ONTARIO COURT OF JUSTICE
DATE: 2025 07 28
COURT FILE No.: Toronto 24-48110427
BETWEEN:
HIS MAJESTY THE KING
— AND —
JOHN KIKIANTONIS
Charter of Rights and Freedoms Application
Sections 7, 8, 9, 10(b), and 12
Appropriate Remedy
Sections 24(1) and (2)
Before Justice Brock Jones
Heard on May 26 – 30, June 2 – 3, 6, and July 15, 2025
Reasons for Judgment released on July 28, 2025
S. Andersen — counsel for the Crown
D. Paradkar — counsel for J. Kikiantonis
Jones J.:
Introduction
[1] John Kikiantonis was arrested on May 8, 2023, and charged with four firearms-related offences. Acting on information received from two confidential sources (“CS”), Toronto Police Service (“TPS”) officers arrested him in the backseat of a vehicle after he left his apartment building. He was searched, and a loaded prohibited firearm was found in his possession along with a digital scale containing white residue and some plastic baggies.
[2] Mr. Paradkar filed an application alleging that Mr. Kikiantonis' section 7, 8, 9, and 12 Charter rights were violated during his arrest, search incident to the arrest, and a series of strip searches that occurred at the scene and while being processed at 11 Division. Mr. Kikiantonis seeks a stay of proceedings pursuant to Charter section 24(1) or the exclusion of evidence in accordance with section 24(2). The Crown opposes the application. The trial proper and this Charter motion were heard together.
[3] The arrest and searches of Mr. Kikiantonis were warrantless, and thus the Crown bears the onus of establishing that they were lawful.
[4] After Mr. Kikiantonis’ arrest, the police obtained a search warrant for his apartment. The information to obtain (“ITO”) the search warrant was almost entirely based on conversations an officer had with two confidential sources. To protect the identities of confidential sources while meeting its disclosure obligations, the Crown released redacted copies of the officers’ notes, the search warrant, and ITO to the defence. One of the investigating officers, DC Sgroi, testified that he relied on the same confidential source information contained in the ITO when determining whether there were grounds to arrest Mr. Kikiantonis, as he was privy to that information beforehand.
[5] When an arrest is made based on a tip from a confidential source, the reliability of the information provided to the investigating police force must be carefully examined. The trial judge must assess whether the information was compelling, credible, and corroborated by the police: see R. v. Debot. The Crown chose to invoke the Step 6 procedure from R. v. Garofoli, to permit me to consider the information provided by the confidential sources that lay behind the redactions, in support of its argument that the arrest was lawful. Ms. Andersen also offered a draft judicial summary of the contents of the redacted material, in an attempt to comply with the requirements established by the Court of Appeal in R. v. Crevier, 2015 ONCA 619.
[6] Following a hearing, I issued an unpublished ruling in which I determined that the requirements of Step 6 were not met. I would not consider the redacted portions of the ITO addressing confidential source information unless additional details were disclosed to comply with Crevier. I will not comment further on that ruling in this reported decision, except to state that a second judicial summary that the Crown proposed was also deemed inadequate.
[7] Ms. Andersen chose to continue with the prosecution. She maintained that she could still demonstrate the lawfulness of the arrest and search of Mr. Kikiantonis based on the totality of the admissible evidence that remained, including the available portions of the ITO that I could consider. Therefore, she relied on the information available to the court at Step 5 of the Garofoli process. Mr. Paradkar argued the Charter motions on this basis.
[8] On July 11, 2025, the Ontario Court of Appeal released its decision in R. v. Thompson, 2025 ONCA 500. The Court held that a detainee should be provided with an opportunity to re-consult with counsel once an officer has decided to authorize a strip-search. I alerted counsel to this decision and its potential implications on July 15, 2025. Mr. Paradkar sought to amend his Charter application accordingly to include an alleged violation of Mr. Kikiantonis' section 10(b) Charter right.
[9] If the Charter applications are dismissed and the firearm ruled admissible, Mr. Paradkar does not dispute that the Crown will have proven its case beyond a reasonable doubt on the merits. Conversely, if the firearm is ruled inadmissible, the Crown cannot prove its case, and Mr. Kikiantonis must be acquitted.
Overview of the Crown’s Case
i. DC James Dunlop
[10] DC Dunlop has been employed by the TPS for over 20 years and has been part of the Guns and Gangs unit since 2017. On May 8, 2023, he was part of the centralized shooting response team. He received a request from DC McKenzie to assist with surveillance on a person of interest (“POI”).
[11] He arrived at 2655 Bloor St. West at 11:48 p.m. The POI – later determined to be Mr. Kikiantonis – had entered a motor vehicle, believed to be an Uber. After about two to three minutes of following the vehicle, the takedown was ordered by another officer. The vehicle was pinned. DC Dunlop arrested Mr. Kikiantonis.
[12] The grounds for the arrest were based on information provided to him by other officers. An officer informed him that an information package was associated with the investigation of Mr. Kikiantonis. That package included details indicating that he had a firearm. In addition to that information, before Mr. Kikiantonis entered the Uber, DC Sgroi communicated over the radio that Mr. Kikiantonis was displaying “characteristics of being armed with a firearm.” DC Dunlop had not personally made any such observations however.
[13] When he located Mr. Kikiantonis in the Uber, DC Dunlop informed him that he was under arrest for possession of a firearm. He was handcuffed. DC Dunlop escorted him away from the vehicle and led him towards the hood of one of the other police surveillance cars. He conducted a pat-down search on Mr. Kikiantonis and felt something heavy in his jacket pocket. He reached into the front right pocket of the jacket and discovered a black handgun.
ii. DC Shawn McKenize
[14] DC McKenzie played a limited role in the investigation. At approximately 10:40 pm, he arrived at 2655 Bloor St. West. At 11:07 p.m., DC Storey informed him that an Uber was parked on Bloor St. West outside the POI’s address. They planned to follow the vehicle and initiate a takedown when it was safe to do so. After two or three minutes, other police vehicles stopped the Uber.
[15] At this point, he noticed Mr. Kikiantonis standing on the street. He removed a satchel from Mr. Kikiantonis’ shoulder. Inside the satchel, he found baggies he believed were for drugs, a digital scale with an unknown white residue on it, AirPods, and a pack of gum.
iii. DC Matthew Vukovic
[16] DC Vukovic was also part of the centralized shooting response team with Guns and Gangs. He had been an officer with the TPS since 2006. On May 8, 2023, he participated in surveillance on Mr. Kikiantonis. His supervisor was DC McKenzie.
[17] While conducting surveillance at 11:07 p.m., he received information over the radio that Mr. Kikiantonis was exhibiting the characteristics of an armed individual. Det. Storey instructed officers to proceed with a takedown of the suspect if it was safe to do so.
[18] DC Vukovic was driving an unmarked police vehicle and assisted in stopping the Uber that was carrying Mr. Kikiantonis. He could not recall which other officers were present at the scene of the arrest, aside from DC McKenzie and DC Dunlop. While he recalled that a field search of Mr. Kikiantonis had occurred, his attention was diverted elsewhere at the time, and he was unable to provide any details about it.
iv. DC Steve Sgroi
[19] DC Sgroi was engaged in surveillance of Mr. Kikiantonis on May 8, 2023. He was positioned 20 to 100 yards away from the apartment building at 2655 Bloor St. West.[^1] His plan for the day was to continue the investigation. He did not intend to arrest Mr. Kikiantonis.
[20] At 11:07 pm, he observed Mr. Kikiantonis exit his building. He had a black satchel slung across his torso, from his right shoulder to the left side of his waist. Initially, he suspected that Mr. Kikiantonis might have a firearm in that satchel.
[21] As he continued watching Mr. Kikiantonis, he noticed that he was walking in an “unnatural” manner. His gait seemed “off.” He was pushing his right hand against his right jacket pocket while also looking back over his shoulder. He could not tell what, if anything, was in the jacket pocket or underneath Mr. Kikiantonis’ clothing, nor did he see Mr. Kikiantonis place his hand inside his jacket pocket.
[22] He communicated over the radio that he believed Mr. Kikiantonis possessed a firearm. His prior investigative experience helped form this opinion. DC Storey decided to order Mr. Kikiantonis’ arrest as a result.
v. Det. Todd Storey
[23] Detective Storey has been an officer for 29 years. He oversaw the street team involved in this investigation.
[24] On May 8, 2023, he was present to continue surveillance of Mr. Kikiantonis. He was positioned outside Mr. Kikiantonis’ address at 2655 Bloor St. West. He observed Mr. Kikiantonis leave the building and approach a waiting Uber. After DC Sgroi expressed his belief that Mr. Kikiantonis was armed, he ordered that a takedown would take place as soon as it was safe. He and his team followed the Uber for a short distance before stopping it near Jane and Dundas, where Mr. Kikiantonis was removed from the vehicle and taken into custody.
[25] Det. Storey observed Mr. Kikiantonis leaning over the hood of another officer’s vehicle while DC Dunlop conducted a pat-down search. He heard DC Dunlop yell “gun,” and then he was handed a black handgun. He verified that the firearm was safe and then placed it in a secure lockbox. He instructed other officers to obtain a search warrant for Mr. Kikiantonis’ address and arranged for a transport vehicle to take him to 11 Division.
