R. v. McGowan-Morris

R. v. McGowan-Morris Collection Decisions of the Court of Appeal Date 2025-05-07 Neutral citation 2025 ONCA 349 Docket numbers C70451 Judges Trotter, Gary T.; George, Jonathon C.; Brown, Michael F. Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: R. v. McGowan-Morris, 2025 ONCA 349 DATE: 20250507 DOCKET: C70451 Trotter, George JJ.A. and Brown J. (ad hoc) BETWEEN His Majesty the King Appellant and Johvon Jermaine McGowan-Morris Respondent Katie Doherty, for the appellant Carter Martell, for the respondent Heard: November 22, 2024 On appeal from the acquittal entered by Justice Daniel F. Moore of the Ontario Court of Justice on February 14, 2022. Trotter J.A.: A. Introduction [1] This appeal requires us to consider the powers of the police when conducting a search of a vehicle pursuant to s. 12(3) of the Cannabis Control Act, 2017, S.O. 2017, c. 26, Sched. 1 (“the CCA” or “the Act”). The section empowers a police officer who has reasonable grounds to believe that the Act is being contravened to conduct a warrantless search of a vehicle or boat and any person found in it. [2] The respondent was a passenger in a Jeep that the police pulled over to investigate a potential contravention of the CCA. Another passenger, Dontray Williams, ran from the vehicle. The police caught Mr. Williams and forcibly grounded him. They removed the respondent from the Jeep and grounded him too. The police found two handguns and an extended magazine in the Jeep. [3] The respondent and Mr. Williams were tried together on various firearms offences: Criminal Code, R.S.C. 1985, c. C-46, ss. 86(1), 86(2), 91(1), 92(1), 92(2), 94(1), and 95(1). Both applied to exclude the fruits of the search of the Jeep based on violations of ss. 8, 9, 10(a), and 10(b) of the Canadian Charter of Rights and Freedoms. The trial judge held that the respondent’s rights under ss. 9, 10(a), and 10(b) were infringed and excluded the evidence against him under s. 24(2) of the Charter. The respondent was acquitted. The trial judge did not exclude any evidence as it related to Mr. Williams. His trial continued, but he too was acquitted. [4] The Crown appeals the trial judge’s findings that the respondent’s rights were violated or, alternatively, his decision to exclude the evidence of under s. 24(2) of the Charter. The following reasons explain why I would allow the appeal and order a new trial. B. the facts [5] The events giving rise to this case occurred on August 23, 2020. They were captured on video from a police car camera. [6] There were four people in the Jeep that night. Dimitri Apostolos was driving the vehicle. He was accompanied by his girlfriend, Anastasia Georgiou. At about 9:00 p.m., Mr. Apostolos and Ms. Georgiou picked up Mr. Williams and the respondent. [7] The four of them drove to various locations in Toronto to record video footage. Mr. Williams, a musical artist, was making a music video for one of his songs. The respondent performed in the video. Mr. Apostolos operated the camera. Ms. Georgiou was not directly involved in the making of the video. [8] Eventually, the Jeep was parked on Gerrard Street East. Mr. Apostolos and Mr. Williams got out of the car and were filming nearby on the sidewalk. The other two remained in the vehicle. Ms. Georgiou sat in the front passenger seat and the respondent sat in the rear seat on the driver’s side. [9] Police Constables Osman and Joyce were on patrol in the area in a marked police car. P.C. Osman testified that they drove past the Jeep at approximately 10:40 p.m. and detected an odour of marijuana. The officers decided to investigate. P.C. Osman turned his car around and stopped behind the Jeep. Mr. Williams and Mr. Apostolos walked over to the police car. Mr. Williams was smoking a joint. The two men told the officers what they were doing. P.C. Osman recognized Mr. Williams from a wiretap project he had been involved in, which resulted in Mr. Williams being convicted of firearms offences. [10] After Mr. Apostolos and Mr. Williams finished shooting the video, they got back into the Jeep – Mr. Apostolos in the driver’s seat, and Mr. Williams in the passenger-side rear seat. At 10:43 p.m., the Jeep started to pull away. However, P.C. Osman testified that Mr. Williams still had the cannabis in his hand when he got into the Jeep. He immediately activated the lights of the police car and stopped the Jeep. He intended to conduct a search under the CCA. [11] It is helpful at this point to describe the legal framework of s. 12 of the CCA. The relevant portions of the provision read as follows: Transporting cannabis 12 (1) No person shall drive or have the 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. Exception (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. 2018, c. 12, Sched. 1, s. 12 (1). Search of 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. [Emphasis added.] [1] [12] As P.C. Osman approached the Jeep, Mr. Williams attempted to get out of the vehicle. He complied with the officer’s direction to get back in. P.C. Osman said that he did not realize there were four people in the Jeep until he was at the driver’s side front door. He called for back-up because he did not want to be outnumbered. [13] P.C. Osman told the occupants of the Jeep that he stopped them because they were not allowed to have cannabis inside the vehicle. As P.C. Osman stood by the driver’s side door, he noticed that the respondent and Mr. Williams were “sweating profusely”. Both men appeared nervous. He testified that Mr. Williams repeatedly looked around, while the respondent stared blankly at the officer and remained silent. Mr. Williams remonstrated with the officer, telling him he had “outed” (i.e., extinguished) the cannabis. P.C. Osman responded, “It’s right there in your hand, brother.” Evidently, Mr. Williams was not aware that his unlit joint ran afoul of s. 12(1) of the CCA. [14] P.C. Osman testified that this vehicle stop was “tense”. He thought something was up with the occupants. He observed what he thought was a bulge near the bottom of the respondent’s sweater. He had safety concerns while he awaited back-up – he thought there might be a gun in the Jeep. He was trying to keep the situation calm. [15] At 10:48 p.m., as back-up units arrived on the scene, Mr. Williams ran from the Jeep. Chaos ensued. One officer testified that he heard Mr. Williams yell “run”, whereas another interpreted it as “gun”. Mr. Williams was caught immediately and taken to the ground forcefully by several officers. Other officers removed Mr. Apostolos and Ms. Georgiou from the Jeep at gunpoint. The respondent was removed from the back seat of the Jeep and grounded with what the trial judge described as “a fair degree of force.” [16] At 10:49 p.m., P.C. Osman discovered a handgun in a satchel in the footwell of the rear driver’s side passenger seat, where the respondent had been seated. He then advised all of the occupants that they were under arrest for the unlawful possession of a firearm. At 10:50 p.m., he found another satchel where Mr. Williams had been seated, which contained a second handgun. He also found an extended magazine on the backseat. At 10:52 p.m., Mr. Williams was advised of his rights under s. 10(b) of the Charter. At 10:58 p.m., the respondent was also advised of his s. 10(b) rights. [17] The respondent was taken to a police station. He required his mother’s assistance in contacting a lawyer. The police called the respondent’s mother at 