Reasons on Charter Application

Introduction

Court File No.: CR-24-3782
Date: 2025-01-06
Court: Superior Court of Justice – Ontario
Parties: His Majesty The King (Respondent) and Jonathan Cumming and Lenore Westendorp (Applicants)
Before: Spencer Nicholson
Counsel:

• A. Posliff for the Crown, Respondent
• K. Marley for J. Cumming, Applicant
• M. Nabbout for L. Westendorp, Applicant
  Heard: October 22 and 23, 2024

Background

[1] Jonathan Cumming and Lenore Westendorp face an eight-count indictment arising out of a routine traffic stop that occurred on January 23, 2024. They were both originally charged with trafficking fentanyl, cocaine, methamphetamine, and oxycodone. Mr. Cumming is also charged with possessing a conductive energy weapon without being the holder of a license permitting that possession and breaching an order prohibiting him from possessing such a weapon.

[2] At the outset of trial, I was informed that Mr. Cumming would plead guilty to possessing the conductive energy weapon and possessing said weapon while prohibited by order from doing so. Counts 7 and 8 were to be withdrawn. Counts 1 and 4, relating to fentanyl and oxycodone, were amended by the Crown to charge Mr. Cumming and Ms. Westendorp with simple possession rather than possession for the purpose of trafficking.

[3] A blended trial was conducted. I heard the evidence of the police officers that were at the scene, and an officer called as an expert with respect to the indicia of trafficking. Neither of the applicants led any evidence. It was agreed that I would render a decision with respect to the alleged Charter breaches and we would then reconvene to determine what further steps might be necessary.

[4] These Reasons only address the alleged Charter breaches.

Factual Narrative

[5] The facts are non-contentious except for what information the police imparted to Ms. Westendorp about the “consent search”.

[6] Mr. Cumming was driving a vehicle owned by Ms. Westendorp on January 23, 2024, in the City of Chatham. Ms. Westendorp was seated in the front passenger seat. Mr. Cumming was observed by Constable Jason Hamm and Constable Garth Reid at approximately 11:28 pm failing to come to a complete stop for a stop sign. The police officers activated their lights and Mr. Cumming was subsequently pulled over.

[7] I note that the police officers were driving an unmarked vehicle but were wearing their full uniforms.

[8] Prior to pulling the vehicle over, the police ascertained on their mobile computer that the registered owner of the vehicle was Ms. Westendorp. Once the vehicle had pulled over, one officer went to the driver’s side and one officer went to the passenger side. Mr. Cumming, as the driver, was advised of the reason why he was pulled over and asked to produce his license, ownership, and insurance documentation. Mr. Cumming advised Constable Reid that he did not have his driver’s license with him but provided his name and date of birth. Ms. Westendorp identified herself and that she was the owner of the vehicle. One of the officers recognized Mr. Cumming. The police officers were notified through dispatch that Mr. Cumming’s driver’s license had been suspended. He was arrested for operating a motor vehicle with a suspended license at 11:32pm by Constable Reid.

[9] Mr. Cumming was advised to exit the vehicle. He was taken to the rear of the vehicle and handcuffed. He was searched by Constable Reid incident to arrest and for officer safety. He was in possession of a cellphone and approximately $2500 in bundles of cash. He also had a flashlight that had electrical prongs on it that could be used to create a shock. Mr. Cumming was placed in the police vehicle. Constable Reid was also in the cruiser. He testified that he was processing a Provincial Court summons for suspended driver, so that he could release Mr. Cumming.

[10] Meanwhile, Ms. Westendorp remained seated in the passenger seat in her vehicle. Ms. Westendorp conveyed that she believed that Mr. Cumming was properly licensed. She also advised that she was sick and did not feel well enough to drive. According to Constable Hamm, he encouraged her to call a licensed driver to come pick her up. He understood that she called her brother and texted someone, but no one arrived. The police testified that she was free to go. However, Constable Hamm also testified that he did not specifically tell her that she was free to leave.

[11] Constable Hamm, although acknowledging that he had no reasonable grounds to search the vehicle, asked Ms. Westendorp if she would consent to a search of the trunk. He testified that nothing prompted his request to conduct a search. He testified that he told her that she did not have to allow them to search, she could stop the search at any time or change her mind. He also testified that he told her that she could be charged if the search resulted in the discovery of anything illegal. According to Constable Hamm, Ms. Westendorp replied, “No problem” and then reached over the centre console and pressed a button to the left of the steering wheel which popped open the trunk.

[12] At 11:32 pm, a third police officer, Constable Andrew Craven, arrived at the scene in a marked cruiser. Ms. Westendorp had exited the vehicle and was standing near the trunk with Constable Craven nearby. Constable Hamm searched the trunk, and nothing was found.

[13] Constable Hamm testified that he asked Ms. Westendorp if the police could search the rear seat area of her vehicle. Again, he says that she agreed and stood nearby while the police searched the rear passenger seat area. Again, nothing was found.

[14] When the police officers completed the search of the rear seat, Ms. Westendorp got back into the vehicle in the passenger seat. Constable Hamm asked her if she had had any luck getting hold of someone to give her a ride home. Constable Hamm then noticed Ms. Westendorp bend down and move her foot and hand to adjust something under her seat. She was asked if there was something under the seat and she stated, “maybe”. The officer asked if he could search under the seat. Constable Hamm testified that he gave her the same “consent search” warnings. According to Constable Hamm, she agreed with his request, stood up and got out of the passenger seat. Constable Craven was nearby.