[26] He explained that he trusted DC Sgroi’s judgment, having known and worked with him for many years. When DC Sgroi stated that he believed Mr. Kikiantonis had a gun, that was sufficient for him to conclude there were adequate grounds to order the arrest.
vi. DC Michael Moorcroft
[27] DC Moorcroft is a 20-year veteran with the TPS. On May 8, 2023, he was present for the arrest of Mr. Kikiantonis outside of 3425 Dundas Street West in Toronto. Other officers informed Det. Moorcroft that after the arrest, Mr. Kikiantonis was found in possession of a digital scale with white residue, plastic baggies, $500 in cash, and a handgun. These items are all commonly associated with drug dealing based on his experience.
[28] Before the arrest, DC Moorcroft participated in a briefing regarding the investigation. In that briefing, he learned Mr. Kikiantonis was known to sell drugs at a local bar.
[29] He remained with Mr. Kikiantonis at the location of his arrest for 18 minutes. He then accompanied Mr. Kikiantonis to 11 Division, where he was frisked and strip-searched. Throughout this process, Mr. Kikiantonis was calm and cooperative. He did not observe Mr. Kikiantonis engaging in any behaviour that indicated he was attempting to hide or conceal any drugs.
[30] Nevertheless, drug dealers, he testified, often conceal drugs on their person, such as in their underwear or buttocks. Therefore, he requested a strip search of Mr. Kikiantonis from Sgt. Raspberry at 11 Division. His primary concern was the safety of Mr. Kikiantonis and anyone he might encounter while in custody. If someone consumed drugs, it could jeopardize their health.
[31] The strip search occurred in a private room. It was “by the book.” Mr. Kikiantonis was never fully naked. Nothing was located.
[32] In cross-examination, Detr. Moorcroft explained that he had been trained in strip searches. He understood that he required “case-specific” information to justify a strip search. He agreed that he had a duty to document both the grounds for the search and the manner in which it was conducted. Yet, his notes, admittedly, lacked any details regarding how the search was performed. He thought the search was being audio recorded, but it was the responsibility of the booking officer to ensure that was done, and he did not independently verify that it occurred.
vii. Testimony of Det. Jason Raspberry
[33] Detective Raspberry has been employed by the TPS since 2007. On May 9, 2023, he was the acting Staff Sergeant at 11 Division. He was tasked with being the booking officer for the evening.
[34] Mr. Kikiantonis was paraded before him. A video of this process was shown and filed as an exhibit. The officer who presented him, DC Moorcroft, requested a level 3 (strip) search. He articulated his reasons on the video, which I reproduce here, alongside Sgt. Raspberry’s response:
Officer Moorcroft: At this time, I’m requesting a level three, or I guess a strip search now… At the time of the arrest, he was found in possession of drug packaging, a scale with powder residue and the powder residue was also located inside a fanny pack that held all that property. He was found in possession of a loaded firearm in his jacket pocket, and he was also known to deal drugs out of a local bar.
So, on that grounds, I’m requesting a level three or strip search.
Sgt. Raspberry: What the officer’s requested is what’s called a strip search…
I understand there was packaging that appeared to have drug residue, a scale, and a satchel that had some residue in it as well. Ok, I’m going to read you a notice I have to read here. I have reasonable and probable grounds to conduct a strip search. The search will be conducted in a private area, and not video recorded. However, the area will be audio recorded…
[35] Additionally, the booking video reveals that while Sgt. Raspberry provided Mr. Kikiantonis with the right to speak to counsel before he was informed he would be strip-searched, he was not read his right to consult with counsel anew after that decision was made and articulated to him.
[36] In cross-examination, Det. Raspberry agreed that he based his decision to authorize a strip search on the items located on Mr. Kikiantonis during his arrest, the information that he was allegedly dealing drugs, and his experience as an officer in drug investigations. He explained that while the arresting officers found “all the trapping of drugs" during their initial search of Mr. Kikiantonis, they did not find “actual drugs,” which heightened his concern that Mr. Kikiantonis may have hidden some on his body.
[37] He agreed that his training taught him that an individualized assessment of the accused and the charges he was facing was necessary to authorize a strip search. He understood the importance of creating a proper record of the grounds for the search and the manner in which it was executed. He believed the search would be audio recorded. On the audio record, one would expect to hear when the detainee was removing and replacing certain items of clothing. However, he did not know if Mr. Kikiantonis’ search was audio recorded, as he never tested the audio recording equipment.
[38] Det. Raspberry did not dispute that a strip search is highly intrusive and demeaning. It should only be conducted in private and never videotaped. Mr. Paradkar questioned him about written TPS policies regarding searches, and he acknowledged that there were significant differences between “frisk” and “strip” searches. These differences include that a frisk search does not involve the removal of underwear or the inspection of genitalia or anal areas.
viii. Special Constable Peter Walker
[39] Special Constable Walker has been an officer for 25 years. He was working at 11 Division on May 8, 2023.
[40] He performed both a frisk search and a strip search of Mr. Kikiantonis. The frisk search was recorded on the booking hall video, which was submitted as an exhibit. He did not dispute the video’s accuracy. After completing the frisk search, he and DC Moorcroft escorted Mr. Kikiantonis into a small room for the strip search. Upon entering the room, he pushed a button intended to activate the audio recording equipment. However, he was unfamiliar with how the equipment functioned and had not received training on its technical aspects.
[41] He acknowledged that his memo book was lacking any notes regarding the manner of the search. His practice was to only document something if it were out of the ordinary, such as a medical complaint. If a search proceeded normally and nothing was found, there was no need to keep notes in his mind. He did complete a level 3 template form, but conceded in cross-examination that this form does not capture details of how the search was conducted. Instead, it focused on the time of the search, the authorization received to proceed, and whether anything was found.
[42] He was not familiar with R. v. Golden. Although he was aware of the police policies concerning strip searches, he had not read them in detail. He concurred with Mr. Paradkar that the policies require an officer to document complete information of all searches in a memo book. He acknowledged that his notes contained “no details” of the strip search.
[43] During the “frisk search”, between 11:18 and 11:26 on the booking hall video, he can be seen searching the torso of Mr. Kikiantonis. He then proceeds to pull back Mr. Kikiantonis’ jeans and look down his pants. Mr. Paradkar suggested that he was pulling back Mr. Kikiantonis’ underwear as well and looking into his buttocks. The officer did not dispute this characterization. He agreed that his head was positioned to stare down into Mr. Kikiantonis’ pants. He described his frisk search approach as “thorough.”
ix. DC Andrew Pak
[44] DC Pak was responsible for the audiovisual recordings as part of the disclosure process. He did not request the audio recording of the strip search at 11 Division until August 22, 2024, when he received an email request from Ms. Andersen. He learned that 11 Division upgraded its audio-video system and all existing recordings were purged on or about May 10, 2024, a year after Mr. Kikiantonis’ arrest.
x. TPS Policy – “Search of Persons” – Issued 2024.09.17
[45] While this policy was not in place at the time of Mr. Kikiantonis’ arrest and detention, the officers each agreed that the policy’s definitions respecting “frisk” and “strip” searches accurately represented their understanding of those distinctions as of May 8, 2023. Those definitions are found on page 13 (my emphasis added):
Definition of Frisk Search (formerly level 2)
“This is used generally for Search Incident to Arrest and means a more thorough search that may include emptying and searching pockets as well as removal of clothing, which does not expose a person’s undergarments, or the areas of the body normally covered by undergarments. The removal of clothing such as belts, footwear, socks, shoes, sweaters, extra layers of clothing, or the shirt of a male would all be included in a Frisk search. A Frisk search may be commenced in the field and concluded at the station.”
Definition of Strip Search (formerly level 3)
R. v. Golden, 2001 SCC 83 established that which constitutes a strip search and what types of circumstances may justify one. A Strip search includes all steps in Protective and Frisk searches as well as a thorough search of a person’s clothing and non-physical search of the body. That will often require removal or rearrangement of some, or all, of the person’s clothing to permit a visual inspection of a person’s private areas: namely the genitals, buttocks, breasts or chest, body cavity, and/or undergarments; the mouth was excluded from this definition despite being a bodily cavity.
[46] The document also instructs that officers “shall not conduct strip searches in any location other than a private area of a secure police facility” (see page 8).
Defence Evidence
i. Affidavit and Testimony of Mr. Kikiantonis
[47] Mr. Kikiantonis filed an affidavit in support of his claim that his rights were violated during the strip searches. He was arrested at gunpoint by TPS officers when he was seated in the back of an Uber. The officers pulled him out of the vehicle and slammed him on the hood of the car. They handcuffed him. They located a firearm in his front right jacket pocket.
[48] A police officer then brought him onto the sidewalk, in public, and searched him. During this search, an officer pulled back his jeans and underwear while looking down his pants. The officer was able to view his bare buttocks and genitals. He identified the officer responsible as DC Dunlop.
[49] At 11 Division, he described Special Constable Walker pulling his jeans and underwear back, while the officer looked down at his lower body. This incident was captured on video in the booking hall. In the room designated for the formal strip search, he described in detail how he had to remove pieces of his clothing and adjust his body to comply with the officers’ demands.