12:32 a.m. He was able to speak to a lawyer at 1:08 a.m. C. the trial judge’s rulings [18] As noted above, the respondent was successful in having the fruits of the search excluded under s. 24(2) of the Charter; but Mr. Williams was not. In what follows, I focus mainly on the trial judge’s ruling as it pertains to the respondent. [19] The trial judge found that s. 10(a) of the Charter was infringed because, while P.C. Osman advised the occupants of the reason for the stop (i.e., there was marijuana unlawfully in the Jeep), he did not tell them that they were going to be searched. As the trial judge said: While Officer Osman advised that the reason for the stop was because they were not allowed to have cannabis in the vehicle, he did not tell them that they were going to be subjected to a search. That was the reason for their detention. That they had an obligation to submit to a search. While there is no requirement that P.C. Osman read out the wording of the section or make a demand, I find that what was said did not comply with section 10(a) and Mr. Williams and Mr. McGowan-Morris’ 10(a) rights were violated. [20] The trial judge also found that the police infringed the respondent’s s. 10(b) rights. After he stopped the Jeep and approached the driver’s side door, P.C. Osman did not provide the informational component of s. 10(b) to the driver or any of the occupants. The Crown at trial invited the trial judge to apply R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3, to s. 12 of the CCA. Orbanski is a case involving roadside stops to screen for impaired drivers. As discussed below, the Supreme Court of Canada held that the right to counsel is suspended for the brief duration required for police officers to assess drivers for sobriety. [21] Orbanski was applied to CCA stops in R. v. Grant, 2021 ONCJ 90. The trial judge declined to apply Grant because he found that stops under the CCA are more intrusive: In my view, this is a much more significant intrusion into personal liberty and security of the person than the screening of impaired drivers. Suspending the right to counsel does not in any way lessen that intrusion for the vast majority of passengers, in the same way that it does in impaired driver screening. [22] The trial judge also observed that s. 12 of the CCA provides no time constraints. As will be canvassed below, compared to the impaired driving provisions at issue in Orbanski, s. 12 does not require the police to conduct their searches with any sense of immediacy or urgency. The trial judge found that any practical difficulties in implementing the right to counsel at roadside, even with more than one vehicle occupant, would be minor and, in any event, could not justify non-compliance with the informational component of s. 10(b) of the Charter. Thus, the police violated the respondent’s s. 10(b) rights. [23] However, the trial judge concluded that the police did not cause a second breach of the respondent’s s. 10(b) rights after he was arrested. He found that, while the delivery of the informational component of s. 10(b) was “not a model of immediacy”, he declined to find that it amounted to a violation. Similarly, the trial judge found that the police did not fall short in their implementational obligations under s. 10(b) when dealing with the respondent at the station. [24] The trial judge rejected Mr. Williams’ claim that his rights under s. 9 of the Charter were infringed. After all, he attempted to run from the vehicle. [25] However, the trial judge said: “[t]he forceful removal of [the respondent] from the vehicle is a different matter.” He found that P.C Osman had no grounds to believe that the respondent had committed any offence. Rather, P.C. Osman’s claim that the respondent was hiding something underneath his clothing was nothing more than a hunch. In concluding that s. 9 of the Charter was infringed, the trial judge said: Importantly, P.C. Osman testified that he had not heard anyone yell “gun” to justify a possible officer safety issue. So the only real justification for P.C. Osman’s detention of Mr. McGowan-Morris was section 12 of the Cannabis Control Act. He certainly would have been justified in asking him to step out of the vehicle and submitting to a search of his person, but pulling him out and grounding him in the manner that he did, exceeded his authority under the Cannabis Control Act and was therefore unlawful. [26] The trial judge made other Charter findings that are not at issue on this appeal, but for the sake of completeness, I address them briefly. He found that the respondent and Mr. Williams failed to establish that they were racially profiled that night. He also found that the search of the Jeep did not violate s. 8 of the Charter because it was authorized under s. 12(3) of the CCA. However, s. 8 was infringed by the failure of the police to file a report to a justice under s. 489.1 of the Criminal Code: see R. v. Garcia-Machado, 2015 ONCA 569, 126 O.R. (3d) 737. The trial judge said: “while I find it to be a violation, I do not expect too much time will be spent on this issue in 24(2) submissions.” [27] At a later date, the trial judge delivered a separate ruling on s. 24(2) of the Charter. He found that the infringement of the respondent’s ss. 9, 10(a), and 10(b) Charter rights had a “sufficient, contextual, and temporal connection to the firearms, ammunition, and magazine to grant a s. 24(2) analysis.” In other words, the evidence was “obtained in a manner” that infringed the respondent’s Charter rights. Having made this finding, the trial reached the following conclusions: The s. 9 breach is extremely serious in my view. Significant physical force was applied to Mr. McGowan-Morris without lawful authority. My ruling essentially found that he was assaulted by a police officer. Section 10(a) and (b) breaches are also made more serious by the addition of the s. 9 breach because PC Osman attempted to use the observations he made while Mr. McGowan-Morris was being detained without provision of s. 10(a) and (b) to justify the force to be applied to Mr. McGowan-Morris. In my view, the seriousness of these breaches strongly pulls towards the exclusion of the evidence. The unlawful use of force against Mr. McGowan Morris which is precisely what s. 9 is designed to prevent, combined with the s. 10(a) and (b) breaches, mean that the impact on Mr. McGowan-Morris’ Charter protected interest is extremely significant. This factor also strongly favours exclusion of the evidence. Although the independently existing reliable evidence strongly pulls in favour of inclusion, applying the analysis set out in McGuffie, in my view, the admission of the guns, ammunition, and magazine in the evidence against Mr. McGowan-Morris would bring the administration of justice into disrepute. Mr. McGowan-Morris’ application to exclude the evidence is granted. The guns, ammunition and magazine are excluded from evidence in relation to him. [Emphasis added.] [28] The Crown called no further evidence against the respondent, and he was acquitted. D. issues on appeal [29] The appellant submits that the trial judge erred in finding that the respondent’s rights were infringed under ss. 9, 10(a), and (b) of the Charter. In the alternative, the appellant submits that the trial judge erred in his analysis under s. 24(2). The respondent contends that the trial judge’s reasons reveal no errors of law that would permit this court to upset his findings under ss. 9, 