This week’s top three summaries: R v Crossley, 2025 BCCA 224: #intoxication & #murder, R v Khan, 2025 ABKB 357: s.9 #pill bottle, R v Barker, 2025 ONSC 3513: s.9 #onus and #ruse
[June 27, 2025] Murder: Defence of Intoxication [Reasons by DeWitt-Van Oosten J.A. with Abrioux and Riley J.A. concurring]
AUTHOR’S NOTE: Intoxication as a Defence to Murder: Key Factors Reinforced
This case offers a clear and accessible reaffirmation of the defence of intoxication in murder cases. The defence operates by undermining the inference that the accused intended the natural and probable consequences of their actions—by showing that they were so intoxicated as to lack the necessary foresight.
No expert evidence is strictly required, but the following factors must be assessed:
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The nature and manner of the act(s) causing death
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The quantity of alcohol or drugs consumed
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The observable level of impairment at the time
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Evidence of purposive or goal-directed behaviour before, during, or after the offence
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Any expert opinion on the effects of intoxication on the accused’s mental state
The decision confirms that a properly grounded intoxication defence may negate the mental element of murder, reducing it to manslaughter where appropriate.
[1] In September 2023, a jury found the appellant, Ryan Ross Crossley, guilty of second degree murder in the tragic stabbing death of Robert Powshuk. The offence occurred in November 2021.
[3] I have concluded the judge erred when explaining the defence of intoxication to the jury. He told the jurors that in deciding whether evidence of intoxication raised a reasonable doubt on the specific intent for murder, they had to consider whether the appellant’s “level of intoxication impacted [his] mind to such an extent that it caused him to lose control of his thoughts and actions”. This is legally incorrect. The judge’s error was not harmless and necessitates a new trial. On the whole, the jury was not properly equipped to decide the case according to the law and the evidence: R. v. Abdullahi, 2023 SCC 19 at paras. 35–37.
Factual context
[4] On the day of the offence, Mr. Powshuk was interacting with the appellant and the appellant’s brother, Curtis Crossley, on a street in New Westminster. There was evidence all three men were consuming illicit drugs. An argument broke out, possibly over a perception or belief by the appellant that Mr. Powshuk wrongfully took something from him after rooting through his belongings. The argument turned physical. As a result of the altercation, Mr. Powshuk sustained six stab wounds. Two of the stab wounds were to Mr. Powshuk’s chest. The remaining stab wounds were to his right abdomen, mid-back, lower back, and right buttock. He died from these injuries.
[6] The surveillance video showed both the appellant and his brother in possession of knives. According to a pathologist who performed an autopsy on Mr. Powshuk, either knife could have caused the stab wounds. The knives were eventually located by the police. One of them was found near the appellant and contained his DNA on the handle and Mr. Powshuk’s DNA on the blade. The second knife was thrown into a river by Curtis Crossley. It was retrieved; however, it did not offer DNA evidence.
Murder charges and the brother’s guilty plea
[7] Following the incident, the appellant and his brother were both charged with second degree murder. Before trial, Curtis Crossley pleaded guilty to the lesser and included offence of manslaughter. This plea was entered based on what is commonly referred to as “party liability”. The Crown accepted that the appellant’s brother was involved in the physical altercation with Mr. Powshuk but did not stab him. According to agreed-upon facts read into court at the time of the plea, Curtis Crossley’s involvement was limited to kicking Mr. Powshuk and using bear spray against him.
[12] Evidence of intoxication was relevant to the issue of intent. Murder is a specific intent offence, requiring proof of “heightened thought and reasoning processes”: R. v. Tatton, 2015 SCC 33 at paras. 42–43; R. v. Brown, 2022 SCC 18 at para. 43. If the jury found the appellant committed unlawful acts that caused Mr. Powshuk’s death but had a reasonable doubt on the specific intent for murder due to intoxication, this would function as a partial defence to murder, and the proper verdict would be for the lesser and included offence of manslaughter
[13] In his closing submissions to the jury, defence counsel drew the jurors’ attention to evidence of the appellant’s intoxication. He said:
it was apparent from the surveillance video that at the time of the physical altercation with Mr. Powshuk, the appellant was “seriously impaired by drugs”;
there were a number of video clips showing behaviour consistent with intoxication. For example, before the altercation: (a) the appellant is seen laying on the ground for a considerable period, “sort of passed out”; (b) he “stagger[s] across” a street and almost gets hit by a car; (c) at another point on the video, he “wander[s] back into the street” and someone pulls him back on to the sidewalk; (d) he is seen to be “swaying”; (e) he is seen to be “staggering”; and (f) the three men were using drugs; and,
police officers testified that when they located the appellant approximately eight and one half hours after the incident, he was “on the nod” (an expression sometimes used to describe moving in and out of consciousness or drowsiness after drug use).
[14] Defence counsel told the jurors that the evidence of intoxication should raise a reasonable doubt about whether the appellant intended to kill Mr. Powshuk at the time of the stabbing. He also said this evidence should raise a reasonable doubt on the Crown’s alternative route to a murder verdict, namely, whether the appellant knew that stabbing Mr. Powshuk was likely to cause his death and was reckless as to whether death ensued:
Jury instructions
[17] In light of that theory and based on the evidence before the jury, the judge instructed the jurors on the defence of intoxication. He made it clear that if the jury had a reasonable doubt on the specific intent for murder because of intoxication, it must acquit on the charged offence and find the appellant guilty of manslaughter. The judge told the jury that a “person can become intoxicated by taking drugs” and there was evidence the appellant “consumed drugs prior to” the stabbing. The jury was told that this evidence had to be considered in deciding whether the Crown proved the intent for murder. If the appellant was “so intoxicated that he did not have the necessary intent to commit the offence”, he would have a defence to murder. The judge explained that this is because intoxication “can interfere with a person’s ability to foresee or measure the natural consequences of [their] actions”. The judge correctly explained that the appellant did not have to prove the defence of intoxication. Instead, the Crown was required to prove beyond a reasonable doubt that the defence did not apply.
[18] The judge told the jury that in deciding whether the Crown met this burden, it had to consider “all the evidence” surrounding the appellant’s “level of intoxication resulting from drug use and its effect on his intent and knowledge at the time of the act”. If the jury was left with:
… a reasonable doubt as to whether [the appellant’s] consumption of drugs resulted in a level of intoxication which prevented him from forming the necessary intent, along with the other facts that shed light on [the appellant’s] intent, then [the jury] must find [the appellant] not guilty of second degree murder, but guilty of manslaughter …
[Emphasis added.]
Question from the jury
[20] After the final instructions were delivered, the jury began its deliberations. However, it returned to the courtroom with a question, specific to the defence of intoxication:
We have confusion over the application of intoxication in regards to intent. Can you define the level of intoxication in regards to an accused[’s] understanding of the consequences of his/her actions. Can you provide examples?[Emphasis by PJM]
[Emphasis added.]
