Court File and Parties
COURT FILE NO.: CR-21-30000166 DATE: 20240216 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HIS MAJESTY THE KING AND: DONTAY WILLIAMS
BEFORE: VERMETTE J.
COUNSEL: Matthew Shumka, for the Crown Anthony Paas, for Dontay Williams
HEARD: January 29-30, 2024
Reasons for Judgment
Reasons for Judgment on application pursuant to sections 8 and 24(2) of the Canadian Charter of Rights and Freedoms
[1] The Applicant, Dontay Williams (“Mr. Williams”), has brought an application for an order under section 24(2) of the Canadian Charter of Rights and Freedoms (“Charter”) excluding evidence obtained through the execution of a search warrant on May 19 and 20, 2020, on a 2009 grey Ford Escape (“Ford Escape”) pursuant to a search warrant issued on May 19, 2020. The evidence that Mr. Williams seeks to exclude includes a loaded handgun and drugs found inside a hidden compartment in the Ford Escape.
[2] Mr. Williams argues that: (a) the information to obtain sworn for the search warrant did not establish reasonable grounds that evidence of a crime would be found in the Ford Escape; and (b) the search was not authorized by law as it continued after the expiration of the search warrant.
[3] While I do not accept the argument based on the alleged expiration of the search warrant, I find that the search warrant could not have issued with respect to “[a]ny weapons, including firearms, knives, ammunition, projectiles”. However, I conclude that the evidence should be admitted as its exclusion would bring the administration of justice into disrepute.
I. Background
[4] The evidence before me on this Application included:
a. The viva voce evidence of three police officers: Detective Constable (“DC”) Robert Jitta, Constable Scott Aikman and Detective Jason Hillier.
b. Exhibits, including the Crown’s Application Record which contained, among other things, the search warrant and the Information to Obtain of DC Suzie Fox-Vignarajah (“ITO”).
[5] The following is a summary of the relevant facts based on the evidence before me.
A. Shooting on May 17, 2020
[6] On May 17, 2020, Mr. Williams, his brother, Shawn Williams, Marcus Nugent and others were in an apartment in a building located on Victoria Park Avenue in Toronto (“Apartment”). An altercation occurred inside the Apartment and both Mr. Williams and Shawn Williams suffered gunshot wounds. Two 911 calls were placed in relation to this incident. Paramedics, Toronto Police and Toronto Fire Services attended at the apartment building.
[7] Mr. Williams was shot in the arm and made his way down to the building lobby with the assistance of another man. He was located in the lobby of the building as he was exiting the elevator. He was taken to the hospital by ambulance.
[8] Shawn Williams was shot in the chest. He was still in the Apartment when paramedics arrived. He was taken to the hospital by ambulance and was pronounced dead upon arrival at the hospital.
[9] Marcus Nugent was subsequently arrested for second degree murder.
[10] The Apartment is the apartment of Judith Williams, who is Marcus Nugent’s mother.
B. Search Warrant
[11] DC Fox-Vignarajah, a member of the Homicide Squad, prepared the ITO for three search warrants: one for the crime scene (i.e., the Apartment where the shooting took place), one for the vehicle that Mr. Williams drove to the location, i.e., the Ford Escape, and one for Mr Nugent’s home address. The ITO was sworn on May 19, 2020. DC Fox-Vignarajah also requested an assistance order to bring in outside agencies to provide their expertise surrounding trajectories of items. She noted the following:
This was a dynamic scene, with more than 1 firearm potentially used, and this information that can be provided will be invaluable to assist investigators, as well as will be used for evidence.
[12] Justice Porter issued the three search warrants on May 19, 2020. All three warrants were in Form 5, as permitted by section 487 of the Criminal Code, R.S.C. 1985, c. C-46. The search warrant for the Ford Escape stated:
WHEREAS it appears upon the information of DC Suzie Fox-Vignarajah #10630 that there are reasonable grounds to believe that there are in Grey Ford Escape located at 2050 Jane St at the City of Toronto, herein called the premises, certain things namely: See Appendix “A”, that are being sought as evidence in respect to the commission of an offence against the Criminal Code, namely: See Appendix “B”
THEREFORE, this is to authorize and require you, between the hours of 06:00 am to 11:59 pm on May 19, 2020 to enter into the premises and to search for the above things, and to bring them before me or some other justice to be dealt with according to law.
[13] I will refer to the period referred to in the paragraph above (i.e., “between the hours of 06:00 am to 11:59 pm on May 19, 2020”) as the “Authorization Period”.
[14] The offence set out in Appendix “B” to the search warrant is the following:
Marcus NUGENT, on the 17th day of May, 2020, in the City of Toronto, did commit the offence of Murder in the 2nd degree, against Shawn WILLIAMS, contrary to Section 235(1) of the Criminal Code of Canada.
[15] The things being sought as evidence in the Ford Escape listed in Appendix “A” to the search warrant are the following:
a. Any weapons, including firearms, knives, ammunition, projectiles
b. Any electronic devices which are capable of analyzing, creating, displaying, or transmitting electronic magnetic computer impulses or data that will directly afford evidence of the offence listed in Appendix B. (Including but not limited to GPS, infotainment system, computers, smartphones, cellular phones, modems, routers, external and internal hard drives, USB flash drives, or digital storage repository whether connected directly or remotely from a computer system within the premises). [1]
c. Any identification that includes name, pictures, addresses and dates of birth which can corroborate with the identification of the deceased, or registered owner of the motor vehicle, or any other occupant of the motor vehicle.
d. Any DNA or forensic evidence located in and around the car that can be examined to assist with the investigation such as but not limited to: fingerprints or blood.