10(a), and (b), or his conclusion under s. 24(2) of the Charter. [30] I agree with the appellant that the trial judge erred in finding that the respondent’s rights under ss. 9 and 10(a) of the Charter were infringed. However, I would not disturb his finding that s. 10(b) was infringed. Undertaking a fresh s. 24(2) analysis, as the circumstances require, I would not exclude the evidence discovered during the search of the Jeep. E. Section 10(a) – The Right to be Informed of the Reasons for Detention [31] The appellant submits that the trial judge erred in finding that the respondent’s s. 10(a) Charter rights were infringed. The trial judge found that, although P.C. Osman told the occupants of the Jeep that they were stopped because cannabis was unlawfully in the vehicle, they should have been told that they would all be searched pursuant to s. 12(3) of the CCA. The appellant argues that s.10(a) of the Charter does not require a police officer to advise a detainee of the investigative steps that may be taken during what is otherwise a lawful detention. Thus, P.C. Osman was not obliged to tell the occupants of the Jeep that they would be searched; rather, he satisfied the requirements of s. 10(a) by telling them that they could not have cannabis in the car. [32] The respondent submits that the trial judge did not err in his approach. Section 12(3) furnishes police officers with “an exceptionally broad investigative power” to search a vehicle, and all occupants of the vehicle, for evidence of an offence under s. 12(1) of the CCA. This is unique because it is only the driver of a vehicle who may be charged with an offence under the CCA. In these circumstances, passengers require more information to understand the nature and implications of their detention, and whether they are required to submit to a search. I do not accept this submission. [33] Section 10(a) of the Charter provides: 10 Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor… [34] Of all the legal rights in the Charter (ss. 7-14), the scope of s. 10(a) is among the least-developed in the jurisprudence. This is because, in most cases when 10(a) is triggered, s. 10(b) assumes greater prominence. There is an intimate link between these two rights: see R. v. Kelly (1985), 17 C.C.C. (3d) 419 (Ont. C.A.), at p. 424. [35] The essential nature of s. 10(a) of the Charter, and its common law roots, was discussed in R. v. Nguyen, 2008 ONCA 49, 231 C.C.C. (3d) 541, at para. 16, where this court said: The right to be informed of the reasons for detention as enshrined in the Charter and the Canadian Bill of Rights is a codification of the common law described most famously in the case of Christie v. Leachinsky, [1947] A.C. 573 (H.L.). In Christie, the common law right was essentially described as follows: a person is entitled to be informed of the reason why he or she is being restrained, unless the circumstances are such that he or she knows why. The reasons do not need to be expressed in technical or precise language, but must, in substance, inform the person as to the reason why the restraint is being imposed. [Emphasis added.] [36] The Supreme Court of Canada has explained that the purpose of s. 10(a) is “to ensure that a person ‘understand generally the jeopardy’ in which he or she finds herself”: R. v. Latimer, [1997] 1 S.C.R. 217, at para. 28, citing R. v. Smith, [1991] 1 S.C.R. 714, at p. 728. The Court has identified two rationales for the right guaranteed by s. 10(a). First, it protects individual liberty by guaranteeing that “one is not obliged to submit to an arrest [or detention] if one does not know the reasons for it”: R. v. Evans, [1991] 1 S.C.R. 869, at pp. 886-887. Second, it safeguards the right to counsel because “[an] individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy”: Evans, at pp. 886-887, citing R. v. Black, [1989] 2 S.C.R. 138, at pp. 152-153. [37] To comply with s. 10(a), the police must adequately communicate the reason(s) for the detention, and they must communicate those reasons promptly: R. v. Roberts, 2018 ONCA 411, 360 C.C.C. (3d) 44, at para. 63; R. v. Gonzales, 2017 ONCA 543, 136 O.R. (3d) 225, at paras. 122-123. These are referred to respectively as the informational and temporal components of s. 10(a). [38] It is only the informational component of s. 10(a) that is in issue in this case – the adequacy of P.C. Osman’s explanation for why the occupants of the Jeep were stopped. [39] The 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] 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. [40] Section 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. [41] These 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. [42] Respectfully, the trial judge erred in his conclusion that P.C. Osman violated s. 10(a) of the Charter because he failed to advise the respondent of the investigative steps that might be undertaken in the circumstances. Specifically, P.C. Osman was not required to inform the respondent that the police would search him, the Jeep, or any of the other occupants. It sufficed to simply tell them that they were stopped because they could not have cannabis in the vehicle. F. Section 10(b) – The Right to Counsel (1) Introduction [43] The appellant submits that the trial judge erred in failing to find that the right to counsel in s. 10(b) of the Charter was suspended during the stop authorized by s. 12 of the CCA. The appellant argues that CCA stops are analogous to roadside sobriety stops, the context in which the Supreme Court in Orbanski held that the right to counsel is briefly suspended. [44] The respondent submits that there are important features of s. 12 CCA stops that render the analogy to Orbanski inapt. Thus, the right to counsel should not be suspended during CCA stops. However, the respondent offers nuance to the required approach: Police may question the driver about cannabis consumption and about whether there is cannabis in the vehicle, and make observations of the driver, passengers and items in plain view. But once the police have reasonable grounds for a search, and form an intention to search the vehicle and its occupants, the occupants are entitled to their full rights under s. 10(b) of the Charter. [Emphasis added.] I return to this submission below. (2) The Holding in Orbanski [45] In order to assess the relative merits of these submissions, it is necessary to review Orbanski in some detail. I will then examine how the trial courts in this province have grappled with the issue in the context of the CCA, followed by an analysis of the trial judge’s ruling. [46] In Orbanski, the Supreme Court of Canada considered whether the right to counsel was suspended during roadside sobriety stops authorized by Manitoba legislation (at the time of the events, the Highway Traffic Act, S.M. 1985-86, c. 3, C.C.S.M. c. H60). Based on powers granted in this legislation, the police pulled over two drivers and asked them questions to assess their sobriety; one accused was asked to perform sobriety tests. Neither driver was advised of their rights under s. 10(b) of the Charter. [47] The legislation said nothing about the suspension of the right to counsel. Thus, the issue on appeal was whether the statute implied a limit on s. 10(b). The Court had to answer this question to determine whether the failure of the police to provide the accused with their right to counsel was “prescribed by law” and could therefore be justified under s. 1 of the Charter. If not, then the evidence stemming from the sobriety tests would be analyzed, and possibly excluded, under s. 24(2). That is also the issue in this case because s. 12 of the CCA does not explicitly suspend the right to counsel. [48] The majority of the Court determined that the legislation imposed a limit, in the form of a suspension, on the right to counsel and that this limit was demonstrably justified under s. 1 of the Charter. However, before arriving at this determination, Charron J., writing for the majority at paras. 