COURT FILE NO.: 18-0552 DATE: 2019 07 31

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN, Respondent – and – RAJA DOSANJH, Applicant

COUNSEL: J. Forward for the Crown B.J. Greenshields and J. Greenspan, for the Accused

Heard: April 29, May 2, 7 and 9, 2019

LEMON J.

RULING RE: ADMISSIBILITY OF THE “INFOTAINMENT SYSTEM” EVIDENCE

The Issue

[1] Mr. Dosanjh seeks a ruling that police searches of a motor vehicle “Infotainment system” were contrary to s. 7 and s. 8 of the Canadian Charter of Rights and Freedoms. He submits that the evidence obtained from those searches should be excluded from the evidence at his trial pursuant to s. 24(2) of the Charter. He says that the admission of that evidence at trial would bring the administration of justice into disrepute.

[2] After argument, I advised the parties that the application was dismissed for reasons to follow. These are those reasons.

[3] This ruling should be read in conjunction with my other rulings in this series of pre-trial motions, including 2019 ONSC 469, 2019 ONSC 2324, 2019 ONSC 2373, 2019 ONSC 2398, and 2019 ONSC 2451.

Background

[4] For the purposes of this application, Mr. Dosanjh relies upon the Crown’s theory of the case against him. R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, at para. 32, confirms that “a s. 8 applicant may ask the Court to assume as true for s. 8 purposes any fact that the Crown has alleged or will allege in the prosecution against him.” The applicant is not required to provide additional evidence in order to make out those same elements.

[5] That Crown theory is that on March 1, 2016, Aly Sunderani was murdered by Mr. Dosanjh. He is now charged with first degree murder.

[6] The Crown acknowledges that this is a circumstantial identification case. The Crown submits that the issue is not whether Mr. Sunderani was murdered, or whether that murder was planned and deliberate. That much is clear from the fact that Mr. Sunderani was killed outside the Guelph Comfort Inn during daylight hours. The altered automatic weapon the killer used was left behind at the scene. The Crown accepts that it must prove beyond a reasonable doubt that it was Mr. Dosanjh who committed the murder.

[7] The Crown submits that a number of pieces of evidence, when viewed as a whole, point to Mr. Dosanjh as the murderer. Some pieces are more important than others.

[8] The Guelph Police determined the make and model of the “getaway vehicle” and located it at Zoom Rent-a-Car in Mississauga shortly after the murder.

[9] The vehicle was an Infiniti QX60. Police obtained the rental agreement for the QX60 that governed the rental on March 1, 2016. That rental agreement set out that Jaspinder Nagra was the lawful renter of the QX60 between March 1 and March 2, 2016. An additional driver, Avtar Nagra, was also authorized to operate the QX60. The agreement stated that only the renter and additional driver were authorized to drive the vehicle and prohibited the vehicle from being used for any crime or for any illegal trade or transport. There was a specific prohibition that anyone who had given the agency a false name, age, driver's license, etc., could not drive the vehicle.

[10] Jaspinder Nagra opened and signed the rental agreement with the rental agency. He provided his credit card, email and phone number. However, it is the Crown’s theory that Mr. Dosanjh later held himself out to be Mr. Nagra and used the completed rental agreement to avail himself of the vehicle. In this way, he fraudulently obtained the QX60 for use in the murder of Mr. Sunderani.

[11] One of the significant pieces of evidence pointing to Mr. Dosanjh as the killer is the “Infotainment Evidence” gathered from the QX60. There are two separate pieces of evidence that were gathered from the QX60: GPS track logs and a contact list from the cell phone of Mr. Dosanjh’s brother-in-law, Dalvir Passi.

GPS Track Logs

[12] The “Infotainment system” is a combination entertainment and information system located in the dashboard of the vehicle. The Infotainment system can be paired with a cell phone to allow for hands-free calling and to allow music on the phone to be played on the vehicle sound system.

[13] Every time the QX60 was turned on, a GPS system recorded the latitude and longitude while the vehicle was in motion. The Infotainment system automatically created GPS tracklogs independent of any use of the actual GPS system.

[14] The tracklogs show that on March 1, 2016, the QX60 travelled from the parking lot of Zoom to Mr. Passi’s family home. The vehicle remained turned on in the driveway for a number of minutes before driving to Guelph, Ontario. In Guelph, the vehicle drove around the north part of the city and stopped at two locations close to the Comfort Inn.

[15] Prior to the shooting, the tracklogs show that the QX60 was parked in the Comfort Inn parking lot close to where Mr. Sunderani was shot. At the time of the shooting, the vehicle began to move and the tracklogs show its route out of Guelph. In particular, the QX60 then went to Mississauga, to a mosque, a strip mall, and then to the residence of Mr. Passi. The QX60 remained parked in the driveway of that residence overnight. The next day the tracklogs show that the QX60 was returned to Zoom.

Phone Contact List

[16] The Crown’s theory is that Mr. Passi uploaded his contact list to the QX60. Unlike the GPS tracklogs, the QX60 did not automatically record the contact list from Mr. Passi’s phone. The police extracted a contact list from the QX60 that included all of the contacts listed in Mr. Passi’s cell phone. Mr. Passi’s contact list contained several contacts for Mr. Dosanjh, listed in different ways.

[17] At the preliminary hearing, Mr. Passi testified that he “paired” his cell phone with the QX60 so that he could listen to his music on the vehicle’s stereo, as was his usual practice. This process of pairing caused the contact list to be recorded on the Infotainment system.

[18] At the time the contact list was uploaded to the Infotainment system, there is video surveillance of Mr. Dosanjh inside Zoom. Mr. Dosanjh drove the QX60 from the Zoom lot and Mr. Passi was the passenger. Later, Mr. Passi became the driver and Mr. Dosanjh the passenger.

[19] The Crown’s theory is that Mr. Passi drove the QX60 to the Comfort Inn in Guelph and Mr. Dosanjh executed Mr. Sunderani. Mr. Passi then drove Mr. Dosanjh to Mississauga.

Position of the Defence

[20] In essence, the defence makes five submissions.

1. A pre-warrant search of the Infotainment system invalidated the subsequent warrant.
2. The conduct of the Guelph Police Service in obtaining the warrant subverted the pre-authorization process through nondisclosure, bad faith, deception or fraudulent misrepresentation. As such, even if the warrant was valid, I should exercise my discretion to exclude the evidence arising from the warrant.
3. The ITO for the warrant was insufficient for a valid warrant to be issued.
4. The warrant was not executed in an appropriate fashion.
5. Given those errors, the search was contrary to both s. 7 and s. 8 of the Charter. With a proper balancing of the factors set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the evidence should be excluded.

Does the Pre-Warrant Search invalidate the Warrant that was Subsequently Obtained?

[21] Although the evidence obtained from the Infotainment system was the subject of a search warrant, that warrant was preceded by another search. The Crown concedes that this first search was warrantless. That warrantless search was described in the subsequent warrant’s Information to Obtain (“ITO”). However, in the “Overview” section, this issue was summarized as follows:

In summary, this application addresses an error that lead to the accessing and analysis of the infotainment system of the Infiniti QX60, without prior judicial authorization. The application requests a search warrant for the police locker to re-seize the Information provided to Guelph Police by Mr. Dupuis of the OPP without warrant. The application also requests the judicial authorization to continue the analysis of the infotainment unit. I do not rely on any of the information obtained by Mr. Dupuis without warrant in order to support this application. I believe that there are objectively sufficient grounds to have supported judicial authorization prior to Mr. Dupuis searching the infotainment system. I maintain that objectively sufficient grounds continue to exist separate and apart from anything already inadvertently obtained from the infotainment system.

[22] D/Cst Brian Welsh was the officer in charge of the investigation. D/Cst Julie Meier was involved in the investigation and wrote many ITOs for many warrants in the investigation.

[23] It is common ground that while the Guelph Police thought there may be useful evidence held in the Infotainment system, they were unable to find a way to access that information on the hard drive of the QX60 despite contacting the manufacturer. Without that access, Guelph Police could not obtain a warrant as Meier was not able to swear that such a search, if warranted, would afford any evidence.

[24] In order to carry out a number of destructive tests on the QX60, Guelph Police purchased it from the rental agency in late March 2016.

[25] In November 2016, the QX60 was taken to the OPP in Orillia to access their technical expertise. The project fell to S/Csts Michael Ryder and Jeremy Dupuis, civilian OPP employees.

[26] Welsh filed an affidavit in response to this defence application. He sought to clarify the error made by the OPP. He said that he had been clear with Ryder, and through him to Dupuis, that Welsh did not want them to search the information in the hard drive but only to find a way to access that information. He did not believe that a warrant was necessary to search the vehicle and remove the hard drive since the vehicle had been purchased by Guelph Police; however, a warrant was necessary for any search of information on the hard drive. He testified that these instructions were given to Dupuis and Ryder by email, telephone calls and face to face meetings. Welsh testified that, at all times, he knew that such a warrant was necessary for the search.

[27] To understand one of the significant issues in this area, it is necessary to move ahead in time to set out some important email traffic between Welsh and Ryder. On November 16, 2016, the following communication occurred:

Wednesday, November 16, 2016, 3:14 PM. Ryder to Welsh

Brian,

I don’t have the search warrant for the Infiniti on file here. Would you be able to send me a copy when it is convenient for you? Thanks, Michael

Wednesday, November 16, 2016, 3:55 PM. Welsh to Ryder

Hi Mike…no search warrant…we bought that car so we could do what we want to it. Because you weren’t sure how you were going to do the exam we had a hard time trying to articulate that in a general warrant (XXXXXX) and the way to get around it was for us to buy it outright.

