WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

112. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

CITATION: R. v. S.M., 2024 ONCJ 656

DATE: 2024 12 17

COURT FILE No.: 998 22 Y9110399

BETWEEN:

HIS MAJESTY THE KING

— AND —

S.M., a young person

Before Justice Marcella Henschel

Heard on August 22, 23, 26, 27, 28, 29 and 30, and November 28, 2024

Reasons for Judgment released on December 17, 2024

Kasia Batorska.................................................................................... counsel for the Crown

Tonya Kent............................................................................. counsel for the accused S.M.

HENSCHEL J.:

A. Overview and Positions of the Parties

[1] S.M., a young person, is charged with kidnapping contrary to s. 279(1)(a) of the Criminal Code (count 1), forcible confinement contrary to s. 279(2) of the Criminal Code (count 2), sexual assault contrary to s. 272(1) of the Criminal Code (count 3), and failing to comply with a release order, contrary to s. 145(5)(a) of the Criminal Code (count 4). The Crown has invited me to dismiss the sexual assault count.

[2] At approximately 11:00 p.m. on November 1, 2022, A.T. was kidnapped at gunpoint by two men, from a parking lot at 100 Steeles Avenue West in Vaughan, Ontario. A witness ran towards the vehicle to help A.T. One of the kidnappers shot at him.

[3] The kidnappers (Male #1 (the driver of the Kia Soul used in the kidnapping later identified as Keyron Moore) and Male #2) demanded A.T. give them crypto-currency and Bitcoin. They took her phone and searched through it. They drove her around for several hours until Male #2 left the vehicle to get gas, leaving A.T. alone with the Male #1. Male #1 forced A.T. to give him oral sex while he was alone in the car with her and ejaculated in her mouth, and on her neck and cheek.

[4] When Male #2 returned, he told Male #1 he was to wait for instructions about where to take A.T. Subsequently, Male #1 received instructions to take A.T. to Barrie. Male #1 drove A.T. to 64 Daphne Crescent, Barrie. Male #2 did not go with them. Male #1 and A.T. arrived in Barrie around 6:00 a.m.

[5] Once in Barrie, Male #1 took A.T. inside the garage at 64 Daphne Crescent. Three other younger men (S.M., aka “Nico”, and two other men, a tall black male, and a Spanish or Portuguese Male) were waiting in the garage. The men demanded money and tied A.T. to a chair. They tortured her hitting her knees, legs, and feet with a hammer. They burnt her hair and feet with a lighter and threatened to inject her with a needle containing heroine. A.T. believed the two kidnappers were in their late 30s or 40s. She believed the three younger men waiting in the garage were in their 20s.

[6] At around 8:50 a.m., Male #1 (Keyron Moore) left in the Kia Soul he had used to kidnap A.T. and drive her to Barrie.

[7] Shortly before 10:48 a.m., when the three younger males left the garage to smoke, A.T. escaped through the back door of the garage and ran to a neighbour’s home. A.T. and the neighbour called 911 at 10:48 a.m. The police responded and located A.T.

[8] DC Couture (Matheson) drove A.T. to Cortellucci Vaughan hospital where a DASA (Domestic Abuse and Sexual Assault) nurse conducted a sexual assault examination.

[9] En route and at the hospital A.T. provided limited, piecemeal information to DC Couture about the offences and the persons responsible. A.T. was very shaken and traumatized by the events. A.T. told DC Couture that the two kidnappers were older, in their late 30’s or 40’s, and that the three younger males waiting at the house in Barrie, 2 Black males, one tall and a Spanish guy. She told DC Couture, that it was one of the kidnappers who sexually assaulted her in the car while the other kidnapper was getting gas and the kidnapper who sexually assaulted her drove her to Barrie. She said the kidnapper who drove her to Barrie left, leaving her alone with the three males who were already in the garage when she got there.

[10] DC Couture provided some but not all the information she received from A.T. to the investigative team, including primary investigator, Detective Mija.

[11] After A.T. escaped from the garage, Keyron Moore (Male #1), (DOB July 25, 1973) and Mr. Wright were arrested at 11:37 a.m. in Toronto.

[12] After A.T. escaped, S.M. hid inside 64 Daphne Crescent. At approximately 4:32 p.m. the Emergency Response Unit (ERU) entered 64 Daphne Crescent. They located S.M. hiding in the attic. He was arrested by the ERU and turned over to Detective Hill. He was taken to 1 District York Regional Police (YRP), in Newmarket.

[13] Detective Mija decided that a penile swab should be obtained from S.M. and, at approximately 7:15 p.m., DC Sirotkin, a forensic identification officer, obtained a penile swab from him.

[14] Shortly after the penile swab was obtained from S.M., between 7:55 p.m. and 10:10 p.m. A.T. provided a video statement to DC Couture.

[15] The following morning, on November 3, 2022, Detective Mija and the investigative team determined they did not have reasonable grounds to believe that S.M. sexually assaulted A.T. because the sexual assault was committed by the older kidnapper in the car prior to her arrival in Barrie. As a result, the penile swab obtained from S.M. on November 2, 2022 was never submitted to the Centre of Forensic Sciences for forensic analysis.

Applicant’s Position

[16] The primary issue is whether S.M.’s ss. 7 and 8 Charter rights were violated when the police obtained a penile swab from him incident to arrest and, if so, whether this is one of the “clearest of cases” where a stay of proceedings under s. 24(1) of the Charter is necessary to protect the integrity of the judicial process.

[17] S.M. concedes that the evidence adduced during the trial, including the agreed statement of fact, establishes the essential elements of the offences of kidnapping, unlawful confinement, and failing to comply with a release order beyond a reasonable doubt. He agrees that if I find a stay is not warranted, findings of guilt should be entered on count 1 (kidnapping), count 2 (unlawful confinement), and count 4 (failing to comply with a release order).

[18] Both parties agree that a finding of not guilty should be entered on count 2 (sexual assault).

[19] In respect of the Charter applications, S.M., the Applicant, submits that s. 8 of the Charter was violated because i.) the police did not have reasonable grounds to believe that a penile swab obtained from the Applicant would reveal and preserve evidence of the offence; and ii.) the manner of execution was not reasonable.

[20] The Applicant submits the police did not have reasonable grounds to believe the penile swab would afford evidence of the offence because the police knew that it was one of the kidnapper’s who sexually assaulted A.T. in the car and that he left 64 Daphne Crescent before A.T. escaped. The police knew the Applicant did not match the description of the kidnapper who sexually assaulted A.T. The kidnapper was described as in his late 30s or 40s, and S.M. was only 17 years old. Further, the Applicant submits that they knew the kidnapper who sexually assaulted A.T. drove her to Barrie, and they knew the Applicant, a young person, arrived at the home on a scooter.

[21] While the argument focused on the alleged s. 8 violations, the Applicant submits that as a youth, the procedure by which the penile swabs were taken infringed his s. 7 right to liberty and security of the person, as well as his s. 8 right to be free from unreasonable search and seizure. The Applicant submits the only appropriate remedy is a stay of proceedings.

[22] The Respondent submits Detective Mija had the necessary reasonable and probable grounds to believe that obtaining a penile swab from S.M. would yield and preserve evidence of the sexual assault. The Respondent submits that Detective Mija had subjective reasonable grounds that were objectively reasonable. The Respondent submits that the initial information provided to Detective Mija from DC Couture indicated that more than one person forced the complainant to perform oral sex and the information Detective Mija had at the time that the penile swab was obtained did not rule out the Applicant as the perpetrator of the sexual assault. The Respondent submits it was not until A.T. gave a formal statement that the investigators had a sufficiently detailed account to conclude that the Applicant was not involved in the sexual assault.

[23] The Respondent submits if there was a violation of the Applicant’s section 7 and 8 Charter rights this is not one of the “clearest of cases” warranting a stay. The Respondent submits a stay is not warranted because i.) the conduct of the police does not undermine the integrity of the justice system because time was of the essence if the evidence was to be preserved and Detective Mija acted on the information known to him at the time and, ii.) a reduction in sentence is an available alternative remedy.

B. Summary of the Facts relevant to the Charter Application

Scope of the Investigation

[24] There is no dispute that A.T. was kidnapped, sexual assaulted, forcibly confined, and violently assaulted. It is agreed that S.M. was not one of the kidnappers who abducted A.T. from the parking lot at 100 Steeles Avenue West. S.M. was a party to the kidnapping and was one of the three men present at 64 Daphne Crescent, Barrie waiting for A.T. in the garage. He was a direct participant in her forcible confinement and although he did not personally inflict violence on her, he was a party to the violence inflicted on her at 64 Daphne Crescent, Barrie. It is agreed that S.M. did not sexually assault A.T. in the car. As explained below, I find as a fact Keyron Moore, Male #1, sexually assaulted A.T. in the car.

[25] A massive police investigation to rescue A.T. and to apprehend the persons responsible for her kidnapping unfolded after A.T. was kidnapped. I accept that from the time of the kidnapping, late on November 1, 2022 and throughout November 2, 2022, a very significant investigation was active and ongoing.

[26] Following the kidnapping, until A.T. was located, the primary goal was to locate and rescue A.T. Due to the urgency of the situation, York Regional Police utilized a “Critical Incident Command Team” which included inspectors and superintendents engaging the resources necessary for the investigation, such as emergency and tactical resources. The Critical Incident Command Team was focused on the preservation of life and public safety, including the tactical response. The Critical Incident Command Team initially worked out of York Regional Police Headquarters, in Aurora. They subsequently set up a command post in Barrie near 64 Daphne Crescent.

[27] A separate investigative team was made up of members of the Homicide and Missing Persons Unit. The role of the investigative team was to locate A.T. and the kidnappers.

[28] Detective Sergeant Cober was the Major Case Manager who oversaw the investigative process.

[29] At 1:26 a.m. on November 2, 2022, Detective Mija was assigned as the Lead Investigator. He was responsible for determining the speed, direction, and flow of the investigation and was responsible for assessing information and evidence as it came in and making investigative decisions based on the information. He assigned the roles and responsibilities of the field investigators.

[30] Detective Renwick was the File Coordinator. A File Coordinator is responsible for collecting, documenting, and distributing information received during the investigation. Detective Renwick’s duties included keeping a chronology of the investigation including information received by the investigative team and tasks assigned to officers. Detective Mija often received information over the phone on speaker phone so that both he and Detective Renwick could hear the information and it could be recorded by Detective Renwick as the information was received.

[31] Detective Sergeant Cober, Detective Mija, and Detective Renwick together constituted the investigative command triangle. They worked out of a project office in the Homicide and Missing Person’s office. The command triangle tasked other investigative officers, such as affiants, field investigators, identification officers, and officers conducting victim and witness management. Detective Mija expected that when investigators obtained relevant information, they would share it with him.

[32] Command of the incident shifted between the Critical Incident Command Team and the investigators. For example, once A.T. was located, but prior to her rescue, the command shifted to the Critical Incident Command Team to make tactical decisions necessary to rescue the victim. Similarly, when the suspects were located the Critical Incident Command Team took command to carry out the arrests.

[33] Inspector Sedgewick, in charge of the Homicide and Missing Persons unit, was the liaison officer between the investigative command and the critical incident command.

[34] The scope of the investigation was broad, spanning York Region, Toronto, and Barrie. Extensive police resources from York Regional Police were deployed including investigators from the Homicide and Missing Persons Unit, investigators from the Sexual Assault Unit, divisional plain-clothes officers, uniform officers, Emergency Response Unit officers (ERU), mobile surveillance officers (MSU), air support, forensic officers, the interception facility, crime analysts and researchers, and the Cyber Crime unit.

[35] Before A.T. was located the interception facility was utilized to attempt to track A.T.’s phone with assistance from cellular service provider Freedom Mobile and an emergency wiretap was initiated until A.T. was located. Officers from Barrie Police Service and Toronto Police were involved in the investigation. Detective Sgt. Cober estimated that hundreds of police officers were involved in the investigation in some way.

[36] The large-scale investigation generated voluminous information that had to be shared between many police units and individual officers.

[37] In respect of the decision to obtain a penile swab, as Lead Investigator, it was Detective Mija who made the decision to obtain a penile swab from S.M. He made his decision in consultation with Detective Sergeant Cober and Detective Renwick.

Timing of Information Received About the Offences by Investigators and Detective Mija

[38] A.T. was kidnapped at approximately 11:00 p.m. from 100 Steeles Avenue West, Vaughan. She escaped and made the 911 call to Barrie Police at 10:48 a.m. The following summarizes some of the key information received by Detective Mija and the investigative team about the nature of the offences and offenders, between 11:00 p.m. on November 1, 2022, and 10:48 a.m. on November 2, 2022.

[39] During the initial briefing after A.T.’s kidnapping at 2:14 a.m., Detective Sergeant Cober briefed Detective Mija and Detective Renwick. The information he provided included:

• A silver or gray SUV was involved in the kidnapping with a plate similar to BZSK 269;
• Two suspects were believed to be involved, one who grabbed the victim and a second who was the driver of the vehicle; and
• A suspect shot at a witness who tried to help.

[40] At 2:35 a.m. DC Davitson advised the investigative command that witnesses advised that:

• Suspect vehicle drove up, one male jumped out from the back and grabbed the victim;
• Witness, tried to help, and he was shot at;
• Victim was put into the car and left the scene westbound on Steeles; and
• Vehicle believed to be older model silver SUV, with plate BZSK 269.

[41] By 4:00 a.m. Detective Mija and the investigators concluded the victim was associated to the Porsche Macan parked in the parking lot at 100 Steeles Avenue West and believed the victim was A.T.

[42] At 6:50 a.m., Detective Blenkhorn learned the victim’s phone was pinging in Barrie. He requested Detective Strong and the Mobile Surveillance Unit (MSU) relocate to Barrie.

[43] At 7:52 a.m. Detective Strong updated the investigators that the suspect vehicle, a Kia Soul, with licence plate BZSK 289, was located in front of 9 Daphne Crescent, Barrie. He informed them the vehicle was a rental vehicle.

[44] At 8:37 a.m. the MSU saw unknown Male #1, described as a black male, 5’9”, slim-built, wearing a black jacket with a brown fur-lined hood, black pants, black baseball cap, white running shoes, and a blue hospital mask, approaching the suspect vehicle on Daphne Crescent. Surveillance officers saw Male #1 drive away in the suspect vehicle at 8:50 a.m. He was followed by mobile surveillance.

[45] At 8:59 a.m. Detective Strong advised the investigators that the suspect vehicle was on the move. No description of a suspect was provided.

[46] Between 9:09 a.m. and 10:22 a.m. the MSU observed the unknown Male #1 park the suspect vehicle at 319 Bayfield Street, Barrie, throw a white bag into a garbage bin, and wipe down the vehicle. Male #1 left the area in a Toyota Highlander.

[47] At 9:47 a.m. Inspector Sedgewick informed Detective Mija and the investigative command that a male left Daphne Crescent in the suspect vehicle and went to the Red Lobster parking lot. He said the man was looking around the vehicle and acting suspicious.

[48] At 9:56 a.m. Detective Mija was advised that the male, 5’8”, who left in the suspect Kia vehicle (from Daphne) was throwing items in the garbage at Bayfield. Detective Mija testified that he received a more detailed description from surveillance and the photo taken by surveillance at some point later in the day.

[49] At 10:23 a.m. the MSU contacted Detective Mija and told him the driver of the suspect vehicle, a Kia Soul, was picked up by a black 2019 Toyota Highlander.

[50] Detective Renwick testified that at 10:25 a.m. he received the photo obtained by the MSU, Exhibit 10, of the male who drove the suspect Kia vehicle to the Red Lobster parking lot from Detective Blenkhorn. Detective Renwick entered the photo into the investigative chronology.

[51] At 10:31 a.m. Detective Suh advised Detective Renwick and Detective Mija that the witness to the kidnapping, Mr. Kang, said he believed there were two suspects involved in the kidnapping. He saw one, but believed there was a second driver. He did not know which was the shooter.

[52] Prior to A.T.’s 911 call, Detective Mija and the investigators had very little information about the kidnappers. They had information that it was believed that there were two kidnappers, one driving the suspect vehicle and one who grabbed the victim. The MSU provided a photo of the unknown Male #1, associated to the suspect Kia Soul that was located on 9 Daphne Crescent and moved by unknown Male #1. The photo, Exhibit 10, shows a slim-built, black male dressed in a black coat with a fur hood and black pants, wearing a mask and white shoes. In the photo it appears that the male is wearing something white under his black coat. A portion of the white clothing item can be seen near the collar line of the coat, and at the waistline of the coat. The age of the person in the photo is unclear.