[16] I note that the search warrants issued for the Apartment and for Mr. Nugent’s home address also had an authorization period between the hours of 06:00 am to 11:59 pm on May 19, 2020.
C. ITO
[17] The following summarizes the relevant information set out in the ITO.
[18] DC Fox-Vignarajah summarizes some personal observations that she made in the Apartment and apartment building. She saw a black magazine from a firearm in the hallway. In the Apartment, she saw a black scope that would fit on a rifle, and a large plastic magazine, which appeared to be empty “but would hold some type of rifle round.” Casings and projectiles were located at the scene and she saw a hole in a wall.
[19] The ITO notes that Mr. Williams does not have a criminal record, but that he “is currently on drug and firearm charges with Toronto Police (10 charges in total).”
[20] Relying on a report prepared by another police officer, DC Fox-Vignarajah provides some information regarding the Ford Escape in the ITO. She states that: (a) the vehicle that Mr. Williams had driven himself to the location, identified as the Ford Escape, was found parked in the fire lane of a neighbouring building; and (b) while the Ford Escape was previously registered to Mr. Williams, it is registered to his girlfriend, Annakim FFrench. She also notes that the Ford Escape had been sealed by the police and transported to 2050 Jane Street where it was securely held pending a search warrant.
[21] DC Fox-Vignarajah states that the police reviewed video footage from the apartment building, which allowed them to identify another vehicle of interest and two persons of interest. She specifies that the two persons of interest, who left the building in the vehicle of interest, had not been identified at that point in the investigation.
[22] DC Fox-Vignarajah also provides information obtained from an interview conducted by the police with Judith Williams. The information includes the following:
a. Judith Williams heard Shawn Williams and Mr. Nugent arguing. The other parties were trying to break up the fight. Judith Williams went to her bedroom and saw Shawn Williams and Mr. Williams on top of Mr. Nugent, choking him. She stepped in-between the brothers to stop it.
b. She stepped away and then heard gunshot. She saw that Shawn Williams was shot.
c. Shawn Williams then shot two rounds back towards the doorway.
d. Mr. Williams and Mr. Nugent then ran away.
e. Judith Williams called 911. As she was calling, Mr. Williams returned. He heard her talking with 911 and ran away.
f. Judith Williams does not know what happened to the gun that was fired. She stated that she only saw one gun, and that was the one in the possession of Shawn Williams.
[23] The following paragraphs are found in a section of the ITO entitled “Grounds to Believe the Items Searched for Will Afford Evidence”:
Collection of forensic evidence at the scene will lead to trace evidence of the suspects, and assist in identifying who was in [the Apartment]. Any DNA evidence will also place involved persons in [the Apartment]. By locating casings and projectiles, information can be obtained as to the firearm that was used in the offence.
Any document located with the name of Marcus NUGENT will confirm his residence. Also, within the vehicle there would be documents proving ownership, which would also confirm that Dontay WILLIAMS was in legal possession of the vehicle. There is the possibility of other identifying documents of Dontay WILLIAMS being left in the vehicle, such as government identification or banking information.
A part of a firearm was located in plain view in the apartment. It is logical to believe that there would be other firearm parts, along with ammunition to utilize in that weapon. We know a firearm was used in the offence, and it would not be unexpected to find it hidden. The apartment was extremely cluttered in many places, making it easy to quickly conceal the evidence.
Cellular phones are common items found on persons and used consistently in homes. Cellular phones are used for communication via various means. They can also send emails, take and send photographs and various other things. In such a dynamic situation such as a shooting in a confined location with numerous persons inside, there would be chaos. It is not unreasonable for such items to be dropped, or left behind by those fleeing. Or, such items could have been out of reach at the time of the incident because they were attached to a cord plugged into a wall charging. The communication located on the phone will also show the relationships with the parties involved. The communication will also confirm or deny any animosity or ongoing issues between NUGENT and WILLIAMS which could have led to any sort of retribution. If there was any pre-planning to this event, that would also be discovered.
Gaming systems were observed, and they can also be used to store, send and receive electronic communication, and afford the same evidence as cellular phones.
The victim Dontay WILLIAMS attended the apartment beside the crime scene in a motor vehicle, a Grey Ford Escape, bearing the Ontario licence plate […]. Motor vehicles often become a storage place for person’s belongings. The victim could have left a cellular phone inside, which could have evidence of communication prior to the offence. Seeing that information could lead investigators to determine a motive. There could be hand written notes to further provide evidence. There could be DNA evidence located within it
The motor vehicle was towed to a secure police facility located at 2050 Jane Street where it is being held pending judicial authorization.
The unit where the incident occurred has been sealed and is currently being guarded by uniform police officers pending judicial authorization.
In his interview the accused [Mr. Nugent] voluntarily tells investigators he attended his grandparents’ home to take his son back. There he changed his clothing, and directed them not to touch anything. This can also lead to transfer of DNA evidence which will link him to the shooting.
[24] The section of the ITO entitled “Grounds to Believe Items to Be Searched for Are at the Place to Be Searched” is very short and provides as follows:
The motor vehicle was towed to 2050 Jane Street, a secure police facility. It is being held pending judicial authorization.
