ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING (Respondent)
— AND —
NICKOLAS DESCHENES (Applicant)
Charter Ruling – Warrant Review
Before Justice Davin M.K. Garg
Heard September 23 and November 6, 2025
Reasons released December 2, 2025
Jennifer Goulin counsel for the Provincial Crown
Tara Mimnagh agent for the Public Prosecution Service of Canada
Lauren Wilhelm counsel for the applicant Nickolas Deschenes
Overview
1The police obtained warrants to search two properties and two motor vehicles. During the searches they found a firearm, drugs, and cash. Most of the evidence was found at a rural property in Burlington. The applicant challenges the warrant for that property. He claims that his rights were breached under s. 8 of the Charter and seeks to exclude the evidence under s. 24(2).
2The applicant takes a focused position. He does not contest the police belief that he trafficked drugs and only contests limited portions of the Information to Obtain (ITO) in support of the warrant. He focuses on two related issues in relation to the property:
(a) The ITO did not disclose sufficient grounds to believe that drugs or related things would be found on the property. The warrant could thus not have issued.
(b) In the alternative, the warrant could not have issued for the entire property. There was no basis to search the dwelling house and all outbuildings on the property.
3I disagree with the applicant on the first issue. The ITO disclosed a reasonable belief that drugs or related things would be found on the property. However, I agree with the applicant on the second issue. The issuing justice could not have found that the ITO established reasonable grounds to believe that evidence would be found in every building on the property. Therefore, the warrant could not have issued. The warrantless search breached the applicant’s s. 8 rights. I nevertheless admit the evidence found during the search under s. 24(2). The evidence is reliable and vital to the Crown proving serious charges. The gravity of the Charter breach and its impact on the applicant’s rights do not outweigh society’s interest in a trial on the merits.
Facts
4I will focus on contextual facts that are relevant to the applicant’s focused position.
5On August 21, 2024, the police obtained search warrants for two properties and two motor vehicles. They executed the warrants the next day. The warrants were issued under s. 11 of the Controlled Drugs and Substances Act. The applicant challenges the warrant for the rural property at 4211 Cedar Springs Road in Burlington. The warrant allowed the police to search “the dwelling house and all outbuildings” located there.
6The police submitted one ITO in support of the four warrants. The affiant was Detective Constable Brandon Walmsley of the Hamilton Police Service. He believed that evidence respecting drug trafficking would be found in the places to be searched.1
7The ITO named the applicant as the target and outlined his criminal history—one prior conviction for each offence of drug possession for the purpose of trafficking, simple drug possession, possession of a prohibited firearm, and possession contrary to a firearms prohibition order. The ITO demonstrated the applicant’s connection to the drug trafficking subculture.
Initial phases of the investigation
8The initial phases of the police investigation focused on the applicant’s activities at an apartment building located at 205 Hunter Street West in Hamilton. The police physically observed the applicant and watched him through video security footage. I will not recount all the surveillance that is detailed in the ITO. Counsel for the applicant acknowledges that the police formed a reasonable belief that the applicant engaged in drug trafficking at 205 Hunter and conducted several drug transactions before or after attending that address.2
9In brief compass, the applicant made a habit of attending 205 Hunter. He did not live there. His visits revealed a pattern of short stays. He was seen dragging bins or carrying bags that appeared to be weighted.
10The ITO outlines instances where the applicant engaged in apparent drug trafficking before or after attending 205 Hunter. On August 1, the applicant made short visits at different locations. A quick visit in the morning and one in the afternoon each had characteristics of a drug transaction, with a trip to 205 Hunter in between. On August 2, the police watched the applicant inside the parking garage at 205 Hunter. He was leaning into the trunk of a grey Mercedes that belonged to his mother-in-law. The affiant believed that the Mercedes was one of the applicant’s “stash spots”. He then left and made multiple short visits that bore the characteristics of drug trafficking. He returned to 205 Hunter before going home.
From 205 Hunter to 4211 Cedar Springs
11August 6 is a crucial date in this case. According to the affiant, it was the date that the applicant moved his stash from 205 Hunter to 4211 Cedar Springs. The ITO outlines how August 6 was the last time that the applicant attended 205 Hunter on a regular basis.3 The applicant went there and met with, Damian Venditti, who had two prior convictions for drug possession for the purpose of trafficking. Given the significance of this date, I will provide the full chronology:
Comings and goings
12The ITO outlines the applicant’s comings and goings at 205 Hunter during the early afternoon:
At 12:51 p.m., the applicant arrived in the rear parking lot in a black GMC Sierra (“the truck”). He stopped briefly in the laneway, exited, and threw a large, full black garbage bag into the dumpster. He then parked in a visitor spot, exited holding a set of keys while talking on his phone, and walked toward the rear entrance.
