COURT FILE NO.: CR-18-4305

DELIVERED ORALLY: Thursday, March 12, 2020

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MARK JOHN RYN and BETH ANN VANDELINDER

Richard L. Pollock, for the Crown

Maria V. Carroccia, for the accused Mark John Ryn

Neil Rooke, for the accused Beth Ann Vandelinder

HEARD: January 6, 7, and 8, 2020

REASONS FOR RULING ON CHARTER APPLICATION

Howard J.

Overview

[1] On a three-count indictment, the applicant accused, Mr. Mark John Ryn, and his co-accused, Ms. Beth Ann Vandelinder, are charged with the following offences:

a. conspiracy, contrary to s. 465(1)(c) of the Criminal Code,[^1] to commit the indictable offence of importing fentanyl, a Schedule I substance, contrary to s. 6(1) of the Controlled Drugs and Substances Act,[^2]

b. conspiracy to commit the indictable offence of trafficking in fentanyl, contrary to s. 5(1) of the CDSA, and

c. possession of fentanyl for the purpose of trafficking, contrary to s. 5(2) of the CDSA.[^3]

[2] After officials with the Canadian Border Services Agency (“CBSA”) intercepted a courier package from China addressed to Ms. Vandelinder at an address in Windsor, which was found to contain a quantity of fentanyl, they contacted officers of the Windsor detachment of the Royal Canadian Mounted Police (“RCMP”), who developed an operational plan for the “controlled delivery” of the package to the address in Windsor.

[3] After making preliminary investigations, conducting background surveillance, and obtaining a general warrant issued under s. 487.01 of the Code, members of the RCMP investigative team executed their operational plan for the controlled delivery of the package in the early afternoon of February 27, 2017. An undercover officer posing as a Canada Post carrier delivered the package to the residence in Windsor, where Ms. Vandelinder signed for its receipt. Within moments of receiving notice that the package had been opened, the police team entered the residence and arrested Ms. Vandelinder.

[4] At the time of the police entry, Mr. Ryn was also in the Vandelinder residence and was the only person in the basement of the residence. Police officers encountered Mr. Ryn in the basement in close proximity to where the package was found moments later, hidden underneath a box lying on the basement floor. Mr. Ryn was then arrested for importing fentanyl and possession for the purpose of trafficking fentanyl.

[5] Mr. Ryn now challenges the grounds for his arrest, the seizure of his cellphone incident to that arrest, and the subsequent warrant authorizing a search of his phone. Mr. Ryn applies for an order finding that his rights guaranteed under ss. 8 and 9 of the Canadian Charter of Rights and Freedoms[^4] have been violated and for an order pursuant to s. 24(2) of the Charter excluding from admission into evidence at trial evidence of the contents of his cellphone obtained by the police as a result of the alleged unlawful detention, arrest, and unreasonable search of Mr. Ryn.

[6] The co-accused, Ms. Vandelinder, took no part in the application before me. She brought no application on her own behalf alleging similar Charter breaches or otherwise; she did not seek to have the court’s determination of Mr. Ryn’s application extend to her circumstances; and she took no position at all on the merits of Mr. Ryn’s application.[^5]

[7] At the hearing of the voir dire, the court heard evidence from seven witnesses, being RCMP officers Rodney Rudiak, Dan Russell, Edward Rumball, Louis Rainville, and Tim Fiset, and Intelligence Officer Laurie Langlois of the CBSA. As well, on consent, Crown counsel read in the evidence of RCMP Cpl. Rick Griffins. The defence called no evidence on the voir dire.

Factual Background

[8] It is common ground that on Wednesday, February 22, 2017, an EMS (Express Mail Service) courier package was selected for secondary inspection by a CBSA officer at the Vancouver International Mail Centre in Richmond, British Columbia.

[9] The return address on the bill of lading indicated that the package was sent from a company located in the People’s Republic of China. The EMS tracking number on the package was EA168191306CN.

[10] CBSA officers examined the package and its contents. The contents of the package was lab analyzed and tested positive for fentanyl. The RCMP was contacted.

[11] The package was addressed to Beth Ann Vandelinder at 4265 Mitchell Crescent in Windsor, Ontario.

[12] RCMP officers determined that their investigation would include a controlled delivery to the intended recipient at 4265 Mitchell Crescent in Windsor.

[13] To that end, RCMP Corporals Rodney Rudiak and Tim Fiset of the Windsor detachment drove to Toronto to attend at Pearson International Airport in order to meet the flight from Vancouver, and at 1:07 a.m. of Thursday, February 23, 2017, they took possession of the EMS package.

[14] Returning to Windsor just before 5:00 a.m. Thursday morning, the package was then opened, the substance believed to be fentanyl was removed,[^6] an inert substance was inserted into the package in the place of the fentanyl, together with a tracking device that would alert police of the moment when the package was opened.

[15] RCMP officers of the Windsor detachment developed an operational plan and began to make background inquiries through the various databases available to the police and contacts with other agencies, including the Windsor Police Service (“WPS”). As a result of their queries, the investigators learned, inter alia, that:

a. 4265 Mitchell Crescent is a single-family dwelling located in a residential neighbourhood in south Windsor. The backyard of the property faces on to property owned by St. Clair College.

b. Residents of 4265 Mitchell included Ms. Vandelinder, her parents (Thomas and Nancy Vandelinder), and her brother (Kurt Vandelinder).

c. Police records disclosed police interaction with both Ms. Vandelinder and Mr. Ryn in connection with domestic issues.

d. Recent CBSA border crossing records indicated that Mr. Ryn had crossed the border four times since January 2016, once in the company of Ms. Vandelinder.

e. The relationship between Ms. Vandelinder, born November 3, 1989 (27 years of age at the time), and Mr. Ryn, born May 17, 1991 (25 years), appeared to be potentially one of girlfriend and boyfriend.

f. Mr. Ryn resided at 772 Bensette Street in Windsor, Ontario.

g. One motor vehicle associated with 772 Bensette Street was a black two-door Honda, bearing Ontario licence plate BRDJ 312, believed to be registered to one Czeston Ryn, born September 9, 1955, who was believed to be Mr. Ryn’s father.

h. The police also obtained biographical and other records from the Ministry of Transportation for each of Ms. Vandelinder and her family members and Mr. Ryn, including photographs of each, all of which was distributed to the members of the investigative team.

i. None of the residents of 4265 Mitchell or Mr. Ryn had any criminal record or was known for violence. Mr. Ryn had some police contacts relating to domestics and tickets.

[16] As indicated, the police team developed an operational plan for the controlled delivery of the subject package. That plan described the mission in the following terms:

The investigative team will conduct a controlled deliver[y] of a parcel containing an inert substance to 4265 Mitchell. Surveillance will be maintained on the parcel until the parcel is breached. If the parcel leaves 4265 Mitchell, it will be tracked to its final destination. Once the parcel is delivered and a breach of the parcel is detected, the investigative team will enter the location of the parcel, and arrest all suspects involved. The parcel and contents will be seized and additional authorizations will be sought if required.[^7]

[17] The plan also described the intended execution of the controlled delivery in the following terms:

A U/C operator will deliver the parcel to 4265 Mitchell, and identify the individual who signs for the parcel. The investigative team will maintain surveillance on the parcel to its final destination. Once the parcel is breached[,] entry will be made into the location where the parcel is located. Entry will be made through the front door of the residence. The alternate entry point will be the rear door. If the parcel attends a separate location, an assessment will be made on the entry point at that time.

[18] In anticipation of the intended execution of the controlled delivery later that day, the police assembled a surveillance team and conducted surveillance on Friday, February 24, 2017, the purpose of which was to monitor the residence at 4265 Mitchell and identify persons and locations associated with Ms. Vandelinder.

[19] The surveillance conducted on Friday, February 24th was unremarkable in the sense that there was no activity observed that provided any direct evidence of drug trafficking.

[20] What the surveillance did provide was evidence of the association of Ms. Vandelinder with Mr. Ryn. In that regard, the surveillance indicated that Ms. Vandelinder was dropped off in downtown Windsor at our about 8:55 a.m. Friday morning. At or about 12:02 p.m. that same day, Ms. Vandelinder was observed outside of a downtown McDonalds restaurant and was seen using her cellphone; she appeared to be looking around and waiting for someone. Ten minutes later, the same black Honda bearing licence plate BRDJ 312 that was registered to Mr. Ryn’s address arrived at the restaurant, and at 12:12 p.m. Ms. Vandelinder was observed getting into the car, which was believed to have been driven by Mr. Ryn. The vehicle then left the area and proceeded southbound at 12:30 p.m. The vehicle was followed to the 4265 Mitchell residence, where at or about 12:40 p.m., both Ms. Vandelinder and Mr. Ryn were observed entering the residence.

