Court File and Parties

Court File No.: CR-23-90000170

Date: 2025-07-30

Ontario

Superior Court of Justice

Between:

His Majesty the King – and – Adeyemi Thomas

Counsel:

Christie Black, for the Crown

Adeyemi Thomas, self-represented

Heard: May 12-13, 15-16, 20-23, 26-28, 2025

Reasons for Judgment

Vermette J.

Introduction

[1] The accused, Adeyemi Thomas, is charged that he, on or about February 1, 2019, at the City of Toronto, possessed cocaine for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 ("CDSA").

[2] Mr. Thomas brought an application under sections 8, 9, 10(b) and 24(2) of the Canadian Charter of Rights and Freedoms ("Charter") for: (a) an order declaring that his rights under sections 8, 9 and 10(b) of the Charter were violated; (b) an order excluding all evidence obtained as a result of these violations of the Charter, including the materials removed from his body during medical treatment on February 1, 2019; and (c) in the alternative, an order staying the proceedings against him.

[3] Mr. Thomas' application was heard at the beginning of the trial, with the parties' agreement that the evidence adduced for the purpose of the application was also being adduced for the purpose of the trial proper.

[4] On May 23, 2025, after hearing the evidence of all the witnesses who had relevant evidence with respect to the issues raised on the application and after hearing the parties' submissions, I dismissed Mr. Thomas' application. I found that Mr. Thomas had not established breaches of sections 8 and 9 of the Charter, but that he had established a breach of section 10(b) of the Charter. However, I concluded that the evidence related to the materials that were removed from Mr. Thomas' body during medical treatment on February 1, 2019, should not be excluded pursuant to section 24(2) of the Charter. I also concluded that a stay of proceedings was not warranted in this case. I advised the parties that written reasons would follow.

[5] The trial continued. The Crown called an expert witness and then closed its case. Mr. Thomas did not call any evidence.

[6] The following reasons include my reasons for dismissing Mr. Thomas' application as well as my reasons on the trial proper.

A. Background

[7] The evidence before me included the following:

a. The viva voce evidence of the following security guards at Scarborough Health Network – Centenary Hospital ("Hospital") at the relevant time: Sharon Hearn, George Gill, Ahmed Khan, Daniel Barton, Daniel Farnell, and Carmelo Belmonte. Dennis Jocko, the Hospital's manager for parking and security, also testified.

b. The viva voce evidence of the following officers with the Toronto Police Service ("TPS") at the relevant time: Police Constable ("PC") Mel Rathbone, Detective Constable ("DC") Shawn Carter (the officer in charge), Detective Jason Hillier, PC Kevin Robbins, PC Brenda Fegan, and Detective Jeremy Hayes. DC Jorge Hurtado also testified as an expert witness.

c. The viva voce evidence of Theresa DeBoer, the Hospital's patient flow manager at the relevant time.

d. Numerous exhibits, including medical records that were admitted in evidence as business records, photographs, videos from the Hospital, Certificates of Analyst of Health Canada, various TPS documents, and transcripts of Mr. Thomas' bail proceedings.

[8] All the witnesses were credible and their evidence was consistent on the relevant facts. Any inconsistencies in the evidence were minor and related to points that, ultimately, were not important. In my view, any such inconsistencies can be explained by the fact that the relevant facts occurred more than six years ago. Given this, the ability to recollect the facts varied from witness to witness, especially since some witnesses – in particular Mr. Jocko and Ms. DeBoer – did not have access to notes to help them refresh their memory.

[9] I set out below my findings of fact based on the evidence before me.

1. Mr. Thomas' Admission and Surgery at the Hospital on February 1, 2019

[10] Mr. Thomas arrived at the Hospital by ambulance on February 1, 2019, at approximately 5:55 a.m. The Hospital's Patient Triage Record states that Mr. Thomas complained of vertigo, dizziness, nausea, vomiting and constipation.

[11] At approximately 7:31 a.m., Sharon Hearn and Daniel Barton of the Hospital's security department were dispatched to the observation area in the emergency department because of an agitated patient. The video footage of the area (which does not have sound) shows Mr. Thomas flailing his legs on a hospital stretcher, and then throwing himself on the floor. Mr. Thomas rolled around on the floor and continued flailing his legs and arms.

[12] Ms. Hearn and Mr. Barton arrived in the observation area at 7:35 a.m. According to Ms. Hearn, Mr. Thomas was saying "Help me, help me!"

[13] The nursing staff made the decision to put Mr. Thomas back on a stretcher and to put him in four-point restraints. Ms. Hearn tried to explain to Mr. Thomas what was going to happen, but he did not react to it. By that time, Mr. Thomas had largely calmed down. At 7:37 a.m., George Gill, another security guard, arrived in the area. The three security guards and the emergency staff worked together to put Mr. Thomas back on a stretcher and in restraints. At 7:42 a.m., Mr. Thomas was brought out of the observation area on the stretcher to a room in the acute care department. The security guards escorted him to that room and then left the area.

[14] Security guards were subsequently asked by medical or nursing staff to assist with Mr. Thomas on a number of occasions throughout the day, including to escort him to do various medical tests. On one occasion, before bringing Mr. Thomas to the diagnostic imaging department, Ms. Hearn saw that Mr. Thomas had a couple of bills that had fallen on the floor. She picked them up and, at Mr. Thomas' request, put them in the wallet that Mr. Thomas had in his hands. Ms. Hearn does not remember seeing the wallet again after giving it back to Mr. Thomas.

[15] Mr. Thomas' medical records show, among other things, that:

a. an abdomen X-ray revealed "multiple mildly dense structures" measuring 3.7 x 1.8 cm in Mr. Thomas' abdomen;

b. Mr. Thomas' urine tested positive for cocaine, cocaine metabolite (BEG) and Levamisole, among other things;

c. based on information that they received orally, medical staff believed that the foreign bodies in Mr. Thomas' abdomen were cocaine packages; and

d. before his surgery, Mr. Thomas experienced seizures and respiratory distress. At some point, he had a cardiac arrest.

[16] The medical records also show that medical staff were told by Mr. Thomas' family that Mr. Thomas had returned from the Caribbean the previous day and had swallowed multiple cocaine packets. While the fact that these statements were made to medical staff is admissible, such statements are not admissible for the truth of their contents. This is because recorded hearsay from third parties who are not under a business duty to report the information are not admissible. In this case, Mr. Thomas' family members were not under a business duty to report the information. See Setak Computer Services Corporation Ltd. v. Burroughs Business Machines Ltd., DeGiorgio v. DeGiorgio, 2020 ONSC 1674 at paras. 50-51 and Bruno v. Dacosta, 2020 ONCA 602 at para. 61. However, I accept that Hospital staff's information and belief at the relevant time were that Mr. Thomas had ingested cocaine packets.

[17] Mr. Thomas subsequently underwent surgery. The surgeon's Operative Report dated February 1, 2019 describes what was removed from Mr. Thomas as follows:

Ultimately, I removed 87 foreign bodies, each one measuring about 4 cm in length and approximately 2 cm in diameter. There is all this stringy plastic like material also intertwined with feces and with these pellets.

2. The Hospital's Security Guards Take Possession of the Materials Removed from Mr. Thomas

[18] At 4:45 p.m., security was called to the operating room area ("OR") to retrieve items that were removed from a patient during surgery. Mr. Barton went to the OR and was directed to a specific area. He went into the room that he was directed to and met with one of the doctors. He did not see the patient and he believes that the patient was no longer in the OR when he was there. The items that were removed from the patient were on a silver tray in the corner of the room. Mr. Barton saw packages that appeared to be drugs to him, but no one told him that they were drugs. Mr. Barton did not touch anything. He did not know what to do, so he left the room and contacted Ms. Hearn, the security lead on his shift. Mr. Barton returned to the security desk at 5 p.m. after being relieved by Mr. Gill. Mr. Barton said that there were no patients in the OR at the time.

[19] Ms. Hearn and Mr. Gill both went to the OR. The OR manager advised Ms. Hearn that a large quantity of unknown substances had been removed from a patient. The OR manager wanted security to take the materials that were removed from the patient's body and store them.

[20] Ms. Hearn did not think that security should take possession of an unknown substance and store it. Her view was that the police should be called. Ms. Hearn called her manager, Dennis Jocko, for guidance. She left him a message.

[21] While waiting in the OR, Ms. Hearn spoke on the phone with Pam Marshall, the person responsible for risk management at the Hospital. Ms. Marshall told Ms. Hearn that police could be called, but that no patient information could be disclosed to the police.

[22] Mr. Jocko called Ms. Hearn back at approximately 5:08 p.m. Ms. Hearn explained the situation to him.

[23] Video footage of the OR shows a nurse exiting from a room in the OR at 5:10 p.m., taking a white bucket in the corridor, and then going back into the room. At 5:17 p.m., a nurse exited from the same room, holding a clear plastic bag containing a white bucket. The nurse brought the bag to the OR's front desk area, where Ms. Hearn and Mr. Gill were standing. Eventually, the plastic bag with the bucket in it was put on the front desk. Mr. Gill and Ms. Hearn were present in the OR's front desk area during the entire time that the white bucket was on the front desk, with the white bucket in sight.

[24] Ms. Hearn spoke again to Mr. Jocko on the phone at around 5:52 p.m. Mr. Jocko eventually came to the Hospital and arrived in the OR area at approximately 6:15 p.m. While in the OR, Mr. Jocko spoke to Ms. Marshall on the phone and the decision was made to call the police as security could not be in possession of suspected narcotics. However, Ms. Marshall told Mr. Jocko that he should not provide information to the police as to where the items came from.

[25] By 6:40 p.m., another security guard, Carmelo Belmonte, had joined Ms. Hearn and Mr. Gill in the OR. At 6:48 p.m., Ms. Hearn took the plastic bag with the white bucket in it and, along with Mr. Jocko, Mr. Gill and Mr. Belmonte, she brought the white bucket to the Hospital's cash office in the basement, through the stairwell. The white bucket was put on the desk in the cash office.

[26] Mr. Jocko called the police from the cash office. He told the police that they were in possession of items that he believed to be cocaine. He did not give a lot of detail on the phone and, pursuant to his discussion with Ms. Marshall, he did not divulge how the items were obtained.

[27] While the white bucket was in the cash office, there were security guards present there at all times. At around 7 p.m., Ms. Hearn and Mr. Gill left as their work shift had ended. Mr. Belmonte and Ahmed Khan were working during the night shift and were present in the cash office. Mr. Belmonte and Mr. Khan were told to remain in the cash office with the white bucket until the arrival of the police.

3. The Police Seize and Process the Materials Removed from Mr. Thomas

[28] PC Mel Rathbone was at the Hospital for an unrelated matter when Mr. Jocko called the police. She was asked by the dispatcher to go see security about some found cocaine.

[29] PC Rathbone started making her way to the security desk at 7:10 p.m. and then ran into Ms. Hearn who escorted her to the cash office. PC Rathbone arrived at the cash office at approximately 7:15 p.m. Mr. Belmonte, Mr. Khan and Mr. Jocko were there. PC Rathbone was presented with the white bucket on the desk and was informed that its contents were removed from a male in the Hospital who had come in not feeling well and unable to urinate and expel waste. PC Rathbone was told that the male remained a patient within the Hospital, but Mr. Jocko told her that he could not provide her with patient information, and that a production order would be required. PC Rathbone did not ask for patient information.

[30] PC Rathbone opened the bucket. She saw several small packages within human excrements. She believed that the packages contained cocaine as what she saw was consistent with packaged cocaine. She covered the bucket back up. PC Rathbone was advised by someone in the cash office that the total weight of the bucket was 1,120 grams and that it contained 87 pellets.

