ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
MAZIN SHARAF
Before Justice Robert S. Gee
Heard on April 30, May 11, 12 and 13, 2026
Reasons for Ruling on Charter Application released on June 4, 2026
Brett Book Agent for Public Prosecution Service of Canada
Charles O. Spettigue counsel for the accused
INTRODUCTION
1This is an application by the accused, Mazin Sharaf, seeking the exclusion of evidence pursuant to sections 8 and 24(2) of the Charter. The accused submits that drugs, currency, and related items found at Hamilton General Hospital on June 28, 2024, were obtained through an unreasonable search and seizure. The Crown disagrees and submits that no breach occurred or, in the alternative, that the evidence should be admitted.
FACTS
2The facts are largely not in dispute. On June 28, 2024, at approximately 11:05 a.m., police were alerted to a shooting in the area of 119 King Street West in Hamilton. Constable Tyler Stranges, who was in the vicinity, encountered the accused shortly thereafter suffering from a gunshot wound to his back. Emergency medical assistance was summoned, and Constable Stranges went with the accused by ambulance to Hamilton General Hospital.
3While enroute, a paramedic advised Constable Stranges that a large quantity of cash had been observed in the accused’s sock during an initial assessment. Upon arrival at the hospital at approximately 11:20 a.m., the accused was taken directly into the trauma unit for urgent medical care. At that time, the focus of all hospital personnel was the stabilization and treatment of what appeared to be life-threatening injuries. Police officers remained present in the hospital for the purpose of investigating the shooting, treating the accused as the victim of that incident.
4As part of the ordinary course of treatment, hospital staff removed the accused’s clothing and collected his personal belongings, including the contents of his pockets. These items were gathered and placed into a clear plastic bag. I find that this process was undertaken for clinical and administrative purposes incidental to treatment. There is no evidence that police directed, requested, or participated in this process, nor is there evidence that it was carried out with any investigative purpose in mind.
5Shortly after the accused was brought into the trauma room, a hospital security guard, Bryan Martin, took custody of the bag containing the accused’s belongings. At approximately 11:34 a.m., he gave the bag to Constable Stranges. The officer was advised that the items had been located on the accused’s person. I accept that, at the time of this transfer, neither the security guard nor the police officers had examined the contents in any meaningful way. The items, including the cash, were contained together in a single bag and had not been segregated, sorted, or treated as evidence.
6The discovery of the drugs didn’t happen immediately upon the handing over of the bag to Constable Stranges. At the time that bag was handed to police, neither the hospital staff nor the officers had realized the bag contained controlled substances. The contents of the bag had not been meaningfully examined at that time and were simply thought to be a collection of the accused’s personal property gathered incidental to treatment. It was only later, at approximately 2:28 p.m., when Constable Cloutier examined the contents of the bag while outside the operating room, that the presence of suspected drugs, including pills, was first recognized by police. This sequence of events supports the conclusion that the initial handling of the items by hospital staff was not directed toward the discovery or preservation of evidence, and that the evidentiary significance of the contents only became apparent when the police later observed them. The evidence does not suggest that Constable Cloutier approached the bag with any prior belief that it contained drugs. Rather, she examined its contents after it had come into police possession to ascertain the nature of the property, and it was during that examination that she first recognized items as controlled substances.
7Following this discovery, Constable Cloutier contacted Detective Dugdale, who directed that the items be seized. The contents of the bag, including the controlled substances, two cellular phones, and cash, were then secured. Detective Dugdale attended at the hospital and assumed custody of the items. The cash was counted and totaled $5,422.25. The substances were later confirmed to include fentanyl and other drugs consistent with trafficking. The accused remained in hospital for several days following surgery. It wasn’t until July 2, 2024, when Detective Dugdale returned to the hospital, that the accused was arrested for these matters.
ANALYSIS
8The events as they unfolded, show that the collecting of the accused’s clothing and personal effects was carried out by hospital staff in the course of medical treatment, that the bag containing those items was assembled without any police involvement, and that the evidentiary significance of those items was only realized at a later point, following police inspection.
