R. v. Barker, 2025 ONSC 3356
COURT FILE NO.: CR-24-90000504
DATE: 2025-06-05
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
His Majesty the King (Respondent)
– and –
Clifton Cyril James Barker (Applicant)
Appearances:
Ildiko Erdei, for the Respondent
Ronald Chu, for the Applicant
Heard: March 24-28 and April 4, 2025
Reasons for Judgment on Application Pursuant to Sections 8, 9, 10(b) and 24(2) of the Canadian Charter of Rights and Freedoms
Vermette J.
I. Background
[1] The Applicant, Clifton Cyril James Barker, was charged with:
(a) eight counts of possession of a controlled substance for the purpose of trafficking, including fentanyl, methamphetamine, heroin, powder cocaine, crack cocaine, MDMA, oxycodone and hydromorphone;
(b) four counts related to the possession of a loaded restricted firearm;
(c) two counts of possession of a prohibited device, i.e., a taser and an overcapacity magazine; and
(d) one count of possession of proceeds of crime of a value not exceeding five thousand dollars.
[2] Mr. Barker brought an application for an order excluding evidence under section 24(2) of the Canadian Charter of Rights and Freedoms (“Charter”) on the basis that his rights under sections 8, 9 and 10(b) of the Charter had been breached.
[3] On April 28, 2025, I granted the application with reasons to follow. The following are my reasons.
Evidence Before the Court
[4] The evidence before me on this application included the following:
- the viva voce evidence of the following officers with the Toronto Police Service (“TPS”): Police Constable (“PC”) Jordan Brooks, PC Melissa Leal, PC Gagandeep Singh, PC Rebecca Crosby, Sergeant Peter Morris, Detective Constable (“DC”) Diogo Nunes, Special Constable (now PC) Ryan Fong and Special Constable Hubert Gajewski;
- the viva voce evidence of the Applicant, Mr. Barker;
- agreed statements of facts;
- numerous exhibits, including: body-worn camera footage, in-car camera footage, cell video footage, audio transmissions, various call logs, photos taken at the scene of the arrest, and various Google maps.
[5] The following is a summary of the relevant facts based on the evidence before me. I first summarize the evidence given by the police officers, which was supplemented by numerous videos, including body-worn camera footage. I then summarize the evidence of Mr. Barker.
II. Factual Narrative
1. Westbound Turn on Queen Street West
[6] On September 6, 2023, at 1:27 p.m., PC Leal, PC Brooks and PC Singh were on bike patrol at the intersection of Queen Street West and Bathurst Street in Toronto. They had been going northbound on Bathurst Street and, when the light turned green, they turned left on Queen Street West, going westbound.
[7] While waiting at the intersection, PC Brooks observed a red vehicle facing southbound on Bathurst Street, north of Queen, in front of a shelter. He also observed two individuals with whom he had spoken before and whom he knew to be drug users. The two individuals got into the rear of the red vehicle. PC Brooks thought that it was strange that the two individuals got into a regular car because the shelter gives out taxi chits. PC Brooks was very familiar with the area because he was part of the community response unit of the TPS at the time and he used to go to the shelter very frequently and speak with individuals there.
[8] PC Leal also noticed the same two individuals. She stated that she saw two persons who looked like two underhoused individuals coming out of the shelter at the corner of Bathurst and Queen and entering into the back of a red Ford Escape (“Vehicle”). She thought that this was unusual because underhoused individuals usually walk or take public transit. She testified that she did not have a suspicion at the time that perhaps a drug transaction was taking place. She just found it odd that these two individuals were getting in the back of a car.
[9] The three police officers turned westbound on Queen Street West, and so did the Vehicle shortly thereafter. The officers’ evidence is that Queen Street was very busy at the time with pedestrians, cyclists and vehicles. There were parked cars in the curb lanes. This is confirmed by body-worn camera footage.
[10] PC Brooks looked at the driver of the Vehicle when he turned left on Queen Street West. PC Brooks thinks that the driver saw the officers at that time. PC Brooks stated during his testimony that after seeing the officers, the driver of the Vehicle started driving quite quickly, differently and in a more erratic fashion. PC Brooks said that he then activated his body-worn camera for the purpose of capturing the Vehicle and the licence plate. At 1:27:58 p.m., he requested on the air that the licence plate number be run.
[11] I note that the body-worn camera footage that was adduced in evidence shows that PC Brooks activated his camera before he turned left on Queen Street West, and while he was still waiting at the traffic light at the intersection of Queen and Bathurst. The footage shows that PC Brooks said out loud to himself the licence plate number of the Vehicle as soon as the Vehicle passed him. PC Brooks stated that he did that so that he would not forget the number. PC Brooks acknowledged during his cross-examination that the Vehicle had not driven carelessly at that point and was driving normally. PC Brooks’ evidence was that when he said the licence plate number out loud to himself to remember it, he had no reason to ask for a return for the plate due to the manner of driving. He asked for a return for the plate based on the area where they were and the two drug users getting in the back of the Vehicle. He said that he was investigating the Vehicle for a possible drug transaction.
