ONTARIO COURT OF JUSTICE

DATE: 2023 01 25 COURT FILE No.: Central East Region: Bradford Courthouse File # 19-38100891

BETWEEN:

HIS MAJESTY THE KING Respondent

— AND —

CHRISTOPHER NIGRO Applicant

Before Justice Peter C. West

Oral Submissions Heard on January 24, 2023 Reasons for s. 8 Charter Ruling Dated January 25, 2023

Counsel: Ms. K. Staats........................................................................................ counsel for the Crown Mr. D. North............................................ counsel for the defendant, Christopher Nigro

WEST J.:

[1] On December 19, 2019, Christopher Nigro was arrested and charged with offences involved in a carjacking that occurred on December 7, 2019 in Bradford, where the victim was dragged by the vehicle and sustained critical injuries that resulted in a medically induced coma and numerous surgeries. The Information was sworn on December 19, 2019, with the following offences:

• Criminal Negligence Causing Bodily Harm
• Robbery with Theft
• Dangerous Operation Causing Bodily Harm
• Failure to Stop After Accident Resulting in Bodily Harm
• Operation of Conveyance While Prohibited

[2] The trial on these charges is scheduled to commence on February 6, 2023.

[3] The defence brought an application under ss. 8 and 24(2) of the Charter alleging Mr. Nigro’s Charter rights were violated as the grounds in the ITO were insufficient to justify the issuance of a search warrant of his residence, located at 505 London Road, Newmarket, Ontario and a motor vehicle, 2018 grey GMC Sierra pick-up truck with Ontario License, AX67680. As I will explain in more detail later in my reasons, two ITOs were presented before two different justices of the peace with the first Justice of the Peace Zito authorizing the two warrants but excluding the searching of any cell phones/computers seized belonging to Christopher Nigro and modifying the search time window to be restricted to 4:50 pm to 9 pm, December 18, 2019, and the second Justice of the Peace Solursh authorizing the two search warrants and allowing any cell phones/computers seized to be searched and extending the time window from 7:45 pm, December 18, 2019 to 8:59 pm December 19, 2019. This application was set to be argued December 14 and 16, 2022, but defence counsel was unavailable due to illness and the matter was adjourned to January 24 and 25, 2023 for submissions.

[4] The application by the affiant, Detective Constable Kai Johnson, was brought prior to the arrest of Mr. Nigro, which was planned to occur on December 19, 2019 when sufficient police officers were available to execute the arrest and warrant respecting Mr. Nigro’s residence and motor vehicle. D/C Johnson authored both ITOs that were filed with the telewarrant requests.

[5] The facts surrounding the request for a search warrant relate to a carjacking in the Town of Bradford and are set out in the Information to Obtain (ITO) in the telewarrant application. On December 7, 2019, around 9 pm, 67 year old Robert McAllister was walking to his pickup truck after visiting his son who lives in Bradford. The police investigation caused police to believe on reasonable grounds that Christopher Nigro approached Mr. McAllister’s pickup from the passenger side and got into it.

[6] The pickup truck approached a stop sign within sight of the son’s apartment’s balcony. It stopped and waited for a woman and her children to cross the road. She advised police she heard two male voices arguing loudly inside the pickup but she was not able to see them. Mr. McAllister was then observed by his son to get out of the driver’s door and turn and he appeared to be yelling to his son when suddenly the pickup sped forward, dragging Mr. McAllister, who was hanging out of the driver’s seat compartment with his legs dragging on the ground because he was either hanging on or somehow trapped inside the pickup. As the truck was speeding away it moved quickly to the left, which caused Mr. McAllister to fall from the truck and be run over by the rear driver’s side wheel.

[7] The pickup continued to speed away leaving Mr. McAllister lying on the roadway. When emergency services arrived at the scene Mr. McAllister was VSA, although paramedics were able to revive him and he ultimately was taken to Sunnybrook Trauma Centre where he was put in a medically induced coma because of critical injuries.

[8] Through police investigation and video surveillance camera footage police believed it was Christopher Nigro who approached Mr. McAllister’s pickup truck and committed the offences charged.

General Principles Relating to the Garofoli Application to Review an ITO

[9] The Garofoli hearing is a pre-trial, threshold evidentiary hearing challenging the validity of an evidence-gathering tool, namely the warrant. It is not a trial on the merits where guilt or innocence is at stake. It is an inquiry where the reviewing judge must determine whether there was any basis upon which the authorizing judge could be satisfied that the relevant pre-conditions to issuance of a warrant existed: R. v. Crevier, 2015 ONCA 619, at para. 64.

