COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dosanjh, 2022 ONCA 689

DATE: 20221007

DOCKET: C68127

Fairburn A.C.J.O., Tulloch and Huscroft JJ.A.

BETWEEN

His Majesty the King

Respondent

and

Raja Dosanjh

Appellant

Alan D. Gold and Ellen C. Williams, for the appellant

Frank Au and Jeremy D. Tatum, for the respondent

Heard: February 24, 2022 by video conference

On appeal from the conviction entered on August 1, 2019 by Justice Gordon D. Lemon of the Superior Court of Justice, sitting with a jury.

Fairburn A.C.J.O.:

Overview

[1] On March 1, 2016, a man carrying a submachine gun shot and killed Aly Sunderani in front of his workplace at the Comfort Inn in Guelph, Ontario. The gunman approached the victim, fired multiple times, dropped the gun, entered a getaway vehicle and left the scene. The appellant was arrested about one year later and charged with first degree murder.

[2] The prosecution’s case was circumstantial, resting on four fundamental evidentiary pillars: (1) the appellant’s DNA was on the grip of the submachine gun left beside the victim’s body; (2) the appellant rented the getaway vehicle using a false identity just a few hours before the shooting; (3) the appellant’s clothing was caught on videotape when he rented the getaway vehicle and was said to match the clothing worn by the shooter, also caught on videotape; and (4) the tracklog data seized from the getaway vehicle was consistent with the vehicle leaving the car rental agency, travelling to a family home connected to the appellant, travelling to the Comfort Inn at the exact time of the shooting and, immediately after the shooting, travelling back to the home connected to the appellant.

[3] The appellant called three witnesses in his defence. Combined, their testimony raised both an alibi and alternate suspect defence. As was his choice, the appellant did not testify.

[4] There was no dispute that the murder was an obviously intentional, planned and deliberate one. Therefore, by the time that the matter was left for the jury’s consideration, the only real issue for their resolution was one of identity: who killed Mr. Sunderani in broad daylight outside of the hotel entranceway? The jury was clearly satisfied beyond a reasonable doubt that the answer to that question was: the appellant. On August 1, 2019, the jury returned a verdict of guilty of first degree murder.

[5] The appellant points to numerous errors that the trial judge is alleged to have made. These errors can be divided into two categories: (1) errors relating to the jury instructions; and (2) errors relating to the search of the getaway vehicle. I address each alleged error within its overarching category.

[6] For the reasons that follow, I would dismiss the appeal.

Factual Context

[7] Mr. Sunderani was the hotel manager at the Comfort Inn. He was working on March 1, 2016.

[8] Sometime in the late afternoon, Mr. Sunderani left the hotel. He returned a short while later in his Range Rover, parking under the carport just outside of the sliding door entry area to the hotel lobby. This area was captured by video surveillance.

[9] As Mr. Sunderani emerged from his vehicle, a gunman approached him and fired multiple shots. Mr. Sunderani suffered 31 gunshot wounds, some of which were caused by a single bullet both entering and exiting his body. Three bullet wounds were found in his heart.

[10] Two surveillance videos, taken together, were said to identify the appellant as the gunman. The gunman’s body was captured on the hotel’s surveillance video from about the chest down. The appellant was captured on the rental agency’s surveillance video earlier that same day. The Crown took the position that the clothing worn by the appellant at the car rental agency was the same clothing worn by the gunman: same pants, shirt and shoes.

[11] The submachine gun left next to the victim had a mixed DNA profile on the grip. The appellant could not be excluded as the source of the major DNA profile, and the mixed profile was estimated to be 3.7 million times more likely to have originated from the appellant and two unknown individuals than if it had originated from three unknown individuals unrelated to the appellant.

[12] Immediately after the shooting, the gunman entered the getaway car: a black Infiniti QX60. This was caught on hotel video surveillance. The QX60 was traced to a car rental agency in Mississauga. There was no dispute at trial that the appellant rented the vehicle under a false name, “Jaspinder Nagra”, only a few hours before the shooting.

[13] The QX60 was equipped with an Infotainment system that automatically tracks and logs all of the vehicle’s movements. A search of that data revealed that the QX60 pulled out of the rental agency at 1:16 p.m. on the day of the shooting. It then travelled to the home of Dalvir Passi’s parents, arriving at 1:28 p.m. Dalvir Passi is married to the appellant’s sister, Mandy Passi. The vehicle stayed for 11 minutes, and then travelled to the Guelph area. It entered the Comfort Inn parking lot at 3:52 p.m.

[14] Not only was the vehicle’s arrival at the Comfort Inn captured by the Infotainment data, it was also captured on the hotel’s video surveillance. This video shows the QX60 arrive and park at the back of the hotel. At 4:38 p.m., the QX60 moved toward the front of the hotel, the exact time that Mr. Sunderani was shot, after which the QX60 immediately drove away. The vehicle returned to Mr. Passi’s parents’ home and then moved along to the home of the appellant’s sister and Mr. Passi.

[15] The next evening, the appellant returned the QX60 to the car rental agency. It was acknowledged that he asked Mr. Passi to pick him up after the vehicle was returned. Yet, he did not ask to be picked up from the rental agency. Rather, the appellant asked Mr. Passi to wait for him at a gas station parking lot across a busy street from the rental agency.

[16] Mr. Passi testified for the defence at trial. His evidence was of some assistance to the Crown’s case, including his confirmation that he was with the appellant when he rented the QX60. While Mr. Passi also confirmed that he and the appellant had driven from the rental agency to his parents’ home, he said that once there, a couple of tall, white, bald or balding men arrived. Mr. Passi had never seen the men before. According to Mr. Passi, the appellant loaned them the QX60 so that they could complete a drug transaction. The men then drove off in the QX60 and returned it later that day, though Mr. Passi could not remember exactly when. According to Mr. Passi, while the QX60 was gone, he and the appellant played some video games and ran an errand.

Analysis

(1) Issues Relating to the Jury Instructions

[17] The appellant raises five concerns related to the jury instructions. According to the appellant, the trial judge erred: (i) by misdirecting the jury on the caution to be applied to exculpatory eyewitness evidence; (ii) by misdirecting the jury on the significance of prior consistent statements in relation to exculpatory evidence; (iii) by failing to give a combined R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 instruction in relation to two witnesses who provided exculpatory evidence; (iv) by failing to adequately respond to a question from the jury; and (v) by misdirecting the jury on evidence of after-the-fact conduct.

[18] Each of these issues must be considered in their proper legal context. To this end, when considering jury instructions on appeal, the law does not demand perfect instructions: R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at paras. 2, 32; R. v. Goforth, 2022 SCC 25, 415 C.C.C. (3d) 1, at paras. 20-22. Rather, a functional approach must be applied on appellate review, one that takes into account the context of the trial under review, considering the alleged errors against the charge as a whole, the trial record and the positions advanced by counsel: Jacquard, at paras. 14, 20, 32; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at paras. 31, 58; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 32.

[19] Applying this functional approach to the alleged errors in this case, I conclude that there is no reversible error.

(i) Instructions on Exculpatory Eyewitness Evidence

Overview

[20] The case against the appellant depended to some extent upon eyewitness testimony. Three witnesses saw the shooter at the Comfort Inn: Kapil Thakar, Stephanie Swanton and Eddie Berube. Both Ms. Swanton and Mr. Berube gave incriminating eyewitness testimony. The appellant accepts that the jury was properly cautioned when it came to their evidence. However, Mr. Thakar gave exculpatory eyewitness testimony. The appellant maintains that the trial judge erred by treating Mr. Thakar’s exculpatory evidence with the same degree of caution as Ms. Swanton and Mr. Berube’s inculpatory evidence.

The Eyewitness Evidence

[21] Mr. Thakar was the front desk manager at the Comfort Inn. He was working in the lobby when Mr. Sunderani was shot. He testified that he saw the gunman through the window and then ran outside to find the victim’s body on the ground, a black SUV passing by and a person running toward it.

[22] Mr. Thakar had a direct view of the gunman. Although it was through the lobby window, he testified that he saw the top of the gunman’s head. He described the gunman as “fair” with “a white complexion” and with “less hairs on his head.” He agreed in cross-examination that the shooter was a white, Caucasian male, neither black nor brown. There is no dispute that the appellant is not white. The appellant was described by his trial counsel as “a tall, brown-skinned, young man with a headful of dark hair, far from balding.” Mr. Thakar also agreed that he had told the police on an earlier occasion that the shooter had a “gaze (sic) of white coloured skin on his head.” He could not remember any facial hair or any features of the man’s face. He agreed that he only saw the gunman from behind.