[31] PC Rathbone called Detective Jason Hillier at 43 Division's Criminal Investigation Bureau ("CIB") to inform him of the situation as it would be the CIB's responsibility to prepare and obtain a production order to get documentation from the Hospital. PC Rathbone attempted to get a hold of the Drug Squad, but she was advised that they were not available that evening. PC Rathbone was seeking clarification as to how to handle the materials. PC Rathbone also made a request on the air for Sergeant White. Sergeant White subsequently attended at the cash office and he also had telephone conversations with Detective Hillier.

[32] In consultation with Detective Hillier, it was decided that the contents of the bucket had to be decontaminated before they could be brought to the police station into police custody. PC Rathbone then requested a room where she could do this work. It was determined that she could use the morgue or autopsy room, which was a sterilized and private room that the police could use to do their work without interruption.

[33] PC Rathbone made a request for a Scenes of Crime Officer to attend at the Hospital, and PC Ruiz later came. PC Rathbone also consulted with William Lavigne, the Hospital's senior health and safety specialist with respect to human excrements and decontamination. Mr. Lavigne came to the cash office. After PC Ruiz arrived at the cash office, PC Rathbone went to the emergency department to obtain the personal protective equipment that Mr. Lavigne told her she would need.

[34] At 9:32 p.m., Mr. Khan escorted PC Rathbone, PC Ruiz and Mr. Lavigne to the autopsy room. Mr. Belmonte had left the cash office at approximately 8:05 p.m. to assist with other calls in the Hospital. PC Rathbone transported the bucket to the autopsy room. Mr. Khan stayed in the autopsy room with the police officers for the whole time that they were there, i.e., until approximately 1:18 a.m. on February 2, 2019.

[35] Once in the autopsy room, and after putting on the personal protective equipment, PC Rathbone opened the white bucket again. PC Ruiz took a series of photos. PC Rathbone then processed and cleaned the contents of the white bucket in accordance with the instructions that she had received from Mr. Lavigne. PC Rathbone was given a container of bleach germicidal wipes to kill bacteria in human excrements. She picked the pellets in the bucket one by one using forceps. After picking a pellet, she thoroughly cleaned it with a wipe, and removed the excess wrap around the pellet (which was a plastic wrap like Saran wrap). PC Rathbone then wrapped the pellet in a new wipe and let it soak for five to six minutes. After that time, she removed the wipe and put the pellet on a cloth for drying. She followed this process for the 87 pellets in the bucket. Four of the pellets were different as they were in liquid form and not hard substances. The other 83 pellets were hard bundles.

[36] At 10:55 p.m., DC Shawn Carter attended at the autopsy room. He had obtained a laser device from the Drug Squad that scans items to determine what substance they can be. DC Carter used the laser on two different pellets. The result for the first one came back as inconclusive. DC Carter offered a few reasons as to why he thought that that was the case, including that his hand may have been too shaky, he may have been too far away from the pellet, or the pellet may have been too dirty. He also acknowledged that it was possible that the pellet did not contain cocaine. For the second pellet, the device indicated that the substance was cocaine.

[37] After she finished cleaning the pellets, PC Rathbone randomly selected one liquid pellet and four hard pellets to do her submissions to Health Canada. PC Rathbone testified that one of the hard pellets that she selected was a pellet that DC Carter had scanned with the laser device ("exhibit a"). Based on: (1) the diagram drawn by DC Carter in his notebook showing where the two pellets that he selected to scan were located on the autopsy table (labelled # 1 and #2); (2) the pictures taken by PC Ruiz in the autopsy room showing the pellets on the autopsy table and where exhibit a was located on the table; and (3) PC Rathbone's evidence that exhibit a was one of the pellets scanned by DC Carter, I conclude that exhibit a selected by PC Rathbone was the first pellet scanned by DC Carter, which returned the inconclusive result. While it is true that the location of pellet # 1 in DC Carter's diagram does not exactly match the location of exhibit a in the pictures taken by PC Ruiz, this is easily explained by the fact that PC Rathbone was still in the process of cleaning pellets and putting them on the autopsy table at the time that DC Carter came. Exhibit a selected by PC Rathbone and pellet # 1 selected by DC Carter are located in the same area on the pictures and the diagram (i.e., top left of the autopsy table), and I accept PC Rathbone's evidence that exhibit a was one of the pellets that DC Carter had scanned.

[38] The five pellets selected by PC Rathbone were each placed in a clear bag and then in their own Health Canada submission envelope. PC Rathbone placed the remaining hard pellets in a TPS properly bag and sealed it. The remaining three liquid pellets were put in a separate property bag. The property bags with the pellets were to be submitted to the Toronto Police Property Bureau pending investigation. It took PC Rathbone approximately 4.5 hours to complete the processing of the pellets at the Hospital (i.e., from 9:36 p.m. to 1:06 a.m.).

[39] PC Rathbone brought back all the pellets to 43 Division where she weighed everything and finalized the Health Canada submissions. PC Rathbone did not keep the white bucket and did not weigh it. The four hard pellets selected for the Health Canada submissions weighed 8.68 grams, 7.97 grams, 8.07 grams and 8.25 grams, respectively. The liquid pellet selected for the Health Canada submission weighed 8.80 grams.

[40] The three remaining liquid pellets collectively weighed 20 grams. The 79 remaining hard pellets collectively weighed 670 grams.

[41] The weight figures set out above include the weight of the packaging in which the substances were contained. PC Rathbone did not remove the substances from their packaging. The total weight was 731.77 grams.

[42] After completing her work in the early hours of February 2, 2019, PC Rathbone put everything in 43 Division's secure locker system.

[43] Earlier in the evening of February 1, 2019, after receiving information from Sergeant White and speaking with a Detective from the Drug Squad, Detective Hillier prepared a production order to obtain information from the Hospital, including the identity of the patient from whom the substances were removed. At the time, i.e., in February 2019, the telewarrant system was not set up for production orders, which could not be submitted after hours. Despite this, Detective Hillier tried to submit a production order through the telewarrant system at 11:49 p.m. on February 1, 2019, but he was unsuccessful. He then advised Sergeant White that they would have to wait until the following Monday to submit a production order in person.

4. Safety Concerns Raised by Hospital Staff After Mr. Thomas' Surgery

[44] Shortly after Mr. Thomas underwent surgery, nursing staff in the intensive care unit ("ICU") – i.e., where Mr. Thomas was after his surgery – contacted Theresa DeBoer, who was the manager on call during the weekend of February 1-3, 2019. The nurses told Ms. DeBoer that they were fearful that somebody was going to come looking for the patient because of the circumstances that brought him to the Hospital.

[45] At some point, Ms. DeBoer or someone else at the Hospital talked to the security department and requested that security guards come to guard Mr. Thomas' room due to safety concerns for staff and the patient. The safety concerns were compounded by the fact that the ICU door was broken at the time and the door was no longer locked. Mr. Belmonte, Mr. Daniel Farnell, Mr. Khan, Mr. Barton and Ms. Hearn were some of the security guards who were dispatched at different times to be outside of Mr. Thomas' room, starting in the evening of February 1, 2019 and continuing in the morning of February 2, 2019.

[46] Ms. DeBoer was woken up by calls from Hospital staff two or three times during the night of February 1 and early morning of February 2, 2019. She came in to work at the Hospital on February 2, 2019 at approximately 8:30 or 9:00 a.m. She escalated the concerns raised by the nursing staff to the Director or Vice-President on call during that weekend. Ms. DeBoer stated that she may also have involved Ms. Marshall. Ms. DeBoer started looking at Hospital policies to determine what her next steps were going to be. She felt at the time that she was not receiving a lot of directions from the Director or Vice-President on call. In her view, the issue was whether health and safety concerns trumped the patient's privacy.

[47] After doing research and considering the issues, Ms. DeBoer ultimately came to the conclusion that safety trumped privacy in this situation, that she had to take action to ensure everyone's (including Mr. Thomas') safety, and that the police had to be notified. She informed the Director or Vice-President on call about this conclusion, and the Director or Vice-President on call supported her decision. However, Ms. DeBoer is not the one who ultimately called the police.

5. Mr. Jocko's Call to the Police on February 2, 2019

[48] Ms. DeBoer testified that she was working very closely with security on February 2, 2019. At some point, Mr. Jocko became involved. He had another conversation with Ms. Marshall. Mr. Jocko called the police to see whether they would provide a guard. He told the police that staff had safety concerns with respect to a male at the Hospital and he asked the police to come to the Hospital to guard the male. Mr. Jocko's request was communicated to Detective Jeremy Hayes. Detective Hayes then reviewed the information available in the police database as to what had happened the previous day at the Hospital.

[49] At 10:45 a.m., Detective Hayes spoke with Mr. Jocko directly on the phone. At that time, Mr. Jocko was asking the police to come just to guard the person from whom drugs were recovered. Detective Hayes informed Mr. Jocko that if the patient had drugs removed from his body, the police would not just guard him. Rather, they would arrest him and take custody of him. Because the information received from the Hospital was that a quantity of drugs had been removed from the patient's body, Detective Hayes' view was that there were reasonable grounds to believe that an offence had been committed and to arrest the patient. Mr. Jocko told Detective Hayes that the patient would remain at the Hospital for upwards of a week. At this point, Detective Hayes did not know the name of the patient or where he was in the Hospital. Mr. Jocko told Detective Hayes that he had to contact the Hospital's legal team because the Hospital was not providing the police with the identity of the patient.

[50] Less than 30 minutes later, Mr. Jocko called Detective Hayes back. Mr. Jocko said that if police officers came to the Hospital, staff would provide the patient's identity and direct the officers to where he was in the Hospital. Mr. Jocko told Detective Hayes that he had spoken to the Hospital's legal team and that they were now willing to provide information regarding the identity of the patient.

[51] At 11:14 a.m., Detective Hayes created a call for service for two officers to attend at the Hospital to arrest a male who had been recently treated after ingesting a significant quantity of drugs. The information that was provided stated that the male was arrestable for possession of a Schedule 1 substance. The officers were instructed to see the security supervisor at the Hospital, Mr. Jocko, upon arrival. At 11:46 a.m., PC Kevin Robbins and PC Brenda Fegan were dispatched to attend at the Hospital. Detective Hayes still did not know the name of the patient at that time.

[52] At 11:55 a.m., Mr. Jocko called Detective Hayes again. At that time, Mr. Jocko provided Mr. Thomas' name and date of birth to Detective Hayes. No other information was provided to Detective Hayes.

6. Mr. Thomas' Arrest

[53] As directed in the call for service, PC Robbins contacted the CIB for further details. He spoke with Detective Hayes. Detective Hayes provided him with the name and date of birth of the person to arrest, i.e., Mr. Thomas.

[54] PC Robbins arrived at the Hospital at 12:03 p.m. He met PC Fegan there. They attended at the security office to see Mr. Jocko. Mr. Jocko told them that the male that they were looking for was in the ICU. Mr. Jocko escorted them to the ICU.

[55] PC Robbins and PC Fegan arrived in the ICU at approximately 12:10 p.m. Ms. Hearn was there at the time. The officers were directed to room #1. Mr. Thomas was unconscious and intubated. PC Robbins and PC Fegan spoke with Ms. DeBoer. Ms. DeBoer told them that there were family members in the waiting room, and that no one had been in Mr. Thomas' room on that day. PC Robbins told Ms. DeBoer that they were going to arrest Mr. Thomas and that no family would be allowed in the room after that. Ms. DeBoer provided PC Robbins with the list of approved visitors who could see Mr. Thomas. The list included five names, including Mr. Thomas' aunt, common law partner, two cousins, and a friend.

[56] At 12:30 p.m., PC Robbins and PC Fegan entered Mr. Thomas' room, and PC Robbins arrested him by handcuffing his left hand to the bed. PC Robbins confirmed Mr. Thomas' identity by looking at his I.D. band. PC Robbins did turn his mind to his obligation to advise Mr. Thomas of the charge and to give him his rights to counsel and a caution, but he was unable to do so because Mr. Thomas was unconscious and unable to understand.

