His Majesty the King v. Mal Chol, 2026 ONSC 3980

CITATION: R. v. Chol, 2026 ONSC 3980

Court File No.: CR-25-3 Date: 2026-07-07 Ontario Superior Court of Justice

Between:

His Majesty the King

– and –

Mal Chol Defendant

Counsel: Ken McNair, for the Crown Jenny Prosser, for Mr. Chol

Heard: March 10, 11, 2026

Before: Moore J.

Decision on Charter Application

OVERVIEW

1In the early hours of November 10, 2023, Mal Chol was operating a rental car travelling eastbound on Dundas Street with one passenger. PC Michael Cerovich of the Ontario Provincial Police stopped him at 3:48 a.m. Mr. Chol identified himself verbally using a false name.

2PC Cerovich testified that he smelled fresh marijuana and observed a small amount of what he believed was marijuana shake in the front passenger door handle area and on the front passenger floor mat. He determined that he had grounds to conduct a search pursuant to s. 12(3) of the Cannabis Control Act, 2017, S.O. 2017, c. 26, Sch. 1. He commenced the search once other officers arrived on the scene.

3Police removed Mr. Chol from the vehicle and conducted a pat-down search of his person, which revealed a baggie of cannabis in bud form in one of his pockets. A search of the vehicle’s center console yielded a wallet with identification containing Mr. Chol’s likeness and true name. Police checks indicated that Mr. Chol was a suspended driver and the vehicle was to be impounded. Police arrested him for driving while prohibited at 4:09 a.m.

4PC Crosby was tasked with giving Mr. Chol his rights and caution. Since the vehicle was being impounded, PC Cerovich conducted an inventory search of its trunk prior to it being towed to the impound yard. In the trunk, under a jacket, he found a clear tube of what he believed was fentanyl. Police then arrested Mr. Chol for possession for the purpose of trafficking and provided him with his rights and caution for that offence. Mr. Chol was not given the opportunity to contact counsel until he was transported back to London-Middlesex OPP headquarters.

5Mr. Chol is now charged with possession of fentanyl for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19; wilful obstruction of a peace officer, contrary to s. 129(a) of the Criminal Code, R.S.C. 1985, c. C-46; and operating a conveyance while prohibited from doing so, contrary to s. 320.18(1)(a) of the Criminal Code. He is also charged with a proceeds of crime offence, but the Crown advised that it will not proceed on that count.

6The trial is set to commence on April 27, 2026. I am the case management judge. I am not the trial judge. Given the tight timelines, I released the final results with reasons to follow. These are those reasons.

7The defence now brings an application alleging breaches of Mr. Chol’s rights under ss. 7, 8, 9 and 10(b) of the Canadian Charter of Rights and Freedoms.

8The defence submits that:

a. Police improperly conducted the initial traffic stop;

b. Police lacked grounds for the CCA search;

c. Police improperly conducted the inventory search of the vehicle’s trunk; and

d. Police improperly delayed providing Mr. Chol with both the informational and implementational components of his right to counsel.

9For the reasons that follow, I do not find any breach of Mr. Chol’s rights under ss. 7, 8 or 9 of the Charter. I do find that police breached Mr. Chol’s s. 10(b) rights, but I do not find that exclusion of the evidence under s. 24(2) is warranted.

EVIDENCE ON MOTION

PC Michael Cerovich

10PC Cerovich has been with the OPP since 2018. He is stationed at the London-Middlesex detachment. Prior to that, he worked at the Port Credit detachment and the Mississauga detachment, where he was responsible for traffic enforcement in the Greater Toronto Area.

11On November 10, 2023, PC Cerovich was working in uniform, on regular patrol, driving along Dundas Street East, near Shaw Road in Middlesex County. He saw a vehicle approach him at what he perceived to be a high rate of speed. He did not see the occupant(s) of the vehicle, only the headlights. His plate reader recorded the plate and identified it as a rental vehicle. He turned around to follow the vehicle. When he caught up to it, it had slowed behind another vehicle. He decided to stop the vehicle to check the status of the driver’s licence. In his experience, suspended or unlicensed drivers often use rental vehicles to disguise their licence status.

12He used his lights and eventually his siren to pull over the vehicle on the side of Dundas Street at 3:48 a.m. He approached the passenger side of the vehicle for officer safety. He observed a driver and one male passenger in the front seat. He detected the odour of fresh cannabis emanating from the cabin of the vehicle through the lowered passenger window. He informed the driver of the reason for the stop.

13In the passenger side door handle, he observed a green leafy substance, a stem, and a disposable blue lighter with his flashlight. He also observed small green flakes on the passenger floor mat.

14The driver verbally identified himself as Simon Chol with a date of birth of July 28, 2002. However, the driver appeared to begin to say January before eventually saying July. He stated that he had left his wallet at home. Computer checks did not reveal anyone with that name and date of birth who held a driver’s licence. He concluded that the person the driver named had no prior interaction with police or did not hold a driver’s licence.

