ONTARIO COURT OF JUSTICE DATE: 2024 06 03 Newmarket, Ontario
BETWEEN:
HIS MAJESTY THE KING
— AND —
JIDE ANIMASHAUN and MARLON JOHNSON
Before: Justice R.M. Robinson
Heard on: 18 and 19 April 2024 and 2 May 2024
Reasons for Judgment released on: 3 June 2024
Counsel: Kellie Hutchinson, counsel for the Crown Stephanie Brown, counsel for Mr. Animashaun Janelle Belton, counsel for Mr. Johnson
ROBINSON J.:
I - OVERVIEW
[1] On 20 October 2022 at approximately 03:00, Mr. Animashaun was driving Mr. Johnson from the 2020 Lounge night club when a vehicle pulled up next to them. The occupant(s) began shooting at them.
[2] Mr. Animashaun was shot in the hand and Mr. Johnson in the shoulder. They exited Mr. Animashaun’s Mercedes and fled on foot. Mr. Animashaun called 9-1-1 at 03:08.
[3] York Regional Police (“YRP”) officers and paramedics arrived within ten minutes and transported Mr. Animashaun and Mr. Johnson to the hospital, where they subsequently underwent surgery.
[4] D/C Cara Brown and D/C Jennifer Duchesne attended the hospital and attempted to obtain information from the two victims. At 10:48, D/C Brown seized Mr. Animashaun’s cell phone, turned it into airplane mode, removed the SIM card and sealed it in a property bag. Mr. Animashaun provided D/C Brown with the pass code.
[5] At approximately the same time, a YRP canine officer following the blood trail leading from Mr. Animashaun’s vehicle located a handgun partially buried in mulch in a grassy area.
[6] The discovery of the firearm was communicated to D/Cs Brown and Duchesne and Mr. Animashaun and Mr. Johnson were arrested at the hospital for possession of a firearm at 11:03.
[7] At 11:45, Mr. Animashaun provided a 45-minute audio statement to D/Cs Brown and Duchesne after having consulted with counsel.
[8] At 12:53, a search warrant for Mr. Animashaun’s Mercedes was authorized. It was executed the next day, on 21 October 2022, at which time two cell phones were located, at least one of which was attributed to Mr. Johnson.
[9] It was not until 27 January 2023 that a search warrant in relation to all three seized cell phones was sought and granted.
[10] Data from Mr. Animashaun’s cell phone was extracted on 7 March 2023. Data extraction from the other two cell phones was completed on 8 May 2023 and 4 October 2023.
[11] I am told that data relevant to ownership of the cell phones and possession of a firearm was located on the cell phones.
II – THE ISSUES
[12] Mr. Animashaun and Mr. Johnson (“the applicants”) challenge the search warrant relating to the cell phones and seek the exclusion of the firearm and the cell phone extraction data. In a ruling issued on 16 April 2024, I granted the applicants leave to cross-examine the affiant of said search warrant (D/C Brandon Shaw) on a limited number of issues.
[13] During the Charter application, I heard testimony from D/C Brown, D/C Shaw and D/C Duchesne.
[14] The applicants raise the following issues on this application:
(1) The warrantless seizure of Mr. Animashaun’s phone was unlawful. Accordingly, any reference to the phone should be excised from D/C Shaw’s Information to Obtain (“ITO”). (2) A number of assertions made in the ITO were erroneous and, therefore must be excised from the ITO. What remains after excision would not provide reasonable grounds to believe that the cell phones will afford evidence with respect to possession of the firearm. (3) The actual searches of the cell phones were conducted outside of the time frame authorized in the search warrant, in violation of the applicants’ s.8 Charter rights. (4) Even if sufficient grounds remained after excision, the conduct of the police was so subversive of the pre-authorization process that I should exercise my residual discretion to set aside the search warrant. (5) Under s.24(2) of the Charter, the firearm and the data extracted from the cell phones should be excluded from trial.