[21] In the same vein, about an hour later that same Friday afternoon, Mr. Ryn was again observed at the Mitchell residence, exiting and entering the home. Shortly after that, Mr. Ryn was observed exiting the residence with a backpack, getting into the same black Honda, and then driving away from the residence at about 1:50 p.m.

[22] Also on Friday, February 24, 2017, Cst. James Prieur prepared and swore an Information to Obtain (“ITO”),[^8] and subsequently a general warrant was issued pursuant to s. 487.01(1) of the Code by Rawlins J. that same day (the “General Warrant”).[^9] Subparagraphs 1(f), (g), and (h) of the General Warrant provided as follows:

Peace Officers are authorized to arrest anyone located at any place(s) including (but not limited to) a dwelling, residence, out building, business establishment, or storage unit for which they have reasonable grounds to believe are involved in the named offences. For greater certainty, these places shall include only those at which the substituted package or its contents have been taken to[.]

Peace officers are authorized to enter by day or night into any location the substituted EMS package EA168191306CN or portion(s) of it is taken to, once investigators form reasonable grounds to believe the contents of the substituted package, is at a location.

Peace officers are authorized to enter unannounced so that the police are not required to wait prior to effecting entry at any location the substituted package or portion thereof is located. Once entry Is gained, investigators shall immediately announce their presence as police and state their purpose.

[23] Although it was intended that the controlled delivery would be implemented that same Friday, apparently officials at Canada Post were not able to accommodate the investigative team that Friday, and so the delivery was re-scheduled for Monday, February 27, 2017.

[24] On Monday, February 27, 2017, the investigative team held a briefing meeting just after 7:00 a.m. As officer in charge of the investigation and team commander, Sergeant Dan Russell ran the briefing. The operation was discussed, information was shared, and various members of the team were tasked with different duties. The operational team consisted of, inter alia, Sgt. Russell, Cst. Ed Rumball, Cst. Louis Rainville, Cpl. Rudiak, Cpl. Fiset, Cst. Corey Noseworthy, Cst. Colleen Pizzuti, Cst. Prieur, and CBSA Intelligence Officer Langlois.

[25] Surveillance teams were re-assembled and began operations early that Monday morning. One team followed Ms. Vandelinder, who was observed exiting the Mitchell residence at 8:37 a.m. together with another female person, believed to be Ms. Vandelinder’s mother, as they both got into a grey car and drove off, with Ms. Vandelinder in the passenger seat. The grey car dropped Ms. Vandelinder off downtown at City Hall Square. The first team subsequently tracked Ms. Vandelinder as she walked southbound on McDougall Street, attended a Tim Hortons at the intersection of Howard Avenue and Tecumseh Road East, then walked southbound to Devonshire Mall, where she was picked up by the same grey motor vehicle at 12:24 p.m., and was then driven back to the residence at 4265 Mitchell, arriving home at 12:29 p.m.

[26] Another team was tasked with the surveillance of Mr. Ryn. Mr. Ryn and the black Honda were observed at the 4265 Mitchell residence that same Monday morning. At 10:52 a.m., Mr. Ryn was observed exiting the back door of the Mitchell residence, walking through the property’s backyard, and walking onto the property of St. Clair College, heading towards the college buildings. A little more than an hour later, Mr. Ryn was observed at 12:17 p.m. walking back from St. Clair College to the 4265 Mitchell residence, walking along the side of the house and around to the front of the home.

[27] Members of the surveillance teams made no further observations of either Ms. Vandelinder or Mr. Ryn that day until the controlled delivery was implemented, which occurred about one hour after Mr. Ryn was last observed.

[28] In anticipation of the controlled delivery, various members of the operational team had taken up different positions in the very near vicinity of the 4265 Mitchell residence and were awaiting word that the delivery was underway. The various members of the team were in radio contact with each other.

[29] Cpl. Rudiak had taken a position on St. Clair College property and was watching the back of the Mitchell residence. His evidence was that at 1:18 p.m., the team members were advised over the radio that the operation was going to commence in terms of the delivery of the substituted EMS package.

[30] In that regard, the evidence of Cpl. Rick Griffin was that, working undercover and posing as a Canada Post employee, he arrived at the 4265 Mitchell residence at 1:18 p.m. He was dressed in a Canada Post uniform and was driving a marked Canada Post vehicle.

[31] Cpl. Griffin made a note that he departed his vehicle at 1:22 p.m., and proceeded on foot to the front door of the residence. As he approached the front door to press the doorbell, the interior door opened, and a female person greeted him. From the photographs he had seen, Cpl. Griffin believed the person to be Ms. Vandelinder. He asked her, “are you Beth?” and she replied she was. He advised that he had a package for her and that he needed her to sign and print her name because his handheld scanner was broken. Ms. Vandelinder then signed the paper ledger, returned the clipboard to Cpl. Griffin, and took delivery of the substituted EMS package.

[32] Three minutes after Cpl. Griffin departed his marked Canada Post vehicle, the team was advised, at 1:25 p.m., that the substituted EMS package had been opened. The evidence of Cpl. Rudiak was that he was in the company of Cst. Ducharme of the “Special ‘I’ Section” and at 1:25 p.m. Cst. Ducharme advised Cpl. Rudiak that the package had been opened, and Cpl. Rudiak, in turn, radioed out to the team at that same time that the package had been breached.

[33] It is common ground that just as the police team received notice that the substituted EMS package had been opened, so too the person or persons who opened the package would have likely seen the tracking device that had been inserted into the package and would have then known that the package had been tampered with.

[34] Stepping back, on my view of the evidence, it is fair to say that from that time, at 1:25 p.m., the subsequent series of events happened very quickly. So many different parts were moving so quickly at the same time that the evidence presented at the voir dire simply does not permit the recount of a completely accurate and precise chronology.

[35] The evidence indicates that multiple officers converged at the 4265 Mitchell residence at essentially the same time. The evidence of Sgt. Russell, Cst. Rumball, Cst. Rainville, and Cpl. Fiset was that the team entered the Mitchell residence at 1:25 p.m. – and I note that was literally within seconds of Cpl. Rudiak having radioed out at 1:25 p.m. that the substituted package had been breached.

[36] The evidence indicates that Cst. Rumball and Sgt. Russell were the first to breach the front door. As they were opening the front storm door, the interior door was being opened by Ms. Vandelinder. Cst. Rumball arrested Ms. Vandelinder almost immediately upon his entry. That is, as Cst. Rumball encountered Ms. Vandelinder in the doorway of the residence, she identified herself to him when he asked; he notified her that they were the police and were executing a search warrant. He asked her to move off to the side in the living room, where Ms. Vandelinder’s mother and brother happened to be seated; and he advised all three of them that they were being detained. At 1:28 p.m., Cst. Rumball placed Ms. Vandelinder under arrest, provided her with her rights to counsel and caution, and strongly recommended that she not say anything.

[37] Meanwhile, other officers had entered the residence and were conducting a room-by-room sweep of the premises for safety purposes to locate and identify any occupants. As they entered, various officers announced themselves as police officers who were executing a search warrant. For example, the evidence of Cst. Rainville was that he saw Sgt. Russell and Cst. Rumball breach the front door, and he then followed them, entering about 15 or 20 seconds after they did. As he entered the premises, he was wearing a tactical vest with the word “POLICE” emblazoned across the chest, a ballcap with the word “POLICE” across the top, and his duty tactical belt.

[38] The evidence of Cpl. Fiset was that he was one of the officers, along with Cst. Noseworthy, who entered the residence following Cst. Rumball, and as they entered into the home, he and Cst. Rumball were yelling out to the occupants, identifying themselves as police officers. Cpl. Fiset observed Cst. Rumball encounter Ms. Vandelinder immediately and take her into the living room with other persons in that room. Cpl. Fiset testified that he continued down the hall, accompanied by Cst. Noseworthy, and that when they quickly came across a flight of stairs leading to the basement, Cpl. Fiset yelled out “POLICE” from the top of the stairs, and they then proceeded down those stairs, with Cpl. Fiset in the lead. Cpl. Fiset had his firearm drawn, which he was holding against his vest. He testified that the basement area was lighted, and he moved quickly down the stairs. As he came to the base of the stairs, he again yelled out “POLICE” and took a quick look around. He noticed a door to his immediate left at the base of the stairs, which door was slightly ajar. Cpl. Fiset pushed open the door, which offered no resistance, and he then saw a male person, subsequently identified as Mr. Ryn, standing in the centre of the room, which Cpl. Fiset described as an average size bedroom, perhaps 10 by 12 feet.