The unit where the incident occurred has been sealed and is currently being guarded by uniform police officers pending judicial authorization.
The accused has advised investigators he attended his grandparents’ home to take his son back. He advised there he changed his clothing, and directed them not to touch anything.
I have reviewed the statement of Judith WILLIAMS, the tenant of [the Apartment] that states a shooting occurred. She states that she saw projectile and or fragments on her bed.
An attachment to a firearm was located in plain view in what appeared to be the child’s bedroom.
[25] DC Fox-Vignarajah concludes her ITO as follows:
Based on the information provided above, I believe that a shooting occurred at [the Apartment] which resulted in the murder of Shawn WILLIAMS. I believe that the search of the vehicle that Dontay WILLIAMS drove to the scene, the search of the location the incident occurred, and the search where the accused, Marcus NUGENTS’s clothing is located will provide essential evidence in the investigation and the ultimate arrest of the person responsible for the murder of Shawn WILLIAMS.
[26] I note that the ITO contains the following paragraph:
I respectfully request that the search warrant for the premises be endorsed for execution for a period starting from the time of approval and concluding by 11:59 pm on Monday May 18, 2020.
[27] The wrong date was included in this paragraph (i.e., May 18 instead of May 19), but, as stated above, the Authorization Period for the search warrant was between the hours of 06:00 am to 11:59 pm on May 19, 2020.
D. Execution of the search warrant
[28] DC Robert Jitta conducted the search of the Ford Escape. He is a forensic identification officer. On May 19, 2020, his shift started at 2 p.m. He was contacted about the search warrant at 2:57 p.m. He reviewed the search warrant and then arranged for the Ford Escape to be brought into the garage bay. By 3:44 p.m., the Ford Escape was in the garage bay. DC Jitta confirmed that all the seals that were put on the vehicle when it was seized were intact.
[29] At 3:55 p.m., DC Jitta called DC Fox-Vignarajah to ask her a few questions regarding the search warrant. Among other things, because firearms were among the items to be searched for in the Ford Escape, DC Jitta asked DC Fox-Vignarajah whether she wanted a search to be conducted by Police Dog Services (“PDS”). Some dogs – “gun dogs” – are trained to search firearms by scent. DC Fox-Vignarajah indicated that a dog search should be conducted.
[30] DC Jitta first dealt with the exterior of the Ford Escape, including taking photographs and dusting the vehicle for fingerprints. At 6:52 p.m., he obtained the keys of the Ford Escape, which was locked. At 7:10 p.m., he opened the car. He took photographs and then started the process of searching the vehicle for items of interest and seizing various items. Another officer, DC Piccolo, came to assist DC Jitta with the dusting and fingerprinting of the interior of the vehicle at 9:25 p.m.
[31] DC Jitta completed his forensic work at approximately 1:20 a.m. on May 20, 2020. At that time, he had seized 29 items.
[32] Between 11 p.m. and midnight, after seizing the last item (item 29), DC Jitta called PDS, but there was no answer. DC Jitta’s evidence was that a police dog would only go through the vehicle after he was done with the evidence inside the vehicle in order to ensure that the scene was not contaminated by the dog.
[33] DC Jitta spoke with someone from PDS after midnight and was advised that no one was available. As a result, DC Jitta resealed the Ford Escape at approximately 12:30 a.m. The vehicle remained in the garage bay.
[34] DC Jitta testified that his understanding was that the Authorization Period in the search warrant was the window to start the search and the search did not have to be completed within the Authorization Period.
[35] At 2:43 a.m. on May 20, 2020, DC Jitta sent an e-mail to members of the Homicide Squad to advise that he had completed the search of the Ford Escape and that he had seized 29 items and swabbed drinking bottles. He stated that DC Piccolo had printed the interior of the vehicle and obtained a print on the interior of the driver’s side rear window. DC Jitta also stated the following:
PDS was unable to complete the vehicle search at this time. Once that is complete, is the infotainment system going to be downloaded? The warrant seemed to indicate this.
I have asked that the vehicle be sealed and held until we know if that is going to happen.
[36] In response to DC Jitta’s e-mail, Detective Hillier sent an e-mail later on May 20, 2020, and he also had a telephone conversation with DC Jitta on May 20, 2020, shortly after 1:30 p.m. Detective Hillier asked DC Jitta to have the Ford Escape searched by PDS, but stated that the infotainment information was not needed. Detective Hillier also told DC Jitta that he could return the items that had been seized already since they had been documented.
[37] At 1:51 p.m. on May 20, 2020, DC Jitta contacted PDS to arrange for the search of the vehicle. At 4:16 p.m., DC Jitta was advised that Constable Aikman would come. Constable Aikman arrived at 5:51 p.m. He had with him the two dogs for which he is the handler. One of them, Karma, was trained as a “gun dog”.
[38] Constable Aikman’s evidence was that there were 28 officers and 37 dogs at PDS, and only a certain number of the dogs are trained as “gun dogs”. There are typically three officers who work during one shift, sometimes less because of holidays or other reasons.
[39] Upon his arrival, Constable Aikman looked at the search warrant. DC Jitta broke the seals and Constable Aikman did a safety check in the Ford Escape to ensure that there was nothing unsafe for the dog. At 6:03 p.m., Karma was deployed. After she smelled around the exterior of the car, Constable Aikman opened the driver’s door and she went inside the Ford Escape.
