R. v. Sunnerton, 2026 ONSC 1605

Court File and Parties

Citation: R. v. Sunnerton, 2026 ONSC 1605 Court File No.: CR-24-00000085-0000 Date: 2026-03-12 Ontario Superior Court of Justice

Between: His Majesty the King -and- Julia Sunnerton

Counsel: M Atherton, for the PPSC David North, for Julia Sunnerton

Heard: March 11-12, 2026 Justice J.S. Cowan

Reasons for Judgment

"In a free and democratic society, police officers may interfere with the exercise of individual freedoms only to the extent provided for by law. Police officers must comply with the law in force".

Kosoian v. Société de transport de Montréal, 2019 SCC 59, [2019] 4 S.C.R. 335, at para. 6.

Introduction

1The court is asked to analyze the lawfulness of the police searching a car and bags within it during the fluency of an impaired driving investigation.

The Evidence

2The Applicant, Ms. Sunnerton, was the subject of a citizen complaint. She was unresponsive – at the wheel of a running car – in a parking lot at a casino/racetrack in Hanover, Ontario. Hanover Police Service Officer Gordon Martin attended. He was directed to the subject by the complainant. He found a sole female occupant in a Volkswagen Jetta’s driver’s seat, with the vehicle running. She was slumped and appeared to have drool or something of the like on her chest. She looked up in a dazed state. The vehicle was secured and turned off, and her licence produced from a phone wallet. She ate a morsel of food off her stomach. There was some food between her legs, that she also ate. She told the officer she was tired and just got off work. She was wearing scrubs often seen worn by healthcare professionals.

3When asked to step out, she was "slow and shaky". EMS had attended and also spoke to her, and Officer Martin allowed her to go with them to rule out or assess any medical concerns. Once Officer Martin watched her walk to an EMS ambulance, he formed the belief that she was impaired by something, but he was not sure what. Nor could he rule out a medical reason for her condition.

4Looking in the vehicle through the still open driver’s door, Officer Martin saw an alcoholic beverage container – a can of Palm Bay. He felt that this provided him grounds to search the vehicle. Once he commenced, he also saw more alcoholic drink packaging – that of a soft sided Palm Bay "slushie".

5Having not smelled alcohol, but observing impairment, he thought drugs might be involved. A basis for an arrest for impairment was in his mind, but the specifics had not crystallized. As she was being seen by EMS while he was turning his mind to searching, there was no rush – or appropriate window – to arrest her.

6There was a black backpack on the passenger seat. The officer searched it. There were old-looking prescription type bottles in it, as well as a cleaning pad. There was another grey bag/case in the backpack with a zipper.

7He testified that his authority for the continued search at this point was based on the Liquor Licence and Control Act. He was looking for alcohol. He vaguely recalls some powder/residue in the orange bottles.

8The grey case had a dial lock on it, but was unlocked. He unzipped it finding several baggies that he suspected were CDSA substances, a colourful substance that he thought may be fentanyl, and a small scale. Photos of the bag and scale are an exhibit. The Applicant seeks exclusion of these.

9In cross-examination Officer Martin admitted that the bag was relatively light. He agreed that it was soft enough to squeeze. He was generally quite agreeable with defence counsel when it was suggested to him that he was unsure of certain features of the grey bag, which was not produced at trial.

10South Bruce OPP Constable Delisa Schieven was called to Hanover to assist with a personal search of the female arrestee. She asked about what was on the Applicant, to which the Applicant responded that she had cocaine that she was a user of. PC Schieven indeed found cocaine in a baggy and a pipe during her search at the scene. PC Schieven had been advised pre-search that the Applicant was under arrest for trafficking (s. 5(2), Controlled Drugs and Substances Act) and impaired driving (s. 320.14, Criminal Code).

11Those were the only witnesses on the motion. Photos of the grey bag and the contents were entered as exhibits, and the scale itself was presented to the court for examination.