[39] The evidence of Cpl. Fiset was that when he first encountered Mr. Ryn, Mr. Ryn had a surprised look on his face, and he was wide-eyed. Cpl. Fiset shouted, “Police! I need to see your hands!” and his evidence was that Mr. Ryn immediately complied. The evidence of Cpl. Fiset was that Mr. Ryn was no more than four or five feet from him when he first encountered Mr. Ryn. The evidence of Cpl. Fiset was that he placed his hands on Mr. Ryn’s shoulders, told him he was under arrest “for officer safety” reasons in order to bring it home to Mr. Ryn that he was not free to leave the premises and that he should not attempt to resist, that he was to go upstairs with everyone else as the police were searching for a package. Cpl. Fiset proceeded to walk Mr. Ryn out of the bedroom and, passing through the same door opening up to the base of the stairs, he immediately encountered Cst. Rainville, who had just come downstairs. Cpl. Fiset handed Mr. Ryn off to Cst. Rainville, telling Cst. Rainville that “this is Mark” and that there was another room off the bedroom that he (Cpl. Fiset) needed to secure, and Cpl. Fiset then proceeded to search the rest of the rooms in the basement. The evidence of Cpl. Fiset was that it was a matter of mere seconds from the time he first saw Mr. Ryn standing in the bedroom to the time that Mr. Ryn exited the bedroom and was handed off to Cst. Rainville.

[40] The evidence of Cst. Rainville was that as he entered the residence, and after he noticed Ms. Vandelinder’s mother and brother seated in the living room, he then proceeded down to the basement. He noticed a number of officers standing at the bottom of the stairs. His evidence was that either Cpl. Fiset or Cst. Noseworthy handed Mr. Ryn off to him. Cst. Rainville did not know if Mr. Ryn had been arrested at that time, but he immediately placed him under investigative detention, providing Mr. Ryn with his rights to counsel and advising him (as they walked upstairs) that he was being detained for investigation of importing fentanyl and possession for the purposes of trafficking in fentanyl.

[41] Cst. Rainville recalls that as he placed Mr. Ryn under investigative detention and took carriage of him, and as Cst. Rainville had his hands physically on Mr. Ryn as he was walking him upstairs, Mr. Ryn was clothed in flannel pyjama pants and a T-shirt. Cst. Rainville recalls that he brought Mr. Ryn upstairs into the living room. Cst. Rainville cannot recall whether Mr. Ryn gave to Cst. Rumball a cellphone that was on his person or whether Cst. Rumball removed it from him. When Cst. Rainville had brought Mr. Ryn into the living room, he conducted a “cursory pat-down search” to ensure that Mr. Ryn was not in possession of any weapon or fentanyl or other substance dangerous to Cst. Rainville or the other persons present. That search was “non-resultant.”

[42] In cross-examination, Cst. Rainville clarified that between the time when he took carriage of Mr. Ryn and walked him upstairs and when he conducted his pat-down search of Mr. Ryn upstairs in the living room, “in between that time, Cst. Rumball either was given or took from him a cellphone prior to my search.”

[43] Cst. Rainville told Mr. Ryn to have a seat on the living room floor. There was a period of time when Cst. Rainville engaged in “idle chit-chat” with Ms. Vandelinder’s mother and the other occupants of the room. However, at some point Cst. Rainville noted that Mr. Ryn did not look well; he appeared pale and seemed to be confused and nauseous. Cst. Rainville recalls that shortly thereafter Mr. Ryn complained of feeling light-headed, dehydrated, and feeling faint from having studied all night or being excessively tired or something to that effect. Cst. Rainville asked Mr. Ryn what would make him feel better, and Mr. Ryn asked for some water and a banana, and Cst. Rainville directed another officer to provide those requests to Mr. Ryn. Cst. Rainville’s recollection was that at the time of this exchange, Mr. Ryn had not been placed in handcuffs.

[44] Meanwhile, and before Cst. Rainville had placed Mr. Ryn under investigative detention and brought him upstairs, Sgt. Russell had entered the residence and was standing at the base of the staircase to the upstairs and at the top of the staircase to the basement, watching that area. When Sgt. Russell believed that the upstairs of the residence had been cleared, he proceeded to the basement area, and he estimated that he proceeded downstairs within a minute of him first entering the residence (which was at 1:25 p.m.).

[45] In particular, the evidence of Sgt. Russell was that before he descended the staircase to the basement, and as he stood at the top of the stairs, he observed Cpl. Fiset, Cst. Noseworthy, and Mr. Ryn standing at the base of the staircase. At that point, Sgt. Russell believed that Mr. Ryn had been detained by the officers, given that he was standing between two police officers who had their hands on him. Sgt. Russell then proceeded down the stairs and directed Cpl. Fiset and Cst. Noseworthy to bring Mr. Ryn upstairs, which they did, and Sgt. Russell then proceeded to search the basement for the substituted EMS package.

[46] The evidence of Sgt. Russell was that as he was standing at the bottom of the staircase, in the area described as the “Basement Common Area” in the basement floor plan that was prepared by Cpl. Rudiak,[^10] he turned to his left and entered the room where Cpl. Fiset first encountered Mr. Ryn, marked as the “Front Bedroom” on Cpl. Rudiak’s floor plan. Sgt. Russell noted that the bedroom area was in a state of disarray.

[47] Sgt. Russell then proceeded into the room that is marked as the “Rear Bedroom” on the floor plan prepared by Cpl. Rudiak, which he described as a room with an office area, a desk, and clothing area, which he described as “a mess,” where the Sergeant observed present on the desk “several water bottles with markings on them,” “plastic bags with white powder residue on them,” some partially-opened inhalers, “several pill cases with some of the pills missing,” and “some yellow bubble-wrapped package with some Chinese writing on it.” Sgt. Russell subsequently described all of that which he observed as “paraphernalia for distributing illicit drugs.” At that point, based on his observations, Sgt. Russell formed the opinion that the occupants of the room were “preparing for the distribution of illicit drugs.”

[48] Sgt. Russell estimates that he spent perhaps a minute in that room, making note of its contents, but he was searching for the substituted EMS package, and he saw no evidence of it in that room, so he moved on.

[49] In that regard, Sgt. Russell exited the rooms marked as the “Rear Bedroom” and the “Front Bedroom” on the floor plan prepared by Cpl. Rudiak, and he entered the room marked as the “Basement Common Area.” Sgt. Russell noted that the room was in general disarray, but his attention was drawn to some light-brown coloured packaging tape on the basement floor, appearing to emanate from underneath a carton or box lying on the basement floor. Sgt. Russell moved towards that box and lifted it up off the floor, where he then discovered the same substituted EMS package that had been the subject of the RCMP’s controlled delivery operation.

[50] The evidence of Sgt. Russell was that the box on the basement floor, underneath of which he found the substituted EMS package, was within five or six steps to the right from the base of the stairs to the basement.

[51] Sgt. Russell testified that he noted the placement of the box underneath of which he discovered the EMS package, and he then went upstairs to speak with Cst. Rainville and directed Cst. Rainville to place Mr. Ryn under arrest.

[52] Sgt. Russell testified that he provided Cst. Rainville with a summary of his grounds for arresting Mr. Ryn, including what he had found in the basement, the evidence of illicit drugs in white powder form, which Sgt. Russell suspected was either fentanyl or some other illicit drug, in the Rear Bedroom on the countertop, “with some inhalers and, in general, paraphernalia to distribute that,” together with the fact that Sgt. Russell found the hidden EMS package some five or six steps away from where Mr. Ryn was standing at the bottom of the stairs.

[53] I note that the evidence of Sgt. Russell as to the general disarray of the various rooms in the basement and the various drug paraphernalia present within some of the rooms was consistent with the evidence of Cpl. Fiset and, to a more limited degree, that of Cst. Rainville.