[22] The judge received submissions from counsel on how best to answer the question. He then provided the jury with additional instructions:
Let me just put it this way. You must consider whether the level of intoxication impacted Ryan Crossley’s mind to such an extent that it caused him to lose control of his thoughts and actions. The second general comment. I’m going to make some further comments, and hopefully this will help you with your range — I’ll just describe it as your range of intoxication concerns.
Now, intoxication as a defence to murder will arise where there is evidence of advanced intoxication. In the case of the second method of finding intent — you’ll recall that there are two methods — in a charge of second degree murder, the focus is on whether the accused knew that the bodily harm he inflicted was likely to cause the victim’s death. The degree of intoxication required to advance a successful intoxication defence may vary depending on the manner in which death was caused. For certain types of homicides, where death is the obvious consequence of the unlawful act, you will have to be satisfied as to whether a particularly advanced degree of intoxication existed. That’s the answer
[23] After receiving these instructions, the jury resumed its deliberations. Defence counsel expressed concern about the judge having told the jury it must ask itself “whether the level of intoxication impacted [the appellant’s] mind to such an extent that it caused him to lose control of his thoughts and actions”. Defence counsel said that because of this wording, the jury may have been left with the erroneous impression that it had to find the appellant was intoxicated “to the point of automatism” before it could have a reasonable doubt on the intent required for murder. The judge disagreed and declined to have the jury return for a further, corrective instruction.
[30] The parties agree that the instruction on intoxication in the final charge was legally correct. It is only the response to the jury’s question that is said to be problematic. It is well-established that a response to a question from the jury must be answered “clearly, correctly and comprehensively”, even where the original instruction was free of error: R. v. S. (W.D.), [1994] 3 S.C.R. 521 at 530, 1994 CanLII 76. However, once again, in assessing the impact of an impugned answer, what was said by the judge must be considered in the context of the trial as a whole.
Defence of intoxication – legal principles
[31] In R. v. Daley, 2007 SCC 53, the Supreme Court of Canada explained that a person who is not “so intoxicated as to lack [any] capacity” to form intent, may nonetheless raise a reasonable doubt on the Crown’s proof of a specific intent by arguing that intoxication impacted their ability to exercise that capacity: at para. 40, emphasis added.
[32] Daley made it clear that with a specific intent offence (including murder), the defence of intoxication will not succeed on evidence of “mild” intoxication: at para. 41. This is because “mild” intoxication will generally cause a person’s “inhibitions and socially acceptable behaviour” to be relaxed but will not negate specific intent: at para. 41. Instead, a successful intoxication defence requires evidence of “advanced” intoxication: Daley at para. 41.
[33] What does that mean? Daley did not specify the kind of evidence necessary to meet this threshold or identify specific indicia of impairment that must be present for the defence to succeed. Instead, the focus of the “advanced” intoxication inquiry is the overall impact of intoxication on the accused’s state of mind at the time of the offence, as borne out by the entirety of the evidence. In the murder context, evidence of “advanced” intoxication is evidence that reasonably supports a finding that intoxication impaired the accused’s “… foresight of the consequences of [their] act sufficient to raise a reasonable doubt about the requisite mens rea”: Daley at para. 41. In other words, it is evidence that reasonably raises a doubt as to whether the accused intended to kill the victim or meant to cause the victim bodily harm that the accused knew was likely to cause their death and was reckless as to whether death ensued.[Emphasis by PJM]
[34] As a practical matter, whether the evidence of intoxication in a particular case will be sufficient to raise a reasonable doubt on the intent for murder will vary with the circumstances: Daley at para. 42, citing R. v. Robinson, [1996] 1 S.C.R. 683 at para. 52, 1996 CanLII 233. See also R. v. Sundman, 2021 BCCA 53 at para. 103, aff’d 2022 SCC 31; R. v. Arjun, 2015 BCCA 273 at para. 5, leave to appeal ref’d [2015] S.C.C.A. No. 324; R. v. Florence, 2014 BCCA 288 at para. 22. This is an individualized inquiry.
[35] For example, in a case where the accused is alleged to have killed someone by pointing a loaded shotgun directly at their head and pulling the trigger, the evidence of intoxication will likely “have to establish a particularly advanced degree of intoxication” before it will be sufficient to raise a reasonable doubt on the intent for murder because death will have been such an obviously foreseeable consequence of the unlawful act: Daley at para. 42, emphasis added. In a different case, where the natural and probable consequences of the unlawful act that causes death may not be as clear, “advanced” intoxication of a lesser degree may suffice to raise a reasonable doubt. It is generally the case that the “… more severe the injuries and the more force required to inflict them, the stronger the inference will be that the accused [including an intoxicated accused] intended to kill the victim or cause the victim bodily harm knowing it was likely to cause death …”: R. v. So, 2024 BCCA 101 at para. 91, citing R. v. Rodgerson, 2015 SCC 38 at paras. 20, 55.
[36] Deciding whether evidence of intoxication reasonably supports the defence is determined case-by-case. What is critical in the murder context is that whatever the evidence might consist of, it must be sufficient to raise a reasonable doubt as to whether intoxication by drugs or alcohol impaired the accused’s foresight of the consequences of their actions: Daley at para. 41. As aptly articulated by this Court in R. v. Ruff, 2019 BCCA 412, the evidence must be sufficient to “reduce” the accused’s “appreciation of the consequences of [their] actions, at the time of the act”: at para. 21.
[37] In making this assessment, the trier of fact may consider: the nature of the act(s) that caused death; the manner in which those acts were committed; the quantity of alcohol or drugs consumed before the offence; whether the accused was displaying impairment at the time of the offence and to what extent; evidence of purposive behaviour before, during, and after the offence; and any expert evidence that may be adduced specific to intoxication, including its likely effect on the accused’s ability to appreciate the consequences of their actions: Sundman at para. 108. This is not a closed list….[Emphasis by PJM]
[41] However, the appellant says the judge’s answer to the jury’s question changed these instructions in a fundamental and highly prejudicial way. The appellant submits that the answer introduced a new question for the jury to ask in assessing the availability of the defence, namely, whether the evidence of intoxication was such that it “caused [the appellant] to lose control of his thoughts and actions” (emphasis added). The appellant says this instruction goes well beyond what was meant by “advanced” intoxication in Daley. It set a threshold for the defence that would have left the jury with the erroneous impression that evidence of intoxication can only raise a reasonable doubt on the specific intent for murder if it reveals a state of mind and conduct equivalent to automatism.
[45] The appellant has persuaded me that the judge’s answer to the jury’s question was incorrect at law and, importantly, substantially prejudicial. Overall, the answer is confusing. There are parts of it that are inconsistent with the instructions provided in the final charge. Most critically, I agree with the appellant that the answer introduced an improper threshold for the jury’s consideration of the defence of intoxication.
[46] The judge began the substantive portion of his answer with some “general comments” about the jury’s task in “determining [the appellant’s] state of mind at the relevant time”. He told the jury it had to be satisfied beyond a reasonable doubt that the appellant “was not aware of what he was doing”. This is incorrect. It is the opposite of what the Crown was required to prove.