9The analysis under section 8 proceeds in two stages. The Court must first determine whether the impugned conduct constitutes a search or seizure by a state actor. If section 8 is not engaged because the conduct is not attributable to the state, the inquiry ends. If it is engaged, the Court must then determine whether the search or seizure was reasonable in the circumstances.
10The application of the Charter depends on whether the impugned conduct can be attributed to the state. The Supreme Court of Canada has repeatedly held that private actors, including hospital staff, are not subject to the Charter unless they are performing a governmental function or acting as agents of the police. In R. v. Buhay, 2003 SCC 30, the Court made clear that a search conducted by private individuals will only attract Charter scrutiny where it can be shown that they are acting as part of government or as state agents. Similarly, in R. v. Daley, 2021 ONCJ 435 and R. v. Auclair, 2023 ONSC 6590 courts have recognized that hospital staff engaged in the delivery of care are not ordinarily acting as state agents when they handle a patient’s property, even where that property is eventually provided to police.
11The central argument put forth by the defence is that hospital staff, including the treating personnel and the security guard, acted as agents of the police when they handled and transferred the accused’s property, thereby attracting Charter scrutiny. This argument is advanced on the basis there was a degree of coordination between hospital staff and police, particularly by using the standardized “Release of Physical Evidence” form and the transfer of the accused’s belongings to police. The defence further submits that the hospital operates on the expectation that evidence of criminal activity may be uncovered during treatment and, as a result, has practices in place that effectively convey to staff that those items should be turned over to police.
12I am not persuaded that this characterization is supported by the evidence or the governing law. The test for state agency requires more than cooperation or eventual interaction with police. It requires that the impugned conduct be shaped or directed in a meaningful way by law enforcement. The question is whether the conduct would have occurred in the same form but for police involvement.
13On the evidence before me, that threshold is not met. The accused was treated as the victim of a shooting, and hospital staff acted independently to remove his clothing and secure his belongings while providing urgent care. This conduct bears none of the hallmarks of an investigative or law enforcement activity. There is no evidence of any standing arrangement, policy, or practice whereby hospital staff were expected to collect or preserve evidence for police purposes. As recognized in R. v. Daley, and R. v. Auclair, the removal and handling of a patient’s clothing and belongings in a medical setting is routine and is not transformed into state action simply because police are present or later become involved.
14There is no evidence that police directed hospital staff to search the accused’s clothing or to collect items. Nor is there evidence that hospital staff anticipated the discovery of evidence or acted with a view to assisting a police investigation. The fact that staff placed all the items in the bag without any sorting, or cataloguing, or even advising the police of the nature of the items, further supports the conclusion that the conduct was administrative and clinical in nature.
15The actions of the security guard are properly viewed in the same light. I find that he acted on his own initiative in transferring the bag to police. There is no evidence that he was instructed or encouraged to do so by police. As recognized in R. v. Buhay, the voluntary transfer of property by a private individual to police does not transform that individual into a state agent, even though a seizure may occur when police take control of the property.
16The defence places some reliance on the presence of the “Release of Physical Evidence” form. I am not persuaded that its use supports an inference of agency. I accept the evidence that the form was understood by both the security guard and the officer as a mechanism for documenting the transfer of property and maintaining a record of continuity. It was not being used as part of an investigative process, nor does it demonstrate any coordinated effort between the hospital and police to collect evidence.
17The defence also argues that, as a publicly funded institution, the hospital should be seen as part of government for Charter purposes. This argument is inconsistent with the authorities. In Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483, the Supreme Court confirmed that hospitals are not governmental actors merely by virtue of public funding or regulation. Their actions attract Charter scrutiny only where they are implementing a specific governmental policy in a manner that gives their conduct a governmental character. The actions at issue here are operational and clinical decisions made while providing care and do not meet that threshold.
18Having found that hospital staff and the security guard were not acting as state agents, it follows that their conduct does not engage section 8 of the Charter. The Charter analysis is therefore confined to the actions of police once they assumed control of the accused’s property.
