ONTARIO SUPERIOR COURT OF JUSTICE
(LONDON)
COURT FILE NO.: CR-519-23
DATE: 20260224
BETWEEN:
HIS MAJESTY THE KING Respondent – and – TRISTAN GARREL Applicant
A. Dorre and K. Johnson, for the Federal Crown and C. Heron for the Provincial Crown K. Heathcote and C. Demelo for the Applicant HEARD: January 15 and February 2, 2026
reasons for decision ON CHARTER APPLICATION
JUSTICE e. TEN cATE
Overview
1This is an application under ss. 7 , 8 , 9 and 10(b) of the Canadian Charter of Rights and Freedoms 1 to exclude statements made by the Applicant and physical evidence, including: drugs, a handgun, and ammunition seized from a silver BMW on June 8, 2022.
2The Applicant alleges that police effected an unlawful psychological detention and breached his right to counsel when they confronted him and compelled him to hand over a key fob to the BMW. The Crown contends the interaction was non‑detentive, any participation was consensual, and the search was independently authorized by a judicial warrant.
3For reasons that follow, I find that the Applicant was detained within the meaning of s. 9 , that police infringed his s. 10 (b) and s. 7 rights, and conducted an unreasonable search contrary to s. 8 by conscripting him to facilitate the search. After considering the factors in Grant , I find that the admission of the physical evidence -- drugs, a handgun and ammunition -- would not bring the administration of justice into disrepute. However, I exclude the statements given by the Applicant to the police.
Findings of Fact
4On this application, I heard evidence from several investigating officers and received agreed statements of facts from others; my findings are distilled from this evidence.
5On June 8, 2022, London Police Service executed three search warrants: a residence at 519 Nelson Street, a white Hyundai Elantra located in the driveway, and a silver BMW associated to the Applicant. During the residential search, officers found and seized a BMW key fob from a toiletry bag but could not initially locate the BMW.
6The Applicant was arrested, taken to LPS headquarters, and released unconditionally with his property, including the BMW key fob. Officers candidly acknowledged their intent to conduct surveillance in the hope the Applicant would lead them to the BMW.
7Surveillance followed the Applicant between the residence, police headquarters, the London Public Library, and ultimately to 1199 Hamilton Road which is a housing complex. Detective Sergeant Dowler reported the BMW had been located near Unit 18. He advised members of the team not to let the Applicant get into the BMW for safety reasons, and to prevent him from attempting to ram his way out because there were numerous residents walking about the complex.
8DS Dowler then advised he had located the Applicant in the complex. He and Detective Constable Vanderidder approached the Applicant. DC Vanderidder wore a vest over his plain clothes, marked “POLICE”. Each stood 5–10 feet to either side of the Applicant, forming a triangular configuration. At least one of the officers was armed. The Applicant appeared to the officers hunched over, visibly distressed, and breathing heavily.
9According to the Agreed Statement of Facts, the following exchange then took place:
Dowler : “Hey Tristan, you remember me from this morning, the detective who asked about your car?”
Garrel : “Yeah.”
Dowler: “I know your care is parked in front of Unit 18 right now. We have a warrant to search your car, I would like your keys to open the car, could I please have your keys?”
Garrel : “I’m here to visit my aunt.”
Dowler : “That’s perfectly okay, you are not under arrest, we are not here to arrest you, you can go at any time, I just don’t want to wreck your car having to get into it, using the keys would be the best.”
Garrel : “I don’t want you to wreck my car.”
Dowler : “I don’t want to…come with me to the car if you want, you can unlock it, I will give you a copy of the warrant, it’s with the detective at the car, it’s just over there.”
Garrel : “I don’t have my keys”.
Dowler : “I know you have your keys, once we are done searching the car, you can have it back.”
Garrel : “Honestly I don’t have my keys.”
Dowler : “I can see you handling them.”
[At this point, the Applicant reached into his left pants pocket and handed DC Vanderidder the BMW key fob.]
Dowler: “Thanks bud…why don’t you come meet us over at the car if you like, we can give you a copy of the warrant.”