III – LEGAL PRINCIPLES
[15] My role as the reviewing justice is narrowly circumscribed: I must assess the record that was before the issuing justice [1], as amplified upon review, and determine whether the warrant could have issued. Whether or not I would have issued the warrant is irrelevant. [2]
[16] The limited scope of my review is the same with respect to a facial attack and a sub-facial attack on the warrant. The nature of each type of challenge was described as follows in R. v. Sadikov, 2014 ONCA 72, at paras 37-38:
37 A facial validity challenge requires the reviewing judge to examine the ITO and to determine whether, on the face of the information disclosed there, the justice could have issued the warrant: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 19. The record examined on a facial review is fixed: it is the ITO, not an amplified or enlarged record: R. v. Wilson, 2011 BCCA 252, 272 C.C.C. (3d) 269, at para 39.
38 Sub-facial challenges go behind the form of the ITO to attack or impeach the reliability of its content: Araujo, at para 50; and Wilson, at para 40. Sub-facial challenges involve an amplified record, but do not expand the scope of the review to permit the reviewing judge to substitute his or her view for that of the authorizing judicial officer: Araujo, at para 51; and R. v. Garofoli, [1990] 2 S.C.R. 1421, at p.1452. The task of the reviewing judge on a sub-facial challenge is to consider whether, on the record before the authorizing justice as amplified on the review, the authorizing justice could have issued the warrant: Araujo, at para 51; and Garofoli, at p.1452. The analysis is contextual: Araujo, at para 54. The reviewing judge should carefully consider whether sufficient reliable information remains in the amplified record, in other words, information that might reasonably be believed, on the basis of which the enabling warrant could have issued: Araujo, at para 52.
[17] In establishing the record for the purposes of review, what is to be excised from the ITO is information that is erroneous, not information that is correct, or information that contradicts other information, or information with which the reviewing judge does not agree. [3]
[18] The reviewing court must exclude erroneous information included in the original ITO, but may also consider, within limits, additional evidence adduced on the voir dire to correct minor errors in the ITO. Amplification evidence corrects good faith errors of the police in preparing the ITO but does not extend to deliberate attempts to mislead the authorizing judge [4]. Evidence relied upon to amplify the record must be evidence available to investigators at the time the ITO was sworn, not information acquired later. [5]
[19] In determining what constitutes erroneous or misleading information in an ITO, the duty placed on an affiant bears repeating. In Araujo, the Supreme Court of Canada emphasized that “[t]he legal obligation on anyone seeking an ex parte authorization is full and frank disclosure of material facts… [the ITO must] set out the facts fully and frankly for the authorizing judge in order that he or she can make an assessment of whether these rise to the standard required in the legal test for the authorization.” [6]
[20] In R. v. Booth, 2019 ONCA 970, at paras 57-64, Paciocco J.A. provided the following instructive comments regarding circumstances calling for excision or amplification:
57 Where full and frank disclosure has not been made, a reviewing court will correct the warrant ITO to achieve full and frank disclosure, and then determine based on that corrected ITO whether the warrant could properly have issued if full and frank disclosure had been made. "What is involved is an analysis [of the corrected ITO] to determine whether there remains sufficient reliable information upon which the search authority could be grounded": R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321, at para. 45.
58 Sometimes erroneous information in an ITO will be corrected by simply removing it. Information that should not have been included in the warrant will always be "excised" in this way: Morelli, at para. 45.
59 Erroneous information that would have been appropriate for inclusion in the ITO if presented accurately will sometimes be corrected by "amplification" so that it can be considered during the sufficiency review. Amplification entails adding information that should have been disclosed in order to give an accurate picture or replacing mistakenly inaccurate information with accurate information. When material information that would hinder a finding of reasonable and probable grounds has been improperly omitted, the ITO must be amplified to include it. However, amplification relating to information that could advance the warrant application is permissible only if the error in not making full and frank disclosure is: (1) a "minor, technical error"; and (2) made in "good faith": Araujo, at para. 59; Morelli, at para. 41.
60 Whether the omission satisfies the first of these two amplification prerequisites - the "minor technical error" requirement - depends on the significance and nature of the error.
63 Where the erroneous information cannot be corrected because the error is not a "minor, technical" one, it is obvious that it must be excised in its entirety. This is because the uncorrected, erroneous information simply cannot be permitted to remain in the ITO, thereby providing an inaccurate boost to the case for reasonable and probable grounds.
64 The same is true where an officer has not acted in good faith when failing to make full and frank disclosure - the second amplification prerequisite. Given that amplification is confined to "good faith" error correction, it follows that by acting in bad faith, an affiant officer squanders the opportunity to have intentionally misleading information considered in its corrected form by the reviewing judge. The misleading information cannot remain.
