CITATION: R. v. Tumuheirwe, 2026 ONSC 4338
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
HENRY TUMUHEIRWE
Accused/Defendant
A. Morris, for the Crown
R. Stiles, for the Accused/Defendant
HEARD: July 23, 2026
Decision on Charter Application
J.R. McCARTHY J.
Introduction
1The Accused Henry Tumuheirwe (hereinafter the Defendant) is charged with possession for the purpose of trafficking cocaine.
2The application proceeded as a blended voir dire.
The issues
3The Defendant contends that he suffered infringements of his Charter protected rights against unreasonable search and seizure (section 8) and arbitrary detention (section 9). The Defendant seeks a remedy for those infringements pursuant to s. 24(2)
The HTA Arrest and Search
4On February 26, 2024, Sgt. Giuseppe Pileggi of the Ontario Provincial Police (the officer) was conducting speed enforcement on Highway 400 near Horseshoe Valley Road in Orillia. Using a calibrated speed-measuring device, the officer observed and clocked a 2023 Toyota vehicle bearing Quebec plates (“the vehicle”) travelling northbound at 151 km/h in a posted 100 km/h zone. This exceeded the threshold for stunt driving under s. 172(1) of the Highway Traffic Act (“HTA”) (50 km/h or more over the limit). The officer activated his emergency lights and conducted a traffic stop on the highway shoulder. The Defendant, the sole occupant, produced a valid Ontario driver’s licence identifying him as Henry Tumuheirwe but failed to provide vehicle ownership or insurance documents. The Defendant did show the officer a vehicle rental agreement on his phone. The officer arrested the Defendant for stunt driving under the HTA, asked him to remove himself from the vehicle and directed him to stand at the rear of the vehicle with hands on the trunk.
5According to the officer’s testimony, the Defendant on three occasions disobeyed the direction to leave his hands on the trunk and appeared to make a move towards the rear driver seat door of the vehicle.
6Out of concerns for safety for the officer, the Defendant and motorists on the highway, the officer directed the Defendant to the rear seat of the police cruiser where he was detained without handcuffs.
7The alleged offence under the HTA carried with it an automatic and mandatory 30-day license suspension as well as 14 day impound of the subject vehicle.
8The officer then searched inside the vehicle to locate the ownership and insurance documents which the Defendant had been unable to produce and which were necessary to proceed with the impounding of the vehicle.
9According to the officer, he first searched inside the glove box, the center console and the visor of the vehicle, which in his 28 years of experience, are the most likely locations where motorists leave insurance and vehicle registration documents. The search was unsuccessful. The officer then located a satchel bag (“the satchel”) in the vehicle’s rear seat. The officer testified that, in his experience, purses, wallets and bags are also locations wherein motorists, especially rental car motorists, will leave such documentation.
10During the search of the satchel, the officer discovered zip-lock bags of white substances, later confirmed to be cocaine together with a digital scale. There is no dispute that the quantity of cocaine measured 242 grams.
The Defendant’s Position
11The Defendant states that the officer violated his s. 8 and 9 Charter rights.
12The officer’s search was unlawful and not authorized under any statute; the search was unreasonable because the investigation into the driving offence had already been completed by the time the search of the satchel took place; there was no need to search for weapons or for officer safety since the Defendant was already detained and the area was safe; there was no basis upon which the officer could have reasonably believed that the satchel contained anything of use for the HTA charges.
13The detention was arbitrary because there was no need to detain the Defendant in the manner that he was. There was no threat to officer or public safety. The area was secure. The officer need have only issued the notice to appear in court on the HTA charges and released the Defendant.
14Considering the flagrant infringements of those Charter rights, the court should apply the factors in R. v. Grant, 2009 SCC 32 and order the exclusion of the evidence of the seized cocaine from the trial proper.
The Crown’s Position
15The Crown argues that there were no breaches of section 8 or 9. The search was justified and incident to arrest. It was conducted for a valid purpose, specifically for required documentation. It was statutorily authorized under s. 217 of the HTA as connected to the offence of stunt-driving. The search was reasonable in both manner and scope. It was brief, focused, proportionate and minimally intrusive.
16The detention was in no way arbitrary: it arose from a lawful arrest for a HTA offence, was approximately 10 minutes in duration and was made necessary by the non-cooperation of the Defendant, the need to search the vehicle for documentation, the fact that the officer was on his own and the dangerous location where the parties found themselves - on the shoulder of busy 400 series highway.
