Court File and Parties

Court File No.: 24-11401637 Date: 2026-02-20 Ontario Superior Court of Justice

Between: His Majesty the King – and – Dusan Matic

Counsel: Natasha Gosselin, for the Respondent Leo Russomanno and Grace Dazé, for the Applicant

Heard: February 2, 3 and 4, 2026

Reasons for Decision on Charter Application

A. Kaufman J.

[1] Mr. Matic is charged with ten firearm offences and one count of possession of cocaine. The matter proceeded as a blended trial and Charter application. He alleges breaches of ss. 8, 9, and 10 of the Charter and seeks the exclusion from evidence of a handgun and cocaine seized from him pursuant to s. 24(2).

[2] The Court heard evidence from Constables Bean and Wiseman. Mr. Matic' detention and arrest were captured on CCTV, although the recording contains no audio.

[3] Constable Bean has served with the Ottawa Police Service for almost ten years, including six years with the Neighbourhood Resource Team (NRT). He explained that the NRT focuses on proactive policing in areas with high call volumes, including enforcement of traffic, provincial, trespass, and drug‑related offences. He has participated in more than 60 drug investigations and approximately 12 firearm seizures, most arising from traffic stops.

[4] On March 5, 2024, at approximately 2:35 p.m., Constable Bean began his shift in an unmarked cruiser near 314 Irene Crescent. He selected this location because, in his experience as a neighbourhood officer, it was an area of interest for drug activity. Three months earlier, he had been involved in a drug and firearm seizure at the same address. He wished to monitor the area for further criminal activity.

[5] From a vantage point roughly 40 metres away, he observed the front entrance of 314 Irene Crescent up to Churchill Avenue. He described the building as a supported‑living residence whose occupants often gather outside.

[6] Within minutes, he saw a white Honda SUV turn onto Irene Crescent from Churchill Avenue and stop directly in front of the building. Using his binoculars, he observed two occupants in the vehicle. An older man who had been standing outside the building approached the passenger‑side window. Constable Bean recognized him from prior patrols, where he had seen him "panhandling" at the intersection of Churchill and Carling. Although he had no specific information that the man used drugs, he believed—based on his observations—that the man struggled with mental health and substance‑use issues.

[7] He testified that the man placed both hands inside the passenger‑side window for roughly 15 seconds. When the man withdrew his hands, he appeared to look down at his palm and manipulate an object with the fingers of his other hand. Constable Bean did not see money exchanged. Nonetheless, based on the brevity of the interaction, the location, and his prior experience at that address, he suspected he had witnessed a drug transaction.

[8] He relayed his observations, including the SUV's licence plate, to Constable Wiseman, who was also assigned to the NRT. Constable Wiseman ran the plate and advised that an "entity" associated with the SUV had prior involvement in drug activity. No details were provided regarding the nature or timing of that information.

[9] Constable Bean requested Constable Wiseman's assistance in stopping the SUV. He testified that drug investigations often involve firearms, and he was concerned for his safety and the possibility that the occupants might flee.

[10] Constable Bean followed the SUV as it travelled to a gas station at Churchill Avenue and Carling Avenue, where it parked facing the store. Constable Bean parked his unmarked cruiser approximately 40 metres away.

[11] According to the CCTV timestamp, Constable Wiseman arrived at 2:49 p.m. and positioned his marked cruiser directly behind the SUV. Constable Bean approached the passenger‑side door while Constable Wiseman approached the driver's side. Both officers testified that they were concerned for their safety because they believed the occupants might be involved in a drug transaction, and drug investigations often involve firearms.

[12] Constable Bean testified that he coordinated the approach with Constable Wiseman. He advised the female passenger that he had observed the SUV on Irene Crescent and suspected a drug transaction. He recalled that she denied any involvement. He requested identification and vehicle documents to determine who he was dealing with and to have information available should the occupants flee. The passenger, later identified as Linda Hanhan, provided identification and vehicle documents, which he placed in his vest pouch. He did not ultimately query the information.