[50] Mr. Kikiantonis felt disgusted, embarrassed and ashamed by each of these searches. He described it as a degrading experience that cost him his dignity.
Positions of the Parties
[51] Mr. Paradkar submits that the investigating officers lacked reasonable and probable grounds to arrest his client and thus violated his section 8 and 9 Charter rights. He cited R. v. Chehil, 2013 SCC 49, in which the Supreme Court clarified the distinction between reasonable suspicion and reasonable and probable grounds. At most, the officers had a reasonable suspicion that Mr. Kikiantonis might have been engaged in criminal activity. The information available to them fell far short of establishing reasonable and probable grounds.
[52] In particular, he points to DC Sgroi admitting in cross-examination that “absent CI information”, he did not have a “strong belief” that Mr. Kikiantonis possessed a firearm, but instead accepted it was a “possibility.” DC Sgroi’s evidence was presented as the foundation of the justification for his client’s arrest. DC Sgroi’s observations were brief, and from a considerable distance. He agreed that he did not see Mr. Kikiantonis put his hand inside his jacket to hold an item, but was merely holding his hand against his jacket. Nor did he see anything akin to the outline of a firearm anywhere on Mr. Kikiantonis’ clothing. He came to a highly speculative conclusion that Mr. Kikiantonis had a gun and then broadcast that belief to the other officers which led to his client’s arrest. His subjective determination was hastily made and, therefore, not reliable.
[53] Regarding the CS information lawfully available for consideration on this application, Mr. Paradkar submits that, as a result of my earlier ruling, it is entitled to minimal weight. The investigating team had at most vague, uncorroborated information that Mr. Kikiantonis had a firearm at some unknown date in the past. There were no specific details to support that claim. The reliability of the sources was unclear. And little to no independent evidence existed to support the CS’ assertions, beyond DC Sgroi’s untrustworthy observations on the day of Mr. Kikiantonis’ arrest.
[54] Mr. Paradkar further submits that Det. Storey testified he did not observe any suspicious behaviour on behalf of Mr. Kikiantonis prior to his arrest, which contradicts DC Sgroi’s testimony. He was also able to make direct observations of Mr. Kikiantonis. As the lead investigator, he had a heightened responsibility to ensure sufficient grounds existed before an arrest was authorized. He seemed to place blind faith in DC Sgroi’s subjective assessment without independently reviewing and considering the totality of the information available to him.
[55] If I agree with his position, the officers would have made an unlawful arrest, and the search conducted incident to that arrest would also have been unlawful, violating his client’s Section 8 and 9 Charter rights.
[56] Following the arrest, Mr. Paradkar argued that his client was unlawfully strip-searched multiple times that evening. Each one was an independent violation of his client’s rights under sections 7 and 8 of the Charter. First, he was subject to a field strip search that was unjustified. Second, Officer Raspberry lacked the necessary grounds to order a formal strip search at 11 Division. Third, Special Constable Walker converted a frisk search into a strip search in the hallway of 11 Division. As well, the lack of a proper record associated with these strip searches (in particular, the formal strip search at 11 Division) violated his client’s section 8 rights. I may also find violations of section 12 of the Charter as a result of this conduct, subject to my findings of fact.
[57] While the field strip search and the excessive frisk search conducted at 11 Division did not involve the complete removal of Mr. Kikiantonis’ clothing, that is not necessary for the searches to be considered strip searches. The definition of strip search established in Golden is broad enough to include an officer peering into an accused person’s undergarments and viewing their genitals or buttocks.
[58] Relying on Thompson, Mr. Paradkar submits that Mr. Kikiantonis should have been provided with an opportunity to re-consult with counsel after Sgt. Raspberry authorized a strip search at 11 Division. That was denied to Mr. Kikiantonis, which constitutes a violation of section 10(b) of the Charter.
[59] As a remedy, he requests that the evidence be excluded under section 24(2) of the Charter or that I issue a stay of proceedings pursuant to section 24(1). The Charter violations, he submits, are particularly serious because they involved systemic failures by experienced officers. The serious nature of these violations, combined with their impact on his client’s Charter-protected interests, at a minimum, demands exclusion of the evidence. In addition, depending on my findings, he urges me to conclude that no other remedy can address the prejudice resulting from the sum total of these Charter breaches, other than a stay of proceedings.
[60] Ms. Andersen argues that the officers collectively had reasonable and probable grounds to arrest Mr. Kikiantonis. In particular, I should accept the testimony of DC Sgroi. He was an experienced and reliable officer who had the best vantage point of Mr. Kikiantonis outside his apartment building. He observed Mr. Kikiantonis walking in a manner that, based on his extensive experience investigating firearm-related offences, indicated to him that Mr. Kikiantonis possessed a firearm at that time. It was a reasonable conclusion for him to reach, and he explained it clearly during his testimony.
[61] Each of the officers was entitled to rely on the information provided by the other officers involved in the investigation. Ms. Andersen described them as a “seasoned team” that regularly handles these types of offences. She argued they had an enhanced awareness of what body movements, mannerisms, and scenarios suggest a reasonable belief that a suspect has a firearm.
[62] Regarding the strip searches, Ms. Andersen argues that Mr. Kikiantonis was not a credible witness and urges the rejection of his testimony about the alleged field strip search. She recommends accepting the accounts of all police officers present, particularly DC Dunlop's. Consequently, I should determine that this search did not take place. Although a formal strip search at 11 Division was authorized by Sgt. Raspberry, it was a lawful decision as the officer had reasonable and probable grounds. Sgt. Raspberry was justified in relying on the digital scales and baggies found on Mr. Kikiantonis at the time of his arrest, as well as the information that he was involved in drug trafficking at a local bar, to support this decision.
[63] Ms. Andersen further argues that a review of the video of the strip search at 11 Division should lead me to conclude that Special Constable Walker did not cross any boundaries during his frisk search, including the act of pulling back his pants and peering into the individual's genital area during a strip search. I should dismiss this part of the defence application accordingly.
[64] She further argues that there was no breach of section 10(b) of the Charter. Sgt. Raspberry offered Mr. Kikiantonis the opportunity to consult with counsel just before the decision to conduct a strip search was made. He explicitly refused, asking, “What’s the point?” There is no reason to believe his response would have been any different if he had been informed of his right to counsel a moment later, after being told a strip search was imminent. He had already dismissed, in his mind, the value of consulting with counsel at that early stage of the process.
[65] I should dispense with the Charter applications accordingly. If I find any breaches, she argues that the loaded firearm should be considered admissible under the Grant test associated with section 24(2) of the Charter. The officers found a loaded firearm on a man involved in drug dealing who was heading to an unknown destination. They needed to act quickly to protect public safety. This should weigh heavily, if not overwhelmingly, in favour of including the evidence.
Reasonable and Probable Grounds For An Arrest
[66] Section 495(1)(a) of the Criminal Code allows a peace officer to arrest a person without a warrant if, on reasonable grounds, they believe the person has committed or is about to commit an indictable offence.
[67] In R. v. Beaver, 2022 SCC 54, at para. 72, the Supreme Court of Canada summarized the essential legal principles governing warrantless arrests. I reproduce that summary here, with the citations removed for brevity:
A warrantless arrest requires subjective and objective grounds to arrest. The arresting officer must subjectively have reasonable and probable grounds for the arrest, and those grounds must be justifiable from an objective viewpoint.
In assessing the subjective grounds for arrest, the question is whether the arresting officer honestly believed that the suspect committed the offence. Subjective grounds for arrest are often established through the police officer’s testimony. This requires the trial judge to evaluate the officer’s credibility…
The arresting officer’s subjective grounds for arrest must be justifiable from an objective viewpoint. This objective assessment is based on the totality of the circumstances known to the officer at the time of the arrest, including the dynamics of the situation, as seen from the perspective of a reasonable person with comparable knowledge, training, and experience as the arresting officer.
Evidence based on the arresting officer’s training and experience should not be uncritically accepted, but neither should it be approached with “undue scepticism”… Although the analysis is conducted from the perspective of a reasonable person “standing in the shoes of the [arresting] officer”, deference is not necessarily owed to their view of the circumstances because of their training or experience... The arresting officer’s grounds for arrest must be more than a “hunch or intuition”.
In evaluating the objective grounds to arrest, courts must recognize that, “[o]ften, the officer’s decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete”... Courts must also remember that “[d]etermining whether sufficient grounds exist to justify an exercise of police powers is not a ‘scientific or metaphysical exercise’, but one that calls for the application of ‘[c]ommon sense, flexibility, and practical everyday experience’”…
“Reasonable and probable grounds” is a higher standard than “reasonable suspicion”. Reasonable suspicion requires a reasonable possibility of crime, while reasonable and probable grounds requires a reasonable probability of crime … At the same time, police do not require a prima facie case for conviction before making an arrest. Nor do the police need to establish that the offence was committed on a balance of probabilities. Instead, the reasonable and probable grounds standard requires “a reasonable belief that an individual is connected to the offence”… A reasonable belief exists when “there is an objective basis for the belief which is based on compelling and credible information”… The police are also not required to undertake further investigation to seek exculpatory facts or to rule out possible innocent explanations for the events before making an arrest.
The police cannot rely on evidence discovered after the arrest to justify the subjective or objective grounds for arrest.