[23] Ms. Swanton was a desk clerk at the Comfort Inn and was working with Mr. Thakar behind the front desk. She testified that the gunman was wearing a light grey sweater and sweatpants and that he was thin and very tall. There was no dispute that the appellant is both thin and tall. She saw a black vehicle go by, and then she saw the gunman get into it.

[24] Mr. Berube was a regular hotel guest. He was in his room at the time of the shooting. His room was on the ground floor and was close to the lobby. He testified that he heard multiple “pops” and then saw a person run by his room. The person was wearing a sweatsuit that Mr. Berube said was a dark colour. The hood was up and he did not see the individual’s face. According to Mr. Berube, the person appeared to be over six feet tall. Like Ms. Swanton, Mr. Berube described the person as both “tall and skinny”.

The Impugned Instruction and Defence Objections at Trial

[25] The trial judge cautioned the jury about relying on the eyewitness testimony of Mr. Thakar, Ms. Swanton and Mr. Berube. He said:

You must be very cautious about relying on eyewitness testimony in your determinations. Eyewitness identification may seem more reliable than it actually is because it is given by a credible and convincing witness who honestly, but perhaps mistakenly, describes the person whom she or he saw committing the offence.

Eyewitness identification is an expression by a witness of his or her belief or impression. It is quite possible for an honest witness to make a mistake in identification. Honest people make mistakes. Little connection exists between the great confidence of the witness in the correctness of his or her identification and the accuracy of the identification. Confidence and accuracy are two different things. Even a very confident witness may be honestly mistaken or entirely wrong about his or her identification.

[26] The trial judge then told the jury that to assess this type of evidence, they should consider the “circumstances in which the witness made their observations.” The trial judge also invited the jury to consider the eyewitness accounts against pictures and videos of the appellant taken around the time of the shooting.

[27] However, the trial judge cautioned the jury that it would be “improper” to conclude that the appellant was the shooter based only on the eyewitness descriptions given and what the appellant looked like at the time. This was because none of the witnesses could identify the appellant as the shooter.

[28] Then, the trial judge said:

If there are features described which are dissimilar to Mr. Dosanjh, they may be used as circumstantial evidence to demonstrate that he was not the shooter. That will be up to you to consider with the rest of the evidence.

And you will consider if the witness describe[d] any features peculiar to the accused. Did the witness miss any obvious physical features of the accused? Mr. Berube and Ms. Swanton said that the individual was tall and thin. Mr. Thakar, as I recollect his evidence, made no comment on height or weight but said that the shooter was white. Given the evidence of Mr. Passi and Mr. Liscio, we know that Mr. Dosanjh is approximately six foot, six and of East Indian descent.

[29] Both before and after the impugned instruction was delivered, the appellant’s counsel objected to the inclusion of Mr. Thakar in the caution. The appellant said that this instruction should only be applied to inculpatory evidence and that Mr. Thakar’s evidence was exculpatory in nature, given that he had described the shooter as white when the appellant in fact has brown skin.

[30] The trial judge refused to remove the cautionary instruction, although he did modify it from the standard charge: David Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015), at pp. 391-398 (Final 32). For instance, the trial judge removed references from the standard charge to the fact that miscarriages of justice have resulted in the past because of eyewitnesses who have made honest mistakes. He also added to the standard charge when he told the jury that “features described which are dissimilar” to the appellant’s features could be used to demonstrate that the appellant is not the shooter.

[31] Following the delivery of the charge, the appellant’s counsel objected to the inclusion of Mr. Thakar in the caution. The appellant’s concern was that the jury should not have been told to exercise “caution” in relation to Mr. Thakar’s evidence because it was exculpatory in nature.

The Argument on Appeal

[32] In this court, the appellant again renews his objection to Mr. Thakar’s evidence being included in the eyewitness evidence instruction. First, he alleges that the trial judge erred by including Mr. Thakar in this instruction because he only provided “observation” evidence, not eyewitness identification evidence. Second, he alleges that including Mr. Thakar’s exculpatory evidence in the cautionary instruction essentially reversed the burden of proof and undermined his defence.

Identification and Descriptive Evidence

[33] First, the appellant claims that Mr. Thakar’s evidence was not identification evidence because he did not provide an opinion that the appellant was the man that he witnessed shoot Mr. Sunderani. The appellant argues that Mr. Thakar’s evidence is more accurately described as “observation evidence” because he testified only to observations he made about the assailant’s physical features, most importantly, that the shooter was a white man or a man with a “gaze of white coloured skin on his head.”

[34] The appellant suggests that eyewitness identification evidence is fundamentally different from eyewitness description evidence. The first is an opinion that the accused is the person who committed the offence, while the second is simply evidence describing a characteristic or characteristics of a perpetrator. The appellant suggests that the latter does not raise the same reliability concerns that demand the cautionary instruction typically required in the case of identification evidence.

[35] I do not accept this distinction. Nor could I, as it has already been rejected by this court: R. v. Sheriffe, 2015 ONCA 880, 333 C.C.C. (3d) 330, at para. 22; R. v. Grant, 2022 ONCA 337, 413 C.C.C. (3d) 491, at para. 85.

[36] The fact is that the jury must be given a proper caution about the inherent frailties of both identification and description evidence. Certainly, where the Crown is relying upon description evidence to identify the accused as the perpetrator, it is necessary for the trial judge to charge the jury respecting the frailties of such evidence: R. v. Mariani, 2007 ONCA 329, 220 C.C.C. (3d) 74, at para. 14. See also: R. v. Bettencourt, 2008 ONCA 337, 2008 CarswellOnt 2451, at paras. 12-14, leave to appeal refused, [2009] S.C.C.A. No. 489. Indeed, in Sheriffe, at para. 22, Watt J.A. commented as follows:

This court has insisted that the jury be given a proper caution about the inherent frailties of both eyewitness identification evidence and eyewitness description evidence, and in respect of both inculpatory and exculpatory evidence … [Emphasis added.]

[37] The emphasized part of this quotation brings us to the next issue.

Did the Exculpatory Nature of Mr. Thakar’s Evidence Preclude a Caution?

[38] The appellant argues that the trial judge erred by including Mr. Thakar’s exculpatory evidence – that the shooter was a “white” man – in the eyewitness evidence caution. In particular, the appellant says that it was an error to tell the jury that they should be “very cautious” in relying upon that evidence.

[39] The application of the caution to the exculpatory description evidence is said to undermine the need for the trial judge to instruct the jury on the “potential importance” of any discrepancy between the accused and a witness’ description of the perpetrator. As the appellant puts it, “distinguishing features are entitled to respect, not caution.”

[40] In my view, the trial judge’s instruction reflects no reversible error.

[41] First, I will address the respondent’s suggestion that the trial judge needed to give a clear caution about Mr. Thakar’s evidence because he was, at best, a “mixed witness”. According to the respondent, Mr. Thakar was a mixed witness because he provided both exculpatory and incriminating eyewitness testimony. The inculpatory evidence is said to have arisen from the fact that, at one point, Mr. Thakar agreed that it was only a “gaze of white coloured skin” that he saw on the shooter’s head. Combined with another witness who described the appellant as a “fair skinned” man of “East Indian” descent, the respondent says that the “gaze of white” evidence could be seen as incriminating in nature.

[42] In my view, Mr. Thakar cannot be described as a “mixed witness”. On any understanding, his evidence was exculpatory in nature. Describing the shooter as a white man, and a Caucasian man, was wholly exculpatory. The question is whether, in light of this fact, the jury should have been instructed as they were.

[43] In the end, this ground of appeal turns on well-established principles of law.

[44] There is nothing wrong with a trial judge instructing a jury to approach certain types of exculpatory evidence with caution. This includes cautioning a jury about the inherent frailties of eyewitness identification and description evidence. An error will not automatically arise from telling a jury that they must exercise “care” and “caution” when approaching such evidence: R. v. Wristen (1999), 1999 CanLII 3824 (ON CA), 47 O.R. (3d) 66 (C.A.), at para. 40, leave to appeal refused, [2000] S.C.C.A. No. 419; R. v. Vassel, 2018 ONCA 721, 365 C.C.C. (3d) 45, at para. 189; Grant, at para. 85.

[45] The key is that when this type of instruction is given in relation to exculpatory evidence, the trial judge must avoid any suggestion that the jury should not rely upon the exculpatory evidence absent some other independent corroborating evidence: Wristen, at para. 41; Vassel, at para. 189; Grant, at para. 85. This is what Watt J.A. referred to in Vassel, at para. 189, as the “functional equivalent of a Vetrovec caution”.

[46] As well, it is essential that the trial judge not undermine the defence position at trial or, either expressly or by implication, leave the impression that the onus of proof shifts in relation to the subject evidence: Vassel, at para. 189; Mariani, at para. 16; R. v. Jeffrey (1989), 35 O.A.C. 321 (C.A.), at pp. 326-32. No error of law will result where the “trial judge merely instructs the jury to be especially cautious or extremely careful in considering defence evidence and where that instruction is accompanied by an instruction that accords with R. v. W.(D.)”: Grant, at para. 85.