IV - ANALYSIS
A. Lawfulness of the Seizure of Mr. Animashaun’s Phone
[21] The applicants assert that the seizure of Mr. Animashaun’s phone violated his s.8 Charter right. In this regard, the applicants submit that, at the time of the seizure, Mr. Animashaun was unlawfully detained (in violation of his s.9 Charter right) without being informed of the reasons for his detention (in violation of his s.10(a) Charter right) and without being informed of his right to retain and instruct counsel (in violation of his s.10(b) Charter right).
[22] The evidence of D/Cs Brown and Duchesne suggests otherwise. Until 10:53, when they were informed about the discovery of the firearm, both officers considered Mr. Animashaun and Mr. Johnson to be victims, not suspects. Both males were in hospital, receiving treatment for gunshot wounds. Up to that point, there was no incriminating evidence that would cast them in any other light than as victims.
[23] As Mr. Animashaun was off getting a CT scan, D/C’s Brown and Duchesne initially spoke to Mr. Johnson. According to them, Mr. Johnson did not want to speak about what took place and claimed he did not see anything as he was on his phone when it happened. Mr. Johnson advised the officers that he did not want to answer questions and opined that the police should do their job.
[24] Prior to speaking to Mr. Animashaun, D/C Brown reviewed the notes of P.C. Morris, in which she noted that an unknown number kept calling Mr. Animashaun’s cell phone and that Mr. Animashaun seemed worried about it.
[25] According to D/C Brown, she seized Mr. Animashaun’s phone at 10:48 under the authority provided in s.489(2) C.C. because she believed it would contain evidence relevant to the shooting. Based on her experience investigating shootings, D/C Brown believed that lack of cooperation was common from victims of shootings. D/C Brown further believed that if she did not secure the phone, evidence significant to the shooting investigation could be lost.
[26] D/C Duchesne also testified that, in her experience, victims of shootings tended not to be cooperative with the police. She testified that she believed the victims’ cell phones would contain communications that could shed light on who the shooter may be.
[27] There was no evidence adduced (including by the applicants) supportive of Mr. Animashaun’s position that he was detained at the time of the seizure of his phone. Absent detention or arrest, there was no obligation on the officers to provide him with his s.10(a) or 10(b) Charter rights.
[28] The relevant parts of s.489(2) C.C. provide as follow:
489(2) Every peace officer… in the execution of duties may, without a warrant, seize any thing that the officer believes on reasonable grounds…
(c) will afford evidence in respect of an offence against this or any other Act of Parliament.
[29] With respect to the meaning of reasonable grounds, also in a case involving a seizure under s.489(2) C.C., Paciocco J.A. stated recently:
A person has reasonable grounds when they believe that there is a credibly based probability that the material fact exists: Hunter v. Southam, at pp.168-169. They must have more than a suspicion that the material fact exists, and must subjectively believe that the material fact is probable (the “subjective component”), based on information known to them that would enable a reasonable person placed in their position to be satisfied that the material fact is probable (the “objective component”): R. v. Storrey, [1990] 1 S.C.R. 241, at pp.250-251; R. v. Bernshaw, [1995] 1 S.C.R. 254, at para 48; R. v. Notaro, 2018 ONCA 449, 47 C.R. (7th) 229, at para 39. [7]
[30] I accept that D/C Brown’s experience with lack of cooperation from shooting victims, as well as Mr. Animashaun’s apparent concern over phone calls he kept receiving, provided D/C Brown with a subjective belief that evidence relevant to the shooting would be contained on Mr. Animashaun’s cell phone.
[31] I am satisfied on a balance of probabilities that D/C Brown’s subjective belief was objectively reasonable. In this day and age, I cannot think of any aspect of a person’s life for which there would not be a credibly based probability that their smart phone would contain some related information.
[32] I am, therefore, satisfied that Mr. Animashaun’s cell phone was lawfully seized pursuant to s.489(2) C.C..
B. Alleged Errors in the ITO
[33] The applicants submit that D/C Shaw’s ITO contained content that was either inaccurate or misleading. There are three areas that merit addressing.