Information Provided by A.T. to 911 and DC Bothman

[53] At 10:48 a.m. A.T. called 911 and spoke with the Barrie Police. She reported that she escaped from 64 Daphne Crescent and was at 58 Daphne Crescent. She said three males with firearms were at 64 Daphne Crescent.

[54] At 10:53 a.m. the ERU began surrounding 64 Daphne Crescent to intercept anyone who attempted to leave the home.

[55] At 10:55 a.m. PC Bothman of the ERU went to 58 Daphne Crescent. He was the first police officer to have contact with A.T. PC Bothman testified that A.T. was very distraught. She was crying, shaking, and very upset. He attempted to console her. She had visible bruising, and cuts on her wrists and hands from being bound. Her hair was singed in numerous spots. PC Bothman requested the assistance of a tactical medic.

[56] A.T. told PC Bothman that:

• She was beaten several times, tied up, and her hair was burnt;
• She was tied up in the garage and when the suspects went outside to smoke, she managed to get free and escaped from the garage and ran away as fast as she could;
• She did not know who the suspects were, but there were 3 black males and 1 Portuguese male; and
• She saw several guns and “they shot and killed a guy who tried to save her as she was being abducted”. She believed someone had been killed because of her. PC Bothman told her that the person was not hit and was alive.

[57] A.T. had a difficult time speaking because she was so upset. She was crying, shaking, and appeared very traumatized.

[58] At 11:04 a.m. a tactical paramedic began assessing A.T. During the assessment A.T. told PC Bothman that the suspects were hammering the tops of her knees and thighs.

[59] During the assessment, the paramedic asked A.T. if she was sexually assaulted. A.T. immediately broke down and cried hysterically, she put her hands in her face, and nodded her head yes. PC Bothman explained that A.T. was not able to verbalize the information because she was so upset, and she did not provide further details about the sexual assault at that time.

[60] PC Bothman did not receive any information from A.T. about when or where the sexual assault took place or who committed the sexual assault. He updated the command centre by radio that A.T. had been sexually assaulted. He also provided the information about the description of the suspects and that A.T. saw them with firearms.

[61] At 11:13 a.m., Detective Mija spoke with Detective Sergeant Coulson of the Homicide unit over the phone. Detective Sergeant Coulson was in Barrie. He told Detective Mija the victim had been sexually assaulted. He did not provide any additional information about the nature of the sexual assault.

[62] The tactical paramedic requested that A.T. be transported to Cortellucci Vaughan Hospital. At 11:14 a.m. Detective Mija tasked DC Couture to attend and interview the victim and conduct victim management. Detective Mija also requested a sexual assault investigator from the Special Victims Unit to assist, and that a forensic identification officer attend the hospital to seize A.T.’s clothing and take photographs of her injuries.

[63] Detective Mija testified that it was DC Couture’s responsibility to record all the information received from A.T. He did not expect a formal statement would be taken from her until her medical needs were addressed and the sexual assault examination was complete. However, he anticipated DC Couture would obtain basic information about what happened and would make notes of any information provided by A.T. He expected DC Couture would share the information with him in a timely manner.

[64] While PC Botham was waiting with A.T. for a female officer to transport A.T. to the hospital, A.T. told PC Bothman that after she was abducted the kidnapper drove to her residence, took her keys, and stole valuables from her home. She said they drove all night and ended up at 64 Daphne. She said she was bound to a chair until she managed to escape.

Information obtained by DC Couture from A.T.

[65] DC Couture testified that she was first briefed about the investigation on November 2, 2022 at 7:04 a.m. by Detective Mija. At 8:04 a.m., after the suspect vehicle was located at 8 Daphne Crescent, DC Couture was tasked to go to Barrie and was at the police staging area in Barrie when tasked to transport A.T. to the hospital.

[66] DC Couture testified that when she arrived at 58 Daphne one of the officers on scene told her A.T. had been raped. She was to take A.T. to Cortellucci Vaughan hospital because a DASA (Domestic Assault and Sexual Assault) nurse was there.

[67] Prior to leaving for the hospital, DC Couture informed A.T. that she was a police officer, she was safe to come with her, and she was transporting her to the hospital. She said A.T. was very scared and was shaking and crying.

[68] At 11:15 a.m. DC Couture left Barrie with A.T. and they drove to Cortellucci Vaughan Hospital. Only A.T. and DC Couture were in the vehicle. They arrived at the hospital at 12:06 p.m. DC Couture received limited and piecemeal information from A.T. about what had happened enroute from Barrie to the hospital. DC Couture testified that once at the hospital she noted the information she received about the offences from A.T. between 11:15 a.m. and 12:06 p.m., during the trip from Barrie to the hospital, as well as some additional information she received at the hospital as follows:

• Two people kidnapped her and they took her phone right away. Both those people were males.
• One kidnapper left her and the other one drove her to Barrie.
• She was tied up.
• When she got to Barrie, she was placed in the garage in Barrie. She described the garage as attached to the house, but there was no entranceway into the garage from inside of the house.
• She described the kidnappers and said the two kidnappers were older, in their late 30s to 40s. She said 3 younger males were at the house in Barrie. 2 black males, one tall, and a Spanish guy.
• She stated that they made her perform oral sex on “them”.
• There was no penetrative sexual assault.
• They were demanding $1,000,000. They mentioned her ex-boyfriend’s name. She overheard one of the kidnappers talk about leaving in the rental car and going to wipe it down.
• She said the kidnapper left and she was left in the garage with the three males who were already at the house when she got there.
• She said two of the kidnappers had black handguns. The tall black male at the house had a black handgun as well.
• She said they took her keys from her, stripped her down, and said they were going to her address, and that they had her address.
• When the kidnappers came back, they said her house was now a mess. A.T. described where she lived on the main floor in the house and said there was a separate apartment in the basement and one on the upper floor.
• A.T. said the suspects kept going in and out of the garage for smokes and at one point when they left, she took a chance and ran out the back door of the garage and ran to a neighbour’s house. At the first house she attended, the neighbours would not let her in, and then the other neighbour did.
• She described the yellow rope she was tied up with, but said she was able to get out of that rope.
• She gave the name of her boyfriend, which may have been her ex-boyfriend at the time. She mentioned her ex-boyfriend was in Taiwan and had been there for two years, and that they were going through a civil lawsuit regarding property they owned together in Vancouver.
• She was in the car from 12-5 or 6 a.m.
• She provided possible Snapchat names for the accused. She was able to see them on the screen in the suspect vehicle, and she described it as either “WeGotUs”, all one word, or “WeAllWeGot”, and described another of the Snapchat names as GGNHIC.
• She stated she was in the car in Vaughan between midnight to 5:00 a.m. or 6:00 a.m., and at one point she remembered going to the FreshCo grocery store in Vaughan where there was also a TD in the plaza.
• They had tied her up and taped her mouth in the car and hit her in the head. She was cooperating with them, so they untied her while she was in the car.

[69] The conversation was not audio or video recorded because DC Couture did not have her audio recorder with her. DC Couture testified that she did not ask A.T. any follow-up questions during this initial stage because she needed to get as much information as possible, whether about locations or descriptions of the suspects. She said they did not go into detail about the sexual assault at that time.

[70] DC Couture testified that between 12:06 p.m., when they arrived at the hospital, and when A.T. was registered, A.T. provided additional information to her including the following:

• The tall black guy and Spanish guy were torturing her.
• They were demanding money. They hit her feet and her hands with a hammer. They burnt her hair and feet with a lighter, and threatened to inject her with a needle full of heroin. She saw the needle that appeared to have heroin in it, or a substance.
• All 5 males had heavy Jamaican accents, but explained it as being a Toronto Jamaican accent.
• She advised that the male kidnapper that was wearing the white hoodie made her perform oral sex while still in the car. He ejaculated on her face, in her mouth, and on her neck. This happened while the other kidnapper went to get gasoline, so it was just her and that kidnapper in the vehicle at the time. She stated it was the same kidnapper that drove her to Barrie.

[71] DC Couture testified that she spoke to Detective Mija and Detective Renwick and gave them the initial information from A.T. The conversation took place over the phone, after she registered A.T. at the hospital, at least 10 minutes after arriving at 12:06 p.m.

[72] At 12:55 DC Couture looked at Google maps with A.T. to attempt to identify the area where she was held in the car where there was a FreshCo and TD bank. A.T. said it was at the Weston Road and Major Mackenzie Drive location. DC Couture testified that she provided the information about the FreshCo and TD location to DC Mija at 1:00 p.m. so that investigators could obtain video surveillance.

[73] DC Couture noted that by 1:30 p.m. A.T. was registered, and forensic officers were at the hospital to document her injuries.[^1] A SVU officer also arrived at the hospital with DC Couture.

[74] At 1:51 p.m. DC Couture noted that A.T. was in the examination room with the DASA nurse. DC Couture testified that she was with the DASA nurse until 5:00 p.m. After finishing the examination with the DASA nurse, A.T. saw a doctor in the emergency department and X-rays of her hands and knees were taken at 5:32 p.m.

[75] While A.T. was in the emergency department for the X-rays to be taken DC Couture received photographs of A.T.’s apartment from DC Brooks. She testified that she showed them to A.T. and A.T. told her that was not how she left her apartment.

[76] A.T. was released from the emergency department at 6:20 p.m. By 7:20 p.m. DC Couture and A.T. were at York Regional Police headquarters so that DC Couture could obtain a statement from A.T. A.T.’s statement started at 7:55 p.m. and continued until 10:10 p.m.

[77] During the video statement A.T. provided the following descriptions of the kidnappers:

• Male black with dark skin, Jamaican, short, approximately 5’7” mid to late 30s, with short hair. He had a Jamaican accent. He was wearing white Nike shoes, dark jeans, a white hoodie, and a black jacket with fur around the hood. He was wearing a watch with diamonds all over it. She said he changed his clothing, and she could not remember what he was originally wearing. He had a bag of clothes in the trunk of the car, and changed in the car.
• The second male kidnapper was described as male black, short 5’7”, with short hair, mid to late 30s, wearing a light orange or peach-coloured hoodie, with a black vest overtop, black pants, and another black hoodie. He also had a Jamaican accent. After he returned from getting gas, he took off the vest and black hoodie, and was wearing only the orange or peach hoodie.

[78] She described the males in the garage as:

• Male black, dark skin, early 20s, very tall, with short hair.
• Male black, early 20s, short, with shoulder length hair, possibly dreads, wearing a beanie hat.
• Male Hispanic, early 20s.

[79] During the statement A.T. identified the man in the surveillance photograph taken in Barrie in the Red Lobster parking lot as being the kidnapper with the white hoodie.

[80] The monitor assigned to take the statement had to leave due to a family emergency and, as a result, only the initial portion of the statement was monitored. DC Couture summarized the statement the following day. Her summary was provided to Detective Mija at approximately 2:35 p.m. on November 3, 2022.

[81] DC Couture did not recall providing any other updates to Detectives Mija or Renwick, other than after she arrived at the hospital and the update provided at approximately 1:00 p.m. (about A.T. being in the area of a FreshCo). She said it was possible that she gave other updates, but she did not know if she did.

[82] In cross-examination, DC Couture testified that she would have told DC Mija that A.T. said the males that kidnapped her were in their 30s or 40s. DC Couture said she would have relayed everything A.T. told her, including that there were two kidnappers and three other persons waiting at the garage. DC Couture testified that she told DC Mija that A.T. told her that the kidnapper left the garage and left her with the three males. However, DC Couture said she did not have a current recollection of exactly what she told DC Mija and Detective Renwick.

[83] Regarding the entry in her notes: “the female advised that the male kidnapper that was wearing the white hoodie made her perform oral sex while still in the car. He ejaculated on her face, in her mouth, and on her neck. This happened when the other kidnapper went to get gasoline. So just the one kidnapper and victim in the car. This is the same kidnapper that drove her to Barrie”, DC Couture testified that she received the information after 1:00 p.m. She testified that she did not have a note about when she passed the information on, however, she said she would have passed the information on to Detective Mija at one point, either during the day or the next time she saw him in the evening. She agreed the information was important. DC Couture did not think it was possible that she did not tell Detective Mija the information but said she did not know when she relayed the information.

[84] During further cross-examination regarding the information from A.T. that she was sexually assaulted in the car by the kidnapper with the white hoodie, DC Couture testified as follows:

Q: Okay, and you’re saying that once you received that information, you note at 1:30, “Female now registered.” And you’re saying that you don’t know if you would have called Officer Mija to give this information?

A: I don’t know at what point I would – I called him or spoke to him, but I had already relayed to him that she was sexually assaulted.

Q: Okay, but you didn’t feel like it was important to also relay to him that the sexual assault happened with one kidnapper and her in the vehicle?

A: Well, I guess at the time, it didn’t seem important.

Q: It didn’t seem important whether one person or whether multiple people had sexually assaulted her?

A: At the time, I guess not if I didn’t call him right away.

Q: Okay, so you’re saying – so when – so you’re saying you don’t know when you relay that information. Could it have been the next day that you decided to relay that?

A: I don’t know when it was. …

[85] Ms. Kent confirmed with DC Couture that while at the hospital she was the only officer relaying information received from the victim and asked the following additional questions:

Q: All right. And so, this business about – so just one kidnapper in the – “one kidnapper and victim is in the car, and this is the same person that drove her to Barrie.” You’re saying you don’t know when you would have relayed that information, even though you received it at before 1:30 p.m. in the day, right?

A: Yes.

Q: Okay, so you can’t give me even a ballpark of when you would have told them that important information?

A: No.

[86] Ultimately, DC Couture agreed that it could have been at 8:00 a.m. the next day that she relayed the information to Detective Mija.

[87] DC Couture agreed that during the period that A.T. was being examined by the DASA nurse, and while she was being treated in the ER, she was waiting for A.T. at the hospital.

[88] During cross-examination, DC Couture also testified that she knew persons had been arrested but she did not know their ages. She testified that she did not know that a youth was arrested for sexual assault. She agreed that had she known a youth was arrested for sexual assault, she would have viewed the information from A.T. that the person who committed the sexual assault was in his late 30s to 40s as important.

[89] In re-examination, Ms. Batorska asked DC Couture whether the information about the kidnapper with the white hoodie sexually assaulting A.T. in the car was “the only piece of information that she did not relay to Detective Mija right away” or if there was other information she did not relay. DC Couture responded that she was not sure.

[90] Ms. Batorska asked whether all the information noted in her book after 13:00 was also information she did not recall passing to Detective Mija. DC Couture responded: “Yes, that’s right.” Ms. Batorska asked, “Tell us what your recollection is about what you told him." DC Couture responded: “Well I remember speaking to him on the phone and advising him of what A.T. told me.” Ms. Batorska asked, “Do you remember the details of what you told him?” DC Couture responded: “I would have told him everything that she told me.”

[91] In response to a question from the court to clarify what information she was unable to say if she relayed to Detective Mija, DC Couture responded that she was referring to the information that came after she gave the 12:55 update about FreshCo and up until the point that A.T. was registered.

Evidence of Detective Renwick and Detective Mija about Information Received from Detective Couture

[92] According to Detective Mija and Detective Renwick, DC Couture provided only a small portion of the information she received from A.T. during the trip from Barrie and at the hospital. Detective Renwick and Detective Mija testified that DC Couture provided them updates about the information provided to her by A.T. over the phone at 11:27 a.m., 12:24 p.m., and 12:55 p.m.

[93] Detective Mija testified that at 11:27 a.m. DC Couture provided him A.T.’s address and advised him that her residence was broken into by the kidnappers.

[94] Detective Mija said the next update was at 12:24 p.m. He said he spoke directly with DC Couture over the phone, and she told him that A.T. was kidnapped by two males. Only one kidnapper took her to Barrie, and she was forced into the oral sex. Detective Mija testified that he did not recall DC Couture telling him that three males were waiting in Barrie at the place where the kidnapper took her.

[95] Detective Renwick testified that at 12:24 p.m. DC Couture advised that the victim was kidnapped by two males. One kidnapper took her to Barrie, where three males where waiting, and she was forced to provide oral sex.

[96] Detective Mija testified that at 12:55 p.m. DC Couture told him that A.T. thought she was in Vaughan from 12 a.m. until 6 a.m. and that close to the end she was in a plaza with a TD Bank and a FreshCo grocery store.

