This week’s top three summaries: R v McDonald, 2025 ONCA 807: Browne v Dunn, R v Brennan, 2025 ONSC 6116: s.8 #marijuana smell, R v MR, 2025 ONCA 789: #appeal bail

R v McDonald, 2025 ONCA 807

[November 25, 2025] The Rule in Browne v Dunn [Reasons by Fairburn A.C.J.O., with David M. Paciocco and A. Harvison Young JJ.A. concurring]

AUTHOR’S NOTE: The Rule in Browne v. Dunn is grounded in trial fairness, which means its application is highly fact-specific. The jurisprudence does not require defence counsel to explicitly put a blunt proposition—such as “Are you lying?”—to a witness in every circumstance. Where the cross-examination clearly signals that the defence disputes a witness’s memory or version of events, and counsel asks questions that directly undermine the witness’s recall, there is no breach.

In this case, the issue concerned an alleged confession made during a phone call. Defence counsel’s questions about the recipient’s sobriety and the absence of any corroborating phone records made it obvious that the defence was challenging whether the call—and the confession—occurred at all. That was sufficient to satisfy the rule.

Importantly, even where a breach is found, the remedy can never insulate a witness’s evidence from disbelief. A trial judge may instruct the jury that the witness was not given a chance to respond to the contradictory version—but the jury still retains its core function: to assess the evidence and decide the facts.

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I. OVERVIEW

[1] Emmanuel Awai was murdered in his own apartment, shot twice in the head. The sole issue at trial was the identity of the shooter.

[2] Mr. Awai and the appellant were friends. Both were involved in the drug business. There was strong evidence placing the appellant at Mr. Awai’s apartment around the time of death. The defence position was that the appellant was there to conduct a drug transaction and left while Mr. Awai was still alive. The Crown position was that the appellant was the killer.

[3] Khasheequia Gregory, the appellant’s former intimate partner, testified at trial. She was a highly reluctant Crown witness who was eventually the subject of a successful application under s. 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5. On cross-examination by the Crown, she adopted as true large portions of a statement she had made to the police, including that the appellant had called her shortly after the murder and confessed to shooting Mr. Awai.

[4] Defence counsel cross-examined Ms. Gregory about various inconsistencies between her police statement, preliminary inquiry evidence and trial evidence, but did not explicitly put to her that she was fabricating the confession. Accordingly, Crown counsel objected to defence counsel’s suggestion in his closing address that Ms. Gregory made up the confession. Leaning on the rule in Browne v. Dunn (1893), 6 R. 67 (H.L. (Eng.)), the Crown asked for a corrective instruction from the trial judge.

[5] The trial judge agreed with the Crown’s objection, concluding that the defence had breached the rule in Browne v. Dunn by failing to specifically confront Ms. Gregory with the suggestion that she was fabricating her evidence. Accordingly, he concluded that a corrective instruction was required, and he instructed the jury that in evaluating Ms. Gregory’s evidence, they were not permitted to find that she “fabricated her story….

[7] I would allow the appeal. As I will explain, there was no breach of the rule in Browne v. Dunn and, even had there been, the corrective instruction went too far….

2. Ms. Gregory’s Testimony

[19] Ms. Gregory, who was a key witness at trial, was asked in examination-inchief whether she had “ever” talked with the appellant about “Emmanuel’s death”. She first responded that she and the appellant had texted one another and that he told her “your boy is gone.” He apparently told her by text message that Mr. Awai was shot with “two to the head.” She denied that the appellant told her who had shot Mr. Awai.

[21] Ms. Gregory was eventually given an opportunity to review the entire video statement she had provided to the police. This was done in the absence of the jury. She confirmed that reviewing the statement refreshed her memory. She then testified that she “wasn’t sober” when she received the information from the appellant. She also said that she heard from the appellant by way of a phone call and not text messages. She also testified that the appellant told her Mr. Awai had been shot in the head, but she denied that the appellant told her who had fired the shots.

[22] In the absence of the jury, the Crown then brought an application for leave to cross-examine Ms. Gregory on prior inconsistent statements under s. 9(2) of the Canada Evidence Act. The application was granted, and the Crown proceeded to cross-examine her by confronting her with the parts of her police statement where she suggested that the appellant had confessed to her.

[23] Those parts of her statement were read to her, and she confirmed they were correct and true, including that the appellant said to her “‘you didn’t think I was going to kill him, I bodied him.’” She responded “‘[y]ou want a gold sticker, do you want a cookie. What did you accomplish? You killed your best friend.’” He then said he had given Mr. Awai a “‘dome shot’”.2

[24] Ms. Gregory admitted that she had been drinking the night she received the call and that she was hungover when she gave her police statement.