[15] This time, Constable Hamm found a green cloth fanny pack with two pockets. Inside there were several plastic bags tied together containing fentanyl, methamphetamine, oxycodone, and cocaine.

[16] At 12:02 am, Ms. Westendorp was arrested in relation to possession for the purpose of trafficking the narcotics by Constable Hamm. She was read her rights to counsel and a caution at 12:04 am. She asked him to repeat what he said, which he did. She indicated that she understood and that she wished to speak with a lawyer. At 12:10 am, she was handed over to another officer and she was transported to the police station.

[17] Mr. Cumming was arrested by Constable Reid at 12:03 am. Constable Reid cautioned him again and read him his rights to counsel again because his legal jeopardy had changed. Mr. Cumming indicated that he understood and asked to speak with his lawyer. He was transported to the police station at 12:12 am, arriving at 12:15 am. He was processed and a strip search was conducted. He was put in contact with a lawyer.

[18] On cross-examination, Constable Hamm testified that he never mentioned anything to Ms. Westendorp about obtaining a warrant. He agreed that there was no justification to hold the car while they obtained a warrant. He also testified that he did not believe that they would be successful in obtaining a warrant. He agreed that Mr. Cumming was not present when he asked Ms. Westendorp to conduct the consent search. He did not ask Mr. Cumming for his consent because he was not the owner of the vehicle.

[19] Constable Hamm also testified that he did have a consent search form available to him in the police vehicle but did not have Ms. Westendorp sign one. His notes and will-say statement simply indicate that he conducted a “consent search” without specifying what he said to her. Constable Hamm testified that when he writes “consent search” in his notes, it means he has provided all the requisite information to satisfy the requirements for a consent search. He would have told her that if there was anything illegal discovered, she could be charged and held responsible. She appeared to understand. He did not tell her what they were searching for.

[20] Constable Craven confirmed that Constable Hamm asked Ms. Westendorp for permission to search her vehicle and that she could stop the search. On two occasions, he told her she had the right to say “no” and warned her that she could be charged if they found anything. She appeared to understand.

The Charter Challenges

[21] Both Ms. Westendorp and Mr. Cumming have brought Charter applications seeking to exclude the drugs found by the police officers pursuant to s. 24(2).

[22] Ms. Westendorp seeks to exclude the drugs found in the green fanny pack on the basis that the police violated her s. 8, 9, 10(a) and (b) Charter rights.

[23] Mr. Cumming seeks to exclude the drugs found in the green fanny pack on the basis that the police violated his s. 8 Charter rights.

[24] At my initiation, I inquired of counsel whether the court was to examine whether the search of the vehicle violated s. 8 and whether the search of the green fanny pack violated s. 8. All counsel advised me that the analysis should focus on the search of the vehicle only. Despite my misgivings, I have proceeded on that basis.

[25] I should also note that Mr. Cumming does not raise any Charter issues with respect to the strip search.

Credibility of the Police Officers

[26] The Crown presented the testimony of Constables Hamm, Craven and Reid on the voir dire.

[27] There were minor inconsistencies in their evidence. However, those inconsistencies do not go to material issues and, in my view, are because of the passage of time. For example, Constable Hamm indicated that he went to the passenger side of the subject vehicle and Constable Reid went to the driver’s side. Constable Reid testified that they were both at the driver’s side of the vehicle. Constable Reid indicated that he placed the items found in the search of Mr. Cumming in the cruiser, while Constable Hamm indicated that he was handed those items temporarily by Constable Reid.

[28] I had no concerns with the credibility of any of the officers. They gave their evidence in a straightforward manner. It was my view that they were attempting to be truthful and accurate. There was no evasiveness or sparring on cross-examination. Constable Reid even noted where he believed that he had made some minor errors, volunteering that he ought to have done some things differently.

[29] Unless where stated below, I accept the evidence of the police officers as being factually accurate.

Relevant Sections of the Charter

[30] Section 24(2) of the Charter provides that where a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[31] A claim for relief under s. 24(2) can only be made by the person whose Charter rights have been infringed (see: R. v. Edwards at para. 45).

[32] Section 8 of the Charter provides as follows:

8. Everyone has the right to be secure against unreasonable search or seizure.

[33] The principal purpose of s. 8 is the protection of privacy or an individual’s right to be left alone (see: R. v. Edwards, supra, at para. 67; R. v. Bykovets, 2024 SCC 6, at para. 29).

[34] Section 9 of the Charter guarantees the right to be free from arbitrary detention.

[35] In R. v. Le, 2019 SCC 34, it was described that “detention” refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Whether there has been a psychological detention is to be determined objectively, having regard to all the circumstances. The onus is upon the applicant to demonstrate that she has been effectively deprived of her liberty to choose whether to stay or leave. Although the test is objective, the circumstances and perceptions of Ms. Westendorp are a relevant consideration.

[36] In R. v. Grant, 2009 SCC 32, at paras. 30-31, it was described that a psychological detention by the police can arise in two ways:

1. the claimant is “legally required to comply with a direction or demand” by the police; or
2. a claimant is not under a legal obligation to comply with a direction or demand, “but a reasonable person in the subject’s position would feel so obligated” and would “conclude that he or she was not free to go”.