[40] Karma showed interest in two areas in the vehicle. One of them was the vent on the front passenger side. Constable Aikman pried open the vent, looked with a flashlight and saw a grey plastic bag. This was at approximately 6:16 p.m. Constable Aikman subsequently removed the front panel. DC Jitta took photographs documenting the process. A secret compartment was found which contained, among other things, a loaded firearm and drugs. DC Jitta seized the additional items that were found in the secret compartment. His evidence was that it was the first time that he saw a compartment like that. The evidence of both DC Jitta and Constable Aikman was that they would not have found the hidden compartment without Karma.
[41] DC Jitta sent the complete list of items seized to the Homicide Squad shortly after midnight on May 21, 2020.
II. Discussion
[42] I first discuss whether section 8 of the Charter was infringed. I then turn to the analysis under section 24(2).
A. Section 8 Analysis – Whether the search warrant could have issued
1. General Principles
[43] When reviewing a warrant, the question is not whether the reviewing justice would have issued the warrant, but whether the issuing justice could have done so. The test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued. The reviewing court is to consider whether there was sufficient credible and reliable evidence to permit the issuing justice to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place. See R. v. Kalonji, 2022 ONCA 415 at para. 19 (“Kalonji”) and R. v. Morelli, 2010 SCC 8 at para. 40.
[44] In applying this test, the reviewing judge is required to adopt a common-sense and holistic approach, and take into account that authorizing justices may draw reasonable inferences from the evidence in the information to obtain. Thus, reasonable inferences can be relied upon in the absence of direct evidence. See Kalonji at para. 25, R. v. Vu, 2013 SCC 60 at para. 16 and R. v. Herta, 2018 ONCA 780 at para. 20 (“Herta”).
[45] The “reasonable grounds to believe” standard does not require proof on the balance of probabilities. This standard is one of credibly-based probability. Credibly-based probability exceeds suspicion, but falls short of a balance of probabilities. The authorizing justice has to make their decision about whether to issue the warrant from the evidence included in the information to obtain as a whole, approaching the assessment on a common-sense, practical and non-technical basis. See R. v. Sadikov, 2014 ONCA 72 at paras. 81-82 and Herta at para. 20.
2. Positions of the Parties
[46] Mr. Williams’ position is that the search warrant should not have issued because the ITO did not establish reasonable grounds that evidence of a crime would be found in the vehicle. Mr. Williams submits that the ITO is based on speculation and does not amount to credibly-based probability.
[47] The Crown’s position is that there were no breaches of Mr. Williams’ section 8 Charter rights. The Crown submits that a common-sense assessment of the content of the ITO leads to the conclusion that the issuing justice could have issued the warrant. The Crown argues that there was a sufficient foundation to meet the standard of reasonable and probable grounds to believe that an offence had been committed and that there was evidence to be found at the place of the search, i.e., the Ford Escape.
[48] The Crown notes that there is no question that there were reasonable grounds to believe that a shooting occurred inside the Apartment and that the offence of murder was committed. The Crown submits that: (a) it was reasonable to believe that the contents of the vehicle believed to be operated by Mr. Williams would afford evidence germane to the shooting; and (b) this was properly articulated by DC Fox-Vignarajah when she articulated the common-sense conclusion that motor vehicles often become storage places for a person’s belongings, such as a cellular phone or written documents that could shed light on the context and narrative of the shooting. The Crown states that Mr. Williams was at the heart of a shooting, and that the vehicle reasonably believed to be his stood to contain relevant evidence about the shooting itself and about the other identified and non-identified parties. According to the Crown, the investigatory significance of firearms and DNA/forensic evidence is obvious in the circumstances, and a readily available, common-sense conclusion.
3. Analysis
[49] In my view, the police had reasonable grounds to search for some of the items listed in the search warrant. I find that based on the evidence in the ITO and reasonable inferences from such evidence, the issuing justice could have issued the search warrant for at least some of the items included in Appendix “A”. Among other things, the issuing justice could have made common-sense inferences that Mr. Williams owned a cell phone and/or other electronic devices, that the cell phone and/or other devices would contain communications relevant to the offence, and that there was a credibly-based probability that such devices would be found in the vehicle driven by Mr. Williams because motor vehicles often become storage places for a person’s belongings. See, e.g., R. v. T.I., 2021 ONSC 2722 at paras. 22-24.
[50] However, for the reasons set out below, it is unnecessary to do a detailed analysis of whether there were reasonable grounds with respect to each of the items listed in Appendix “A”.
[51] The evidence of both DC Jitta and Constable Aikman was that they would not have been able to locate the hidden compartment which contained the firearm and drugs without the help of Karma. The only basis for having Karma search the vehicle was that Karma is a “gun dog” and the search warrant authorized a search for “[a]ny weapons, including firearms, knives, ammunition, projectiles”.
[52] The fact that the search warrant may have been validly issued with respect to some items is not determinative because the evidence that is the subject matter of the charges against Mr. Williams (firearm and drugs) would not have been found without a gun dog. Thus, the review of the warrant has to be focused on the authorization to search for “[a]ny weapons, including firearms, knives, ammunition, projectiles” specifically. As a result, the question on this Application is whether the issuing justice could have found that the content of the ITO and the reasonable inferences that could be made from it gave rise to a credibly-based probability that Mr. Williams had “[a]ny weapons, including firearms, knives, ammunition, projectiles” in the Ford Escape. See Herta at para. 21.