[DC Dowler waited for the Applicant to come over to the car, but he left.]
10No Charter cautions were provided during this interaction, or during a previous interaction at 519 Nelson Street.
11DC Vanderidder testified he asked the Applicant for the keys and told him that he had two options – hand over the keys or risk damage to the car. He also testified he had the option of “slim jimmying” the door to open it without a key because he had a valid search warrant. He denied threatening the Applicant or attempting to force compliance – he simply wished to prevent damage to the Applicant’s car.
12The officers used the key fob to access the BMW.
13Police later transported the BMW to headquarters and conducted a search, locating a backpack with fentanyl (248 grams), cocaine (959 grams), methamphetamine (1661 grams), and suspected carfentanyl (95 grams), together with a Glock .40 calibre handgun with ammunition.
Issues
14The issues are:
(a) Was the Applicant detained, contrary to s. 9 ?
(b) If detained, did police breach ss. 7 and 10 (b) by failing to advise of and implement the right to counsel?
(c) Did police infringe s. 8 by conscripting the Applicant to provide the key fob (and thus communicative/confirmatory evidence of control) to facilitate the search?
(d) If any breaches are established, should the evidence be excluded under s. 24(2)?
Positions of the Parties
15The Applicant submits the encounter was an engineered, investigatory confrontation of a sole suspect; the officers’ triangulation, the wearing of a vest marked “POLICE”, visible armament, and ultimatum — “hand over the keys or we will break into the car”— left no meaningful choice. He says this was a clear psychological detention, with a failure to provide s. 10 (b) advice and a conscriptive seizure of self‑incriminatory, non‑verbal evidence (the key hand‑over), ultimately leading to the vehicle search.
16The Crown answers that the Applicant was told he was not detained, was free to leave (and did so after handing over the fob), and that the officers’ request merely sought to avoid damage to his property in executing a valid search warrant. The Crown maintains the Applicant consented to handing over the key fob, and, in any event, the warrant independently authorized the search of the BMW.
Analysis
A. Detention (ss. 9 and 10)
17The Crown submits they are not seeking to lead evidence of the verbal exchanges at trial. However, they are relying on the Applicant’s possession of the key fob earlier when it was handed back to him after the detention at 519 Nelson Street, the surveillance, and the implied non-verbal communication regarding handing over the key fob during the second interaction.
18The Applicant submits that the key fob would not have been present, but for the breaches of his Charter rights, which means that any evidence obtained must be excluded.
19The parties agree on the general principles. A detention may be physical or psychological. A psychological detention arises where a reasonable person in the individual’s circumstances would conclude that they had no meaningful choice but to comply with police direction: R. v. Grant , 2009 SCC 32 at paras. 30–32 and 44–46 ; R. v. Suberu , 2009 SCC 33 at paras. 2–3 .
20To determine whether psychological detention has occurred, the court may consider:
a. The circumstances of the encounter with the state, including whether the police were providing general assistance or making general inquiries, whether the individual was being singled out for a focused investigation, or whether the police decided a crime was committed and the accused was the perpetrator;
b. Whether there are reasonable and probable grounds that the individual is the likely suspect;
c. The nature of the police conduct, including the language used, physical contact, where the encounter occurred, presence of other people and the duration of the interaction;
d. The subjective belief of the individuals; and
e. The characteristics of the individual, including age, physical stature, minority status and level of sophistication: Grant , at para. 44 .
21Verbal assurances are not determinative; police cannot convert a coercive reality into a voluntary one simply by saying “you are not detained”: Grant , at paras. 30–32 ; Suberu , at para. 2 .
22Additionally, courts must remain attentive to the lived experience of racialized persons in assessing the coercive weight of police presence and tactics: R. v. Le , 2019 SCC 34 at paras. 1–3 , 75–86.
23Here, the police obtained three search warrants for the Applicant’s residence and two cars associated with him. They arrested and released him earlier the same day. After giving him back the key fob associated with the missing BMW, they surveilled him, hoping he would lead them to it. In my view, there is no question they targeted a known suspect and had reasonable and probable grounds to suspect he was the perpetrator.