[10] As with any s. 8 and s. 24(2) Charter application, the reviewing court is not to stand in the place of the justice of the peace who issued the warrant. The properly circumscribed limits of review were summarized in R. v. Mahmood et al. 2011 ONCA 693, at para. 99:

A reviewing judge does not substitute his or her view for that of the justice who issued the warrant. Rather, the reviewing judge considers the record before the issuing justice, the ITO, trimmed of any extraneous or unconstitutionally obtained information, but amplified by evidence adduced on the hearing to correct minor technical errors in drafting the ITO, to determine whether there remains sufficient credible and reliable evidence to permit the justice to issue the warrant: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 40-42; R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at paras. 8 and 30; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 54 and 59: R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 1452; and R. v. Wiley, [1993] 3 S.C.R. 263, at pp. 273-274.

[11] A Charter review is not a de novo hearing. The issue is whether the issuing judge could have issued the warrant on the basis of the sworn ITO. In R. v. Morelli, 2010 SCC 8, [2010] S.C.J. No. 8, the Supreme Court held at para. 40:

…The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.

[12] A search warrant is obtained ex parte so an affiant must provide “full, frank and fair” disclosure of the relevant facts to the issuing Justice of the Peace. (R. v. Nguyen, 2011 ONCA 465, [2011] O.J. No. 2787 (C.A.), at para. 48).

[13] Justice Hill in R. v. Ngo, 2011 ONSC 6676, [2011] O.J. No. 5023 at paragraph 34-35 collected a series of key general principles to guide a reviewing court and to summarize the meaning of "reasonable grounds":

• A warrant is presumptively valid until the challenging party establishes that there was no basis for its issuance. (R. v. Campbell, 2010 ONCA 588, at para. 45., aff'd, 2011 SCC 32).
• A reviewing judge is not to engage in "examining the conduct of the police with a fine-tooth comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence in support of the application" (R. v. Nguyen, at para. 57).
• Scrutiny of the ITO must take a holistic approach, assessing the document as a whole without devolving into a hyper-focussed examination of isolated passages. (R. v. Cunsolo, [2008] O.J. No. 3754 (SCJ), at para. 135).
• Police officers are not trained legal draftspersons and should not be held to the exacting standards of lawyers nor are they expected to "spell out things with the same particularity of counsel".
• Perfection is not the standard against which the ITO should be measured. (Nguyen, at para. 58).
• The ITO must present reliable, balanced and material facts supporting the affiant's belief in a clear and concise manner. It need not include every minute detail of a police investigation.
• Credibly-based probability does not equate to proof beyond a reasonable doubt or to a prima facie case, though it is more than mere suspicion.
• Whether an affiant subjectively had grounds of belief, and whether those grounds are objectively reasonable, is a fact-specific determination to be made on a case-by-case basis.
• Grounds of belief are to be considered in their totality and not hived out in isolation. The cumulative effect of individual grounds can form a valid basis for the issuance of a warrant. (Campbell, at para. 57).
• The affiant's experience is relevant to the formation of their reasonable grounds. A trained officer is entitled to draw inferences and make deductions drawing from their experience which a reviewing court must take into account.
• The issuing justice is entitled to draw reasonable inferences from stated facts without the informant underlining or explicitly stating the obvious.

[14] The warrant is presumptively valid. The party challenging the warrant has the onus of demonstrating it was not validly issued. The issue on a Garofoli hearing is whether the minimum standard for authorizing a search and seizure was established in the ITO. That standard is reasonable and probable grounds to believe that an offence has been committed and there is evidence to be found at the place of the search: R. v. Debot, [1989] 2 S.C.R. 1140, at pp. 1165-66; Crevier, at para. 66.

Principles Applied to this Case

[15] The affiant, D/C Johnson, initially applied through a telewarrant to Justice of the Peace Zito, for two search warrants to search the residence at 505 London Road, Newmarket and the 2018 grey GMC Sierra Ontario Licence AX67680. The time period requested for the search to be conducted was between December 18, 2019, from when the telewarrant was approved to 8:59 pm on December 19, 2019. The application identified a number of items police would be searching for including cell phones and computers seized from or believed to be the property of Christopher Nigro. Justice of the Peace Zito partially granted the warrants but excluded the searching of “cellphones and computers for insufficient grounds since they had not been linked to the commission of the offence” and modified the time window from 4:50 pm to 9:00 pm on December 18, 2019. This amended warrant was sent to D/C Johnson by email on December 18, 2019, at 5:01 pm.