[97] Detective Renwick noted in the chronology that at 12:55 p.m. DC Couture advised investigators that the victim was in Vaughan from 12 a.m. until 6 a.m., and at one point she was at a FreshCo and TD. Other people brought gas, possibly at Major MacKenzie and Weston, and that the victim saw a camera.

[98] Detective Mija testified that he did not note receiving any other information from Detective Couture from A.T. between 1:17 p.m. and 3:45 p.m., including any information about the kidnapper’s age. He said had he received information about the age of the kidnappers he would have written it down. He also testified that he did not receive any information from DC Couture that the sexual assault occurred in the vehicle. He said this was important information.

[99] Detective Mija agreed that on November 2, 2022, he never spoke to DC Couture after 12:55 p.m. and did not speak with her again until November 3, 2022, at the morning meeting. Detective Mija testified that upon speaking with DC Couture in the morning meeting he determined he did not have reasonable grounds to believe that S.M. had committed the sexual assault against A.T.

[100] Detective Renwick also testified that other than the three updates from DC Couture at 11:27 a.m., 12:24 p.m., and 12:55 p.m., he did not receive any other information from DC Couture on November 2, 2022. His last entry in the chronology was at 4:46 p.m. Detective Renwick said he did not receive any information about where the sexual assault happened or any other information other than the three updates. He testified while it was possible that he missed minor details received from DC Couture, he did not believe he missed major details. He said had he received information about the age of the individuals who were the kidnappers or that A.T. was sexually assaulted by one assailant in the vehicle with a white hoodie, he would have written down.

[101] I do not accept DC Couture’s evidence that she relayed all the information she received from A.T. to Detective Mija and Detective Renwick. I find as a fact that on November 2, 2022, DC Couture relayed only a small portion of the information she received from A.T. enroute to and at the hospital. DC Couture failed to relay important information that was relevant to Detective Mija’s decision to obtain a penile swab from S.M. DC Couture was uncertain about what she relayed and when she relayed it, and Detective Mija’s and Detective Renwick’s evidence is consistent about the timing of updates provided by DC Couture and is generally consistent about the substance of the information received. Detective Renwick’s evidence is the most reliable account of the information relayed from DC Couture to Detective Mija. It was his role to record the information coming in, as it was provided.

[102] As a result, I find as a fact that the information DC Couture provided to Detective Mija and Detective Renwick was limited to the following:

• At 11:27 a.m. DC Couture provided Detective Mija with A.T.’s address and told him that she said her residence was broken into.
• At 12:24 p.m. DC Couture advised Detective Mija and Detective Renwick that the victim was kidnapped by two males. One kidnapper took her to Barrie, where three males where waiting, and she was forced to provide oral sex.
• At 12:55 p.m. DC Couture told Detective Mija and Detective Renwick that A.T. was in Vaughan from 12 a.m. until 6 a.m., and at one point she was at a FreshCo and TD. She noted that other people brought gas, possibly at Major MacKenzie and Weston, and that the victim saw a camera.

[103] I find as a fact that DC Couture did not share the initial description she received of the age of the kidnappers, in their late 30s to 40s, or that the three males at the house in Barrie were younger and included 2 Black males, one tall and a Spanish guy. She did not share that one of the kidnappers talked about leaving in the rental car and going to wipe it down, that he left, leaving her in the garage with the three males who were already at the house when she got there, and she did not relay that she saw Snapchat names for the accused while in the vehicle.

[104] Significantly, DC Couture, did not tell Detective Mija and Detective Renwick any of the latter information she received from A.T. at the hospital including that: “The male kidnapper that was wearing the white hoodie made her perform oral sex while still in the car. He ejaculated on her face, in her mouth, and on her neck. This happened while the other kidnapper went to get gasoline, so it was just her and that kidnapper in the vehicle at the time. She stated it was the same kidnapper that drove her to Barrie.”

Arrest of S.M. and Other Suspects

Arrest of Michael Rocco

[105] After A.T. escaped from the garage at 64 Daphne Crescent, efforts to identify and apprehend the kidnappers and others involved in the offences continued. The Critical Incident Command were in charge of the takedown and arrest of the involved parties.

[106] Immediately after A.T. called 911 the ERU took steps to contain the residence at 64 Daphne Crescent and to ensure no one could flee. The ERU believed there were possibly three armed men at the home who were arrestable, and they directed that anyone in the house leave the home.

[107] At 10:55 a.m. Michael Rocco was arrested by ERU officers as he exited 64 Daphne Crescent. He advised the arresting officers that someone named “Nico” (later determined to be S.M.) was still inside the residence. Officers voiced out for “Nico” to come out, but no one exited the residence.

[108] At 11:10 a.m. Detective Hill received custody of Michael Rocco from the ERU. Detective Hill provided Mr. Rocco with his rights to counsel and caution and interviewed him. Michael Rocco provided the following information to Detective Hill:

• Nico is between 17 – 19 years old. He is a male black, approximately 120 pounds. He has dreads past his chin.
• Nico asked to use his garage in exchange for drugs.
• Nico sells him drugs. At 1:00 a.m. he came over and got drugs. He had rented his garage to Nico for drugs.
• He thought it was one hour, but it went longer, and other people came over, but he did not pay attention to them.
• The police came.
• He last saw Nico at the back calling out how to open the window. He did not know if he had gotten out.
• He had no phone number for Nico. He contacted him via Warren, the boyfriend of Erin.

[109] At 11:30 a.m. Detective Hill turned Mr. Rocco over to uniformed officers to be transported to the police station. Mr. Rocco was transported to 1 District and later that afternoon, between 1:20 p.m. and 5:53 p.m., he was interviewed by Detective Blenkhorn.

[110] At 11:44 a.m. Detective Hill advised Detective Mija over the phone about the information from Michael Rocco. Detective Hill said he would have told Detective Mija the description of Nico.

[111] Detective Mija noted that Detective Hill advised him that Mr. Rocco, a person living at 64 Daphne Crescent, was under arrest. He noted that Detective Hill said that a drug dealer named Nico asked Mr. Rocco to use his garage in exchange for drugs, Nico asked how to get out of the back of the house, Chrissy and Warren were also drug users living in the house, and Michael’s cell phone was in the garage.

[112] Detective Mija could not recall if Detective Hill told him that Mr. Rocco said Nico was 17 to 19 years old. He did not note “Nico’s” age in his notebook.

[113] Detective Blenkhorn testified that he interviewed Mr. Rocco at 5:53 p.m. After assisting with the collection of a penile swab from S.M., he spoke to Detective Mija about his interview with Mr. Rocco. He advised Detective Mija that he did not believe there was sufficient evidence to charge Mr. Rocco. He said Mr. Rocco is white and the suspects were black. He and Detective Mija decided that Mr. Rocco would be released unconditionally, and no penile swab was obtained from Mr. Rocco.

Arrest of Keyron Moore

[114] Keyron Moore left the Red Lobster parking lot in Barrie and was a passenger in a Toyota Highlander that travelled to Vaughan Mills Mall. Once at Vaughan Mills Mall, Mr. Moore exited the Highlander and got into a white Acura. The white Acura was stopped by members of the ERU at 1668 Weston Road. The driver, George Wright, and the passenger, Keyron Moore were arrested at 11:36 a.m. Sgt. McKenzie of the ERU arrested Mr. Moore for kidnapping.

[115] At 11:37 a.m. Inspector Sedgewick advised Detective Mija, Detective Renwick, and Detective Cober that ERU officers arrested Keyron Moore and Mr. Wright at 1668 Weston Road, Toronto. Detective Renwick noted Mr. Moore’s DOB was July 25, 1973. Detective Mija did not note receiving Mr. Moore’s date of birth.

[116] Detective Mija tasked DC Oster and Detective Young to assist in processing and interviewing Mr. Moore and Mr. Wright.

[117] At 12:20 Detective Mija tasked a forensic identification officer, DC Goodfellow, to process the victim’s clothing, and to attend 2 District to be prepared to obtain a penile swab from Keyron Moore and George Wright and to seize their clothing.

[118] Detective Mija testified that the decision to obtain a penile swab from the accused was his decision, in consultation with Detective Sgt. Cober and Detective Renwick. He said that he, Detective Sergeant Cober, and Detective Renwick were all trained as sexual assault investigators.

[119] Detective Renwick testified that he, Detective Sgt. Cober, and Detective Mija all agreed that a penile swab needed to be done in the investigation to preserve and collect the victim’s DNA evidence on the parties involved in her kidnaping and sexual assault. He testified that the ultimate decision was Detective Mija’s because he was the lead investigator. The decision to obtain penile swabs was made around 12:20 p.m., just prior to DC Goodfellow being tasked with obtaining the swabs.

[120] Detective Mija testified that the grounds to obtain a penile swab from Mr. Moore were that there was an allegation of sexual assault, and both accused were in custody for sexual assault. The purpose of the penile swab was to obtain the DNA of the victim.

[121] The Crown asked Detective Mija if the information from DC Couture at 12:44 and 12:55 impacted his grounds for requiring a penile swab, Detective Mija responded that it was still incident to arrest and they still had persons, “we don’t know who forced her into oral sex. We especially, when you have a couple suspects we don’t know who drove her, we don’t know how the second person got to Barrie…” Detective Mija stated that especially when there’s multiple people involved, there was “no definitive answer” regarding which person was engaged in the sexual intercourse, or who forced her into the act.

[122] When asked again at what point Detective Mija developed grounds for the search to be done, Detective Mija responded it was when he got the information from DC Couture that the victim was forced into oral sex because then he had confirmation of what kind of sexual assault occurred. Detective Mija testified that he did not have any information from DC Couture during the updates with respect to when or where the sexual assault occurred or any description of who was involved in the sexual assault.

[123] On November 2, 2022, Staff Sgt. Young was a Detective in the Homicide and Missing Persons Unit. He testified that at 11:53 a.m. he was tasked to assist in processing paperwork for Mr. Moore and Mr. Wright and to liaise with the forensic unit regarding obtaining penile swabs from them, and to interview them.

[124] Staff Sgt. Young testified that a penile swab was obtained from Mr. Moore sometime between 1:27 p.m. when he arrived at 2 District and tasked DC Oster to obtain a penile swab from Mr. Moore and 3:15 p.m. when DC Oster obtained a statement from Mr. Wright.

[125] He testified that the factors at play in assessing the reasonable grounds to obtain a penile swab were there was evidence the victim was forced to perform oral sex on the male suspects and he learned the information from DC Couture who called the lead investigator while he was in the room at 2 District in Richmond Hill. In respect of the timing of the sexual assault, he said he did not have information about the timing but from his independent recollection he believed it happened in the car potentially on the way to Barrie. He did not know when he learned that information. He also noted that when Mr. Moore was arrested, he was originally arrested for sexual assault and when he got to 2 District the charge was updated to gang sexual assault which caused him to believe that more than one person was involved.

[126] Staff Sgt. Young indicated that the ultimate decision to obtain a penile swab was Detective Mija’s. He noted that obtaining the penile swab would afford evidence of the sexual assault and kidnapping because they were part of the same event.

[127] Staff Sgt. Young testified he did not obtain a penile swab from Mr. Wright because “we actually made a determination that one person out of those two was more involved in the sexual assault aspects of it, and we made the determination that Mr. Moore would be penile swabbed, and Mr. Wright would not be.”

[128] Staff Sgt. Young was not involved in the decision for a penile swab to be taken from S.M.

Arrest of S.M.

[129] After Mr. Rocco advised officers during his arrest that someone named Nico was still inside the residence. Sgt. McKenzie of the ERU testified that at approximately 2:07 p.m. he was advised by the Critical Incident Command team that Nico was described as 17 to 19 years old with dread locks and that he arrived at the home on a scooter. This information was shared with the ERU team. PC Botham of the ERU testified he received the same information and noted that members on the ground saw the scooter was still on scene at the residence. Detective McKenzie said he did not receive information about when Nico arrived or how long he had been there.

[130] Members of the ERU called out to persons in the house, including Nico, to come out, and attempted to place phone calls.

[131] At 3:01 p.m. on November 2, 2022, S.M. called 911. The 911 call was marked as an exhibit at trial and establishes that in the call S.M. identified himself as S.M. with a DOB of October 11, 2005. S.M. told the 911 operator he was kidnapped and taken hostage and he was told not to move. He said he just found a phone and needed help as soon as possible. He told the operator he was not supposed to be outside of his house, and he did not know how this happened. He said he wanted to talk to his Mom. S.M. said he was in a bedroom of a house he had not been to before and he heard a lot of commotion going on. He said he heard someone coming and disconnected the call.

[132] The 911 call was 2 minutes and 40 seconds in length. Subsequent attempts to reach S.M. by the 911 operator were not successful. Barrie police reported the information to the ERU at 3:03 p.m.

[133] At approximately 4:04 p.m., after a search warrant was issued, the ERU entered 64 Daphne Crescent. At 4:18 p.m. the ERU located Megan Hrehoruk, the girlfriend of Michael Rocco, in a bedroom. She was placed under arrest for forcible confinement. She advised she had just consumed fentanyl.

[134] At approximately 4:32 p.m., the ERU located “Nico”, S.M., hiding in the attic. He was arrested as he lowered himself from the attic. The ERU officers turned S.M. over to Detective Hill at 4:42 p.m. Sgt. McKenzie went into the attic where S.M. had been hiding and located S.M.’s Samsung cell phone with phone number 289-980-2960.

[135] Detective Hill recorded his interaction with S.M. post arrest and the recording was marked as an exhibit. He asked S.M. for his date of birth and age. S.M. said he was 16 years old, and provided his date of birth. Detective Hill told S.M. he was under arrest for kidnapping, forcible confinement, attempted murder, use firearm in commission of an offence, discharge firearm with intent, sexual assault with a weapon, and gang sexual assault. He explained the charges. When asked if he understood the reason for his arrest, S.M. said he did not.

[136] Detective Hill told S.M. he was part of a group of people who took part in events that were still under investigation. He advised him that the police were investigating to determine who did what, but he was at a house where these things happened and there was information he was involved.

[137] Detective Hill read S.M. the rights to counsel. He told S.M. that he could call his parents or an adult relative or another appropriate adult. When asked if he wanted to call a parent, S.M. said he wanted to call L.A., his mother. While at the scene S.M. contacted his mother and spoke with her.

[138] Detective Hill told him if he consulted with a lawyer or parent or other adult, they are required to be with him unless he did not want them with him. When Detective Hill asked S.M. if he would like to ask his parent to come to the station, he responded, “If they can.”

[139] At 4:54 p.m. Detective Hill read S.M. the caution and the secondary caution. He ensured S.M. understood.

[140] At 4:54 p.m. Detective Hill contacted S.M.’s mother. He informed her of S.M.’s arrest and obtained the contact information for Tonya Kent, S.M.’s lawyer. Detective Hill told L.A. that S.M. wanted her to come to the police station.

[141] At 5:01 p.m. Detective Hill called Ms. Kent. She called back while S.M. was being transported to 1 District, York Regional Police, in Newmarket. She advised that she was going into a meeting but would call back.

[142] At 5:09 p.m. Detective Hill told S.M. that he had been in contact with his lawyer, and she would be calling back because she was going into a meeting.

[143] At 5:20 p.m. a York Regional Police uniformed officer arrived to transport S.M. to the police station.

[144] At 5:27 p.m. Ms. Kent called Detective Hill while he was enroute to 1 District. He pulled over to the side of the road and told Ms. Kent about the details of S.M.’s arrest and that he was on his way to 1 District. He said he would call her when he reached the police station. Ms. Kent advised Detective Hill that S.M.’s mother was sick and may not be able to attend the station.

[145] At 5:40 p.m. Ms. Kent called Detective Hill to obtain the address for 1 District. Ms. Kent advised Detective Hill that S.M.’s mother was coming to 1 District and would be present for the interview.

[146] Detective Hill arrived at 1 District at 6:32 p.m. At 6:40 p.m. S.M. was booked. Detective Hill noted that S.M. was 5’7” and 140 pounds. At the time of his arrest S.M. was wearing sweatpants and gym socks. He was not wearing shoes or a shirt. Clothing was provided to him during the booking process.

[147] At 6:53 p.m. Detective Hill informed S.M. that his clothing would be seized, and a penile swab would be taken from him. Detective Hill could not recall whether it was his decision to collect the sample or if Detective Mija told him that a penile swab would be taken. Detective Hill said due to the nature of the case, it was something he would move to collect.

