Ruling on Charter Application
Sections 8, 10(b) and 24(2)
Court Information
Ontario Court of Justice
Date: September 12, 2025
Court File: Toronto #23 48126847-00; 24 48106285-00; 24 48114343-00
Before: Justice Brock Jones
Heard on: May 12 and September 5, 2025
Written reasons released: September 12, 2025
Parties and Counsel
Between:
His Majesty the King
— AND —
Philip Rush
Counsel:
- S. Arnold — counsel for the Crown
- C. Bottomley and S. Becker — counsel for Mr. Rush
Introduction and Background Facts
1Philip Rush served as the property manager at 39 Haynes Avenue, Toronto, in 2023. This building is a rooming house located in the York Village neighbourhood near York University. It primarily serves to provide housing for university students. Mr. Rush occupied a small apartment on the third floor of the building.
2On November 24, 2023, two tenants reported concerns about Mr. Rush's conduct to the police. The officer who interviewed the complainants found no grounds for criminal charges. A few weeks later, on December 17, 2023, a second officer, DC Graham, contacted one of the complainants to request additional information. Based on details obtained from this second interview, including the identity of a third complainant, the police initiated an investigation to determine whether Mr. Rush had committed the offence of criminal harassment.
3The complaints against him included allegations of crude behaviour, unwanted remarks, sexualized conduct, unlawful entry into tenants' apartment units, and theft of some of their clothing. They did not allege that he threatened them with violence or assaulted them.
4By December 21, 2023, the police sought a search warrant for Mr. Rush's residence to seize evidence related to the offences of criminal harassment, unlawful entry into a dwelling, and committing an indecent act. The warrant was initially issued for 27 Aldwinckle Heights, an address with which Mr. Rush had no connection. Up to eight Toronto Police Service ("TPS") officers attended this residence for a nighttime warrant execution. Only after entering did they realize, too late, that they had the wrong address.
5The investigating officers sought a new warrant for the correct address of 39 Haynes Avenue instead. On December 23, 2023, TPS officers executed the search warrant in the afternoon. They entered the residence through the front door using a code provided for the keypad. As they ascended to the third floor, they encountered a hallway with a locked door that required another code. Lacking the code, they breached the door with a battering ram.
6They located Mr. Rush inside his apartment, half-dressed, and ordered him to the ground. He was arrested for criminal harassment, but they did not initially inform him of his right to counsel.
7One of Mr. Rush's cell phones was found in his bedroom. An officer searched the phone without a warrant, believing it to be stolen. The officer stopped inspecting it after realizing it belonged to Mr. Rush and contained potentially incriminating video evidence. A search warrant was eventually obtained for the phone, but the issuing Justice of the Peace imposed a date and time limit on it. The officer assigned to examine the phone did not do so until a full day after the warrant had expired. Images and videos of several complainants were found on the phone.
8Inside Mr. Rush's apartment, officers discovered a non-restricted rifle with a loose trigger lock inside a gun case. No ammunition was present.
9Mr. Rush was ultimately charged with various criminal offences related to the seizure of these items from his bedroom and the image and video files found on his cell phone. He submitted an application to the court claiming that his sections 8 and 10(b) Charter rights had been breached. As a remedy, he requested an order declaring that the admission of the evidence would bring the administration of justice into disrepute pursuant to section 24(2). The Crown opposes the application.
10After hearing from the parties, I reserved my decision. These are my reasons.
Overview of the Evidence
11Five police officers testified regarding the Charter application. The parties also agreed to certain facts and submitted documents from the investigating officers on the search team.
1239 Haynes Avenue is a large home that accommodates multiple tenants. Each tenant had a separate room with keypad-entry doors that opened only with a unique code. Mr. Rush lived in an apartment on the third floor, where he served as the property manager for the building. Residents needed a passcode for the front door to enter the building. To access the third floor, an additional passcode was required. This floor was not very large and contained only a few apartments.
Police Officer Testimony
DC Christopher Frazer
13DC Frazer was involved in executing the search warrants at both residential addresses. When Mr. Bottomley asked him if he had made any notes of actions at 27 Aldwinckle Heights, he confirmed that he had. He was then asked whether he had disclosed those notes to the Crown, and he was "not sure" if he had sent them, as those notes were "irrelevant" to how the search warrant was executed at 39 Haynes Avenue.
14Before attending either address, he and the rest of the search team had a briefing about the target of their investigation, Mr. Rush. DC Frazer acknowledged that he was aware Mr. Rush faced two charges: criminal harassment and unlawful entry into a dwelling. He did not receive any information indicating that Mr. Rush had a criminal record, was violent, or was known to possess or use weapons.
15DC Frazer agreed he could easily enter the front of 39 Haynes Avenue and make his way to the third floor. He knew it was a residence designed for student housing. A door blocked access to the upper level, where Mr. Rush's apartment was located. He used a battering ram to break down the door. He did not testify that he or anyone on his team knocked and announced their presence before taking this step.
16Once they got through the door, they found Mr. Rush, half-naked and wearing only pyjama pants, in his bedroom. He was ordered to the ground. He had nothing in his hands. DC Frazer testified that a police officer "order[ed] everyone to the ground" for "officer safety." He then handcuffed Mr. Rush, who was arrested at approximately 3:08 p.m.[1]
17While in Mr. Rush's presence, he heard another officer demand the codes for the other doors in the building, threatening to "kick them in" if Mr. Rush did not comply. Mr. Rush provided the codes but was not informed of his right to counsel or cautioned about speaking to the police beforehand.
18Mr. Rush was not allowed to wear a shirt because he was handcuffed. Instead, an officer placed a zip-up hoodie over his upper body, which the officer managed to zip partially closed. Officers took Mr. Rush outside, and DC Frazer agreed that it was a "chilly" December afternoon. They waited for a police car to transport Mr. Rush to the police division.
DC Andrew Haworth
19DC Haworth was part of the search team at both addresses. He made notes of his involvement at 27 Aldwinckle Heights, but he "[didn't] know what [he] did with them." Before providing his notes to the Crown's office, he removed those pages.
20He attended the briefing about Mr. Rush before they planned to enter 27 Aldwinckle Heights. He understood that the charges against Mr. Rush included criminal harassment, unlawfully entering a dwelling, and committing an indecent act. He accepted that none of these constituted violent crimes.
21When asked how officers should execute a search warrant, he responded that because "any search warrant has the potential for danger" he treats them "all the same."
