannot be more intrusive than a safety search – simply as a matter of course. PC Thomas explained that he searches the same way whether under the CCA or otherwise – the entire body including the groin area. That is what he had been taught. PC Walton, however, testified that a cannabis search would be less invasive than a search for a firearm or search incident to arrest.

[ 138 ] This court finds that the search conducted by PC Thomas in the groin area of both Applicants – purporting to be done in the context of the CCA – simply because this is the way he always does a search, was unreasonable.

24(2) analysis

[ 139 ] Breaches of s. 8, 9, 10(a) and 10(b) have occurred in this case.

[ 140 ] Applying the Grant analysis ( R. v. Grant , 2009 SCC 32 ) leads to the conclusion that evidence obtained must be excluded. This is so for the following reasons:

a. The Charter infringing conduct was serious. There is more than one Charter violation. The Charter violations begin at the outset of the interaction and continue throughout the event. The powers given to the police under the CCA are significant. Such significant powers must be respected and used with great care. While this court does not agree that PC Thomas was dishonest with this court, his understanding of his powers and obligations is somewhat troubling, as well as his attitude about what he has determined are “minor details”. While this court did not find a breach under s. 8 in the context of reasonable grounds that had developed for s. 12(3) of the CCA , there is no question that the s. 9 violation, with no information provided as required by s. 10(a) and 10(b) led to obtaining grounds for the search that otherwise did not exist. The search of the Applicants was then carried out in an unreasonable manner. This court accepts that further clarification was provided by McGowan Morris of which PC Thomas could not have been aware. However, Mann is not new in describing what is a proper investigative detention. Further, the concept of 10(a) and 10(b) rights kicking in at the point of an investigative detention is also not new. The fact that 10(b) rights were ultimately given does not minimize the seriousness of the breaches. The evidence of PC Thomas that he always conducts a search in the same manner, including the groin, is troubling. This factor strongly favours exclusion.

b. The impact of the breaches on the Charter protected interests of the Applicants is significant. The detention from the time PC Thomas returns to the car is arbitrary. Inculpatory evidence was obtained from Mr. Shifara as a result of the police failure to comply with their obligations. Without the information and items being provided by Mr. Shifara, PC Thomas admitted that he would not have had reasonable grounds to search the occupants or the vehicle based on odor alone. Further, 10(a) only required that the police explain what they were investigating, not how they intended to investigate the matter and the steps they might take. This is not much to ask. However, PC Thomas did not advise Mr. Shifara or Mr. Dillon of anything. No rights – no caution. He just launched into an interrogation about what marijuana was in the car. As for 10(b), PC Walton stated that he would have permitted Mr. Shifara to use his phone to call a lawyer while they waited on the grass. Therefore, presumably, he would have permitted Mr. Dillon to do the same as they waited at the car. However, neither Mr. Shifara nor Mr. Dillon were ever told they could do so. The Crown suggested that there is no evidentiary basis to believe that things would have been any different if rights had been given. In this court’s view, there is no obligation on Mr. Dillon or Mr. Shifara to demonstrate that they would have done things differently if given this information. These are not technical breaches as the court concluded in McGowan-Morris . This factor strongly favours exclusion.

c. Most certainly society has an interest in having this case adjudicated on its merits. The Crown has clearly stated that exclusion of the evidence obtained will result in the case being brought to an end. The evidence obtained is real and reliable. These factors favour inclusion. However, society also has an interest in Charter rights being respected. The courts have held that where the first two factors favour exclusion, the third factor will generally not dictate the result. See: R v Dunkley , 2016 ONCA 597 at para 63 ; R v McGuffie , 2016 ONCA 365 at para 63 .

[ 141 ] In all of the circumstances, this court has concluded that the admission of the evidence will bring the administration of justice into disrepute. All evidence obtained during the vehicle stop, including utterances made, will be excluded.

Justice V. Christie
Released: May 27, 2025