[57] PC Robbins handcuffed Mr. Thomas because it was his intention to arrest him, and people who are sedated can come to at any moment. The handcuffing was to ensure officer safety and the accused's safety. PC Robbins chose to cuff only one hand to ensure that Mr. Thomas still had movement in the bed if he were to stir or needed medical care. However, Mr. Thomas would not be able to get up and walk around. A nurse advised PC Robbins that the doctor's plan was to ease Mr. Thomas out of sedation the following day, i.e., on Sunday, February 3, 2019.

[58] After making the arrest, PC Robbins and PC Fegan went to talk to the family members who were present. PC Robbins advised them that Mr. Thomas was under arrest and that he would not have any visitors. PC Robbins and PC Fegan spoke primarily with a woman who identified herself as Mr. Thomas' aunt, but two other women were also there. PC Robbins also attempted to contact Cassandra Clark, who had been identified as Mr. Thomas' common law partner, but he was not able to get in touch with her.

[59] At 12:45 p.m., PC Robbins called Detective Hayes to report on the arrest and the information he had obtained. According to PC Robbins, he informed Detective Hayes that he had not been able to give Mr. Thomas his rights since he was unconscious. PC Robbins stated that he also gave this information to the police officers who relieved him.

[60] The Hospital's security guards left the area after the police took over. PC Robbins and PC Fegan stood by Mr. Thomas' room until they were relieved. They were relieved at 5:45 p.m. by PC Kalonka and PC Rathbone. Mr. Thomas was unconscious the whole time.

[61] PC Rathbone learnt about Mr. Thomas' identity when she started her shift on February 2, 2019 and was asked to go relieve the day shift officers who were at the Hospital to guard Mr. Thomas, who had been arrested. PC Rathbone stated that Mr. Thomas was intubated and unconscious the whole time that she was there. PC Rathbone and PC Kalonka were relieved at 4:58 a.m. on February 3, 2019, by two officers.

[62] PC Robbins does not know what happened after his involvement on that day and whether Mr. Thomas was given his rights to counsel when he regained consciousness. PC Robbins did not follow up with anyone on that issue.

7. New Submissions to Health Canada on February 3, 2019 and Certificates of Analyst

[63] On February 3, 2019, PC Rathbone was advised by Detective Hillier that she had to redo her submissions to Health Canada due to their excessive weight. As a result, PC Rathbone retrieved the submissions from the locker system. She did not make any changes with respect to the liquid pellet. For each of the four hard pellets that she had selected to submit to Health Canada, she took them out of the Health Canada submission envelopes, cut into the pellets using a sharp knife, and extracted a very small quantity to be submitted to Health Canada.

[64] The new quantities submitted to Health Canada from the four hard pellets were 0.25 gram, 0.17 gram, 0.25 gram and 0.20 gram, respectively. PC Rathbone put what remained from the four pellets – which weighed 32.25 grams – in a property bag to be submitted to the Toronto Police Property Bureau pending investigation.

[65] The Certificates of Analyst from Health Canada in relation to the five submissions sent by PC Rathbone (dated February 15 and 18, 2019) state that the five samples contain cocaine. They also state that the substance Levamisole from the Prescription Drug List of the Food and Drug Regulations was "detected but not certified".

8. Bail Proceedings

[66] On Sunday, February 3, 2019, Mr. Thomas' case came before a Justice of the Peace by telephone. Duty counsel participated in the hearing. A police officer told the Justice of the Peace that Mr. Thomas was still under sedation at that time, and that medical staff had advised that Mr. Thomas would not likely be woken up on that day. The matter was put over to the following day.

[67] There is a note in Mr. Thomas' integrated patient record for February 3, 2019 stating that the woman who had identified herself as Mr. Thomas' common law partner, i.e., Cassandra Clark, had called and asked whether Mr. Thomas was allowed to receive a visit of legal counsel.

[68] On February 4, 2019, Mr. Thomas' case returned before a Justice of the Peace by telephone. Duty counsel participated in the hearing. A police officer informed the Justice of the Peace that Mr. Thomas was awake, but that he had a tube removed from his throat only 45 minutes prior to the hearing and had a hard time talking. A nurse provided the following information to the Justice of the Peace:

NURSE DOROTHY: Hi, my name is Dorothy, I am the patient's nurse.

THE COURT: Yes?

NURSE DOROTHY: The patient was heavily intubated, and the tube – for right we don't know. The doctor wants him to be more capable of talking to you, so he said to wait until tomorrow.

A. FRASER: Yes.

NURSE DOROTHY: Because he was heavily sedated, and the tube – he cannot speak when the tube's – when we get the tube out, he cannot speak for a while. So, we don't know what he's able to comprehend, so, I want to give him some time for the sedation to wear off a bit before we can know where he is at mentally.

THE COURT: Let's try again tomorrow.

NURSE DOROTHY: So right now, it's not an appropriate time to speak to him.

THE COURT: Thank you, ma'am. We're gonna (ph), we're gonna remand him until tomorrow ...

NURSE DOROTHY: Yeah.

[69] On February 5, 2019, Mr. Thomas' matter returned before a Justice of the Peace by telephone. This time, Mr. Thomas was able to talk and address the Court. Duty counsel participated in the hearing and asked Mr. Thomas numerous questions in an attempt to assist him with a bail plan. However, Mr. Thomas was not very coherent in his answers and at some point said: "sorry, I can't think." Mr. Thomas also stated that he did not have a lawyer. The matter was remanded to the following day.

[70] On February 6, 2019, Mr. Thomas' matter returned before a Justice of the Peace. Mr. Thomas was represented by counsel. Crown counsel advised the Justice of the Peace that there was going to be a release on consent to a surety, who was present. Mr. Thomas, who was still at the Hospital, was given the opportunity to speak to his counsel on the phone in the absence of everybody else. After confirming that he understood and agreed to the terms of the release, Mr. Thomas was released on bail to his surety. He had to comply with a number of conditions, including residing with his surety while not at the Hospital, and remaining in his residence between 12 a.m. and 6 a.m.

9. Production Order

[71] On February 6, 2019, after the identity of the patient had been provided by the Hospital and Mr. Thomas had been arrested, a production order was submitted and granted by a Justice of the Peace on the same day. However, the Justice of the Peace limited the time period in relation to which records, documents, videos and information had to be provided to February 1, 2019.

[72] On February 28, 2019, Detective Hillier attended at the Hospital to execute the production order. He was provided with medical records at the medical records office after providing the manager with a copy of the production order and waiting for approximately 15 minutes. DC Hillier also provided a copy of the production order to a security supervisor and asked for the surveillance videos referred to in the order, but he could not obtain the videos on that day as they had to be prepared. DC Hillier also attended the human resources office, but it was closed.

[73] The documents that DC Hillier received from the Hospital on February 28, 2019 were not documents pertaining to the medical treatment that Mr. Thomas received on February 1, 2019. Rather, they related to a subsequent visit of Mr. Thomas at the Hospital on February 22, 2019. However, DC Hillier does not remember reviewing the documents that he received on February 28, 2019. He simply put them into the case.

[74] DC Hillier returned to the Hospital on March 13, 2019. He provided a copy of the production order to the human resources office and followed up with the security office regarding the videos. The police eventually obtained all the records and videos set out in the production order.

10. Report to a Justice

[75] On February 17, 2019, PC Rathbone prepared a Report to a justice regarding the cocaine that was seized. The Report to a justice was filed in court by a police office in the warrants office on February 25, 2019.

11. Expert Evidence

[76] At trial, DC Jorge Hurtado was qualified as an expert in the distribution of cocaine, including hierarchy, pricing, packaging, concealment, and quantities consistent with personal and commercial use. DC Hurtado was involved in various roles in more than 650 drug investigations over 13 years, including as an undercover officer.

[77] DC Hurtado's evidence was that, based on his experience, quantities of cocaine in excess of seven grams are not for personal use, but, rather, are for trafficking. He stated that the price of cocaine in 2019 was as follows:

For 0.5 ounce: $750 - $900

For one ounce: $1,400 - $1,700

[78] Based on his understanding that a total of 764.79 grams of cocaine were seized in this case, DC Hurtado calculated that if sold by the ounce, this quantity would be worth approximately $38,234 - $46,427. If sold by the half ounce, it would be worth approximately $40,972 - $49,167.

[79] DC Hurtado opined that the amount of cocaine in issue was not consistent with personal use. Based on the quantity of drugs seized, there was a strong inference that the drugs were possessed for the purpose of trafficking. DC Hurtado testified that his opinion would remain the same if the quantity seized was 700 grams instead of 764.79 grams. He also said that his opinion would remain the same as long as the quantity was not down to a quantity that a user would use, i.e., around seven grams.

[80] In his report, DC Hurtado noted that there was no information in this case regarding digital scales, cellphones, proceeds of crime, or means of consumption. He wrote the following with respect to packaging and concealment:

Packaging

The cocaine was packaged in pellets or more commonly referred to as balloons. Each balloon was packaged tightly, knotted and filled with a pre-determine [sic] quantity of cocaine. This type of packaging is uncommon for a user.

Concealment

Mr. THOMAS attended the hospital and through medical intervention, 87 balloons filled with cocaine were removed from within his body during surgery. This type of concealment method is uncommon from a user.

[81] For DC Hurtado, the quantity of drugs seized was the overriding factor in this case. In his opinion, it was not possible that the quantity in issue in this case was for personal use. DC Hurtado testified that even if the packaging represented half the weight in issue, his opinion would still be that this was a case of possession for the purpose of trafficking. He said that this was not a close call.

[82] DC Hurtado stated that Levamisole is a cutting agent that adds bulk to the cocaine. His opinion was that the drugs would be presented and sold as cocaine despite the presence of a cutting agent. He testified that the level of purity of the cocaine did not factor into his opinion.

B. Discussion – Charter Application

[83] As stated above, Mr. Thomas alleges breaches of sections 8, 9 and 10(b) of the Charter. I will discuss the alleged breaches in turn, and then consider the issue of whether evidence should be excluded under section 24(2) of the Charter.

1. Section 8 of the Charter

a. Applicable Legal Principles – Section 8

[84] Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure. A search or seizure is reasonable within the meaning of section 8 if it is authorized by a reasonable law and is conducted reasonably. See R. v. Fearon, 2014 SCC 77 at para. 12.

[85] A search or seizure can only come under section 8 scrutiny if it was performed by a person who was part of government or performing a specific government function, or if the person can be considered a state agent: see R. v. Buhay, 2003 SCC 30 at para. 25 ("Buhay"). Generally speaking, individuals with relevant information about criminal conduct are free to communicate this information to the police without section 8 being engaged. See R. v. Lambert, 2023 ONCA 689 at para. 58 and Buhay at para. 30.

[86] To assert a section 8 claim, an accused must first establish that they have a reasonable expectation of privacy over the subject matter of the search. Once the subject matter of the search is properly identified, the court looks to: (i) whether the accused has a direct interest in that subject matter; (ii) whether the accused has a subjective expectation of privacy in that subject matter; and, if so, (iii) whether the accused's subjective expectation of privacy is objectively reasonable in the totality of the circumstances. If the accused cannot demonstrate a reasonable expectation of privacy, then there is no search and seizure within the meaning of section 8. See R. v. Dosanjh, 2022 ONCA 689 at paras. 113-114 ("Dosanjh").

[87] A court identifying the subject matter of a search must not do so narrowly. Defining the subject matter of the search necessitates a functional approach, one that requires an inquiry into not only the information sought, but also the nature of the information that it reveals. The real question for determination is "what the police were really after". See Dosanjh at para. 115.

[88] In the absence of the claimant's testimony or admission at the voir dire, a subjective expectation of privacy can be presumed or inferred in the circumstances: see R. v. Jones, 2017 SCC 60 at para. 21.

