COURT OF APPEAL FOR ONTARIO
Miller, Trotter and Rahman JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Garrett Gauthier
Appellant
Megan Savard and Julia Kirby, for the appellant
Jeremy Streeter, for the respondent
Heard: October 7, 2025
On appeal from the convictions entered by Justice Dominique Kennedy of the Ontario Court of Justice, on February 16, 2024.
I. Introduction
[1] The appellant appeals against his convictions for accessing, making available and making child pornography, now referred to as child sexual abuse and exploitation material (CSAEM)[1].
[2] Waterloo Regional Police Service (WRPS) officers obtained a search warrant for the appellant’s home after receiving a tip from the United States National Center for Missing and Exploited Children (NCMEC) that an IP address located in Cambridge, Ontario had uploaded a CSAEM image. Police executed the warrant on February 27, 2017. During the approximately six-hour long search, the police detained the appellant and his partner and questioned them both, but never properly informed the two men of their right to counsel. Police found a CSAEM image on the appellant’s device during the search and later discovered more CSAEM material on two electronic devices seized from the home. Upon the appellant’s arrest several weeks later, police transported him to the police division and subjected him to a routine strip search.
[3] The appellant brought an application to exclude all evidence seized at his home and all statements that he made to police. The appellant challenged the validity of the search warrant and argued that the police violated his rights under ss. 7, 8, (10)(a) and 10(b) of the Canadian Charter of Rights and Freedoms when they detained him during the search of his home and strip searched him following his arrest.
[4] The trial judge delivered her ruling on the appellant’s application orally in court on November 24, 2023. She found that the appellant’s s. 10(b) rights had been violated during the search of his home because the police did not properly inform him of his right to counsel immediately upon his detention. She also found that the strip search at the police division was a s. 8 Charter violation. In her oral ruling, the trial judge told the parties that she was excluding the statements that the appellant made to police during the search of his home. The trial judge did not mention anything about the physical evidence that the appellant sought to exclude. In response to an inquiry about the physical evidence, the trial judge explained that the physical evidence was not being excluded.
[5] Five days later, on November 29, 2023, the trial judge released “supplementary reasons” explaining why she did not order exclusion of the physical evidence.
[6] The appellant appeals his conviction on the grounds that the trial judge erred in not excluding the computer evidence against him under s. 24(2) of the Charter. The appellant argues that this court should not consider the trial judge’s supplementary reasons because they reflect an after-the-fact justification of the result, rather than the reasoning that led to it. Alternatively, the appellant argues that the trial judge’s supplementary reasons disclose an error in principle because she did not consider the appellant’s unconstitutional strip search in assessing the seriousness of the Charter breach and because she overemphasized the role of discoverability.
[7] The appellant also alleges a new Charter breach that he did not raise at trial. The appellant alleges that WRPS violated his s. 8 Charter rights by acting on the IP address that they had been sent by the NCMEC without a warrant. Relying on the Supreme Court’s decision in R. v. Bykovets, 2024 SCC 6, 489 D.L.R. (4th) 1, the appellant alleges that the WRPS required a warrant before examining the tip containing the IP address.
[8] For the reasons that follow, I would allow the appeal. I agree with the appellant that the trial judge erred in principle by not considering the unconstitutional strip search as part of her analysis of the seriousness of the breach at step one of the test established in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. That error allows this court to consider the s. 24(2) exclusionary inquiry afresh. On a fresh s. 24(2) analysis, I would order exclusion of the computer evidence seized from the appellant’s home. The breaches in this case were serious and disclosed a complete lack of understanding of long-established constitutional standards. Their impact on the accused’s Charter-protected interests was also significant. Given my conclusion that the evidence should be excluded, it is not necessary to consider further issues including whether the trial judge’s supplementary reasons should not be considered and whether the police’s receipt and use of the IP address violated s. 8 of the Charter.
II. Background
A. Police investigation
[9] As mentioned, the investigation against the appellant began because of a tip from the NCMEC. The NCMEC tip said that an image containing CSAEM had been uploaded to a Skype account on January 30, 2017. The tip included information about the account’s username, “dave.j.dunham” and an IP address located in Cambridge, Ontario. Police obtained a production order from the appellant’s Internet Service Provider to determine the physical location of the IP address. After identifying the appellant’s address, the police conducted some further investigation and ultimately obtained a search warrant for the appellant’s home on February 23, 2017.
