R. v. Forde, 2026 ONSC 241

R. v. Forde, 2026 ONSC 241

CITATION: R. v. Forde, 2026 ONSC 241

COURT FILE NO.: CR-24-104

DATE: 20260112

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

DYLAN FORDE

Mary Anne Alexander (Prov) and Vanshika Dhawan (Fed), for the Crown

Susan Jane von Achten, for Dylan Forde

HEARD: November 17, 18, 19, 20, 21, 24, 25, 28, 2025

REASONS FOR DECISION ON CHARTER APPLICATION – S. 7, 8, 9, 10, 12, 24(1), 24(2) – and TRIAL

CHRISTIE J.

Overview

1Dylan Forde stands charged with the following offences alleged to have been committed on March 13, 2023:

a. Possession of cocaine for the purpose of trafficking – contrary to section 5(2) of the CDSA;

b. Possession of cocaine – contrary to section 4(1) of the CDSA;

c. Possession of benzodiazepines – contrary to section 4(1) of the CDSA;

d. Possession of methamphetamine for the purpose of trafficking – contrary to section 5(2) of the CDSA;

e. Possession of methamphetamine – contrary to section 4(1) of the CDSA;

f. Possession of a prohibited firearm without being the holder of a licence – contrary to section 91(1) of the Criminal Code;

g. Possession of a prohibited firearm knowing that he was not the holder of a licence under which he may possess it – contrary to section 92(1) of the Criminal Code;

h. Possession of a prohibited firearm, a handgun, with readily accessible ammunition, while not the holder of an authorization or licence to possess it or a registration of the firearm – contrary to section 95(1) of the Criminal Code;

i. Carry concealed weapon: a handgun – contrary to section 90 of the Criminal Code;

j. Carry a weapon: a handgun for a purpose dangerous to the public peace – contrary to section 88 of the Criminal Code;

k. Occupant of a motor vehicle in which he knew that there was a firearm – contrary to section 94 of the Criminal Code

2In very brief summary, it is alleged that, in the course of a vehicle stop in relation to an expired validation tag, police formed grounds for a Cannabis Control Act (CCA) search of the vehicle and occupants – the driver being Dylan Forde and the passenger being Cole Stewart (who has since resolved his charges). After being questioned about whether cannabis was in the vehicle, and after Mr. Forde searched a black gym bag and a satchel he was wearing, and having produced no marijuana, Mr. Forde was asked to exit the vehicle. He was asked to remove his jacket to allow police to search a satchel that was on his person. Inside the satchel, police located marijuana, a black handgun, loaded with 12 rounds, and other controlled substances. Mr. Forde was placed under arrest. The passenger, Mr. Stewart, had also been asked to exit the vehicle. After the firearm in Mr. Forde’s satchel was found, and after some challenges getting Mr. Stewart under control, Mr. Stewart was also placed under arrest. Inside a satchel on his person, police located a firearm loaded with a magazine of 10 rounds, and a second magazine with 10 rounds. A bundle of Canadian currency was also located in the satchel. Upon searching the vehicle, police are said to have found other controlled substances in a black backpack associated to Cole Stewart, in a black adidas bag associated to Dylan Forde, and in the driver’s side area of the vehicle.

3This matter was heard as a combined Charter application and judge alone trial.

4Mr. Forde has brought a Charter application declaring breaches of his rights under ss. 7, 8, 9, 10(a), 10(b), and 12 of the Charter.

5With respect to the s. 7 and 12 Charter issues, the Applicant argues that he was subjected to inhumane treatment while in custody at CNCC for 18 days following these events until his release on bail on March 31, 2023. He argues that the events were egregious enough to warrant a stay of proceedings in relation to all charges pursuant to s. 24(1). The Crown questions the reliability and credibility of Mr. Forde in relation to the events he described, however, even if it occurred, they argue that it does not warrant a stay of proceedings. On this application, the viva voce evidence included the accused, Dylan Forde, his mother, Olga Forde, and some documentary evidence entered on consent.

6With respect to the ss. 8, 9, 10(a) and 10(b) issues, the Applicant is seeking to exclude all evidence obtained pursuant to section 24(2) of the Charter. In broad terms, the Applicant argues that, even if there was a valid reason for the stop, police were improperly using an investigative detention to gain grounds to search under the CCA, without telling Mr. Forde the reason for his detention or advising of rights to counsel. As for the searches conducted, the Applicant argues that police did not have validly obtained grounds to search pursuant to section 12 of the CCA. The Applicant argues that the various breaches must lead to exclusion of all statements and evidence obtained.

7The Crown does not concede that there have been any breaches and argues that even if any of the conduct amounts to a breach, it does not warrant exclusion of evidence under s. 24(2).

8The Charter application and trial proper included viva voce evidence from five police officers. During the testimony of some officers, body worn camera video, capturing relevant events from this occurrence, was played in court and each were entered as Exhibits.

9As for trial issues, depending on this court’s decision on admission or exclusion, the issues are related to possession, knowledge, and control.

Summarized Evidence

10An Agreed Statement of Facts was reached on a number of issues which are as follows:

a. The Taurus handgun seized from the satchel on Mr. Forde meets the definition of prohibited firearm and when tested by police was in proper working order. Mr. Forde had no registration certificate for it and no licence to possess it.

b. The continuity of the firearms seized once they left the scene is admitted.

c. The nature, quality and weight of substances that the Crown alleges were seized from the satchel on Mr. Forde, the black gym bag, and under the driver’s seat are:

i. Cocaine – 78.38g

ii. Benzodiazepines – 13 pills

iii. Cannabis – 40.25g

d. The nature, quality and weight of substances that the Crown alleges were seized from the satchel on Mr. Stewart and backpack in his hand when he left the truck:

i. Methamphetamine – 19.87g

ii. Cocaine – 69.72g

e. The continuity of the substances seized once they left the scene is admitted.

f. These drug quantities are such that the possession, if made out, was for the purpose of trafficking.

11A Certificate of Analysis was also introduced on consent for the Glock handgun. The Glock handgun seized from the satchel on Mr. Stewart’s person meets the definition of prohibited firearm and when tested by police was in proper working order.

PC Stephanie Halkidis

12PC Stephanie Halkidis was one of two officers involved in the initial stop of the F-150. She has now been a police officer with Barrie Police Service for about three years, but at the time of these events in March 2023, she had been a police officer about two months. On March 13, 2023, she was on general patrol with DC Matthew Salmon, being coached by him, working a night shift, in full uniform in a marked cruiser. She explained that general patrol includes things such as responding to radio calls and traffic stops.

13PC Halkidis testified that her involvement in the events before the court started at 21:50 hours on March 13, 2023. They were on general patrol in the area of the Barrie Motel when she saw an F-150 running in the parking lot of that establishment. She agreed that they did not go into the Barrie Motel parking lot until she saw the truck, although she explained they often go through many parking lots. She was not driving on this occasion. PC Halkidis agreed that, as they were driving by, she saw the F-150 and wanted to check it out, which she conveyed to DC Salmon, and they drove in the parking lot. As for what there was about the vehicle that caused her to want to check it out, she explained that she was being coached at the time, so she was learning CPIC by running vehicles. There was nothing specific about the F-150 that caused her to want to run it, rather it was being used as a teaching tool.

14She had not made any observations of any occupants of the vehicle at that time. She stated that, as she was reading the CPIC return, as they were still in motion, the vehicle began to leave the parking lot of the Barrie Motel. She ultimately learned through CPIC that it had an expired validation tag. She advised DC Salmon of this, he asked if she wanted to conduct the traffic stop, and she said yes. She stated that it was her decision to stop the vehicle, but that DC Salmon agreed. They followed the vehicle and conducted the traffic stop shortly after, about 400 metres away, at the Esso at Anne and Dunlop Street. The F-150 stopped on the west side of the gas station. The basis for the stop was to notify the driver of the expired validation tag and to confirm if the driver was licenced.

15According to PC Halkidis, she approached the driver’s side of the vehicle and DC Salmon approached the passenger’s side. She knocked on the window and the driver rolled down the window. She testified that she explained the reason for the stop was due to an expired validation tag, and requested the driver’s licence, registration, and insurance. At 21:53, she was able to identify the driver with the use of the Ontario driver’s licence she was provided – Dylan Forde. (She also pointed out the driver as the accused in court.) She then went to speak with DC Salmon at the rear of the truck, where she explained that, along with an expired validation tag, there was also expired insurance. According to PC Halkidis, the two of them returned to their cruiser and she began to write up the infraction. PC Halkidis testified that she had noticed that the driver was shaking a lot, his words were trembling, and there was a distinct odor of cannabis. She later clarified it was a smell of fresh cannabis. She believed he was nervous, given the fact that he mentioned it was the firs time he had been pulled over. She shared these observations with DC Salmon. Upon hearing this, according to PC Halkidis, DC Salmon wanted to investigate further. After being referred to the preliminary hearing evidence, she recalled DC Salmon say that the driver was shaking because his buddy has a satchel.

16Around this time, Sgt. Gould arrived on scene. PC Halkidis stated that they had put over the air that they were conducting this traffic stop. They walked to his cruiser and briefed him. PC Halkidis did not remember much of the conversation but testified that she remembered explaining to him what “we had at the time”. PC Halkidis disagreed that Sgt. Gould had told them not to proceed further, stating that “he didn’t explicitly say not to proceed”. PC Halkidis stated that her interpretation of the conversation was to investigate further. She agreed that, after reviewing her body camera before testifying, Sgt. Gould advised something along the lines of not to search as it would amount to self incrimination and would not fly in court. She explained that at the time she was a new officer and did not understand. However, she also stated that Sgt. Gould never told them not to continue with the investigation and in fact he assisted by coming to the vehicle.

17After the discussion with Sgt. Gould, at 21:58, PC Halkidis and DC Salmon returned to the driver’s side window of the F-150 to continue the conversation with the driver. At this point, PC Halkidis explained that she was not having any conversation with the driver, rather it was DC Salmon who was doing so. According to PC Halkidis, Sgt. Gould had exited his vehicle and went to the passenger side of the F-150. As for what she overheard, PC Halkidis testified that DC Salmon was inquiring further about the odor of cannabis emitting from the vehicle, and the response from the driver was that he had “a little bit”. PC Halkidis confirmed that she vaguely remembered Mr. Forde telling DC Salmon that he could not reach the bag in the back, however, she stated that Mr. Forde was able to reach the bag and that she eventually saw him turn around, grab the bag, and it ended up on his lap. She saw this as she was standing at the side of the hood of the vehicle in front of the driver’s door looking at the driver. DC Salmon left and told PC Halkidis to stay at the driver’s door. When DC Salmon returned, he asked the driver to exit the vehicle. As for whether she heard any reason given by DC Salmon about the request to exit the vehicle, PC Halkidis testified that the reason provided to the driver was for a further cannabis search of the vehicle and his person. The driver exited as requested at 22:04.

18After the driver stepped out, PC Halkidis heard DC Salmon ask him to remove his jacket and hand over the satchel on his person. She explained that he had a satchel close to his body and a Moose Knuckle coat on top. When this was done, at 22:05, PC Halkidis witnessed DC Salmon discover a bag containing cannabis as well as a firearm in the satchel. She confirmed that this was the first marijuana she had seen. The driver was then placed under arrest, in which she assisted with handcuffing. PC Halkidis explained that Mr. Forde was placed under arrest for officer safety because a firearm was located. Even though the firearm was being seized, there could be more. At that moment, there were no rights explained to Mr. Forde. According to PC Halkidis, she did not tell him what he was charged with at that time.

19According to PC Halkidis, as they were walking the driver back to the cruiser, she saw Sgt. Gould speaking with the passenger of the F-150. PC Halkidis then went to assist Sgt. Gould with the arrest of the passenger. She explained that they typically try to make arrests in numbers, with at least two officers, for officer safety. However, in addition, the passenger began to resist which required three officers to be involved. Once under arrest, in handcuffs, she brought the passenger to Sgt. Gould’s cruiser and then asked for direction on what to do next. The direction given to PC Halkidis was to gather evidence bags and she ultimately witnessed evidence being placed in those bags. She did not assist with any searches other than providing the bags.

20At 22:22, PC Halkidis testified that she provided rights to counsel and caution to the driver, as she stood just outside the cruiser – still at the Esso. The driver did ask for a lawyer, specifically, he wanted to speak with a lawyer and wanted to contact his father to get that lawyer information. At 22:28, she and DC Salmon transported the driver in their cruiser back to the station. At the station, she participated in booking the driver into cells, but had no other role with the driver. Mr. Forde’s parents attended at the station when they arrived back there and PC Halkidis spoke to them in person at which time she got information from the parents about the lawyer, Mustafa, with a phone number for What the Law, which she claimed she relayed to DC Salmon who she understood called the lawyer. According to PC Halkidis, the lawyer was contacted at 23:21 and a voice mail was left. At 23:44, the lawyer called back to the station and the call was transferred to Mr. Forde.

21PC Halkidis confirmed that Mr. Forde was given a ticket for an expired validation tag and expired insurance, however, no copy of these tickets were produced and she could not say when exactly this happened in the course of the events.

DC Matthew Salmon

22DC Matthew Salmon testified that he had been a police officer with the Barrie Police Service for just under 2.5 years and, prior to that, had been a police officer with Durham for just over 4 years. At the time of these events in March 2023, he had been with Barrie Police Service for about 9 or 10 months.

23On March 13, 2023, he was working general patrol and was coaching PC Halkidis as she was a new recruit. He explained that, after police college, a new recruit must be coached by a senior officer, meaning she was following him on the shift and they were doing calls together. He was in full uniform and they were in a marked cruiser that he was driving. He explained that general patrol included driving around Barrie, including driving into various parking lots.

24His involvement with this matter began at 21:50 which was when he first observed the F-150. When asked what prompted his observation of the vehicle, he stated that they were on general patrol and went into the parking lot of the Barrie Motel. As they pulled in with the motel office straight ahead, just to the right of the office, they observed a Ford F-150, which was running, facing north toward the motel. In cross-examination, he confirmed that he did not see the F-150 as he was driving past but only once he went in the parking lot. As they commenced a CPIC query on the licence plate, the vehicle began backing out. They then received the results of the query which provided that the vehicle had an expired validation sticker. At that time, he did not make any observations of any occupants. He testified that he could not see in as the windows were darkly tinted. DC Salmon confirmed that he did not do any further investigation at the Barrie Motel in relation to this incident.

25According to DC Salmon, the vehicle left the parking lot of the Barrie Motel and turned right onto Donald Street. At the lights at Anne Street, it came to a stop as the light was red. DC Salmon explained that they left the parking lot shortly after this vehicle and, once the light at Anne turned green, the vehicle went left and then proceeded to the nearby Esso gas station at Anne and Dunlop where they stopped the vehicle by activating their emergency lights. The vehicle stopped on the west side of the parking lot facing south. DC Salmon agreed that the reason for the stop was due to the expired validation sticker.

