ONTARIO COURT OF JUSTICE
CITATION: R. v. Habibiy, 2026 ONCJ 458
DATE: 2026 01 06
COURT FILE No.: Toronto 998 22 70005660
BETWEEN:
HIS MAJESTY THE KING
— AND —
AMIN HABIBIY
Before Justice Peter N. Fraser
Heard on October 27, 2025 & November 6, 2025
Reasons for Judgment released on January 06, 2026
E. Moore................................................................................................ counsel for the Crown
D. Paradkar....................................................................................... counsel for the accused
[1] Amin Habibiy stands charged with possession of a loaded restricted firearm, contrary to section 95(1) of the Criminal Code.[1] The charge arises out of an incident on August 24, 2022.
[2] Mr. Habibiy applies for the exclusion of the firearm from his trial on account of alleged breaches of his rights under ss. 8 and 9 of the Canadian Charter of Rights and Freedoms. The Crown submits there were no Charter violations and, in the alternative, that the firearm should not be excluded.
[3] On December 17, 2025, I ruled that there were no violations of Mr. Habibiy’s rights under the Charter. I dismissed the application and entered convictions on all counts with reasons to follow. These are the reasons.
The 911 Call
[4] On August 24, 2022, police officers were dispatched to a residence at 66 Cavell Avenue in Toronto in response to a 911 call. The caller was an employee with the Toronto Community Housing Corporation (TCHC) which operated the townhouse complex. The following information was received by the police dispatcher and communicated to the responding officers. A resident in the unit next door to 66 Cavell had reported a “possible domestic” situation, with a male and female yelling and screaming. The female was believed to be Lexi De Luca, who was known to reside at the address. She was described as having been previously uncooperative with TCHC officials. There were three children on the lease for the unit as well, aged 11, 7 and 4. It was not known whether the children were present. The identity of the male was unknown. The call was categorized as “unknown trouble.” It was further classified as a “priority 1” call, which required an immediate response from police.
The Ongoing Investigation
[5] PC Hamidy and PC Pirvali-Kerahroodi, members of the Primary Response Unit (PRU) at 55 Division police station, responded to the call and headed to 66 Cavell Avenue. On route to the address, however, they received a transmission over the police radio from Detective Rahim, directing them to call him. Detective Rahim was head of the Major Crime Unit (MCU) at 55 Division. PC Hamidy called Detective Rahim and was advised the MCU had been conducting surveillance on 66 Cavell and there was a firearm in the residence.
[6] Given the new information, PC Hamidy notified his immediate supervisor, Sergeant Oddi, and called for two more officers to assist with the call. PC Roy and PC Rogacz were dispatched. The officers set up a staging area near 66 Cavell in order to plan their approach to the residence. Detective Rahim called into the meeting by phone. He advised that 66 Cavell was being surveilled in connection with a drug and firearm investigation. The address was currently under observation and Detective Rahim believed there was a male named Danny who was in possession of a firearm at the residence. He provided a description of the male and advised he carried the firearm in a black satchel. Detective Raheem directed that Mr. Habibiy was “arrestable” for possession of a firearm.
[7] The information communicated by Detective Raheem was obtained largely from confidential sources. I return to the details of this information later in these reasons.
Entry and Arrest
[8] The Primary Response Unit officers made the decision to enter the residence without a warrant, in order to arrest the male with the gun and to ensure the safety of the female occupant and any children.
[9] PC Hamidy and PC Pirvali-Kerahroodi entered 66 Cavell through the back sliding door. Officers Roy and Rogacz entered through the front door. The entry through the back door was recorded on body-worn camera video. As the officers approached the back of the house, a female could be seen standing outside. She was later identified as Lexi De Luca. The back sliding door stood open. PC Hamidy and PC Pirvali-Kerahroodi pushed past Ms. De Luca and entered the residence yelling commands to the lone male occupant inside. The male matched the description provided by Detective Rahim and he was wearing a black satchel. He was arrested in the main living area of the residence and later identified as the applicant before the Court. The satchel was removed from his person and found to contain a loaded handgun.