[13] Constable Bean testified that he stood approximately 12 inches from the passenger‑side window. It was a clear day, and he had an unobstructed view of the front interior of the SUV. He observed two cell phones propped in the centre console, each covered with what he believed to be a layer of powder cocaine. He described the white powder as contrasting with the SUV's dark interior. He also saw a rolled piece of cardboard resembling a snorting straw and what he believed to be rocks of crack cocaine near the gear shifter. He testified that he recognized these substances based on his prior investigations.

[14] While Constable Bean spoke with Ms. Hanhan, Constable Wiseman engaged with the driver, Mr. Matic. He testified that his intention was to identify the driver, determine whether he was associated with the vehicle, and explain that the stop was based on suspected drug activity. He stated that Mr. Matic appeared somewhat nervous and used his body to obstruct his view of the interior. Because Mr. Matic is a large man, Constable Wiseman did not have a clear view inside the vehicle. He also detected a burnt marijuana smell.

[15] Constable Wiseman advised Mr. Matic that he was being stopped on suspicion of drug activity and requested his driver's licence. Mr. Matic questioned the basis for the stop but remained cooperative. Although he did not recall the exact conversation, Constable Wiseman believed he would have commented on the marijuana smell and the prohibition on driving while consuming cannabis. He also asked Mr. Matic to roll down the rear passenger‑side window to ensure no other occupants were present. Mr. Matic complied and provided his driver's licence.

[16] At 2:50 p.m., Constable Bean formed grounds to arrest the occupants of the SUV for possession of a Schedule I substance. He notified Constable Wiseman verbally and by signalling with his hand—holding up four fingers and then one—to indicate grounds for possession under s. 4(1) of the Controlled Drugs and Substances Act, S.C. 1996 c 19. Constable Wiseman informed Mr. Matic that he was under arrest, asked him to exit the vehicle, and placed him in handcuffs. He provided a plain‑language right to counsel caution and conducted a search incident to arrest for weapons, means of escape, or further evidence. He located crack cocaine in Mr. Matic's jacket and left pocket.

[17] Constable Wiseman placed Mr. Matic in his cruiser and read him his rights to counsel from his duty notebook at 2:55 p.m.

[18] Constables Bean and Wiseman then began searching the SUV incident to arrest at 3:04 p.m. Constable Wiseman recorded a video of the vehicle's interior before searching it. The video, entered as an exhibit, depicts a white powdery substance and small white rocks in the centre console, as well as a rolled piece of cardboard. On the driver's‑side floor, beneath a bandana, Constable Wiseman located a semi‑automatic pistol. Constable Bean seized the firearm, and rendered it safe. The handgun contained a loaded magazine but no round in the chamber. He observed that the serial number on the barrel had been scratched off, although the serial number on the stock remained visible. He advised constable Wiseman who re‑arrested Mr. Matic for possession of a firearm, re‑reading his rights to counsel at 3:05 p.m. Mr. Matic provided the name of his lawyer.

[19] At 3:12 p.m., constable Wiseman requested assistance from another officer to take Mr. Matic to the police station.

[20] At 3:27 p.m., Constable Avlijas arrived to take custody of Mr. Matic and transport him to the station. Constable Wiseman testified that keeping Mr. Matic in his cruiser during the search would have delayed his ability to contact counsel. Mr. Matic was taken to the police station, processed and he was in touch with counsel at 4:15 p.m.

Analysis

[21] Mr. Matic alleges breaches of sections 8, 9 and 10 of the Charter.

Section 9

[22] Section 9 protects against arbitrary detention. In R. v. Mann, 2004 SCC 52, the Supreme Court of Canada recognized a police power to detain for investigative purposes where there are reasonable grounds to suspect, based on objectively discernible facts, that the individual is connected to a recent or ongoing criminal offence. This standard—often described as "articulable cause"—is lower than reasonable and probable grounds.