[54] The evidence of Cst. Rainville was that at 1:40 p.m. Sgt. Russell entered the living room and said to Cst. Rainville words to the effect that Mr. Ryn was “arrestable” and/or “he’s going too” and that grounds existed to arrest Mr. Ryn as well. The evidence of Cst. Rainville was that he believed Sgt. Russell and relied upon his Sergeant’s information, and so Cst. Rainville then arrested Mr. Ryn for importing fentanyl and possession for the purpose of trafficking in fentanyl.

[55] Cst. Rainville then again provided Mr. Ryn with his rights to counsel and caution from memory, placed him in handcuffs, and escorted him from the residence. Subsequently, Cst. Rainville asked Mr. Ryn if he needed an ambulance, and although Mr. Ryn indicated he did not need an ambulance, Cst. Rainville called for EMS services because, to his mind, Mr. Ryn looked very pale, confused, not well at all, and that he was either going to throw up or faint.

Issues

[56] The applicant, Mr. Ryn, submits that the following issues arise on this application:

a. Did the police have reasonable grounds to arrest Mr. Ryn and, if not, was his arrest contrary to s. 9 of the Charter?

b. Was the seizure of Mr. Ryn’s cellphone unreasonable and, if so, did it constitute a violation of s. 8 of the Charter?

c. Were there reasonable grounds pursuant to s. 8 of the Charter to issue a production order for the production of records and, subsequently, a search warrant to search Mr. Ryn’s cellphone?

d. If there was a violation of the rights guaranteed Mr. Ryn under either ss. 8 or 9 of the Charter, should the evidence obtained as a result be excluded from admission at trial pursuant to s. 24(2) of the Charter?

Analysis

Did the police have reasonable and probable grounds to arrest Mr. Ryn and, if not, was his arrest contrary to s. 9 of the Charter?

[57] The first issue on the voir dire is whether the police had reasonable grounds to arrest Mr. Ryn.

[58] It is common ground that while it was Cst. Rainville who actually effected the arrest of Mr. Ryn, he did so only on the instructions of his superior officer, Sgt. Russell, and it was Sgt. Russell who made the decision that there were grounds to arrest Mr. Ryn.[^11]

[59] That said, I would first address the evidence of Cpl. Fiset that when he first encountered Mr. Ryn in the basement of the residence, he told Mr. Ryn that he was under arrest. In short, I attach no significance to Cpl. Fiset’s utterance. While apparently Cpl. Fiset did use the word “arrest,” it must be remembered that the situation at the time was fluid and dynamic. Cpl. Fiset was the first officer to proceed down to the basement, and he had his firearm drawn. It was a dangerous situation, made even more so because the illicit substance that the police were dealing with was fentanyl, and the evidence of Cpl. Fiset was that the dangers of fentanyl were known to him.

[60] Further, it is clear that the primary concern of Cpl. Fiset at the time was safety. Indeed, when questioned on the reasons for the so-called arrest, Cpl. Fiset testified that he arrested Mr. Ryn “for officer safety” reasons. Ms. Carroccia’s point is, of course, well taken that there is no such known offence, and certainly Mr. Pollock does not contest that point.

[61] In my view, Cpl. Fiset did not effect an arrest. He simply used the word that came to mind that most efficiently conveyed the officer’s intended message to Mr. Ryn that he was not free to leave the premises.

[62] Rather, in my view, what occurred between Cpl. Fiset and Mr. Ryn was, in substance, a de facto investigative detention. I note that when Cpl. Fiset came out of the bedroom with Mr. Ryn and immediately encountered Cst. Rainville and immediately handed Mr. Ryn over to Cst. Rainville, he apparently did not use the word “arrest” in speaking with Cst. Rainville. Cpl. Fiset said, “this is Mark” and he handed him over. Certainly, Cst. Rainville did not consider that Mr. Ryn had been arrested. His evidence was that he had no knowledge that Mr. Ryn had been arrested. Rather, Cst. Rainville immediately placed Mr. Ryn under investigative detention, provided him with his rights to counsel, and advised him that he was being detained for investigation of importing fentanyl and possession for the purposes of trafficking in fentanyl. The utterance of that single word does not change the substance of what actually happened, and what actually happened was that Mr. Ryn was, at that point in time, detained for investigation.

[63] The question, then, is whether Sgt. Russell had reasonable grounds to arrest Mr. Ryn for importing fentanyl and possession for the purpose of trafficking fentanyl.

[64] On the question of importing, I accept Mr. Pollock’s submissions that, consistent with the jurisprudence of our Court of Appeal, while the importing of the fentanyl was “legally complete” upon its entry into Canada, the offence was not factually completed until the EMS package was received and opened. In R. v. Onyedinefu, which was a case involving the importation of heroin, the Court of Appeal held that: “[h]ere the facts are that the importing of heroin was complete in law when it entered Canada and in fact when the appellant, who was the Canadian recipient, took possession of it.”[^12]

[65] As such, in considering grounds to arrest for both the trafficking and possession offences, the Crown acknowledges that the police could arrest Mr. Ryn only if there were reasonable grounds to believe that he was in possession, either alone or with Ms. Vandelinder, of the package in question.

[66] The basic concept of possession was explained at some length by Fish J. in R. v. Morelli, as follows:

For the purposes of the Criminal Code, “possession” is defined in s. 4(3) to include personal possession, constructive possession, and joint possession. Of these three forms of culpable possession, only the first two are relevant here. It is undisputed that knowledge and control are essential elements common to both.

On an allegation of personal possession, the requirement of knowledge comprises two elements: the accused must be aware that he or she has physical custody of the thing in question, and must be aware as well of what that thing is. Both elements must co-exist with an act of control (outside of public duty): R. v. Beaver, 1957 CanLII 14 (SCC), [1957] S.C.R. 531 (S.C.C.), at pp. 541-42.

Constructive possession is established where the accused did not have physical custody of the object in question, but did have it “in the actual possession or custody of another person” or “in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person.” (Criminal Code, s. 4(3)(a)). Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his “use or benefit” or that of another person.[^13]

[67] In short, as our Court of Appeal has said, possession, for the purposes of the criminal law, requires both knowledge of and control over the thing said to be possessed.[^14]

[68] Mr. Ryn asserts that his arrest was unlawful, effected without reasonable grounds, and in breach of his rights guaranteed by s. 9 of the Charter.

[69] Clause 495(1)(a) of the Criminal Code permits a peace officer to arrest, without a warrant, a person “who the peace officer believes, on reasonable grounds, has committed or is about to commit an indictable offence.”

[70] As such, if Sgt. Russell believed on reasonable grounds that Mr. Ryn was in possession of the EMS package and had thus committed the offences in question, the police had authority to make a warrantless arrest.

[71] In its recent decision in R. v. Canary, the Ontario Court of Appeal had occasion to summarize the legal framework for determining whether the police have sufficient grounds to justify an arrest. Writing for the unanimous court in Canary, Fairburn J.A. summarized the framework in the following terms:

Where a peace officer believes on reasonable grounds that a person has committed an indictable offence, the officer may make a warrantless arrest: s. 495(1)(a) of the Criminal Code. There is both a subjective and objective component to the reasonable grounds inquiry. To fulfill the subjective requirement, the officer must hold an honest belief that the person committed an offence. The officer “must subjectively believe that there are reasonable grounds to make the arrest”: R. v. Saciragic, 2017 ONCA 91 (Ont. C.A.), leave to appeal refused, [2017] S.C.C.A. No. 106 (S.C.C.), at para. 16. To fulfill the objective requirement, the officer’s belief must be objectively reasonable in the circumstances known to the officer at the time of arrest: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241 (S.C.C.), at pp. 250-51; R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641 (Ont. C.A.), at para. 38; Saciragic, at para. 16. The objective inquiry asks whether “a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest”: Storrey, at pp. 250-51.

When considering whether an officer’s subjective belief is objectively reasonable, the court looks at the objectively discernible facts through the eyes of a reasonable person with the same knowledge, training and experience as the officer: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220 (S.C.C.), at paras. 45-47. Determining whether sufficient grounds exist to justify an exercise of police powers is not a “scientific or metaphysical exercise”, but one that calls for the application of “[c]ommon sense, flexibility, and practical everyday experience”: R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250 (S.C.C.), at para. 73.

