Court File and Parties
Delivered: Orally on September 24, 2025, and in writing on October 21, 2025
Court File No.: CR-24-3787 (Chatham)
Date: 2025-09-24
Ontario Superior Court of Justice
Between:
His Majesty the King
and
George Ward (Accused)
Counsel:
R. Iaquinta, for the Crown
K. Marley, for the Accused
Heard: June 10, 11, 13 and 16, 2025
Before: Horvat J.
Reasons for Judgment
Introduction
[1] On April 14, 2022, the accused was stopped by the Ontario Provincial Police ("OPP") for a speeding violation in a construction zone along the 401 in Chatham-Kent County. The police found a concealed firearm, magazines containing ammunition, and other prohibited items in the vehicle that he was driving. The vehicle belonged to the accused's son. The accused is charged with various offences related to possession of those items, resist arrest, and related breaches of prohibition orders.
[2] At the commencement of the trial, there were admissions made by the defence: the identity of the accused; jurisdiction; the dates in the indictment; the continuity of the items seized by the police; that the accused did not have the authority at law to possess a firearm; the prohibition and the fact of a prohibition; and the voluntariness of a statement given by the accused. The defence also consented to a firearms certificate being tendered.
[3] The accused seeks to have the evidence found in the vehicle excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms, on the basis that the evidence was obtained in a manner that infringed or denied his s. 8 and 9 constitutional rights. The hearing of the accused's application was blended with the trial.
[4] For the following reasons, I find that the accused was arbitrarily detained (a violation of his s. 9 right), and the searches were unreasonable (a violation of his s. 8 right). I also find that it would bring the administration of justice into disrepute if the Crown were permitted to tender into evidence the items seized during these unreasonable searches.
The Facts
[5] On the evening of April 13, 2022, Provincial Constable ("PC") William Van Wyk commenced his shift in traffic enforcement with the OPP, patrolling a construction zone along the 401 in the Tilbury/Lakeshore area. Neither his police vehicle nor body was equipped with any sort of recording device.
[6] At 3:57 a.m. on the morning of April 14, 2022, PC Van Wyk observed a lone vehicle travelling in the open lane in the construction zone that appeared to be travelling at a speed higher than the posted speed limit. There was no lighting in this area and PC Van Wyk's vehicle did not have its lights turned on. PC Van Wyk took a speed reading on his radar device, turned his vehicle's lights on and drove after the target vehicle, which was a two-door red 1999 Honda Accord bearing Ontario licence plate CJJD879 (the "Vehicle").
[7] The Vehicle was equipped with a movement triggered dashcam that recorded the traffic stop, from the angle of facing into the Vehicle from the front driver's side. Several videos were played during evidence. The time stamp on the videos was an hour before those of PC Van Wyk's notes. It was explained by the accused's son, who testified for the defence, that the reason for this time variance was that he failed to change the hour on the device to account for daylight savings time. The Crown did not quarrel with the time stamp explanation and as will be seen through a recitation of the facts, the time, with the hour variance, is accurate.
[8] Sergeant Mark Hilman testified that at 3:59 a.m. on April 14, 2022, he heard a call on the police radio from PC Van Wyk requesting a secondary unit as he was going to conduct a search for cannabis.
[9] According to PC Van Wyk, at approximately 4:00 a.m. or 4:01 a.m., once the vehicles were through the construction zone and there was a lane of safety, PC Van Wyk turned his police lights on, and the Vehicle pulled over. PC Van Wyk confirmed in his evidence that at this point, the accused was detained.
[10] The only artificial lighting in the area of the traffic stop were the headlights of PC Van Wyk's vehicle and his flashlight.
[11] PC Van Wyk approached the Vehicle on the passenger side and observed the lone occupant, the accused, in the driver's seat. He then asked the accused for his driver's licence, ownership and insurance. The accused gave PC Van Wyk his driver's licence and PC Van Wyk identified the accused. PC Van Wyk then told the accused why he was stopped. PC Van Wyk described the accused as argumentative about the traffic stop.
[12] At 4:02 a.m. (the timestamp is 3:02 a.m.), the accused can be seen on the dashcam video leaning from the driver's seat over to speak to someone through the passenger side window. The accused hands over something to the individual and is then seen rummaging through the center console and other areas, it appears looking for documentation. Although there is now sound on the dashcam video, the accused does not appear argumentative on the dashcam video.