26From the time the emergency lights were turned on, his body camera was activated. The body camera video was played and entered as an Exhibit. According to DC Salmon, the time on the video was accurate and it had not been altered in any way other than a few blacked out sections from time to time to protect the privacy of others. The following events were evident from the body worn camera:

a. The camera starts at 21:51:16 without audio as the police vehicle appears to be behind the F-150. They both turn left onto Anne Street. The emergency lights are then activated at this point, the audio on the body camera starts, and the F-150 pulls into the Esso at Anne and Dunlop.

b. As the police vehicle pulls into the Esso behind the F-150, at 21:52, PC Halkidis puts the request over the radio that she be put on a traffic stop, providing the location and the vehicle plate number.

c. DC Salmon tells PC Halkidis to tell the driver that they are being pulled over for an expired val tag, to ask for the reason, and to ask for driver’s licence, registration and insurance.

d. They are both at the vehicle at about 21:52:39, with PC Halkidis on the driver’s side and DC Salmon on the passenger side. The passenger side window remains rolled up and there is no conversation with the passenger. No conversation can be heard between PC Halkidis and the driver. The driver can be seen from time to time, including appearing to reach into the glove box for documents. DC Salmon shines his flashlight toward the passenger windows of the vehicle during this time. According to DC Salmon, he could see a satchel on the person in the passenger seat. He had no interaction with the occupants at that time.

e. At 21:53:55, the officers meet around the back of the F-150. DC Salmon states, “Run him right here the guy has a satchel”. PC Halkidis then provides the name of the driver from the documents into her body mic. As she is doing this, DC Salmon again walks up the passenger side of the truck shining his flashlight toward the windows. PC Halkidis then tells DC Salmon that “he’s saying Shannon is the dad”, and points to the registration. She also advised DC Salmon that the driver had advised her that he was calling his dad right then.

f. At 21:55:13, DC Salmon says, “Do you wanna let him go or what?” to which PC Halkidis responds, “Well we got expired plate and expired insurance.”

g. They both return to the police cruiser at 21:55:30. According to DC Salmon, they were returning to the cruiser so that PC Halkidis could write the ticket. Just after getting inside, DC Salmon suggests to just “hit him with just one or the other”, suggesting the expired validation tag. PC Halkidis then says the driver is shaking to which DC Salmon responds, “that’s because the buddies got a satchel.” PC Halkidis questions, “We can’t get in there?” DC Salmon says, “Unless, we can get his name…the passenger”. DC Salmon says they can ask and say that he does not need to provide his name if he does not want to. DC Salmon then asked PC Halkidis if she had asked the driver what he was doing at the Barrie Motel, to which she said that she was going to but did not know how much they were allowed to ask. DC Salmon said that she could ask anything she wanted. It appears that PC Halkidis then starts to write a ticket for the expired validation tag. DC Salmon then says, “Yeah there’s drugs in that car…maybe even a gun”. At that point, PC Halkidis said, “Oh it smelled like weed, like it reeked, to which DC Salmon said, “You can pull him out.” PC Halkidis says, “I thought smell wasn’t enough”, to which DC Salmon says, “no, no, no”. PC Halkidis says, “Should we go back?” DC Salmon says, “Where is the weed?” to which PC Halkidis responds, “I could just smell it coming out I could not see anything.” DC Salmon then says, “Let’s go up and chat with him.” According to DC Salmon, the intention was to talk to the driver about the cannabis his partner had smelled.

h. At 21:56:59, as the two officers get out of the car, Sgt. Gould pulls in. DC Salmon says, “Ask Gouldie”. PC Halkidis then goes up to Sgt. Gould’s car and has a conversation with him. She says, “So this truck was at the Barrie Motel, pulled him over, he has an expired val tag and expired insurance, reeks of weed in there…the driver’s shaking…super nervous…passenger has a satchel in there….do we have grounds to pull him out of there?” DC Salmon interjects, “I’d pull him out.” Sgt. Gould responds, “Freshly burnt marijuana? Smell. Ask him a bit about the weed…say it smells like weed….I mean it’s self incriminating shit too…it’s like not gonna fly at the end but…freshly burnt then its gone….if its fresh marijuana you’re smelling then its there….” In the course of Sgt. Gould saying this, PC Halkidis appears to say, “I didn’t see anything in there….” DC Salmon then asked if PC Halkidis wanted to go back and chat with the driver again. He confirmed that he had not smelled anything because the passenger did not roll his window down. According to DC Salmon, they were having this discussion with Sgt. Gould because he had pulled up and they decided to run it by him to see what he thought. From his interpretation, Sgt. Gould was not saying they could not speak further with the driver about the cannabis.

i. At 21:58:07, the officers both approach the driver’s window and DC Salmon takes the lead asking questions. The intention was to speak to the driver further about the cannabis. According to DC Salmon, he did not need to give rights to counsel or caution at that time in 2023 under the CCA, rather he only needed to give these rights if he was conducting a criminal investigation. Mr. Forde is holding his phone and asks if the officer wants to talk to his Dad. DC Salmon says, “So why does it reek like marijuana in here?” According to DC Salmon, he did detect an odor of fresh cannabis at that time. Mr. Forde gestures like he does not know then says, “Like we have…I have a little bit of weed but I didn’t smoke”. When asked where the weed was, Mr. Forde said that it would be in the gym bag and then reaches around to his back side. DC Salmon then says, “So it’s within reach of you.” Mr. Forde then says, “no, it’s on the back here”. DC Salmon then asked him to roll the back window down and asks, “Where is it?” The body cam does not show into the vehicle, however, DC Salmon testified that he could see the black bag. DC Salmon then asks Mr. Forde why he is so nervous talking to them, and he says he had never been pulled over before. DC Salmon then says that the vehicle “reeks like weed”. The passenger then says, “I can’t smell a thing.” DC Salmon then says, “we can and your buddy just said you have weed in the vehicle”. Mr. Forde then says, “no, I just….whatever’s in that bag…I don’t know”. DC Salmon then asks what he was doing at the Barrie Motel to which he says he was hanging out with his buddy, picking him up from his girlfriend’s. As the passenger is interjecting, DC Salmon says that there is no need for attitude, they are just asking questions because there is marijuana in the vehicle, and they are not allowed to have marijuana within reach of the driver. Mr. Forde then says, “I can’t reach it.” DC Salmon asks where it is exactly, whether it is in the black bag, to which Mr. Forde says, “I guess it would be in there.” At that point, DC Salmon is shining his light in the partly open back window. According to DC Salmon, Mr. Forde was not really turning to attempt to reach the bag, rather he was just jerking his shoulders. DC Salmon tells PC Halkidis to stay there.

j. At 22:00:23, DC Salmon walks to the back of the truck where he meets Sgt. Gould and has a conversation. DC Salmon tells Sgt. Gould that the driver says there is weed in that black bag right behind the centre console. DC Salmon says that “it’s fresh”. Sgt. Gould then questioned the charge – whether it is accessible to driver – to which DC Salmon said “yes” and then said they would pull him out at that point to search for it. Sgt. Gould then seems to agree, saying, “If you’ve got that you can do that”. According to DC Salmon, his authority to take next steps was the Cannabis Control Act. According to DC Salmon, PC Halkidis’ smell, his smell, and the admission from Mr. Forde formed his suspicions.

k. At 22:00:56, DC Salmon returns to the driver’s side of the vehicle where PC Halkidis has remained. DC Salmon then says he is going to need to get out of the vehicle, as there was marijuana in reach and they have grounds to search the vehicle for the marijuana, because it should be in the bed of the truck. DC Salmon then asked whether it was in a government container, to which Mr. Forde says, “yeah, it would be”. DC Salmon then asked Mr. Forde to show him before he pulls him out. The passenger and Mr. Forde then said he could not reach it and suggested that the officer open the truck. DC Salmon then pointed out that he had his seat belt on, at which point, Mr. Forde took the seatbelt off and reached to his right into the back. DC Salmon can then be heard whispering, “Look at the cash in his wallet.”

l. Just as Mr. Forde reaches around to pull the gym bag forward, DC Salmon noticed a satchel over his right shoulder. At 22:01:40, DC Salmon asked about the driver’s satchel and Mr. Forde said it had cigars in it. By this point, Mr. Forde has the gym bag on his lap and starts opening compartments and looking in it. He pulls out a grinder and a pipe. DC Salmon then says, “where’s the weed, you said you had weed.” Mr. Forde said, “I said that I thought there might be weed in here…nope, that’s all.” Mr. Forde offers for the officer to look in the bag. Mr. Forde continues to look through the bag. DC Salmon explains that if they have weed it cannot be within reach. If it is within reach, they can arrest both, and search both. DC Salmon further explained that if nothing is found, they would let them go, but if bags of fresh weed are found, they would seize it if over a certain amount of grams. Mr. Forde said he understood. DC Salmon then asked, “You don’t have any weed in your satchel?” Mr. Forde said no. DC Salmon then said, “Do you wanna open that satchel up? Do I need to be concerned about what’s in that satchel?” Mr. Forde then says no and reaches toward his satchel. He brings the satchel from underneath his coat. He mentions cigars. He pulls out a bag that he claims is a tobacco leaf. He pulls out cigars. DC Salmon then asks about the main pocket, at which time Forde looks and reaches inside. It is not clear what Mr. Forde says. According to DC Salmon, he asked Mr. Forde about the satchel to see if there was cannabis in the satchel – given that he could smell cannabis. He stated that he wanted to give Mr. Forde the opportunity to show him the cannabis. DC Salmon then asks Sgt. Gould for his opinion, and he appears to say “if he has got weed in there, you can pull him out and search the vehicle”. DC Salmon agreed that he was not aware of any marijuana ever being found in the black gym bag.

m. According to DC Salmon, he did not search the black gym bag, and he did not consider Mr. Forde searching his own bags and providing police information to be a search he was conducting.

n. At 22:04:08, DC Salmon tells Mr. Forde they are going to search him, asks him to turn off the vehicle, and put the keys on the front dash. DC Salmon says they are pulling both of them out and searching both to confirm there is no weed because there is a very distinct smell of weed. DC Salmon asks Mr. Forde if there is anything else on him that he needs to be concerned about to which Mr. Forde appears to shake his head no.

o. At 22:04:38, Mr. Forde got out of the vehicle. DC Salmon tells him that he “needs this thing off because…in my line of business satchels usually have something in it that I don’t like…aka a gun…you don’t have a gun on you brother?” Mr Forde shakes his head no, takes off his jacket and puts it on the front driver’s seat, and then takes off the satchel and hands it to the officer. DC Salmon testified that he was asking if he had anything in the satchel due to officer safety. As for his purpose in having him step out of the vehicle, DC Salmon stated that this was a CCA search.

p. DC Salmon agreed that he had already asked Mr. Forde questions by this point. When it was suggested that he expected him to answer, he responded that Mr. Forde was not required to answer, however he confirmed that he did not tell Mr. Forde that. He agreed that Mr. Forde was cooperative and did answer his questions. DC Salmon agreed that he never told Mr. Forde that he had a right to silence up to this point.

q. At 22:04:58, DC Salmon says, “oh, so there’s the weed right there brother” and a blue coloured zip lock bag can be seen in the officer’s hand. DC Salmon says, “it was right in your satchel…what else you got in here?” According to DC Salmon, the cannabis was fresh and he confirmed it was the first cannabis he had seen. At 22:05:04, DC Salmon says, “Is that a gun?”, and immediately, an officer grabs Mr. Forde’s arm and places it against the truck. DC Salmon can be heard saying, “I gotta gun over here.” Mr. Forde is immediately cuffed to the rear. The officer then appears to announce the discovery of a gun over the radio. According to DC Salmon, this is when the criminal investigation commenced. According to DC Salmon, once he was in custody for the firearm, he formed the view that Mr. Forde should be given rights to counsel.

r. Mr. Forde is then escorted to the police cruiser, during which time he is asking to talk to his dad and says he does not know what is going on. At 22:05:55, he is placed into the rear of the cruiser and DC Salmon says he will not tell his dad and “we’ll talk”. According to DC Salmon, at this point he had seen an altercation occurring at the passenger door and he ran to assist the other officers.

s. There did not appear to be any pat down search of Mr. Forde and DC Salmon did not recall doing such a search.

t. At 22:06, DC Salmon goes back to the passenger side of the vehicle to assist with the arrest of Mr. Stewart. DC Salmon agreed that during times when there was no officer next to the passenger, he could have thrown drugs over toward the driver’s side or console to try to reduce the amount he had in his possession.

u. At 22:06:51, DC Salmon goes back around the driver’s side to “get the handgun”. The satchel is seen laying on the ground beside the truck, with the bag of what was said to be marijuana laying beside it. No one else is seen near the bag. DC Salmon grabs the bag and pulls a handgun from the bag. He says, “I got the handgun, I’m gonna unload it Sarge”. He then pulls the action back and lets it go. He then pulls it back again and shakes it a bit at which point there is a rattling sound. He then places the gun on the back of the truck, on the tonneau cover, near the back window. DC Salmon is then heard saying, “It’s loaded too.” According to DC Salmon, a bullet got stuck when he did this, as the gun was loaded, and he did not know how to get it unstuck. DC Salmon confirmed that there was a magazine in the gun, but he could not confirm whether it was full. He started taking some contents from the satchel and placing it on the back of the truck. DC Salmon can be heard saying that the handgun is loaded, with a bullet in the chamber, but he had cocked it back.

v. According to DC Salmon, the ammunition was lodged in the gun, and he could not “rack it”. When he tried to “rack” it the second time, it was not going the whole way back because it was jammed. He explained that no ammunition came out. DC Salmon stated that, it was his belief, there was a bullet in the chamber which got jammed when he racked it the first time.

w. At 22:07:50, someone can be heard saying, “another Glock on him” and DC Salmon says, “so we got two”

x. At 22:08:00, DC Salmon can be seen searching through the satchel on the tonneau cover of the truck. He pulls out various items, which he says are a “bunch of drugs”, including crack. According to DC Salmon, the amount of crack cocaine was roughly 33-34 grams.

y. At 22:09:27, another officer, PC Apreda, is holding the gun, agrees with DC Salmon that there is “one in the chamber” and says, “yeah it’s jammed”.

z. At 22:09:55, PC Halkidis can be heard offering to get some bags. PC Apreda appears to be handling the gun and says, “there’s still one in the chamber here”. Another officer is heard saying, “hey, we do DNA on the guns eh”. PC Apreda is heard saying, “well my hands were all over it - fuck”.

aa. At 22:10:20, DC Salmon and PC Halkidis start putting items from the satchel into property bags.

bb. At 22:11:07, DC Salmon goes to the open driver’s door and starts searching there, including inside the Moose Knuckle coat, and inside the driver’s seat area. At this point, DC Salmon states that his authority is the CDSA and Criminal Code as a result of the drugs and firearms discovered. Cash was taken from the left inner pocket of the coat. DC Salmon claims to have found some coke / crack by the gas pedal. He said there was more crack – a big rock – between the driver’s seat and the console which he pushed down and which was retrieved by PC Apreda from under the driver’s seat.

cc. At 22:17:57, PC Apreda hands DC Salmon a bag with a white substance, believed to be crack, saying this was “in his adidas gym bag”.

dd. At 22:21:03, DC Salmon is back at the rear of his cruiser with Dylan Forde. He says, “Ok brother, so you’re under arrest, ok do ya understand…ok, my partner here is going to read you some stuff.” PC Halkidis then tells Mr. Forde that he was being arrested for possession of a Schedule 1 substance, possession for the purpose of trafficking, and possession of a firearm unauthorized. She then reads rights to counsel and explains to Mr. Forde when he does not understand. She stops at various times to ask if he understands, and he says he does or “sort of”. When asked if he wishes to speak to a lawyer now, he says that he wants to speak to his parents. PC Halkidis and DC Salmon says he cannot speak to his parents. Mr. Forde explains that his parents know a lawyer. DC Salmon asks if he wants them to contact his father to ask him for a lawyer and he says that he does. PC Halkidis also gives Mr. Forde a primary caution. Mr. Forde told them that he used to have seizures that he does not have anymore, and he has a necklace on with medication in case that were to happen. DC Salmon says that he should advise the sergeant of this at the station. DC Salmon says he will call his father when they get to the station. DC Salmon confirmed that this was the first rights to counsel and first caution given to Mr. Forde during these events.

ee. At 22:23:37, PC Halkidis and DC Salmon start putting the property bags that were on the front of their windshield into the trunk of their car.

ff. At 22:24:42, another officer hands DC Salmon a wallet that was said to be taken from the dash. DC Salmon noted there was a lot of cash. The wallet was placed in the trunk.

gg. At 22:27:12, DC Salmon opens the driver side door of his cruiser and finds a handgun in a property bag laying on his seat. He says, “oh that’s not a great place for that” and then takes it and puts it in the trunk of the car. DC Salmon did not know who had placed the firearm in that location; in fact, he did not know which of the two firearms it was.

hh. They leave the Esso at 22:27:55 and are on route to the station with Mr. Forde. DC Salmon said he would call his father at the station and reminded him to let the sergeant at the station know about the necklace. There were some discussions about his last seizure and that he had brain surgery in the past. DC Salmon said he should let the sergeant know at the station so that they can assist him while in cells if necessary. According to DC Salmon, Mr. Forde did not suggest he needed any medical assistance on the way to the station.

ii. At 22:32:11, they drive into the sally port at the station.

