Court File and Parties

Court File No.: CRIMJ(F) 118/22 Date: October 14, 2025 Ontario Superior Court of Justice

Between:

His Majesty the King

Mr. M. Bedini, for the Crown

- and -

Shivam Virk

Mr. M. Bastawrous, for Mr. Virk

Heard: November 12, 13, 2024, January 28, and May 12, 2025

Reasons for Decision

Charter and Voluntariness Applications

STRIBOPOULOS J.:

Introduction

[1] Shortly after 11:00 p.m. on January 27, 2020, behind a public school in Brampton, Mr. Virk, then 18 years old, was sitting in his car with a 17-year-old friend. He had parked his vehicle within a partially fenced-in but paved play area on the school grounds. His car was running, and its exterior lights were on.

[2] Two police officers, Detective Constable Briggs and Constable Coulombe, arrived at the school in separate cruisers, intending to park there to complete their notes from an earlier call. They immediately noticed Mr. Virk's vehicle and drove their respective police vehicles to the paved playground where he was parked.

[3] After exiting their cruisers, the two officers approached Mr. Virk's vehicle. Detective Constable Briggs went to the driver's side while Constable Coulombe went to the passenger's side. Each testified that they did so to conduct a sobriety check and enforce the Trespass to Property Act, R.S.O. 1990, c. T.21. During her testimony, Constable Coulombe also mentioned wanting to check on the well-being of the vehicle's occupants.

[4] Upon speaking with Mr. Virk and his passenger, the officers immediately detected the odour of cannabis, and the young men readily admitted that they were there to smoke a joint. Additionally, in plain sight, on the floor by the passenger's feet, the police officers observed an open Ziploc bag containing what appeared to be cannabis and a large amount of cash scattered about. Detective Constable Briggs asked Mr. Virk for his license, which he provided. At least one of the police officers questioned the young men about the money in the car, and they explained that it belonged to Mr. Virk, who gave it to the passenger to invest on his behalf.

[5] The officers, ostensibly relying on s. 12(3) of the Cannabis Control Act, 2017, S.O. 2017, c. 26, Sched. 1 ("CCA"), directed Mr. Virk and the passenger to exit the vehicle so that they could search the car. During the search, they found a burnt cannabis "blunt" in the ashtray. Additionally, in the centre console, they found two bags: one containing a white powdery substance, suspected to be cocaine, and the other containing pills believed to be oxycodone.

[6] As a result, the police then arrested Mr. Virk and the passenger for two charges of possessing a controlled substance for the purpose of trafficking (the suspected cocaine and the suspected oxycodone) and possession of the proceeds of crime (the cash on the floor). Only six minutes elapsed between the police attending the vehicle and the arrest of the young men. The police seized the Ziploc bag containing the cannabis, the blunt in the ashtray, the suspected cocaine, the suspected oxycodone, and the cash.

[7] Later, at the police division, after Mr. Virk had spoken to duty counsel, Detective Constable Briggs questioned him on video. During his statement, Mr. Virk acknowledged that one of the reasons he and his friend were at the school was "to smoke." Further, he admitted that the powdery substance and pills in the centre console belonged to him. Additionally, Mr. Virk reiterated the explanation he had initially provided, while still in his car at the school, concerning the cash the police found in his vehicle.

[8] Subsequent testing revealed that the white powder was not a controlled substance. However, the pills turned out to be fentanyl, not oxycodone. As a result, Mr. Virk now faces a charge of possessing fentanyl for the purpose of trafficking. Although the police initially arrested Mr. Virk for possessing the proceeds of a crime based on the cash found in his car, that charge was never formally pursued.

[9] As a designated case management judge, I heard the Crown's application for a ruling on whether Mr. Virk's videotaped statement was voluntary. At the same time, I also heard Mr. Virk's application, claiming breaches of his ss. 8, 9, 10(a), and 10(b) Charter rights, and for an order under s. 24(2) to exclude the fentanyl and his videotaped statement from evidence.

[10] These reasons address the issues raised by the applications in chronological order, following the sequence of events as the investigation unfolded, starting with the Charter claims and then addressing the Crown's voluntariness application.

I. Did the Police Violate Mr. Virk's Section 9 Charter Right?

[11] The parties agree that when the police approached Mr. Virk's vehicle, with one police officer positioned at the driver's door and the other at the passenger's door, and the officers began questioning him and the passenger, Mr. Virk was "detained" for purposes of the Charter. I agree.

[12] By then, no reasonable person in Mr. Virk's circumstances would have concluded that they were free to go: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 30-31; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 25. Ultimately, each of the factors identified in Grant for assessing whether an interaction amounted to a psychological "detention" favours such a finding: see Grant, at para. 44(2).

[13] Although only six minutes elapsed between the beginning of the interaction and the arrest of the young men, it was nighttime, the location was isolated (with only the two uniformed police officers, Mr. Virk and his friend present), and the police asked pointed questions that required the young men to explain what they were doing and to justify their presence at the school. Additionally, Detective Constable Briggs asked Mr. Virk for his license, and he handed it over without hesitation. In these circumstances, no reasonable person – especially not someone like Mr. Virk, who was only 18 years old, racialized, and had no prior involvement with the police – would have felt free to leave. Notably, both police officers readily acknowledged that Mr. Virk and his friend were not free to go after the officers approached the vehicle.

[14] Accordingly, Mr. Virk was undoubtedly "detained" from the moment the police started dealing with him that evening.

[15] The parties, however, disagree as to whether the detention was lawful. If not, the detention would necessarily have violated Mr. Virk's s. 9 Charter right not to be arbitrarily detained: see Grant, at paras. 54-56; Le, at para. 124.

[16] Defence counsel, Mr. Bastawrous, submitted that, from the very outset, the police officers intended to investigate the vehicle's occupants for criminal activity. However, because the officers had no basis to suspect the young men of criminal wrongdoing, they lacked the legally required reasonable grounds to carry out an investigative detention: see R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at paras. 34, 45; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 35. Therefore, Mr. Bastawrous submits that the detention was unlawful from the very start.