The Onus on the Motion

12In order to meet the standards set out by the Charter, all searches must be authorized by law. Warrantless searches are prima facie unreasonable, and the burden shifts to the party who is seeking to uphold the search: Hunter v. Southam Inc., [1984] 2 S.C.R. 145.

13In R. v. Haas, [2004] O.J. No. 2041 (S.C.J.), aff’d 76 O.R. (3d) 737 (C.A.), Nordheimer J. (as he then was) held that the onus rested on the crown to establish the lawfulness of a warrantless search, even where legislative provisions authorize it (specifically in that case, breathalyzer and blood sample demands in the impaired driving context). Such legislation governing searches is directed at the circumstances under which particular types of evidence may be sought.

14In other words, the Crown must be able to point to a law which authorizes the search. The search must be conducted under some lawful authority: R. v. Caslake, [1998] 1 S.C.R. 51.

The Law Ostensibly Supporting the Search in this Case

15Section 42(1) of the Liquor Licence and Control Act, 2019, S.O. 2019, c. 15, Sched. 22, is the section by which an officer may have the authority to conduct a warrantless search.

16This Act gives police extraordinary powers, serious and far-reaching, and enables a police officer to search not only a vehicle, but any person found in it. The officer must have a reasonable basis to believe that liquor is being unlawfully kept in that vehicle. Then, they may search without a warrant. It is a "shoehorn" to permit the police to enter and search otherwise acutely private spaces: luggage, briefcases, parcels, and as in this case, a woman’s makeup bag (or clutch or purse as it was variously described during the evidence and my colloquy with counsel.) As a result, the limited scope of the powers in s. 42 should be strictly adhered to.

17Because statutory searches of vehicles give the police the power to search a person, interfering with his or her personal space, the letter of the law must be followed: R v. Campbell, [1996] O.J. No. 4478 (S.C.J.), per Stong J.

18This privacy value exists, although in a diminished form, as it is a car being searched in this case, not a home or office. In R. v. Belnavis, [1997] 3 S.C.R. 341, at para. 38, the Supreme Court held that there was, in general, a diminished expectation of privacy in a motor vehicle. This does not detract from the fact that a closed bag designed to carry personal items attracts a very high degree of privacy: R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569, at para. 62.

19There is no broader search power incidental to an investigative detention that would extend to a search for the purpose of discovering evidence of an offence. A search for that purpose would not be "reasonably necessary". If Officer Martin’s sole purpose in searching the car was to find drugs, his search could not be justified at this juncture as a search incidental to an investigative detention (which was the stage he was at), or pursuant to the liquor statute: R. v. Calderon (2004), 188 C.C.C. (3d) 481 (Ont. C.A.), at para. 79.

The Positions of the Parties

20Ms. Atherton for the Crown says the case is simple. The parties agree that, at a minimum, a provincial liquor offence was committed by the open can of Palm Bay within reach of the driver, thus the Act’s search powers are engaged. The officer testified that he was looking for alcohol, and this was and remained a logical possibility in the areas he searched. While doing so he found the impugned evidence.

21The Applicant’s position is that the police have a positive duty to exclude the possibility of no alcohol before proceeding to search any part of the vehicle. They go on to assert that a) the Act only authorizes a search for alcohol, and b) only areas that the police subjectively and reasonably suspect alcohol is stored can be searched.

22This runs counter to the plain reading of the statute. The Act says that once a liquor offence is discovered, the car may be searched. Full stop. It does not circumscribe the search. However, I agree with the defence that the words "for alcohol" should be appended to the end of subparagraph (5) of s. 42. I would go even further, to suggest that it should read "for alcohol unlawfully kept". Support for this comes from my brother Justice Chris de Sa J., considering the analogous scope of a Cannabis Control Act search, in R. v. Sappleton, 2021 ONSC 430, at para. 57:

That said, I do agree with the defence that the police must possess the requisite grounds to believe that marijuana is stored in contravention of the regulations in order to search the vehicle. Again, the police are only authorized to search a vehicle/person for marijuana being transported in contravention of the regulations if they possess the requisite grounds. [Emphasis added.]