27DC Salmon explained that his body cam was turned off when they arrived at the station because the audio and video from the station records the events. Mr. Forde was paraded before Sgt. Don Moore. There was a complete search of Mr. Forde during the booking process and he was then placed in a cell. As for whether anything was found during the search of Mr. Forde at the station, DC Salmon had noted that a folding knife was found tucked into his pants. DC Salmon did not have any further information about the knife, did not know where it ended up, and he did not believe that Mr. Forde was ever charged with anything in relation to the knife.

28According to DC Salmon, he did not personally speak to Mr. Forde’s father, although he understood that his father was at the station.

29At 23:23, all of the property seized which was in his cruiser was handed to PC Apreda and PC Danaj.

30At 23:44, DC Salmon called a lawyer for Mr. Forde, although he did not recall how he got the lawyer’s number and did not remember the lawyer’s name.

31As for any further involvement, DC Salmon stated that, in the early morning, both the driver and passenger were informed of updated charges.

Sgt. Michael Gould

32Sgt. Michael Gould testified that he had been a police officer for over 25 years, all with the Barrie Police Service except for one year with Toronto. He was working in full uniform and operating a marked cruiser on the night in question. He was also wearing a body worn camera. He agreed it was a very cold night.

33As to how he came to be involved, he testified that he was the road sergeant working the night shift on March 13-14, 2023. At 9:52 pm, PC Halkidis and DC Salmon had advised over the radio that they had a vehicle stopped at Dunlop and Anne. He was not far away so he backed up on that call, arriving on scene at the Esso at 9:57 pm.

34Sgt. Gould pulled up behind the other police cruiser. PC Halkidis and DC Salmon came over to his passenger window as he pulled in and they all had a conversation about the stop and next steps (which was summarized above from the body worn camera of DC Salmon). As for his comment about “self incrimination shit”, he explained that depending on the line of questioning about the weed in the vehicle, it may not be admissible in court – the statements of people speaking. When asked if that means they could not ask, he said no depending on where they were in the investigation. He explained that, at this point, the potential offence being discussed was a provincial offence. As for where the investigation was heading, he explained that it was in relation to marijuana in a vehicle, they were at the provincial offence stage, and Sgt. Gould agreed that they could ask some further questions. As for why he mentioned freshly burnt versus fresh, Sgt. Gould explained that if it was a freshly burnt smell, this is not evidence of marijuana in the vehicle.

35After the discussion, PC Halkidis and DC Salmon went to the driver’s side of the truck and Sgt. Gould parked and went to the passenger side. He explained that he did that because this is routine for officer safety, as it provides another view inside the vehicle. Sgt. Gould noticed a passenger in the front seat, although the window was up and tinted, and he did not know if the person was male or female. Sgt. Gould could see a glow from the passenger’s cell phone as they were scrolling. He did not see anyone in the back seat. According to Sgt. Gould, he could not hear what was discussed between the officers and the driver.

36At 21:59:34 on the body cam, Sgt. Gould meets PC Halkidis at the back of the F-150 and says, “No, I don’t see anything. He’s got his dad on the phone there.” PC Halkidis responds, “ok”. Sgt. Gould returns to the passenger side of the truck continuing to shine his flashlight inside the truck.

37After a couple of minutes, Sgt. Gould went to the back of the F-150 where he met DC Salmon and had a brief conversation (summarized above in reference to DC Salmon’s body cam). Sgt. Gould returned to the passenger side of the truck. From his body camera, at one point the driver’s hand can be seen reaching from the front to back, picking up a black bag, and bringing it to the front. Sgt. Gould then went to the driver’s side with the other two officers to see what was going on, although he was positioned more at the rear driver’s side window. The driver’s window was fully down. As he got over there, Sgt. Gould asks, “Is he trying to find the weed?” to which DC Salmon nods yes. The rear window was part way down. He shined his flashlight inside the vehicle. For the first time, he detected an odor of fresh marijuana coming from inside the vehicle. Sgt. Gould confirmed that he did not see any marijuana.

38At the driver’s side, the officers had some further discussions and PC Halkidis and DC Salmon were going to search. According to Sgt. Gould, he never told DC Salmon or PC Halkidis not to search. The conversation that can be heard on the body cam is DC Salmon saying to Sgt. Gould “What do you think?”, to which Sgt. Gould responds, “Yeah, if he’s got the weed in there you can pull him out and search the vehicle.” Sgt. Gould then went back to the passenger side and knocked on the window for the passenger to exit while they searched the car. The passenger opened the door carrying a backpack with him. Sgt. Gould had a back and forth with the passenger about the fact that he needed to leave the backpack in the vehicle. The passenger wanted to leave with the backpack. Sgt. Gould told him that the vehicle was going to be searched because cannabis was readily available to the driver. The passenger kept indicating he did not consent to giving up his backpack. Eventually, Sgt. Gould got the backpack from the passenger and placed it on the tonneau cover of the truck.

39Around this time, Sgt. Gould heard from the driver’s side that they had a gun or a firearm. He then grabbed onto the passenger’s arm and attempted to put handcuffs on him. There was a brief struggle with the passenger to accomplish this. PC Halkidis and then DC Salmon came to assist with the cuffs. The passenger was wearing a satchel on his body, which was open, and that Sgt. Gould cut off. Sgt. Gould searched that satchel at the passenger seat and found a handgun.

40The passenger was taken back to Sgt. Gould’s cruiser by PC Halkidis with Sgt. Gould following. Before being placed in the back, Sgt. Gould searched him. After being placed in the back of the cruiser, Sgt. Gould informed him of his rights. As for what he arrested him for, Sgt. Gould stated that it was for being in possession of a firearm.

41After the passenger was secured in the rear of his police vehicle, Sgt. Gould then came to the hood of DC Salmon’s cruiser where Officer Henderson had brought the backpack and another green bag. Officer Henderson is seen searching the backpack. Sgt. Gould did not know where the green bag came from and did not do anything with that bag. In the backpack, police found suspected drugs – suspected cocaine – in the front pocket, about the size of an orange. As for the bag and the contents, it was ultimately secured in the passenger seat of his cruiser.

42Sgt. Gould then returned to the passenger side of the truck where he met PC Danaj. In the same satchel where the firearm had been found, they also found another magazine with bullets in it and a bundle of Canadian currency. This was turned over to PC Danaj at the scene while it was still on the passenger seat.

43As for the F-150, Sgt. Gould was not involved in too much of the search, other than looking in the box briefly.

44Sgt. Gould had no involvement with the driver at the scene.

45Sgt. Gould left the Esso at 10:28 pm, transporting the passenger, Cole Stewart. The backpack and contents were driven to the station by Sgt. Gould and turned over to PC Danaj at the station for processing.

46Sgt. Gould provided some evidence in relation to the custody record that was kept in relation to Dylan Forde. It appeared to reflect that four medications were given to Mr. Forde at 8:30 EDT, including sertraline HCL (25 mg) x2; lamotrigine (100 mg) x2; pantoprazole sod 3rd ec (30 mg) x1; apo-clobazam (10 mg) x 1.5. The log also seemed to reflect that Mr. Forde spoke to a lawyer, M. Sheikh, at 23:49.

PC Michael Apreda

47PC Michael Apreda testified that he had been a police officer for 6 years, all with the Barrie Police Service. He was working in full uniform and operating a marked cruiser on the night in question. He was also wearing a body worn camera.

48At 22:06, he overheard on the radio that a car was stopped. He was making his way in that direction. He then overheard some kind of tussle, and he picked up speed. By the time he arrived at 22:08, two parties were already in custody.

49As he arrived and walked up, he saw DC Salmon and a firearm on top of the bed of a pick up truck. DC Salmon advised for him to “be careful” that there was “one right in the chamber”. According to PC Apreda, this meant to him that there was a bullet in the chamber and that if the trigger is pulled, it is an issue. PC Apreda picked up the firearm, put it down again on the bed of the truck, and took some photographs with his cell phone. PC Apreda then tried to make the firearm safe. He was not wearing gloves. The firearm was a Taurus.

50As for the steps he took to make the firearm safe, PC Apreda explained that, when he received the firearm, it was locked to the rear, in that the slide was already pulled back. He stated that he could have just tried to pull the magazine out, but the bullet was still stuck in the barrel – in that it was ready to fire a round if the trigger was pulled. He yanked the magazine out, which had bullets, then moved the slide forward and back, then shook the gun, the round fell out, and he then made the gun safe – inoperable. In cross-examination, PC Apreda agreed that, when someone pulls the slide back on this firearm, the bullet should just pop out. However, when he first saw the firearm, the slide was already locked to the rear. He could not tell whether it was jammed or free at that time. In cross-examination, PC Apreda agreed that, if a person pulls the slide back on the Taurus and there was no bullet in the chamber, pulling it back should load the bullet into the chamber. However, he explained that if there was already a bullet there, the firearm would get jammed and that was why it was unable to feed properly.

51PC Apreda looked into a black zippered bag that was on the back of the truck, in which he saw what he thought was a “drug kit”, including scales. He did not know where this had been located.

52PC Apreda then put the firearm, magazine, and one loose unfired bullet that had fallen onto the ground into an evidence bag and placed it on the front driver’s seat of DC Salmon’s cruiser and locked the door. After securing the firearm, he then began to search the F-150.

53Back at the station, he and PC Danaj processed all items in the drug room. As for the location of where items were found, he would receive this information from other officers and then input it into the exhibit list. As for how many bullets were in this firearm, he looked at the exhibit list and advised that there were twelve 9 mm bullets counted at the time of seizure.

PC Grzegorz Danaj

54PC Grzegorz Danaj has been a police officer since 2009, all with the Barrie Police Service.

55At the time of this incident on March 13, 2023, he was working in full uniform on general patrol. He heard about a traffic stop with a firearm involved over the air and he made his way to the scene. He arrived at the Esso at 22:07. He noticed a pickup truck stopped. He was informed that there was a firearm on the passenger side, and he went there to photograph and seize the firearm for safety. The items were located on the front passenger seat in a bag.

56Prior to going into the bag, he photographed it and then peeked inside. He saw the back of the handgun, took it out, made it safe, and then took the remaining items out of the bag. He noted the firearm, a large quantity of cash, and another magazine – making two magazines in total – one in the gun and one out – both loaded. This firearm was a Glock 43X. As for making the firearm safe, he explained that he pointed it in a safe location and slid the action to the rear.

57The firearm was placed in an evidence bag, and he transported it to the station. Once back at the station, further photographs were taken, the serial number was checked, and it stayed in police custody.

Dylan Forde

58Dylan Forde testified on the ss. 7, 12, 24(1) issues only, discussing the matters that he says occurred after he arrived at CNCC. He was 18 years old at the time and this was his first time in jail. Mr. Forde has some history with having seizures and in 2021 had brain surgery at which time scar tissue caused by seizures was removed.

59Mr. Forde arrived at CNCC on March 14, 2023. When he arrived, he was brought to an intake COVID range. Before entering the range, a correctional officer advised him that he had to read the rules that were written on the wall. He was told to read and then go shower. After doing this, he introduced himself to inmates who approached him. He was and continues to be passionate about working out and he discussed working out and programs with the other inmates.

60Initially, he was in a cell by himself. As he was becoming more comfortable with the inmates around him, he was becoming uncomfortable with being in a cell by himself because of his history with seizures. He bonded to some extent with one of the inmates and asked him if he could move to his cell as he would feel more safe being around someone that can help if a situation led to him needing emergency medical help. The inmate agreed. Mr. Forde brought it to the attention of a correctional officer who agreed to allow it. He was then moved to this cell with the other inmate for safety. [The CNCC medical records suggest that the request to have a cellmate occurred on March 16, 2023.]

61Shortly thereafter, Mr. Forde stated that he was having trouble urinating and he brought this to the attention of the correctional officers numerous times. He stated that, as the days went on without urinating, he was in excruciating pain, however, the correctional officers did not take the situation seriously as they told him "just pee" and "man up". After suffering severe pain for some time, Mr. Forde stated that he had an aura, which is a small seizure that occurs at the beginning of a full seizure. He informed the officers that he was not feeling well. He had pressed the cell call multiple times begging for help. The officers continued to mock him. Mr. Forde stated that he needed immediate help to urinate, and he begged the officers to insert a catheter to relieve the pain. Eventually, a sergeant came, and he was taken out of his cell. He stated that they were “manhandling” him. He stated that he was not understanding his surroundings but was aware he was being pulled, dragged and was “puking”. He continued to ask for a catheter. While the correctional officers were pulling him from his cell to segregation, the sergeant followed making comments such as, "My son is more of a man then you" and “You deserve an Oscar".

62Mr. Forde testified that he was brought to a room. He was gagging and was going into a worse seizure. He continued to plead for a catheter to be put in by a nurse. The nurse told him it would hurt but he was in so much pain he said to do it. She did this and it released some pain, which then continued to subside over the next while. He was then strip searched and placed into segregation. He did not understand why this was happening. Mr. Forde described the nurses as very reasonable, understanding, and concerned about the problem he was having.

63In segregation, Mr. Forde stated that he felt unsafe and scared for his life. He claimed he was there for 4-5 days and that during this period he was skipped for phone time. He explained that he just wanted his mom to know that he had a seizure. Mr. Forde eventually yelled across the hall to another inmate, asking if he could call his mother and tell her he had a seizure and was placed in segregation. Mr. Forde understood that this was done by the inmate. During this time, he was wearing only shorts and a t-shirt. He asked for a jumpsuit or a blanket as he was freezing but this was not provided. There was water – condensation from the window – coming into his cell. He also recalled being skipped over for one meal when he was using the toilet. He explained that, as he was using the toilet, there were correctional officers watching him. He did have paper and a pencil and he made notes of what was occurring.

64In examination in chief, Mr. Forde stated that after 4 or 5 days, he was brought back to the intake range. The correctional officers then tried to put him into a different cell than the one he had been taken from with the cellmate. Mr. Forde told the correctional officers to put him back in the cell they just took him from a few days ago and they questioned it, as they did not seem to know which cell he had been in. His cellmate and some other inmates vouched for his previous accommodations. The officers ultimately agreed. In cross-examination, Mr. Forde seemed to ultimately agree that his own handwritten notes reflected that he was in segregation for about 48 hours – March 18-20, 2023 – which was also consistent with Exhibit 11, the CNCC log book.

65Later, he was moved to a real range. His new cellmate agreed to watch out for him and allowed him to sleep on the bottom bunk in case of a seizure. He continued to be passionate about working out and shared his knowledge with the other inmates. Mr. Forde agreed that he was somewhat happy at these times, when teaching others about working out and making programs for them, and when his cellmate was helping him read and write better.

66He explained that, during this period, his medications were being given at random times which he explained is dangerous for his condition. He explained that he gets odd feelings in his body when he does not take his medication strictly on time, every twelve hours, but in CNCC he was getting under and over-dosed. At one point, he was in the medication line and when he got to the front of the line, he asked the lady giving the medication if they could make sure they are provided every twelve hours. She told him no and that he had to take them at whatever time they give them out. As he was talking to the nurse, an inmate got mad and, after he took his pills and walked away, the inmate threw a punch at him. The punch missed and the matter was deescalated.

