Charter were violated by a delay in informing him of his right to counsel, but that
no evidence was discovered as a result. The trial judge dismissed the accused’s
application to exclude the evidence found in the van and the residence under
s. 24(2) of the Charter. The accused was convicted. He appealed his conviction
and his five-year sentence.
Held, the conviction appeal should be allowed.
The trial judge erred in finding that the initial stop was authorized under
s. 216(1) of the Highway Traffic Act. Section 216(1) authorizes a police officer to
stop vehicles for highway regulation and safety purposes. Stops made under
s. 216(1) will not result in an arbitrary detention provided the decision to stop is
made in accordance with some standard or standards which promote the legislative purpose underlying the statutory authorization for the stop, that is, road
safety concerns. On the officer’s own evidence in this case, his sole reason for
stopping the van was to pursue his investigation of the residential break-ins. The
stop was also not authorized at common law, as the officer did not have reasonable grounds to suspect that the accused was involved in the break-ins, or any
other criminal activity. The accused was arbitrarily detained contrary to s. 9 of
When the officer smelled the fresh marijuana and saw the cardboard boxes in
the van, he had reasonable grounds to arrest the accused (apart from a consideration of the effect of the initial arbitrary detention). The search of one of the
cardboard boxes was incident to that arrest and did not violate the accused’s
rights under s. 8 of the Charter.
The trial judge erred in finding that the strip search was reasonable because
the officer had reasonable and probable grounds to arrest the accused. Reasonable and probable grounds beyond those that justify the arrest are required to
render a strip search reasonable. The mere possibility of an individual concealing
evidence is not enough to justify a strip search to find that evidence. The circumstances in this case did not establish more than a mere possibility, if that, that
the accused was concealing evidence that a strip search would locate. The strip
search was unlawful and violated the accused’s rights under s. 8 of the Charter.
The trial judge’s analysis under s. 24(2) of the Charter was not entitled to deference as he found only one Charter violation, the s. 10(b) violation. The initial
arbitrary detention permitted the officer to smell the fresh marijuana and see the
boxes; those observations provided the officer with reasonable and probable
grounds to arrest the accused; the arrest led to the discovery of marijuana in one
of the boxes; and that discovery led to the search warrant for the van, which led
to the search warrant for the house. In combination, the seriousness of the police
misconduct and the strong negative impact of the breaches on the accused’s
Charter-protected interests constituted an unanswerable case for exclusion of the
evidence under s. 24(2) of the Charter.
R. v. Grant,  2 S.C.R. 353,  S.C.J. No. 32, 2009 SCC 32, 82 M.V.R.
(5th) 1, 309 D.L.R. (4th) 1, 245 C.C.C. (3d) 1, EYB 2009-161617, J.E. 2009-1379,
66 C.R. (6th) 1, 193 C.R.R. (2d) 1, 391 N.R. 1, 253 O.A.C. 124, apld
Brown v. Durham (Regional Municipality) Police Force (1998), 43 O.R. (3d)
223,  O.J. No. 5274, 167 D.L.R. (4th) 672, 116 O.A.C. 126, 131 C.C.C. (3d) 1,
21 C.R. (5th) 1, 59 C.R.R. (2d) 5, 39 M.V.R. (3d) 133, 84 A.C.W.S. (3d) 675,
40 W.C.B. (2d) 386 (C.A.); R. v. Polashek (1999), 45 O.R. (3d) 434,  O.J.
No. 968, 172 D.L.R. (4th) 350, 118 O.A.C. 312, 134 C.C.C. (3d) 187, 25 C.R. (5th)
183, 62 C.R.R. (2d) 331, 48 M.V.R. (3d) 174, 42 W.C.B. (2d) 6 (C.A.), consd