When a police officer orders another officer to make an arrest, the police officer who directed the arrest must have had reasonable and probable grounds. It is immaterial whether the officer who makes the arrest personally had reasonable and probable grounds.
[68] A search incident to arrest may be conducted according to common law if (i) “the individual searched has been lawfully arrested”; (ii) “the search is truly incidental to the arrest in the sense that it is for a valid law enforcement purpose connected to the arrest”; and (iii) “the search is conducted reasonably”: see R. v. Sureskumar, 2023 ONCA 705, at para. 10. Mr. Paradkar does not dispute that the officers were entitled to search his client if the arrest was lawful.
[69] Based on the redacted material presented to the court under step 5 of the Garofoli application, I conclude the following information from the two confidential sources may be considered on the Charter application:
- A person of interest, subsequently determined to be Mr. Kikiantonis by the police, was identified by both sources;
- One of the sources was tested;
- The other was untested;
- The tested source provided information that the person identified was known to sell drugs; and
- Both sources provided information that the person had been witnessed in possession of a gun.
[70] The further details, if any, provided by the confidential sources surrounding Mr. Kikiantonis’ alleged possession of a firearm may not be considered. Even without these additional details, Ms. Andersen argued that the investigating officers could still have formed reasonable and probable grounds to believe that Mr. Kikiantonis would have had a firearm the day he was arrested. Since two sources had identified him as having one at some unknown date in the past, an inference could be drawn that he was still in possession of the firearm on the day of the investigation.
[71] Before analyzing this argument further, I emphasize that DC Sgroi and Det. Storey agreed that they were not preparing to arrest Mr. Kikiantonis when they first observed him on May 8, 2023. Even armed with all the information provided by the confidential sources, some of which I may no longer consider, the officers did not subjectively believe they had reasonable and probable grounds to arrest Mr. Kikiantonis. They required additional information.
[72] In R. v. Herta, 2018 ONCA 927, the Ontario Court of Appeal held that trial judges can draw an inference that those who possess guns may have them for long periods of time. But that inference drawing is subject to significant constraints. The Court wrote at para. 48 (my emphasis added):
Relying upon Delchev, the respondent emphasizes that the fact that the CI said that he saw Callahan with the gun was enough, standing on its own, to pass the compelling threshold in Debot and justify the search. I agree with the sentiment expressed in Delchev, at paras. 73-75, that an inference can be drawn that "criminals who are illegally in possession of guns" may have them for long periods of time. I do not read Delchev as saying, though, that the fact that a CI has seen someone with a gun at some point in the past, means that a search warrant can necessarily issue for any place attended by that person in the future.
[73] In Herta, the investigating officers relied on information obtained from a confidential source. The source stated that the person of interest had a gun and that he “knew” that the person of interest would “not be anywhere without the gun”: see para. 10. Nothing explained why the source believed that the person of interest would not be without the gun; rather, it was a conclusory statement without any foundation. As a result of this information, a search warrant was executed at the appellant’s home. The Court of Appeal found that the redacted ITO did not contain sufficient grounds to support the search warrant. The evidence was excluded, and the appellant was acquitted.
[74] Of importance, the Crown did not resort to Step 6 in Herta during the Garofoli hearing. It relied solely on the information available at Step 5.
[75] Similarly, in R. v. Hibbert, 2019 ONSC 3219, police officers located a loaded gun behind the stereo of the accused’s motor vehicle while executing a search warrant. The warrant contained information provided by a confidential source. The Crown did not rely upon that information, pursuant to step five of the Garofoli application process. The Crown argued that based on the unredacted ITO, the issuing justice could have issued the warrants.
[76] Part of that information included credible and reliable evidence that Mr. Hibbert was involved in a shooting three months earlier: see para. 52. However, Justice Dennison held it was not reasonable to infer that the gun would be found more than three months after the shooting in the accused’s possession in the absence of stronger evidence: see paras. 79-81. The warrant should not have been issued.
[77] The Crown faces an even greater challenge in this case. The evidence that I may lawfully consider in support of Mr. Kikiantonis’ arrest provides no meaningful temporal connection to the confidential source information. I cannot ascertain the currency of that information. Nor can I determine whether it was compelling. The reliability of the first source is limited to knowing that they were a “tested” source, but no basis for this claim was provided. The officers were aware if the sources had a criminal record, outstanding charges, or had been offered consideration, but nothing more. The details of all those factors remain redacted. The second source was entirely untested.
[78] A blanket accusation that someone has a firearm without any additional details is not enough to justify a warrantless arrest anywhere and at any time.
[79] The Crown relies on the independent observations of DC Sgroi to corroborate certain aspects of the information provided in the tips. When Mr. Kikiantonis was located, DC Sgroi believed he exhibited signs of being armed based on his training and experience. This strengthens the foundation for reasonable and probable grounds, according to Ms. Andersen. I agree that this is a pertinent factor to consider, as discussed in Beaver and the authorities cited therein, such as Chehil and MacKenzie. However, it should not be given undue weight without careful consideration.
[80] In R. v. Dene, 2010 ONCA 796, the Court of Appeal held that “posture and body movements” which indicated someone “could be carrying weapons or drugs” may lawfully be considered in the context of justifying an investigative detention: see para. 4. Similarly, in R. v. Plummer, 2011 ONCA 350, the appellant’s “reaction to seeing the police” and his movements that were “consistent with attempting to conceal something” were held to be relevant: see para. 23. A “blading” movement, which involves turning a side of the body away from another person (in this case, an officer who indicated he was going to conduct a pat-down search) was considered in R. v. Amofa, 2011 ONCA 368, at para. 9. These factors may also be considered by a court when determining if there was a lawful basis for an arrest. Another example is R. v. Muller, 2014 ONCA 780, where an officer’s visual observation of a suspect’s body movements formed part of the evidence required to establish reasonable and probable grounds: see para. 42. Each case, of course, is fact-specific.
[81] An interesting analogous case to this one is R. v. Williams, 2013 ONCA 772. A police officer at 23 Division in Toronto received an anonymous tip indicating that a suspect matching the appellant’s description had a firearm while walking south near a specific address. Within minutes, plainclothes officers arrived at the location. Two police officers approached the appellant and identified themselves. One asked him if he was armed. The appellant “bladed” his body by turning to his side, and one of the officers noticed he made a movement towards the area of his waist: see paras. 7-14.
[82] The Court of Appeal held that the appellant’s detention was lawful. While a detention based on an anonymous tip alone could not provide sufficient grounds, “the combination of the anonymous tip and what occurred when the appellant encountered the police was capable of supporting a reasonable belief that the appellant might be connected to a gun crime as reported by the anonymous caller”: para. 27. The search that followed, based on this lawful detention, did not violate the Charter either. I note, however, that the tip in Williams was provided only minutes before the officers located the appellant, and they were able to make direct observations of him prior to forming their grounds.
[83] Importantly, by themselves, even when viewed through the lens of officer experience, observations that a suspect’s body movements are suspicious are typically inadequate to justify either an arrest or an investigative detention. In R. v. Mohamed Aden, 2019 ONSC 4890, the accused was found in the company of another man who was the target of a police investigation. An officer observed Mr. Aden repeatedly touch his waistband and the front of his hoodie while standing outside a McDonald’s restaurant. Based on this observation, the officer believed Mr. Aden possessed a firearm. The officer alerted his team, and Mr. Aden was detained. A firearm was discovered near Mr. Aden. Justice Forestell held that this was insufficient to form a lawful basis for either an arrest or a detention: see para. 8.
[84] The case for the Crown regarding the officers’ grounds for arresting Mr. Kikiantonis is considerably weaker than in these other reported decisions where a detention or arrest was deemed lawful. In addition to the concerns I have already identified, the evidence from the two confidential sources was not corroborated in a meaningful manner. The surveillance of Mr. Kikiantonis did not reveal anything notable. Finding him outside his residence, not engaged in any criminal activity, confirmed nothing of significance that was provided by the confidential sources. He was not seen involved in any behaviour consistent with drug dealing, nor was he observed possessing a firearm. This falls far short of the Debot criteria.
[85] It was only when DC Sgroi saw Mr. Kikiantonis with a satchel that he believed he might have a firearm. Based on his prior experience, he thought that suspects often kept firearms in satchels. Of course, it should go without saying that one can use a satchel for entirely lawful purposes as well. DC Sgroi’s attention shifted when Mr. Kikiantonis walked “unnaturally” and used his right hand to push his right jacket pocket against his body constantly. This caused DC Sgroi to conclude that Mr. Kikiantonis had a firearm in his jacket instead.
[86] I do not find this compelling. I emphasize that when the Crown cites officer experience and training to justify detaining or arresting an individual, certain principles must be taken into consideration. An officer’s suspicion of criminal behaviour must be based on specific, verifiable observations. And the court must still “be prepared to look carefully at what is held out to be experience or training”, especially when that forms the tipping-point for state action, lest the integrity of our constitutional standards be compromised: see R. v. Yeh, 2009 SKCA 112, at para. 53.