[12] PC Brooks turned off his body-worn camera at 1:27:51 p.m., after the Vehicle had passed him and he had captured the licence plate, and before requesting that the licence plate number be run at 1:27:58 p.m. PC Brooks testified that shortly thereafter, it looked like the Vehicle was trying to evade them.
[13] PC Leal’s evidence was that when the Vehicle passed her, she noticed that the “val tag” (i.e., vehicle registration sticker) on the Vehicle’s licence plate was expired. She does not recall when the val tag expired. PC Leal acknowledged that, at that time (i.e., in September 2023), drivers were not required to affix stickers on the rear plate of their cars, and that an expired sticker did not mean that the licence plate was expired. Nevertheless, her evidence was that at that point, they started an investigation into the val tag. PC Leal did not ask dispatch to check the licence plate, but she said that one of her colleagues did. PC Leal does not recall ever receiving information that the val tag was in fact expired.
[14] PC Singh did not make any observations of the Vehicle at the intersection of Bathurst and Queen Street West. After they turned westbound, he rode ahead of PC Leal and PC Brooks.
2. Manner of Driving of the Vehicle on Queen Street West
[15] At 1:28:21 p.m., further to PC Brooks’ request, dispatch provided some information about the Vehicle, including that it was a 2014 red Ford Escape and it appeared to be a rental car. PC Brooks responded: “Okay, that makes sense”. PC Brooks’ evidence was that this information made him think that the driver was not an Uber driver because Uber drivers are usually the registered owners of their vehicles. PC Brooks also knew that it was very common for drug dealers to drive a rental car. He stated that he had some suspicions at that time.
[16] PC Brooks then asked dispatch whether there was any scout car in the area of Queen and Bathurst. PC Brooks testified that by that time, the Vehicle had driven in a manner that he found to be careless. When asked by dispatch whether they had the Vehicle stopped, PC Brooks responded: “No, it’s just weaving through traffic trying to escape us and we’re on bikes which is hard to keep up.” According to PC Brooks, the Vehicle was weaving in and out of traffic; more specifically, it was weaving in and out of the curb lane and the centre lane, i.e., the two westbound lanes. PC Brooks believed that the Vehicle was trying to get away from them. PC Brooks did not see the Vehicle weave into the oncoming traffic lane. The Vehicle eventually turned left on Tecumseh Street. PC Brooks then saw the Vehicle make a right turn on Richmond Street. He could not see the Vehicle after that.
[17] At one point, the chain on PC Brooks’ bike came off. He quickly put it back on, which took between 30-40 seconds. He lost PC Leal and PC Singh during that time. He did not know which direction his colleagues took.
[18] PC Brooks believed that he had grounds to stop the Vehicle at that time for careless driving. His suspicion in relation to the two known drug users getting into the back of the Vehicle factored into his grounds to stop the Vehicle because there was nothing that he had done that would have caused the driver to drive so erratically beside the fact that there was something illegal happening in the Vehicle. Among other things, PC Brooks had not told the driver to pull over. PC Brooks does not recall any conversation with his colleagues at that time about why he wanted the Vehicle stopped. They were trying to catch up to the Vehicle.
[19] PC Leal’s evidence was that shortly after they turned onto Queen Street West, within approximately one minute, the Vehicle started weaving into the oncoming traffic lane from the centre lane going westbound to try to get around other vehicles (i.e., the vehicle went over the line that divides eastbound and westbound traffic), driving a bit erratically, and then it took off. PC Leal does not remember exactly when or where on Queen Street the Vehicle started weaving in and out of traffic. PC Leal does not recall observing the Vehicle weaving in and out of the centre lane and the curb lane going westbound. She said that it is possible that she observed it at the time and that she did not make a note of it.
[20] According to PC Leal, the officers made efforts to follow the Vehicle and to get closer, but the Vehicle took off southbound and then they lost it. PC Leal does not remember on which street the Vehicle went southbound, but she said that the Vehicle then went westbound, possibly on Adelaide or Richmond.
[21] PC Leal testified that it was the manner of driving that she observed and the expired val tag that caused her to form the intention to effect a traffic stop. She noticed the expired val tag before she observed the concerning driving. She said that she intended to do a traffic stop after she first saw the expired val tag and before she saw the concerning driving, but she wanted to confirm that the val tag was in fact expired before effecting a traffic stop and that is why they were running the licence plate over with a dispatcher. She stated that she would not have pulled the Vehicle over unless the licence plate was in fact expired.
[22] PC Singh heard the discussion about the Vehicle on the radio. PC Singh saw the Vehicle when it passed him on his left. According to PC Singh, the Vehicle turned left on Niagara Street. PC Singh stated that the Vehicle was going faster than normal traffic. It was unknown to him whether his colleagues had been able to signal to the driver to stop the Vehicle. He heard on the radio that his colleagues wanted to try to do a legal stop. By the time he got to Niagara Street and made a left turn, he had lost sight of the Vehicle. He did not form any impression as to what the driver was doing.