[89] A number of factors may assist in determining whether it was reasonable to expect privacy in different circumstances, including the following factors: (a) the place where the search occurred; (b) control over the subject matter; (c) whether the subject matter was in public view; (d) whether the subject matter had been abandoned; (e) whether the information was already in the hands of third parties and, if so, whether it was subject to an obligation of confidentiality; (f) whether the police technique was intrusive in relation to the privacy interest; (g) whether the use of the evidence-gathering technique was itself objectively unreasonable; and (h) the private nature of the subject matter, i.e., whether the information exposed any intimate details of the applicant's lifestyle, or information of a biographic nature. See R. v. Patrick, 2009 SCC 17 at para. 27, R. v. Tessling, 2004 SCC 67 at para. 32 and R. v. Marakah, 2017 SCC 59 at para. 24.

b. Applicable Legal Principles – Disclosure of Personal Health Information

[90] At the relevant time, the Hospital was a health information custodian under the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A ("PHIPA"). A health information custodian is a person or organization described in PHIPA who has custody or control of personal health information as a result of or in connection with performing the person's or organization's powers or duties. See subsection 3(1) of PHIPA.

[91] Pursuant to section 4 of PHIPA, personal health information means identifying information about an individual in oral or recorded form, if the information, among other things:

a. relates to the physical or mental health of the individual, including information that consists of the health history of the individual's family;

b. relates to the providing of health care to the individual, including the identification of a person as a provider of health care to the individual; and

c. relates to the donation by the individual of any body part or bodily substance of the individual or is derived from the testing or examination of any such body part or bodily substance.

[92] "Identifying information" means information that identifies an individual or for which it is reasonably foreseeable in the circumstances that it could be utilized, either alone or with other information, to identify an individual: see subsection 4(2) of PHIPA.

[93] Subsection 43(1)(f) of PHIPA provides as follows:

Disclosures related to this or other Acts

43 (1) A health information custodian may disclose personal health information about an individual,

(f) in the circumstances described in clause 42 (1) (c), (g) or (n) of the Freedom of Information and Protection of Privacy Act or clause 32 (c), (g) or (l) of the Municipal Freedom of Information and Protection of Privacy Act, if the custodian is an institution within the meaning of whichever of those Acts applies, or is acting as part of such an institution;

[94] The statute that is relevant for the purposes of this case is the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 ("FIPPA"). The Hospital is an institution within the meaning of FIPPA: see subsection 2(1) of FIPPA.

[95] Clause 42(1)(g) of FIPPA allows an institution to disclose personal information in its custody or under its control where disclosure is to an institution or a law enforcement agency in Canada if:

a. the disclosure is to aid in an investigation undertaken by the institution or the agency with a view to a law enforcement proceeding, or

b. there is a reasonable basis to believe that an offence may have been committed and the disclosure is to enable the institution or the agency to determine whether to conduct such an investigation.

[96] "Law enforcement" is defined as follows in subsection 2(1) of FIPPA:

"law enforcement" means,

(a) policing,

(b) investigations or inspections that lead or could lead to proceedings in a court or tribunal if a penalty or sanction could be imposed in those proceedings, or

(c) the conduct of proceedings referred to in clause (b).

c. Applicable Legal Principles – Report to a Justice

[97] The protection of section 8 of the Charter remains in place for the entire time that a seized item is in police custody. See R. v. Fareed, 2023 ONSC 1581 at para. 48. The failure to fill out a report to a justice after a seizure can give rise to a breach of section 8 of the Charter. See R. v. Russell, 2024 ONSC 529 at para. 71.

[98] After seizing property, whether with or without a warrant, the police have an obligation under section 489.1 of the Criminal Code to make a report to a justice as soon as is practicable. Section 489.1 provides as follows:

Restitution of thing or report

489.1(1) Subject to this or any other Act of Parliament, if a peace officer has seized anything under a warrant issued under this Act, under section 487.11 or 489, or otherwise in the execution of duties under this or any other Act of Parliament, the peace officer shall, as soon as is practicable,

(a) return the thing seized, on being issued a receipt for it, to the person lawfully entitled to its possession and report to a justice having jurisdiction in respect of the matter and, in the case of a warrant, jurisdiction in the province in which the warrant was issued, if the peace officer is satisfied that

(i) there is no dispute as to who is lawfully entitled to possession of the thing seized, and

(ii) the continued detention of the thing seized is not required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding; or

(b) bring the thing seized before a justice referred to in paragraph (a), or report to the justice that the thing has been seized and is being detained, to be dealt with in accordance with subsection 490(1), if the peace officer is not satisfied as described in subparagraphs (a)(i) and (ii).

[99] Section 489.1 of the Criminal Code expressly states that it is subject to another Act of Parliament. Another Act of Parliament, the CDSA, contains relevant provisions. Sections 12.1 and 13 of the CDSA provide as follows:

Report of seizure, finding, etc.

12.1 Subject to the regulations, every peace officer, inspector or prescribed person who seizes, finds or otherwise acquires a controlled substance, precursor or chemical offence-related property shall, within 30 days,

(a) prepare a report setting out

(i) the substance, precursor or property,

(ii) the amount of it that was seized, found or acquired,

(iii) the place where it was seized, found or acquired,

(iv) the date on which it was seized, found or acquired,

(v) the name of the police force, agency or entity to which the peace officer, inspector or prescribed person belongs,

(vi) the number of the file or police report related to the seizure, finding or acquisition, and

(vii) any other prescribed information;

(b) cause the report to be sent to the Minister; and

(c) in the case of a seizure made under section 11 of this Act, the Criminal Code or a power of seizure at common law, cause a copy of the report to be filed with the justice who issued the warrant or another justice for the same territorial division or, if a warrant was not issued, a justice who would have had jurisdiction to issue a warrant.

Sections 489.1 and 490 of the Criminal Code applicable

13(1) Subject to subsections (2) and (3), sections 489.1 and 490 of the Criminal Code apply to any thing seized under this Act.

Sections 489.1 and 490 of Criminal Code applicable

(2) If a thing seized under this Act is non-chemical offence-related property, sections 489.1 and 490 of the Criminal Code apply subject to sections 16 to 22 and subsections 31(6) to (9) of this Act.

Provisions of this Act applicable

(3) If a controlled substance, precursor or chemical offence-related property is seized under this Act, any other Act of Parliament or a power of seizure at common law, the provisions of this Act and the regulations apply in respect of that substance, precursor or property.

d. Positions of the Parties

[100] Mr. Thomas concedes that the search and seizure of the bucket was not an unreasonable search and seizure. However, his position is that a breach of section 8 occurred when the Hospital shared his patient information, including his identity, with the police. He argues that the Hospital should have waited until the police obtained a production order before disclosing any patient information. He submits that the Hospital became a state agent in this case and took actions to serve and further law enforcement interests and objectives. Mr. Thomas points out, among other things, that the Hospital provided space, materials and expert advice to the police to process the contraband. According to Mr. Thomas, the safety concerns allegedly raised by Hospital staff were unfounded and unsubstantiated and did not constitute a lawful basis to breach his privacy and disclose his patient information. Mr. Thomas states that the purpose for which the Hospital disclosed his information was to deal with safety concerns, not to aid in an investigation undertaken by the police. Mr. Thomas notes that there were no exigent circumstances and no concerns about the destruction of evidence, and that the police could have arrested him without knowing his identity. He asserts that legislative permission to disclose patient information does not automatically equate with compliance with the Charter.

[101] Mr. Thomas argues that DC Hillier obtained information that was outside the scope of the production order, i.e., medical records with respect to the events that occurred on February 22, 2019 instead of February 1, 2019.

[102] Mr. Thomas also argues that the Report to a justice was filed late in this case. He relies on section 489.1 of the Criminal Code and submits that there was a 22-day delay.

[103] The Crown's position is that there was no search in this case with respect to Mr. Thomas' personal information. The Crown points out that the Hospital provided the information regarding Mr. Thomas' identity to the police voluntarily. The Crown submits that the Hospital is not a state actor, is not part of government for the purposes of the Charter and was not acting as an agent of government in this case. The Crown states that Mr. Thomas attended the Hospital for treatment of severe abdominal pain and his treatment at the Hospital was not done at the instigation or request of the police or any other state actor. The Crown notes that at no time did the police request that the Hospital or its personnel investigate Mr. Thomas.

[104] The Crown submits that the Hospital was legally able to provide information to the police if it chose to do so pursuant to subsection 43(1)(f) of PHIPA and subsection 42(1)(g) of FIPPA. Pursuant to these provisions, the Hospital could disclose personal information to a law enforcement agency because the disclosure was to aid in an investigation undertaken by the law enforcement agency with a view to a law enforcement proceeding. The Crown points out that the police was provided with very limited information, and the police prepared a production order to obtain additional information and records not disclosed by the Hospital. The Crown argues that there could not have been an objectively reasonable expectation of privacy in this case given that the disclosure of the information was permitted by statute.

[105] With respect to the medical records relating to events that occurred on February 22, 2019 that were disclosed to the police by the Hospital, the Crown submits that the disclosure was as a result of an error made by the Hospital and that since the police had received the records, the police had to disclose them. The Crown also states that the Hospital could have disclosed these records if it so chose.

[106] The Crown argues that the Report to a justice was filed within the prescribed time because by virtue of subsection 13(3) of the CDSA, the CDSA applies in respect of what was seized. The Crown relies on section 12.1 of the CDSA which requires that a report be filed within 30 days of the seizure of the controlled substance. In the alternative, the Crown submits that the Report to a justice was filed within a practicable period.

e. Analysis

[107] I find that the Hospital's disclosure of Mr. Thomas' information to the police on February 1 and 2, 2019 did not constitute a search or seizure under section 8 of the Charter.

[108] The Hospital cannot be assimilated to the government itself, and its activities cannot be ascribed to those of the government or the police. The fact that the Hospital performs a public function is insufficient to bring it within the purview of "government" for the purpose of section 32 of the Charter. Further, the Hospital is not a state agent, and is not acting as an agent of government in providing emergency health services. See R. v. Dersch, [1993] 3 S.C.R. 768 at 776-777, and Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483 at 516.

[109] In the present case, as in Buhay, the relationship between the Hospital and the police developed after the Hospital had already obtained Mr. Thomas' personal health information. The Hospital independently decided to provide information regarding Mr. Thomas to the police, and this occurred voluntarily on the part of the Hospital, without any instructions or directions from the police. See Buhay at paras. 28-30.

[110] The fact that the Hospital provided some assistance to the police with respect to the processing of the pellets is insufficient to make the Hospital a state agent. As noted by the Supreme Court of Canada in Buhay, volunteer participation in the detection of crime by a private actor is insufficient to trigger the application of the Charter. See Buhay at para. 30. Further, at the time that the Hospital provided this assistance to the police, the Hospital was still refusing to disclose Mr. Thomas' patient information to the police, i.e., the information that is the subject matter of Mr. Thomas' application. The Hospital would not have refused to disclose such information to the police at the time if it were a state agent.

[111] As a non-state actor, the Hospital was entitled to make information available to the police with respect to an offence that it believed had been committed and for the purpose of aiding in an investigation undertaken by the police: see section 42(1)(g) of FIPPA. Based on what was removed from Mr. Thomas' body and the information that it had received from Mr. Thomas' family, the Hospital had a reasonable basis to believe that an offence may have been committed.

[112] I do not agree with Mr. Thomas' submission that the purpose for which the Hospital disclosed his patient information was to deal with safety concerns and not to aid in an investigation undertaken by the police. First, the staff's safety concerns arose from, and were directly linked to, the reasonable belief that an offence was committed. Second, when Mr. Jocko provided identifying information (within the meaning of subsection 4(2) of PHIPA) for the first time to the police on February 2, 2019, he knew that the police would use the information to come and arrest Mr. Thomas. Thus, Mr. Jocko knew that the disclosure would aid in an investigation undertaken by the police.