15Based on his observations, PC Cerovich determined that he had grounds to conduct a CCA search. He radioed for other officers to attend for officer safety, as he was dealing with two persons in a rural setting.

16Once PC Crosby and PC Inouye arrived in separate vehicles, he advised the driver to step out of the vehicle and that they would be conducting a CCA search. The driver refused multiple times, stating that this was an illegal stop. He eventually exited when police unfastened his seat belt and took hold of his right wrist to guide him out of the vehicle. He did not resist removal and cooperated with the search of his person.

17PC Cerovich located a baggie of cannabis during the search of Mr. Chol’s person. He found it in one of the pockets of his clothing, but did not recall which one. PC Cerovich turned Mr. Chol over to PC Crosby to confirm his identity. He was not arrested at that time. The passenger was also removed from the vehicle and searched.

18PC Cerovich then commenced a search of the car. In the center console, he located a wallet with an Ontario photo card showing a likeness of the male driver in the name of Mal Chol with a date of birth of January 4, 1998.

19Computer database checks showed that Mal Chol was a suspended driver and had a criminal record. The checks also revealed that the car was eligible for impoundment for 45 days. PC Cerovich received this information from dispatch while in the rental vehicle. He then attended the rear of the vehicle where Mr. Chol waited with PC Crosby. He arrested Mr. Chol at 4:09 a.m. for driving while suspended. He handcuffed him and took him to PC Crosby’s cruiser. He placed him in the rear and advised him that he was being audio and video recorded. PC Cerovich tasked PC Crosby with giving Mr. Chol his rights and caution before returning to the vehicle to complete the CCA search.

20PC Cerovich testified that he believed the information about the impoundment arrived at the same time as the information about the suspension. He stated that he advised PC Crosby that the vehicle would be towed and impounded for 45 days. Accordingly, he knew that they would need to complete a notice of impoundment.

21During the CCA search, the officer located two cannabis dispensary bags in the pocket of the rear passenger seat. Photographs of the vehicle also depict shake and stems, along with a wrapper, in the rear passenger door handle area. Police took various photographs after completing the search and arresting Mr. Chol.

22Since police decided to tow and impound the vehicle, PC Cerovich conducted an inventory search of the trunk. He testified that such a search was necessary to ensure no property was left in the vehicle. He opened the trunk and allowed the passenger to remove a backpack. He testified that he may have felt the outside of the backpack to ensure there was no weapon but did not search inside it as part of the inventory search. He moved a jacket with a dry-cleaning tag in the trunk. Beneath the jacket, he observed a clear plastic tube of what appeared to him to be pink hard rock. He believed the substance was fentanyl bagged in smaller bags. He could not say how many bags.

23PC Cerovich attended the rear of PC Crosby’s cruiser. Either he or PC Crosby advised Mr. Chol that he was under arrest for trafficking in a controlled substance. He directed PC Crosby to re-arrest him and to provide Mr. Chol his rights and caution for this offence.

24PC Cerovich seized four cell phones after discovering the fentanyl: two from Mr. Chol and two from the passenger.

25In cross-examination, PC Cerovich confirmed that he smelled the odour of cannabis when dealing with the occupants before observing the shake in the door. He testified that he has experience with the smells of burnt cannabis and fresh cannabis. He believed what he smelled was fresh cannabis. He testified that the smell persisted throughout his dealings with the occupants inside the car. He was unable to say exactly where the smell originated, other than from the cabin of the vehicle. He never identified the source of the smell. He could not recall whether he noted any odour on the occupants after they were removed from the car. He testified that if the smell originated from the cannabis on Mr. Chol, the odour could remain even after he was removed, as cannabis is pungent. He testified that cannabis shake can have a strong smell. When asked whether there continued to be a strong smell, he testified that he could not say it was strong, but it was noticeable.

26He testified that based on the smell and the substance in the door and on the floor, he believed that cannabis was accessible to the driver or contained in an open package.

27He testified that he was unsure whether the baggie of cannabis located on Mr. Chol was fully closed and that he believed it contained cannabis in bud form. He testified that he did not have authority under the CCA to arrest, but only to require the occupants to step out, search their person and search the vehicle. If he located cannabis, it would be seized for destruction, and the driver would be issued a Part I or Part III ticket.

28In relation to the two bags of cannabis in the passenger seat pocket, he testified that he had noted they were unsealed but could not recall whether the seal was broken or the tops were ripped off. He testified that he looked inside but could not recall the form of the cannabis inside. He was shown photographs of the bags, and defence counsel suggested that the stickers may have been broken but that the bags remained unopened. The officer testified that his note stated “unsealed” and that no sticker was apparent on the bags. He agreed that the photographs did not clearly show whether the bags were open but testified that he could see this more clearly at the scene and should have made a better note. He testified that some dispensary bags require tearing the top to access the zipper, while others do not.

29He testified that he conducted an inventory search to locate valuables and to ensure the safety of anyone who might later enter the vehicle. He agreed that the purpose is to prevent claims that valuable items have gone missing.