67Mr. Forde continued to keep a daily journal while in custody, as he does in his regular life. He explained that it helps him remember things. Shortly thereafter, Mr. Forde was granted bail.

Olga Forde

68Olga Forde is Dylan Forde’s mother. She described that, back in 2014, her son was diagnosed with epilepsy. He suffered numerous seizures throughout the years. She explained that, when he had grand mal seizures, he would be administered a rescue drug, and he would be monitored closely for 24 hours, including being with him while he slept. Ultimately, he had brain surgery which helped. According to Mrs. Forde, her son had been seizure free since his surgery in 2021 leading up to this incarceration. He had been driving, working, and living his life. It is her understanding that he will require medication for the rest of his life, and it is very important that the medication be taken, strictly, every twelve hours, otherwise, he can have a seizure, or other symptoms, such as shaking, throwing up, and overheating.

69When her son was incarcerated at CNCC, she received a call from another inmate who told her that her son had a seizure, had been placed in segregation, and was not permitted to call her. Mrs. Forde called the medical team at CNCC to advise them of this and that he should not be left alone in segregation, as if he experienced another seizure, he could die in minutes. Mrs. Forde described speaking to several people, including two nurses, who explained that they cannot administer medication every twelve hours, rather they administer medication at 9:00 and 6:00. Mrs. Forde asked to speak to the director of care. Mrs. Forde attempted to explain the different types of seizures, as they were only aware of grand mal seizures. Mrs. Forde explained that the surgery had taken away the grand mal seizures, but the focal seizures still occur which may be less obvious. Mrs. Forde decided to and did send a care plan so they would know what to look for. The medical team mentioned that they would reference the SickKids website to better train the officers on different types of seizures. Mrs. Forde also sent a further email about how sleep deprivation and food deprivation are huge triggers for her son. Mrs. Forde understood through the medical team that the materials she sent were going to be placed into his chart for doctors and nurses to review. Mrs. Forde stated that there were multiple telephone calls between her and the medical team as she was deeply concerned for her son’s life. Mrs. Forde stated that they were very nice, but her biggest concern was that they did not have staff to administer the medication twelve hours apart and they had taken away his rescue medication, which she understood he never got back to wear around his neck.

70It was suggested to Mrs. Forde that the handwritten notes of Mr. Forde made when he was in custody were not full of talk of auras, seizures, and health problems, but rather talk about working out and connecting with the other inmates and suggest he was doing just fine. Mrs. Forde responded by saying he was just trying to survive and that even talking or writing about these events are triggers for him. It was also suggested to Mrs. Forde that the medical documents provided by CNCC do not mention his having a seizure in custody. When it was suggested to Mrs. Forde that she had no proof that he had a seizure in custody, she said that she believed her son and this other inmate, however, she ultimately agreed she was not there. Mrs. Forde was directed to various medical reports that were contained in the CNCC medical documents from 2022 and 2023. She agreed that she did not provide those reports and that they must have obtained those on their own. There was also a reference in the CNCC documents to Mr. Forde being permitted to attend a previously scheduled medical appointment virtually, however, Mrs. Forde did not know if that happened. The documents also contained information related to prescriptions that CNCC had obtained from pharmacies in Barrie for Mr. Forde. It was pointed out to Mrs. Forde that the medication instructions did not say anything about the need for precise twelve-hour intervals, but she insisted that this was what she was instructed.

71As for his mental health when he was released on bail, Mrs. Forde said it was very bad and she was very scared for her son’s life. Since release on bail, he has been following up with medical care and they attend for appointments regularly. He has not returned to driving. She agreed he is not medically suspended but she would not permit him to drive in his current condition. She coordinates his care with her husband. She stated that he must be with her or her husband 24 hours a day, but then explained this is not health related but rather due to his bail release conditions. Mrs. Forde was referred to a letter that she authored in May 2025 to support a request for a bail variation for Mr. Forde that spoke of him working for the family caulking business, including working independently, and meeting with clients to discuss project needs. She agreed that if he is not feeling sick, he is able to be out doing jobs.

CNCC Log Book

72The CNCC Log Book, entered as an exhibit on consent, suggests the following:

a. Correctional officers tour the BSU (Behavioural Stabilization Unit) every 20 minutes.

b. On Saturday March 18, 2023, at 11:39, Mr Forde was placed in the BSU, cell #112 from unit 5, by Sgt. Thorne.

i. At 12:08, there was a cell call from #112 – officers responded

ii. At 12:40, a nurse was on the unit to assess Mr. Forde in cell #112.

iii. At 13:00, there was a cell call from #112 – staff responded.

iv. At 14:28, there was a cell call from #112 – staff responded

c. On Monday, March 20, 2023, at 11:25, Mr. Forde was moved from the BSU back to unit 5.

CNCC Medical Records

73The CNCC medical records for Dylan Forde were entered as an exhibit on consent. The records provide the following information:

a. Upon admission to CNCC, COVID checks were done.

b. On March 14, 2023 at 21:20, Mr. Forde was seen for an intake assessment. He reported a history of seizures and brain surgery 2 years prior. He provided the numbers for his mother and father in case of emergency or questions. His medications were administered from blister packs brought by him. His medications were noted as was the pharmacy as Pharmasave in Barrie. He also consented to Pharmasave providing his medication profile to the medical department. A urine sample was requested but could not be provided. Mr. Forde’s history of seizures is noted on his Unit Notification Card.

c. A medication report from Pharmasave dated March 15, 2023 listed medications as:

i. Clobazam – 10 mg tablet – take ½ tablet by mouth in evening and instil as per titration plan up to 1 and ½ tablet twice a day

ii. Lorazepam – 2mg – dissolve 1 tablet under tongue when required for seizures lasting more than 3 minutes, may repeat dissolve 1 tablet under tongue if seizure persists for more than 5 minutes, after first dose call 911 if administering – notes say not filled – on file

iii. pantoprazole magnesium – 40 mg – take 1 tablet by mouth – notes say not filled – on file

iv. Eslicarbazepine – 800 mg – take 2 capsule daily at bedtime – notes say not filled – on file

v. Lamotrigine – 100 mg – take 2 tablet by mouth twice a day - notes say not filled – on file

vi. Sertraline Hydrochloride – 25 mg – take 1 capsule by mouth once daily – notes say not filled – on file

vii. Sertraline Hydrochloride – 25 mg – take 2 capsules daily – inactive

viii. Amoxicillin Trihydrate – 500 mg – take 1 capsule 3 times a day for 10 days

A medication report was also received from Rexall, which listed one current medication – clobazam – and some discontinued medications.

d. On March 16, 2023, at 9:30, Mr. Forde requested an Ativan prescription for when experiencing “auras”. Mr. Forde was noted to be unable to report when his last seizure was. A file review showed an order from a pharmacy for Ativan for an active seizure lasting more than 3 minutes. Dr. Bolton was consulted and no new medications were ordered. Mr. Forde requested a cellmate. On the same date, a request was made by Dr. Bolton to unit staff to accommodate Mr. Forde with a cellmate and a bottom bunk.

e. On March 18, 2023, the nursing notes indicate that they were called by staff at 12:15 as Mr. Forde was requesting a nurse. The nurse saw Mr. Forde in cells at which time he was complaining of abdominal pain and that it felt like his bladder was “painfully full”. He stated that he had not voided since yesterday. There was a discussion about drinking fluids. The nurse examined his abdomen and took his vitals. The nurse spoke with the doctor on call and ordered an in and out catheter. Nurses then attended the BSU and an in and out catheter was completed yielding urine. Mr. Forde’s abdomen was still tense and painful and he reported little relief. The doctor was notified again and a decision was made to send Mr. Forde to emergency.

f. On March 18, 2023, at 13:00, the sergeant informed nursing that Mr. Forde stated he was better. The nurse attended the cell and Mr. Forde stated that he was able to void on his own and the pain had subsided. The trip to emergency was cancelled. Mr. Forde was encouraged to drink lots of fluids. Urine was to be collected the following day for the lab.

g. On the physician’s order report, on March 18, 2023, there is an indication that they completed an in and out catheter one time only.

h. On March 19, 2023, a nurse completed a daily health status assessment. The assessment was all positive, in that he was not noted to have any injuries, he was clean, showered and dressed, he was eating and drinking, he maintained eye contact, his mood, behaviour and coping were all positive, he was taking his medication, and he was oriented to person place and time.

i. On March 21, 2023, Mr. Forde was medically cleared to move out of intake range and into an appropriate living unit.

j. On March 22, 2023, a report was received from Dynacare with results of the urine testing.

k. On March 23, 2023, Mr. Forde signed consents to disclose his CNCC personal health information to his mother.

l. On March 23, 2023, at 8:15, the medical staff received a report from Mr. Forde’s mother advising on her son’s medical history, the requirement of medications being taken twelve hours apart, the need for rescue medication, triggers, and describing auras and seizures. She advised that her son cannot see when he has these auras and no longer shakes due to the surgery. She advised medical staff that he requires follow up care and was being seen at Sick Kids. His mother provided a number to SickKids and her own number.

m. On March 23, 2023, at 13:45, the medical staff called Dr. Ken’s office requesting a follow up.

n. On March 23, 2023,at 13:55, the medical staff called the neurology clinic and left a message regarding the need for a follow up appointment.

o. On March 23, 2023, at 15:02, the medical staff called SickKids Neurology in Toronto. The indication was that Mr. Forde was to follow up with Dr. Johnson, as required per the last neurological consultation.

p. On March 23, 2023, at 16:00, a social worker on the unit informed the nurse that Mr. Forde was requesting the results of his urine test conducted and stated that he was unable to void while in custody and requires privacy to do so. Mr. Forde was scheduled to be seen by the doctor the next day.

q. On March 27, 2023, a nursing note indicates a history of seizure disorder and that there was a request for medication every twelve hours.

r. On the physician’s order report, on March 27, 2023, there is a note that Mr. Forde should be getting his medication every twelve hours, and there was a question about how this could be organized. It appeared that this information was coming from Mr. Forde’s mother. “Trish” was going to look into this.

s. A medication administration record indicates that Mr. Forde received his medication at 8:00 and 18:00 each day, with the exception of March 22 which was not initialed. The daily medications were clobazam (15 mg), lamotrigine (200 mg), Zoloft (50 mg), pantoloc (40 mg), aption (1600 mg). There is also a note that Fucidin was given to Mr. Forde on March 27, 2023.

74The medical records also contained: an epilepsy surgery clinic report from SickKids dated July 22, 2022, an emergency department report from RVH dated September 7, 2022 relating to a seizure, a follow up letter from neurosurgery at SickKids dated September 14, 2022, an epilepsy surgery clinic report from SickKids dated November 17, 2022, a neuropsychological assessment report from SickKids dated March 20, 2023.

Will State from CNCC Security

75A Will State from Cheryl Spooner, Security Manager from CNCC, was also entered as an exhibit on consent. She explained the following:

a. Dylan Forde was housed at CNCC from March 14 to March 31, 2023.

b. He was housed in various locations including:

i. March 14 – 18 – 5E Intake Unit

ii. March 18 – 20 – 8-2 Behaviour Stabilization Unit

iii. March 20 – 21 – 5E Intake Unit

iv. March 21 – 31 – Various locations on the Open Living Unit

c. He had a cellmate for 11 of the 17 days he was there.

d. At CNCC, every unit has video surveillance in the common area. Videos are automatically written over every 60 days but, if there is use of force reported, the video of the incident is saved and stored indefinitely. No use of force issue was brought to the Security Department’s attention involving Mr. Forde from March 18 – 20, therefore no video was saved. Use of force includes if an inmate was dragged by officers.

e. Mr. Forde was subjected to unscheduled lockdowns on 5 of the days he was at CNCC, due to staffing issues.

Analysis

76Given the remedy sought by the Applicant in relation to the treatment he claims to have received at CNCC – a stay of proceedings of all charges – this issue will be addressed first.

77While acknowledging that the medical staff at CNCC did the best that they could in the circumstances in which they work, the Applicant argues that his treatment at the hands of the correctional officers, including the sergeant, amounts to a violation of his Charter rights under s. 7 and s. 12, and that the only reasonable remedy is a stay of proceedings under s. 24(1).

78Section 7 of the Charter requires a two-step analysis to determine whether legislation or other state action infringes a protected Charter right: (1) is there an infringement of the right to life, liberty and security of the person; and (2) if so, is the infringement contrary to the principles of fundamental justice. A section 7 analysis must be a contextual one.

79Recently, in R. v. Whitlock, [2025] O.J. No. 4626, Conlan J. was considering the well-known events that were said to have occurred at Maplehurst Correctional Complex. In relation to section 7, he stated:

416On section 7, it is important to remember the following, taken from the instructive decision of Justice Watt, writing for the Court of Appeal for Ontario, in R. v. Donnelly, 2016 ONCA 988, 135 O.R. (3d) 336, at paras. 106-109:

(i) not every compromise of a person's security will come within the reach of section 7;

(ii) rather, the compromise must be significant enough to warrant constitutional protection;

(iii) otherwise, we risk trivializing the section 7 Charter protection;

(iv) security of the person protects both the physical and the psychological integrity of the individual;

(v) for a compromise of security of the person to be established, the state action must have had a serious and profound effect on the person's psychological integrity;

(vi) regarding the psychological integrity of the claimant, two requirements must be met before the security of the person interest protected by section 7 is engaged: (a) first, the psychological harm must be state imposed, meaning that the harm must result from actions of the state, and (b) second, the psychological harm or prejudice must be serious;

(vii) in terms of the seriousness of the psychological harm or prejudice, something greater than ordinary stress and anxiety is required; and

(viii) the effects of the state interference are to be assessed objectively.

Conlan J. noted that state action that amounts to a form of corporal punishment or torture will generally be a violation of section 7, citing R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045 at pp. 1073-74 and Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1 at paras 51-2.

80In relation to section 12, Conlan J. stated:

428These subsequent decisions that have relied on Smith for guidance include many cases dealing with treatment (as opposed to punishment), and treatment in the prison context, and those decided by our Court of Appeal for Ontario specifically. To illustrate the point, just three examples are: R. v. Olson, 1987 CanLII 4314 (ON CA), 62 O.R. (2d) 321 (Ont. C.A.); Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 667, 416 D.L.R. (4th) 124 (Ont. C.A.); and Canadian Civil Liberties Association v. Canada, 2019 ONCA 243, 144 O.R. (3d) 641 (C.A.).

429In this Court's decision on section 12, I will follow the recipe provided by Justice Lamer, as the Chief Justice then was, in Smith, including consideration of the questions posed by Professor Tarnopolsky, as he then was, and I will also be bound by the helpful summary of the legal framework outlined by Justice Laskin, for the Court of Appeal for Ontario, at paragraphs 7 through 10 of Ogiamien, set out below:

7Although Ogiamien and Nguyen claimed violations of sections 7 and 9 of the Charter, the focus of their application was s.12. Section 12 of the Charter guarantees that "[e]veryone has the right not to be subjected to any cruel and unusual treatment or punishment". This case is about treatment, not punishment. The lockdowns at Maplehurst were "an exercise of state control" over Ogiamien and Nguyen and amounted to "treatment" under s. 12: Rodriguez v British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 S.C.R. 519, at p.611. And this court has held that the test to establish a violation of s. 12 is the same for treatment as it is for punishment: R. v. Olson (1987), 62 (O.R. (2nd) 321 (C.A.) at p. 336, aff'd, 1989 CanLII 120 (SCC), [1989] 1 S.C.R. 296.