22When he found Mr. Rush in his bedroom at 39 Haynes Avenue, he informed him of the reason for his arrest. However, he did not advise him of his right to counsel.
23Mr. Bottomley asked him why neither he nor any other officer allowed Mr. Rush to put on a shirt before taking him outside in the cold of winter. DC Haworth responded that because "he'd been cuffed" that was not possible. They did not consider uncuffing him to allow this and then reapplying the handcuffs.
24DC Haworth agreed it was cold enough outside that he was wearing a jacket and toque, however.
Sgt. Darryl Bartholomew
25Sgt. Bartholomew was part of the search team at both addresses. He acknowledged that his notes of what transpired at 27 Aldwinckle Heights were relevant, but since it had "been so long" he could not recall if he had sent his notes to the Crown's office.
26He attended the briefing regarding Mr. Rush before preparing to execute the first search warrant. He agreed that nothing he learned in that briefing indicated Mr. Rush was violent.
27When he attended 39 Haynes Avenue, he went to the basement of the residence. He initially denied drawing and pointing his firearm at individuals in the basement. Mr. Bottomley played the officer's body-worn camera footage for him, which shows him pointing his firearm at a young woman in one of the basement apartment units. He then confirmed his actions. He did not recall whether he had completed a "use of force report" for this action, despite being aware that it was mandatory to do so. Nor could he remember if he had disclosed that use of force report, if it existed, to the Crown's office.
28In re-examination, he explained that while he knew Mr. Rush lived on the top floor of the residence, he did not know what he might encounter in the basement. It was "standard" to clear rooms in a house in the manner he did that day – with his firearm drawn, going room to room. There could have been weapons present. He "would not change anything in hindsight."
29When he arrived at Mr. Rush's apartment on the third floor, he found Mr. Rush half-naked. He was not wearing a shirt. He explained that to put a shirt on Mr. Rush before taking him outside, they would have needed to uncuff him for "about a minute." They decided against doing so.
PC Michael Garel
30Officer Garel was present to execute both search warrants. He, too, did "not recall" if he sent his notes regarding his involvement in the search at 27 Aldwinckle Heights to the Crown's office.
31He agreed that before they executed the search warrants, they had "no reason to think Mr. Rush was dangerous."
32He acknowledged that it was his responsibility to ensure Mr. Rush was provided with his right to counsel. He did not provide that right at the earliest opportunity. He further agreed that the officers should not have questioned Mr. Rush until he was permitted to speak with counsel.
DC Mandeep Randhawa
33DC Randhawa arrived at 39 Haynes Avenue well after Mr. Rush had been taken into custody. He searched Mr. Rush's room and found a cell phone on a metal shelf near the bed, which was powered off.
34He turned on the phone and began to inspect its contents. He explained that the phone was not one of the items authorized for seizure by the search warrant, nor was it seized in connection with Mr. Rush's arrest. Instead, having received information that Mr. Rush had stolen clothing from some of the other tenants at this address, he wondered whether the phone could also be stolen. He merely wanted to determine if the phone's rightful owner could be identified by reviewing its contents.
35In cross-examination, he agreed that no one had alleged that Mr. Rush had stolen their phone. Nevertheless, he testified that he was looking for ownership or registration information on the phone. However, he conceded that he did not make an entry to that effect in his notes.
36The phone was not password-protected. He discovered three video files on the phone and opened two of them. He did not clarify how opening these video files would help him obtain "ownership or registration information." He was "not sure" where he began his search on the phone, but he "ended up" looking at these videos. He did not document his search technique, leaving him with nothing to rely on other than his (limited) independent recollection to explain his actions.
37He never received any special training regarding his obligations concerning the search of a cell phone. He admitted during his testimony that perhaps he should have written "more detailed notes."
38In re-examination, at the suggestion of Mr. Arnold, he stated that the search warrant authorized him to seize "recording devices" which may have justified him in taking the phone. However, he later backtracked from that answer and equivocated as to whether he subjectively believed anything in the warrant's terms justified the search of the phone as the Crown's re-examination continued. I note that his testimony was inconsistent on this point, and his initial response in re-examination to this leading question directly contradicted his testimony in chief, where he stated that the warrant did not authorize him to seize the phone.
39After viewing the two videos, he turned off the phone and placed it with the other property obtained during the execution of the search warrant.
Detective Candy Graham
40Det. Candy Graham was the Officer in Charge ("OIC") of the case. She led the search team at 27 Aldwinckle Heights. She could not explain how they obtained a search warrant for this address, which had no association with Mr. Rush.
41Following the location of Mr. Rush's cellphone at 39 Haynes Avenue, she instructed another officer, PC Sidhu, to prepare a warrant application to search the phone. A Justice of the Peace approved the warrant, which authorized the officers to search the phone. It was valid from December 23, 2023, at 7:59 pm, to December 26, 2023, at 8:59 pm.
42The cellphone was placed in an evidence locker after being seized on December 23. On December 26, Det. Graham attended the evidence locker, opened the door, and did nothing more. She did not touch the phone or otherwise inspect it. She testified that this is how she "executed the warrant" – by looking at the phone and then closing the locker door. In her mind, that would permit the TPS to examine the phone in detail at a later date. She explained that the particularized date range on the warrant does not "end and conclude" as long as an officer takes this preliminary step.
43Det. Graham testified that the actual search of the phone's contents occurred on December 27, leading to the discovery of some video evidence that now forms part of the case against Mr. Rush.
Agreed Facts
44Mr. Rush was provided with his rights to counsel at 3:14 p.m. after he was secured in the rear of PC Garel's squad car.
45None of the officers made notes of their involvement in the search that was conducted at 27 Aldwinckle Heights.
46DC Bartholomew did not complete a Use of Force Report regarding his participation in the search warrant executed at 39 Haynes Avenue.
Position of the Parties
47Mr. Bottomley submits that his client's section 8 and 10(b) Charter rights were violated repeatedly. The police officers' conduct could be characterized as negligent – or worse. He described some of the violations as "flagrant."
48While Mr. Rush does not have standing per se with respect to the search that occurred at 27 Aldwinckle Heights, Mr. Bottomley submits that the failure of the officers to make notes of this search is relevant to his client's Charter application. It is no coincidence that the officers each testified they thought they made notes of how they searched this address, but then somehow could not produce those notes when testifying. They never did create any notes. Their testimony was not only troubling, but their lack of professionalism has frustrated the truth-seeking function of the trial process. Contrary to the position of the Crown, he insists that what happened at that first address is relevant to how I resolve this application. The officers attended there to locate incriminating evidence against Mr. Rush. Why they mistakenly arrived at the address was never explained. I should draw an adverse inference against the officers as it speaks to their carelessness and negligence, and their credibility and reliability as witnesses.