[113] Accordingly, I conclude that the Hospital's receipt of Mr. Thomas' personal health information does not constitute state action for the purpose of section 8 of the Charter, and that the police's receipt of the information provided by the Hospital voluntarily and lawfully does not engage section 8 of the Charter.

[114] Even if the provision of patient information to the police by the Hospital on February 1 and 2, 2019 constituted state action, I would find that the provision of this information did not engage section 8 of the Charter for another reason, i.e., because Mr. Thomas did not have a reasonable expectation of privacy in the information that was provided on February 1 and 2, 2019.

[115] Before the Hospital provided Mr. Thomas' name and date of birth to the police on February 2, 2019, the information that the Hospital gave to the police was very limited and was to the effect that: (a) a male had come to the Hospital, not feeling well and unable to urinate and expel waste; (b) materials were removed from the male's body, which were believed to be illicit drugs; and (c) the male remained a patient within the Hospital. This information, which was not identifying information, provided very basic context to the police to explain how the Hospital had come into possession of drugs which the Hospital wanted the police to take because the Hospital was not legally entitled to possess them.

[116] In my view, in the circumstances of this case, there could be no reasonable expectation of privacy with respect to this general information and the identity of the male in question.

[117] I accept that Mr. Thomas had a direct interest in the subject matter of the search, which is the patient information provided to the police by the Hospital on February 1 and 2, 2019. While Mr. Thomas did not give evidence, I am prepared to presume and to infer from the circumstances that Mr. Thomas had a subjective expectation of privacy in the subject matter of the search.

[118] However, I conclude that such a subjective expectation of privacy was not objectively reasonable in the totality of the circumstances. I so conclude after considering the factors set out in paragraph 89 above in the specific context of this case. Among other things:

a. Mr. Thomas voluntarily came to the Hospital to seek treatment and medical care, and he provided information to the Hospital in order to obtain treatment and medical care.

b. The Hospital could not legally possess controlled substances. The only reasonable expectation in circumstances where the Hospital would come into possession of controlled substances is that the Hospital would contact the police.

c. Mr. Thomas could not reasonably expect that, after removing what appeared to be illicit drugs from his body, the Hospital would protect him and not disclose his identity because the disclosure of personal health information in such circumstances is expressly authorized by law: see subsection 43(1)(f) of PHIPA and subsection 42(1)(g) of FIPPA.

d. The information provided by the Hospital on February 1 and 2, 2019 (i.e., before a production order was obtained) was very limited.

e. The police did not use any intrusive or unreasonable technique in relation to Mr. Thomas' privacy interest.

[119] In light of the foregoing, especially the fact that the Hospital was statutorily authorized to disclose the information in issue, it was not reasonable for Mr. Thomas to expect privacy with respect to the information disclosed to the police on February 1 and 2, 2019.

[120] Given that no reasonable expectation of privacy has been demonstrated, the provision of information by the Hospital to the police on February 1 and 2, 2019 did not constitute a search within the meaning of section 8 of the Charter. See Dosanjh at para. 114.

[121] With respect to the documents that were outside the scope of the production order that the Hospital erroneously provided to the police, it is my view that this disclosure also did not engage section 8 of the Charter. Again, the Hospital is neither a state actor nor an agent of the state. The police did not request these documents and cannot be held responsible for a mistake made by the Hospital, a non-state actor. I agree with the Crown that once the police had received the records, they had to disclose them to Mr. Thomas. The police did not use or rely upon these documents in Mr. Thomas' prosecution – they were adduced in evidence at trial by Mr. Thomas.

[122] With respect to the filing of the Report to a justice, I agree with the Crown's position that by virtue of subsection 13(3) of the CDSA, the provisions of the CDSA apply in respect of the seizure of the pellets of cocaine – a controlled substance – instead of section 489.1 of the Criminal Code. Consequently, section 12.1(c) of the CDSA applies with respect to the filing of a report to a justice. Pursuant to section 12.1 of the CDSA, the report must be filed within 30 days of the seizure. This time limit was complied with in this case. Therefore, the seizure of the cocaine was and remained reasonable.

[123] Accordingly, I find that Mr. Thomas' right under section 8 of the Charter was not infringed.

2. Section 9 of the Charter

a. Applicable Legal Principles

[124] Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained or imprisoned. The arbitrariness of a detention or arrest turns on its legality.

[125] Where a detention or an arrest is established, a court must consider whether the detention or arrest is arbitrary. The detention or arrest must be authorized by law, the authorizing law itself must not be arbitrary, and the manner in which the detention or arrest is carried out must be reasonable. See R. v. Le, 2019 SCC 34 at para. 124 ("Le").

[126] The police have statutory authority to arrest a person without a warrant under section 495 of the Criminal Code. Subsection 495(a) states that a peace officer may arrest without a warrant a person who, on reasonable grounds, the officer believes has committed or is about to commit an indictable offence.

[127] A warrantless arrest requires subjective and objective grounds to arrest. The arresting officer must subjectively have reasonable and probable grounds for the arrest, and those grounds must be justifiable from an objective viewpoint. In assessing the subjective grounds for arrest, the question is whether the arresting officer honestly believed that the suspect committed the offence. The objective assessment of the arresting officer's subjective grounds for arrest must be based on the totality of circumstances known to the officer at the time of the arrest, including the dynamics of the situation, as seen from the perspective of a reasonable person with comparable knowledge, training, and experience as the arresting officer. When a police officer orders another officer to make an arrest, the police officer who directed the arrest must have had reasonable and probable grounds. It is immaterial whether the officer who makes the arrest personally had reasonable and probable grounds. See R. v. Beaver, 2022 SCC 54 at para. 72 ("Beaver").

b. Positions of the Parties

[128] Mr. Thomas states that he was detained and arrested without a warrant. He argues that the decision to arrest him was made prior to obtaining his identity, which shows a predetermined outcome rather than an assessment based on reasonable grounds. Mr. Thomas also submits that the use of handcuffs was unnecessary in this case and does not meet the proportionality test as he was posing no risk at the time. Mr. Thomas notes that PC Robbins had been advised of the Hospital's plan to ease him out of sedation and that the concern that he may regain consciousness before was unfounded. According to Mr. Thomas, less intrusive means of supervision were available at the time of his arrest.

[129] The Crown concedes that Mr. Thomas was detained after the TPS arrested him on February 2, 2019 and until he was released on bail on February 6, 2019. The Crown states that the police had reasonable and probable grounds to arrest Mr. Thomas for possession of cocaine for the purpose of trafficking based on the information provided by the Hospital and the investigation conducted by the police on February 1 and 2, 2019. The Crown's position is that following his lawful arrest, Mr. Thomas was lawfully detained and necessarily remained in custody until bail was granted on consent on February 6, 2019 and Mr. Thomas was released from custody. Therefore, the Crown submits, Mr. Thomas' detention was not arbitrary.

[130] The Crown argues that in the circumstances of this case, it was reasonable that Mr. Thomas be handcuffed to his hospital bed pending his release on bail. The Crown states that the police needed to limit Mr. Thomas' movements and ensure the safety of police officers and Hospital staff and patients. The Crown notes that only Mr. Thomas' left wrist was handcuffed, and that he was still able to move and receive medical treatment, if necessary.

c. Analysis

[131] In my view, Mr. Thomas' arrest was not arbitrary.

[132] Mr. Thomas' arrest did not require a warrant and was authorized by subsection 495(a) of the Criminal Code. When Detective Hayes created a call for service directing two officers to attend at the Hospital to arrest a male who had been recently treated after ingesting a significant quantity of drugs, he had reasonable and probable grounds for the arrest. I accept Detective Hayes' evidence that he subjectively had reasonable and probable grounds for the arrest. Based on the totality of circumstances known to Detective Hayes at the time of the arrest – including the information provided by the Hospital and the information he reviewed in the police database regarding the events of the previous day – those grounds were justifiable from an objective viewpoint.

[133] Detective Hayes did not need to know Mr. Thomas' identity to direct his arrest as he had reasonable and probable grounds that the male who would be identified by Hospital staff upon the arrival of police officers had had a significant quantity of drugs removed from his body. Ultimately, the police were informed of Mr. Thomas' identity before his arrest.

[134] Following his arrest, Mr. Thomas was lawfully detained until bail was granted on February 6, 2019.

[135] I find that the manner in which the arrest was carried out was reasonable. When he decided to handcuff only Mr. Thomas' left hand to the bed, PC Robbins considered Mr. Thomas' need for medical care and his ability to move in the bed. There is no evidence before me that the fact that Mr. Thomas had his left hand handcuffed to the Hospital bed prevented him from receiving any medical care or caused any injuries or issues. Further, the police did not know with any certainty when Mr. Thomas would wake up, and they had no control on the placing or removal of restraints by medical staff. In addition, they did not know Mr. Thomas. In particular, they did not know how he would react and behave after waking up, especially if he was in a state of confusion and disorientation just after waking up. I accept PC Robbins' evidence that the handcuffing of one hand was a reasonable measure to take in order to ensure everyone's safety.

[136] Thus, I conclude that Mr. Thomas' right under section 9 of the Charter was not infringed.

3. Section 10(b) of the Charter

a. Applicable Legal Principles

[137] 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.

[138] The right to counsel is meant to assist detainees regain their liberty and guard against the risk of involuntary self-incrimination. There is also a recognized psychological value to providing access to counsel. See R. v. Rover, 2018 ONCA 745 at para. 45, R. v. Suberu, 2009 SCC 33 at para. 40 ("Suberu") and R. v. Keshavarz, 2022 ONCA 312 at para. 72 ("Keshavarz").

[139] Once an individual is detained or arrested, section 10(b) is engaged and imposes both informational and implementational duties on the police. The informational duty requires that the detainee be informed of the right to retain and instruct counsel without delay and of the existence and availability of legal aid duty counsel. The implementational obligation requires the police to provide the detainee with a reasonable opportunity to retain and instruct counsel. The duty to facilitate access to a lawyer arises immediately upon the detainee's request to speak to counsel. The implementation obligation also requires the police to refrain from eliciting incriminatory evidence from the detainee until they have had a reasonable opportunity to reach a lawyer, or the detainee has unequivocally waived the right to do so. See Suberu at para. 38 and R. v. Taylor, 2014 SCC 50 at paras. 23-24 ("Taylor").

[140] The police's duties (a) to inform a detainee of their right to retain and instruct counsel immediately upon detention or arrest, and (b) to facilitate that right, are subject to officer and public safety, as well as reasonable limitations that are prescribed by law and justified under section 1 of the Charter. See Suberu at paras. 2, 42. The burden to show that a given delay in facilitating access to counsel was reasonable in the circumstances is on the Crown. See Taylor at para. 24.

b. Positions of the Parties

[141] Mr. Thomas submits that he was never informed of his rights to counsel after his arrest. He points out that DC Carter, PC Robbins and PC Fegan did not make any efforts to confirm that he had received his rights to counsel after regaining consciousness. He argues that the fact that he was brought before the Court did not remedy the breach of his rights.

[142] The Crown points out that there is an evidentiary gap as to whether Mr. Thomas was provided with his section 10(b) rights or not. The Crown argues that Mr. Thomas has the burden to prove the breach. The Crown states that Mr. Thomas had the assistance of his own lawyer by February 6, 2019, and that it is reasonable to conclude that Mr. Thomas was advised of his rights to counsel at some point before then.

[143] The Crown submits that Mr. Thomas' medical situation prevented the police from meaningfully advise Mr. Thomas of his section 10(b) rights during the period of time during which he was detained. The Crown argues that in the unique circumstances of this case, it was not practicable for the police to inform Mr. Thomas of his right to counsel while detained. The Crown notes that while Mr. Thomas was unable to attend court due to his medical condition, he nevertheless had the assistance of duty counsel in remanding his court appearances and no effort was made by police to elicit incriminating evidence from Mr. Thomas during that time.

c. Analysis

[144] At the time of his lawful arrest, Mr. Thomas was unconscious. As a result, it was not possible for the police to inform him of his right to retain and instruct counsel immediately upon his arrest.