[148] In respect of the grounds to collect the penile swab, Detective Hill testified because there was a charge of gang sexual assault, he thought there could be multiple assailants, and he wanted to collect as much evidence as he could from all accused to include or exclude them from the alleged offence. When asked if he believed the complainant could have been penetrated by multiple people, he responded yes, and said he did not know the extent of the allegation. In re-examination he testified that other than knowing there was a charge of gang sexual assault, he did not have any information about the nature of the allegations underlying the charge.

[149] Detective Hill testified that if he had information that the person who sexually assaulted the victim was in his 30s or 40s, and that the sexual assault occurred in the car when a single person was present, it would cause him to reconsider whether a penile swab should be taken from S.M.

[150] At 6:53 p.m. Detective Hill contacted Ms. Kent and told her S.M.’s clothing would be seized and that a penile swab would be collected from S.M. for DNA. He told her it was being done due to exigent circumstances. He said the police would be seeking a search warrant to analyze the swab for the DNA of the victim. He told her there was no change in the charges.

[151] Ms. Kent advised Detective Hill that she did not believe that they were allowed to do a penile swab. He said they did not need a warrant to take the swab but required a warrant to analyze the swab for the victim’s DNA.

[152] Detective Hill could not recall if he discussed the procedure for taking the penile swab with Ms. Kent. He did not recall Ms. Kent requesting she be present or that S.M.’s parent be present during the forensic procedure. Detective Hill testified that he would have noted such a request. Detective Hill testified that had he been asked he would have considered it. He said if there was no safety concern, he would likely have allowed a parent to be present during the procedure.

[153] During cross-examination, Detective Hill agreed that when he spoke to S.M.’s mother from the scene, he did not tell her that trace evidence would be collected or that a penile swab was going to be collected from her son. He said he did not believe he was obligated to do so. He testified that he did not consider whether there may be different rules applicable to the collection of a penile swab from a young person. He indicated that he had not dealt with a youth in a sexual assault investigation previously.

[154] Detective Hill did not tell S.M. he could have a parent present during the collection of the penile swab. He said if he thought a waiver was required regarding having a parent or guardian present, he would have complied with it.

[155] S.M. spoke in private with Ms. Kent between 6:59 p.m. and 7:13 p.m. After S.M. completed the call, he went with Detective Blenkhorn so that the penile swab could be obtained.

Taking of the Penile Swab

[156] The Applicant concedes that the procedure for taking the penile swab from S.M. followed the guidelines set out in R. v. Saeed, 2016 SCC 24.

[157] At approximately 5:40 p.m. DC Sirotkin, a trained forensic identification officer, was briefed and tasked by Detective Mija to examine S.M. for potential transfer evidence incident to arrest. DC Sirotkin said that Detective Mija and Detective Harper tasked him to seize S.M.’s outer clothing and to examine him for the victim’s DNA including taking DNA swabs from his hands and a penile swab. DC Sirotkin was also signed to assist with the execution of the search warrant at 64 Daphne. He said due to the time sensitive nature of obtaining the penile swabs, he was to obtain the evidence from S.M. first.

[158] During the briefing, Detective Sirotkin was advised that the investigation was for kidnapping, sexual assault, and attempt murder. He learned that S.M. was in custody at 1 District, and he was provided with S.M.’s date of birth, October 22, 2005.

[159] When DC Sirotkin, arrived at 1 District at 6:30 p.m. he met with Detective Hill and learned that S.M. had already spoken with counsel.

[160] At approximately 7:15 p.m. Detective Blenkhorn, a male officer, brought S.M. into a small private room. The room was not equipped with video surveillance cameras to protect S.M.’s privacy.

[161] The procedure followed in obtaining the penile swab from S.M. was documented by an audio recording.

[162] Before the penile swab was obtained Detective Bulats, a male officer, took photographs of S.M.

[163] After the photos were taken, Detective Bulats left the room and DC Sirotkin, a male officer, entered the room wearing personal protective equipment. DC Sirotkin thought that only he and S.M. remained in the room while the penile swab was obtained. However, the audio recording of the procedure, entered as an exhibit, and video surveillance of the hallway leading to the room showed Detective Blenkhorn entered the room and remained in the room until the procedure was complete. Detective Blenkhorn confirmed he was present during the taking of the penile swab. He explained that generally two officers are present during such procedures to ensure the samples are collected properly and to protect against allegations of misconduct.

[164] The door to the room was closed for privacy when the swabs were taken.

[165] DC Sirotkin testified that obtaining a penile swab is a delicate procedure which must be performed in the least intrusive manner to protect the subject’s privacy. He was trained in the collection of such swabs.

[166] DC Sirotkin introduced himself to S.M. He explained that he was a forensic officer. He confirmed S.M.’s date of birth. He told S.M. that he was there for charges of kidnapping, sexual assault with a weapon, and attempt murder. He confirmed with S.M. that he had spoken with counsel.

[167] DC Sirotkin told S.M. he would be obtaining swabs and he had reasonable grounds to believe that a substance of another person was on him and would afford evidence of the charges.

[168] DC Sirotkin swabbed S.M.’s right hand, left hand, and sweatpants. He seized S.M.’s sweatpants and shorts. S.M. was not wearing underwear. He did not seize S.M.’s shirt to ensure he was partially clothed when he obtained the penile swab. DC Sirotkin explained that he seized the clothing from S.M. in a manner that ensured he provided as much privacy as possible and that he remained as covered as possible. It was seized in steps.

[169] He said the T-shirt was long and covered S.M.’s genitals.

[170] DC Sirotkin explained the procedure to S.M. and told him he was looking for the victim’s DNA.

[171] DC Sirotkin testified that if the subject of the penile swab is not circumcised that the person is asked to pull up his foreskin to expose the end of his penis. He explained this was necessary because that part of the penis would have the most contact with the victim. DC Sirotkin told S.M. that he was going to ask him to swab his genitals, and asked S.M. to do it. He explained that he had to remove his skin and swab the head of his penis. S.M. asked if he could turn around. DC Sirotkin told him he could not because he had to observe him to ensure that the swab was collected properly. S.M. said ok, and swabbed his penis himself. He then put on clothing provided by DC Sirotkin.

[172] After DC Sirotkin completed the taking of the swabs, he provided S.M. a Tyvek suit and shoes to wear. After he put on the bottom half of the Tyvek suit DC Sirotkin seized S.M.’s t-shirt. He provided S.M. with a second Tyvek suit. S.M. was never fully naked at any point during the procedure.

[173] S.M. was cooperative and performed the swabbing procedure himself. His genital area was not touched by any officer. DC Sirotkin was approximately five feet away when S.M. swabbed his penis. Other than taking swabs from S.M.’s hands and sweatpants, he did not touch S.M.

[174] The entire procedure, including the photographs taken by DC Bulats, lasted approximately 11 minutes and 24 seconds. DC Sirotkin testified that the actual swabbing of S.M.’s penis lasted only a few seconds.

[175] DC Sirotkin testified that he was not aware of any special or additional procedural requirements for taking penile swabs from youths. He did not believe there was any different procedure than when a sample is seized from an adult.

[176] Detective Blenkhorn agreed that S.M. was not advised that he could have a parent or counsel present and S.M. did not agree to proceed without a parent or counsel present.

[177] After the penile swab was obtained, at 8:10 p.m. Detective Hill learned that S.M. was on a release order with a condition that he not be outside of his residence. At 8:10 p.m. he re-arrested S.M. for failing to comply with his recognizance and he re-advised him of the right to counsel. When Detective Hill offered for S.M. to speak to Ms. Kent again, he declined.

[178] At 8:29 p.m., after the penile swab was obtained, S.M.’s mother arrived at 1 District. L.A. told Detective Hill that she was declining for S.M. to give a statement without his lawyer present. S.M. attended the interview room with his mother, and he declined to give a statement. S.M. was given an opportunity to speak to his mother.

Detective Mija’s Evidence Regarding Grounds to Obtain the Swab from S.M.

[179] It was Detective Mija who tasked DC Sirotkin to assist with seizing S.M.’s clothing and obtaining a penile swab from him. Detective Mija testified that at around 5:00 p.m., in consultation with Detective Sgt. Cober and Detective Renwick, he decided that a penile swab should be taken from S.M. He testified that the decision was made sometime before he left for the day “basically because there was an allegation of sexual assault.”

[180] Detective Mija explained that the penile swab was to be obtained incident to arrest to search for the victim’s DNA. He was familiar with the requirements of the York Regional Police Policy For Gathering Penile Swabs and consulted the policy prior to authorizing the sample be taken from S.M. The policy was marked as Exhibit 21.[^2] Detective Mija testified that for a penile swab to be taken:

i.) The person be lawfully under arrest.

ii.) The swab must be truly incidental to arrest, so it must be related to the offence and the swab must be taken for a valid reason such as preservation or discovery of evidence; and

iii.) The manner in which it is done must be reasonable.

[181] When directly asked about the level of grounds required, Detective Mija testified that there must be grounds to believe that the penile swab will afford evidence of the offence.

[182] Detective Mija was aware that S.M. was a young person. He did not recall when he first learned he was a young person, but testified it was probably when Detective Hill identified him and read him his rights. When asked about the procedure for obtaining a penile swab, Detective Mija testified that unlike the YRP Policy for strip searches (Exhibit 22), the YRP policy for obtaining penile swabs is the same for adults and youths and does not provide for a youth having a parent or counsel present.

[183] Detective Mija testified that a penile swab becomes very important when multiple suspects are involved. He said S.M. was initially under arrest for attempted murder, sexual assault with a weapon, gang sexual assault, kidnapping, forcible confinement, fail to comply with release order, and discharge a firearm.

[184] Detective Mija said when he made the decision for penile swabbing to be done on S.M. the information he had about the sexual assault was that it was oral sex. He said he knew a female was forced into providing oral sex, but he did not know exactly which suspect and he did not know when or where it occurred.

[185] When asked specifically what grounds he had to perform a swab on S.M., Detective Mija testified “That’s the same: A sexual assault took place, a male was involved. We had the manner of sexual assault. And it was paramount to preserve and discover evidence.”

[186] In respect of how many persons were potentially involved, Detective Mija testified that when he made the decision for a penile swab to be obtained from S.M., he understood that possibly two persons were involved. He indicated this was from the initial information and from observations in Barrie that one suspect left and one suspect was left in the house.

[187] Detective Mija testified that the victim’s video statement had not started at the time he authorized the penile swab to be obtained from S.M. However, he was concerned that perishable evidence would be lost. He testified that it was important to preserve the evidence because the evidence may not be available from the victim who may have been given water, a blanket, or a towel.

[188] Notably, Detective Cober, who was involved in the decision to obtain the penile swab from S.M., testified that shortly before he finished his shift at 5:00 p.m. he noted the identity of the persons who had been arrested as Keyron Moore, George Wright, Michael Rocco, and S.M. Detective Cober testified that he did not have any information about the specific nature of the sexual assault when he finished at 5:00 p.m. and he did not have information about the specific involvement of the parties who were arrested. He knew S.M. was hiding in the attic of the home.

[189] Detective Renwick testified that he agreed with Detective Mija’s decision to obtain a penile swab. In respect of the grounds to obtain a penile swab from S.M., Detective Renwick testified that they were not indiscriminately choosing people to be swabbed. He said, “It’s specific to the victim has been orally penetrated and the likelihood of her DNA being found on the genitals of the assailant is what’s driving our decision to collect that evidence. Regardless, whether the person is an adult or a youth, it doesn’t sway me one way or another.”

[190] Detective Renwick testified that “our decision is that the penile swab is going to be taken from the arrested parties, and we pass that information and that tasking on to the people that are responsible for collecting that evidence, and we trust that they’re going to collect it in the correct manner that follows the legal guidelines…”

Video Statement from A.T.

[191] Half an hour after the penile swab was obtained from S.M., A.T. commenced providing a video statement to DC Couture. The statement began at 7:55 p.m. and completed at 10:10 p.m. During her statement, A.T. described the kidnappers and the three suspects from the garage. The officer monitoring A.T.’s statement had to leave due to a family emergency during the statement and as a result no summary was completed of the statement until DC Couture did so the next day at 2:35 p.m.

[192] Detective Mija testified that he went off shift at 8:00 p.m. At that time, he had not received any additional information from DC Couture.

[193] On November 3, 2023, by 8:00 a.m., at the morning meeting, Detective Mija and the investigative team concluded they did not have reasonable grounds to believe that S.M. was involved in the sexual assault of A.T. Detective Mija explained that their information was that S.M. was only at 64 Daphne Crescent. As a result, they decided not to proceed with the charges of attempt murder, firearms offences, and the sexual assault with a weapon charge against S.M. The investigators determined S.M. would be charged with kidnapping, forcible confinement, gang sexual assault, and fail to comply release order.

[194] Detective Mija decided not to submit S.M.’s penile swab to the Centre of Forensic Sciences, and it was never submitted for testing to the Centre of Forensic Sciences.

[195] At 2:25 p.m. Detective Couture provided a full briefing to the investigative team about A.T.’s statement.

[196] Detective Mija testified that prior to reviewing the summary of A.T.’s statement on November 3, 2022, at approximately 2:35 p.m., he did not have any descriptions of the three persons in the garage. The descriptions provided of the three males in the garage from the summary of the victim’s statement were:

• Male black with dark skin, early 20s, very tall, short hair.
• Male black, early 20s, short with shoulder length hair, possibly dreads, wearing a beanie hat.
• Male Hispanic, early 20s.
• All three spoke with a Jamaican accent.

[197] In her statement A.T. indicated that the kidnappers were in their mid to late 30s.

[198] Detective Renwick summarized the information provided to investigators about A.T.’s statement during the briefing as follows:

• On November 1, 2022, the victim A.T. was kidnapped from the plaza at 100 Steeles Avenue West in Vaughan. A.T. was at the plaza, meeting a friend. She and her friend talked about Bitcoin.
• As she was getting back into her vehicle, a vehicle pulled up beside her. The passenger exited the vehicle, and grabbed her. The driver also exited, and the two forced her into the back of the vehicle.
• The description she provided of the passenger was male black, short, approximately 5-foot-7, short hair, mid to late 30s, wearing a light orange- or peach-coloured hoodie, black vest over top, black pants, another black hoodie, and he spoke with a Jamaican accent.
• The description of the driver was male black, dark skin, Jamaican, short, approximately 5-foot-7, mid to late 30s, short hair, Jamaican accent, wearing white Nike shoes, dark jeans, white hoodie, a black jacket with fur around the hood, and a watch with all diamonds on it.
• While she was being forced into the back seat, she observed a witness in a red shirt running to try and help. One of the kidnappers shot at the witness.
• A.T.’s hands were tied with duct tape. Duct tape was put over her mouth. She was punched in the face.
• A.T. described that they ran out of gas and had to pull over. The passenger left to go get a can of gas, leaving A.T. and the driver alone in the vehicle.
• Once alone, the kidnapper forced A.T. to give him oral sex. He ejaculated in her mouth and on her face and neck. The second male returned, added gas to the vehicle, and then left. A.T. did not see this male again.
• The driver took A.T. to a FreshCo or TD Bank parking lot at Weston and Major Mackenzie, then eventually to a residence in Barrie.
• A.T. was confined in the garage of the residence.
• Present at the house in Barrie were the driver and three other males.
• While being confined, A.T. was forced to get naked, which she believes was not done for a sexual purpose but instead was done by the suspects as a way to ensure she had no means of escape on her.
• She was subjected to repeatedly being struck with a hammer and poked with a screwdriver. A lighter was held to her feet and hair. A needle containing what she believed to be heroin was scraped across her skin. She was threatened that she would be injected with heroin if she didn’t cooperate.
• The males kept saying that they wanted money as well as cryptocurrency and Bitcoin.
• A.T. overheard the group discussing wiping down the car and then, shortly after, the driver left with wipes after that conversation.
• She also stated that her keys were taken, and that she believed they were going to use her keys to enter her residence.
• A.T. at some point was left alone momentarily, and she took that opportunity to escape.
• At one point the driver plugged his phone into the vehicle, and she was able to see everything coming up on display on the screen in the vehicle. She noted that the suspects communicated over Snapchat, and A.T. could see the accounts as “WeAllWeGot”, and “GGNHIC”?
• A.T. overheard conversations between the two suspects, specifically, “They have a picture of our boy.” A.T. believed that was a Kevyon Houlder. She thought it was Kevyon because they made her go through her phone, and she saw that his photo had been deleted from her phone.
• A.T. mentioned to Kevyon that she had a friend in Vancouver that was recently shot. Kevyon was the only one that she had confided to about that information. While in Barrie, one of the younger suspects kept saying “We know your boyfriend.” “We know your boyfriend is in the UN and that he has a lot of money, and that he lives in Vancouver.”
• She had met Kevyon in May or June 2022 through a mutual friend. Kevyon is 38 years old, he’s tall, Jamaican, muscular, bald, with a beard. He was involved in a car accident that left scars on his face. He didn’t speak with any accent, and he owns a place in Whitby or Etobicoke.