49Mr. Bottomley submits that the manner of the search that was conducted at 39 Haynes Avenue was excessive and unreasonable. The officers knew they were entering student housing to locate Mr. Rush, who had no history of violence or possessing weapons. There was no evidence that the officers knocked and announced before entering the home. At least one officer drew his firearm and pointed it in the direction of innocent students. They used a battering ram to knock down a door. They refused to allow Mr. Rush to appropriately dress himself before parading him outside in the middle of winter. All of this was justified, in the officers' minds, as it was standard practice for them to employ when executing any search warrant. That calls out for condemnation from the court. They did not consider the individualized circumstances of this particular search.
50Regarding section 10(b), Mr. Bottomley argues that the officers did not provide Mr. Rush with his right to counsel properly until after they had questioned him. It is yet another example of their disregard for Mr. Rush's Charter rights.
51That was followed by a warrantless search of Mr. Rush's cell phone, which was unjustified. Cell phones contain treasure troves of personal information about their owners. There was no evidence before the officers that the phone had been stolen, and their stated justification for searching the phone was without merit. And while they did later obtain a warrant, they did not follow the stipulated timeframe on the warrant. They commenced their forensic examination of its contents (and the associated SD card) unlawfully as a result.
52Mr. Bottomley submits I should rule the evidence inadmissible pursuant to section 24(2). The severity of the state misconduct in this case falls at the higher end of the spectrum. There were multiple breaches, and no good faith on the part of the police. There is a strong societal interest in ensuring that police officers respect the Charter, and their failure to do so in this case cries out for an order excluding the evidence that was seized.
53According to Mr. Arnold, I should dismiss the application. There were no violations of Mr. Rush's Charter rights. Even if there were "teachable moments" for the police in this case, and they did in fact make mistakes, most of Mr. Bottomley's arguments were focused on errors of the police that had no tangible effect on Mr. Rush's rights. As a result, they are largely irrelevant. For example, the search of the wrong address, while undesirable, did not directly impact Mr. Rush's rights.
54The Crown does not dispute that Mr. Rush had a privacy interest in the contents of his apartment. Nor does Mr. Arnold dispute that Mr. Rush has a recognized privacy interest in the contents of his cell phone. However, he submits that the circumstances under which that phone was searched in this case lead to the conclusion that there was no violation of Mr. Rush's rights. Mr. Arnold submits that DC Randhawa's decision to search Mr. Rush's phone was made incident to arrest.[2] As this initial search was only "cursory", it was lawfully authorized accordingly: see R. v. Fearon, 2014 SCC 77. Alternatively, the officer was at least entitled to conduct such a search to determine the ownership of the phone.
55Regarding the alleged violation of Mr. Rush's section 10(b) rights, Mr. Arnold does not dispute the general proposition that the police have a duty to hold off questioning after a suspect is arrested and advised of their right to counsel. However, he submits that this duty does not prevent questioning that is not intended to elicit incriminatory evidence. The officers' questions in this case, before Mr. Rush was able to exercise his right to counsel, fall into this category. Compelling public safety concerns permitted them to ask him the questions they did.
56If I were to find any breaches of the Charter, Mr. Arnold submits they would be minor and committed by the officers while they were acting in good faith. The evidence should not be excluded pursuant to section 24(2). While he does not excuse any errors the officers made, he cautions me against stretching the Charter too far, and excluding otherwise reliable evidence.
Charter Section 8 – Search of Mr. Rush's Residence
57Section 8 of the Charter guarantees every Canadian the right against unreasonable search and seizure by the state. It functions as "a shield against unjustified state intrusions on personal privacy": see R. v. Kang-Brown, 2008 SCC 18, at para. 8.
58Searches of private residences have long been recognized as engaging particularly compelling privacy interests. In [R. v. Silveira, 1995), the Supreme Court of Canada wrote at para. 148:
The home is the one place where persons can expect to talk freely, to dress as they wish and, within the bounds of the law, to live as they wish. The unauthorized presence of agents of the state in a home is the ultimate invasion of privacy. It is the denial of one of the fundamental rights of individuals living in a free and democratic society. To condone it without reservation would be to conjure up visions of the midnight entry into homes by agents of the state to arrest the occupants on nothing but the vaguest suspicion that they may be enemies of the state. This is why for centuries it has been recognized that a man's home is his castle.
59When the police have obtained a warrant to search a residence, they may do so within the bounds of the law. However, they are not granted unlimited authority to utilize whatever techniques they wish. For a search to be reasonable under section 8 of the Charter, a search must be conducted in a reasonable manner: R. v. Collins, [1987] 1 S.C.R. 265, at p. 278.[3]
60In R. v. Cornell, 2010 SCC 31, the Supreme Court of Canada held that, except in exigent circumstances, police officers must make an announcement before forcing entry into a dwelling house. This means that officers must give: "(i) notice of presence by knocking or ringing the door bell, (ii) notice of authority, by identifying themselves as law enforcement officers and (iii) notice of purpose, by stating a lawful reason for entry": Eccles v. Bourque, [1975] 2 S.C.R. 739, at p. 747.
61When the police depart from the "knock and announce" principle, there is an onus on the Crown to explain what would justify that departure: see Cornell at para. 20. Where the Crown can point to evidence that the police had reasonable grounds to be concerned about the possibility of harm to themselves or occupants, or there were reasonable grounds to fear the destruction of evidence, the police may dispense with this requirement. However, the police must have relied upon information that was or should have been reasonably known to them then; the Crown cannot rely on ex post facto justifications: see R. v. Genest; Cornell at para. 23; R. v. Rutledge, 2017 ONCA 635, at para. 25.
62The "knock and announce" rule exists not only because it "protects the dignity and privacy interests of the occupants of dwellings" but also because it serves to "enhance the safety of the police and public": see Cornell at para. 19. At the same time, the police "cannot be expected to measure in advance with nuanced precision the amount of force" executing every search warrant will require: Cornell at para. 24; R. v. Asante-Mensah, 2003 SCC 38, at para. 73. They are entitled to a considerable degree of latitude as their safety may be in jeopardy. Therefore, I approach my review of the officers' conduct in this case with caution and note that my role is to determine whether the search was conducted in a manner that appropriately balanced the rights of Mr. Rush as a suspect with the "requirements of safe and effective law enforcement": Cornell at para. 24; Rutledge at para. 26.