The reasonable grounds standard does not require the establishment of a prima facie case or proof beyond a reasonable doubt. The test is met where, based on all of the circumstances known to the officer, “credibly-based probability” replaces suspicion: R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140 (S.C.C.), at p. 1166; Canada (Director of Investigation & Research, Combines Investigation Branch) v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145 (S.C.C.), at p. 167; R. v. Dhillon, 2016 ONCA 308, 335 C.C.C. (3d) 144 (Ont. C.A.), at para. 25; R. v. Muller, 2014 ONCA 780, 122 O.R. (3d) 721 (Ont. C.A.), at para. 33.[^15]

[72] In my view, there is no real issue concerning the first, subjective requirement. It is clear on the evidence that Sgt. Russell himself believed that, apart from the involvement of Ms. Vandelinder, Mr. Ryn had also committed the offences in question. After surveying the rooms in the basement and finding the EMS package hidden under the box, Sgt. Russell returned upstairs and told Cst. Rainville that Mr. Ryn was also “arrestable.”

[73] The real issue here is the second element, the objective requirement. When considering whether the officer’s subjective belief is objectively reasonable, it is important to keep foremost in mind, as our Court of Appeal has repeatedly emphasized, the need to consider the totality of the circumstances. In its 2016 decision in R. v. Labelle, the Court of Appeal held that:

When considering the objective reasonableness of the subjective grounds for arrest, a court must look to the totality of the circumstances, and it is not appropriate to consider each fact in isolation: see R. v. Lawes, 2007 ONCA 10, 72 W.C.B. (2d) 487 (Ont. C.A.), at para. 4; R. v. Italiano, 2015 ONCA 179, 120 W.C.B. (2d) 19 (Ont. C.A.), at para. 8.[^16]

[74] To the same effect is the admonition of Fairburn J.A. in R. v. Canary – a case relied upon by both Mr. Pollock and Ms. Carroccia – where the Court of Appeal spoke about the correct approach to considering the objective reasonableness of the arresting officer’s subjective belief, in the following terms:

Facts known to an officer at the time of arrest should not be considered within individual silos. The question is not whether each fact, standing alone, supports or undermines the grounds for an arrest. The question is whether the facts as a whole, seen through the eyes of a reasonable person who has the same knowledge, training and experience as the arresting officer, make the arrest objectively reasonable.[^17]

[75] In R. v. Robinson, writing for the unanimous Court of Appeal, Doherty J.A. explained the same point, as follows:

The facts of this case demonstrate the need to examine the totality of the evidence said to provide reasonable grounds from the practical perspective of the officer making the decision. An officer deciding to arrest necessarily brings to bear his or her personal experience in the assessment of the relevant factors. While evidence that the appellant and Ms. Browne had a close personal relationship could not, standing alone, reasonably put the appellant in possession of any guns found in her apartment, that relationship could take on a different meaning when combined with Detective Balint’s reasonable belief that Ms. Browne was likely not acting alone in respect of her possession of the arsenal found in her locker, and Detective Balint’s knowledge that the appellant, unlike Ms. Browne, had a well-established history of firearms-related offences. All these factors, taken together, painted a picture which could provide reasonable grounds to believe that the appellant was Ms. Browne’s partner in the criminal enterprise relating to the guns found in the locker. That inference justified the further belief that the appellant was in joint possession with Ms. Browne of any firearms found in her apartment.[^18]

[76] The same approach must be adopted in the instant case.

[77] I consider, then, whether a reasonable person, standing in the shoes of Sgt. Russell, would have believed that reasonable and probable grounds existed to make the arrest. In this case, that reasonable person would be confronted with the following:

a. The close proximity of Mr. Ryn to the place where the EMS package was found. Just moments after the package was opened, the police entered the residence and apprehended Mr. Ryn in the basement. At the time of the police entry, Mr. Ryn was the only person found in the basement. Ms. Vandelinder and her family members were all found upstairs. Cpl. Fiset was at the base of the stairs when he opened the somewhat-ajar door to the bedroom to his left and first encountered Mr. Ryn, standing in the bedroom. Cpl. Fiset said that Mr. Ryn was no more than four or five feet from him when he first encountered Mr. Ryn. Sgt. Russell said he found the EMS package hidden underneath a box, lying on the floor, five or six steps to the right from the base of the stairs to the basement. Whether measured in feet or steps or both, Mr. Ryn was apprehended by the police standing in very close proximity to where the EMS package was later found, hidden underneath a box.

b. The close proximity in time of the delivery of the EMS package and when Mr. Ryn was apprehended. Cpl. Griffin arrived at the 4265 Mitchell residence at 1:18 p.m. Cpl. Griffin noted that he got out of his vehicle at 1:22 p.m. All of the officers on the entry team testified that they entered the 4265 Mitchell residence at 1:25 p.m. It is a fair view of the evidence to conclude that Mr. Ryn was apprehended by the police within a minute of Cpl. Fiset entering the residence and proceeding downstairs to the basement. Cpl. Fiset said he did not run down those stairs. That is, it was literally a matter of seconds from the time of the police entry to the time of the police detention of Mr. Ryn. We do not know the exact time of day when Ms. Vandelinder accepted delivery of the EMS package and went back inside the residence. However, we do know that it was less than three minutes because the police entered the home at 1:25 p.m., and three minutes earlier, at 1:22 p.m., Cpl. Griffin was just departing the Canada Post vehicle. Allowing some time for the officer to walk from his vehicle to the front door, and allowing for some further time for the discussion and exchange of the EMS package between the undercover officer and Ms. Vandelinder, it is clear that Mr. Ryn was apprehended by the police within a very few short minutes after the EMS package was delivered to Ms. Vandelinder. For the purposes of argument, counsel used the time-frame of three minutes. I should think that is a very reasonable estimate.

c. The close proximity of Mr. Ryn to the drug paraphernalia. After Mr. Ryn was detained and taken upstairs by Cst. Rainville, and in the course of conducting his sweep of the rooms in the basement, Sgt. Russell entered the room off the basement bedroom where Mr. Ryn was found by Cpl. Fiset. That room was labelled the Rear Bedroom in Cpl. Rudiak’s floor plan. When he surveyed that Rear Bedroom, Sgt. Russell noted the presence of “several water bottles with markings on them,” “plastic bags with white powder residue on them,” some partially-opened inhalers, “several pill cases with some of the pills missing,” and other items that he regarded as drug paraphernalia. When the police first found Mr. Ryn, he was standing in very close proximity to the room where the drug paraphernalia was found.

d. The relationship between Mr. Ryn and Ms. Vandelinder. The EMS package containing the fentanyl was intended for delivery to Ms. Vandelinder. Her name was on the bill of lading. The police had information that linked Ms. Vandelinder and Mr. Ryn together. There were police records of domestic incidents between the two. Conducting their own surveillance, the police observed Mr. Ryn in the company of Ms. Vandelinder more than once. They knew from border records that on at least one occasion, Ms. Vandelinder and Mr. Ryn had travelled outside the country together. The police observed that when Ms. Vandelinder called from downtown on her cellphone, Mr. Ryn came to pick her up at the McDonalds and drove her home. On at least one occasion, being the Monday morning of the controlled delivery, they observed that Mr. Ryn was at the family home at a time when Ms. Vandelinder was not at home; she had left earlier that morning to go down to City Hall. Given the information available to them, the officers believed that Ms. Vandelinder and Mr. Ryn were potentially girlfriend and boyfriend. In my view, that is a reasonable inference for the police to have drawn.

e. The apparent access Mr. Ryn had to the residence. The EMS package containing the fentanyl was intended for delivery to the Vandelinder home at 4265 Mitchell Crescent. It is apparent from the various observations of the surveillance team that Mr. Ryn enjoyed rather unfettered access to the Vandelinder home. He was observed coming and going from the Vandelinder home on multiple occasions, and even on occasions when he was not accompanied by Ms. Vandelinder. Indeed, as I have said, on at least one occasion, he was allowed to remain in the Vandelinder home when Ms. Vandelinder was not even home. There was no evidence before me that any member of the police surveillance teams, at any time, observed Mr. Ryn knocking on a door or ringing a door bell before being answered and permitted by a household member to enter the family home – as one might expect a typical house guest might be treated. Moreover, when he was found by the police in the home, he was standing in the middle of a bedroom wearing his pyjamas.

[78] Further, it is not only the existence of these various factors that is significant, it is also their confluence. It is not simply that Mr. Ryn was found in very close proximity to where the EMS package lay hidden on the floor; it is that a mere three minutes after the EMS package was delivered to the Vandelinder home, Mr. Ryn was found by the police in very close proximity to the EMS package. As Doherty J.A. explained in R. v. Robinson, if one examines one fact standing alone, it might not support the same inference as when you consider the same fact combined with other factors, taken together.