[199] Detective Mija testified that he was not aware of any of the details of the allegations, including that the victim was tortured in the garage, prior to reviewing the summary of her statement.

[200] During cross-examination, Detective Mija agreed had he known the sexual assault took place in the vehicle, and not in the garage, by someone in their late 30s to early 40s, he would not have obtained a penile swab from S.M.

Findings of Fact, Role of Keyron Moore and Role of S.M.

[201] The transcript of A.T.’s evidence at Mr. Moore’s trial on March 6, 2024, was marked for the truth of its contents by agreement of the parties. I accept her evidence which is extensively corroborated by independent witnesses, surveillance evidence, forensic evidence including photographs and items seized from the garage at 64 Daphne Crescent, DNA evidence collected from A.T. and from items seized by the police during the investigation, clothing seized from Mr. Moore, and evidence of her physical injuries documented by Megan Hopkins during her sexual assault examination.

[202] Regarding what happened to A.T. prior to her arrival at 64 Daphne Crescent in Barrie I find the following facts:

• On November 1, 2022 A.T. attended a plaza at 100 Steeles Avenue West, Richmond Hill at approximately 10:00 p.m. to meet a friend named CQ to speak to him about cryptocurrency.
• She drove her white Porsche Macan to the plaza and parked near the Kobe Korean Barbeque where she planned to meet CQ. The Kobe restaurant was closed so A.T. and CQ went to a Pizza Pizza in the same strip mall. They were at the Pizza Pizza for approximately half an hour.
• After leaving the Pizza Pizza, as A.T. walked towards her car, and shortly before she reached her car, a car pulled up, the doors opened, and a man got out from the back seat of the car (the Kia Soul) and ran out towards her. A.T. ran and screamed. Another man in a red shirt tried to intervene. The man who came from the back seat of the car shot at him with a handgun. The man in the red shirt fell to the ground. A.T. thought he was dead. The man who shot the gun, grabbed her and pushed her into the back seat of the car. He was yelling “Look what you made me do.”
• The male passenger who grabbed her sat next to her in the back seat. The only other person in the car was the male driver.
• The male passenger grabbed her phone, told her to unlock it, and he turned off the location. He changed the password on her phone. He hit her face with the gun. The passenger threatened to shoot her. They drove off and drove around.
• The male passenger who grabbed her was wearing a beanie hat, black vest, and orange hoodie. He was a little bit taller than A.T. who is 5’5”, he was in his late 30s or 40s. He had low cut hair and a beard. He had dark skin (black) and a Jamaican Toronto accent. He was wearing a face mask.
• They parked near a gas station in Vaughan in a residential area near the highway while the passenger with the orange hoodie went to get gas. The kidnappers did not want to go to the gas station because of the cameras. They were concerned about being detected by police.
• The passenger with the orange hoodie told the driver to sit with A.T. in the back seat while he left to get gas. He told the driver to tape her hands together. The passenger with the orange hoodie left to get gas. The driver sat in the back seat with her. He told her to cooperate, and she would not be hurt. He said they wanted money.
• The driver took off his mask when he got in the back seat. He was a male black. He had curly short black hair. He was skinny and around 5’8” or 5’9”. He was wearing black clothing, black pants, and a silver watch full of diamonds.
• The male driver told her to give him oral sex. When she said she did not want to he told he would shoot her. He tapped the gun barrel of the black metal gun on her head and told her to give him head. She gave him oral sex. He was holding the gun while she did so and held her head down. He ejaculated on her face and in her hair. He put his right hand inside her shirt on her left breast and was massaged her breast.
• The driver told her not to tell the other male, the passenger with the orange hoodie, about the oral sex.
• A.T. tried to befriend him so that he was not so violent. The driver told her they buy and sell guns and asked her about drugs.
• A.T. clarified that both the driver and the passenger had guns.
• After a lengthy period of time, the passenger with the orange hoodie, returned with gas in a jerry can and filled up the tank and they drove around for another hour or two.
• They drove to a townhouse complex. The passenger with the orange hoodie got a charging cable for the driver’s phone and then left again. The passenger said they would make a couple of calls to figure out where to put her.
• At one point A.T. got out to pee and saw the car was a dark blue or silver Kia.
• The driver changed into a white hoodie and changed his pants and put on a black bomber jacket with fur on the hood which he got from the trunk. He was wearing white Nike running shoes.
• The driver told her he was in his late 30s.
• The driver said his guy was trying to figure out where to put her.
• The driver (white hoodie) was talking over Snapchat about where to put her and then they said Barrie.
• Her hands were taped with silver tape at different points.
• At one point the driver gave her a green female coat to wear that he got from the trunk.
• They drove to a plaza with a FreshCo and someone came with more gas.
• The driver was talking on speaker phone with someone who told him to take her to Barrie. They told him to deliver her and he would receive his $20,000. The person gave the address of 64 and a street name. The driver said, “All I need to do is drop her off and I’ll get my money”, and the person he was speaking to agreed.

[203] In respect of what happened after A.T. in I find as a fact that:

• When the driver and A.T. arrived in Barrie, the driver told her to put tape on her mouth. Her hands were taped. He parked a block away from 64 Daphne and left for 10 minutes. He then moved the car into the driveway of the house.
• She said some kids came out of the house. One was a taller black kid with a longer afro. He was very aggressive. Another kid looked Spanish, and a third kid had longer hair. (The parties agree that S.M. was the third kid with “longer hair” present in the garage at 64 Daphne Crescent, Barrie). They looked 17 or 18 or 19 years old. All three kids had Toronto Jamaican accents.
• They dragged her into the garage where a wooden chair was waiting for her.
• They tied her to the chair with a rope and tied her hands and feet to the chair after removing the tape.
• A.T. said the kids were irrational and were saying you know what we want, we just want money and she better cooperate, or they would kill her.
• The driver in the white hoodie told them to be cool and not to hurt her too much, but he did not seem to have any power over them.
• The tall kid had a gun and threatened her with it. He said he would kill her, and they would torture her until she gave them something.
• The tall kid took a screwdriver and put it to her side and told her they would drill it in her if she did not give them what they wanted.
• The Spanish guy and the tall guy used a lighter to burn her hair. They burnt the bottom of her feet after taking her shoes off. They burnt her for a few minutes.
• The tall guy and Spanish guy used a hammer and “bashed” her feet, knees, thighs, of both legs and both hands. They kept asking her to call people and asked her how much her life was worth.
• They rolled up a sock and put it in her mouth so that no one could hear her scream.
• They kept asking her to call people but did not pass her phone to her. They asked for crypto and asked for a million dollars in ransom. She did not have crypto or a million dollars to give them.
• The tall guy showed her a syringe full of heroin and said they could kill her with one injection. They held the needle to her inner elbow area and ran it down her arms and put it between her toes.
• While she was in the garage the three younger males and the driver made her take off all of her clothing. Someone was touching her back and her chest. She was without her clothes for a few minutes.
• The driver with the white hoodie got a call that the car was a rental and the guy on the phone said he had to go clean it. She spoke to the man on the phone who told her to cooperate and give them what they want. They said that they knew people were looking for her and the police showed up at the plaza. The longer haired kid went into the house to get some wipes, he gave them to the driver with the white hoodie and he left.
• The Spanish guy got her keys and gave them to the long-haired guy and told him to go to her house. She gave them her address when they threatened to hammer her again. The kid with the long hair left and she was left with the tall guy and the Spanish guy.
• The tall guy and Spanish guy kept telling her to call people but would not give her phone to her. They continued to hit her with the hammer and were searching through her phone. The tall guy threatened to hit her with a wrench, and dug the screwdriver into her enough that she could feel it. He told her if she did not give them what they want they would continue to hurt her.
• The longer haired kid returned after a few hours. The Spanish guy told her there were people at her home and she said there was no money at her home and nothing they could sell.
• The Spanish kid got a phone call and they were arranging for someone else to pick her up. A.T. was cold and asked to wait inside the house. They told her they could not, and someone was going to come to grab her.
• At one point the Spanish guy brought up her ex-boyfriend and said he was in the UN, a gang. She told him that she did not have an ex-boyfriend in the UN.
• The Spanish guy and tall guy went out for a cigarette.
• The long-haired kid came back into the garage and asked where the other two boys were. She told him they were having a cigarette and he went out with them.
• A.T. loosened the rope, got out of the chair, and looked out the back door. She got back in the chair and the long-haired kid came to check on her. She pretended to be asleep. After he left, she opened the back door and ran. She jumped over the fence and there was a man in the back yard. She asked him to call 911 and he immediately went to the back of the house. She went over another fence and went in a side door leading into a kitchen. She saw a child, asked him to get his mother, and she used the phone to call 911. She waited in the house until the police arrived.

[204] A.T. suffered severe injuries and trauma from the offences of November 1 and 2, 2022. Her injuries were documented in detail by Ms. Hopkins, the DASA nurse at Cortellucci Vaughan Hospital, by photos and diagrams, see Exhibits 18A and 18B, taken on November 2, 2022. Another nurse saw A.T. and documented the development of her injuries on November 4, 2022, Exhibit 19A and B, and Ms. Hopkins saw A.T. and documented her injuries on November 10, 2022.

[205] A.T.’s injuries included:

• Bruising on her left cheek.
• Bruising or an abrasion above her right breast.
• Abrasions to her right elbow.
• Extensive bruising and abrasions on her left and right hands.
• Bruising on her left forearm below the elbow.
• Significant bruising on her left wrist.
• A burn on her left hand on the inside near her thumb.
• An abrasion on her left hip.
• Severe large areas of bruising in multiple locations on her upper right thigh, and above, around, and below her right knee. There were two primary areas on the upper right thigh, two primary areas on the inner knee, and two primary areas on the outer knee.
• Severe large areas of bruising in multiple locations on her upper and lower left thigh and above, around, and below her left knee. There were at least seven primary areas of bruising on her upper left thigh, two areas on the side of her thigh, and three areas on the back of her left thigh.
• Multiple areas of bruising on her left and right leg between the knee and ankle.
• Bruising on her right ankle.
• Bruising on her left ankle.

[206] On November 2, 2022, Ms. Hopkins noted that both of A.T.’s feet were tender, and she had difficulty walking.

[207] The bruising was still extreme on November 10, 2022, more than a week after the assaults. I find as a fact that the severe bruising was caused by the repeated blows inflicted by the tall male and Spanish male with a hammer in the garage. The burn was caused by the tall male using a lighter to burn her hands.

[208] On November 3, 2022, a warrant was executed on the garage at 64 Daphne Crescent, and DC Phillips located and photographed, and seized numerous items described by A.T. which are depicted in Exhibit 17, PowerPoint of photos from 64 Daphne Crescent. The physical evidence corroborated A.T.’s account of the events including the following:

• A grey chair with yellow rope. (Rope - Exhibit 516; 516A – a hair; and 526-chair)
• A hammer on the floor beside the chair. (YRP exhibit 514)
• A screwdriver on the floor beside the chair. (YRP exhibit 517)
• Silver duct tape beside the chair on the ground of the garage. (YRP exhibit 518. Dark Hair is visible on the duct tape)
• A green woman’s coat with flower embroidery. (YRP Exhibit 520)
• A syringe with 70 units of liquid substance. (YRP Exhibit 522)
• A second empty syringe;
• A toolbox with tools and a hammer. (YRP Exhibit 524)
• A hammer with yellow tape. (YRP Exhibit 525)
• Red rope tied to the chair. (YRP Exhibit 527)
• Kitchen Knife on top of a toolbox. (YRP Exhibit 529)
• A pair of snakeskin boots (YRP Exhibit 515)

[209] A.T. identified the grey chair as the chair she was tied to, and the yellow rope as the rope used by the assailants to tie her up. She identified the snakeskin boots as her boots. She identified that green jacket with embroidery as the jacket the driver with the white hoodie gave her to wear.

[210] Detective Yee from the Identification Unit of the York Regional Police submitted the piece of duct tape with hair seized from the garage (YRP Exhibit 518) to the Centre of Forensic Sciences. The February 6, 2023 CFS Biology report prepared by Nicole Vachon, Exhibit 2, establishes that blood was detected on a swab of staining from the end of one piece of the duct tape. A.T. could not be excluded as the source of the female DNA profile obtained from the blood on the duct tape. The STR DNA results were estimated to be greater than one trillion times more likely if STR Profile 2 originated from A.T. than if it originated from an unknown person, unrelated to A.T.

[211] The substance from the syringe, YRP Exhibit 522, was submitted to Health Canada. The Certificate from Health Canada, Exhibit 6, establishes that the substance in the syringe was Fentanyl within the meaning of the Controlled Drugs and Substances Act.

Role of Keyron Moore

[212] During the course of the investigation Keyron Moore was identified by police as the driver during the kidnapping. He was the person described as Unknown Male #1 by surveillance who was observed driving the suspect vehicle used in the kidnapping from 8 Daphne Crescent, Barrie to the Red Lobster parking lot at 319 Bayfield Street in Barrie. Mr. Moore was under surveillance after leaving the parking lot in a Toyota Highlander until his arrest at 1668 Weston Road with George Wright in Toronto on November 2, 2022.

[213] Following his arrest, Mr. Moore’s clothing was seized. Detective Yee photographed the property which included the following items:

• White “Nike” running shoes – Exhibit 309
• White “Zara” hoodie – Exhibit 310
• New York Yankees baseball hat – Exhibit 311
• Black “Mackage” bomber style jacket, with fur hood – Exhibit 312
• Personal effects including a diamond watch – Exhibit 313
• $3250 Canadian cash – Exhibit 314

[214] The clothing seized from Mr. Moore matches the description given by A.T. of the kidnapper who sexually assaulted her.

[215] The penile swab, Exhibit 305, obtained from Keyron Moore incident to arrest on November 2, 2022 was submitted to the Centre of Forensic Sciences for testing.

[216] On November 24, 2023, acting under the authority of a warrant authorizing the taking of bodily substances for forensic DNA analysis, Detective Constable Latorre, of the forensic identification unit, seized a DNA sample in the form of blood from Mr. Moore’s finger. This sample was submitted to the Centre of Forensic Sciences, and was analyzed by a forensic scientist in the biology section.

[217] The CFS Biology report of December 15, 2023, Exhibit 3, prepared by Nicole Vachon establishes that Keyron Moore could not be excluded as the source of a male DNA profile (STR Profile 1) from the following items:

• The swabs of semen from A.T.’s lips (item 6-1) and right cheek and chin (item 7-1)[^3]
• Swabs of a straw (item 11-1) and from duct tape (items 12-2 and 12-3) from 319 Bayfield Street.[^4]
• Swab from duct tape (item 14-3) from 64 Daphne Crescent.[^5]

[218] The December 15, 2023 biology report establishes that the STR DNA results are estimated to be greater than one trillion times more likely if STR Profile 1 originates from Keyron Moore than if it originates from an unknown person, unrelated to Keyron Moore.

[219] Based on compelling DNA evidence, and surveillance evidence, in conjunction with the evidence from A.T., I find as a fact that Keyron Moore was the driver of the Kia Soul, BZSK 289, when A.T. was kidnapped. I find as a fact that he was the person who sexually assaulted A.T. in the vehicle when the other kidnapper went to get gas.

[220] I find as a fact that it was Keyron Moore who drove A.T. to Barrie, arriving between 5:00 and 6:00 a.m. at 64 Daphne Crescent and took her into the garage where the three younger males, S.M., the tall black male, and Spanish male were waiting. I find as a fact that while in the garage Mr. Moore discussed wiping down the car used in the kidnapping and that at 8:50 a.m. he left the garage at 64 Daphne Crescent and drove the Kia Soul used in the kidnapping to the Red Lobster parking lot at 319 Bayfield Street, Barrie. Mr. Moore wiped down the vehicle in the parking lot and threw a white garbage bag containing garbage from the vehicle used to abduct A.T. into the Miller garbage bin. The garbage was recovered by Sgt. Hay and items from the garbage were processed by a York Regional Police identification officer and submitted to the CFS.

