CITATION: R. v. Cartier, Rhys, 2026 ONSC 1500

COURT FILE NO.: CR-24-43100097-0000

DATE: March 9, 2026

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

RHYS CARTIER The Applicant

COUNSEL:

D. Wilson, for the Crown

M. Bavaro, for the Applicant

HEARD: February 2-5, 2026

RULING ON SECTIONS 8, 9 and 10(b) OF THE CHARTER

VERNER J.

1The Applicant stands charged with possessing fentanyl, cocaine and methamphetamine for the purposes of trafficking, as well as possessing proceeds of crime. He is applying to have the drugs and money excluded from the trial proceedings under s. 24(2) of the Charter, on the basis that his ss. 8, 9 and 10(b) Charter rights were violated.

2The Crown called five officers for this application and the Applicant testified on his own behalf.

3I find that the Applicant’s ss. 8, 9 and 10(b) rights were violated and as a result the drugs and money may not be introduced at trial.

THE EVIDENCE

4In the early afternoon of January 16, 2024, Constable Chilton received information from a Confidential Human Source (CHS) that a man named Travis Sprague was potentially in possession of a firearm at 68 Lindsay Street in Lindsay, Ontario. The court was not provided with any further detail about the CHS tip and was not provided with any evidence whatsoever about the CHS, him or herself.

5Upon receiving the CHS information, multiple police officers conducted database checks on Mr. Sprague. He was well known to the police, and, on January 16, 2024, he had outstanding warrants for his arrest from three different police services. One of the warrants was for armed robbery. 68 Lindsay Street was also well known to the police for both its drug activity and its violence.

6After the CHS information came in, multiple police officers “suited up” and left the station to locate Mr. Sprague. The team included Constables Downing, McIntyre, Bell, Chilton and Donaldson. It is unclear from the evidence whether there was an organized discussion of a plan. However, it was clear that all the officers involved recognized that they would initiate a gunpoint high risk take down of Mr. Sprague, if and when he was located.

7The two most experienced officers on the team, namely Constable Downing with 20 years experience and Constable McIntyre with 27 years experience, also testified that although they did not anticipate Mr. Sprague being with anyone else, if he was, his companion would also need to be arrested and searched for a weapon. According to Constable McIntyre, no matter who was with Mr. Sprague and no matter what the companion did, he or she would be arrested. Constable McIntyre testified that anyone in the company of an individual who is believed to be armed with a firearm needed to be searched for safety reasons, and accordingly, the police needed to arrest “to provide the grounds to search for that firearm”. According to Constable McIntyre, they were trained to arrest anyone in the company of someone believed to have a firearm.

8On the other hand, the most junior officer involved, Constable Chilton, testified that she anticipated that they would simply detain and do a pat down search of anyone who may be accompanying Mr. Sprague.

9The five officers set themselves up around 68 Lindsay Street to ensure they had eyes on all the exits. At 2:53 pm, Mr. Sprague left the building with the Applicant on foot. At 2:57 pm, Constable Downing observed the two men for less than a minute from his police cruiser, at which time he was able to confirm Mr. Sprague’s identity.

10Constable Downing informed the other officers over the radio that he could confirm that it was indeed Mr. Sprague, and that Mr. Sprague was with another male. Due to traffic, Constable Downing was unable to keep up with Mr. Sprague and the other pedestrian. He lost sight of them for a minute. Within seconds of him losing sight of them, the other officers on the team initiated a gun point take down.

11Constables Bell, Donaldson and Chilton approached the pedestrians in their vehicles and initiated the take down on a residential driveway. They intentionally took the two pedestrians by surprise to minimize Mr. Sprague’s opportunity to grab his firearm. All three officers had their firearms drawn and instructed the pedestrians not to move. Constables Donaldson and Chilton had handguns, while Constable Bell had a police- issued shotgun. Since both pedestrians were so close together the guns were aimed at both men. However, all three officers were focused on Mr. Sprague.

12Constables Bell and Donaldson quickly became physical with Mr. Sprague who was not complying with their directions. Constable Chilton was watching the scuffle, while she still had her firearm drawn and pointed at Mr. Sprague. Consequently, her firearm was also pointed towards the Applicant.

