R. v. Grant and Scott, 2025 ONSC 3513

COURT FILE NO.: CR-24-20000120 DATE: 20250612 SUPERIOR COURT OF JUSTICE - ONTARIO RE: His Majesty the King AND: Jermaine Grant and Sade Scott BEFORE: J.T. Akbarali J. COUNSEL: Yoni Rahamim , for the Crown Ariel Herscovitch , for the Defendant Jermaine Grant Stefan Peters , for the Defendant Sade Scott HEARD: May 12, 13, 14, 15, 16 and 21, 2025 ENDORSEMENT Overview [ 1 ] The defendants are charged with numerous offences related to their alleged possession of prohibited firearms, ammunition, prohibited devices and controlled substances. [ 2 ] The defendants bring a Garofoli application seeking an order pursuant to s. 24(2) of the Charter excluding all evidence seized during the search of a residence at 301-2460 Weston Road, Toronto, and during the arrest and search of the defendant Mr. Grant on March 10-11, 2023 due to alleged breaches of the defendants’ rights under ss. 8 and 9 of the Charter . The defendants bring a supplementary Garofoli application for an order excluding the results of a search of the defendant Mr. Grant’s phone pursuant to a warrant. The Crown brings a Step 6 cross-application. [ 3 ] The Information to Obtain filed in support of the warrant to search 301-2460 Weston Road (the “residence ITO”) included information provided by a confidential informant (“CI”). During the hearing of these pre-trial motions, the redactions from the residence ITO and judicial summaries relating to those redactions were finalized. I granted leave to the defendants to cross-examine the affiant of the residence ITO (Detective Constable Ellis), along with one of the sub-affiants (Detective Taylor). The Crown led additional viva voce evidence from Detective Taylor, and two other police officers, Detective Tavares and Detective Constable Priebe. [ 4 ] These reasons address the Crown’s Step 6 cross-application and the defendants’ application and supplementary application. Brief Background [ 5 ] Prior to his arrest and the searches that are challenged in the defendants’ applications, the defendant, Mr. Grant, was the target of three separate police investigations. The Little Hut Investigation [ 6 ] Mr. Grant was a person of interest into an investigation concerning possession of a prohibited firearm at the Little Hut Bar and Grill. On November 6, 2022, a female complainant telephoned police and reported that a number of people in the bar were doing drugs and there was a gun. The complainant was uncooperative when police arrived and would not identify the people she called about other than to indicate they were all Black. [ 7 ] Officers subsequently located a firearm in a toilet tank in the women’s bathroom at the Little Hut bar. A review of video surveillance showed Mr. Grant, who is Black, entering the women’s bathroom with his hand in his pocket, and emerging about ten seconds later. There is no evidence before me about how many others may have entered the women’s bathroom or about the time period in respect of which the police reviewed the CCTV footage. No forensic evidence linking the gun to Mr. Grant was found. The CI Investigation [ 8 ] Mr. Grant was the target of an investigation into possession of a prohibited firearm based on information obtained from a CI. This information was included in the residence ITO. Based on that ITO, the search of 301-2460 Weston Road was authorized. [ 9 ] 301-2460 Weston Road was the home of the defendant Ms. Scott, and her young son. Police believed that Mr. Grant and Ms. Scott were romantically involved, and that Mr. Grant was connected to Ms. Scott’s unit. Whether there were reasonable grounds to believe there was a nexus between Ms. Scott’s unit and Mr. Grant is in dispute on these applications. [ 10 ] As part of the CI investigation, Mr. Grant was surveilled by police and observed on two occasions getting into a silver Dodge Charger that was damaged on the back right passenger side. Omar Matthews was the driver and owner of the Charger. The Discharge Firearm Investigation [ 11 ] Mr. Grant was a person of interest in an investigation into the discharge of a firearm on March 4, 2023 at 1003-682 Warden Avenue. Police received an anonymous call about the discharge of a firearm at 11:05 pm and attended the address in question. They found firearm cartridges in front of unit 1003 and three bullet-sized holes in the front door of the unit. [ 12 ] Surveillance video revealed two persons of interest attending the 10 th floor just prior to the shooting and leaving immediately after. The persons of interest were captured on video arriving in a car, parking across the street from 682 Warden Avenue, and then departing in the same car. [ 13 ] Police issued a bulletin to assist with identifying the persons of interest and the vehicle of interest. A member of the Gun & Gang Task Force suspected that the vehicle of interest matched a vehicle associated with the CI Investigation, that is, the silver Dodge Charger with damage to the rear passenger side. The vehicle which the persons of interest in the discharge firearm investigation arrived in prior to the shooting is similar to a silver Dodge Charger, but the video is not clear enough to reveal whether it is a silver, whether it is a Dodge Charger, or whether there is damage to the back passenger side of the vehicle. The Arrest of Mr. Grant [ 14 ] On March 10, 2023, Mr. Grant was observed leaving 2460 Weston Road and getting into the silver Dodge Charger owned and driven by Mr. Matthews. He was followed by police to a barbershop. After he and Mr. Matthews left the barbershop in the Charger, police called a takedown, and a number of unmarked police cars boxed in the Charger. Mr. Grant and Mr. Omar were removed from the Charger. Mr. Grant was arrested without a warrant in connection with the Little Hut investigation and the CI investigation. [ 15 ] In a search incident to arrest, police located a cell phone on Mr. Grant, and a key and fob with no markings on them indicating where they came from. [ 16 ] Police officers attended 2460 Weston Road, about a ten-minute drive from the scene of the arrest, to freeze unit 301 while they secured a search warrant. Detective Tavares put the key seized from Mr. Grant into the lock of unit 301 and confirmed it fit, although the defendants dispute whether he confirmed it would operate the lock. Police knocked on the door at 21:48. Ms. Scott answered the door. Police explained to Ms. Scott that they were there to freeze her unit pending the issuance of a search warrant, and that she could not remain inside. [ 17 ] Police permitted Ms. Scott to remove some things and take her son elsewhere for the night. While she gathered some things, two officers, including DC Priebe, accompanied her in the unit to ensure she did not remove any contraband. Once she left, the officers waited in the hallway outside the unit. After Ms. Scott settled her son elsewhere, she returned to the unit. Police permitted her to enter three additional times: to take her dogs (one at a time) out of their crates for a walk, and to use the bathroom. On these occasions, police crossed the threshold of the apartment to keep an eye on Ms. Scott. [ 18 ] A telewarrant was obtained permitting nighttime execution of the warrant. Police commenced the search sometime after 2:20 a.m. As a result of the search, police located a loaded prohibited semi-automatic firearm, another prohibited semi-automatic handgun with readily accessible ammunition, three overcapacity cartridge magazines, 400 grams of fentanyl and 48 grams of cocaine. [ 19 ] Mr. Grant’s cellphone was turned over to investigators on the discharge firearm offence for purposes of obtaining a warrant to search it. Detective Constable Wong drafted an ITO in support of a search warrant (the “discharge firearm ITO”) and obtained a warrant. [ 20 ] DC Ellis learned that, during the search of Mr. Grant’s phone, investigators observed photos and videos relating to his team’s firearm investigation involving Mr. Grant. DC Ellis then drafted a further ITO (the “cell phone ITO”) seeking a warrant to allow police to obtain the release of data from Mr. Grant’s phone stored on the servers of the Toronto Police Service. That warrant was granted. [ 21 ] The search of Mr. Grant’s telephone revealed photographs linking Mr. Grant to the phone, to Ms. Scott, to 301-2460 Weston Road, and to the contraband found on the search of 301-2460 Weston Road. The Defence Position [ 22 ] The defendants argue that: a. The redacted residence ITO and judicial summaries are not sufficient to enable them to make adequate submissions on whether the CI’s information is credible, compelling, and corroborated, such that the Crown’s step 6 application must fail. b. The arrest of Mr. Grant based on the Little Hut investigation was not based on reasonable and probable grounds because, among other things, the video footage of Mr. Grant entering the women’s bathroom was not enough to form reasonable and probable grounds for arrest, and there is no other evidence about the video footage or any evidence about witness interviews that were apparently intended to occur having actually taken place. c. The arrest of Mr. Grant in connection with the CI investigation was not based on reasonable and probable grounds, because, among other things, the CI’s information was not adequately corroborated. d. Because Mr. Grant was not arrestable for either the Little Hut or the CI investigations, his detention was arbitrary and contrary to s. 9 of the Charter , and the resultant search incident to his arrest was contrary to s. 8 of the Charter . e. The challenge to the warrant to search 301-2460 Weston Road should succeed because the warrant was not based on reasonable and probable grounds: i. 301-2460 Weston Road was described as Mr. Grant’s residence in the ITO but his connection to the unit was not adequately corroborated; ii. Other addresses associated to Mr. Grant were not investigated; iii. The keys seized from Mr. Grant on his arrest were unlawfully seized because the arrest itself was an arbitrary detention in violation of s. 9 of the Charter ; and iv. The information about Mr. Grant’s links to the addresses in question in the ITO was missing or misleading. f. The freezing of 301-2460 Weston Road was not justified, and thus constituted a violation of s. 8 of the Charter; g. The nighttime search of the unit was not justified. h. The challenge to the warrant to search Mr. Grant’s phone should succeed. The cellphone ITO relied on the results of the search authorized by the warrant arising out of the discharge firearm ITO. The warrant for the discharge firearm search should not have been issued because there were no reasonable and probable grounds connecting Mr. Grant to the discharge firearm offence. Because the discharge firearm ITO was not supportable, the cellphone ITO must also fall. i. The state conduct that infringed the defendants’ Charter rights was serious, and had a severe impact on those rights. There is a public interest in having the charges laid in this case be tried on the merits, but there is equally a public interest in ensuring that police and state conduct is above reproach when penal stakes against the accused are high, as in this case. Exclusion of the evidence in this case is the only adequate remedy. The Crown’s