[37] Section 10(a) of the Charter obligates the police to promptly inform a person upon being detained the reason why they are being detained or arrested. Section 10(b) ensures that the person is advised of and given the opportunity to retain and instruct counsel without delay upon being detained.

Legal Analysis

Section 9

[38] In the context of roadside stops, the Supreme Court of Canada recognized in R. v. Nolet, 2010 SCC 24 that the police are confronted with a fluid and dynamic situation. The court must proceed step by step through the interactions of the police and the accused from the initial stop onwards to determine whether, as the situation developed, the police stayed within their authority, having regard to the information lawfully obtained at each stage of their inquiry.

[39] The evidence of Constables Hamm and Constable Reid establish, and I find, that the police were justified in pulling over the applicants’ motor vehicle upon observing the vehicle fail to come to a complete stop. The detention at that juncture was not arbitrary (see: R. v. Harris, 2007 ONCA 574, at para. 23). Rather, the detention of the vehicle was authorized by the Highway Traffic Act.

[40] In Harris, supra, it was held that the detention of a passenger during a lawful traffic investigation is not arbitrary. Here, Ms. Westendorp’s detention was a necessary by-product of the police officers exercising their authority to detain the vehicle for the HTA violation.

[41] Furthermore, upon discovering that Mr. Cumming was operating a motor vehicle without a valid driver’s license, the police were justified in arresting him for that offence. While handcuffing him may not have been necessary, no issue is raised about the handcuffs. The police were entitled to perform a search incident to arrest, and I accept that such a search would be necessary as Constable Reid testified, to locate a driver’s license that Mr. Cumming may not have wanted to produce. The search that was conducted was also a permissible safety search.

[42] The s. 9 Charter issue is whether Ms. Westendorp was arbitrarily detained by the police at the scene while they were dealing with Mr. Cumming and during the consent search. This involves an examination of the second situation mentioned in Grant, supra, where “a claimant is not under a legal obligation to comply with a direction or demand, ‘but a reasonable person in the subject’s position would feel so obligated’ and would ‘conclude that he or she was not free to go’”.

[43] This must be considered objectively, although Ms. Westendorp’s subjective perceptions are relevant.

[44] I note that the police used their flashing lights to signal to Mr. Cumming to pull over. However, as noted, at that stage the detention was not arbitrary. I do not see the use of flashing lights as a major consideration in this case. I note that Constable Reid pulled in behind the applicants’ vehicle, so it was not blocked in.

[45] I consider that the three officers were in full police uniform. A police uniform cloaks a police officer with authority, which depending upon the circumstances can signal to a person that they are not free to leave. On the other hand, it is important that police officers are identifiable during a traffic stop, particularly where they are driving an unmarked vehicle. I do not see the fact that the officers were uniformed to be a major factor in this case.

[46] It was the middle of the night, and there is some suggestion that the weather was wet. That would act as a deterrent to Ms. Westendorp leaving the scene on foot. However, importantly, the police officers allowed her to use her cellphone to call and text for a ride. They allowed her to move about freely at the scene, as evidenced by her exiting and entering the vehicle at will. She stood near the officers while they conducted the search. I heard no evidence that the officers dispossessed her of her keys or told her that she could not leave. True, Constable Hamm agreed that he did not tell her specifically that she was free to leave. However, by suggesting that she call for a ride, I find that the police made it clear to Ms. Westendorp that she was free to leave the scene if she wished.

[47] Additionally, Ms. Westendorp was able to observe the police remove Mr. Cumming from the vehicle, handcuff him and place him in their cruiser. It would have been abundantly clear to Ms. Westendorp that she was not in the same position as Mr. Cumming. However, I have also considered that seeing Mr. Cumming handcuffed and placed in a cruiser for what Ms. Westendorp may have thought was a simple traffic violation could also have been intimidating for her.

[48] In Le and in Grant, the Court indicated that in assessing a claimant’s subjective perspective, it is permissible to consider the claimant’s race and whether that impacts their perception of being detained. Ms. Westendorp is 62 years old and a white woman. She led no evidence that would cause me to find that subjectively she would feel psychologically detained in the circumstances. It is difficult to infer adverse social context evidence in respect of Ms. Westendorp.

[49] Lastly, I have considered whether being questioned by the police about a consent search would give Ms. Westendorp the impression that she was not free to leave. Being asked questions by the police can be a daunting experience. I note that I have no evidence about any previous experiences that Ms. Westendorp has had with the police. I also have no specific evidence from Ms. Westendorp about her subjective perceptions in being questioned by the police. I do accept the evidence of Constables Hamm and Craven that Ms. Westendorp was told that she did not have to comply with their request.

[50] In my view, although it is a close call, Ms. Westendorp has failed to establish that the police officers breached her s. 9 right not to be arbitrarily detained. I do not find that she was psychologically detained such that she would feel that she had no choice but to remain at the scene.

[51] Given that she was not detained at that time, the police were under no obligation to provide her with s. 10(a) and (b) informational or implementational rights. I find that there was no s. 10(a) or (b) breaches either.

Section 8: Reasonable Expectation of Privacy

[52] In order to assert a violation of the right to be secure against unreasonable search or seizure, an applicant must establish that they have a reasonable expectation of privacy in the place searched. The applicant bears the onus. A reasonable expectation of privacy depends upon the totality of the circumstances (see: R. v. Edwards, supra).