[25] Ms. Gregory further agreed under cross-examination that she had been scared to testify and that she had received a call from the appellant, who did not want her to testify. She agreed the call affected how she had testified at the outset and that it led her to minimize the appellant’s involvement as much as possible.

[26] Defence counsel then cross-examined Ms. Gregory. This cross-examination is central to this appeal.

[27] Ms. Gregory first confirmed that she told police that the appellant had called her from his usual number. Other than a few digits, she could not recount that number.

[28] She was unable to explain why she testified at the preliminary inquiry that the appellant told her that he had taken three shots and then she changed that number to two at trial. All she could say was that she thought she “could be wrong.” She admitted that she was “drunk” when she received the call.

[29] Defence counsel also took Ms. Gregory to the portion of her police statement where she was asked by the interviewing officer whether her phone records would “a hundred percent” confirm she received the appellant’s call at 3:00 a.m., and she confirmed that they would, but to her knowledge, those records had never been obtained.

[30] Ms. Gregory was also questioned by defence counsel about some aspects of her preliminary inquiry testimony, including that she did not tell the police that the appellant had said “your boy is gone” and yet she testified to that effect at the preliminary inquiry. She also agreed that at the preliminary inquiry she was asked whether she remembered when she spoke with the appellant about having shot Mr. Awai, and she had said she could not remember the day that conversation took place.

[34] In his closing submissions, defence counsel noted it was for the jury to decide if Ms. Gregory was reliable. He challenged inconsistencies in her testimony and stated that she was “making it up”:

Ms. Gregory’s testimony – first of all, her memory of what she said the first time [the police], what she said the second time [at the preliminary inquiry], and what she said the third time [at trial], is not a memory problem, she’s making it up. She was making that up. And with no confession there’s no need for this alleged three-way call to try to persuade her to not to testify, because there’s been no confession.

5. The Post-Closing Procedural Discussion

[35] Following the closing submissions, Crown counsel took issue with defence counsel’s submission that Ms. Gregory was making up the “conversation that she reported having with the accused.” The Crown suggested this could probably be dealt with by “just pointing out that … that was never suggested to her”, that being the contention that she had made up the conversation with the appellant. The trial judge noted there was “some obligation” on the part of the defence to have challenged the witness in that way. The defence asked for the night to respond to the Crown’s objection.

[36] The next morning, Crown counsel asked the trial judge to include an instruction as follows: “[defence counsel] suggested you could conclude that Khasheequia Gregory was making it all up but he did not cross-examine her about that or give her a chance to respond to that allegation.”

6. The Jury Charge

[40] As for Ms. Gregory’s evidence, the jury was instructed that the defence position was that she should not be believed and that she was an unreliable historian when it came to the alleged confession. At the same time, the trial judge underscored that she was not given an opportunity to respond to the assertion that she was making up her testimony:

[Defence counsel] yesterday suggested that she made up her account. However, I must point out to you that she was not challenged in cross-examination in that way. She was not given an opportunity to explain any assertion that she was making up her testimony and as such, it is not open to you to conclude that she made it up for one reason or another.

Her reliability, and whether or how much of her evidence you will accept, is up to you but you cannot base that decision on a determination that she fabricated her story. That was not put to her. [Emphasis added.]

[42] Following the jury charge, defence counsel objected to the instruction, noting his concern that the charge effectively told the jury that they were not permitted to find Ms. Gregory had fabricated her evidence regarding the call in which the appellant allegedly confessed, leaving the jury with only two options: (i) Ms. Gregory was telling the truth; or (ii) Ms. Gregory was mistaken….

[Defence counsel]: We totally agree that it was improper for the suggestion to be made to the jury that Ms. Gregory was lying, that was an error on the part of the defence. However, we are concerned that in that paragraph what you’ve just told the jury is that “you cannot determine that she was lying”.

THE COURT: Is that what I…?

[Defence counsel]: It says, “Her reliability and whether or how much of her evidence you will accept is up to you but you cannot base that decision on a determination that she fabricated her story.”

[43] The trial judge said it was not his intention to leave the jury with the impression that they were barred from finding that Ms. Gregory was not telling the truth:

[44] Crown counsel immediately recognized the defence point: “I can see my friend’s point that the jury could conclude from her demeanour or from the inconsistencies, that they could have a reasonable doubt about whether or not she was telling the truth.” The Crown initially said that it was not clear how to go about fixing the issue without drawing more attention to it. Upon more reflection, she suggested that the trial judge could bring the jury back, repeat the impugned instruction and then explain that it remained open to them to determine whether Ms. Gregory was a credible witness and whether to believe or disbelieve any part of her testimony “based on how she testified and what she actually testified to”.

7. The Jury Question

[46] The jury asked one question during their deliberations, and it was about Ms. Gregory’s evidence:

Was Ms. Gregory’s testimony at the police station entered into evidence? If not, are you able to read us her testimony?