8To establish a violation of s. 12 a claimant need not show separately that the treatment is both cruel and unusual. The words "cruel" and "unusual" colour each other and together express a standard or norm. See Miller and Cockriell v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. 680, at pp. 689-690.

9But "cruel and unusual" is a high bar to meet. The Supreme Court has used various expressions to describe this high bar: "so excessive as to outrage standards of decency"; "grossly disproportionate to what would have been appropriate"; "grossly disproportionate for the offender, such that Canadians would find the punishment abhorrent or intolerable". The point underlying these expressions is that merely excessive treatment or disproportionate treatment is not enough to establish a s. 12 violation. In the context of punishment the Supreme Court has cautioned against stigmatizing every excessive or every disproportionate sentence as being a constitutional violation. So too with treatment. See Miller and Cockriell, at p. 688; R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045, at para. 54; R v Morrissey 2000 SCC 39, at para. 26; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 39; and R. v. Tinker, 2017 ONCA 552, at para. 126.

10Lamer J.'s expression in Smith -- "grossly disproportionate to what would have been appropriate"-- suggests a two-step inquiry to determine whether treatment has been cruel and unusual. The first step establishes a benchmark. In this case step one looks at the treatment of Ogiamien and Nguyen under "appropriate" prison conditions --that is their treatment under ordinary conditions in the remand units when there were no lockdowns. Step two assesses the extent of the departure from the benchmark. In this case step two looks at the effect of the lockdowns on Ogiamien's and Nguyen's treatment. If the effect of the lockdowns resulted in treatment that was grossly disproportionate to their treatment under ordinary conditions then their s.12 rights would be violated.

Again, Conlan J. noted that torture is undoubtedly contrary to section 12. Ultimately, the court found a breach of ss. 7, 8, and 12 of the Charter, and entered a judicial stay of proceedings pursuant to section 24(1). Of course, Conlan J. did so on the basis of the facts that he found in that case, many of which he found were not in dispute.

81In the case at bar, this court is not satisfied that the Applicant has met his onus in establishing, on a balance of probabilities, a violation of his section 7 or section 12 Charter rights. Frankly, while this court has no doubt that Mr. Forde’s time at CNCC was not a pleasant experience, it would appear that the staff were attempting to make accommodations for Mr. Forde and to learn about his medical needs as quickly as they could in this relatively short time. The following facts are important:

a. Mr. Forde was in CNCC for 18 days.

b. On the very first day, March 14, 2023, Mr. Forde went through a health assessment as part of intake.

c. On March 15, 2023, the very next day, CNCC had received information from the pharmacies about his various medications.

d. While it is unknown why there are no initials for dispensing medication on March 22, 2023, it would appear that, even from Mr. Forde’s own evidence, he received his needed medication every day, with his only complaint being that the medications were not given at 12-hour intervals. A few things are worth noting: 1) there is no indication on any of the prescriptions that they must be given or even should be given at 12-hour intervals; 2) there is no recommendation of this in any of the available medical information; 3) Mr. Forde’s mother brought it to the attention of the institution in her written materials on March 23, 2023; 4) It would appear that the institution was attempting to look into this to see if there was a way to accommodate it; 5) According to the medication records, Mr. Forde received his medication at 10-hour intervals; 6) There is no evidence that Mr. Forde suffered any negative effects.

e. On March 16, 2023, a doctor made a request on Mr. Forde’s behalf that he have a cellmate and a bottom bunk. According to Mr. Forde, this was accommodated.

f. It is not entirely clear why Mr. Forde was taken to the BSU, however, it appears that it was due to the pain he was reporting and his request for a catheter, as this was the timing in which it occurred. However, it is clear that he only remained there for about 48 hours, March 18 at 11:39 to March 20 at 11:25 – not the 4 -5 days he had originally suggested. It is also clear that, shortly after being placed in the BSU, he received medical attention for his complaint that he was unable to urinate. At 11:39, he was placed in the BSU, and by 12:15 he was seen by a nurse and a catheter was put in and taken out. He experienced some relief but not total relief, so a decision was made to take him to emergency. There is no suggestion that the catheter was inserted in any public forum. By 13:00, Mr. Forde stated that he was better and the pain had subsided, so the emergency room visit was cancelled.

g. There is no mention in the medical notes about Mr. Forde having suffered a seizure or still having a seizure in progress when seen by nurses in the BSU. This court is not satisfied that Mr. Forde had an aura or seizure. However, if he did experience a seizure, it is not clear that it would have been obvious to correctional officers.

h. While Mr. Forde claims he was manhandled from unit 5 to the BSU, it was unclear even from his own testimony what exactly he experienced. The Applicant claims that evidence “disappeared”, suggesting something nefarious, however, there is no reason to think that occurred. The evidence from CNCC is that if a person was dragged from their cell, such video would be kept indefinitely, however, no such video exists. This court cannot simply assume that CNCC is attempting to hide evidence. It is equally possible that there are no records because this incident was not as Mr. Forde described.

i. The records indicate that every time Mr. Forde pressed cell call, staff responded. When this was put to Mr. Forde, he did not deny this but rather questioned what officers did when they responded.

j. While counsel suggested that Mr. Forde was not properly fed, he testified to only missing one meal because he was using the toilet.

k. As for not having privacy to use the washroom, there was a lack of specificity as to how and where this occurred, other than that correctional officers were around at the time. The reality of jail is a lack of privacy – which is often necessary to ensure the safety and security of persons incarcerated.

l. As for Mr. Forde being cold and left in shorts and a T-shirt without a jumpsuit or blanket while in the BSU, it is not clear why this would be, however, there is no suggestion that this was done for deliberate negative impact on Mr. Forde. It is worth noting that during the daily health status assessment on March 19, 2023, Mr. Forde is reported to be doing fine. As for the state of the BSU, in that there was condensation coming from a window, it is not acceptable that this is the state of any unit at CNCC, however, again, this was seemingly not done for deliberate negative impact on Mr. Forde and would certainly not amount to a violation of s. 7 or 12 of the Charter.

m. Over the course of this relatively short stay at CNCC, staff was gathering information from SickKids to educate themselves on Mr. Forde’s medical history, by gathering detailed reports from 2022 and 2023. This suggests diligence.

82This court questions the reliability of Mr. Forde about some of the events that occurred. He was admittedly wrong about the time in the BSU. He seemed to concede that there was a response to the cell calls but that nothing was done for him. Given that it was his first time in jail, this court is concerned that Mr. Forde, through his fear, has exaggerated the events that occurred.

83This court does accept that degrading and humiliating comments were likely made to Mr. Forde by correctional officers while he was having trouble urinating. When Mr. Forde described these events, the pain of having heard these things was palpable and the comments seemed seared into his memory. This is entirely unacceptable and unnecessary. While this court accepts that officers were attempting to get Mr. Forde medical assistance, they took the opportunity to mock and belittle him. This should never occur. Such comments have no place in our society – period.

84Again, this court accepts that Mr. Forde’s stay at CNCC was not pleasant. It is not meant to be. However, this court is satisfied that, overall, staff were attentive to his health, well-being, and security. There is nothing here that rises to the level of a s. 7 or s. 12 violation and there is nothing to justify a stay of proceedings – a remedy of last resort.

85The legal test for whether a stay of proceedings is the appropriate remedy has three requirements (R. v. Babos, 2014 SCC 16, para 32):

(1) There must be prejudice to the accused’s right to a fair trial or to the integrity of the justice system that will be manifested, perpetuated, or aggravated through the conduct of the trial or its outcome;

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after (1) and (2), the court must balance the interests of the accused and the societal interest in having the case heard on its merits.

86This test applies to two categories of state conduct. First is the “main category”, which encompasses conduct that compromises the fairness of the accused’s trial. Second is a “residual category”, which includes conduct that does not affect trial fairness, but risks undermining the judicial process. This request for a stay would fall into the residual category.

87A stay of proceedings is “the most drastic remedy a criminal court can order”: R. v. Babos, 2014 SCC 16, para 30, citing R. v. Regan, 2002 SCC 12 at para 53. The court has held that a stay will only be granted in the “clearest of cases”: R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 SCR 411, para 68. This remedy is not warranted in these circumstances.

88The application pursuant to s. 7, 12, and 24(1) of the Charter is dismissed.

Interactions with Police – Charter, ss. 8, 9, 10, 24(2)

Arbitrary Detention

89There is no denying that Mr. Forde was detained from the outset of this traffic stop. From the moment the emergency lights were activated, he was not simply free to go on his way.

90Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained or imprisoned. A detention and arrest will be “arbitrary” if it is not authorized by law, the authorizing law is arbitrary, or the manner in which the detention is carried out is unreasonable.

91Even random stops of vehicles are justified if undertaken for the purpose of public safety on the highway, such as checking for driver sobriety, licences, ownership, insurance, and mechanical fitness. See R. v. Hufsky, 1988 CanLII 72 (SCC), [1988] 1 S.C.R. 621; R. v. Ladouceur, 1990 CanLII 108 (SCC), [1990] 1 S.C.R. 1257.

92In R. v. Mann, 2004 SCC 52, the majority of the Supreme Court of Canada declined to recognize a general power of detention for investigative purposes. However, the Court accepted that police officers may detain for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual detained is connected to a particular crime and that such a detention is necessary. The Court also recognized that, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, he or she may engage in a protective pat-down search of the detained individual. The Court made it clear that a search is not justified based on a “vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition”, even one gained by experience, in the absence of objective grounds. (paras. 34, 40) The Court stated as follows:

35Police powers and police duties are not necessarily correlative. While the police have a common law duty to investigate crime, they are not empowered to undertake any and all action in the exercise of that duty. Individual liberty interests are fundamental to the Canadian constitutional order. Consequently, any intrusion upon them must not be taken lightly and, as a result, police officers do not have carte blanche to detain. The power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest.

45To summarize, as discussed above, police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. In addition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonable manner. In this connection, I note that the investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police. The investigative detention and protective search power are to be distinguished from an arrest and the incidental power to search on arrest, which do not arise in this case.

See also R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250 at paragraphs 35, 38

93The duration and nature of an investigative detention must be tailored to the investigative purpose of the detention and the circumstances in which the detention occurs See: R. v. McGuffie, 2016 ONCA 365 at paragraph 38.

94In R. v. Chehil, 2013 SCC 49, Karakatsanis J. distinguished between reasonable and probable grounds and reasonable grounds to suspect:

27Thus, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime. As a result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the more demanding reasonable and probable grounds standard.

29Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience: see R. v. Bramley, 2009 SKCA 49, 324 Sask. R. 286 (Sask. C.A.), at para. 60. A police officer’s grounds for reasonable suspicion cannot be assessed in isolation: see Monney, at para. 50.

30A constellation of factors will not be sufficient to ground reasonable suspicion where it amounts merely to a “generalized” suspicion because it “would include such a number of presumably innocent persons as to approach a subjectively administered, random basis” for a search: United States v. Gooding, 695 F.2d 78 (U.S. C.A. 4th Cir. 1982), at p. 83. The American jurisprudence supports the need for a sufficiently particularized constellation of factors. See Reid v. Georgia, 448 U.S. 438 (U.S. Sup. Ct. 1980), and Terry v. Ohio, 392 U.S. 1 (U.S. Ohio S.C. 1968). Indeed, the reasonable suspicion standard is designed to avoid indiscriminate and discriminatory searches.

31While some factors, such as travelling under a false name, or flight from the police, may give rise to reasonable suspicion on their own (Kang-Brown, at para. 87, per Binnie J.), other elements of a constellation will not support reasonable suspicion, except in combination with other factors. Generally, characteristics that apply broadly to innocent people are insufficient, as they are markers only of generalized suspicion. The same is true of factors that may “go both ways”, such as an individual’s making or failing to make eye contact. On their own, such factors cannot support reasonable suspicion; however, this does not preclude reasonable suspicion arising when the same factor is simply one part of a constellation of factors.

32Further, reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors. Much as the seven stars that form the Big Dipper have also been interpreted as a bear, a saucepan, and a plough, factors that give rise to a reasonable suspicion may also support completely innocent explanations. This is acceptable, as the reasonable suspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so.

33Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors. The totality of the circumstances, including favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regarding reasonable suspicion. As Doherty J.A. found in R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743 (Ont. C.A.), at p. 751, “[t]he officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable”. This is self-evident.

34However, the obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations. As was noted in United States v. Sokolow, 490 U.S. 1 (U.S. Hawaii S.C. 1989), at p. 10 (citing Illinois v. Gates, 462 U.S. 213 (U.S. Ill. S.C. 1983), at p. 244, footnote 13), “the relevant inquiry is not whether particular conduct is ‘innocent’ or ’guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts”. In conducting this inquiry to ascertain whether reasonable suspicion was present, the court will assess the circumstances the police were aware of at the time of the execution of the search, including those learned after the decision to deploy the sniffer dog was made if there is a delay in deployment, as there was in this case. However, it would not be permissible for the reasonable suspicion inquiry to assess circumstances learned after the execution of the search: see Kang-Brown, at para. 92.

35Finally, the objective facts must be indicative of the possibility of criminal behaviour. While I agree with the appellant’s submission that police must point to particularized conduct or particularized evidence of criminal activity in order to ground reasonable suspicion, I do not accept that the evidence must itself consist of unlawful behaviour, or must necessarily be evidence of a specific known criminal act.

36A nexus must exist between the criminal conduct that is suspected and the investigative technique employed: see Mann, at para. 34…

95It is a violation of section 9 of the Charter for the police to purport to use one legal authority to detain an individual as a pre-text to conduct another type of investigation. Police interventions occurring solely on the basis of pretext are unlawful. In R. v. Mayor, 2019 ONCA 578, the Court stated:

9However, if the officer does not have a legitimate road safety purpose in mind and is using the Highway Traffic Act authority as a mere ruse or pretext to stop a vehicle in order to investigate a crime, then the detention will be unlawful. As Doherty J.A. held in Brown, the Highway Traffic Act powers will not authorize police stops if the police use these powers as a "ruse" to justify a stop for another purpose: at p. 234. Likewise, in R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 36 (citations omitted), the Supreme Court emphasized that courts should not permit the police to invoke road safety detention powers as "a plausible façade for an unlawful aim." Accordingly, in R. v. Humphrey, 2011 ONSC 3024, 237 C.R.R. (2d) 109, at para. 88, Code J. held that using Highway Traffic Act powers "as a mere 'ruse' or 'pretext' for a broad and unfounded criminal investigation" would violate s. 9 of the Charter.

96The Applicant seemed to initially argue that the stop itself was unjustified, as the law had changed, and a car registered in Ontario no longer required an updated validation sticker. Seemingly, this argument is no longer being made. While a physical sticker is no longer required to be placed on the licence plate and no payment is required, passenger vehicles in Ontario still require up to date registration. There was no suggestion by the officers that they were simply acting on the face of a physical sticker. It was clear that they had searched the licence plate of the vehicle on CPIC which informed them that the registration of the vehicle was not up to date. While the officers unfortunately continued to use the language of an “expired val tag”, it is clear to this court what they meant – expired registration. It is also clear why the licence plate is being run in the first place. There seemed to be no dispute that PC Halkidis was being trained by DC Salmon that evening and was practicing running licence plates on CPIC. As part of their general patrols, they check various parking lots, one being the Barrie Motel. The truck happened to be at the Barrie Motel as they were driving around. They ran the plate. The registration was expired.