[10] The police executed the search warrant on February 27, 2017. As the trial judge observed, much of the evidence surrounding the execution of the warrant at the appellant’s home was not in dispute.
[11] The police entered the appellant’s home at approximately 7:15 a.m. Ten minutes later, after determining that the appellant and his partner were the only two people in the house at the time, police instructed the two men to sit on a sofa in the living room while officers searched the home. The appellant and his partner were both told they were not under arrest and provided with a copy of the search warrant. Officer Moore testified that he read a modified version of the police caution to the men, omitting the reference to their being under arrest. At least one officer remained in the living room with them for the duration of the search.
[12] At 7:32 a.m., the appellant and his partner were asked to identify their electronic devices, which they did. At 8:20 a.m., Officer Moore escorted the appellant to a separate room. He told the appellant he could contact a lawyer if he wanted to and that he could provide the appellant with a phonebook for that purpose or that a call with duty counsel could be arranged. The appellant told the officer he had no concerns and answered the officer’s questions about his use of Skype and his connection to the Skype account named in the tip from NCMEC. The appellant was returned to the sofa in the living room.
[13] During their search, at 11:40 a.m., the police found the image that had been the subject of the NCMEC tip on the appellant’s laptop. At 12:42 p.m., Officer Moore again escorted the appellant to a separate room to question him. During this second conversation, Officer Moore told the appellant that he had the same rights as before and then questioned him about the uploaded image.
[14] There is no dispute that the appellant was detained during the execution of the search warrant and that Officer Moore did not comply with the s. 10(b) informational requirements created by this detention. At no time during the search was the appellant told that he was detained. The appellant was also not told of the availability of free legal counsel, nor was he provided with the 1-800 number for consultation with duty counsel. Officer Moore testified that he did not believe he was obligated to inform the appellant of his right to counsel because he did not believe the appellant was detained.
[15] The police left the appellant’s home at 1:50 p.m. after seizing several electronic devices. On two of those devices, police found 125 unique images and three videos containing CSAEM.
[16] On March 10, 2017, 11 days after the search, the appellant was arrested and charged with CSAEM-related offences. He was transported to the police division where he was subject to a so-called “thorough search” which involved the removal and search of all of his clothing except for his underwear. There is no dispute that this search constituted a strip search and was governed by the requirements set out in R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679.
[17] Sgt. Snider was the officer in charge of the police divisions cell block. He explained that he directed the officer with custody of the appellant to strip search him because the appellant was being held for bail and would likely be in contact with other prisoners and court officers. He said conducting a “thorough search” was routine practice for anyone being transported to bail court.
B. The trial judge’s reasons
[18] The trial judge delivered her reasons for ruling on the appellant’s Charter application orally on November 24, 2023. I will refer to those reasons as the main reasons.
[19] In the main reasons, the trial judge found that the search warrant was valid. She rejected the appellant’s submission that the description of the image uploaded from the target IP address did not meet the definition of CSAEM and that the tip from NCMEC was akin to an uncorroborated tip. However, she found that police breached the appellant’s Charter rights when executing the warrant. The trial judge first found that police detained the appellant during the search, from when they finished “clearing” the house at 7:25 a.m. onwards. She found that police complied with s. 10(a) of the Charter by cautioning the appellant and his partner and providing them with the warrant, which effectively informed them of the reasons for their detention. However, the trial judge found that the police violated s. 10(b) of the Charter by failing to promptly advise the appellant of his right to retain and instruct counsel. The trial judge further found that the breach continued for the entire day. She found that the breach was not remedied by Officer Moore’s “quasi recital” of the right to counsel at 8:20 a.m., when the officer brought the appellant upstairs for a private conversation. Nor was it remedied at 12:42 p.m. during another private conversation when Officer Moore told the appellant he “had the same rights” as earlier.
[20] As for the appellant’s arrest on March 10, 2017, the trial judge found that the appellant’s s. 10(b) rights were not violated by a short conversation in a police car when he was being transported to the station. The trial judge did find that the police conducted an unconstitutional strip search because they had no particularized reason to conduct the search as required by Golden. She found that it was the routine practice of the WRPS at the time to strip search anyone entering cells. In the appellant’s case, this routine practice was the sole reason for his strip search, and no consideration was given to his particular circumstances and whether they justified such an invasive search.