[53] I find that the answer to this question is no, based on the following:
a. There is no evidence in the ITO that Mr. Williams was seen with a firearm, a knife, ammunition or projectiles on May 17, 2020, shortly before or shortly thereafter.
b. There is no suggestion anywhere in the ITO that Mr. Williams may have fired a gun in the Apartment. Further, the sequence of events described by Judith Williams does not allow for the drawing of a reasonable inference that Mr. Williams was one of the shooters in the Apartment. Judith Williams said that she saw both Shawn William and Mr. Williams on top of Mr. Nugent, choking him. She stepped in-between the brothers to stop it, then stepped away and heard a gunshot. She saw that Shawn Williams had been shot. She then saw Shawn Williams fire a gun.
c. At the time the search warrant was issued, Mr. Nugent was believed to be the one who had shot Shawn Williams as he was arrested for the murder of Shawn Williams and this offence is the only offence listed in the search warrant. The other shooter was Shawn Williams. There is no mention of a third person using a gun in the Apartment.
d. There is no evidence in the ITO that Shawn Williams, Mr. Nugent or anyone else were in the Ford Escape with Mr. Williams when he arrived at the apartment building on May 17, 2020. In fact, there is no evidence that, aside from Mr. Williams, anyone in the Apartment was in the Ford Escape at any time.
e. There is no evidence in the ITO that Mr. Williams returned to the Ford Escape after the shooting. In fact, the evidence is to the contrary as the ITO states that Mr. Williams “was located in the front lobby of the building, as he was exiting the elevator.” [Emphasis added.]
f. In the section of the ITO entitled “Grounds to Believe the Items Searched for Will Afford Evidence” (reproduced in para. 23 above), the mention of “casings” and “projectiles” in paragraph 48 clearly refers to the Apartment, not the Ford Escape. The mention of firearm parts in paragraph 50 of the ITO also refers to the Apartment, not the Ford Escape. The only items referred to in relation to Mr. Williams and/or the Ford Escape are: documents proving ownership of the vehicle (para. 49), government identification or banking information (para. 49), cellular phones (paras. 51 and 53), handwritten notes (para. 53), and DNA (para. 53).
g. While paragraph 53 of the ITO states that “[m]otor vehicles often become a storage place for [a] person’s belongings”, there is no evidence or suggestion that Mr. Williams could have had “[a]ny weapons, including firearms, knives, ammunition, projectiles” as part of his belongings.
h. In the section of the ITO entitled “Ground to Believe Items to Be Searched for Are at the Place to Be Searched” (reproduced in paragraph 24 above), the mention of “projectile” and “fragments” in paragraph 60 refers to the Apartment, not the Ford Escape. The mention of an “attachment to a firearm” also refers to the Apartment, not the Ford Escape. The only reference to the Ford Escape in that section is that it was towed to a secure police facility and was being held pending judicial authorization.
[54] In the absence of any evidence that: (a) Mr. Williams was connected to “[a]ny weapons, including firearms, knives, ammunition, projectiles” on the day of the shooting, shortly before or shortly thereafter; (b) Mr. Williams returned to the Ford Escape after the shooting; or (c) any of the other persons present in the Apartment were at any time in the Ford Escape, there could be no reasonable grounds to believe that there would be in the Ford Escape “[a]ny weapons, including firearms, knives, ammunition, projectiles” in respect of the offence of the murder of Shawn Williams. I also find that it could not reasonably be inferred from the evidence in the ITO that such items would be located in the Ford Escape. This is not a situation where it could be reasonably inferred that a person who possesses a weapon may take it to their car or their residence (see, e.g., Kalonji at paras. 20-22) because there is no evidence linking Mr. Williams to any weapon. I reject the Crown’s argument that the fact that Mr. Williams was present during a shooting automatically provides reasonable grounds to search his vehicle. The fact that a person was present during a shooting does not lead to a credibly-based probability that there are “[a]ny weapons, including firearms, knives, ammunition, projectiles” in the person’s vehicle.
[55] In light of the foregoing, I conclude that there was insufficient evidence to permit the issuing justice to find reasonable and probable grounds to believe that “[a]ny weapons, including firearms, knives, ammunition, projectiles” with respect to the offence of the murder of Shawn Williams would be found in the Ford Escape. Consequently, the search conducted by the “gun dog” breached Mr. Williams’ section 8 rights.
[56] I now turn to Mr. Williams’ second ground under section 8.
B. Section 8 Analysis – Whether the Search Occurred after the Warrant had Expired
1. Positions of the Parties
[57] Mr. Williams submits that the search of the Ford Escape occurred after the expiration of the warrant and, therefore, it was not authorized by law. He notes that Constable Aikman conducted a search of the Ford Escape at approximately 6 p.m. on May 20, 2020, i.e., approximately 18 hours after the expiry of the warrant. According to Mr. Williams, there is nothing in the ITO that creates any suggestion that the search warrant was meant to continue beyond 11:59 p.m. on May 19, 2020. Mr. Williams states that the cases relied upon by the Crown on this issue should be distinguished as they deal with premises, not vehicles, and the search of a vehicle is less complex than the search of premises.