13Within seconds of the initial approach, Constable McIntyre arrived on scene. He believed that Constable Chilton had her firearm pointed at the Applicant and that she was directing the Applicant to get on the ground, which the Applicant was not doing. Since he believed the Applicant was not complying with Constable Chilton’s direction, he immediately got physical with him. Within seconds of arriving on scene, Constable McIntyre took the Applicant to the ground and put a knee on his back. Constable Downing arrived on scene as Constable McIntyre was taking the Applicant to the ground.

14Once the Applicant was on the ground, Constable McIntyre attempted to put him in handcuffs with his arms behind his back. However, according to Constables McIntyre and Downing, the Applicant was not making it easy. According to Constable McIntyre, the Applicant was forcefully keeping his hands out to the sides. The Applicant himself testified that he was trying to comply with the directions he was receiving, by keeping his arms out to the side. I note that in contrast to Constable McIntyre and the Applicant, Constable Downing testified that the Applicant was reaching towards his waistband in those few seconds. However, the reliability of that memory is questionable, since Constable Downing did not make note of this significant observation in his notebook, nor did he mention it to anyone prior to the hearing.

15Constables Downing and McIntyre were successful in getting the Applicant in handcuffs within seconds of him being brought to the ground. Constable Downing then, at 2:58 pm, arrested the Applicant for possession of a firearm, on the basis that it was “quite plausible” that Mr. Sprague had passed the firearm to the Applicant, or that the Applicant, as an associate of Mr. Sprague, had a firearm of his own. To be clear, no firearm had been located on Mr. Sprague at the time the Applicant was arrested.

16Constable Downing testified that he did not consider the possibility of simply detaining the Applicant to investigate him for possessing a firearm. Constable McIntyre similarly believed the intention from the outset was to arrest the Applicant, rather than to simply detain him.

17A few feet away from Constables McIntyre and Downing, Constables Donaldson and Bell struggled to get Mr. Sprague under control. They eventually got him down on the ground. As he was struggling on the ground a firearm fell out of his waistband. Constable Bell was confident he had informed the others on scene about the firearm at that time. Constable Downing, however, testified that he did not know they had found a firearm until later in the day.

18Constables Downing and McIntyre stood the Applicant up and escorted him to the front of one of the police vehicles. Constable Downing informed the Applicant they would be conducting a search and asked him if there was anything on him that could potentially be harmful during the search, such as a knife. The Applicant indicated there was not.

Constables Downing and McIntyre then both participated in a pat down search. This was a search incident to arrest and the officers were focused on both safety concerns and on finding evidence of the offence charged, namely possessing a firearm.

19The Applicant had to be held still for the search. In his pants’ pockets he had a flick knife and drug paraphernalia. In his shorts, which he was wearing under his pants, he had a bundle of cash, which added up to $5,070.

20The Applicant also was carrying two bags, which were both searched. One of the bags was a satchel, which he was carrying under his jacket. There was a small piece of tinfoil in the satchel that had traces of cocaine inside it. The other bag was a backpack. Constable Downing cut the backpack off of the Applicant, to avoid having to take off the handcuffs. He then opened the backpack to find, amongst other things, a reusable grocery bag and within the grocery bag, there was 118.01 grams of cocaine, 28.02 grams of fentanyl and 18.43 grams of methamphetamine. The amounts suggested that the Applicant was trafficking in these drugs.

21After opening the grocery bag, at 3:06 pm, Constable Downing informed the Applicant that he was also being charged with possession of drugs for the purposes of trafficking.

22By this point, according to Constable Downing, the Applicant had “calmed right down”. Their interaction from this point on was civil. The Applicant gave his name and date of birth. He was 19 years old at the time.

23At 3:06 pm, the Applicant was read his rights to counsel and cautioned. In response, he asked if he could call his mother. He also informed Constable Downing that he had a lawyer, Sevag Yeghoyan, who was a lawyer that Constable Downing was familiar with. The Applicant was told he could speak to his lawyer when they got to the police station, which was nearby.