Position [ 23 ] The Crown denies that the redacted residence ITO and judicial summaries are insufficient to allow the defendants to evaluate whether the preconditions for issuing the warrant were met. [ 24 ] The Crown also denies any violations of ss. 8 and 9 of the Charter based on Mr. Grant’s arrest, for which it argues there were reasonable and probable grounds based on either, the Little Hut Investigation or the CI investigation. [ 25 ] The Crown argues that the search warrants for 301-2460 Weston Avenue and Mr. Grant’s phone are presumptively valid, and there was a basis upon which the authorizing judicial officials could be satisfied that the relevant statutory preconditions existed. [ 26 ] The Crown also argues that the freezing of 301-2460 Weston Road was justified on the basis of exigent circumstances, that is, the potential loss or destruction of evidence. It also argues that the nighttime search was warranted. [ 27 ] In the alternative, the Crown argues that any Charter breaches were not serious. It agrees that if a breach is found, the impact of the breach would be significant insofar as it relates to the search of the unit and Mr. Grant’s phone. However, it argues that the admission of the evidence in this case would better serve the truth-seeking function of the criminal trial process than would the exclusion of the evidence. It argues that, even if there are breaches of the Charter , the evidence should be deemed admissible. Issue One: Step 6 – Is the redacted residence ITO and judicial summaries of the redactions sufficient to permit the defendants to challenge the warrant? [ 28 ] In R. v. Garofoli , [1990] 2 S.C.R. 1421, 1990 52 (SCC) , at para. 79 , Sopinka J., for the majority, outlined the procedure to be followed where an affidavit in support of a search warrant contains information from a CI. Among other things, it requires that, when an affidavit that has been edited to remove information that could identify a CI does not leave enough unredacted material on which the Crown can support the authorization to search, the Crown may apply to have the trial judge consider so much of the excised material as is necessary to support the authorization. [ 29 ] “The trial judge should accede to such a request only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. In this regard, a judicial summary of the excised material should be provided if it will fulfill that function”: Garofoli , at para. 79 . [ 30 ] To challenge the issuance of the warrant where the reasonable grounds for its issuance originate, at least in part, from information provided by a CI, the defence must be able to address whether the CI’s information is “compelling, credible, and substantially corroborated by independent police investigation”: R. v. Debot , [1989] 2 S.C.R. 140, at p. 1168 ; see also R. v. Crevier , 2015 ONCA 619 , at para. 84 . Each of these factors is not a separate test; rather, the totality of the circumstances must meet the standard of reasonableness. To some extent, weakness in one area may be compensated by strengths in the other two: Debot , at p. 1168. [ 31 ] The Court of Appeal for Ontario summarized the procedure to employ on a Garofoli step six procedure in Crevier , at paras. 89-90 as follows: Step six of Garofoli is an exceptional procedure, in that the trial judge sees and relies on information that has not been disclosed to the accused because of the need to protect informer privilege. This procedure arises in the pre-trial process, which does not go directly to the accused’s guilt or innocence. Yet, in many cases, the outcome of the challenge to the warrant will dictate the outcome of the trial and the accused must still be able to mount a sub-facial challenge to the warrant, as part of his or her right to make full answer and defence. The need to strike a balance between the interest of law enforcement, informer privilege, and the accused’s right to full answer and defence will result in a challenge that is less direct than it otherwise could be. Faced with this reality, trial judges must strike an appropriate balance so as to ensure the accused’s right to full answer and defence is adequately protected. This is done by preparing a carefully-crafted judicial summary and giving appropriate weight to the redacted details that were not directly challenged. With respect to the judicial summary, the trial judge must be satisfied that the summary, together with other information available to the accused, provides the accused with enough knowledge of the nature of the redactions to be able to challenge them in argument or by evidence. To the extent that the accused is not sufficiently equipped to challenge certain redactions, the trial judge must not consider them. For the redacted information the trial judge does consider, he or she will, when determining the weight to be given to that information in deciding whether the warrant could have issued, take into account that the accused could not see it and directly challenge it. In my view, step six of Garofoli must implicitly include these protections for a proper balance to be achieved. [ 32 ] The procedure envisions the defendants using the judicial summaries, the redacted ITO, the disclosure received, and any cross-examination of the affiant and evidence tendered, to mount a facial or a sub-facial attack on the warrant, both in argument and by evidence: Crevier , at paras. 72, 73, 76, 77 . [ 33 ] The defendants need not be aware of the redacted details, but only of the nature of the redacted details: Crevier , at para. 72 . [ 34 ] The Court of Appeal found that the judicial summary should provide the defendant with sufficient information to evaluate whether the preconditions for issuing the warrant were met, including providing the defendant with a meaningful basis upon which to challenge whether the affiant made full and frank disclosure regarding the reliability of the CI and his or her information: Crevier , at para. 83 . [ 35 ] The Court of Appeal, at para. 84 in Crevier , identified the following factors that may be relevant where CI information is involved: a. The source of the CI’s information (first-hand or hearsay, and if hearsay, the source of the hearsay) b. The CI’s relationship with or to the defendant and how they first came into contact; c. The length of time the CI has known the defendant and the frequency of contact between them; d. Whether the CI has previously provided information to police, and whether such information, if any, has led to arrests, seizures, or convictions; e. Whether past information provided by the CI has been proven unreliable or false; f. Whether the CI has a criminal record and if so, whether the unredacted ITO contains details of the convictions or charges or whether a copy of the criminal record was appended; g. Whether the CI has convictions for offences of dishonesty or against the administration of justice; h. The CI’s motive for speaking to police, including whether consideration was sought or arranged; i. Whether the CI was instructed on the penalties for giving false information; j. Whether descriptions provided by the CI match the accused or the target location; k. The degree of detail of the information that the CI provided to police; l. The recency or timing of the information that the informer provided to police; m. Any discrepancies between the information of one CI and another; n. Any aspects of the CI’s information that are contradicted by police investigation or otherwise detract from its credibility; o. Any errors or inaccuracies that exist in the ITO and their nature. [ 36 ] In this case, the defendants raise issues with respect to the credibility of the CI, whether the information from the CI is compelling and the corroboration of the CI’s information. [ 37 ] Whether the CI is credible may be considered having regard to the following factors, identified in R. v. Farrugia , 2012 ONCJ 830 at para. 107 : a. Has the CI previously given information to the police that proved to be reliable? How often and over what time period? In what types of cases? Have there been any instances where the CI’s information was shown to be unreliable? b. Does the CI have a criminal record, and if so, are there entries for offences of dishonesty or against the administration of justice? c. Does the CI have an interest in the outcome of the investigation? Is there any apparent motive to fabricate? Is the CI receiving any benefit in exchange for the information? [ 38 ] In my view, the information in the possession of the defence is sufficient to allow them to challenge the credibility of the CI. They are aware from the redacted ITO and judicial summary of the following: a. The motivation of the CI to provide information was disclosed to the issuing judicial official. b. The CI has no personal vendetta against Mr. Grant. c. The CI has previously provided information to the police, and has been proven reliable. Information previously provided by the CS was corroborated, and proven to be accurate. d. Elsewhere in the ITO, information was disclosed to the issuing judicial official about previous information provided to police by the CI, whether that information was corroborated, and if so, the means by which it was corroborated, and the result of the information provided. e. Whether the CI has a criminal record, and if so, the details of that record were disclosed to the issuing judicial official. f. If the CI has a criminal record, none of the convictions are for crimes of deceit. [ 39 ] Whether the information is compelling may be informed by considering factors such as the following, described in R. v. Farrugia , 2012 ONCJ 830 , at para. 105 : a. Is the CI’s information based on first-hand knowledge or is it hearsay? If hearsay, has the CI identified the original source and to what extent can that source be independently assessed as reliable? b. Is the information commonplace and thus widely known and easily ascertainable, or does the information by its nature suggest the CI has knowledge of criminal activity by the target? c. Is the information specific and precise or is it limited to conclusory allegations of criminal conduct? Has the CI provided details of a type that, from a common sense perspective, lend confidence that the information is based on more than rumour, coincidence, error, or falsehood? d. How often and over what period of time has the CI had the opportunity to acquire information about the target? e. Is the information current? [ 40 ] In my view, the defendants have sufficient information to challenge whether the information provided by the CI is compelling. They are aware of the following: a. The date on which the handler was advised by the CI about information pertaining to a male identified as “Dirty” (later identified by the CI to be Mr. Grant from a photograph) who is armed with a firearm was disclosed to the issuing judicial official. b. Firsthand information as to how the CI was aware that Dirty has a gun was disclosed to the issuing judicial official, and whether the information is specific, general or detailed was disclosed to the issuing judicial official. At least some of the information was specific. c. Other information about Dirty’s possession of a firearm was disclosed to the issuing judicial