[28] The defence submits that this shows that Welsh told Ryder that he did not need a warrant and that Welsh has lied to the court when he says otherwise.

[29] In Welsh’s affidavit, he stated:

25. When I sent this email [to Dupuis on November 16, 2016] and said that no search warrant was required, I meant that no search warrant was required to remove the infotainment system from the vehicle. I also meant that no search warrant was required to determine if data was in the infotainment unit. I believed that the unit might be accessed only for the purpose of determining whether there was data.
26. In this email, I mentioned that we got around the need for a general warrant by buying the vehicle. That process only dealt with the destructive nature of removing the infotainment system and the forensic examination of it. That email was not meant to address the issue of searching or analyzing the data.
27. In retrospect, I should have been more clear that no search warrant was required to remove the system and attempt to access it. At this point, the only thing that the OPP had been able to do with the infotainment system on the [vehicle owned by the deceased] was to remove it. I was told that they did not have a technique to get into the infotainment system or to analyze the data, if it was there.
28. I also believed that they did not have a technique to get into the infotainment system or to analyze the data of the QX60 infotainment system. Therefore, I did not say that a warrant was required for the data because I did not think we could get a warrant. I didn’t believe that there were grounds to believe that data was present, or if it was, that it could be accessed. I believed that if S/Cst Ryder was able to access the infotainment system, he would let me know and we could discuss it further. At that point, I could potentially write a warrant for the data, depending on what he told me.
29. Later that day at 3:20 pm, I received an email from S/Cst Dupuis. He attached a copy of Dalvir Passi’s contact list with Raja Dosanjh as a contact number. I opened the contact list and read it. At this point, I became concerned. I believed that the OPP should not have accessed this data without a warrant. I also should not have been in possession of the data. I printed a copy of the material sent to me by S/Cst. Dupuis and asked [Meier] to secure it.
30. Between June 2 and June 3, 2017, I was attempting to get advice from other people about what to do. On June 13, 2017, I emailed Jeremy Dupuis to tell him to hold off looking at the data. [Emphasis original.]

[30] Welsh’s evidence was that he made it clear to Ryder that he was only requesting Ryder to determine if he could obtain access to the Infotainment system. He made it clear that if that were the case, a search warrant was necessary to continue to access the Infotainment system. However, none of those instructions to Ryder were confirmed in Welsh’s notebook.

[31] Both Ryder and Dupuis testified that they had no knowledge of a need for a warrant. Rather, they understood that they had authority to search because the QX60 had been purchased by Guelph Police and was therefore “abandoned property”. Accordingly, they did not believe they needed a warrant to search and they relied on Welsh to that effect.

[32] To this point, then, I have Welsh’s evidence of what he thought and what he did but no notes to confirm that. Neither Dupuis nor Ryder can confirm his evidence. However, there are a series of emails between Welsh and Ryder. That correspondence is as follows [Typographical errors in the original]:

Friday March 11, 2016, 3:32 PM. Welsh to Ryder

Hi Michael

With respect to this other vehicle we have that we think was used inii the shooting (the Infiniti QX60) we are writing a general warrant to examine it forensically. As I mentioned I’d like you to have a look at it to see if you can download the infotainment unit. Having said that is there wording you can provide that we could put in our warrant which would explain what you are going to do?

[33] The next entry is the November correspondence set out above and repeated here.

Wednesday, November 16, 2016, 3:14 PM. Ryder to Welsh

Brian,

I don’t have the search warrant for the Infiniti on file here. Would you be able to send me a copy when it is convenient for you? Thanks, Michael

Wednesday, November 16, 2016, 3:55 PM. Welsh to Ryder

Hi Mike…no search warrant…we bought that car so we could do what we want to it. Because you weren’t sure how you were going to do the exam we had a hard time trying to articulate that in a general warrant (XXXXXX) and the way to get around it was for us to buy it outright.

March 9, 2017, 9:37 AM. Welsh to Ryder

Hi Mike

Just wanted to let you know that we have made an arrest in the murder of Aly Sunderani. We’re into a disclosure phase now so I was wondering if there’s anything you’ve come up with at your end. Can you let me know…thanks Brian.

March 21, 2017, 1:49 PM. Welsh to Ryder

We have made an arrest in our homicide case. I’m just checking to see if you can give me any updates on the infotainment system we removed from the Infiniti QX60. Thanks Brian

Friday, June 2, 2017, 7:57 AM. Ryder to Welsh

Brian,

We have made significant progress with this exhibit and we were wondering if we could arrange a conference call to discuss some findings. Jeremy Dupuis from our office has successfully removed the hard drive password from the QX60 and found user data. We would like more information about this vehicle since it was a rental we would like to know more about the timeline of events with respect to when the vehicle was rented and returned to attempt to separate any user data from other times. We would like to know if you have identified any suspects phone and/or have names or numbers of interest that we can search for.

If you are free sometime today that would be ideal as Jeremy will be out of the office for a little over a week but if not that is fine. Would you send those details to me via email so we can target our searches?

I have also been able to acquire the data from the chips from the Range Rover and have some user data that I am going through now. I was wondering if you were ever able to process the iPhone.

Thanks Michael Ryder

Friday, June 2, 2017, 12:14 PM, Welsh to Ryder

Hi Mike….I just sat down at my desk, I start at 12 today.

With respect to your request, the QX 60 was rented on March 1 st , 2016 around 1230pm. It was returned around 930pm on March 2 nd , 2016. WE believe the phone the suspect used is in the name of Ryan SINGH with an address in BC (915 London St., New Westminister BC). The phone number is xxx-xxx-9405.

Having said that, there may be other phones involved in that time period as we know the suspects and the victim were using PGP Blackberry’s. Additionally, two people rented the QX60 and we have not been able to identify the 2 nd male.

The person who is using the Ryan Singh phone, we believe is the shooter Raj Dosanjh. He is the person we have arrested for the murder. There was definitely a 2 nd person driving the QX60 at the time of the killing.

As for the victim’s Iphone, we have not been able to get into it. My tech guys tell me that there is still no way to get into it. I believe it is a 6 digit password…do you now otherwise?? If there is a company out ther who can do it I know we would pay the money for it as I think its very high value.

I’m around today if you want to talk more. I have to go to the hospital to see a victim so if you need to find me my cell is xxx-xxx-9170. Thanks.

June 2, 2017, 3:20 PM, Dupuis to Welsh

Brian. Attached is a working copy of my analysis of the Infotainment unit recovered from the 2015 Infiniti Q60. I believe I have positively identified a synced device on that date and it’s owner. In fact, the number you quoted (xx-xxx-9405) is a contact of the synced phone.

Please read over the report and supplemental contact list. If you have any questions. I am reachable at (XXXXXX) (Personal) for the next hour or so.

Any questions over the next week, please consult with Mike as I am out of the country. Thanks Jeremy Dupuis #175901.

2 attachments

[34] This is the material that was said to be maintained by Guelph Police in a secure location and that they wished a warrant to review.

June 13, 2017 8:14 AM, Welsh to Dupuis

Hey Jeremy. Can u hold off looking into that device any further till u hear from me. (XXXXXX). Thanks.

Tuesday, June 13, 2017 8:18 AM, Dupuis to Welsh

Absolutely. Let me know.

June 13, 2017 8:33 AM, Welsh to Dupuis

Is there any info in the device left to get and if so can u say what it would be.

June 13, 2017 8:47 AM, Dupuis to Welsh

I am working to see if I can decode the tracklogs.

[35] Here, we can see that Dupuis is still working on the device despite the email 30 minutes before requesting that he refrain from looking into the device further.

June 13, 2017 8:49 AM, Welsh to Dupuis

Can you call me.

June 19, 2017 10:45 AM, Welsh to Dupuis

Hey Jeremy… would you be available for me to give you a call??

July 31, 2017, 11:10 AM, Welsh to Ryder

Hey Jeremy. Looks like we are going to write a warrant to get the info from the infotainment system. That is the info you already have and also we will write to the attempts to unlock the GPS locations. Having said that when would you be available to talk to myself and our paper writer Julie Meier just so she can get enough information to put into that application. Thanks

August 2, 2017, 8:59:50 AM, Welsh to Ryder

Hi Mike

We are having to write a warrant for the info that you guys got from that Infiniti. In order to cover everything off, the warrant writer is asking if you can give me a report or notes on what you did to try and get info from the infiniti infotainment system. Could you possible give me something on that??

Also at one point we spoke to an officer named Kelly Anderson in your office. I think you directed us to call Kelly. Can you recall why we spoke to him? Sorry for the extra work….thanks Brian

Credibility of D/Cst Welsh

[36] I cannot accept D/Cst Welsh’s evidence that, at all times, he was of the view that a warrant was required and told Ryder and Dupuis that it was. Rather, I find that Ryder and Dupuis were acting on instructions from Welsh that no warrant was required.

[37] In his explanatory affidavit, Welsh swore:

12. I believed that a search warrant was required for the QX60 infotainment system data. My belief in that regard has never changed.