[47] After a discussion with counsel, the trial judge informed the jury that the police statement was not in evidence, but that he would play a recording of Ms. Gregory’s testimony before the court in its entirety. The play back was completed at 8:15 p.m., at which time the jury was excused for further deliberations. The jury returned their verdict at 8:53 p.m. They found the appellant guilty of second-degree murder.

IV. ANALYSIS

[54] I first set out the general principles governing the Browne v. Dunn issue. I then apply those principles to this case, explaining why I have concluded there was no violation of the rule in Browne v. Dunn and that, even if there was, the corrective instruction went too far. I then explain why the curative proviso does not apply.

1. The Governing Principles

[55] Although more than a century old now, the rule in Browne v. Dunn “remains a sound principle of general application” rooted in considerations of fairness: R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at para. 65.

[57] Broadly speaking, the rule requires the cross-examiner to confront the witness on matters of true substance upon which the cross-examiner intends to impeach the witness’s credibility so that the witness is afforded an opportunity to explain: R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at para. 81, leave to appeal refused, [2016] S.C.C.A. No. 203; R. v. Vorobiov, 2018 ONCA 448, at para. 43, leave to appeal refused, [2019] S.C.C.A. No. 440. This is a “confrontation principle in the context of cross-examination of a witness for a party opposed in interest on disputed factual issues”: Quansah, at para. 76. The rule applies when counsel intends to challenge the witness’s credibility either by calling contradictory evidence or making submissions to the trier of fact that tease out contradictions: Quansah, at para. 79; R. v. McCarroll, 2008 ONCA 715, 238 C.C.C. (3d) 404, at paras. 107-9.

[58] At its core, Browne v. Dunn comes down to a reminder that crossexaminations must be conducted fairly. Where the cross-examining party wants to challenge a witness’s credibility on a core point, the witness should be given the opportunity to comment. Not only is this fair to the witness, it is also fair to the opposing party who can respond as appropriate while time still permits, and it is fair to the trier of fact who is ultimately charged with the responsibility of making the credibility assessment.

[59] Yet flexibility, not rigidity, informs the proper approach to this rule, meaning that only matters of true substance come within its reach: Quansah, at para. 81; R. v. Mohamed, 2025 ONCA 611, at para. 217. And when it comes to those matters of substance, even then, specific confrontation may be unnecessary if it is apparent from the tenor of counsel’s cross-examination that they do not accept the witness’s version of events, the confrontation is general and known to the witness, and the witness’s view on the contradictory matter is apparent: Mohamed, at para. 217; Quansah, at para. 82; and Vorobiov, at para. 43. Quite simply, common sense demands that where the witness’s view of the alleged contradiction is clear, then a specific attempt to put the contradiction to the witness is unnecessary: Mohamed, at para. 217.[Emphasis by PJM]

[60] As for remedying those situations where there was a failure to confront in circumstances where it was required, there is no universal approach. The remedy called for will depend upon many factors, such as the seriousness of the breach, the context in which it occurred, the timing of the objection, the position of the offending party, any request to permit recall of the witness and their availability, and the adequacy of any corrective jury instruction: Quansah, at para. 117; R. v. Dexter, 2013 ONCA 744, 313 O.A.C. 226, at para. 20. If a corrective instruction is required, no specific formula is mandated, but “the jury should be told that in assessing the weight to be given to the uncontradicted evidence, they may properly take into account the fact that the opposing witness was not questioned about it”: R. v. McNeill (2000), 48 O.R. (3d) 212 (C.A.), at para. 49; see also Quansah, at paras. 121, 128; R. v. Cameron, 2017 ONCA 150, at paras. 8-9; and McCarroll, at para. 111.

2. Application of the Rule in Browne v. Dunn

[62] Despite the wide margin of deference operative in this area of the law, I conclude that there was no breach of the rule in Browne v. Dunn.

[63] Read in context, the overall tenor of the cross-examination made clear that the appellant was not simply challenging the accuracy of Ms. Gregory’s recall of the alleged confession, but her credibility as to whether he had in fact confessed. To this end, she was directly questioned on numerous issues in what could only be seen as a challenge to her evidence that she had received a call from the appellant in which he confessed to killing Mr. Awai.[Emphasis by PJM]

[64] For example, she was asked about the phone number that the appellant called from, and she was unable to recount the entire number.[Emphasis by PJM] 

[65] She was also challenged on whether the police had ever obtained her phone records to confirm that the call happened, and she thought they had not. This is despite the fact that, as defence counsel pointed out in cross-examination, the  police had asked her during her interview whether her phone records would “a hundred percent” confirm that she received the call from the appellant. The appellant maintains this was functionally equivalent to being challenged on whether the call actually happened. Although I would not go as far as the appellant on this point, this line of questioning certainly alerted the witness and all to the fact that the defence saw the lack of corroboration of the call as a weakness in Ms. Gregory’s evidence. Indeed, so clear was the defence position on this point that, as previously pointed out, defence counsel proactively asked the trial judge during the pre-charge conference to caution the jury that there were no phone records to corroborate Mr. Gregory’s testimony about the alleged call, a request that was ultimately declined. [Emphasis by PJM]

[66] Ms. Gregory was also cross-examined about the content of the call and the inconsistencies in her recollection as between the police statement, preliminary inquiry and trial, including on details as essential as the number of gunshots that the appellant purportedly told Ms. Gregory he inflicted on Mr. Awai.