At 12:52 p.m., cameras inside the building captured the applicant walking past the elevators toward the stairwell leading to the underground parking lot.
At 12:55 p.m., the truck departed the lot.
At 2:04 p.m., the truck returned and parked in a visitor spot. The applicant was later seen inside the building with a folded green reusable grocery bag tucked in his rear pocket. He again walked toward the stairwell.
At 2:06 p.m., the applicant exited through the rear door and returned to his truck. He appeared to be carrying a reusable grocery bag. He departed immediately.
At 3:46 p.m., the truck returned and parked. Two minutes later, Deschenes exited the truck while on his phone and walked toward the rear entrance. He reappeared in the lot, still on the phone, and got back into the truck. He exited again and re-entered the building, walking toward the stairwell. At 3:55 p.m., he returned to the truck and departed.
Moving the bins
13At 5:57 p.m., the applicant again arrived at 205 Hunter in the truck. He exited with his phone to his ear, opened the tailgate, and threw another garbage bag into the dumpster. Mr. Venditti appeared from the building entrance carrying two large black tote bins (one with a blue lid, one with a yellow lid) with a red reusable grocery bag on top. Mr. Venditti placed the bins into the bed of the truck and briefly leaned into the passenger side before returning inside the building. The applicant entered the truck and left.
Going to 4211 Cedar Springs and the activities afterward
14The police followed the applicant as he drove away and arrived at 4211 Cedar Springs. The only available inference is that the applicant drove directly from 205 Hunter to 4211 Cedar Springs. No intervening stops are recorded. However, the ITO is completely silent on what, if anything, the applicant did upon arriving there. The ITO does not explain why the police were unable to make any observations.4
15The ITO outlines the subsequent activities:
At 6:51 p.m., live GPS tracker data showed the truck traveling northbound on Cedar Springs Road.
At 7:35 p.m., the police located the truck in a Walmart parking lot. At 7:43 p.m., the applicant was seen walking toward the truck with an unknown male who was carrying a green bin. The applicant was carrying a blue Walmart bag that appeared full. Both entered the truck. The applicant was driving. At 7:45 p.m., the truck left and returned to Burlington.
At 8:12 p.m., the police followed the applicant back to 4211 Cedar Springs. The truck entered through black gates, travelled down the driveway, and turned behind an outbuilding, going out of view.5
At 8:42 p.m., the police observed the truck leaving Cedar Springs Road. The applicant dropped off a woman named Jerlasha Anderson, who had a prior conviction for drug possession for the purpose of trafficking.
At 8:55 p.m., the applicant stopped in a restaurant parking lot. A silver BMW backed in beside his truck. A male exited the BMW, briefly entered the applicant’s truck, and then returned to his car. Both vehicles left immediately.
The police concluded their surveillance after the tracker data showed the truck returning to the applicant’s home at 106 Thoroughbred Boulevard in Ancaster.
16The next day, the police observed the applicant continue to engage in conduct consistent with drug trafficking. The police saw the applicant meet briefly with several individuals at different locations while driving the truck. He first met a male who exited a vehicle at Lime Ridge Mall and entered the applicant’s truck. Later, the applicant returned to his residence, where Ms. Anderson joined him in the truck. They then drove to a Sobeys parking lot, where a male briefly entered the applicant’s truck before returning to his own vehicle. Afterward, the applicant traveled to Oakville Place Mall and met another male who entered his truck before returning to his vehicle. Following these encounters, GPS data showed the applicant driving directly to 4211 Cedar Springs.6
GPS tracker data
17The affiant included tracker data for the truck. The data showed how long the truck stopped at a location for at least five minutes. There may have been unreported stops that lasted under five minutes.
18It seems that the affiant obtained tracker data from two sources. The first was an analyst report that covered the period from July 13 to August 11. The report showed 26 stops at 205 Hunter for an average duration of just over 11 minutes. It also showed 19 stops at 4211 Cedar Springs with an average duration of approximately 26 minutes. The affiant did not break down the data from the report into more precise timeframes (like before and after August 6).
19Second, the affiant himself seemed to pull tracker data for the period after August 11. The affiant wrote that the applicant continued to attend 4211 Cedar Springs between August 11 and 20, except for August 14 when the truck was out of town.7 The affiant also included a specific example from August 19 where the truck parked amongst the outbuildings close to the house.8
Nature of 4211 Cedar Springs
20The ITO contains the affiant’s description of 4211 Cedar Springs. It is a nine-acre rural property with several outbuildings. The affiant obtained details from a real estate listing on HouseSigma, which described the property as an equestrian facility close to town that included a newer 3,200-square-foot bungalow with three bedrooms and two bathrooms, an 18-stall horse barn, and a small indoor riding arena. There was also a newer 3,000-square-foot heated shop that was being used for storage, as well as an older building being used for storage. The property was generating income from the horse barn at $1,800 per month. The tenant wished to remain, but it was unclear which building they occupied. It is evident that other individuals had interests in the property, but the ITO did not specify the nature of those interests.