[38] Further, Welsh’s evidence was that he made it clear to Ryder that he was only requesting Ryder to determine if he could obtain access to the Infotainment system. He made it clear that if that were the case, a search warrant was necessary to continue to access the Infotainment system. However, none of those instructions to Ryder were confirmed in Welsh’s notebook. Ryder did not take notes of his conversations. Ryder could not confirm this instruction. Dupuis heard none of this.

[39] Welsh had no explanation for his failure to make contemporaneous notes in his notebook. He confirmed that given the nature of the Charter breach, this was an important event and should have had been appropriately noted.

[40] As well, Welsh acknowledged that on other occasions, he had made notes where he found information that was obtained by the police in excess of what was authorized by a warrant. At other times, for instance when he found a reason for failing to disclose important emails, he wrote out an extensive note. This failure to keep notes with respect to these important events undermines his evidence that at all times he expected to obtain a search warrant and advised Ryder of that fact.

[41] In R. v. Mascoe, 2017 ONSC 4208, Hill J. said at paras. 112-115:

[112] Police officers, not equipped with body-worn cameras and microphones, cannot reasonably be expected to take notes of every detail of incidents in which they participate in execution of their duties. Be that as it may, officers are duty-bound to accurately and reasonably contemporaneously record important facts, for example those respecting constitutionally-related subjects (i.e. consent, rights to counsel, warrantless searches) and relevant utterances by an investigative target, accused or other principal actor. Leaving to the side for the moment deficiencies in the police witnesses’ notes relating to recording of times, and inconsistencies between the notes and oral testimony, the notes, as discussed more fully below, failed to record such important facts.

[114] While the court plays no part in marking or grading the quality of police note-taking in a particular case, or meting out disciplinary remand for real deficiencies, the quality of a police witness’ notes can, and did in this case, impact upon the credibility and reliability of the witnesses’ evidence.

[115] The criminal justice system reasonably expects that police officers will prepare “accurate, detailed and comprehensive notes”. Bluntly put, “the quality of the record-keeping and the adequacy of an officer’s notes are important” to fair adjudication. [Citations removed.]

[42] Both Ryder and Dupuis testified that they had no knowledge of a need for a warrant. Rather, they understood that they had authority to search because the QX60 had been purchased by the Guelph Police Service and was therefore “abandoned property”.

[43] Ryder acknowledged that he had conversations with Welsh, but has no specific recollection of their content.

[44] Remember that Welsh said in his explanatory affidavit:

Later that day at 3:20 pm, I received an email from S/Cst Dupuis. He attached a copy of Dalvir Passi’s contact list with Raja Dosanjh as a contact number. I opened the contact list and read it. At this point, I became concerned. I believed that the OPP should not have accessed this data without a warrant. I also should not have been in possession of the data. I printed a copy of the material sent to me by S/Cst. Dupuis and asked her [Meier] to secure it.

[45] If that were the truth, the emails that followed make no sense. There is no immediate demand that Dupuis stop his investigations. Instead, there is assistance given to advance those searches and telephone calls that follow. We have no notes or independent testimony about those calls. And no clear demand in evidence to stop searching until 11 days later.

[46] Welsh’s later comments that “looks like we are going to write a warrant” and “we are having to write a warrant” contradict his claim that he was aware of the need for a warrant from the outset. Rather, they suggest a later decision to obtain a warrant.

[47] In a later ITO, Constable Meier set out this history to give complete information to another issuing justice. She explained the November 16 email. There, she said:

87. Detective Welsh advised me that in addition to email exchanges, he also had numerous telephone conversations with Mike Ryder of the OPP in relation to the Infiniti QX60 and the Infotainment system within it. It was within that context that the email was sent from Detective Welsh to Mike Ryder.

[48] However, Welsh testified that he had at least two face-to-face meetings with Ryder. One of those was on November 16, 2016. Ryder had no recollection of that meeting. Meier’s affidavit for the second warrant says nothing about “meetings”. Welsh had no explanation as to why there was no reference to such meetings in the ITO.

[49] According to Welsh, one of those meetings at which there was a discussion of the need for a warrant was the morning of November 16, 2016. Ryder had no memory of that meeting. If such a discussion occurred, there would be no reason for Ryder to be asking for a copy of the warrant by 3:14 PM on the same day.

[50] In his evidence, Welsh said that on Friday, June 2, he sealed the information and provided it to Meier. Meier had no recollection of that occurring on June 2; she was on holidays at the time. However, her notes of June 5 show that she was taking steps related to the phone number referenced by Welsh and Dupuis and found in the Infotainment system. Accordingly, both she and Welsh must have been able to access, or at least use, the information that Welsh says that he sealed on the June 2.

[51] Ultimately, I do not accept D/Cst Welsh’s evidence on this point. A simple reading of the messages confirms what Ryder and Dupuis understood. The only interpretation to be made is that Welsh told Ryder, and he in turn told Dupuis, that a search warrant was not necessary because the vehicle was abandoned and there was no expectation of privacy in it.

[52] On that basis, I find that Welsh was in error when he told Ryder that a warrant was not necessary. It appears that Welsh does not wish to admit that mistake. The effect of that will be dealt with later in these reasons.

[53] Accordingly, I find that Welsh, Ryder and Dupuis were operating on the assumption that no warrant was necessary until at least June 13, 2017.

[54] The Crown concedes that this search was warrantless and a breach of Mr. Dosanjh’s Charter rights.

[55] To confirm, it is the search that was warrantless, not the initial effort to access the information. The defence suggests that another QX60 hard drive could have been purchased to use as a test case. That might have some merit if we were considering a hard drive owned by Mr. Dosanjh. Whether Guelph Police wanted to experiment on this hard drive, owned by Guelph Police, or another hard drive owned by Guelph Police is of no importance to this analysis.

[56] I will deal with the effect of the search when I deal with the s. 24(2) analysis below.

Is the Failure to Take Notes a Breach of Section 7?

[57] The defence submits that the lack of police notes in this case amounts to a breach of Mr. Dosanjh’s right to not be deprived of his right to life, liberty and security except in accordance with the principles of fundamental justice. The defence says that a lack of notes has prevented them from defending against the evidence of Welsh and Meier.

[58] Welsh acknowledged that he took no notes for his conversations with Ryder about the need for a warrant on January 28, 2016; March 16, 2016; November 16, 2016; and January 22, 2017. He agreed that he had no notes of any conversations that occurred from April 21, 2017, to August 8, 2017.

[59] Meier agreed that she had no notes of what occurred on June 5, 2016, and no notes of putting the seized materials in a secure locker. She had no notes of her conversations with Welsh about the new disclosures relating to the search by Ryder and Dupuis.

[60] While Welsh’s failure to take notes has affected his credibility, I do not see that such a failure rises to the level of a Charter breach. As Hill J. points out in Mascoe, deficiencies in note-taking go to the credibility of the witness’ evidence: at para. 114. Lack of notes is not in itself a freestanding Charter breach.

[61] The defence also complains of Meier’s failure to take notes about sealing the information received from Welsh.

[62] In R. v. Croft, 2014 ABQB 23, Burrows J. said at paras. 60-62:

It is clear from this discussion, that the duty to make notes relates to the investigative functions and tasks of a police officer. It is a duty "to prepare accurate, detailed, and comprehensive notes as soon as practicable after an investigation ."

The distinction I noted in the context of the failure to retain draft versions of the wiretap affidavits applies in this context as well. Sgt. Palfy was not engaged in an investigative function when he was preparing the wiretap affidavits. He was not gathering evidence. He was marshalling evidence previously gathered for the purpose of showing that the preconditions for a wiretap authorization were satisfied. He was engaged in an advocacy function.

In my view the police officer's duty to make notes, as articulated by Moldaver J., does not arise in this non-investigative context. Other officers had made notes of their activities in relation to the investigation. There is nothing in the evidence to suggest that the duty of police officers to take notes of the investigation in this case was neglected. To the extent that the making and disclosure of police officers' notes is necessary in order that the accused's ability to make full answer and defence is not damaged, the evidence before me does not establish any default in that regard by the police officers involved in this investigation. The alleged Charter violation has not been established. [Emphasis original.]

[63] In my view, Meier is in no different position. As she said, her notes are, in effect, her ITO. This does cause me some concern but I am not “marking or grading the quality of police note-taking.” Her deficiencies in note taking are not such as to discount her evidence. I find that her lack of notes does not amount to a breach of Mr. Dosanjh’s Charter rights.

D/Cst Meier’s Role in Obtaining the Warrant

[64] As set out above, I am satisfied that Welsh did not provide correct information to Meier. However, I am not satisfied that Meier was aware of that misleading information. She explained that in a later ITO. She testified that she was not aware of the November 16, 2016 email at the time of the ITO in November 2018. There, she said:

84. On January 12, 2018, I was granted judicial authorization by Justice of the Peace Magoulas pursuant to Section 487 of the Criminal Code to search the infotainment system that was inside the Infiniti QX60 used in the shooting of March 1 st , 2016. In my affidavit in support of that application for judicial authorization, I provided detailed information about the fact that the infotainment system was initially partially searched without warrant. In doing so, I took great care to provide information with utmost candour. I appreciate the fact that judicial authorization was not obtained (through inadvertence) and that this was something that the application Justice need to fully understand and needed to appreciate how the inadvertent examination occurred. At the time that I sought judicial authorization I believed that had all the relevant information to provide a candid account. Notwithstanding my best efforts, on approximately June 7 th , 2018, I learned about the previously discussed email exchange that was related to this issue that I was not aware of [the November 16, 2016, from welsh to Ryder – “Hey Mike . . . no search warrant”].