19Upon receiving the bag, the police were lawfully in possession of property that had been voluntarily provided to them. I do not accept that the seizure preceded the formation of grounds. Rather, the evidence establishes that the items were first transferred as property, and only later, upon examination, did police form reasonable grounds to believe the items were evidence of criminal offences. When Constable Cloutier later examined the contents and observed what appeared to be controlled substances and proceeds of crime, she formed reasonable grounds to believe that the items were evidence of offences.
20In the circumstances, that examination did not constitute an unreasonable search within the meaning of section 8. The bag had come into police possession through a voluntary transfer from a private party, and its contents had already been removed from the accused and handled by third parties during emergency medical treatment. There was no evidence that the items were sealed, concealed, or otherwise maintained in a manner preserving a strong expectation of privacy at the time they were received by police. The limited inspection undertaken by Constable Cloutier was reasonably directed at ascertaining the nature of the property that had come into police custody and did not exceed what was necessary for that purpose. Upon observing items she recognized as controlled substances, she then formed reasonable grounds to believe the contents constituted evidence of offences, at which point the lawful seizure under section 489(2) of the Criminal Code occurred. In these circumstances, any reasonable expectation of privacy in the contents of the bag was significantly diminished.
21The defence further submits that deficiencies in the Report to a Justice and the absence of a report to the Minister pursuant to section 12.1 of the Controlled Drugs and Substances Act constitute breaches of section 8. It is argued that the Report to a Justice was misleading in suggesting the seizure was incident to arrest, when in fact the arrest came several days later, and that the failure to file a report to the Minister undermines statutory safeguards.
22I do not accept that the Report to a Justice constitutes a Charter breach. I accept the evidence of Detective Dugdale that he completed the report in good faith and in accordance with his understanding of and limitations of the form. The report contains a detailed description of the items seized and the surrounding circumstances. While there may be some imprecision in how the authority for the seizure was described, I am not satisfied that it rises to the level of a material misrepresentation or that it undermines the oversight function of the report. It does not reflect deliberate or reckless conduct and does not engage section 8.
23With respect to the report to the Minister, Detective Dugdale testified that the Hamilton Police Service has an established administrative process for completing and submitting such reports once drug exhibits are entered into the property system. He relied on that process in good faith. I accept that his reliance was reasonable. However, there is no admissible evidence before the Court that the report was in fact filed. In the absence of such evidence, I find that this omission constitutes a technical breach of section 8, as it affects the statutory mechanism for oversight of seized controlled substances. This breach arises after the lawful seizure and does not undermine the legality of the seizure itself.
24The question then becomes whether the evidence should be excluded under section 24(2) of the Charter. Applying the framework set out in R. v. Grant, 2009 SCC 32, I first consider the seriousness of the Charter-infringing conduct. The breach here is minor and administrative in nature. It does not reflect a systemic or deliberate disregard for Charter rights. The police acted in good faith and followed established procedures, relying on an institutional process. This factor weighs only slightly in favour of exclusion.
25The second factor is the impact of the breach on the accused’s Charter-protected interests. That impact is minimal. The breach relates to post-seizure reporting obligations and does not affect the way the evidence was discovered or seized. The evidence consists of physical items that the accused cannot reasonably expect would be returned to him, particularly controlled substances. Moreover, the filing of the Report to a Justice ensured that judicial oversight of the seizure occurred, preserving the core purpose of the reporting obligations.
26The third factor is society’s interest in the adjudication of the case on its merits. This factor strongly favours admission. The evidence is reliable, probative, and central to the Crown’s case. Its exclusion would significantly impair, if not effectively terminate, the prosecution of serious drug offences.
27Balancing these considerations, I am satisfied that the admission of the evidence would not bring the administration of justice into disrepute. The breach identified is minor, the impact on the accused is limited, and the societal interest in a determination on the merits is compelling.
CONCLUSION
28In summary, the initial handling of the accused’s property by hospital staff did not engage the Charter, the subsequent police seizure was lawful, and the reporting irregularity does not justify exclusion of the evidence.
29Accordingly, the application to exclude the evidence is dismissed.
Released: June 4, 2026
Signed: Justice Robert S. Gee