Affiant’s conclusion
21The entire sequence of events from August 6 led the affiant to believe that the applicant had moved his stash from 205 Hunter to 4211 Cedar Springs. Furthermore, the applicant was observed attending 4211 Cedar Springs before or after engaging in activities indicative of drug trafficking. The affiant believed that drugs or the proceeds from selling drugs would be found at that location.
Correcting the ITO
22The affiant’s legal obligation when seeking an ex parte authorization is the full, fair, and frank disclosure of material information: R. v. Araujo, 2000 SCC 65 at para. 46. Misleading or inaccurate information can be excised outright from the ITO: R. v. Shivrattan, 2017 ONCA 23 at para. 26. Information that should not have been included in the ITO will always be excised: R. v. Booth, 2019 ONCA 970 at para. 58. Alternatively, material omissions or inaccuracies can be corrected by adding information or by replacing incorrect details with accurate ones: R. v. Morelli, 2010 SCC 8 at paras. 57, 60, 96; Booth at para. 59.
23The applicant mostly accepts that the affiant observed his obligation to be full, fair, and frank. The applicant mounted a facial attack of the warrant; he did not file other materials to show that the affiant had omitted material information from the ITO.
24The applicant does seek to excise one sentence from the ITO.9 The affiant wrote at paragraph 80: “Observations indicative of drug trafficking have been observed directly from the property” at 4211 Cedar Springs. I reproduce the entire paragraph and underline the sentence at issue:
[The applicant] was observed attending the rural property at 4211 Cedar Springs in Burlington prior to and after engaging in what I believe to be activities indicative of drug trafficking. Observations indicative of drug trafficking have been observed directly from the property. For this reason, I believe this address is used as a stash location for drugs … . Therefore [I] believe that this is also a location where [the applicant] keeps the proceeds from the sale of controlled substances. I believe that evidence of drug trafficking will be located at 4211 Cedar Springs, Ontario.
25It is obvious that I must excise that sentence. There is nothing in the ITO that even suggests the police made direct observations from the property. The affiant’s belief was only drawn from inferences.
General principles
26Under s. 11 of the CDSA, a justice can issue a search warrant when they are satisfied that there are reasonable grounds to believe that a controlled substance, offence-related property, or any thing that will afford evidence in respect of a drug offence is in the place to be searched.
27The scope of warrant review is narrow. I must decide whether the corrected record supplies information, reasonably capable of belief, on which the warrants could have issued. The applicant bears the burden of showing that the warrants could not have issued: R. v. Paryniuk, 2017 ONCA 87 at para. 43; R. v. Sadikov, 2014 ONCA 72 at paras. 83-88.
28The issuing justice considers the ITO as a whole to assess whether, on a common-sense and practical basis, there are reasonable grounds to believe that evidence of the offence will be found at the specified locations. This assessment is not technical and does not require that every fact be explicitly stated in the ITO. The issuing justice is entitled to draw reasonable inferences from the information provided, provided those inferences are grounded in the contents of the ITO: R. v. Vu, 2013 SCC 60 at para. 16; R. v. El-Azrak, 2023 ONCA 440 at paras. 96, 101; Sadikov at para. 82. The issuing justice will keep in mind that the affiant is not a meticulous solicitor: R. v. Green, 2015 ONCA 579 at para. 18.
Issue #1: Reasonable belief that the stash moved to 4211 Cedar Springs?
29The first issue is whether the issuing justice could reasonably infer that the applicant moved the stash from 205 Hunter to 4211 Cedar Springs.10 If this inference was unavailable, then the warrant for Cedar Springs could not have issued. The observations of the applicant conducting drug transactions over two days before or after attending Cedar Springs, standing alone, would not have been enough.
30The inference rests on the reasonableness of two points. First, was it reasonable to infer that the bins contained a drug stash? If yes, then second, was it reasonable to infer that the bins went to Cedar Springs? I will address each point in turn. Although applicant’s counsel focused on the second point, she also argued that the number of inferences needed to conclude that drugs would be found at Cedar Springs illustrates the speculative nature of the affiant’s reasoning.11
Did the bins contain a drug stash?