17Any infringements of any Charter protected rights were fleeting and minimal and the product of actions taken in good faith. The cocaine represents the critical evidence in the Crown’s case. The administration of justice would be brought into disrepute if the evidence were to be excluded.
Detention for HTA offences
18A detention is not arbitrary where it is grounded in a valid statutory power and exercised for the purpose for which that power was conferred. The law is clear that highway stops for highway related offences are constitutionally valid: see R. v. Ladouceur, 1990 CanLII 108 (SCC), [1990] 1 SCR 1257 at pp. 1286-1287.
19Stunt driving is an arrestable offence under s. 217 (2) of the HTA and, under s. 172(8)- (10) of the HTA attracts a mandatory roadside license suspension and 14 day impoundment of the vehicle.
20Detention of motorists committing highway traffic offences such as stunt driving are not arbitrary: see R. v. Aucoin, 2012 SCC 66.
Search Incident to Lawful Arrest
21The law is clear that to be lawful, a search incident to arrest, which is after all a warrantless search, must be undertaken to achieve a valid purpose connected to the arrest, which includes officer and public safety, the preservation of evidence and the discovery of evidence: see R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 SCR 51. The arresting officer must have a subjectively valid purpose at the time of the search, and the search must be objectively reasonable. Moreover, the search must be conducted reasonably: see R v Tim, 2022 SCC 12. The Court of Appeal has affirmed that the purpose relied on to justify the search at trial must have been the actual reason the police conducted the search: see R v Santana, 2020 ONCA 365 at para 28.
Discussion
22I am unable to find any infringements of ss. 8 and 9 or the Charter.
(i) The Officer
23I found the officer’s testimony to be internally consistent, reliable and consistent with the police camera footage. I found the officer to be credible. He did not exaggerate matters. He had a good independent recollection of the event but also had reference to his notes when required. The officer freely admitted that he could have contacted the rental company to obtain the vehicle registration information; he also freely admitted that he did not follow up with the Defendant during the detention about where the sought-after vehicle registration and insurance documentation might be found.
(ii) The Detention
24There was nothing about the detention that was arbitrary or unreasonable. The Defendant had committed an arrestable HTA offence of stunt driving. Upon being instructed by the officer to leave both hands on the back of the vehicle, the Defendant not once but three times, disobeyed this very simple, practical and reasonable instruction. This led the officer quite reasonably to direct the Defendant to the police cruiser. This was a measured, practical and safe direction given that the interaction was on the shoulder of a busy and dangerous highway, that the Defendant had disobeyed the simplest of instruction and that officer was acting alone in a situation where he needed to search for missing documentation that the Defendant had been unable to produce (registration and insurance).
25While the Defendant was not given his rights to counsel and caution immediately, I find that the officer was intending to do so as soon as practicable once his investigation into the offence had been completed. I disagree with counsel for the Defendant that the investigation into the HTA offence had been completed. The requested documentation (vehicle registration) was a necessary piece of information required for the Ministry of Transportation and to protect the property rights of the rightful owner of a vehicle which was in the process of being impounded.
26As well, the officer was fully within his right to complete the search for insurance papers given the requirements of the Compulsory Automobile Insurance Act and the potential offence that remained undetermined.
27Finally, the practicalities of the situation were that, while the Defendant was free to go, he was not free to drive away (his license was mandatorily suspended, and the vehicle was in the process of being impounded). The Defendant was effectively stranded on the shoulder of a very busy highway. It was neither safe nor realistic for him to be released until the earliest of the arrival of police back up or the arrival of the tow truck to take the vehicle away. I also find that providing the Defendant with his rights to counsel within 10 minutes of his arrest was as early as practicable given that the investigation into the HTA offence was continuing, the officer was alone and that upon the discovery of the cocaine in the satchel, a new offence had been discovered. At that point, further investigation was required and the Defendant’s jeopardy had changed.
28Based on the discovery of the cocaine, the officer formed reasonable and probable grounds for an arrest under s. 5 of the Controlled Drugs and Substances Act (“CDSA”). The Defendant was then given his rights to counsel and caution and transported to the Orillia OPP detachment where he spoke to duty counsel and was released on an undertaking to appear. I am satisfied that his rights to counsel were provided as soon as practicable and within a reasonable period after his arrest.