official, but it is unclear whether the information is firsthand or secondhand information. d. Details about Dirty’s community and how he engages with others in the community were disclosed to the issuing judicial official, but it is unclear whether the information is firsthand or secondhand. e. Details about the defendant Ms. Scott, identified as Dirty’s girlfriend, was disclosed to the issuing judicial official, some of which it is not clear whether it is firsthand or secondhand. Some of the information is secondhand. f. Subsequently, the CI identified Ms. Scott as Dirty’s girlfriend from a photograph. [ 41 ] When considering whether the information provided by the CI was corroborated, the following questions, set out in Farrugia , at para. 110 , are relevant: a. Have the police verified only commonplace details or innocent conduct of which almost anyone could be aware, or have they acquired information that tends to confirm behaviour with enough distinctive features to remove it from the realm of the ordinary or everyday? b. Does the information gathered by the police conform sufficiently to what one would have anticipated based on the CI’s information, such that the possibility of coincidence, mistake, or falsity is reduced to a degree that is tolerable in the context of the reasonable grounds standard? [ 42 ] The defendants point out that there are a number of redactions relating to police corroboration of information provided by the CI. They are aware of the following information: a. Specific address(es) and name(s) in relation to location(s) information provided by the CI were disclosed to the issuing judicial officer. b. Police located a female named Sade Scott, residing at 301-2460 Weston Road, and confirmed her birth date, her vehicle, and located a photograph and were able to confirm the photograph matched the description of Ms. Scott provided by the CI. c. Police confirmed the vehicle they had linked to Ms. Scott was parked at 2460 Weston Road. d. The affiant notes in the ITO that the address of 301-2460 Weston Road has no relation to Mr. Grant, and Mr. Grant and Ms. Scott have no occurrences on file together with the Toronto Police Service. e. Detective Taylor attended 2460 Weston Road on February 14, 2023 to speak with property management, who advised him that Ms. Scott is the listed occupant of Unit 301. f. Detective Taylor recorded that the property manager advised him that Ms. Scott lived in the unit with her son named Eric Terrance Grant. Detective Taylor did not see the lease for Unit 301 at that time. It appears the child’s name is actually Eric Terrance Graham Scott. g. “Staff,” whose identities Detective Taylor did not record at the time of his visit on February 14, 2023, advised that they believed that Mr. Grant, Ms. Scott, and the child reside at the unit, and that Mr. Grant is the father of the young boy. The word “believe” was omitted in the ITO. Detective Taylor did not obtain information about “staff’s” positions, how long they held them, or why they would be in a position to know where Mr. Grant resides or whether he is the child’s father. h. Detective Taylor obtained video access to CCTV footage and reviewed it for corresponding times that the fobs registered to unit 301 were used. A review of the footage between January 1 and February 7, 2023 did not reveal a single observation of Mr. Grant. i. Police conducted database checks of Mr. Grant and learned through an MTO search that the home address on Mr. Grant’s driver’s licence is an address on John Deisman Blvd. in Maple, Ontario. j. Mr. Grant was released on a then-current undertaking in connections with charges that were then-pending in Peel Region. The police were aware that the undertaking listed the same address on John Desiman Blvd. but that information was not included in the ITO. k. No surveillance was done with respect to the John Deisman Blvd. address. l. On the day of his arrest, Mr. Grant was seen leaving 2460 Weston Road, a high-rise. He was not seen leaving from any particular unit. That was the only time Mr. Grant was observed at 2460 Weston Road during surveillance. m. During the search incident to Mr. Grant’s arrest, police located a key and fob, unmarked. Detective Tavares testified that the fob opened the common door to 2460 Weston Road, and that the key fit into the lock of unit 301, and fit the lock. Detective Tavares testified he jiggled the key enough to confirm it worked the lock, but he did not unlock the door with the key. n. The ITO seeks judicial authorization to search the “dwelling-house” of Mr. Grant, although the only police investigation done did not independently confirm that Mr. Grant resided at 301-2460 Weston Rd. At the time the police sought judicial authorization to search 301-2460 as Mr. Grant’s dwelling-house, they had an indication that “staff” from 2460 Weston Rd. believed Mr. Grant resided at unit 301 with Ms. Scott and their son, and they had seized keys from Mr. Grant which fit into the unit at 301. o. The police never observed Mr. Grant entering or leaving unit 301, although the ITO indicates that he was observed leaving the unit. [ 43 ] I am cognizant that there are paragraphs that are entirely redacted that speak to the police’s efforts to corroborate the CI’s information. In my view, the information listed above is sufficient to enable the defendants to challenge the police’s corroboration of the CI’s information. In fact, they have done so ably. [ 44 ] In conclusion, I grant the Crown’s Step 6 cross-application because I am satisfied that considering all the information available to the defendants, they are able to challenge the residence warrant notwithstanding the redactions in the ITO. Issue Two: Was the arrest of Mr. Grant a violation of s. 9 of the Charter ? [ 45 ] Mr. Grant was arrested without a warrant. The Crown argues that the arrest was justified based on the Little Hut investigation and, independently, based on the CI investigation. [ 46 ] Under s. 495 of the Criminal Code, a police officer may arrest a person without a warrant where they have reasonable and probable grounds to believe that the person has committed, is in the process of committing, or is about to commit an indictable offence. To be lawful, the arresting officer must subjectively believe that she has the requisite reasonable grounds on which to base an arrest, and those grounds must be justifiable from an objective point of view: R. v. Storrey , [1990] 1 S.C.R. 240, at pp. 250-251 . [ 47 ] The subjective assessment requires that an arresting officer honestly believed that the suspect committed the offence: R. v. Beaver , 2022 SCC 54 , at para. 72 . [ 48 ] The objective assessment is based on the totality of the circumstances known to the officer at the time of 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: Beaver , at para. 72 ; Storrey , at pp. 250-251. [ 49 ] Reasonable and probable grounds is a higher standard than reasonable suspicion; it requires a reasonable probability of crime. It does not require a prima facie case for conviction before making an arrest. The standard requires an objective basis for the belief that an individual is connected to the offence which is based on compelling and credible investigation: Beaver , at para. 72 . [ 50 ] In R. v. Morelli , 2010 SCC 8 , at para. 128 , the Supreme Court of Canada described the standard as “the point where credibly-based probability replaces suspicion.” [ 51 ] The facts relied upon by the officer making or ordering the arrest need not be true. Reasonable grounds can be based on an officer’s reasonable belief that certain facts exist even if it turns out that the belief is mistaken: R. v. Gerson-Foster , 2019 ONCA 405 , at para. 79 . [ 52 ] A warrantless arrest that is not based on reasonable and probable grounds will contravene s. 9 of the Charter , which provides that everyone has the right not to be arbitrarily detained or imprisoned. Were there reasonable and probable grounds to arrest Mr. Grant in connection with the Little Hut investigation? [ 53 ] Detective Taylor gave evidence that his team was requested to assist a team at 23 Division Major Crime Unit in connection with the Little Hut investigation. Detective Taylor learned from the Officer in Charge of that investigation, Detective McEvoy, that Mr. Grant was arrestable for the firearm offence at the Little Hut bar. [ 54 ] Detective Taylor testified that on February 11, 2023, he had information from 23 Division Major Crime Unit that Mr. Grant was at a barbershop at John Garland Plaza in Rexdale. Detective Taylor’s team deployed to the area to try to confirm his presence. If they found him and could do so safely, they intended to arrest him. [ 55 ] Detective Taylor undertook other investigative steps thereafter, but none related to the Little Hut investigation. He did, however, become aware of the discharge firearm investigation, and confirmed with that investigative team that they had no issue with Detective Taylor’s team arresting Mr. Grant. [ 56 ] On March 10, 2023, Detective Taylor’s team conducted surveillance, to try to locate the Dodge Charger. He found it parked in the John Garland Plaza, noted the damage to the rear passenger side of the car, and saw Mr. Matthews clearing snow from the Charger. The police lost the Charger in traffic. Detective Taylor testified that he did a briefing over the air and let his team know that he was not sure if they could ascertain the home address or associated address for Mr. Grant, but their objective was to locate him and arrest him when it was safe to do so. [ 57 ] Later that same day, around 19:10, an officer observed the Charger leaving an address associated to Mr. Matthews, and his team followed the Charger to 2460 Weston Road. Mr. Grant emerged from the highrise and got into the front passenger seat of the Dodge Charger. The vehicle went to the barbershop at John Garland Plaza. When it left, with Mr. Matthews and Mr. Grant in the car, the takedown was called, and Mr. Grant was arrested. [ 58 ] With respect to the Little Hut investigation, Detective Taylor testified that he understood that he was entitled to rely on information from other officers in forming reasonable and probable grounds to arrest without a warrant, but that as the arresting officer, he was required to determine that the information received provided reasonable and probable grounds for the arrest. [ 59 ] Detective Taylor was aware that on November 6, 2022, Mr. Grant was observed at the Little Hut bar, where it was alleged that Mr. Grant had discarded a firearm in the toilet of a bathroom. Detective Taylor did not recall reviewing any documents pertaining to the Little Hut investigation, nor any occurrence reports. At the time he arrested Mr. Grant, he explained his information was that when officers entered the Little Hut bar, Mr. Grant was seen walking hurriedly to a bathroom that he thought was the women’s bathroom, and that he returned shortly thereafter. Subsequently, a searched yielded a firearm in a toilet tank in that bathroom. [ 60 ] Detective Taylor did not review any surveillance video from the Little Hut himself. When asked if it was possible that Mr. Grant was not seen by police going into the bathroom, but that he was spoken to at the Little Hut bar and then released, and