23-28, identified a number of contextual factors that would “govern” her analysis. The appellant submits that a number of these factors are relevant to the CCA context. [49] First, Charron J. emphasized that the use of a vehicle on a highway is an inherently dangerous activity that is subject to regulation and control for the protection of life and property: at para. 24, citing Dedman v. The Queen, [1985] 2 S.C.R. 2, at p. 35. She identified the overwhelming need to ensure safety on our roads and highways: at para. 24. [50] Second, Charron J. underscored the difficulties faced by police officers tasked with protecting the public from the “menace posed by drinking and driving”: at para 25. This is due in part to the fact that driving after consuming alcohol is not always illegal. It depends on the amount consumed. The line between legal and illegal consumption is not always easy to discern. Thus, Charron J. held that “officers must be equipped to conduct this screening, though with minimal intrusion on the individual motorist’s Charter rights”: at para. 25. [51] Third, Charron J. highlighted that impaired drivers pose an ongoing danger to others and, therefore, the police must intervene early. As she said: “The aim is to screen drivers at the road stop, and not at the scene of the accident”: at para. 26. However, she added that: “Effective screening should also be achieved with minimal inconvenience to the legitimate users of the highway”: at para. 26. [52] Fourth, Charron J. emphasized that the regulation and control of impaired driving is achieved through an “interlocking scheme of federal and provincial legislation”: at para. 27. As she said: “The Court must carefully balance the Charter rights of motorists against the policy concerns of both Parliament and the provincial legislatures”: para. 27. [53] With these factors in mind, Charron J. turned her attention to s. 1 of the Charter, at para. 33: The s. 10(b) right to counsel, however, is not absolute. It is subject, under s. 1 of the Charter, “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. The analysis under s. 1 of the Charter involves two separate components: the proposed limit must be prescribed by law and, if it is, it must be reasonable and demonstrably justified in a free and democratic society. [54] In terms of being prescribed by law, a limit may be explicitly addressed in legislation; alternatively, it may arise “by necessary implication from the operating requirements of the governing provincial and federal legislation”: at para. 35; see also R. v. Therens, [1985] 1 S.C.R. 613, at p. 645; and R. v. Thomsen, [1988] 1 S.C.R. 613, at pp. 652-53. [55] Justice Charron found that the limit on the right to counsel arose by necessary implication from the operational requirements of the Manitoba Highway Traffic Act: at paras. 52-53. The Court concluded that a limit on the right to counsel was prescribed during the period necessary to assess sobriety in a quick manner that avoids prolonged detention. Key to the majority’s analysis was the concern that requiring the police to advise a roadside detainee of the right to counsel would unduly prolong the situation, resulting in longer and unnecessary detentions. [56] Justice Charron also found that the suspension of s. 10(b) flowed from the strict time constraints that the Criminal Code placed on police officers. The sobriety checks at issue in Orbanski were often used to determine if the police had reasonable grounds to demand a breathalyzer test. However, at the time, the police faced a two-hour time limit in which to make a breathalyzer demand.[2] Thus, providing the right to counsel could have pushed the time frame beyond those two hours and hindered the investigative purposes of the Manitoba Highway Traffic Act. [57] The Court further concluded that the limit was a reasonable one, within the meaning of R. v. Oakes, [1986] 1 S.C.R. 103. Again, Charron J. stressed the limitation on the right to counsel has “strict temporal limits”: at para. 57. [58] Turning to proportionality, Charron J. wrote that any risk of self-incrimination during a sobriety stop was addressed by limiting the use made of an accused person’s response to police questioning. The answers may only be used to supply the grounds for making a breathalyzer demand, and not as positive proof of impairment: at para. 59, citing R. v. Milne (1996), 28 O.R. (3d) 577(C.A.), leave to appeal refused, [1996] S.C.C.A. No. 353. [59] In his dissenting reasons, LeBel J. concluded that the Manitoba Highway Traffic Act did not impliedly limit the right to counsel. Thus, the infringement of s. 10(b) at issue could not be justified pursuant to s. 1. Although he acknowledged the serious danger posed by drunk driving, he refused to adopt “a strained legal interpretation to sidestep inconvenient Charter rights for the greater good”: at para. 70. Justice LeBel observed that neither accused was legally required to answer police questions, participate in sobriety tests, or otherwise participate in the investigation; however, this might not have been known to them without consulting counsel. As he said, at para. 82: “There appears to be some concern that they might otherwise choose to exercise them [i.e. s. 10(b) rights] … In this manner, effective law enforcement would come to depend on individuals’ ignorance of their legal rights.” [60] Over the years, Orbanski has been cited and applied hundreds of times, sometimes by the Supreme Court. It is not necessary to distill and summarize this jurisprudence. But for present purposes, it is worth noting the reference to Orbanski in R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, a case dealing with s. 9 of the Charter in the context of investigative detentions. The Court considered the Crown’s submission that a general suspension of the right to counsel during the course of short “investigatory” detentions was necessary and justified under s. 1 of the Charter. This was said to derive from the operating requirements of the common law police power to detain individuals for investigative purposes. [61] The Court rejected this extension of Orbanski. McLachlin C.J.C. and Charron J. wrote, at para. 45: There is no question that the right to counsel, as any other right guaranteed by the Charter in case of detention, is subject to reasonable limitations as prescribed by law under s. 1. For example, in R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3, the fact that there was a detention was not in issue. Indeed, the police directive to pull over coupled with the restrictive demand that the driver perform sobriety tests provided a clear basis to ground a detention. Charter rights were therefore triggered, though ultimately the breach was saved under s. 1 of the Charter. However, we are not persuaded, on this appeal, that a case has been made out for a general suspension of the s. 10(b) right to counsel for investigatory purposes, with or without some form