When Can Police Search Your Car for Cannabis? Understanding Your Charter Rights After R. v. McGowan-Morris

PUBLISHED ON March 15, 2026

The Ontario Court of Appeal’s (ONCA) recent decision in R. v. McGowan-Morris, 2025 ONCA 349, provides critical clarity on the limits of police powers during a vehicle search under the Cannabis Control Act (CCA), particularly regarding your right to counsel.

The Facts of the Case

In this case, police drove past a Jeep and detected the odour of marijuana. After pulling the vehicle over, an officer observed a passenger holding an unlit joint. Relying on section 12(3) of the CCA—which allows police to conduct a warrantless search of a vehicle and its occupants if they have reasonable grounds to believe cannabis is unlawfully contained inside—the officer decided to search the vehicle. The situation escalated when one passenger fled, and another (the respondent) was forcibly removed and grounded by police. During the search, police discovered two handguns and an extended magazine. The respondent was not read his right to counsel until ten minutes after the chaos erupted and the guns were found. At trial, the judge excluded the firearms from evidence due to multiple Charter breaches, leading to an acquittal. The Crown appealed.

The Section 10(b) Issue: When Do You Get to Call a Lawyer?

Section 10(b) of the Charter guarantees your right to retain and instruct counsel without delay. In McGowan-Morris, the central issue on appeal was whether police are allowed to temporarily “suspend” this right during a roadside CCA search. The Crown argued that CCA searches should be treated like roadside sobriety tests for drunk driving, where the Supreme Court has previously ruled that the right to counsel can be briefly suspended to allow police to quickly screen drivers. The ONCA firmly rejected this argument. The Court ruled that the CCA does not imply a suspension of your section 10(b) rights. The ONCA highlighted several key reasons why a cannabis search is fundamentally different from a DUI screening:

Intrusiveness: A CCA search is far more invasive. It allows police to search not just the driver, but all passengers, the vehicle, and luggage without a warrant.

No Time Limits: Unlike drunk driving investigations, which have strict statutory timeframes to catch a driver before alcohol metabolizes, the CCA imposes no time limits on police.

Immediate Application: Once the police form reasonable grounds and an intention to search the vehicle and its occupants under the CCA, the occupants are immediately entitled to their full right to counsel.

Because the officer in this case pulled the Jeep over with the stated intention of searching it for cannabis, he was required to advise the occupants of their right to counsel immediately upon approaching the vehicle. His failure to do so resulted in a breach of the respondent’s s. 10(b) Charter rights.

The Section 8 Issue: Unreasonable Search and Seizure

Section 8 of the Charter protects you against unreasonable search and seizure. In this case, the trial judge found that the initial search of the Jeep did not violate. 8 because it was legally authorized by the broad powers granted to police under s. 12(3) of the CCA.

However, a minor section 8 violation did occur because the police failed to file a mandatory report to a justice after seizing the items, as required by s. 489.1 of the Criminal Code. Both the trial judge and the ONCA characterized this post-seizure breach as “minor and inconsequential”.

The Outcome: Section 24(2) and the Exclusion of Evidence

Even if your Charter rights are violated, evidence is not automatically inadmissible. Under s. 24(2) of the Charter, courts must determine if admitting the evidence would bring the administration of justice into disrepute. Although the ONCA upheld the s. 10(b) breached and acknowledged the minor’s s. 8 breach, they overturned the trial judge’s decision to exclude the handguns. The Court of Appeal concluded that the delay in providing the right to counsel was very brief and had minimal impact on the accused’s rights. Furthermore, the discovered firearms were highly reliable evidence. Consequently, the ONCA ruled that the evidence should be admitted and ordered a new trial.

Conclusion

The police cannot use the Cannabis Control Act as a blank cheque to indefinitely detain someone and search the vehicle. If someone is stopped and the police intend to search the vehicle, the individual’s right to counsel triggers immediately.

What is written here is simply a brief and general case summary. This is not legal advice and is not intended to be so. Should you require legal advice about your case, you should consult with an experienced criminal defence lawyer. Contact Brian Ross at (416) 658-5855.