[17] In making that argument, Mr. Bastawrous submitted that frailties in the testimony of the two officers, who each struggled to remember basic details about the encounter, should lead the court to reject their evidence in its entirety and conclude that they used the CCA as a pretext to search Mr. Virk's vehicle for guns and drugs.

[18] In contrast, on behalf of the Crown, Mr. Bedini argued that the police officers understandably struggled to recall details about an investigation that took place nearly five years earlier. He argued that it would be unjustified to entirely reject their evidence because they forthrightly acknowledged when they could not remember details due to the passage of time.

[19] There is no reason to doubt the veracity of the two officers stated reasons for initially approaching Mr. Virk's vehicle. Given that it was late at night and the vehicle's location, concerns that the driver might be impaired or that its occupants might be trespassers were understandable and well-founded. The inability of the police officers to recall details from a brief investigation that occurred almost five years earlier hardly seems to justify the wholesale rejection of their evidence. Nor does it provide a logical basis for concluding that their reliance on the CCA was pretextual.

[20] Ultimately, I accept the evidence of Detective Constable Briggs and Constable Coulombe regarding their initial motivation for detaining Mr. Virk, which included checking on his sobriety, enforcing the Trespass to Property Act, and conducting a wellness check on the vehicle's occupants.

[21] The detention did not occur on a "highway," but on the grounds of a public school. Neither s. 48(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 ("HTA"), nor the common law, supply the police with the authority to randomly detain motorists to carry out sobriety checks on private property, like a motorist's driveway, where the motorist would enjoy a reasonable expectation of privacy: see R. v. McColman, 2023 SCC 8, 423 C.C.C. (3d) 423 (addressing the authority under the HTA, but, as outlined in para. 27, not whether there is such authority at common law); see also R. v. McColman, 2021 ONCA 382, 156 O.R. (3d) 253, at paras. 45-77 (declining to recognize common law authority to carry out detentions on private driveways to conduct random sobriety check stops, an issue the Supreme Court declined to address by not granting leave to consider it).

[22] However, decisions from this court, not overruled by either the Supreme Court of Canada's or the Court of Appeal's decisions in McColman, recognize the authority at common law to conduct such sobriety check stops on private property that is open to the public, like the parking lots of commercial plazas: see R. v. Dillon (2006), 32 M.V.R. (5th) 13 (Ont. S.C.), at paras. 40-41; R. v. Nield, 2015 ONSC 5730, 88 M.V.R. (6th) 274, leave to appeal refused, 2017 ONCA 722, 393 C.R.R. (2d) 314; R. v. Strmota, 2018 ONSC 7437, 45 M.V.R. (7th) 290; R. v. Vander Griendt, 2015 ONSC 6644, 25 C.R. (7th) 206. Like the motorists in those cases, detained in publicly accessible parking lots, Mr. Virk did not enjoy a reasonable expectation of privacy on the school grounds where the police located his car. It follows that the police officers in this case had common law authority to detain Mr. Virk briefly to check on his sobriety.

[23] As an aside, although the police were undoubtedly entitled to speak with Mr. Virk to determine if he was a trespasser, they did not have the power to detain him if he was. Under the Trespass to Property Act, even if he could not account for his presence at the school, that would have only entitled the police to request that he leave the property. Under that Act, the only "detention" power is the authority to arrest a trespasser who refuses to leave when directed: see Trespass to Property Act, s.2(1)(b) and s. 9(1).

[24] It follows that the police initially had lawful authority to briefly detain Mr. Virk to check on his sobriety, which was one of their apparent purposes for initially detaining him. That the police also had other ulterior purposes for the detention, which included enforcing the Trespass to Property Act, checking on the well-being of the vehicle's occupants, or even checking on CCA compliance, did not serve to invalidate the legality of the detention: see R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at paras. 4, 23, 32-41.

[25] Recall, however, that almost immediately after detaining Mr. Virk, the police quickly acquired reasonable grounds to believe that there was cannabis in Mr. Virk's car in contravention of s. 12(1) of the CCA. The combination of the odour of cannabis and the open Ziploc bag containing cannabis in plain view provided such grounds, which were fortified further by the young men admitting to Constable Coulombe that they were there "to smoke a joint." As a result, the officers had authority under s. 12(3) of the CCA, to "enter and search the vehicle ... and search any person found in it" (emphasis added). To be sure, a necessary implication of the authority to search the vehicle's occupants for cannabis is the power to detain them pending the completion of such a search.

[26] As a result, Mr. Virk's detention was lawful throughout his interaction with the police preceding his arrest. Therefore, the police did not violate his right not to be arbitrarily detained under s. 9 of the Charter.

II. Did the Police Violate Mr. Virk's Section 10(a) Charter Right?

[27] Mr. Virk claims that the police violated his s. 10(a) Charter right. The Crown disputes this, maintaining that the officers shared sufficient information with Mr. Virk to fulfill their duty under that provision.

[28] Section 10(a) of the Charter guarantees everyone the right "on arrest or detention … to be informed promptly of the reasons therefor" (emphasis added). The right has both an informational and a temporal component: see R. v. Roberts, 2018 ONCA 411, 360 C.C.C. (3d) 444, at para. 63.

[29] From an informational standpoint, the right imposes a constitutional duty on the police to, at the very minimum, advise the person detained "in clear and simple language, of the reasons for the detention": Mann, at para. 21; see also R. v. Evans, [1991] 1 S.C.R. 869, at p. 888. If the police have more than one reason for detaining an individual, they must disclose each to the person detained: see R. v. Borden, [1994] 3 S.C.R. 145, at pp. 165-166; R. v. McGowan-Morris, 2025 ONCA 349, 447 C.C.C. (3d) 421, at para. 39; R. v. Bielli, 2021 ONCA 222, 405 C.C.C. (3d) 245. Additionally, the reason(s) for the detention must themselves be "legally valid": R. v. Beaver, 2022 SCC 54, 475 D.L.R. (4th) 575, at para. 90.