[47] Applying these legal principles to the instructions in this case, I conclude that they contain no reversible error.

[48] To start, knowing that Mr. Thakar’s evidence was exculpatory in nature, the trial judge modified the standard jury instruction by removing various pieces of it and adapting it to address both the inculpatory and exculpatory evidence given by different witnesses. The instructions conveyed to the jury the following important concepts: the jury knew that they had to be “very cautious about relying on eyewitness testimony”; that eyewitness identification evidence “may seem more reliable than it actually is because it is given by a credible and convincing witness who honestly, but perhaps mistakenly, describes the person” who was seen committing the offence; that this type of evidence is an expression by a witness of his or her belief or impression; and that there is “little connection” between confidence and accuracy in an identification because even very confident witnesses may be honestly mistaken.

[49] After providing this caution, the trial judge next went on to inform the jury that if a witness (e.g., Mr. Thakar) described the shooter as having features “dissimilar” to the appellant “[those features] may be used as circumstantial evidence to demonstrate that he was not the shooter.” The trial judge then linked that instruction to a reminder for the jury that “Mr. Thakar … said that the shooter was white” and yet the appellant is of “East Indian descent.”

[50] These instructions demonstrate that the trial judge properly drew the jury’s attention to the discrepancy between the eyewitness testimony and the actual physical appearance of the appellant, as well as what use they could make of the discrepancy. At no point did the trial judge suggest that the jury could not act on Mr. Thakar’s evidence without other evidence to corroborate it.

[51] The trial judge concluded by reminding the jury that they could not convict the appellant unless they were satisfied beyond a reasonable doubt, based upon the whole of the evidence, that the appellant committed the offence. He further reminded the jury that it was for the Crown to prove guilt beyond a reasonable doubt and that the appellant had nothing to prove. Therefore, he did not shift the burden of proof.

[52] Finally, the trial judge immediately moved to a free-standing W.(D.) instruction relating to Mr. Thakar’s evidence. He instructed the jury as follows:

We will turn to the evidence of Mr. Thakar. If you accept the evidence of Mr. Thakar that the scalp of the shooter was white, then Dosanjh could not have been the shooter and you must find Mr. Dosanjh not guilty.

Even if you do not believe the evidence of Mr. Thakar that the scalp of the shooter was white, if it leaves you with a reasonable doubt that Mr. Dosanjh was the shooter, you must find Mr. Dosanjh not guilty.

Even if the evidence of Mr. Thakar does not leave you with a reasonable doubt about Mr. Dosanjh’s guilt, you may convict Mr. Dosanjh if the rest of the evidence that you do accept, proves Mr. Dosanjh’s guilt beyond a reasonable doubt.

[53] In my view, the trial judge did not commit reversible error by including Mr. Thakar’s evidence in the instruction. While the instruction is typically given to avoid the danger of wrongful convictions, and this danger will not lurk when the evidence is exculpatory in nature, it is not an error to instruct the jury to approach certain kinds of defence evidence with “care or caution” and to inform the jury of the reasons for that caution: Vassel, at para. 189; Wristen, at para. 46.

[54] This is exactly what the trial judge did in this case and he followed it with a clear, sharp W.(D.) instruction directed at the evidence of Mr. Thakar. I see no reversible error.

(ii) Instruction on Consistencies in the Evidence of Mr. Thakar and Mr. Passi

[55] The appellant argues that the trial judge erred when he gave the standard jury instruction regarding how to approach inconsistencies and consistencies in a witness’ testimony. The impugned instruction follows:

You should also remember that while inconsistencies may affect your assessment of a witness’ evidence, consistencies should not be a significant factor. Repeating the truth or a lie will not make the statement any more true or false.

[56] The appellant argues that the jury should have been told that this instruction did not apply to Mr. Thakar or Mr. Passi’s prior consistent statements. In particular, the appellant maintains that the jury should have been told that, to the extent each of these witnesses testified consistently with their previous statements, the fact of consistency could be used to bolster the jury’s assessment of their credibility and the reliability of their evidence.

[57] Mr. Thakar’s prior consistent statement arose from his 911 call just after the shooting. He referred to the shooter as “white”, consistent with his testimony at trial. Mr. Passi’s prior consistent statement arose from his preliminary hearing evidence, where he referred to the two white men who had borrowed the appellant’s rented QX60.

[58] There are no authorities to support the appellant’s position. The law is clear that the fact of a prior consistent statement is generally not probative of a witness’ credibility or of the truth of the statement and is considered irrelevant and self-serving evidence. Therefore, the statement will typically be inadmissible at trial whether tendered by the Crown or the defence. Where those statements are admitted into evidence for a specific purpose, such as forming part of the narrative, serving to rebut allegations of recent fabrication or serving to refute allegations of prior inconsistent statements, triers of fact should still be instructed on the permitted uses of the statement and that they must not use the prior consistent statement for a prohibited purpose, including “self-corroboration”: R. v. M.P., 2018 ONCA 608, 363 C.C.C. (3d) 61, at paras. 77-80; R. v. J. (M.A.), 2015 ONCA 725, 329 C.C.C. (3d) 149, at paras. 45-47; R. v. W.E.G., 2021 ONCA 365, 73 C.R. (7th) 141, at para. 20.

[59] The trial judge captured this in his instructions to the jury when he said: “[r]epeating a truth or a lie will not make the statement any more true or false”, meaning that a concocted statement will remain a concocted statement, no matter how many times it is repeated.

[60] Quite simply, the trial judge’s general instruction on this point followed the law. As noted in R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 7, it is impermissible to “assume that because a witness has made the same statement in the past, he or she is more likely to be telling the truth, and any admitted prior consistent statements should not be assessed for the truth of their contents.”

[61] This ground of appeal must fail.

(iii) W.(D.) Instructions for Mr. Thakar and Mr. Passi

[62] As should be clear at this stage of these reasons, both Mr. Thakar and Mr. Passi provided important evidence for the defence. Mr. Thakar provided the “white-shooter” evidence and Mr. Passi provided the “white alternate suspect” evidence. Accordingly, the defence asked for W.(D.) instructions in relation to both of these witnesses. The trial judge acceded to that request.

[63] Properly delivered, a W.(D.) instruction provides the trier of fact with a methodology that serves to emphasize the burden of proof and presumption of innocence when it comes to exculpatory evidence, regardless of whether that evidence is found within the Crown or the defence case. Nothing more needs to be said on this point, as the appellant does not object to the actual content of the instructions given.

[64] For the first time, in this court the appellant suggests that the trial judge erred by separating the W.(D.) instructions in relation to Mr. Thakar and Mr. Passi. According to the appellant, there should have been a single W.(D.) instruction that addressed their evidence together because, “[i]n this case, the total was greater than the sum of its parts.”

[65] I see no error in how the trial judge chose to approach this issue.

[66] How a trial judge decides to convey legal concepts to a jury is very much a matter of discretion. There is no single way to deliver a jury charge. The key question is whether the instruction is legally correct. A trial judge is in the best position to determine the jury’s needs when it comes to explaining legal concepts. Typically these determinations are made with the benefit of input from counsel. This is precisely how the trial judge proceeded in this case. Importantly, that input was that he deliver the W.(D.) instructions exactly as he delivered them: separately.

[67] This is not a case involving a failure to object to an alleged misdirection: Jacquard, at para. 38; Daley, at para. 58. Rather, this is a case where counsel asked for almost the exact charge that was given. Indeed, it was the appellant who provided the draft instructions to the court, making clear that he would like the instructions “broken up” under the two headings and that his position was that “two distinct W.(D.) instructions with respect to Mr. Thakar and [Mr.] Passi” were needed.

[68] Having regard to the instruction as a whole and the position taken by the appellant at trial, I see no reversible error in the trial judge giving distinct W.(D.) instructions, and those instructions contain no error.

(iv) Instructions in Response to a Jury Question about Mr. Passi

[69] Mandy Passi testified as the first of three defence witnesses. She is the wife of Dalvir Passi and is the appellant’s sister. During her evidence, she acknowledged that she had remained in contact with the appellant after he was charged and detained in custody. She also acknowledged that, prior to the preliminary inquiry in this matter, the appellant had told her that an eyewitness had described the shooter as white.

[70] At the time that Ms. Passi testified, the trial Crown did not know who else would be called to testify for the defence. The third and final defence witness turned out to be Mr. Passi, who provided the alternate suspect evidence about the appellant loaning the QX60 to two bald or balding white men. During cross-examination, Mr. Passi agreed that his wife had told him about the fact that there was an eyewitness to the murder. However, he denied that she had told him that the eyewitness said that the shooter was “white”.