[47] After making this comment, the judge recognized it may be problematic and appropriately, he attempted to rectify the instruction. He told the jury it must be satisfied the appellant “was aware of what he was doing and understood the effect of his actions”. This is also an incorrect articulation of the Crown’s burden. As the judge had properly explained in his final charge, much more was required to prove the intent for murder. The Crown bore the onus of proving beyond a reasonable doubt that the appellant had the specific intent for murder, namely: that he either intended to kill Mr. Powshuk or meant to cause him bodily harm that he knew was likely to cause his death and was reckless as to whether death ensued.
[48] The judge then turned to reasonable doubt arising from intoxication. As noted, he told the jury it “must” consider whether the “level of intoxication impacted” the appellant’s mind “to such an extent that it caused him to lose control of his thoughts and actions”. There is no such requirement at law. Daley does not impose this evidentiary threshold or define “advanced” intoxication in this way. I agree with the appellant that the language used here is more closely aligned with the defence of “extreme” intoxication than one of “advanced” intoxication. In Brown, the Supreme Court of Canada described “extreme” intoxication as the “highest form of intoxication” that “results in a person losing voluntary control of their actions”: at para. 45, emphasis added. “Absent a willed movement of the body, the Crown cannot prove the actus reus [of an offence] beyond a reasonable doubt …: at para. 47, internal reference omitted. In addition, “[w]here an accused has no conscious awareness of their movements, they necessarily cannot intend their involuntary acts”: Brown at para. 48, emphasis added.[Emphasis by PJM]
[49]….However, the judge went on to say that for “certain types of homicides, where death is the obvious consequence of the unlawful act, [the jury would] have to be satisfied as to whether a particularly advanced degree of intoxication existed” (emphasis added). In my view, this is not correct.
[50] The case law on the defence of intoxication recognizes that as a practical matter, the defence is unlikely to succeed without evidence of a particularly advanced degree of intoxication where death was the obviously foreseeable consequence of the unlawful act. However, this does not mean a jury must be instructed that before it can have a reasonable doubt on intent in those cases, it must be satisfied of (or find) a “particularly advanced degree of intoxication”. The “advanced” intoxication threshold from Daley remains the legal standard. With this statement, the judge mistakenly transformed an observation that has been made about the kind of evidence likely required to achieve a reasonable doubt in some cases, into a legal threshold.
[53] In my view, the supplemental instructions to the jury, in their cumulative effect, were confusing and importantly, did not correctly answer the question posed. Respectfully, the instructions ran the realistic risk of the jurors leaving the courtroom with the erroneous understanding that to have a reasonable doubt on the specific intent for murder based on intoxication, they had to find (be “satisfied”) that the appellant was displaying a “particularly advanced degree of intoxication” at the time of the stabbing, namely, one that “caused” him to “lose control” of his “thoughts and actions”.[Emphasis by PJM]
Disposition
[67] I have concluded the judge committed reversible error in his answer to the jury’s question about the defence of intoxication. Furthermore, in the circumstances of this case, that error was not harmless. The defence of intoxication formed an integral part of the appellant’s response to the prosecution for second degree murder and trial fairness required that the defence be given meaningful consideration with reference to the proper legal framework. That did not happen, and the curative proviso is not available.
[68] I would quash the conviction, set aside the jury’s verdict, and order a new trial.
[June 11, 2025] Charter s.9: No Grounds from Pills in a Plastic Bag in a Prescription Bottle [Jugnauth J.]
AUTHOR’S NOTE: No Reasonable Grounds from Pills Alone & the Importance of a Careful Grounds Assessment
This decision provides two important takeaways for defence lawyers:
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Observation of Unknown Pills ≠ Reasonable Grounds
Justice Jugnauth clearly states:
“…standing alone, an observation of some unknown pills contained in a plastic bag within a prescription bottle could not provide a lawful basis for arrest…”
This simple but firm statement at the King’s Bench level affirms that, without more, such an observation amounts to mere suspicion—not reasonable grounds.
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Grounds Must Be Objectively and Methodically Assessed
The judgment underscores that assessing reasonable grounds requires methodical scrutiny of what was actually observable from the officer’s perspective at the time of arrest. Justice Jugnauth’s careful breakdown revealed that the officer acted rashly, and as a result, violated the accused’s Charter rights.
This case strengthens the position that hunch-based policing cannot justify arrest, and offers useful language for Charter motions challenging the lawfulness of arrests based on minimal or ambiguous observations.
I. Introduction
[1] Mr. Khan faces a series of firearm and drug offences following a traffic stop on April 24, 2022. He alleges the police breached his section 8 and 9 Charter rights arising from an unlawful arrest and illegal search and seeks to exclude the resulting evidence from his trial.
[2] More specifically, Mr. Khan alleges he was arbitrarily detained when the police arrested him absent reasonable grounds, and that the warrantless searches of his person and a motor vehicle were unreasonable on account of his unlawful arrest. Pursuant to section 24(2) of the Charter, Mr. Khan seeks the exclusion of a firearm and drugs as a remedy for the alleged violations of his constitutionally protected rights.
[4] This case turns primarily on the evidence of the arresting officer, Cst. Christopher Clark
II. Background
[5] In the early morning hours of April 24, 2022, two members of the Edmonton Police Service were on patrol in an unmarked police cruiser. Constable Clark was driving and his partner, Cst. Nathan Romas, was in the passenger seat operating the onboard computer as required.
[6] Both officers testified that at approximately 1:00 am Cst. Clark observed a vehicle travelling southbound on Calgary Trail with an obscured license plate, the vehicle having just turned left off Whyte Avenue. Constable Clark knew an obscured license plate to be a violation of the Operator Licensing and Vehicle Control Regulation, Alta Reg 316/2002 under the Alberta Traffic Safety Act, RSA 2000, c T-6, and decided to perform a traffic stop.
[7] Before doing so the police fell in behind the target vehicle, a white Ford Explorer, and followed for a few minutes to obtain the license plate and run computer checks. Constable Romas looked up the license plate using his onboard computer and testified that the vehicle’s registered owner was based in Calgary and subject to “a large paragraph” of court ordered conditions related to weapons and violence.
[10]….Equipped with a flashlight, Cst. Romas conducted a visual search of the vehicle from his position outside the passenger cabin while Cst. Clark engaged with the driver.
[12] Of particular interest in the context of this voir dire, is that Cst. Romas did not observe a prescription pill bottle in a receptacle under the dash, even though his primary focus was conducting a visual search the vehicle.
[13] When Cst. Clark approached the driver’s window Mr. Khan was cordial and cooperative. Constable Clark testified that he asked for the vehicle’s insurance and registration documents, and Mr. Khan’s driver’s license. Mr. Khan turned over an expired insurance card and advised that he did not have his driver’s license on him.
[14] Constable Clark testified that Mr. Khan’s emotions became elevated as he began to look frantically about the cabin for valid insurance, including: the centre console, between the console and both the driver and passenger seats, and in the glove box. Constable Clark followed Mr. Khan’s hands with the beam of his flashlight but could not see into the various receptables owing to the angle of his sight line from his position standing outside of the driver’s window.