97This court agrees with the Crown that the initial stop of this vehicle was perfectly valid – a valid stop under the HTA for expired registration. However, in the view of this court, the HTA purpose for this stop ceased to exist when DC Salmon and PC Halkidis reapproached the driver’s side of the truck, after writing the ticket in the cruiser and speaking to Sgt. Gould. At this point, they are using the CCA to detain, and search, while the real reason was to investigate criminal activity. There are several factors that make this a reality:

a. As DC Salmon is at the passenger side of the vehicle, he notices that the passenger has a satchel on his person. At 21:53:55, the officers meet around the back of the F-150. DC Salmon states to PC Halkidis, “Run him right here the guy has a satchel”.

b. They both return to the police cruiser at 21:55:30. As they are discussing which ticket to give, PC Halkidis says the driver is shaking to which DC Salmon responds, “that’s because the buddies got a satchel.” PC Halkidis questions, “We can’t get in there?” DC Salmon says, “Unless, we can get his name…the passenger”. DC Salmon says they can ask and say that he does not need to provide his name if he does not want to. DC Salmon then asked PC Halkidis if she had asked the driver what he was doing at the Barrie Motel, to which she said that she was going to but did not know how much they were allowed to ask. DC Salmon said that she could ask anything she wanted. As PC Halkidis is writing the ticket, DC Salmon says, “Yeah there’s drugs in that car…maybe even a gun”. At that point, PC Halkidis said, “Oh it smelled like weed, like it reeked”, to which DC Salmon said, “You can pull him out.” PC Halkidis says, “I thought smell wasn’t enough”, to which DC Salmon says, “no, no, no”. PC Halkidis says, “Should we go back?” DC Salmon says, “Where is the weed?” to which PC Halkidis responds, “I could just smell it coming out I could not see anything.” DC Salmon then says, “Let’s go up and chat with him.” In other words, prior to PC Halkidis mentioning anything about smelling cannabis, DC Salmon states his belief that there are guns and drugs in the truck. It was at that point that PC Halkidis says that she smelled marijuana. DC Salmon then jumps on that to say they can pull them out. There is a discussion about whether that is enough and they decide that they can at least ask some questions.

c. They have a conversation with Sgt. Gould who seems to agree with them asking the driver more questions.

d. At the vehicle, DC Salmon takes the lead in the conversation while PC Halkidis stands by. Without even mentioning the traffic ticket and without informing Mr. Forde why his detention is continuing, such as a perceived authority under the CCA, DC Salmon says, “So why does it reek like marijuana in here?” Mr. Forde gestures like he does not know then says, “Like we have…I have a little bit of weed but I didn’t smoke”. When asked where the weed was, Mr. Forde said that it would be in the gym bag and then reaches around to his back side. DC Salmon then says, “So it’s within reach of you.” DC Salmon then asks Mr. Forde why he is so nervous talking to them, and he says he had never been pulled over before. DC Salmon then asks what he was doing at the Barrie Motel. The questions about his nervousness and attendance at the Barrie Motel would seem to have nothing to do with a CCA investigation.

e. As the passenger is interjecting, DC Salmon says there is no need for attitude, as they are just asking questions because there is marijuana in the vehicle, and they are not allowed to have marijuana within reach of the driver. This is the first time any officer mentioned to the driver what authority they are working under.

f. After reaching an agreement with Sgt. Gould that they can pull the occupants out to search, DC Salmon returns to the driver’s side of the vehicle, where PC Halkidis has remained. DC Salmon then says to the driver that he is going to need to get out of the vehicle, as there was marijuana in reach and they have grounds to search the vehicle for the marijuana, because it should be in the bed of the truck. After further discussion between DC Salmon and Mr. Forde, DC Salmon asks to be shown the marijuana before he pulls him out of the vehicle. After taking his seatbelt off, Mr. Forde reached to his right into the back and brought the gym bag forward. DC Salmon can then be heard whispering, “Look at the cash in his wallet.”

g. Just as Mr. Forde reaches around to pull the gym bag forward, DC Salmon noticed a satchel over his right shoulder. DC Salmon asked about the driver’s satchel and Mr. Forde said it had cigars in it. By this point, Mr. Forde has the gym bag on his lap and starts opening compartments and looking inside. No marijuana is produced. DC Salmon then asked, “You don’t have any weed in your satchel?” Mr. Forde said no. DC Salmon then said, “Do you wanna open that satchel up? Do I need to be concerned about what’s in that satchel?” Mr. Forde then does a bit of a search in the satchel and produces no marijuana.

h. After a brief consultation with Sgt. Gould, DC Salmon tells Mr. Forde to get out of the vehicle for the search. DC Salmon asks Mr. Forde if there is anything else on him that he needs to be concerned about to which Mr. Forde appears to shake his head no.

98When the two officers reapproach the vehicle, there is no longer an HTA purpose. Providing a ticket to Mr. Forde would not require two officers. One officer could have approached, handed him the ticket, and sent him on his way. Contrary to the submissions of the Crown, even the officers do not suggest that this was HTA related at this time. According to the officers, it was related to the CCA and the smell that PC Halkidis had noted and reported to DC Salmon. However, it is the view of this court that DC Salmon is interested in much more than cannabis – he has criminal activity on his mind. This is not speculation on the part of this court; rather, this is what DC Salmon said when he and PC Halkidis were talking in the cruiser. As PC Halkidis is writing the ticket, DC Salmon says, “Yeah there’s drugs in that car…maybe even a gun”. At that point, PC Halkidis said, “Oh it smelled like weed, like it reeked”, to which DC Salmon said, “You can pull him out.” It is the view of this court that the police are using the CCA to do what they otherwise had no authority to do. Based on the comments of DC Salmon of what he believed was in this vehicle, and how the subsequent conversation with the driver unfolds, it is the view of this court that he used the CCA as a pre-text to search the occupants and vehicle for weapons and drugs that had nothing to do with any concern of cannabis in the vehicle.

99Having considered the entirety of the circumstances very carefully, this court is of the view that this was all a pretext or contrived reason used by DC Salmon and PC Halkidis to justify the detention. While there is nothing wrong with police having an interest in or keeping an eye out for criminality while properly using the authority of the CCA, there is something very wrong with the police purporting to use the CCA when their interest is really something else. Considering the entirety of the circumstances, this court has concluded that police created a false or contrived reason to justify detention where they had no true legitimate reason.

100Even if this was not a pre-text, this court questions whether this was still a violation of s. 9, as there is no authority for an investigative detention to gain grounds to conduct a search under s. 12(3) of the CCA, where grounds do not exist. In this case, the officers acknowledge that they did not have grounds on smell alone. This court has doubts about the validity of questioning about the presence of marijuana in order to create a basis for a search under the CCA, however, there are cases that suggest this is proper in the right circumstances: See: R. v. Sappleton, 2021 ONSC 430, para 39 and 64; R. v. Grant, 2022 ONSC 2703, para 129. However, it is worth noting that, in these cases, there seems to be an otherwise valid detention for other reasons than the CCA. In Sappleton, the Applicant was under arrest for a breach of recognizance. In Grant, there was no section 9 argument as it would appear that the HTA detention was still underway at the time of questioning.

101As stated earlier, it is clear that Mr. Forde was detained from the moment that the vehicle was stopped for the HTA purpose. When the officers re-approach the driver’s side together, there is no longer any HTA purpose for a continued detention. Mr. Forde could be provided the ticket and be on his way. However, PC Halkidis advised DC Salmon that she smelled marijuana from the outset. When DC Salmon re-approaches the vehicle, now on the driver’s side, he claims that he can also smell fresh marijuana. DC Salmon claims that he wanted to continue the CCA investigation by asking more questions and he ultimately did so. With no further HTA concerns, DC Salmon approaches the car and starts questioning Mr. Forde about the smell of marijuana. Clearly both occupants were detained.

102At the point that DC Salmon returns to the vehicle and starts questioning Mr. Forde about the smell, he no longer has any HTA concerns and there are no stated safety concerns. He is now asking questions of Mr. Forde in order to gain grounds to search the vehicle and the occupants. The smell of marijuana in a car is not sufficient grounds to believe that cannabis was improperly stored in the vehicle. The officer admits that this was not sufficient and that he wanted to ask more questions. The questions directed at Mr. Forde result in information being provided that DC Salmon claims formed the grounds for his search of the occupants and the vehicle. No marijuana was seen in the vehicle. Reasonable grounds were developed based on the smell and the admission of cannabis in the vehicle obtained. While having the smell and the admission may be a sufficient basis upon which to trigger s. 12(3) of the CCA, detaining Mr. Forde while asking questions of Mr. Forde to get to that point was not proper. Notably, while continuing to detain, Mr. Forde was effectively asked to conduct a search of himself. Mr. Forde searched through the gym bag and the satchel, producing no marijuana, but this was not good enough for DC Salmon. This court questions why this was occurring if DC Salmon had already formed the grounds for police to conduct a search after the admission.

103This court accepts that the detention was not arbitrary for long, as the events unfolded fairly quickly to having Mr. Forde exit the car whereupon Mr. Forde’s satchel was searched and marijuana and a firearm were found. At this point, the detention was based on the found firearm – it was then clearly a criminal investigation. However, the earlier detention was nevertheless arbitrary, and it resulted in information being obtained that the police officer had no right to ask for. There is no statutory or common law authority to support a detention to gain grounds to conduct a regulatory search under the CCA. There is nothing in the CCA that provides authority for an investigative detention in order for the officer to gain grounds that he admittedly did not yet have. The only possible authority would be a common law investigative detention power. Clearly, these circumstances would not justify an investigative detention as it does not meet the requirements in Mann – reasonable grounds to suspect that the individual is connected to a particular crime and that such a detention is necessary. Mann made it clear that the brief in duration detention does not impose an obligation on the detained individual to answer questions posed by the police.

104In any event, this court finds a violation of s. 9, as the police used the CCA powers as a mere ruse or pretext for a broad criminal investigation. However, even if not a pretext, once the initial traffic stop for the HTA purpose concluded, and the investigation shifted solely to the CCA without reasonable grounds existing, the Applicant’s detention turned arbitrary.

Section 10(a) and 10(b)

105Section 10(a) of the Charter provides that everyone has the right on arrest or detention to be informed promptly of the reasons therefor.

106Recently, in R. v. McGowan-Morris, 2025 ONCA 349, the Court of Appeal provided some guidance on 10(a) and 10(b) rights in relation to Cannabis Control Act investigations.

107The Crown suggested that this court should not follow the guidance from McGowan Morris but rather should follow the law as it existed at the time in 2023 when these events occurred. This court strongly disagrees with this suggestion. There is no authority for this court to ignore a current binding Court of Appeal case on the very issue it is deciding, and rather attempt to figure out what the most authoritative pronouncement was from the court at the relevant time. This would lead to absurd results. It would not move the law forward with hopes of clarifying concepts, rather it would take the law back to a time of uncertainty. McGowan-Morris clarified an area of the law that had been dealt with inconsistently at the trial level. It would not make sense to pick a few decisions from 2023 and attempt to apply them to this situation.

108Unquestionably, McGowan-Morris must be considered by this court. To ignore it, as suggested by the Crown, would be a fundamental error in principle.

109In McGowan-Morris, the accused Respondent was a passenger in a Jeep that the police pulled over to investigate a potential contravention of the CCA. Another passenger ran from the vehicle but was caught by police. The Respondent was removed from the vehicle and grounded. The police found two handguns and an extended magazine in the Jeep. The Respondent and the other passenger were tried together on various firearm offences, and both applied to exclude evidence based on violations of s. 8, 9, 10(a) and 10(b). The trial judge held that the Respondent’s rights under s. 9, 10(a) and 10(b) were infringed and excluded the evidence under s. 24(2). The Respondent was acquitted. The trial judge did not exclude any evidence as it related to the other passenger, but he was acquitted. The Crown appealed the Respondent’s acquittal on the basis that the trial judge’s findings on the Charter were in error. The appeal was allowed, and new trial ordered. In relation to s. 10(a), the Court stated:

39The informational component demands, "at a minimum", that the police advise the detainee "in clear and simple language the reasons for the detention": R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 21. If the police have multiple reasons for detaining an individual, they must disclose each reason to the detainee: R. v. Borden, 1994 CanLII 63 (SCC), [1994] 3 S.C.R. 145, at pp. 165-166. Moreover, the reason for the detention, whether one or more, must be "legally valid": R. v. Beaver, 2022 SCC 54, 475 D.L.R. (4th) 575, at para. 90. The ultimate question is "whether what the accused was told, viewed reasonably in all of the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline or submit to arrest [or detention], or alternatively, to undermine his right to counsel under s. 10(b)": Evans, at p. 888; Latimer, at para. 30.

40Section 10(a) of the Charter requires that the police only explain what they are investigating, not how they intend to investigate the matter and the steps they might take: R. v. Kumarasamy, 2011 ONSC 1385, at paras. 56- 57; Davin Michael Garg and Anil Kapoor, Detention, Arrest, and the Right to Counsel (Emond Montgomery Publications Limited, 2025), at p. 304. Simply put, the "reason" that the police detain an individual is that they suspect that the individual may have committed a particular offence.

41These basic principles accord with the purpose of s. 10(a) and ensure that the right sits harmoniously beside s. 10(b). It is the role of counsel, not the police, to explain to a detained person the investigative steps that may be taken during a detention, should they choose to exercise their rights under s. 10(b) of the Charter. In the words of Nguyen, at para. 16, a detainee need only be told in plain, non-technical language, "the reason why the restraint is being imposed": see also R. v. Katerberg, 2019 ONCA 177, at para. 7. When the police inform an individual of this basic reason and give them their s. 10(b) right, that individual will have been afforded every opportunity to understand the extent of their jeopardy.

The Court found that the trial judge erred in finding a 10(a) violation where the officer failed to advise of the investigative steps that might be undertaken, rather it was sufficient for the officer to simply advise that they were stopped because they could not have cannabis in the vehicle.

110While arguing that McGowan-Morris does not apply, the Crown also argues that DC Salmon did tell Mr. Forde what he was investigating or at least it would have been obvious to him from the comments.

111This court is satisfied that PC Halkidis and DC Salmon were initially conducting an HTA investigation into the expired registration and that stopping and detaining the vehicle and its occupants was reasonable. PC Halkidis testified that she explained the reason for the stop was due to an expired validation tag, and requested the driver’s licence, registration, and insurance. This valid purpose for the detention was in play until both officer’s returned to the driver’s side of the vehicle. At that point, the ticket could have been given and the vehicle and its occupants would have been on their way. However, that is not what occurred. The HTA purpose ceased to exist. As agreed by the officers, DC Salmon was going to take the lead asking questions about the smell of marijuana. There was no suggestion that these questions were being asked due to concerns of sobriety; rather the suggestion by the officers was that there was a concern about a violation of s. 12 of the CCA – cannabis readily available to the occupants. Further, upon approaching the driver’s window, DC Salmon stated that he smelled an odor of fresh cannabis. By his own admission, at this point, he wanted to further the CCA investigation and ask more questions. The vehicle and its occupants were not free to leave. When DC Salmon formed this intention, he had a duty to advise the occupants of the vehicle of the reasons for their detention – all of the reasons.

112While this court believes that the reasons were not truly cannabis-related but rather guns and other drugs, it is absolutely clear to this court that DC Salmon did not immediately advise the occupants of any reason for their continued detention, such as that they were detained because they were not permitted to have cannabis readily available to any person in the vehicle – or any information of that nature. There was no information given to the driver that things had changed and that this was no longer an HTA investigation, but rather this was now a CCA investigation. Rather than advising the occupants of the reason they were continuing to be detained, DC Salmon walked up to the vehicle and asked, “So why does it reek like marijuana in here?” Mr. Forde gestures like he does not know then says, “Like we have…I have a little bit of weed but I didn’t smoke”. According to DC Salmon, after obtaining this admission, along with the smell, he now has grounds under the CCA, but still, he does not advise Mr. Forde of the reasons for his detention. Without giving any information, he asks where the weed is located, there is a discussion about the location of the gym bag, he asks why Mr. Forde is nervous, and asks what he was doing at the Barrie Motel. After the passenger interjects, it is only then that DC Salmon says that they are asking questions because there is marijuana in the vehicle, and they are not allowed to have marijuana within reach of the driver. Of course, this was after Mr. Forde had incriminated himself. Simply put, immediately launching into questioning about marijuana in the vehicle without offering an explanation about the CCA detention is a 10(a) breach. This is precisely what this court has concluded occurred in this case.