[13] While the accused was looking for the ownership and insurance information, PC Van Wyk shone his flashlight into the Vehicle to conduct what he described as an officer safety check and ensure no other individuals or weapons were within the Vehicle. He used his flashlight when looking in the Vehicle while standing on the passenger side. While in this position, he detected the odour of raw cannabis within the Vehicle and noticed what looked like a cigarette in the centre console that PC Van Wyk believed to be a marijuana cigarette because of its twisted end. The accused explained that he had three cannabis plants in the trunk of the Vehicle.
[14] Between approximately 4:03 a.m. and 4:05 a.m., the accused can be seen raising both of his arms and hands into the air. The accused is also seen with a cell phone in his hand recording the individual on the passenger side. The accused appears to be calm and compliant in this video. The accused is seen exiting the Vehicle just before the 4:05 a.m. timestamp.
[15] PC Van Wyk explained in his evidence that the smell of raw cannabis could indicate that it was not sealed in a container or that there was a very large quantity of it. This caused PC Van Wyk concern because of the potential for impairment of the driver and general safety risk, and because carrying a certain amount is contrary to the Cannabis Control Act, 2017, S.O. 2017, c. 26, Sched. 1 ("CCA"). PC Van Wyk did not indicate that he believed that the accused was impaired.
[16] PC Van Wyk advised the accused that he would be conducting a search under the CCA and would be looking for cannabis that was not stored properly, over the allowed amount of 30 grams, or readily accessible to the driver. According to PC Van Wyk, the accused then again explained that he had three cannabis plants in the trunk of the Vehicle.
[17] During his evidence, PC Van Wyk described that at this point the accused as "a little bit confrontational" and explained that he was "irate" about him looking in the Vehicle, saying that PC Van Wyk did not have authority to search the Vehicle. PC Van Wyk explained during his evidence that he was searching the Vehicle to make sure it was safe and detailed that while standing outside the Vehicle he used his flashlight to look between the seats, on the floorboards, the centre console, seat, the accused's hands and the accused himself.
[18] On cross-examination, PC Van Wyk confirmed that he did not advise the accused that he had a right to counsel at the point of the CCA search. PC Van Wyk described the accused as being argumentative about whether he had the grounds to search him and the Vehicle, and whether he should have been pulled over in the first place. Regarding the accused being argumentative, PC Van Wyk testified that it raised flags for him and that he felt that the accused was trying to draw his attention away from something.
[19] According to the dashcam video, between 4:05 a.m. and 4:08 a.m., the accused and PC Van Wyk are seen through the rear window of the Vehicle, behind the Vehicle. While movement of the two is apparent in the video, the flashing lights of the police vehicle behind the Vehicle make it impossible to make out what is happening. At certain points, however, the accused can be seen holding his phone, with his phone's flashlight turned on.
[20] PC Van Wyk testified that it was at this point that he requested a second officer to attend the scene to do a safe search. PC Van Wyk estimated that Sergeant Hillman arrived approximately five to eight minutes later. This is inconsistent with Sergeant Hillman's evidence that he heard the call for a second unit at 3:59 a.m. and that he arrived on the scene at 4:04 a.m. These times were recorded in Sergeant Hillman's notes and are consistent with the dashcam videos showing the accused exiting the Vehicle just before 4:05 a.m. These times are inconsistent with the evidence of PC Van Wyk.
[21] Sergeant Hillman explained that when he arrived at the scene at 4:04 a.m., he approached the Vehicle and observed PC Van Wyk standing on the passenger side. He overheard PC Van Wyk ask the driver of the Vehicle to step out of the Vehicle and step to the rear of the Vehicle. He then observed PC Van Wyk conduct a pat down search of the accused and locate a plastic bag with cannabis in the accused's left jacket pocket. The bag was tied at the end. The accused appeared to be recording the incident on his cell phone.
[22] Sergeant Hillman next observed PC Van Wyk handcuff the accused to the rear and proceed to complete a more thorough search of the accused. PC Van Wyk then asked Sergeant Hillman to stand with the accused at the rear of the Vehicle while he completed a further search of the Vehicle. The accused proceeded towards the Vehicle to record the search.
[23] PC Van Wyk then placed the accused in handcuffs and told him that he was under arrest. PC Van Wyk confirmed that the accused was not free to leave and was detained for both the speeding investigation and the CCA investigation.