[15] Mr. Khan verbally identified himself and began to look through his iPhone for a digital copy of his driver’s license. As he did, Cst. Clark testified to observing “a blue pill bottle, that was unmarked – it looked like it had the paper scratched off. There was no cap on it or cover on it”.
[16] Constable Clark described the location of the pill bottle as underneath the radio dash where the temperature controls are, within reach of the driver. He also testified that he could see within the pill bottle a clear plastic baggie that contained an unknown number of pills and a second baggie that contained a white powdery substance[Emphasis by PJM]
[17] Constable Clark then advised Mr. Khan that he was under arrest for possessing a controlled substance….
[18] Constable Romas escorted Mr. Khan back to the police cruiser and began to search him incident to arrest. As he was concluding that search Cst. Romas felt a hard rectangular object under the clothing on Mr. Khan’s chest. Constable Romas reached in and retrieved from an inner pocket a Glock 9mm handgun with four rounds of ammunition in the magazine.
[19]….In the pill bottle he located and seized 40 oxycodone tablets and 1.1 grams of powder cocaine. From the centre console he located and seized a box of 45 calibre ammunition containing 30 rounds….
III. Issue
[21] The issue on this voir dire is straightforward: did Constable Clark have reasonable grounds to lawfully arrest Mr. Khan for possessing a controlled substance. If so, Mr. Khan’s section 9 Charter right to be free from arbitrary detention was not infringed, and the search of the Explorer and Mr. Khan’s person was lawfully executed incidental to his arrest.
IV. Law & Analysis
[27] However, a search is not reasonable as a search incident to arrest where the arrest which gave rise to it was arbitrary or otherwise unlawful: R v Caslake, [1998] 1 SCR 51 at para 13. Mr. Khan challenges both the arbitrariness of his detention and reasonableness of the searches conducted by police by contesting the legality of his arrest.
[29] Further, pursuant to section 495(1)(b) of the Criminal Code “[a] peace officer may arrest without warrant a person whom he finds committing a criminal offence”. This provision has been judicially interpreted to confine the warrantless arrest power to circumstances where the ongoing commission of a criminal offence is “apparent” to a reasonable person placed in the circumstances of the arresting officer at the time: R v Roberge, [1983] 1 SCR 312 at 324-325.
[30] The requirement that an arresting officer have reasonable grounds on which to base a warrantless arrest was confirmed by the Supreme Court in R v Storrey, [1990] 1 SCR 241. At para 17, the Court stated that the reasonable grounds standard comprises both a subjective and objective basis. The arresting officer must personally believe that reasonable grounds exist, and those grounds must be justifiable from an objective point of view.
[32] The decision in this voir dire turns on whether Cst. Clark had reasonable grounds to arrest Mr. Khan for possessing a controlled substance.
ii. Evaluating Mr. Khan’s Evidence
[54] For the following reasons I reject Mr. Khan’s testimony. First, I find Mr. Khan’s evidence highly implausible. Second, aspects of Mr. Khan’s evidence are internally inconsistent. Third, none of Mr. Khan’s evidence is materially corroborated by other evidence. Fourth, the two police witnesses on the voir dire were not meaningfully confronted with Mr. Khan’s evidence or given a fair opportunity to refute it.
[72] That leaves me to determine the issue on this voir dire based exclusively on the evidence of the police witnesses.
2) Constable Clark’s Evidence
[73] In my view, standing alone, an observation of some unknown pills contained in a plastic bag within a prescription pill bottle could not provide a lawful basis to arrest someone for the illegal possession of a controlled substance. However, the same is not true of an observation of a white powdery substance packaged as was the cocaine in this case. In my view, that observation could satisfy the objective component of the reasonable grounds requirement to effect a warrantless arrest[Emphasis by PJM]
[74] Therefore, the essential question is whether I accept that Cst. Clark observed a small plastic bag containing a white powdery substance at the bottom of the pill bottle under a Ziploc bag containing 40 pills, from where Cst. Clark was positioned on the road. The answer demands a detailed review Cst. Clark’s evidence.
i. Constable Clark’s Drug Training & Experience
[78]….This means Cst. Clark likely had less than two dozen drug trafficking investigations under his belt as of April 2022, three years prior.
[80] Those descriptions of experience are as far as he went. Apart from general references to experience, Cst. Clark never meaningfully articulated how his experience informed his thought processes and decision-making when it came to formulating his grounds to arrest Mr. Khan.
[81] For example, when asked of the significance to him of the pill bottle not having a cover, Cst. Clark said, “No direct meaning to the cap being off, other than it being used to store and transport illicit substances, in my experience”.
[82] This statement suggests the cap being off the pill bottle was a probative consideration for Cst. Clark “in [his] experience”. However, Cst. Clark does not explain why that is so.
[83] At no point does the witness allude to how many of his prior drug investigations involved encounters with drug users or traffickers employing legitimate prescription containers to carry illicit substances. Similarly, Cst. Clark does not explain when or how he learned that a capless prescription pill bottle is a telltale sign of a person illegally possessing drugs within the meaning of the Controlled Drugs and Substances Act, SC 1996, c 19.
[84] Without this information I am reluctant to attribute any meaningful consideration to the fact of a pill bottle being uncapped as it relates to the grounds to arrest someone for possessing a controlled substance.
[87] Constable Clark’s answers demonstrate that he attributed investigatory significance to a scratched off or deface label (a subject I will return to later in these reasons). However, Cst. Clark’s evidence does not establish a connection between that purported observation and the content of his experience that would permit the Court to independently evaluate the reasonableness of his assessment.
ii. Constable Clark’s observations of the pill bottle
[89]….Following is a summary of the salient aspects of Cst. Clark’s testimony regarding his observations.
[90] Constable Clark made his observations at approximately 1:00 am from his position standing on the road next to the driver’s door looking through an open window with the aid of a flashlight. Constable Clark described observing the pill bottle in the void underneath the portion of the dash housing the radio and temperature controls. I understood this “void” to mean a receptacle under the dash that was separate from the centre console.
[91] Constable Clark testified that from his position, he could see a blue pill bottle that looked like it had the label scratched off, with no cap or cover on it. He said that within the pill bottle he could clearly see there was a transparent plastic baggie that contained an unknown number of pills and a second baggie containing a white powdery substance.
[92] Constable Clark described the orientation of the pill bottle as laying on its side with the open-end facing toward the gear shifter and cabin of the vehicle. From his position, Cst. Clark described his viewing angle relative to the pill bottle to be approximately 45 degrees.
[93] When asked why he thought the label had been scratched off, Cst. Clark testified that he could see some blue plastic through the label and that he “could see the label was cut and peeling”.
[94] When asked why he believed the white powdery substance to be cocaine, Cst. Clark explained that he believes any white powdery substance he comes across in a drug investigation is cocaine. He also placed significance on the way the white powder was packaged, which he testified he could see from outside of the vehicle.
[95] Constable Clark’s evidence on these points is repeated in full below.