63The reasonableness of a search will be judged based on whether "the search, overall, in light of the facts reasonably known to the police, was reasonable": see R. v. McManus, 2021 ABCA 177, at para. 31.
64Each case must be assessed carefully based on the facts known to the officers at the time. The police cannot adopt a "one size fits all" approach to executing search warrants. For example, in R. v. Ruiz, 2018 ONSC 5452, Justice Diamond found that a dynamic entry was unreasonable in circumstances where the police had failed to make inquiries into the occupants of the residence or meaningfully consider the manner of how they would execute the search warrant before they did so: see paras. 51-52. The officers could not simply point to the hypothetical possibility of encountering weapons or that evidence "could" be destroyed. The manner of the search was also found to be "excessive and unnecessary", as the officer ransacked the home looking for drugs: see para. 62.
65In this case, I find that the officers applied an alarming lack of care and attention in executing the search warrants.
66The unexplained failure of the officers that resulted in them searching a completely unrelated residence to Mr. Rush initially cries out for condemnation. Had due care and attention been exercised in both obtaining and executing this first search warrant, with the degree of attention to detail one would expect from police officers, this appalling mistake would not have occurred. Instead, the officers seem to have forged ahead from 27 Aldwinckle Heights to 39 Haynes Avenue and hoped to simply forget and disregard their previous error. Indeed, the officers collectively did not even seem to believe that their duty to create accurate notes of the entirety of their investigation was engaged by this earlier search, as they had attended the incorrect address.
67They were wrong. The officers had a duty to record notes of what occurred at this first address, including why they attended, on what basis they believed it was associated with Mr. Rush, and when they realized they had made a mistake: see Wood v. Schaeffer, 2013 SCC 71, at para. 67. That material is unquestionably Stinchcombe first-party disclosure, and, astonishingly, not just one, but multiple officers involved in this case appear to have taken the same view that they need not have disclosed this material to the Crown's office as it prepared the prosecution against Mr. Rush. As Mr. Bottomley correctly argued during closing submissions, this was at minimum, unacceptably negligent.
68I would go one step further. The officers, when testifying, each claimed they did or "would have" created notes of their involvement at 27 Aldwinckle Heights. Yet somehow the notes never appeared, despite Mr. Bottomley pressing them in cross-examination on this point. Mr. Arnold later conceded they did not make any such notes. I do not accept this was a case of collective amnesia. Rather, the officers were attempting to deceive me about their failure to create accurate notes of their search at this address, rather than simply acknowledging this shortcoming.
69The execution of the search warrant at 39 Haynes Avenue was also problematic. What emerged from this hearing overall left me with the impression of police carelessness, negligence, and indifference to the officers' obligations in general and Mr. Rush's Charter rights in particular.
70The officers recognized that the crimes Mr. Rush was to be charged with were not violent, that he had no prior criminal record, and that there was no indication that weapons were likely to be present. This was not a situation where the destruction of evidence was a pressing concern, either. Notably, 39 Haynes Avenue was recognized by each of the officers as being designated for student housing. They were not entering a drug den to apprehend a known gang member.
71Yet none of these facts were meaningfully considered by the search team. They treated their execution of this warrant just like any other. They entered the residence using a code to bypass the front door lock. They then proceeded to the third floor, where they encountered another locked door barring them from accessing Mr. Rush's apartment. They did not properly knock and announce their presence or state that they had a search warrant.[4] They resorted to using a battering ram to force the door open. The officers had no information that would even approximate exigent circumstances justifying this approach.
72Officer Bartholomew explained he employed "standard" procedure. Officer Haworth testified that because "any search warrant has the potential for danger" he "treats them all the same." This was the antithesis of an individualized approach to assessing risk and determining an appropriate course of action when executing a search warrant. Not a single officer testified that they tailored their approach based on what they knew, including that they had no reason to believe Mr. Rush was violent or had access to weapons. None of them even considered an alternative, less aggressive approach.
73In addition, some officers' treatment of Mr. Rush was callous. The officers wore warm clothing, including jackets, and some donned winter hats. When they found Mr. Rush half-naked, they refused to put a shirt on him before parading him outside in the cold of winter, because "he'd been cuffed." There were multiple officers in his bedroom, yet not one even considered temporarily removing the handcuffs to allow him to dress himself appropriately before escorting him outside. Placing handcuffs on a person does not diminish their humanity. Mr. Rush was always cooperative and submissive to the officers' instructions. A minor display of compassion is all it would have taken, with no risk to officer safety – something, I note, that Officer Bartholomew agreed would have taken less than a minute to accomplish.
74I am also not convinced that Officer Bartholomew drawing his firearm and pointing it directly at the student tenants in the basement as he "cleared" each room was necessary. While ostensibly for officer safety purposes, he had no reason to believe anyone present was known to be violent or possess weapons. He could have checked on these tenants in their rooms without resorting to such a tactic. This would have been a terrifying ordeal for these entirely innocent residents. During cross-examination, he admitted he did not remember completing a "use of force report" a mandatory obligation placed on any officer who draws his firearm in these circumstances. Additionally, Officer Bartholomew at first did not recall when testifying that he pointed his firearm directly at a student tenant. Then, Mr. Bottomley easily demonstrated this happened by presenting the officer with his own body-worn camera footage, which recorded that this was exactly what he did. His reluctance to acknowledge this glaring fact and his failure to complete this report demonstrate that, in retrospect, he too realized the error of his way and was hoping to avoid answering questions about his conduct with his evasive answers.
75Mr. Arnold emphasized during arguments that even if I found fault with some of the officers' conduct, I should not allow anything that occurred regarding the rights of persons other than Mr. Rush to affect my decision. For example, I should not concern myself with the search of 27 Aldwinckle Heights as Mr. Rush did not reside there. Nor should I concern myself with whether Officer Bartholomew drew his firearm at students at 39 Haynes Avenue.