[58] The Crown notes that the search of the Ford Escape commenced within the timeframe stipulated in the warrant and that nothing in the warrant specified when the execution of the warrant had to conclude. The Crown submits that the continuation of the search into the following day and the consequential discovery of the firearm and drugs did not amount to a breach of section 8 because the law in Ontario is that once the police enter premises within the specified timeframe, the warrant remains operative until the police complete their search and leave the premises. The Crown argues that the short delay in the completion of the search was reasonable in the circumstances given that it resulted from awaiting the arrival of the police service dog and the handler. The Crown states that Mr. Williams suffered no inconvenience or additional interference of his rights as a result.
2. Analysis
[59] The Crown relies on a series of cases that ultimately rely on the decision of the Court of Appeal in R. v. Woodall, [1993] O.J. No. 4001 (C.A.) (“Woodall”). In the decision of first instance (R. v. Woodall, [1991] O.J. No. 3563 (Gen. Div.)), Higgins J. held that entry was required within the time period specified in the warrant to prevent a search warrant from lapsing. He found that this was done in that case and that the warrant remained operative until the police left the premises with the seized articles two days later: see para. 61. His decision was upheld by the Court of Appeal. Dubin C.J.O. stated the following (see Woodall at para. 2):
The police were required by the terms of the warrant to enter the premises before 9:00 P.M. They did so. The warrant did not require that the search be completed before 9:00 P.M. In our view, the failure to complete the search by 9:00 P.M. does not invalidate the warrant. It was not suggested that the manner in which the warrant was executed was otherwise unreasonable.
[60] The principle set out in Woodall has been followed in subsequent cases: see, e.g., R. v. Thomas, 2013 ONSC 8032 at paras. 22-32; R. v. Brown, 2010 ONSC 2280 at paras. 17-24; R. v. Rafferty, 2012 ONSC 703 at para. 28 (“Rafferty”); and R. v. Merritt, 2017 ONSC 1508 at paras. 37-43 (“Merritt”). In Rafferty, the court stated that “[t]he law is clear that once the police enter the premises within the time frame specified in the search warrant, as they did here, the warrant remains operative until the police complete their search and finally leave the premises: [reference to Woodall].” It is specifically noted in Rafferty and Merritt that the warrants in issue were in Form 5, like the warrants in the case at bar: see Rafferty at para. 20 and Merritt at para. 42.
[61] Mr. Williams relies on a number of cases that all deal with the search of electronic devices. None of these cases refer to Woodall or the cases referred to above. In my view, the cases relied upon by Mr. Williams can all be distinguished. I discuss below the main cases relied upon by Mr. Williams.
[62] R. v. Little (“Little”) can be distinguished on the basis that the search did not begin during the timeframe specified in the warrant. In that case, the police sought judicial authorization to search a computer that was lawfully in their possession. However, the search of the computer for “communications” only began two days after the warrant expired when the police performed the computer imaging and indexing. See Little at paras. 154-157. Further, while the exact wording of the search warrant in issue in Little is not included in the decision, Little has been interpreted in subsequent case law as a case where the justice of the peace had imposed a time limitation to complete the search of the computer: see Little at para. 161, R. v. Nurse, 2014 ONSC 1779 at para. 51 (aff’d by 2019 ONCA 260) (“Nurse”) and R. v. Viscomi, 2016 ONSC 5423 at paras. 108-109 (“Viscomi”). There is no time limitation in the search warrant in the present case.
[63] In Nurse, the language used in the search warrant with respect to the authorization period was the same as in this case (see para. 44). Coroza J. (as he then was) stated that the commencement of the search began within the hours set out in the warrant and the fact that the subsequent forensic analysis of the thing seized did not end within the timeframe specified in the warrant did not constitute a breach of section 8: see Nurse at paras. 42-45, 52. This case does not support Mr. Williams’ position.
[64] In Viscomi, the police obtained a search warrant for Mr. Viscomi’s apartment which authorized the search and seizure of certain items, including computer equipment. McCombs J. found that the time limitations specified in the search warrant referred to the authorization to enter Mr. Viscomi’s apartment, and that they did not extend to the search of the computer equipment itself: see Viscomi at paras. 106-107, 109. This case also does not support Mr. Williams’ position.
[65] The language used in the search warrant in this case is the standard language in Form 5. In my view, there is no basis to distinguish the search warrant in the case at bar from the search warrants in other cases where it was found that the time limitations specified in the search warrant refer to the authorization to enter the premises and start the search, and do not impose a deadline for the completion of the search. I am unable to find that the issuing justice explicitly gave the police an end time for their search. This is especially the case since the warrant was applied for and issued on May 19, 2020, [2] and the Authorization Period expired on the same day. There was no reason for tight time constraints.
[66] Nothing in the ITO changes this conclusion. However, DC Fox-Vignarajah’s request in the ITO that “the search warrant for the premises be endorsed for execution for a period starting from the time of approval and concluding by 11:59 pm on Monday May 18, 2020 [sic]” requires some comment. While a possible interpretation of this passage would be that the execution of the search warrant had to be completed by 11:59 p.m. on May 19, 2020, I find that this language refers instead to the period during which the execution of the search warrant had to start. I note that: (a) this passage of the ITO also applies to the search of the Apartment; (b) the ITO contemplates the collection of forensic evidence in the Apartment where there were a number of suspects; and (c) the ITO states that “the apartment was extremely cluttered in many places, making it easy to quickly conceal the evidence”. In these circumstances – including the fact that the police did not know in advance when exactly during the day the search warrant would be issued on May 19, 2020 – it could not have been the police’s intention that it could only have a short period of time to search the Apartment on May 19, 2020. The same would apply to the Ford Escape because the passage in issue applied to all three locations.