1. The Applicants’ Addresses
[34] In paragraph 29 of the ITO, D/C Shaw states:
The following evidence will be sought from any seized electronic device(s):
c. Category 1(iii) – Location based data: Location data is stored on cellular devices. Having access to the location-based data will give investigators an idea of what occurred before the shooting took place. Furthermore, it would give investigators an idea of where ANIMASHAUN and JOHNSON currently reside – as their primary residences have been unable to be determined. This will assist if we decide to script 487 search warrants in the future.
[35] There are several problems with D/C Shaw’s assertion in paragraph 29 that the police have been unable to determine the applicants’ addresses. First, in paragraph 3 of the same ITO, Mr. Animashaun’s address is listed as [address #1 removed]. However, D/C Shaw testified that his notes indicated that, since 13 January 2020, Mr. Animashaun had been living at an address on [address #2 removed]. No steps were taken by D/C Shaw to reconcile the two different addresses the police had for Mr. Animashaun.
[36] Second, at the time that D/C Shaw drafted the ITO on 27 January 2023, Mr. Animashaun had been released on a bail granted on 21 October 2022 that required him to “remain in your residence at [address #3 removed] daily between the hours of 11:00 pm and 6:00 am.” No steps were taken by D/C Shaw to check Mr. Animashaun’s bail conditions.
[37] Third, when D/C Shaw checked Mr. Johnson on a police database in October 2022, he came back with an address of [address Johnson removed].
[38] Fourth, Mr. Johnson was also released on a bail that required him to reside at a specific address. No steps were taken by D/C Shaw to check Mr. Johnson’s bail conditions.
[39] Fifth, there is no explanation how checking the location based data on the phones in January 2023 would assist with determining where Mr. Animashaun or Mr. Johnson currently resided, as the phones were seized by the police in October 2022.
2. Lack of Cooperation
[40] Paragraph 19 of D/C Shaw’s ITO states as follows:
- On October 20th, 2022 at around 04:30 am DC Kenneth JONES #2309 attended the hospital to take a statement from the victims. Both victim’s [sic] refused to provide a statement at the time but provided utterances advising the following:
b) [sic] JOHNSON stated he [sic] in the passenger seat of the vehicle, he heard “a lot” of gunshots and covered his head. He didn’t see a lot as he was looking down at his cell as the shooting began. c) JOHNSON advised he had no issues with anyone, and doesn’t know who would do this to him or his friend. d) ANIMASHAUN stated he was the driver, and that they had been at “Est. 2020 Lounge” prior to the shooting. ANIMASHAUN also advised that he is the registered owned [sic] of the Mercedes. e) He is an up and coming jewellery maker and was meeting a client at the lounge. ANIMASHAUN is good friends with the owner of the club. f) AMIMASHAUN advised when he left the club he was busy talking with JOHNSON so he didn’t see much, but he took a left to go South on Weston Road from Langstaff. g) He believes he was likely followed but he doesn’t know by who. h) He also advised that immediately after the shooting the car stopped working so they had to run away.
[41] In the ITO there is no mention that, after his arrest at 11:02, Mr. Animashaun provided an audiotaped statement to the police between 11:45 and 12:31.
[42] The applicants submit that mentioning the applicants’ failure to provide a statement without clarifying that Mr. Animashaun subsequently provided an audio statement was a dereliction of D/C Shaw’s duty to be full and frank.
[43] There was not serious argument that D/C Shaw’s characterization of Mr. Johnson as uncooperative was unwarranted. Although Mr. Johnson made some utterances (recited in paragraph 19), he did not want to answer questions and told D/C Brown that the police should do their job.
[44] However, the applicants submit that D/C Shaw’s reference to Mr. Animashaun’s lack of cooperation was misleading, as he provided a 45-minute-long audio statement after his arrest. In this regard, the applicants submit that the failure to specifically mention Mr. Animashaun’s audio statement provided a distorted view of his level of cooperation.
[45] I do not find “Both victim’s [sic] refused to provide a statement at the time but provided utterances…” in paragraph 19 to be inaccurate or misleading. The paragraph makes it clear that “at the time” referred to the time that D/C Jones attended the hospital at 04:30. The fact of the matter is that no formal statement was provided by Mr. Animashaun or Mr. Johnson proximate to 04:30.
[46] The greater issue is whether it was incumbent on D/C Shaw to indicate somewhere in the ITO that Mr. Animashaun subsequently provided a statement. This concern is heightened considering D/C Shaw’s characterization of the applicants as uncooperative in paragraph 29(a) of the ITO.