In my experience, conducting drug trafficking investigations, simple possession, any white powdery substance that I do locate, especially if it comes along with pills, is identified as almost like a party drug. And that’s why I believed it to be cocaine.
And also the way that it was bagged within the pill bottle. It’s very typical for anyone – drug users, drug traffickers – to package it by cutting the corner of a sandwich bag or a plastic bag, placing it in that corner, and then tying it back up. And that’s what it looked like to me when I could see it from the driver’s side window. [Emphasis added]
iii. The reliability and credibility of Constable Clark’s evidence
[97] For the following reasons, I have concerns over both the reliability and credibility of Cst. Clark’s evidence.
[98] First, the interaction between Cst. Clark and Mr. Khan did not last very long, possibly under a minute. During most of that time Cst. Clark was using the beam of his flashlight to follow Mr. Khan’s hands as Mr. Khan looked about trying to locate a valid insurance document.[Emphasis by PJM]
[99] All of which is to say that Cst. Clark’s observation of the pill bottle itself was likely only a matter of seconds before he immediately placed Mr. Khan under arrest. Based on this short duration and the adverse observational conditions discussed below, I do not accept that Cst. Clark made the very detailed observations of:
(i) a defaced and scratched label with blue plastic showing through,
(ii) a small bag of cocaine that he could discern was packaged using a cut corner of a sandwich bag; and
(iii) the package of cocaine was in a clearly distinguishable bag under a larger plastic bag containing an unknown number and kind of pills.
[100]….The occurrence took place at 1:00 am on a side street just west of Calgary Trail in dim light given the hour.
[101] In refuting the assertion that the ambient light conditions were dim, Cst. Clark pointed to how well-lit Whyte Avenue is with plenty of light standards and lights emanating from nearby businesses.[Emphasis by PJM]
[102] The problem with Cst. Clark’s explanation is that the traffic stop occurred approximately five blocks south of Whyte Avenue. It did not even occur on the main thoroughfare of Calgary Trail. Mr. Khan pulled westbound onto 77th Avenue for some distance before coming to a stop. Constable Clark’s reference to the ambient light from Whyte Avenue to explain the lighting conditions at the location of the traffic stop suggest that I approach his evidence carefully.[Emphasis by PJM]
[103] Further, Cst. Clark’s evidence contrasts with Cst. Romas who testified that it was dark outside, with just dim street lighting. Given the hour, location of the traffic stop, and Cst. Clark’s misplaced reference to the lighting on Whyte Avenue, I prefer the evidence of Cst. Romas on this point[Emphasis by PJM]
[104] Third, I am not satisfied that Cst. Clark had a clear line of sight to the pill bottle from his vantage point standing outside of the vehicle, approximately three feet away. Relative to his position, his line of sight to a receptable under the middle part of the dash would likely have been obstructed to some degree by the steering column and/or steering wheel,….
[105] Moreover, the pill bottle was not observed on a flat surface but rather inside a receptable of some unspecified depth. This suggests the structure of the receptable itself may have had some bearing on how much of the pill bottle was visible….
[106] Constable Clark acknowledged elsewhere in his evidence that owing to his sight lines he could not see into other receptables that Mr. Khan had been looking through in search of the vehicle documentation,….
[107] To this point, I find it noteworthy that Cst. Romas did not observe the pill bottle at all, even though his primary focus was a visual search of the vehicle’s interior with the aid of his flashlight…..
[108] Fourth, I am mindful of certain aspects of Cst. Clark’s observations that were shown to be demonstrably wrong during cross-examination….
[109] During cross examination Cst. Clark expressed a persistent attachment to his evidence that he had observed the label peeling and scratched off such that the blue plastic of the container was showing through the paper label. When shown a photograph of the pill bottle and pressed to identify where the label was peeling or scratched such that the blue plastic was showing through, he could not do so.
[111] In my view, the label looks worn, perhaps on account of age. However, on the evidence before me there are no visible scratches where the coloured plastic of the container shows through. Nor are there any identifiable portions of the label that are peeling or that would reasonably attract the loaded phrase used by Cst. Clark that the label had been “tampered with”.
[112] While some of the writing on the label is illegible, much of it is not. Overall, I found Cst. Clark’s persistent attachment to his evidence troubling in light of clear evidence to the contrary. In my view, Cst. Clark’s insistence, and repeated use of the term “tamper”, was aimed at reinforcing his grounds for arrest since he attributed criminal significance to the fact of a defaced or tampered-with label, which was simply not the case.[Emphasis by PJM]
[116] In the overall tenor of Cst. Clark’s testimony, I find his evidence on redirect to be inconsistent with his evidence-in-chief and on cross-examination. Constable Clark either saw a substantial portion of the label sufficient to observe the deep scratches and defacement that he described, or he was looking at the unobstructed back of the pill bottle that did not have much of the label visible.
[118] Sixth, the police did not capture photographs of the pill bottle in place. It was only photographed after Cst. Clark seized it from the Explorer, examined the contents, and then reinserted the bag of cocaine and then the bag of pills. That photograph is captured at page 6 of Exhibit VD-1.
[119] Given this photo represents the pill bottle after the contents were manipulated, examined, and reinserted, I caution myself with respect to what I reasonably take from it….
(i) The plastic of the pill bottle is not perfectly transparent. The colour of the plastic obscures the clarity of what can be seen inside. This would make it more difficult for Cst. Clark to identify the details of the contents inside with as much precision as he claimed.
(ii) If one imagines that pill bottle on its side, with the bottom (containing the small bag of cocaine) closest to the dash and facing away from the vehicle occupants, it would be exceedingly difficult to discern the contents.
[120] Seventh, because I have found that Cst. Clark did not observe the portion of the pill bottle unobscured by the label, he would be generally seeing what is depicted in Exhibit VD-1, at page 6. On that view, it would be exceedingly difficult to distinguish one bag from another inside the pill bottle since the point of separation between the plastic bags would likely be obscured behind the label.
[127] For the reasons above, I am satisfied that Cst. Clark observed a capless pill bottle in a receptable under the dash, with a plastic bag protruding therefrom containing a small quantity of unknown pills. However, I do not accept that Cst. Clark saw or distinguished a second, smaller plastic baggie holding a white powdery substance in the bottom of the container under the bag of pills.[Emphasis by PJM]
iv. Conclusion on reasonable grounds
[128] In determining whether an arresting officer had reasonable grounds, I must consider the whole of the evidence, which I summarize below.
(i) The reason for the traffic stop was an equipment violation based on an obscured license plate.
(ii) Apart from the obscured license plate, the police did not observe anything else of investigative significance related to the target vehicle or occupant.
(iii) While the registered owner of the target vehicle was subject to certain courtordered conditions, there was no suggestion that those conditions were related to drug offences.
(iv) There was no information that the vehicle being stopped had previously been associated to or identified in a prior drug investigation.
(v) Mr. Khan was cordial at the outset of the interaction with police, passing over the vehicle’s insurance and registration documents when asked.