31I conclude that the issuing justice could infer that the bins contained controlled substances, drug paraphernalia, or proceeds from trafficking. The surveillance outlined in the ITO established sustained drug‑trafficking activity anchored at 205 Hunter. Over several weeks, the applicant was repeatedly observed engaging in short‑stay meetings and purposeful attendances in the stairwell and garage area of that building. These visits were not casual or social; they involved the handling of weighted bags and plastic storage bins. The pattern was consistent: the applicant arrived, accessed the garage or stairwell, sometimes retrieved or deposited containers or bags, and departed without any visible legitimate purpose. On several dates, the applicant engaged in conduct that was reasonably characterized as drug trafficking before or after attending 205 Hunter.
32There are three dates at 205 Hunter that warrant emphasis:
(a) On July 18, the applicant was seen dragging a black bin with a blue lid from the B2 garage toward the 10th floor. He later returned with the same bin and a weighted grocery bag.
(b) On August 2, the applicant was observed bent over the trunk of his mother‑in‑law’s Mercedes in the B2 garage. Nothing in the record points to a benign explanation for this trunk activity; in context, it coheres with the established pattern of accessing storage locations at 205 Hunter.
(c) On August 6, the associate Damian Venditti—himself twice convicted of drug trafficking—was observed loading two plastic storage bins into the applicant’s truck. One of these was again a black bin with a blue lid, matching the container previously seen in the applicant’s possession on July 18. This activity occurred immediately before the applicant left 205 Hunter.
33The applicant’s activity with the bins demonstrated a controlled system of storage and movement. The choreography of the transfer on August 6, coupled with the prior bin movements, suggests that these containers were instrumentalities of the trafficking operation.
34The ITO permits a reasonable, common‑sense inference that the bins were used to store controlled substances or related items. The repeated handling of weighted containers, their concealment somewhere in the building, and their association with short, purposive attendances at 205 Hunter align with a stash practice. This activity must be considered along with the reasonable belief that the applicant engaged in drug trafficking at 205 Hunter and conducted several drug transactions before or after attending the building. While no contraband was ever seen inside the bins, an inference is available based on the applicant’s cumulative behaviour.
Did the bins go to 4211 Cedar Springs?
35I turn then to the central issue: could the issuing justice reasonably infer that the bins went to 4211 Cedar Springs?
Applicant’s position
36The applicant contends that the ITO failed to establish reasonable grounds to believe that the bins went to 4211 Cedar Springs.12 His counsel emphasizes that the police made no observations of any unloading, entry into any building, interactions with occupants, or transfers of items—nothing beyond arrivals and departures at the property. As the argument goes, the assertion that Cedar Springs was a “stash location” is a conclusory belief not grounded in facts. Counsel notes that the tracker data merely reflects stop counts and does not cure the absence of direct observations tying the bins or their contents to any structure at Cedar Springs.
Analysis
37I conclude that it was reasonably open to the issuing justice to infer that the bins from 205 Hunter were transported by the applicant and unloaded at 4211 Cedar Springs. I have already explained why it was reasonable to infer that the bins contained drugs or related items. On August 6, the applicant’s associate placed two bins into the bed of the truck. The applicant immediately departed and drove directly to Cedar Springs. The ITO indicates that at 6:36 p.m. he was followed by the police and arrived at Cedar Springs. At 6:51 p.m., he was on the road again. That short visit would have provided sufficient time to unload the bins.
38I acknowledge that the ITO contains no observation of any unloading at Cedar Springs, no account of the applicant entering any structure there, and no description of what, if anything, was done with the bins upon arrival. The ITO does not explain or justify the absence of these observations.
39Nevertheless, the issuing justice was entitled to draw reasonable inferences from circumstantial facts. Importantly, a drug stash would be valuable and risky to keep on the road. Common sense—and the trafficking pattern documented in the ITO—supports the inference that the applicant would minimize time driving with such items and would secure them promptly before other activities. While the affiant did not articulate this risk‑management rationale in the ITO, the reasoning was available to the issuing justice as a matter of common sense: see R. v. Bains, 2015 ONCA 677 at para. 157; R. v. Thompson, 2020 ONCA 361 at para. 11.
40An inference that the applicant did not want to drive around with the bins is grounded in the record. The applicant went first to Cedar Springs, then to Walmart for an apparent errand, and later returned to Cedar Springs. It is reasonable to infer that something occurred during the initial stop at the property (it is unlikely the applicant went there for no reason) and that he did not first go to Walmart because the bins were in the truck.
41The broader pattern also supports the conclusion that the stash moved from 205 Hunter to Cedar Springs. There are salient similarities between how the applicant used the two locations:
(a) Neither location was the applicant’s residence, yet he visited both frequently.
(b) His repeated attendance at each location was characterized by brief visits averaging under 30 minutes.