[87] DC Sgroi testified that his training included a course on the characteristics of an armed person in 2008 and stated that “not much had changed” since then. He had furthermore taken part in hundreds of arrests of suspects for illegal firearm possession. Through that professional experience and conversations he’s had with informants about gun and drug culture, he has come to believe that someone walking unnaturally can often indicate they are carrying a firearm. However, in cross-examination, he conceded that his observations, on their own, did not support a “strong” belief that Mr. Kikiantonis had a firearm, but only suggested a “possibility.”
[88] Considering the entirety of the evidence available to DC Sgroi, even when viewed through the lens of his training and experience, this still fell short of the standard required for a lawful arrest. At most, Mr. Kikiantonis acted somewhat unusually for a few seconds while pressing his hand against his jacket pocket. I note that Det. Storey, who was also observing Mr. Kikiantonis as he approached the Uber, noticed “nothing out of the ordinary” about how he walked. DC Sgroi’s observations were thus highly subjective and contradicted by Det. Storey’s account of the same events. I conclude that DC Sgroi saw what he wanted to see, having been predisposed to believe that a firearm would be found on Mr. Kikiantonis due to his prior knowledge of the confidential source material.
[89] The caselaw makes clear that while observations made by police officers of an accused person’s unnatural body movements may be considered, it is only “when these factors tie in with something more concrete that an officer’s grounds become more secure”: see Justice D. Garg and A. Kapoor, Detention, Arrest and Right to Counsel (Toronto: Emond Publishing, 2024) at p. 271. That “something more” was absent here. Fundamentally, DC Sgroi relied on uncorroborated information, provided at an unknown time, that Mr. Kikiantonis had a gun, combined with observations of what can only be described as entirely innocuous behaviour: see R. v. Nicholls, 2022 ONCA 133, at paras. 4-8.
[90] I recognize that officers often encounter, as they did here, fast-moving situations involving the possibility that the person under investigation had a firearm in a busy area of the city. Officers must sometimes act quickly without the benefit of hindsight. I am also mindful of the Court of Appeal’s recent caution in Asante, supra, at para. 57 that judges “must remember that the reasonable and probable grounds standard depends upon probabilities, not certainties. It does not require proof beyond a reasonable doubt, nor even proof on a balance of probabilities: Beaver, at para. 72. Reasonable probabilities can co-exist with competing reasonable probabilities.”
[91] Nevertheless, I find a breach of sections 9 and 8 of the Charter. The arrest was unlawful, and a search incident to arrest is unreasonable if the underlying arrest was unlawful: see R. v. Sabiston, 2023 SKCA 105, at paras. 4 and 93 (this conclusion accepted by the majority of the Supreme Court of Canada in R. v. Sabiston, 2024 SCC 33); R. v. Gilliland, 2025 BCSC 568, at para. 42.
Strip Searches and Section 8 of the Charter
[92] Strip searches were recognized by the Supreme Court of Canada in R. v. Golden, 2001 SCC 83, to involve a “significant and direct interference with personal privacy.” They often constitute a “humiliating, degrading and traumatic experience for individuals subjected to them”: see para. 83. The Supreme Court held that strip searches performed on a routine basis at a police station, and without defined standards associated with them, violated section 8 of the Charter.
[93] A strip search is defined as "the removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person's private areas, namely genitals, buttocks, breasts (in the case of a female), or undergarments": Golden, at para. 47.
[94] In R. v. Muller, 2014 ONCA 780, the Ontario Court of Appeal summarized the law as it applies to the constitutional validity of strip searches at paras. 56 to 60 (my emphasis added):
Where a strip search is justified as an incident to arrest, the arrest itself must be lawful: Golden, at para. 91. The search must also be incident to the arrest. In other words, the search must be related to the purpose of the arrest: Caslake, at para. 17; Golden, at para. 92. In this case, the arrest was for drug trafficking, more accurately, possession of drugs for the purpose of trafficking. It is to that purpose the strip search had to relate.
The reasonableness of the search for evidence, including the reasonableness of the strip search, is governed by the need to preserve evidence and prevent its disposal by the arrested person. Where arresting officers suspect the arrested person may have secreted evidence on areas of his or her body that can only be exposed by a strip search, the risk of disposal must be reasonably assessed in all the circumstances: Golden, at para. 93.
The mere possibility that an individual may be concealing drugs on his or her person is not sufficient to justify a strip search of that person: Golden, at para. 94. Further, strip searches conducted as a matter of routine policy, even if executed in a reasonable manner, are not reasonable within s. 8 of the Charter. Compelling reasons, rooted in the circumstances of the arrest, are required to render a strip search reasonable, even where the execution is flawless: Golden, at para. 95. Rote application of police policy is anathema to the case-specific, fact-sensitive consideration mandated by Hunter v. Southam Inc.
The fact that police have reasonable grounds to arrest a person without warrant under s. 495(1)(a) does not, on its own, clothe them with automatic authority to carry out a strip search. This is so even where the strip search qualifies as incidental to a lawful arrest: Golden, at para. 98. Something further relating to the purpose of the strip search is required. That something further is that the police must have reasonable and probable grounds for concluding a strip search is necessary in the specific circumstances of the arrest: Golden, at para. 98.
The serious infringements of privacy and personal dignity that are inevitable consequences of strip searches require that, to be constitutionally valid, the strip search must be:
i. conducted as an incident to a lawful arrest;
ii. conducted for the purpose of discovering weapons or evidence on the body of the arrested person related to the reason for the arrest;
iii. based on reasonable and probable grounds for concluding a strip search is necessary in the circumstances of the arrest; and
iv. conducted in a reasonable manner.
[95] In Golden, at para. 101, the Supreme Court of Canada concluded the guidelines for strip searches contained in the Police and Criminal Evidence Act 1984 (U.K.), 1984, c. 60 (PACE), accorded with the constitutional requirements of section 8 of the Charter. The PACE questions include the following:
- Will the strip search be carried out in a private area such that no one other than the individuals engaged in the search can observe the search?
- Will a proper record be kept of the reasons for and the manner in which the strip search was conducted?
Analysis
i. Frisk Search In The Booking Hall
[96] I begin by considering the “frisk search” that occurred in the booking hall at 11 Division, captured on video, before the subsequent formal strip search. It is not disputed that the officers were lawfully permitted to conduct a frisk search to check Mr. Kikiantonis’ clothing and body for drugs and possible weapons. However, Mr. Paradkar submits that the frisk search conducted by Special Constable Walker crossed a line, even if only briefly. The search was, in fact, a strip search once he pulled back his client’s jeans and underwear and peered down into his genitalia and/or buttocks.
[97] Notably, Special Constable Walker did not dispute that this is what factually occurred. My own review of the video leads me to conclude that this is exactly what happened. Officer Walker can be seen pulling back Mr. Kikiantonis’ pants at the waist, along with any clothing found beneath them, and peering inside the pants towards his lower body. During his testimony, he appeared to take pride in the “thorough” frisk search he conducted, seemingly unaware that he may have proceeded into the domain of a strip search.
[98] The TPS policy defining frisk and strip searches is clear. A frisk search is one which, despite any removal of a detainee’s clothing, “does not expose a person’s undergarments, or the areas of the body normally covered by undergarments.” Special Constable Walker’s excessive search techniques produced just that result. Though it may have only lasted a few seconds, it was not a frisk search – it was properly characterized as a strip search: see R. v. Bootsma, 2022 ABQB 45, at paras. 62-70; R. v. Ali, 2011 ONSC 424, at para. 61.
[99] It was also recorded on video, and in plain view of the other officers present at the time. None of the other officers objected or voiced any concern. In Golden, the Supreme Court held that strip searches must be conducted in private to minimize the invasion of privacy and the threat to the detainee’s bodily integrity: see para. 102. Yet the search of Mr. Kikiantonis was carried out by an experienced officer, unaware of his mistake, while Mr. Kikiantonis was in plain view in the hallway of the division.
[100] If frisk searches are permitted to effectively become strip searches due to inadequate judicial oversight, the Charter rights of every detainee in police custody risk permanent erosion. Special Constable Walker did not seem to grasp the significance of where the line is drawn between the two. He was unaware of Golden, the leading authority from the Supreme Court of Canada, which was decided over 20 years ago. He testified that, while he was familiar with the TPS policy on searching detainees in custody, he had not thoroughly read it and was not fully aware of its details. He simply did not seem to care.
[101] His apparent indifference to the policies he is expected to faithfully execute as a police officer, as well as the decisions of the courts that developed those policies, is deeply disappointing. Police officers should both understand and appreciate the fundamental importance of the rights of those in their custody and their responsibilities to adhere to the law. While Det. Raspberry impressed me with his testimony and seemed genuinely committed to following the letter of the law, he still allowed Special Constable Walker to cross the line into a strip search, making no effort to intervene or voicing any concern. Both he and DC Moorcroft came across as blissfully unaware that what was happening right before their eyes was wrong.
[102] I find a violation of Mr. Kikiantonis’ rights under section 8 of the Charter.
ii. Grounds To Authorize The Strip Search At 11 Division
[103] The articulated justification for the strip search by Det. Raspberry was that the scale, drug packaging, and satchel had some drug residue in them. No further grounds were provided; rather, the officer relied on his experience with the drug trade in his testimony to further justify his decision. On the booking video, curiously, he did not mention Mr. Kikiantonis’ arrest for possession of a loaded firearm as a factor he considered.