24After locating the BMW, the officers approached the Applicant in a coordinated manner, flanking him in triangular formation. At least one officer was armed, and one or both were wearing vests marked “POLICE”. The Applicant was alone, visibly distressed, and a racialized individual. The officers’ ultimatum — hand over the keys or we will break into your vehicle — left him no practical alternative. The assertion “you are not detained” cannot overcome the coercive reality created by the officers’ conduct.
25In the totality of the circumstances, I conclude a reasonable person would not have felt free to refuse to hand over the keys or to leave. I therefore find a psychological detention contrary to s. 9.
B. Right to Counsel (s. 10(b)) and Right to Silence (s. 7)
26Upon detention, police must immediately inform the detainee of the right to retain and instruct counsel without delay and must cease eliciting evidence until the detainee has had a reasonable opportunity to exercise that right: R. v. Manninen , 1987 SCC 67 (SCC) , [1987] 1 S.C.R. 1233 at 1239–41; Suberu , at paras. 2–3 ; R. v. Sinclair , 2010 SCC 35 at paras. 25–29 .
27Police may not undermine or delay the implementation of 10(b) while simultaneously seeking inculpatory evidence: Sinclair , at paras. 28–29 .
28Section 10(b) of the Charter imposes three duties on state authorities who arrest or detain a person:
a. To inform the detainee of their right to retain and instruct counsel without delay and the existence and availability of legal aid and duty counsel;
b. If a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right; and
c. To refrain from eliciting evidence from the detainee until they have had the reasonable opportunity: R. v. Bartle , 1994 SCC 64 (SCC) , [1994] 3 S.C.R. 173 at 191-193.
29For the right to counsel to be effective, the detainee must have had access to the advice from counsel before being questioned: Bartle , at 191-193.
30Section 10(b) requires that the detainee is advised of their right to counsel. The main function of the right to counsel is for an accused person to understand their legal rights, including the right to silence: R. v. Herbert , 1990 SCC 118 (SCC) , [1990] 2 S.C.R. 151 at 176. The essence of this right is to ensure the person has the freedom to refuse to make a statement to authorities. This right to silence requires the additional right to consult counsel such that the accused person is informed of the consequences of choosing to speak to police or remain silent: Herbert , at 186.
31The Crown concedes that the police breached their duty to “hold off” during a prior interaction at 519 Nelson Street; the only issue is whether they also breached their duty at 1199 Hamilton Road. It is common ground that during the second interaction, the officers provided no 10(b) advice to the Applicant, and no opportunity to for him to consult counsel. Although the Crown is not relying upon either verbal exchange, they are relying upon implied non-verbal communication (the handing-over of the key fob) during the second interaction.
32In my view, this case is analogous to R. v. Stemberger , 2012 ONCJ 31 , in which the Ontario Court found that the accused’s s. 10(b) rights were violated when the police executed a search warrant against the accused, detained him, and asked him to provide a password to access his computer. While not binding upon me, I find the reasoning of Borenstein, J. persuasive.
33In Stemberger , the police obtained a warrant to search the residence of the accused; they suspected that he had accessed child pornography. Upon initiation of the search warrant, which they were given the power to seize computers, the police spent an excessive amount of time detaining the accused. During the detention, the police questioned him about the password to his computer, which he ultimately gave them. The police then proceeded to search the contents of the hard drive, discovering pornographic images.
34In my view, the provision of a password in Stemberger is akin to the handing over of the key fob in this case; although non-verbal, both are “statements” obtained by the police through questioning during detention.
35On this evidentiary basis, I find the failure to advise and to hold off from eliciting evidence until counsel could be contacted breached the Applicant’s s. 10(b) and s. 7 Charter rights during the second interaction at 1199 Hamilton Road. Given the Crown’s admission, I also find that they breached the same rights during the earlier interaction at 519 Nelson Street.