only after that was he seen on CCTV footage going into the bathroom, Detective Taylor agreed. He indicated Detective McEvoy knows Mr. Grant personally, and had made direct observations of him that night at Little Hut. He agreed the CCTV showed Mr. Grant going into the bathroom when the police entered the premises. [ 61 ] Detective Taylor had no note of having any conversation with Detective McEvoy whatsoever, but he indicated he had an independent recollection of having received this information from Detective McEvoy around the second week of February 2023. He did not say where he had the conversation with Detective McEvoy, or whether it was in person or on the phone. He agreed that a conversation with the Officer in Charge of a firearms investigation providing grounds for arrest should have been in his notes. [ 62 ] The incident at the Little Hut bar was on November 6, 2022, over four months prior to Mr. Grant’s arrest. Detective Taylor indicated that he understood Mr. Grant had not been arrested in connection with the Little Hut investigation in the interim because Detective McEvoy’s team was investigating the matter and trying to track down witnesses. He indicated that Detective McEvoy got to the point where he had done all he could on his front and sought the assistance of Detective Taylor’s team to effect the arrest. [ 63 ] Detective Taylor did not ask Detective McEvoy any questions about how much surveillance video his team had watched from the Little Hut incident, or how many people had gone into the bathroom where the gun was found. He was not aware of any forensic evidence associating the firearm to Mr. Grant. Detective Taylor indicated he thought Detective McEvoy was still trying to locate witnesses, but that did not cause him concern about the grounds for the arrest; he has known Detective McEvoy a long time, and is confident Detective McEvoy knows what he is doing. [ 64 ] I accept that Detective Taylor honestly believed Mr. Grant had committed the firearms offence related to the Little Hut investigation, based on the information from Detective McEvoy that Mr. Grant was arrestable for the offence. [ 65 ] The problem is that Detective McEvoy did not convey much to Detective Taylor in the way of facts (whether correct or not) to support a conclusion that Mr. Grant was arrestable for the offence. He conveyed the conclusion that Mr. Grant was arrestable for it. [ 66 ] When considering whether the objective branch of the test is met, I note the following: a. A report came to police that there was a gun at the Little Hut bar, and the person who had it was Black; b. Mr. Grant is Black. So are lots of other people. c. No one identified Mr. Grant as the person who had the gun. The person who called to report the gun was not cooperative. d. A gun was found in the women’s bathroom in a toilet tank. e. The police saw Mr. Grant at the Little Hut bar when they arrived. f. Mr. Grant was seen on video footage entering the women’s bathroom at the Little Hut bar with his hand in his pocket and then leaving about ten seconds later. g. There is no evidence about how much video footage the police watched, or how many other people entered the bathroom. h. Police were attempting to locate and interview witnesses after the incident, but there is no evidence that they ever succeeded in doing so. i. No forensic evidence connected the gun to Mr. Grant. [ 67 ] Considering the cumulative effect of all of the evidence, I find that while there may have been a reasonable suspicion that Mr. Grant was connected to the firearm found in the women’s bathroom at the Little Hut bar, that suspicion cannot be elevated to reasonable and probable grounds. Evidence about how much video footage was watched and what else it might have revealed would be key to determining whether the facts that were reasonably believed at that point in time could give rise to a reasonable probability that Mr. Grant was connected to the firearms offence. [ 68 ] Without having information about what else was observed on the video footage and over what period of time, the investigation cannot be described as credible and compelling; it can be described as incomplete, and at risk of being impacted by tunnel vision. The absence of any evidence about efforts to locate witnesses, whether they were successful, and if so, what those witnesses said raises additional questions about the facts which could have been reasonably believed, and whether they were sufficient on March 10, 2023 to arrest Mr. Grant in connection with the Little Hut investigation. [ 69 ] I am also troubled by Detective Taylor’s lack of notes about his conversation(s) with Detective McEvoy. I have difficulty relying on his independent recollection of that conversation(s), given his evidence on cross-examination that Mr. Grant was seen walking hurriedly to a women’s bathroom when police entered the establishment. His recollection was wrong; Mr. Grant was observed entering the bathroom on CCTV footage. [ 70 ] There is also an inconsistency in Detective Taylor’s evidence. He testified that Detective McEvoy had done all he could on his front and required the assistance of Detective Taylor’s team to arrest Mr. Grant. However, Detective Taylor also testified that Detective McEvoy was continuing to try to locate witnesses, which is inconsistent with having done all he could. [ 71 ] Given the lack of notes, the error in Detective Taylor’s recollection, and the inconsistency in his evidence, I find that Detective Taylor’s independent recollection of the reasonable and probable grounds on which Mr. Grant could be arrested in connection with the Little Hut investigation is not reliable, and I reject it. [ 72 ] I thus conclude that there were no objective reasonable and probable grounds known to Detective Taylor on March 10, 2023 to permit the warrantless arrest of Mr. Grant in connection with the Little Hut investigation. Were there reasonable and probable grounds to arrest Mr. Grant on March 10, 2023 in connection with the CI investigation? [ 73 ] At the time Detective Taylor arrested Mr. Grant in connection with the CI investigation, he was aware of the following: a. A CI with a history of providing reliable information had provided confidential information, some of which was first-hand, some of which was specific, indicating that Mr. Grant was in possession of a firearm. He was aware of information provided by the CI, and disclosed in the ITO, which I cannot record here to protect informer privilege. b. The CI identified Mr. Grant as the person about whom he was giving information from a photograph. c. The CI’s information was at least a month old. d. Mr. Grant has a lengthy criminal record spanning from 1999 to 2018, including convictions for firearms offences. The most recent conviction related to firearms dates to 2005. Mr. Grant has a conviction for possession of a weapon from 2018. e. Mr. Grant had then-pending charges in Peel relating to possession of schedule I substances and possession for the purposes of trafficking and distributing. f. Detective Taylor was aware of the Little Hut investigation and the discharge firearm investigation. [ 74 ] As I have noted, the information provided by a CI must be evaluated to determine if it is credible, compelling, and corroborated. The “three C’s” inform reasonable and probable grounds, not just for a search, but for a warrantless arrest. I addressed the content of the three C’s above in my discussion of the step 6 cross-application and do not repeat it here. [ 75 ] I am satisfied that the CI is a credible source. As is clear from the vetted ITO and the judicial summaries, the CI has no criminal record in relation to crimes of deceit, and has no vendetta against Mr. Grant. The motivation of the CI to provide the information is set out in the unredacted ITO and in my view, does not detract from the CI’s credibility. Moreover, and importantly, the CI has a track record of providing information that has proven to be accurate and that has been corroborated by police. [ 76 ] I am also satisfied that the information provided by the CI is compelling. It includes firsthand information about how the CI was aware that Mr. Grant had a gun, and when and where it was seen. At least some of the firsthand information about Mr. Grant’s possession of a firearm was specific. However, I agree with the defendants that it is clear that the information obtained from the CI about Mr. Grant’s possession of a firearm was at least a month old, which attenuates its compelling nature. [ 77 ] Corroboration is the more difficult hurdle. Hearsay statements of a CI can provide reasonable and probable grounds to justify a search, but evidence of a tip from a CI, by itself, is insufficient to establish reasonable and probable grounds: Garofoli , at para. 59 . [ 78 ] The defendants argue, and I agree, that there is no corroboration of the suggestion that Mr. Grant may have been currently in possession of a firearm apart from any reliance on propensity reasoning. That propensity reasoning could arise from three separate bases. [ 79 ] First, it could arise based on Mr. Grant’s past firearms offences, which, as I have noted, date most recently from 2005. [ 80 ] Second, it could arise from what Detective Taylor testified that he knew (but did not record) about the Little Hut investigation. I have already determined that there were no objective reasonable and probable grounds to arrest Mr. Grant in connection with the Little Hut investigation, although the video footage of which Detective Taylor was aware arguably raised a reasonable suspicion that Mr. Grant left the firearm in the toilet at the Little Hut bar on November 6, 2022. That firearm, however, had been seized by police, and the most that could be said arising out of the Little Hut investigation at the time of Mr. Grant’s arrest is that there was a reasonable suspicion that Mr. Grant had been in possession of a firearm four months earlier that had subsequently been seized. [ 81 ] Third, it could have arisen from what Detective Taylor knew about the discharge firearm investigation. For reasons that I explain below in the context of the challenge to the warrant issued following the cell phone ITO, Mr. Grant’s connection to the discharge firearm offense was speculative at best. [ 82 ] I thus conclude that to the extent police engaged in propensity-based reasoning, the information which led them to do so was not compelling; it was dated, and some of it was only tenuously connected to Mr. Grant. It does not corroborate the CI’s information. [ 83 ] Although the police did not need to corroborate the criminal aspects of the CI’s information, there is very little investigation of even biographical data related to Mr. Grant. For example, the police were aware that Mr. Grant’s driver’s licence and a then-current undertaking bore the same home address for him in Maple, Ontario. No surveillance was undertaken of that address to determine whether Mr. Grant lived there. [ 84 ] The defendants raised issues about the efforts undertaken by police to corroborate information the CI provided about Ms. Scott, and her connection to Mr. Grant. As I have noted, the police attempted to corroborate the connection between Ms. Scott and Mr. Grant, and their connection to unit 