113As the case law establishes, DC Salmon was not required to outline his investigative steps, but was required to advise of why the occupants were continuing to be detained. He did not do so and neither did PC Halkidis. This is a clear 10(a) breach.

114As for s. 10(b), the Supreme Court of Canada has recognized and repeatedly affirmed that the right to counsel imposes at least three duties on the police, namely:

(1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel -- informational component;

(2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances) -- implementational component; and

(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

See: R. v. Taylor, 2014 SCC 50, at paras 20-28; Sinclair, at para. 27; R. v. Willier, 2010 SCC 37, [2010] S.C.J. No. 37 at para. 29; R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at p. 192, R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, at pp. 1241-42; R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, at p. 890; and R. v. Brydges, 1990 CanLII 123 (SCC), [1990] 1 S.C.R. 190, at pp. 203-4

115As for 10(b) rights in the context of the CCA, the court in McGowan-Morris stated as follows:

84In applying Orbanski in this context, it is helpful to consult first principles. The trigger for all the rights under s. 10 of the Charter is an arrest or a detention. As noted above, in Suberu, the Supreme Court of Canada discussed the limits of investigative detentions and the correlative duties of police officers. McLachlin C.J.C. and Charron J. said, at para. 42: "Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention" (emphasis added). I note that several cases have more broadly concluded that "exceptional circumstances" - not just safety concerns - may warrant a suspension of s. 10(b): R. v. Brunelle, 2024 SCC 3, 92 C.R. (7th), at para. 83; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 74; and R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, at p. 1242.4 Those other exceptional circumstances, however, are not relevant to the present appeal.

85Suberu and other caselaw, therefore, make clear that suspensions of s. 10(b) will be lawful in at least two circumstances. First, where there are concerns for officer and public safety: Suberu, at para. 42; R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, at pp. 998-999; R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 33; R. v. Brown, 2024 ONCA 763, at para. 35; and R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, at paras. 57-63. And, second, where a limit on the relevant right is prescribed by law and justified under s. 1: Suberu, at para. 42; Orbanski, at para. 33; and Thomsen, at p. 650.

88I accept the respondent's submissions and I agree with the trial judge that Orbanski should not be extended to CCA searches. While there are some obvious public safety similarities between sobriety screening stops and the objects of s. 12 of the CCA, there are also some significant differences.

90The public safety purpose of s. 12 of the CCA, however, does not bear on the question of whether the statute limits s. 10(b) by necessary implication. When the police initiate a search pursuant to s. 12, the occupants of the vehicle are detained and no longer pose a risk to public safety. Thus, providing the right to counsel immediately upon detention does not hinder the objective of the statute because any risk to public safety is mitigated once the vehicle is stopped. Indeed, while public safety features as a prominent theme throughout Orbanski, Charron J. similarly did not invoke the legislation's public safety objective in assessing whether the statute contained an implied limit on s. 10(b).

91Beyond public safety considerations, the similarity to Orbanski fades. Most importantly, I accept the respondent's submission that, in this context, we are not concerned with a mere screening procedure. The legislation at issue in Orbanski authorized police officers to assess the sobriety of drivers by asking questions or using other means; this procedure was necessarily brief. The brief nature of the investigation led Charron J. to conclude that the legislation must include an implied limit on the right to counsel because, otherwise, each sobriety check would "result in longer and often unnecessary detentions": at para. 45.

92Section 12(3), by contrast, does not create a brief sobriety screening procedure. As the trial judge recognized, s. 12(3) of the CCA is much more intrusive, permitting a search without a warrant, not just of a potentially liable driver, but all others in the vehicle, perhaps even minors, and the vehicle itself. Suspending the right to counsel will not avoid that result.

94By contrast, the CCA imposes no time constraints on police officers. There is no requirement that the detention be brief or that the police conduct their investigation without any delay, key factors in Orbanski. Indeed, depending on the circumstances, including the nature of the vehicle and the number of people involved, the police would be unable to complete a competent investigation under the CCA in a swift manner. As the cases demonstrate, occupants of vehicles will need to be removed from the vehicle to permit an effective search. This takes time. The vehicle itself may be searched, a procedure that may also take time.

95With that said, I accept the appellant's submission that practical considerations may arise if the police are required to comply with s. 10(b) of the Charter at roadside, especially in a multiple occupant situation. The trial judge was alive to these practicalities. Apprising the driver and passengers of the right to counsel in s. 10(b) of the Charter may result in further delay if a person chooses to exercise their rights. But that is a decision to be made by the rights-holder. Whether a detainee chooses to exercise their right is not a contingency that should detract from the scope of the protection afforded by s. 10(b) of the Charter. Moreover, as LeBel J. signalled in Orbanski, at para. 80, implementational difficulties or inconveniences alone cannot permit a court to read in a rights limitation into a statute.

97In any event, I see nothing "odd" in divergent outcomes in Orbanski and the CCA context. As noted above, the power to search places and things without a warrant is a significant point of differentiation, not just in relation to intrusiveness, but also as it relates to the length of time a driver or passenger might be detained. Consequently, I agree with the trial judge that s.1 of the Charter cannot operate to suspend the operation of the right to counsel before conducting a search under s. 12(3) of the CCA.

100However, in other situations, when the police stop a vehicle for other purposes, perhaps for an HTA violation or at a R.I.D.E. Checkpoint, the police may ask questions about consumption and make observations of the driver and passengers and other items in plain view in the normal course. It is only when the police form reasonable grounds that the obligations under s. 10(b) of the Charter kick-in. This maintains consistency with Orbanski and subsequent jurisprudence in the area.

The Court of Appeal agreed that there was a s. 10(b) breach. Ultimately, however, balancing the Grant factors, the Court did not exclude any of the seized evidence.

116The Crown suggests that para 100 of McGowan Morris permitted DC Salmon to ask the questions that he did without providing any information to Mr. Forde. This is a mischaracterization of McGowan-Morris, which says that, in the context of an HTA or RIDE stop, the police can ask about consumption and make observations of items in plain view. At the point DC Salmon is asking questions, this is not an HTA or RIDE stop; this was a CCA investigation according to the officers. Further, DC Salmon did not ask about consumption. He asked, “So why does it reek like marijuana in here?” and directed his comments toward marijuana in the vehicle. Neither PC Halkidis nor DC Salmon ever expressed any concern about sobriety.

117This court asked the Crown when, in their view, should the rights to counsel have been given, to which the Crown stated that it ought to have been given after the admission when the reasonable grounds had formed. However, even though this did not happen, the Crown does not concede that there was any breach of the informational component of section 10(b) rights, as, according to the Crown, the delay was warranted given what unfolded over the next few minutes, including the discovery of a firearm, and an uncooperative passenger. However, none of this was occurring at the time of the admission. The discussion continued with Mr. Forde being questioned about his reach of the bag in the back seat, then Mr. Forde conducting his own search of himself. It is not clear to this court how or why any delay was warranted at that time. Mr. Forde was being cooperative and doing everything that the officers requested. The passenger was sitting idly by. Nothing was occurring that justified any delay.

118The Crown argues that there was no harm done by the delay as Mr. Forde was not compelled to self incriminate. With all due respect, the self incrimination had already happened at the time of the admission of marijuana in the car and everything else flows from that moment.

119It is the view of this court that the breach of s. 10(b) was not a trivial breach. In circumstances of arrest and detention, the person is completely at the mercy of the police. The right to counsel is provided to a detained person to ensure that the detainee is aware of their rights, and to allow the detainee the opportunity to get advice to assist them with the choice of making a statement to the police or in other ways assisting with the investigation. It is not an onerous requirement to expect the police to refrain from eliciting evidence from the detainee until they have had a reasonable opportunity to exercise their right to counsel. This is a well-established rule of law. The conduct cannot be mitigated by good faith, as it involved an unreasonable and complete disregard for basic requirements. See: R. v. Buhay, 2003 SCC 30, [2003] S.C.J. No. 30 at para 59.

120From the time PC Halkidis initially approached the driver’s window for an HTA purpose and claimed to smell marijuana, Mr. Forde was not free to leave. If one accepts the stated purpose of the officers, by the time PC Halkidis and DC Salmon return to the vehicle, Mr. Forde was under investigative detention for the purpose of determining whether officers had grounds to conduct a search under the CCA, a purpose that this court has found to be improper. As this court has found, Mr. Forde was not advised of the reason for his detention until well into the conversation.

121The facts in relation to s. 10(b) rights are not in any dispute. Mr. Forde was never advised of his 10(b) rights at any point during this purported CCA investigation. In fact, it was not until Mr. Forde was under arrest after a firearm and suspected drugs were found. This informational component of rights to counsel was clearly not timely.

122In this court’s view, there was a clear violation of s. 10(a) and 10(b) of the Charter.

Section 8 – Warrantless Search

123The search of the vehicle and the occupants was warrantless and presumptively unreasonable. The Crown must demonstrate the search was authorized by law.

124In R. v. Moulton, 2023 ONCJ 140, the Applicant was charged with numerous firearm offences. His vehicle was searched purportedly pursuant to the CCA following a RIDE stop. The loaded handgun was located in a satchel on the front passenger seat. The Applicant was the loan occupant. Justice Henschel found no violations of the Charter, and in doing so, she provided a summary of the search powers under s. 12(3) of the CCA, including:

a. Reasonable and probable grounds have both an objective and subjective component. (para 210)

b. This does not require proof on a balance of probabilities, but rather credibly-based probability – more than suspicion or a hunch. (para 211)

c. Evidence must be considered cumulatively and contextually. (para 212)

d. Reasonable grounds to believe does not require the officer to be in a position to dispel or rule out all innocent or innocuous inferences that may be drawn from the same observations. There may be competing explanations. (para 212)

125As for the common law power to search in exigent circumstances, in R v. Paterson, 2017 SCC 15, the court stated:

32All that said, circumstances in which “exigent circumstances” have been recognized have borne close resemblance to the definitional categories in s. 529.3(2). This Court’s jurisprudence considering s. 10 of the Narcotic Control Act, R.S.C. 1985, c. N-1 (which was repealed and replaced by the CDSA), which permitted a peace officer to search a place that was not a dwelling-house without a warrant so long as he or she believed on reasonable grounds that a narcotic offence had been committed, is instructive. That provision was held in R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223 (“Grant 1993”), to be consistent with s. 8 of the Charter if it were read down to permit warrantless searches only where there were exigent circumstances. Such exigent circumstances were then described to exist where there is an “imminent danger of the loss, removal, destruction or disappearance of the evidence if the search or seizure is delayed” (Grant 1993, at p. 243; R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13, at para. 153, per L’Heureux-Dubé J., dissenting; and R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, at para. 51, per La Forest J., dissenting). Similarly, circumstances in which “immediate action is required for the safety of the police” were also found to qualify as “exigent” (Feeney, at para. 52; see also, in respect of searches to preserve officer safety, this Court’s statement in R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at para. 32, that such searches will be responsive to “dangerous situations created by individuals, to which the police must react ‘on the sudden’”). In Feeney, at para. 47, exigency was also said to possibly arise when police officers are in “hot pursuit” of a suspect (see also R. v. Macooh, 1993 CanLII 107 (SCC), [1993] 2 S.C.R. 802, at pp. 820-21).

33The common theme emerging from these descriptions of “exigent circumstances” in s. 11(7) denotes not merely convenience, propitiousness or economy, but rather urgency, arising from circumstances calling for immediate police action to preserve evidence, officer safety or public safety. This threshold is affirmed by the French version of s. 11(7), which reads “l’urgence de la situation”.

126To search pursuant to section 12 of the CCA, DC Salmon needed reasonable grounds to believe that cannabis was readily available to an occupant of the vehicle. An odor of marijuana is not sufficient, and DC Salmon accepted this. Other than the illegally obtained admission from Mr. Forde, nothing else existed. No cannabis was seen. Given that this admission should not have been elicited, the search of the vehicle and its occupants then becomes unreasonable.

127The Crown suggested that this was a search incident to arrest. Ultimately that was true. However, at the time Mr. Forde was participating in his own search of a gym bag and his satchel at the direction of the police, and at the time he was asked to step out of the vehicle and his satchel was searched, this was still a search, according to the officers, pursuant to the CCA. There was no arrest, yet. There were no exigent circumstances expressed, such as the immediate need to preserve evidence, or stated officer or public safety concerns, that justified any search at that time. Purportedly, it was still a search pursuant to s. 12 of the CCA.

128In the view of this court, DC Salmon obtained his grounds for the search improperly – eliciting the admission in the context of a s. 9, 10(a) and 10(b) breach. Without that admission, even according to the officers, there were no reasonable grounds to search. Therefore, there has been a s. 8 Charter violation.

24(2) analysis

129Breaches of s. 8, 9, 10(a) and 10(b) have occurred in this case.

130The breach of a Charter right will only warrant a remedy under section 24(2) where the evidence was obtained “in a manner” that violated the Charter right. In R. v. Spackman, 2012 ONCA 905, the court stated:

100Where evidence proposed for admission at trial has been obtained in a manner that infringed or denied an accused’s constitutional rights or freedoms, the appropriate exclusionary mechanism is s. 24(2) of the Charter. To invoke s. 24(2) an accused must establish the three requirements of the subsection which can be briefly described as:

• infringement;

• nexus; and

• effects.

The requirements are cumulative. The standard of proof required is proof on a balance of probabilities: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at pp. 276-277; see also R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613; and R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980.

131The courts have recognized that a strict causal connection between the breach and the evidence is not required. In R. v. Pileggi, 2021 ONCA 4, the court stated:

101Courts have taken a generous view of the "obtained in a manner" threshold. In R. v. Pino (2016), 130 O.R. (3d) 561, [2016] O.J. No. 2656, 2016 ONCA 389, 337 C.C.C. (3d) 402, at para. 56, Laskin J.A. described this requirement as "just the gateway to the focus of s. 24(2) -- whether the admission of the evidence would bring the administration of justice into disrepute". He further held that courts should examine the "'entire chain of events' between the accused and the police" and that the "requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct": Pino, at para. 72. Finally, Laskin J.A. said that any connection between the breach and the discovered evidence may be "causal, temporal, or contextual, or any combination of these three connections", as long as the connection is not "too tenuous or too remote": Pino, at para. 72. See also R. v. Wittwer, [2008] 2 S.C.R. 235, [2008] S.C.J. No. 33, 2008 SCC 33, at para. 21; R. v. Rover (2018), 143 O.R. (3d) 135, [2018] O.J. No. 4646, 2018 ONCA 745, at para. 35; and Hobeika, at para. 77.

132Evidence will be seen as tainted if the breach and the discovery of the impugned evidence are part of the same transaction: See R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3 at para. 38. Subsequent Charter-compliant conduct may sever any contextual connection between a breach and the evidence: R. v. Beaver, 2022 SCC 54, paras. 108-111. Consideration of what evidence to exclude begins with that which is most proximate to the breach and then moves to that which is more remote. R. v. Burlingham, 1995 CanLII 88 (SCC), [1995] 2 S.C.R. 206

133Having said that, there is also an allowance for residual exclusion of evidence under s. 24(1) for trial fairness protected under s. 7 and 11(d): Spackman, para 101.