[104] Officers are also entitled to rely on their own experience when forming grounds: see Chehil at paras. 45-7. Det. Raspberry testified he had considerable experience with suspects and detainees hiding drugs in parts of their bodies, and that those drugs might be located after a frisk search, even if that frisk search did not reveal any drugs.
[105] In Muller, the Ontario Court of Appeal was explicit that the “mere possibility” a detainee may be concealing drugs on his person is insufficient. The police must have reasonable and probable grounds that conducting a strip search is necessary in the specific circumstances of the arrest: see Golden at para. 98.
[106] The appellant was arrested for possession of crack cocaine for the purpose of trafficking. The police had received information from two confidential sources indicating that the appellant was trafficking drugs in an apartment. The information provided to the police was quite recent – the alleged drug dealing had occurred only hours prior. One of the sources had been proven reliable in the past, while the other was untested: see paras. 8 and 40. Upon the officers' arrival outside the apartment building where the drug trafficking was taking place, they found the suspect exiting through a side door: see para. 26. After arresting the appellant, the officers conducted a frisk search and discovered three cellphones and some cash. They did not find any drugs or other typical indicators of drug trafficking. However, the officers did locate a digital scale that the appellant had discarded just prior to his arrest, which had a residue of white powder on its surface.
[107] The Court of Appeal held that the officers had sufficient grounds for a strip search based on the cumulative effect of those factors. While the evidence linking Mr. Kikiantonis to drug dealing was much weaker than what was considered by the court in Muller, Det. Raspberry also noted on the booking video that Mr. Kikiantonis had been arrested for possession of a loaded firearm, even if he did not cite that fact specifically when explaining his grounds to authorize a strip search. In R. v. Hassan, 2023 ONSC 1300, Justice Nakatsuru ruled that the grounds for a strip search were established when the accused was arrested for possession of a loaded firearm and had outstanding drug-trafficking charges: see para. 60.
[108] When assessing the objective reasonableness of an officer’s grounds, I must consider the totality of the circumstances known to the officer at the time, even if some of the individual factors were not specifically articulated: see R. v. Asante, 2025 ONCA 387, at para. 30. I find that, objectively, although this was a close call, there were reasonable and probable grounds to justify a strip search. This portion of the Charter application is therefore dismissed.
iii. Lack Of An Adequate Record
[109] Not a single officer checked whether the audio recording equipment was functioning properly in the room designated for strip searches at 11 Division. Det. Raspberry, who was responsible for authorizing strip searches on the night in question, did not ensure that any strip search he authorized would be properly recorded and documented. This was inconsistent with both TPS policy and the requirements of the Charter.
[110] This was a glaring example of unacceptable police negligence. In R. v. Janeiro, 2022 ONCA 118, Justice Paciocco explained the duty of the police to preserve relevant evidence at paras. 107-8:
Where a Charter applicant has shown that disclosable evidence has been lost, a Charter breach contrary to s. 7 will be found unless the Crown has provided a satisfactory explanation for that loss, thereby demonstrating that an abuse of process has not occurred. The Crown may do so by establishing that the evidence has not been destroyed or lost by unacceptable negligence, that is, negligence that goes beyond mere negligence. This can be accomplished by showing that reasonable steps were taken in the circumstances to preserve the evidence, bearing in mind the relevance that the evidence was perceived to have at the time it was lost or destroyed: R. v. La, [1997] 2 S.C.R. 680, at paras. 20-22; R. v. Hersi, 2019 ONCA 94, 373 C.C.C. (3d) 229, at para. 30.
Indeed, the relevance or importance of the evidence is an important consideration in setting the degree of care expected. As the relevance of the evidence increases, so too does the degree of care required in preserving the evidence: La, at para. 21; Hersi, at para. 30. Similarly, as the relevance decreases, the required degree of care is reduced…
[111] I agree with Mr. Paradkar that the police have a high duty of care to preserve a recording of a strip search. There is a heightened obligation to safeguard such essential evidence, which will be crucial in determining how a detainee has been treated while they are at their most vulnerable and subjected to a degrading search. Sgt. Raspberry and DC Moorcroft testified that strip searches have rarely been authorized in recent years, highlighting the importance of ensuring that the recording equipment functions properly when such an uncommon procedure is utilized. I did not hear of any reasonable steps taken by the TPS to preserve this audio recording.
[112] DC Pak did not explain why the audio recording wasn’t requested from 11 Division during the standard disclosure process following Mr. Kikiantonis’ arrest. It was only on August 22, 2024, when he looked into Ms. Andersen's request for the recording that he discovered it was lost. Had he requested the recording before May 2024, which was still a year after Mr. Kikiantonis’ arrest, it would have been preserved. The other case materials available to him documented that a strip search on Mr. Kikiantonis had been authorized and that 11 Division used audio equipment to record these searches. He did not dispute that he had a legal obligation to preserve relevant evidence.
[113] Of equal concern is that Officers Walker and Moorcroft did not make any notes regarding the search procedure involving Mr. Kikiantonis. DC Moorcroft acknowledged during his testimony that he had a duty to take detailed notes on how the search was conducted, yet he failed to uphold his professional standards in this case. In contrast, Special Constable Walker seemed shocked at Mr. Paradkar’s suggestion that his duty to create comprehensive notes of his involvement in this case as an officer would include documenting the manner in which a strip search was carried out. When confronted with the TPS policy requiring that level of notetaking, he denied understanding that it meant he should personally create these notes. That was not credible.
[114] The policy was crystal clear. While I appreciate DC Moorcroft’s candour regarding his error of omission, this represents a severe failure on the part of both officers. I was particularly taken aback by Special Constable Walker’s testimony that he has never taken notes during possibly thousands of strip searches. In his view, it seems pointless to do so unless something unusual occurs.
[115] In Muller, the Court of Appeal found that the police officer's failure to create an adequate record of the strip search constituted a breach of section 8 of the Charter: see para. 83. However, in the later decision of Hassan, Justice Nakatsuru of the Superior Court of Justice cautioned that the “adequacy of the record required for a strip search will depend on the context of the strip search. Greater notation of the reasons for, and how, a strip search is conducted is necessary for a strip search done in the field than for a strip search in a police station”: see para. 62. In that case, while the officers could have prepared “better notes”, Justice Nakatsuru found the record adequate and concluded there was no breach of the accused’s section 8 rights. See also R. v. Sitladeen, 2024 ONSC 582, at paras. 90-91, where Justice Charney reached the same conclusion on similar facts.
[116] In this case, there are no notes on how the strip search at the 11 Division was conducted. None at all, because the officers did not understand they had a duty to prepare them. This is qualitatively very different from the insufficient notes that existed in other cases, where at least some notes were prepared. The total absence of officer notes in this case is a significant concern. The audio recording failed, and the officers have no meaningful recollection of this specific strip search. An accurate record could have been easily created at the time of the search or shortly thereafter, when the details of that search would have been fresh in the officers’ memories.
[117] I find that the failure to create and preserve a proper record of Mr. Kikiantonis’ strip search constitutes a breach of section 8 of the Charter: see also R. v. Browne, 2012 ONSC 3862, at para. 19; R. v. Inyat, 2025 O.J. No. 551 (S.C.J.), at paras 185-6.
iv. The Search Of Mr. Kikiantonis At The Roadside
[118] Whether Mr. Kikiantonis was subjected to a strip search at the roadside was a matter of dispute between the parties. A strip search conducted in the field will only be permitted in exigent circumstances. In Golden, at para. 102, Justices Iacobucci and Arbour wrote the following:
Such exigent circumstances will only be established where the police have reasonable and probable grounds to believe that it is necessary to conduct the search in the field rather than at the police station. Strip searches conducted in the field could only be justified where there is a demonstrated necessity and urgency to search for weapons or objects that could be used to threaten the safety of the accused, the arresting officers or other individuals. The police would also have to show why it would have been unsafe to wait and conduct the strip search at the police station rather than in the field. Strip searches conducted in the field represent a much greater invasion of privacy and pose a greater threat to the detainee’s bodily integrity and, for this reason, field strip searches can only be justified in exigent circumstances.
[119] In Golden, the Crown attempted to justify the field search on the basis "that exigency arose from the risk that this evidence might be lost or destroyed if police waited to conduct the strip search until the appellant was transported to a police station": see para. 107. An officer had observed the appellant crushing what appeared to be crack cocaine between his fingers just after his arrest. The Supreme Court rejected the Crown’s argument, noting that the police station was only a short distance away, as was 11 Division in the case of Mr. Kikiantonis. There was no reasonable prospect that the appellant, who was handcuffed, would have been able to discard the drugs hidden on his person surreptitiously.
[120] In R. v. Pilon, 2018 ONCA 959, the appellant was arrested in a motel room and placed in handcuffs. Officers observed him attempting to put his hands in the front and back of the shorts he was wearing. Following a search incident to the arrest, the officers noted that the appellant was wearing two pairs of athletic shorts and continued their search, looking inside the second pair. An officer was able to observe the top of the appellant’s buttocks and an elastic band attached to his penis.
[121] The officer who conducted the search testified that, based on previous investigations, he was concerned the appellant might have drugs in his groin area. The Court of Appeal held that the Crown failed to provide sufficient evidence of exigent circumstances related to safety or the need to preserve evidence to justify a field search. There was a violation of the appellant’s section 8 rights: see paras. 31-32.