[65] Welsh does not deny that evidence. There is no reason to reject it.

[66] The defence submits that Meier should have spoken with Ryder and Dupuis directly. I do not accept that she had that responsibility.

[67] The defence relies on R. v. Paryniuk, 2017 ONCA 87, to found the argument that even a valid warrant can be set aside as a result of the subversion of the warrant process. That case stands for other principles as well. At para. 77 Watt J.A. said:

A sub-facial challenge turns on what an affiant knew or ought to have known when the ITO was sworn. The accuracy of the ITO is tested against the affiant's reasonable belief at the time, not the ultimate truth of what is asserted. In connection with the sub-affiant's observations, it is also debatable whether the affiant could be faulted for his "uncritical acceptance" of what his police colleague had told him. An ITO, like an affidavit in support of an application under Part VI of the Criminal Code, may be based on hearsay. Although affiants may not ignore signs that fellow officers may be misleading them, or omitting material information, in the absence of some indication that something is amiss, affiants do not need to conduct their own investigation. [Citations removed.]

[68] I cannot find that Meier had any indication that something was amiss such that she should have contacted Dupuis and Ryder. She agreed that she could have done that. No doubt, in hindsight, she wishes she had, but that is different from a legal obligation to do so.

[69] In R. v. Nguyen, 2011 ONCA 465, Blair J.A. said at para. 51:

The obligation on applicants for a search warrant is not to commit the error of material non-disclosure. "Materiality" is something that bears on the merits or substance of the application rather than on its form or some other inconsequential matter. There is no obligation on applicants to anticipate, and to explain away in advance, every conceivable indicia of crime they did not see or sense and every conceivable investigative step they did not take at the time in order to counter the creative arguments of able defence counsel on a review hearing many months or years after the event. Here, for the most part, the impugned "omissions of fact" relied upon by the trial judge fall into the latter type of category, or they are simply immaterial, or were not omissions at all. [Citations removed.]

[70] It must be emphasized that the issuing justice was advised that there was a pre-warrant search. The justice was told that Ryder and Dupuis acted on wrong principles. How that error came about is not material to the determination of whether the warrant could have been issued.

[71] Accordingly, I find that the pre-warrant search did not invalidate the warrant.

Does the conduct of the Guelph Police Service in obtaining the warrant subvert the pre-authorization process such that the evidence should be excluded?

[72] While I have found that I cannot accept Welsh’s evidence, I find that this does not rise to the level that requires the exclusion of the evidence. In Paryniuk, Watt J.A. carries on to say at paras. 69-70:

What is clear, however, is that previous authority in this court has recognized a residual discretion to set aside a warrant despite the presence of a proper evidentiary predicate for its issuance where police conduct has subverted the pre-authorization process through deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like.

These same authorities, both in Ontario and elsewhere, describe the standard to be met to invoke this discretion as high. Indeed, some require that the conduct amount to an abuse of process. [Citations removed.]

[73] In Nguyen, Blair J.A. stated at paras. 56-57:

In Morelli, at para. 102, Fish J. aptly observed (albeit in the context of his s. 24(2) analysis) that:

The repute of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct. Police officers seeking search warrants are bound to act with diligence and integrity, taking care to discharge the special duties of candour and full disclosure that attach in ex parte proceedings. In discharging those duties responsibly, they must guard against making statements are likely to mislead the justice of the peace. They must refrain from concealing or omitting relevant facts. And they must take care not to otherwise exaggerate the information upon which they rely to establish reasonable and probable grounds for issuance of a search warrant.

That said, the central consideration on the review of a search warrant is whether on the record as it existed before the issuing justice and as amplified at the hearing, with any offending portions of the ITO excised, there remains a sufficient basis upon which the warrant could be issued. Police conduct is clearly relevant to that consideration. However, the review is not an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence in support of the application. This is particularly so where, as here, the trial judge has specifically found that the applicant did not intend to mislead the issuing justice.

[74] As I have said, the issuing justice was advised that there was a pre-warrant search. How that came about is not a material factor to the determination of whether the warrant was properly issued. I find that although I cannot accept Welsh’s evidence, I find that Welsh’s evidence does not amount to a subversion of the legal process.

Was the ITO sufficient for a valid warrant to issue?

Test to Obtain a Warrant

[75] It is common ground that, while Guelph Police first considered obtaining a general warrant, this warrant was based on s. 487 of the Criminal Code of Canada. Excerpted, that section reads:

A justice who is satisfied by information on oath … that there are reasonable grounds to believe that there is in a building, receptacle or place … anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence … may at any time issue a warrant authorizing a peace officer … to search the building, receptacle or place for any such thing and to seize it, and … as soon as practicable, bring the thing seized before, or make a report in respect thereof to, the justice or some other justice for the same territorial division…

[76] The test of sufficiency is best set out by Hill J. in R. v. Sanchez, [1995] 20 O.R. (3d) 468, at p. 479:

Section 487(1) of the Code requires reasonable grounds as the standard of persuasion to support issuance of a search warrant. Judicially interpreted, the standard is one of credibly based probability.

Mere suspicion, conjecture, hypothesis or "fishing expeditions" fall short of the minimally acceptable standard from both a common law and constitutional perspective. On the other hand, in addressing the requisite degree of certitude, it must be recognized that reasonable grounds is not to be equated with proof beyond a reasonable doubt or a prima facie case. The appropriate standard of reasonable or credibly-based probability envisions a practical, non-technical and common-sense probability as to the existence of the facts and inferences asserted.

Not only must the affiant subjectively or personally believe in the accuracy and credibility of the grounds of belief, but lawful issuance of a warrant also requires that the peace officer establish that, objectively, reasonable grounds in fact exist. In other words, would a reasonable person, standing in the shoes of the police officer, have believed that the facts probably existed as asserted and have drawn the inferences therefrom submitted by the affiant.[Citations removed.]

[77] In CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743, Major J. said at para. 22:

The purpose of s. 487(1) is to allow the investigators to unearth and preserve as much relevant evidence as possible. To ensure that the authorities are able to perform their appointed functions properly they should be able to locate, examine and preserve all the evidence relevant to events which may have given rise to criminal liability. It is not the role of the police to investigate and decide whether the essential elements of an offence are made out — that decision is the role of the courts. The function of the police, and other peace officers, is to investigate incidents which might be criminal, make a conscientious and informed decision as to whether charges should be laid, and then present the full and unadulterated facts to the prosecutorial authorities. To that end an unnecessary and restrictive interpretation of s. 487(1) defeats its purpose. [Citations removed]

[78] In R. v. Canadian Broadcasting Corp (CBC), [1992] 77 C.C.C. (3d) 341 (Ont. Gen. Div.), Moldaver J., as he then was, said at p. 351-352:

[I]n my opinion, the concept of "reasonable grounds to believe" necessarily imports some measure of uncertainty. This was recognized by Lamer J.:

After all, searches, while constituting a means of gathering evidence, are also an investigative tool. It will often be difficult to determine definitively the probative value of a particular thing before the police investigation has been completed.

Later, Mr. Justice Lamer remarked:

As I have already stated, a search warrant is not only a means of gathering evidence but also an investigative tool. Therefore, a determination of what is reasonable in each case will take into account the fact that a search makes it possible not only to seize evidence but also to ascertain that it exists, and even sometimes that the crime was in fact committed and by whom.

[Citations removed.]

[79] Most recently in R. v. Cusick, 2019 ONCA 524, Juriansz J.A. summarized at paras. 89-90:

The fundamental point is that the assessment of reasonable grounds does not depend on mathematical notions of probability. Cst. MacDonald’s inability to express the “chances”, i.e. the odds, of finding artifacts on the appellant’s computer does not mean that he lacked reasonable grounds. The standard is whether the authorizing justice of the peace, considering the evidence as a whole on a common sense, practical and non-technical basis, and drawing reasonable inferences therefrom, could have reasonably believed that there was evidence to be found at the place to be searched. The standard to be met is determined qualitatively by applying reason to the evidence, not quantitatively by attempting to apply notions based on the probability branch of mathematics. As Deschamps J. said in R. v. Morelli, “[d]etermining whether evidence gives rise to a ‘credibly-based probability’ does not involve parsing the facts or assessing them mathematically” (emphasis added). She approved of the “non-technical, common sense approach” taken by Rehnquist J. in Illinois v. Gates.

It is essential, as this court said in R. v. Campbell, “that the grounds for believing there is evidence in the place to be searched are based on the operation of reason and not on mere suspicion.” In determining whether there was a breach of the accused’s constitutional right, the test is “whether there was reliable evidence in the sworn information before the justice that might reasonably be believed on the basis of which the justice could have granted the warrant.” [Citations removed]

ITO as Amplified by the Record

[80] As set out above, on the new information obtained from the cross-examination of the witnesses, I am satisfied that, to this point, the following amplifies the ITO provided to the issuing justice.

[81] Welsh told Ryder and Dupuis that they could proceed with the search without a warrant. That makes little difference; the justice knew that Ryder and Dupuis were acting on incorrect information. The source of that information matters little.