of use immunity. In our view, the invitation by counsel for the Court to consider s. 1 in order to suspend the right to counsel is premised on an unduly expansive notion of the meaning of detention that is inconsistent with the purposive approach to detention taken in Grant. Because the definition of detention, as understood in these reasons, gives the police leeway to engage members of the public in noncoercive, exploratory questioning without necessarily triggering their Charter rights relating to detention, s. 1 need not be invoked in order to allow the police to effectively fulfill their investigative duties. [Emphasis added.] [62] This cautious approach to the suspension of s. 10(b) Charter rights through the recognition of implied operating requirements in statutory or common law police powers must inform our approach to s. 12 of the CCA. (3) Section 12 of the CCA [63] Although he relevant portions of s. 12 of the CCA are reproduced in para. 11, above, I include them here for convenience: Transporting cannabis 12 (1) No person shall drive or have the 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. Exception (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. 2018, c. 12, Sched. 1, s. 12 (1). Search of 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. [Emphasis added.] [64] As the section heading states, s. 12 regulates the transport of cannabis. In particular, it is focused on the storage of cannabis that is being transported. The clear purpose is to ensure that cannabis is not readily available to any person in a vehicle or boat. The public safety goal is to prevent the use of cannabis by the driver or the occupants of a car or boat while it is being operated: R. v. Sappleton, 2021 ONSC 430, at paras. 46 and 50; R. v. Moulton, 2023 ONCJ 140, at para. 234. [65] It is an offence to infringe this provision, which may result in a fine for an individual of up to $100,000, a term of imprisonment as long as one year, or both: ss. 22, 23. As noted above, only the driver or a person in care or control of the vehicle or boat may be liable; the offence does not apply to passengers. Even so, s. 12(3) empowers a police officer, on reasonable grounds, to search, without a warrant, a vehicle or boat and any person in it (i.e., passengers). [66] As noted in R. v. Leonard, 2025 ONCA 63, at para. 9, there are conflicting decisions in the trial courts as to whether this provision, and a near identical provision in the s. 32(5) of the Liquor Licence Act, R.S.O. 1990, c. L.19 (LLA), permits the search of the trunk of a car: see also R. v. Guerrier, 2024 ONCA 838, at para. 19. This court has yet to explore the full scope of the search power in s. 12(3). It is not necessary to do so for the purposes of this appeal. Suffice it to say, this search power, without a warrant, is broad and potentially very intrusive. (4) Section 12 of the CCA in the Trial Courts (a) Introduction [67] Numerous judges in this province have considered the interaction of s. 10(b) of the Charter with s. 12(3) of the CCA. It is helpful to review a few of these decisions to illustrate the difficulty of the issue, as well as the different factual circumstances in which the issue may arise. [68] Although some judges have concluded that s. 10(b) is suspended and others have not, their analyses are not necessarily in tension. Rather, a common theme emerges from the trial court case law. That is, the question of whether s. 10(b) is suspended during a CCA investigation depends on the circumstances of the case and looks to factors such as the length of the detention, the suspicions of the officers, the operational requirements of the investigation, and concerns for public safety. [69] But this approach requires clarification. With respect, some trial decisions have conflated the analysis conducted in Orbanski with other, case-specific reasons that might justify the suspension of the right to counsel. As I will explain more fully below, a suspension of the right to counsel under s. 10(b) is only lawful in two circumstances. The first circumstance is where the police are faced with exceptional circumstances and cannot be reasonably expected to immediately provide the right to counsel. Those exceptional circumstances will require a case-specific inquiry and do not engage s. 1 of the Charter. [70] The second circumstance arises where a limit on s. 10(b) is prescribed by law and justified under s. 1. That determination is not case-specific; it is categorical. It looks to the impact of the law, not of the situation, on the right. Thus, case-specific concerns such as officer safety, among others, do not weigh on a s. 1 analysis. Section 1 of the Charter is not a tool that permits a court to arrive at different answers in different cases when looking at the same piece of legislation: see Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, at para. 20; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, at para. 39; and Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, at para. 36. [71] The Supreme Court in Orbanski relied on the second analytical pathway, not the first. They looked at whether the statute, not the situation, necessarily implied a limit on s. 10(b). Their analysis was an exercise in statutory interpretation that provided a singular answer to an unqualified issue: whether s. 10(b) is always suspended during roadside sobriety stops under the Manitoba Highway Traffic Act. The same mode of analysis should govern the same question under the CCA. (b) Review of the Trial Court Decisions [72] I start with the Ontario Court of Justice decision in Grant, a decision that the trial judge declined to follow. In Grant, the police stopped a vehicle under the Highway Traffic Act, R.S.O. 1990, c. H.8. (“HTA”), for an expired validation tag. During this encounter, the police formed grounds to believe that there was marijuana in the vehicle, contrary to the CCA. A police officer advised the driver of his intention to conduct a search of the vehicle and its occupants. When the sole passenger got out of the car, the police saw that he was armed with a handgun. Both the occupant and driver were arrested. The police soon discovered a variety of drugs in the car. Both occupants were prosecuted on gun and drug offences. [73] The trial judge, Calsavara J., was satisfied that the officers had reasonable grounds to conduct a search under the CCA. In applying Orbanski, Calsavara J. discussed the public safety purposes of s. 12 of the CCA, noting the comparable problems of driving impaired by alcohol and by drugs. As she said, at para. 127: There is no case directly on point that I am aware of, but it would seem to me in applying the same principles that a suspension here is also justified. The exercise of the rights guaranteed by s. 10(b) would be incompatible with a brief roadside detention required to conduct a search of the occupants and vehicle for road safety purposes – assuming it is a brief detention. [Emphasis in original.] [74] However, at the end of the day, it is unclear whether Calsavara J. definitively resolved the Orbanski issue. As she said, at paras. 