The Charter Motion
[10] Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure. As the search in this case was conducted without a warrant, the burden is on the Crown to show, on a balance of probabilities, that the search was reasonable: R. v. Shepherd, 2009 SCC 35 at para. 15. A search or seizure will be reasonable if it is authorized by law, the law itself is reasonable, and it is conducted in a reasonable manner: R. v. Grant, 2009 SCC 32 at para. 56; R. v. Fearon, 2014 SCC 77 at para. 12.
[11] Section 9 of the Charter guarantees everyone the right not to be arbitrarily detained. The burden of proving an alleged breach of this right is on the applicant. The standard of proof is on a balance of probabilities.
[12] In general, a police officer may arrest a person without a warrant, pursuant to section 495(1)(a) of the Criminal Code. The officer must subjectively believe, on reasonable and probable grounds, that the person has committed or is about to commit an indictable offence. Those grounds must be justifiable from an objective point of view: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241 at para. 17; R. v. St. Clair, 2021 ONCA 895 at paras. 23-34. Arrests inside a dwelling-house, however, presumptively require a warrant.
[13] The Crown concedes the applicant has standing to bring a Charter challenge in relation to the residence at 66 Cavell Avenue. As such, a warrant would normally be required to enter and search the residence and to effect an arrest there: see R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13 at para. 52. However, the Crown argues that in this case the warrantless entry was justified under the law of exigent circumstances.
[14] The applicant responds that the police officers’ belief there was a firearm in the residence was not reasonable, and the information was not sufficiently reliable to justify a warrantless entry into a dwelling-house.
The Law of Exigent Circumstances
[15] The doctrine of exigent circumstances exists within the common law and pursuant to the statutory provisions of various Acts, including the Criminal Code. The doctrine recognizes that individual privacy protections may be overridden by the state when the circumstances require urgent action. This doctrine is an exception to the general requirement that police obtain prior judicial authorization for certain investigative procedures.
[16] The Criminal Code makes reference to exigent circumstances in several places, including: s. 83.3(4)(a)(i)(b) [arrest for terrorist activity]; s. 117.02(1) [seizure of weapons used in the commission of an offence]; 117.04(2) [seizure of weapons for public safety]; s. 529.3(1) [arrests inside a dwelling-house]; and s. 487.11 [search warrants].[2] Section 529.3 provides as follows:
529.3 (1) Without limiting or restricting any power a peace officer may have to enter a dwelling-house under this or any other Act or law, the peace officer may enter the dwelling-house for the purpose of arresting or apprehending a person, without a warrant referred to in section 529 or 529.1 authorizing the entry, if the peace officer has reasonable grounds to believe that the person is present in the dwelling-house, and the conditions for obtaining a warrant under section 529.1 exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.
529.3(2) For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer
(a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to any person; or
(b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence.
[17] Other sections of the Criminal Code provide for judicial authorizations of various kinds, but make no express reference to exigent circumstances. In these areas, the common law doctrine continues to offer an exception to the usual requirement of a warrant. For example, in R. v. Bakal, 2021 ONCA 584, the Court of Appeal found that police officers were justified in tracking the accused’s cell phone without prior authorization under s. 492.1.(2) on the basis of exigent circumstances.
[18] At common law, exigent circumstances have been defined to include the imminent loss or destruction of evidence or an imminent threat to police or public safety: R. v. Feeney, supra, at para. 52; R. v. Campbell, 2022 ONCA 666 at para. 80. That definition fundamentally accords with the definition contained in s. 529.3(2) of the Code. R. v. Paterson, 2017 SCC 15 at para. 32.
[19] In R. v. Godoy, 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311 at paras. 16-22, the Supreme Court held that police had the authority to effect a forcible entry without warrant into a dwelling-house to ensure the safety of a 911 caller. In that case, the police were responding to “unknown trouble” as the call was dropped before the caller could speak. The Supreme Court found that police officers have a general duty to protect the lives and safety of the public and held as follows, at para. 23:
A threat to life and limb more directly engages the values of dignity, integrity and autonomy underlying the right to privacy than does the interest in being free from the minimal state intrusion of police entering an apartment to investigate a potential emergency.
[20] This authority continues to exist alongside the statutory iterations of the doctrine of exigent circumstances: see, for example, R. v. Lai, 2019 ONCA 420 at para. 4; R. v. Lowes, 2016 ONCA 519 at paras. 9-14; R. v. Zarama, 2015 ONCA 860 at para. 9.