[221] I find as a fact that Keyron Moore was picked up by a Toyota Highlander and driven to Vaughan Mills where he was picked up by George Wright. Mr. Moore and Mr. Wright were arrested at 1668 Weston Road, Toronto at 11:37 a.m.

[222] A water bottle was located in the garbage Mr. Moore threw into the bin at 319 Bayview that was seized by Sgt. Hay. The Pure Life water bottle, YRP Exhibit 609, was submitted by Detective Yee to the Centre of Forensic Sciences on November 7, 2022 and Exhibit 2, the CFS Biology report of February 6, 2023, establishes that A.T. cannot be excluded as the source of a female DNA profile (STR profile 2) from a swab from the water bottle. The STR DNA results are estimated to be greater than one trillion times more likely if STR Profile 2 originates from A.T. than if it originates from an unknown person, unrelated to A.T.

Role of S.M.

[223] The parties agree, and I find as a fact that S.M. was a party to the kidnapping of A.T. S.M. aided the kidnappers by securing the place where A.T. would be held. This is established by the evidence of Michael Rocco, the related text messages and cell phone records, the evidence of A.T., and the physical evidence seized from the garage.

[224] S.M. was a direct participant to the forcible confinement of A.T. in the garage at 64 Daphne Crescent.

[225] As noted above, in the agreed statement of fact, S.M. admits that he was the “longer hair” younger male who was present in the garage at 64 Daphne Crescent in Barrie when A.T. was brought to the garage, as described by A.T. in her testimony. It is admitted that S.M. was present in the garage when A.T. was being assaulted. S.M. did not assault A.T.

[226] Michael Rocco, a tenant of 64 Daphne Crescent, testified during the trial. He was a party to the forcible confinement of A.T. He plead guilty to forcible confinement, and I approach his evidence with caution.

[227] It is clear that after his arrest on November 2, 2022 Mr. Rocco misled the police to minimize his knowledge and involvement in A.T.’s forcible confinement. However, I accept much of his evidence because it is corroborated by the text messages and cell phone records, and is supported by evidence from A.T., and items seized. I find as a fact that Mr. Rocco began communicating with S.M. shortly before midnight about allowing S.M. to use his garage to hold someone in exchange for fentanyl. I find as a fact that S.M. subsequently provided Mr. Rocco fentanyl in exchange for him allowing S.M. and his associates to use his garage to hold a person (A.T.) against their will.

[228] I find as a fact that on November 1 and 2, 2022 Mr. Rocco was living at 64 Daphne Crescent with his girlfriend, Megan. He rented the upstairs of the home. There were separate tenants in the basement.

[229] Mr. Rocco testified, and I accept, that on November 2, 2022 Mr. Rocco had known “Nico”, S.M., for a couple of months. He knew him because S.M. sold drugs to him.

[230] I accept that on November 1 and 2, 2022 Mr. Rocco was using fentanyl and crack with his girlfriend Megan. Late on November 1, 2022, Mr. Rocco was sick because he needed fentanyl. He spoke to S.M. and S.M. asked to rent his garage to hold a drug dealer. He offered Mr. Rocco fentanyl or other drugs in return. Mr. Rocco said he initially agreed to rent the house for $1000 and an ounce of crack. S.M. told him that he and a couple friends were going to question or scare another guy in the garage that owed them money. S.M. told him they were going to hold the guy, scare him, and release him.

[231] Mr. Rocco testified that he agreed so he could get fentanyl. I accept this evidence and find as a fact that S.M. contacted Mr. Rocco by phone at 11:51 a.m., as established by the cell phone records. At that time S.M.’s cell phone records establish that S.M. was in the area of Highway 400 and Highway 9, in York Region.[^6]

[232] Mr. Rocco identified a series of text messages between himself and S.M. The first was at 11:51 p.m. In the message S.M. asked Mr. Rocco if he was going to come through. It is clear that prior to this message S.M. and Mr. Rocco had begun to discuss S.M. using Mr. Rocco’s garage to hold someone.

[233] Between 12:02 a.m. and 12:05 a.m. there were four calls back and forth between S.M. and Michael Rocco. The cell phone records establish that during that time frame S.M.’s phone was in the area of Highway 400 and Highway 89, in Cookstown. I find as a fact that during these phone contacts S.M. and Mr. Rocco were discussing S.M. using his garage to hold someone in exchange for fentanyl.

[234] The text messages establish that at 12:05 a.m. Mr. Rocco told S.M. he was welcome to come “here”. Between 12:34 and 12:35 a.m. there were two further incoming calls from Michael Rocco to S.M. At that time, S.M.’s phone was in the area of Highway 400 and Bayfield/Duckworth Street in Barrie.

[235] At 12:35 a.m. Mr. Rocco sent S.M. a text message which said, “Can use my garage if knocked out or gagged and someone on duty can watch.”

[236] I find as a fact that after this text message exchange S.M. went to 64 Daphne and gave Mr. Rocco fentanyl for the first time that night.

[237] Mr. Rocco said after the first time S.M. came to his home and gave him fentanyl, after he received the fentanyl, about a gram, he told S.M. he did not want “it” to happen and gave him some of the fentanyl back. Mr. Rocco testified S.M. told him he would not keep “them” captive, it was just to scare “them”. After S.M. assured him that he was only going to scare the person, he agreed he could use the garage. I find as a fact that after receiving the fentanyl, and using it, Mr. Rocco agreed that S.M. could use the garage.

[238] I find as a fact at some point S.M. asked Mr. Rocco to prepare the garage to hold a hostage and, as a result, Mr. Rocco set up two chairs in the garage and put yellow rope on one of the chairs to restrain a person. At 1:40 a.m. Mr. Rocco sent S.M. a photo of the chair with the yellow rope that A.T. was later tied to. The message sent by Mr. Rocco to S.M. said, “I pulled all the light bulbs from the driveway and the yard and pulled a couple chairs out, and put some ties on the one.” At 1:41 a.m. S.M. responded “okok proper”. I find as a fact that Mr. Rocco and S.M. were working together to prepare the garage to hold a person against their will and Mr. Rocco removed the lights from the driveway to conceal their illegal conduct and to prevent S.M. and his associates from being detected.

[239] I find as a fact that after the above message exchange, S.M. returned to 64 Daphne Crescent to await A.T.’s arrival with Mr. Moore. S.M. was joined by two associates, the two other younger men described by A.T., the tall black male, and Spanish male. I find as a fact that S.M. and the two other men were waiting in the garage at 64 Daphne for A.T. when she arrived with Keyron Moore at around 6:00 a.m.

[240] Mr. Rocco testified that S.M. came into the home a second time and gave him more fentanyl and he and Megan went into the back bedroom to use the fentanyl. He said S.M. and his friends came over and were in the garage. Mr. Rocco said that the second time S.M. came over and gave him more fentanyl was around 2 or 3 a.m. It was the middle of the night. When S.M. came over the second time, he stayed and only left to go to the garage. Mr. Rocco testified that before S.M. gave him fentanyl the second time, he heard S.M. talking on the phone with someone and he learned they had someone. Mr. Rocco said after he and his girlfriend used the fentanyl the second time, they nodded off for quite some time. I accept this evidence.

[241] Mr. Rocco said he woke up in the morning between 6 a.m. and 8 a.m. He spoke to S.M. and threatened to go in and kick them out of the garage. S.M. told him the less he knew the better. He said the guys in the garage were heavy hitters and were not the type of people he should screw around with. S.M. told him they had guns. I accept this evidence of Mr. Rocco.

[242] Mr. Rocco testified at some point S.M. asked him for a syringe and he thought he gave him an empty one. I find as a fact that Mr. Rocco provided S.M. a syringe and I find as a fact S.M. and his associates filled a syringe with fentanyl and used it to threaten A.T. while she was held in the garage.

[243] At 7:51 a.m. Mr. Rocco sent S.M. a text message advising him that the “Downstairs neighbour is awake now just heads up window by back door is their bedroom. I’m keeping six in kitchen listening if they go to leave out from their place to work. Let me know you see this.” I find as a fact that Mr. Rocco sent this message to S.M. to warn him that he and his associates might be detected.

[244] Mr. Rocco said the last time he saw S.M., he was in the kitchen cooking breakfast and S.M. was in the living room. Megan was in the bedroom. The police came and he ran out of the house and surrendered himself. I accept this evidence. Mr. Rocco was arrested by the police after he came out of the house and surrendered himself at 10:55 a.m., shortly after A.T. escaped and called 911.

[245] I find as a fact that S.M. was at 64 Daphne Crescent with the other two men waiting in the garage when A.T. and Mr. Moore arrived at approximately 6:00 a.m. A.T. was continuously held in the garage between approximately 6:00 a.m. and 10:48 a.m. when she escaped and called 911 from a neighbour’s home. During the period that A.T. was in the garage she was the victim of extreme violence. Her evidence about the violence inflicted on her is corroborated by the extensive injuries documented by Megan Hopkins, the DASA nurse, and the items seized near the chair in the garage, including the hammers, screwdriver, and syringe.

[246] A.T. was repeatedly struck by a hammer on her hands, legs, and feet by the tall black male and the Spanish male. She was burned with a lighter on her hands and feet. Her clothes were removed, and she was threatened with a syringe filled with fentanyl. S.M. participated in A.T.’s forcible confinement until she escaped. He hid inside 64 Daphne Crescent until he was arrested by the police at approximately 4:30 p.m. in the afternoon. His cell phone, and a hammer, that he was in possession of prior to his arrest, was located in the attic where he was hiding. I find that he took a hammer from the garage with him into the home. The hammer was located by Sgt. McKenzie in the attic and was seized from the closet which was the entry point to the attic where he was hiding by DC Sirotkin.

[247] The evidence also makes clear that from an early stage S.M. was working in concert with the kidnappers. The cell phone records show that S.M. began to move from Toronto to Barrie shortly after the kidnapping and he was in contact with Mr. Rocco to arrange for a place for A.T. to be held shortly after the kidnapping. I find as a fact that S.M. acted in concert with the kidnappers to secure a location for A.T.’s confinement and he communicated the location to the kidnappers.

[248] Although S.M. did not personally assault A.T. with the hammer or burn her, he was present and was a party to the violence inflicted on A.T. while she was forcibly confined in the garage. He aided the tall black male, and the Spanish male to carry out the violence. He arranged for and provided the place where A.T. was held, he ensured she would be restrained in a chair, he was present while the violence was inflicted, and his participation assisted the other men to be able to carry out the violence against her. He participated in confining her and his presence aided the others to hold her against her will while they assaulted her. I find as a fact that S.M. provided the syringe with fentanyl that A.T. was threatened with by S.M.’s associates.

[249] There is no dispute that at the time of the offences, on November 1 and 2, 2022, S.M. was on a house arrest release order and, as set out in the agreed statement of fact, it is admitted that he was breaching the house arrest condition of the release order by being outside of his home.

C. Analysis – Alleged Breaches of s. 7 and s. 8 of the Charter

Summary of the Law

General Principles Search Incident to Arrest

[250] The police executed a warrantless search incident to arrest when they obtained the penile swab from S.M. Warrantless searches are presumptively unreasonable. To establish that a warrantless search complies with s. 8 of the Charter the Crown must prove on a balance of probabilities that:

• The search was authorized by law;
• The law is reasonable; and
• The search was carried out in a reasonable manner.[^7]

[251] The Supreme Court of Canada has long recognized the authority of the police to search incident to arrest without warrant. The power to search incident to arrest is a “pragmatic recognition of legitimate state interest and the arrested person’s reduced expectation of privacy. Those state interests include the need to secure the custody of the arrested person, protect those at the scene of the arrest and locate and secure evidence relevant to the arrested person’s guilt or innocence.” While the common law gives the police the powers necessary for the effective and safe enforcement of the law, it also limits the exercise of the power to protect privacy and individual freedom.[^8]

[252] To be valid, any search incident to arrest must meet three conditions:

i. The person searched must be lawfully arrested; ii. The search must be "truly incidental" to the arrest in that the search is related to the reason for the arrest and is for a valid law enforcement purpose; and iii. The search must be conducted reasonably.[^9]

[253] The right to search incident to arrest derives from the fact of the arrest which itself requires reasonable grounds. Since the legality of the search is derived from the legality of arrest, if the arrest is invalid the search will be also.

[254] The requirement that the search must be “truly incidental” to the arrest means that the police must be attempting to achieve some “valid purpose” connected to the arrest including:

i. to guarantee the safety of the police, accused and the public; or prevent the prisoner’s escape; ii. to protect evidence from destruction at the hands of the accused or others; and iii. to discover evidence which can be used at the arrestee’s trial.[^10]

[255] The police must have one of the purposes for a valid search incident to arrest in mind when the search is conducted and the officer’s belief that this purpose will be served by the search must be a reasonable one.

[256] The authority to search incident to arrest does not require exigency. Warrantless searches incident to arrest to discover evidence of the offence for which the person was arrested are valid even in the absence of exigent circumstances.[^11]

Governing Legal Principles - Penile Swabs

[257] In R. v. Saeed, 2016 SCC 24, the Supreme Court of Canada concluded the common law power of search incident to arrest may authorize the police to take a penile swab from an arrestee and established the pre-requisites for a lawful penile swab to be obtained. The Supreme Court recognized the significant impact a penile swab has on personal privacy, but concluded that the police may obtain a penile swab from an arrestee incident to arrest when certain additional safeguards are in place.

[258] In finding that a penile swab can be lawfully obtained incident to arrest, the Supreme Court of Canada balanced law enforcement interests and the privacy interests of the detainee. The Supreme Court found that while a penile swab is an intrusive form of search, it is a search that can serve important law enforcement objectives, such as preserving highly probative evidence which degrades with time – namely potential DNA evidence of the complainant. Penile swabs can produce real evidence of recent sexual contact with complainants who may be unable to identify offenders – for example young children, persons with disabilities, impaired persons or victims who are deceased. The Supreme Court found that the law enforcement objectives in conducting penile swabs are significant and undeniable.[^12]

[259] In balancing the competing interests, it is relevant that in obtaining a penile swab the police are seeking the DNA of the complainant, not the accused’s DNA. In Saeed, the Supreme Court emphasized that in conducting a penile swab, the police do not seek information about the accused from samples taken from his own body. Rather, penile swabs are done to collect information about a complainant or the circumstances of the offence. The police in taking a penile swab are seeking the bodily samples of a complainant present on the surface of the accused’s skin. The Supreme Court concluded that while the area swabbed is more intimate than an elbow or ear lobe, the evidence seized did not result in an affront to the accused’s human dignity, as the right to privacy related to the information within an accused persons own DNA is intact.[^13]

[260] Ultimately, the Court in Saeed held that the seizure of a penile swab by search incident to arrest requires a proper balance between an accused’s privacy interests and valid law enforcement objectives. In such cases, the existing general framework of the common law power of search incident to arrest must be tailored to ensure the search will be Charter-compliant.[^14]

[261] The Supreme Court found that because the taking of a penile swab involves a significant intrusion on the privacy interests of the individual, the common law must strictly limit the circumstances where a penile swab can be taken. The authority is more limited than the general power to search incident to arrest.[^15] Consequently, the Supreme Court of Canda held that the police may take a penile swab incident to arrest if:

i.) The arrest is lawful, and the swab is being taken for a reason truly incidental to arrest, meaning the swab must be related to the reasons for arrest and it must be performed for a valid purpose, and

ii.) The police must have reasonable grounds to believe that the penile swab will reveal and preserve evidence of the offence for which the accused was arrested; and

iii.) The swab must be conducted in a reasonable manner.[^16]

[262] The reasonable grounds standard is intended to prevent unjustified searches before they occur. Whether reasonable grounds have been established will vary with the facts of each case. Relevant factors include the timing of the arrest in relation to the alleged offence, the nature of the allegations, and whether there was evidence that the substance sought had already been destroyed.[^17]

Analysis – Did Detective Mija have Reasonable Grounds to Obtain a Penile Swab

[263] In respect of the penile swab obtained incident to arrest from S.M., the Applicant did not argue that there was not a valid arrest, or that the collection of the swab was unrelated to the reasons for arrest, or was not for a valid purpose. At issue is whether Detective Mija, who made the decision to obtain the penile swab, had the required reasonable grounds to believe that a penile swab obtained from S.M. would reveal and preserve evidence of the offence of sexual assault, and whether the manner of execution of the search was reasonable.

[264] I find that Detective Mija subjectively believed that taking a penile swab from S.M. would afford evidence of the offence. However, his subjective belief was not objectively reasonable. The collection of the penile swab violated the Applicant’s right to be secure from unreasonable search and seizure under s. 8 of the Charter.