[30] When evaluating the adequacy of what the police told a detainee, the ultimate question is "whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline or submit to arrest [or detention], or alternatively, to undermine his right to counsel under s. 10(b)": Evans, at p. 888; see also R. v. Latimer, [1997] 1 S.C.R. 217, at para. 30.

[31] In terms of the temporal requirement, as directed by the text of s. 10(a), the police must tell the person detained "promptly" the reason or reasons. That means immediately: see R. v. Nguyen, 2008 ONCA 49, 231 C.C.C. (3d) 541, at paras. 16-22. The only justification for a delay is where the police must first gain control over a detainee whose actions are creating a dangerous situation: see R. v. Boliver, 2014 NSCA 99, 352 N.S.R. (2d) 277, at paras. 15-20.

[32] The obligations imposed on the police by s. 10(a) of the Charter apply equally whether the detention involves a pedestrian or a motorist: see R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3, at para. 31. Compliance with s. 10(a) assumes added significance when police detain a motorist because the right to counsel is ordinarily overridden during motor vehicle stops motivated by traffic safety concerns: see Orbanski & Elias, at paras. 35, 42, 60; see also R. v. Mueller, 2018 ONSC 2734, 30 M.V.R. (7th) 129, at para. 29. As a result, a detained motorist is often "wholly reliant on the police to provide him with the information he requires to be able to make informed choices": Mueller, at para. 29. Given this, the obligation on police to inform a motorist of the reason for their detention is essential during traffic safety stops: see R. v. Mitchell, 2019 ONSC 2613, 438 C.R.R. (2d) 266, at para. 102.

[33] During his direct examination, when asked about his initial interaction with Mr. Virk upon approaching the vehicle, Detective Constable Briggs testified that he asked the young men: "[w]hat were they doing on school property?" The officer acknowledged posing that question to determine if Mr. Virk had a legal reason for being at the school and to see if he exhibited any signs of impairment. In that regard, he noted the possibility of Mr. Virk slurring his speech when responding. Mr. Virk replied by saying they were: "[h]anging out."

[34] At that point, after smelling the odour of cannabis and seeing the open Ziploc bag of cannabis and cash on the floor, Detective Constable Briggs asked Mr. Virk for his license. He testified that he did so as a way of further assessing Mr. Virk's potential impairment, noting that an impaired driver may produce the wrong document or drop their license. Detective Constable Briggs testified that he then instructed the driver and passenger to exit the vehicle, as the police were going to search it.

[35] Detective Constable Briggs initially testified that he could not recall whether he said anything else to Mr. Virk. However, during cross-examination, he testified that he had informed Mr. Virk that his authority for the search was the CCA; he also had a note to that effect. Detective Constable Briggs denied that the combination of cannabis and a large quantity of cash led him to suspect any criminal activity.

[36] Constable Coulombe's recollection of what the officers and the young men said to one another differed somewhat from that of Detective Constable Briggs. She had no specific recollection of who spoke first or what was said. Pressed during cross-examination regarding what they likely would have said to the young men, she testified: "[i]t would have been along the lines of what's going on, what's happening here. Words to that effect." Constable Coulombe recalled the young men admitting that they were there "to smoke a joint."

[37] Additionally, Constable Coulombe recalled speaking with the young men about the money on the floor while they were still inside the car. She testified that the passenger indicated the cash belonged to Mr. Virk, who had given it to him to invest on his behalf. Mr. Virk's comments during his videotaped police statement corroborate that the officers questioned the young men about the money in the car.

[38] During the police interview, Detective Constable Briggs asked Mr. Virk about the cash the police found in his car. Mr. Virk reminded Detective Constable Briggs that he had explained the money earlier. The officer responded, "[y]ou told me investments." Mr. Virk interjected that "we showed you proof as well," noting that back at the car, they had shown the "girl officer" (Constable Coulombe) their accounts, his account profile, and other account profiles that his friend had for investments that he controlled.

[39] Mr. Virk testified at the hearing. However, he struggled to recollect many of the details of the evening's events. He initially testified that the first thing the police said to him when they approached his vehicle was "[g]et out of the car" or something along those lines. Later, however, he acknowledged that, even before that, while he was still in his car, they must have also asked, "[w]hat are you guys doing here?" and requested his identification. Mr. Virk maintained that the police never told him they were detaining him or searching his car because of something to do with cannabis. He testified that, at the time, he did not even know what the word "detained" meant.

[40] All three witnesses struggled to provide reliable evidence due to the significant amount of time that had elapsed between their testimony and the events at issue. However, Detective Constable Briggs and Constable Coulombe's evidence clearly established that the officers did not comply with their obligations under s. 10(a) of the Charter before arresting Mr. Virk.

[41] It is apparent that when the police first approached Mr. Virk's vehicle, they began interacting with him by asking the two young men what they were doing at the school. That fell far short of what s. 10(a) of the Charter required in the circumstances.

[42] At the outset, the officers should have informed Mr. Virk that they were stopping him to check on his sobriety and the well-being of those in the car, and to determine if they were trespassing. Then, once the officers smelled cannabis and observed the open Ziploc bag of cannabis, they should have immediately told him they were also detaining him because he could not have accessible cannabis in his vehicle. Finally, once they saw the cash on the floor and became suspicious of it, as they clearly did, given the questions they posed about it and Mr. Virk's arrest, in part, for possessing the proceeds of crime, they should have told Mr. Virk that they were also detaining him because they suspected the money might somehow be related to crime.

[43] The police were not required to use technical or precise language, but they did have an obligation to inform Mr. Virk clearly and simply of the substance of why they were detaining him: see Nguyen, at para. 16; Mann, at para. 21. They were required to do so from the outset of the detention and to keep him apprised as their reasons for detaining him evolved during the interaction. Unfortunately, the police failed to do so, which meant that Mr. Virk was required to navigate a legally fraught investigative encounter while remaining entirely ignorant of the extent of his jeopardy.

[44] Accordingly, Mr. Virk has established that the police violated his s. 10(a) Charter right during their investigation.