[53] In Edwards, the Supreme Court identified the following factors to be considered in assessing the totality of the circumstances:

• presence at the time of the search;
• possession or control of the property or place searched;
• ownership of the property or place;
• historical use of the property or item;
• the ability to regulate access, including the right to admit or exclude others from the place;
• the existence of a subjective expectation of privacy; and
• the objective reasonableness of the expectation.

[54] In R. v. Belnavis, the Edwards factors were applied, and it was held that a passenger in a motor vehicle had no reasonable expectation of privacy in a motor vehicle that she did not own. The driver of the vehicle did have a reasonable, although reduced, expectation of privacy, because she was in possession and control of the vehicle with the owner’s consent.

[55] In R. v. Balendra, 2019 ONCA 68, an accused argued that he had a reasonable expectation of privacy in a stolen van that he was operating because he had “care and control” of the van. Of note, the accused was driving with a suspended driver’s license. The trial judge, Healey J., at para. 45, stated as follows:

[45] Applying the Edwards framework to the facts surrounding the vehicle in this case, the applicant cannot establish that he had a reasonable expectation of privacy in relation to that location. Of central importance to this case, the applicant’s suspended status as a driver means that he can have no expectation of privacy in respect of a vehicle that he is without lawful status to be operating. What he can expect, in fact, is that on discovery of his presence in and operation of a vehicle, he will be immediately stopped from having any possession of or control over that vehicle in accordance with the provisions of the Highway Traffic Act. His control is fleeting at best. The fact that he holds the keys does not cloak him with the authority to control who enters or uses that vehicle. Even more significantly, the evidence establishes that the applicant was not the owner of the vehicle. …

[56] The Ontario Court of Appeal dismissed Balendra’s appeal, holding that the trial judge had correctly determined that the appellant lacked a reasonable expectation of privacy in the stolen van.

[57] In R. v. Greer, 2020 ONCA 795, the appellant was a passenger in a vehicle pulled over for a traffic stop. The owner of the vehicle allegedly consented to a search of the vehicle and the appellant sought to exclude the fruits of the search from trial. The trial judge held that he had no standing to do so. The Court of Appeal agreed. In applying the Edwards factors, the Court described that because Mr. Greer did not own the vehicle, he had no legal authority to regulate access to the vehicle.

[58] In respect of Ms. Westendorp, she clearly had a reasonable expectation of privacy. This was conceded by the Crown. She was the legal owner of the vehicle. She was present at the time of the search. I am prepared to assume that she had historical use of her vehicle. She clearly had the ability to regulate access to the vehicle. Her expectation of privacy may have been reduced simply because it was a vehicle that is susceptible to HTA stops, but that expectation of privacy clearly existed.

[59] Mr. Cumming’s situation falls somewhere in between Belnavis and Balendra. As noted in Belnavis, the driver of a vehicle in possession of the vehicle with the consent of the owner has a reasonable expectation of privacy. I find that Mr. Cumming had the consent of Ms. Westendorp to operate her vehicle that night. In Balendra, the vehicle in question was stolen. Therefore, there would be no consent of the owner. However, I am persuaded that the suspension of Mr. Cumming’s vehicle is the distinguishing feature between this case and Belnavis. I agree with Healey J. that a suspended driver, such as Mr. Cumming, does not have a reasonable expectation of privacy because he was not an authorized driver in Ontario. I accept that it is conceivable that a suspended driver may be able to establish a justification for not knowing his license was suspended, for example. However, no reasonable explanation was proffered by Mr. Cumming to explain the reason for his license suspension.

[60] In applying the Edwards factors, I find that Mr. Cumming was present at the time of the search. He also had some control of the vehicle, as its driver, although Ms. Westendorp’s presence in the vehicle also means that she had not relinquished total control of the vehicle to him. Mr. Cumming was not the owner, nor is there any evidence of any historical connection between him and the vehicle. In fact, I have no real evidence with respect to the relationship between Mr. Cumming and Ms. Westendorp, although he apparently told the police that he was friends with her brother. In my opinion, Mr. Cumming did not have the ability to regulate access to the vehicle, or to admit or exclude others from the vehicle.

[61] I pause to consider that in Edwards, the issue was whether the accused had a reasonable expectation of privacy in the apartment of his girlfriend. Mr. Edwards, in my view, had a stronger claim to an expectation of privacy in the apartment than Mr. Cumming does in respect of Ms. Westendorp’s vehicle. Mr. Edwards had keys to the apartment and kept some belongings there. He was an “especially privileged guest”. On the evidence before me, Mr. Cumming does not have as strong a claim as Mr. Edwards.

[62] I have considered the “Crown’s theory”. In R. v. Jones, 2017 SCC 60, the Supreme Court of Canada held that for the purposes of a s. 8 claim, a defendant may rely on the Crown’s theory of the case and may ask the court to assume as true any fact alleged or to be alleged in the prosecution against him.

[63] However, cases decided after Jones have clarified that even though a defendant may rely on the Crown’s theory to establish a reasonable expectation of privacy, the court must still examine the objective evidentiary basis for the Crown’s theory to determine whether such an interest has been established (see: R. v. Labelle, 2019 ONCA 557 at para. 31; R. v. Greer, supra, at para. 85; R. v. Mawick, 2021 ONCA 177 at para. 44).