[21] The trial judge only considered the s. 10(b) violation in her s. 24(2) Grant analysis. She reasoned that, because there was no temporal, contextual or causal link between the strip search and the evidence that had been gathered in this case, she did not need to consider the s. 8 violation as part of the admissibility inquiry. The trial judge found that the s. 10(b) violation was serious and the impact on the appellant’s Charter-protected interests was significant, and therefore the first two steps of the Grant analysis favoured exclusion of the evidence. She noted, however, that the impact on the appellant was mitigated somewhat because he was informally advised that he could contact counsel. Under the third prong, the trial judge acknowledged that the offences were serious.
[22] The trial judge concluded her reasons by saying that, after balancing the Grant factors “I find that the statements made by Mr. Gauthier during the execution of the search warrant in his home are excluded, pursuant to s. 24(2) of the Charter.”
[23] After the trial judge had finished reading her reasons, the parties discussed setting a further date for argument of another Charter application. Appellant’s trial counsel then said that he needed some time to consider the trial judge’s ruling because “[the trial judge had] excluded the statements made by Mr. Gauthier but not the real evidence.” The trial judge confirmed that her ruling did not exclude “the things that were seized pursuant to the search warrant” but only the appellant’s statements. There was no further discussion of the real evidence. The trial judge confirmed that she would be releasing a written copy of her ruling.
[24] The trial judge released supplementary reasons to the parties on November 29, 2023. She acknowledged in these supplementary reasons that her previous reasons did not “explicitly address the admissibility of the computer evidence under s. 24(2) of the Charter, having found a s. 10(b) Charter violation during the search.”
[25] The trial judge acknowledged that the computer evidence was eligible for exclusion because it was temporally related to the s. 10(b) breach. However, she found that despite the seriousness of that breach and the serious impact it had on his Charter-protected interests, the s. 10(b) breach had no bearing on the discovery of this real evidence. She reasoned that, unlike the statements yielded by the police’s questioning of the appellant, the police had a lawful means of collecting and discovering the real evidence seized from his home. The trial judge observed that the third stage of the Grant inquiry favoured admission because “the exclusion of real, reliable, and lawfully-seized evidence, not causally linked to the breach, would negatively impact the repute of the administration of justice in this case.” The trial judge concluded that excluding the appellant’s statements while admitting the real evidence “strikes an appropriate balance between the breach and society’s interest in a trial on the merits and maintains the confidence in the justice system.” The trial judge did not consider the unconstitutional strip search at all in her supplementary reasons.
III. ANALYSIS
[26] The appellant argues that this court should not defer to the trial judge’s s. 24(2) ruling and should conduct its own admissibility inquiry. The appellant submits that there are two routes to a fresh consideration of s. 24(2). First, the appellant argues that the trial judge’s supplementary reasons should not be considered by this court because they were not given at the time she made her ruling. The appellant argues that the supplementary reasons do not reflect the trial judge’s reasoning at the time she made her ruling, but amount to an after-the-fact justification for the result given their timing. Alternatively, the appellant argues that if this court considers the supplementary reasons, they are not owed deference because they contain two errors in principle: 1) the trial judge failed to consider the strip search in her s. 24(2) analysis because it was not connected to the discovery of any of the evidence; and 2) the trial judge overemphasized the importance of “discoverability” and used it as a “makeweight” to admit the real evidence.
[27] A trial judge’s decision to admit or exclude evidence under s. 24(2) is entitled to appellate deference, absent an error in principle, a palpable and overriding factual error or an unreasonable determination: R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 64. Failing to take into account a relevant factor constitutes an error in principle: R. v. Samuels, 2024 ONCA 786, 174 O.R. (3d) 161, at para. 48.
[28] It is not necessary to decide whether this court should consider the trial judge’s supplementary reasons. I agree with the appellant that, even considering the supplementary reasons, the trial judge erred in principle by not considering the s. 8 Charter breach in her s. 24(2) analysis.
[29] Reading the trial judge’s main reasons and supplementary reasons as a whole, it is clear that she made the following findings about the breaches:
(1) The s. 10(b) breach was very serious and warranted exclusion of the appellant’s statements; and
(2) The sole reason for strip searching the appellant was one of police routine and the police gave no consideration to the appellant’s circumstances beyond his status as an arrested person being held for a bail hearing. Nothing in the appellant’s background justified the conduct of a strip search. The search itself was conducted in a reasonable manner.