[47] Paragraph 29(a) of the ITO reads:
Category 1(i) – Communications, either text-based or verbal: Communications between ANIMASHAUN and JOHNSON themselves, and ANIMASHAUN/JOHNSON and unknown people may include photographs/conversations pertaining to knowledge/ownership of the firearm(s). Furthermore, these conversations may involve details of what occurred on the night in question – as of this moment, we are unsure as to why this shooting occurred due to a lack of cooperation from the victims. These communications may be in many types of data applications, such as text messages, emails, social media platforms, phone calls, etc. Locating the communications will provide evidence to the fact that there was knowledge of the firearm. And furthermore, the communications might indicate whom [sic] the shooter(s) are as there is no cooperation from the victims (ANIMASHAUN and JOHNSON), as they are also accused parties in the firearms possession.
[48] The utterances made by Mr. Animashaun and Mr. Johnson appeared to be contradictory. Mr. Animashaun claimed to not see the shooter(s) because he was busy talking to Mr. Johnson. Mr. Johnson claimed to not see the shooter(s) because he was looking down at his cell phone at the time. This discrepancy alone appears to suggest a lack of full cooperation by the applicants.
[49] Accordingly, I cannot conclude that D/C Shaw’s characterization of the applicants as uncooperative was unfounded. However, in my view it was nevertheless incumbent on D/C Shaw, in discharging his duty to be full and frank, to advert to Mr. Animashaun’s audio statement.
3. Chronology of Seizure of Mr. Animashaun’s Phone
[50] There are two areas of the ITO that seem to suggest that Mr. Animashaun’s cell phone was seized after his arrest for possession of a firearm.
[51] Paragraph 10 of the ITO reads:
- Furthermore, a firearm was located a short distance away from the vehicle with the blood trail from the car leading to that specific area. Both ANIMASHAUN and JOHNSON were arrested for possession of a firearm. An iPhone was seized from ANIMASHAUN at this time at the hospital.
[52] Paragraphs 21 to 23 of the ITO state:
On October 20th, 2022 at around 11:20 am Detective PENNER #1821 during a further evidence search advised that a black handgun had been located on the North side of Northview Boulevard just East of Weston Road.
Detective PENNER #1821 advised that this is around the area where the blood trail stopped from the Mercedes and the area where JOHNSON and ANIMASHAUN were seen running from the vehicle using video surveillance – thus both JOHNSON and ANIMASHAUN at the hospital were arrested for possession of a firearm.
Affiant Note: As a result of these arrests, a separate investigation was undertook [sic] (23-332508).
- At this time, DC BROWN #2354 attended the hospital and seized ANIMASHAUN’s cell phone under property tag number A1460048. This phone was placed in the 4 District Property Room at 3:57 PM on October 20th, 2022.
[53] While “at this time” is not necessarily inaccurate if interpreted as “around this time”, the way each paragraph is set out leaves the distinct impression that Mr. Animashaun’s phone was seized after his arrest.
C. Amplified Record for Review by Reviewing Justice
1. The Addresses
[54] Characterizing the applicants’ current addresses as unknown to investigators was inaccurate and/or misleading. There were at least three residences associated with Mr. Animashaun ([addresses #1, #2, and #3 removed]) and one or two residences associated with Mr. Johnson ([address Johnson removed] and the address on his bail, if different).
[55] “Their primary residences have been unable to be determined” (paragraph 29(c)) is also inaccurate and/or misleading. It suggests that efforts were made to determine the applicants’ addresses as of January 2023, but to no avail. No such efforts were described by D/C Shaw in his testimony, including the obvious first step of checking bail conditions.
[56] I agree with the applicants that the correct remedy for the inclusion of erroneous / misleading information about their addresses is excision.
[57] As a result, the following underlined passages must be excised from paragraph 3:
- The following person is involved in this application:
a. Suspect: Marlon JOHNSON (Male), herein referred to as JOHNSON Date of Birth: 1994 […] Address of: Unknown Address. b. Suspect: Jide ANIMASHAUN (male), herein referred to as ANIMASHAUN Date of Birth: 1994 […] Address of: [address #1 removed]
[58] Further, the following underlined passage in paragraph 29c must also be excised:
c. Category 1(iii) – Location based data: Location data is stored on cellular devices. Having access to the location-based data will give investigators an idea of what occurred before the shooting took place. Furthermore, it would give investigators an idea of where ANIMASHAUN and JOHNSON currently reside – as their primary residences have been unable to be determined. This will assist if we decide to script 487 search warrants in the future.