III. Did the Police Violate Mr. Virk's Section 10(b) Charter Right?

[45] Mr. Virk claims that the police violated his s. 10(b) Charter right in a few discrete ways during their investigation. First, he claims that they failed to inform him of that right during his detention. Second, that they failed to afford him a chance to call a lawyer from the location of his arrest. Finally, that they failed to respect his right to counsel of choice. Although the Crown concedes a s. 10(b) Charter breach during Mr. Virk's detention, it disputes the other two breaches he alleges.

The Right to Counsel Before Mr. Virk's Arrest

[46] Detective Constable Briggs acknowledged only informing Mr. Virk of his right to counsel after formally arresting him. He explained that, as with any regular traffic stop, he did not think he was obligated to inform Mr. Virk of his right to counsel before that because he was not investigating him for a criminal offence.

[47] The Supreme Court of Canada has concluded that the implied override of the right to counsel under s. 10(b) of the Charter occasioned by the interlocking scheme of federal and provincial legislation relating to road safety, is a reasonable limit on that right under s. 1, at least when the police detain a motorist to explore such concerns; for example, driver sobriety: see R. v. Thomsen, [1988] 1 S.C.R. 640, at pp. 655-56; Orbanski & Elias, at paras. 35, 42, 52-60.

[48] The override of the right to counsel, however, ends when a police officer's focus shifts from questions concerning road safety, including the potential that the motorist may be impaired by alcohol or drugs, to inquiries about other potential criminal offences. When that happens, a police officer has an obligation to immediately inform the detained motorist of their s. 10(b) Charter right to retain and instruct counsel without delay: see R. v. MacDonald, 2012 ONCA 495, 94 C.R. (6th) 355, at paras. 29-32; R. v. Richards, 2016 ONSC 3556, 356 C.R.R. (2d) 207, at paras. 27, 32; R. v. Elawad, 2025 ONSC 1298, 574 C.R.R. (2d) 63, at para. 190.

[49] In this case, it is apparent that soon after the police officers began dealing with Mr. Virk, concerns about his sobriety quickly fell away. The focus of the police soon shifted to concerns not only about readily accessible cannabis in the car but also the large amount of cash in the vehicle. The record establishes that the officers made specific inquiries of Mr. Virk and his passenger regarding the money, and he was initially arrested, in part, for possessing the proceeds of a crime as a result. By making such inquiries without first apprising Mr. Virk of his right to retain and instruct counsel without delay, the police violated his s. 10(b) Charter right.

[50] Additionally, as the Crown concedes, the failure of the police officers to apprise Mr. Virk of his right to retain and instruct counsel before proceeding to search his vehicle under s. 12(3) of the CCA also occasioned a breach of his s. 10(b) Charter right. In fairness to the officers, at the time of this investigation in January 2020, it was less than clear whether, before carrying out such a search, the police had to comply with s. 10(b).

[51] It was just this year that the Court of Appeal for Ontario held in McGowan-Morris that the searches authorized by s. 12(3) of the CCA neither expressly nor by implication override s. 10(b) of the Charter: see at paras. 88-97. It acknowledged that during a traffic safety stop, a police officer may ask the driver about cannabis use and whether there is cannabis in the vehicle, inquiries that are directly relevant to driver sobriety, without engaging s. 10(b) of the Charter: at paras. 98-99. However, the Court of Appeal held that once police form reasonable grounds to believe that cannabis is readily available in the vehicle, they must comply with their obligations under s. 10(b) of the Charter before exercising their authority to search under s. 12(3) of the CCA: at paras. 97-100. They may only delay doing so when the specific circumstances provide a reasonable basis for believing that it is necessary to ensure the safety of the police or the public: see at paras. 102-103.

[52] Given that Mr. Virk was polite and cooperative throughout his dealings with the police, coupled with the absence of any suggestion that the passenger behaved differently, there was no basis for the police to delay compliance with s. 10(b) of the Charter once they concluded that they had the required grounds to search under s. 12(3) of the CCA. As a result, the Crown rightly conceded a breach of s. 10(b) of the Charter on that basis.

The Delay in Facilitating Contact with Counsel

[53] Mr. Virk claims that the police violated his right to counsel by not facilitating his consultation with a lawyer before he arrived at the police division. The Crown disputes that it was feasible for the police to do so, and therefore submits that the delay did not occasion a s. 10(b) Charter breach.

[54] Detective Constable Briggs arrested Mr. Virk at 11:13 p.m. He then placed him in the rear of his police cruiser and apprised him of his right to retain and instruct counsel. Mr. Virk indicated that he wanted to call a lawyer. They left for the police division at 11:41 p.m. In the interim, the police continued searching Mr. Virk's vehicle, seized evidence from it, and arranged for the car to be towed. At the police division, Detective Constable Briggs called and left a message for duty counsel at 11:55 p.m. Duty counsel called back at 12:07 a.m., and Mr. Virk then spoke with them until 12:14 a.m.

[55] Detective Constable Briggs testified that he did not attempt to facilitate Mr. Virk's consultation with counsel at the scene of the arrest because a private conversation between Mr. Virk and a lawyer was not possible at that point. Although Mr. Virk was cooperative and polite throughout their interactions, Detective Constable Briggs believed that it would have been unsafe to leave him unsupervised while in police custody so that he could speak to counsel privately.

[56] The law is well settled. If the police can facilitate an arrestee's consultation with counsel in private from the location of their arrest, then s. 10(b) of the Charter requires them to do so: see R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at paras. 29-36; R. v. Manninen, [1987] 1 S.C.R. 1233, at pp. 1242-43.

[57] Ultimately, based on the record, I am far from satisfied that it was feasible for Mr. Virk to consult with counsel in private while in the back of the police cruiser following his arrest. In that regard, it is notable that the cross-examination of Detective Constable Briggs did not meaningfully challenge his explanation for not facilitating Mr. Virk's contact with counsel earlier. The record is bereft of evidence that could substantiate the claimed breach.

[58] For example, the evidence adduced did not address whether Mr. Virk was handcuffed while in custody in the rear of the police cruiser, whether it was possible to provide him with access to his phone in that location, or whether he could have enjoyed privacy in the rear of the police cruiser as one of the officers kept an eye on him from a distance but without being able to overhear any conversation he might have had with a lawyer. Each of these essential questions remains unanswered based on the record from the hearing.