130-132: Similarly, in this case, the extent to which a suspension of 10(b) is a justifiable limit to conduct a search pursuant to CCA and for how long need not be squarely addressed to resolve this s. 10(b) issue. From the moment the roadside stop transitioned to a search pursuant to CCA to the time the gun was found, was likely inside of five minutes. Once the gun was seized, the defendants were immediately arrested and immediately read their rights to counsel. I have also taken into account the cumulative effect of the suspension of 10(b) on Garnett Grant’s rights at each stage of the traffic stop and find it, in totality, fell within the scope of reasonable and necessary measures for road safety purposes and a justifiable limit on his rights under 10(b) of the Charter. Had the gun not been found and the rights were suspended for the further 39 minutes it took to search the vehicle – if the search proceeded in the same fashion – I might have come to a different conclusion. [Emphasis added.] [75] The last part of this passage, which I have emphasized, gets to the nub of the issue under consideration: searches under the CCA may not necessarily be brief. Moreover, at the beginning of this type of police-citizen encounter, it is not known how long it might last. The CCA purpose of the stop quickly disappeared in Grant, as it did in this case, and in some of the other cases discussed below. Evolving events transformed the dynamics of these encounters in important ways, giving rise to other possible reasons for suspending the right to counsel. But that will not always be the case. Sometimes a CCA stop will be no more than that. Thus, the question of whether the right to counsel is suspended will turn solely on the application of Orbanski. [76] R. v. Kanneh, 2022 ONSC 5413, is another example of an HTA vehicle stop that morphed into a CCA search, leading to the discovery of firearms and drugs. After considering Orbanski and related cases, Petersen J. held, at para. 60: “I agree with the Crown that a roadside investigation under the Cannabis Control Act is analogous to an investigation under other regulatory statutes, such that a brief suspension of s. 10(b) Charter rights will apply.” She went on to say, at para. 63: The jurisprudence clearly establishes that a temporary suspension of rights to counsel is justifiable in such circumstances pursuant to s.1 of the Charter. But the suspension must be brief and is only reasonable in so far as it can be justified by concerns for officer or public safety, or by the operational requirements of the exercise of statutory and common law police powers to stop a motor vehicle for road safety purposes: Suberu, at para. 42; Orbanski, at paras. 45-60; Wilson, at paras. 61-66; Graham, at para. 51; R. v. Grant, 2021 ONCJ 90, at para. 127 (“Grant (ONCJ)”); and R. v. Commisso, 2020 ONSC 957, at paras. 36 and 44. The extent to which a suspension of s. 10(b) rights can continue to be justified under s.1 of the Charter, where the purpose of the roadside detention transitions from a Highway Traffic Act violation to the investigation of a different offence, is a context-specific issue that will need to be determined based on the specific facts of each case. [Emphasis added.] [77] Justice Petersen concluded that the period of time that elapsed before the accused was advised of his right to counsel, 55 minutes, was not justified under s. 1 of the Charter. In all of the circumstances, the suspension was not a “justifiable limit” on the accused person’s Charter rights. [78] In R. v. Morgan, 2023 ONSC 6855, the police pulled over a vehicle for a suspected violation of the HTA (a driver using a mobile phone). Similar to the case under appeal, the applicant, who was a passenger, started to get out of the car. He was told to get back in. When a police officer approached the car, he saw what he thought to be cannabis “shake” stuck to the driver’s hand. He commenced a CCA investigation. Both the driver and the applicant were asked to get out of the car. Both were handcuffed and searched. A firearm was discovered in the accused’s jacket. He applied to exclude the evidence discovered by the police based on violations of ss. 8, 9, 10(a), and 10(b) of the Charter. [79] Justice Rahman (now a justice of the Court of Appeal) found that the accused’s s. 10(b) rights were infringed because the police did not discharge their informational obligations until 10 minutes after the HTA stop, and nine minutes after the detention under the CCA. He rejected the Crown’s submission that the accused’s s. 10(b) rights were suspended during the traffic stop that turned into a CCA investigation. He quoted the passage from Petersen J.’s judgment, reproduced above, also emphasizing her observation that the question of whether s. 10(b) rights are suspended is a “context-specific issue that will need to be determined based on the specific facts of each case.” Rahman J. concluded, at para. 58: “Assuming that s. 10(b) rights are suspended during roadside CCA investigations, the delay here cannot be justified. There were no safety or operational concerns that justified the delay in advising the applicant of his s. 10(b) rights.” [80] The same factual pattern (i.e., HTA stop, CCA investigation, discovery of firearms) was evident in R. v. Dlamini, 2024 ONSC 6282. Justice Lucille Shaw found that the delay in advising the accused of their ss. 10(a) and (b) rights was justified by officer safety concerns. Like this case, the officer that stopped the vehicle was concerned about being outnumbered by the occupants of the vehicle; he was awaiting the arrival of other officers for back-up purposes. [81] Justice Shaw reviewed some of the cases referred to above (and others) that support the temporary suspension of s. 10(b) rights during a CCA investigation. Applying a fact-specific approach, Shaw J. found that the applicants were detained for approximately 18 minutes. There was an eight-minute delay in informing them of their right to counsel after they were informed of the CCA reason for their detention, which as noted above, was delayed for officer safety reasons. She found the delay reasonable; there was no breach of s. 10(b) of the Charter. [82] In R. v. Osman, 2023 ONSC 7087, the same CCA issue arose in the context of a random stop as part of a R.I.D.E. program. During a search pursuant to s. 12(3) of the CCA, the police discovered a firearm. The search was conducted without first advising the occupants of their rights under s. 10(b) of the Charter. The trial judge, Agarwal J., found that the accused’s rights under s. 10(b) were infringed and that the CCA did not impliedly limit the right to counsel, but that the evidence should not be excluded under s. 24(2). On the first issue, he said the following, at paras. 55-56: The Crown argues that a detainee’s section 10(b) right is suspended during a roadside investigation under the Cannabis Control Act. See R. v. Kanneh, 2022 ONSC 5413, at para. 60; R. v. Morgan, 2023 ONSC 6855, at paras. 56-57. The right to counsel, like any other Charter right in case of detention, is subject to reasonable limitations as prescribed by law under section 1 of the Charter. This limitation may be implicit in the operating requirements of a statute. See R. v. Orbanski, 2005 SCC 37, at para 38. But whether those operational requirements are necessary to suspend a detainee’s section 10(b) right is necessarily “case-specific”. See Orbanski, at para 47.