[16] The defence did not receive this initial ITO until after they had filed their first s. 8 Notice of Application and Factum, dated November 14, 2022, which related to the warrants authorized by Justice of the Peace Solursh and the second telewarrant application filed by D/C Johnson less than three hours after receiving Justice of the Peace Zito’s authorization. As a result of receiving the warrants based on the initial ITO considered by Justice of the Peace Zito (subsequent to their initial Factum) the defence filed a Supplementary Notice of Application and Legal Argument Regarding Sections 8 and 24(2) of the Charter of Rights, dated December 9, 2022. The defence also requested this be filed on short notice, which I understand the Crown does not oppose. The Crown filed a Crown response on December 5, 2022 and a Supplementary Crown Response on December 15, 2022.

[17] A second telewarrant application was submitted to the telewarrant office by D/C Johnson on December 18, 2019, because police resources could not be organized within the time window of the telewarrant authorized by Justice of the Peace Zito to safely and effectively execute the authorized warrant to search. The Crown advised in her supplementary response that the day shift Justices of the Peace left after 5 pm and as a result, a different Justice of the Peace reviewed the second telewarrant application. D/C Johnson advised Justice of the Peace Solursh that an earlier telewarrant application had been made that same day, hours before, to Justice of the Peace Zito, and that Justice of the Peace Zito had restricted the time window of the search to be from 4:50 pm to 9 pm on December 18, 2019 and had excluded the search of any cell phones and computers seized as there was no link to the commission of the offence in the ITO. D/C Johnson advised Justice of the Peace Solursh of the difficulty in organizing police resources for the time authorized by Justice of the Peace Zito. D/C Johnson further advised His Worship Solursh that police resources had been organized and would take place at 4 am on December 19, 2019, to execute the warrant when Christopher Nigro left his residence to attend his work in the morning. He also advised that he had “modified the grounds to believe to better explain the nexus of the cell phones and computers to post offence evidence” and that the other grounds had remained unchanged from the original application to His Worship Zito.

[18] Before dealing with the defence submissions relating to the facial validity of the search warrants authorized by Justice of the Peace Solursh, I want to address Mr. North’s arguments in his Supplementary Factum respecting D/C Johnson’s second ITO. Mr. North criticizes D/C Johnson for not identifying in the second ITO what information is new or different from the first ITO provided to Justice of the Peace Zito. This is not a requirement and as I have already indicated D/C Johnson did identify that he had applied earlier that same day for the search warrants and he set out the time window modification and the exclusion of searching cell phones/computers by His Worship Zito. He provided an explanation of not having adequate police resources during the time window given and further advised he had modified the new ITO to better explain the nexus of cell phones and computers to post offence conduct. In my view this directed Justice of the Peace Solursh to specifically look at those paragraphs in the ITO related to cell phones/computers and why the search of them should be authorized given there were reasonable grounds to believe searching them would provide evidence of the commission of the offences. I have set out those paragraphs later in my reasons.

[19] In R. v. Bond, [2021] O.J. No. 5345 (C.A.), at para. 28, the Court of Appeal indicated there is no bright-line rule that the police cannot make a second application for a warrant if the first application is rejected, see also R. v. Campbell, [2014] O.J. No. 6541 (SCJ, McMahon), at para. 40. It is significant there is no appeal from that initial refusal.

[20] This new ITO was not an appeal of Justice of the Peace Zito’s decision, in fact, where as in this case, Justice of the Peace Solursh was aware there was a previous application, he will be exercising his own discretion as if it is a hearing de novo, not a review of Justice of the Peace Zito’s decision, see Bond, at para. 30 and R. v. Colbourne, [2001] O.J. No. 3620 (C.A.), at para. 41.

[21] Mr. North submitted there was no information in the second ITO as to whether D/C Johnson provided a copy of the original ITO to Justice of the Peace Solursh or that D/C Johnson consulted with the Crown or received any advice before submitting the second ITO. These are also not requirements. Based on Colbourne and Bond, it is significant that D/C. Johnson advised the new justice of the peace in the second ITO that an earlier ITO had been presented and amendments had been imposed by Justice of the Peace Zito. D/C Johnson provided the reasons expressed by His Worship Zito and explained the additional steps he was taking to demonstrate the nexus between his reasonable grounds to believe evidence would be found on any the cell phones and computers and relevant to post offence conduct on the part of the suspect, Christopher Nigro. As Justice McPherson expressed in paras. 32-33 in Bond, this disclosure ensured the openness and transparency of the process that Mr. North submitted was lacking. Further, as a result of that disclosure Justice of the Peace Solursh was well-positioned to consider the application de novo, which is his duty.