76I disagree. Courts have recognized that when assessing whether a search warrant was executed reasonably, the impact of the police actions on the rights of other persons present at the time may be considered. In R. v. Charles, 2023 SKPC 6, Justice Daunt held that "[a]pparent breaches of the rights of others" may exacerbate a finding that a search warrant was executed unreasonably at a private residence: see para. 55. In R. v. Ly, 2012 BCSC 504, Justice Barrow held "that the breach of someone else's Charter rights may show a pattern of disregard for the Charter by the police": see para. 73. In R. v. Lambert and Bailey, 2023 NSCA 8, the Nova Scotia Court of Appeal upheld a trial judge's decision that "the cumulative impact of all Charter breaches can be considered, including breaches of rights of other [persons] and breaches that did not directly result in the discovery of evidence" under any section 24(2) analysis required if violations of an accused person's rights under the Charter are also found: see paras. 96-100.
77Notably, in R. v. Le, 2019 SCC 34, the Supreme Court of Canada considered the rights of other persons who were present when determining whether the police violated the Charter rights of the accused at the time he was investigated. Mr. Le and four other young men were gathered in the private backyard of a townhouse at a Toronto housing co-operative when three police officers arrived. Two officers entered the backyard without a warrant or consent and began questioning the men. As matters escalated, Mr. Le fled and was then pursued and arrested. He was found to be in possession of a firearm.
78The majority of the Supreme Court held that the officers lacked a lawful basis for their investigation and that Mr. Le's rights under section 9 of the Charter were violated. The police conduct towards not only him, but also the other persons located in the backyard at the time, was relevant to determining whether he was psychologically detained: see para. 62-64. The majority also considered the officers' mistreatment of the other young men who were in the backyard in its section 24(2) analysis. The majority wrote that "weighed against the absence of justification to investigate the young men at all, the impact of this police misconduct is heightened considerably": see para. 155.
79A very analogous case to the facts before me is R. v. Naess, 2022 ONSC 6490. Police officers executed a search warrant that granted entry through a specific door to the accused's residence. There were other tenants located there as well. The officers conducted a "safety search" of the entire home, violating the privacy rights of the four or five other tenants who were uninvolved in the investigation. The accused brought a challenge to the search under section 8 of the Charter.
80Justice Stribopoulos found a violation of section 8 of the Charter. When deciding on the appropriate remedy under section 24(2), he held that the "potential impact of a Charter breach on the rights of entirely innocent persons" who were present at the time was a relevant consideration. The conduct of the police when executing the warrant "occasioned a serious violation of the privacy rights of the upstairs tenants who shared Mr. Naess's home – people who the evidence suggests had nothing at all to do with the criminal wrongdoing police were investigating": see para. 146. It was lawful for the court to consider the breach of the privacy rights of the other tenants when determining whether the evidence obtained during the search should be excluded: see para. 148.
81Thus, what happened at 27 Aldwinckle Heights and the treatment of the student in the basement at Mr. Rush's residence thus very much matter to this application. Every example of state misconduct assists me with arriving at a full and detailed understanding of how the officers' approached their duties and whether they were tailoring their approach appropriately: see Ruiz, supra. I will expand upon the cumulative impact of the search team's errors in my section 24(2) analysis accordingly.
82Furthermore, as I will explain, the officers disregarded Mr. Rush's right to counsel after his arrest without any justification. Considering all of the evidence, I find that the search of 39 Haynes Avenue was not conducted in a reasonable manner. Mr. Rush has met his onus. There was a breach of section 8 of the Charter.
Charter Section 8 – Search of Mr. Rush's Cellular Phone (and SD card)
83In R. v. Vu, 2013 SCC 60, the Supreme Court of Canada stressed the importance of specific, prior authorization for searches of computers and digital devices: see paras. 46-49. The Court held that "only a specific authorization to search a computer found in the place of search ensures that the authorizing justice has considered the full range of the distinctive privacy concerns raised by computer searches": see para. 47. The term "computer", as used in these decisions, should be defined expansively to include all modern digital devices. It would be artificial to apply the law of search and seizure differently to "different digital devices based on slight technological differences": see N. Hassan et al, Search and Seizure, Emond Publishing (Toronto: 2021), at p. 352; Vu, supra, where the Supreme Court held, in 2013, that "present day phones have capacities that are… equivalent to those of computers": see para. 38.
84Officer Randhawa's decision to search the phone in Mr. Rush's room was unreasonable. He had no grounds to believe it was a stolen phone. Every piece of evidence available to him should have indicated that it was likely Mr. Rush's phone. It was located on a shelf beside his bed. There was no information suggesting that anyone's phone had been stolen. Notably, the warrant authorizing the search of 39 Haynes Avenue did not include cellphones as items to be seized. During his testimony, Officer Randhawa did not attempt to use the warrant to justify his seizure and subsequent search of the phone.
85A warrantless search of a phone can be justified in some circumstances, such as when it is seized incident to arrest, and the requirements established by the Supreme Court of Canada in R. v. Fearon, supra, are followed. However, the officer was clear that this, too, was not the basis upon which he acted. The Crown's argument in this regard thus has no merit. As explained by Tholl J.A. in his dissent in R. v. Sabiston, 2023 SKCA 105"[i]t is the actual police power exercised that matters when examining whether there was a Charter breach, not some other power that could have potentially been used but was not": see para. 93; reasons adopted by the majority of the Supreme Court of Canada in R. v. Sabiston, 2024 SCC 33, at para. 1.
86I conclude that Officer Randhawa's decision to search the phone's video files was entirely unjustified. Even if he were genuinely searching the phone to determine if it belonged to a victim,[5] he never articulated why searching the video files was relevant to identifying the phone's owner. A search of a cellular phone must be tailored to its intended purpose: see Fearon at para. 76. I find that the search in this case went too far, even if I had accepted his stated purpose for doing so. Moreover, where there is any hint of criminal activity on a phone, a search of that phone for proof of ownership generally requires judicial authorization: see R. v. Soop, 2025 ABKB 119, at para. 28. Once he located the concerning video files, Officer Randhawa was taking liberties with how deeply he could probe into the phone's video contents to find evidence without a warrant. The officer's failure to produce detailed notes of his phone search and to document why he felt it necessary to inspect the video files for his stated purpose reinforces this conclusion.
87A search warrant was ultimately obtained for Mr. Rush's phone. The warrant authorized the police to search the phone from December 23, 2023, at 7:59 p.m. until December 26, 2023, at 8:59 p.m. However, Det. Graham explained that the phone's contents were not searched until December 27. In her mind, she had "executed" the warrant on December 26 by merely opening the locker where it was stored and peering at it before closing the locker door again. This, in turn, meant that the police could search the phone's contents later, outside the time frame established by the warrant.