[79] It follows that I reject the submission, as set out in para. 23 of the applicant’s factum, that the police arrested Mr. Ryn “because of his presence at the scene and for no other reason.” Respectfully, that is simply not the case. And that was not the evidence of Sgt. Russell.

[80] In a similar vein, I agree with Ms. Carroccia’s submission to me that the surveillance conducted by the police in this case “does not yield grounds to arrest.” I agree that – standing alone – the observations made by the surveillance team do not provide reasonable grounds for arrest. However, the appellate admonition in cases like Labelle, Canary, and Robinson is that one must not consider each fact standing alone. The courts have been clear that it is not appropriate to consider each fact in isolation or in silos; rather, one must look to the totality of the circumstances.

[81] I also note Ms. Carroccia’s submission to me in oral argument – which, on its face, has merit – that given that we know it took Cpl. Fiset less than a minute to enter the residence through the front door and make his way down to the basement, it is a reasonable inference to consider that Ms. Vandelinder could have done the very same thing and gone down to the basement to hide the EMS package under the box.

[82] For present purposes, I do not dispute that Ms. Carroccia’s suggested scenario could have happened. However, respectfully, that is not the point. Because that was not the belief of Sgt. Russell. And at the objective stage of the analysis, the question is whether the officer’s belief is objectively reasonable in the circumstances. That there may exist other explanations does not mean that the officer’s explanation is not a reasonable one. In my view, while there may be other possible explanations, I believe that a reasonable person, standing in the shoes of Sgt. Russell, would conclude that the inference that the officer drew was not unreasonable in the totality of the circumstances.

[83] For all of these reasons, considering the totality of the evidence, and bearing in mind that the police are not required to establish a prima facie case for conviction before making the arrest, I conclude that a reasonable person, standing in the shoes of Sgt. Russell, would have believed that reasonable and probable grounds existed to make the arrest. I find that the objective component has been satisfied.

[84] In sum, I conclude that the police had reasonable grounds to arrest Mr. Ryn for the offences in question.

Was the seizure of Mr. Ryn’s cellphone pursuant to his arrest unreasonable and, if so, did it constitute a violation of s. 8 of the Charter?

[85] A search is reasonable within the meaning of s. 8 of the Charter if it is authorized by a reasonable law and is conducted reasonably.[^19]

[86] In R. v. Fearon, the Supreme Court of Canada explained the historical basis of the common law police powers to search incidental to a lawful arrest, as follows:

Although the common law power to search incident to arrest is deeply rooted in our law, it is an extraordinary power in two respects. The power to search incident to arrest not only permits searches without a warrant, but does so in circumstances in which the grounds to obtain a warrant do not exist. The cases teach us that the power to search incident to arrest is a focussed power given to the police so that they can pursue their investigations promptly upon making an arrest. The power must be exercised in the pursuit of a valid purpose related to the proper administration of justice. The central guiding principle is that the search must be, as the case law puts it, truly incidental to the arrest.

The Court affirmed the common law power of the police to search incident to arrest in R. v. Beare … . La Forest J., for the Court, noted that the search incident to arrest power exists because of the need “to arm the police with adequate and reasonable powers for the investigation of crime” and that “[p]romptitude and facility in the identification and the discovery of indicia of guilt or innocence are of great importance in criminal investigations.” … Thus, the need for the police to be able to promptly pursue their investigation upon making a lawful arrest is an important consideration underlying the power to search incident to arrest.[^20] [Citations omitted.]

[87] In the instant case, the evidence is somewhat unclear as to when the police actually seized Mr. Ryn’s cellphone and, in particular, whether it was seized pursuant to his arrest or pursuant to his investigative detention. The point made by Ms. Carroccia, relying on R. v. Mann[^21] and R. v. Williams,[^22] is that the police had no authority to seize the cellphone pursuant to an investigative detention.

[88] Unfortunately, there was no police record made as to the time of the seizure of Mr. Ryn’s phone relative to his arrest at 1:40 p.m.

[89] Again, the evidence of Cst. Rainville is clear that when Cpl. Fiset handed Mr. Ryn over to him, Cst. Rainville placed Mr. Ryn under investigative detention and then escorted him upstairs into the living room. The evidence of Cst. Rainville is also clear that once they were in the living room, Cst. Rainville conducted a pat-down search of Mr. Ryn for safety reasons. It is clear that the cellphone was not seized as a result of that pat-down search. In other words, the cellphone was not on the person of Mr. Ryn as of the time Cst. Rainville conducted his pat-down search.

[90] In examination-in-chief, Cst. Rainville could not recall whether Mr. Ryn gave his cellphone to Cst. Rumball or whether Cst. Rumball removed it from him. In cross-examination, Cst. Rainville clarified that between the time when he took carriage of Mr. Ryn and brought him upstairs and when he conducted his pat-down search of Mr. Ryn upstairs in the living room, “in between that time, Cst. Rumball either was given or took from him a cellphone prior to my search.”

[91] However, that evidence would appear to be somewhat in conflict with the evidence of Cst. Rumball who testified that he did not have any direct dealings with Mr. Ryn until after Mr. Ryn was brought upstairs by Cst. Rainville. The evidence of Cst. Rumball is that he was present when the arrest of Mr. Ryn was made by Cst. Rainville. In cross-examination, Cst. Rumball was asked if he himself seized anything that day, and he replied that he took only the two cellphones off of Ms. Vandelinder and Mr. Ryn “at or around the time of their arrest.” Cst. Rumball said that Ms. Vandelinder gave him her cellphone and that he asked Mr. Ryn to empty his pockets, and Mr. Ryn then gave Cst. Rumball his cellphone. When asked why he requested Mr. Ryn’s cellphone, Cst. Rumball replied, “because we were detaining him. I needed to know if he had anything on him, anything in his pockets, so … until … we determined otherwise, just like you would any person in custody.”

[92] In my view, the evidence of Cst. Rumball that he seized Mr. Ryn’s cellphone “at or around the time of their arrest” – which evidence was not challenged – is tantamount to a search incidental to arrest. In contrast, the evidence of Cst. Rainville would suggest that, if one assumes the pat-down search was conducted prior to the arrest, the cellphone was seized pursuant to an investigative detention.

[93] Although both officers’ memories were not always clear as to the time that certain events occurred, I prefer the evidence of Cst. Rumball, that is, the officer who, it is agreed, actually seized the cellphones, as to when he seized those cellphones.

[94] However, in the alternative, even if I am incorrect in concluding that the cellphone was seized at or about the time of Mr. Ryn’s arrest, to the extent that the police did not seize the cellphone in a manner completely consistent with the principles in R. v. Mann and s. 8 of the Charter, it was a technical breach only given the reality that it was only a matter of mere minutes, if not seconds, that Mr. Ryn was lawfully arrested, as I have found, at which point the seizure of the cellphone would have been made and would have been lawful.

[95] In any event, certainly the manner in which the cellphone was seized was reasonable. Cst. Rumball simply asked Mr. Ryn to empty his pockets and hand over his cellphone, and Mr. Ryn complied.

[96] For all of these reasons, I conclude that, on the evidence before me, the seizure of Mr. Ryn’s cellphone was made pursuant to a valid search incident to arrest and, in any event, was not unlawful.

Were there reasonable grounds pursuant to s. 8 of the Charter to issue a production order for the production of records and, subsequently, a search warrant to search Mr. Ryn’s cellphone?

[97] I begin the analysis of this issue by noting that after Cst. Rumball seized Mr. Ryn’s cellphone, and when he then turned over the phone to Cpl. Rudiak when the police left the premises at 2:42 p.m. on Monday, February 27, 2017, the police did not immediately proceed to search the contents of the cellphone.

[98] Rather, the police sought judicial authorization to search the cellphone, as our law expects officers to do.

[99] To that end, Cst. Prieur prepared an ITO, which was sworn on March 7, 2017,[^23] as a result of which a production order was issued pursuant to s. 487.014(1) of the Code on March 9, 2017.[^24] Subsequently, Cst. Prieur prepared another ITO, which was sworn on March 15, 2017,[^25] as a result of which a search warrant (authorization to search electronic devices) was issued pursuant to s. 487 of the Code on March 16, 2017.[^26]

[100] The Crown acknowledges that both the search for the electronic device itself and the subsequent examination of its content must be justified by showing reasonable grounds for the search. In the case of the content of a device, the informant must satisfy the issuing justice that the things sought will afford evidence of the named offence.