[24] During cross-examination, PC Van Wyk conceded his error that he did not have authority under the CCA to arrest the accused. PC Van Wyk stated that he placed the accused in handcuffs when Sergeant Hillman's police cruiser arrived on the scene. He testified that the reason that he handcuffed the accused was to deescalate the situation given that the accused was argumentative.
[25] When asked what he believed his authority was for handcuffing the accused during the detention, PC Van Wyk responded that he can handcuff anybody once they are detained to ensure their safety, the police's safety and the public's safety. And the basis to do so is common law authority. PC Van Wyk acknowledged during cross-examination that the accused was argumentative because the accused was challenging the basis on which he was stopped initially, and his continued detention.
[26] Finding the bag of cannabis caused PC Van Wyk additional concerns for what other cannabis may be in the Vehicle. The accused stood handcuffed with Sergeant Hillman while PC Van Wyk completed the search. At this stage, the accused was facing potential charges of speeding in a construction zone and possession of cannabis readily available in a vehicle. According to PC Van Wyk, the accused would be facing a traffic ticket, and provincial offences notice and be sent on his way.
[27] PC Van Wyk recalled that he commenced the cannabis search of the Vehicle at 4:09 a.m. The purpose of the search was to search for any other cannabis that is readily available to the driver.
[28] This time is consistent with the dashcam video. At the 4:08 a.m. timestamp, an officer, wearing a medical mask, is seen entering the passenger side of the Vehicle and by the 04:09 timestamp mark, the officer can be seen searching the passenger side of the Vehicle. At the 04:10 time mark, the officer can be seen pushing the passenger seat forward and searching the area behind the passenger seat, including opening a bag and searching the bag. At the 04:11 a.m. mark, the search appears to stop.
[29] PC Van Wyk testified that he located a tin in the interior of the center console that contained two cannabis blunts. He said that he also located a black backpack or bag on the floor behind the passenger seat. According to PC Van Wyk, the bag behind the passenger seat was opened, and a fanny pack was sitting on top.
[30] Sergeant Hillman recalled that while PC Van Wyk was searching the Vehicle, the accused repeatedly said that it was an illegal search and at some points yelled "Help - this is an illegal search." Multiple times, Sergeant Hillman recalled pulling the accused back and holding him to control him. Sergeant Hillman recalled PC Van Wyk emerging from the Vehicle and telling the accused that he was now under arrest for possession of a prohibited device.
[31] At the 4:12 a.m. mark of the dashcam video, there appears to be a scuffle at the rear passenger side of the Vehicle between three figures, with the figures quickly moving off camera.
[32] At the 4:14 a.m. time mark of the dashcam video, two officers can be seen through the back window of the Vehicle walking towards the passenger side of the Vehicle. An officer wearing a surgical mask can then be seen searching the rear passenger seat of the Vehicle, while the other officer flashes his flashlight into the backseat of the Vehicle.
[33] PC Van Wyk testified that at 4:14 p.m., he unzipped the fanny pack and found a prohibited high-capacity magazine which holds 22 rounds of 9-millimetre bullets. When PC Van Wyk found the magazine, he was of the view that he had grounds to arrest the accused for unauthorized possession of a prohibited device.
[34] PC Van Wyk testified that as he was searching the Vehicle, the accused kept coming towards him trying to explain what all the items in the Vehicle were and becoming aggressive when the bag in the rear passenger seat was located. PC Van Wyk acknowledged that the accused was recording the search on his phone, which could explain why the accused was moving towards the Vehicle as the search was being conducted.
[35] After the magazine was located, PC Van Wyk says stopped the search and advised the accused that he would be arrested for possession of a prohibited device. At this point, the accused tried to pull away from PC Van Wyk and Sergeant Hillman, who then pulled the accused into the ditch and held him down until he relaxed. PC Van Wyk recalled that his knee ended up on the accused's back and then near the accused's neck. At this point, the accused said he was done fighting. The two officers then lifted the accused and brought him to PC Van Wyk's police vehicle.
[36] According to the dashcam footage, this scuffle appears to have occurred at 4:12 a.m., not at 4:14 a.m. as PC Van Wyk recalls.
[37] At 4:15 a.m., PC Craig Duncan responded to a request for a third unit at the scene.
[38] At the 4:17 a.m. mark of the dashcam footage, two officers walk back to the police vehicle parked behind the Vehicle.
[39] At the 4:18 a.m. mark, both officers return to the Vehicle, with one officer appearing to do something on the floor of the driver's seat. This officer then moves forward the driver's seat and appears to search the area behind the driver's seat. The other officer can be seen on the passenger side of the Vehicle.