[71] While the appellant suggests in his factum that the failure of the trial Crown to ask Ms. Passi if she had told her husband that the appellant had told her about the eyewitness seeing a “white guy” was a breach of Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (U.K. H.L.), this issue was not pressed during oral submissions. Nor could it have been. The whole point of Browne v. Dunn – to ensure that a witness has an opportunity to respond to something that will later be used to impeach them – did not arise: R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at paras. 75-86. Importantly, the Crown never attempted to impeach Ms. Passi’s evidence on whether she had told her husband, because she never testified to this issue. Whether she told her husband or not only became relevant when her husband, unbeknownst to the trial Crown, was later called to testify for the defence. It was only then that the “balding white guys” evidence was given, which understandably caused the Crown to ask Mr. Passi if his wife had told him about what the appellant had told her: that there was an eyewitness who had described the shooter as white.

[72] The jury asked the following question during their deliberations:

If we believe Mandy Passi did not tell her husband about a white guy, can we infer that Dalvir Passi may have been told this by someone else?

[73] The appellant maintains that there was only one appropriate and legally correct answer to this question: “no”. According to the appellant, there was simply no evidentiary basis upon which to draw a reasonable inference – as opposed to speculation – that Mr. Passi’s evidence about the white men was sourced in any communication with anyone else.

[74] Instead of saying “no” to the jury’s question, the trial judge reviewed the evidence that had been provided on this point. He said:

Now, the defence, in my summary of their position was that there is no evidence that Mr. Passi was told information about a white guy, height, build or age, before he provided his testimony at the preliminary hearing. He denied the Crown’s suggestion. The defence submits that Mr. Passi’s testimony on this is uncontradicted and should be accepted by you. And in short, the Crown says, for a variety of reasons, that you should simply, and you should, reject Mr. Passi’s evidence [Emphasis added.]

[75] The trial judge finished his response by reminding the jury to assess the evidence and the credibility and the reliability of the witnesses in making their determination of the facts.

[76] The appellant takes issue with two aspects of this response.

[77] First, the appellant says that the failure to answer with a simple “no” opened the door to pure speculation because it left the jury with the impression that they could infer that Mr. Passi was told about the “white guy” evidence by someone else despite a complete absence of evidence.

[78] I do not accept that the jury’s question admitted of only a “no” answer. The jury knew that they could not speculate. In fact, the trial judge emphasized in his charge the difference between “conjecture and speculation” and “rational conclusions” taken from the whole of the evidence. At the end of the day, the jury did not have to determine “who”, if anyone, told Mr. Passi about the fact that there was an eyewitness who had seen a “white guy”. All that the Crown was asking for, and as the trial judge reinforced in response to the question from the jury, was that the jury reject Mr. Passi’s evidence that no one told him about a white guy.

[79] The jury was entitled to disbelieve Mr. Passi’s evidence on this point. The evidentiary backdrop for the case clearly supported that rejection. For instance, the jury knew that Mr. Passi had remained in contact with the appellant after the appellant’s arrest. The jury also knew that it was the appellant who had told Ms. Passi about the eyewitness evidence because she had agreed to this in cross-examination.

[80] Second, the appellant says that, by instructing the jury that, “in short, the Crown says for a variety of reasons, that you should simply, and you should, reject Mr. Passi’s evidence” (emphasis added), the trial judge increased the prejudice flowing from his erroneous answer. I do not accept that the trial judge’s comment caused incurable prejudice to the appellant. Clearly, this was a misspeak.

[81] The comment was brought to the trial judge’s attention when the jury retired after having heard the answer to their question. The trial judge immediately summoned the jury back to the courtroom and made clear that if he had left them with the impression that they should reject Mr. Passi’s evidence, this was not the case. His clarifying instruction twice reiterated that it was up to the jury to make determinations on the evidence and that it was not his intention to convey an opinion on this subject.

[82] The trial judge did not err in his response to the jury’s question.

(v) Instructions on After-the-Fact Conduct

[83] The trial Crown relied upon two pieces of after-the-fact or post-offence conduct as circumstantial evidence of guilt.

[84] The first piece of evidence involved the return of the QX60 to the rental agency on the evening of March 2, 2016, the day after the shooting. According to Mr. Passi, the appellant asked Mr. Passi to pick him up following the return of the car. Rather than have Mr. Passi wait in the car rental agency parking lot, he directed Mr. Passi to wait for him at a gas station across a busy street from the rental agency. By waiting at the gas station, the Mercedes owned by the appellant’s sister, Mandy Passi, and driven by Mr. Passi, would not be captured on surveillance cameras at the car rental agency.

[85] The second piece of evidence involved the appellant changing the time of his flight from Toronto to Vancouver. Flight records show that the appellant had originally planned to leave Toronto on February 28, 2016. On that day, he exchanged his ticket for a flight that would instead leave Toronto on March 3. On March 2, the day after the shooting, the appellant changed his flight again. He moved his flight up to an earlier one on March 3, leaving Toronto at 6:45 a.m.

[86] The trial Crown took the position that both pieces of evidence (and more) demonstrate the appellant’s desire to avoid detection.

[87] Recognizing these items of evidence as fitting within a category of after-the-fact conduct, the trial judge used the standard instruction from Watt’s Manual of Criminal Jury Instructions, at pp. 337-343 (Final 27A), when charging the jury on how to approach the evidence. He engaged the classic two-step approach: first, he directed the jury to determine if the appellant actually did what he was alleged to have done; and, second, he directed the jury to consider, only if they were satisfied on the first step, whether that conduct was related to the offence or to something else.

[88] The appellant maintains that the trial judge erred in relation to the second step. He contends that instructing the jury that they had to decide if the conduct was “related to the commission of the offence as charged or something else” constitutes a reversible error. The appellant suggests that the jury should have been told to consider whether the accused would have engaged in the same conduct even if the crime had not occurred. Put differently, the appellant maintains that the jury should not have been instructed to consider if the conduct was “related to” the crime, but whether the conduct would have occurred even if there had been no crime.

[89] I see no error in the trial judge’s instructions on after-the-fact conduct.

[90] The trial judge sought and was provided the assistance of counsel on this issue prior to delivering the charge to the jury. The trial judge incorporated the appellant’s suggested content into the after-the-fact conduct instructions.

[91] I do not accept that the instruction failed to impart to the jury that they had to consider whether the appellant would have engaged in the same conduct even without a crime having been committed. The jury was clearly instructed that they had to exclude all innocent explanations for the after-the-fact conduct before they could rely upon it to infer the appellant’s involvement in the offence. Conduct that would have occurred had there been no crime is conduct that has an innocent explanation. This was more than adequately covered in the jury instructions, only some examples of which follow:

You may use this evidence, along with all the other evidence in the case, in deciding whether Crown counsel has proven Mr. Dosanjh’s guilt beyond a reasonable doubt. But you must not infer Mr. Dosanjh’s guilt from this evidence unless, when you consider it together with the rest of the evidence, you are satisfied beyond a reasonable doubt that his guilt is the only rational inference that can be drawn from all of the evidence.

You may use this evidence of after-the-fact conduct along with other evidence, to support an inference of guilt only if you have rejected any other explanation for the conduct.

If you find that Mr. Dosanjh actually did what he is alleged to have done after the offence was committed, you must be careful not to immediately conclude that what he did was related to the commission of the offence rather than to something else.

You must not use this evidence about what Mr. Dosanjh did afterwards in deciding or helping you decide that Mr. Dosanjh committed this offence unless you reject any other innocent explanation for it [Emphasis added.]

[92] Of course, these instructions were complemented by the general instructions to the jury about how to approach circumstantial evidence. That general instruction reinforced for the jury that this was a circumstantial case and that they “should only find Mr. Dosanjh guilty if [they were] satisfied that his guilt is the only reasonable or rational conclusion to be drawn from the whole of the evidence.”

[93] These were all legally correct instructions. The jury was not left with any confusion. They understood that they could use the evidence to infer guilt only if, considered with all of the other evidence, they were satisfied that it was the only rational inference.

(2) Issues Relating to the Search

Overview

[94] The QX60 contained an “Infotainment system”, which is an auto industry term referring to vehicle systems that combine entertainment and information delivery. These systems typically involve audio/video touchscreens contained in the front of the vehicle. They are capable of collecting and storing different types of data, including contact lists from cellular telephones that connect to the system, as well as tracking data that records the vehicle’s movement, such as speed of travel or GPS location.

[95] Police searched the QX60’s Infotainment system following the murder. It revealed two pieces of incriminating evidence ultimately used in the prosecution’s case: (1) the contact list from Dalvir Passi’s phone, which had been automatically downloaded to and stored in the Infotainment system when Mr. Passi admittedly connected his phone to the system; and (2) tracking data that was automatically created by and stored in the Infotainment system, which demonstrated the route taken to and from the murder scene.