24The Applicant arrived at the station at 3:17 pm. From that moment on, all the interactions involving the Applicant and the police were captured on video. It is apparent from the video, although the audio is poor, that the officers treated the Applicant with respect and that they tried to ensure he was informed of what was going on at all times.

25Upon entering the station, Constable Downing started the booking process. During the process, at 3:23 pm, the Applicant reiterated his interest in speaking to his lawyer. At 3:26 pm Sergeant Murtha arrived.

26By that time Constable Downing had decided that a strip search should be conducted. He had rarely been involved in strip searches prior to that day and has not been involved in any others since. The purpose of the strip search was to ensure there were no further drugs hidden in the Applicant’s layers of clothing or in his genitalia. The grounds for the search were that (i) the Applicant was not forthcoming at the scene with information about the knife in his pocket, and the police could not, therefore, trust him to say whether he had any further drugs hidden on him; and (ii) the evidence suggested the Applicant was a drug dealer and they were aware that drug dealers often hid drugs in their genitals.

27At 3:44 pm, the Applicant was taken into the strip search room. Constable Downing did not consider providing the Applicant with the opportunity to speak to his lawyer, or any lawyer, prior to conducting the strip search. Both Constable Downing, the officer who requested the strip search, and Sergeant Murtha, the officer who authorized the search, testified that even if they had turned their minds to the issue, they would not have allowed the Applicant to speak to counsel prior to conducting the search. They testified that they had safety concerns with him being out of their sight in the interview room.

28The strip search was conducted by two male officers in a windowless room, with the door closed. The actions of both officers were captured on video, while the Applicant was out of view from the camera. At no point was the Applicant entirely nude. The officers made a concerted effort to ensure that before he removed his underwear, he put his t-shirt back on. There was a visual inspection of the Applicant’s genitals. The Applicant was directed to move his testicles around and stand in different positions for a total of approximately 20 seconds, so that Constable Downing could confirm that nothing was hidden.

29At 3:50 pm, after the strip search was completed, Constable Downing put the Applicant in a cell and made his first efforts to contact the Applicant’s counsel. At 4:11 pm, Constable Downing returned to the cell to inform the Applicant that he had left a message for Mr. Yeghoyan but had not yet heard back. Constable Downing reminded the Applicant of his options, at which point the Applicant indicated he would like to talk to duty counsel.

30However, before Constable Downing was able to get a hold of duty counsel, Mr. Yeghoyan called back. At 4:25 pm, the Applicant was put in an interview room to speak to his counsel over the phone. By 4:27 pm, the Applicant had finished speaking to his lawyer and had confirmed to Constable Downing that he was satisfied with the advice he had received. Pursuant to a further request, Constable Downing allowed the Applicant to call his mother from the recorded phone line at 4:31 pm. However, his mother did not answer the call.

WERE THERE ANY CHARTER VIOLATIONS IN THIS CASE?

31The Applicant submits that his rights under ss. 8, 9 and 10(b) of the Charter were violated and accordingly, the drugs and cash should be excluded pursuant to s. 24(2).

SECTION 8

32The Applicant’s primary argument is that the police violated his rights under s. 8 of the Charter, which ensures that “everyone has the right to be secure against unreasonable search or seizure”. Although the accused has the onus of proving Charter violations generally, where a search is not supported by a warrant, it is presumptively unreasonable and the onus is on the Crown to prove no s. 8 rights were breached. To establish that the

search was reasonable, the Crown must prove on a balance of probabilities: (1) that the search was authorized by law, (2) that the authorizing law was itself reasonable, and (3) that the authority to conduct the search was exercised in a reasonable manner: R. v. Cole, 2012 SCC 53, at para. 37.

33The issue in this case is whether the search was “authorized by law”. The arresting officers justified the search as being a search incident to arrest. Police officers have the power to search individuals incident to an arrest for police officer safety, public safety and evidence relevant to the offence charged. However, they only have this power if the arrest itself was lawful: R. v. Golden, 2001 SCC 83, at para. 91.