[40] At the 4:20 a.m. timestamp of the dashcam, both officers return to the police vehicle parked behind the Vehicle.
[41] At the 4:21 a.m. timestamp, the two officers again return to the Vehicle. One officer can be seen searching the area behind the passenger seat, while the other officer appears to be searching the driver's side of the Vehicle. At 4:22 a.m., the officers stop their search and close the doors to the Vehicle. They then walk back to the police vehicle.
[42] At 4:24 a.m., PC Van Wyk recalls that he returned to the police vehicle and read the accused his rights to counsel and caution for the offences of possession of a prohibited device and possession contrary to an order. The accused requested to speak with duty counsel.
[43] At the 4:25 a.m. mark on the dashcam footage, an officer can be seen returning to the Vehicle and flashing his flashlight into the Vehicle.
[44] At 4:26 a.m., PC Duncan arrived at the scene to remain with the Vehicle until a tow truck arrived to bring the Vehicle to the detachment.
[45] At 4:30 a.m., PC Van Wyk transported the accused to the detachment. The dashcam footage confirms that the police vehicle left the scene at 4:30 a.m. PC Van Wyk recalled that Sergeant Hillman stayed with the Vehicle until the tow truck arrived. Sergeant Hillman testified that he left the scene when PC Van Wyk and the accused did.
[46] At 4:45 a.m., PC Van Wyk and the accused arrived at the detachment and PC Van Wyk began lodging the accused with the assistance of Sergeant Hillman.
[47] At 4:54 a.m., the tow truck driver arrived at the scene. PC Duncan observed the Vehicle being loaded onto the flatbed of the tow truck. The tow truck driver readied the Vehicle for towing.
[48] At 5:03 a.m., the tow truck and PC Duncan left the scene to travel to the detachment. PC Duncan followed behind the tow truck. At 5:20 a.m., they arrived at the detachment.
[49] The Vehicle was not sealed, and no consideration was given to sealing the Vehicle by any of the officers.
[50] At 5:03 a.m., the accused was lodged into a cell and at 5:06 a.m., PC Van Wyk contacted duty counsel. Duty counsel then spoke with the accused.
[51] Shortly before 6:00 a.m., a request was made that a canine officer attend to assist with the search of the Vehicle.
[52] At 7:15 a.m., the canine and his handler, now Sergeant Milan Matovski, attended at the detachment. The Forensic Identification Officer, PC Erin Babbit, also arrived at the detachment to take photographs of the search and any evidence found. PC Van Wyk provided the grounds for the search incident to arrest to Sergeant Matovski.
[53] At 7:20 a.m., Sergeant Matovski began a hand search of the Vehicle after receiving grounds for the search from PC Van Wyk. Sergeant Matovski's evidence at trial was that it was a search incident to arrest and he did not ask about a warrant.
[54] At 7:40 a.m., he located a black Michael Jordan bag on the ground behind the front passenger seat. The bag contained a loaded 9-millimetre magazine, a small clear bag with a white powder, and another small clear bag with a purple substance. Sergeant Matovski testified that when he located the bag it was closed. He could not remember if he was wearing gloves.
[55] At 7:42 a.m., Sergeant Matovski spoke with PC Van Wyk and asked him to rearrest the accused for possession of the prohibited device and the suspected narcotics.
[56] At 7:48 a.m., Sergeant Matovski began his search of the Vehicle with the canine, Maximus, who is trained to locate firearms, cocaine, crack cocaine, ecstasy and heroine. When Maximus was in the area of the back passenger seat, he displayed a behaviour change that demonstrated to Sergeant Matovski that he located a profiled odour that he is trained to locate.
[57] Sergeant Matovski then investigated the area and lifted back passenger seat cushion, which was held in place with plastic expandable clips. Underneath the seat cushion, Sergeant Matovski located another black Nike bag. Inside the bag was a Glock handgun with a magazine inserted. Sergeant Matovski again could not remember if he was wearing gloves. He testified that the bag with the gun was a tight fit underneath the back seat cushion and there would have been minimal movement or sliding of it.
[58] PC Van Wyk's notes indicate that at 7:42 a.m., PC Van Wyk was advised that Sergeant Matovski located a second 9-millimetre magazine with 10 rounds, a small clear bag of Fentanyl, and a small clear bag of cocaine within the Vehicle. After learning this, PC Van Wyk rearrested the accused for possession of a controlled substance and possession of a prohibited device and read him the caution and rights to counsel. The accused then asked to speak to a lawyer again.