[82] That information was not sealed and secured as set out in the ITO. Rather than being sealed and secured on June 2, 2017, it was, at best, later the next week.

[83] On June 5, 2017, Meier took steps to protect a phone number found by Dupuis.

[84] Any information found by Dupuis was not to be used to determine grounds for the warrant but only to acknowledge the fact that he accessed the information. Any reference to that information should be excised if it could appear to be grounds for the warrant.

[85] In an earlier ruling, the Crown specifically denied that there was any reliance of the good faith of the officers. Any suggestions of good faith should be removed.

[86] Dupuis was not told to stop searching for 11 days, contrary to the information set out in the ITO. Prior to that he was able to find but not decode the GPS tracklogs. The ITO is unclear whether Meier was relying on this information for her grounds. However, the evidence at the hearing from both Dupuis and Meier was that Dupuis had told Meier what information could typically be found in an Infotainment system. He confirmed that this was “generally speaking” and not from this particular vehicle. This conversation is confirmed in both Meier’s notes and Dupuis’ email of August 1, 2017, to Meier. I can therefore find that this information did not flow from the unwarranted search.

[87] Accordingly, I find that the following amplifications and deletions should be made to Meier’s ITO.

[88] Remember that the justice was told:

150. Upon the realization that the substance of this information was evidentiary in nature, and knowing that a warrant to obtain the details was necessary, Detective Constable Welsh requested that Jeremy Dupuis stop conducting his search of the infotainment system for any additional information, pending receipt of a judicial authorization. Jeremy Dupuis agreed to stop the search, and await receipt of judicial authorization from the Guelph Police. The details provided to the Guelph Police were printed, and sealed in an envelope which I put into a secure locker situated in the Serious Crime Unit of the Guelph Police Service at 15 Wyndham Street S, Guelph, pending judicial authorization to obtain the information. Furthermore, Jeremy Dupuis indicated that there was information within the infotainment system that could reveal geographical coordinates of where the Infiniti QX60 travelled. Further analysis would need to be conducted on the Infotainment system in order to determine if any geographical information was retrievable.

[89] For the purposes of my analysis, that paragraph can be rewritten:

150. Detective Constable Welsh did not realize that Dupuis and Ryder required a warrant to examine the infotainment system. When he became aware of that, 11 days later, Detective Constable Welsh requested that Jeremy Dupuis stop conducting his search of the infotainment system for any additional information, pending receipt of a judicial authorization. Jeremy Dupuis agreed to stop the search, and await receipt of judicial authorization from the Guelph Police. The details provided to the Guelph Police were printed, and sealed in an envelope which I put into a secure locker the week after June 2nd situated in the Serious Crime Unit of the Guelph Police Service at 15 Wyndham Street S, Guelph, pending judicial authorization to obtain the information. The substance of the information was sealed and has not been accessed since June 5. No investigative steps have been taken since June 5 when I contacted Rogers to prevent any evidence from being deleted in Rogers’ normal course.

[90] Further, paragraphs 143, 168 and 172 must be excised as italicized:

143. On June 2 nd , 2017, Jeremy Dupuis sent an email to Detective Brian Welsh with an attachment outlining all of the information he had found in the Infotainment system. He also provided, in the body of the text, that a phone number associated to the accused was found in the contact list that had been paired to the Infotainment system, and that the phone paired was NOT registered to the accused, but rather another person altogether.

144. In February of 2017, the accused, Raja Dosanjh was arrested for the homicide of Aly Sunderani. In April of 2017, the Guelph Police contacted the OPP technological Crime Unit to check the status of their progress with the Infotainment system. On June 2, 2017, a member of the OPP technological Crime Unit responded via email indicating that they had made “significant progress” with the Infotainment system and asked about the dates of the homicide. Additional details were provided to the OPP. They responded immediately and sent a four page cellular contact list that had been extracted from the Infotainment system. Although this list was provided to the police without warrant, I don’t rely on the contents of the list (as discussed in the aforementioned section of the affidavit) to support my grounds for belief. However, the fact that the OPP were able to access this information does form part of my grounds. Had I been told that access was possible to the information stored on the infotainment system, judicial authorization would have been sought. Despite the infotainment system error on behalf of the OPP, I maintain that because I now know that access can be gained to the information stored on the infotainment system, coupled with the fact that in speaking with Infiniti employees I have learned that cellular call lists are retained in the infotainment system, I am of the belief that this information will afford evidence of the homicide which occurred on March 1 st , 2016.

145. I am aware that the information from the Infotainment system was provided to Police without proper judicial authorization. I submit that disclosure happened without police prompting. The belief that the Guelph Police held in respect of the Infotainment system until June 2, 2017, was that no process had been established to access the Infotainment system. The disclosure of a full cellular contact list was provided inadvertently to the Guelph Police. As a result of this issue, I am currently seeking judicial authorization pursuant to section 487 to lawfully obtain the information as previously discussed in this affidavit, which is in the property of the Guelph Police (Appendix A). Additionally, I am seeking judicial authorization to allow for Jeremy Dupuis to continue his search of this infotainment system (Appendix A1). I believe that the information from the Infotainment system is necessary and highly probative for continued investigation. This information will afford evidence to corroborate that the Infiniti qX60 was in the City of Guelph on March 1 st , 2016 when it was used in the homicide of Aly Sunderani.

Sufficiency of the Warrant

[91] The defence submits that the ITO was insufficient to support the warrant. They say that Meier did not have reasonable and probable grounds to believe that the evidence of the tracklogs would be located. The ITO had to establish reasonable and probable grounds to believe that the proposed search would yield the specified GPS evidence in a “meaningful way” capable of interpretation. However, the record cannot satisfy this threshold. At the time of the ITO, the OPP had not been able to articulate a forensic method by which the extracted data could be presented in a meaningful way.

[92] The defence position is that this had been the problem all along and the reason that no application for a warrant to search the Infotainment system was prepared before the January 2018 search warrant was sought. The defence submits that nothing had changed in this essential aspect when Meier prepared the January 12, 2018 ITO. The OPP were equally unable to articulate reasonable and probable grounds that the proposed search would or could produce what was sought. From the time Welsh told Ryder to begin searching because no search warrant was required (in November of 2016), to the time of the ITO (in January 12, 2018), the OPP had made no progress towards identifying and articulating a means to satisfy the reasonable and probable grounds threshold in relation to the “things to be searched for.”

[93] Meier stated in her affidavit that she believed on reasonable grounds “that the information I am seeking to obtain . . . will afford evidence in the investigation of Aly Sunderani’s homicide in a few meaningful ways.” She then detailed how the cell phone data, which had unconstitutionally been extracted and interpreted by the OPP, met the threshold.

[94] Meier then addressed the issue with respect to the GPS location data. In contrast to the affirmations about the cell phone data, Meier provided the issuing justice with the following, which the defence submits was at best materially misleading:

Additionally, should analysis be conducted to identify geocoded locations stored within the infotainment system (as Jeremy Dupuis indicates is the case) the following information is expected to be available:

a) Start of travel route; b) End of travel route; c) The speed and direction; d) Frequent stops; e) Length of time at stops; and f) When the vehicle went on and off.

[95] The defence submits that rather than this information was “expected to be available” through the proposed search, police had no evidentiary basis to suggest this information was capable of being obtained. The proposition that it was forensically available was simply not true, and not based on reasonable and probable grounds.

[96] Earlier in the ITO, under the heading “Summary of the Investigation”, Meier identified Dupuis as the proposed examiner “to extract and interpret data and present it in a meaningful way”. There Meier addressed the GPS data in the following way:

However, according to Jeremy Dupuis, it is not certain that this information can be extracted in a readable format from the infotainment system, as he stopped conducting his search prior to making that conclusion definitively. Should judicial authorization be granted to further search the infotainment system, it will be these details that are being sought (Appendix A1).

[97] The defence argues that while absolute certainty is not required, the mere possibility that evidence “may” be obtained is not sufficient to meet the minimum standard, consistent with s. 8 of the Charter, for authorizing search or seizure.

Analysis

[98] To this point, we have the applicable law and the defence submissions. To consider those, I need to set out the operative paragraphs of the ITO.

[99] The ITO runs more than 60 pages plus relevant appendixes. However, the important paragraphs are as follows (and as edited above). I have highlighted the particular evidence that persuades me that the objective and subjective grounds in issue for the warrant have been made out even with the excisions from the record on this hearing. There is no attack on whether there were reasonable and probable grounds that an offence had been committed.

136. The purpose of the following paragraphs are to provide for the reader with full frank and fair disclosure of information required to assess whether my grounds for belief support the issuance of a search warrant pursuant to Section 487 of the Criminal Code to search the infotainment system. As was already explained, in earlier paragraphs, the vehicle believed to be the getaway vehicle in the shooting which took place on March 1 st , 2016 was located at Zoom Rent a Car in Mississauga on March 4 th , 2016, and was subsequently seized by police. On April 8 th , 2016, Detective Constable Welsh spoke with Preston Wong of Infiniti Canada. He is a technician with Infiniti Canada. Preston Wong consulted with the engineering team at Infiniti Canada, and advised that they were unable to retrieve the cellular call logs stored in the infotainment system in the QX60 without having possession of the cellular device that was originally paired with it. Having said that, Preston Wong advised that the infotainment system was capable of retaining information from the cellular device that was originally paired with it, specifically contact names and phone numbers as well as address locations.