[3] On the facts here, I’m not persuaded that Osman’s section 10(b) right need have been delayed (for safety concerns) or otherwise suspended (for operational reasons). When the police directed Osman to exit the car, the situation was calm. At that stage, the police didn’t know about the safety risk posed by the gun. They were merely searching for an open package of cannabis. There were at least 10 other officers present, all in a relatively controlled environment. The “exigencies” of street policing didn’t arise here (for example, the police weren’t outnumbered or in a high-crime area). The police should’ve told Osman that he had a right to speak to his lawyer immediately after doing the pat-down search. [83] As these cases demonstrate, CCA searches may arise in different scenarios. A CCA search may be authorized in circumstances where the only person in a vehicle is the driver, or in multiple occupant scenarios, where each person may be subjected to a search. As in this case, a CCA search may be the sole reason for stopping a vehicle. In others, grounds for a CCA search may develop during a stop authorized for other reasons. Indeed, a CCA search may well be the natural progression of a sobriety screening stop, as in Osman. (5) Analysis (a) Introduction [84] In 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] 1 S.C.R. 1233, at p. 1242.[4] Those other exceptional circumstances, however, are not relevant to the present appeal. [85] Suberu 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] 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. [86] Suspensions stemming from concerns for officer and public safety are distinct from suspensions flowing from justified limits under s. 1. Safety concerns are case-specific and do not entitle a court to declare that individuals’ rights are suspended in each and every CCA investigation. That is because those concerns are not a limit “prescribed by law”; they cannot form the basis of a generalized suspension of individual rights under s. 1. Rather, in those exceptional circumstances, the scope of the right is limited internally, meaning that s. 10(b) accommodates a delay in furnishing access to counsel when the police and public face an imminent risk of harm. [87] By contrast, a limit that is prescribed by law and justified under s. 1 does entitle a court to generally declare that a statute suspends a right in each and every case. That analysis is not case-specific. For present purposes, the relevant question is whether a prescribed limit arises by necessary implication from “the operating requirements of a statute”. The question is not whether a limit arises from the operating requirements of a particular investigation. If it was, then the limit would not be prescribed by law and could not be subject to s. 1. Therefore, the inquiry into whether s. 10(b) is suspended is only case-specific when there are relevant officer and public safety concerns (or other exceptional circumstances). (b) The CCA Does Not Contain an Implied Limit on Section 10(b) [88] I 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. [89] I begin with the similarities. I agree with Ms. Doherty’s submission that, like roadside sobriety screening, public safety considerations are at the heart of s. 12 of the CCA. Whether a person is impaired by alcohol, drugs, or both, the danger to the public is the same. Both are serious social problems that put other citizens at significant risk of serious bodily harm or death. This is a well-accepted proposition. [90] The 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). [91] Beyond 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. [92] Section 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. [93] Another significant difference from Orbanski relates to the temporal dimension of the relevant investigative procedure. In Orbanski, the Supreme Court explained that police officers must conduct their sobriety checks quickly because the police were only entitled to administer a breathalyzer test if they believed that an individual was driving while impaired during the preceding two hours. Thus, the legislation must have implicitly permitted a brief detention and suspension of s. 10(b) so that the police could investigate these driving offences during the strict statutory time limit and before the individual’s level of impairment was no longer detectable. [94] By 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. [95] With 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. [96] An implied limit on s. 10(b) cannot be gleaned simply from the fact that implied limits have been found in other contexts. In her submissions, Ms. Doherty relied upon the decision in R. v. Graham, 2018 ONSC 6718, in which Code J. addressed the application of s. 10(b) in relation to the analogous search power in s. 32(2)(b) of the LLA, referred to in para. 66, above. In his thorough reasons, Code J. mused that it would be “odd” if Orbanski could justify limitations on the right to counsel in relation to HTA and Criminal Code drinking and driving investigations, but not searches under the LLA. However, Code J. was not required to decide the issue because officer safety concerns soon emerged, justifying a delay in the officers’ informational duties: at para. 54, citing Suberu, at para. 42. Similarly, I decline to comment on the impact of s. 32(2)(b) of the LLA on the right to counsel. [97] In 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. [98] However, this does not end the analysis. As noted above, the respondent submits that the driver and passengers need not necessarily be apprised of their s. 10(b) rights immediately. For convenience, I repeat the respondent’s position: Police may question the driver about cannabis consumption and about whether there is cannabis in the vehicle, and make observations of the driver, passengers and items in plain view. But once the police have reasonable grounds for a search, and form an intention to search the vehicle and its occupants, the occupants are entitled to their full rights under s. 10(b) of the Charter. [Emphasis added.] [99] I agree with this qualification. However, it does not impact on the outcome of this case. P.C. Osman pulled over the Jeep because he had already formed reasonable grounds under the CCA to search the vehicle. That was his stated intention. It supplied the authorization to pull the Jeep over for that purpose. Thus, all other things being equal, the officer should have apprised the occupants of their rights immediately upon approaching the vehicle. [100] However, 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. (c) Officer and Public Safety Concerns [101] Before concluding this discussion, I return to the issue of public safety as a reason to delay or suspend the implementation of s. 10(b). As the cases from the trial courts demonstrate, public safety concerns may arise during CCA investigations. This case was not litigated on this basis, but it is important to clarify that my conclusions on the inapplicability of Orbanski in this context do not in any way impact on the operation of this body of law. [102] As discussed above, the question of whether a delay in providing the right to counsel is warranted for reasons of officer and public safety must be decided on a case-by-case basis through a “highly factual and contextual inquiry”: Brunelle, at para. 83; see also R. v. Taylor, 2014 SCC 50, 374 D.L.R. (4th) 64, at para 24; Rover, at paras. 