[22] Mr. North also criticized the fact that D/C Johnson brought the second telewarrant application before a different justice of the peace and left the suggestion that D/C Johnson was “judge-shopping” dangling in the air. The fact that D/C Johnson’s second telewarrant application and ITO went before a different justice of the peace is accurate; however, this was not done intentionally by the affiant to “judge-shop”, as this second application was brought before and ultimately approved by the next justice of the peace who was on duty. The defence suggestion could not be further from the truth and the actual state of affairs. In fact, Justice McMahon in Campbell suggested where a second application is brought the application should be done before the next judicial officer on call, see Bond, at para. 34, which is exactly what occurred in this case.

[23] Further, even if the two ITOs were identical, which I find they were not, this would not be fatal to its issuance, as each case must be addressed on its own facts. It is my view that the defence submissions on this issue are really an invitation to uphold Justice of the Peace Zito’s original decision. Of course that was not the role of Justice of the Peace Solursh, who was tasked with exercising his own discretion, to consider the application de novo. My task as a judge reviewing the ITO and telewarrant application authorized by Justice of the Peace Solursh is to determine whether he “could” have issued the warrant based on the credibly-based probability materials put before him.

[24] In the first Defence Factum Mr. North argued that the police drew inferences as to Christopher Nigro being the individual who carjacked Mr. McAllister largely based on comparisons of images found from various sources including Facebook and surveillance video footage. The ITO also made reference to comparing those items with Christopher Nigro’s mugshot from York Regional Police. The defence criticized the affiant from not including images and comparisons and only including in the ITO descriptions of the images and comparisons and purported identification of Christopher Nigro. He submitted this was a “significant omission” and should be viewed negatively by the reviewing court. Justice of the Peace Solursh, in my view, was entitled to rely on the affiant’s reasonable belief, regarding the identity of Christopher Nigro. Mr. North points to differences in some of the images relating to the coat worn by the individual identified as Christopher Nigro and the ball cap description based on different surveillance camera images. The defence refers to the ITO describing the coat worn by the person identified as Christopher Nigro as being both a long coat and a short coat. The defence characterization of the coat as being a “short” coat is no where to be found in the ITO. Further, the defence argued the ball cap is described as both a dark ball cap and as a “Wizard Carpentry”/hologram ball cap. The defence argues these are significant differences, which it is argued do not support the identification of Christopher Nigro. As I will expand upon I do not agree with this submission.

[25] The first difficulty with the defence argument is that there is no requirement for the affiant to include images of the Facebook page or still images of the surveillance video camera or the mugshot. D/C Johnson provides detailed descriptions of the investigative steps performed by the police, which enabled him to be able to form the reasonable grounds to believe that Christopher Nigro was the individual with Tylor Loran on December 7, 2019. The police became aware of Tylor Loran and his friend through a video surveillance canvas and interviews of owners and staff conducted by the police of the businesses in the area of the carjacking. Tylor Loran and his friend (later identified by police as Christopher Nigro) were observed attending a number of different establishments in Bradford and being ejected because of being intoxicated on December 7, 2019, in the hours leading up to the carjacking and in close proximity to where the carjacking occurred. The ITO included a map showing the route taken by Tylor Loran and Christopher Nigro, based on the video surveillance cameras and times noted, and all of the establishments are quite close to the location of the carjacking and where Mr. McAllister was left on the roadway after he was run over by the pickup. I have summarized below the observations and reasonable inferences drawn by the affiant from this evidence that was uncovered through the police investigation.