[23] Mr. Matic submits that the police lacked a sufficient basis to suspect criminal activity. He argues that 314 Irene Crescent, although located in a high‑crime area, is a multi‑unit residence and that the prior incident relied upon by Constable Bean involved different individuals several months earlier. He further contends that the interaction between the SUV and the man described as a panhandler was innocuous: the officer saw no exchange of money or drugs, and the observation of the man manipulating something in his palm was, in his submission, devoid of incriminating content. He relies on R. v. N.O., 2009 ABCA 75, where the Alberta Court of Appeal held that a hand‑to‑hand interaction, without more, did not meet the requisite standard to justify an investigative detention.

[24] Each case must be assessed on its own facts. Here, I am satisfied that the police had reasonable grounds to suspect that Mr. Matic was involved in criminal activity for the following reasons.

[25] First, Constable Bean recognized the man who approached the SUV as someone he had frequently observed panhandling at a nearby intersection. Based on his prior observations, he believed the man struggled with mental health and drug‑use issues. Second, the SUV stopped directly in front of a building that Constable Bean considered an area of interest for drug activity, and where he had participated in a drug and firearm seizure three months earlier. Third, the man approached the passenger‑side window and placed both hands inside the vehicle for what constable Bean estimated to be approximately 15 seconds. While such estimates may be imprecise, I accept that the interaction was brief but sustained, and that it occurred inside the vehicle rather than in open view. In my assessment, this conduct is more consistent with a concealed drug transaction than with the provision of spare change to a panhandler. The timing and sequence of events also supports that the interaction was pre-arranged or anticipated, as opposed to incidental. The SUV arrived, stopped directly in front of the building and was approached immediately by the man described as a panhandler.

[26] Finally, before following the SUV, Constable Bean asked Constable Wiseman to run the licence plate. He was told that an individual associated with the vehicle had prior involvement in drug activity. I accept that this information was of limited value, and that some of the reports turned out to be dated and not specific to Mr. Matic. However, Constable Wiseman testified that he did not review each occurrence report in detail at the time, and given the realities of real time proactive policing, that was not reasonably expected. The reasonable‑suspicion standard must be assessed based on the information available to the officers at the time. In my view, this information still contributed to constable Bean's cumulative assessment.

[27] Reasonable suspicion contemplates possibilities, not probabilities. The fact that the circumstances may also support an innocent explanation does not defeat the standard. As the Court of Appeal stated in R. v. Williams, 2013 ONCA 772, at para. 24, the question is whether the totality of the circumstances objectively indicates the possibility of criminal behaviour.

[28] Viewed holistically, the constellation of factors available to Constable Bean provided an objectively reasonable basis to suspect that the occupants of the SUV were engaged in criminal activity. The investigative detention was therefore authorized, and was neither arbitrary nor unlawful.

[29] Accordingly, I find no breach of s. 9 of the Charter

Section 8

[30] Mr. Matic submits that the police conducted an unlawful search of the vehicle because, in his view, the investigative detention was arbitrary. As set out above, I have concluded that the officers had reasonable grounds to suspect that the occupants of the SUV were involved in a drug transaction. The investigative detention was therefore lawful, and the police were entitled to engage with the occupants for investigative purposes.

[31] The applicant also argues that Constable Bean did not have an unobstructed view of the interior of the SUV and that the drugs were not in plain view. He contends that the officers only obtained a clear view after directing Mr. Matic to exit the vehicle.

[32] I do not accept this submission. I accept Constable Bean's testimony, confirmed by the CCTV footage, that he was standing approximately 12 inches from the passenger‑side window, that it was a clear day, and that the window was down. I accept that he had an unobstructed view of the front interior of the SUV. He described seeing white powder on two cell phones and what he believed to be crack cocaine and a snorting straw near the gear shifter, noting that the white substances contrasted with the dark interior. His testimony is consistent with the CCTV footage, which shows him signalling "4‑1" to Constable Wiseman—indicating grounds for simple possession—before Mr. Matic was asked to exit the vehicle.

[33] I am satisfied that Constable Bean observed the suspected drugs in plain view while speaking with Ms. Hanhan. Those observations provided him with reasonable grounds to arrest the occupants for possession of a Schedule I substance and to search Mr. Matic and the vehicle incident to arrest.

