CITATION: R. v. Sillah, 2026 ONSC 1112

COURT FILE NO.: CR-24-90000734-0000

DATE: 20260323

BETWEEN:

HIS MAJESTY THE KING

– and –

SIDI MOHAMED SILLAH

Jason Mitschele and Paul Scotland, for the Crown

Stefan Dimitrijevic, for the Applicant

HEARD: October 14, 15, 16, 22, 23, 28, and 31, 2025

pinto j.

Reasons for Decision - Charter Application

1The applicant, Sidi Mohamed Sillah, is charged with possession for the purpose of trafficking Schedule 1 substances (five counts), unauthorized possession of a firearm, possession of a loaded prohibited or restricted firearm, carless storage of a firearm, possession of a firearm knowing the serial number was defaced, knowingly occupying a vehicle with a firearm, possession of a prohibited device, possession of prohibited ammunition, and possession of property obtained by crime over $5,000.

2Mr. Sillah’s charges arise from a traffic stop on July 6, 2023. A police officer in a marked vehicle observed him operating a black Hyundai Elantra without a front license plate on Dundas Street in Toronto. The police officer followed his vehicle and stopped behind it as it parked on Cole Street. A female passenger got out. The police officer turned on his vehicle’s emergency lights to commence the traffic stop. The police officer approached the vehicle, spoke with Mr. Sillah and explained that it was an offence in Ontario to drive without a front license plate. Mr. Sillah indicated that he had bought his vehicle in Quebec and that he had placed a license plate on the front dashboard of the Hyundai.

3The officer asked Mr. Sillah for standard driver documentation. After Mr. Sillah provided this documentation, which was largely in order, the officer advised him that he could smell a strong odour of burnt cannabis. Mr. Sillah denied that he had consumed cannabis while driving but acknowledged that he had several old roaches of cannabis in a bag in the rear passenger seat of the vehicle.

4The police officer radioed another officer to assist. Once the second officer arrived, the first officer notified Mr. Sillah that he intended to conduct a search of his person and the Hyundai under Ontario’s Cannabis Control Act, 2017, S.O. 2017, c. 26, Sched. 1 (the “CCA”). Mr. Sillah stepped out of the vehicle and permitted the officer to search his person while holding his hands to the front. The officer noticed Mr. Sillah had placed his hand in the front pocket of his hoodie. The officer reached into the front pocket and identified the shape of a handgun.

5Mr. Sillah was arrested, and a loaded firearm was located in his waistband. He was placed in a police vehicle and read his rights to counsel (“RTC”). Two other officers attended on scene and conducted a search of the Hyundai incident to his arrest. Officers located numerous quantities of drugs in individual bags that were later identified as 24.36 grams of fentanyl, 16.99 grams of methamphetamine, 95.31 grams of cocaine/crack cocaine, 69.4 grams of cannabis, 42.67 grams of morphine, and 26.8 grams of oxycodone.

6Police allege that the loaded firearm found was prohibited, had a prohibited device, and that there were 66 rounds found in total. A large quantity of Canadian currency was found as well.

7Mr. Sillah, a young Black man, alleges that his rights under ss. 7, 8, 9, 10(a), and 10(b) of the Canadian Charter of Rights and Freedoms were breached. He requests that the evidence against him be excluded under s. 24(2) of the Charter. He alleges that he was racially profiled and that the officer had no legal authorization to search his person and vehicle under the CCA. He also alleges that the officer failed to read him his RTC in a timely manner and that the second officer failed to make reasonable efforts to provide him with his counsel of choice. Finally, he alleges that police stole a scooter and some bottles of alcohol from the trunk of his vehicle.

8On October 31, 2025, I determined, with written reasons to follow, that there were no breaches of the applicant’s ss. 7, 8, 9, and 10(a) rights under the Charter. He was not racially profiled and the police search of his person and Hyundai under the CCA was authorized. I found that, while there were minor breaches of Mr. Sillah’s 10(b) rights, the evidence against him should not be excluded under s. 24(2) and that his matter should proceed to trial. These are my reasons.

Evidence on the Charter Application

9Four police officers testified for the Crown:

(a) Police Constable (“PC”) Jordan Dryden.

(b) PC Emma McKinney.

(d) PC Reem Raza.

10The police witnesses entered a number of exhibits including the Body Worn Camera (“BWC”) and In-Car Camera (“ICC”) video footage of PC Dryden and PC McKinney, as well as the BWC footage of PC Skeats and Raza. Property reports concerning the firearm, ammunition, drugs, and other items found in the Hyundai were also entered into evidence.

11Mr. Sillah testified in support of his application, as did his friend, Riley MacMillan-Walsh.

Summary of Evidence

Evidence of PC Dryden

12PC Dryden testified that he has been a police officer with the Toronto Police Service since December 2021. On July 6, 2023, he was on traffic enforcement duties. His shift started at 5:00 p.m. At 6:08 p.m., he was driving eastbound on Dundas Street towards River Street in a police SUV. He noticed Mr. Sillah’s vehicle, a black Hyundai Elantra sedan, heading westbound on Dundas. He noticed that the Hyundai had no license plate at the front. As the Hyundai passed, PC Dryden did a quick check over his shoulder and saw that the Hyundai had an Ontario license plate at the back. He testified that Ontario’s Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), requires all vehicles registered in Ontario to have license plates on both the front and back of the car.

13PC Dryden did a U-turn and followed the Hyundai heading westbound on Dundas and then north on Regent Street. PC Dryden testified that he wanted to run the plates and do police checks on the Hyundai to see if there were any infractions by the registered owner. He followed the Hyundai as it turned right on Cole Street, a one-way street heading eastbound. The Hyundai stopped in front of 44 Cole Street.

14The traffic stop was captured both on the ICC of PC Dryden’s police vehicle as well as on PC Dryden’s BWC.

15PC Dryden remained parked behind the Hyundai for a few minutes and ran some police checks. The Hyundai license plate was registered to Mr. Sillah. PC Dryden made a note of the name and address. While in the police cruiser, PC Dryden testified that he could see how many people were in the Hyundai but not what they looked like.

16PC Dryden activated his emergency lights at 6:36:15 p.m. to commence the traffic stop. Fifteen seconds later, a female got out of the Hyundai from the front passenger seat. PC Dryden exited his police cruiser and approached the Hyundai on the driver’s side at 6:37:22 p.m. He advised Mr. Sillah that he stopped him because he needed to have plates affixed at the front and back of his vehicle. Once PC Dryden got to the Hyundai, he noticed an Ontario license plate sitting on the front dashboard of the Hyundai. He testified that he had not seen that license plate before. He also testified that, even if he had seen that license plate on the dashboard, he would have still stopped the vehicle as it was not in compliance with the HTA.

17Mr. Sillah advised PC Dryden that he had purchased the Hyundai in Montreal, Quebec. PC Dryden was aware that in Quebec front mounted license plates are not required. Mr. Sillah told PC Dryden that he had a yellow sticker affixed to his back windshield, but that did not have any significance for PC Dryden.

18PC Dryden requested the typical documentation from a driver: a driver’s license, proof of ownership, and proof of automobile insurance coverage. Mr. Sillah provided these documents to the officer, the proof of insurance via an electronic document on Mr. Sillah’s phone. All of Mr. Sillah’s documentation was up to date and valid.

19PC Dryden testified that, as soon as he exited his police vehicle and approached the Hyundai, he smelled a very strong odour of burnt cannabis. He testified that he was familiar with cannabis having two very different smells: the smell of fresh or green cannabis, and burnt cannabis. PC Dryden had not received training on the smell of cannabis but knew the two different smells from his work and life experience. PC Dryden testified that he was concerned about Mr. Sillah being impaired. He wanted to know if Mr. Sillah had been smoking cannabis while driving, and whether cannabis was safely stored in the vehicle so that Mr. Sillah would not be able to smoke it after the traffic stop.