30He agreed that he arrested the accused and the passenger for possession for the purpose of trafficking based on his belief that the substance was fentanyl, as it appeared to be pink or purple rocks contained in more than one bag inside the tube. He then finished searching the vehicle. He did not recall whether he conducted an additional search afterward. He then waited for the tow truck.

31He agreed that it was his practice to stop as many rental vehicles as possible to check licence status. He confirmed his understanding that a person renting a car must possess a driver’s licence and agreed that this was not part of formal police training but maintained that, in his experience, unlicensed or suspended drivers frequently operate rental vehicles. He agreed that Mr. Chol would not appear on MTO records if he were from out of province. He testified that it was his standard practice to arrest and handcuff suspended drivers, as he did in this case.

32The officer agreed that the substance he observed on the floor mat and in the door handle consisted of small leaves and particles. He did not seize the substances and agreed they would have been difficult to collect. He disagreed with the suggestion that there was insufficient cannabis to consume and stated he could not say whether the material could have been gathered and rolled into a joint. He was shown photographs and asked to circle the particles on the floor mat. He agreed there were approximately eight to nine specks. He agreed that one item in the door handle appeared to be a twig, which can be smoked but is undesirable. He testified that some pieces could be picked up between two fingers. He maintained that, cumulatively, the approximately eighteen pieces could have been rolled into a joint and smoked.

33The officer testified that he switched from the CCA search to an inventory search only after completing the CCA search, as the vehicle was being impounded. He did not recall anyone assisting with the CCA search, as PC Inouye was dealing with the passenger and PC Crosby was with the driver. He agreed that the vehicle was to be taken to an impound yard not controlled by police and that the owner could retrieve it after the impound period. He testified that the inventory search was not necessarily to catalogue all property, but to ensure that no valuables or dangerous items remained in the vehicle. He stated that this understanding was based on his experience.

34He was asked whether this was police policy and responded that he did not believe it was formal police policy, but rather his practice when a vehicle was being impounded. He did not create a list of the property in the vehicle but believed he seized all property, including hats and loose change.

35The officer was cross-examined on his Report to Justice filed in this matter, dated two weeks after the stop. In the RTJ, he checked the box for “search incident to arrest.” In his narrative, he also indicated that Mr. Chol was placed under arrest for driving while suspended and that a search of the vehicle was conducted. The officer testified that this was an error: although items were seized incident to arrest, they were not located as a result of a search incident to arrest. He explained that he would have had no grounds to conduct such a search for a driving suspension, other than for identification, which he had already obtained during the CCA search. He disagreed that his initial plan was to conduct a search incident to arrest.

36The officer did not determine who rented the car at the roadside. Mr. Chol did not have a licence, so he believed it was not him, and the passenger stated that he had not rented the car. The officer did not know how long Mr. Chol had the vehicle. He did not know who owned the jacket under which he discovered the tube of fentanyl. The backpack belonged to the passenger.

37He did not believe that any of the cannabis found in the dispensary pouches, in the vehicle or in the baggie on Mr. Chol’s person was weighed, and he could not estimate the quantity based on the photographs alone.

PC Joanne Inouye

38PC Inouye was a member of the OPP but has since retired. On November 10, 2023, she was on general patrol. She heard that PC Cerovich had a vehicle stopped and, as her general practice, she began to attend the scene when she heard the request for a second unit. She arrived on scene at 3:54 a.m.

39She testified that she was the first backup officer to arrive. When she arrived, PC Cerovich told her that the driver of the vehicle was suspended and that he had grounds to conduct a CCA search and asked her to stand by. Both occupants were still seated in the vehicle.

40PC Crosby arrived a short time later, and he and PC Cerovich asked the driver to step out. Her role was to monitor the passenger. The passenger was cooperative and had his cell phone out recording the incident.

41She testified that she did not make any observations of the driver, as she was watching the passenger. She was standing outside the passenger door with the window down and did not smell anything. The passenger exited the vehicle. The next event she recalled was that PC Cerovich conducted an inventory search of the trunk, found fentanyl, and arrested Mr. Chol, placing him in the rear of PC Crosby’s vehicle.

42The officer testified that she did not recall seeing the inventory search or what PC Cerovich seized. After he found the suspected fentanyl, she arrested the passenger and read him his rights and caution. She never had any interaction with Mr. Chol.

43At headquarters, PC Cerovich turned over to her four cell phones, some currency and three bags of suspected CDSA substances, which she placed in a locker and gave the key to PC Cerovich. She did not know what substance was in the bags. She made a call to duty counsel for the passenger. She had no involvement with Mr. Chol.

44In cross-examination, she agreed that she was aware there was to be a CCA search and that her recollection was that the driver had been identified as a suspended driver. She believed that she had a conversation about the driver being suspended before she approached the vehicle, but she was not certain. It was suggested to her that, given it was a CCA search, she would have been alert to any cannabis-related issues. She responded, “not necessarily, I was there for officer safety.” She agreed that if she had smelled cannabis, she would have made a note. If she had seen cannabis, she would have made a note. She did not smell or see any cannabis.