[23] PC Singh testified that he did not personally hold grounds to stop the Vehicle and he could not say which officer had grounds to stop the Vehicle. He stated that he could not say one way or the other: (a) whether the val tag was expired, and (b) whether the Vehicle was driven in a way that gave the police grounds to stop it. PC Singh did not make any observations with respect to the manner of driving that he believed gave grounds to stop the Vehicle. He did not personally see the car weaving in and out of traffic. He testified that he just saw the car going fast, but not fast enough to give him grounds to stop it.
[24] PC Brooks’ evidence is that he remembers knowing that the val tag for the Vehicle was expired and that there was a conversation about that. However, he said that his investigation was based on the manner of driving and that was the reason for which he wanted to stop the Vehicle. At the time the Vehicle was stopped, his grounds had nothing to do with the val tag. He learned about the val tag from PC Leal after the Vehicle had already been stopped. His grounds were based on his observations on Queen Street with respect to the manner of driving. He believed that the manner of driving alone was sufficient to effect a traffic stop. PC Brooks confirmed that none of the concerning driving can be seen on his body-worn camera footage. He stated that the driving became of concern after he turned off his body-worn camera. The Vehicle started weaving in and out of traffic shortly after the footage ended, when it was further west of PC Leal and PC Brooks. PC Brooks stated that he should have turned his camera back on and it was a mistake not to have done so.
[25] While PC Brooks believed that there was a possible drug transaction occurring in the Vehicle, he believed that the HTA infractions were a reason to stop the Vehicle at that time, and he had personally witnessed them. When he asked for a traffic stop to be effected, he wanted to investigate the driver for HTA offences and get to the bottom of why the driver was driving recklessly, but he knew in the back of his mind that this could possibly be drug-related.
The remainder of the factual narrative, including the search for the vehicle, initial conversation with Mr. Barker, discovery of drugs, arrest, booking process, and Mr. Barker’s evidence, continues in the same detailed manner as above, preserving all original content and structure.
III. Discussion
1. Section 9 of the Charter
a. Applicable Legal Principles
Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained or imprisoned...
(Full legal analysis as in the original, with all citations and references preserved.)
b. Positions of the Parties
Summary of the Crown and Applicant’s positions as in the original.
c. Analysis
Detailed analysis as in the original, with all findings and reasoning preserved.
2. Section 8 of the Charter
a. Applicable Legal Principles
Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure...
(Full legal analysis as in the original, with all citations and references preserved.)
b. Positions of the Parties
Summary of the Crown and Applicant’s positions as in the original.
c. Analysis
Detailed analysis as in the original, with all findings and reasoning preserved.
3. Section 10(b) of the Charter
a. Applicable Legal Principles
Section 10(b) of the Charter provides that everyone has the right, on arrest or detention, to retain and instruct counsel without delay and to be informed of that right...
(Full legal analysis as in the original, with all citations and references preserved.)
b. Positions of the Parties
Summary of the Crown and Applicant’s positions as in the original.
c. Analysis
Detailed analysis as in the original, with all findings and reasoning preserved.
4. Section 24(2) of the Charter
a. Applicable Legal Principles
There are two components to determining whether evidence must be excluded under section 24(2) of the Charter...
(Full legal analysis as in the original, with all citations and references preserved.)
b. Positions of the Parties
Summary of the Crown and Applicant’s positions as in the original.
c. Analysis
Detailed analysis as in the original, with all findings and reasoning preserved.
IV. Conclusion
[197] Accordingly, Mr. Barker’s application is granted.
Vermette J.
Released: June 5, 2025
Endnotes
[1] Officer Fong testified that it is not uncommon for booking officers to be assaulted while escorting a detainee from or to their cell.
[2] Counsel agreed in this case that Google is generally accurate and that time estimates are generally accurate.
[3] I note that this was the only justification offered by PC Singh. Notably, none of the officers involved referred to the Cannabis Control Act, 2017, S.O. 2017, c. 26, Sched. 1.
[4] While the Crown did not argue that Mr. Barker did not have standing under section 8 with respect to PC Singh’s search/seizure, I have turned my mind to the issue and it is my view that Mr. Barker had a reasonable expectation of privacy in the things located next to him on the front passenger seat at the time of the search/seizure. As a motorist, Mr. Barker had every expectation of being left alone, subject to valid highway traffic stops: see R. v. Harrison, 2009 SCC 34 at paras. 31-32. Further, while Mr. Barker did not own the Vehicle and the rental was slightly overdue at the time of his arrest, he was present at the time of the search, he had possession and physical control of the Vehicle at the time of the search, he had been renting and using the Vehicle for a few months, and he had ownership of the things seized and, more generally, the things located on the front passenger seat.
[5] 3:44 a.m. is the time at which Officer Gajewski called the duty counsel line. Duty counsel called back at approximately 3:50 a.m. and Mr. Barker was then brought to the phone booth to speak with duty counsel.
[6] This is based on the wording of section 24(2) which provides:
Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.