(c) Before August 6, the applicant attended 205 Hunter before or after conducting an apparent drug transaction on several occasions. Then, on August 6 and 7, he did the same with Cedar Springs.
42From August 6 onward, the ITO records a consistent pattern of attendances at Cedar Springs (specifically August 6, 7, 11, 12, 13, 15, 16, 17, 18, 19, 20). Although the ITO does not state that the applicant never went to Cedar Springs before August 6, the absence of earlier observations noted in the ITO is some indication that such visits were not occurring—or at least not with comparable frequency. When an ITO sets out what was observed, there is no obligation to add what was not observed: R. v. Nguyen, 2011 ONCA 465 at para. 50. The applicant does not allege that the affiant omitted any relevant information.
43I reach my conclusion without any reliance on the excised statement that trafficking conduct was “observed directly from” Cedar Springs. Stripped of that assertion, the remaining facts still permit the inference in question. First, the bins observed at 205 Hunter reasonably contained drugs, paraphernalia, or proceeds. Second, bins were loaded into the applicant’s truck by his associate. Third, the applicant then drove directly to Cedar Springs for a brief stay before proceeding to Walmart and later returning to Cedar Springs. That sequence strongly suggests that the initial stop at Cedar Springs was purposeful and related to the bins. Fourth, the subsequent attendance pattern at Cedar Springs resembled the prior stash-linked pattern at 205 Hunter. Fifth, the applicant was no longer observed regularly at 205 Hunter and consistently attended Cedar Springs. Viewed cumulatively, these circumstances allowed the issuing justice to draw a reasonable inference that the bins—and with them, the stash—were moved from 205 Hunter to Cedar Springs on August 6.
Issue #2: Could the warrant have issued for the entire property?
44The second issue is whether the warrant could have issued for the entire property at 4211 Cedar Springs. The warrant allowed the police to search the dwelling house and all outbuildings on the property.
Applicant’s position
45Even if it was reasonable to infer that drugs or related items would be found at Cedar Springs, the applicant argues that the warrant could not have issued for the entire property. As submitted in the applicant’s factum at paras. 31 and 35:
… The ITO cast a wide net over the entire nine-acre, multi-occupant, mixed-use, rural property and every single building thereon it on the basis that it was a location the applicant, a suspected drug trafficker, frequented. It did not seek to search a particular residence, building or area, because the police didn’t have any information connecting the applicant or any alleged criminal activity to a particular residence, building or area.
… Permitting a search of the “dwelling house and all outbuildings” at this address based on the applicant’s suspected drug dealing and his attendance somewhere thereon is akin to permitting a search of every unit in an apartment building because a suspected drug dealer frequents the building. [emphasis in original]
Legal principles
46A warrant must clearly and specifically identify the place to be searched. This precision is essential for meaningful judicial oversight; it ensures that the issuing justice understands the scope of the proposed search. Without an adequate description of the place to be searched, the issuing justice cannot assess whether the authorization being sought would be overbroad. Precision then guides the officers executing the warrant by providing them with clear parameters and preventing them from relying on their own discretion to determine where to search. A well-defined location also assists the occupants of the place being searched. A clear basis for the search can reduce the risk of confrontation or resistance: R. v. Saint, 2017 ONCA 491 at para. 7; R. v. Ting, 2016 ONCA 57 at para. 47.
47In drafting ITOs that propose to search more than one unit within a multi-unit dwelling, the affiant must clearly set out reasonable grounds for each unit to be searched: R. v. Campbell, 2011 SCC 32 at para. 15.
48The applicant relies on the decision of Fitzpatrick J. in R. v. Breton, 2021 ONSC 7312. That case provides an example of where an ITO needed more precision on the basis to search certain buildings. The warrant could not issue for the entire property because the ITO did not provide reasonable grounds to believe the item sought—a handgun—would be found in the outbuildings. While the ITO supported a search of the accused’s residence and its immediate surroundings, it lacked specific information connecting the firearm to the outbuildings. The need for specificity was heightened by the expansive nature of the property and the potential of it being shared by multiple people. The judge concluded that the warrant should have been limited to the residence and its immediate environs.
Analysis
49I agree with the applicant. Based on the information provided in the ITO, the warrant could not have issued for the entire property at 4211 Cedar Springs.
50An ITO does not need to disclose reasonable grounds to believe that evidence will be found in “each and every possible different place that the police seek to search”: Breton at para. 57. But when the police seek to search specific structures, the ITO must establish reasonable grounds to believe that evidence will likely be discovered within those structures: R. v. N.M., 2007 CanLII 31570 (Ont. Sup. Ct.) at para. 364.