88This was incorrect, and it is hard to believe the officer genuinely thought that "executing" a warrant involved nothing more than opening a locker door to gaze upon it briefly.
89When courts in Ontario have rejected a rigid approach to interpreting time limitations on search warrants concerning the forensic analysis of cell phones and computers, they have done so only after certain preconditions were met. For example, in R. v. Nurse, 2019 ONCA 260, the appellants' BlackBerry devices were seized upon their arrest. The police obtained a search warrant that allowed them to create an "image" of the data on the devices. About a year later, officers utilized updated forensic software to analyze that data again, this time acquiring chat messages that revealed a plot to murder the victim.
90The police initially had a 15-hour window to execute the warrant. The appellants argued that the data analysis on the devices needed to be completed within this timeframe, and that failing to do so by re-examining the devices a year later with new software constituted a breach of their Charter section 8 rights. The Ontario Court of Appeal determined that the search was lawful. The warrant authorized the police to search the evidence locker at the OPP, re-seize the devices, and create "images" of the data on them for analysis. If that was done within the appropriate period, and "there was no restriction, on the face of the warrant or at law, as to when or how often the police were permitted to examine or inspect this lawfully seized and copied data", there was no breach of the Charter: see para. 137 (my emphasis added); and the trial decision, R. v. Nurse and Plummer, 2014 ONSC 1779, at para. 26.
91Det. Graham did not adhere to that established procedure in this case. The search warrant did not permit her to create an "image" of the phone's data for later analysis, and she did not do so. By merely observing the phone in the evidence locker, she did not "execute" the warrant. The warrant was time-sensitive, and it was only when she analyzed the data on the phone on December 27 that it was executed, beyond the authorized window of opportunity. This rendered the phone search warrantless.
92The warrant specifically stated that the phone itself was the "place" to be searched, within a temporal constraint. Nurse does not assist the Crown. Unlike in Nurse, there was a restriction on the face of the warrant. Therefore, the parameters outlined in the warrant strictly applied to any data examinations. The investigating officer chose how to frame the requested terms for the warrant, and the Crown must contend with the analytical consequences of that framing.
93Mr. Arnold argued that this constituted a "technical violation." He cited R. v. Pammett, 2014 ONSC 1242. The police executed a search warrant at a residential address on February 10, 2011. The warrant did not specify a date for its execution. The defendant contended that this invalidated the warrant. Alternatively, the defendant claimed that the warrant had to be executed on the date it was issued: February 9, 2011.
94Justice McCarthy disagreed. He found that the warrant was issued the evening before February 10, with a window for execution between 6 am and 1 pm. By implication, the only logical conclusion was that the warrant was to be executed the next day: see para. 10.
95This case does not assist the Crown. There was not simply a "technical irregularity" when Mr. Rush's phone was searched. The time limitations on the warrant were clear, and Det. Graham overlooked an essential aspect of it due to her flawed understanding of what it meant to execute a warrant. Her search effectively became warrantless.
96I find that both searches of his cell phone violated Mr. Rush's section 8 rights. The first search was conducted without a warrant, and the Crown has failed to demonstrate it was conducted lawfully. The subsequent searches of the phone, while authorized by a warrant, when done outside the time frame of the warrant. Finally, for the sake of clarity, I find that the search of any associated SD card of the phone that was seized was also done outside the scope of the warrant, and this constitutes another violation of section 8 of the Charter.
Charter Section 10(b)
97After Mr. Rush was arrested by the officers and handcuffed, he was not provided with his right to counsel. Section 10(b) of the Charter must be complied with "immediately", to ensure that a detained person who is "vulnerable to the exercise of state power and in a position of legal jeopardy" has access to legal advice: see R. v. Suberu, 2009 SCC 33, at paras. 38 and 40. Police officers must "refrain from taking further investigative steps to elicit evidence" such as asking a detainee questions, until they have had the opportunity to speak to counsel: see R. v. Taylor, 2014 SCC 50, at para. 26.
98When the officers demanded that Mr. Rush reveal who else resided at the residence and provide the codes to the basement apartment units, they violated this well-recognized duty to "hold off." I do not accept the Crown's argument that public safety concerns justified these questions or that they were not designed to elicit admissions. There was no evidence that anyone else in the residence was in jeopardy or that there was any urgency that justified asking Mr. Rush these questions before he could exercise his right to counsel. I find as a fact that one of the officers threatened to "kick them in" (meaning the doors to the other residential units) if Mr. Rush did not immediately comply and provide them with the entry codes. This was anything but neutral questioning done for a benign purpose: see R. v. Dupe, 2010 ONSC 6594, at para. 24. This was an intimidation tactic employed to help the officers garner information quickly that would allow them to conduct their search of the residence more efficiently. All of this was being done with the intention of obtaining incriminating evidence against Mr. Rush.
99Even the slightest of admissions to an investigating police officer could be potentially highly damaging to the accused. Any violation of the right to counsel and the associated right against self-incrimination must be taken very seriously and should not be easily dismissed. The duty to hold off has long been recognized as an essential feature of the right to counsel for good reason. Courts should exercise extreme caution before permitting responses to questions by police officers obtained in this manner to be admitted into evidence, lest this central feature of one of our most sacrosanct constitutional rights be rendered hollow.
100The officers were required to hold off on questioning Mr. Rush until he was provided with a meaningful opportunity to exercise his right to counsel. I find two violations of Mr. Rush's section 10(b) rights accordingly.
Charter Section 24(2)
101Section 24(2) of the Charter stipulates that, where evidence was obtained in a manner that infringed a Charter right or freedom, that evidence shall be excluded if it is established that, having regard to all the circumstances, its admission would bring the administration of justice into disrepute. The court must seek to maintain the "integrity of, and public confidence in, the justice system": see R. v. Grant, 2009 SCC 32, at paras. 68-70. The focus should be on vindicating the long-term repute of the criminal justice system: see R. v. Pileggi, 2021 ONCA 4, at para. 90.
Seriousness of the Charter-Infringing Conduct
102The focus of the first branch is on the actions of the police: see R. v. Orlandis-Habsburgo, 2017 ONCA 649, at para. 130. The court must "situate that conduct on a scale of culpability": see R. v. Paterson, 2017 SCC 15, at para. 43. The Ontario Court of Appeal in R. v. Gonzales, 2017 ONCA 543, cautioned that "care must be taken to ensure that ignorance of Charter standards is neither rewarded nor encouraged and that negligence or willful blindness does not become a proxy for good faith": see para. 158.