[34] Accordingly, I find no breach of s. 8 of the Charter

Section 10

[35] Section 10 of the Charter guarantees that everyone who is arrested or detained has the right to be informed promptly of the reasons for the detention and to retain and instruct counsel without delay, as well as the right to be informed of that right.

[36] These protections are triggered the moment an individual is "detained" within the meaning of the Charter. Mr. Matic argues that his s. 10(b) rights were breached because he was not advised of his right to counsel immediately upon detention. This requires a determination of when the detention began.

[37] In R. v. Grant, 2009 SCC 32, at para. 44, the Supreme Court held that detention involves a suspension of liberty by significant physical or psychological restraint.

[38] The Crown submits that not every interaction between police and an individual amounts to a detention, and relies on R. v. Suberu, 2009 SCC 33, for the proposition that an investigative encounter does not automatically trigger s. 10(b). While that principle is correct, it has no application on these facts. Here, the officers did more than simply engage the occupants in conversation. Constable Wiseman positioned his cruiser directly behind the SUV, effectively boxing it in, while he and Constable Bean approached on either side. The gas station storefront was directly in front of the vehicle. In these circumstances, Mr. Matic was physically restrained and had no practical ability to leave. Mr. Matic would have also felt compelled not only to remain at the scene but also to answer any questions that followed. I find that he was detained at that point.

[39] This conclusion is reinforced by the officers' own evidence. In cross‑examination, Constable Bean acknowledged that from the outset his intention was to detain the occupants of the SUV, that they were not free to leave, and that the detention began when Constable Wiseman parked his cruiser a foot behind the vehicle. Constable Wiseman similarly agreed that when he pulled up within inches of the SUV, Mr. Matic was detained and not free to go. He confirmed that throughout his interaction with Mr. Matic, and prior to the arrest, Mr. Matic was detained but not yet under arrest.

[40] On these facts, I conclude that Mr. Matic was detained from the moment the officers boxed in the SUV and approached on both sides. His s. 10 rights were therefore engaged at that time.

Section 10(a)

[41] Section 10(a) of the Charter guarantees that everyone who is arrested or detained has the right to be informed promptly of the reasons for the arrest or detention. The right serves a dual purpose. First, individuals are not obliged to submit to an arrest without knowing why they are being restrained. Second, detainees must understand the nature of their jeopardy in order to meaningfully exercise the right to retain and instruct counsel under s. 10(b): R. v. Evans, [1991] 1 S.C.R. 869, at para. 31; R. v. Borden, [1994] 3 S.C.R. 145, at para. 44.

[42] Constable Wiseman testified that at the outset of his interaction with Mr. Matic, he advised that he was being stopped because of suspected drug activity. I accept this evidence. Mr. Matic was accordingly informed promptly and clearly of the reason for the detention. I therefore find no breach of s. 10(a).

Section 10(b)

[43] Section 10(b) guarantees that a person who is arrested or detained has the right "to retain and instruct counsel without delay" and to be informed of that right. As the Supreme Court explained in R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, the purpose of s. 10(b) is to provide a detainee with an opportunity to obtain legal advice relevant to their legal situation. More specifically, as stated in R. v. Manninen, [1987] 1 S.C.R. 1233, at pp. 1242–43, the right exists "to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights." The emphasis is on ensuring that any decision to cooperate with the police, or to decline to do so, is free and informed.

[44] Once a detention or arrest occurs, s. 10(b) imposes three duties on the police:

1. The informational duty — to inform the detainee of the right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;

2. the implementational duty — to provide the detainee with a reasonable opportunity to exercise the right when invoked, subject only to concerns of officer or public safety; and

3. the duty to refrain from eliciting evidence until the detainee has had that reasonable opportunity. (R. v. Bartle, [1994] 3 S.C.R. 173, at p. 192; R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 30.)