134In the context of this case, this court is satisfied that all evidence obtained, including that on the person and in the backpack associated with Cole Stewart was obtained in the course of the rights of Mr. Forde being breached. This is certainly all one short continuous event, from the time the vehicle was stopped until the completion of the search of the vehicle and the transporting of both Mr. Forde and Mr. Stewart to the station. There is simply no other way to look at it. The s. 9 violation flows into a section 10(a) and 10(b) violation, which flows into a s. 8 violation. Clearly, all of the evidence from that vehicle and its occupants was obtained in a manner that infringed or denied Mr. Forde’s constitutional rights and freedoms. Infringement, nexus, and effects are demonstrated.

135Applying the Grant analysis (R. v. Grant, 2009 SCC 32) leads to the conclusion that evidence obtained must be excluded. This is so for the following reasons:

a. The Charter infringing conduct was serious. There is more than one Charter violation. The Charter violations begin early in this interaction and continue throughout the event. The powers given to the police under the CCA are broad. Such significant powers must be respected and used with great care. This court has found that the police used the CCA as a pretext to search the vehicle and its occupants for guns and other drugs. It is difficult to imagine a pretext search which is not a serious violation. Even if this was not a pretext search, DC Salmon’s understanding of his powers and obligations is somewhat troubling. There is no question that the s. 9 violation, with no information provided as required by s. 10(a) and 10(b), led to obtaining grounds for the search that otherwise did not exist. The search of the vehicle and occupants then resulted. This court accepts that further clarification was provided by McGowan-Morris of which DC Salmon could not have been aware. However, Mann is not new in describing what is a proper investigative detention. Further, the concept of 10(a) and 10(b) rights kicking in at the point of an investigative detention is also not new. The fact that 10(b) rights were ultimately given does not minimize the seriousness of the breaches. This factor strongly favours exclusion.

b. The impact of the breaches on the Charter protected interests of the Applicant is significant. The detention from the time PC Halkidis and DC Salmon return to the car forward is arbitrary. Inculpatory evidence was obtained from Mr. Forde as a result of the police failure to comply with their obligations. Without the information being provided by Mr. Forde, DC Salmon admitted that he would not have had reasonable grounds to search the occupants or the vehicle based on odor alone. Further, 10(a) only required that the police explain what they were investigating, not how they intended to investigate the matter and the steps they might take. This is not much to ask of police officers. However, DC Salmon launches into questioning Mr. Forde without telling him anything. No rights – no caution. He just launched into an interrogation about what marijuana was in the car. As for 10(b), Mr. Forde was never told that these rights existed until after he was under arrest in the back of the cruiser. Clearly, he had a cell phone and had an open line with his father. Presumably, he could have called a lawyer if given the information and opportunity to do so. This would not have impeded the police in any way. The Crown suggested that there is no reason to believe that things would have been any different if rights had been given and that this evidence was all discoverable. Certainly, the items existed in the vehicle, but this cannot justify the police breaching every Charter right along the way to get to it. There is no obligation on Mr. Forde to demonstrate that he would have done things differently if given this information. These are not technical breaches. This factor strongly favours exclusion.

c. Most certainly society has an interest in having this case adjudicated on its merits. Exclusion of the evidence obtained will result in the case being brought to an end. The evidence obtained is real and reliable. These factors favour inclusion. However, society also has an interest in Charter rights being respected. The courts have held that where the first two factors favour exclusion, the third factor will generally not dictate the result. See: R v Dunkley, 2016 ONCA 597 at para 63; R v McGuffie, 2016 ONCA 365 at para 63.

136In all of the circumstances, this court has concluded that the admission of the evidence will bring the administration of justice into disrepute. All evidence obtained during the vehicle stop, including utterances made, the evidence found on Mr. Forde, the evidence found in the vehicle, and the evidence associated with Cole Stewart will be excluded. Even if exclusion of all evidence, including that associated with Cole Stewart, were not justified under s. 24(2), it would certainly be justified under s. 24(1), as admission of the evidence under these circumstances would render the trial unfair contrary to s. 11(d) of the Charter.

Knowledge / Possession / Control

137In the event that this court found any breaches of rights in relation to Mr. Forde, the Crown argued there would be no basis upon which to exclude the firearm and magazines found in the satchel worn by Mr. Stewart or drugs found in the backpack that he claimed was his when he was trying to leave with it. While this court does not agree with the rationale for excluding some of the evidence rather than all of the evidence obtained from the vehicle and its occupants, as set out above, even if those items remained, there would be no basis upon which to convict Mr. Forde of the counts relating to the drugs found in the backpack or the count in relation to being an occupant in a vehicle with a firearm.

138In the oft cited case of R. v. Anderson- Wilson, 2010 ONSC 489, a sawed-off shotgun was said to be visibly protruding into the front passenger footwell, making it visible to the driver, and most proximate to another, but not visible to the accused. Justice Hill suggested some factors for courts to consider in deciding the question of possession. He stated as follows at para. 74:

74Possession cases are fact-driven inquiries. Where proof is dependent upon circumstantial evidence, some facts will have more probative value than others. It is the cumulative effect of relevant circumstances which must be assessed in determining whether proof beyond a reasonable doubt exists. In weapons prosecutions, the following circumstances have been considered relevant:

(1) the physical proximity of the firearm to the accused;

(2) the degree of visibility of the firearm;

(3) the degree of communal use of a vehicle containing the firearm;

(4) the size, nature and number of weapons in a particular space; and

(5) the nature of other items located proximate to the firearm capable of providing context for inferences of knowledge and control. [Citations omitted.]

75Not everyone who drives or rides in a car containing concealed illegal objects necessarily knows the presence or nature of those objects: R. v. Amado, 1996 CanLII 2961 (BC SC), [1996] B.C.J. No. 1943 (S.C.) at para. 33. In unlawful possession cases, where the prohibited item is concealed or not readily visible in a vehicle driven by the accused, the courts have generally required more than simply evidence of the proximity of the accused and the item: R. v. Green; R. v. Rawlins, supra at 281; R. v. Bauer, 2003 BCCA 138, [2003] B.C.J. No. 505 (C.A.) at para. 18; R. v. Anderson, supra at para. 26; R. v. Iturriaga, 1993 CanLII 2517 (BC CA), [1993] B.C.J. No. 2901 (C.A.) at para. 9.

76A vehicle driver who knows a legally prohibited item is in a vehicle is not in the same position as a passenger who may merely acquiesce to another's, i.e. the driver's possession: R. v. T.(S.) (2001), 2001 CanLII 24185 (ON CA), 140 O.A.C. 122 (C.A.) at 123-4; R. v. Williams (1998), 1998 CanLII 2557 (ON CA), 125 C.C.C. (3d) 552 (Ont.C.A.) at 555, 557-8. A driver, operating the vehicle with the owner's consent, determines what is permitted to enter and stay in the vehicle and can "control access to the vehicle and exclude others from the vehicle": R. v. Belnavis and Lawrence (1996), 1996 CanLII 4007 (ON CA), 107 C.C.C. (3d) 195 (Ont. C.A.) at 209 (affirmed (1997), 118 C.C.C. (3d) 405 at 419 (S.C.C.)).

77In some firearms prosecutions, the established circumstances may give rise only "to a high degree of suspicion" (R. v. Freeman, supra at para. 7; R. v. Schero, supra at para. 3) while falling short of satisfaction that the only reasonable inference to be drawn from the proven facts is guilt: R. v. Green; R. v. Rawlins, supra, at 281. For example, in R. v. Rush, [2001] O.J. No. 1645 (C.A.) at para. 1, Osborne A.C.J.O. stated:

In our view there were competing inferences available to the trial judge on the issue whether the appellant was in possession of the firearms and ammunition located in the car in which he was found as a passenger. Accordingly it was not open to the trial judge to find that the only reasonable inference to be drawn from the facts or [to] be found then was that the appellant was [a] possessor of the firearms and ammunition in question. (See R. v. Cooper).

See also, R. v. Schero, supra, at para. 3.

78The mens rea of the s. 95(1) crime is satisfied "where the offender knew that he or she was in possession of a loaded firearm": R. v. Williams (2009), 2009 ONCA 342, 244 C.C.C. (3d) 138 (Ont. C.A.) at para. 12, 18, 23; R. v. Budden, 2005 ABQB 757, [2005] A.J. No. 1359 (Q.B.) at para. 76-85; R. v. Moffatt, 2005 ONCJ 126, [2005] O.J. No. 1576 (Ct. Jus.) at para. 12.

139In R. v. Johnson, 2013 ONSC 5231, Justice Clark relied on the analysis from Anderson-Wilson and also stated at para. 45, “I further appreciate that in circumstances where a firearm is ‘not readily visible’ knowledge cannot be inferred without a sufficient body of direct or circumstantial evidence to satisfy the court that the only reasonable inference to be drawn is that the accused knew of the presence of the weapon: R. v. Green, [1993] O.J. No. 1346 (Ont. C.A.); R. v. Bullock, [2000] O.J. No. 798 (Ont. S.C.J.), at para. 9.”

140Circumstantial evidence must be viewed as a whole and not each piece individually. See R. v. Anderson-Wilson, para. 72

141As for control, in R. v. Savory, 1996 CanLII 2001 (ON CA), [1996] O.J. No 3811 (C.A.), the Court explained as follows:

7Control for the purpose of constructive possession does not require that the accused did in fact exercise control over the object in question. In R. v. Terrence (1980), 1980 CanLII 74 (ON CA), 55 C.C.C. (2d) 183 (Ont. C.A.), aff'd (1983), 1983 CanLII 51 (SCC), 4 C.C.C. (3d) 193 (S.C.C.), the Supreme Court accepted that control means power or authority over the object in question. Similarly, in R. v. Chambers (1985), 1985 CanLII 169 (ON CA), 20 C.C.C. (3d) 440 (Ont. C.A.), the court held that the right to grant or withhold consent to drugs being stored in a bedroom was sufficient to constitute control. Again, control is established if there is the right to grant or withhold consent. It is not necessary that the consent in fact be granted or withheld.

See also R. v. Chalk, 2007 ONCA 815, para 19, where the Court held that control can be established by showing the power to control, even if not exercised. See R. v. Fisher, 2005 BCCA 444, para 41.

142In R. v. Jones, 2006 NSCA 50, the Appellant driver and a passenger were stopped by police after they were seen driving while they were both wearing balaclavas on a mild evening. Crack cocaine, in the form and size common for trafficking to consumers, was found in plain view on the front floor of the car. A cell phone and cash were found on the Appellant’s person. The Appellant was found guilty of possession of crack cocaine for the purpose of trafficking, and the appeal was dismissed. The Court stated as follows:

10With respect to joint possession, where a number of individuals are occupying a car containing drugs, the issue of knowledge and consent is often determined by the nature of the relationship and mutual activities of the occupants in relation to the car and its contents: R. v. McRae, 1967 CanLII 440 (SK CA), [1967] 3 C.C.C. 122 (Sask. C.A.), leave to appeal ref'd [1967] S.C.R. viii; R. v. Pham (1999), 1999 BCCA 571, 139 C.C.C. (3d) 539 (B.C.C.A.), leave to appeal ref'd [1999] S.C.C.A. No. 545; R. v. Drury, 2000 MBCA 100, [2001] 1 W.W.R. 442 (Man. C.A.), leave to appeal ref'd [2000] S.C.C.A. No. 619 and R. v. Nguyen (2003), 2003 BCCA 556, 180 C.C.C. (3d) 347 (B.C.C.A.).

11Evidence indicating a joint enterprise with respect to the drugs permits a finding of consent on the part of those who do not have physical possession of the drugs; R. v. Chambers (1985), 1985 CanLII 169 (ON CA), 20 C.C.C. (3d) 440 (Ont. C.A.).

143As for the drugs in the backpack, the Crown argues that there is joint possession. Mr. Forde is the driver with the owner’s consent – his father. The driver determines what can enter and stay in the vehicle. He had the ability to exclude others from the vehicle. Alternatively, the Crown argues that this is constructive possession.

144As for being an occupant of a motor vehicle knowing there is a firearm, in R. v. Swaby, 2001 CanLII 2829 (ON CA), [2001] O.J. No. 2390 (C.A.), the police followed a car driven by the accused in which there was also a passenger. The car stopped, the passenger ran into a nearby backyard, and the accused ran off. The police found a loaded, unregistered, restricted weapon in the backyard. The accused was charged with various offences including being an occupant of a motor vehicle in which he knew there was a firearm. The passenger pleaded guilty to possession of the firearm and was the main Crown witness. The accused testified that he had no knowledge of the gun. The accused was convicted on the occupancy count and appealed successfully. The court explained that a conviction requires voluntary conduct on the part of the accused. The Court stated:

19If one acquires knowledge of an illegal weapon while travelling in a moving vehicle, it surely cannot be the law that criminal liability instantly attaches. There must be some period of time, however short, afforded to the person who has acquired that knowledge to deal with the situation. If a passenger tells the driver that the passenger has a gun, it cannot be the case that the driver is immediately guilty. Should the driver immediately stop the vehicle and tell the passenger to leave, the driver would have known of the gun while he was an occupant of the vehicle, but he would have done all the law could expect. The driver's occupancy of the vehicle would have coincided with his knowledge of the gun, but it could not be said that the coincidence of knowledge and occupancy amounted to voluntary conduct on the part of the driver. It is the conduct of the driver following the coincidence of occupancy and knowledge that counts, and if the driver acts with appropriate dispatch to get either the gun or himself out of the vehicle, there is no voluntary act for the criminal law to punish.

20Accordingly, it is my view that if the appellant acquired knowledge of the weapon while the vehicle was in motion, he would have to be given a reasonable opportunity to either remove himself or to see that the weapon was removed from the vehicle. If the appellant only acquired knowledge of the weapon at the point when Johnson was leaving the vehicle, he would be entitled to an acquittal.

145The Crown points out that this offence does not require proof of control of the firearm. The Crown points to the proximity of the two men in the front of this vehicle, and that these are two men out together, although acknowledges that it is not clear how long they were together that day or how long they had known each other.

146The Crown argues that, even if the court were to exclude the firearm and drugs associated to Mr. Forde, the court could still consider that evidence as part of the circumstantial narrative that Mr. Forde was aware of Mr. Stewart’s items and that this was a joint enterprise. The Crown argued that this cannot simply be coincidence that they both happen to have a satchel with a firearm, happen to have drugs in their bags, and both happen to have cash. The Crown put forward no authority for this court to continue to consider the excluded evidence in this context.

147Simply put, it is not correct to say that evidence which is excluded pursuant to determined Charter violations can still be used for other purposes in the trial. In R. v. Ricciardi, 2018 ONSC 445, Di Luca J. discussed this in the context of excluded evidence at trial sought to be used in a subsequent dangerous offender hearing. Even in that context, the evidence remained excluded. At paragraph 6, Di Luca J. stated, “[O]nce evidence is excluded at trial it is generally excluded for all purposes, including sentencing”, subject to a retained jurisdiction to re-visit a ruling based on a material change in circumstances.

148In summary, there is simply no evidence that Mr. Forde was aware of the drugs in the backpack and/or the firearm in Mr. Stewart’s satchel. There is no evidence that these items were ever visible to Mr. Forde. There is no evidence that Mr. Forde ever accessed either the backpack or Mr. Stewart’s satchel. Further, there is no evidence of the relationship between Mr. Forde and Mr. Stewart or how long they had been together that day or if they had ever spent time together before. This court cannot assume that Mr. Forde was necessarily aware of everything that Mr. Stewart had with him simply because he seemed to agree to having him in his vehicle. There is simply no evidence to demonstrate possession. Therefore, even if the firearm and drugs associated to Mr. Stewart were to remain as part of the evidence in this case, this would not result in a conviction of Mr. Forde.

Conclusion

149For all of the foregoing reasons, with exclusion of the evidence, and with no evidence of possession as it relates to the items associated to Mr. Stewart even if the items remained, Dylan Forde is found not guilty of all of the charges before the court.

NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions, it is the official written Ruling that is to be relied upon.