51The ITO failed to articulate a basis to search the entire property at Cedar Springs. Unlike 205 Hunter, the ITO contained no details about the applicant’s activities at Cedar Springs. The ITO only noted the observations of him attending the property and summarized the tracker data of his truck. The most precise information came from the satellite views of the property overlaid with the tracker data from August 19.13 That image showed the truck parked amongst the outbuildings. It did not provide any precision on whether the applicant attended the dwelling house or any particular outbuilding.
52The ITO is silent on basic information that would have been likely available to the police through routine database searches. For example, the ITO does not provide information about property ownership, any known residents, tenants or businesses (beyond the existence of a tenant), or any vehicles tied to the property. The ITO does not contain any police intelligence like prior occurrence reports or investigative reports. To be certain, the test is not whether the police could have conducted a more thorough investigation. I simply highlight the absence of information to underscore the inability to draw inferences about which buildings the applicant might have accessed on the property.
53Based on the information in the ITO, it is fair to characterize Cedar Springs as a multi-unit property. Multi-unit properties are not limited to apartment buildings and rooming houses. The ITO mentions the property having a bungalow house and a tenant. It is unclear whether the tenant was renting a bedroom in the house, a storage unit in the shop, or a stall in the barn. The ITO does not articulate any of these uncertainties. It overlooks the risk of searching an area that was unavailable to the applicant because an innocent third party enjoyed exclusive access to it.
54A warrant must be tailored to the facts presented in the ITO. Where the grounds support a search of one part of a property but not others, the authorization must be correspondingly limited. In this case, the ITO did not present sufficient information to “throw a net” over the entire property: see Breton at para. 57. There was no information about which buildings the applicant accessed or whether any part of the property was under his control. Therefore, it could not be said that the applicant’s space was “connected and overlapping” with those of third parties: Campbell at para. 15. The issuing justice required something more than a general belief that evidence would be found somewhere on the nine-acre property. More precision was required.
Conclusion
55The warrant could not have issued for “the dwelling house and all outbuildings” at Cedar Springs. The respondent does not assert a warrantless authority for the search. The search therefore breached the applicant’s Charter rights under s. 8.
Issue #3: Should the evidence be excluded?
56Section 24(2) requires that evidence obtained in a manner that infringes the Charter be excluded if it is established that “having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”. The analysis is evaluated from the perspective of a reasonable person. The applicant must convince the court that admission of the evidence from 4211 Cedar Springs would bring the administration of justice into disrepute: R. v. McColman, 2023 SCC 8 at para. 53.
57The s. 24(2) analysis considers three factors: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the applicant’s Charter‑protected interests; and (3) society’s interest in the adjudication of the case on its merits. The first two factors can only support exclusion of the evidence: R. v. Le, 2019 SCC 34 at para. 141. They never support admission—at most, they can weakly support exclusion: R. v. Zacharias, 2023 SCC 30 at para. 75; R. v. Yaghoubi-Araghi, 2025 ONCA 314 at para. 30. The third factor, by contrast, typically supports admission: Le at para. 142. The balancing of the factors is a qualitative exercise not capable of mathematical precision: McColman at para. 54; R. v. Grant, 2009 SCC 32 at para. 140.
58I admit the evidence after examining and balancing the three factors.
The seriousness of the Charter-infringing conduct
59The first factor focuses on the extent to which the Charter-infringing conduct deviates from the rule of law. In evaluating the gravity of the infringement, the court must “situate that conduct on a scale of culpability”: R. v. Paterson, 2017 SCC 15at para. 43. Relevant to this evaluation are the presence of surrounding circumstances that attenuate or exacerbate the seriousness of the state conduct: Grant at para. 75; McColman at para. 58. However, the absence of additional Charter breaches cannot serve to attenuate the breach: R. v. Noel, 2019 ONCA 860 at paras. 18-19.
60It is relevant that the police sought and obtained a search warrant. As Rosenberg J.A. explained in R. v. Rocha, 2012 ONCA 707 at para. 28:
Applying for and obtaining a search warrant from an independent judicial officer is the antithesis of wilful disregard of Charter rights. … Unless the applicant for exclusion of evidence can show that the warrant was obtained through use of false or deliberately misleading information, or the drafting of the ITO in some way subverted the warrant process, the obtaining of the warrant generally, as I explain below, tells in favour of admitting the evidence. In this case, the police submitted the fruits of their investigation to a justice of the peace who granted the warrants. … The warrant should not have been granted in relation to the house, but it must be remembered that an independent judicial officer did authorize the search. [emphasis added]
61I do not put much weight on the mere act of seeking a warrant. This is not a case where it was uncertain whether a warrant was required but the police sought one to be cautious. There is no suggestion that a warrantless search was in the realm of possibility.