(vi) Upon being advised that the insurance card was expired, Mr. Khan appeared to grow panicky when he could not locate valid insurance
(vii) Mr. Khan did not have his driver’s license on him but provided his name and date of birth when asked and without hesitation.
(viii) Upon learning that Mr. Khan was not the registered owner, anything the police had previously learned about the registered owner ceased to be relevant.
(ix) Constable Clark did not know anything about Mr. Khan prior to arrest because Mr. Khan’s ID was not verified through computer searches until after his arrest.
(x) Mr. Khan was examining his cell phone looking for a digital copy of his driver’s license when he could not produce the physical one.
(xi) Cst. Clark briefly observed an ordinary prescription pill bottle, without a cap, containing unknown pills in a plastic bag.
(xii) Constable Clark had never received any formal training with respect to drug enforcement, and his experience with drug investigations was limited.
(xiii) Constable Romas had conducted a visual search of the vehicle and did not see or voice anything of concern to Cst. Clark, including the pill bottle.
[130] On a balance of probabilities, I do not find Cst. Clark had objectively reasonable grounds to arrest Mr. Khan for possession of a controlled substance. As such, Mr. Khan’s arrest was arbitrary with the meaning of section 9 of the Charter.
[131] Given Mr. Khan’s arrest was unlawful, so too was the search incident to that arrest. As such, the searches of the Explorer and Mr. Khan’s person were not reasonable within the meaning of section 8 of the Charter
3) Would admitting the evidence bring the administration of justice into disrepute
i. The state’s Charter infringing conduct was serious
[136] In R v McColman, 2023 SCC 8 at para 57 the Supreme Court explained that “the first line of inquiry focuses on the extent to which the state conduct at issue deviates from the rule of law”. The concern is not to punish the police or deter Charter breaches, but to preserve public confidence in the rule of law and its processes: R v Grant, 2009 SCC 32 at para 73.
[140] In this case I find the state misconduct at issue was serious. Constable Clark arrested Mr. Khan without reasonable grounds. In doing so, Cst. Clark failed to adhere to a central safeguard aimed at protecting individuals’ liberty. As noted by the Supreme Court, “[w]ithout such an important protection, even the most democratic society could all too easily fall prey to the abuses and excesses of a police state”: Storrey at 249-250.
[141] Here there were no extenuating circumstances that could attenuate the police misconduct. The police were not compelled to act quickly, or at all, in respect of the arrest and ensuing search. The purpose of the police engagement was traffic enforcement. It was not criminal. Mr. Khan was not known to police, nor had he not done anything or acted in a way that could reasonably have aroused criminal suspicion.
ii. The impact on Mr. Khan’s Charter-protected interests was profound
[149] In this case, Mr. Khan’s illegal arrest annihilated his section 8 and 9 Charter-protected interests. Without lawful grounds, Mr. Khan was removed from the Explorer; handcuffed in public view; and both his person and the Explorer were searched. I was also advised by counsel that the police searched Mr. Khan’s iPhone, although the Crown ultimately decided not to lead any evidence from that search.
[150] As noted by the Supreme Court in R v Morelli, 2010 SCC 8 at para 2, “[i]t is difficult to imagine a search more intrusive, extensive, or invasive of one’s privacy than the search and seizure of a personal computer”. In 2025 smart phones are functionally equivalent to, and likely much more powerful than, the personal computer at the heart of the decision in Morelli fifteen years earlier.
[152] In argument the Crown posited that if the circumstances did not rise to the level of reasonable grounds to arrest, nonetheless there was reasonable suspicion to place Mr. Khan under investigative detention and call out a police sniffer dog. In that situation, the Crown argues the police would have been permitted to conduct a pat-down search of Mr. Khan for officer safety and the firearm would have been inevitably discovered.
[154]…. Cst. Clark did not testify to what he might have done had he been operating under his powers pursuant to an investigative detention. Mr. Khan was compliant and cooperative in the vehicle. On its face, there was no articulable concern for officer safety to justify removing him from the vehicle and conducting a pat-down search.
[155] It should be remembered that the authority to conduct a pat-down search for officer safety does not flow as a matter of course upon placing a person in an investigative detention. The officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk: R v Mann, 2004 SCC 52 at para 40.
[156] Third, courts should not engage in speculation about discoverability: R c Côté, 2011 SCC 46 at para 70. Where it cannot be determined with any confidence whether evidence would have been discovered absent a Charter breach, discoverability will have no impact on the section 24(2) inquiry: Grant at para 122.
[157] In my view, the second line of inquiry strongly favours exclusion of the evidence.
[167] I am also mindful of the Supreme Court’s guidance that “[w]here the first and second inquiries, taken together, make a strong case for exclusion, the third inquiry will seldom if ever tip the balance in favour of admissibility”: Le at para 142.
[168] That is the case here. In the final balance I am of the view that the evidence obtained from Mr. Khan’s arbitrary detention, and the unreasonable searches that followed, should be excluded.
V. Conclusion
[169] For the reasons above I am satisfied that Mr. Khan has proven on a balance of probabilities that both his section 8 and 9 Charter rights were infringed. I am further persuaded that the evidence obtained as a result shall be excluded from his trial.
[June 5, 2025] Charter s.9/s.8: Onus on a Ruse Stop leading to a Search [Vermette J. ]
AUTHOR’S NOTE: Reversal of Onus on s.9 Claims Where Warrantless Search Follows Detention
This case provides a powerful summary of appellate authority supporting the reversal of the burden of proof on a s.9 Charter claim where a warrantless search follows a stop or detention. Drawing on binding rulings from the Ontario Court of Appeal (ONCA), the Court held that in such situations, the Crown must prove the detention or arrest was not arbitrary—aligning the onus under s.9 with that under s.8 of the Charter.
Though this principle has not yet been uniformly adopted across Canada, it reflects a growing judicial consensus (ONCA, SKCA – See: R v Chapman 2020 SKCA 11 at para 51) and a logical safeguard against unlawful police conduct. For years, courts have recognized an evidentiary onus requiring the Crown to call police evidence in these cases, but this decision affirms a true legal onus on the Crown to justify the detention itself.
In this case, police acted on a mere hunch, initiating a Highway Traffic Act stop of a vehicle based solely on the presence of two known drug users getting into a car. The search that followed was found to be an unlawful dual-purpose stop—a pretextual use of traffic enforcement to pursue a criminal investigation without proper grounds.
When the true basis for a stop exists only in the minds of police officers, courts must require clear, persuasive evidence from the Crown to demonstrate that the reasons for detention were both honestly held and objectively reasonable. This approach ensures robust protection of Charter rights against arbitrary state action, especially in the context of dual-purpose or pretextual policing.
[1] The Applicant, Clifton Cyril James Barker, was charged with: (a) eight counts of possession of a controlled substance for the purpose of trafficking, including fentanyl, methamphetamine, heroin, powder cocaine, crack cocaine, MDMA, oxycodone and hydromorphone; (b) four counts related to the possession of a loaded restricted firearm; (c) two counts of possession of a prohibited device, i.e., a taser and an overcapacity magazine; and (d) one count of possession of proceeds of crime of a value not exceeding five thousand dollars.