20At 6:40:02 p.m., about two and a half minutes after the traffic stop, PC Dryden advised Mr. Sillah that he detected a very strong smell of cannabis and noticed that it was obvious that he had a lighter sitting on his lap. PC Dryden asked Mr. Sillah if he had been smoking in the vehicle. Mr. Sillah denied this but said that he had roaches (i.e., burnt joints of cannabis) in a bag and motioned toward the back seat. PC Dryden asked Mr. Sillah to roll down his back driver side window and peered into the back seat. PC Dryden did not see any cannabis or roaches openly displayed. PC Dryden asked Mr. Sillah how long ago did he smoke the cannabis joints and Mr. Sillah indicated the previous night. Based on the cannabis odour and the lighter, PC Dryden concluded that Mr. Sillah had either been smoking cannabis in the vehicle, or that he may do so after the traffic stop. However, he advised Mr. Sillah that he did not notice any redness in Mr. Sillah’s eyes and did not think that Mr. Sillah was high.

21PC Dryden testified that he considers a roach one of the most accessible forms of cannabis. A cannabis store would not seal burnt roaches. He explained the laws around cannabis storage to Mr. Sillah and returned to his police vehicle at 6:42:12 p.m. Mr. Sillah remained seated in the driver’s seat of his Hyundai.

22At 6:51:30 p.m., PC Dryden returned to the Hyundai having decided to issue a warning rather than a ticket to Mr. Sillah under the Provincial Offences Act, R.S.O. 1990, c. P.33 (the “POA”), for the missing front license plate infraction. He also directed Mr. Sillah to sign his vehicle permit in ink, which is another requirement under the HTA.

23At 6:52:36 p.m., PC Dryden advised Mr. Sillah that, based on the odour and Mr. Sillah advising that he had roaches in the back, he intended to search the Hyundai. PC Dryden testified that, by this time, he concluded that the cannabis had not been stored legally, that Mr. Sillah was in contravention of the CCA, and that he had grounds to search Mr. Sillah and the vehicle and seize the cannabis for the safety of the public.

24PC Dryden called for backup from another unit. He testified that it is always his practice for police safety reasons to have another officer present when doing a cannabis search in a vehicle.

25At 6:52:51 p.m., PC Dryden directed Mr. Sillah to turn off his vehicle and step out. Mr. Sillah told the officer, “I have some other weed too.” PC Dryden understood this to mean that Mr. Sillah had more cannabis than the roaches he had mentioned earlier.

26PC McKinney arrived at about 6:53 p.m. as PC Dryden’s back-up and parked in front of Mr. Sillah’s Hyundai. PC Dryden was not sure how or when he contacted PC McKinney.

27Once Mr. Sillah had exited his vehicle and was standing on the sidewalk on Cole Street, PC Dryden asked Mr. Sillah what items he had on his person. PC Dryden testified that his intention was to determine if Mr. Sillah had more cannabis on him. Mr. Sillah told PC Dryden that he had his phone and began displaying the contents of the “kangaroo pocket” of the hooded sweater he was wearing.

28PC Dryden acknowledged that he did not, at this time, provide Mr. Sillah with his RTC. He explained that, at the time, officers were not aware that RTC ought to be provided in circumstances where no criminal checks are conducted. PC Dryden considered a search under the CCA to be a non-criminal search.

29At 6:53:34 p.m., PC Dryden asked Mr. Sillah, “Okay, so what do you have on you right now?” Mr. Sillah answered that he had his keys and his phone. PC Dryden explained that, under the CCA, once a driver admits to having open weed in the car, it gives police the authority to search the driver and the entire car.

30At 6:53:51 p.m., PC Dryden told Mr. Sillah to pull his hands out of his front pocket. Mr. Sillah made a motion that the front pocket of his sweater was empty. PC Dryden told Mr. Sillah, “You’re all good man, it’s just weed, we are just checking for weed, it’s not as serious as you’re thinking right now, so it’s all good.” Mr. Sillah then put his left hand back through the pocket. As a matter of due diligence, PC Dryden went to put his hand into Mr. Sillah’s kangaroo pocket and noticed Mr. Sillah become nervous and put his left hand back into the pocket. PC Dryden concluded that Mr. Sillah did not want him to find something. PC Dryden ordered Mr. Sillah to remove his hand from the pocket. At 6:53:54 p.m., PC Dryden reached into the pocket and immediately felt what he recognized as the magazine end of a handgun. PC Dryden grabbed Mr. Sillah’s arm and told him to chill out. PC Dryden placed Mr. Sillah’s arms behind his back and handcuffed Mr. Sillah at the rear with PC McKinney’s assistance. PC Dryden went to the front of Mr. Sillah’s waistband and pulled out a tan-coloured Glock handgun, the magazine end of which was sticking out from the top of the waistband.

31PC Dryden took the handgun to his police cruiser, proved it safe, removed the magazine, placed the gun in an evidence bag, and placed the evidence bag in the trunk of his police cruiser.

32PC Dryden returned to Mr. Sillah and placed him under arrest at 6:57 p.m. PC Dryden patted Mr. Sillah down and searched him incident to arrest. The search yielded nothing. PC Dryden and PC McKinney walked Mr. Sillah back to PC Dryden’s police cruiser, and placed him in the back seat. At 6:59 p.m., PC Dryden provided Mr. Sillah with his RTC. At 7:00 p.m., PC Dryden gave a caution to Mr. Sillah. PC Dryden asked Mr. Sillah if he had his own lawyer, and Mr. Sillah said no.

33Mr. Sillah advised PC Dryden that he wanted to call a friend so that he could retain the friend’s lawyer. PC Dryden advised him that he would be permitted to make a call once he was taken to the police station.

34PC Dryden muted his BWC and called the Major Crimes Unit (“MCU”) at 51 Division. At 7:04:10, he returned to Mr. Sillah who was seated at the back of the police cruiser. Mr. Sillah asked PC Dryden to loosen his handcuffs. PC Dryden removed Mr. Sillah from the police cruiser and readjusted his handcuffs at 7:04:59 p.m. and double-locked them. At 7:06:01 p.m., PC Dryden asked Mr. Sillah if he had any more firearms on him and suggested that it would be very bad for him if another firearm was found on him at the police station. PC Dryden then conducted another search of Mr. Sillah. He testified that he did so out of an abundance of caution. PC Dryden transported Mr. Sillah to 51 Division, which was about a five-minute drive from Cole Street. PC Dryden participated in Mr. Sillah’s booking process.

35Two other officers, PC Skeats and PC Raza, conducted a vehicle search of the Hyundai. PC Dryden advised them that a firearm had been located on Mr. Sillah’s person.

36In cross-examination, PC Dryden testified that the speed limit on Dundas Street was 50 km/h. He agreed that when he did the police check on the Hyundai’s license plate, nothing came back in terms of Mr. Sillah having a criminal record, outstanding criminal charges, or outstanding traffic tickets.

37He agreed that the lighter on Mr. Sillah’s lap was on some kind of leash.

38He agreed that he did not advise Mr. Sillah that his vehicle was going to be searched until PC McKinney was on scene. He had a general concern, not specific to Mr. Sillah, that when doing cannabis searches the suspect may flee.

39At the start of PC Dryden’s search of Mr. Sillah, he asked Mr. Sillah whether he had anything on him. He believed that he was continuing his cannabis investigation and that the question was to determine if Mr. Sillah had any more cannabis on his person. Officer Dryden testified that he was not, at that point, searching Mr. Sillah for officer safety reasons although officer safety is always a concern. Rather, he was continuing to conduct a cannabis search.

40PC Dryden was not aware that Mr. Sillah was subsequently charged under the POA with failure to have a front plate affixed to his vehicle. Officer Dryden testified that he was not involved in any way with the laying of that POA charge.

41PC Dryden acknowledged that after Mr. Sillah was found carrying one firearm, and before he was read his RTC, PC Dryden asked him whether he had any other firearms on him. PC Dryden testified that he did so for officer safety reasons. PC Dryden explained that he carries a Glock handgun, similar to the one found on Mr. Sillah. The officer’s Glock does not have a safety, so if it is touched improperly it could fire. Officer Dryden also testified that some detainees have needles, drug paraphernalia, and other dangerous items on them. He is always aware of detainees’ constitutional rights but thinks officer safety rights are a priority. He cannot remember what his exact thoughts were at the time of Mr. Sillah’s detention.