C. Unreasonable Search (s. 8)
36Although the police had search warrants for the residence at 519 Nelson Street and the two vehicles, they had no warrant (nor could they obtain one) to search the person of the Applicant. The law is clear that a warrant to search a place or thing does not authorize the state to conscript an individual to participate in or facilitate that search, nor to obtain self‑incriminating, communicative evidence by coercion.
37Compelling a suspect to perform an act that communicates control or knowledge — here, producing and handing over the key fob to enable access — engages core self‑incrimination and privacy interests. The “conscription” concern is recognized in R. v. Stillman , 1997 SCC 384 (SCC) , [1997] 1 S.C.R. 607 at paras. 74–80 (pre‑ Grant , but the concern remains relevant to the s. 24(2) analysis).
38In this case, the Applicant’s handing over of the keys was not voluntary primarily because police conduct negated his freedom to choose. Although police had a warrant to search the BMW, they chose to confront the Applicant in triangular formation, armed and wearing POLICE vests. In so doing, they secured his compelled his participation in the search. The ultimatum extracted non‑verbal, communicative evidence (handing over the key fob) which confirmed his control of the vehicle as well as facilitating access to it.
39The Crown submits that the Applicant consented by providing the key. However, consent to search must be voluntary, informed, and given by a person with authority; the onus rests on the Crown: R. v. Wills (1992), 1992 2780 (ON CA) , 7 O.R. (3d) 337 (C.A.) at 354–58; see also R. v. Mellenthin , 1992 50 (SCC) , [1992] 3 S.C.R. 615 at 624–26.
40In my view, the Crown has not satisfied the onus to establish consent, because such consent was obtained by police coercion which negated the Applicant’s freedom to choose whether to hand over the key fob. Since he was denied his 10(b) Charter rights, he had no access to legal advice and was unaware of the consequences of handing it over, including the fact that the police may use his non-verbal statement as proof of culpability.
41The fact that DC Vanderidder could have “slim-jimmied” the door is further evidence that the interaction with the Applicant was deliberately designed to obtain evidence linking him to the BMW. The alternative would have been to simply leave the Applicant alone, tow the BMW to police headquarters and open the car using whatever means necessary. There was no need to breach his Charter rights to further the investigation; the police simply chose to do so. Here, the interaction was about controlling the Applicant, not accessing the vehicle.
42I therefore conclude that the manner of search was unreasonable under s. 8 of the Charter .
D. Exclusion of Evidence (s. 24(2))
43Having found breaches of ss. 7, 8 and two breaches of 10(b) , I must engage in the s. 24(2) Charter analysis and employ the framework established by the Supreme Court in Grant .
44Under Grant , courts must consider: (i) the seriousness of the Charter ‑infringing state conduct; (ii) the impact of the breach on the accused’s Charter‑protected interests; and (iii) society’s interest in adjudication on the merits: Grant , at paras. 71–84 ; R. v. Harrison , 2009 SCC 34 at paras. 22–36 ; R. v. Paterson , 2017 SCC 15 at paras. 43–56 .
(a) Seriousness of the state conduct
45The first line of inquiry considers the seriousness of the police conduct that infringed the Charter and was connected to the discovery of the evidence. It asks whether the police engaged in significant misconduct from which the court should disassociate itself or whether the breach was technical or an understandable mistake, in which case disassociation is much less of a concern: Grant , at para. 71 .
46Here, the record demonstrates a deliberate investigative strategy: release, surveillance, location of the BMW, and a confrontation designed to compel the Applicant’s participation through a threat of property damage to his car. In my view, the officers engaged in a choice‑negating scenario to obtain an investigative advantage, notwithstanding the standing obligation to respect counsel rights upon detention. This conduct is serious and cannot be characterized as an error made in good faith.
47Where police act deliberately or with reckless disregard for Charter standards, this factor weighs strongly in favour of exclusion: Harrison , at paras. 22–36 ; Paterson , at paras. 44–52 .
48I therefore determine that the seriousness of the state conduct weighs in favour of exclusion.