[67] Although there is no question that the cross-examination could have been clearer, more direct, and blunter, it is clear, having read the entirety of Ms. Gregory’s trial evidence, that the overall tenor of the cross-examination was to suggest that the call did not happen and, even if it did, that the appellant did not confess. This only makes sense. After all, it was an alleged confession. Without shaking the jury’s confidence in Ms. Gregory’s suggestion that the appellant had confessed to her, the result of this trial would have been nearly a foregone conclusion. Attacking the witness’s recollection of particular details – for instance, whether she was accurately recounting whether the appellant said he shot the victim two or three times in the head – was peripheral to the point the defence needed to make. The defence needed to shake the jury’s confidence, not in the accuracy of the nuanced details of the confession, but in Ms. Gregory’s suggestion that there had even been a confession in the first place.

[68] The fact that defence counsel appears to have eventually accepted that he breached the rule in Browne v. Dunn does not mean that he was right to concede that point. Recall that the concession came only after the trial judge had decided that there was a breach of the Browne v. Dunn rule and taken steps to remedy that breach. In acknowledging that he had breached the rule, it may be that defence counsel was simply acquiescing to the trial judge’s earlier ruling.[Emphasis by PJM]

[69] Respectfully, I conclude that there was no breach of the Browne v. Dunn rule because it should have been clear to Ms. Gregory, to the Crown and to the jury that her credibility was being challenged, not on the details around the confession (e.g., two shots to the head vs. three shots to the head), but on whether there had even been a confession. To suggest that the defence had to challenge Ms. Gregory on the fact of the confession – “I suggest to you that there was no confession” – in order for the defence position to become clear, is not realistic. Quite simply, no one ambushed her.

[70] I would simply add the following. Unfortunately, this case is not unique. There are far too many occasions where purported breaches of the rule in Browne v. Dunn have led to cases going awry. This case is one of them. To require the cross-examiner to suggest to the witness that they are fabricating, just to have the witness respond that they are not, does nothing to advance the fairness of the case. To avoid these problems in the future, it is helpful to keep clearly focussed on the animating principle underlying the rule: fairness. An assertion that a witness is lying is not aimed at a contradiction in their evidence, but a conclusion to be drawn from their evidence. Provided that it is clear, as it was in this case, that the credibility of the witness is being challenged, it is open to the opposing party to encourage the trier of fact to come to that conclusion.[Emphasis by PJM]

3. The Corrective Instruction

[71] ….Although the remedy for a breach of the rule in Browne v. Dunn is a matter of discretion, I am of the view that the corrective instruction provided to the jury contains an error in principle.

[72] For ease, I repeat that instruction here:

….She was not given an opportunity to explain any assertion that she was making up her testimony and as such, it is not open to you to conclude that she made it up for one reason or another.

Her reliability, and whether or how much of her evidence you will accept, is up to you but you cannot base that decision on a determination that she fabricated her story. That was not put to her. [Emphasis added.]

[73] In my view, this instruction went too far because it inhibited the jury from considering whether Ms. Gregory fabricated her evidence about the phone call and, if there was a call, the contents of that call. Therefore, even if there had been a breach of the rule in Browne v. Dunn, the corrective instruction went too far.

[74] Instead, assuming a breach, at most, the jury should have been told that they could take into account the fact that Ms. Gregory was not questioned about fabricating the call or its contents when deciding the weight, if any, to be given to her evidence about the confession: see e.g., McNeill, at para. 49….

V. DISPOSITION

[87] I would set aside the conviction and order a new trial.

R v Brennan, 2025 ONSC 6116

[November 27, 2025] Charter s.8: The Importance of Police Duty Notes and Experience in Searches based on Smell of Marijuana [Justice A. Doyle] 

AUTHOR’S NOTE: During the era of marijuana prohibition, the purported smell of marijuana was frequently invoked by police as a basis for warrantless vehicle searches. Post-legalization, police have pivoted toward using regulatory offences—such as the prohibition on transporting open cannabis in a vehicle—to justify intrusive roadside searches.