2. Lack of Cooperation / Mr. Animashaun’s Statement
[59] D/C Shaw testified that he was aware that Mr. Animashaun provided an audio statement, although he did not review it. When challenged as to why it was not mentioned in the ITO, D/C Shaw did not have an explanation, stating that it does not make sense that he did not mention it. He opined that perhaps at the time of writing the ITO he believed that mentioning the statement was redundant, as no information came out of the statement that differed from the information in Mr. Animashaun’s previous utterances (which were set out in paragraph 19).
[60] I accept that D/C Shaw’s omission was in good faith and was not done in an effort to deceive the issuing justice. There was nothing exculpatory in the statement and nothing that differed materially from the information previously provided by Mr. Animashaun in his utterances to the police.
[61] Although I strongly doubt that the characterization of either applicant as cooperative or uncooperative would have affected the overall sufficiency of grounds before the issuing justice, I find that it is appropriate to amplify paragraph 19 by adding that Mr. Animashaun subsequently provided an audio statement after his arrest.
[62] I also find that it is appropriate to amplify paragraph 29(a) by (1) replacing “a lack of cooperation from the victims” with “limited cooperation from the victims”; and (2) replacing “there is no cooperation from the victims” with “there is limited cooperation from the victims.”
[63] The amplification process concerns correcting good faith erroneous information included in an ITO that the affiant could have presented accurately [8]. As the Ontario Court of Appeal held in Nguyen [9], it is restricted to information that was available to the affiant at the time the ITO was sworn but was not communicated properly. The corollary of this is that amplification cannot be used to add additional grounds to the warrant that were omitted by the affiant. As the Supreme Court of Canada held in Morelli [10], “Amplification evidence is not a means for the police to adduce additional information so as to retroactively authorize a search that was not initially supported.” Instead, amplification evidence must relate to errors that are both (1) “minor, technical” and (2) made in good faith. [11]
[64] In Booth [12], the Ontario Court of Appeal held that the test as to whether an error is “minor, technical” depends on the “significance and nature of the error.” The standard is not limited to trivial errors of omission. In Feizi [13], the Ontario Court of Appeal held that “an error can be minor or technical even if it relates to an essential component of a search warrant application.” So, while the term “minor, technical” suggests insignificance in relation to the ITO as a whole, the caselaw is clear that the framework is not applied with that limitation.
[65] Booth provides additional guidance by setting out types of information that have been held to meet and not meet that “minor, technical” standard [14]:
61 Errors that have been corrected by amplification include: mistakenly attributing observations to the wrong observer (Araujo, at para. 61; R. v. Lewis, 2012 NBQB 312, 395 N.B.R. (2d) 201, at para. 24); mistaken dates and typographical errors (R. v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305, at para. 75; Lewis, at para. 15); and erroneous but unimportant errors in the description of the source of information (R. v. Plant, [1993] 3 S.C.R. 281, at pp. 298-299; R. v. Lall, 2019 ONCA 317, 432 C.R.R. (2d) 195, at para. 39; R. v. Van Diep, 2015 BCCA 264, 373 B.C.A.C. 230, at para. 5.)
62 In contrast, amplification was not available for errors that are too significant to qualify as “minor, technical” errors, including: the failure to identify properly the target unit in a plaza (R. v. Ting, 2016 ONCA 57, 333 C.C.C. (3d) 516, at para. 71); the failure to include information supporting the expertise of a police officer (Morelli, at para. 74); and the failure to provide evidence supporting the provenance and reliability of a document of disputed authenticity (R. v. Voong, 2013 BCCA 527, 304 C.C.C. (3d) 546, at para. 52.)
[66] In Duncan [15], the Ontario Court of Appeal added “failures to properly source the facts” may also meet the “minor, technical” standard.
[67] I have found no evidence of bad faith on the part of D/C Shaw in omitting to mention Mr. Animashaun’s audiotaped statement. It was an oversight that would not have moved the needle in any event, as the content of the audio statement added nothing new to the utterances made earlier by Mr. Animashaun.