42PC Dryden testified that he placed his fingers at the top of the waistband of Mr. Sillah’s underwear and shorts and ran his fingers around. He disagreed with defence counsel’s characterization that he placed his hands in Mr. Sillah’s underwear.

43PC Dryden believes that it was likely a text message that he sent that brought PC McKinney to the crime scene. He testified that there was nothing about Mr. Sillah or information about his case in the text messages to and from PC McKinney. At the time of defence counsel’s disclosure request in December 2024, PC Dryden had the same work phone, but when he checked he could not find the text in relation to his requesting PC McKinney to attend the scene. He changed work phones in the last two months or so when the Toronto Police Service (“TPS”) issued new phones. He no longer has the personal iPhone that he had in July 2023 as it was stolen in August 2024 at a concert that he attended. He denied erasing the text messages on his phone in relation to PC McKinney attending on scene because he wanted to avoid the court or others seeing those messages, or because they would reveal that he racially profiled Mr. Sillah.

Evidence of PC McKinney

44PC McKinney has been employed with the TPS for just over five years. She became involved in the investigation of Mr. Sillah when PC Dryden asked for assistance at 6:51 p.m. on July 6, 2023. She pulled up in front of Mr. Sillah’s black Hyundai Elantra at around 6:53 p.m. She was not instructed by anyone to park there.

45After Mr. Sillah was paraded, PC McKinney facilitated his attempts to get in touch with counsel of his choice. During parade, Mr. Sillah told her that he would like to speak to a lawyer but that he needed to contact his friends to get a potential lawyer’s phone number. She was going to facilitate the phone calls, but because Mr. Sillah had not given her a name or number at that point, she suggested that he first speak to duty counsel and afterwards she would facilitate the phone calls to counsel of his choice. She did so because duty counsel would be available immediately. Fifteen minutes later, at 8:06 p.m., Mr. Sillah spoke to duty counsel. Mr. Sillah said that he was satisfied with the call to duty counsel but would still like to speak to his friend’s lawyer. When Mr. Sillah was finished with his duty counsel call, PC McKinney provided Mr. Sillah with his phone so that he could go through his contacts. Based on the contacts, PC McKinney made calls to three individuals: at 8:28 p.m., she phoned “Tyler”, who picked up but then hung up on PC McKinney. At 8:37 p.m., she phoned “Caleb” who did not answer, and there was no option for voice mail. At 8:48 p.m., she phoned “Jannai” and left a voice mail after hearing a generic recording. At 8:57 p.m., PC McKinney advised Mr. Sillah about the results of her efforts to call his friends to facilitate reaching counsel of his choice. She then facilitated a call to Mr. Sillah’s surety, “Robert”, who spoke to Mr. Sillah. After this, PC McKinney placed Mr. Sillah in a cell. She was not aware of Jannai calling back. She understood that her obligation was to facilitate granting Mr. Sillah a reasonable number of calls.

46In cross-examination, she denied that she forced Mr. Sillah to speak to duty counsel but acknowledged that she suggested it to him. In hindsight, she agreed that she should not have done so, but she felt she was correct that Mr. Sillah was not going to be able to reach his own lawyer because no one called back.

47She could not remember how PC Dryden contacted her to attend the traffic stop on Cole Street.

48She testified that the rollout of the new police phones started on April 29, 2025, so the phones would have been replaced within a couple of weeks after that.

49She was not sure if she downloaded the contents of her previous phone when she got a new phone. She checked, and the message from PC Dryden about assisting at Cole Street was not there. In her will say statement, she only checked her personal phone, and no text was there. She checked her work phone, but the will say statement she wrote was only in relation to her personal phone.

50She checked her work phone around the time of the disclosure request. She denied discussing the case with PC Dryden after the incident on July 6, 2023. She denied that both officers not having a message about how she got to the scene was the result of an intentional action. She testified that she or PC Dryden were never asked to preserve the messages on her previous phone.

51She strongly disagreed that she was protecting PC Dryden from the court finding that the initial stop of Mr. Sillah was racially motivated. She testified that if PC Dryden had said something remotely racist, she would have taken issue with that and remembered it—and she would not have deleted it.

52She believes she had an email conversation with Officer-in-Charge Papacharamboulos about the disclosure request. She told him that she did not have any text messages on her phone. She cannot recall having any discussion with PC Dryden about the disclosure requested.

53In re-examination, she did not recall the means of communication by which PC Dryden asked for her assistance at the traffic stop of Mr. Sillah. She agreed that there was nothing on the Intergraph Computer-Aided Dispatch system (ICAD), which records the officers’ police radio conversations. She did not check the police computer or mobile workstation because she did not know how to do so. She got rid of her personal phone in October of 2023.

Evidence of PC Skeats

54In July 2023, PC Devon Skeats was working with the Primary Response Unit. She attended the scene with her police partner, PC Raza. She was driving a police scout car. She heard over a radio call that someone was in custody and that a firearm was located.

55PC Dryden and PC McKinney were already on scene. MCU advised that the car needed to be searched. The keys to the Hyundai vehicle were taken from Mr. Sillah upon his arrest and given to PC Raza, who opened the vehicle. Behind the driver’s seat, PC Skeats located a cannabis joint inside a black wrapping. She also found a black bag that contained two Ziploc bags of cannabis, a grinder, tobacco, and a scale.

56The officers put the evidence into property bags. They drove back to 51 Division to process the evidence. A property report describing the drugs found in the Hyundai was entered into evidence. Various Certificates of Analysis were entered confirming the nature and quantity of drugs found. The total amount of $13,175.55 in Canadian currency and $0.50 change in American currency was also located.

57The BWC footage of Officer Skeats was played in court. Nothing of evidentiary value was found in the trunk. A scooter and a bag containing liquor were in the trunk and left there. No police officer returned to the vehicle.

58PC Skeats testified that PC Raza locked the door to the vehicle.

59In cross-examination, PC Skeats testified that, on the back seat, she found burnt cannabis joints in a plastic bag that were in a tied-up reusable shopper’s bag.

60By the time PC Skeats and PC Raza did their search, PC Dryden and PC McKinney had left the scene. During the search there were three other officers on scene, Officers Arsenault, Machinewicz, and Joel. Officer Evans attended on scene after the search had already started and then drove away.

61PC Skeats testified that there was no keyhole for the trunk in this type of Hyundai vehicle. In order to get access to the trunk, you have to go inside the vehicle and pull the trunk lever. She confirmed that she did not seize the scooter or bottles of alcohol as evidence.

62The car was not towed away and was left on Cole Street when the police officers departed. The key to the vehicle was taken back to the Division by Officer Raza and lodged in Mr. Sillah’s property.

63She acknowledged that on the BWC footage there was a comment from a male officer, “Ninebot stolen” and then, “Do these even have serial numbers?” Her mindset went to thinking that if the officers had a serial number they could check if the scooter was stolen.

64She denied that she took the alcohol or scooter from the trunk. She had no explanation for why, after Mr. Sillah was released on bail and when he went to pick up his car, the alcohol and scooter were no longer in the trunk.

Evidence of PC Raza

65PC Raza has been employed with the TPS since July 2023. On July 6, 2023, she was working with Officer Skeats and attended the scene at approximately 7 p.m. They spoke to PC Dryden and PC McKinney who had one suspect in custody with a firearm recovered. They searched the vehicle. PC Raza unlocked the car doors.

66She does not know what happened to the scooter and alcohol after they shut the trunk.

67She confirmed that she did not take the alcohol or scooter. She had no explanation for how the alcohol or scooter went missing.

Evidence of Sidi Sillah

68Mr. Sillah testified that, in July 2023 he was living out of his car. On July 6, he stopped at the intersection of Dundas and River Street in Toronto heading westbound. Across from him, heading eastbound, three or four cars from the traffic light, was a police cruiser.