103The police misconduct in this case was, at a minimum, negligent. While I do not find that the officers were acting in bad faith when they failed to knock and announce their entry, or when they employed "standard" search warrant techniques while clearing 39 Haynes Avenue, they demonstrated a lack of understanding of their requirements under section 8 of the Charter and indifference to the rights of every civilian present at this address. The officers' failure to properly create and provide comprehensive notes of their search of 27 Aldwinckle Heights was done in violation of the professional obligations: Wood, supra; O. Reg. 407/23: Code of Conduct For Police Officers, enacted pursuant to the Community Safety and Police Act, 2019. I do not accept their testimony regarding why they did not prepare thorough notes, and I find their collective memory loss about whether they originally sent the inadequate notes they did create to the Crown's office to be feigned. I also find Officer Bartholomew intentionally failed to create a "use of force report" despite knowing it was his obligation to do so, and attempted to mislead the court when he was cross-examined on this point. "Police dishonesty aggravates the seriousness of a Charter breach": see R. v. James, 2025 ONCA 213, at para. 44.
104The warrantless search of Mr. Rush's cellphone was conducted without any consideration for his privacy interests. I find that the search for the video files was not performed for Officer Randhawa's stated purpose of determining whether the phone was stolen. This search constituted a blatant violation of Mr. Rush's rights. After a search warrant was issued, Det. Graham's decision to examine the contents of the phone beyond the time frame set by the warrant appears to have resulted from a misunderstanding of the law. Nonetheless, even if her error stemmed from negligence, it was significant.
105Regarding section 10(b), the court must strongly condemn the failure to provide him immediately with his right to counsel. This long-standing requirement is one that every officer should know instinctively. The lack of regard for Mr. Rush's right to counsel is deeply concerning.
106This factor heavily favours the exclusion of all of the evidence located by the police.
The Impact of the Breach on the Charter-protected interests of the accused
107I must consider the seriousness of the impact of the Charter breaches on the Charter-protected interests of the accused. The "more serious the impact on the accused's constitutional rights, the more the admission of the evidence is likely to bring the administration of justice into disrepute": see R. v. Côté, 2011 SCC 46, at para. 47.
108The right to counsel has been described as a "lifeline" for someone under arrest. Placed at the mercy of the state, a detained person being informed that they can contact counsel immediately, and that the police officers will respect that right, holds tremendous psychological importance: see R. v. Rover, 2018 ONCA 745, at para. 45. I find that the impact on Mr. Rush's section 10(b) rights was profound, even though he was provided with his rights approximately eight minutes later. Every second in police custody during which a detainee is denied knowledge of his right to contact counsel must be justified. Furthermore, there was no excuse for the officers' refusal to pause questioning during this time. Exclusion of evidence is often warranted for "clear violations of well-established rules governing state conduct": see Paterson, supra, at para. 44.
109Concerning the violations of his privacy rights protected by section 8 of the Charter, in R. v. Adler, 2020 ONCA 246, the Ontario Court of Appeal held that "[i]t is well-established that two of the areas where an individual's right to privacy is paramount is in their home and in their electronic devices" see para. 33. The unlawful, warrantless search of Mr. Rush's phone demonstrated a startling lack of respect for Mr. Rush's privacy rights. In R. v. Mitchell, 2019 ONSC 5040, Justice Allen stated"it is well recognized that cellphones house the most intimate and personal revelations about a person's life": see para. 156.
110The search of Mr. Rush's apartment at 39 Haynes Avenue was conducted pursuant to a lawfully issued warrant. The errors of the police officers relate to how they executed it and their failure to properly document their entire search process, including at 27 Aldwinckle Heights. I find that the breaches of Mr. Rush's section 8 rights had a significant, but not overwhelming, impact on his Charter-protected interests. The officers did not execute the warrant as they did or treat Mr. Rush as they did out of animus towards him. Rather, they performed their duties mechanically, demonstrating indifference to the individual circumstances.
111Overall, this factor weighs moderately in favour of exclusion concerning the video files on Mr. Rush's phone. I note that Mr. Rush did not challenge the existence of reasonable and probable grounds for the warrant subsequently issued for his cell phone search. As noted by the Supreme Court in Fearon, failure to challenge the grounds to issue a warrant militates against both the seriousness of the breach and the impact on the applicant's Charter-protected interests: see para. 96.[6] Had Det. Graham conducted herself properly, the phone would have been lawfully examined, and the evidence against him inevitably discovered. That being said, discoverability is a relevant but not determinative factor: see James, at para. 54.
112This factor similarly weighs moderately in favour of excluding the evidence found in his apartment, including the firearm. Mr. Rush did not challenge the grounds for the search warrant, only the manner by which it was executed. In contrast, it heavily favours exclusion concerning Mr. Rush's statements made before being informed of his right to counsel.
Society's Interest in Adjudication of the Case on Its Merits
113In R. v. Le, 2019 SCC 34, the Supreme Court of Canada described what should be considered in the third branch of the Grant test at para. 158:
While we have observed that the third line of inquiry under Grant typically pulls towards inclusion of the evidence on the basis that its admission would not bring the administration of justice into disrepute, not all considerations will pull in this direction. While this inquiry is concerned with the societal interest in "an adjudication on the merits" (Grant, at para. 85), the focus, as we have already explained, must be upon the impact of state misconduct upon the reputation of the administration of justice. While disrepute may result from the exclusion of relevant and reliable evidence (Grant, at para. 81), so too might it result from admitting evidence that deprives the accused of a fair hearing or that amounts to "judicial condonation of unacceptable conduct by the investigatory and prosecutorial agencies" (Collins, at p. 281). An "adjudication on the merits", in a rule of law state, presupposes an adjudication grounded in legality and respect for longstanding constitutional norms.
114Mr. Rush is charged with criminal harassment and voyeurism for his conduct toward two female tenants. While the Crown may still prosecute the criminal harassment charge despite the absence of evidence obtained from the searches, its case on the voyeurism charge will be unsustainable without the video files found on his phone. The protection of vulnerable female victims is of great importance. He is also charged with the unlawful possession of a firearm, which represents highly reliable evidence. I agree that these factors pull towards the admission of the evidence.