[59] Given all this, Mr. Virk has not established that the delay in facilitating his contact with counsel following his arrest occasioned a breach of his s. 10(b) Charter right.

The Right to Counsel of Choice

[60] Mr. Virk claims a violation of his s. 10(b) Charter right because the police failed to respect his right to speak with a lawyer of his choosing. The Crown contests that there was any such breach.

[61] When initially informed of his right to counsel, Mr. Virk indicated that he wanted to speak with a lawyer and stated that he had the number in his phone. Detective Constable Briggs testified that once at the police division, he asked Mr. Virk for the name of the lawyer on his phone whom he wished to contact. Mr. Virk said he wanted to call a friend whose phone number was on his phone. Detective Constable Briggs informed Mr. Virk that he could only call his friend if he was a lawyer or had a lawyer's contact information. According to Detective Constable Briggs, Mr. Virk replied, "[n]o, he doesn't. I'll call a free lawyer." As a result, the officer contacted duty counsel. He testified that if Mr. Virk indicated that his friend had the lawyer's phone number, he would have allowed him to call his friend.

[62] In contrast, Mr. Virk testified that after they arrived at the police division, he told Detective Constable Briggs that he wanted to speak with a specific lawyer, "Jag Virk." He testified to telling the officer that his friend had Jag Virk's phone number, so he needed to call him. Additionally, he testified that he suggested to Detective Constable Briggs that he could conduct a Google search to get Jag Virk's phone number. According to Mr. Virk, Detective Constable Briggs told him that if he did not have Jag Virk's number, he would not help him find it and advised him to speak to the "free lawyer." Mr. Virk acknowledged speaking to someone he believed was a lawyer, but that he was unsure whether the person was, in fact, a lawyer.

[63] It is now well-established that s. 10(b) of the Charter includes the right of a person detained or arrested to consult a lawyer of their choosing: see R. v. Ross, [1989] 1 S.C.R. 3, at pp. 11-15; R. v. Black, [1989] 2 S.C.R. 138, at p. 155; R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at paras. 24, 35.

[64] In jurisdictions like Peel Region, where the police have assumed the responsibility of contacting counsel rather than providing those they detain or arrest with direct access to a phone or the Internet, the police must exercise the same diligence expected of those under detention or arrest when it comes to contacting counsel of choice: see R. v. Jarrett, 2021 ONCA 758, 498 C.R.R. (2d) 38, at para. 43; R. v. O'Shea, 2019 ONSC 1514, 372 C.C.C. (3d) 352, at para. 42; R. v. Doobay, 2019 ONSC 7272, 61 M.V.R. (7th) 225, at paras. 30-31. That means the police must take "all steps that [are] reasonable in the circumstances" to put a person in contact with their chosen lawyer: O'Shea, at para. 22.

[65] As a result, in such jurisdictions, if the detainee indicates that they need to contact a third party, for example, a relative or a friend, to get the name or phone number of a lawyer they want to speak with, undoubtedly, the obligation on the police to take reasonable steps to facilitate contact with counsel of choice requires that they act on such a request unless it would run a realistic risk of jeopardizing an ongoing investigation: see R. v. Tremblay, [1987] 2 S.C.R. 435, at paras. 7-8; R. v. Kumarasamy (2002), 22 M.V.R. (4th) 234 (Ont. S.C.), at paras. 23-26; R. v. Antoninas, 2014 ONSC 4220, 323 C.R.R. (2d) 1, at para. 60; R. v. Dickson, 2021 ONSC 6374, 88 M.V.R. (7th) 132, at para. 99.

[66] On Mr. Virk's account of the relevant events, there was a blatant breach of his right to counsel of choice. Ultimately, however, I prefer Detective Constable Briggs's evidence over that of Mr. Virk concerning how he came to speak with duty counsel. In that regard, what transpired in the interview room seems rather telling. At the outset of the interview, Detective Constable Briggs reviewed Mr. Virk's right to counsel with him again, including reminding him that he had the right to telephone any lawyer he wished. Mr. Virk responded by indicating that he understood. Had events transpired as Mr. Virk claimed during his testimony, one would expect that in the interview room, when the officer reminded him that he had the right to consult any lawyer he wished, he would have responded with something more. For example, "[w]hat do you mean? You told me before that I could not call Jag Virk?" The fact that Mr. Virk did not say anything like that leads me to prefer Detective Constable Briggs's testimony concerning how Mr. Virk came to speak with duty counsel.

[67] Mr. Virk has not established a breach of his s. 10(b) rights resulting from a failure to respect his right to speak to a lawyer of his choosing.

IV. Did the Police Violate Mr. Virk's Section 8 Charter Right?

[68] During his submissions, Mr. Bastawrous argued that the police violated Mr. Virk's s. 8 Charter right to be secure against unreasonable search or seizure. He submitted that the police lacked the authority to continue searching Mr. Virk's vehicle after they located the cannabis that was in plain view within the car's interior.

[69] With respect, s. 12(3) of the CCA contains no such limitation. So long as the police have the required grounds, it authorizes them to "enter and search the vehicle ... and search any person found in it" for cannabis "readily available to any person in the vehicle": CCA, ss. 12(2)(b), 12(3). Although there are conflicting decisions on whether s. 12(3) authorizes the police to search a vehicle's trunk – see R. v. Leonard, 2025 ONCA 63, 176 O.R. (3d) 49, at paras. 9-10 – Mr. Bastawrous did not point to any decision suggesting that the provision only authorizes the police to search and seize cannabis that is in plain view.

[70] The search conducted by the police in this case fell well within the authority provided by s. 12(3) of the CCA. There was no violation of Mr. Virk's s. 8 Charter right.

V. Should the Evidence Be Excluded Under Section 24(2)?

[71] As explained, during their investigation, the police breached Mr. Virk's s. 10(a) Charter right, and his s. 10(b) Charter right in two distinct ways.