In this case, although the outcome turned on broader credibility findings relating to the initial vehicle stop, the court’s comments on the “smell of marijuana” issue are particularly valuable for defence counsel. A trier of fact is entitled to disbelieve an officer who claims to have detected marijuana odour where the officer failed to record that observation in their duty notes, lacks meaningful experience identifying the smell, and where other officers present noted no such odour.

In such a factual constellation, the alleged detection of marijuana takes on an odour of falsity—and cannot be relied upon to justify a search.

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Overview

[1] Jordan Brennan faces 13 counts including unlawful possession of a firearm, possession of cocaine for the purpose of trafficking, unlawful possession of oxycodone, and possession of proceeds of crime.

[3] This case involved a traffic stop based on the grounds of impaired or distracted driving that turned into a search under the Cannabis Control Act (CCA) which led to the fruits of a criminal investigation of a firearm and drugs.

[6] Mr. Brennan submits that his s. 8 Charter right to be secure against unreasonable search or seizure, his s. 9 right not to be arbitrarily detained, and his s. 10 right to counsel were infringed.

[8] The Crown concedes that while Mr. Brennan’s s. 10 (a) rights were infringed, they were fleeting or technical breaches and should not result in the exclusion of the evidence.

Analysis

Undisputed Facts

[15] The alleged offences occurred on February 22, 2023, in Ottawa and Mr. Brennan before me is the person who was arrested on that date.

[16] The continuity of all exhibits and items seized by the Ottawa Police is admitted.

[17] This admission includes but is not limited to the firearm, firearm magazine, ammunition, GOSA drugs, GOSA drug paraphernalia, GOSA drug packaging, currency, and cellphonesseized by police on February 22, 2023.

[18] The authenticity and admissibility of the Ottawa Police photos of the seized exhibits is admitted.

[19] The quantity of the seized currency from Mr. Brennan and the vehicle is $995.00.

[20] The quantity of drugs seized from the vehicle is as follows:

a. 63.66 g. of Cocaine

b. 7 pills of Hydromorphone

c. 2 pills of Oxycodone/

[21] The nature of the drugs seized is admitted.

Did the police have lawful authority to stop Mr. Brennan’s vehicle to ensure compliance with highway regulations and road safety?

Legal framework

[31] Detention may be for the purposes of both road safety and investigation of criminal activity.

[34] However, the HTA does not provide lawful authority to stop the vehicle and detain the occupants if the highway safety concerns are merely a “ruse” or “pretext” to stop the vehicle for some other reason: R. v. Mayor, 2019 ONCA 578, 378 C.C.C. (3d) 453, at paras. 8-9; and R. v. Tully, 2022 ONSC 1852, at para. 25.

[35] For the court to determine the police purpose, the court must conduct a factual inquiry that requires consideration of all the circumstances including the officer’s evidence, the evidence of the detained person, the circumstances of the stop, and police conduct during the stop: Mayor, at para. 10.

[36] As noted by Binnie J. for the Supreme Court in R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at paras. 3-4:

Clearly random checks of vehicles for highway purposes must be limited to their intended purpose and cannot be turned into “an unfounded general inquisition or an unreasonable search.” Nevertheless, roadside stops sometimes develop in unpredictable ways. It is necessary for a court to proceed step by step through the interactions of the police and the appellants from the initial stop onwards to determine whether, as the situation developed, the police stayed within their authority, having regard to the information lawfully obtained at each stage of their inquiry. [Citations omitted.]

The Traffic Stop

Constable Sabeeh’s Evidence

[40] Constable Ali Sabeeh was the investigating officer who initiated the traffic stop.

[44] He testified that at 00:56 a.m. on February 22, 2023, he was alone driving in his marked cruiser when he observed a vehicle driving northbound on Bank Street towards Wellington Street in Ottawa at a rate of approximately 20 to 30 kilometers per hour (kph). The maximum speed limit is 40 kph.

[45] He saw Mr. Brennan’s vehicle swerve and hit the right curb and overcorrect to the left and crossing over the centre line for two or three feet and then returning to the northbound lane. He then stopped for three to five seconds and then proceeded straight northbound on Bank Street. Mr. Brennan disobeyed a “no straight through” sign which prohibited vehicles from crossing Wellington from Bank Street.

[46] At 00:58, Cst. Sabeeh pulled Mr. Brennan over on the north side of Wellington in the Confederation building parking lot and told Mr. Brennan that the basis for the traffic stop was distracted driving and/or impaired driving. Mr. Brennan had a female passenger in the front seat, Victoria Lamirande.

[49] Constable Sabeeh testified that Mr. Brennan’s slow rate of speed caught his attention and when he ran the licence plate to determine if the owner is a suspended driver or there is an outstanding warrant, the name ‘Jordan Brennan’ came up, but he noted that there were no concerns as he had no criminal record and was not on CPIC.