137. The infotainment system has the capability to store information about addresses travelled by the vehicle. A cellular device is not required to pair with the infotainment system in order to use the navigation tool. The occupant of the vehicle manually enters an address into the Infotainment system, and the navigation system will send audio commands accompanied by a visual map to assist the occupant to arrive at the inputted address. The infotainment system is capable of storing multiple addresses in its memory. An occupant of the vehicle equipped with the infotainment system can see what addresses or destinations were previously travelled by the vehicle, without pairing the cellular device. These addresses are also stored within the computer memory of the Infotainment system.[^1]

138. An infotainment system like the one that is the subject of this application can be accessed and operated in conjunction with a cellular phone that is equipped with Bluetooth technology. “Pairing” occurs when a cellular device is connected to the infotainment system in a vehicle. Bluetooth technology is used to connect the device and its contents to the vehicle for the user’s convenience. Most often, the content that gets downloaded from the device are the contact lists, enabling the user to make hands free phone calls while driving. Unless manually deleted from the Infotainment system, this call list is maintained in the infotainment system’s hard drive. This list is maintained in the event the user comes back into the vehicle after leaving it, and then they can access their call list again without having to go through the process to “pair” their device with the vehicle again. As will be explained below, I believe that the contents of the infotainment system will afford evidence of the homicide of Aly Sunderani.

139. On June 2 nd , 2017, Jeremy Dupuis sent an email to Detective Brian Welsh with an attachment outlining all of the information he had found in the Infotainment system.

140. Detective Constable Welsh did not realize that Dupuis and Ryder required a warrant to examine the infotainment system. When he became aware of that, 11 days later, Detective Constable Welsh requested that Jeremy Dupuis stop conducting his search of the infotainment system for any additional information, pending receipt of a judicial authorization. Jeremy Dupuis agreed to stop the search, and await receipt of judicial authorization from the Guelph Police. The details provided to the Guelph Police were printed, and sealed in an envelope which I put into a secure locker the week after June 2 nd situated in the Serious Crime Unit of the Guelph Police Service at 15 Wyndham Street S, Guelph, pending judicial authorization to obtain the information. The substance of the information was sealed and has not been accessed since June 5 th . No investigative steps have been taken since the 5 th when I contacted Rogers to prevent any evidence from being deleted in Rogers’ normal course.

141. In order to appreciate the nature of the information I am seeking and the privacy interests that are engaged, it is important to describe the operational capabilities of the Infotainment system. I have spoken with Jeremy Dupuis, currently employed by the Ontario Provincial Police, electronic Crime Section, Mobile Device Team as a Forensic Analyst/Investigator. His role is to forensically examine electronic devices to extract and interpret data and present it in a meaningful way. By examining the Infiniti QX60 Infotainment system, the following items could be derived;

a) Start of travel route; b) End of travel route; c) The speed and direction; d) Frequent stops; e) Length of time at stops; and f) When the vehicle went on and off.

However, according to Jeremy Dupuis, it is not certain that this information can be extracted in a readable format from the Infotainment system, as he stopped conducting his search prior to making that conclusion definitively. Should judicial authorization be granted to further search the infotainment system, it will be these details that are being sought (Appendix A1).

167. The Infiniti QX60 is equipped with an infotainment system. This infotainment system used Bluetooth technology to pair with the cellular device of the vehicle’s user. Once paired with the cellular device, the infotainment system is capable of connecting to the use’s cellular contact list to enable hands free calling. The infotainment system is also capable of using a mapping and navigation system which tracks geocoded locations travelled. At the time the Infiniti QX60 was purchased by the police, no known techniques existed to search the Infotainment system for information. The OPP Technological Crimes Unit was delegated the task of conducting the search of this unit. At the time, they advised the Guelph Police that they were unable to articulate what type of testing they would conduct on the Infotainment system in order to access and extract information from it. They had never conducted a search of this type before. As a result of this inability to articulate the procedure and protocol for such a search, I did not draft a judicial authorization to search the device. The OPP advised that if a technique was developed to access the infotainment system, then they would advise the Guelph Police in order to draft an affidavit for judicial authorization. The Guelph Police were under the assumption that the OPP Technological Crime unit would provide us with details of the protocol involved in searching the Infotainment system once they had established such a protocol.

168. In February of 2017, the accused, Raja Dosanjh was arrested for the homicide of Aly Sunderani. In April of 2017, the Guelph Police contacted the OPP technological Crime Unit to check the status of their progress with the Infotainment system. On June 2, 2017, a member of the OPP technological Crime Unit responded via email indicating that they had made “significant progress” with the Infotainment system and asked about the dates of the homicide. Additional details were provided to the OPP. The fact that the OPP were able to access this information does form part of my grounds. Had I been told that access was possible to the information stored on the infotainment system, judicial authorization would have been sought. Despite the error on behalf of the OPP, I maintain that because I now know that access can be gained to the information stored on the infotainment system, coupled with the fact that in speaking with Infiniti employees I have learned that cellular call lists are retained in the infotainment system, I am of the belief that this information will afford evidence of the homicide which occurred on March 1 st , 2016.

169. As a result of the totality of the circumstances, I believe on reasonable grounds that the information I am seeking to obtain (Appendix “A”), will afford evidence in the investigation of Aly Sunderani’s homicide in a few meaningful ways. Firstly, I believe that this information will afford evidence by identifying the occupant of the Infiniti QX60. I know that there were at least two people involved in the shooting of Aly Sunderani, and given that police already know the identity of the shooter, the call list from the cellular device paired with the infotainment system will afford evidence by identifying possible associates of the accused. Additionally, a search of the infotainment system will reveal calls made by the user of the vehicle, which will afford evidence of communications had by the occupants of the vehicle prior to killing Aly Sunderani. I am aware that Aly Sunderani was receiving multiple messages on his cellular device within minutes prior to his death, and that these messages were causing him to feel anxious. In order to thoroughly investigate this homicide, it is imperative to document any communications had by the occupants of the Infiniti QX60 leading up to, during and after the shooting.

170. Additionally, should analysis be conducted to identify geocoded locations stored within the infotainment system (Appendix A1) (as Jeremy Dupuis indicates is the case) the following information is expected to be available;

a) Start of travel route; b) End of travel route; c) The speed and direction; d) Frequent stops; e) Length of time at stops; and f) When the vehicle went on and off.

This particular information would afford evidence in relation to where the vehicle travelled prior to, during, and after the homicide. This information is important because it will afford evidence by corroborating what police already believe; that the Infiniti QX60 drove to the Comfort Inn situated at 480 Silvercreek Parkway N on March 1 st , 29016, prior to being returned to Zoom Rental Car on March 2, 1016. The Infiniti QX60 is captured on video surveillance at the Comfort Inn on March 1 st , 2016, minutes prior to when the shooting occurred. There is civilian eye witness video surveillance (Norm Champoux) that also places the Infiniti QX60 at the scene prior to the shooting. The vehicle was seen fleeing the hotel headed southbound on Silvercreek Parkway North in Guelph. A magazine from the firearm used in the murder was found months later in a ditch beside the road along that same route. The geographical locations from the Infotainment System will corroborate those details already believed by police. Furthermore, the locations that the Infiniti QX60 travelled after the shooting will afford evidence as it will identify locations travelled by the occupants of the vehicle, possibly assisting to identify the occupant(s) of the vehicle.

172. I am aware that the information from the Infotainment system was provided to Police without proper judicial authorization. The belief that the Guelph Police held in respect of the Infotainment system until June 2, 2017, was that no process had been established to access the Infotainment system. As a result of this issue, I am currently seeking judicial authorization pursuant to section 487 to lawfully obtain the information as previously discussed in this affidavit, which is in the property of the Guelph Police (Appendix A). Additionally, I am seeking judicial authorization to allow for Jeremy Dupuis to continue his search of this infotainment system (Appendix A1). I believe that the information from the Infotainment system is necessary and highly probative for continued investigation. This information will afford evidence to corroborate that the Infiniti qX60 was in the City of Guelph on March 1 st , 2016 when it was used in the homicide of Aly Sunderani.

[100] In my view, the defence demands greater certainty from Meier in her role as affiant than does the law. The effect of the defence submission is that, without a way to access the information, Guelph Police could not get a warrant. However, as soon as the Guelph Police had access, they breached Mr. Dosanjh’s privacy rights such that any evidence that might be found was inadmissible – even if it were, as yet, unreadable. That is a position that is beyond a practical, non-technical and common-sense probability as to the existence of the facts and inferences asserted by Meier. Furthermore, it presents a logical impossibility to ever get a warrant in such a case. If the defence position were to be believed, the police would need a warrant to get access, but would not be able to get a warrant without first gaining access.

[101] The Infiniti sources said that call logs would be stored in the hard drive, as would GPS information. By the time of the ITO, Dupuis had found a way into the hard drive. Meier’s cross-examination did not impact her credibility on her subjective belief that she had grounds to believe that such a search would reasonably afford evidence with respect to this offence.

[102] Meier did not mislead the justice as to what could or could not be found for certain if a search were authorized. She was clear, at paragraph 15, that “it is probable that there is further information available from the infotainment system” and, at paragraph 151, “it is not certain that this information can be extracted in a readable format from the infotainment system”.