[72] By way of remedy, Mr. Virk seeks an order under s. 24(2) of the Charter, excluding from evidence the fentanyl found in his car and his videotaped statement. The Crown responds that the balance of considerations under s. 24(2) of the Charter favours the admission of the evidence in all the circumstances of this case.

[73] The starting point for determining whether to exclude evidence under s. 24(2) is to decide whether the evidence was "obtained in a manner" that violated the claimant's Charter rights: see R. v. Tim, 2022 SCC 12, [2022] 1 S.C.R. 234, at para. 78 (concisely summarizing the governing principles).

[74] That requirement will be satisfied if there is a connection between the breaches and the evidence, which can be "temporal, contextual, causal or a combination of the three": R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21, quoting R. v. Plaha (2004), 188 C.C.C. (3d) 289 (Ont. C.A.), at para. 45.

[75] In this case, the breaches of the Charter had both a temporal and contextual connection to the evidence that Mr. Virk wishes to exclude. The violations of Mr. Virk's rights under ss. 10(a) and 10(b) of the Charter overlapped in time and formed part of the same investigation that led to the search of his car and the seizure of the fentanyl.

[76] Furthermore, there was a causal relationship between those breaches and Mr. Virk's videotaped statement. Recall that, while the ss. 10(a) and 10(b) breaches were ongoing, Mr. Virk made statements about the cash in his car that ultimately resurfaced in the interview room. That Mr. Virk spoke with duty counsel before his formal statement was insufficient to sever the connection between the earlier Charter breaches and his statement. At the outset of the interview the officer conducted with Mr. Virk, Detective Constable Briggs did not make a concerted effort to wipe the slate clean and effect a "fresh start": see e.g. Beaver, at paras. 109, 113. To the contrary, during the interview, he questioned Mr. Virk regarding the statements he made at the scene of his detention while the Charter breaches remained ongoing.

[77] Therefore, the fentanyl recovered from his car and Mr. Virk's videotaped statement are evidence obtained in a manner that violated his Charter rights. As a result, that evidence is eligible to be considered for exclusion under s. 24(2).

[78] The decision of whether to exclude unconstitutionally obtained evidence under s. 24(2) of the Charter requires the court to consider "all the circumstances" of the case. To do so, the court must assess and balance the effect of admitting the evidence on the long-term repute of the administration of justice, having regard to the three lines of inquiry identified by the Supreme Court of Canada in Grant, at paras. 71, 85-86.

The Seriousness of the Charter-Infringing State Conduct

[79] The first line of inquiry requires the court to assess the state conduct that led to the Charter violations and situate it along a "spectrum" or "scale of culpability": see Grant, at para. 74; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 43; Le, at para. 143; Tim, at para. 82. The Supreme Court of Canada provided a helpful summary of the considerations that should inform that assessment in Tim, at para. 82:

At the more serious end of the culpability scale are wilful or reckless disregard of Charter rights, a systemic pattern of Charter-infringing conduct, or a major departure from Charter standards. Courts should dissociate themselves from such conduct because it risks bringing the administration of justice into disrepute. At the less serious end of the culpability scale are Charter breaches that are inadvertent, technical, or minor, or which reflect an understandable mistake. Such circumstances minimally undermine public confidence in the rule of law, and thus dissociation is much less of a concern.

[80] When assessed with these considerations in mind, two of the Charter breaches in this case deserve placement at the more culpable end of the spectrum. At the same time, the third is far less blameworthy.

[81] The breach of Mr. Virk's s. 10(a) Charter right falls at the more serious end of the spectrum. To be sure, I do not believe that either Detective Constable Briggs or Constable Coulombe deliberately failed to comply with s. 10(a), in the sense that they were aware of their obligations and chose nevertheless to disregard them. Instead, their evidence created the distinct impression that they were entirely unaware of their obligations under that most basic of Charter guarantees.

[82] Any possible confusion regarding what s. 10(a) requires of the police was put to rest over twenty years ago, when the Supreme Court of Canada made clear in Mann that the police must inform those they detain, "in clear and simple language, of the reasons for the detention": at para. 21. Despite this clear directive, reported cases over the past two decades reveal a persistent and concerning pattern of Peel Regional Police officers failing to respect their obligation to inform those they detain or arrest of their reasons for doing so.[1] The sheer number of decisions suggests a systemic problem with that police organization.

[83] Unfortunately, the same appears true of the s. 10(b) breach occasioned by the officers questioning Mr. Virk about the cash in the car without first apprising him of his right to counsel. Courts in this region have previously recognized a systemic problem involving the Peel Regional Police regarding their failure to respect the right to counsel, a fact previously acknowledged by the Court of Appeal: see R. v. Thompson, 2020 ONCA 264, 62 C.R. (7th) 286, at paras. 92-94 (per Jamal J.A., as he then was).

[84] The systemic nature of these breaches of ss. 10(a) and 10(b) of the Charter aggravate their seriousness and weigh heavily in favour of exclusion: see R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 25; see also Grant, at para. 75; Tim, at para. 88; R. v. Adler, 2020 ONCA 246, 62 C.R. (7th) 254, at para. 27.

[85] Beyond the systemic nature of these breaches, the fact that they involved a major departure from well-established constitutional obligations also exacerbates their seriousness. As the Supreme Court of Canada has observed: "[e]ven where the Charter infringement is not deliberate or the product of systemic or institutional abuse, exclusion has been found to be warranted for clear violations of well-established rules governing state conduct": Paterson, at para. 44.

[86] In contrast, with respect to the breach of s. 10(b) occasioned by the failure to apprise Mr. Virk of his right to counsel before searching his vehicle under s. 12(3) of the CCA, I would place it at the less blameworthy end of the spectrum. At the time of this investigation, the CCA was a relatively new piece of legislation. There was understandable uncertainty concerning whether the police had to comply with s. 10(b) of the Charter before conducting a search of a vehicle and its occupants under its authority: see e.g. R. v. Grant, 2021 ONCJ 90.

[87] On balance, however, the other breaches are gravely serious and very strongly favour excluding the evidence under Grant's first line of inquiry.