Mr. Brennan’s evidence

[55] He exited Highway 417 at Catherine Street and then proceeded north on Bank Street. He and his passenger were chatting, and the radio was on.

[56] He testified that he witnessed Cst. Sabeeh in his cruiser turn left on to Bank Street and follow him as he proceeded north on Bank Street. He believes that he first spotted him near Catherine Street as soon as he left the highway.

[57] Mr. Brennan indicates that he has many previous stops by police in the past. In crossexamination he stated that there were at least five occasions before this traffic stop where he was stopped by the police for no apparent reason. He also described other incidents which occurred after this traffic stop.

[58] Given his past experiences with traffic stops, he was hypervigilant when he saw the cruiser behind him.

[59] Mr. Brennan testified that he did not wish to draw attention to himself as he did not want to be stopped and run the risk of the discovery of the illegal items in his vehicle, i.e. a firearm and drugs.

[62] When he arrived at the Sparks Street intersection on Bank Street, he pulled over to the right side so he could stop and turn his head to see if the restaurant was still open.

[63] He thought the cruiser would just pass him and go on his way. He noticed that the cruiser was still behind him. He put on his left signal and pulled back into traffic. He denies that he hit the curb or overcorrected, but admits he was travelling at below the speed limit.

[64] He travelled through the Wellington Street intersection planning to complete a U turn and return to Bank Street. He said there was no sign prohibiting driving through this intersection. He would not have disobeyed a traffic sign especially on that day given what was in his vehicle and that he was being followed by a police cruiser.

[65] He stopped his vehicle as Cst. Sabeeh activated his emergency lights. He parked in the lot on the north side of Wellington Street.

[70] Given Mr. Brennan and Cst. Sabeeh have different narratives of the events preceding the traffic stop, the court is required to make findings regarding the credibility and reliability of their evidence.

[72] Crown concedes that slow driving, on its own, in the circumstances of this case, at nighttime in downtown Ottawa with a 40 kph zone, may not provide grounds to detain. I agree.

Sign

[73] Both Cst. Sabeeh and Mr. Brennan confirm that Mr. Brennan crossed Wellington from Bank Street, but they differ on whether a sign existed. Mr. Brennan disagrees that the sign stated that through traffic was not permitted crossing Wellington north from Bank Street.

[75] There was no corroborating evidence that the sign existed. Photos of that intersection dated May 2021, May 2022, and June 2023 do not show any sign present and they are not helpful.

[76] No other Crown witness remembers a sign forbidding vehicles from driving through. In fact, some of the officers attending that evening drove through that intersection traveling north on Bank Street crossing Wellington.

[77] There were no safety or urgent issues at play, which would have necessitated the police to disobey a sign. Cst. Toneguzzi, who was driving to the call, indicated that he would not break traffic rules unless the call was urgent and there was fear of officer safety.

[80] I do not accept Cst. Sabeeh’s evidence that there was sign at Wellington and Bank Street prohibiting vehicles from travelling north on Bank to drive through Wellington Street on February 22, 2023.

[81] I find Cst. Sabeeh’s testimony regarding the existence of a sign to be unreliable. I do not accept his evidence that a sign was present that forbid driving through.

Swerving

[82] Constable Sabeeh testified that even if there was no sign violation, he would have stopped Mr. Brennan because he hit the curb and then overcorrected. Mr. Brennan denies he hit a curb and overcorrected.

[83] If Mr. Brennan hit the curb and overcorrected, detention of him in a traffic stop would have been lawful.

[86] In determining whether Mr. Brennan hit the curb and overcorrected, I will discuss the following:

– Allegation of racial profiling set out the defence factum;

– Constable Sabeeh’s use of the information on his MDT;

– The implications of the rule in Browne v. Dunn (1893) 6 R. 67 (H.L.);

– Findings regarding Mr. Brennan’s evidence; and

– Constable Sabeeh’s duty notes.

Racial Profiling

[88] There is no evidence before the court regarding Mr. Brennan being targeted because he is black. I find that the applicant has not met his onus to show racial profiling.

Use of the MDT information

[102] I am not prepared to infer, on the balance of probabilities, that the reason for the traffic stop was Cst. Sabeeh’s knowledge that Mr. Brennan’s vehicle was previously involved with the seizure of drugs. I do not find that he effected the traffic stop for the purposes of a criminal investigation because of the previous owner’s previous criminal involvement.

Findings regarding Mr. Brennan’s evidence

[131] I accept that Mr. Brennan drove carefully that evening and I accept his evidence that he did not swerve and overcorrect. He saw a cruiser and given his previous involvement and traffic stops and his concern with the illegal items in his vehicle, it makes sense that he was attempting not to draw attention to himself.