45She had no recollection of any cannabis odour emanating from the passenger.

46She understood that there was a CCA search followed by an inventory search, as the vehicle was being impounded due to the driving suspension. An inventory search is conducted to determine whether there are any valuables or stolen items. She was asked whether police create a list when conducting an inventory search and testified that it depends; if there were only a few items, she simply note them in her notebook.

47She testified that she did not participate in the inventory search or any post-arrest search. Defence counsel showed her a video from PC Cerovich’s in-car camera, where she identified herself as the officer assisting in the arrest of the passenger and then walking to the driver’s side of the vehicle with PC Cerovich. She agreed that it appeared she was assisting him or perhaps providing additional lighting. She was then shown video footage of her near the rear of the trunk, possibly lifting something. The officer testified that she had no recollection of these actions. She could also be seen on the passenger side of the vehicle. She was asked whether she had any memory of a strong smell of marijuana when she was near the vehicle, and she stated that she did not. She was unsure of the purpose of the vehicle search but assumed it was to locate additional CDSA evidence, although she did not know.

PC Rob Crosby

48On November 10, 2023, PC Crosby was working with his regular platoon and was dispatched to assist PC Cerovich at a traffic stop. He arrived on scene at 3:55 a.m. He spoke to PC Cerovich, who said he was going to conduct a CCA search. They were both on the driver’s side of the car, and PC Inouye was on the passenger side. She had arrived before him. PC Cerovich did not share his grounds for the CCA search with him.

49PC Cerovich told the driver to exit, but the driver refused. PC Cerovich reached in to unbuckle the driver’s seatbelt and may have grabbed the driver’s arm.

50PC Crosby did not smell or observe anything from which he could form his own grounds for the CCA search. PC Cerovich asked him to stand at the back of the vehicle with the driver while he conducted the CCA search.

51PC Crosby asked for the driver’s identity, and he stated that his name was Simon Chol, with an address on Sunnydale Road in Kitchener-Waterloo. Shortly after, PC Cerovich indicated that he had located a photo card and made a positive identification. The photo card was in the name of Mal Chol. PC Cerovich asked dispatch to run the new name. Dispatch confirmed that Mr. Chol was a suspended driver. PC Cerovich placed Mr. Chol under arrest for driving while suspended.

52After the arrest, PC Crosby conducted a search of Mr. Chol’s person prior to placing him in his cruiser. He then read Mr. Chol his rights to counsel and caution from his card. Mr. Chol indicated that he understood his rights and wanted to speak to counsel.

53Shortly after, PC Cerovich advised that there were additional grounds to arrest Mr. Chol for possession for the purpose of trafficking. That occurred at 4:14 a.m. PC Crosby re-arrested Mr. Chol while he was in the back of the cruiser and re-read him his rights to counsel and caution. Again, Mr. Chol stated that he understood and wanted to speak to counsel. He did not provide the name of a particular lawyer.

54At the time, PC Crosby was unaware of the grounds for the arrest, where the drugs had been located or the nature of the search. He learned this information after the arrest, while still at the scene, by speaking with PC Cerovich. He was told that the fentanyl had been in the trunk during an inventory search conducted before impounding the vehicle.

55The officer testified that he conducted a brief search of the vehicle as a second set of eyes to ensure that nothing had been missed in PC Cerovich’s search. While he did this, Mr. Chol remained in the back of his cruiser. The second search did not produce anything.

56He left the scene at 4:32 a.m. and transported Mr. Chol to the detachment, arriving at 4:49 a.m. He escorted Mr. Chol into the booking cell area and completed a booking questionnaire relating to any injuries, medical concerns, medications and allergies. He also lodged his property, such as a cell phone or wallet.

57He testified that he then made arrangements for Mr. Chol to contact duty counsel. He did not note the time but testified that it would have occurred immediately after the booking process, which takes approximately 15 to 20 minutes. He then awaited a return call.

58His next note indicates that he placed Mr. Chol in a room with duty counsel at 5:59 a.m. He testified that when police place a call to duty counsel, response times can vary significantly, as sometimes calls are answered immediately and other times it may take two or three hours for a return call.

59In cross-examination, PC Crosby testified that he was standing directly behind PC Cerovich at the driver’s side door. He did not know whether the window was down, but the door was open. He agreed that he was aware of the CCA search and was attentive to anything relevant to the investigation and would have made a note if warranted. He neither observed nor smelled anything of note.

60He agreed that he was standing at the back of the car with Mr. Chol and ran only the name that Mr. Chol provided verbally. Then PC Cerovich located the photo card, ran the correct name and arrested him. He testified that he provided Mr. Chol with his rights to counsel and caution in the cruiser following the driving suspension arrest, and that was the first time. He agreed that Mr. Chol said he wanted to speak to a lawyer but also stated that he would have to see his phone.

61PC Crosby agreed that 13 minutes elapsed after he read the rights a second time before he left for the station, as he was assisting PC Cerovich in searching the vehicle.