[59] At 7:51 a.m., PC Van Wyk exited the cell block to call duty counsel for the accused and was then advised that Sergeant Matovski located a firearm within the Vehicle. After learning this, PC Van Wyk went into the sally port and observed a Nike fanny pack underneath the rear seat of the Vehicle. The fanny pack contained a Glock 26 Gen 5 9-millimetre pistol with a 15 round magazine inserted in the magazine well.
[60] At 7:55 a.m., PC Babbitt took photographs of the firearm. PC Van Wyk proved the firearm safe, removing the ammunition source from the pistol and clearing the chamber. He observed that there was no round in the chamber, no trigger locks and no barrel plugs. PC Van Wyk also observed that the serial number was scratched off. He was wearing gloves while proving the firearm safe.
[61] At 8:09 a.m., PC Van Wyk entered the cell block and rearrested the accused for unauthorized possession of a firearm in a vehicle, tampering with a serial number, carrying a concealed weapon, weapons dangerous and transport firearms in a careless manner. PC Van Wyk then read the accused his rights to counsel and caution. PC Van Wyk then called duty counsel again for the accused, but duty counsel was not available.
[62] At 8:35 a.m., duty counsel returned the telephone call and spoke with the accused. The call ended at 8:40 a.m.
[63] At 8:48 a.m., PC Van Wyk returned to the sally port where all the items seized in the search were laid out. At 9:05 a.m., PC Van Wyk located a large sum of cash, a clear ziplock with four pills of Oxycodone, a 9-milimetre and a 145-calibre round of ammunition in a zippered compartment of the fanny pack where the gun was found. After finding these items, the accused was charged with possession of a controlled substance for the purpose of trafficking.
[64] At 9:29 a.m., the accused was rearrested on the trafficking charge and asked to speak with counsel again. PC Van Wyk then placed all the seized property in locker number 9.
[65] At the commencement of trial, the Crown withdrew the drug related charges against the accused.
Analysis
[66] There are two issues before me:
(a) Were the items that were the subject matter of the charges seized in circumstances which represent a violation of the accused's Charter rights? If so, should those items be excluded under s. 24(2) of the Charter?
(b) If the answer to (a) is no, then has the Crown established possession of the items that were seized which are the subject matter of the charges?
Charter Analysis
[67] To determine whether the evidence should be excluded pursuant to s. 24(2) of the Charter, I must first determine whether the evidence was obtained in a manner that infringed a right under the Charter. This is a threshold issue. If the threshold is met, the court must go on to consider whether the admission of the evidence would bring the administration of justice into disrepute: R. v. Grant, 2009 SCC 32.
[68] Everyone in Canada has the right to be secure against unreasonable search and seizure: s. 8 of the Charter. Similarly, everyone has a right not to be arbitrarily detained: s. 9 of the Charter. There is no dispute that the police detained the accused and that the police searched the Vehicle and the accused, engaging both ss. 8 and 9 of the Charter.
[69] The defence argues that PC Van Wyk searched the accused's clothing and the Vehicle without the accused's consent, without reasonable grounds to conduct the searches, and without any other lawful authority. In these circumstances, the defence argues that the accused was arbitrarily detained (a violation of his s. 9 right), and the searches were unreasonable (a violation of his s. 8 right). The defence's position is that it would bring the administration of justice into disrepute if the Crown were permitted to tender into evidence the items seized during these unreasonable searches.
[70] The Crown's position is that at most the accused was detained for a brief period, and that the detention was not arbitrary but lawful under both the Highway Traffic Act, R.S.O. 1990, c. H.8 ("HTA") and then under the CCA.
(a) Were the accused's Charter rights violated?
[71] The period at issue begins with the accused's roadside detention. The defence conceded that the initial HTA stop was lawful. There is no issue that there was a stop for alleged speeding contrary to the HTA. Typically, and unlike the present case, the detention is brief for a traffic stop.
[72] The accused has the burden of proof on the Charter application on a balance of probabilities, except for the Crown who bears the burden to justify the CCA search as reasonable on a balance of probabilities because the search of the accused and the Vehicle was warrantless: R. v. Collins, [1987] 1 S.C.R. 265.