[145] In my view, when there is a delay in informing an arrested person of their right to retain and instruct counsel due to the physical state or incapacity of the person at the time of the arrest, the Crown has the burden to show that the delay in informing the arrested person of their right to counsel was reasonable in the circumstances, i.e., that the person was informed without delay after the person regained the capacity to understand. This conclusion is supported by the following:

a. As stated above, the Crown has the burden to show that a given delay in facilitating access to counsel is reasonable in the circumstances. See Taylor at para. 24. There is no reason why the Crown should not have the same burden with respect to a delay in informing the arrested person of their right to counsel.

b. Given that the delay in informing the arrested person of their right to counsel is caused by the physical state and incapacity of the arrested person, the police is in a better position to monitor the state of the arrested person and determine when it is possible to inform the person of their right to counsel. This is especially the case since: (a) the arrested person may not realize that they have been arrested until they are informed of the situation by the police; and (b) the arrested person is in the control of the police and cannot exercise their right to counsel without the timely assistance of the police. See Taylor at para. 25.

[146] There is no evidence before me that the police ever informed Mr. Thomas of his right to retain and instruct counsel after his arrest. As a result, the Crown has not discharged its burden of proof. Accordingly, I find that Mr. Thomas' right to be informed of his right to retain and instruct counsel without delay under section 10(b) of the Charter was infringed.

[147] Given that I have found one Charter breach in this case – i.e., a breach of section 10(b) – I now turn to the application of section 24(2) of the Charter.

4. Section 24(2) of the Charter

a. Applicable Legal Principles

[148] There are two components to determining whether evidence must be excluded under section 24(2) of the Charter: the threshold component and the evaluative component. The threshold component asks whether the evidence was "obtained in a manner" that infringed or denied a Charter right or freedom. If the threshold requirement is met, the evaluative component asks whether, having regard to all the circumstances, admitting the evidence would bring the administration of justice into disrepute. See Beaver at para. 94.

[149] Threshold component. Section 24(2) is engaged only when the accused first establishes that evidence was "obtained in a manner" that breached the Charter. The threshold requirement insists that there be a nexus between the Charter breach and the evidence, absent which section 24(2) has no application. Determining whether evidence was "obtained in a manner" that infringed the Charter involves a case-specific factual inquiry into the existence and sufficiency of the connection between the Charter breach and the evidence obtained. See Beaver at para. 95.

[150] Whether evidence was "obtained in a manner" that infringed an accused's rights under the Charter depends on the nature of the connection between the Charter violation and the evidence that was ultimately obtained. The courts have adopted a purposive approach to this inquiry. Establishing a strict causal relationship between the breach and the subsequent discovery of the evidence is unnecessary. Evidence will be tainted if the breach and the discovery of the impugned evidence are part of the same transaction or course of conduct. The required connection between the breach and the subsequent discovery of the evidence may be temporal, contextual, causal, or a combination of the three. A remote or tenuous connection between the breach and the impugned evidence will not suffice. See Beaver at para. 96 and R. v. Mack, 2014 SCC 58 at para. 38.

[151] Evaluative component. Under the second component, a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (a) the seriousness of the Charter-infringing state conduct, (b) the impact of the breach on the Charter-protected interests of the accused, and (c) society's interest in the adjudication of the case on its merits. The court's role on a section 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. The balancing mandated by section 24(2) is qualitative in nature and no overarching rule governs how the balance is to be struck. See R. v. Grant, 2009 SCC 32 at paras. 71, 86, 140 ("Grant"). In all cases, the court must assess the long-term repute of the administration of justice: see R. v. Côté, 2011 SCC 46 at para. 48.

[152] Under the first factor – the seriousness of the Charter-infringing state conduct, the court must assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct by excluding evidence linked to that conduct in order to preserve public confidence in and ensure state adherence to the rule of law. See Grant at para. 72.

[153] The court's task in considering the seriousness of Charter-infringing state conduct is to situate that conduct on a scale of culpability. At one end of the scale is conduct that constitutes a wilful or reckless disregard of Charter rights, a systemic pattern of Charter-infringing conduct, or a major departure from Charter standards. At the other end of the scale are less serious Charter breaches, including breaches that are inadvertent, technical, or minor or those that reflect an understandable mistake. Admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law, but admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute. Good faith on the part of the police will also reduce the need for the court to disassociate itself from the police conduct, but ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith. For state misconduct to be excused as a good faith infringement of Charter rights, the state must show that the police conducted themselves in a manner consistent with what they subjectively, reasonably and non-negligently believed to be the law. See Grant at paras. 74-75, R. v. Paterson, 2017 SCC 15 at para. 43, Beaver at para. 120, and Le at para. 147.

[154] The second factor – the impact of the breach on the Charter-protected interests of the accused – calls for the identification of the interests protected by the relevant Charter right and an evaluation of the extent to which the breach actually undermined the interests protected by the right. The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute. See Grant at para. 76 and Beaver at para. 123.

[155] An assessment of the impact of a Charter breach should consider whether the impugned evidence could have been obtained through other Charter-compliant means. That analysis cannot be speculative. There must be compelling grounds to believe the evidence would otherwise have been obtained. In those circumstances, discoverability is a factor that should be considered in determining the impact of the violation of the rights of the accused. See R. v. Sureskumar, 2023 ONCA 705 at para. 28. Similarly, the lack of a causal connection between the Charter breach and the obtaining of the impugned evidence may mitigate the impact of the breach on the accused's Charter-protected interests: see Beaver at para. 125.

[156] The third factor – society's interest in the adjudication of the case on its merits – asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion. This inquiry reflects society's collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law. The reliability of the evidence and the importance of the evidence to the prosecution's case are factors to be considered in this line of inquiry. While the seriousness of the alleged offence may also be a valid consideration, it has the potential to cut both ways. See Grant at paras. 79, 81, 83, 84.

[157] The third line of inquiry becomes particularly important where one, but not both, of the first two inquiries pulls towards the exclusion of the evidence. Where the first and second inquiries, taken together, make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Conversely, if the first two inquiries together reveal weaker support for exclusion of the evidence, the third inquiry will most often confirm that the administration of justice would not be brought into disrepute by admitting the evidence. See R. v. McGuffie, 2016 ONCA 365 at para. 63 and Le at paras. 141-142.

[158] As stated above, the final step involves balancing the factors under the three lines of inquiry to assess the impact of admission or exclusion of the evidence on the long-term repute of the administration of justice. Such balancing is a qualitative, not mathematical, exercise. See R. v. Tim, 2022 SCC 12 at para. 98.

b. Positions of the Parties

[159] Mr. Thomas submits that the evidence should be excluded. He argues that the police conduct was serious and deliberate, that the impact on his rights was significant, and that admitting the evidence would damage the reputation of the justice system.

[160] The Crown submits that the evidence that Mr. Thomas seeks to have excluded was not obtained in a manner causally or temporally related to any section 10(b) breach, and that the connection between the breach and the evidence is too remote.

[161] The Crown argues that if there was a breach of section 10(b), it was an unavoidable technical breach, not stemming from any misconduct of the police to intentionally delay or deny Mr. Thomas' rights, but rather resulting from Mr. Thomas' medical condition and necessary treatment. The Crown states that many parties were trying to ensure that Mr. Thomas' rights were implemented, and that there is no evidence that Mr. Thomas was questioned by the police. The Crown notes that PC Robbins was mindful of Mr. Thomas' rights to counsel. According to the Crown, the seriousness of the state misconduct in this case is at the lowest end of the scale. The Crown points out that there is an evidentiary gap as to when Mr. Thomas' rights to counsel could and should have been provided, and as to any impact of any breach. The Crown submits that the impact of the breach on Mr. Thomas is minimal, if not negligible. The Crown states that the charge that Mr. Thomas faces is extremely serious, and the evidence seized in this case is reliable evidence that is essential to the Crown's case. According to the Crown, the admission of this evidence would better serve the truth-seeking function of the criminal process than would its exclusion. The Crown's position is that a proper balancing of the relevant factors favours admission of the evidence.

c. Analysis

[162] Mr. Thomas seeks an order excluding the evidence of the materials removed from his body during medical treatment on February 1, 2019. In my view, this evidence was not "obtained in a manner" that infringed Mr. Thomas' right under section 10(b) of the Charter. In other words, it is my view that the threshold requirement under section 24(2) of the Charter is not met in this case.

[163] The earliest date on which the police may have been able to inform Mr. Thomas of his right to counsel was February 5, 2019. Before that date, Mr. Thomas was either unconscious or not in a state in which he could understand a statement about his rights. Thus, there was no breach of section 10(b) before February 5, 2019, at the earliest. The evidence that Mr. Thomas seeks to exclude was obtained by the police in the evening of February 1, 2019, i.e., more than three days earlier. There is no causal relationship between the section 10(b) breach and the discovery of the evidence. Further, any temporal or contextual connection between the breach and the evidence is, at best, tenuous. The time span between the discovery of the evidence and the Charter breach cannot in any way be attributed to anything that the police did.

[164] Therefore, I conclude that section 24(2) of the Charter is not engaged in this case.

[165] In the alternative, were section 24(2) engaged in this case, I would find that the admission of the evidence would not bring the administration of justice into disrepute.

[166] In my view, the seriousness of the Charter-infringing conduct is at the low end of the scale of culpability. PC Robbins did turn his mind to his obligation to advise Mr. Thomas of his right to counsel, but he could not fulfil that obligation given Mr. Thomas' physical state. That said, the police should have had a system in place under which someone was responsible to ensure that Mr. Thomas would be given his right to counsel as soon as practicable. However, the fact that this was overlooked or "fell between the cracks" is attenuated by the circumstances of this case. Among other things, Mr. Thomas was unconscious and/or incapable for an extended period of time after his arrest, and his bail proceedings started while he was still unconscious. Police officers assisted with Mr. Thomas' bail proceedings while he was at the Hospital, and it would have been obvious to the officers and everyone involved that Mr. Thomas' interests were being represented by duty counsel during the bail proceedings, and by his own counsel on February 6. Given the unique circumstances of this case and the fact that the police did not do anything to try to take advantage of the situation, I consider the section 10(b) breach in this case to be minor. This factor favours admission of the evidence.

[167] As for the impact of the breach on Mr. Thomas' Charter-protected interests, I find that it was minimal. The police did not question Mr. Thomas and there is no evidence before me that would suggest that Mr. Thomas would have been able to be released earlier than he was had his section 10(b) right not been breached. His bail proceedings started the day after his arrest, while he was still unconscious, and duty counsel represented his interests during the proceedings, until Mr. Thomas' own counsel appeared on February 6, 2019. I also note that the medical records suggest that Mr. Thomas' family was seeking to retain (or had retained) a lawyer on his behalf as early as February 3, 2019, while Mr. Thomas was still unconscious. Further, as stated above, the breach of Mr. Thomas' section 10(b) right has no causal connection with the discovery of the evidence, which lessens the impact of the breach on Mr. Thomas' Charter-protected interests: see Beaver at para. 125 and Keshavarz at para. 115. The evidence that Mr. Thomas seeks to exclude had already been obtained before the breach and would have been obtained even if there had been no breach. Thus, this factor favours admission of the evidence.

[168] Finally, the factor of society's interest in the adjudication of the case on its merits also favours admission of the evidence. Society has a strong interest in the prosecution of offences related to the trafficking of controlled substances. Possession of illicit substances for the purpose of trafficking is a serious crime. Further, the evidence sought to be excluded is real and reliable, and is essential to the Crown's case. See R. v. Desilva, 2022 ONCA 879 at para. 105. This factor favours admission of the evidence.