[2] Mr. Barker brought an application for an order excluding evidence under section 24(2) of the Canadian Charter of Rights and Freedoms (“Charter”) on the basis that his rights under sections 8, 9 and 10(b) of the Charter had been breached.
[3] On April 28, 2025, I granted the application with reasons to follow. The following are my reasons.
1. Section 9 of the Charter
a. Applicable legal principles
[118] Section 216(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”) authorizes a police officer to stop vehicles for highway regulation and safety purposes, even where the stops are random and the officer lacks reasonable and probable grounds or even reasonable suspicion. However, the authority conferred by section 216(1) is circumscribed by its purpose, i.e., highway regulation and safety. Thus, section 216(1) does not automatically make motor vehicle stops lawful because the police are not free to use the powers conferred under that provision for some other purpose, including to further a criminal investigation. As a result, if the police do not have road safety purposes subjectively in mind, they cannot rely on section 216(1) to authorize the stop. In other words, the police cannot use the HTA powers as a mere ruse or pretext to stop a vehicle in order to investigate a crime. SeeR. v. Gonzales, 2017 ONCA 543 at paras. 55, 67 (“<Gonzalesem”) and R. v. Mayor, 2019 ONCA 578 at paras. 6, 9 (“Mayor”).
[119] A traffic stop may have more than one purpose. The mere existence of an additional purpose motivating the stop beyond highway regulation and safety concerns does not render the stop unlawful. However, the additional purpose must itself not be improper or be pursued through improper means. See Gonzalez at para. 58 and Mayor at para. 8. It is permissible for police to intend, within the confines of a stop and detention authorized by section 216(1) of the HTA, to avail themselves of the opportunity to further the legitimate police interest of gathering intelligence in their investigation of criminal activity. See Gonzalez at para. 59.
[120] Thus, the existence of a concurrent criminal law purpose – even a predominant one – does not, in itself, preclude the existence of valid regulatory purpose. The issue is whether a police officer actually formed a legitimate intention to stop the vehicle for highway regulation and safety purposes, whether or not the officer possessed a concurrent criminal law purpose. See R. v. Sandhu, 2011 ONCA 124 at paras. 51, 61-62 and Mayor at paras. 7-8.[Emphasis by PJM]
[121] To determine the police purpose in effecting a stop and detention, the court must consider the evidence of the officers involved and the persons detained, and any other evidence concerning the circumstances and conduct of the stop. See Gonzalez at para. 67 and Mayor at para. 10
[123] In addition to requiring production of various documents associated with the operation of a motor vehicle, a police officer acting under the authority of section 216(1) of the HTA may also make a visual examination of the interior of the vehicle to ensure their own safety during the detention. However, section 216(1) does not authorize more intrusive examinations of the interior of the vehicle or inquiries of any occupant directed at subjects not relevant to highway safety concerns. See Gonzalez at para. 56.
[124] While ordinarily a claimant has the burden to prove that there has been an unlawful detention, where the claimant has brought an overlapping challenge against a warrantless search that occurred during the detention and the authority relied upon by the Crown for the search includes a lawful detention, the Crown bears the burden to show that the predicate detention was lawful. This is to avoid conflicting burdens on the same issue because warrantless searches are presumptively unlawful and the Crown ordinarily bears the burden to show their lawfulness. See Gerson-Foster at para. 75; R. v. Desilva, 2022 ONCA 879 at para. 55; R. v. Khoshaba, 2019 ONSC 6896 at para. 4 (“Khoshaba”); and R. v. Yusuf, 2021 ONSC 4167 at para. 14.[Emphasis by PJM]
[125] Since, as discussed below, the legality of the search performed by PC Singh in the Vehicle depends on a lawful detention, the Crown has the burden to show on a balance of probabilities that Mr. Barker’s detention was lawful[Emphasis by PJM].
c. Analysis
[128] I am not satisfied on the balance of probabilities that PC Brooks and/or PC Leal actually formed a legitimate intention to stop the Vehicle for highway regulation and safety purposes. I conclude that the HTA powers were used in this case as a mere pretext to stop the Vehicle in order to investigate a possible drug transaction[Emphasis by PJM]
[129] In my view, the subjective intention that is relevant in this case is PC Brooks’. He is the officer who asked for the Vehicle’s licence plate to be checked and for assistance from a scout car. He is also the officer who first advised Mr. Barker of the grounds for his detention.
[131] Thus, the only allegations that could ground a subjective and legitimate intention to stop the Vehicle for highway regulation and safety purposes are the allegations regarding Mr. Barker’s manner of driving on Queen Street West, while he could be seen by the bike officers.
[132] I do not accept the evidence that Mr. Barker’s manner of driving on Queen Street West gave rise to a subjective and legitimate intention to stop the Vehicle for highway regulation and safety purposes. In coming to this conclusion, I rely on the following, among other things:
a. PC Brooks’ testimony that Mr. Barker started driving quite quickly, differently and in a more erratic fashion when he saw the police officers is contradicted by the evidence. Mr. Barker saw the bike officers before he turned on Queen Street West (i.e., when the officers themselves turned on Queen). The latest that he could have seen them was shortly after turning on Queen Street West, before he passed PC Brooks and PC Leal. The body-worn camera footage shows the Vehicle driving normally on Queen Street West from Bathurst Street to Markham Street, i.e., until PC Brooks turned off his body-worn camera. No problematic driving is captured on video. This was admitted by PC Brooks later in his testimony.
b. According to PC Brooks, he activated his body-worn camera for the purpose of capturing the Vehicle and the licence plate. In his testimony, PC Brooks first stated that he activated his body-worn camera after the driver started driving differently and in a more erratic fashion. Again, this was contradicted by the evidence. PC Brooks activated his camera before turning left on Queen Street West. This shows that PC Brooks had an interest in the Vehicle and wished to capture his licence plate before any alleged problematic driving. This is confirmed by the fact that PC Brooks said out loud to himself the licence plate number of the Vehicle as soon as the Vehicle passed him and while the Vehicle was driving normally.
c. PC Brooks stated that he asked for a return for the plate based on the area where he was and his observation of the two drug users getting in the back of the Vehicle. PC Brooks said that at that time, he was investigating the Vehicle for a possible drug transaction, and his request for a return for the plate was not based on the driver’s manner of driving. I note that the request was made on the air seven seconds after the end of the body-worn camera footage. Thus, by the time the request for a return was made on the air, the Vehicle was further down on Queen Street West and there is still no mention of the Vehicle weaving in and out of traffic.
d. The officers’ evidence regarding the alleged weaving in and out of traffic is inconsistent. According to PC Brooks, the Vehicle weaved in and out of the two westbound lanes, i.e., the curb lane and the centre lane. PC Brooks did not see the Vehicle weave into the oncoming traffic lane. According to PC Leal, the Vehicle weaved into the oncoming traffic lane from the centre lane going westbound. PC Leal did not recall observing the Vehicle weaving in and out of the centre and curb lanes going westbound. PC Singh did not see any weaving in and out of traffic. However, given that the Vehicle had reached PC Singh on Queen Street West by the end of the body-worn camera footage, it is unlikely that PC Singh would not have seen any subsequent weaving in and out of traffic by the Vehicle.