301-2460 Weston Road. Much evidence was led on this issue. Of note: a. Detective Taylor visited 2460 Weston Road and spoke to the property manager, whose name he obtained and recorded. The property manager indicated that Ms. Scott and her son resided in unit 301. Detective Taylor did not see the lease documents, but appears to have misheard and misrecorded Ms. Scott’s child’s name as Eric Terrance Grant, when his name is Eric Terrance Graham Scott. b. Detective Taylor observed over a month of video footage of entry into 2460 Weston Road using either of the fobs registered to unit 301 and did not view Mr. Grant entering the building on even one occasion. c. Detective Taylor recorded in his notes that “staff” (whose names, positions, or length of tenure he did not record) told him that they believed Mr. Grant resided with Ms. Scott and the child at unit 301 and that Mr. Grant was the father of the child. d. Detective Taylor testified that he left 2460 Weston Road following these interactions believing that they had reached a dead end in terms of associating Mr. Grant to the unit. e. On the day of Mr. Grant’s arrest, he was observed exiting 2460 Weston Road, although he was not observed leaving from any particular unit in the highrise. Although Mr. Grant had been under surveillance previously, this was the only time he was observed at 2460 Weston Road. [ 85 ] Thus, the only corroboration of the CI’s information linking Mr. Grant to Ms. Scott comes from the unnamed “staff.” According to Detective Taylor, after his visit to 2460 Weston Road, he left believing he had “hit a roadblock.” He testified that at this point in the investigation, he felt they were not close to having grounds, and he did not see a warrant being granted based on what police then had. Although he is an experienced detective, he did not attempt to record the contact details of “staff,” their positions, how long they had worked there, or make any effort to assess how reliable their belief about Mr. Grant residing at unit 301 would be having regard to their opportunity to know whether he lived there. [ 86 ] Detective Taylor made his comments about hitting a roadblock in the context of the potential of obtaining a warrant to search the unit, but the lack of corroboration of the CI’s information also speaks to the assessment of the three C’s in the context of the CI’s information as a whole, and its relationship to the reasonable and probable grounds for arresting Mr. Grant based on the CI investigation. [ 87 ] That is not to say there is no corroboration of information provided by the CI. As the judicial summary explains, the affiant notes relating to corroboration of information received from the CI relating to Mr. Grant’s possession of a firearm and relating to Ms. Scott include redactions described as: a. Disclosing specific address(s) by the affiant in relation to location(s) information provided by the CI; b. Disclosing specific name(s) of a location by the affiant in relation to location(s) information provided by the CI; and c. Disclosing specific name(s) of location(s) and address(s) by the affiant in relation to location(s) information provided by the CI. The affiant also describes the source of his knowledge of these location(s) and address(s). [ 88 ] In addition, the police investigation corroborated Ms. Scott’s association with unit 301, and corroborated that Ms. Scott’s appearance matched that provided by the CI. [ 89 ] I conclude that the CI’s information was only minimally corroborated, and in my view, corroboration was not exclusively, but mostly, limited to generic information that is widely known. [ 90 ] As I have noted, it is the totality of the circumstances that must be evaluated, and weakness in one area (corroboration) may be compensated to a degree by strengths in the credibility of the CI, and the compelling nature of the CI’s evidence. [ 91 ] While I accept that the CI’s information was credible and compelling, I find that it was incumbent upon the police to do more to corroborate it. I conclude that, with respect to the CI investigation, the police had grounds to suspect Mr. Grant was involved in firearms offenses, but they had not yet reached the point where “credibly-based probability” replaced their suspicions. [ 92 ] I accept that Detective Taylor subjectively believed he had grounds to arrest Mr. Grant in connection with the CI investigation, but given the serious failings in the corroboration of the CI’s information, I conclude that, in the totality of the circumstances, there was no objective basis for his subjective belief. The arrest of Mr. Grant in connection with the CI investigation on March 10, 2023 was not based on reasonable and probable grounds. Conclusions regarding the Lawfulness of the Arrest of Mr. Grant and Search Incident to Arrest [ 93 ] I thus conclude that the arrest of Mr. Grant on March 10, 2023 was done without reasonable and probable grounds, and a result was a violation of his s. 9 Charter rights. [ 94 ] It follows that the search incident to that arrest was in breach of his s. 8 Charter rights. If there were no reasonable and probable grounds on which to arrest him, there was no reasonable basis to conduct a search incident to arrest. Issue Three: Review of the Judicial Authorization to Search 301-2460 Weston Road [ 95 ] The defendants challenge the warrant to search 301-2460 Weston Road. They bear the onus to demonstrate a violation of their s. 8 Charter rights: R. v. Pires; R. v. Lising , 2005 SCC 66 , [2005] 3 S.C.R. 343, at paras. 12-13 . [ 96 ] A search warrant is presumptively valid. [ 97 ] When reviewing a judicial authorization, the reviewing judge must determine whether the amplified record contains reliable evidence that might reasonably be believed on the basis of which the warrant could have issued. The question is not whether the reviewing court would have issued the warrant, but whether the issuing judicial official was presented with sufficient credible and reliable evidence to permit a finding that the statutory prerequisites were established: Garofoli , at para. 79 . [ 98 ] The statutory preconditions to the issuance of the authorization to search the unit are in s. 487 of the Criminal Code . It provides: 487 (1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place (a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed, (b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament, (c) anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant, or (c.1) any offence-related property, may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant (d) to search the building, receptacle or place for any such thing and to seize it, and (e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a report in respect of it to, a justice in accordance with section 489.1. [ 99 ] The review must be conducted by assessing the totality of the evidence contained within the four corners of the vetted ITO as disclosed to the defendant, subject to step 6 of the Garofoli application: R. v. Sanchez , (1994) 1994 5271 (ON SC) , 20, O.R. (3d) 468, at para. 21 . [ 100 ] The reviewing court may have reference to amplification evidence, and must redact from the ITO all erroneous or non-material information that has not been corrected or clarified on amplification. It is required to assess the evidence placed before the issuing judicial officer in light of the evidence brought out at trial (or on the application) to determine whether, after expunging any misleading or erroneous information, sufficient reliable information remained to support the issuance of the warrant: Morelli , at para. 41 . [ 101 ] Hearsay statements of a CI can provide reasonable and probable grounds to justify a search, but evidence of a tip from a CI, by itself, is insufficient to establish reasonable and probable grounds: Garofoli , at para. 59 . [ 102 ] The reliability of a CI’s tip is assessed by recourse to the totality of the circumstances, which requires the court to look to a variety of factors, including the degree of detail of the tip, the CI’s source of knowledge, and the indicia of the CI’s reliability, such as past performance or confirmation from other investigative searches. The results of the search cannot, ex post facto , provide evidence of the reliability of the information: Garofoli ¸at para. 59 . [ 103 ] I have already largely analyzed the CI’s information that was available to justify the issuance of a warrant to search 301-2460 Weston Road, because it is the same information on which the arrest of Mr. Grant in connection with the CI investigation was based. There are, however, two differences of note which I address below. And the challenge to the warrant must be undertaken within the parameters I have identified, according deference to the issuing judicial official. It must include consideration of whether there were reasonable and probable grounds to believe that a firearm would be found at the unit at the time of the search. As a result, my conclusion on the warrant need not mirror my conclusion on whether there were reasonable and probable grounds for Mr. Grant’s arrest. [ 104 ] The first difference in considering the reasonable and probable grounds for the search of 301-2460 Weston Road is that the corroboration of the CI’s information linking Mr. Grant to the unit up to the point of his arrest was exceptionally weak. I note the following: a. Police had confirmed that Ms. Scott resided in 301-2460 Weston Road. b. Police had confirmed that Ms. Scott’s child resided in 301-2460 Weston Road. They believed his last name was “Grant,” although this turned out to be incorrect, and was not verified by viewing the documents the property manager referred to when advising Detective Taylor about who lived in the unit. c. The police had confirmed that Mr. Grant was not listed as a tenant in unit 301. d. Mr. Grant was not seen on over a month’s worth of CCTV footage even once using a fob registered to unit 301 to enter the building. e. Mr. Grant was seen on only one occasion – the day of his arrest – at 2460 Weston Road. f. 2460 Weston Road is a highrise with multiple units. g. Although the ITO indicates that, on arrest, “members returned to the known address of 301-2460 Weston Road where Mr. Grant was observed exiting,” in fact officers never observed Mr. Grant exit from the unit, but only the building. h. “Staff” told Detective Taylor they believed Mr. Grant resided in the unit and that the child was his son. The ITO included this information but omitted the word “believed,” instead presenting the information as if staff confirmed it. i. After learning from “staff” of their belief, Detective Taylor, an experienced officer, concluded that police were at a roadblock and did not have the grounds to obtain a warrant to search the unit. He did not bother to record the names of staff who shared their belief with him. j. No information was obtained from staff to allow police or the issuing judicial official to evaluate the reliability of staff’s belief, such as their positions at 2460 Weston Road, the length of time they had worked there, or why they would know about Mr. Grant’s residence or the child’s parentage. [ 105 ] Another difference is that on Mr. Grant’s arrest, the search incident to arrest located a fob and key that were