34The main issues in this case surround the validity of the arrest, and specifically, whether the police had grounds to arrest. To be clear, the issue is not whether the police had grounds to detain, but whether they had grounds to arrest, since the police did not simply detain the Applicant, they arrested him. The question for the court is whether the police actions, as they were, were constitutional: R. v. Brown, 2012 ONCA 225, at para. 5.

35In R. v. Beaver, 2022 SCC 54, at para. 72, Jamal J. provided a thorough summary of the requirements for a lawful arrest. The most fundamental requirement is that the arresting officer must have reasonable and probable grounds for an arrest. The officer must have a subjective belief that the accused committed an offence, and that belief must be objectively verifiable.

36In the case at bar, the arresting officer did not state that he had reasonable and probable grounds to arrest. Nor did he suggest that he subjectively believed that the Applicant had committed an offence. Instead, he testified that it was “quite plausible” the Applicant had been given the firearm by Mr. Sprague, or, that it was plausible, that as an acquaintance of Mr. Sprague, he too was in possession of a firearm.

37When Constable Downing was asked why he concluded it was “plausible” that the Applicant had a firearm, he said it was a combination of (i) the CHS information that Mr. Sprague was in possession of a firearm; (ii) the fact that there were three warrants out for Mr. Sprague including one for armed robbery; (iii) the evidence that the Applicant was walking along the street with Mr. Sprague for a couple of minutes; and (iv) the evidence that the two of them left 68 Lindsay Street together, which is known to be a haven for drugs and violence.

38These grounds support a finding that it was “plausible” the Applicant had a firearm, but nothing more. It is clear from both Constable Downing’s use of the word “plausible” and the grounds that he provided to the court, that he did not subjectively believe that the Applicant had committed an offence. He did not subjectively have reasonable and probable grounds to arrest and accordingly, the arrest was invalid.

39I accept that the police had valid safety concerns and should have detained him and searched him for safety reasons. Although the police did not have grounds to arrest the Applicant, they had grounds to detain him for an investigation, and search him, as part of that investigative detention, for officer safety: R. v. Mann, 2004 SCC 52, at paras. 40 and

45; R. v. MacDonald, 2014 SCC 3, at para. 39; R. v Ellis, 2016 ONCA 598, at para. 30;

R. v. Sutherland, 2026 ONCA 12.

40However, in this case, they did not simply detain him and they did not simply search him for safety concerns. Constable Downing arrested the Applicant without forming the subjective belief that the Applicant had committed an offence. The officers then proceeded to search him incident to that arrest, not only for safety concerns, but also for evidence relevant to the offence charged. The arrest in this case was invalid and the searches that were conducted incident to arrest were not “authorized by law”.

41Since the police did not have grounds to arrest the Applicant, the searches that were conducted incident to arrest violated the Applicant’s rights under s. 8 of the Charter.

SECTION 9

42The Applicant further argues that his “right not to be arbitrarily detained or imprisoned”, as is protected by s. 9 of the Charter, was violated. Since the Applicant raises issues under s. 8 with respect to a warrantless search, in addition to issues under s. 9, the Crown has the onus of proving the s. 9 violations: R. v. Gerson-Foster, 2019 ONCA 405, at para. 75. I have already found that the Crown failed to prove that the arrest was lawful.

43Accordingly, the Applicant’s s. 9 rights were also violated.

SECTION 10(b)

44Finally, the Applicant submits that his rights under s. 10(b) of the Charter, which provides that, “everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right”, were violated.

45The Applicant was initially arrested at 2:58 pm, he was informed of his rights to counsel and cautioned at 3:06, and he was brought to the police station at 3:17. However, the first efforts made to contact a lawyer on his behalf were not made until 3:50 pm, after he had been strip searched. He was eventually put on a phone with his lawyer at 4:25 pm. He submits that the implementational component of his s. 10(b) Charter rights was violated between 3:17 pm and 4:25 pm, since the police conducted a strip search during that period without considering the possibility of allowing the Applicant to speak to counsel beforehand.