a) Police did a comprehensive video canvass and at 6:33 pm two intoxicated males were seen entering Kenzingtons Restaurant. They were stopped by staff as Tylor Loran was known to them and banned from the bar. They were not granted entry and they moved on. The other person with Tylor Loran was wearing a ball cap with “Wizard Carpentry” on it. b) The two men go next door to Tasquienha Bar and Grill and are not served and asked to leave for being intoxicated. c) They then go to San Francisco’s and each have a beer and are again asked to leave for being intoxicated. d) At approximately 7:15 pm Tylor Loran and his friend enter the Wing Zone and have a beer. Tylor Loran is identified by the waitress at Wing Zone as someone she went to high school with. He was with a friend (she did not know the friend). She provided Tylor Loran’s picture from his Facebook page. Tylor Loran and his friend were asked to leave because of being intoxicated at 7:45 pm. e) The waitress observed Tylor and his friend try to get into a female patron’s van, when she had run into the restaurant to get a take out order. They opened the van’s doors and were getting in when they were confronted by the patron and they left the area walking eastbound. f) They are observed on video to enter Dick’s Bargain Barn, which was next door to the Wing Zone. The cashier at Dick’s Bargain Barn provided information about two intoxicated men who purchased cigarettes around 8 pm and he knew one of the males as “Chris.” He also observed the two men stealing items from the store before they left. g) Tylor and his friend (identified by police as Christopher Nigro see (j) below) are then observed walking by the pharmacy in the same plaza and at 8:03 pm on video they are observed walking south by Zumba in Da House towards the bowling alley. h) Police interviewed three witnesses who were in the bowling alley for a fund raiser for a young child requiring a kidney transplant. They all observed two intoxicated males come into the bowling alley and cause an issue. All witnesses saw one of the males leave and the male named Tylor remained in the bowling alley and was still there when the fire trucks, ambulance and police arrived on the scene on Drury Street. All three witnesses observed Tylor repeatedly attempting to contact his friend who had left on foot. All indicated Tylor was not able to reach his friend. i) The bowling alley owner was interviewed by the police. He kicked both individuals out of the bowling alley for causing a disturbance and being intoxicated. He identified the first person who left as being the same person as in an image of a screen shot from the video taken by Zumba in Da House at 8:03 pm, which the police showed him. This person was identified by police as being Christopher Nigro. (see paragraph (j) below.) Tylor Loran returned to the bowling alley and apologized for he and his friend’s behaviour. The owner also observed Tylor constantly calling his friend trying to find him. j) Police looked at Tylor Loran’s Facebook and found a photograph of a friend, Christopher Nigro, who was listed as one of Tylor’s Facebook friends and in the photograph Christopher Nigro is wearing a “Wizard Carpentry” ball cap with a round hologram on the brim. It was the belief of the police that the individual with Tylor at Kenzingtons on the video is clearly Christopher Nigro, when compared to the Facebook photograph and later with a York Regional Police mugshot. k) Tylor Loran is observed on video walking with his friend (identified by police as Christopher Nigra), who is a white male, wearing a dark ball cap, timberland boots with tongue flopped down, dark upper rim of boot and dark laces, blue skinny jeans, grey shirt, and a dark coat to his knees or dark jacket sitting below his butt. At different video shots “Wizard Carpentry” with a round hologram on the brim can be seen on the ball cap. The affiant indicates this ball cap is in the Facebook photograph of Christopher Nigro and can be seen with a hologram on the brim of the ball cap he is wearing, which is also seen on the ball cap of the person walking away from the front entrance of the bowling alley. l) At 8:53 pm, a male is observed on a video by the Bradford Family Dentistry located at 100 Holland Street West, having trouble catching his balance walking away from the bowling alley front entrance. He is wearing a dark coat to his knees, boots with the tongue flopped forward and a ball cap that has a hologram on the brim, which glows in the night vision camera. The affiant believed this male person is Christopher Nigro. The video is watched from 8 pm for the next hour and no other person comes from this area other than a person walking a dog and is unrelated. m) At 8:57 pm Robert McAllister can be seen leaving the front door of 70 Drury Street North heading towards his parked truck at the north guest parking spots. At 8:58 pm a white male wearing timberland boots with tongue flopped down, dark upper rim of boot and dark laces, blue skinny jeans, grey shirt, a long coat down to his knees and a dark ball cap walking east across the camera towards the north guest parking spots. The clothing and boot description including the gait and physical characteristics of Christopher Nigro according to the affiant appear to match other videos of Christopher Nigro captured earlier that evening, December 7, 2019, which leads to the reasonable inference that it is Christopher Nigro who is walking towards the area where Robert McAllister’s pickup truck is parked. n) From the video camera located at 69 Drury Street at 8:58 pm, a male matching Robert McAllister’s description walks from the front door of 70 Drury Street towards the north guest parking area. The headlights flash on. At that point a person approaches the area of the truck. The truck backs out of the spot and heads northbound on Drury Street where it stops. (The police watched the video for two hours prior to 9 pm and one hour after 9 pm and no other person is seen going into the area or out of the area of where Robert McAllister’s pickup truck is parked). o) The affiant believed the person leaving the bowling alley and walking to 70 Drury Street at 8:55 pm is Christopher Nigro and he is then picked up by the videos at 70 Drury and 69 Drury walking to Robert McAllister’s pickup truck at 8:58 pm.