[137] Duty notes are not just aide memoire, but they are notes that an officer can use to refresh their memory as to what occurred. The court can then understand in real time as the event unfolds what the officer’s belief as to why detention was lawful as the grounds for detention are extremely important.[Emphasis by PJM]

[138] The court must assess the grounds both subjectively, that is, what the officer personally believed at the time and the objective component, i.e. the specific facts or observations that lead to that belief.

[139] Constable Sabeeh’s notes do not at all explain his reasonable grounds for the stop….

[140] I acknowledge that not all key observations must be placed in duty notes as that is not a standard an officer can meet. It is not always possible for officers to write copious notes when they are dealing with a dynamic situation.[Emphasis by PJM]

[141] However, not only did he not indicate the grounds for the traffic stop, he also did not record in his duty notes that he smelled a “strong odour of vegetative cannabis” emanating from Mr. Brennan’s vehicle.[Emphasis by PJM]

[143] The other officers who responded to the call, Kiwan, Smith, and Toneguzzi, were only told that it was a traffic stop and did not inquire on the grounds when they arrived at the scene. They did not corroborate the grounds for the stop. They were told when they arrived that Cst. Sabeeh was conducting a CCA search.

[147] I do not accept Cst. Sabeeh’s evidence that Mr. Brennan swerved, hit the curb and overcorrect his vehicle.

Conclusion on the traffic stop

[148] I find that on the balance of probabilities, the detention was arbitrary. R. v. Amare, at para. 83.

[149] The detention became arbitrary when Mr. Brennan was detained and when it was determined he was not driving while impaired or distracted.

[150] First, I do not find there were sufficient grounds to detain Mr. Brennan for driving 20 or 30 kph on Bank Street, a 40 kph zone. In this case, this not an unreasonable rate of speed in downtown Ottawa at 1:00 a.m. and should not form the grounds for a traffic stop.

[151] Next, Cst. Sabeeh was mistaken about the sign. I am not satisfied on the balance of probabilities that there was a sign at Bank and Wellington preventing drivers from travelling north on Bank Street, crossing Wellington.

[152] Finally, I find that Cst. Sabeeh did not have objective and subjective grounds for detention as I accept Mr. Brennan’s testimony that he did not hit the curb or overcorrect. I find that the detention of Mr. Brennan was premised on a mere hunch or suspicion rather than reasonable grounds.

[153] Therefore, there was a s. 9 Charter breach in the initial detention and the traffic stop of Mr. Brennan.

Search under the CCA

Legal Framework

[155] The warrantless search of Mr. Brennan and his vehicle is presumptively unreasonable, and the Crown bears the burden to establish on a balance of probabilities that the search was authorized by law: R. v. Kang-Brown, 2008 SCC, [2008] 1 S.C.R. 456, 18 at para 48; R. v. Pinkney 2025 ONSC 3089 at para. 31; and Collins, at p. 278.

[157] The CCA does not authorize officers to conduct a thorough search of a vehicle. As stated in R. v. Stappleton 2021 ONSC 430, at para. 63, finding marijuana is not an open license to unreasonably interfere with Mr. Brennan’s Charter rights.[Emphasis by PJM]

[159] If an officer has reasonable grounds to believe that cannabis is in a car but is not in its original packaging, is not packed in closed baggage or is readily available to a person in the car, a warrantless search of the car under ss. 3 is authorized: R. v. Nzita, [2020] O.J. No. 3109, 465 C.R.R. (2d) 301 (Ont. C.J.) at para. 28. A search is lawful within the CCA if the officer had reasonable grounds to believe that there was unpackaged or readily available cannabis in the car.

Discussion

[168] However, they both agree Cst. Sabeeh told Mr. Brennan that he smelled cannabis, and that Mr. Brennan produced a grinder with a small amount of cannabis in it.

Findings on the grounds for the CCA search

Introduction

[243] For the reasons that follow, the court finds that Cst. Sabeeh did not have a reasonable suspicion to detain Mr. Brennan pursuant to the CCA and further, Cst. Sabeeh did not have reasonable grounds to believe that he was contravening the CCA.

[244] I do not accept that there was a “strong smell of vegetative cannabis” emanating from Mr. Brennan’s vehicle that would have permitted Cst. Sabeeh to detain Mr. Brennan.

[245] A search under CCA was embarked only after Mr. Brennan produced the incriminating evidence of grinder with a small amount of marijuana from inside the vehicle and hence accessible to him contrary to the CCA.

[247] Mr. Brennan provided a different narrative of what occurred after the traffic stop. I will consider his evidence as it pertains to the issues I must determine in this matter.

Smell

[249] Constable Sabeeh was the only individual who testified that he smelled vegetative cannabis emanating from the vehicle. As previously stated, this was not noted in his duty notes.