46Section 10(b) has both an informational and an implementational component, in the sense that the police must both inform a detainee of his or her right to speak to counsel, and must give the detainee an opportunity to implement that right, by putting the detainee on a phone with a lawyer: R. v. Sinclair, 2010 SCC 35, at para. 27. The courts, which have repeatedly recognized the degrading and humiliating nature of strip searches, have found that the implementational component of s. 10(b) rights requires that a detainee have an

opportunity to speak to counsel prior to being subjected to a strip search: R. v. McGuffie,

2016 ONCA 365, at paras. 68, 81 and R. v. Thompson, 2025 ONCA 500, at para. 31.

47The benefit of speaking to counsel prior to a strip search is both that the detainee knows the limits on which the police may strip search him or her, and, importantly for the case at hand, to give the detainee the sense that they are not entirely at the mercy of the police:

R. v. Rover, 2018 ONCA 745, at para. 45. R. v. Dussault, 2022 SCC 16, at para. 56. As emphasized by Doherty, J.A. in Rover,

The psychological value of access to counsel without delay should not be underestimated.

48It is apparent that the Applicant in this case was not afforded an opportunity to speak to his lawyer prior to being strip searched. The Crown argued that the Applicant’s s. 10(b) rights were appropriately suspended until after the search. He emphasized that the rights to counsel are often suspended for safety reasons (R. v. Orbanski, 2005 SCC 37), and considering the facts in this case, the police - who treated the Applicant with respect during the search - could not have safely put the Applicant in touch with counsel prior to the strip search.

49I do not accept the Crown’s argument. I do not believe that a suspension of s. 10(b) rights was justified in the circumstances, for the following reasons:

(i) No matter how respectful the police were attempting to be, the search was invasive, degrading and humiliating;

(ii) The police should have, at the very least, turned their mind to the possibility of allowing the Applicant to speak to counsel prior to conducting the strip search; and,

(iii) The grounds the police gave at trial for why they could not have facilitated a call to counsel prior to conducting the strip search could not justify suspending the Applicant’s s. 10(b) rights.

(i) Every Strip Search is a Serious Invasion of Privacy

50I agree that the officers were conscientious about minimizing the degrading and humiliating nature of the strip search. It was done with officers of the same gender as the Applicant. The officers ensured the Applicant was never completely naked. They ensured that their actions were all captured on video, while the Applicant was out of view of the video. Their language was as respectful as possible in the circumstances.

51However, no matter what efforts were taken, it was a degrading and humiliating process, during which the Applicant had to move his testicles around and stand in awkward positions, so that Constable Downing could see his genitals from all angles. As Pepall

J.A. stated in R. v. Black, 2022 ONCA 628, at para. 38, “even the most sensitively

conducted strip search is a highly intrusive, humiliating, degrading and traumatic experience.”

(ii) The Police had a Duty to At Least Consider Putting the Applicant in Touch with his Counsel Prior to the Strip Search

52In the case at bar, the police did not consider the possibility of putting the Applicant in touch with a lawyer before the strip search. This approach clearly stands in contrast with the directions of the Court of Appeal in both McGuffie, which pre-dates the arrest in this case, and Thompson, which was released after the arrest in this case. Indeed, pursuant to Sinclair, which was released 14 years before the arrest in this case, the police should be turning their minds to providing an accused with the opportunity to speak to counsel prior to any procedure that is non-routine. I am troubled by the fact that Constable Downing, with 20 years of experience, did not turn his mind to the possibility of having the Applicant consult with counsel prior to the invasive search.

(iii) The Police Could Not Justify Suspending s. 10(b) Rights in this Case

53Not only should the police have considered the possibility of putting the Applicant in touch with his counsel prior to the search, but they should have in fact made efforts to do so. The circumstances in the case at bar could not justify suspending s. 10(b) rights.

54Both Constable Downing and Sergeant Murtha were asked if it hypothetically would have been possible to put the Applicant, who was complying with directions while at the police station, in touch with counsel prior to the search. They gave reasons as to why that was not feasible. The Crown submits that the reasons they provided were sufficient to justify suspending the Applicant’s s. 10(b) rights. Constable Downing’s reasons were as follows:

Theoretically, yes [it would have been possible to put the Applicant in touch with counsel]. I wouldn’t have done that though. I had a safety concern about him having potentially a weapon or further evidence to destroy, so that’s why we did the strip search before he spoke to his lawyer. [Emphasis added.]