115However, the introduction of this evidence could also damage the long-term reputation of the justice system, given that the officers violated long-standing constitutional norms and appear to have lacked a basic understanding of their obligations under the Charter.
116This branch of the Grant test favours admitting the evidence, but only moderately.
Balancing the Factors
117Condoning the officers' misconduct in this case would bring the administration of justice into disrepute. They initially searched the wrong address and failed to comply with their notetaking and disclosure obligations. Their failure to "knock and announce" at the correct address, along with their resort to the use of a battering ram, violated a long-cherished norm regarding the execution of search warrants in Canada, which is constitutionally required. Their collective failure to provide Mr. Rush with his right to counsel immediately after his arrest and to question him before he had the opportunity to speak to counsel demands strong judicial condemnation.
118The officers' refusal to provide Mr. Rush an opportunity to put on a shirt and a properly zipped-up sweater before taking him outside in winter was a minor failure on their part. Still, it was demonstrative of the larger problem I have identified: their unwillingness to consider Mr. Rush's individualized circumstances when executing the search warrant.
119I do not for a moment disregard the very difficult and dangerous situations our law enforcement officers find themselves in during their duties. They are entitled to prioritize their well-being and community safety without undue judicial oversight based on the privilege of hindsight. They must prepare for volatile situations involving unpredictable individuals and act swiftly with the limited information available to them.
120However, not all search warrants are executed with the same level of threat. Mr. Rush was not alleged to have committed any violent crimes, nor does he have a history of possessing or using weapons. The search team failed to consider any of these factors in their approach to executing the warrant.
121Additionally, without a warrant, there was no lawful basis for searching the video files on Mr. Rush's phone. Once one was obtained, Det. Graham's disregard for its time limits revealed a startling lack of understanding of the law.
122There is no escaping a pattern of Charter-violating conduct from an overall review of the officers' actions. Balancing the Grant factors, I find that any evidence obtained from Mr. Rush's phone is inadmissible. Similarly, the statements he made when questioned before being informed of his right to counsel are also inadmissible.
123The rifle located in his room presents a more complex dilemma. It is highly reliable evidence that would have inevitably been discovered during the execution of the search warrant. Its discovery was not directly linked to the failure of the officers to provide Mr. Rush with his right to counsel, either.
124While evidence must be "obtained in a manner" that infringed a Charter right to justify exclusion, the applicant doesn't need to establish a strict causal nexus between the violation of their rights and the obtaining of evidence. The entire chain of events should be examined: see R. v. Tim, 2022 SCC 12, at para. 78. The connection between the Charter breaches and the evidence in question can be "temporal, contextual, causal or a combination of the three": R. v. Wittwer, 2008 SCC 33, at para. 21.
125The right to counsel for a detainee facing the execution of a search warrant at his home is of fundamental importance: see R. v. Noel, 2019 ONCA 860, at paras. 22-26. A slight delay in providing rights to counsel to an arrested suspect is generally insufficient to justify excluding a firearm: see, for example, R. v. Todd, 2019 SKCA 36. However, an unjustified delay in providing a detainee with his right to counsel alongside an attempt by the investigating officers to solicit incriminating evidence from him is far more serious.
126It is particularly troubling that the officers committed multiple breaches of Mr. Rush's rights involving "well-established rules governing state conduct": see Paterson, at para. 44. As stated by the Alberta Court of Appeal in R. v. Araya, 2025 ABCA 61, at para. 75:
A determination of the seriousness of the breach will favour exclusion where there are several breaches involving different Charter rights: Badu 2022 at paras 70-74, R v Sabiston, 2023 SKCA 105. A breach is also more serious where it is a continuation of police practices which are not Charter-compliant, part of a pattern of police abuse of Charter standards or where the police demonstrate a cavalier attitude and carelessness in implementing such rights: Rover at para 40, R v Noel, 2019 ONCA 860 at para 32, Hobeika at paras 88-90.
127The combination of the police's failure to knock and announce while executing a search warrant and their denial of immediate access to counsel for an arrested individual was deemed sufficient to exclude a firearm in one reported decision. In R. v. Robertson, 2019 BCCA 116, the police searched the home of the appellant and his wife, where they discovered firearms, drugs, and stolen property. The trial judge concluded that the police violated the knock and announce rule by opting for a dynamic entry without exigent circumstances, breaching the section 8 rights of both the appellant and his wife. The trial judge also determined that the officers infringed upon the appellant's wife's Charter section 10(b) rights by questioning her after she had asserted her right to counsel, but before she was permitted to exercise that right. In contrast, there was no finding that the officers violated the appellant's right to counsel. The evidence was ruled admissible against the appellant but inadmissible against his wife, and the British Columbia Court of Appeal regarded this distinction as rational: see paras. 61-66.
128Mr. Rush also faced similar violations of his rights, including the fact that he was not provided with the right to counsel prior to being questioned by the police. I also consider the unnecessary decision of Officer Bartholomew to point his firearm at the student tenants as part of the constellation of factors relating to the degree of police misconduct that occurred when executing the search warrant. The cumulative effect of multiple Charter breaches should be considered in the 24(2) analysis: see the reasons of Justices Rowe and O'Bonsawin in R. v. Zacharias, 2023 SCC 30, at para. 49; and the reasons of Justices Martin and Kasirer at para. 132; R. v. Alder, 2020 ONCA 246, at para. 39.
129Add to the considerations above the cavalier attitude of the officers and general indifference to Mr. Rush's well-being after placing him under arrest, and the combination of these factors favours exclusion. I rule that the seized rifle is inadmissible.
Conclusion
130The application is granted, and the evidence is excluded from Mr. Rush's trial.
Released: September 12, 2025
Signed: Justice Brock Jones
Footnotes
1None of the officers testified to the time of the arrest, but this was an agreed fact.
2See the Crown's written materials filed on September 5, 2025.
3My emphasis added.
4The parties agreed there was no evidence that the officers announced their presence and that they were there to execute a search warrant, thereby giving Mr. Rush time to respond before resorting to breaking down the door.
5The Crown relied upon R. v. Dill, 2025 BCSC 1153 at para. 26-48, R. v. Pike, 2022 ONSC 2298 at para. 71, and R. v. Adem, 2021 ONCJ 2010, at para. 37, in support of this proposition. None of these are applicable to the facts of this case.
6It was never made clear to me if the fruits of DC Randhawa's first, warrantless phone search were part of the Information To Obtain ("ITO") the search warrant executed by Det. Graham.