[101] In this regard, it is instructive to note that the use of mobile cellular phones to further criminal activity has been judicially recognized by the Supreme Court of Canada. Writing for the majority of the court in R. v. Fearon, Cromwell J. made the following observations:

Beyond the facts of this case, there are other types of situations in which cell phone searches conducted incidental to a lawful arrest will serve important law enforcement objectives, including public safety. Cell phones are used to facilitate criminal activity. For example, cell phones “are the ‘bread and butter’ of the drug trade and the means by which drugs are marketed on the street”: Howell, at para. 39.

Prompt access by law enforcement to the contents of a cell phone may serve the purpose of identifying accomplices or locating and preserving evidence that might otherwise be lost or destroyed. Cell phones may also be used to evade or resist law enforcement. An individual may be a “scout” for drug smugglers, using a cell phone to warn criminals that police are in the vicinity or to call for “back up” to help resist law enforcement officers: see, e.g. United States v. Santillan, 571 F.Supp.2d 1093 (U.S. Dist. Ct. D. Ariz. 2008) at pp. 1097-98. In such situations, a review of recent calls or text messages may help to locate the other perpetrators before they can either escape or dispose of the drugs and reveal the need to warn officers of possible impending danger.[^27]

[102] However, Mr. Ryn claims that there were insufficient grounds to justify the issuance of the production order and search warrant in this case. Speaking generally, he submits that the ITOs in the instant case disclose no nexus between the offences charged and the location to be searched, that is, Mr. Ryn’s cellphone and its contents.

[103] It is, of course, the accused who bears the burden of persuading the reviewing court that his or her Charter rights have been infringed. The standard of proof is the civil standard of the balance of probabilities.[^28]

[104] The review of the sufficiency of a search warrant must be conducted in accordance with certain well-established principles that speak to the limited scope of review.

[105] Once the authorizing justice has issued the search warrant, there is a presumption of validity with respect to a search warrant and the sworn information supporting it.[^29] Indeed, the Ontario Court of Appeal has placed great emphasis on the importance of the reviewing court bearing in mind “throughout the analysis that the warrant is presumed to be valid and the correct question is whether the respondent has established that there was no basis for its authorization. This point cannot be stressed too much. The presumption means that the decision of the issuing justice must be upheld unless the applicant meets the burden of demonstrating its invalidity.”[^30]

[106] There is also no disagreement between counsel as to the limited scope of search warrant review, as reflected in paras. 34-35 of Ms. Carroccia’s factum. In this regard, the courts have emphasized that the scope of warrant review is narrow. Our Court of Appeal summarized the narrow scope of review and the restrictions on the reviewing court in R. v. Sadikov, as follows:

The scope of warrant review is narrow. The review is not a de novo hearing of the ex parte application. The reviewing judge does not substitute his or her view for that of the issuing judge … The standard is whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of search … Said in another way, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could — not would — have issued …

The reviewing court does not undertake its review solely on the basis of the ITO that was before the issuing judge. The reviewing court must exclude erroneous information included in the original ITO, but may also consider, within limits, additional evidence adduced on the voir dire to correct minor errors in the ITO. Amplification evidence corrects good faith errors of the police in preparing the ITO, but does not extend to deliberate attempts to mislead the authorizing judge … Evidence relied upon to amplify the record must be evidence available to investigators at the time the ITO was sworn, not information acquired later …

Warrant review is an integral part — a first step — in an inquiry into admissibility of evidence proposed for reception. It is not a trial and must not take on the trappings of a trial in which the truth of the allegations contained in the indictment is explored … In establishing the record for the purposes of review, what is to be excised from the ITO is information that is erroneous, not information that is correct, or information that contradicts other information, or information with which the reviewing judge does not agree …

Warrant review requires a contextual analysis. Inaccuracies in the ITO, on their own, are not a sufficient basis on which to ground a finding of bad faith or an intent to mislead, much less to provide a basis on which to set aside the warrant … The existence of fraud, non-disclosure, misleading evidence, and new evidence are all relevant but are neither a prerequisite to, nor dispositive of, the review …

It is no part of the reviewing judge’s mandate to determine whether she would issue the warrant on the basis of the amplified record. Nor is it the reviewing judge’s role to draw inferences, or to prefer one inference over another. The inquiry begins and ends with an assessment of whether the amplified record contains reliable evidence that might reasonably be believed on the basis of which the warrant could have issued …[^31]

[107] On the latter point, in R. v. Araujo, the Supreme Court of Canada reiterated the test to be applied by the reviewing judge in the following terms:

In looking for reliable information on which the authorizing judge could have granted the authorization, the question is simply whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued. … An approach based on looking for sufficient reliable information in the totality of the circumstances appropriately balances the need for judicial finality and the need to protect prior authorization systems.[^32]

[108] In the instant case, Mr. Ryn submits that the ITOs filed in support of the warrants for the cellphone seized do not disclose any basis to believe that evidence in support of the offences would be located on his cellphone.

[109] Leaving aside for the moment the Supreme Court’s judicial recognition in cases like R. v. Fearon that “cell phones are the ‘bread and butter’ of the drug trade,” I reject Mr. Ryn’s contention for two broad reasons.

[110] First, there is a clear overlap between the statements contained in the ITOs and the evidence that was led before me on the voir dire. That is, much (but not all) of the information contained in the ITOs was also the subject of evidence before me. More to the point, central to the consideration of the sufficiency of the ITOs in question is the recognition that when Cst. Prieur set out in the ITOs that Mr. Ryn was arrested in connection with the offences in question, the issuing justice was in effect being told that there were grounds to arrest him.

[111] As such, and without repeating all of my analysis on the issue of grounds to arrest, my view of the evidence leading to my conclusion that the arresting officer’s belief that Mr. Ryn had committed the offences in question was objectively reasonable in the circumstances of the instant case also informs my consideration of whether “there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued.” Put conversely, as Mr. Pollock essentially conceded in argument before me, had I found that there were no reasonable grounds to arrest Mr. Ryn for the offences in question, then, for much of the same reasoning, that conclusion would negatively affect the consideration of the sufficiency of the ITOs. The reverse is true also.

[112] Accordingly, I do not accept the submission that the statements contained in the ITOs were misleading.

[113] Second, I agree with the submissions of Mr. Pollock that the search warrant case before the court here is somewhat atypical in that it does not involve a confidential informant. Unlike most drug cases that come before the courts, the instant case is not one where the ITO sets out information seeking to confirm whether an offence has taken place. In the instant case, we know that the importing of the fentanyl took place. The evidence of the offence has already been seized.

[114] As such, the cases provided to the court by the applicant are largely distinguishable on the basis that those cases do not start with the unquestionable fact that an offence has been committed and they do not start with the arrest of the person who is the subject of the warrant.

[115] In contrast, in the instant case, Mr. Ryn was arrested, his cell phone was seized, and he was charged. The police sought to search his cellphone to gather information. The police then sought judicial authorization to facilitate their investigations. Their intent was, in my view, entirely in keeping with the comments made by the Supreme Court of Canada in CanadianOxy Chemicals Ltd. v. Canada (Attorney General) concerning the purpose of the search warrant provisions set out in the Code:

A primary, though not exclusive, purpose of the Criminal Code, and penal statutes in general, is to promote a safe, peaceful and honest society. This is achieved by providing guidelines prohibiting unacceptable conduct, and providing for the just prosecution and punishment of those who transgress these norms. The prompt and comprehensive investigation of potential offences is essential to fulfilling that purpose. The point of the investigative phase is to gather all the relevant evidence in order to allow a responsible and informed decision to be made as to whether charges should be laid.

At the investigative stage the authorities are charged with determining the following: What happened? Who did it? Is the conduct criminally culpable behaviour? Search warrants are a staple investigative tool for answering those questions, and the section authorizing their issuance must be interpreted in that light.