55Sergeant Murtha’s response was similar. He said:

I would want to be more confident that, especially if a person in our custody has multiple layers of clothing on, that they don’t have any further evidence, means of escape, something that could be used to harm them or someone else on them, before I would permit them to be out of my sight in the secure room where they can speak to counsel in private. … they wouldn’t necessarily be in handcuffs when they are speaking in private to their counsel of choice. Until I would be satisfied it would be safe to do so, I wouldn’t facilitate that. [Emphasis added.]

56I note that both officers indicated that they would not have allowed the Applicant to speak to counsel until they were confident that the Applicant did not have, amongst other things, further evidence on him that could be destroyed. By definition, that approach would result in an accused never being able to speak to counsel before being strip searched for drugs, since a strip search can only be conducted where there are grounds to believe there is further evidence on the accused and drugs could always be destroyed.

57To assess whether the other grounds listed by the officers in this case, which are all safety related, could justify suspending the Applicant’s s. 10(b) rights, I look to the decision of

R. v. Wu, 2017 ONSC 1003, at para. 78, which provides guidance as to when s. 10(b) rights can justifiably be suspended. As emphasized by Di Luca J. in that case, it is an “exceptional step” to suspend s. 10(b) rights (see para. 78(a)) and such a suspension cannot be justified by “bald assertions” of “officer safety” or “destruction of evidence” concerns (see para. 78(d)).

58Given the lack of case specific evidence to support any of the safety-related concerns expressed by the officers in this case, I find that the concerns expressed were no more than the bald assertions referenced by Di Luca J. in Wu. For example, both Constable Downing and Sergeant Murtha explained that the Applicant’s s. 10(b) rights had to be suspended, because the Applicant may have had a weapon on him, but they only claimed to have a basis to search for drugs. They did not have grounds to search him for a weapon. They were also concerned that the Applicant may ingest the drugs while he was in the interview room speaking to his lawyer. However, there were no grounds to suspect or believe that the Applicant would ingest any drugs. There was nothing case specific that supports that concern. As I mentioned, the officers’ concerns were nothing more than bald assertions. If it was appropriate to suspend the Applicant’s s. 10(b) rights in this case, then the police could justify suspending an accused’s s. 10(b) rights for almost every strip search.

59In addition to the guidance from Wu, which assists with when s. 10(b) rights may be suspended generally, I find Thompson helpful, since in that case, Pomerance J.A. discussed the issue of suspending s. 10(b) rights in relation to strip searches in particular. Pomerance J.A. considered whether a detainee, who had already spoken to counsel, should have the right to speak with counsel again prior to being strip searched, and found that in general a detainee should have that right. In fact, it is clear from paragraph 78 of Thompson, that even when there are grounds to strip search an accused incident to arrest for a weapon, the accused has the right to speak to counsel before the search. However, Pomerance J.A. recognized that there may be exceptions to the rule. There may be times when a detainee does not have the right to re-consult a lawyer prior to a strip search. She listed four factors that should be considered in assessing this issue, including: (i) the extent to which a detainee is entitled to counsel of choice, (ii) the length of time that police must hold off, (iii) the need to preserve evidence, and (iv) the impact of exigency. It follows that there may be circumstances when the police may justify suspending s. 10(b) rights, such that an accused’s first call to counsel is delayed until after a strip search, with consideration of these same four criteria.

60The Thompson criteria that could weigh in favour of suspending s. 10(b) rights in the case at bar, include (iii) the need to preserve evidence and (iv) the impact of exigency. However, there is nothing about this case that is different from other cases, that would justify suspending s. 10(b) rights on either of those bases. In other words, if those factors justified suspending s. 10(b) rights in this case, then the police could always justify suspending s. 10(b) until after a strip search.

61I do not accept that the officers’ assertions that concerns for safety and for the destruction of evidence could justify the “exceptional step” of suspending s. 10(b) rights in this case. The police violated the Applicant’s constitutional right to speak to counsel prior to being searched. I accordingly find that his s. 10(b) rights were violated.