69After he was arrested, his intention was to speak to Ms. Rishma Gupta, the lawyer of a friend. He testified that PC McKinney told him to speak to duty counsel first because duty counsel picks up faster. PC McKinney made some calls for him and came back and advised him of the results. She said the first person hung up after she got through, and the second and third person did not pick up. He then told PC McKinney that he wanted to speak to his surety, and he did speak to his surety. PC McKinney told him that he had used up a lot of time and that there were other inmates that had come into the police station who needed to use the phone. He was not dissatisfied with the legal advice provided by duty counsel but he still wanted to speak with Ms. Gupta, the counsel of his choice.

70He testified that he had no spare keys for his Hyundai car.

71He was eventually released on bail on July 14, 2023. His surety Jason Femia, his friend Riley McMillan-Walsh, Riley’s girlfriend Erin Femia (Jason’s daughter), and Kyle Dixon (Mr. McMillan-Walsh’ friend), picked him up from the Toronto South Detention Centre (“TSDC”) and went to a parking lot in Liberty Village in Toronto. Ms. Femia had arranged to have his Hyundai vehicle towed from Cole Street to the Liberty Street parking lot on July 7 or 8, 2023. On July 14, when they arrived at the parking lot, the Hyundai was locked. After picking up his car in Liberty Village, he and the others drove to Bowmanville. Mr. MacMillan-Walsh told him that there was no alcohol or scooter in the trunk of his car. He did not notice any signs that the Hyundai had been broken into. Nothing was missing other than the alcohol and the scooter. He estimated the value of a new scooter was $800, but he got his scooter second-hand. He estimated that there had been 10 to 15 bottles of alcohol collectively worth around $500. At first, he thought the scooter and alcohol had been seized by police as evidence, but now he believes that police stole the items. He acknowledged that the clothes and shoes in the vehicle were also valuable.

72His arrest took place right in front of his girlfriend’s house. He felt very targeted and disrespected that day. His girlfriend’s family ended up kicking her out of the house. His girlfriend later committed suicide. Following that he was hospitalized many times and put on suicide watch. His Xanax addiction became much worse and he went through the worst period in his life.

Evidence of Riley MacMillan-Walsh

73Riley MacMillan-Walsh, 22, testified that he had known Mr. Sillah since childhood and they grew up together. He picked up Mr. Sillah by car from the TSDC after Mr. Sillah obtained bail on the within firearm and drug-related charges. His memory as to timing was unclear, but he recalled that he was with Erin Femia, and Erin’s father Jason Femia, who was Mr. Sillah’s surety. One of his friends, Kyle, also joined the group.

74After picking up Mr. Sillah from the TSDC, the group went to a parking lot in Toronto to pick up Mr. Sillah’s Hyundai. From there, the two cars went to Bowmanville where Ms. Femia lived. Mr. MacMillan-Walsh testified that, once they were in Bowmanville, Mr. Sillah started talking about the alcohol and the scooter in the trunk of the vehicle. Mr. MacMillan-Walsh opened the trunk himself, but the items were missing. He testified that the Hyundai did not look like it had been broken into.

75In cross-examination, Mr. MacMillan-Walsh believed that the group went to pick up the Hyundai around two weeks after Mr. Sillah was arrested and placed in custody. He could not remember the location where the Hyundai was parked but remembered that it was in Toronto. He could not remember how the Hyundai was unlocked or whether Mr. Sillah used a key.

Defence Charter Application

76Mr. Sillah raises the following Charter issues:

(a) Did the police breach his s. 8 rights since police did not have reasonable and probable grounds to engage in a warrantless search under the CCA?

(b) Did police breach his s.10(a) and s. 10(b) rights by failing to advise him of the reasons for his detention or providing him with his rights to counsel immediately?

(d) Did police breach his s. 7 rights and engage in an abuse of process by stealing property from the trunk of his car?

(e) If Charter violations are found, is the appropriate remedy to exclude the evidence under s. 24(2)?

77First, I will deal with the alleged breach of Mr. Sillah’s rights under ss. 8, 10(a) and 10(b) of the Charter and then turn to the question of whether Mr. Sillah was racially profiled, which would constitute a violation of his s. 9 Charter rights. Then I will deal with whether Mr. Sillah’s property was stolen by police, which would constitute a breach of his s. 7 Charter rights. Finally, I will deal with whether, in light of any Charter breaches, the evidence against Mr. Sillah should be excluded under s. 24(2) of the Charter.

Did the police breach Mr. Sillah’s s. 8 rights since police did not have reasonable and probable grounds to engage in a warrantless search under the CCA?

78 Section 8 of the Charter guarantees the right to be free from unreasonable search and seizure. A search will be reasonable if it is authorized by law, if the law itself is reasonable, and if the manner in which the search was carried out is reasonable: R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, at para. 23. A warrantless search is presumptively unreasonable and a breach of s. 8 of the Charter. Once it is established that a search is warrantless, the burden shifts to the Crown to justify its legality on a balance of probabilities: Collins, at para. 22, citing Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, at p. 161.

79Mr. Sillah submits that PC Dryden did not have reasonable and probable grounds to believe that cannabis was being stored unlawfully in the Hyundai. PC Dryden only smelt burn cannabis. He did not observe smoke and did not have concerns that Mr. Sillah was impaired. Mr. Sillah argues that since he advised PC Dryden that the cannabis was in “roaches” that were in a bag in the backseat of the Hyundai, the cannabis was in close fastened baggage and not accessible. Accordingly, no violation of the CCA occurred, and the police search under the CCA was not authorized.

80Further, Mr. Sillah argues that PC Dryden did not have subjective grounds for the CCA search. This is because PC Dryden was operating under the wrong legal standard believing that he only needed reasonable grounds to suspect that cannabis was being illegally stored, but the legal standard is reasonable grounds to believe. Finally, Mr. Sillah argues that, once the court finds that the underlying CCA search was unauthorized and a breach of his s. 8 Charter rights occurred, any property derived from further police conduct, such as the search of Mr. Sillah’s person which produced a handgun, and the search of his Hyundai which located the drugs, should be excised.

81The Crown disagrees and submits that, collectively, PC Dryden’s observations and interactions with Mr. Sillah furnished him with sufficient grounds to legally conduct a search of Mr. Sillah’s person and vehicle under the CCA.

82It is helpful at this point to describe the legal framework of s. 12 of the CCA. The relevant portions of the provision read as follows:

Transporting cannabis

12 (1) No person shall drive or have the care or control of a vehicle or boat, whether or not it is in motion, while any cannabis is contained in the vehicle or boat.

Exception

(2) Subsection (1) does not apply with respect to cannabis that,

(a) is in its original packaging and has not been opened; or

(b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle or boat.

Search of vehicle or boat

(3) A police officer who has reasonable grounds to believe that cannabis is being contained in a vehicle or boat in contravention of subsection (1) may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it.

83In R. v. McGowan-Morris, 2025 ONCA 349, 177 O.R. (3d) 81, the Court of Appeal explained that:

64As the section heading states, s. 12 regulates the transport of cannabis. In particular, it is focused on the storage of cannabis that is being transported. The clear purpose is to ensure that cannabis is not readily available to any person in a vehicle or boat. The public safety goal is to prevent the use of cannabis by the driver or the occupants of a car or boat while it is being operated: R. v. Sappleton, 2021 ONSC 430, at paras. 46 and 50; R. v. Moulton, 2023 ONCJ 140, at para. 234.

65It is an offence to infringe this provision, which may result in a fine for an individual of up to $100,000, a term of imprisonment as long as one year, or both: ss. 22, 23. As noted above, only the driver or a person in care or control of the vehicle or boat may be liable; the offence does not apply to passengers. Even so, s. 12(3) empowers a police officer, on reasonable grounds, to search, without a warrant, a vehicle or boat and any person in it (i.e., passengers).