[21] There is authority for the proposition that the police powers expressed in Godoy are not limited to ascertaining the condition of the complainant. As the Supreme Court observed in Godoy itself, at para. 16, “The point of the 911 emergency response system is to provide whatever assistance is required under the circumstances of the call.”
[22] In R. v. Depace, 2014 ONCA 519, the accused’s mother-in-law called 911 and reported that her grandson had called her and told her his parents were fighting. Police records indicated the occupant of the house was associated with the Hell’s Angels. Applying Godoy, the Court of Appeal found that police were justified in entering the house without a warrant when no one answered the door. The Court further held that the officers were justified in searching the second floor and the basement even though the child and his parents were all found on the main floor of the house. It was unclear at the time whether there were others in the house and, given the exigent circumstances, police were entitled to satisfy themselves that no one else was at risk.
[23] In R. v. Kelsy, 2011 ONCA 605, the Court of Appeal found that police officers were entitled to forcibly enter a residential apartment unit under the common law powers expressed in Godoy. The police were justified in entering in order to investigate the 911 call and to apprehend two assailants armed with firearms. In that case, the residents of the unit were already under the protection of the police.
[24] In R. v. Bakal, supra, the Court of Appeal found that police were justified in tracking the accused’s cell phone without prior authorization. The Court found that exigent circumstances existed, even though the complainant was safe and accounted for, concluding, at para. 25:
The police are charged with the responsibility of protecting the community's safety. To this end, what the police knew was that the appellant had just violently assaulted his girlfriend on a bed while his firearm lay next to them. The police had been informed that the appellant had a history of violence, including previously threatening his girlfriend with his gun. They also knew that he had left this highly volatile situation with his firearm in the waistband of his pants. It is against that factual backdrop that the trial judge concluded that the concerns over public safety were well-founded.
[25] These authorities support the proposition that the common law power to enter a dwelling-house pursuant to Godoy does not necessarily end with the discovery of the 911 caller or the person who was originally thought to be in danger. This police power can extend to apprehending a suspect who poses a danger to the public at large. The scope of legitimate intrusions under exigent circumstances will depend on the specific circumstances of each case: R. v. Godoy, supra, at para. 11.
Application to this Case
[26] This case involves the intersection of an ongoing police investigation based on confidential sources and an unrelated emergency response. It was an unusual coincidence whereby a 911 call brought the Primary Response Unit of 55 Division police station to the very address that was already being surveilled by the Major Crime Unit of the same station. Prior to the 911 call, the ongoing investigation had not reached the point where officers believed they had sufficient grounds for a search warrant to enter 66 Cavell. And the information contained in the 911 call, standing on its own, was not sufficient to justify a warrantless entry into the dwelling house.
[27] In my view, however, the combination of these two sources of information did provide a legal justification to enter the residence under the doctrine of exigent circumstances.
[28] Clearly the 911 call required a police response. As the caller was not one of the people inside 66 Cavell, this was not precisely the “cry for help” the Supreme Court spoke of in R. v. Godoy, supra, at para. 16. That being said, the report of a male and female screaming was suggestive of potential domestic violence. And the possibility there were children present was cause for additional concern. In my view the police were required to respond with urgency and investigate further, but did not yet have the grounds to justify a warrantless entry.
[29] The call from Detective Rahim changed that. Information that there was a male in that same residence with a gun increased the potential danger and significantly elevated the level of urgency.
[30] No single officer was in possession of all the information justifying the warrantless entry in this case. In my view, this does not bar the application of the doctrine of exigent circumstances. Police investigations can be sprawling and multifaceted operations. It would be unrealistic to expect an officer responding to an emergency to know everything about the case before responding to exigent circumstances. An officer who has the requisite grounds may direct another officer in the exercise of police powers: R. v. Asante, 2025 ONCA 387 at para. 30; R. v. Bakal, supra, at paras. 99-100.
[31] PC Hamidy testified he relied “heavily” on the information provided by Detective Rahim, who was a trusted police officer who did “excellent work.” He noted that a name, location, and description were provided in connection with the firearm, and he viewed the information as credible. In my view, that was a reasonable position for PC Hamidy to take. It was not necessary that he learn the basis for Detective Rahim’s belief in order to act on it in these circumstances. That being said, the Court must still evaluate the reliability of the underlying information in deciding whether the grounds for a warrantless entry existed.