SHOULD THE EVIDENCE BE EXCLUDED PURUANT TO S. 24(2)?

62I have found that the Applicant’s rights under ss. 8 and 9 of the Charter were violated when the Applicant was arrested without reasonable and probable grounds. I have also found that his s. 10(b) rights were violated, when the police strip searched him before allowing him to speak to counsel. The Applicant submits that as a result of these violations, the drugs and money should be excluded.

63Pursuant to s. 24(2) of the Charter, evidence that is “obtained in a manner” that infringes the Charter must be excluded if its admission would bring the administration of justice into disrepute. The seizure of the drugs and money were related to the ss. 8 and 9 violations. In other words, the evidence in question was “obtained in a manner” that infringed the Applicant’s Charter rights. Accordingly, s. 24(2) is triggered in this case and the issue of exclusion turns on whether the administration of justice would be brought into disrepute by the admission of the evidence.

64In assessing the impact of the violation on the integrity of the justice system, I must consider three factors, known as the Grant factors: (i) the seriousness of the police conduct; (ii) the seriousness of the impact of the violation on the Applicant’s rights; and

(iii) society’s interest in seeing the matter tried on its merits: R. v. Grant, 2009 SCC 32. The analysis under each of these factors must be focused on the long-term public confidence in the administration of justice and not focused on punishing the police misconduct in this particular case or on compensating this particular accused.

65With respect to the first Grant factor, namely the seriousness of the state conduct, there are a couple of important issues to consider, namely whether the police acted in good faith and whether the evidence could have been obtained without violating the Applicant’s constitutional rights: R. v. McColman, 2023 SCC 8, at para. 58; R. v. Côté, 2011 SCC 46, at paras. 70-71.

66With respect to the issue of good faith, if the police intentionally deny an accused his constitutional rights, it will obviously amount to serious police misconduct. However, the Court has also found that ignorance of Charter rights is similarly serious, especially

when it forms part of a pattern. This principle was emphasized by Watt J.A. in R. v. Gonzales, 2017 ONCA 543, at para. 158:

Under the first line of inquiry which assesses the seriousness of the Charter- infringing state conduct, extenuating circumstances, such as the need to prevent the disappearance of evidence and good faith may attenuate the seriousness of the breach. But care must be taken to ensure that ignorance of Charter standards is neither rewarded nor encouraged and that negligence or wilful blindness does not become a proxy for good faith. Evidence that the Charter-infringing state conduct was part of a pattern of abuse tends to support exclusion: Grant, at para. 75.

67Watt J.A. was building on what McLachlin J. said in R. v. Grant, at para. 75, which was:

“Good faith" on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: …It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.

68In the case at bar, I find that the officers were respectful of the Applicant and, for the most part, were attempting to respect his Charter rights. However, I find that the evidence surrounding the grounds to arrest suggests a disturbing ignorance of Charter standards. Constable Downing, the arresting officer who has had two decades of experience, testified that since it was “quite plausible” the Applicant had a firearm, he had grounds to arrest. “Quite plausible” is far from “reasonable and probable grounds” to believe. As I explained above, I do not accept that it was just careless language used at trial by Constable Downing. Based on the grounds he articulated, it could not be said that the Applicant probably had a firearm on him. It was no more than, as said by Constable Downing, a plausibility.

69The other officer involved in the arrest, Constable McIntyre, who has had 27 years of experience as a police officer, shockingly indicated that no matter how many people were with Mr. Sprague, and no matter what they did, they would all be arrested. According to Constable McIntyre, that was in fact their training. Such an approach shows an obvious ignorance for the Applicant’s constitutional right not to be arrested without “reasonable and probable grounds.” Perhaps, even more troubling, is that Constable McIntyre suggested that the reason they needed to “arrest” all the individuals accompanying Mr. Sprague, was to provide the grounds to search the individuals for the gun. This approach of arresting, in order to search is completely backwards. The search is supposed to be incidental to the arrest. Moreover, the evidence at least suggests that Constable McIntyre is unaware of the ability of the police to detain individuals for investigation and search detained individuals for police safety.