unmarked. Detective Taylor directed Detective Tavares to take other officers with him to unit 301-2460 Weston Road to freeze the unit. Detective Tavares testified that he used the fob to enter 2460 Weston Road, and that he fit the key into the lock of unit 301. He testified that he jiggled the key to make sure it would operate the lock without fully unlocking door, and then knocked on the door. [ 106 ] Thus, by the time the affidavit was sworn, the police had information that Mr. Grant possessed keys to unit 301. The keys were found in a search incident to the arrest I have concluded was in breach of Mr. Grant’s Charter rights. An unlawful search cannot furnish the requisite grounds for a search warrant: R. v. Zacharias , 2023 SCC 30 , at para. 30 . The information about the keys and fob should thus be excised from the ITO. [ 107 ] When considering the information that was before the issuing judicial official, I also note the following: a. The ITO described the location for which police were seeking authorization to search as Mr. Grant’s dwelling-house, when that had not been corroborated. b. As I have elsewhere noted, at no time did police attempt to determine whether Mr. Grant resided at the Maple address listed on his current undertaking and his driver’s licence. c. The information linking Mr. Grant to unit 301 was improved to some minor extent by his having been seen leaving the building, but the ITO wrongly suggested he had been seen leaving unit 301 when that was not the case. Moreover, that single sighting had to be considered in the context of the review of over a month’s worth of video footage of the fob use for unit 301 that did not once record Mr. Grant. d. At the same time, although I cannot go into detail without revealing redactions to the ITO, the ITO makes clear that some information provided by the CI was not only not corroborated, but disproved. e. There thus remained significant weaknesses in the corroboration of the CI’s information contained in the ITO. f. The information in the ITO indicated that the CI information was at least a month old. The lack of currency raises questions about the extent to which the CI information could support reasonable and probable grounds to believe a firearm would be found at the search location. [ 108 ] For there to have been a basis for the issuing judicial official to grant the warrant, there had to be a basis to conclude that there was a link between Mr. Grant and unit 301 sufficient that it is reasonable to believe that Mr. Grant might keep his firearm there, and it would be found there at the time of the search: Morelli , at para. 40 . In my view, once we excise from the affidavit the assertions that 301-2460 is Mr. Grant’s dwelling-house, that he is the father of Ms. Scott’s child, that he was seen exiting unit 301, and that staff reported that Mr. Grant resided in unit 301, as opposed to reporting their belief that he did, and that he was arrested with keys to the unit, the link between Mr. Grant and unit 301 is too tenuous to support a reasonable belief that his firearms would be found at the search location at the time of the search. That he was seen exiting the highrise on one occasion is not sufficient to overcome a month’s worth of video footage in which he is not seen using the fob a single time, the failure to take any steps to confirm whether he resided at the address in Maple, and the gap of at least one month from the CI’s information reaching police to the time of the search. [ 109 ] I thus grant the challenge to the warrant to search 301-2460 Weston Road, and find that the search of it was a violation of s. 8. Issue Four: Was the warrantless entry into the unit to freeze it pending the issuance of a search warrant reasonable ? [ 110 ] A warrantless search or seizure is presumptively unreasonable. When police enter a residence without a warrant, the onus is on the Crown to demonstrate on a balance of probabilities that the search was authorized by law, that the authorizing law was itself reasonable, and that the authority to conduct the search was exercised in a reasonable manner: Hunter v. Southam , 1984 33 (SCC) , [1984] 2 S.C.R. 145, at p. 161; R. v. Cole, 2012 SCC 53 , at para. 37 . R. v. MacDonald , [2014] S.C.R. 37, at para. 29. [ 111 ] The Crown relies on s. 529.3 of the Criminal Code , which authorizes police to enter a dwelling house without a warrant for the purpose of arresting or apprehending a person, where exigent circumstances exist. Reliance on this provision is misplaced, since the warrantless entry into unit 301 was not made for the purpose of arresting or apprehending anyone. [ 112 ] Section 487.11 of the Criminal Code permits a police officer to conduct a warrantless search or seizure if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant. [ 113 ] The Supreme Court of Canada has described “exigent circumstances” to exist where there is an imminent danger of the loss, removal, destruction, or disappearance of the evidence if the search or seizure is delayed, or where immediate action is required for the safety of the public. “Exigent circumstances” denotes not merely convenience, propitiousness, or economy, but urgency arising from circumstances calling for immediate police action to preserve evidence, officer safety, or public safety: R. v. Paterson , 2017 SCC 15 , at paras. 32-37 . [ 114 ] The police must have reasonable and probable grounds, not merely reasonable suspicion, to support a claim of exigency: R. v. Campbell , 2024 SCC 42 , at para. 113 . [ 115 ] A warrantless entry conducted for purposes of clearing and holding a location prior to obtaining a warrant is a warrantless search within the meaning of s. 8 of the Charter : R. v. Searchwell-Beals , 2024 ONSC 2171 , at para. 72 , citing R. v. Silveira , 1995 89 (SCC) , at para. 140 and R. v. McCormack , 2000 BCCA 57 , at para. 5 . [ 116 ] Whether exigent circumstances exist is a case-specific enquiry; exigent circumstances do not arise from general concerns. As the British Columbia Court of Appeal held in R. v. Pawar , 2020 BCCA 251 , at paras. 63-66 , there is always a theoretical risk when a public arrest is made that evidence may be moved or destroyed. In Pawar , there was nothing that raised the risk from the general to the particular. The British Columbia Court of Appeal held that if exigent circumstances existed in that case, they would exist in every case of a similar kind, “and warrantless entries into private dwelling-houses to preserve the scene would become the rule, not the exception”: Pawar , at paras. 63-66 . [ 117 ] The evidence in this case is clear that the police entered 301-2460 Weston Road several times before the warrant was obtained, including one occasion where two officers followed Ms. Scott as she opened drawers and closets to remove things for herself and her son so they could go elsewhere for the night. [ 118 ] The Crown does not allege that the warrantless entry was required for officer or public safety. Rather, they allege exigent circumstances on the basis that evidence could have been destroyed had they not secured the unit pending issuance of the warrant. [ 119 ] Mr. Grant’s arrest was done in public in the neighbourhood in which he grew up, but over a kilometre away from where he had been with his associates prior to getting in Mr. Matthews’ car and leaving. There was thus no danger that anyone he had just been with (apart from Mr. Matthews who was also detained) had witnessed the arrest. [ 120 ] The arrest was about a ten-minute drive away from 301-2460 Weston Road. There was thus no risk that someone in the unit would have observed Mr. Grant’s arrest. [ 121 ] The witnesses all agreed that there were people around when the police effected the arrest, but no observer or passer-by gave any indication of knowing Mr. Grant, or of trying to speak with him. No witness observed any behaviour to suggest someone would advise occupants of 301-2460 Weston Road that Mr. Grant had been arrested, or that they would attend the unit themselves to dispose of evidence. [ 122 ] Moreover, the police were looking for guns, not drugs (although they found drugs). Unlike drugs, guns cannot be flushed down a toilet. Rather than conduct a warrantless search, police could have, but did not, station officers in the hallway and near the windows and balcony to the unit to watch to see whether anything was thrown out a window or off a balcony, or removed from the unit, to frustrate a potential future search of the unit. [ 123 ] The situation in this case is thus like that in Pawar : the police held general concerns about the loss of evidence that were not specific to this case. Anytime there is a public arrest, it is possible that someone who becomes aware of it and knows there is contraband in a given location may take steps to have the contraband destroyed or moved before the police can search the location. I agree with the court in Pawar that if general concerns were enough, warrantless searches would be the rule, not the exception. In my view, something more was required to justify a warrantless search in this case, even recognizing it was only for the purpose of securing the unit pending the issuance of a warrant. Issue Five: Was the nighttime execution of the warrant reasonable? [ 124 ] Section 488 of the Criminal Code provides that search warrants shall be executed by day unless (a) the justice is satisfied that there are reasonable grounds for it to be executed by night; (b) the reasonable grounds are included in the information; and (c) the warrant authorizes that it be executed by night. [ 125 ] The affidavit sets out grounds for a nighttime search. [ 126 ] First, the affiant deposes that entering and searching the premises when occupants are more likely to be initially asleep or engaged in minimal activities reduces the danger level and reduces the opportunity for occupants to ingest or destroy evidence. [ 127 ] The police were looking for guns; it was not likely anyone would try to ingest them. More importantly, by the time the affidavit was submitted, the police had already secured the unit, which was occupied by a small child and his mother. There is no indication that Ms. Scott was a target of the CI investigation. There was no realistic danger to police in having to wait until daytime to execute upon a warrant. [ 128 ] The affiant also refers to concerns of preserving evidence, and safety of the public generally in connection with seeking approval for a nighttime search. But as I have just noted, they had already secured the unit, and in the context of exigent circumstances, the Crown makes no argument regarding public safety. [ 129 ] Finally, the affiant indicates that the police do not wish to further inconvenience the occupants of the unit. This is the only sensible ground in favour of a nighttime search, given that the apartment was already secured, and the child relocated elsewhere for the night. [ 130 ] In these circumstances, having already secured the unit and displaced the child for the night, I agree it was preferable for police to search the unit as soon as possible to minimize inconvenience for the residents. In these circumstances, that is sufficient to make out a basis for a nighttime search. To conclude otherwise would be to encourage the police to disregard the needs of the people whose residences are being searched. [ 131 ] The real issue was the freezing of the residence. Had police not frozen the residence but rather watched it, the warrant could have been obtained (assuming the statutory preconditions were met) and executed during the day, which would have been a Charter compliant manner of proceeding. Issue Six: The Review of the Judicial Authorization to Search Mr. Grant’s Phone [ 132 ] As a threshold matter, because the search incident to Mr. Grant’s unconstitutional arrest was also unconstitutional, arguably the fact of Mr. Grant’s phone’s existence was illegally obtained, and the police should not be able to seek a search of it, having seized it unconstitutionally: Zacharias , at paras. 