[265] The standard of reasonable grounds to believe does not require proof on a balance of probabilities, much less proof beyond a reasonable doubt. The statutory and constitutional standard is one of credibly based probability. Reasonable grounds is more than suspicion, but less than proof beyond a reasonable doubt, or even a prima facie case.[^18]

[266] Detective Mija required a subjective belief that obtaining a penile swab from S.M. would afford evidence of the sexual assault, and his belief must have been objectively reasonable. A reasonable person placed in the position of Detective Mija must have been able to conclude that there were indeed reasonable grounds.[^19]

[267] Specifically, it was necessary that Detective Mija have reasonable grounds to believe that the alleged sexual offence involved contact between S.M.’s penis and the complainant, A.T. To have the necessary reasonable grounds to obtain a penile swab from S.M., Detective Mija required reasonable grounds to believe that S.M. was a participating party in the offence. Detective Mija required reasonable grounds to believe that S.M. personally sexually assaulted A.T. such that her DNA would be found on S.M.’s penis. In other words, it was not sufficient for Detective Mija to have grounds to believe that S.M. generally was involved in the offences without the more specific reasonable grounds to believe that obtaining a penile swab from S.M. would afford evidence of the sexual assault.

[268] In Saeed, Justice Moldaver speaking for the majority explained as follows:

Second, the police must also have reasonable grounds to believe that a penile swab will afford evidence of the offence for which the accused was arrested. These grounds are not to be confused with the reasonable grounds required for the arrest. They are independent. Whether reasonable grounds have been established will vary with the facts of each case. Relevant factors include the timing of the arrest in relation to the alleged offence, the nature of the allegations, and whether there is evidence that the substance being sought has already been destroyed.

For example, the police will generally lack reasonable grounds if the alleged sexual offence did not involve contact between the suspect’s penis and the complainant. Similarly, if the suspect is arrested several days after the alleged offence, the police will probably lack reasonable grounds because it is likely that the evidence will have degraded or been wiped or washed away in the interim.[^20]

[269] I must determine whether Detective Mija had reasonable grounds to believe that A.T.’s DNA transferred to S.M.’s penis during a sexual assault, and whether Detective Mija had reasonable grounds to believe that the complainant’s DNA was still there at the time of the swab.

[270] In conducting a warrantless arrest or search, a police officer must assess the reasonableness of the information available to him or her before conducting the search. The reasonable grounds standard must be interpreted contextually, and take into account all the circumstances, including the nature of the power exercised, the timing involved and the events leading up to the decision to conduct the search. In deciding whether reasonable grounds exist, the officer must conduct the inquiry which the circumstances reasonably permit.[^21]

[271] The officer must take into account all information available to him or her and is entitled to disregard only information which he or she has good reason to believe is unreliable. Reasonable grounds can be established despite the fact that there may be competing explanations for individual factors that contribute to the officer’s belief. An officer is only required to consider the incriminating and exonerating information to the extent that the circumstances reasonably permit. “Reasonable grounds to believe” does not require the officer to be in a position to dispel or rule all innocent or innocuous inferences that may be drawn from the same observations.[^22]

[272] Police officers often must make decisions quickly, in circumstances that are less than ideal, and on the basis of information available to them at the time which is sometimes incomplete. The law is clear that the assessment of grounds in an arrest situation cannot fairly be as exacting as the assessment of a police officer who has the opportunity to reflect on what she or he is putting into a search warrant.[^23]

[273] “Facts” relied upon by an officer in support of reasonable grounds to search need not be true. Reasonable grounds can be based on an officer’s reasonable belief that certain facts exist even if it turns out the belief is mistaken.[^24] However, reliance on erroneous information will not be objectively reasonable if, in the circumstances, the police could reasonably have made inquiries which would have led to the discovery of the deficiencies or defects.[^25]

[274] When reviewing the sufficiency of grounds to arrest or to search under the Charter, the issue is not whether the police were mistaken about one or more of their grounds. The issue is whether they reasonably believed their grounds.[^26]

Analysis

[275] The Respondent submits Detective Mija’s decision was made in the context of a serious and rapidly unfolding investigation and it was reasonable for Detective Mija to believe that obtaining a penile swab from S.M. would yield and preserve evidence of the offence on the information he had at the time.

[276] While Detective Mija had to make a timely decision to prevent the loss or destruction of evidence, I find that Detective Mija failed to turn his mind to the sufficiency of the grounds to believe that S.M. was directly involved in the sexual assault and Detective Mija failed to take reasonable steps to confirm and properly assess the information available to him about S.M.’s role in the alleged sexual assault prior to directing that a penile swab be taken from him. He did not make reasonable inquiries available to him. Reasonable inquiries would have led to the discovery of the deficiencies or defects in the information he relied upon to direct that a penile swab be taken from S.M.

[277] Prior to A.T.’s 911 call, Detective Mija and the investigators had very little information about the kidnappers. They received information that there were two kidnappers, one driving the Kia Soul suspect vehicle and one who grabbed A.T. Surveillance located the Kia Soul at 9 Daphne Crescent in Barrie, and they believed A.T. was in Barrie. Detective Mija received a photo of the man who drove the Kia Soul from 9 Daphne Crescent to the Red Lobster parking lot on Bayfield Street. The photo was of a slim-built, black male dressed in a black coat with a fur hood and black pants, wearing a mask and white shoes.

[278] After A.T. called 911 Detective Mija spoke with Detective Sgt. Coulson of the Homicide unit over the phone and he told Detective Mija that the victim had been sexually assaulted. He did not provide any additional information about the nature of the sexual assault and Detective Mija did not receive the description of the suspects A.T. provided to PC Bothman when PC Bothman spoke to her after responding to the 911 call -that there were 3 black males and 1 Portuguese male.

[279] In respect of the information received from DC Couture, the only information DC Couture provided to Detective Mija and Detective Renwick about the sexual assault was at 12:24 p.m. DC Couture told Detective Mija that the victim was kidnapped by two males. One kidnapper took her to Barrie, where three males where waiting, and she was forced to provide oral sex. Detective Mija failed to note that DC Couture told him three males were waiting in Barrie and only noted at 12:24 p.m. DC Couture told him that A.T. was kidnapped by two males. Only one kidnapper took her to Barrie, and she was forced into the oral sex.

[280] Detective Mija knew that Michael Rocco, Keyron Moore, and George Wright had been arrested. At 11:37 a.m. Inspector Sedgewick advised Detective Mija, Detective Renwick and Detective Cober that ERU officers arrested Keyron Moore and Mr. Wright at 1668 Weston Road, Toronto. Detective Renwick noted Mr. Moore’s DOB was July 25, 1973, which made him 49 years old on November 2, 2022. Detective Mija did not note receiving Mr. Moore’s date of birth.

[281] Detective Mija knew that Michael Rocco was arrested at 64 Daphne Crescent and Detective Hill advised Detective Mija over the phone about the information he received from Michael Rocco, who said he lived at 64 Daphne, and indicated that around 1:00 a.m. a drug dealer named Nico, asked him to use his garage in exchange for drugs. Detective Mija did not note “Nico’s” age in his notebook.

[282] Detective Mija failed to turn his mind to whether he had case-specific grounds to believe that a penile swab from S.M. would afford evidence of the offence. His evidence suggested he did not adequately consider whether there were reasonable grounds to believe that S.M. was a direct participant in the sexual assault. He appeared to rely exclusively on the fact that S.M. was under arrest for sexual assault along with the other offences, as opposed to considering the factual underpinnings for the arrest.

[283] When Detective Mija was asked to explain what his grounds were to obtain a penile swab from S.M., he initially stated that it was “basically because there was an allegation of sexual assault.” When asked to elaborate, he referred to the fact that a penile swab becomes very important when multiple suspects are involved and S.M. was initially under arrest for attempted murder, sexual assault with a weapon, gang sexual assault, kidnapping, forcible confinement, fail to comply with release order, and discharge a firearm. When asked specifically what grounds he had to perform a swab on S.M., Detective Mija testified “That’s the same: A sexual assault took place, a male was involved. We had the manner of sexual assault. And it was paramount to preserve and discover evidence.” Detective Mija did not turn his mind to the fact that multiple individuals were arrested, and it was essential that he consider S.M.’s role and whether there were reasonable grounds to believe he was directly involved in the sexual assault of A.T.

[284] The Crown emphasized that the information received by Detective Mija from Detective Couture at 12:24 p.m. - One kidnapper took her to Barrie, where three males where waiting, and she was forced to provide oral sex - provided reasonable grounds to believe that multiple males in Barrie participated in forced oral sex on the victim, and that S.M. was one of the males because he was arrested at the home in Barrie. However, as noted above, Detective Mija did not record that aspect of the information provided by DC Couture at 12:24 p.m. He only noted that one kidnapper took her to Barrie, and she was forced to provide oral sex. Moreover, when asked about his belief at the time about how many persons were involved, Detective Mija said that when he made the decision for a penile swab to be obtained from S.M., he understood that possibly two persons were involved. He indicated this was from the initial information and from observations in Barrie that one suspect left and one suspect was left in the house.

[285] Detective Mija said when he made the decision for penile swabbing to be done on S.M. the information he had about the sexual assault was that it was oral sex. He said he knew a female was forced into providing oral sex, but he did not know exactly which suspect and he did not know when or where it occurred. He did not testify that based on the information he received from Detective Couture he believed that multiple accused forced the victim to provide oral sex at the home in Barrie and that S.M. was one of those men because he was later arrested hiding in the home.

[286] Even if it had been appropriate for Detective Mija to act on the limited information he had without making reasonable inquiries, I am not satisfied that his subjective belief was objectively reasonable. I am not satisfied that on the information he was acting on, his grounds to believe that obtaining a penile swab from S.M. would afford evidence of the offence were objectively reasonable.

[287] Furthermore, Detective Mija failed to make reasonable inquiries that the circumstances demanded. His evidence demonstrated that at the time he made the decision to obtain the penile swab from S.M., there were important gaps in his knowledge of the information that had been gathered during the investigation.

[288] DC Couture should have provided Detective Mija all relevant information she received from A.T. in a timely manner, and she failed to do so. Her failure to pass on significant information from A.T. was negligent. A.T. was the most important witness in the investigation. It was critical that the information she provided be shared in a timely way with the investigators. The information DC Couture failed to share was directly relevant to important investigative decisions being made by Detective Mija and other investigators.

[289] After receiving the information from A.T., DC Couture waited at the hospital for hours while the sexual assault examination was being conducted and A.T. was being treated. DC Couture had ample opportunity during that time to share the information she received from A.T. but nonetheless failed to pass on much of the information she received from A.T. to the investigators.

[290] However, the fault lies not only with DC Couture. The circumstances cried out for further inquiries to be made by Detective Mija prior to his determination that an invasive investigative procedure, a penile swab, would be obtained from S.M., a young person.

[291] Further investigation was conducted with to determine the roles of Mr. Rocco and Mr. Wright which resulted in investigators deciding that penile swabs were not required from them. No penile swab was taken from Mr. Rocco despite the fact that, like S.M., he was also arrested at 64 Daphne Crescent. A similar case specific assessment for S.M., a young person, was required.

[292] Detective Mija did not make necessary inquiries that the circumstances reasonably permitted to ensure he had been provided and considered the available information about S.M.’s role in the offences prior to directing that a penile swab be taken from him. While DC Mija did not have the time and opportunity to reflect that an affiant preparing a search warrant might have had, the circumstances were not analogous to an arrest situation. Detective Mija had sufficient time to take reasonable steps to ensure he had received and understood the information obtained from A.T. about the offences and the identity of the person or persons who sexually assaulted her prior to authorizing the penile swab. He should have taken steps to review other available information about S.M.’s role, such as the information provided by Mr. Rocco.

[293] DC Mija knew DC Couture was with A.T. for hours. He knew that DC Couture had been with A.T. from approximately 11:15 a.m. He knew that she drove A.T. from Barrie to Vaughan. He knew that she was with her at the hospital, and that she was remaining with her to take a statement at the police station after her medical treatment was completed.

[294] DC Mija knew that DC Couture spoke with A.T. about the allegations and he knew that DC Couture had provided him with only very limited information over the phone about what A.T. told her about the offences. In the age of cell phones, text messages, and email, he should have spoken directly with DC Couture and/or obtained a copy of her notes to ensure he had all the relevant information necessary to assess whether there were reasonable grounds to believe that obtaining a penile swab from S.M. would afford evidence of the offence. DC Mija did not take any steps to confirm he had all the relevant information from A.T., who was the most important source of information about the offences.

[295] I find that Detective Mija failed to make the necessary inquiries, in part, because he did not sufficiently turn his mind to the importance of assessing S.M.’s personal role in the alleged sexual assault. He did not sufficiently consider the relevance of his role to the existence of the necessary reasonable grounds.

[296] I accept on November 2, 2022, in the morning and early afternoon, much was happening to rescue A.T., and to identify and apprehend the kidnappers and anyone else involved in the offences. I accept that the scene in the investigative project room was hectic and the circumstances were urgent. I also accept that information and taskings were coming in and out rapidly and information was arriving in a fragmented and piecemeal way. I accept that it was not until the dust settled the following day that the totality of the information could be carefully reviewed and assessed by investigators.

[297] However, the level of urgency changed after A.T. escaped from the garage, and after Mr. Moore, Mr. Wright, and S.M. were arrested.

[298] Approximately 5.5 hours passed between when DC Couture received the information from A.T. enroute and at the hospital and when the penile swab was obtained from S.M. at 7:15 p.m. Two hours and 45 minutes passed between S.M.’s arrest at 4:32 p.m. and when DC Sirotkin obtained the penile swab. During this time, Detective Mija should have taken reasonable steps to confirm the grounds he relied upon to obtain a penile swab. On the information that was available to Detective Mija there was a lack of clarity about where the sexual assault took place and who was involved. Detective Mija appeared to be uncertain even about the number of suspects involved, including failing to note that three suspects were waiting for A.T. in the garage after the kidnapper drove her to Barrie.

[299] Had Detective Mija confirmed the information received from A.T. with DC Couture he would have determined that he did not have reasonable grounds to believe that a penile swab from S.M. would afford evidence of the offence. He would have known that A.T. initially advised that:

• Two people kidnapped her and took her phone right away. Both those people were males.
• One kidnapper left her and the other one drove her to Barrie.
• She was tied up.
• When she got to Barrie, she was placed in the garage in Barrie. She described the garage as attached to the house, but there was no entranceway into the garage from inside the house.
• The two kidnappers were older, in their late 30s to 40s. Then three younger males were at the house in Barrie. Two black males, one tall, and a Spanish guy.
• They made her perform oral sex on them.
• There was no penetrative sexual assault.
• The kidnapper left and she was in the garage with the three males who were already at the house when she got there.
• The suspects kept going in and out of the garage for smokes and, at one point when they left, she took a chance and ran out the back door of the garage, and ran to a neighbour’s house. At the first house she attended, the neighbours would not let her in, and then the other neighbour did.
• She was in the car from 12-5 or 6.
• She stated she was in the car in Vaughan between midnight to 5:00 or 6:00 a.m. and at one point she remembered going to the FreshCo grocery store in Vaughan where there was a TD in the plaza.

[300] Detective Mija would have learned that A.T. provided additional clarifying information at the hospital including that:

• The tall black guy and Spanish guy were torturing her.
• They were demanding money. They hit her feet and hands with a hammer. They burnt her hair and feet with a lighter, and threatened to inject her with a needle full of heroin. She saw the needle that appeared to have heroin in it or a substance.
• All 5 males had heavy Jamaican accents, but she explained it as being a Toronto Jamaican accent.
• She advised that the male kidnapper that was wearing the white hoodie made her perform oral sex while still in the car. He ejaculated on her face, in her mouth and on her neck. This happened while the other kidnapper went to get gasoline so just the one kidnapper and victim in the car.
• This is the same kidnapper who drove her to Barrie.

[301] Detective Mija knew that S.M. was a young person. A.T. told Detective Couture she was sexually assaulted by one of the kidnappers who was alone with her in the car, and that the kidnappers were in their 30s to 40’s. The above information created reasonable grounds to believe that S.M. was one of the younger males who was waiting in the garage, not the kidnapper who committed the sexual assault in the car. The grounds to believe that S.M. was one of the younger men waiting in the garage, and not the kidnapper who committed the sexual assault, become even stronger when considered in the context of the information the police had from Mr. Rocco about Nico, the surveillance evidence of Mr. Moore, including that he left the area of 64 Daphne in the kia Soul, and the description of Mr. Moore, including his age, following his arrest, and the clothing he was wearing at the time of his arrest.