The Impact of the Breaches on Mr. Virk's Charter-Protected Interests

[88] Under this second line of inquiry, the court must evaluate the extent to which the Charter breaches "actually undermined the interests protected by the right infringed": Grant, at para. 76.

[89] In undertaking that assessment, the court must "look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests": Grant, at para. 77. The court must situate the impacts along a spectrum, which may vary from "fleeting, technical, transient, or trivial, to those that are profoundly intrusive or that seriously compromise the interests underlying the rights infringed": Tim, at para. 90; see also Grant, at para. 76.

[90] The more impactful the breach is on the constitutionally protected interest, "the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute": Grant, at para. 76; see also Tim, at para. 90.

[91] The breaches of ss. 10(a) and 10(b) directly impacted the interests those rights serve to protect, specifically the right against self-incrimination. The officers did not inform Mr. Virk of the reason for his detention or apprise him of his right to counsel. While ignoring these constitutional obligations, they proceeded to question him for criminal investigative purposes, while leaving him wholly ignorant of his potential legal jeopardy. In the process, Mr. Virk made statements to the police, including admitting that he and his friend were at the school to smoke cannabis and statements about the cash in the car, with each resurfacing during his formal police statement. As a result, these Charter breaches had a direct and significant impact on Mr. Virk's right against self-incrimination, the very interest that ss. 10(a) and 10(b) endeavour to safeguard.

[92] Nevertheless, it is readily apparent that even if the police had fastidiously complied with their obligations under ss. 10(a) and 10(b) of the Charter, they would have inevitably discovered the fentanyl in the centre console of Mr. Virk's vehicle. The odour of cannabis and the open Ziploc bag containing cannabis in plain view would have necessarily resulted in the police searching Mr. Virk's car under s. 12(3) of the CCA and discovering the fentanyl, even without Mr. Virk's admission about smoking cannabis.

[93] To be sure, that lessens the impact of the breaches somewhat: see Grant, at para. 122; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 65-69. Nevertheless, as the Supreme Court has explained: "[a] finding of discoverability should not be seen as necessarily leading to admission of evidence": Côté, at para. 70. Ultimately, it is but one factor that weighs in favour of admitting the evidence.

[94] In summary, the breaches had a significant impact on Mr. Virk's right against self-incrimination, which strongly favours the exclusion of his videotaped statement to maintain the integrity of the administration of justice. However, the fact that the fentanyl would inevitably have been discovered pulls in the opposite direction, at least in relation to that evidence.

Society's Interest in an Adjudication on the Merits

[95] The court must also consider society's interest in having this case adjudicated on its merits. In that regard, the court must determine if it would better serve truth-seeking to admit or exclude the evidence: see Grant, at para. 79.

[96] Unlike Mr. Virk's statements, the fentanyl is reliable evidence, which favours its admission: see Grant, at para. 81. As does the fact that its exclusion will undoubtedly prove fatal to the Crown's case against Mr. Virk: see Grant, at para. 83. These considerations weigh heavily in favour of admitting the fentanyl, but less so in favour of admitting Mr. Virk's police statement, which has a strong causal link to the breaches.

[97] Undoubtedly, also relevant is that the charge against Mr. Virk is gravely serious, involving the deadliest of narcotics, fentanyl: see Beaver, at para. 129-130. Nevertheless, the court cannot allow the seriousness of the offence and the reliability of the evidence to overwhelm the s 24(2) analysis: see Grant, at para. 84.

Balancing the Grant Factors

[98] After considering the three lines of inquiry identified in Grant, which encapsulate "all the circumstances" of the case, the court must decide whether, on balance, the admission of the evidence obtained in violation of the Charter would bring the administration of justice into disrepute: see Grant, at paras. 85-86. This balancing exercise invariably requires a qualitative assessment that does not lend itself to "mathematical precision": Grant, at paras. 86, 140.

[99] In this case, given some of the aggravating features, especially that the breach of s. 10(a) and one of the breaches of s. 10(b) form part of a systemic problem, the first line of inquiry very strongly favours exclusion. Under the second line of inquiry, the fact that the violations had a significant impact on Mr. Virk's Charter-protected interest against self-incrimination also weighs strongly in favour of excluding his videotaped statement. In contrast, the absence of a causal connection between the breaches and the discovery of the fentanyl points in the opposite direction, at least regarding that evidence: see R. v. Thompson, 2025 ONCA 500, 450 C.C.C. (3d) 383, at paras. 120-121. Nevertheless, although the "the absence of a causal nexus is significant" it is "not dispositive": Thompson, at para. 121.

[100] Of course, the first two lines of inquiry need not both strongly favour exclusion for such an order to be necessary. Serious breaches, even when they have only a weak impact on Charter-protected interests, may sometimes, on their own, support a finding that the admission of the evidence would bring the administration of justice into disrepute. "It is the sum, and not the average, of those first two lines of inquiry that determines the pull towards exclusion": Le, at para. 141.

[101] After weighing all the circumstances of this case, an order excluding the evidence is necessary. The repute of the administration of justice would be more negatively affected by the court admitting the evidence and failing to dissociate itself from the chronic failure of the Peel Regional Police to respect the constitutional rights guaranteed by ss. 10(a) and 10(b) of the Charter. Admitting the evidence would unavoidably send the wrong message, signaling the court's willingness to tolerate what are longstanding systemic problems that are long overdue for correction.

[102] Although fentanyl is a dangerous narcotic that kills far too many members of our community, the objective of bringing its purveyors to justice cannot permit the court to turn a blind eye to systemic problems that are desperately in need of correction. In that regard, as the Supreme Court directed in Grant, the court must remain mindful of the fact that "for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge": Grant, at para. 75.

[103] Members of the community in Peel Region, innocent or guilty, are entitled to know why the police are detaining them, and when the circumstances warrant it, to be informed of their right to retain and instruct counsel without delay. These rights are not difficult to understand or implement. Although the police may prefer to keep those they detain in the dark because it makes their challenging role somewhat easier, the expedience of law enforcement cannot take precedence over the public's most basic Charter rights.