30-41 . However, assuming that notwithstanding its unconstitutional seizure, the police were free to seek to obtain a warrant to search it, I conduct the analysis with respect to the judicial authorization to search Mr. Grant’s phone. [ 133 ] I have already reviewed the relevant legal principles in reviewing a warrant, and do not repeat them here. [ 134 ] I note that the ITOs that led to the warrant to search Mr. Grant’s phone do not include CI information. [ 135 ] The cell phone ITO prepared by DC Ellis to search the data obtained from Mr. Grant’s phone and maintained on Toronto Police Service servers in connection with the CI investigation relies heavily on the discharge firearm ITO, because it was the authorization arising from that ITO that led to the initial search of Mr. Grant’s phone, and to DC Ellis learning that results of that search would be relevant to the CI investigation. [ 136 ] The information relied upon to justify the warrant arising from the discharge firearm ITO can be summarized (together with my observations of the photographic evidence) as follows: a. On March 4, 2023, at 11:05 p.m. an anonymous caller reported sounds of gunshots at 682 Warden Avenue in Toronto. Police attended and located firearm cartridges and bullet-sized holes in the front door of unit 1003. b. Surveillance footage revealed two persons of interest attending the 10 th floor just prior to the shooting and leaving immediately afterwards. Photos included in the ITO reveal one person of interest wearing a hat and a gaiter covering the lower part of his face. The other is wearing a winter coat with a wide fur trim and eyeglasses. c. The persons of interest arrived in a silver Dodge Charger, parked across the street, and left in the same vehicle. A photo of the “silver Dodge Charger” is included in the ITO, but the most that can fairly be said is that the photo is of a vehicle that resembles a silver Dodge Charger. The actual colour, make, and model of the vehicle are not clear. d. Police issued a bulletin to assist with identifying the persons of interest and the vehicle of interest. Members of the Gun & Gang Task Force saw the bulletin and suspected the vehicle matched the vehicle in an unauthorized firearm investigation (that is, the silver Dodge Charger owned by Mr. Matthews). e. Toronto Community Housing Corporation Special Constable Mohammed Zouroub reviewed a TCHC report and recognized the two persons of interest in the investigation. He indicated he believed he had seen them on previous occasions. According to SC Zouroub, person of interest #1 (with the gaiter) comes to 682 Warden Avenue daily and has a fob for unit 911. Unit 911 is registered to one Patrick McCarthy, but SC Zouroub believes the unit has been taken over by others. f. SC Zouroub provided surveillance footage which another officer reviewed. From that review, the officer believed that the vehicle of interest from the shooting involving the same two persons of interest was caught on surveillance video from 682 Warden Avenue on March 4, 2023 in the daytime. The vehicle captured on surveillance footage resembles the vehicle captured on the footage taken the night of the shooting, but because it is taken in the daytime it is clearer, and shows damage to the back passenger side of the car. g. On March 10, 2023, police found the silver Dodge Charger owned by Mr. Matthews and arrested two occupants: Mr. Matthews and Mr. Grant. Among other things, police seized Mr. Grant’s cell phone and the silver Dodge Charger. h. Mr. Matthews is the owner of the silver Dodge Charger in which he was arrested. It has damage on the back passenger side of the car. i. Mr. Grant was observed as a passenger in the silver Dodge Charger owned by Mr. Matthews on February 11, 2023 and on March 10, 2023. j. Information about Mr. Grant’s current firearms and drug charges and his criminal record was provided to the issuing judicial official. k. A photograph of Mr. Grant from March 11, 2023 is compared against a photograph of person of interest #1 from the CCTV footage at 682 Warden Avenue taken on the night of the shooting. The affiant states, “I cannot determine if Jermaine Grant is person of interest #1 but I believe that his height, build, skin colour, facial features, and facial hair are similar.” There is no basis in the ITO to estimate whether Mr. Grant’s height and the height of person of interest #1 are similar. Both Mr. Grant and person of interest #1 are Black, but it is not possible to say if their skin colour is similar. It does not appear so in the photographs, but that could be a difference in the lighting. Both have facial hair, but while Mr. Grant has grey in his beard, the photograph of person of interest #1 does not show grey in his beard. From the photographs, it appears Mr. Grant is heavier-set than person of interest #1. There may be some similarity in certain aspects of their facial features. Person of interest #1 appears to wear glasses, while Mr. Grant does not. More importantly, viewed holistically, person of interest #1 does not appear to look like Mr. Grant except in the most superficial ways. l. The affiant deposes to his belief that Mr. Grant’s cell phone will contain data that will prove is person of interest #1. [ 137 ] The identification of Mr. Grant as person of interest #1 is problematic. The image of person of interest #1 does not look like Mr. Grant. There is no CCTV footage showing Mr. Grant at 682 Warden Avenue at any time. There may be some reason to believe Mr. Matthews’ car was 682 Warden Avenue at least during the daytime on the same day as the shooting. There may be some reason to believe Mr. Matthews is person of interest #2 due to the fact that he appears to have similar footwear to that worn by person of interest #2. But no footage places Mr. Grant at 682 Warden Avenue. [ 138 ] Even assuming that the vehicle of interest in the shooting is the same as Mr. Matthews’ Dodge Charger (a big assumption given the poor quality of the image of the vehicle of interest), the only thing that links Mr. Grant to the car is the fact that he was observed to be a passenger in it on one occasion, almost a month prior to the shooting on Warden Avenue (and once after the shooting). He is not the owner of the car. [ 139 ] The zeroing in on Mr. Grant as person of interest #1 appears to be based on: (i) the fact that almost a month before the shooting he was a passenger in a car that may have been around 682 Warden Avenue on the day of the shooting, and that looks similar to the vehicle that was involved in the shooting; (ii) he knows Mr. Matthews who has shoes similar to person of interest #2; and (iii) he is a Black man, and so is person of interest #1. [ 140 ] This is not information that is sufficiently credible and reliable to conclude that any evidence related to the discharge firearm offence would be found on Mr. Grant’s phone. There is nothing but speculation, innuendo, and race linking Mr. Grant to the discharge firearm offence. [ 141 ] I conclude that there were no reasonable and probable grounds to search Mr. Grant’s phone in connection with the discharge firearm investigation. [ 142 ] Defendants’ counsel argued, and the Crown did not dispute, that if the discharge firearm ITO was successfully challenged, it follows that the cell phone ITO is also not based on reasonable and probable grounds. I agree. [ 143 ] If the cell phone ITO is excised to remove the results of the search following the warrant issued based on the discharge firearm ITO, the substance of the grounds to believe the phone will have relevant information on it is significantly reduced. All that remains are the results of the search of unit 301-2460 Weston Road, which I have found to have been conducted in violation of s. 8 of the Charter . [ 144 ] I thus conclude that the search of Mr. Grant’s cellphone was a violation of s. 8 of the Charter . Issue Seven: What is the appropriate remedy for the Charter violations? [ 145 ] Having found violations of the defendants’ Charter rights, I turn to consider whether the evidence resulting from the unconstitutional searches ought to be excluded under s. 24(2). [ 146 ] In assessing whether the admission of the illegally obtained evidence would bring the administration of justice in disrepute, the court must consider: (i) the seriousness of the Charter -infringing state conduct; (ii) the impact on the Charter interests of the defendants; and (iii) society’s interest in adjudicating a trial on the merits: R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353, at para. 71 . [ 147 ] In Grant , the Supreme Court of Canada explained that the purpose of s. 24(2) is to maintain the good repute of the administration of justice, and must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Its focus is societal, aimed at systemic concerns, and not at punishing the police or compensating the defendant: Grant , at paras. 67-70 . [ 148 ] In considering the three lines of enquiry, there is no overarching rule as to how the balance is to be struck. A judge must consider all lines of enquiry and then determine whether, on balance, the admission of the evidence obtained by the Charter breach would bring the administration of justice into disrepute. [ 149 ] I turn to consider each line of enquiry. The Seriousness of the Breach [ 150 ] This first branch of enquiry requires a court to consider whether admitting 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: Grant , at para. 72 . [ 151 ] In considering the seriousness of the breach, the court focuses on the conduct of the police, and evaluates the seriousness of the state conduct that led to the breach. The court considers where the violations sit on a spectrum: for example, whether the violations of the Charter were inadvertent or minor, whether state actors were willfully blind, or whether the breaches of the Charter were wilfull or flagrant. Relevant factors include extenuating circumstances, whether the Charter -infringing conduct was part of a pattern of abuse, the blameworthiness of the conduct, the degree of departure from Charter standards, and the need for the court to dissociate itself from the conduct: Grant , at paras. 