62The officer testified that if an accused wanted to speak with a particular lawyer, the process was the same as for duty counsel: he would call the lawyer, and if the lawyer answered, he would place the accused on the phone. If not, he would leave a message and wait for a return call.

63Harprit Saini returned the call. Defence counsel suggested that Mr. Saini was not duty counsel but a specifically retained lawyer. PC Crosby agreed that was possible.

64Defence counsel suggested that the first call to Mr. Saini occurred at 5:59 a.m., and PC Crosby testified that, as he had no note, this was possible.

65PC Crosby testified that he understood that the right to counsel must be provided without delay. He has not received any training on this issue since police college. He recalled that when the government introduced the CCA, he completed some online modular training but did not recall whether it addressed the right to counsel. When asked about his understanding of the rights under the CCA, he indicated that he understood that when the police detain an individual, they must be provided with their rights to counsel and caution.

66He was asked why he did not do so in this case. He responded that he was an assisting officer and did not know what PC Cerovich had told the driver or whether he had already provided the rights to counsel and caution. He agreed that he did not ask. He also agreed that there were a few minutes of idle time during the vehicle search.

67He testified that he did not recall whether he had a work-issued cell phone at the time, although he does now. He recalled that he had recently been issued a body-worn camera. He agreed that if he had a cell phone, he could have secured Mr. Chol in the cruiser and afforded him privacy to contact counsel. He testified that he did not know whether he had a work-issued phone with him at the time and that it was standard practice to provide an opportunity to speak to counsel at the station.

68He agreed that he assisted in the search as a second set of eyes and that he had testified at the preliminary hearing that it was an inventory search. He stated that, upon reflection, because it followed the possession for the purpose arrest, it would have been a search incidental to that arrest. He testified that this understanding did not come from PC Cerovich but from his training at the police college.

69The officer testified that it was standard practice that someone arrested for driving while suspended would be handcuffed and placed into a police cruiser unless there was a medical reason not to do so. If the offence was solely driving while suspended, the person would typically be released from the scene.

70PC Crosby testified that after Mr. Chol was arrested for driving while suspended, he was providing him with his rights to counsel and caution. He was not paying attention to PC Cerovich. At some point before he left the scene, PC Cerovich advised him that he had been conducting an inventory search prior to impounding the vehicle and had discovered fentanyl.

71Counsel suggested to PC Crosby that, since Mr. Chol referenced a phone, he must have had one and could have used it to contact counsel. The officer testified that he did not recall Mr. Chol having a phone and, in any event, this was not something he would normally permit, as the phone could contain evidentiary material that might be altered or deleted. He testified that he would not access a person’s phone to locate a contact number.

APPLICATION

Issue #1: Initial Stop of the Rental Vehicle

72The defence acknowledges that police officers can stop a vehicle under s. 216 of the Highway Traffic Act, R.S.O. 1990, c. H.8, to check the licensing status of the driver. However, the defence submits that PC Cerovich “targeted” rental vehicles, which brings his conduct outside the scope of random stop authority and requires that the officer have reasonable and probable grounds for the stop.

73The defence argues that the police must act within “the limited highway-related purposes for which the powers were conferred.” It submits that stopping rental vehicles is not rationally connected to a highway traffic concern, as there is no rational connection between the rental status of a vehicle and the licence status of a driver, particularly given that an individual must possess a valid licence to rent a vehicle. Therefore, the stopping of the applicant’s vehicle was for an improper purpose and constitutes an arbitrary detention contrary to s. 9 of the Charter.

74The Crown submits that the vehicle stop was conducted for a legitimate HTA purpose: to check the licence status of the driver. It argues that, given the officer’s evidence that, in his experience, rental vehicles are often used to conceal a driver’s licence status, targeting rental vehicles for licence checks does not exceed the authority conferred by the HTA.

75This case is similar to R. v. Bell, 2024 ONCJ 692, at paras. 55-59, where Chapman J. found that police acted for a proper purpose in stopping a vehicle based on knowledge that suspended drivers frequently operate rental vehicles. Chapman J. found that the officer’s conduct was consistent with that regulatory purpose and that the stop was lawful.

76In this case, the defence did not challenge PC Cerovich’s evidence that suspended drivers often use rental vehicles to conceal their status in cross-examination. He testified that he previously worked for a number of years at a detachment responsible for traffic enforcement throughout the Greater Toronto Area.

77PC Cerovich acknowledged that a person must have a valid licence to rent a vehicle. I do not accept that this fact undermines his testimony that suspended drivers use rental vehicles to conceal their status. This case demonstrates that point. Mr. Chol did not have a valid licence but drove a rental car. Although such an arrangement requires the involvement of a third party, it remains entirely plausible.

78The court must guard against situations where an officer targets a rental vehicle based on suspected criminal activity and uses a highway traffic purpose as a pretext for the stop: R. v. Tully, 2022 ONSC 1852, at paras. 50-52; R. v. Palmer, 2025 ONSC 7078, at para. 81; and Brown v. Durham Regional Police Force (1998), 1998 CanLII 7198 (ON CA), 43 O.R. (3d) 223 (C.A.), at pp. 242-243.