[45] In R. v. Suberu, 2009 SCC 33, at paras. 2 and 37–42, the Supreme Court held that the informational component of s. 10(b) must be provided "immediately" upon detention or arrest. The Court emphasized that the phrase "without delay" in s. 10(b) means "immediately", subject only to concerns for officer or public safety or to reasonable limits prescribed by law and justified under s. 1. This immediacy is required because the risks of compelled self‑incrimination and the restraint of liberty arise the moment a detention begins.

[46] Constable Wiseman acknowledged that he did not comply with this informational duty. The CCTV footage shows that approximately 1 minute and 51 seconds elapsed between the moment Mr. Matic was detained and the moment he was arrested for possession of a Schedule I substance. Only upon arrest did Constable Wiseman verbally advise him of his right to counsel, followed shortly thereafter by a formal reading from his notebook.

[47] During the nearly two‑minute interval, Constable Wiseman advised Mr. Matic of the reason for the stop, commented on the smell of burnt marijuana, cautioned him about driving while consuming cannabis, requested identification, and asked him to roll down the passenger‑side window to check for other occupants or potential safety concerns. He denied asking any questions about the suspected drug transaction and denied that Mr. Matic made any incriminating statements.

[48] Constable Wiseman also acknowledged that he did not advise Mr. Matic of his right to counsel until after the arrest, that he had the opportunity to do so earlier, and that there was no reason why it could not have been done. Mr. Matic was detained for investigative purposes relating to suspected criminal activity at 314 Irene Crescent, not for a Highway Traffic Act offence. In these circumstances, the police were required to provide the s. 10(b) caution immediately upon detention.

[49] I therefore conclude that Mr. Matic's rights under s. 10(b) were breached.

Implementational duty

[50] After locating the handgun, Constable Wiseman requested assistance from another officer to transport Mr. Matic to the police station. Constable Avlijas was notified at 3:13 p.m. and arrived at 3:25 p.m. He took custody of Mr. Matic at 3:27 p.m. and, at 3:30 p.m., advised him of his right to counsel, provided the caution and secondary caution, and delivered the arrest warning. They arrived at the station at 3:46 p.m. Mr. Matic was paraded before the sergeant at 4:05 p.m. Constable Avlijas made a first attempt to contact counsel at 4:12 p.m., and Mr. Matic spoke with counsel at 4:15 p.m.

[51] The implementational duty may have to await a controlled environment, so that police can control who is being called, and ensure appropriate privacy: R. v. Thompson, 2025 ONCA 500, at para 19.

[52] Constable Wiseman knew that searching the vehicle and inventorying the seized items would take time. It was reasonable for him to request that another officer transport Mr. Matic. Once at the station, Mr. Matic was processed and his right to counsel was implemented within a relatively short period. There is no evidence that he was questioned before speaking with counsel.

[53] I conclude that there was no breach of the implementational aspect of s. 10(b).

Section 24(2)

[54] Where a court concludes that evidence was obtained in a manner that infringed or denied a Charter right, the evidence must be excluded if, having regard to all the circumstances, its admission would bring the administration of justice into disrepute.

[55] Having found a breach of Mr. Matic's s. 10(b) rights, I must determine whether the handgun and the drugs should be excluded.

[56] For evidence to be "obtained in a manner" that violates the Charter, a causal connection between the breach and the discovery of the evidence is not required. A temporal or contextual connection is sufficient: R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3, at para. 38.

[57] The Crown did not argue that, if a s. 10(b) breach were found, the connection between the breach and the evidence was too remote or tenuous to satisfy the "obtained in a manner" requirement. In this case, the breach and the discovery of the evidence formed part of a single investigative sequence with both temporal and contextual links.

[58] I therefore turn to the Grant factors.

i) The seriousness of the Charter offending conduct

[59] As noted above, the interaction between Constable Wiseman and Mr. Matic lasted 1 minute and 51 seconds. During that time, Mr. Matic was detained but not advised of his right to counsel. Constable Wiseman acknowledged that he did not inform Mr. Matic that he did not have to speak with him, nor did he provide the right to counsel until after the arrest. I accept that part of this brief interaction involved advising Mr. Matic of the reason for the detention, which logically precedes the right‑to‑counsel caution. Nonetheless, Constable Wiseman conceded that he could have provided the right to counsel earlier. I find that, although the period was short, Mr. Matic was in legal jeopardy, and the interaction occurred while there was an inherent power imbalance between the police and a detained person.