26, 33. As explained by Doherty J.A. in Rover, at para. 27: “The police may delay access only after turning their mind to the specifics of the circumstances and concluding, on some reasonable basis, that police or public safety … justifies some delay in granting access to counsel.” By contrast, “concerns of a general or non-specific nature applicable to virtually any search” do not warrant a suspension of s. 10(b): Rover, at para. 27. [103] The trial court decisions demonstrate how and when officer safety considerations may warrant a pause in administering s. 10(b) rights. Sometimes it will not be safe for an officer or officers to execute their duties under the CCA when they are outnumbered by the occupants of the vehicle that is to be searched: see Suberu, at para. 73; Pileggi, at paras. 57-63. Officer safety may justify a period of delay until back-up arrives. In the meantime, the occupants of the vehicle must wait, detained. But this justification does not flow from the operational requirements of the CCA; it is rooted in well-settled s. 10(b) jurisprudence. (d) Conclusion [104] The trial judge was correct to find that the respondent’s s. 10(b) rights were not suspended by the application of s. 1 of the Charter. His right to counsel was violated. G. Arbitrary Detention [105] The trial judge found that the respondent’s detention was arbitrary based on what he found to be an excessive use of force by pulling the respondent from the Jeep and forcing him to the ground. As far as the officers understood, he had committed no criminal offence. And while he was detained solely for the purposes of a s. 12(3) CCA search, he could not be charged with an offence under s. 12(1). The trial judge found that, while the police would have been justified in asking the respondent to get out of the vehicle, the police were not permitted to pull him out of the vehicle and ground him in the way that they did. In his s. 24(2) ruling, the trial judge found that the officers essentially assaulted the respondent. [106] I agree with the appellant that the trial judge failed to engage with the totality of the circumstances that led to the respondent being removed from the Jeep. Had the CCA search proceeded without incident, I agree that it would not have been appropriate for P.C. Osman to exert such force. However, the trial judge was required to consider the broader context. In his testimony, P.C. Osman expressed concern about the behaviour of the respondent and Mr. Williams while they were in the back of the Jeep. He was worried for his safety. Then everything changed very quickly when Mr. Williams attempted to flee. [107] The incident was captured on video. It vividly demonstrates the chaos that ensued when Mr. Williams bolted from the Jeep. Whether Mr. Williams yelled “run” or “gun”, the police cannot be faulted for the steps that they took to regain control of the situation. Mr. Apostolos and Ms. Georgiou were removed from the vehicle at gunpoint. While the respondent was removed from the Jeep and forced to the ground, it was not at gunpoint. Moreover, his grounding was of brief duration. Fortunately, there is no indication that he sustained any injuries. [108] In my view, when the entire factual matrix is considered, which required the police to make a split-second decision “in difficult and fluid circumstances”, the respondent’s rights under s. 9 of the Charter were not violated: R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at para. 24. [109] In conclusion, and with respect, the trial judge erred in finding that the police infringed the respondent’s rights under s. 9 of the Charter. H. exclusion of evidence: S. 24(2) of the Charter [110] The appellant appeals the trial judge’s conclusion under s. 24(2) of the Charter that the items seized from the Jeep should be excluded. [111] The s. 24(2) landscape has shifted on appeal. Whereas the trial judge’s analysis was predicated on four separate Charter violations, I have concluded that the trial judge erred in his analysis concerning the respondent’s rights under ss. 9 and 10(a) of the Charter. This is relevant to the scope of appellate review. As Jamal J. confirmed in Beaver, at para. 118, when an appellate court disagrees with a trial judge’s conclusion on Charter breaches, no deference need be shown to the s. 24(2) analysis. In these circumstances, a fresh s. 24(2) analysis is required: R. v. Lafrance, 2022 SCC 32, [2022] 2 S.C.R. 393, at para. 92. [112] My s. 24(2) analysis need not be lengthy. It proceeds on the basis of the breach of s. 10(b) of the Charter, as well at the trial judge’s conclusion that s. 8 of the Charter was infringed due to the failure of the police to comply with s. 489.1 of the Criminal Code. The appellant did not appeal this aspect of the trial judge’s ruling, in which he rightly characterized the breach as minor and inconsequential. The following focuses on the application of s. 24(2) to the violation of s. 10(b). [113] Applying the framework in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, I would not characterize the breach as serious. The delay in advising the respondent of his rights was extremely brief. The timeline was then interrupted when Mr. Williams ran from the Jeep. The respondent was apprised of his rights at 10:58 p.m., 10 minutes after Mr. Williams attempted to make his escape. In the meantime, the police discovered the firearms and magazine. [114] It might be said that, on this record, there was no s.10(b) breach at all. P.C. Osman was waiting for back-up to arrive; he had concerns for his safety. But this issue appears not to have been litigated at trial. All I can do is record my observations. [115] Turning to the second Grant factor, the impact of the brief s. 10(b) breach on the respondent’s Charter-protected interests was minimal at best. Although I accept that the evidence was “obtained in a manner” that infringed the respondent’s Charter rights, it did not contribute to the discovery of the evidence in any meaningful way. There was no causal connection. I consider this to be an important mitigating factor in evaluating the impact of the breach: see Beaver, at para. 125; Pileggi, at para. 120. [116] Further, the evidence seized from the Jeep existed independently of the Charter infringement. It is unquestionably reliable. Dealing with multiple breaches, the trial judge acknowledged that this factor pulls in favour of inclusion. I agree, even more so now that we are dealing with a single, non-serious Charter violation. [117] Balancing all three Grant factors, I would not exclude any of the evidence seized from the Jeep. The administration of justice would not be brought into disrepute by the admission into evidence of two handguns and an extended magazine obtained in the circumstances of a minor breach of the respondent’s s. 10(b) Charter rights. I. disposition [118] I would allow the appeal and order a new trial. Released: May 7, 2025 “G.T.T.” “Gary Trotter J.A.” “I agree. J. George J.A.” “I agree. Michael F. Brown J. (ad hoc)” [1] Subsection (4), which deals with medical marijuana, is not relevant to this case. [2] Section 320.27(1) of the Criminal Code now provides that a police officer who has reasonable grounds to suspect that a person has alcohol or a drug in their body within the preceding three hours may take certain investigative steps, including the demand for a breath sample. [3] The Court in Orbanski, at para. 47, explained that whether the police were authorized to use a particular sobriety screening test is a case-specific inquiry. In that paragraph, they were not addressing whether a suspension of s. 10(b) is a case specific inquiry. [4] By way of example, in R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 26, Doherty J.A. explained that the need to preserve evidence can justify a delay in providing the right to counsel.