[96] The appellant sought the exclusion of both items of evidence, claiming that his Charter rights had been breached by the search. While the appellant claimed both ss. 7 and 8 Charter breaches at trial, he takes no objection to how the trial judge resolved the s. 7 issues. Therefore, his primary focus in this court is upon alleged errors in the trial judge’s ss. 8 and 24(2) ruling.

[97] Before addressing those alleged errors, I will provide a brief factual overview which is necessary to understanding the issues to come.

Factual Backdrop

[98] A combination of evidence placed beyond dispute at trial that: (i) the rental contract for the QX60 was in the name of “Jaspinder Nagra”; (ii) the appellant held himself out to be Jaspinder Nagra in order to obtain the QX60 just a few short hours before the murder took place; (iii) Dalvir Passi sat inside the QX60 as the appellant completed the rental transaction inside the agency’s building; (iv) while in the vehicle alone, Dalvir Passi connected his phone to the QX60’s Infotainment system, causing his phone contact list to download to the Infotainment system; and (v) before driving out of the rental agency parking lot, the appellant was caught on video placing a big bag into the back of the QX60, a bag described by the trial Crown as being about the “size of the gun”.

[99] Almost immediately after the murder, the Guelph police located and secured the QX60, which was indisputably the getaway vehicle. They later purchased the vehicle and then sent it to the O.P.P. to have the Infotainment system forensically searched by civilian experts.

[100] On November 16, 2016, about eight months after the murder, one of these civilian employees, Mike Ryder, contacted Det. Cst. Welsh of the Guelph Police Service, the officer in charge of the murder investigation. In an email to Det. Cst. Welsh, Mr. Ryder asked for a copy of the search warrant for the QX60. Det. Cst. Welsh responded as follows:

Hi Mike … no search warrant … we bought that car so we could do what we want to it. Because you weren’t sure how you were going to do the exam we had a hard time trying to articulate that in a general warrant … and the way to get around it was for us to buy it outright [Emphasis added.]

[101] After the November 16, 2016 email exchange, things went silent for a while. The appellant was eventually arrested in March 2017, which triggered disclosure obligations. This caused Det. Cst. Welsh to reach out to Mr. Ryder to ask if there were any updates.

[102] It was not until June 2, 2017 that Mr. Ryder wrote to Det. Cst. Welsh, claiming to have made “significant progress with this exhibit.” He asked for information specific to the investigation so that he could conduct a more targeted search, separating “any user data from other times.” Det. Cst. Welsh responded that same day, providing the requested information, including the dates during which the QX60 had been rented by the appellant and the telephone number believed to be used by the appellant at that time.

[103] About three hours after Det. Cst. Welsh responded to Mr. Ryder’s email, Jeremy Dupuis, also a civilian forensic investigator with the O.P.P., forwarded to Det. Cst. Welsh a “working copy” of his analysis of the Infotainment system. In the body of his email communication, Mr. Dupuis noted a phone number connected to the appellant, which he said that he had found in the contact list that had been paired with the Infotainment system. It is not in dispute that what the O.P.P. officer sent to Det. Cst. Welsh was the contact list from Mr. Passi’s phone. Indeed, when he testified, Mr. Passi acknowledged having paired his phone with the Infotainment system.

[104] At some point, Det. Cst. Welsh came to believe that the contact list from Mr. Passi’s phone should not have been seized without prior judicial authorization. As a result, he printed out and sealed the information. Although the exact time and date is not clear, this occurred sometime in the days following the receipt of the June 2 email and report from Mr. Dupuis. The sealed information was then placed within a secure storage locker at the police facility. On June 13, 2017, Det. Cst. Welsh wrote to Mr. Dupuis and said: “hold off looking into that device any further till u hear from me.”

[105] The Guelph Police then started working toward obtaining a search warrant in order to: (1) re-seize the contact list from Mr. Passi’s phone which was sealed and stored in the police locker; and (2) search the Infotainment system for all tracking data from the day of the murder, including the start and end of the travel route, the speed and direction of the vehicle, and stops made by the vehicle.

[106] Det. Cst. Meier was the affiant. She prepared and swore the Information to Obtain (“ITO”) used to obtain the search warrant. She set out the history of the matter, including how the Guelph Police had come into possession of the contact list from Mr. Passi’s phone and how it had been securely stored. To explain how the warrantless search had materialized, Det. Cst. Meier relied upon information provided to her by Det. Cst. Welsh. As will be discussed soon, the trial judge concluded that Det. Cst. Welsh misled the affiant.

[107] When the search warrant issued, the Guelph Police then reseized the contact list from Mr. Passi’s phone from the secure police locker. As well, the O.P.P. restarted their search of the Infotainment system, successfully locating the tracking data that ultimately demonstrated the exact route taken by the QX60.

Analysis of Search Issues on Appeal

Overview

[108] The appellant claims that the trial judge erred in four respects: (i) by dismissing the application for disclosure of the legal advice provided by Crown counsel to the police in relation to searching the Infotainment system; (ii) by refusing to set aside the search warrant on the basis that Det. Cst. Welsh’s lies had subverted the search warrant process; (iii) by failing to appreciate that the ITO contained insufficient grounds to justify the issuance of the search warrant; and (iv) in his s. 24(2) analysis.

[109] The respondent disagrees with each of the errors alleged by the appellant. Instead, the respondent claims that the only mistake made by the trial judge was when he concluded that the appellant even had standing to raise a s. 8 claim in the first place. I will deal with the standing issue first.

Did the appellant have standing to raise a s. 8 claim?

Overview

[110] Contrary to the Crown’s position at trial, the trial judge concluded that the appellant had a reasonable expectation of privacy in relation to the data stored in the Infotainment system and, therefore, that he had standing to assert a s. 8 breach: R. v. Dosanjh, 2019 ONSC 469.

[111] The respondent maintains that the trial judge erred in coming to his conclusion on standing. According to the respondent, the trial judge erred in multiple ways, including by failing to grapple with how the factual backdrop relating to how the appellant came into possession of the vehicle undermined his asserted privacy interest, including that: (1) the appellant and Mr. Passi were trespassers in the vehicle from the outset; (2) their use of the vehicle was prohibited under the rental agreement; and (3) they had no right to exclude others from the vehicle.

[112] In response, the appellant maintains that the trial judge was right to find standing. According to the appellant, the trial judge correctly framed the appellant’s reasonable expectation of privacy in broad and neutral terms. The appellant emphasizes that, when looking at this issue, one must not ask whether persons engaging in illegal conduct can have a reasonable expectation of privacy over that conduct, but whether in a society like ours, those who rent vehicles, however they come into that rental relationship, can have a reasonable expectation of privacy over data automatically collected by that vehicle. Therefore, for the appellant, nothing turns on the fact that the vehicle was fraudulently obtained.

Analysis

[113] Section 8 of the Charter is a personal right, one that protects people and not places: R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at para. 45. Therefore, to assert a s. 8 claim, an accused must first establish that he has a reasonable expectation of privacy over the subject matter of the search. It is important to carefully calibrate the subject matter of the search. Once the subject matter is properly identified, then the court looks to: (i) whether the accused has a direct interest in that subject matter; (ii) whether the accused has a subjective expectation of privacy in that subject matter; and, if so, (iii) whether the accused’s subjective expectation of privacy is objectively reasonable in the totality of the circumstances: R. v. Tessling, 2004 SCC 67, [2004] 1 S.C.R. 432 at paras. 19, 31, and 32; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at paras. 17, 26-27; R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at paras. 10-11; R. v. Cole, 2012 SCC 53, [2012] S.C.R. 34, at paras. 34, 40; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 16; R. v. Mills, 2019 SCC 22, [2019] 2 S.C.R. 320, at para. 13; Edwards, at paras. 31, 45.

[114] If the accused cannot demonstrate a reasonable expectation of privacy, then there is no search and seizure within the meaning of s. 8.

Subject Matter of the Search

[115] A functional approach to defining the subject matter of the search is required, one that necessitates an inquiry into not only the information sought, but also the nature of the information that it reveals: R. v. Ward, 2012 ONCA 660, 112 O.R. (3d) 321, at para. 93; Marakah, at paras. 14-15. As Doherty J.A. put it in Ward, at para. 67, the real question for determination is “what the police were really after”.

[116] In my view, the trial judge correctly concluded that the subject matter of the search was not the QX60 itself. For instance, the police were not searching for fingerprints or a physical piece of evidence inside of the vehicle. Instead, the police were interested in searching the electronic information that was contained in the Infotainment system, which was in turn contained in the QX60. Specifically, the police were interested in the GPS tracking data and Mr. Passi’s contact list. Therefore, I accept that the subject matter of the search engaged informational and not territorial privacy.