62I put more weight on my assessment of the ITO. I find that it was, for the most part, not misleading. It does not approach the side of the spectrum reserved for the intentional use of false or misleading information: Rocha at para. 29. Instead, I find that the affiant was reasonably diligent and mindful of his duty to make full and frank disclosure: R. v. Morelli, 2010 SCC 8 at para. 100.
63In making this finding of fact, I appreciate that I excised this overtly false statement: “Observations indicative of drug trafficking have been observed directly from the property [at 4211 Cedar Springs]”. The unfortunate decision to include such a bald assertion must be considered in its proper context. The issuing justice would have diligently reviewed the entire ITO: R. v. Victoria, 2018 ONCA 69 at para. 97. The affiant otherwise set out all underlying facts supporting his beliefs. It is unlikely that a single unsupported statement would have misled the issuing justice, given that other assertions were substantiated by factual detail.14 There is no suggestion that the affiant omitted material information. The ITO spanned 82 pages. One false statement, in the context of an otherwise fairly and accurately drafted ITO, does not undermine my conclusion that the affiant acted without wilful or reckless disregard for Charter rights.
64The affiant could have potentially simplified the task for the issuing justice by including more precise tracker data. That data might have supported the inference about moving the stash by showing that the applicant had not visited Cedar Springs until after August 6 (the day that he allegedly moved the stash). The failure to include this information arguably undermined the affiant’s obligation to make full disclosure. However, I do not use this failure to find the breach more serious. There is no suggestion that the affiant omitted tracker data that would have undermined the inference of moving the stash. The information was thus neutral or would have supported the warrant. Whatever the case, the affiant was not holding back information in the hopes that it would improve the prospects of issuance. There was no bad faith.
65The applicant points to the absence of certain investigative steps taken by the police.15 For example, I highlighted at para. 52 of these reasons the absence of information about the property that might have been available to the police. However, there is no guarantee that such information would have assisted on the issue of what buildings could be searched. I cannot say that its absence aggravates the breach. Overall, the police conducted a thorough investigation, as was summarized in the ITO.
66It is relevant that this ITO did not completely miss the mark. It established reasonable grounds to believe that drugs or related items would be found at Cedar Springs. The issue was the breadth of the search. The affiant failed to demonstrate grounds to search particular buildings on the property. I am not suggesting that this issue is insignificant. I outlined at para. 46 the importance of precision; see also R. v. Aboukhamis, 2015 ONSC 2860 at paras. 43-48. But in situating the breach on a scale, the police conduct is less culpable given that their investigation had accomplished the crucial first step of establishing reasonable grounds to find drugs on the property.16
67Another attenuating surrounding circumstance is that the police accurately laid out for the issuing justice exactly what they wanted to do. The affiant specified the request to search “the dwelling house and all outbuildings”, as opposed to a vague request to search “the premises”. Combined with the description of the property and the satellite imagery in the ITO, the affiant put the issuing justice in a strong position to independently decide whether to issue the warrants. The police then acted in accordance with the power bestowed upon them by the issuing justice, which weakens the concern pressed by the applicant that they disregarded the privacy interests of potential third parties.
68I find that the first factor supports exclusion to a degree below moderate.
The impact of the breach on the applicant’s Charter-protected interests
69The second factor is aimed at a concern that admitting evidence after a breach may send a message that Charter rights are nothing more than high-minded principles. The court must evaluate the extent to which the breach “actually undermined the interests protected by the right infringed”: Grant at para. 76. The impact on the individual ranges from fleeting and technical on one end to profoundly intrusive on the other: McColman at para. 66.
70The affidavit filed by the applicant contains additional relevant facts. On the day of the applicant’s arrest, the police found keys for Cedar Springs in his truck. The keys opened the main locked door leading into the interior of the northeast storage garage as well as the second door entering the main part of the building where the police found the evidence.17 There is no evidence that the applicant controlled any residence on the property.18
71The execution of an unlawful search warrant would not have been a trivial interference with the applicant’s privacy rights. The intrusion would not have been fleeting. The applicant demonstrated his expectation of privacy when he sought to exclude others by locking the doors and keeping the keys in his possession.
72On the other hand, the search was not an invasive breach of the applicant’s privacy rights. The police did not search any digital devices. The property was not the applicant’s residence. While he went there frequently, the duration of his visits averaged under 30 minutes. He was therefore not using the property as an office in any traditional sense. The most reasonable inference is that the applicant was going there to pick things up and drop them off—he was using it for storage. He could have also been visiting someone.