[26] In my view there is a reasonable probability that Tylor Loran and Christopher Nigro are the two intoxicated individuals observed at the numerous places identified above and that the police identified Tylor Loran’s friend as being Christopher Nigro from the various videos referred to by comparing them with Christopher Nigro’s Facebook photograph found on Tylor Loran’s Facebook as one of Tylor Loran’s friends and with Christopher Nigro’s mugshot from York Regional Police Service. It is my view His Worship Solursh could have determined the same reasonable probability respecting the identity of Tylor Loran’s friend. Further, it is my view there was no credible challenge in the defence written and oral submissions to the identification made by the police as to the identification of Christopher Nigro.

[27] The second area of Mr. North’s argument is based on his submission that D/C Johnson’s assertions in the ITO, while framed as his belief based on reasonable and probable grounds: “amount to nothing more than an expression of hope of what could possibly be found on the applicant’s phone.” Mr. North argues that this “is a far cry from credibly-based probability that the items sought will be at the location searched for and will afford evidence of the offences under investigation,” citing R. v. Ricciardi, 2017 ONSC 2788, at paras. 113-117. According to the defence the issue is that the language of the affiant in the ITO respecting what he believes will be discovered on the Applicant’s cell phone and/or computer signifies the factual reality – that, on the facts presented in the ITO, no credibly-based probability existed to believe that that evidence related to the commission of the offences or post offence conduct.

[28] Equivocal terminology in search warrants such as "may" has received differing interpretations based on a contextual analysis. In R. v. Adansi, 2008 ONCJ 144, [2008] O.J. No 1202 (OCJ) the affiant agreed during cross-examination that his meaning in specifying that the target "may store the firearm" was to convey "a suspicion that there is a possibility that a weapon or weapons, or things of that nature may be in his apartment" (at para. 49). In such a circumstance, Clark J. had no difficulty concluding that the word "may" was an acknowledgment by the affiant that he had raised a "possibility, not a probability" (at paragraph 62). That fact scenario is very different from the facts and contextual circumstances present in this case as set out in the ITO.

[29] The issue of conditional language in an ITO was recently addressed in R. v. Brown, [2021] O. J. No. 4066 (C.A.). There the affiant sought a general warrant for covert entry into a storage locker and utilized language in the ITO which included "if controlled substances are located", and "should the police discover a quantity of drugs", and that the reviewing judge used phrases such as " [i]t was hoped" and "police hoped" which the appellant suggested implied reservation rather than the necessary credibly-based probability. Despite the use of "conditional terminology", the appellate court found that the ITO on its whole set out a reasonable belief that evidence of drug trafficking would be located in the storage locker (at paragraphs 37-41).

[30] I do not agree with the defence submission on this issue for the following reasons:

1. The warrant is presumptively valid on its face and the Applicant bears the onus on a balance of probabilities with respect to the constitutionality of the telewarrant authorized by Justice of the Peace Solursh.
2. I must look at the whole of the ITO and all of the circumstances set out by the affiant. I must determine whether a reasonable person, standing in the shoes of the affiant, would have believed the facts probably existed and have drawn the necessary inferences from those facts.
3. It is my view that D/C Johnson was detailed in his description of the police investigation into the carjacking of Robert Allister and the investigative steps taken by the police in determining who they had reasonable grounds to believe committed the offences. From my review of the ITO I find that the information set out by D/C Johnson was full, frank and fair and clear and concise.
4. In looking at the whole of the ITO it is my view there is a reasonable inference that Christopher Nigro was with Tylor Loran from some time prior to 6:33 pm until 8:53 pm, where they went from establishment to establishment until they were kicked out or forced to leave because of causing a disturbance and because of their being intoxicated. They were clearly together throughout this period of time until Christopher Nigro left the bowling alley before Tylor Loran left. The evidence presented demonstrated Tylor came back into the bowling alley and began to repeatedly call Christopher Nigro on his cell phone. It is my view this leads to the reasonable inference that Tylor Loran was unable to locate his friend when he left the bowling alley and came back inside, apologized to the owner and commenced calling Christopher Nigro using his cell phone.
5. This in turn, in my view, leads to the reasonable inference that Christopher Nigro had a cell phone and that Tylor Loran was aware of this, he knew the phone number to that phone and that Christopher Nigro had this cell phone on his person on December 7, 2019. There is a reasonable inference given the clothing, gait, and physical characteristics of Christopher Nigro described by the affiant from the videos when he was with Tylor Loran (as described in detail by D/C Johnson) that the male person who left the front entrance of the bowling alley at 8:53 pm, walking with difficulty keeping his balance by the Bradford Family Dentistry and at 8:58 pm was observed on the video wearing similar clothing and walking towards the north parking area where Robert McAllister parked his pickup truck that this person is Christopher Nigro. Robert McAllister is observed on video at 8:57 pm first leaving 70 Drury and at 8:58 pm on the 69 Drury video Mr. McAllister is observed getting to his pickup truck, the headlights go on and another person is then observed approaching the truck, the truck drives north on Drury Street and then stops. In my view Justice of the Peace Solursh could form the credibly-based probability that this person who approached the pickup truck is Christopher Nigro.
6. The evidence of the woman with her children who crosses Drury Street in front of the pickup truck is set out in the ITO. She hears male voices from inside the pickup loudly arguing and she then sees a man who ends up standing outside the driver’s door, when the pickup suddenly moves quickly forward dragging this man, the man fell to the ground and was then run over by and whoever was driving the pickup. Again, in my view there is a reasonable inference this was Christopher Nigro based on the totality of the evidence set out in the ITO respecting identity and the affiant’s reasonable belief this person was Christopher Nigro. Further, there is a reasonable inference given how Mr. McAllister was dragged for some distance before he fell and was run over by the rear driver side wheel of the pickup that Christopher Nigro would have been aware this occurred and the seriousness of the consequences/injury to the pickup’s owner caused by his commission of the carjacking.
7. The affiant references cell phone/computer usage in different parts of the ITO and explains its nexus to providing evidence relating to the commission of the offences and post offence conduct by Christopher Nigro: a. Paragraph 59 (j) of ITO: Tylor Loran is repeatedly calling Christopher Nigro around 9 pm on December 7, 2019 which is the time of the offence. I believe that Tylor Loran eventually was able to connect with Christopher Nigro through their cell phones and assisted Nigro in making good his escape. There may be criminal jeopardy in post offence assisting Christopher Nigro flee. b. Paragraph 59(k) of ITO: The post offence use of Christopher Nigro’s cell phone is evidence towards the commission of the offences listed in Appendix A. c. Paragraph 59(l) of ITO: I believe that the use of Christopher Nigro’s cell phone to make good his escape is a continuation of the commission of the offence. The offence is not yet complete until he has escaped. d. Paragraph 61 of the ITO: Cell Phones/Computer Systems…Cell phone and computers are the accepted means of communication and storing information in today’s society. I have included “Terms and Conditions” as part of this application to further search any seized cell phones and/or computer systems to gain valuable further evidence towards the investigation. Tylor Loran was seen on December 7, 2019 around 9 pm calling Christopher Nigro repeatedly. I believe there will be inculpatory admissions on his cellular phone and computer systems. I have used accused persons internet searches in other investigations such as police media releases, media reports on the event and searches to destroy evidence as post offence knowledge and culpability. Any communication detailing a criminal act being discussed can provide the platform to further serious criminal liability. I believe that Christopher Nigro and Tylor Loran will have communicated through messaging platforms which will detail Nigro’s criminal culpability. Post offence use, admissions, statements and research on Christopher Nigro’s cell phone is evidence towards the offences listed in Appendix A. e. Paragraph 64 of the ITO: I believe that Christopher Nigro will have inculpatory admissions on his cell phone through messaging platforms, contacts, emails, geo location and voice mails. f. Paragraph 65 of the ITO: It is my belief that there will be stored information in the cellular phone and computer internal memory devices. The basis of this investigation is a serious robbery of a truck where the victim suffered significant injury. g. Paragraph 67 of the ITO: I believe that a search of the call logs, texting logs, photos, recordings, stored files, contacts and communications within the seized cell phone/computer that were sent by the accused will provide valuable evidence to accomplices, planning and inculpatory evidence such as admissions and photographs. h. Paragraph 68 of the ITO: Cellular phones may also contain digital cameras, a global positioning system (“GPS”) that can connect wirelessly to peripheral devices independent to the phone. i. Paragraph 69 of the ITO: The cellular phone has text messaging capabilities. These messages are held in the device and indicate a telephone number and where it originated from, the time day and also contains the contents of the message sent or received in its internal memory. j. Paragraph 70 of the ITO: I have personal experience from previous police investigations where I learned that cell phones would internally electronically retain ingoing/outgoing calls and text messages. Text messages are not kept off site. k. Paragraph 71 of the ITO: Forensic analysis can retrieve data that may be hidden or previously deleted, including prior drafts of documents, texts and emails. Further, it may assist in identifying when documents were created. l. Paragraph 72 of the ITO: Electronic devices, namely cell phones/computers, have internal voice and visual recording devices. An analysis of these files will provide valuable information. m. Paragraph 74 of the ITO: Deleted files or file fragments may exist for an extended period of time on the cellular phone due to the design of most common operating systems. Files that have been deleted by the user are not physically erased. Rather, the operating system merely “forgets” where the file is stored, and the space is available to be re-used in the future. If that space is not re-used prior to seizure, forensic programs can retrieve this information for police. n. Paragraph 75 of the ITO: The message, call logs and file sharing that are on cell phone/computer will lead investigators to other possible witnesses or identify people who had knowledge of the offences.
8. Given there is a reasonable inference available on the whole of the evidence provided within the ITO that Christopher Nigro was the individual who got into Robert McAllister’s pickup truck and committed the robbery in my view it is a reasonable inference available to the issuing justice that he would utilize his cellular phone to call, text, leave a message, email for assistance from Tylor Loran or any of his friends and acquaintances to be able to successfully evade and escape capture by the police. The pickup truck was observed on several video cameras driving westbound on Holland Street West and then it turned north on Toronto Street where it is abandoned. This leads to the reasonable inference that Christopher Nigro abandoned the pickup truck on Toronto Street and it is equally a reasonable inference he would be attempting to contact someone, perhaps Tylor Loran, who he had been with for at least three hours and probably longer that evening before he committed the carjacking, or another friend, to assist him in escaping and evading capture by the police. In my view this is not just a hope or a possibility but is a credibly-based probability and that is what D/C Johnson reflected in the ITO and Justice of the Peace Solursh could have relied on to issue the warrant to search any cell phones or computers seized or located.
9. It is my view there is a reasonable inference that there would be evidence on Christopher Nigro’s cellular phone of his involvement in these offences and Justice of the Peace Solursh was completely within his jurisdiction to exercise his discretion based of the whole of the ITO and find there was a credibly-based probability that such evidence existed on Christopher Nigro’s cell phone/computer and as a result authorize any cell phones/computers the property of Christopher Nigro to be searched. The GPS information stored in Christopher Nigro’s cell phone from this night would have confirmed the information gleamed and observed from the video surveillance cameras.