Direct Interest in the Subject Matter of the Search

[117] The trial judge found that the appellant had a direct interest in the two categories of data because they directly connected him to the murder “when seen in the context of the other pieces of circumstantial evidence.” I pause here to note that whether an individual has a direct interest in the subject matter of a search is not defined by whether the subject matter is incriminating or not, but by the degree to which the individual has a meaningful connection to the subject matter – for example, through participation, authorship, ownership or control: Spencer, at para. 50; Patrick, at para. 31; Marakah, at para. 21; R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531, at para. 32; Mills, at para. 16.

[118] I accept that the appellant had a direct interest in the GPS tracking data. This data inferentially revealed the appellant’s movements while using the car, personal information that revealed his actions.

[119] As well, for the purposes of this appeal, I assume, without deciding, that the appellant had a direct interest in the contents of Mr. Passi’s contact list.

Subjective Expectation of Privacy

[120] The Charter claimant does not face a “high hurdle” at this stage of the s. 8 analysis: Patrick, at para. 37; R. v. Campbell, 2022 ONCA 666, at para. 36. Although the appellant did not give evidence concerning his knowledge of the operation of the GPS tracking system and Mr. Passi’s phone having synced to the Infotainment system, for purposes of this appeal, I am prepared to assume without deciding that he had a subjective expectation of privacy in both the GPS tracking data and the contact list. The real question upon which the standing analysis turns in this case is the normative one: whether in all of the circumstances, his expectation of privacy was objectively reasonable. I now turn to that question.

The Objective Reasonableness of the Subjective Expectation of Privacy

[121] The trial judge found that the objective component of the standing test had been met on the basis that the information seized from the Infotainment system engaged a “biographical core of personal information” about the appellant. He concluded that “a single trip can reveal a host of intimate details, both individually and collectively, of an individual.” As for the information in the contact list, while “not so expansive”, the trial judge could “foresee a wish to keep one’s list of friends private from the state.” On this basis, including that the information had been taken without the appellant’s consent, the trial judge concluded that the appellant’s subjective expectation of privacy was objectively reasonable in the circumstances.

[122] In my view, the trial judge erred by conducting too narrow an inquiry into the objectively reasonable nature of the privacy interest. He was obligated to take into account the “totality of the circumstances”, yet he stopped once he concluded that the appellant’s core biographical information was engaged: Edwards, at para. 31. Additional factors informing the objective test include, for example, the place searched, control over the subject matter of the search, the ability to regulate access to it, and whether the information was already in the hands of third parties: Edwards, at para. 45; Patrick, at para. 27; Tessling, at para. 32. While there are numerous such factors, the ones that figure most prominently into this case are: (1) the nature of the subject matter; (2) the place where the search occurred; and (3) the appellant’s control over the subject matter.

[123] I start with the nature of the subject matter. In R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, at para. 27, Sopinka J. coined the term “biographical core of personal information” to describe that “personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state”. The trial judge erroneously proceeded as if the objective analysis was complete once the subject matter of the search was labelled as falling within the category of core biographical personal information. Yet this was only the beginning of the objective analysis.

[124] Not all biographical core information is made equal. In relation to each set of data, the trial judge should have calibrated the degree to which the appellant’s biographical core of personal information was engaged. We are not talking here about medical records, private communications or the like, all of which presumptively contain a high degree of personal information. Rather, we are talking about information that rests further down the privacy line.

[125] As for the contact list, it was not even the appellant’s contact list. While it may have held the appellant’s number and name, thereby connecting the appellant to Mr. Passi, there was nothing more that could have engaged the appellant’s privacy interest.

[126] While I accept that GPS data stored in an Infotainment system can inform where a car was and, by implication, where the driver was during a specific period of time, it is really just a form of tracking data. To this end, it has been long established that tracking information “is a less intrusive means of surveillance than electronic audio or video surveillance”: R. v. Wise, 1992 CanLII 125 (SCC), [1992] 1 S.C.R. 527, at para. 48. The somewhat diminished privacy interest engaged by tracking data is reflected in the fact that, even where an individual has standing in relation to that data, the police can obtain a judicial authorization to have it produced on the lower standard of “reasonable grounds to suspect”: Criminal Code, ss. 487.017. As well, also engaging the lesser standard of suspicion, the police can obtain an authorization to install a tracking device on a vehicle and have that vehicle tracked in real time for lengthy periods: Criminal Code, s. 492.2(1).

[127] Therefore, there exists both a jurisprudential and legislative recognition that, while tracking data may engage a biographical core of personal information, that data rests a good distance away from the more intimately personal end of the privacy spectrum. As part of the “totality of circumstances”, the trial judge should have considered these factors when calibrating the objective reasonableness of the appellant’s subjective privacy interest.

[128] As well, the trial judge should have considered other factors informing the objective analysis. What is absent from his reasoning is how the appellant came to be in possession of the QX60 – which was relevant to an assessment of both the place where the search occurred and the appellant’s control over the subject matter.

[129] It was the appellant’s burden to establish on a balance of probabilities that he had a reasonable expectation of privacy in the subject matter of the search. Although he did not have to demonstrate a proprietary interest in the vehicle, he had to establish something beyond a tenuous connection to it: R. v. Simpson, 2015 SCC 40, [2015] 2 S.C.R. 827, at paras. 50-51; R. v. Lauda, 1998 CanLII 804 (SCC), [1998] 2 S.C.R. 683, at para. 1; R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] 3 S.C.R. 341, at paras. 20-22. By holding himself out to the rental agency as Jaspinder Nagra – personating Jaspinder Nagra – the appellant came into fraudulent possession of the QX60, thereby rendering his connection to the vehicle tenuous at best. Not only was the appellant in unlawful possession of the QX60 when it was collecting and storing data on the Infotainment system, but he had no colour of right over the vehicle – no excuse for his possession. In short, he could neither use the car nor exclude others from it.[^1]

[130] In fact, and in the most minimalist of terms, he was a trespasser in the QX60 when it was collecting and storing the subject matter of the search: Simpson, at paras. 50-51; R. v. Caza, 2015 BCCA 374. The fact that the appellant fraudulently accessed the place and his lack of control over the QX60 – without a colour of right – are relevant circumstances informing whether he could objectively expect privacy in the data generated by his use of the QX60.

[131] Respectfully, I do not accept that the principle of content neutrality precludes consideration of the fact that the appellant had no right to use the QX60 or to exclude others from using it. As Moldaver J. explained in Simpson, at para. 51, trespassing is relevant to the objective reasonableness analysis in the sense that it renders the connection between the accused and the subject matter of the search tenuous: “the fact that the accused is a trespasser or otherwise has a tenuous connection to the place in question may, when considered in the totality of the circumstances, significantly undermine any reasonable expectation of privacy [citations omitted].” While Simpson is a case involving territorial privacy, the reasoning applies with equal force to this situation, one where the use of the property trespassed upon creates the very data forming the subject matter of the search.

[132] While in R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36, it was determined that a person’s reasonable expectation of privacy in a hotel room is not diminished by the fact that illegal activity is taking place within that room, that is not what is going on in this case: see para. 20; see also paras. 49-50 per Lamer C.J. (concurring). Unlike Wong, the Crown here attempted to justify the search, not on the basis that there was illegal activity taking place within the vehicle, but on the basis that the appellant had no right to be in the vehicle at the time that the information was being collected and stored.

[133] Looking to the normative inquiry, as we must, the question is whether the privacy claim must be “recognized as beyond state intrusion absent constitutional justification if Canadian society is to remain a free, democratic and open society”: Ward, at para. 87. See also Reeves, at para. 28; Mills, at para. 20; R. v. Chow, 2022 ONCA 555, at paras. 21, 34. Section 8 of the Charter does not establish a free-standing, automatic right to privacy. Rather, it is a right to protection from unreasonable search and seizure.

[134] The question is whether Canadians ought to have a reasonable expectation of privacy in GPS data and the contents of a friend’s contact list, all of which has been created and stored in a vehicle they have, in essence, stolen. The answer to this question does not depend on whether the information contains evidence of illegal activity.

[135] The answer to this question is: “no”.

[136] Although a person may reasonably expect that, barring prior judicial authorization, the tracking data produced by a car that they drive will be protected from state seizure, that expectation is not objectively reasonable here because the appellant had no right to possess or use the car that produced that data. In addition to other considerations, the appellant cannot plausibly assert that his dignity, integrity, or autonomy are at stake when his claim to privacy hinges on the very fraud that he committed to obtain that car in the first place: Chow, at para. 34.