73It may very well be that the police improperly searched the residence of an unrelated third party. But I do not have specific evidence on that point. In any event, I am meant to focus on how the breach impacted the applicant’s Charter-protected interests.
74I find that the second factor moderately supports exclusion.
Society’s interest in the adjudication of the case on its merits
75The third factor asks whether the truth-seeking function of the criminal trial process would be better served by the admission or exclusion of the evidence. Courts should consider such factors as the reliability of the evidence, the importance of the evidence to the Crown’s case, and the seriousness of the alleged offences: McColman at paras. 69-73.
76The police found the following evidence at Cedar Springs that was allegedly possessed by the applicant:
(a) A prohibited firearm with ammunition;
(b) 952 grams of cocaine;
(c) 6.89 kilograms of MDMA;
(d) 2561 Oxycodone pills (tested as Protonitazene); and
(e) 33 kilograms of cannabis.
77Excluding the evidence would undermine the truth-seeking function of the trial. The evidence is reliable and vital to much of the Crown’s case.19 The applicant faces multiple serious charges. Drugs and guns present a serious and ongoing societal problem, especially here in Hamilton. Society looks to the courts to recognize the day-to-day danger caused by the combination of drugs and guns: R. v. Mengesha, 2022 ONCA 654 at para. 14.
78I recognize that the seriousness of the charges cannot overwhelm the analysis: R. v. S.B., 2014 ONCA 527 at paras. 34-35; R. v. Harrison, 2009 SCC 34 at para. 34. The public has a vital interest in having a justice system that is above reproach, particularly where the stakes are high for the applicant. Nevertheless, society’s interest in a trial on the merits is exceedingly high in all the circumstances.
79I find that the third factor strongly supports admission.
Balancing the factors
80The cumulative weight of the first two factors must be balanced against the third. The police conduct was not egregious. The breach did not severely intrude on the applicant’s Charter-protected interests. And the evidence is highly reliable and vital to the truth-seeking function of a trial.
81This is not a case in which either of the first two factors—let alone both—strongly supports exclusion. As noted in R. v. McGuffie, 2016 ONCA 365 at para. 63, the third factor becomes important when one, but not both, of the first two factors strongly supports exclusion of the evidence. In this instance, exclusion is not required for me to adequately disassociate the justice system from the breach or to reinforce the community’s commitment to individual rights: see McGuffie at para. 83.
82I find that this comment from the Ontario Court of Appeal in Mengesha at para. 15 applies in this case: “These offences are so serious that, when the three factors are balanced, the evidence must be included. Exclusion would bring the administration of justice into disrepute”.
Conclusion
83The warrant could not have issued for the entire property at 4211 Cedar Springs. The search breached the applicant’s Charter rights under s. 8. However, the evidence found during the search is admissible at the applicant’s trial.
Released: December 2, 2025
Signed: Justice Davin M.K. Garg
Footnotes
- Specifically, the offence under s. 5(2) of the CDSA.
- See for e.g., Submissions, November 6, 2025 at pp. 22-23, 27-29.
- ITO at para. 70(d).
- ITO at para. 70(e).
- ITO at para. 70(k).
- ITO at para. 72(v).
- ITO at para. 80(a)(i). I read the material sentence as saying that the applicant attended the property every day during that period except August 14. I take no issue with the affiant treating the GMC Sierra truck and the applicant as one and the same. Applicant’s counsel did not suggest any concern. Tracker data, standing alone, could not put the applicant in the truck. However, the ITO as a whole established a very strong and consistent connection between the applicant and the truck. Even if the applicant was not the driver on a given occasion, the pattern associated with the truck remained probative to the inference of drugs being on the property.
- ITO at p. 79.
- The applicant also challenges the affiant’s belief that that Cedar Springs was a stash house and that evidence of drug trafficking would be located therein. This challenge is not about correcting the ITO but whether the warrant could have issued. I deal with this challenge under Issue #1.
- Submissions, September 23, 2025 at pp. 23, 36 (“I think there may be an inference about what’s at Hunter. But where this starts to fall apart is you can’t draw the inference as to what’s at Cedar Springs”).
- Submissions, November 6, 2025 at p. 24.
- See for e.g., Submissions, November 6, 2025 at pp. 24-26.
- See the respondent’s factum at para. 28 for the colour version of these images.
- I do not characterize the request to search the entire property as an unsubstantiated assertion.
- See for e.g., Submissions, September 23, 2025 at p. 56.
- I do not view this as the absence of an additional breach; see Noel at paras. 18-19. Rather, the police committed a less serious version of the same breach.
- The applicant was content to rely on the disclosure for the purposes of the Charter application.
- Submissions, September 23, 2025 at p. 61.
- The police found evidence at other locations that might have allowed some of the charges to continue.