84I find that PC Dryden had reasonable and probable grounds to believe that cannabis was being stored unlawfully in the Hyundai. Here, there was something more than just the burnt smell of cannabis that grounded PC Dryden’s belief. It was also the lighter on Mr. Sillah’s lap as well as the fact that PC Dryden believed, with justification, that the roaches were not fastened close and were readily accessible to any occupant of the Hyundai. PC Dryden was not just focused on the past or present but also on the reasonable risk that in the near future Mr. Sillah would operate a vehicle with readily accessible cannabis that could be consumed. I say this for multiple reasons:

85First, I do not believe that because the lighter was on a leash it became, as defence counsel described it, more of a fashion accessory than a lighter. In my view, a lighter that is leashed is still a lighter. Moreover, PC Dryden observed it sitting in Mr. Sillah’s lap. I find that it was reasonable for PC Dryden to connect the obvious presence of a lighter sitting on Mr. Sillah’s lap with the strong odour of burnt cannabis and to believe that a violation of the CCA had occurred.

86Secondly, based on the BWC footage, I find that the roaches in a bag on the back seat of the Hyundai were readily accessible to Mr. Sillah. I disagree that they were fastened closed or not otherwise readily available to any person in the vehicle. In R. v. Guerrier, 2024 ONCA 838, 174 O.R. (3d) 675, a Court of Appeal case involving the similarly worded provision of the Liquor Licensing Act, R.S.O. 1990, c. L.19 (the “LLA”), the court found that a zipped gym back within reach of an occupant is not “fastened closed” within the meaning of the LLA and stated that:

25… So “fastened closed” in this context requires something more than just closed by design: it means that the alcohol contained in the baggage must be closed in a manner that results in it being not readily available. Open alcohol placed in a gym bag that can be opened effortlessly by the passenger seated next to it by pulling a zipper is readily available, and is not contained in baggage “fastened closed”.

26This reading is in accordance with the object of the provision, which is to govern the safe transport of alcohol. Allowing a driver or other occupant of a vehicle easy access to open alcohol would be inconsistent with that purpose.

87Third, while I agree that PC Dryden misstated the correct legal standard when he testified at the hearing of the application, his actual conversation with Mr. Sillah, as captured on his BWC, demonstrates that he subjectively believed, and did not just suspect, that Mr. Sillah was operating a vehicle in breach of the CCA. PC Dryden told Mr. Sillah at 6:40:47 p.m. that the laws around transporting weed are similar to transporting alcohol and that if there are roaches that are not sealed in packaging inside the car that are readily accessible, it is the same as having open alcohol.

88Fourth, when PC Dryden initially patted down Mr. Sillah on the sidewalk, he was still engaged in a search under the CCA. It was not a safety search. PC Dryden testified that, had it been a safety search, he would not have permitted Mr. Sillah to empty his own pockets. After PC Dryden told Mr. Sillah to turn his engine off and step out, Mr. Sillah told the officer that he had some other weed too. PC Dryden testified that he took this to mean that Mr. Sillah had more weed than what was in the car. To be fair, Mr. Sillah then said, “Should I just give you the bag?” to which PC Dryden answered, “We’ll talk about where it is in the car?” This could suggest that PC Dryden knew that Mr. Sillah had no weed on his person and that the only weed he possessed was in the car. However, in further conversation, PC Dryden explained to Mr. Sillah that the CCA gives police the authority to search the driver and the entire car. Notably, PC Dryden stated, “You’re all good man, it’s just weed, we are checking for weed. It’s not as serious as you’re thinking right now, so it’s all good.” Further, PC Dryden stated, “I’m just going to give you a quick pat down so that you don’t have any more weed that we can find.” I find that PC Dryden was engaged in a CCA search with Mr. Sillah on the sidewalk. In doing so, police unexpectedly discovered a firearm in Mr. Sillah’s waistband. The warrantless search of Mr. Sillah was authorized under the CCA, and the encounter did not constitute a breach of Mr. Sillah’s s. 8 rights.

89Mr. Sillah complains of two more aspects of PC Dryden’s conduct that he describes as unreasonable. He alleges that PC Dryden reached into his underwear when removing the handgun, and that following his arrest and handcuffing, PC Dryden did another pat down search of his person at around 7:06 p.m. Mr. Sillah submits that this second search was not reasonable since police had already found a firearm on him and police could have waited to engage in a more extensive search of his person at the police station.

90On the first point, I find no evidence that PC Dryden reached into Mr. Sillah’s underwear. Instead, the evidence indicates that PC Dryden unexpectedly found the shape of the magazine end of a gun when he reached into the front kangaroo pocket of Mr. Sillah’s hooded sweater. This led to PC Dryden discovering the handgun that was in the waistband of Mr. Sillah’s pants. I accept PC Dryden’s testimony that he ran the tips of his fingers around the waistband which was at the top of Mr. Sillah’s pants or underwear so that any firearm or contraband being held there would be exposed or come loose. There was nothing unreasonable in how PC Dryden located the handgun in the waistband of Mr. Sillah’s pants or underwear.

91On the second point, PC Dryden initially testified that he had heard stories of officers bringing in accused into the station who still had firearms on them. In cross-examination, it appeared that PC Dryden may have been relating an incident that happened to himself. I find that PC Dryden’s second search of Mr. Sillah was cursory and motivated by a desire to ensure that Mr. Sillah did not have any other firearms on him before he was re-placed in the police cruiser and driven to the station. While I find that a second search of Mr. Sillah was ill-advised, I do not find, in the circumstances of this case, that PC Dryden’s conduct was so unreasonable that it breached Mr. Sillah’s s. 8 Charter rights.

Did police breach Mr. Sillah’s s. 10(a) and s. 10(b) rights by failing to advise him of the reasons for his detention or providing him his rights to counsel immediately?

92 Section 10(a) of the Charter states that everyone has the right on arrest or detention to be informed promptly of the reasons therefor.

93It is uncontested that PC Dryden advised Mr. Sillah immediately upon speaking to him that he was being stopped because he did not have a front license plate, a requirement under the HTA. This occurred at 6:37:22 p.m. No violation of s. 10(a) occurred here.

94Just under three minutes later, at around 6:40 p.m., PC Dryden advised Mr. Sillah of his concerns about cannabis since it “reeked of weed” and there was a lighter in Mr. Sillah’s lap. Mr. Sillah responded he had some roaches in a bag and pointed to the rear passenger seat. Once again, moving from the HTA infraction to the CCA violation concern, PC Dryden advised Mr. Sillah immediately about the reasons for his detention. Under s. 10(a) of the Charter, it sufficed to simply tell the driver that they were stopped because they could not have cannabis in the vehicle: McGowan-Morris, at para. 42. In sum, Mr. Sillah’s rights under s. 10(a) of the Charter were not infringed.

95In R. v. Bryan, 2024 ONSC 6058, at para. 52, Penman J. held:

Section 10(b) of the Charter obliges the police to advise a detained person of the right to speak with counsel without delay, and if the detained person exercises that right, the police must immediately provide the detainee with a reasonable opportunity to speak to counsel: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 38. It is well established that the right to consult counsel without delay exists because those who are arrested or detained are apt to require immediate legal advice that they cannot access without help because of the detention: R. v. Noel, 2019 ONCA 860, at para. 23; R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 34.

96In R. v. Ahmed, 2024 ONSC 3344, at para. 85, Presser J. described the three corresponding duties of police officers under s. 10(b):

A detainee’s right to counsel creates three corresponding duties for the police officers detaining them. These are: (1) the duty to inform a detained person of their right to counsel (the informational duty); (2) the duty to give a detained person who wishes to do so a reasonable opportunity to exercise the right without delay (the implementational duty); and (3) the duty not to seek to elicit information from a detained person until they have had a reasonable opportunity to retain and instruct counsel (the duty to hold off): Lafrance, at para. 72; R. v. Manninen, 1987 67 (SCC), [1987] 1 S.C.R. 1233, at para. 21; R. v. Ross, 1989 134 (SCC), [1989] 1 S.C.R. 3, at pp. 10-12; R. v. Black, 1989 75 (SCC), [1989] 2 S.C.R. 138, at p. 140.