[104] Accordingly, under s. 24(2) of the Charter, the court excludes the fentanyl and Mr. Virk's videotaped statement from evidence at his trial.

VI. Has the Crown Established That Mr. Virk's Videotaped Statement Was Voluntary?

[105] Given the decision to exclude Mr. Virk's statement from evidence under s. 24(2) of the Charter, it is unnecessary to address whether the Crown has proven the voluntariness of that statement.

[106] For the sake of completeness, had I been required to decide the issue, I would have found that the Crown had proven beyond a reasonable doubt that Mr. Virk's statement was voluntary. In short, there was nothing about the circumstances in which he made his statement that caused me to doubt its voluntariness.

[107] Before providing his statement, Mr. Virk spoke to duty counsel and received the common law cautions. There were no threats or promises. Detective Constable Briggs was entirely professional throughout the interview. His tone was pleasant and conversational. Although he made some mention of the position of the young person, that represented little more than an appeal to Mr. Virk's conscience and fell short of a quid pro quo that could have possibly induced Mr. Virk to speak against his will.

[108] Additionally, although Mr. Virk repeatedly asserted his right to silence at various points during the interview, at other times, he readily chose to share information. He clearly understood his right to silence and how to assert it. Importantly, Detective Constable Briggs never attempted to dissuade Mr. Virk from asserting that right.

[109] Finally, although Mr. Virk complained about being cold a couple of times while he was in the interview room, given that the interview lasted less than 40 minutes, the circumstances were far from oppressive. I am sure that Mr. Virk did not decide to speak because the circumstances were so unpleasant that he felt he had no choice but to do so.

[110] Given all the circumstances, I was satisfied beyond a reasonable doubt that Mr. Virk's videotaped statement was voluntary. Mr. Virk made an informed choice to speak to Detective Constable Briggs, to share certain information with him, and refrain from sharing other information. Nothing about the circumstances occasioned any concerns about the reliability of Mr. Virk's videotaped statement.

Conclusion

[111] Mr. Virk's Charter application is granted. Under s. 24(2), the court excludes the fentanyl and Mr. Virk's videotaped statement from evidence at his trial.

Released: October 14, 2025

[1] See R. v. L.L., 2025 ONSC 4843, at paras. 126-127; R. v. Murray, 2025 ONSC 4127, at paras. 245-246; R. v. Habte, 2025 ONCJ 216, at para. 69; R. v. Morgan, 2023 ONSC 6855, at paras. 7, 47; R. v. Singh, 2023 ONSC 6138, at para. 29; R. v. El Khiraoui Chaki, 2023 ONSC 1517, 525 C.R.R. (2d) 81, at paras. 96-97, 146, 161; R. v. Maan, 2022 ONCJ 168, at para. 11; R. v. Kaur, 2021 ONCJ 683, 78 C.R. (7th) 183, at para. 146; R. v. Hector, 2021 ONSC 7543, at paras. 123, 125, 127; R. v. Kaler, 2021 ONCJ 727, at paras. 28-29; R. v. Williams, 2021 ONSC 5497, at para. 64; R. v. Phillips, 2021 ONSC 5343, 74 C.R. (7th) 121, at paras. 36, 73; R. v. Seera, 2021 ONSC 5095, at para. 72, 197; R. v. Aujla, 2021 ONSC 2417, at para. 38; R. v. Yogeswaran, 2021 ONSC 1242, 480 C.R.R. (2d) 226, at para. 39; R. v. Conroy, 2020 ONCJ 673, at paras. 98, 100; R. v. Mitchell, 2019 ONSC 2613, 438 C.R.R. (2d) 266, at para. 104; R. v. Samuels, 2019 ONCJ 213, at para. 43, 49; R. v. Williams, 2018 ONSC 3654, 412 C.R.R. (2d) 32, at para. 217; R. v. Worrie, 2018 ONSC 1745, at para. 55; R. v. Whyte, 2018 ONCJ 277, at para. 35; R. v. Owen, 2017 ONCJ 731, 397 C.R.R. (2d) 63, at para. 42; R. v. Cole, 2017 ONCJ 83, 35 C.R. (7th) 427, at paras. 15-30; R. v. Athwal, 2017 ONSC 96, 373 C.R.R. (2d) 1, at para. 206; R. v. Nithiyananthaselvan, 2016 ONCJ 426, 361 C.R.R. (2d) 224, at para. 47; R. v. Singh, 2015 ONCJ 643, 345 C.R.R. (2d) 264, at para. 38; R. v. Gayle, 2015 ONCJ 575, 24 C.R. (7th) 124, at para. 28; R. v. Evans, 2015 ONCJ 305, 21 C.R. (7th) 133, at para. 65; R. v. Moulton, 2015 ONSC 1047, 19 C.R. (7th) 112, at para. 89; R. v. Volkov (2014), 321 C.R.R. (2d) 354 (Ont. C.J.), at para. 22; R. v. Thompson, [2013] O.J. No. 3570 (C.J.), at para. 5; R. v. Thompson, 2013 ONSC 1527, 1 C.R. (7th) 125, at paras. 126, 200; R. v. John, 2012 ONSC 4753, at para. 21; R. v. Doan and Nguyen, 2012 ONSC 3776, 262 C.R.R. (2d) 316, at paras. 73, 75, 111; R. v. Smith, 2012 ONCJ 405, at para. 43; R. v. Lewis, 2011 ONCJ 105, at para. 132; R. v. Morgan and Smith, 2010 ONSC 3459, 221 C.R.R. (2d) 322, at para. 52; R. v. Curlin (2009), 190 C.R.R. (2d) 173 (Ont. S.C.), at paras. 46-47; R. v. Kopcsanyi, 2008 CarswellOnt 2935 (Ont. S.C.), at para. 14; R. v. White, 2007 ONCA 318, 85 O.R. (3d) 407, at para. 16; R. v. Waterman, at para. 66; R. v. Rachkovsky, 2005 CarswellOnt 10099 (Ont. S.C.), at para. 39.