[68] In arriving at my conclusion to amplify the ITO in the manner I have set out above, I note that the Ontario Court of Appeal has emphasized that amplification is a “flexible remedy” and that a reviewing court has “broad discretion” to deploy it where appropriate. [16]
3. Chronology of the Seizure of Mr. Animashaun’s Phone
[69] I disagree with the applicants that the appropriate remedy is for me to excise all mentions of the seizure of Mr. Animashaun’s phone. While it is settled law that a reviewing judge must exclude erroneous information from an ITO, there is no authority for a reviewing judge to exclude correct information. [17] The fact that Mr. Animashaun’s phone was seized was correct information.
[70] I find no bad faith on D/C Shaw’s part in omitting to clearly identify when Mr. Animashaun’s cell phone was seized. It was poor drafting without any conceivable nefarious intention behind it. I accept D/C Shaw’s testimony that he considered the seizure to be lawful under s.489(2) C.C.. I have come to the same conclusion with respect to the lawfulness of the seizure. There would, therefore, be no reason for D/C Shaw to purposely misrepresent when the phone was seized.
[71] Relying on the framework elaborated upon by the Ontario Court of Appeal in Nguyen, Feizi, Booth and Duncan, I am of the view that the timing of the seizure was a “minor, technical” error of omission that was made in good faith.
[72] Although the applicants opposed amplification during their oral submissions, I note that counsel for Mr. Animashaun took a markedly different position in her written materials: “The Applicant submits that the fact the phone was seized prior to the Applicant’s arrest should be added [to] the ITO as amplified on review.” [18]
[73] In all of the circumstances, I conclude that it is appropriate to add the following underlined amplifications to the following paragraphs of the ITO:
Furthermore, a firearm was located a short distance away from the vehicle with the blood trail from the car leading to that specific area. Both ANIMASHAUN and JOHNSON were arrested for possession of a firearm. An iPhone was seized from ANIMASHAUN at this time at the hospital prior to the discovery of the firearm.
At this time Prior to the discovery of the firearm, DC BROWN #2354 attended the hospital and seized ANIMASHAUN’s cell phone under property tag number A1460048. This phone was placed in the 4 District Property Room at 3:57 PM on October 20th, 2022.
D. Sufficiency of Grounds on the Amplified Record
[74] The authorizing justice had before him the following reliable information:
- Mr. Animashaun and Mr. Johnson were shot while travelling in Mr. Animashaun’s vehicle. They exited the vehicle and fled on foot.
- Video surveillance footage and their blood trail tracked their movements toward a grassy area on Northview Boulevard.
- Police located a black handgun on the grassy area where the blood trail stopped.
- D/C Shaw had the subjective belief that media or communications on the cell phones of Mr. Animashaun and Mr. Johnson would afford evidence pertaining to knowledge and ownership of the black handgun.
[75] It was open to the authorizing justice to conclude that D/C Shaw’s subjective belief was objectively reasonable.
[76] The totality of the information before His Worship Justice of the Peace Thomas provided a sufficient basis on which he could have issued the warrant. In my view, the excisions and amplifications to the record that I have deemed appropriate would not have added to or detracted from that basis in any appreciable way.
[77] The applicants have failed to discharge their onus of demonstrating on a balance of probabilities that the presumptively valid search warrant was improperly granted.
E. Alleged Execution of Warrants Beyond Time Period Authorized
[78] The search warrant authorized the cell phones to be collected from 4 District Property & Evidence Room at 2700 Rutherford Road, Vaughan, between “January 27th 2023 – February 10th 2020 [sic] 900 am – 8:59pm”.
[79] The applicants raised no argument regarding the typo of “2020” instead of what was clearly intended to be, and understood to be, 2023.
[80] Rather, the applicants contend that the actual searches of the phones [19] were completed outside of the authorized time frame of 27 January 2023 to 10 February 2023, and were thus unreasonable searches in violation of the applicants’ s. 8 Charter rights.
[81] The same argument was rejected by the Ontario Court of Appeal in R. v. Neill, 2023 ONCA 765. In Neill and in the present case, the actual wording of the search warrants authorized the search of the police property room in order to collect the cell phones. Neither search warrant specified a time frame for the forensic analysis of the devices.