[137] I do not doubt that the appellant desired privacy and hoped for it; that is clear from his subterfuge in obtaining the car. The appellant hoped to avoid detection; he hoped that however the car was used, it could not be traced back to him. But that is a far cry from establishing a reasonable expectation that he was entitled to privacy: R. v. Van Duong, 2018 ONCA 115, at para. 7.

[138] In all of these circumstances, including the nature of the subject matter, the place where the search occurred and the appellant’s lack of control over the subject matter, I conclude that the appellant did not have a reasonable expectation of privacy in the subject matter of the search.

[139] This conclusion is sufficient to dispose of the appeal. But even assuming that the appellant had standing to challenge the search, for the reasons that follow, I would conclude that the trial judge made no errors in admitting the evidence arising from the search.

Was there an implicit waiver of solicitor-client privilege?

[140] The appellant brought an application for disclosure of the legal advice received by the Guelph Police Service in relation to the search of the Infotainment system. The appellant took the position that solicitor-client privilege over that device had been implicitly waived when the affiant referred in the ITO to the fact that legal advice had been received by the police. The trial judge dismissed the application: R. v. Dosanjh, 2019 ONSC 2398.

[141] The ITO referenced the fact that the police had obtained legal advice as to whether a search warrant was required to access the contents of the Infotainment system. For instance, the ITO referenced the fact that the police “in consultation with legal counsel, were of the view that judicial authorization was required in order to access the contents of the infotainment system.” The ITO also referred to the fact that once the warrantless search came to their attention, the police “sought advice from legal counsel, and took steps to immediately address the situation.”

[142] The appellant took the position at trial that the Guelph Police Service had voluntarily and expressly put its good faith in issue in the ITO by referencing the fact of having consulted with legal counsel and obtaining legal advice. The appellant relied upon R. v. Campbell, 1999 CanLII 676 (SCC), [1999] 1 S.C.R. 565, in support of that position, claiming that solicitor-client privilege had been impliedly waived.

[143] The trial judge found that it was “clear that the Guelph Police Service [had] not expressly waived [their] privilege.” He also concluded that they had not impliedly waived the privilege over the legal advice received. The trial judge based this latter conclusion upon the fact that the references to legal advice in the ITO represented nothing more than part of the narrative and, importantly, the Crown was not relying upon those references to assert good faith under s. 24(2) of the Charter.

[144] There is no dispute in this court that the trial judge was right about the absence of any express waiver of privilege. The issue in this court comes down to whether the trial judge was right about the absence of an implied waiver.

[145] The appellant contends that the legal advice received by Det. Cst. Welsh is critical to understanding the seriousness of that officer’s misconduct when he misled the affiant. As the appellant puts it, the content of the legal advice would reveal the “extent of police carelessness or misconduct.”

[146] This position cannot succeed.

[147] Provided that the conditions precedent to confidentiality attach to lawyer-client communications, the police are as entitled as anyone else to have the legal advice they receive protected by solicitor-client privilege: Campbell, at paras. 49-50. The conditions precedent to a privilege claim were laid out in Descôteaux v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860, at pp. 872-3, where the court adopted Wigmore’s formulation of the four criteria necessary for privilege to attach to a communication:

Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection be waived.

[148] Whether a communication is protected by solicitor-client privilege depends upon the nature of the relationship between the client and counsel, the subject matter upon which the advice is sought and given, and the circumstances in which it arises: Campbell, at para. 50. What was made clear in Campbell is this: just because a Crown is a salaried employee does not prevent the formation of a solicitor-client relationship with the police, nor does it prevent the “attendant duties, responsibilities and privileges” from attaching to that relationship: at para. 50.

[149] Therefore, subject to few exceptions, where a client (in this case the police) seeks legal advice from their legal adviser (in this case the Crown), the communications arising from the seeking and giving of that advice, where made in confidence, are “permanently protected from disclosure.”

[150] Campbell addressed one such exception in the context of police-lawyer communications. Where the police voluntarily disclose that they sought or received legal advice on an issue between the parties, and attempt to rely upon having received legal advice to justify a course of action, they will be found to have impliedly waived their privilege over that advice: Campbell, at paras. 67-71. Unlike in Campbell, the police in this case were not relying upon the legal advice to justify their actions as done in good faith.

[151] While the affiant mentioned the fact of obtaining legal advice in the ITO, she had an obligation to inform the issuing justice about the warrantless search and the circumstances surrounding it. The obtaining of legal advice formed nothing more than part of the narrative of events. Importantly, at the voir dire, the trial Crown confirmed that it was not relying upon the obtaining of legal advice to assert good faith or to otherwise support the issuance of the search warrant.

[152] As there was no attempt by the Crown to rely upon the legal advice to support a claim of good faith, the privilege attaching to the advice did not evaporate. As for the appellant’s suggestion that the advice may have shown how seriously Det. Cst. Welsh behaved relative to the advice, this is a relevance argument, not a privilege argument. If relevance could cause privilege to evaporate, there would be no more privilege.

[153] This ground of appeal must fail.

The ITO

[154] Having had the standing issue resolved in favour of the appellant at trial, the trial Crown conceded that the initial warrantless search of the Infotainment system breached the appellant’s s. 8 rights. This is the search that resulted in the seizure of the contact list from Mr. Passi’s phone that was subsequently printed, sealed and secured until it could be re-seized under search warrant.

[155] The real focus of the trial judge’s reasons, therefore, was on the legitimacy of the ITO. The appellant argued that there were two fundamental problems with the ITO. The first has to do with whether the trial judge erred in failing to exercise his residual discretion to set aside the warrant as a result of the subversion of the warrant process. The second has to do with whether the ITO contained sufficient grounds upon which the warrant could issue.

Was the search warrant subverted?

[156] As a result of Det. Cst. Welsh’s dishonesty, the appellant contends that the ITO contains serious non-disclosures, deliberate deceptions and fraudulent misrepresentations. According to the appellant, these problems were aggravated by the fact that Det. Cst. Welsh continued with his deceptions while providing evidence at the s. 8 voir dire. This was all said to have so badly subverted the search warrant application that the warrant should be set aside.

[157] While the trial judge agreed that Det. Cst. Welsh had been deceitful and dishonest with the affiant and at the voir dire, he disagreed that the search warrant should be set aside as a result of the subversion of the process. At its core, Det. Cst. Welsh’s lie appears to have been rooted in his apparent desire to deflect blame for the fact that the warrantless search initially took place. Instead of acknowledging that he did not initially appreciate that a search warrant was required, Det. Cst. Welsh insisted that he always knew that the search could only take place pursuant to a warrant and that he had told the O.P.P. this fact. In his view, the O.P.P. must have misunderstood him.

[158] The trial judge rejected Det. Cst. Welsh’s evidence on this point. The trial judge relied upon a number of email communications between Det. Cst. Welsh and the O.P.P. to conclude that Det. Cst. Welsh was initially of the view that no warrant would be required to search a vehicle that the Guelph Police Service had purchased. One email in particular stands out on this point, where Det. Cst. Welsh wrote to Mr. Ryder at the O.P.P.: “no search warrant … we bought that car so we could do what we want to it”. Accordingly, the trial judge concluded as follows: “I find that Welsh was in error when he told Ryder that a warrant was not necessary.” To the trial judge, it appeared that “Welsh [did] not wish to admit” that he had originally been mistaken and told Ryder that he could search the vehicle without judicial authorization.

[159] Despite Det. Cst. Welsh’s conduct in misleading the affiant as to when he realized a search warrant was necessary, the trial judge concluded that the officer’s conduct did not amount to a subversion of the legal process.

[160] The appellant claims that the trial judge erred in failing to exercise his residual discretion to set aside the warrant. According to the appellant, the trial judge failed to appreciate how serious the officer’s dishonesty was to the integrity of the process. Det. Cst. Welsh’s conduct in this case is said to have been so egregious that the trial judge was required to set aside the warrant.

[161] While I should not be taken as in any way disregarding the serious impact that a police officer’s lies can have on the integrity of the administration of justice, it was for the trial judge to calibrate this matter and determine whether the warrant had to be set aside. He is owed deference in relation to that calibration.

[162] In rare circumstances, a court can exercise discretion to set aside a warrant where an issuing justice has been misled: R. v. Colbourne, 2001 CanLII 4711 (ON CA), 157 C.C.C. (3d) 273 (Ont. C.A.), at para. 40. As noted by Watt J.A. in R. v. Paryniuk, 2017 ONCA 87, 347 C.C.C. (3d) 82, at para. 62, “[w]here an affiant has been shown to have deliberately provided false material statements, or to have deliberately omitted material facts from the ITO, with the intention of misleading the issuing judicial officer, the warrant may be set aside.” The police conduct must be “so subversive of the search warrant process as to, in effect, amount to an abuse of process and require that the warrant be quashed”: R. v. Vivar, 2009 ONCA 433, at para. 2.