e. The body-worn camera footage shows multiple parked cars in the westbound curb lane on Queen Street West. This makes it highly improbable that Mr. Barker would have been able to weave in and out of the two westbound lanes, i.e., the centre lane and the curb lane. Further, at the end of the body-worn camera footage, we see the Vehicle being behind another car in the centre lane, which was the last vehicle that crossed Bathurst on Queen Street West before the traffic lights turned green on Bathurst. Given the number of vehicles that crossed Bathurst Street before the Vehicle turned onto Queen Street West and given how close these vehicles were to each other, I find it highly improbable that a vehicle would have been able to weave in and out of traffic in these conditions and within such a short distance.
f. As PC Brooks advised dispatch on the air and as he testified in court, the bike officers did not try to stop the Vehicle and did not ask the driver to pull over. Therefore, it is unclear what the basis is for the officers’ assertion that the Vehicle was trying to get away from them. As stated above, the assertion that Mr. Barker’s driving changed as soon as he saw the police officers is inaccurate and untrue. I note that if Mr. Barker had wanted to avoid the police and get away from them at all costs, he could have decided not to turn onto Queen Street West after the officers turned on that street, and go straight on Bathurst Street.
g. I accept the evidence of Mr. Barker and PC Brooks that the Vehicle turned left on Tecumseh Street. I agree with Mr. Barker that given that it is admitted that he drove normally until Markham Street, there would not have been enough time for him to weave in and out of traffic between Markham Street and Tecumseh Street, especially given the traffic conditions on Queen Street West at that time.
h. I also accept the evidence of Mr. Barker that it would not have made sense for him to drive carelessly on Queen Street West as this would have attracted the attention of the police, which was the last thing that a person in his situation would have wanted. See Khoshaba at para. 23. While I agree with the Crown that it is very likely that Mr. Barker did not comply with the various speed limits on Mitchell and Niagara Streets and went faster, I find this to be irrelevant as there were no police officers who could see him on these streets. I accept that by that time, as he admitted himself, Mr. Barker was trying to get out of the officers’ vicinity. The fact that he did not comply with the rules of the road when there was no police presence does not logically mean that he would have done the same thing while there were police officers near him.
[133] I appreciate that there were contemporaneous statements by PC Brooks and PC Leal regarding the Vehicle driving aggressively and weaving in and out of traffic. However, I note the following:
a. The first mention of the Vehicle weaving through traffic was made by PC Brooks during the audio transmission that started at 1:28:21 p.m. At the beginning of this audio transmission, PC Brooks received information regarding the Vehicle from dispatch, including the information that it was a rental car. PC Brooks then said: “Okay, that makes sense” because this information supported his suspicion that the driver could be a drug dealer. He then immediately asked if there were any scout cars in the area, without mentioning any issues with respect to the manner of driving of the Vehicle. This request was made at approximately 1:28:48 p.m., i.e., approximately one minute after PC Brooks turned off his body-worn camera. By that time, it is very likely that the Vehicle had already turned left on Tecumseh Street. It is only after dispatch said that they could send somebody and asked if PC Brooks had the Vehicle stopped that PC Brooks mentioned for the first time that “it’s just weaving through traffic trying to escape us and we’re on bikes which is hard to keep up.” I note that: (i) no attempt was made to stop the Vehicle before PC Brooks received the information about the Vehicle from dispatch; and (ii) the statement about the Vehicle weaving through traffic was made only after dispatch asked questions and at a time where the Vehicle was likely no longer on Queen Street West. I also note that the nature and purpose of PC Brooks’ requests on the air were not clear, which prompted him to clarify later (in the audio transmission that started at 1:32:06 p.m.) that the bike officers had not tried to stop the Vehicle. He also mentioned at that time that there were two known drug users in the back of the Vehicle and that it was possible that a dug transaction was occurring. [Emphasis by PJM]
[134] In light of the foregoing – including the sequencing of events, the generality of the statements that were made and the fact that they contain some inaccuracies and oddities, the contemporaneous statements of PC Brooks and PC Leal do not detract from my conclusion that it has not been established on the balance of probabilities that Mr. Barker’s manner of driving on Queen Street West gave rise to a subjective and legitimate intention to stop the Vehicle for highway regulation and safety purposes.
[135] Thus, I conclude that PC Brooks and/or PC Leal did not actually form a legitimate intention to stop the Vehicle for highway regulation and safety purposes, and that the HTA powers were used in this case, based on a mere hunch, as a pretext to stop the Vehicle in order to investigate a possible drug transaction. Therefore, the detention of Mr. Barker on Niagara Street was unlawful and arbitrary and his right under section 9 of the Charter was infringed.
[136] The only search challenged by the Applicant in this case is the search conducted by PC Singh when he was standing next to the Vehicle on Niagara Street, and put his arm in the Vehicle through the passenger side window and grabbed two baggies on the front passenger seat.
c. Analysis
[141] In my view, the plain view doctrine criteria are not met in this case. Therefore, the search/seizure conducted by PC Singh was unreasonable.
[142] Given that Mr. Barker’s detention on Niagara Street was unlawful, PC Singh was not “lawfully positioned” and did not have a lawful justification for being next to the Vehicle, looking into it and reaching into it with his arm.
[143] Further, I find that the nature of the evidence was not immediately apparent as constituting a criminal offence. In coming to this conclusion, I reject both Mr. Barker’s evidence and PC Singh’s evidence, and I rely on the pictures and body-worn camera footage that were marked as exhibits.
[147] Most importantly, PC Singh moved things on the front passenger seat for approximately 5 seconds before he grabbed the two baggies of substances. Given that he had to move the items located on the front passenger seat in order to grab the two baggies, the nature of the evidence was not immediately apparent. This conclusion is supported by the fact that PC Singh asked “what is this” or similar questions a number of times as he was moving things around. He also asked: “Isn’t that weed?” The fact that he asked this question is very revealing, for two reasons: (1) if the nature of the evidence had been immediately apparent, PC Singh would not have had to ask what that was; and (2) the two baggies that were seized did not contain “weed” and their contents did not look like “weed”.
[149] Thus, the plain view doctrine does not apply in this case. Therefore, the Crown has not established the reasonableness of PC Singh’s warrantless search/seizure. As a result, Mr. Barker’s right under section 8 of the Charter was infringed.
c. Analysis
[160] I agree with the Crown’s concession that the police infringed Mr. Barker’s rights under section 10(b) of the Charter. There are no reasonable grounds in this case to justify a delay of more than ten hours….
[163] In light of the specific factual circumstances of this case, I conclude that the delay in facilitating access to counsel for Mr. Barker was reasonable until 5:30 p.m., but that the subsequent delay until 3:44 a.m. – i.e., 10 hours and 14 minutes – was unreasonable.5 Therefore, Mr. Barker’s right under section 10(b) of the Charter was infringed.