97PC Dryden acknowledged that he did not provide Mr. Sillah with his RTC immediately upon detention under the CCA. He explained that, in July 2023, officers were not aware that RTC ought to be provided in respect of searches under the CCA. However, McGowan-Morris, a May 2025 Court of Appeal decision, has since clarified that once the police have reasonable grounds for a search under the CCA, and form an intention to search the vehicle and its occupants, the occupants are entitled to their full rights under s. 10(b) of the Charter: at para. 98. Suspension of the RTC will only be justified in exceptional circumstances, where there is an imminent risk to police or public safety. Safety concerns “of a general or non-specific nature applicable to virtually any search” will not qualify as exceptional circumstances: McGowan-Morris, at para. 102.

98The BWC video footage at 6:40 p.m. and PC Dryden’s testimony indicate that the officer believed he had reasonable grounds under the CCA to search Mr. Sillah and his vehicle. This was when PC Dryden advised that it “reeks of weed” and when Mr. Sillah said that he had some roaches in a bag in the back seat of the car. However, PC Dryden did not provide Mr. Sillah with his RTC until 19 minutes later at 6:59 p.m. after the discovery of a firearm and Mr. Sillah’s arrest.

99Mr. Sillah was arrested at approximately 6:55 p.m. upon the finding of a handgun in the waistband of his pants. After PC Dryden removed the gun from Mr. Sillah’s waistband, proved it safe, and stored it in his police cruiser, PC Dryden returned to Mr. Sillah and provided him his RTC at 6:59 p.m. I find that the four-minute delay between the time of arrest and providing RTC was for police safety reasons: R. v. Cameron, 2024 ONCA 231, 553 C.R.R. (2d) 52, at paras. 45-46. Hence, the effective delay in providing Mr. Sillah with his RTC was 15 minutes (19 minus 4 minutes). I find that this delay in Mr. Sillah being provided with his RTC was a breach of the informational component of Mr. Sillah’s s. 10(b) rights under the Charter.

100PC Dryden also asked Mr. Sillah several questions after his arrest. He asked, “Anything else I’m going to find on you bro?” Later on, after Mr. Sillah asked PC Dryden to loosen his cuffs a bit and PC Dryden did so, PC Dryden told Mr. Sillah that it would be really bad for him if police found further weapons on him. He asked him, “Do you have anything else on your body right now?” PC Dryden testified that he asked these questions out of a concern for officer safety. He did not intend to elicit evidence from Mr. Sillah. However, I find that this post-arrest questioning of Mr. Sillah also breached his s. 10(b) rights as the police should have held off questioning Mr. Sillah until he spoke to counsel.

101Moving on to the implementational component of s. 10(b), PC Dryden asked Mr. Sillah if he had his own lawyer, to which Mr. Sillah answered no. PC Dryden asked, “So do you want duty counsel? It’s free.” Mr. Sillah answered that he was going to call a friend first to try and get the friend’s lawyer. PC Dryden said, “Okay”, and that police would try and facilitate that; he then asked if, however, police couldn’t do that, whether he wanted police to contact duty counsel (i.e., a free legal aid lawyer). Mr. Sillah nodded his head affirmatively.

102The police implementation responsibility under s. 10(b) of the Charter was described in R. v. Edwards, 2024 ONCA 135, 434 C.C.C. (3d) 225:

36The obligation on the police to facilitate contact with counsel and the responsibility of the detainee to take reasonable steps to contact counsel work in tandem. The police must make reasonable efforts to connect the detainee with counsel of choice “without delay”: Willier, at para. 29. The detainee must exercise reasonable diligence in his or her efforts to connect with counsel of choice: Willier, at para. 33; R. v. Ghotra, 2020 ONCA 373, 388 C.C.C. (3d) 416, at paras. 33, 38-41, aff’d 2021 SCC 12, 405 C.C.C. (3d) 160. Both obligations are tested against reasonableness-based standards: R. v. Tremblay, 1987 28 (SCC), [1987] 2 S.C.R. 435, 37 C.C.C.(3d) 565; Bartle, at p. 192; R. v. Richfield (2003), 2003 52164 (ON CA), 178 C.C.C. (3d) 23 (Ont. C.A.).

103In Edwards, the Court of Appeal rejected an approach that asks whether police acted as diligently as the detainee would have acted.

40I would also observe that there are significant difficulties in applying a diligence standard that would incorporate the steps a particular detainee would take in a given situation. The police would in most cases have no way of knowing what the detainee would have done in the specific situation, and therefore no way of knowing how they could properly comply with their obligation under s. 10(b). However, if the police obligation is measured strictly in terms of reasonable diligence, the police should have no difficulty in understanding the requirements imposed by that obligation in any given situation.

104The court in Edwards adopted a “reasonable diligence standard”:

42The purpose of s. 10(b) is best served by testing police compliance with their requirements against the reasonable diligence standard. That standard will, of course, reflect the particular circumstances of the case, including the extent to which the police have assumed control of the detainee’s ability to contact counsel. If the police assume that control, it is reasonable to expect that the police will take a more active role in contacting counsel.

105After being given his RTC, Mr. Sillah requested to contact his friend to contact a lawyer. Once at the station, PC McKinney put Mr. Sillah in touch with duty counsel very quickly. She denied that she forced Mr. Sillah to speak to duty counsel but acknowledged that she suggested it to him. In hindsight, she agreed that she should not have done so but she felt she was correct that Mr. Sillah was not going to be able to reach his own lawyer because no one called back. Subsequently, PC McKinney called three individuals for the purpose of finding a lawyer for Mr. Sillah. Contact was not made with anyone who could provide a lawyer, but contact was made with a potential surety.

106In R. v. Jhite, 2021 ONSC 3036, 405 C.C.C. (3d) 381, Stribopoulos J. held:

36In assessing whether police afforded a detainee a reasonable amount of time to speak with their chosen lawyer and whether a detainee has been reasonably diligent in their efforts to do so, the availability of duty counsel is also a relevant and important consideration. In Brydges, the Supreme Court refrained from imposing time limits on how long the police must wait for counsel of choice to become available. However, it noted that “[w]aiting for eight to ten hours for counsel of the detainee’s choice to become available may not be justified … when duty counsel has been available all along”: at p. 216; see also R. v. Richfield (2003), 2003 52164 (ON CA), 178 C.C.C. (3d) 23 (Ont. C.A.), at paras. 8-9.

107I find that PC McKinney moved too quickly to put Mr. Sillah in touch with duty counsel, thereby effectively negating his right to contact his counsel of choice. Ultimately, Mr. Sillah was not dissatisfied with his call with duty counsel. Rather, he maintained that he still wanted to contact his counsel of choice. I accept PC McKinney’s evidence that she was not asked to make more calls by Mr. Sillah to facilitate him speaking to counsel of choice. However, I find that PC McKinney moving precipitously to put Mr. Sillah in contact with duty counsel, without really exploring whether his counsel of choice could be found, is a breach of Mr. Sillah’s 10(b) rights under the Charter. The situation faced by Mr. Sillah is not akin to R. v. McCrimmon, 2010 SCC 36, [2010] 2 S.C.R. 402, where the Supreme Court of Canada concluded that police did not violate s. 10(b) in circumstances where, after leaving a message for private counsel, the police offered McCrimmon the opportunity to call duty counsel, an offer he accepted. Nor is it a situation akin to R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, where the accused was offered and made an unsuccessful attempt to call a private lawyer and was then informed by the police of the immediate availability of duty counsel. Here, I find that police unduly emphasized the immediate availability of duty counsel and effectively steered Mr. Sillah to duty counsel even though he asked for assistance in contacting counsel of his choice. I find that police breached Mr. Sillah’s s. 10(b) rights by denying him a reasonable opportunity to contact counsel and facilitate that contact.

Did police breach Mr. Sillah’s s. 9 Charter rights by racially profiling him?