79To determine whether a stop is authorized, I must assess the officer’s subjective purpose at the time of the stop. In doing so, I consider all the circumstances, including the evidence of the officer, the evidence of the detained person, the circumstances of the stop and the police conduct during the stop: R. v. Mayor, 2019 ONCA 578, 378 C.C.C. (3d) 453, at para. 10, citing R. v. Gonzales, 2017 ONCA 543, 136 O.R. (3d) 255, at para. 67.

80I find that PC Cerovich’s actions matched his stated concern about the licensing status of the driver, including his initial inquiries and computer check. Considering all the circumstances, I conclude that he conducted the stop for a proper purpose under s. 216 of the HTA.

Issue #2: Search of the Vehicle Pursuant to the Cannabis Control Act

81The defence submits that PC Cerovich lacked sufficient grounds to conduct a search under the CCA in the circumstances of this case. The defence argues that the small amount of cannabis that PC Cerovich observed in the door handle and on the passenger floor mat, together with the alleged odour of fresh cannabis, did not provide sufficient grounds for a search under the CCA.

82The defence further submits that the quantity was too small to be consumed, such that it was not “readily available” within the meaning of s. 12 of the CCA and instead evidenced only past consumption.

83The Crown submits that s. 12 refers to “any” cannabis and does not impose a minimum quantity. It argues that PC Cerovich had sufficient grounds to conduct the search.

84Section 12 of the CCA provides:

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

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

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

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

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

85Courts have made clear that odour alone does not establish reasonable grounds for a search under the CCA. Odour is inherently subjective, transitory, and largely incapable of objective verification: R. v. Polashek (1999), 1999 CanLII 3714 (ON CA), 45 O.R. (3d) 434; R. v. Ghuman, 2023 ONSC 2615, at para. 38; R. v. Dillon and Shifara, 2025 ONSC 3166, at para. 111; and R. v. Osit, 2017 ONCJ 824, at para. 26.

86In this case, the defence challenged PC Cerovich’s evidence that he detected an odour of “fresh” cannabis at all, pointing to the fact that the other two officers neither recalled nor noted any such odour despite knowing the context of the CCA search. I have considered this submission. However, although those officers knew a CCA search was underway, they also failed to note the visible cannabis in the front and rear passenger door handles, on the floor mat, and in the bags behind the passenger seat. In my view, their failure to record or recall the odour carries less weight. Their evidence suggested that they viewed themselves primarily in an assisting role.

87I must assess whether reasonable grounds existed to conduct the search, not whether the evidence establishes proof beyond a reasonable doubt. I accept that the quantity of cannabis observed before the search was small, but I do not find it to be minuscule, as described in other cases.

88PC Cerovich noted in his notebook that the bags behind the driver’s seat were “unsealed”. He testified that he believed they were open, as no seal was visible in the photographs. The photographs, however, appear to show unopened bags, although their quality makes this impossible to determine conclusively. I am not prepared to find whether the bags were open at the time. The term “unsealed” is ambiguous and may carry more than one meaning.

89When PC Cerovich searched Mr. Chol, he found a baggie of cannabis in one of his pockets. The officer did not detect any odour emanating from the baggie while police were standing outside the vehicle with him.

90To establish reasonable grounds, PC Cerovich must subjectively believe that the vehicle contains cannabis. That belief must be objectively reasonable. In other words, a reasonable person in the officer’s position must be able to reach the same conclusion. This standard falls below a prima facie case and aligns with a balance of probabilities.

91I accept PC Cerovich’s evidence that he detected what he believed to be an odour of fresh cannabis emanating from the interior of the vehicle. In my view, the odour, combined with the quantity of cannabis (although small), provided reasonable grounds to conduct a search under the CCA: R. v. Moulton, 2023 ONCJ 140, at para. 218.

Issue #3: Inventory Search of the Vehicle’s Trunk

92The defence submits that PC Cerovich lacked authority to search the vehicle before it was towed because he did not rely on any specific legislative authority or police policy and because the vehicle was not being towed to a police impound facility.

93The defence relies on R. v. Harflett, 2016 ONCA 248, at paras. 29-30, where the Court of Appeal held that police had no authority to conduct an inventory search when a vehicle was towed to a parking lot rather than impounded. The defence argues that this case is distinguishable from R. v. Nicolosi (1998), 1998 CanLII 2006 (ON CA), 40 O.R. (3d) 417 (C.A.), at pp. 13-16, because the vehicle here was not taken “into the custody of the law” pursuant to ss. 220 or 221 of the HTA.

94The Crown submits that police properly impounded the vehicle and were authorized to conduct an inventory search before doing so.

95The parties do not dispute that police had the lawful authority to impound the vehicle for 45 days due to Mr. Chol’s status as a suspended driver.

96I find that, although PC Cerovich did not explicitly refer to a specific statutory provision or police policy, he understood that he had authority to tow the vehicle to an impound yard. He also understood that he lacked authority to search the vehicle incident to arrest. He testified that he searched the trunk solely to ensure that no valuables or dangerous items remained in the vehicle before it was towed to the impound facility.