[73] If PC Van Wyk had reasonable grounds to believe that open cannabis was contained in the Vehicle, then he had the authority to enter and search the Vehicle and any person found in it under s. 12(3) of the CCA. In these circumstances, there would be no violation of the accused's s. 8 right to be secure against unreasonable search or seizure.
[74] In assessing reasonable grounds for a search, the court must determine whether the officer had subjective reasonable and probable grounds on which to base the search, and whether those grounds were justifiable from an objective point of view: R. v. Fyfe, 2023 ONCA 715 at para. 52, citing R. v. Storrey, [1990] 1 S.C.R. 241, at pp. 250-51.
[75] The Crown argues that under the CCA observing the rolled-up cigarette in plain sight is enough to trigger the additional powers to search the person and vehicle. In addition, PC Van Wyk testified that he smelled the odour of fresh cannabis which further supported the reasonable grounds to believe that there was open cannabis in the Vehicle. In the entire circumstances of this case, I disagree that these are objectively reasonable grounds to search the Vehicle.
[76] Under s. 12(3) of the CCA, an officer is authorized to conduct a warrantless search when the officer has articulable reasonable grounds to believe that cannabis is being stored in contravention of s. 12(1), in each part of the vehicle or on the person of the occupants the officer intends to search. In my view, this means that the police officer must have reasonable grounds to believe that cannabis may be stored in contravention of 12(1) in the place in the vehicle where the police officer intends to search: R. v. Byfield, 2023 ONSC 4308 at paras. 117-118; see also R. v. Sappleton, 2021 ONSC 430, R. v. Marong, 2025 ONSC 3437.
[77] Based on the evidence of PC Van Wyk and Sergeant Hillman, each failed to consider at any point whether a less intrusive search was available or whether a search was necessary at all.
[78] PC Van Wyk was unable to articulate any grounds for why he believed that there was additional cannabis -- in addition to the marijuana plants and the cannabis cigarette -- stored in the Vehicle in contravention of s. 12(1) of the CCA. Throughout his evidence, he simply repeated wording from the statute rather than articulating a factual basis for his belief.
[79] Further, I note that both PC Van Wyk and Sergeant Hillman repeatedly described the accused as being agitated and recalled that the accused declared that his rights were being violated, seemingly as justification for the search and detention. They did not describe him as being under the influence of cannabis or that the accused himself smelled of smoked cannabis.
[80] I acknowledge that police have special training and experience in dealing with cannabis and criminals. But to say that an intrusive search of a person and a vehicle is justified because they appear to be "irate" and "argumentative" about their rights is not reasonable, in my view. Although the dashcam footage did not have audio or show what occurred outside of the Vehicle, based on my review of the footage, I have difficulty describing the accused as agitated or argumentative during the traffic stop.
[81] The Crown relied on a number of authorities in support of its position that the search was reasonable, including: R. v. Grant, 2021 ONCJ 90; R. v. Phillips, 2021 ONSC 5343; R. v. Grant, 2022 ONSC 2703; R. v. F, 2015 ONSC 3068; R. v. Annett, [1984] OJ No 192 (C.A.); R. v. Yaghoubi-Aragh, 2021 ONSC 5060; R. v. Adetula, [2022] OJ No 4077; R. v. Pham, 2012 ONCJ 865. After reviewing these cases, I am left with the view that each case is fact specific and the totality of the circumstances of the specific case must be considered by the court in its determination of whether the officer had reasonable grounds under the CCA.
[82] In all the circumstances of the case before me, I am not persuaded that the smell of the cannabis plants in the trunk and the marijuana cigarette in the console of the Vehicle was enough to justify the search. In my view, in these circumstances, it would have been more appropriate for the accused to have been issued a speeding ticket and a provincial offences notice under the CCA and sent on his way.
[83] The officers did not have reasonable grounds, in my view, to believe that any additional marijuana was stored in the Vehicle in contravention of the CCA. Additional questioning regarding the presence of marijuana and the location and/or manner it was stored could have been a reasonable exercise of police authority. In some cases, questioning of this nature may obviate the need for an extensive search: R. v. Sappleton, 2021 ONSC 430 at para. 64; R. v. Byfield, 2023 ONSC 4308 at para. 117; R. v. Bailey, 2024 ONSC 2136 at para. 87. However, that was not the police approach here. In my view, the search was an unreasonable one and exceeded the permissible scope of the authority granted under s. 12 of the CCA.