108Racial profiling is criminal profiling based on race. Racial or colour profiling refers to that phenomenon whereby certain criminal activity is attributed to an identified group in society on the basis of race or colour resulting in the targeting of individual members of that group. In this context, race is illegitimately used as a proxy for the criminality or general criminal propensity of an entire racial group: R. v. Brown (2003), 2003 52142 (ON CA), 64 O.R. (3d) 161 (C.A.), at para. 7.

109The attitude underlying racial profiling is one that may be consciously or unconsciously held. That is, the police officer need not be an overt racist. His or her conduct may be based on subconscious racial stereotyping: Brown, at para. 8.

110In summary, Mr. Sillah submits that he was racially profiled for the following reasons:

(a) He is a young, Black man. PC Dryden likely identified his race when his police cruiser was a few cars away facing Mr. Sillah’s Hyundai.

(b) He was not pulled over initially on Dundas Street, a main thoroughfare, for the minor infraction of having a missing front license plate on his vehicle. Instead, PC Dryden followed Mr. Sillah and waited until he was on Cole Street, a much smaller street in the Regent Park area of Toronto, a predominantly Black neighbourhood, where the interaction between PC Dryden and Mr. Sillah would not be observed by as many people.

(c) The police concern for the HTA infraction and traffic stop was a pretext to engage in a criminal investigation of a suspect from a racialized community.

(d) PC Dryden treated Mr. Sillah as a criminal suspect from the outset by initiating the traffic stop for a minor HTA infraction and continuing its enforcement even when it was obvious that Mr. Sillah had a front license plate, albeit placed on the dashboard of his car. Mr. Sillah submits that if he was a white middle-aged man driving a luxury car in a wealthy neighbourhood in Toronto, he would not have received such adverse treatment.

(e) Even if PC Dryden did not initially know that Mr. Sillah was Black, he would have concluded this from Mr. Sillah’s name, which sounds like the name of a person of colour.

(f) PC Dryden believed for conscious or unconscious racial bias reasons that Mr. Sillah presented a danger which is why he texted another officer, PC McKinney, to attend on scene for what was purportedly a routine HTA traffic stop, and then a search for cannabis under the CCA.

(g) By texting PC McKinney and not using the police radio, PC Dryden sought to avoid scrutiny of his communications with PC McKinney, which may have contained language averting directly or indirectly to Mr. Sillah’s race.

(h) PC Dryden knew that Mr. Sillah had no criminal record and that he was not facing any outstanding charges. Yet, PC Dryden did a search of Mr. Sillah before searching the Hyundai for improperly stored cannabis.

(i) PC Dryden treated Mr. Sillah unfairly and breached his Charter rights by continuing to question him before he had the opportunity to contact counsel and by patting him down again to determine if he had weapons on him other than the one found in his waistband.

111The Crown disputes that Mr. Sillah was racially profiled by PC Dryden. The Crown argues that PC Dryden treated Mr. Sillah politely, professionally, and with respect.

112While I accept that racial profiling can be subtle and that various indicia need to be looked at cumulatively, I do not find that Mr. Sillah’s treatment by police was tainted by racial profiling.

113I find that it is pure speculation to suggest that PC Dryden noticed the racial identity of a driver across a distance of about five cars at around 6:30 p.m. in the evening. PC Dryden’s evidence was that he looked at the lower part of what turned out to be Mr. Sillah’s vehicle and noticed that there was no license plate. I note that PC Dryden was on traffic duty that day. He had written three tickets earlier. He was not on general patrol duty.

114I do not agree with the submission that PC Dryden permitting Mr. Sillah to drive on for a few minutes was related to his stopping him at a less public location. Initially, PC Dryden and Mr. Sillah were headed in opposite directions. It would have been challenging for PC Dryden to signify to Mr. Sillah that he wanted him to pull over when there were a few cars between them. Moreover, PC Dryden did not pull Mr. Sillah over. It was Mr. Sillah who stopped on Cole Street to let a female passenger out.

115The entire interaction between PC Dryden and Mr. Sillah was caught on BWC. I find that PC Dryden spoke to Mr. Sillah in a relatively friendly and polite manner. PC Dryden immediately identified his concern that Mr. Sillah did not have a license plate on the front of the Hyundai. PC Dryden briefly explained his concern about the strong odour of burnt cannabis but clarified that he did not notice any redness in Mr. Sillah’s eyes. He advised Mr. Sillah that he was going to return to his police cruiser and told Mr. Sillah to “chill out.” Rather than issue a ticket under the HTA for the license plate infraction, PC Dryden issued a warning to Mr. Sillah. Whereas Mr. Sillah was technically in breach of the HTA regulation for failure to sign his vehicle permit, PC Dryden had him sign it in ink. I find, up until the discovery of a handgun in Mr. Sillah’s waistband, PC Dryden’s demeanour was relaxed and calm.

116Mr. Sillah alleges that PC Dryden and PC McKinney conspired to hide evidence of how PC Dryden contacted PC McKinney to request her attendance at the traffic stop on Cole Street. He submits that it must be that PC Dryden texted PC McKinney and that, based on the officers’ inconsistent and suspicious answers at the application hearing and in the preliminary inquiry about whether and why they no longer retained the text messages on their work phones, it is likely that the content of those messages averted to his race. Mr. Sillah’s counsel described this as a deliberate police decision to suppress and destroy evidence constituting an obstruction of justice. Counsel urges me to make an adverse inference in respect of the police officers’ testimony. However, I do not read the evidence the same way.

117PC Dryden testified that he may have texted PC McKinney rather than use the police radio in order not to tie up a two-person unit. I also accept PC McKinney and PC Dryden’s testimony that they checked their work phones and the impugned text message or text messages could not be found. I further accept their evidence that there was nothing specific about Mr. Sillah in the message sent by PC Dryden to PC McKinney. On the evidence before me, this is not a case where the police conduct involved a deliberate attempt to compromise an accused’s ability to make full answer and defence, or otherwise undermined the fairness of the trial process: R. v. Carosella (1997), 1997 402 (SCC), 112 C.C.C. (3d) 289 at 310-312 (S.C.C.).

118I do not agree that PC Dryden requesting the back up of PC McKinney was significant. I did not receive evidence on what is regular police practice in respect of CCA searches, but PC Dryden testified that it is an officer safety issue to have another present if an officer is conducting a CCA search. There is a risk that the detainee can abscond while a vehicle search is being conducted. As PC Dryden testified, all police interaction with members of the public entails a certain degree of risk. Even after the handgun was unexpectedly found on Mr. Sillah’s person, PC Dryden and PC McKinney remained calm but alert. Mr. Sillah was arrested and placed in a police cruiser. Even though I found it excessive that PC Dryden patted Mr. Sillah down again, I find that PC Dryden wanted to ensure that Mr. Sillah was not re-entering the police cruiser or arriving at the police station with a handgun still in his possession.

119I find that, initially, this was a routine traffic stop based on Mr. Sillah’s HTA infraction. It then evolved into a CCA search when PC Dryden detected the heavy odour of bunt cannabis, saw a lighter in Mr. Sillah’s lap, and Mr. Sillah confirmed that he had a bag of roaches in the back seat. When Mr. Sillah got out of his car, he told PC Dryden he had more weed. Understandably, this led PC Dryden to believe that Mr. Sillah had even more weed than what he had pointed to in the back of his car. I find that PC Dryden continued to treat Mr. Sillah in a courteous manner. While I found certain breaches of Mr. Sillah’s Charter rights under s. 10(b), I do not find that they occurred directly or indirectly due to Mr. Sillah’s race.

Did police breach Mr. Sillah’s s. 7 rights and engage in an abuse of process by stealing property from the trunk of his car?

120Mr. Sillah alleges that police stole a second-hand electric scooter and 10 to 15 bottles of alcohol from the trunk of his car. When Mr. Sillah was arrested on July 6, 2023, the BWC confirms that these items were present in the trunk of his vehicle. Yet, when Mr. Sillah returned to pick up his vehicle on July 14 from a parking lot in Liberty Village in Toronto and then drove to Bowmanville, he opened the trunk to find that these items were missing. Initially, Mr. Sillah believed that police had seized these items as evidence, but later he concluded that police stole the items from his car.