97I find that these facts fall within the authority recognized by the Court of Appeal in Nicolosi. In that case, the Court of Appeal held that taking a vehicle into the custody of the law imposes a duty on police to safeguard the vehicle and its contents. That duty carries with it the authority to enter the vehicle and itemize visible property of apparent value. This authority is distinct from cases such as R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, 155 D.L.R. (4th) 19, where the inventory search derived from policy rather than statutory authority.

98In this case, Mr. Chol could not lawfully remove the vehicle during the impound period. If items of value went missing from the vehicle, both police and the impound facility could face potential liability. Similarly, if the vehicle contained dangerous items when police transferred it to the impound facility under statutory authority, police could bear responsibility for any resulting harm.

99This situation differs from one where police tow a vehicle simply to clear traffic, leaving the owner responsible for its contents.

100On cross-examination, defence counsel challenged PC Cerovich’s Return to Justice, which suggests that police discovered the drugs during a search incident to arrest. PC Cerovich acknowledged the wording but maintained that he did not rely on search incident to arrest authority. He explained that police seized the drugs after arresting Mr. Chol for driving while suspended, but did not discover them through a search incident to that arrest. Based on his evidence and the evidence of the assisting officers, I am satisfied that he understood the limits on his authority and opened the trunk for inventory purposes before impoundment.

101I also rely on the evidence that, before discovering the fentanyl, PC Cerovich did not search the passenger’s bag located in the trunk. Instead, he felt the outside of the bag to ensure it contained nothing dangerous before returning it to the passenger. This conduct supports his stated purpose of conducting a safety-focused inventory rather than an evidentiary search.

102I conclude that the inventory search of the trunk, conducted in anticipation of a 45-day impoundment, was lawful and did not breach s. 8 of the Charter.

Issue #4: Rights to Counsel

103The defence alleges multiple breaches of Mr. Chol’s right to counsel. Specifically, it argues that the police delayed: (i) informing him of his rights to counsel and caution during the CCA search; (ii) permitting him to contact counsel at the roadside; and (iii) providing him with an opportunity to contact counsel at the detachment.

104The Crown submits that no breach occurred. In the alternative, it submits that any breach does not justify exclusion of the evidence under s. 24(2) of the Charter.

105Although courts have recognized that some delay in advising a detainee of the right to counsel may be justified during a roadside stop, the Court of Appeal has recently confirmed that a detainee has the right to be informed of that right during a search conducted under s. 12 of the CCA: R. v. McGowan-Morris, 2025 ONCA 349, 177 O.R. (3d) 81.

106In this case, PC Cerovich waited for backup before commencing a CCA search. The assisting officers arrived at approximately 3:55 a.m. Given the time, the rural location and the presence of two occupants, I accept that this initial delay was justified: McGowan-Morris, at para. 103. However, once the additional officers arrived, PC Crosby remained with Mr. Chol and the CCA search began. At that point, no justification remained for delaying the informational component of the right to counsel. Despite this, the police did not inform Mr. Chol of his right to counsel until 4:09 a.m., when they arrested him for driving while suspended. They re-arrested him at 4:14 a.m. for possession for the purpose of trafficking.

107I find that police breached Mr. Chol’s right to counsel by failing to inform him of that right forthwith once the purpose of the stop evolved into a CCA search.

108The defence further submits that police should have provided Mr. Chol with an opportunity to contact counsel at the roadside before transporting him to the detachment.

109PC Crosby testified that he did not recall whether he had a police-issued cell phone at the time. He also testified that, after the arrest for possession for the purpose of trafficking, he would not have permitted Mr. Chol to use his own cell phone due to the risk of evidence destruction. The evidence also establishes that the cruiser was equipped with interior and exterior cameras, and that Mr. Chol was advised he was being audio and video recorded while in the rear of the cruiser.

110On this record, I am not satisfied that police had the practical means to provide Mr. Chol with a private opportunity to consult counsel at the roadside. I do not find a breach arising from the failure to implement the right to counsel before transport to the detachment.

111PC Crosby testified that he would have contacted duty counsel after booking Mr. Chol at the detachment and completing the booking process, which he estimated would take between 15 and 20 minutes. He stated that he left the scene at 4:32 a.m. and arrived at the detachment at 4:49 a.m.

112However, PC Crosby made no notes documenting when he contacted counsel. He testified that response times from duty counsel can vary significantly, from immediate response to delays of two to three hours.

113His notes indicate that Mr. Chol spoke with counsel at 5:59 a.m.

114During cross-examination, defence counsel suggested that the lawyer Mr. Chol spoke to may have been counsel of choice rather than duty counsel. PC Crosby agreed that this was possible. The evidence does not establish whether Mr. Chol spoke to duty counsel or retained counsel.

115Defence counsel also suggested that PC Crosby may not have contacted counsel until 5:59 a.m. PC Crosby agreed that this was possible, as he had no independent recollection or notes of the timing.