[163] In my view, the trial judge did not minimize or miscalculate Det. Cst. Welsh’s conduct. He clearly and unequivocally rejected the officer’s credibility. Indeed, he referred to Det. Cst. Welsh’s dishonesty as “the most serious example of police misconduct in this case.”

[164] At the same time, the trial judge looked at the broader picture and asked, exactly as he should have, whether the police conduct had been so subversive of the process that it required the warrant to be set aside. This is an inherently contextual analysis and must take into account all of the circumstances. The trial judge answered this question in the negative because, according to him, when looked at in context, the officer’s lie was really about deflecting blame for an admitted mistake.

[165] Quite simply, the trial judge found as a fact that Det. Cst. Welsh “did not realize” that a search warrant was required until after the contact list from Mr. Passi’s phone had been obtained. The trial judge took into account the fact that the officer’s mistake would have been easy to make, especially since this was an evolving area of the law at that time.

[166] Moreover, for purposes of the search warrant application, the issuing justice knew that the mistake had been made and that the warrantless search had occurred. All that was wrong in the ITO was who made the mistake. Det. Cst. Welsh tried to make it look like it was the O.P.P.’s mistake when, in fact, he had mistakenly told the O.P.P. that they could search without a search warrant. Who made the mistake was not a critical fact informing whether the warrant should issue. The important thing to disclose was that a mistake had been made.

[167] As well, the trial judge pointed out that once the Guelph Police Service realized the mistake, it acted swiftly and cautiously to remedy the problem.

[168] Finally, the trial judge took into account that the affiant was unaware of Det. Cst. Welsh’s attempt to dishonestly deflect the blame for the warrantless search. Although the appellant takes issue with the trial judge having taken the affiant’s honesty into account, there was nothing precluding him from doing so. Indeed, “the reasonableness and honesty of the affiant’s belief as to the existence of the requisite grounds” is an entirely relevant factor to take into account when reviewing an ITO: R. v. Green, 2015 ONCA 579, at para. 34. See also: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 40; R. v. Lising, 2005 SCC 66 [2005] 3 S.C.R. 343 (sub nom. R. v. Pires), at para 41. To this end, as noted in Pires, at para. 41, if the grounds relied upon in support of the authorization prove to be false at a later date, “[t]hat fact does not retroactively invalidate what was an otherwise valid authorization.”

[169] Based upon all of these factors, the trial judge concluded that, despite Det. Cst. Welsh’s lies in an effort to deflect blame from himself, the search warrant process had not been subverted. I see no error in his refusal to exercise his residual discretion to set aside the warrant.

Was the search warrant valid?

[170] The appellant also argues that the trial judge erred by failing to appreciate that, without the unlawful, warrantless search, there would have been no reasonable grounds to believe that the Infotainment system could be accessed and, therefore, no reasonable grounds to believe that it would afford evidence of the offence. As the appellant puts it, while the ITO did not rely on what was found in the Infotainment system when it was warrantlessly searched, the ITO “did rely on the fact it was found and that fact should have been excised” from the ITO. Without that fact, the appellant argues that there were no reasonable grounds to believe that information would be gleaned from the system.

[171] The affiant was clear that she was not relying upon the warrantless search of the Infotainment system to advance her grounds in support of the search warrant. She was simply recounting the facts around that search to meet her obligation to make full, frank and fair disclosure: R. v. Araujo, 2000 SCC 6, [2000] 2 S.C.R. 992.

[172] The fact is that the police had significant reasonable grounds to believe that the Infotainment system contained information relevant to the offence. While there may well have been an issue about how to access that data and download it in a readable format, this work could not be started until a warrant was obtained. To suggest that the police needed evidence to show that they could successfully search the Infotainment system in order to obtain a search warrant placed things in the wrong order. There was no need to do so. What the police knew was sufficient. The Infotainment system contained the relevant data. They needed a warrant to take steps toward accessing that data.

Section 24(2)

[173] The appellant suggests that the trial judge erred in failing to exclude the evidence under s. 24(2).

[174] First, he maintains that the trial judge erred by disregarding Det. Cst. Welsh’s dishonesty relating to the instructions he gave to the O.P.P. that resulted in the warrantless search. The trial judge is said to have had “no right to ‘disagree’” with what was said in R. v. Harrison, 2008 ONCA 8, 89 O.R. (3d), at para. 160, per Cronk J.A. (dissenting) aff’d 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 26, about police dishonesty, specifically that “few actions more directly undermine” the truth-seeking function of the courts and the integrity of the judicial system than “misleading testimony in court from persons in authority.”

[175] To be clear, the trial judge did not disagree with what was said in Harrison. In fact, he cited directly from Harrison. But there is no rule that says the evidence must be excluded if a police officer has been or has attempted to be deceitful. Rather, as s. 24(2) demands, all of the circumstances must be taken into consideration.

[176] The trial judge did just that. For many of the same reasons already reviewed in relation to why the search warrant process had not been subverted, the trial judge concluded that the seriousness of the state conduct in this case was only “moderate” in nature.

[177] The trial judge provided reasons, supported by the evidence before him, for why he had reached this finding. He specifically noted that “[i]n most cases, of course, a lying police officer will lead to serious ramifications to the Crown’s case.” Although Det. Cst. Welsh’s lies were serious, the trial judge found that the lies had no real impact on the warrant process because the essential fact of the warrantless seizure was known to the issuing justice.

[178] In addition, the trial judge found that the seriousness of the state conduct was diminished by the fact that the police were operating on what he described as an understandable misapprehension of the law at the time that the warrantless search took place. Of course, as explained earlier in these reasons, the police did not misapprehend the law when the initial warrantless search was conducted. Despite his erroneous conclusion to the contrary, the trial judge still found that the police conduct was not serious because the law was in a state of flux at the time of the search and, therefore, the police “could not be faulted” for believing that they did not require a search warrant.

[179] The trial judge noted yet another factor working to lessen the seriousness of the breach: that the Guelph Police Service had acted swiftly once the mistake was realized. In the trial judge’s view, all of those factors combined resulted in state conduct that only “moderately” favoured the exclusion of the evidence.

[180] I see no error in the trial judge’s approach.

[181] An appellate court exceeds its role where it recharacterizes the evidence and departs from express findings made by a trial judge that are not tainted by “clear and determinative error”: R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 51. An appellate court must not substitute its own view of police conduct for that of the trial judge. That is what we are being asked to do here. The trial judge, who had the particular advantage of having heard and seen Det. Cst. Welsh testify about his conduct at the voir dire, was in the best position to assess the seriousness of Det. Cst. Welsh’s conduct in all of the circumstances before him. I see no error in his approach and would defer to his calculation on this point.

[182] The appellant also argues that the trial judge erred by concluding that the breach caused a minimal impact on the appellant’s Charter protected interests. The appellant says that the trial judge erroneously failed to take into account that the GPS tracking data was automatically collected and that most citizens would not even be aware that this type of information is being collected.

[183] The trial judge was clear as to why he found that the second step of R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 did not favour exclusion. He was under no misapprehension as to how the GPS data came to be. What the trial judge’s conclusion really turned on was the fact that the appellant’s expectation of privacy relative to the QX60 and, in turn, the data contained in the Infotainment system, was “very much reduced.” As the trial judge noted, the phone data was not his own and the GPS data came from a vehicle he had “no right to be driving.”

[184] For all of the reasons previously expressed, if the appellant had any privacy interest in the vehicle or its data, it was minimal in nature.

[185] As for society’s interest in an adjudication of the case on the merits, the trial judge concluded that the evidence was reliable evidence going to the only real issue at trial: who killed Mr. Sunderani. This favoured admissibility. No objection can be taken with this conclusion.

[186] It was the appellant’s onus to satisfy the trial judge on a balance of probabilities that the admission of the evidence would bring the administration of justice into disrepute. He failed to do so. Where a trial judge has considered the proper factors and has not made unreasonable findings, the s. 24(2) determination is “owed considerable deference on appellate review”: Côté, at para. 44.

[187] The trial judge considered the proper factors here. His decision is owed “considerable deference”: Grant, at para. 86.

[188] In summary, I conclude that the appellant had no reasonable expectation of privacy, and as a result no standing to assert a breach of s. 8. In any event, even assuming a breach of s. 8, the evidence was properly admitted pursuant to s. 24(2).

Conclusion

[189] I would dismiss the appeal.

Released: “October 7, 2022 JMF”

“Fairburn A.C.J.O.”

“I agree. M. Tulloch J.A.”

“I agree. Grant Huscroft J.A.”

[^1]: Indeed, there was no evidence led on the voir dire that the appellant was even a lawful driver. During the trial, it came to light that his licence had been cancelled some years prior to the murder.