121Mr. Sillah points out that during the search of the trunk of his vehicle, one of the officers made a remark about “ninebot stolen” and showed an interest in the bottles of alcohol. Mr. Sillah testified that the estimated value of a new scooter is $800, but his was used. He estimates the value of the liquor bottles was $500. Mr. Silla acknowledged that the clothes and athletic shoes in the vehicle were also valuable but were not stolen.

122The onus is on Mr. Sillah to convince the court on a balance of probabilities that police stole his property. I find that he has not met this onus. The allegation that the property was stolen rests solely on the evidence of Mr. Sillah and, to a lesser extent, on his friend Mr. MacMillan-Walsh.

123The BWC footage of the police officers confirms that his scooter and alcohol were in the trunk when police closed it. Mr. Sillah testified that his girlfriend arranged the towing of his car from Cole Street to the parking lot in Liberty Village. He is uncertain when the car was moved to the parking lot. The parking lot was an above ground lot near a grocery store. The evidence suggests that the car could have been parked in the lot for up to 8 days, from July 6 to July 14, 2023. Mr. Sillah acknowledged that he was living out of his car at the time and had other valuable items like headphones, speakers, and athletic wear in the vehicle but these items were not stolen. Notably, Mr. Sillah did not promptly report the theft of his items to the police. He testified that he did not think that he would get anywhere reporting the theft to police.

124Mr. Sillah testified that there was only one key to his vehicle and that key was taken by police and placed with his property.

125There are several possibilities as to why the scooter and alcohol went missing. One, as Mr. Sillah alleges, is that a police officer who had the key to the vehicle surreptitiously re-opened the vehicle and used the lever to open the trunk and remove the property. Given that PC Skeats and Raza were the last known officers to deal with the Hyundai, it could have been one or both of them, or it could have been one of the other officers latterly on scene. Another possibility, sticking with it being a police officer responsible, is that it was a police officer who had access to the car key and Mr. Sillah’s property at the station. That officer would have had to return to the vehicle on Cole street and remove the items from the trunk. Of course, that officer would be taking a significant risk given that Mr. Sillah’s girlfriend at the time lived very near where the car was parked. Also, based on Mr. Sillah’s evidence, the car could have been moved shortly after his arrest.

126Another possibility is that the items were stolen from the Hyundai when it was parked for up to eight days in an above-ground parking lot near a grocery store. I assume that this is a high traffic area. Someone in the parking lot could have broken into the vehicle and stolen the items from the trunk, although other people in the parking lot could have discovered a would-be thief except, of course, after business hours or at night.

127I accept PC Skeats’ evidence that the male officer’s reference to “ninebot stolen” was not a reference to one of the officers wanting to steal the second-hand scooter, but rather a reference to the officer wondering whether the “ninebot” scooter had been stolen and had serial numbers that could be traced.

128In any event, given the multiple possibilities that someone other than a police officer could be responsible for the property going missing, and the scant evidence pointing to a police officer, I cannot say that it is more likely than not that a police officer stole Mr. Sillah’s property. I do not find that Mr. Sillah’s s. 7 Charter rights were breached.

If Charter violations are found, is the appropriate remedy to exclude the evidence under s. 24(2)?

129I found that police did not breach Mr. Sillah’s ss. 7, 8, 9, and 10(a) Charter rights.

130However, I found that police violated Mr. Sillah’s s. 10(b) Charter rights by:

(a) Failing to provide him with his RTC immediately upon detaining him under the CCA. The delay was 15 minutes;

(b) Continuing to ask Mr. Sillah some questions after his arrest, thereby failing to hold-off until he spoke with counsel; and

(c) Moving too quickly and effectively steering Mr. Sillah toward duty counsel, thereby denying him a reasonable opportunity to contact counsel of his choice.

131When faced with an application for exclusion under s. 24(2) of the Charter, a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute: Paschek v. R., 2025 ONSC 7022, at para. 19, citing R. v. Grant, 2009 SCC 32, at para. 72.

132Given the generous interpretation of the threshold requirement which asks whether the impugned evidence was “obtained in a manner” that infringed or denied a Charter right or freedom, I will assume that there is a sufficient nexus between the handgun and drug property that was found and Mr. Sillah’s detention and arrest.

133The McGowan-Morris decision, released in May 2025, almost two years after Mr. Sillah’s arrest in July 2023, clarified that there is no suspension of s. 10(b) RTC rights when detaining an individual under the CCA. The Court of Appeal acknowledged that prior to its decision the law in this area was unclear. PC Dryden testified that many police officers believed that non-criminal searches, of which a CCA search is one, did not require the provision of RTC. In no way does this diminish the fact that, looking back, Mr. Sillah’s Charter rights were breached. However, it does put into perspective that the constitutional infringement was not in bad faith and was inadvertent. Moreover the actual delay was 15 minutes.

134While I found that Mr. Sillah’s s. 10(b) rights were breached by police failing to hold off in questioning him, I find that PC Dryden’s questions were officer safety related. Similarly, I find that PC McKinney was misguided in too quickly steering Mr. Sillah towards duty counsel instead of first spending the time to facilitate his contact with his counsel of choice, but here, too, the officer’s intention was to assist Mr. Sillah in getting legal advice faster. I find that the police errors were in good faith, and the seriousness of the Charter-infringing state conduct falls on the lower end of the spectrum.

135I also find that the impact of the s. 10(b) breaches was minimal. The delay in providing Mr. Sillah with his RTC was 15 minutes. The questioning that occurred after Mr. Sillah’s arrest, notwithstanding that he had not spoken to a lawyer, was safety related. Mr. Sillah did not make any self-incriminating statements as a result of the delay. The firearm and drug property that was found on Mr. Sillah’s person and in his car did not arise from the infringement. Rather, they arose from what I found to be a legitimate CCA detention and then a search incident to arrest following the unexpected discovery of a firearm. Mr. Sillah was satisfied with speaking to duty counsel, and ultimately PC McKinney made reasonable efforts to facilitate Mr. Sillah speaking to counsel of his choice .

136The third Grant factor, society’s interest in the adjudication of the charges on their merits, generally favours inclusion, and the facts here are a case in point. The police found a loaded handgun in Mr. Sillah’s waistband that he had while operating a vehicle on public streets. In his car, police found a variety of drugs including over 24 gram of fentanyl and 95 grams of cocaine, both deadly drugs. Excluding the evidence would effectively preclude the Crown’s case from proceeding. The third factor strongly favours inclusion.

137I find that the seriousness of the Charter infringement was minor, the impact on Mr. Sillah minimal, and society’s interest in the adjudication of the charges very strong. The inclusion of the evidence, notwithstanding the s. 10(b) Charter breach, would not bring the administration of justice into disrepute. I decline to exclude the evidence under s. 24(2) of the Charter.

Conclusion

138The applicant submitted that his traffic stop, detention, and arrest where related to racial profiling and that police stole property from the trunk of his car, thereby breaching his rights under ss. 7, 8, 9, 10(a) and 10(b) of the Charter.

139After considering all the evidence, I find that PC Dryden noticed in the course of his traffic enforcement duties that Mr. Sillah’s Hyundai had a missing front license plate. The officer believed for good reason that Mr. Sillah was in breach of the HTA. Then, what started out as an HTA infraction roadside stop moved into a legitimate inquiry under the CCA, which led to the search of Mr. Sillah’s person and his arrest following the discovery of a loaded firearm in his waistband. No racial profiling was involved. Subsequently, a search of the Hyundai incident to arrest revealed the presence of drugs purportedly in contravention of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.

140There were no breaches of the applicant’s ss. 7, 8, 9, and 10(a) rights under the Charter. While there were minor breaches of Mr. Sillah’s 10(b) rights, the evidence against him should not be excluded under s. 24(2) and Mr. Sillah’s charges should proceed to be adjudicated on their merits at trial.

Pinto J.

Released: March 23, 2026