[103] Objectively, on this record and the case law, I find that there was a reasonable and credibly-based probability that such evidence could be found.

[104] While the ITO is confusing from time to time as to whether Meier was or was not using what Dupuis found as part of her grounds, she reiterated that she was not. Despite less-than-perfect drafting, I am satisfied that her grounds were based on the fact that Dupuis accessed the information, and were not based on what the information was. In not relying on what was found in the system by Dupuis, neither Meier’s grounds nor the justice’s reasoning was tainted by those findings. In any event, as I have excised the ITO, there is still a sufficient basis upon which the warrant could have been issued.

[105] As such, I find that this was a valid warrant to seize the evidence within the hard drive of the QX60’s Infotainment system.

Was the Warrant executed in a proper fashion?

Postions of the Parties

[106] The defence submits that Guelph Police were not authorized to send the seized materials to the United States for further investigation by Berla Corp.

[107] After the warrant was issued, Dupuis continued to attempt to decode the GPS tracklogs. He consulted with the RCMP and the Netherlands Forensic Institute but could not find a way to read the information.

[108] He then contacted a representative of Berla Corporation in Baltimore, Maryland, and provided the relevant tracklogs. Berla was able to decode the information. All of the tracklogs were sent and received in a secure fashion to confirm their confidentiality, continuity and security.

[109] Dupuis testified that Berla Corp is a company that has developed software and hardware to forensically examine GPS systems and, specifically, vehicles with Infotainment units. Its customers are law enforcement, military and accident reconstruction companies.

[110] Dupuis testified that he was concerned about sending this information out of the country but recalled receiving authority to do so from Welsh or the Crown. I received no other evidence in that regard.

[111] The defence submits that for a search to be reasonable under s. 8 of the Charter, the search (1) must be authorized by law; (2) the law must itself be reasonable; and (3) the manner in which the search was carried out must be reasonable. The Crown does not quarrel with that. Here, the defence argues that the manner in which the international search was carried out was unreasonable and thus violates s. 8 of the Charter.

[112] Section 487’s warrant provisions expressly contemplate authorizing a "peace officer" to execute the warrant. Other provisions authorize a "public officer" whose duties include the enforcement of a federal Act to execute a search, usually subject to a condition that the public officer is named in the warrant. Other provisions require a "person" who is named in the warrant.

[113] The defence concedes that there are situations where persons other than peace officers or public officers may execute a search power. For example, the taking of bodily samples may be done only by a peace officer or by another person under the direction of a peace officer, who "by virtue of training or experience" is qualified to take such samples. Breathalyzer samples may be taken by a "qualified technician" and blood samples may only be taken "by or under the direction of a qualified medical practitioner." A wiretap authorization must be executed by a "person" who has been specially designated by the attorney general or solicitor general to intercept private communications.

[114] However, the defence submits that none of these provisions is applicable in this case. No "person" who was not a "peace officer" executing the search was contemplated at all in the ITO submitted to the justice. As such, the defence submits that what occurred was entirely outside the terms of the warrant. The warrant in issue only authorized “the peace officers in the said Region and in the Province of Ontario or to the [named public officers]". The authorization should therefore be seen to be restricted both in terms of peace officers or named public officers within the Province of Ontario.

[115] The authorizing justice was given no information that police were actually unable to execute the proposed search, and that the private electronic data would be emailed to a private actor in a foreign state who would execute the search, and then email a version of the data back to police in decoded format. The authorizing justice had no criteria to identify who this individual was, what his training or experience was, and no way of establishing a protocol within the warrant with which to regulate the foreign actor's access, use, or potential dissemination of the private data to third parties. The search warrant was in no way binding at all on Berla or its agents.

[116] In response, the Crown says that Guelph Police was not required to seek specific authorization to send the tracklog files to Berla Corporation. The Crown suggests that the defence is failing to distinguish between the execution of the warrant by Guelph Police as opposed to the analysis of the seized information by others at the police request.

[117] For example, says the Crown, a peace officer (or someone under their direction) is required to "take" bodily samples of DNA. From there, however, any number of civilians may analyze the blood. In the usual course, the blood sample is sent to a forensic laboratory and scientists and technicians do the actual analysis. Similarly, in fraud cases, the police seize documents and forensic accountants perform the analysis. There has never been a requirement that officers conduct the analysis. Rather, the requirement is that officers do the seizure.

[118] Further, the fact that the analysis was done in the United States is unremarkable. There is nothing wrong with asking for assistance in another country. In Wakeling v. U.S.A., 2014 SCC 72, [2014] 3 S.C.R. 549, Moldaver J. explained at paras. 92-93:

The warrant allows the police to obtain the information and to use it for purposes of law enforcement. The individual whose communications are lawfully intercepted under a valid warrant cannot complain that this unreasonably breaches his privacy. To put it metaphorically, a valid warrant sanitizes the state intrusion on privacy, as long as the execution of the warrant is reasonable and the information is used for purposes of law enforcement.

It has never been suggested that this principle is confined to the use of information in Canada. The reality is that crime does not stop at national borders, and police routinely share information that they have lawfully obtained under warrant with their counterparts in other countries. Provided information is shared for purposes of law enforcement, the individual cannot complain that the sharing violates his s. 8 right to privacy.

[119] In this case, the actual data was seized and extracted by the authorized peace officers. The data was kept in the control of the police. Copies were sent to Berla. Dupuis used hash values to ensure the integrity of that data. There was no requirement that the police obtain prior authorization to send this information elsewhere. There is also no requirement to have the authorizing judicial officer know the identity or qualifications of the person reviewing the information. These files were sent to Berla because they had ability to decode them and the sharing was for the purposes of law enforcement. In those circumstances, that search was reasonable.

Analysis

[120] I agree with the Crown that no fault can be found with the Guelph Police’s effort to analyze the seized data.

[121] In R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, Cromwell J., set out at para. 54:

… I am not convinced that s. 8 of the Charter requires, in addition, that the manner of searching a computer must always be spelled out in advance. That would be a considerable extension of the prior authorization requirement and one that in my view will not, in eve ry case, be necessary to properly strike the balance between privacy and effective law enforcement.

[122] Further, in R. v. Nurse, 2019 ONCA 260, Trotter J.A., referring to a search of electronic devices, said at para. 138:

It might be said that what occurred in this case was akin to a fraud investigation in which the police seize documents and make copies. There is nothing wrong with the police looking at these documents over and over again, attempting to discern patterns, schemes, or whatever might be relevant to the investigation. Similarly, I see nothing objectionable in having properly seized documents analyzed by forensic accountants, or even obtaining a second (or third, etc.) opinion by different forensic accountants.

[123] In R. v. Merritt, 2017 ONSC 80, Dawson J opined at para. 236 that “if the police are authorized to look for text messages, contact information, cell phone activity, or pictures, for example, it will be implicit that they are authorized to do so by appropriate technical means.”

[124] Combined with the approval of international investigations set out in Wakeling, I see no fault in the Guelph Police and Dupuis utilizing the expertise of Berla as an appropriate technical means. The steps taken to secure the evidence along with the expertise of Berla in such police investigations does not amount to a breach of Mr. Dosanjh’s rights. Consequently there is no Charter breach on this ground.

Given the breaches of the Charter, should the evidence should be excluded pursuant to Section 24(2)?

[125] Recently, in R. v. Le, 2019 SCC 34, the Supreme Court of Canada has reiterated at paras. 139-142 the principles to be applied when considering the exclusion of evidence under s. 24(2) (the Grant factors):

Section 24(2) of the Charter provides that, where evidence was obtained in a manner that infringed a Charter right or freedom, that evidence shall be excluded if it is established that, having regard to all the circumstances, its admission would bring the administration of justice into disrepute. While the judicial inquiry under s. 24(2) is often rhetorically cast as asking whether evidence should be excluded, that is not the question to be decided. Rather, it is whether the administration of justice would be brought into disrepute by its admission. If so, there is nothing left to decide about exclusion: our Charter directs that such evidence must be excluded, not to punish police or compensate for a rights infringement, but because it is necessary to do so to maintain the “integrity of, and public confidence in, the justice system”.

Where the state seeks to benefit from the evidentiary fruits of Charter-offending conduct, our focus must be directed not to the impact of state misconduct upon the criminal trial, but upon the administration of justice. Courts must also bear in mind that the fact of a Charter breach signifies, in and of itself, injustice, and a consequent diminishment of administration of justice. What courts are mandated by s. 24(2) to consider is whether the admission of evidence risks doing further damage by diminishing the reputation of the administration of justice — such that, for example, reasonable members of Canadian society might wonder whether courts take individual rights and freedoms from police misconduct seriously. We endorse this Court’s caution in Grant, at para. 68, that, while the exclusion of evidence “may provoke immediate criticism”, our focus is on “the overall repute of the justice system, viewed in the long term” by a reasonable person, informed of all relevant circumstances and of the importance of Charter rights.