[169] Balancing all the factors, I conclude that the admission of the evidence would not bring the administration of justice into disrepute. As set out above, all three factors favour admission of the evidence.

5. Stay of Proceedings

a. Applicable Legal Principles

[170] A stay of proceedings is a drastic remedy to be employed as a last resort, and only after canvassing other available remedies. There are two categories of cases that may attract a stay of proceedings: (1) the first category implicates the fairness of an individual's trial resulting from state misconduct; and (2) the second category is a residual category unrelated to the fairness of the trial that involves state conduct that contravenes fundamental notions of justice, which undermines the integrity of the judicial process. See R. v. Zarinchang, 2010 ONCA 286 at para. 57 ("Zarinchang").

[171] In considering whether to grant a stay of proceedings under either of the two categories, the following two criteria must be satisfied:

a. the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; it must be directed at prospective prejudice, not to redress past prejudice; and

b. no other remedy is reasonably capable of removing that prejudice.

See Zarinchang at para. 57.

[172] In cases in either of the two categories where there remains some uncertainty as to whether the abuse is sufficiently serious to create the prejudice to warrant a stay, there is a third criterion that the court may consider, i.e., the balancing of the interests in granting a stay against society's interest in having a trial on the merits. Courts should engage in the balancing exercise in most cases coming within the residual category. See Zarinchang at paras. 57, 61.

b. Positions of the Parties

[173] Mr. Thomas requests a stay of proceedings in the alternative. He relies on the same arguments as the ones he raises in relation to section 24(2) of the Charter.

[174] The Crown submits that given the circumstances of the case, the charge before the Court, the fact that the state misconduct is minor, and the broader interest of the community in having the case dealt with on its merits, a stay of proceedings is not warranted. The Crown states that this case does not fall in the category of the clearest of cases where a stay of proceedings is appropriate. According to the Crown, Mr. Thomas can still have a fair trial and make full answer and defence.

c. Analysis

[175] This case does not fall in either of the categories of cases that may attract a stay of proceedings. As set out above in the context of the section 24(2) analysis, the state misconduct in this case in relation to the breach of Mr. Thomas' section 10(b) right was not serious. Further, there is no connection between the evidence that was obtained by the police and any breach of Mr. Thomas' rights. Thus, the state misconduct does not have any impact on the fairness of the trial or the integrity of the judicial process. Moreover, there is no evidence before me that Mr. Thomas suffered any prejudice as a result of state misconduct, and that such prejudice will be manifested, perpetuated or aggravated through the conduct of the trial or its outcome.

[176] Consequently, this is not an appropriate case for a stay.

[177] Accordingly, Mr. Thomas' application is dismissed.

C. Discussion – Possession of Cocaine for the Purpose of Trafficking

1. Applicable Legal Principles

[178] As stated above, Mr. Thomas is charged that he, on or about February 1, 2019, at the City of Toronto, possessed cocaine for the purpose of trafficking, contrary to subsection 5(2) of the CDSA.

[179] Subsection 5(2) of the CDSA reads as follows:

Possession for purpose of trafficking

(2) No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III, IV or V.

[180] Cocaine is a substance included in Schedule I to the CDSA.

[181] Mr. Thomas is presumed to be innocent, unless and until Crown counsel has proven his guilt beyond a reasonable doubt. For this Court to find Mr. Thomas guilty of possession of cocaine for the purpose of trafficking, Crown counsel must prove each of the following essential elements beyond a reasonable doubt:

a. Mr. Thomas was in possession of cocaine.

b. Mr. Thomas knew that the substance was cocaine.

c. Mr. Thomas had possession of cocaine for the purpose of trafficking in it.

See R. v. Patrick, 2015 ONSC 1498 at para. 6, R. v. Muthuthevar, 2012 ONSC 4008 at para. 18, and R. v. Callejas, [2010] O.J. No. 6046 at para. 58 (S.C.J.); aff'd by 2011 ONCA 393.

[182] A reasonable doubt is a doubt based on reason and common sense, a doubt that logically arises from the evidence or the absence of evidence. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. It would not be safe to convict a person of a criminal offence with only that degree of confidence. In order to find Mr. Thomas guilty of the offence with which he is charged, this Court has to be sure, based on all the evidence before the Court, that he committed the offence. See R. v. Nyznik, 2017 ONSC 4392 at paras. 6-7.

[183] The meaning of "possession" under the CDSA is the same as under subsection 4(3) of the Criminal Code: see subsection 2(1) of the CDSA. Under subsection 4(3) of the Criminal Code, a person has anything in possession when, among other things, they have it in their personal possession.

[184] The definition of "traffic" in the CDSA (subsection 2(1)) reads as follows:

traffic means, in respect of a substance included in any of Schedules I to V,

(a) to sell, administer, give, transfer, transport, send or deliver the substance,

(b) to sell an authorization to obtain the substance, or

(c) to offer to do anything mentioned in paragraph (a) or (b),

otherwise than under the authority of the regulations.

[185] The Crown relies on circumstantial evidence in this case to prove certain elements of the offence beyond a reasonable doubt, including knowledge of the substance and whether the possession was for the purpose of trafficking. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond reasonable doubt. Thus, when assessing circumstantial evidence, the trier of fact should consider other plausible theories and other reasonable possibilities which are inconsistent with guilt. While the Crown may need to negative these reasonable possibilities, it does not need to negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused. Other plausible theories or other reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. See R. v. Villaroman, 2016 SCC 33 at paras. 35-37.

2. Positions of the Parties

a. Position of the Crown

[186] The Crown's position is that Mr. Thomas' guilt has been proven beyond a reasonable doubt.

[187] The Crown submits that Mr. Thomas had personal possession of the 87 pellets as they were in his colon before being surgically removed. The Crown states that it is entirely improbable that the pellets were ingested by Mr. Thomas without his knowledge.

[188] The Crown also submits that Mr. Thomas was in possession of cocaine. The Crown relies on the Health Canada Certificates of Analyst. The Crown further notes that Mr. Thomas' urine tested positive for cocaine, cocaine metabolite (BEG) and Levamisole.

[189] The Crown argues that the only logical conclusion to be drawn from the evidence is that Mr. Thomas knew what the pellets contained. The Crown points to the quantity and value of the seized drugs and submits that a valuable quantity of drugs would not be entrusted to anyone who did not know their nature. The Crown also notes the fact that Mr. Thomas inserted the pellets in his body to avoid detection, showing that he knew that the pellets contained an illegal substance.

[190] The Crown states that the continuity of the evidence of the 87 pellets of cocaine has been established. The Crown points to: the surgery notes referring to the removal of 87 cylindrical packets and the size of the packets; the white bucket brought by a nurse in the OR to the front desk of the OR; the fact that the white bucket was subsequently in the sight of the Hospital's security guards without interruption until PC Rathbone took custody of the white bucket; and PC Rathbone's observations and evidence regarding the contents of the white bucket. According to the Crown, it has been established that the materials in the white bucket were the materials removed from Mr. Thomas' body. The Crown submits that it would be impossible for someone to substitute similar 87 pellets with similar packages and "looks".

[191] With respect to the issue of whether Mr. Thomas had possession of cocaine for the purpose of trafficking in it, the Crown relies on the expert evidence of DC Hurtado. The Crown refers to the weight, packaging and concealment of the cocaine. The Crown argues that the quantity involved is not consistent with personal use.

[192] The Crown submits that even though samples from only five pellets were tested by Health Canada, there is no reasonable doubt that all 87 pellets contained cocaine. The Crown states that the 83 hard pellets looked strikingly similar, and so did the four liquid pellets. The Crown notes that the pellets were similar in size, color and packaging, and they were all removed from Mr. Thomas after being concealed in his body. The Crown argues that there would not have been any need to conceal the pellets if they did not contain something illegal. The Crown points out that the five samples sent to Health Canada tested positive for cocaine, and so did a sixth pellet that was tested by DC Carter in the autopsy room.

[193] According to the Crown, the precise weight and purity of the drugs are considerations for sentencing and are not factors to be considered when determining Mr. Thomas' culpability. The Crown submits that, applying common sense with respect to the issue of the weight of the packaging, it is clear that the weight of the cocaine is an amount in excess of an amount for personal use. The Crown also submits that, regardless of their purity, the substances would be sold as cocaine.

b. Position of Mr. Thomas

[194] Mr. Thomas' position is that the Crown has not met its burden of proof and that there is a significant reasonable doubt in this case. Mr. Thomas focused most of his submissions on the fourth essential element of the offence, i.e., whether he had possession of cocaine for the purpose of trafficking in it.

[195] Mr. Thomas states that the Crown's case with respect to this element of the offence rests exclusively on the quantity of drugs. He submits that the weight of the drugs has not been established. He points out that the documents refer to three different weights, and that the net weight of the substances has not been calculated or established. He also argues that the Health Canada Certificates of Analyst, as well as the test performed by DC Carter, only establish that the samples in issue contained cocaine and do not establish that the entirety of the sample was cocaine. Mr. Thomas notes that no purity test was done in this case. He asserts that purity is an essential factor when establishing the weight of drugs and determining whether the substance could no longer be used for its purpose. He states that the respective percentages of cocaine and Levamisole have not been established.

[196] Mr. Thomas argues that DC Hurtado's evidence should not be relied upon. Mr. Thomas points out that DC Hurtado has no experience with "body packers", he worked with limited and incorrect data (including with respect to the weight of the drugs), and he went ahead with his opinion despite noting discrepancies in the documents that were provided to him. Mr. Thomas also notes that the police did not investigate any other indicators of an intent to traffic; for example, the police did not obtain any search warrant for his home or bank accounts.

[197] Mr. Thomas submits that there is no evidence that he knew what the pellets contained and there is no evidence of any intent to sell the cocaine. Mr. Thomas further submits that the police made no effort to investigate alternative explanations, including whether he was a victim. He refers to the Ambulance Call Report prepared by the Toronto Paramedic Services which reports a statement that Mr. Thomas is said to have made to the effect that he may have been drugged.

3. Analysis

[198] I will discuss each of the essential elements of the offence in turn.

a. Mr. Thomas Was in Possession of Cocaine

[199] I am satisfied beyond a reasonable doubt that Mr. Thomas was in possession of cocaine on February 1, 2019.

[200] Mr. Thomas had 87 pellets in his colon. These pellets were in his physical control and possession.

[201] There cannot be any reasonable doubt that the contents of the white bucket that were processed by PC Rathbone and from which samples were sent to Health Canada for analysis are the materials that were removed from Mr. Thomas' body. The materials removed from Mr. Thomas' body were described by the surgeon in his Operative Report as "87 foreign bodies, each one measuring about 4 cm in length and approximately 2 cm in diameter", with "stringy plastic like material also intertwined with feces and with these pellets". This description matches what was in the white bucket, based on PC Rathbone's observations and the pictures that were taken at the relevant time. The white bucket was guarded by Hospital security guards without any interruption from the time that it was brought to the OR's front desk until PC Rathbone took custody of it and started processing its contents. The suggestion that, between Mr. Thomas' surgery and the time that the white bucket was brought to the OR's front desk, someone would have been able to replace the 87 foreign bodies intertwined with stringy plastic and feces by 87 different pellets of the same size intertwined with stringy plastic and feces is completely fanciful. I conclude that the continuity of the evidence has been established beyond a reasonable doubt.

[202] I am also satisfied beyond a reasonable doubt that at least some of the pellets contained cocaine. This is demonstrated by the five Certificates of Analyst, and supported by the fact that Mr. Thomas' urine tested positive for cocaine and cocaine metabolite (BEG).

[203] For the purpose of this first element, nothing more is required. Mr. Thomas was in possession of cocaine on February 1, 2019.

[204] While the first element of the offence has been established, I will discuss here the issues of the weight and purity of the cocaine as they have been raised by Mr. Thomas and they are relevant to the discussion of the other elements.