[122] Similarly, in Bootsma, supra, RCMP officers investigating the accused noticed a bulge in his pants near the waistband. The officers were concerned that he might be concealing something, such as a weapon. They also had information that he was travelling to sell drugs. An officer pulled Mr. Bootsma’s underwear waistband away from his body and looked down to see what was there. Justice Funk held that the search constituted an unlawful field strip search, breaching section 8 of the Charter: see paras. 82-86.
[123] Assessing the evidence relevant to this issue, I find DC Dunlop’s testimony to be unreliable. He repeated during his testimony that he had memory issues and was often “not sure” of a detail, lacking a strong, independent recollection of how he searched Mr. Kikiantonis. Additionally, he was not wearing a body-worn camera at the time, and he acknowledged that his notes contained errors and were missing details. There were also notable inconsistencies in his testimony, such as whether DC Storey or DC Kapitany ordered the takedown of Mr. Kikiantonis. His failure to take comprehensive notes of his role in the investigation, combined with his poor memory, significantly diminishes the weight I can attach to this testimony.
[124] He denied strip searching Mr. Kikiantonis specifically but agreed that he conducted a “thorough” search at the roadside. He remembered that he checked Mr. Kikiantonis’ waistband to ensure nothing was “hidden in there.” He agreed he was searching with both his hands and eyes and explained that the purpose of the waistband portion of his search was to see if anything might be “down there,” referring to Mr. Kikiantonis’ lower body inside his pants. How he distinguished a frisk search from a strip search in his mind was not clarified.
[125] The other officers present at the time were not helpful. DC Vukovic testified that he was not paying attention to what transpired between DC Dunlop and Mr. Kikiantonis. DC McKenzie was “not focused” on the manner of search conducted by DC Dunlop. DC Sgroi did not believe he witnessed a strip search but was “not sure” if he ever saw Mr. Kikiantonis’ underwear exposed and was not personally inspecting the search. He did see Mr. Kikiantonis leaning over the hood of one of the other officers’ undercover police cars. Det. Storey witnessed this as well but, similarly, was not paying attention to the search conducted by DC Dunlop and only observed a “small part” of it.
[126] By contrast, Mr. Kikiantonis’ testimony was credible and reliable. He provided detailed information about how DC Dunlop searched him. He was adamant that there was a pat-down search followed by a frisk search that involved his clothing being manipulated. Unsurprisingly, the events stood out in his mind. He was looking directly at DC Dunlop when the officer pulled back his jeans and underwear while looking down into his pants. He was honest about his inability to provide some details, such as which officers were immediately present or precisely where he was standing on the sidewalk. He explained that his mind was focused on how he was being treated and how he felt. On the body-worn camera footage of the two transporting officers, which recorded Mr. Kikiantonis shortly after his arrest, he appears distraught, as if something had happened to him out of the ordinary earlier that evening. I find this lends support to his testimony, which I accept.
[127] On a balance of probabilities, I conclude that Mr. Kikiantonis was subjected to a brief field strip search by DC Dunlop.
[128] The Crown has not demonstrated any exigent circumstances to justify this search. Mr. Kikiantonis was cooperative and passive. He was handcuffed almost immediately after his arrest. Not a single officer observed him attempting to conceal anything. He was going to be transported to 11 Division, a short distance away. The mere possibility of something unsafe being located elsewhere on his person after the frisk search was completed does not justify a strip search done in public view.
[129] I therefore find another breach of section 8 of the Charter. There was no record created of this field strip search whatsoever by DC Dunlop. The importance of properly documenting such a search is well established, and the failure of the officer to do so significantly elevates the seriousness of the breach: see Hassan, at para. 62.
Charter Section 7
[130] I am satisfied that Section 7 of the Charter was also violated in each of these occasions. In R. v. S.C., 2025 ONSC 1887, Justice Campbell found that an unlawful strip search can constitute a violation of a detainee’s “security of the person”: see para. 144.
[131] However, I find, as Justice Campbell did, that the violations in this case under section 7 essentially mirror those that occurred under section 8: see para. 148. In R. v. J.F., 2025 ONCJ 54, Justice Rose held that “[w]hen the constitutional standard under parallel Charter sections is engaged it is not necessary to make findings under both, or all particularly where the remedy would be the same”: see para. 67. Justice Campbell endorsed this analysis at para. 151 of his decision, and I do as well.
Charter Section 12
[132] In S.C., Campbell J. held that a strip search would not normally constitute a violation of section 12 of the Charter: see para. 159. That decision is binding upon me. I dismiss this component of the application.
Charter Section 10(b)
[133] Sgt. Raspberry did not provide Mr. Kikiantonis with an opportunity to consult with counsel after he was informed he would be strip-searched at 11 Division. According to Thompson, this constitutes a violation of section 10(b) of the Charter.
Remedy – Charter Section 24(2)
[134] Section 24(2) of the Charter requires the court to determine whether the admission of evidence obtained in breach of an accused person’s Charter rights could bring the administration of justice into disrepute. The Supreme Court of Canada summarized the applicable law in R. v. Tim, 2022 SCC 12, at paras. 74-5:
Section 24(2) of the Charter is triggered where evidence is “obtained in a manner” that violates an accused’s Charter rights. A s. 24(2) inquiry examines the impact of admitting evidence obtained in breach of the Charter on public confidence in the justice system over the long term, based on three lines of inquiry: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the accused’s Charter-protected interests; and (3) society’s interest in the adjudication of the case on the merits. A court’s task is to balance the assessments under these three lines of inquiry “to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute” (Grant, at para. 71; see also Le, at paras. 139-42).
Section 24(2) does not create an automatic exclusionary rule when evidence is obtained in breach of a Charter right. The accused bears the onus of establishing that, having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute (see Collins, at p. 280; Fearon, at para. 89; see also S. C. Hill, D. M. Tanovich and L. P. Strezos, McWilliams’ Canadian Criminal Evidence (5th ed. (loose-leaf)), at § 19:12).
[135] The Supreme Court in Tim reiterated how a trial court should assess whether evidence was “obtained in a manner” that breached an accused person’s Charter rights at para. 78. Courts should take a “purposive and generous approach”, considering the “entire chain of events” involving the Charter breaches and the impugned evidence. The connection between the breaches and evidence can be “temporal, contextual, causal or a combination of the three.” A strict causal connection is not required, however: see also R. v. Mian, 2014 SCC 54, at para. 83. At the same time, too remote or tenuous a connection is not sufficient: R. v. Wittwer, 2008 SCC 33, at para. 21.
[136] Mr. Kikiantonis’ arrest and the search that occurred incident to that arrest directly led to the discovery of the firearm. But the strip searches, in my view, must also be considered. He should not be denied potential Charter relief under section 24(2) for these breaches of section 8 rights because the strip searches occurred after the firearm was already located. In this case, the events “wove a single tapestry of investigative activity”: see Thompson at para. 90.
i. Seriousness of the Charter-Infringing Conduct
[137] Under the first branch of the Grant test, I must situate the police conduct on the scale of blameworthiness. The more blameworthy the conduct, the stronger the argument for excluding the evidence: R. v. Paterson, 2017 SCC 15, at para. 43.
[138] The officers agreed they did not have sufficient grounds to justify Mr. Kikiantonis’ arrest when they first observed him. Various officers indicated that they were tasked with investigating and conducting surveillance. They did not have a warrant for him. It was only when DC Sgroi communicated that he had made observations leading him to conclude that the accused was in possession of a firearm that a decision was made to initiate a takedown. That was the inflection point.
[139] As I have concluded, this was insufficient to establish reasonable and probable grounds. Far more was required. Mr. Kikiantonis was arrested based on little more than mere suspicion that he possessed a firearm. Additionally, there was no urgency that would have justified their conduct: see Hassan, at para. 113.
[140] I do not, for a moment, suggest that police officers should refrain from acting on information provided to them about illegal firearm ownership. I recognize that they must make rapid decisions in often volatile situations where serious, if not overwhelming, public safety concerns may be present: see R. v. Golub. But this was not a case involving exigent circumstances. The officers acted without sufficient grounds. The fact that their suspicion, in this case, turned out to be correct does not lessen their blameworthiness: see Beaver at para. 72.
[141] I acknowledge this was not a case of blatant disregard for Charter rights either. The officers, at the time, had access to more information than I may lawfully consider, due to my ruling on the Garofoli application. Nevertheless, even with access to that information, they still did not believe they could arrest Mr. Kikiantonis when they first located him. Undue reliance on DC Sgroi’s observations that Mr. Kikiantonis was grasping at his jacket pocket constituted an error in judgment. However, I accept that DC Sgroi genuinely believed Mr. Kikiantonis likely had a firearm. I find that the decision to make an arrest therefore falls at the less severe end of the scale of culpability and moderately favours exclusion: see Tim at paras. 76-80.[^2]
[142] The same cannot be said for the level of state misconduct regarding the various strip searches that occurred. DC Dunlop and Special Constable Walker appeared to be unaware of the limits of their authority to search Mr. Kikiantonis, despite unambiguous instructions from TPS policy and 20 years since the Supreme Court’s decision in Golden. Both officers showed carelessness in their duties and disregard for Mr. Kikiantonis’ constitutional rights. Furthermore, the fact that no officer that night attempted to ensure that a proper record was created of the formal strip search that was authorized, including Det. Raspberry, demonstrates significant police negligence.