In Grant, the Court identified three lines of inquiry guiding the consideration of whether the admission of evidence tainted by a Charter breach would bring the administration of justice into disrepute: (1) the seriousness of the Charter-infringing conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits. While the first two lines of inquiry typically work in tandem in the sense that both pull towards exclusion of the evidence, they need not pull with identical degrees of force in order to compel exclusion. More particularly, it is not necessary that both of these first two lines of inquiry support exclusion in order for a court to determine that admission would bring the administration of justice into disrepute. Of course, the more serious the infringing conduct and the greater the impact on the Charter-protected interests, the stronger the case for exclusion. But it is also possible that serious Charter-infringing conduct, even when coupled with a weak impact on the Charter-protected interest, will on its own support a finding that admission of tainted evidence would bring the administration of justice into disrepute. It is the sum, and not the average, of those first two lines of inquiry that determines the pull towards exclusion.

The third line of inquiry, society’s interest in an adjudication of the case on its merits, typically pulls in the opposite direction — that is, towards a finding that admission would not bring the administration of justice into disrepute. While that pull is particularly strong where the evidence is reliable and critical to the Crown’s case. [W]e emphasize that the third line of inquiry cannot turn into a rubber stamp where all evidence is deemed reliable and critical to the Crown’s case at this stage. The third line of inquiry becomes particularly important where one, but not both, of the first two inquiries pull towards the exclusion of the evidence. Where the first and second inquiries, taken together, make a strong case for exclusion, the third inquiry will seldom if ever tip the balance in favour of admissibility. Conversely, if the first two inquiries together reveal weaker support for exclusion of the evidence, the third inquiry will most often confirm that the administration of justice would not be brought into disrepute by admitting the evidence. [Citations removed, emphasis original.]

[126] For my purposes, I find the following breaches.

1. The Crown concedes that Dupuis’ pre-warrant search of the Infotainment system was a breach of Mr. Dosanjh’s Charter rights. Again, I have found that the breach is the search, not the effort to find access to the system.
2. Pursuant to s. 487(1)(e), after exercising a warrant and seizing anything, the officer is required, as soon as practicable, to bring the thing seized before, or make a report in respect thereof to, the justice or some other justice for the same territorial division in accordance with section 489.1. Constable Meier conceded that the Guelph Police failed to make a return to the justice after the search.
3. Meier acted on the phone number found in the warrantless search of the Infotainment system by making sure that Rogers did not delete the information.
4. In submissions, the Crown conceded that if I found that Welsh had lied to me, that should lead to a determination that the evidence should be excluded under the first Grant factor.

Seriousness of the Breach

[127] Cases after Grant have confirmed that this is not a binary determination: see R. v. Omar, 2018 ONCA 975. Rather, the conduct is placed on a spectrum of minor breaches to egregious conduct by the police. In their totality, I put the breaches in this case in the moderately serious range.

[128] On the basis of the Crown concession, Welsh’s testimony is the most serious example of police misconduct in this case.

[129] In R. v. Pino, 2016 ONCA 389, and, more recently, R. v. Lai, 2019 ONCA 420, the Court of Appeal for Ontario has referenced the seriousness of a police officer failing to testify honestly. Both cases refer to para. 160 of Cronk J.A.’s dissent in R. v. Harrison, 2008 ONCA 85:

[T]he integrity of the judicial system and the truth-seeking function of the courts lie at the heart of the admissibility inquiry envisaged under s. 24(2) of the Charter. Few actions more directly undermine both of these goals than misleading testimony in court from persons in authority. Our system of criminal justice is fashioned on the collective expectation of the community that police officers who testify in a criminal case will do so honestly and impartially, unmotivated by self-interest or the desire to secure a conviction. The central importance of this expectation cannot be overstated where the testimony is received in a criminal trial involving allegations of serious constitutional violations by the police.

[130] The Supreme Court of Canada approved Cronk J.A.’s dissenting decision, and McLachlin C.J. referenced this specific passage: R. v. Harrison, 2009 SCC 34. [2009] 2 S.C.R. 494, at para. 26.

[131] The Crown submits that I should accept Welsh’s evidence. When asked for the result if I rejected his evidence, the Crown thought that this factor would favour exclusion of the Infotainment evidence.

[132] With respect to both the Crown and the justices mentioned above, in this case, I take a different view. In most cases, of course, a lying police officer will lead to serious ramifications to the Crown’s case. In Lai, for example, the officer lied about his grounds to search a private residence. However, in this case, Welsh’s attempts to hide his own mistakes had no effect on Mr. Dosanjh. As I have set out above, the issuing justice was aware that Ryder and Dupuis were acting on incorrect principles. The evidence put before the justice was, as I have found, accurate as far as Meier knew. The fact that I do not accept Welsh’s evidence does not amount to a subversion of the process.

[133] None of the evidence was acted upon in any significant way before the warrant was obtained. Although the Rogers information was preserved, no investigative steps occurred prior to the warranted search.

[134] This was a new and evolving area; both technologically and legally. At the time, the law in Ontario was as determined by R. v. Marakah, 2016 ONCA 542. That decision was not overturned by the Supreme Court of Canada until December 8, 2017. During these events between March 2016 and January 2018, the officers could not be faulted for believing that they were arguably searching a third party source of information to which Mr. Dosanjh would not have a reasonable expectation of privacy.

[135] I agree with the Crown that when Guelph Police seized the I nfota i n me n t system and decided that a search warrant was requi red, they were following the most conservative course. Where the po l i ce take the most cautious approach to protect pr i vacy, it cannot be sa i d that the breach is ser i ous.

[136] To be clear, the Crown specifically withdrew any reliance on good faith by the officers. I accept that. However, the objective record confirms that the police obtained a search warrant in an unsettled area of the law; that must be taken into account when considering the conduct of the state action.

[137] The failure to make a return to a justice has been found to be a breach in a number of cases: see, for example, R. v. Garcia-Machado, 2015 ONCA 569. However, none, to my knowledge, has excluded evidence on this basis alone: see R v. Ranglin, 2016 ONSC 3972, at paras. 89-101. The defence does not submit that I should do so. However, a continual failure to follow the required process for a lawful seizure is bound to reflect on the police and will, no doubt, result in such an exclusion in due course.

[138] Combined, I find that these factors moderately favour exclusion of the evidence.

Impact of any breach on the Charter privacy interests of the Applicant

[139] The second Grant factor "calls for an eva l uation of the extent to wh i ch the breach actually undermined the i nterests protected by the right infringed."

[140] I have granted standing to Mr. Dosanjh to argue this application; however, again, it is not a binary determination. Not all breaches of privacy are equally serious. Here, Mr. Dosanjh’s expectation of privacy is very much reduced. The information in issue was taken from someone else’s car, which, on the Crown theory, Mr. Dosanjh had no right to be driving. The phone data that was searched was not within his own phone.

[141] The act of forens i cally copy i ng the data from the I nfota i nment system to the OPP server d i d not i nfr i nge Mr. Dosanjh’s i nformational pr i vacy rights. No i nformation was g l eaned in that proces s. Even when the contact list was located, the remainder of the data was simpl y computer code and use l ess until after the warrant.

[142] These factors do not favour exclusion.

Society’s interest in the adjudication of the case on the merits

[143] As the Supreme Court stated at para. 79 of Grant:

Society generally expects that a criminal allegation will · be adjudicated on its mer i ts. Accord i ngly, t h e th i rd line of i nqu i ry re l evant to the s. 24(2) analysis. asks whether the truth-seeking function of the criminal trial process woul d be better served by admiss i on of the ev i denc e, or by i ts exc l us i on. This i nquiry ref l ects society's 'collective i nterest i n ensuring that those who transgress the law are brought to tr i al and dea l t with accord i ng to the l aw.’ ... Thus the Court suggested i n R. v. Collins that a judge on a s. 24(2) app l i cation shou l d cons i der not on l y the negative i mpact of admiss i on of the ev i denc e on the repute of the adm i nistrat i on of justice, but the i mpact of fai l i ng to admit the evidence.

[Citations removed.]

[144] The evidence fo u nd is apparently re l i ab l e; the defence has acknowledged the expertise of the Crown experts needed to lead this technical evidenc e. It is also important identification evidence.

[145] I find that this strongly favours the admissibility of the evidence.

Balancing of the Factors

[146] In R. v. Omar, 2018 ONCA 975, Brown J.A., in dissent, stated at paras. 126-127:

In the case of s. 24(2), the judiciary must determine whether evidence obtained in a manner that infringed or denied any Charter right or freedom should be admitted or excluded from a criminal proceeding: more specifically, whether “having regard to all the circumstances” the admission of such evidence in the proceedings “would bring the administration of justice into disrepute.”

To do so, the case law instructs that a judge is required to view the matter through “the eyes of the reasonable man, dispassionate and fully apprised of the circumstances of the case”, grounding his or her discretion in the “long term community values”, and ensuring that he or she does “not render a decision that would be unacceptable to the community when that community is not being wrought with passion or otherwise under passing stress due to current events”.[Citations removed.]

[147] This dissent was accepted as correct by the Supreme Court of Canada “substantially for the reasons of Brown J.A. (R. v. Omar, 2019 SCC 32).

[148] Balancing all of the factors, I find that the breaches of Mr. Dosanjh’s rights were of limited impact upon his privacy rights and led to important evidence. I am satisfied that the use of this evidence will not bring the administration of justice into disrepute.

Result

[149] Accordingly, the application is dismissed.

“Justice Lemon”

Lemon J.

Released: July 31, 2019

[^1]: I spoke with Mike Hendricks, Operations Manager at the Infiniti dealership in Guelph, Ontario about the capabilities of the Infotainment system’s navigation tool.