[64] I do not find that the Crown’s theory assists Mr. Cumming in the totality of the circumstances. The Crown’s theory alone is not sufficient to gain standing. Their theory is not that Mr. Cumming owned the vehicle, but that the contents in the green fanny pack were his. As noted, I have not been asked to determine whether the search and seizure of the fanny pack were reasonable.

[65] In all the circumstances, I find that Mr. Cumming had no reasonable expectation of privacy and thus no standing to apply under sections 8 and 24(2) to exclude the evidence found during the police search. Accordingly, Mr. Cumming’s s. 8 Charter rights have not been infringed.

The Consent Search

[66] R. v. Mellenthin involved a legitimate traffic stop by the police. The traffic stop was arbitrary (it was a random stop), but constitutional. The police officer used the opportunity to question the driver about the contents of a bag sitting in the back of the vehicle. Cory J. held that the officer had no lawful authority under the guise of a safety check to question the driver about the contents of the bag, or to physically seize the bag from the driver. The improper questioning about the bag constituted the beginning of an unreasonable search.

[67] In Mellenthin, the Court left open the possibility of a person consenting such that an unreasonable search would become reasonable. Cory J. stated as follows:

“It is true that a person who is detained can still consent to answer police questions. However, that consent must be one that is informed and given at a time when the individual is fully aware of his or her rights. …”

[68] In R. v. Therens, at p. 644, LeDain J., stated as follows:

In my opinion, it is not realistic, as a general rule, to regard compliance with a demand or direction by a police officer as truly voluntary, in the sense that the citizen feels that he or she has the choice to obey or not, even where there is in fact a lack of statutory or common law authority for the demand or direction and therefore an absence of criminal liability for failure to comply with it. Most citizens are not aware of the precise legal limits of police authority. Rather than risk the application of physical force or prosecution for wilful obstruction, the reasonable person is likely to err on the side of caution, assume lawful authority and comply with the demand. The element of psychological compulsion, in the form of a reasonable perception of suspension of freedom of choice, is enough to make the restraint of liberty involuntary. Detention may be effected without the application or threat of application of physical restraint if the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist.

[69] Although I have found that Ms. Westendorp was not arbitrarily detained, I have considered the words of LeDain in the context of s. 8.

[70] In R. v. Mann, 2004 SCC 52, investigative detentions must be premised on reasonable grounds to suspect.

[34] The detention must be viewed as reasonably necessary on an objective view 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 the interference. …

[71] Here, Constable Hamm could articulate no grounds for asking Ms. Westendorp if he could conduct a consent search. He freely admitted during his evidence that he had no basis to request to search Ms. Westendorp’s vehicle. He admitted that if he needed to get a search warrant, it was unlikely that he would establish the necessary grounds to obtain one.

[72] In my view, it is very troubling that the police officers asked to conduct a “consent search” in circumstances where they had no basis for a request. As noted in Therens, there is a risk that the average citizen does not appreciate, despite a police warning as provided, that they did not have to comply with the request. In a free and democratic society, searches, even under the guise of a consent search, should not be permitted merely on the whim of the police.

[73] The Ontario Court of Appeal, in R. v. Wills, set out the legal test to determine whether a person has consented to an otherwise unauthorized search by a person in a position of authority. The onus is upon the Crown to prove that there was a valid waiver. The following must be established:

1. there was a consent, express or implied;
2. the giver of the consent had the authority to give the consent in question;
3. the consent was voluntary and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested;
4. the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent;
5. the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested; and
6. the giver of the consent was aware of the potential consequences of giving the consent.

[74] In Wills, Doherty J.A. explained that the person asked for his or her consent must appreciate in a general way what his or her position is vis-à-vis the ongoing police investigation. Is the person an accused, a suspect, or a target of the investigation, or merely regarded as an “innocent bystander”?

[75] The defence argues that I should be suspicious that Constable Hamm actually provided the warnings as he testified to. His duty book notes and will-say statement only contain the notation “consent search”. He did not write down the specific statements or questions he posed to Ms. Westendorp, or her responses. The Chatham Police Services apparently has a consent search form which should be available to present to a person for a search. Although no cases were presented for my consideration that indicate that the use of those forms is mandatory, they certainly provide an evidentiary foundation to assist the Crown in establishing that the waiver of the accused was fully informed.

[76] However, I accept Constable Hamm’s evidence that he told Ms. Westendorp the following:

1. that she did not have to comply with his request for a search;
2. she could stop the search at any time if she changed her mind; and
3. she could be charged if the police discovered any illegal items.

[77] I accept that he told her these things before searching the trunk and before searching under the passenger seat. Furthermore, I accept that Ms. Westendorp voiced some level of agreement, including reaching over to pop open the trunk.

[78] Nonetheless, I am not satisfied that a fully informed and voluntary consent search was made out in the circumstances of this case.

[79] Despite being advised that she could be arrested if anything illegal was located during the search, I find that Constable Hamm’s comments to Ms. Westendorp failed to impart the critical information as to whether she was a target of the investigation, an accused, a suspect, or merely an innocent bystander.

[80] The police did not even identify what they were looking for, probably because they could not articulate what they were looking for. I note that although the police recognized Mr. Cumming, no one pressed any of the police officers on whether this prompted them to search for drugs. I therefore express no opinion on the presence or absence of that motive. However, it is my view that for Ms. Westendorp to be fully informed of the important rights she was waiving, she was entitled to know what it was the officers were looking for. “Illegal things” does not suffice, in my opinion.