[302] During cross-examination Detective Mija agreed had he known the sexual assault took place in the vehicle and not in the garage, by someone in their later 30s to early 40s, he would not have obtained a penile swab from S.M.

[303] The Crown submitted that the police did not have information that would categorically eliminate S.M. until the next day, when the statement was obtained from A.T. However, the question is not whether S.M. could be categorically eliminated as the suspect who sexually assaulted A.T. The question is whether the police had reasonable grounds to believe that S.M.’s penis was in contact with A.T. such that a penile swab would afford evidence.

[304] Due diligence would have resulted in Detective Mija being in possession of the information provided by A.T. to DC Couture. Even if the information from A.T. did not “categorically eliminate” S.M., it raised serious issues about the existence of reasonable grounds to believe S.M. was involved in the sexual assault and would have highlighted the need for Detective Mija to carefully examine the information available about S.M., including the information provided by Mr. Rocco, which included that S.M. arrived at the house at around 1:00 a.m., was there to sell drugs, or other information such as the information gathered by the ERU, that S.M. arrived on a scooter, and the scooter was still at the house.

[305] It should have prompted a careful consideration of the role of Mr. Moore, and the evidence linking him to the Kia Soul, and identifying him as the kidnapper who drove A.T. to Barrie.

[306] If the initial information from A.T. still left uncertainty about the sufficiency of grounds to obtain a penile swab from S.M., Detective Mija should have waited to obtain additional information from the interview of A.T. A.T. began providing her statement at 7:55 p.m., only 40 minutes after the sample was taken from S.M.

[307] Given the significance of the decision to take a penile swab from a 17-year-old young person, steps could have been taken to prevent the loss or destruction of evidence during the period that A.T. was giving her statement. As in Saeed, there was no evidence that detention in a dry cell was the only means by which the loss or destruction of evidence could be prevented.[^27] An officer could have waited with S.M. while the statement was being taken to ensure he did not “destroy the evidence”. During A.T.’s statement an officer could have monitored the statement for the specific purpose of gathering further information about the circumstances of the sexual assault and who was responsible. Had this been done, Detective Mija would have arrived at the conclusion he reached the next morning, that there were not reasonable grounds to believe that taking a penile swab from S.M. would afford evidence of the offence, because S.M. was not a direct participant in the sexual assault.

[308] Notably, while time was of the essence, Ms. Vachon testified that if a sample is collected within 24 hours and the subject has not showered or bathed there is a good success rate in obtaining a DNA sample of the other person where the subject has been in contact with the bodily fluids of another person. The police could have waited until the completion of the statement, and the sample would have been obtained well within 24 hours of the sexual assault. The urgency was not such that the police had to proceed immediately, despite the lack of clarity with respect to S.M.’s role in the sexual offences.

[309] Objectively there were not reasonable and probable grounds to believe that obtaining a penile swab from S.M. would afford evidence of a sexual assault.

Application of Saeed to Young Persons

[310] The Supreme Court in Saeed did not consider whether the authority to obtain penile swabs incident to arrest extends to young persons. The Applicant did not argue that the reasoning in Saeed should not apply to young persons. However, in my view it is unclear whether the Supreme Court would necessarily have reached the same conclusion in balancing law enforcement interests and privacy interests if the subject of the search were a young person.

[311] To be constitutional, warrantless searches incident to arrest must be reasonable. The legitimate and conflicting interests of the state and the arrested person have to be balanced in determining whether a particular search is a justified and reasonable exercise of the police power to search incident to a lawful arrest. In Saeed, the Supreme Court explained as follows:

Reasonableness in this context involves striking a proper balance between an accused’s privacy interests and valid law enforcement objectives. In some cases, an accused’s privacy interests will be so high as to be almost inviolable. In those cases, the common law power of search incident to arrest must yield, and a search will be allowed only where the accused consents, or a warrant is obtained, or perhaps in exigent circumstances. In others, while the accused’s privacy interests may be significant, they will not be so significant as to preclude the power of the police to search incident to arrest. In these cases, the existing general framework of the common law power of search incident to arrest must instead be tailored to ensure the search will be Charter-compliant.[^28]

[312] The privacy interests engaged where the youth is the subject of the search are greater than in cases involving an adult. The potential impact of such an investigative technique on a young person is more profound than in the case of an adult. This conclusion is consistent with the overarching principles of the Youth Criminal Justice Act (YCJA).

[313] Included in the declaration of principles in s. 3 of the YCJA are subsection (b) and (d), which recognize that young persons are to be treated differently than adults with enhanced procedural and privacy protections, consistent with their greater dependency, reduced level of maturity and moral blameworthiness:

s. 3(1) The following principles apply in this Act:

(b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following:

(i.) rehabilitation and reintegration,

(ii.) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity;

(iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected,

(iv.) timely intervention that reinforces the link between the offending behaviour and its consequences; and

(v.) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time. [Emphasis added]

(d) special considerations apply in respect of proceedings against young persons and, in particular,

(i) young persons have rights and freedoms in their own right, such as a right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms,

(ii.) victims should be treated with courtesy, compassion and respect for their dignity and privacy and should suffer the minimum degree of inconvenience as a result of their involvement with the youth criminal justice system;

(iii.) victims should be provided with information about the proceedings and given an opportunity to participate and be heard; and

(iv.) parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour. [Emphasis added]

[314] In Saeed, the Supreme Court was not unanimous in its finding regarding the balancing of interests. Justice Karakatsanis and Justice Abella held that genital swabs are substantially more invasive and dehumanizing than mouth swabs, hair samples, or dental impressions. They concluded that the findings of the Supreme Court in Stillman[^29] - that a search which intrudes upon the bodily integrity of the arrested person is so intrusive and constitutes such a significant invasion of the arrested person's privacy and security interests that it cannot be justified incident to arrest absent statutory authority – applied to the collection of penile swabs. Justice Karakatsanis and Justice Abella concluded that despite the importance of genital swabs as an investigative tool in sexual assault matters which are often difficult to prove, law enforcement interests were outweighed by individual privacy interests because of the profound impact on privacy and human dignity.[^30]

[315] In my view, the vulnerability of young persons and the special protections of the YCJA are important factors that may have impacted the Supreme Court’s conclusions in Saeed regarding the balancing of law enforcement interests and protection of individual privacy, security, and dignity.

[316] Both Justice Moldaver and Justice Karakatsanis opined that Parliament may wish to establish an express comprehensive legislative regime for intrusive searches, such as the collection of penile swabs, to provide greater direction to the police and that balances the need to obtain and preserve evidence with the need to safeguard privacy interests, much as it did for DNA samples. This case highlights the need for and value of a clear legislative scheme.[^31]

Manner of Execution

[317] Assuming that a penile swab can be lawfully obtained from a young person incident to arrest, having regard to the principles in ss. 3(b) and (d) of the YCJA, the existing general framework of the common law power of search incident to arrest must be tailored to reflect that young persons are entitled to enhanced procedural protections to ensure that they are treated fairly and that their rights, including their right to privacy, are protected. Special protections are necessary to ensure such a search is Charter-compliant.

[318] In Saeed, in respect of the collection of a penile swab, the Supreme Court provided guidelines including that the search:

• Be conducted at a police station;
• Be conducted in a manner that ensures the health and safety of all involved;
• Be authorized by a police officer acting in a supervisory capacity;
• That the accused be informed of the nature of the procedure, its purpose, and the authority of the police to require the swab;
• That the accused be given the option of removing his clothing and taking the swab himself, or that the swab be performed by a trained officer or medical professional, with minimum force necessary;
• Be conducted by officers of the same gender as the accused;
• Be conducted by no more officers than necessary;
• Be conducted in a private area;
• Be conducted as quickly as possible while the accused wears as much clothing as possible; and
• A record be kept of the reasons for and manner in which swabbing occurred.[^32]

[319] The Applicant concedes that the procedure followed by PC Sirotkin complied with the guidelines for reasonable execution laid out in Saeed. However, the Applicant submitted that additional procedural safeguards were required because S.M. was a young person. The Applicant submitted that a young person must be given a reasonable opportunity to consult with counsel and/or a parent, adult relative or other appropriate adult chosen by the young person, and to have counsel and/or a parent, adult relative or other appropriate adult chosen by the young person present when the sample is obtained.

[320] The Applicant argued that section 487.07 of the Criminal Code applies to the collection of penile swabs.

[321] Section 487.07 provides as follows:

487.07 (1) Before taking samples of bodily substances from a person, or causing samples to be taken under their direction, in execution of a warrant issued under section 487.05 or an order made under section 487.051 or under an authorization granted under section 487.055 or 487.091, a peace officer shall inform the person of

(a) the contents of the warrant, order or authorization;

(b) the nature of the investigative procedures by means of which the samples are to be taken;

(c) the purpose of taking the samples;

(d) the authority of the peace officer and any other person under the direction of the peace officer to use as much force as is necessary for the purpose of taking the samples; and

(e) in the case of samples of bodily substances taken in execution of a warrant,

(i) the possibility that the results of forensic DNA analysis may be used in evidence, and

(ii) if the sample is taken from a young person, the rights of the young person under subsection (4).

Detention of person

(2) A person from whom samples of bodily substances are to be taken may

(a) be detained for that purpose for a period that is reasonable in the circumstances; and

(b) be required to accompany a peace officer for that purpose.

Respect of privacy

(3) A peace officer who takes samples of bodily substances from a person, or a person who takes such samples under the direction of a peace officer, shall ensure that the person’s privacy is respected in a manner that is reasonable in the circumstances.

Execution of warrant against young person

(4) A young person against whom a warrant is executed has, in addition to any other rights arising from his or her detention under the warrant,

(a) the right to a reasonable opportunity to consult with, and

(b) the right to have the warrant executed in the presence of

counsel and a parent or, in the absence of a parent, an adult relative or, in the absence of a parent and an adult relative, any other appropriate adult chosen by the young person.

Waiver of rights of young person

(5) A young person may waive his or her rights under subsection (4) but any such waiver

(a) must be recorded on audio tape or video tape or otherwise; or

(b) must be made in writing and contain a statement signed by the young person that he or she has been informed of the right being waived.

[322] The above statutory provisions apply to the collection of an accused’s DNA as a result of a s. 487.05 DNA warrant, or an order made under s. 487.051 (DNA databank order provisions), or under an authorization granted under s. 487.055 (DNA data bank order for offenders serving sentences), or s. 487.091 (order for additional samples of DNA). Section 487.07(4) does not apply to warrantless searches incident to arrest. The provisions explicitly indicate that they apply to DNA collection authorized by warrant, and to samples obtained pursuant to one of the listed statutory orders. Notably, Saeed, makes no mention of the provisions. The Supreme Court in Saeed would not have overlooked the section if it applied to the collection of penile swabs obtained incident to arrest when they established guidelines for the execution of the search.

[323] However, this does not mean that s. 487.07(4) is not instructive. In my view, the statutory right of a young person to have a reasonable opportunity to consult with counsel and a parent or other appropriate adult, and to have counsel or a parent or other appropriate adult present when DNA samples are taken, speaks to Parliament’s assessment that additional procedural protections are required for youth when DNA samples are collected.

[324] I recognize that the swabs collected from S.M. were for the purpose of collecting the complainant’s DNA and not his own, a factor that in Saeed the Supreme Court found reduces the level of intrusion. However, s. 487.04 nonetheless provides guidance regarding reasonable procedural protections necessary where an investigative technique is utilized that has a significant impact on the privacy of a youth. This conclusion is consistent with the principles of the YCJA, and other procedural protections found in the YCJA dealing with the collection of evidence from a youth.

[325] Section 3(b) of the YCJA, part of the declaration of principles, provides that the criminal justice system for young persons must be separate than that of adults, and must emphasize (b)(iii.) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected.

[326] Section 3(d)(iv) of the statement of principles explicitly provides that parents should be notified of measures that impact their child: “parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour”.

[327] Section 146 of the YCJA, under the heading “Evidence”, provides that no written statement of a young person is admissible, unless the young person, before the statement was made, was given a reasonable opportunity to consult with and have present counsel, and a parent, an adult relative or, in the absence of a parent and an adult relative, any other appropriate adult chosen by the young person.

[328] In my view, for penile swabs obtained incident to arrest to be obtained in a reasonable manner from a young person, the young person must be provided with a reasonable opportunity to consult with and to have present counsel and a parent, or in the absence of a parent, an adult relative, or in the absence of a parent and an adult relative, any other appropriate adult chosen by the young person. I do not agree with the submission that the opportunity to have a parent or counsel present should not be afforded in the circumstances of a penile swab taken incident to arrest because of the importance that such swabs be taken as soon as possible to prevent the loss or destruction of evidence. What is a reasonable opportunity can take into account the time constraints in obtaining penile swabs. In this case, S.M.’s mother arrived at the station at approximately 8:30 p.m. this was within a reasonable period of time.

[329] In this case S.M. was provided with an opportunity to consult with counsel prior to the swab being taken. Although S.M. testified that he spoke to his mother prior to the collection of the penile swab, the evidence was unclear about whether he spoke to his mother after he was informed that a penile swab would be taken. I find it is likely he did not. Detective Hill’s evidence was that S.M. spoke to his mother before he was advised that a penile swab would be obtained, and later, after the penile swab was obtained at the police station. When L.A. spoke to Detective Hill, he did not tell her that a penile swab would be taken from S.M. because he did not believe he was obligated to tell her, something I find this is inconsistent with the statement of principles in the YCJA.

[330] S.M. was not provided with a reasonable opportunity to have counsel or his mother present, even though Detective Hill knew that his mother was coming to the police station and wanted to be present for the police interview. Neither Detective Hill nor any of the other investigators turned their mind to whether S.M. she be afforded the opportunity to have his mother or counsel present when the penile swab was obtained. I accept S.M.’s evidence that if given the opportunity he would have wanted his mother to be present because he felt comfortable with her.

[331] The police ought to have informed L.A. that a penile swab would be taken from her son, and they ought to have provided S.M. with the opportunity for his mother or counsel to be present during the taking of the sample. If S.M. had requested that his mother be present, the police would have been required to wait a reasonable period of time for her arrive to implement his right to have his mother present.

[332] The manner of execution violated S.M.’s section 8 Charter right to be protected from unreasonable search and seizure because the police did not afford him the additional safeguards necessary where the search involves a young person including providing an opportunity for the youth to consult with a parent and counsel and to have counsel and/or a parent present during the taking of the sample.

Section 7

[333] In relation to the alleged violation of s. 7 of the Charter, section 7 was referenced only briefly in the Applicant’s written materials. The focus of the written and oral argument was the alleged s. 8 violations. In my view, the issues involving the warrantless search and seizure are properly addressed under s. 8 of the Charter. Section 7, addressed below, is engaged if the s. 8 violations affect the integrity of the administration of justice, relevant to the determination of whether a stay or other remedy is warranted under s. 24(1) of the Charter.

D. Appropriate Remedy Under s. 24(1) of the Charter - Sentence Reduction Not Stay

[334] No evidence was obtained as a result of the collection of the penile swab from S.M. The swab was never submitted to the CFS for analysis. Accordingly, the Applicant did not make a request to exclude evidence under s. 24(2) of the Charter. Rather, the Applicant is seeking a stay of proceedings, pursuant to s. 24(1) of the Charter. It is the Applicant’s position that a stay of proceedings is the only appropriate remedy and is justified in this case.

[335] In Mack, the Supreme Court confirmed that the judiciary should resort to a stay when necessary to communicate that it will not condone state conduct that transcends what our society perceives as acceptable. The objective of a stay as a remedy is to maintain public confidence in both the legal and the judicial process.[^33]

[336] In R. v. Babos, 2014 SCC 16, at paras. 31 and 32, the Supreme Court of Canada confirmed that a stay should only be granted in “the clearest of cases”. The Supreme Court explained that cases where a stay of proceedings for an abuse of process will be warranted generally fall into two categories:

(1) where the state conduct compromises the fairness of an accused in trial (“the main category”); and

(2) where state conduct creates no risk to trial fairness but risks undermining the integrity of the judicial process (“the residual category”).

[337] In Brunelle, Justice O’Bonsawin of the Supreme Court of Canada stated abuse of process under the main category involves sections 8 to 14 of the Charter, which are