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. See R. v. Church of Scientology (1987), 31 C.C.C. (3d) 449 (Ont. C.A.), p. 475:

Police work should not be frustrated by the meticulous examination of facts and law that is appropriate to a trial process. ... There may be serious questions of law as to whether what is asserted amounts to a criminal offence. ... However, these issues can hardly be determined before the Crown has marshalled its evidence and is in a position to proceed with the prosecution.[^33]

[116] In the instant case, and in keeping with the Supreme Court’s judicial recognition of the use of cellphones to facilitate the drug trade, I regard it as a matter of common sense that someone engaged in the drug trade would need to communicate, and in the 21st century of our days, the quintessential communication device is the cellphone. In the instant case, it would seem obvious that there was an order placed for the purchase and delivery of a quantity of fentanyl. The placing of that order would require communications with the supplier. Apparently, that order was placed with a supplier or entity operating out of a foreign country, being the People’s Republic of China. Communication with that foreign entity in China was not going to take place in person over a meeting at the Tim Hortons at the corner of Howard and Tecumseh. Rather, as a matter of common sense and reasonable inference, those communications would likely be conducted my means of electronic devices, like a cellphone. The delivery of that order was processed under the guise of a legitimate commercial shipping transaction. That overseas delivery would require the parties to arrange, organize, and coordinate the delivery. As a matter of common sense and reasonable inference, all of that would require communication. Again, that was not going to happen at the Tim Hortons.

[117] Given that the question before me is simply whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued, I am unable to conclude that that question can be answered in the negative.

[118] In that vein, I agree with the submissions of Mr. Pollock on behalf of the Crown that the observations made by Dambrot J. in the context of R. v. Yabarow also apply to the circumstances of the instant case.

In the circumstances of a case like this, where there is evidence that a person committed a murder, it is no leap of logic to conclude that there is a probability that his or her cell phone communications, photographs, videos and the like will contain evidence of the offence. Evidence of the person’s whereabouts, associations, and communications in the period immediately before and after the crime will invariably have evidentiary value in relation to the crime. Undoubtedly, in some respects, the proposed search here was wide, but it was very far from unlimited. The search was limited by time, subject matter and purpose. And the categories of evidence sought were logically connected to the offence. I do not see how I could say that the judicial officers in question could not have issued the production order and search warrant in issue.[^34]

[119] For all of these reasons, I must conclude that Mr. Ryn has failed to satisfy his onus that the warrants in question should not have been issued, as well as his burden of establishing that his Charter rights have been infringed.

If there was a violation of the rights guaranteed Mr. Ryn under either ss. 8 or 9 of the Charter, should the evidence obtained as a result be excluded from admission at trial pursuant to s. 24(2) of the Charter?

[120] In light of my conclusions that the rights of Mr. Ryn under ss. 8 and 9 of the Charter were not violated, I need not address the question of the exclusion of the evidence seized under section 24(2).

[121] If I am wrong, however, and the rights of Mr. Ryn under ss. 8 or 9 were violated, I would have gone on to find that the evidence should be admitted under s. 24(2) of the Charter. However, there is little point in setting out a full s. 24(2) analysis because in the event that my conclusion that there was no violation of Mr. Ryn’s ss. 8 and 9 rights are held to be in error, it is doubtful that my s. 24(2) analysis would be of assistance on appellate review.

Conclusion

[122] For all of the above reasons, I find that the police had reasonable grounds to arrest Mr. Ryn on February 27, 2017. As such, in my view, the applicant’s detention and arrest were lawful and not arbitrary in nature. Accordingly, I find that the RCMP officers committed no violation of Mr. Ryn’s rights under s. 9 of the Charter.

[123] Further, I find that the search of Mr. Ryn incident to his arrest and the resultant seizure of Mr. Ryn’s cellphone were lawful and reasonable in the circumstances. As such, I find no breach of the applicant’s s. 8 Charter rights by reason of the seizure of his cellphone.

[124] Further, I find that Mr. Ryn has failed to satisfy his onus that the production order and the search warrant in respect of his cellphone should not have been issued. As such, I find no breach of the applicant’s s. 8 Charter rights by reason of the search of his cellphone.

[125] Accordingly, for all of these reasons, I find that there has been no breach of the applicant’s rights under either ss. 8 or 9 of the Charter. Accordingly, the application to exclude evidence pursuant to s. 24(2) of the Charter is dismissed. The evidence as to the contents of Mr. Ryn’s cellphone and other evidence seized by the police upon the arrest of Mr. Ryn is admissible in evidence at trial.[^35]

Original signed by Justice J. Paul R. Howard

J. Paul R. Howard

Justice

Delivered Orally: March 12, 2020

COURT FILE NO.: CR-18-4305

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MARK JOHN RYN and BETH ANN VANDELINDER

REASONS FOR RULING ON CHARTER APPLICATION

Howard J.

Delivered Orally: March 12, 2020

[^1]: Criminal Code, R.S.C. 1985, c. C-46. [^2]: Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”). [^3]: The two counts of conspiracy are each alleged to have occurred between August 30, 2016, and February 27, 2017. The possession for the purpose of trafficking, as set out in the third count, is alleged to have occurred on or about February 27, 2017. [^4]: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. [^5]: Ms. Vandelinder and her counsel, Mr. Rooke, briefly appeared before me on the morning of the second day of the hearing of the voir dire only to confirm their position in the matter and to ask that their attendance be excused until trial, which I permitted. [^6]: The exact amount of fentanyl contained and removed from the package was unclear on the evidence available at the voir dire. Initially, it was believed that there was 14 grams of fentanyl in the EMS package; however, it appears that weight may have included the packaging itself. The evidence of Cpl. Rudiak was that the amount of fentanyl was between six and 14 grams. [^7]: A copy of the operational plan was marked as Exhibit no. 7 on the voir dire before me. [^8]: A copy of the 1TO was marked as Exhibit no. 1A on the voir dire before me. [^9]: A copy of the General Warrant was marked as Exhibit no. 1 on the voir dire before me. [^10]: A copy of the floor plan of the basement of the 4265 Mitchell residence was marked as Exhibit no. 5 on the voir dire before me. [^11]: See, for example, the same principles in the context of a warrantless search: R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at pp. 1156-1157 and 1166-1168. [^12]: R. v. Onyedinefu, 2018 ONCA 795, at para. 8. [^13]: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 15-17. [^14]: R. v. Robinson, 2016 ONCA 402, 336 C.C.C. (3d) 22, at para. 45. [^15]: R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, at paras. 21-23. [^16]: R. v. Labelle, 2016 ONCA 110, at para. 10. See also R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at paras. 21-22. [^17]: R. v. Canary, at para. 30. [^18]: R. v. Robinson, at para. 50. [^19]: R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 12, citing R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 278; and R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at para. 10. [^20]: Ibid., at paras. 16-17, citing R. v. Beare, 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387, at p. 404; and R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1146. [^21]: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59. [^22]: R. v. Williams, 2013 ONCA 772, at paras. 22-25. [^23]: A copy of the 1TO was marked as Exhibit no. 11A on the voir dire before me. [^24]: A copy of the production order was marked as Exhibit no. 11 on the voir dire before me. [^25]: A copy of the 1TO was marked as Exhibit no. 12A on the voir dire before me. [^26]: A copy of the search warrant was marked as Exhibit no. 12 on the voir dire before me. [^27]: R. v. Fearon, at paras. 48-49. [Emphasis added.] [^28]: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, 33 C.C.C. (3d) 1, at para. 32. [^29]: R. v. Collins, 1989 CanLII 264 (ON CA), [1989] O.J. No. 488, 48 C.C.C. (3d) 343 (C.A.), at para. 38; and R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 83. [^30]: R. v. Campbell, 2010 ONCA 588, 261 C.C.C. (3d) 1, at para. 45. [^31]: R. v. Sadikov, at paras. 84-89. [Citations omitted.] [^32]: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 51 and 54. [Emphasis in original.] [^33]: CanadianOxy Chemicals Ltd. v. Canada (Attorney General), 1999 CanLII 680 (SCC), [1999] 1 S.C.R. 743, 133 C.C.C. (3d) 426, at pp. 752-753 [cited to S.C.R.]. [^34]: R. v. Yabarow, 2019 ONSC 3669 (S.C.J.), at para. 23. [^35]: A copy or a summary of the contents of the messages in question, or some of the messages, was included in one of the briefs filed by the Crown. In closing argument, Ms. Carroccia took the position that the material ought not to have been included and that I should not have regard for it. Without commenting on whether it was or was not appropriate to file that material with the court on the pretrial applications, I confirm that in the course of my consideration and analysis of the issue, I did not read any of the material in question, and it played no part in my decision.