[81] Thus, while I accept that Ms. Westendorp did expressly consent, had the requisite authority to consent and was advised of her right to refuse, I am not satisfied that the Crown has established the other factors to be considered in Wills.

[82] In my view, the Crown has failed to establish that Ms. Westendorp’s consent was not the product of police coercion. She was alone in her vehicle, with her driving companion in handcuffs in the back of a police cruiser, in the middle of the night. I recognize that I do not have any evidence from Ms. Westendorp, but I remain unconvinced that there would not be a feeling of compulsion on her part.

[83] Again, the police did not tell her what they were looking for and she could not assess whether she was a target, suspect or innocent bystander. The Crown argues that Ms. Westendorp was an innocent bystander, not a suspect, accused or target. However, that is an oversimplification as she was ultimately charged. The failure to make it clear that Ms. Westendorp was, in fact, a suspect or target, vitiates considerably the impact of being told that she could be arrested if something was found. Additionally, the failure to tell her what was being searched for did not allow her to fully appreciate the nature of the conduct the police were asking her to permit.

[84] Finally, I am not satisfied that it is enough to tell a person that they do not have to comply or can ask to stop if they change their mind to establish voluntary waiver of a Charter right. The officers did not tell her that they could not perform a search without a warrant if she did not consent. They did not tell her that it was unlikely that they could get a warrant. Accordingly, Ms. Westendorp could not weigh the competing options that she had before she agreed to the search. She was not fully informed. Had she appreciated that the police did not have any authority to search her vehicle, I do not believe she would have consented. There was no benefit to her in doing so.

[85] Charter rights are fundamental rights. There is accordingly a stringent waiver test to meet for the Crown to establish that an accused person waived those rights with full knowledge of the existence of her rights and an appreciation of the consequences of waiving those rights. The Crown has not met its onus of establishing that Ms. Westendorp gave a valid waiver of her rights and consent to search her vehicle.

[86] Given that Ms. Westendorp had a reasonable expectation of privacy in her vehicle, that there was no articulable basis whatsoever for the police search, and there was no valid waiver of Ms. Westendorp’s s. 8 Charter rights, I find a breach of her s. 8 right.

Section 24(2) Analysis

[87] Upon determining that a claimant’s Charter rights have been violated, the court must assess whether nonetheless admitting the evidence at trial would bring the administration of justice into disrepute. The onus is upon the applicant.

[88] The “obtained in a manner” threshold in this case is easily met as the controlled substances would not have been discovered absent the unreasonable search of Ms. Westendorp’s vehicle.

[89] In R. v. Grant, 2009 SCC 32, the Supreme Court of Canada stated that the purpose of s.24(2) is to “maintain the good repute of the administration of justice”. The question is whether a reasonable person informed of all the relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

[90] The Grant analysis is a three-part test. First, the court must assess the seriousness of the Charter-infringing state conduct. Secondly, the court must assess the impact of the breach on the Charter protected interests of the accused. Thirdly, the court must consider society’s interest in the adjudication of the case on its merits.

[91] Often, the court will conduct a s. 24(2) analysis even though no Charter violations were found just in case an appellate court determines that there has been an error. Given my determination with respect to the evidence vis-à-vis Ms. Westendorp, it is unnecessary to conduct the s. 24(2) analysis as if I had erred with respect to the alleged s. 9 and 10 Charter breaches.

Seriousness of the Breaches

[92] This factor focuses on the seriousness of the breach with a view to preserving and encouraging public confidence in the courts. There is a spectrum of state misconduct running from inadvertent, technical errors to wilful or flagrant disregard for individual rights and interests. The court must not condone significant state misconduct. The more serious or deliberate the breach, the greater the need for the courts to dissociate itself from the misconduct to preserve confidence in the justice system and the rule of law (Grant, supra, at paras 72-75).

[93] At the outset, I reiterate that the three police officers who testified about their interactions at the scene of the traffic stop were credible witnesses. I find that they were acting conscientiously at the scene and were not acting in total disregard of the rights of either Mr. Cumming or Ms. Westendorp.

[94] To the contrary, I find that Constable Hamm honestly believed that he had provided Ms. Westendorp with the necessary information to conduct a consent search, and honestly believed that Ms. Westendorp consented to the search that was ultimately conducted. I accept that he repeated his consent search statements to her twice, once before she popped open the trunk and once before he searched under the passenger seat. This was not a flagrant disregard by any of the officers of the applicants’ Charter rights.

[95] With that said, there is a very stringent test that must be applied whenever a person who is the accused, a suspect or a target of an investigation is asked to waive their right to be free from an unreasonable search and seizure. In my view, mechanically providing the three statements by rote to Ms. Westendorp regarding a consent search does not adequately ensure that a person in her position would fully appreciate the consequences of providing, or not providing, consent.

[96] My determination does not turn on the police officers’ failure to rely on the consent to search form. I agree whether there is a valid consent to search does not depend solely upon the utilization or reference to this form. In R. v. Bergauer-Free, 2009 ONCA 610, the use of a consent to search form caused more confusion. What matters is that the police carefully and unambiguously impart all the necessary information to the person from whom consent is being sought to ensure that the decision to consent is truly informed and voluntary.