29In sum, the detention was not arbitrary. It arose from an arrestable HTA offence and was made necessary by a combination of the Defendant’s inability to produce required documentation, his failure to follow instructions, the need for a search of the vehicle, the fact that the Defendant’s license was suspended and the vehicle impounded, the location of the detention, the discovery of the cocaine and the subsequent rearrest. The Defendant was held, transported, processed and released at the earliest possible time. In all the circumstances, the detention was both warranted and justified. It was not arbitrary or unreasonable.
(iii) The Search
30Nor do I find that the search was in anyway unreasonable. The officer first asked the Defendant for registration and insurance information which he could not produce or direct the officer to. This left it to the officer to consider means by which to locate those documents.
31Defendant’s counsel was critical of the officer for not pursuing that information through the car rental company. This is unfair. The officer took the most immediate, practical and expedient steps he knew to locate documentation, which in his experience, is normally found in a limited number of locations in a rental vehicle: the center console, the glove box and the visor. That is where he searched for first. Only then did he search the satchel, which like a wallet, purse, or knapsack, often serve as locations to store such documentation.
32I find the officer’s evidence both consistent and reliable that his only purpose in searching the satchel was for documentation which he required to both verify insurance and ensure that the impound was completed properly and responsibly. I accept that this was his subjective purpose at the time. I find that purpose to be objectively reasonable.
33The officer most certainly could have phoned the rental car company, with all the voice prompts, delays and frustrations that might have entailed. Others might have taken that route. Instead, the officer reasonably opted for the most direct, immediate and logical route of uncovering documents, which were essential for him to complete his investigation into an incident which was still ongoing and which required clarifying information to ensure that the impound proceeded in an orderly fashion. I accept the officer’s testimony that contacting the rental company was an option he might have pursued if the search of the vehicle proved fruitless. The constitutionality of a search incident to arrest turns on lawful authority and actual purpose, not on whether some alternative investigative avenue can be imagined see R. v. Bakal, 2021 ONCA 584
34I agree with and accept the submission of the Crown that it was reasonable for a lone officer, in the midst of a mandatory vehicle impoundment arising out of a lawful HTA arrest for stunt driving, as part of his search for required documentation within the subject rental vehicle, to open the only container in the vehicle which was unlocked, in plain sight and which in his 28 years of experience is commonly the location for such documentation.
35No section 8 breach occurred.
Section 24(2): the factors in R v Grant, 2009 SCC 32
36In the event I am wrong in respect of my findings of no breach, I would, in any event, deny any relief to the Defendant under s. 24(2) of the Charter.
37Any Charter breach was at the very low end of serious. There is a diminished expectation of privacy in vehicles, further diminished in regulatory enforcement contexts: see R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] 3 SCR 341. The search of the vehicle was minimally invasive: the satchel was not stored away or locked; it was not seized off the person of the Defendant; the search was not all encompassing – it was narrow and focused.
38The detention was not aggressive or unjustified. The Defendant created the need for some security when he failed to follow very simple police instructions which were designed for the safety of the Defendant, the officer and motorists on the highway. The Defendant was not bodily searched and was not handcuffed. The detention was relatively brief considering the location and the circumstances (the officer being on his own). There is no evidence that the state conduct was disproportionate, systemic or done in bad faith. This factor weighs in favour of including the evidence.
39The impact of any Charter offending conduct on the Defendant is difficult to gauge because he did not testify. The search was brief, focused and minimally intrusive. The search was incident to arrest for a HTA offence. The documentation sought was not obscure or non-existent; the vehicle registration was undoubtedly somewhere. The detention was necessary given the HTA offence. The detention itself was brief and minimally confrontational, involved no force or handcuffing, no touching of the person and was entirely tailored to the circumstances. In short, it was as benign as a detention can get. There was no aggressive conduct by police. The detention was not pre-conceived or targeted. The Defendant’s conduct at the scene made detention in a secure location necessary. This factor weighs in favour of allowing the evidence in at trial.
40Finally, the cocaine is the central piece of evidence for the Crown’s case. Society has a profound interest in seeing possession for the purpose of trafficking drug charges prosecuted on their merits. The administration of justice would be brought into serious disrepute if the remedy sought by the Defendant were granted. This factor weighs overwhelmingly in favour of inclusion of the evidence.
Disposition
41For the foregoing reasons, I find that the Defendant suffered no infringement of his Charter protected rights. No section 24(2) would be appropriate in any event. The application is therefore dismissed. The Crown may introduce the evidence of the seized cocaine at trial.
J.R. McCARTHY J.
Released: July 24, 2026