[84] As a result, I find that the accused's right against unreasonable search and seizure was breached when the police entered and searched the Vehicle.
[85] Similarly, I find that the police had no right to detain the accused in the factual circumstances of this case, and certainly not handcuff him or arrest him under the CCA.
[86] Police officers do not possess a general power of detention for investigative purposes but may detain individuals when there are reasonable grounds to suspect that they are connected to a crime and that the detention is reasonably necessary: R. v. Bailey, 2024 ONSC 2136 at para. 30. In R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, Iacobucci J. stated at para. 34:
The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer's reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer's duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test.
[87] Based on the timeline of the evidence, the detention appears to last from at least 4:02 a.m. until the magazine is found. In the dashcam videos, the accused is asked to exit the vehicle at 4:05 a.m. and he is handcuffed almost immediately after the pat down search. The accused was told that he was under arrest for an offence that he cannot be arrested for under the CCA.
[88] The Crown argues that the impact of PC Van Wyk's mistake in arresting the accused under the CCA is negligible because the accused was still detained pursuant to the CCA search. Having found that the search was not lawful, in my view, the accused's detention during the search was also not lawful.
[89] The Crown also relies on several decisions where handcuffing has been found to be acceptable if there are objective officer safety concerns, including R. v. Curry, 2013 ONCA 420 and R. v. Clarke, 2024 ONSC 2451. These authorities lead me to conclude that I must determine whether PC Van Wyk's officer safety concerns were objectively reasonable in the factual circumstances of this case. In my view, handcuffing a detainee should not be readily resorted to and must be supported by objective facts.
[90] PC Van Wyk described the accused as argumentative and irate, and that he handcuffed the accused to "deescalate" the situation and ensure that there was no fight and no one got hurt. The evidence of both Sergeant Hillman and PC Van Wyk, however, was that at no point did the accused put his hands on either of them.
[91] I accept that there are safety concerns with any roadside stop, particularly one on the 401 in the middle of the night. But in the present case, the accused was argumentative because he insisted that his rights were being violated. This was the evidence of both PC Van Wyk and Sergeant Hillman. In these circumstances, in my view, it is reasonable to conclude that the officers should have taken more precautions with the accused's rights and had a heightened awareness to any violation of his rights.
[92] I do not, and neither does the defence, say that the officers acted with malice or intention. I accept and it is acknowledged that the situation was dynamic and there are undoubtedly dangers at the roadside of the 401. But the accused here alerted the officers to his view that his rights were being violated. This, in my view, should have created a heightened awareness and increased the effort to protect the accused's rights, while still protecting the public and officer safety.
[93] Sergeant Hillman testified that the accused moved towards the Vehicle and PC Van Wyk during the search of the Vehicle. But Sergeant Hillman also testified that the accused asked if he could record the search on his phone, and that he told the accused that he could if he could get his phone off the trunk of the Vehicle. The accused did retrieve his phone and can be seen in the dashcam video recording -- or attempting to record -- the search by moving closer to the Vehicle several times. The dashcam footage does not support the proposition that the accused was attempting to interfere with the search. I do not accept that there were legitimate officer safety concerns in these circumstances that would justify handcuffing the accused.
[94] I do not accept as objectively reasonable in these circumstances that PC Van Wyk had any officer safety concerns beyond the safety concerns that come with any roadside stop. And those concerns do not justify handcuffing the accused while he was detained during a CCA search. In these circumstances, I find that the accused was arbitrarily detained.
[95] As a result, I find that the accused's right against unreasonable search and seizure was breached when he was detained at the roadside under the CCA.
(b) Should the items seized by the police be excluded as evidence under s. 24(2)?
[96] To determine whether the administration of justice would be brought into disrepute by the admission of the evidence, I must balance the following factors: (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 adjudication on the merits: Grant at para. 71.
[97] The burden is on the accused to show, on a balance of probabilities, that evidence obtained in a manner that breached the Charter should be excluded. Such evidence is not presumptively inadmissible and there is no initial burden on the Crown to prove that it should be admitted: R. v. Collins, [1987] 1 S.C.R. 265 at para. 30.
[98] On (a) seriousness of the infringing conduct, at one end of the spectrum, admission of evidence obtained through inadvertent or technical violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of a Charter right will have a negative effect on public confidence in the rule of law: Grant at paras. 70-74.
[99] I conclude that the Charter infringing conduct in this case was serious. There is more than one Charter violation in this case, and they begin nearly at the outset of the interaction with the accused and continue until after the accused is arrested for unlawful possession of the magazine.