Confidential Source Information
[32] Detective Rahim’s belief that there was a firearm at 66 Cavell was based primarily on confidential source information. This poses a challenge, given the application of informer privilege. No information that might reveal the identity of a confidential source can be disclosed: R. v. Leipert, 1997 CanLII 367 (SCC), [1997] S.C.J. No. 14 (S.C.C.) at paras. 9-10; R. v. Omar, 2007 ONCA 117 at paras. 37-38.
[33] In the context of prior judicial authorizations, this challenge is addressed by way of the procedures set out in R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421. While there was no prior authorization in this case, and no information to obtain the warrant (ITO), there is authority for the proposition that the Garofoli framework applies with some modification: R. v. Iraheta, 2017 ONSC 2467[3]; R. v. Williams, 2018 ONSC 3654; R. v. McCalla, 2019 ONSC 3256; R. v. Thompson, 2024 ONCJ 298; R. v. Kikiantonis, 2025 ONCJ 399.
[34] The Crown chose to disclose a statement from Detective Rahim, containing only the information that could be revealed without breaching the informer privilege. This document effectively took the place of a redacted ITO for the purposes of the modified Garofoli procedure. The statement was adopted by Detective Rahim in court and supplemented by further testimony. The Crown declined to engage in a modified “step six” procedure, whereby the Court could review the undisclosed material in camera and provide a judicial summary to the defence. Instead, the Crown invited me to determine this application only on the basis of the material that was disclosed.
[35] According to Detective Rahim, there were 5 separate confidential sources who had supplied information to police. Four of them had been interviewed within 30 days of the applicant’s arrest on August 24, 2022. The last was interviewed within 60 days. None of the confidential sources were made any threats, promises or inducements. None had acquired information at the direction of the police. The stated motivation for all five sources was for monetary compensation.
[36] All five sources advised that “Danny” or “Spanish” was dealing drugs and had a firearm. All five provided descriptions of this male that roughly accorded with each other. Three of the sources identified the male’s girlfriend as Lexi. Two linked him to 66 Cavell Avenue. Three of them said he carried the gun in a satchel or side bag. One said the satchel was black.
[37] Three of the confidential sources were considered “proven sources.” CS1 had provided reliable information to police leading to the seizure of firearms and drugs on three occasions. CS4 had provided reliable information leading to the seizure of firearms and drugs on one prior occasion. CS5 had provided reliable information on five prior occasions, leading to the seizure of firearms and drugs and to the arrest of a party wanted on a warrant.
[38] The Crown objected to essentially any further questioning that could narrow the pool and potentially identify the confidential sources. As a result, it was not revealed to the Court or the defence whether any of the confidential sources had a criminal record. It was not revealed how the sources knew the male they called “Danny” was dealing drugs or was in possession of a firearm. Nor was it revealed whether they had any connection to each other.
[39] A male was observed by surveillance officers at 66 Cavell Avenue the day before the applicant’s arrest. One confidential source was shown a photograph of that male and the source confirmed he was “Danny” or “Spanish.”
[40] At 12:15 pm on August 24, 2022, the day of the applicant’s arrest, surveillance officers observed the same male on the back porch of 66 Cavell wearing a grey shirt and black pants and carrying a black satchel. This was some 15-20 minutes after the 911 call had come in, and while the police officers were coordinating their response. Armed with this latest piece of information, Detective Rahim formed reasonable and probable grounds to believe the male was in possession of a firearm and could be arrested. He communicated this belief to PC Hamidy when he called into the meeting at the staging area near 66 Cavell.
[41] Confidential source information must be evaluated according to the criteria set out in R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140 at para. 53: see, also, R. v. Rocha, 2012 ONCA 707 and R. v. Lowe, 2018 ONCA 110. In Debot, the Supreme Court identified three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search:
First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a "tip" originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.
[42] In the unique circumstances of this case, I conclude that the Debot criteria must be applied with some modification. As the police were responding to exigent circumstances that did not emanate from the confidential sources themselves, Debot makes for an imperfect framework with which to evaluate the police conduct. For example, the third criterion of corroboration through further investigation is not easily reconciled with the urgency inherent to exigent circumstances. The police could not be expected to engage in further investigation when they had been called upon to respond to an emergency, separate and apart from anything coming from the confidential sources. In these unusual circumstances, the Debot criteria must be considered within the context of the doctrine of exigent circumstances. More specifically, the requirement of corroboration must be analyzed in view of the police duty to prevent the infliction of imminent bodily harm or death.