[60] Constable Wiseman denied asking any questions other than requesting identification and directing Mr. Matic to roll down the window. He testified that he needed to identify the driver in case he fled. He denied asking any questions about the suspected drug transaction.

[61] When asked why he did not provide the right‑to‑counsel caution earlier, Constable Wiseman testified that he was surprised to learn, upon reviewing the video, that the interaction lasted as long as 1 minute and 51 seconds. He believed it had been shorter and that events had progressed quickly from the outset of the detention to receiving information from Constable Bean that grounds to arrest had formed.

[62] Constable Wiseman described the stop as "unique" because it arose out of a criminal investigation rather than a Highway Traffic Act stop. He testified that he did not intentionally withhold the caution. He said he advised Mr. Matic of the reason for the detention and, shortly thereafter, upon receiving information from Constable Bean that grounds for arrest had formed, proceeded with the arrest and provided the right‑to‑counsel caution.

[63] In my assessment, the breach of Mr. Matic's s. 10(b) rights resulted from a mistake in the execution of police duties. It is likely that Constable Wiseman approached the detention as he would a Highway Traffic Act stop, where the right to counsel may be delayed: R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3. I find that he did not turn his mind to the requirement to provide the right to counsel immediately and engaged with Mr. Matic briefly until Constable Bean informed him that grounds for arrest existed. I accept that the breach was not intentional. That said, I would not characterize it as trivial. During the interaction, the risk of inadvertent self‑incrimination was evident.

ii) Impact on Charter protected interest

[64] I find that the Charter breach had a minimal impact on Mr. Matic's Charter protected interests.

[65] First, I accept that during the interaction—before he was advised of his right to counsel—Mr. Matic did not make any incriminating statements. Had he done so, it is reasonable to expect that Constable Wiseman would have recorded them. Defence counsel suggests that if the officers were knowingly violating Mr. Matic's Charter rights, this might explain the absence of any notes of incriminating statements. I am not persuaded that this is what occurred.

[66] Even if an incriminating statement had been made, the impact of the breach is reduced where the Crown has undertaken not to rely on any such statement. The Ontario Court of Appeal has confirmed that voluntary non‑reliance on a statement mitigates the impact of a s. 10(b) breach: R. v. Hamouth, 2023 ONCA 518, at paras. 42–45, 48–49; R. v. Truong, 2025 ONCA 69, at paras. 57–58

[67] Further, although the firearm was discovered after the s. 10(b) breach, there is no causal connection between the breach and the discovery of the evidence sought to be excluded. The handgun and the drugs were located during a lawful search, independent of the s. 10(b) violation. This also mitigates the impact of the breach: R. v. Grant, 2009 SCC 32 at para 122.

iii) Society's interest in the adjudication of the case on the merits

[68] The final inquiry considers factors such as the reliability of the evidence and its importance to the Crown's case. It asks whether the truth‑seeking function of the criminal trial process is better served by admitting the evidence or excluding it: R. v. Grant, 2009 SCC 32, at para. 79.

[69] In this case, the handgun and the drugs are reliable physical evidence. They are central to the Crown's case and relate to extremely serious offences. Their admission would better serve the truth‑seeking function of the criminal process than their exclusion.

[70] Balancing the Grant factors, I conclude that the evidence of the handgun and the drugs should be admitted under s. 24(2). While the s. 10(b) breach was not trivial—Constable Wiseman did engage Mr. Matic in brief conversation that carried a risk of eliciting an incriminating response—no incriminating statements were made. The breach arose from a mistake rather than from deliberate or intentional misconduct, and it was not causally connected to the discovery of the loaded handgun or the drugs. In these circumstances, admitting the evidence would not bring the administration of justice into disrepute.

[71] Mr. Matic's application is dismissed.

A. Kaufman J.

Released: February 20, 2026