[97] This is particularly true when there was absolutely no articulable basis for searching Ms. Westendorp‘s vehicle. This was a routine traffic stop in relation to running a stop sign. The traffic violation itself was that Mr. Cumming made a rolling stop, not that he sped through the intersection. I accept that the investigation morphed into an arrest for a suspended driver. However, there was simply no reason for a follow up search of the vehicle.

[98] In a free and democratic society, Ms. Westendorp had the right to be left alone. In my view, it is a serious breach of a person’s s. 8 Charter rights for the police to even ask, for no apparent reason, during a routine traffic stop to search a vehicle. Ms. Westendorp never should have been put in the position to assess whether she should or should not consent to the search that was undertaken.

[99] In R. v. Harris, supra, at para. 63, Doherty J.A. stated as follows:

[63] The third factor to be considered is the nature of the breach viewed from the perspective of those whose rights were infringed. I cannot accept the Crown’s characterization of this breach as “minimally intrusive”. The use of the broad powers associated with Highway Traffic Act stops to routinely investigate passengers who have nothing to do with the concerns justifying those stops must have a significant cumulative, long-term, negative impact on the personal freedom enjoyed by those who find themselves subject to this kind of police conduct. …

[100] In Mellenthin, Cory J. stated as follows:

…To search a person who is stopped at a check stop, without any reasonable or probable cause, goes far beyond the purpose and aim of those stops and constitutes a very serious Charter breach. As noted earlier, check stops infringe the Charter rights against arbitrary detention. They are permitted as means designed to meet the pressing need to prevent the needless death and injury resulting from the dangerous operation of motor vehicles. The rights granted to police to conduct check stop programs or random stops of motorists should not be extended. This indeed was emphasized in R. v. Ladouceur, supra, where the following appears in the reasons of the majority at p. 1287:

Finally, it must be shown that the routine check does not so severely trench upon the s. 9 right so as to outweigh the legislative objective. The concern at this stage is the perceived potential for abuse of this power by law enforcement officials. In my opinion, these fears are unfounded. There are mechanisms already in place which prevent abuse. Officers can stop persons only for legal reasons. In this case related to driving a car such as checking the driver’s license and insurance, the sobriety of the driver and the mechanical fitness of the vehicle. Once stopped the only questions that may justifiably be asked are those related to driving offences. Any further, more intrusive procedures could only be undertaken based upon reasonable and probable grounds. Where a stop is found to be unlawful, the evidence from the stop could well be excluded under s. 24(2) of the Charter.

The unreasonable search carried out in this case is the very kind which the Court wished to make clear is unacceptable. A check stop does not and cannot constitute a general search warrant for searching every vehicle, driver and passenger that is pulled over. Unless there are reasonable and probable grounds for conducting the search, or drugs, alcohol or weapons are in plain view in the interior of the vehicle, the evidence flowing from such a search should not be admitted.

[101] Although Mellenthin was in the context of a random roadside stop, I find that the same concerns apply when the police pull over a driver for a routine traffic violation such as the one that occurred in this case.

[102] Accordingly, and notwithstanding that I do not find that the officers acted in bad faith, I am of the view that the s. 8 breach in this case falls towards the more serious end of the spectrum, pulling towards the exclusion of the evidence.

Impact on the Charter-Protected Interests of the Accused

[103] The court, at this stage, must consider the extent to which the breach undermined the interests protected by the rights infringed upon. An unreasonable search, for example, may impact upon the accused’s privacy interests, which can include their human dignity. An unreasonable search that encroaches on an area in which there is a high expectation of privacy, or is demeaning, is more worthy of condemnation by the court.

[104] Section 8 of the Charter reflects an individual’s right to be left alone by the state absent justification for state interference with the individual. In R. v. McGuffie, 2016 ONCA 365, at para. 49, this is described as an essential precondition to individual liberty and security of the person. The courts must guard against unwarranted state intrusion lest we become a police state.

[105] The courts have recognized that there is a lower expectation of privacy in respect of a motor vehicle.

[106] In the present case, I find that Ms. Westendorp was treated respectfully by the police officers involved. They did ask her, although in my view insufficiently, if they could conduct the search. She was permitted to move about the scene freely. The way the search was conducted was not intrusive. There was no significant adverse impact upon her human dignity.

[107] On the other hand, there was a significant impact on Ms. Westendorp. She went from being an innocent bystander to a fairly minor traffic violation, to being an accused person in a drug trafficking investigation. This occurred because of an unreasonable search and seizure due to an overreach in police authority during a routine Highway Traffic Act investigation. In my view, she ought not to have been asked to consent to the search without some reasonable basis for the police believing a search was justified. Section 8 of the Charter is meant to protect people from just this sort of interaction with the authorities.

[108] In my opinion, the impact on Ms. Westendorp’s s. 8 Charter rights was significant and pulls towards exclusion of the evidence at trial.

Society’s Interests in Deciding the Case on Its Merits

[109] The third factor requires the court to consider society’s interests in conducting a trial on the merits. The exclusion of evidence under s.24(2) of the Charter most often results in the dismissal of criminal charges as the Crown is left with no case. This is a strong factor in favour of inclusion of evidence. It is well accepted that the third Grant factor almost always weighs in favour of admitting the impugned evidence.

[110] The evidence sought to be excluded is real evidence. It is very reliable evidence with respect to the offences charged. The Crown’s drug possession and trafficking case against Ms. Westendorp entirely depends upon this evidence.

[111] Furthermore, the nature of the evidence itself must be considered. Judicial comments about the insidiousness of drug trafficking are plentiful. These drugs cause immeasurable harm to the community.