[82] In the present case, I am advised that the cell phones were collected from the 4 District Property & Evidence Room at 2700 Rutherford Road, Vaughan, on 30 January 2023, which was squarely within the time frame authorized by the search warrant.
[83] As was noted by Paciocco J (as he then was) in R. v. Barwell, [2013] O.J. No. 3743 (Ont.C.J.), at para 18, a decision that the Ontario Court of Appeal referred to in Neill, “[t]he flaw in this Charter challenge is that it fails to recognize that the law treats the initial search and seizure and subsequent forensic examinations separately.”
[84] The applicants have failed to establish a violation of their s.8 Charter rights.
F. Residual Discretion to Set Aside Authorization
[85] The applicants argue that, notwithstanding a proper evidentiary predicate for the issuance of the warrant, the circumstances of this case call for me to exercise my residual discretion to set aside the warrant.
[86] Such circumstances were described by the Ontario Court of Appeal in Paryniuk [20] as situations “where police conduct has subverted the pre-authorization process through deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like.”
[87] Although it is difficult to envision precisely what conduct would amount to this level of subversion of the pre-authorization process, one thing that is clear to me is that this case is not it.
[88] The applicants were granted leave to cross-examine D/C Shaw in various areas. I had the opportunity to watch D/C Shaw testify and to consider his testimony carefully.
[89] Admittedly, D/C Shaw’s ITO should have been more precise. However, there is no basis for concluding that the problematic areas of his ITO were motivated by bad faith or any intention to deceive the issuing justice. Simply put, the areas I concluded warranted excision or amplification had no bearing whatsoever on the sufficiency of the grounds before His Worship Justice of the Peace Thomas.
[90] The applicants have failed to demonstrate any basis for me to exercise my residual discretion to set aside the presumptively valid search warrant.
V – CONCLUSION
[91] For the reasons set out above, the applicants have failed to establish a violation of their s.8 Charter rights. As a result, their application for an order excluding the firearm and all evidence on their electronic devices is dismissed.
[92] I would like to thank all counsel for streamlining this application and for their helpful submissions.
Released: 3 June 2024 Signed: Justice R.M. Robinson
Footnotes
[1] His Worship. Justice of the Peace Sydney Thomas. [2] R. v. Ebanks, 2009 ONCA 851, at para 21. [3] R. v. Ebanks, 2009 ONCA 851, supra, at para 21; R. v. Sadikov, 2014 ONCA 72, supra, at para 86. [4] R. v. Morelli, 2010 SCC 8, [2010] S.C.J. No. 8, at para 41; R. v. Araujo, 2000 SCC 65, at para 58; R. v. Sadikov, 2014 ONCA 72, supra, at para 85. [5] R. v. Morelli, 2010 SCC 8, supra, at para 43; R. v. Sadikov, 2014 ONCA 72, supra, at para 85. [6] R. v. Araujo, 2000 SCC 65, supra, at para 46. [7] R. v. Lambert, 2023 ONCA 689, at para 86. [8] R. v. Booth, 2019 ONCA 970, supra, at para 59. [9] R. v. Nguyen, 2023 ONCA 291, at para 32. See also R. v. Ilia, 2023 ONCA 75, at para 9. [10] R. v. Morelli, 2010 SCC 8, supra, 2010 SCC 8, at para 42. [11] R. v. Booth, 2019 ONCA 970, supra, at para 59 citing R. v. Araujo, 2000 SCC 65, supra, at para 59; R. v. Morelli, 2010 SCC 8, supra, at para 41. [12] R. v. Booth, 2019 ONCA 970, supra, at para 60. [13] R. v. Feizi, 2022 ONCA 517, at para 9. [14] R. v. Booth, 2019 ONCA 970, supra, at paras 61-62. [15] R. v. Duncan, 2021 ONCA 16, 2021 ONCA, at para 16. [16] R. v. Duncan, 2021 ONCA 16, supra, at para 14; R. v. Feizi, 2022 ONCA 517, supra, at para 11. [17] R. v. Ebanks, 2009 ONCA 851, supra, at para 28. [18] Mr. Animashaun’s Factum, at para 74. [19] The parties agree that the extraction of Mr. Animashaun’s cell phone was completed on 7 March 2023 and the extraction of the other two phones was completed on 8 May 2023 and 4 October 2023. [20] R. v. Paryniuk, 2017 ONCA 87, at para 69.