23Further support for this comes from the cases cited by the Applicant, R. v. Dreyer, 2008 BCCA 89 and R. v. Benimadhu, 2016 ONCJ 142. In those cases, trial judges found that the officers were disingenuous in suggesting that their searches were for alcohol. Dreyer saw the court call the officer a liar when he said he thought he’d find alcohol in a crumpled paper bag, and that the overbroad use of a statutory search power was "abusive". Benimadhu was a case that started with a dubious traffic stop and saw the officer searching a trunk where alcohol could not conceivably have been unlawfully kept.

24I disagree with the defence that the police must have a subjective belief that they will find alcohol. No such precondition exists in the statute. As long as they are searching for alcohol unlawfully kept, their subjective prediction of the likelihood of finding it is irrelevant.

Analysis

25The case before me is different than the picture painted by the Applicant, and can be distinguished from Dreyer and Benimadhu. The search of the grey case could have yielded alcohol, either a soft-sided partly-full container, or one of the small novelty bottles we see near the LCBO checkouts. Yes, the officer could have gone further to exclude the possibility of alcohol in it by a precise weighing or comprehensive squeezing. But I would not take the LLCA that far – to say that an Officer must (forgive my double negative) exclude the possibility of no unlawful alcohol before proceeding. Unlike in Dreyer and Benimadhu, I accept the officer’s evidence that he was looking for alcohol.

26This is not to discount Mr. North’s submission that Officer Martin could have had other search targets on his mind. He may well have. His belief that the Applicant was "on the nod" (a phrase he used for a person feeling the effects of opiates) and his potential exclusion of alcohol as the source of impairment emboldens Mr. North’s factual submission. But Officer Martin was not moved in cross-examination. And the circumstantial evidence Mr. North urges upon me to reject Officer Martin’s evidence does not lead me to reject his stated purpose. After all, he can have more that one purpose in mind, as long as he is not using a police power as a ruse or pretext, and as long as the search is carried out reasonably: see Justice G. Arthur Martin in R. v. Annett, 6 O.A.C. 302.

27I make this finding because I am left with the following:

a. The Applicant was unresponsive in the driver’s seat of a running car; b. Upon wakening she showed signs of nondescript impairment; c. She had open alcohol beside her; d. She was consuming food in the midst of speaking with the officer; e. She had more empty alcohol packaging within reach; f. She had two bags that could carry alcohol (one inside the other) also within reach.

28This constellation of factors would lead any reasonable officer to suspect that alcohol was being stored in the vehicle illegally. Officer Martin was entitled to search for it. His search was consistent with the values behind the LLCA provision in s. 42. We do not want drivers to be tempted to or run the risk of consuming any alcohol. A passenger can, in theory, blithely drink a beer while the driver operates the car safely. But our legislature is - in its wisdom - not willing to take that chance, hence the carefully proscribed ways that alcohol must be carried in a vehicle. Officer Martin was enforcing and working under that statute on the night in question.

29Instead, he found drugs and a scale. This was happenstance while he was performing a statutorily authorized search. Thus, there is no s. 8 breach and the motion is dismissed.

Section 24(2)

30I do not reach a full s. 24(2) analysis given my findings on s. 8.

31However, as I indicated during the submissions of counsel, if I had found a breach, I would have been inclined to exclude the evidence. If not for the statutory authority, the police would have pierced a private area in a lawless way. The receptacle in question had the hallmarks of a deeply personal item – a woman’s lockable personal bag. And finally, while fentanyl is a highly dangerous drug and the public interest in its eradication through enforcement is high, the long-term administration of justice is better served by the upholding the rights of citizens to be left alone by the police in the absence of legal authority.

Conclusion

32In the result, the motion is dismissed, and the fruits of the search of the black backpack and small grey bag are admissible at the Applicant’s trial.