[112] The third Grant factor, as is usual, strongly points to the admission of the evidence.

Balancing the Grant Factors

[113] The balancing exercise mandated by s.24(2) is qualitative and not capable of mathematical precision. The evidence must be weighed on each line of inquiry to determine whether, having regard to all the circumstances, its admission would bring the administration of justice into disrepute.

[114] It is not a contest between the degree of police misconduct and the seriousness of the offence. Allowing the seriousness of the offence and the reliability of the evidence to overwhelm the s.24(2) analysis would ‘deprive those charged with serious crimes of the protection of the individual freedoms afforded to all Canadians under the Charter and, in effect, declare that in the administration of the criminal law ‘the ends justify the means’ (see: R. v. Harrison, 2009 SCC 34, at paras. 37 and 40).

[115] In McGuffie, supra, at para. 62:

[62] The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquire, society’s interests in an adjudication on the merits, pulls in the opposite direction towards the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case: see R. v. Harrison (2009), 97 O.R. (3d) 560, [2009] 2 S.C. R. 494, [2009] S.C.J. No. 34, 2009 SCC 34, at paras. 33-34.

[116] It is important not to put undue emphasis on the third part of the test. Society’s interest in adjudicating cases on their merits will always appear paramount when charges are particularly serious. Nonetheless, the court cannot condone serious breaches of important Charter protected interests (see: McGuffie, supra, at paras. 75-83).

[117] I am persuaded that the seriousness of the breach and the impact on Ms. Westendorp’s s. 8 Charter right to be free of unwarranted state intrusion outweighs the importance of prosecuting this drug case as against her. Anyone of us can be pulled over by the police for a minor traffic violation. It does not grant the police a license to search our vehicles, and, in my view, the police should not be encouraged, when they have absolutely no grounds to suspect illegal activity is ongoing, to even ask to search our vehicles. Otherwise, we would live in a police state.

[118] I find that Ms. Westendorp has met her onus. The admission of the evidence found in her vehicle against her would bring the administration of justice into disrepute. Therefore, the fruits of the search shall be excluded from trial as against her.

S. 24(2) and Mr. Cumming

[119] I have found that Mr. Cumming had no reasonable expectation of privacy in Ms. Westendorp’s motor vehicle. Accordingly, when the police searched her vehicle, they did not violate Mr. Cumming’s s. 8 Charter rights.

[120] However, if I am in error, I make the following comments.

[121] My s. 24(2) analysis in respect of Ms. Westendorp applies generally to Mr. Cumming. The police, even if not in bad faith, went too far in conducting a search of this motor vehicle in the context of a routine traffic stop. The only noteworthy exception is that Mr. Cumming would have a lower expectation of privacy in the motor vehicle than Ms. Westendorp.

[122] Had Mr. Cumming been entitled to a remedy under s. 24(2), I would have excluded the evidence as against him as well. Despite the seriousness of the drug charges, the police officers ought not to have exceeded the scope of their lawful authority in conducting a routine traffic stop to search the vehicle without justification.

Distinct Outcomes

[123] I had inquired of counsel during the hearing whether it was open to the court to exclude the evidence as against one accused and not as against the other. I would have thought that this was a simple inquiry. However, none of the counsel had applied their minds to this question in advance of the hearing. I suspect it is because the answer is trite.

[124] In R. v. Mohamed, 2024 ONCA 691, two co-accused each brought a Charter motion to exclude evidence based on a s. 8 breach. The drugs in question had been found within an apartment that one of the accused owned, and the other stayed there from time to time. The trial judge found that the non-owner lacked standing and dismissed his application but granted the owner’s application. The trial continued as against the non-owner only. The Court of Appeal expressed no concern, although I suspect the issue was not squarely raised.

[125] In R. v. Wijesinha, it was described by the Supreme Court of Canada that s. 24(2) of the Charter provides a remedy only to the individual whose Charter rights have been violated.

[126] The issue was squarely raised in R. v. Sandhu, where the BC Court of Appeal examined several legal precedents dealing with whether an accused could rely on the breach of another person’s Charter rights to exclude evidence in his own trial. The Court held that an accused could only rely on a breach of his or her own Charter rights to move to exclude evidence under s. 24(2).

[127] Accordingly, I am of the view that it is open to the Court to find that as Mr. Cumming lacked standing, he could not apply under s. 24(2) of the Charter to have the evidence excluded as against him. However, as Ms. Westendorp does have standing, and I find her s. 8 Charter rights were violated, she may seek an exclusion under s. 24(2). Mr. Cumming cannot piggyback on the violation of Ms. Westendorp’s Charter right.

Disposition

[128] For those Reasons, Ms. Westendorp’s Charter application is allowed, and the evidence found in her motor vehicle shall be excluded at trial as against her.

[129] Mr. Cumming’s Charter application is dismissed, and the evidence is properly admissible as against him at trial.

[130] This matter is adjourned to January 28, 2025. My belief is that all the evidence has been completed, and I am to hear submissions with respect to the trial proper when we reconvene. I had informed counsel that I would afford them an opportunity to make further submissions with respect to whether it was open to the court to exclude the evidence as against one accused but not the other. I am prepared to entertain submissions on that issue and revisit my conclusion if they wish to bring other legal authorities to my attention.

Spencer Nicholson
Date: January 6, 2025