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POA - Search and Seizure. R. v. McGowan-Morris
In R. v. McGowan-Morris (Ont CA, 2025) the Ontario Court of Appeal allowed a Crown criminal appeal, here from an acquittal where "the trial judge’s findings that the respondent’s rights were violated or, alternatively, his decision to exclude the evidence of under s. 24(2) of the Charter".
Here the court reviews some search and seizure provisions of the Cannabis Control Act, 2017 (CCA):[11] It is helpful at this point to describe the legal framework of s. 12 of the CCA. The relevant portions of the provision read as follows:(3) Section 12 of the CCA
[63] Although he relevant portions of s. 12 of the CCA are reproduced in para. 11, above, I include them here for convenience:Transporting cannabis
12 (1) No person shall drive or have the care or control of a vehicle or boat, whether or not it is in motion, while any cannabis is contained in the vehicle or boat.
Exception
(2) Subsection (1) does not apply with respect to cannabis that,
(a) is in its original packaging and has not been opened; or
(b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle or boat. 2018, c. 12, Sched. 1, s. 12 (1).
Search of vehicle or boat
(3) A police officer who has reasonable grounds to believe that cannabis is being contained in a vehicle or boat in contravention of subsection (1) may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it. [Emphasis added.] [64] As the section heading states, s. 12 regulates the transport of cannabis. In particular, it is focused on the storage of cannabis that is being transported. The clear purpose is to ensure that cannabis is not readily available to any person in a vehicle or boat. The public safety goal is to prevent the use of cannabis by the driver or the occupants of a car or boat while it is being operated: R. v. Sappleton, 2021 ONSC 430, at paras. 46 and 50; R. v. Moulton, 2023 ONCJ 140, at para. 234.
[65] It is an offence to infringe this provision, which may result in a fine for an individual of up to $100,000, a term of imprisonment as long as one year, or both: ss. 22, 23. As noted above, only the driver or a person in care or control of the vehicle or boat may be liable; the offence does not apply to passengers. Even so, s. 12(3) empowers a police officer, on reasonable grounds, to search, without a warrant, a vehicle or boat and any person in it (i.e., passengers).
[66] As noted in R. v. Leonard, 2025 ONCA 63, at para. 9, there are conflicting decisions in the trial courts as to whether this provision, and a near identical provision in the s. 32(5) of the Liquor Licence Act, R.S.O. 1990, c. L.19 (LLA), permits the search of the trunk of a car: see also R. v. Guerrier, 2024 ONCA 838, at para. 19. This court has yet to explore the full scope of the search power in s. 12(3). It is not necessary to do so for the purposes of this appeal. Suffice it to say, this search power, without a warrant, is broad and potentially very intrusive.
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