[30] In her main reasons, the trial judge held that, because the s. 8 breach occasioned by the strip search did not result in the discovery of any evidence, she did not have to consider it any further. In her supplementary reasons, the trial judge only considered the s. 10(b) breach in conducting the Grant inquiry.
[31] The trial judge erred by not considering the s. 8 Charter breach in her s. 24(2) admissibility analysis. The mere fact that the s. 8 breach would not, on its own, have triggered the s. 24(2) exclusionary rule did not make this police conduct irrelevant to the Grant analysis. In R. v. Boutros, 2018 ONCA 375, 361 C.C.C. (3d) 240, at para. 26, this court held that merely because Charter breaches do not trigger s. 24(2) does not mean they cannot be considered in the admissibility inquiry. That is because once s. 24(2) is engaged, “the conduct of the police throughout their investigation and even throughout the prosecution…are germane to the admissibility inquiry required under s. 24(2)”: Boutros, at para. 26. The error in the trial judge’s approach was explained by the Court of Appeal for British Columbia in R. v. Robertson, 2019 BCCA 116, 372 C.C.C. (3d) 407, at para. 56, as follows:
[T]he requirement of a connection between the evidence and the Charter breach is unique to, and lies at the heart of, the threshold stage of the s. 24(2) inquiry. The judge erred in incorporating a similar requirement into the evaluative stage. [Emphasis in the original.]
[32] I cannot accept the respondent’s submission that the trial judge did not have to consider the s. 8 breach because that breach was not relevant or germane to the breach that triggered the s. 24(2) inquiry and because two breaches by two different police officers did not establish a “pattern” of Charter breaches. Although cases such as R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, and Boutros involved the same officers engaging in conduct connected to the triggering breach, that does not mean such a strong connection is required before a court may consider additional breaches at the first step of the Grant inquiry. Indeed, in Harrison, the court considered conduct that occurred well after the investigation – the false testimony of officers in court – that did not even constitute a separate Charter breach. Simply because a pattern of Charter breaches will make a breach more serious does not mean that breaches must form a pattern, committed by the same officers proximate in time to one another, to be considered on the first step of the Grant inquiry.
[33] In any event, as I will explain in more detail below, there was a connection between the breaches. Two officers from the same police force, in the same investigation displayed an ignorance of long-standing Charter standards. As the Supreme Court explained in Grant, the rationale for considering improper police conduct, including a pattern of abuse, at step one is that “for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge:” at para. 75. This policy rationale should favour, rather than discourage, the consideration of additional Charter breaches during the same investigation by the same police force, even if they are committed by different officers.
[34] Having found that the trial judge erred by not considering the s. 8 breach in the admissibility analysis, I will only briefly address the appellant’s allegation that the trial judge overemphasized discoverability.
[35] The term discoverability is sometimes used imprecisely to describe the absence of a causal connection between police conduct breaching a Charter right and the evidence that was obtained. That is how the appellant has used it here. Discoverability and causal connection are different concepts with different applications in the Grant inquiry. Discoverable evidence is evidence that is unconstitutionally obtained but that could have been obtained in a constitutionally-compliant manner. Evidence that is seized pursuant to an unconstitutional warrantless search, where the police otherwise had the grounds to obtain a warrant, is described as discoverable: see for example R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para 93. On the other hand, the term causal connection applies to evidence that was obtained as a consequence of the breach. Breaches that occur after the discovery of evidence (such as the s. 8 breach in this case) cannot have a causal connection to the evidence because those breaches are entirely unrelated to its discovery. Similarly, as in this case, where the police acted with lawful authority to seize evidence with a warrant, the incidence of other breaches, such as the s. 10(b) breach, will have no causal connection to the obtaining of the evidence. Both discoverability and the lack of causal connection can attenuate the impact of a breach on an accused’s Charter-protected interests.
[36] As I will explain, the trial judge did not use the lack of causal connection improperly in her s. 24(2) analysis. However, I reach a different conclusion than the trial judge in how consequential the lack of causal connection is in the final analysis.
[37] The trial judge’s error requires this court to conduct the s. 24(2) analysis afresh. On conducting a full Grant analysis, when factoring in the s. 8 breach, I would exclude the evidence.