72-75 . [ 152 ] In Morelli , the Supreme Court of Canada noted that “police officers seeking search warrants are bound to act with diligence and integrity, taking care to discharge the special duties of candour and full disclosure that attach in ex parte proceedings.” They must be careful not to make statements that are likely to mislead the judicial officer, to conceal or omit relevant facts, or to exaggerate the information on which they rely to establish reasonable and probable grounds for the issuance of a warrant. The Court warned that the repute of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct, such as a departure from the duties that arise when drafting an ITO: Morelli , at paras. 99-104 . [ 153 ] Multiple Charter breaches must be considered cumulatively in assessing the seriousness of the Charter -infringing conduct: R. v. Poirier , 2016 ONCA 582 , at para. 91 . Cascading Charter breaches do not raise the severity of the breach when considering the seriousness of the state conduct: R. v. Zacharias , 2023 SCC 30 , at paras. 47-49 [ 154 ] In this case, when considering the seriousness of the state conduct, I note the following: a. I accept that the police did not act in bad faith in arresting Mr. Grant in connection with the Little Hut investigation, and in seeking a warrant to search 301-2460 Weston Road and Mr. Grant’s cell phone. b. However, the police were not sufficiently diligent in corroborating the information provided by the CI, and in particular as it relates to the nexus between Mr. Grant and 301-2460 Weston Road. c. Nor was there sufficient investigation undertaken to justify the arrest of Mr. Grant for the Little Hut investigation. I am troubled by the fact that Detective Taylor has no notes of the grounds on which Mr. Grant was thought to be arrestable for the Little Hut investigation, which in my view reflects a casual attitude to a serious action by police – depriving Mr. Grant of his liberty through his arrest. d. I am troubled by aspects of the residence ITO. Even allowing for the fact that police are lay-drafters and not expected to draft documents as a lawyer would, the ITO contained exaggeration and was misleading in certain aspects, including: (i) by identifying the location to be searched as Mr. Grant’s residence when that was not corroborated; and (ii) suggesting that police had seen Mr. Grant emerge from unit 301 when they had not. e. I am very troubled by the discharge firearm ITO, which links Mr. Grant to the discharge firearm offence based on next-to-nothing. f. I am thus not satisfied that the officers met their duties when seeking the warrants to search the phone in connection with the discharge firearm investigation or the search of 301-2460 Weston Road. [ 155 ] Overall, I conclude that the police adopted a lackadaisical approach to the investigations involving Mr. Grant. They had compelling and credible information from a CI, but they did not do with it what they needed to do to conduct the investigation in a Charter -compliant manner. In the process, they cut corners, at the expense of Mr. Grant’s and Ms. Scott’s Charter rights. [ 156 ] I conclude that the state conduct falls towards the serious end of the spectrum. The court should be concerned with dissociating itself from careless police work that casually breaches Charter rights. This branch militates in favour of exclusion of the evidence. The Impact of the Breach on the Charter- protected interests of the defendants [ 157 ] The second branch of inquiry considers the extent to which the breach(es) undermine the Charter interests of the defendants. A greater impact on those interests militates in favour of exclusion: Grant , at para. 76 . [ 158 ] An unreasonable search that intrudes on an area in which an individual reasonably enjoys a high expectation of privacy is more serious that one that does not: Grant , at para. 78 . [ 159 ] In Morelli , at para. 105 , the Supreme Court of Canada held that it was “difficult to imagine a more intrusive invasion of privacy than the search of one’s home and personal computer,” noting that one’s personal computer contains our most intimate correspondence and details of our financial, medical and personal situations, among other things. An unreasonable search of one’s home has a significant impact on a defendant’s Charter rights. See also R. v. Silveira , [1995] 2 S.C.R. 297, 1995 89 (SCC) , at para. 140 . [ 160 ] A search of a cell phone, like the search of a computer, implicates important privacy interests which differ in nature and extent from the search of other places. Any search of a cell phone has the potential to be a very significant invasion of a person’s informational privacy interests. Individuals have an extremely high expectation of privacy in their digital devices, and the impact of an unwarranted search of a cell phone will tend to be very severe.: R. v. Fearon , 2014 SCC 77 , at para. 51 , 96, 190. [ 161 ] An arbitrary arrest is a fundamental breach of personal liberty impacting seriously a defendant’s Charter -protected interests: R. v. McGuffie , 2016 ONCA 365 , at para. 79 . [ 162 ] In this case, the Crown concedes that, if a breach is found in relation to the search of unit 301-2460 Weston Road, the impact of the breach would be significant. This is a fair concession, in view of the jurisprudence that clearly identifies an unwarranted search of a person’s home as a breach with a significant impact on a person’s Charter rights. [ 163 ] Here, the impact on the defendants’ Charter rights was profound, beginning with a warrantless entry into the unit, Ms. Scott’s residence, without exigent circumstances, and then a search conducted under a warrant that the defendants have successfully challenged. [1] However, the impact of the search of the unit on Mr. Grant’s Charter rights is less than it is on Ms. Scott’s, given that the evidence establishes the unit is her residence, but it does not establish that Mr. Grant resides there. [ 164 ] The jurisprudence also supports the conclusion that the unwarranted search of Mr. Grant’s cell phone had a significant impact on Mr. Grant’s Charter rights. [ 165 ] The Crown argues that the search incident to the arrest of Mr. Grant, if found to be a breach, would be on the lower end of the spectrum in terms of its impact. I agree that, if this were the sole breach, the impact on Mr. Grant’s Charter rights would be much less. However, there are multiple Charter breaches in this case, which, as a whole, have impacted the defendants’ Charter rights profoundly. [ 166 ] I conclude that this branch of inquiry militates in favour of excluding the evidence. Society’s Interest in the Adjudication of the Case on its Merits [ 167 ] The third branch of enquiry asks whether the truth-seeking function of the criminal trial process would be better served by the admission or the exclusion of the evidence. It requires the court to consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but also the impact of failing to admit the evidence: Grant , at para. 79 . [ 168 ] The reliability of the evidence at issue is an important factor. A breach that undermines the reliability of the evidence points towards exclusion, because unreliable evidence does not serve the defendant’s interest in a fair trial, nor the public interest in seeking the truth. The exclusion of reliable and relevant evidence, on the other hand, may undermine the truth-seeking function of the justice system and render the trial unfair from a public perspective, and thereby bring the administration of justice into disrepute: Grant , at paras. 80-81 . [ 169 ] The importance of the evidence to the prosecution’s case is another relevant factor. The exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution: Grant , at para. 83 . [ 170 ] The seriousness of the offence is a factor that cuts both ways. As the Court described in Grant , at para. 84 , failing to prosecute a serious charge because evidence has been excluded may have an immediate impact on how people view the justice system. However, it is the long-term repute of the justice system that is the focus of s. 24(2), and the goals of s. 24(2) operate independently of the type of crime with which an individual is charged. “Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high”: Grant , at para. 84 . [ 171 ] In practical terms, the third line of enquiry is only important when one, but not both, of the first two factors push strongly towards the inclusion of evidence. If the first two lines of enquiry militate in favour of exclusion, the third will “seldom, if ever, tip the balance in favour of admissibility”: McGuffie , at para. 63 . [ 172 ] In this case, the evidence located is reliable, and its exclusion will gut the Crown’s case in connection with very serious offences. Guns and drugs are a scourge in our society. Society has a strong interest in ensuring that charges brought against people related to the possession of prohibited firearms and drug trafficking are tried on the merits, especially where the evidence underlying those charges is reliable, as is the case here. [ 173 ] However, it is also true that significant legal jeopardy attaches to the offences with which the defendants have been charged, and 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. [ 174 ] In my view, the third factor leans towards inclusion of the evidence, although not strongly. Conclusion on s. 24(2) Analysis [ 175 ] I have found that the first two factors militate in favour of excluding the evidence, and the third leans towards inclusion. [ 176 ] Given the seriousness of the state conduct, and the profound impact of the other breaches resulting in the search of 301-2460 Weston Road and Mr. Grant’s cell phone, I conclude that s. 24(2) requires the exclusion of the evidence located during the search of the unit and the cell phone. [ 177 ] With respect to the search incident to the unwarranted arrest of Mr. Grant in particular, given its character as part of a pattern of Charter violations in this case, the cell phone (but not the search of its content) and the keys and fob to unit 301-2460 Weston Road must also be excluded, notwithstanding the arguably more minor impact of the unconstitutional search incident to arrest on Mr. Grant’s interests. Summary [ 178 ] I conclusion, I make the following findings: a. The Crown’s Step 6 Garofoli cross-application is granted; b. The arrest of Mr. Grant for the Little Hut investigation and the CI investigation was not based on reasonable and probable grounds, and thus infringed s. 9 of the Charter ; c. It follows that the search incident to arrest infringed Mr. Grant’s rights under s. 8 of the Charter ; d. The Garofoli application with respect to the warrant to search 301-2460 Weston Road is granted. The initial warrantless search of the unit, followed by the search after the warrant was issued, were in violation of the defendants’ s. 8 Charter rights; e. The nighttime search of the unit was, in the circumstances, justified; f. The Garofoli application with respect to the warrant to search Mr. Grant’s cell phone is granted. g. The evidence obtained from the search of Mr. Grant incident to arrest, the search of 301-2460 Weston Road and the search of Mr. Grant’s cell phone must be excluded under s. 24(2) of the Charter . J.T. Akbarali J. Date: June 12, 2025 [1] I note that the Crown did not argue that Mr. Grant did not have standing to challenge the search of the unit. The defence submitted that the evidence associating Mr. Grant to the unit did not demonstrate that he lived there, but was sufficient to give him standing to challenge the search.