[205] It is true that the exact net weight of the cocaine is not known in this case because the cocaine was contained in some packaging and the weight of the packaging is unknown. However, it is not necessary to know the exact weight of the cocaine to decide this case. Based on the pictures of the pellets that were adduced in evidence and the description of the packaging by PC Rathbone, and applying common sense, I am satisfied beyond a reasonable doubt that, at the very least, 75% of the weight of the pellets was cocaine, i.e., more than 548 grams (using PC Rathbone's weight figures). See R. v. Marshall, 2024 ONSC 4367 at paras. 26-27 ("Marshall").

[206] In addition to the issue of packaging, Mr. Thomas raises the issue of the small samples that were analyzed in support of his argument that the weight of the cocaine cannot be determined in this case. He points out that the contents of only five pellets were sent to Health Canada and, with respect to the four hard pellets, only a small amount from each of them was analyzed.

[207] This argument was made and rejected in a number of cases. In Callejas, Del Frate J. stated the following at paragraph 72:

It was also argued that since only a sample the [sic] evidence was sent for analysis, the accused cannot be convicted of possession of the purposes of trafficking because the nature of the contents of all the folds is not known. Leaving aside the problem of what evidence there would be left for the trial, if all the evidence were to have been sent for analysis, the accused's argument is best answered by the Court of Appeal of Ontario in R. v. Herman, [1966] O.J. No. 188 (decision, March 22nd, 1966, but considered in R. v. Brown, [1969] 4 C.C.C. 229 (B.C.C.A.)), which, when confronted with a similar argument, said that "the possibility that this one capsule may not have contained the forbidden drug is so remote that it cannot be regarded as a rational conclusion."

[208] In Marshall, twelve cans containing a white substance were recovered in the accused's luggage, but samples from only two cans were sent to Health Canada. Counsel argued that the court should have a reasonable doubt concerning whether the contents of the ten other cans contained any cocaine. Stribopoulos J. concluded that he had no reasonable doubt that all twelve cans located in the accused's luggage contained cocaine. He noted that all twelve cans had similar labelling; the contents of each of the cans were entirely consistent; the cans were sealed and labelled in a sophisticated manner and it was impossible to imagine anyone would undertake such considerable efforts to conceal the actual contents of the cans if what they contained was not illegal and valuable; and the samples all tested positive for cocaine. See Marshall at paras. 6-7, 10, 16-22. See also R. v. Caissie, 2022 ABCA 316 at para. 7.

[209] Similarly, in the present case:

a. The 83 hard pellets all looked very similar (size, packaging, etc.), and they all contained the same white substance.

b. The four liquid pellets looked similar.

c. The manner of concealment of all 87 pellets was the same, i.e., they were swallowed by Mr. Thomas.

d. It is inconceivable that anyone would take such serious health risks to conceal the pellets if what they contained was not illegal and valuable.

e. Every random sample sent to Health Canada tested positive for cocaine, and so did a sixth sample tested by DC Carter in the autopsy room (selected pellet # 2). A sample from the pellet that returned an inconclusive result when tested by DC Carter (selected pellet # 1) was sent to Health Canada by PC Rathbone and was confirmed to contain cocaine.

[210] In my view, the only rational inference to be drawn from this constellation of facts is that the substance found in the pellets swallowed by Mr. Thomas was cocaine. It is inconceivable that the rest of the pellets found in Mr. Thomas' body could have contained anything but cocaine and that Mr. Thomas would, for no apparent reason and despite the serious health risks, have swallowed 83 pellets that looked the same as the others but that contained a legal substance and not cocaine. See R. v. Scott, 2018 ONSC 5836 at paras. 10-17.

[211] Thus, I am satisfied beyond a reasonable doubt that all 87 pellets contained cocaine.

[212] With respect to the issue of purity, the case law states that weight is not to be adjusted based on the purity level. This is because, as noted by DC Hurtado, the substances would be sold as cocaine despite the purity level. The case law also recognizes that the purity level of the drug is generally not known to a courier. However, the purity of the drug may be relevant at the sentencing stage. See R. v. Nawabi, 2018 ONSC 6300 at paras. 18-20 and R. v. Hamilton at paras. 151-153 (Ont. C.A.).

[213] I now turn to the second element of the offence.

b. Mr. Thomas Knew That the Substance Was Cocaine

[214] I am satisfied beyond a reasonable doubt that Mr. Thomas knew that the substance in the pellets was cocaine.

[215] Where the subject matter of which an accused is alleged to be in possession is a controlled substance of significant value, it is open to a trier of fact to infer not only knowledge of the nature of the subject, but also knowledge of the substance itself. This is because it is a reasonable inference that a valuable quantity of drugs would not be entrusted to anyone who did not know the nature of the contents of the bag or other container. See R. v. Bains, 2015 ONCA 677 at para. 157, R. v. N'Kansah, 2019 ONCA 290 at para. 14 and R. v. Bryan, 2013 ONCA 97 at para. 11 ("Bryan").

[216] In this case, using the pricing figures provided by DC Hurtado, but adjusting them to the total weight figure calculated by PC Rathbone (731.77 grams) and applying a 25% reduction in light of my conclusion about the weight of the drugs set out above, the value of the cocaine was at least between $27,436.72 and $35,282.24. This is a significant value. The quantity and value of the seized cocaine make it inconceivable that the drugs would be casually entrusted to someone who did not know what was in the pellets. See Bryan at para. 11.

[217] The conclusion that Mr. Thomas knew that the pellets contained cocaine becomes even more irresistible when considering the method of concealment chosen in this case. Mr. Thomas ingested 87 pellets that contained a white powder (or 83 pellets that contained a white powder and four pellets that contained a liquid). In doing so, he put his health at serious risk. The only logical reason for swallowing these pellets would be to conceal them and avoid detection because they contained an illegal substance. It would not make any sense for someone to ingest 87 pellets and take a very serious health risk without knowing what the pellets contained.

[218] I find that there are no reasonable inferences other than that Mr. Thomas knew that the pellets he ingested contained cocaine.

[219] Had I not been satisfied beyond a reasonable doubt that Mr. Thomas actually knew that the pellets contained cocaine, I would still have been satisfied beyond a reasonable doubt that the knowledge element of the offence had been established by the Crown because I would have found that Mr. Thomas was willfully blind about the contents of the pellets. If Mr. Thomas did not actually know that the pellets contained cocaine, he would have been aware of the need to make an inquiry about the nature of the substance that he was ingesting in order to conceal it, but he deliberately failed to do so because he did not want to know the truth about the nature of the substance that he was ingesting. See R. v. Callejas, 2011 ONCA 393 at paras. 6-8.

[220] I now turn to the third and last element of the offence.

c. Mr. Thomas Had Possession of Cocaine for the Purpose of Trafficking in It

[221] I am satisfied beyond a reasonable doubt that Mr. Thomas had possession of cocaine for the purpose of trafficking in it.

[222] I accept DC Hurtado's evidence on the issue of quantity. It is clear that the quantity in issue in this case, even when taking into account the weight of the packaging, is well in excess of the quantity of cocaine that a person would have in their possession for their personal use. As set out above, the definition of traffic is very broad. At a minimum, Mr. Thomas was transporting cocaine to make most of it available – be it to sell it or to give it – to another person or to others. I find that there are no reasonable inferences other than that Mr. Thomas had possession of the cocaine for the purpose of trafficking in it, within the broad meaning of "traffic" in subsection 2(1) of the CDSA.

[223] In my view, none of the points raised by Mr. Thomas to undermine DC Hurtado's opinion have any merit. The question of the quantity of the drugs in this case is straightforward. While there may have been slight differences between the weight figures contained in the documents, and while the net weight of the drugs is unknown because the drugs were not weighed without the packaging, it is abundantly clear that the quantity of cocaine of which Mr. Thomas had possession was not consistent with personal use. A precise weight figure is not necessary to reach this conclusion beyond a reasonable doubt. I also note that the manner of concealment of the drugs was not consistent with personal use.

d. Mr. Thomas' Other Arguments or Implied Arguments

[224] While I am satisfied that the Crown has proved beyond a reasonable doubt each of the essential elements of the offence in this case, I discuss below some additional issues raised by Mr. Thomas that are not discussed above.

[225] In his submissions, Mr. Thomas appeared to suggest at times that he may have been a victim and/or that what he did was somehow not voluntary. These submissions implicitly raise the defence of duress. The defence of duress is available when a person commits an offence while under compulsion of a threat made for the purpose of compelling them to commit it. See R. v. Ryan, 2013 SCC 3 at para. 2 ("Ryan").

[226] The elements of both the statutory and the common law defences of duress are as follows:

a. There must be an explicit or implicit threat of present or future death or bodily harm. The threat can be directed at the accused or a third party.

b. The accused must reasonably believe that the threat will be carried out.

c. There is no safe avenue of escape. This element is evaluated on a modified objective standard.

d. There must be a close temporal connection between the threat and the harm threatened.

e. There must be proportionality between the harm threatened and the harm inflicted by the accused. The harm caused by the accused must be equal to or no greater than the harm threatened. This is also evaluated on a modified objective standard.

f. The accused is not a party to a conspiracy or association whereby the accused is subject to compulsion and actually knew that threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy or association.

See Ryan at para. 81 and R. v. Aravena, 2015 ONCA 250 at para. 26 ("Aravena").

[227] If the defence of duress is available in law, and the evidence gives an air of reality to the defence, an accused is entitled to an acquittal unless the Crown disproves one or more of the essential elements of the defence on a reasonable doubt standard. See Aravena at para. 27.

[228] In this case, the alleged duress is not supported by any evidence beyond mere assertions or suggestions by Mr. Thomas (who did not give evidence). Among other things, there is no evidence supporting the making of any threat to or against Mr. Thomas, let alone evidence of a threat proximate in time to February 1, 2019 for the purpose of compelling Mr. Thomas to engage in the conduct that forms the basis of the offence. The suggestion of duress is pure speculation and has no evidentiary basis whatsoever. See R. v. Whyte, 2015 ONSC 7396 at paras. 24-28.

[229] I also note that there is no evidence that Mr. Thomas ever complained to the police with respect to an offence having been committed against him.

[230] As stated above, Mr. Thomas referred in his submissions to the Ambulance Call Report prepared by the Toronto Paramedic Services which records a statement that Mr. Thomas is said to have made to the effect that he may have been drugged. However, this statement cannot be read in isolation. The Ambulance Call Report also states the following:

Pt [patient] is extremely poor historian, appears evasive with EMS [Emergency Medical Services], and will not answer simple questions. Pt states "I may have been drugged" when asked about substance use.

Pt can not answer why he thinks he has been drugged. Pt pupils are large and reactive to light at 4. Pt appears agitated and is noted to be trembling with EMS.

PT is found with another man in the room who pt notes is his "friend". Pt will not answer any other questions.

No motor deficits are noted, no slurred speech. Pt denies head, neck or back pain.

[231] The statement about being drugged is unsupported by any evidence and, as noted by the report itself, is completely unreliable. Further, and in any event, the defence of duress is not available in this case for the reasons set out above. Finally, even if Mr. Thomas had consumed drugs, he had to be conscious when he swallowed the 87 pellets – this is not something that could be done by an unconscious person. Thus, Mr. Thomas would have known what he was doing when that happened. I note again that Mr. Thomas did not seek help from the police, the paramedics or other authorities at the relevant time.

[232] Thus, in the absence of relevant evidence, Mr. Thomas' suggestions are mere conjectures and speculation and they do not give rise to a reasonable doubt.

D. Conclusion

[233] I conclude that all the essential elements of the offence of possession of cocaine for the purpose of trafficking have been established beyond a reasonable doubt. Therefore, I find Mr. Thomas guilty of that offence.

Vermette J.

Released: July 30, 2025