[38] The first step of the Grant inquiry strongly favours exclusion. The s. 10(b) breach involved depriving the appellant of his right to counsel for the entire six-hour period of the search. The seriousness of that breach was aggravated by the questioning of the appellant to gather incriminating information. Indeed, in finding that the applicant was detained, the trial judge rejected Officer Moore’s evidence that his questioning of the appellant was not investigative but aimed at speeding up the warrant’s execution. The fact that Officer Moore offered an incomplete recital of the right to counsel did not, as the trial judge said, mitigate the seriousness of the breach. The appellant was clearly detained. The officer’s conduct demonstrated a blatant ignorance of his obligation under s. 10(b) of the Charter.
[39] The s. 8 breach was also very serious and displayed an ignorance of Charter standards. As the trial judge found, the appellant was searched as a matter of “police routine.” Both officers involved in the strip search acknowledged having no notes about the reasons for the search. Moreover, this ignorance of Charter standards went beyond the appellant’s search because both officers acknowledged that every person who was held for a bail hearing was searched the same way.
[40] Given the seriousness of both Charter breaches in this case, the first step of the Grant inquiry pulls strongly in favour of exclusion.
[41] The second step of the Grant inquiry is concerned with the impact of the breaches on the appellant’s Charter-protected interests. The impact here was significant. The appellant was deprived of his right to counsel for six hours. During that time, the police elicited incriminating evidence from him. As this court recognized in R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 45:
The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.
[42] Despite the serious impact of the breaches, under this step of the Grant analysis, a court must also consider the causal connection between the breach and the discovery of the evidence. The lack of a causal connection between the breach and the evidence obtained can mitigate the impact on an accused’s Charter-protected interests. Indeed, the lack of a causal connection is relevant even where a breach is sufficiently temporally or contextually connected to the obtaining of evidence to trigger s. 24(2): R. v. O’Brien, 2023 ONCA 197, 166 O.R. (3d) 114, at para. 61. At the same time, even in the absence of a causal connection, breaches may still be considered impactful enough as to favour exclusion: Rover, at paras. 47 and 49.
[43] In this case, neither the s. 10(b) breach nor the s. 8 breach have any causal connection to the seizure of the computer evidence. As the trial judge correctly observed, that evidence was seized pursuant to a lawful warrant, and therefore its seizure was constitutionally compliant. The very serious impact of the breaches on the appellant’s Charter-protected interests is therefore mitigated somewhat by their lack of causal connection to the seizure of the computer evidence. Overall, I find that this step of the Grant inquiry moderately favours exclusion.
[44] The third step of the Grant inquiry is concerned with society’s interests in a trial on the merits. As is usually the case with real evidence, the third step of the inquiry favours admission of the evidence. The computer evidence is reliable, and, without it, the prosecution will come to an end.
[45] Finally, when balancing the three lines of inquiry a court must assess the impact of admission or exclusion of the evidence on the long-term repute of the administration of justice. The absence of a causal connection is relevant in the final balancing and may reduce the need to exclude the evidence: O’Brien at para. 61; R. v. Lira, 2023 ONCA 437, at para. 14.
[46] On a final balancing, in my view, the “the long-term repute of the administration of justice requires the sacrifice of the short-term benefit of an adjudication on the merits of this case”: Rover, at para. 49. Both of the first two steps of the Grant inquiry pull in favour of exclusion, and the first step pulls in that direction strongly. Both Charter breaches were the result of, at best, ignorance of long-established Charter standards. The s. 10(b) breach was particularly egregious because the appellant and his partner were both detained for several hours and not properly informed of their right to counsel, and the police obtained incriminating evidence from the appellant during his lengthy detention. The s. 8 breach was the result of an apparently routine police practice that likely impacted the Charter protected-interests of many beyond the appellant. Here, the absence of a causal connection between the breaches and the evidence does not remove the impact of this systemic disregard for the Charter rights of accused people. This is not a case where the third step of the Grant analysis tips the scales back in favour of admission.
[47] Accordingly, I would exclude the computer evidence seized from the appellant’s home.
IV. Disposition
[48] I would allow the appeal, quash the convictions, and direct that verdicts of acquittal be entered on all counts.
Released: August 7, 2026 “B.W.M.”
“M. Rahman J.A.”
“I agree. B.W. Miller J.A.”
“I agree. Gary Trotter J.A.”
1In October 2024, as a result of An Act to amend the Criminal Code and to make consequential amendments to other Acts (child sexual abuse and exploitation material), S.C. 2024, c. 23, the term child pornography was replaced with “child sexual abuse and exploitation material” (CSAEM) in the Criminal Code, R.S.C. 1985, c. C-46.