[250] Neither Cst. Kiwan or Cst. Smith or Cst. Toneguzzi said they smelled vegetative cannabis emanating from the persons or the car during the search. Cst. Kiwan testified that if had he smelled cannabis, he would have written this in his notes.

[251] Ms. Lamirande did not smell it either although, as noted earlier, the court gives little weight to her evidence.

[253] Constable Toneguzzi only admitted for the first time at the preliminary hearing that he smelled burnt cannabis emanating from Mr. Brennan’s vehicle. This observation was not contained in his own notes, nor in his IA, nor mentioned in Detective Danford’s notes in preparation for the preliminary hearing. I give little weight to this testimony given the lack of corroborative evidence and the fact that it was only raised at the preliminary hearing.

[254] Given this smell of fresh cannabis (as opposed to burnt cannabis), Cst. Sabeeh asked Mr. Brennan if he had cannabis in the vehicle and showed Cst. Sabeeh his grinder with a small quantity of cannabis.

[255] Mr. Brennan is not sure that the grinder shown him in the court was actually his grinder.

[257] I am skeptical whether there was a “strong smell of vegetative cannabis” emanating from the vehicle given the small amounts found and that no one but Cst. Sabeeh smelled it. The grinder located in the vehicle and the other items that were on Mr. Brennan’s person, including a bag of approximately 3 grams of vegetative cannabis was placed on his vehicle during the CCA search in proximity to the other officers who arrived at the scene. Still no other officers testified about the smell nor do their notes reflect noting a smell.

[260] Given the above findings, I do not accept that Cst. Sabeeh was able to smell vegetative marijuana. Again, he did not tell his fellow officers about the smell nor was this found in his notes. Again, I find that Cst. Sabeeh did not smell a strong odour of cannabis emanating from Mr. Brennan’s vehicle and used that as a reason to search his vehicle.

[261] Even if the court accepts that Cst. Sabeeh was able to detect the smell of vegetative cannabis, the court finds that based on the facts and context of this case, the smell alone was not a sufficient ground to search Mr. Brennan and Mr. Brennan’s vehicle under s. 12(3) of the CCA.[Emphasis by PJM]

[263] In R. v Polashek, [1999] 45 O.R. (3d) 434 (C.A.), the Ontario Court of Appeal upheld the finding of the trial judge where there were a number of factors which established reasonable grounds for the search of the accused’s vehicle. Those grounds included a smell of marijuana and drugs that were prominent in the area of the arrest.[Emphasis by PJM]

[264] On behalf of the Court, Justice Rosenberg stated that generally speaking the presence of the odour of marijuana standing alone could not establish reasonable grounds to believe that the occupant of a vehicle is in possession of marijuana. He indicated that the smell of marijuana is highly subjective and that if that was the only basis for an arrest, then it would “result in an unreviewable discretion in the hands of police officers”.

[266] In this case, Cst. Sabeeh had been an officer for just over a year. His training was limited. He admits that he has no training on the issue of the differences between the smell of burnt and vegetative cannabis.

[270] In summary, a review of the cases suggests that in certain circumstances a smell of a small amount of vegetative cannabis may not be enough to provide reasonable and probable grounds to conduct a search. In addition, the level of specialized training is helpful in the analysis.

[271] In conclusion, there were approximately 4 grams that were being transported. There were .5 grams in the grinder and the balance in a bag (Ziploc or Mario bag). Since no one else noticed the smell other than Cst. Sabeeh, it could not have been a strong odour or overwhelming.

[272] Therefore, I find that at the time Cst. Sabeeh asked Mr. Brennan if he had cannabis in his vehicle, there were no reasonable grounds to conduct a search under the CCA based on smell alone. There were no other indicia present that would support grounds for a search.

[273] Mr. Brennan’s s. 8 Charter right was breached.

Conclusion

[320] The Crown has not established on the balance of probabilities that the traffic stop was a lawful detention. I also find that the defence has proven that it was arbitrary.

[321] The Crown has not established on the balance of probabilities that the warrantless search of Mr. Brennan and his vehicle pursuant to s.12(3) of the CCA was authorized. The only ground was the smell of vegetative cannabis and no one else on the scene smelled it. Even if there was a smell, in the circumstances of his case, the smell was not enough to conduct a search.

[322] The scope of the search under the CCA was reasonable.

[323] Mr. Brennan was not advised of his right to counsel during the CCA detention and search.

[324] There was a further violation of his right to counsel when he was charged with the possession of cocaine for the purpose of trafficking and proceeds of crime.

[325] Therefore, there were breaches of ss. 8, 9, and 10 (a).

[393] Having considered the factors set out in R. v. Grant, the court grants the defence application, and the evidence seized from Mr. Brennan and his vehicle will be excluded.

[394] Consequently, the Crown having no physical evidence, the charges against Mr. Brennan are dismissed.