[100] I note that neither PC Van Wyk nor Sergeant Hillman informed the accused about his rights to counsel while he was detained prior to the magazine being found. And then once the accused was arrested for possession of the magazine, it took PC Van Wyk at least 10 minutes to read him his rights to counsel and caution. The explanation offered by PC Van Wyk for why it took him over 10 minutes to read the accused his rights after he arrested him for possession of the prohibited magazine, was that a struggle ensued, and he was busy locating the accused's chain and pendant that had fallen off during the struggle. The dashcam footage, however, shows that PC Van Wyk was back at the Vehicle and searching it two minutes after the struggle, not looking for the accused's chain at the location of the struggle.
[101] Further, both PC Van Wyk and Sergeant Hillman disregarded the accused's pleas that his rights were being violated and instead characterized him as "irate" and "disagreeable," leading him to be placed into handcuffs and grounded by physical force.
[102] The overall unawareness and/or disregard for the accused's Charter rights by police causes me concern. In my view, these additional factual circumstances strengthen this factor, and I find that the infringing conduct was very serious.
[103] On (b) the impact of the breach, the impact may range from fleeting and technical to profoundly intrusive. The more serious the impact of the breach, the greater the risk that admission of the evidence will signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen: Grant at para. 76.
[104] In my view, the impact of the breaches on the Charter protected rights and interests of the accused is significant. These are not merely technical breaches and instead, in my view, the unreasonable search and arbitrary detention of the accused had a significant impact on the liberty, privacy and human dignity interests of the accused.
[105] I highlight again that the accused was characterized as being argumentative and irate when he was pleading with them about his rights being violated. This should have alerted the officers to at least take a step back and consider whether any rights were being infringed. Instead, the Charter violations continued.
[106] On (c) the truth-seeking function of the criminal trial process, the court must consider not only the negative impact of admitting the evidence on the repute of the administration of justice, but also the negative impact of failing to admit the evidence: Grant at para. 79.
[107] The defence conceded this factor weighs in favour of admitting the evidence. And I agree.
[108] It is undisputed that the exclusion of relevant and reliable evidence, like firearms and drugs, may harm both the community and the reputation of the administration of justice: R. v. Reid, 2019 ONCA 32 at para. 67.
[109] After considering these three factors, I must determine whether, on balance, the admission of the evidence would bring the administration of justice into disrepute. No overarching rule governs how the balance is to be struck, and mathematical precision is not possible: Grant at paras. 85-86.
[110] The fact the evidence may facilitate the discovery of truth must be balanced against the factors weighing towards exclusion. The court must ask whether the vindication of the Charter right through the exclusion of evidence exacts too great a toll on the truth-seeking function of the trial: Grant at para. 82.
[111] I must weigh and balance all three factors. When I consider the length of time that the accused was detained improperly and arbitrarily, and the unreasonable search, in my view, the first two factors outweigh the third. In these circumstances, in my view, the only just result is to exclude the evidence.
[112] While I acknowledge the seriousness of gun crimes and the negative impacts that they have on society, the law cannot be that any time a gun is found during an illegal search or arbitrary detention that the balancing analysis under s. 24(2) automatically tips the scale to permitting its use in evidence. I agree with the comments of de Sa J. in Sappleton at para. 76:
To permit the third branch to be used as a means to routinely excuse serious Charter violations would inevitably undermine the significance of Charter rights altogether. The courts cannot condone serious Charter violations by always giving undue weight to the seriousness of the charges in the analysis. It is the long-term repute of the administration of justice which must always be considered. As explained in Grant at para. 84:
The short-term public clamour for a conviction in a particular case must not deafen the s.24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.
[113] Notwithstanding the seriousness of the matter and the interests of our society to have this matter adjudicated, in my view, considering the factual circumstances of this case, allowing the evidence would cause more harm to the administration of justice, and its reputation, than the exclusion of the evidence. In these circumstances, I conclude that the admission of the firearm, magazines and other items would bring the administration of justice into disrepute.
Conclusion
[114] The application is granted, and the evidence is excluded pursuant to s. 24(2) of the Charter.
[115] I am also not satisfied beyond a reasonable doubt, based on the totality of the evidence, that the accused resisted arrest (count #4) or defaced the serial number on the firearm (Count #14).
Jacqueline A. Horvat Justice
Released Orally: September 24, 2025