[31] I do not agree with the defence characterization of D/C Johnson’s reasonable grounds to believe that evidence existed on Christopher Nigro’s cell phone as only a “hope” or a “possibility.” In my view D/C Johnson’s reasonable belief that evidence would be located on Christopher Nigro’s cell phone was a reasonable probability and a fair reading of the totality of the ITO supports this credibly-based probability.

[32] A further consideration which I find supports D/C Johnson’s reasonable grounds to believe there is evidence to be searched for and found on Christopher Nigro’s cell phone is the “Terms and Conditions” included in the ITO respecting the request to search cell phones/computers; namely,

An examination and analysis during the time frame of this investigation of all the seized cellular phones, computer systems and storage devices that are seized incident to arrest or through this authorization and are reasonably believed to be the property of Christopher Nigro.

1. Communications – in relation to only the ACCUSED – Christopher Nigro
2. A timeline of activity in relation to the pre-offence, offence and post offence behaviour and usage.
3. Ownership details identifying primary ownership and primary user.
4. Multimedia content which includes but not limited to pictures, videos, recordings and sound recordings.
5. Passwords, encryption keys and access keys.
6. Identification of any/all victims.
7. Device and software configuration settings including geographic location information.
8. All stored files including images and visual recordings.
9. Securing all files for destruction.

[33] It is my view the restrained form of the search clearly demonstrates how D/C Johnson was attempting to limit and restrict access to data on Mr. Nigro’s phone that would not be relevant to the offences alleged to be committed.

[34] I find based on the totality of the facts set out in the ITO that Justice of the Peace Solursh could issue a warrant to search any cell phones/computers found to be the property of Christopher Nigro.

Released: January 25, 2023 Signed: Justice Peter C. West