[143] Worse, DC Dunlop conducted a field strip search without justification, and I rejected his testimony that it did not occur. There was a pattern of Charter infringing state misconduct that began with Mr. Kikiantonis’ arrest.
[144] I acknowledge that Sgt. Raspberry cannot be faulted for failing to provide Mr. Kikiantonis with a further opportunity to consult with counsel after the decision was made to authorize a strip search. Thompson had not yet been decided, and the state of the law at the time did not yet create such a constitutional obligation: see para. 103.
[145] Nevertheless, overall, there was a pattern of careless police work in this case, and courts should disassociate themselves from such conduct, even in the absence of a finding of bad faith: see R. v. Grant and Scott, 2025 ONSC 3513, at para. 156. This factor weighs heavily against the inclusion of the evidence when considering these multiple, serious breaches.
ii. The Impact of the Breach on the Charter-protected interests of the accused
[146] The second part of the Grant test considers the seriousness of the impact of 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.
[147] Section 9 protects against arbitrary arrest or detention. It safeguards the very liberty interests of all Canadians. Mr. Kikiantonis’ section 8 and 9 rights were significantly affected by being arrested, handcuffed, searched, and transported to 11 Division: R. v. Stevenson, 2014 ONCA 842, at paras. 70-71.
[148] Moreover, an unlawful arrest that leads to unjustified searches inevitably impacts the arrested person’s privacy interests and human dignity. Strip searches are humiliating and degrading. In this case, two strip searches occurred without justification. One took place in public view on a street corner. Another was recorded on video at the police division. The final strip search was authorized, but no record was kept of what transpired during the search. The police misconduct was serious and warrants the court's dissociation from these violations of Mr. Kikiantonis’ rights. Each of these violations stemmed from the initial unlawful arrest, making them all interconnected.
[149] Mr. Kikiantonis was a compelling witness. I accept his testimony about the impact these searches had on him without reservation. He described in detail how he was searched, on each occasion, and the shame and embarrassment that he felt. He did not exaggerate or embellish his testimony and was exceedingly fair. He acknowledged that the officers who pulled back his underwear and jeans during the “frisk” searches did so only for a few seconds. He also agreed Officers Moorcroft and Walker were polite when they completed the formal strip search at 11 Division and he never touched his body directly.
[150] But he was not shaken during cross-examination about the humiliation that accompanied each of these searches. He was particularly concerned that other people, including civilians, could see him being searched while on street at the time of his arrest. He directly observed DC Dunlop looking down into his pants, which was very unsettling. I accept these violations of his Charter rights had a significant impact on him emotionally.
[151] It would be easy to dismiss the excessive frisk searches in this case as having happened relatively briefly and, therefore, deeming them unworthy of great weight. The unlawful portion of the search on camera at 11 Division only lasted two or three seconds, and the search at the roadside was also brief in duration. Taking such an approach would be wrong. Each infraction of Mr. Kikiantonis’ rights violated his dignity and harmed the repute of the administration of justice. They formed a pattern of conduct by the police that showed disregard for well-established constitutional practices. They matter.
[152] As stated by the Ontario Court of Appeal in Thompson at para. 54:
It is difficult to quarrel with these observations. Within the hierarchy of interests protected by s. 8 of the Charter, bodily searches rank among the most intrusive. The removal of clothing and inspection of the body, including intimate areas of the body, falls at the most serious end of the invasiveness spectrum. The impact of a strip search goes beyond the physical. It has the potential to induce anxiety, uncertainty, distress, and embarrassment. And as noted in Fearon, it has the potential to undermine human dignity.
[153] With respect to the violation of section 10(b) of the Charter, I cannot speculate as to whether Mr. Kikiantonis would have consulted counsel once informed of Sgt. Raspberry’s decision to authorize a strip search. I agree with Ms. Andersen that Mr. Kikiantonis had rejected the offer of consulting counsel only moments before, as can be seen in the booking video. But he was still entitled to the “psychological assurance” that he could have received from counsel, when faced with this new jeopardy: see Thompson at para. 108. As noted by the Court of Appeal, “the call to counsel can serve a number of tangible and intangible benefits for the detainee, while imposing a relatively minimal burden on police investigators”: see para. 74.
[154] Overall, I must consider the impact of all of the breaches I have found and consider them cumulatively: Thompson at para. 109. This factor weighs heavily against the inclusion of the evidence.
iii. Society’s Interest in the Adjudication of the case on its merits
[155] The administration of justice may be brought into disrepute due to the exclusion of relevant and reliable evidence: see Grant, supra, at para. 81. The firearm serves as reliable evidence that is essential to the Crown’s case. Firearms offences are undoubtedly among the most serious that regularly come before the courts in Toronto.
[156] But, as explained by Justice Akbarali in Grant and Scott, even with that consideration in mind, there is another side to the coin: “society has an interest in ensuring that the state acts in a manner that respects Charter rights when investigating people for offences that carry significant penalties and the potential for a lengthy term of imprisonment”: see para. 173. I agree with this observation, and note that the Supreme Court has been clear that the administration of justice may be brought into disrepute by admitting evidence obtained in circumstances, that, if approved of by the courts, would be seen as tantamount to “judicial condonation of unacceptable conduct”: see R. v. Le, 2019 SCC 34, at para. 158.
[157] This factor favours admission of the evidence, but not strongly.
iv. Balancing
[158] In Tim, at para. 82, the Supreme Court described the balancing required under section 24(2):
The final step in the s. 24(2) analysis involves balancing the factors under the three lines of inquiry to assess the impact of admission or exclusion of the evidence on the long-term repute of the administration of justice. Such balancing involves a qualitative exercise, one that is not capable of mathematical precision (see Grant, at paras. 86 and 140; Harrison, at para. 36). Each factor must be assessed and weighed in the balance, focussing on the long-term integrity of, and public confidence in, the administration of justice (see Grant, at para. 68). The balancing is prospective: it aims to ensure that evidence obtained through a Charter breach “does not do further damage to the repute of the justice system” (Grant, at para. 69). The balancing is also societal: the goal is not to punish the police, but rather to address systemic concerns by analyzing “the broad impact of admission of the evidence on the long-term repute of the justice system” (Grant, at para. 70; see also Le, at para. 139).
[159] Where officers made an arrest without reasonable and probable grounds, but nearly met that standard, an unlawfully seized firearm may still be admitted: see R. v. Nicholls, 2022 ONCA 133, at para. 14. However, when an officer’s conduct was far from justifying an arrest and indicated bad faith, firearms have been excluded: see, for example, Hassan, at paras. 133-136. Even in the absence of bad faith or improper motives by the police, where they were simply considerably off the mark from what was required for a lawful detention or arrest and search, reliable evidence including firearms may be excluded: see, for example, Justice McArthur’s recent decision in R. v. Dean, 2025 ONSC 3446.
[160] Although I have not found that the officers in this case acted in bad faith, the arrest and search that followed were unjustified. The repeated strip searches were carried out with indifference to Mr. Kikiantonis' dignity and well-established law. The failure to properly document them was grossly negligent. Mr. Kikiantonis should also have been allowed to consult with counsel after being informed by Sgt. Raspberry that he would be subject to a strip search at 11 Division.
[161] The series of Charter breaches that occurred in this case were all undertaken by a single police service, within a relatively short timeframe, establishing a pattern which demands denunciation from the court: see Thompson at para. 122.
[162] If the first and second inquiries strongly favour exclusion, the third inquiry will rarely, if ever, tip the balance the other way: Le, at para. 142; R. v. Lafrance, 2022 SCC 32, at para. 90. In my final assessment, the combined force of the first two lines of inquiry in this case outweighs the third factor, and the balance therefore demands the exclusion of the firearm: Beaver at para. 134.
Charter Section 24(1)
[163] Due to my conclusion under section 24(2), I decline to address Mr. Paradkar’s alternative written submission that a stay of proceedings was an appropriate remedy.
Conclusion
[164] As the firearm and ammunition have been excluded from evidence, I find Mr. Kikiantonis not guilty of all charges.
Released: July 28, 2025
Signed: Justice Brock Jones
[^1]: I permitted the officer to provide an estimate of his location after the Crown raised public-interest privilege regarding the precise investigative techniques employed that evening: see, for example, R. v. Hernandez, 2010 BCCA 514, at para. 23.
[^2]: During final arguments, Ms. Andersen suggested the officers could have lawfully detained Mr. Kikiantonis even if they lacked the grounds to arrest him. Without deciding the matter, I note that the officers did not invoke the common law power of investigatory detention in their testimony. As stated by the British Columbia Court of Appeal in R. v. Whitaker, 2008 BCCA 174, “When the police have wrongfully arrested someone, their actions cannot be defended on the basis that they could have detained this person on some other basis. In deciding whether the police infringed Charter rights, they are to be judged on what they did, not what they could have done”: see para. 65; R. v. Sabiston, Sask. C.A., reasons of Tholl J.A. at para. 93, adopted by the Supreme Court of Canada: R. v. Sabiston, 2024 SCC 33.