(b) Impact on the Applicant’s Charter ‑protected interests
49The impugned evidence must be divided into two separate categories: (1) the verbal and non-verbal communication of the Applicant while detained; and (2) the physical evidence obtained using the search warrant from the BMW.
50With respect to the first category, in my view, the impact on the Applicant’s Charter -protected interests was very significant because the manner in which the Crown obtained the statements deliberately violated his Charter rights. Moreover, the Crown intends to use the improperly obtained evidence (handing-over of the key fob) at trial as evidence linking the Applicant to the items found in the BMW. This serious violation must be denounced by the Court so as not to be seen as condoning such conduct, and to disassociate itself from evidence obtained during the breach.
51With respect to the Applicant’s statements, this factor weighs in favour of exclusion.
52The physical evidence must be analysed separately because of the search warrant for the BMW. With respect to this evidence, I would not describe the impact on the Applicant’s Charter -protected interests as serious.
53In appropriate cases, the concept of discoverability retains a useful role and can mitigate the impact of a Charter infringement: R. v. Rover , 2018 ONCA 745 . Here, none of the evidence sought was compelled or conscripted by the breaches because there was a valid search warrant for the BMW which authorized the police to break and enter the vehicle. This evidence would have been found independently and was discoverable despite the breaches; there was no causal connection. The admission of the physical evidence does not directly offend the principle of self-incrimination that s. 10(b) is meant to address because the police would have gained access with or without the participation of the Applicant. This significantly diminishes the impact on the Applicant’s Charter -protected interests.
54In Stemberger the Crown conceded that the accused’s Charter rights had been violated and the statement he gave to police should be excluded. However, it argued that the images should not be excluded because the police had a warrant to seize the computers. Borenstein J. disagreed, finding the search of the computer was unreasonable and in flagrant disregard of the accused’s rights. Additionally, his right to counsel and his right not to be arbitrarily detained was “willfully and brazenly violated” by the investigating officer (at para. 119). While the officers believed that a password protected computer could defeat their ability to search the computer, they violated his rights, obtained his password and found evidence therein which they intend to use to prosecute him. The pornographic images were excluded.
55In my view, although the Stemberger analysis persuasive in concluding that a non-verbal communication can be a statement, the s. 24(2) result is distinguishable because the police could not access the computer without the Applicant’s password.
56This factor weighs in favour of inclusion of the physical evidence.
(c) Society’s interest in adjudication on the merits
57In terms of society’s interest in adjudication on the merits, there is a significant societal value that guilt, or innocence be determined on the merits by reliable evidence.
58No evidence was adduced that the statements made by the Applicant in the face of Charter breaches are necessary to the Crown’s case, and the way in which the statements were obtained from the Applicant casts significant doubt on their reliability.
59Bn contrast, the physical evidence seized is reliable and was not compromised by the infringements of the Applicant’s ss. 7, 8 and 10(b) rights. The independent discovery of the seized drugs, firearm and ammunition is critical to the Crown’s case. The resulting evidence was discovered by virtue of a properly issued search warrant that the police could have executed regardless of the breaches. Ultimately, the admission of this evidence would enhance the truth-seeking function of the trial; its exclusion would damage the reputation of the justice system based on a Charter breach unconnected to its discovery, which does not align with the overall purpose of s. 24(2).
Disposition
60In sum, balancing the Grant factors, I conclude that admission of the physical evidence would not bring the administration of justice into disrepute. The items found in the BMW, including the drugs, firearm, ammunition, and associated items are therefore not excluded.
61However, the statements made by the Applicant, at 519 Nelson Street and 1199 Hamilton Road, including the act of the Applicant handing over the BMW key fob to police, are excluded pursuant to s. 24(2) of the Charter .
62The application is therefore allowed in part.
“Justice E. ten Cate”
Justice E. ten Cate
Released: February 24, 2026
Additional Text
COURT FILE NO.: CR-519-23
DATE: 20260224
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HIS MAJESTY THE KING Respondent – and – TRISTAN GARREL Applicant reasons for decision on CHARTER application ten Cate J.
Released: February 24, 2026