[67] I do not accept defence counsel’s argument that the principle in Woodall does not apply to the search of vehicles, among other things because searching a vehicle should take less time than a residence. The search of a vehicle is more similar to the search of a residence than the search of electronic devices (which are the subject matter of the cases relied upon by Mr. Williams). Both are physical places. Further, the search of the Ford Escape in this case shows that searching a vehicle can take numerous hours, even without a secondary search like a dog search. If a secondary search conducted by specialized officers is required, this adds to the time needed to complete the search, especially if there are availability issues. Thus, I see no principled reason why different rules would apply to the interpretation of the authorization period for the execution of search warrants for vehicles. This does not mean that there are no time constraints because, as pointed out in Woodall, the manner in which the search is carried out must be reasonable. See also R. v. Stillman, [1987] 1 S.C.R. 607 at para. 25 and Merritt at para. 50.
[68] There are no grounds in this case to conclude that the manner in which the search was carried out was not reasonable. DC Jitta carried out the search in a careful manner, without any delay of note. He requested the assistance of another officer, DC Piccolo, in order to speed up the process. I accept DC Jitta’s evidence that the dog search could not have taken place before he was done with the evidence inside the vehicle. Given the limited resources available in the PDS and availability issues, the dog search could not occur on May 19, 2020. It took place shortly thereafter, when a gun dog and its handler were available on May 20, 2020. I agree with the Crown that the circumstances of this case are similar to the circumstances in Merritt, where the execution of the search was found to be reasonable: see Merritt at paras. 43, 46-47, 50. In light of all the circumstances, including the search warrant and the conduct of the police, I conclude that the search was carried out in a reasonable manner.
C. Section 24(2) Analysis
1. General Applicable Principles
[69] When faced with an application for exclusion under section 24(2) of the Charter, a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (a) the seriousness of the Charter-infringing state conduct, (b) the impact of the breach on the Charter-protected interests of the accused, and (c) society’s interest in the adjudication of the case on its merits. The court’s role on a section 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. The balancing mandated by section 24(2) is qualitative in nature and no overarching rule governs how the balance is to be struck. See R. v. Grant, 2009 SCC 32 at paras. 71, 86, 140 (“Grant”). In all cases, the court must assess the long-term repute of the administration of justice: R. v. Côté, 2011 SCC 46 at para. 48.
[70] Under the first factor – the seriousness of the Charter-infringing state conduct, the court must assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law. See Grant at para. 72.
[71] The court’s task in considering the seriousness of Charter-infringing state conduct is to situate that conduct on a scale of culpability. At one end of the scale is conduct that constitutes a wilful or reckless disregard of Charter rights, a systemic pattern of Charter-infringing conduct, or a major departure from Charter standards. At the other end of the scale are less serious Charter breaches, including breaches that are inadvertent, technical, or minor or those that reflect an understandable mistake. Admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law, but admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute. Good faith on the part of the police will also reduce the need for the court to disassociate itself from the police conduct, but ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith. See Grant at paras. 74, 75, R. v. Paterson, 2017 SCC 15 at para. 43, and R. v. Beaver, 2022 SCC 54 at para. 120.
[72] The second factor – the impact of the breach on the Charter-protected interests of the accused – calls for the identification of the interests protected by the relevant Charter right and an evaluation of the extent to which the breach actually undermined the interests protected by the right. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute. See Grant at para. 76 and Beaver at para. 123. A reduced expectation of privacy does not mean that an unjustified search is permissible. The impact of even a minimally intrusive search must be weighed against the absence of any reasonable basis for justification. See R. v. Harflett, 2016 ONCA 248 at paras. 47-48 (“Harflett”).
[73] The third factor – society’s interest in the adjudication of the case on its merits – asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society’s collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law. The reliability of the evidence and the importance of the evidence to the prosecution’s case are factors to be considered in this line of inquiry. While the seriousness of the alleged offence may also be a valid consideration, it has the potential to cut both ways. See Grant at paras. 79, 81, 83, 84.
[74] The third line of inquiry becomes particularly important where one, but not both, of the first two inquiries pull towards the exclusion of the evidence. Where the first and second inquiries, taken together, make a strong case for exclusion, the third inquiry will seldom if ever tip the balance in favour of admissibility. Conversely, if the first two inquiries together reveal weaker support for exclusion of the evidence, the third inquiry will most often confirm that the administration of justice would not be brought into disrepute by admitting the evidence. See R. v. McGuffie, 2016 ONCA 365 at para. 63 and R. v. Le, 2019 SCC 34 at paras. 141-142 (“Le”).
2. Positions of the Parties
[75] Mr. Williams submits that the police conduct was at the serious end of the spectrum of Charter-infringing conduct because it was deliberate conduct that ignored the limits of a judicial authorization. Mr. Williams argues that it was a willful disregard of a court order, and that it went beyond negligence or willful blindness.
[76] While Mr. Williams acknowledges that there is a lesser degree of privacy in a vehicle, he states that the search of a vehicle remains an intrusion into the life or world of the owner or operator. He argues that any intrusion by way of an unreasonable search of the vehicle would have had an impact on his Charter-protected rights. He submits that the serious Charter-infringing conduct combined with its impact on Mr. Williams strongly favour exclusion of the evidence,
[77] Mr. Williams concedes that the evidence found is reliable evidence and crucial to the case against him. However, he submits that a proper balancing of the relevant factors should lead to the exclusion of the evidence.