Application to This Case
[43] In my view, the confidential source information was sufficiently compelling, credible, and corroborated in the context of the exigent circumstances at play. Three of the sources were “proven sources” who had supplied reliable information before. The information of each source tended to confirm each of the others. The information about Lexi was confirmed by the 911 caller. The descriptions given generally accorded with the male the police observed on the back porch of 66 Cavell. That male was carrying a black satchel.
[44] The applicant submits the police “manufactured” the exigent circumstances by opportunistically seizing upon the 911 call to justify an entry they could not otherwise make. I disagree. The police were taking the time to conduct surveillance and obtain the grounds for a warrant. I accept Detective Rahim’s evidence that this was not how he wanted the investigation to go.
[45] The 911 call essentially forced their hand. A potential domestic or intimate partner violence scenario was unfolding in real time. The presence of a firearm in this situation raised the spectre of potentially tragic outcomes. And there were possibly young children in the residence as well. In my view, the public might well be shocked if the police did not enter the residence immediately in the face of this information.
[46] Counsel for Mr. Habibiy submits there could not have been exigent circumstances, given the police took the time to meet nearby and plan their approach to 66 Cavell. I disagree. The fact that police took the time to coordinate their actions and reduce the risks takes nothing away from the exigencies of the situation.
[47] In my view, the officers had a duty to respond in this scenario. Based on all the circumstances known to police, it was reasonable for them to treat the confidential source information as reliable. I am further satisfied the exigency did not end with the discovery of Ms. De Luca outside the back doors of the residence. The police were justified in arresting the male known to them as “Danny”, securing the firearm, and ensuring there were no children or other parties inside the residence who were at risk of harm.
[48] I find that the warrantless entry was a justified use of police powers under the doctrine of exigent circumstances, both at common law and pursuant to s. 529.3(1) of the Criminal Code. I am satisfied the officers had reasonable and probable grounds to arrest the applicant: R. v. Ahmad, 2020 SCC 11, at paras. 45-49; R. v. MacKenzie, 2013 SCC 50 at paras. 84-86; R. v. Chehil, 2013 SCC 49 at paras 22-36; R. v. Stewart, 2020 ONSC 4571 at paras. 69-70. I conclude the warrantless entry and arrest occasioned no violation of the applicant’s rights under s. 8 of the Charter.[4]
Trial Proper
[49] Outside of the Charter application, no further challenge is mounted in answer to the Crown’s case. The defence acknowledges that, absent a successful Charter motion, the Crown has proven the charges beyond a reasonable doubt. I accept that concession and find Mr. Habibiy guilty of all charges.
Released: January 6, 2026
Signed: Justice Peter N. Fraser
1Mr. Habibiy is charged with six more offences, most or all of which are redundant, under the following sections of the Criminal Code: 91(1), 91(2), 92(1), 92(2), 86(1) & 90(1).
2Exigent circumstances are also referred to in s. 11(7) of the Controlled Drugs and Substances Act [dealing with search powers] and in s. 87(7) of the Cannabis Act.
3See, also, R. v. Ireheta, 2018 ONCA 229 at para. 19 and R. v. Ireheta, 2020 ONCA 766.
4I am aware that the exercise of police powers may be justified according to a distinct line of authority known as the Waterfield doctrine: R. v. Godoy, supra, at para. 7. In the classic English case of R. v. Waterfield, [1963] 3 E.R. 659 (C.C.A.), a two-part test for determining the scope of police powers at common law was posited. Police conduct which interfered with an individual’s liberty or freedom would be authorized if: (1) the police were acting in the course of their duty when they effected that interference, and (2) the conduct of the police did not involve an unjustifiable use of powers in the circumstances. In R. v. Kelsy, supra, at paras. 51-52, Justice Rosenberg observed that the Waterfield test and the exigent circumstances doctrine are related and will sometimes overlap, but emphasized that the two inquiries should operate independently of each other. In the circumstances of the present case, I find that the two lines of inquiry do overlap and that the Waterfield test would produce the same result.