70It is surprising that two very experienced police officers are unaware of the fundamental principle that they require “reasonable and probable grounds” to arrest, and that one of these officers does not understand that the police cannot arrest, in order to provide grounds for a search. It is reasonable to infer that these misunderstandings, that relate to basic police duties, have impacted their police work over the years, as well as impacted the police work of younger officers who looked to them for guidance. This factor alone weighs strongly in favour of exclusion.

71I further find that the drugs and money were not necessarily discoverable without violating the Applicant’s Charter rights: McColman, at para. 58; R. v. Côté, at paras. 70-

71. The police could have detained the Applicant for investigatory purposes and searched him for police safety, which would have included a pat down search for a weapon. It would not, however, have permitted the police to conduct the search that was conducted, namely a search incident to arrest for both officer safety and for collecting evidence. Although the Crown submits that the search for officer safety would have led the officers to evidence upon which they could have arrested the Applicant, which in turn would have given the officers grounds to search incident to arrest, I find this submission is based on speculation. It is far from clear that the police would have found any of the contraband – which was not hard like a weapon, had they not unlawfully arrested the Applicant.

72Accordingly, the officers did not act in good faith and the evidence does not support a finding that the police would necessarily have found the drugs or cash without violating the Applicant’s rights. These factors place the police conduct at the serious end of the scale.

73I have not yet mentioned the seriousness of the s. 10(b) violation, which can only work to render the police conduct even more serious. I find that it is disappointing that the police did not turn their minds to the possibility of allowing the Applicant to speak to his lawyer prior to being strip searched, especially in the wake of McGuffie and Sinclair. However, at the time of this arrest, the courts had given little guidance on this specific issue: Thompson, at para 103. Therefore, if the s. 10(b) violation was the only breach in this case, I would not have put the police conduct on the serious end of the spectrum.

74However, given the combination of the arrest and the search incident to arrest without sufficient grounds, and the failure to consider the possibility of putting the Applicant in touch with counsel prior to an invasive search, I find that the conduct is such that the court must not be seen as condoning it. The first Grant factor weighs strongly in favour of exclusion.

75With respect to the second Grant factor, the seriousness of the impact on the accused’s rights, the issue is where the violation falls on the scale that spans from “fleeting and technical” breaches to ones that are “profoundly intrusive”: Grant, at para. 76. In the case at bar, the Applicant was arrested without grounds, and his person and his bags were searched incident to that arrest. As mentioned, I do not accept the submission that the police would necessarily have obtained the evidence without violating his rights: Côté, at para. 72. His arrest led to a degrading and humiliating strip search, without having had

an opportunity to speak to a lawyer or anyone. He was therefore unconstitutionally left to feel at the mercy of the police during the invasive search. I find that the impact on the Applicant’s rights falls on the more serious end of the spectrum.

76The cumulative effect of the first two Grant factors weighs strongly in favour of exclusion. The question becomes whether the third factor, society’s interest in seeing the case litigated on its merits, outweighs the cumulative weight of the first two: R. v. Lafrance, 2022 SCC 32, at para. 90. Key considerations on the third factor include the reliability of the evidence, the importance of the evidence to the Crown’s case, and the seriousness of the alleged offence. There is no question that these factors all weigh heavily in favour of admission. The drugs and money are reliable evidence, and they are pivotal to the Crown’s case. I would further find that the offences before the court, especially possessing fentanyl for the purposes of trafficking, are serious. Having said that, the amount of fentanyl involved in this matter is at the lower end for a charge of possession for the purposes of trafficking.

77Considering these factors together with the fact that the first Grant factor weighs heavily in favour of exclusion, and that the second Grant factor also strongly supports exclusion, I find the defence has met its onus in demonstrating that the evidence must be excluded in order to maintain the public’s confidence in the administration of justice.

78The application is allowed and the fentanyl, cocaine, methamphetamine and cash may not be adduced as evidence at the trial proper.

JUSTICE VERNER

Released: March 9, 2026

CITATION: R. v. Cartier, Rhys, 2026 ONSC 1500 COURT FILE NO.: CR-24-43100097-0000

ONTARIO SUPERIOR COURT OF JUSTICE