[78] In the event the Court finds that Mr. Williams’ section 8 rights have been breached, the Crown argues that the evidence should nonetheless be admitted and that the admission of the firearm and drugs into evidence at Mr. Williams’ trial would not bring the administration of justice into disrepute. The Crown submits that the Charter-infringing state conduct falls on the less serious end of the spectrum. The Crown states that there was no deliberate attempt to disregard Mr. Williams’ rights and if the police fell short of the reasonable and probable grounds standards with regards to the ITO to search his vehicle, they did not miss by much. The Crown points out that the police acted in good faith by seeking a warrant from an independent judicial officer. It also points out that if there was a delay with respect to the execution of the search warrant, it was not for a lengthy period of time, and there is no indication that this case formed part of a systemic problem.
[79] With respect to the second line of inquiry under section 24(2), the Crown acknowledges that there was a significant impact on Mr. Williams’ Charter-protected interests if this Court finds breaches based on lack of reasonable and probable grounds to search his vehicle. If, however, this Court finds breaches relating only to the timing of the execution of the warrant, the Crown submits that this had no meaningful impact on Mr. Williams. The Crown states that the warrant had properly been issued, and the evidence was readily discoverable.
[80] The Crown argues that the third factor under the section 24(2) analysis weighs strongly in favour of admission of the evidence as there is significant societal interest in adjudicating Mr. Williams’ serious charges. The Crown states that society’s interest in an adjudication on the merits is greater where the offence involves the safety of the community. It points out that the evidence seized includes illegal drugs and an illegal loaded handgun. The Crown’s position is that the cumulative weight of the first two lines of inquiry is overwhelmed by a compelling public interest in admitting the reliable evidence which is crucial to the prosecution’s case. Its view is that the truth-seeking function of the criminal trial process would be better served by admitting the evidence.
3. Analysis
a. Seriousness of the Charter-Infringing Conduct
[81] I agree with the Crown that the Charter-infringing state conduct falls on the less serious end of the spectrum. The police acted in good faith by seeking a warrant from an independent judicial officer, the ITO was not misleading and the officers who carried out the search believed that they were acting pursuant to a valid search warrant. There is no indication of a systemic problem and there was no deliberate attempt to disregard Mr. Williams’ right. This factor favours the admission of the evidence. See R. v. Rocha, 2012 ONCA 707 at para. 28.
b. Impact of the Breach on the Charter-Protected Interests of the Applicant
[82] The case law has consistently held that drivers have a reduced expectation of privacy in their vehicles. However, a reduced expectation of privacy does not mean that an unjustified search is permissible. See Harflett at para. 47.
[83] While the Ford Escape was not registered to Mr. Williams, I accept that he had Charter-protected interests in the vehicle and that an unauthorized search of the vehicle would have a significant impact on such interests. However, this impact is reduced by the fact that while the police may not have had reasonable grounds to search for weapons in the Ford Escape, the police did have reasonable grounds to search for other items listed in the search warrant, such as cellular phones and electronic devices, and the issuing justice could have issued the search warrant for at least some of the items included in Appendix “A”. Given this, the search of the vehicle until the involvement of Karma would have taken place in any event and did not have an impact on Mr. Williams’ Charter-protected interests. The impact of an unauthorized dog search taking place in the vehicle after a legal search took place is not as significant as a fully unauthorized search of the vehicle. However, the evidence that Mr. Williams is seeking to exclude would not have been discoverable in the absence of a search performed by a “gun dog”.
[84] In light of the foregoing, I conclude that this second factor favours the exclusion of the evidence, but not significantly. This is because there were reasonable grounds to conduct a search in the vehicle and, therefore, the impact of the search of the vehicle on Mr. Williams’ reasonable expectation of privacy in the vehicle was in large part justified, except for the dog search.
c. Society’s Interest in the Adjudication of the Case on its Merits
[85] I agree with the Crown that society’s interest in adjudication on the merits is high. The evidence found in the Ford Escape is reliable and critical to the Crown’s case. As a result of the evidence that was found, Mr. Williams is facing serious charges, and the nature of these charges raises very significant societal concerns. This factor favours the admission of the evidence.
d. Conclusion under Section 24(2) of the Charter
[86] Balancing all the factors, I conclude that the admission of the evidence found in the Ford Escape would not bring the administration of justice into disrepute. The seriousness of the state conduct is at the low end of the spectrum. The impact of the breach on Mr. Williams’ Charter-protected interest and his reasonable expectation of privacy in the Ford Escape is attenuated by the fact that the search warrant could have issued for at least some items listed in the search warrant and, therefore, part of the search of the vehicle was authorized. Given that the first two inquiries together reveal weaker support for exclusion of the evidence, the third inquiry in this case tips the balance in favour of admissibility and confirms that the administration of justice would not be brought into disrepute by admitting the evidence: see Le at para. 142.
III. Conclusion
[87] The Application is dismissed.
Vermette J. Date: February 16, 2024
[1] The search warrant contained a list of terms and condition applicable to the search of any electronic devices located within the Ford Escape.
[2] There is no evidence before me as to the exact time at which the search warrant was issued.