116When the defence establishes that police failed to facilitate access to counsel at the first reasonable opportunity, a prima facie breach of s. 10(b) arises. The burden then shifts to the Crown to demonstrate that the delay was reasonable in the circumstances: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 24.

117On the evidence before me, I find that police failed to facilitate Mr. Chol’s access to counsel at the first reasonably available opportunity. The record discloses an unexplained delay. Accordingly, I find that the police breached Mr. Chol’s rights under s. 10(b) of the Charter.

Issue #5: Exclusion under [s. 24(2)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

118Section 24(2) of the Charter requires the court to exclude evidence obtained in a manner that infringed Charter rights if its admission would bring the administration of justice into disrepute. In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the Supreme Court set out a three-part framework. The court must consider: (i) the seriousness of the Charter-infringing conduct; (ii) the impact of the breach on the accused’s Charter-protected interests; and (iii) society’s interest in adjudicating the case on its merits. The party seeking exclusion bears the burden on a balance of probabilities.

(i) The Seriousness of the Breach

119This factor asks whether admitting the evidence would signal that the courts condone state departures from the rule of law by failing to disassociate from unlawful conduct. The more serious or deliberate the misconduct, the greater the need for the court to disassociate itself from it: Grant, at paras. 49, 72.

120The defence submits that the breaches were serious, emphasizing that the applicable law was settled and that police conduct reflected a careless and consistent disregard for the accused’s Charter rights.

121The Crown submits that the breaches were not serious.

122At the time of this incident, the law governing delays in providing the right to counsel during a CCA search was not settled. The Court of Appeal clarified this issue after the events in question.

123I find that the delay between the decision to conduct the CCA search and informing the accused of his right to counsel was brief. As I have already noted, police reasonably delayed the search to await backup given the time, location and number of occupants. After backup arrived, the search commenced. The police located the accused’s wallet, and they arrested him shortly thereafter for driving while suspended. These events unfolded quickly.

124Given the state of the law at the time and the brevity of the delay, I do not find that the delay in providing the informational component of the right to counsel during the CCA search was serious.

125The evidence does not establish the length of the delay in facilitating access to counsel at the detachment. Although PC Crosby agreed that it was possible that he delayed implementation for up to one hour, he had no notes and no independent recollection. I cannot determine when police first attempted to contact counsel. That delay remains unexplained.

126I find that this unexplained delay in implementing the right to counsel falls toward the more serious end of the spectrum.

(ii) The Impact of the Accused’s Rights

127This factor requires the court to assess how significantly the breaches undermined the accused’s Charter-protected interests, including whether the state intrusion was fleeting or more substantial: Grant, at paras. 49, 76-77.

128The defence acknowledges that the breaches did not directly produce evidence and that police did not attempt to question the accused during the period of delay. However, it submits that the accused remained in a vulnerable position without access to counsel for a meaningful period and may have been at risk of self-incrimination.

129The Crown submits that the breaches had little practical impact. Police obtained no incriminating statements and consultation with counsel would not have prevented the arrest, search or seizure of the evidence: R. v. Graham, 2018 ONSC 6718, at para. 51, aff’d 2020 ONCA 962. The Crown argues that any connection between the breaches and the evidence is contextual rather than causal or temporal.

130I find that the breaches had minimal impact on the accused’s Charter-protected interests. The breaches did not meaningfully contribute to the discovery of the evidence. Police would have located the drugs regardless of the breaches, and the evidence existed independently of them.

(iii) Society’s Interest in Adjudicating the Case on its Merits

131This factor directs the court to consider the truth-seeking function of the criminal trial, including the reliability of the evidence and the seriousness of the offence: Grant, at paras. 49, 79.

132The defence acknowledges that the evidence in question forms the entirety of the Crown’s case. It submits that although the public has a strong interest in resolving serious charges on their merits, it also has a vital interest in maintaining a justice system that remains beyond reproach, especially where the stakes are high.

133The Crown emphasizes the seriousness of fentanyl-related offences. The City of London has been disproportionately impacted by fentanyl-related deaths. The Crown submits that the evidence is reliable and that excluding it would undermine public confidence in the administration of justice.

134I find that this factor strongly favours admission of the evidence. The evidence is reliable, and the charges are serious.

(iv) Balancing the Factors

135Despite the breaches of s. 10(b), I find that the evidence should be admitted at trial. Although the unexplained delay in implementing the right to counsel raises concern, the overall impact of the breach was limited. The evidence remains reliable and central to the Crown’s case. In my view, an informed observer would not conclude that admitting the evidence would bring the administration of justice into disrepute.

CONCLUSION

136I find no breach of ss. 8 or 9 of the Charter. I find that the police breached Mr. Chol’s rights under s. 10(b) by delaying both the informational and implementational components of the right to counsel. However, I conclude that these breaches do not warrant exclusion of the evidence under s. 24(2). My understanding is that the alleged s. 7 breach related to the same facts as the s. 10 breach and my findings would be the same.

Justice P.J. Moore

Released: July 7, 2026

CITATION: R. v. Chol, 2026 ONSC 3980