A. OVERVIEW

[1] The Applicants Goorahoo and Menjivar are jointly charged in a nine count Indictment that is awaiting trial in this Court. All of the alleged offences are firearms-related, including three counts of manufacturing prohibited and restricted firearms contrary to s. 99(1) of the Criminal Code, one count of possession of a loaded prohibited firearm contrary to s. 95(1), and two counts of possessing over-capacity magazines contrary to s. 92(2).

[2] The present Application alleges that the police violated s. 8 of the Charter of Rights when they executed a search warrant at the Applicants’ residential premises on June 21, 2018. The remedy sought is the exclusion of all the firearms-related evidence seized by the police during the search, pursuant to s. 24(2) of the Charter of Rights.

[3] The result of this pre-trial motion will have substantial impact on the outcome of the pending trial. I may or may not be the trial judge. However, the parties have agreed to be bound by my decision on the pre-trial motion, absent some material change in circumstance.

[4] The Crown tendered substantially its entire case before me during the first three days of the pre-trial motion, calling nine police witnesses and filing a number of documents, crime scene videotapes and photographs, and an Agreed Statement of Fact. I heard argument on the fourth day and reserved judgement.

[5] The fundamental issue on this Charter motion concerns the present state of s. 8 search and seizure law relating to the discovery of multiple residential units within a dwelling house during the execution of a search warrant. The police had obtained an admittedly valid search warrant for a dwelling house located at 25 Duntroon Crescent in Toronto. This is a single storey suburban bungalow where one of the targets of a lengthy police investigation resided. There were abundant grounds to search the residence of that target, one Adrian Scott (who is also awaiting trial in this Court on a separate Indictment). There was nothing to indicate that the residence contained separate units. However, upon execution of the search warrant, the police discovered what appeared to be two residential units and two families residing in the single storey bungalow, one on the main floor and one in the basement. The degree of access between the two units, and the extent of the target Scott’s access to the two units, was unclear to the police. They proceeded to search the entire dwelling house and seized a great deal of incriminating evidence from the basement unit, where the two Applicants resided. The police learned at some point during the search that the target Scott resided in the main floor unit. The two Applicants were previously unknown to the police.

[6] The issue on the s. 8 Charter motion is whether the police should have stopped their search of the basement unit, at some point shortly after their entry onto the premises, and sought a further search warrant specifically authorizing a search of the basement unit. This is not an easy question to resolve because there are few, if any, authoritative decisions on the point. These are my Reasons for Judgement in relation to that issue.

B. FACTS

(i) The search warrant and its supporting Information

[7] The warrant authorizing the search of the premises in question was granted by Justice R. Kelly of the Ontario Court of Justice on June 15, 2018. It described the premises to be searched as follows: “dwelling-house and any unattached structures at 25 Duntroon Crescent, Toronto.” A police surveillance photograph of these premises had been included in the search warrant Information and it showed what appeared to be a typical one storey suburban bungalow. The reason for including this photograph in the Information was because a wiretap intercept had disclosed the target Adrian Scott directing one Richard Donison to “that tent”, located at his home, in order to pick up a bag of ammunition. The police surveillance photograph showed a tent-like structure in the driveway of the premises and, therefore, justified extending the search warrant to “any unattached structures”.

[8] The search warrant Information was sworn by Det. Cst. Tahiraj of the Toronto Police Organized Crime Unit. It is a lengthy detailed 159-page document. Part of the reason for its length and detail is that Det. Cst. Tahiraj was summarizing a large police investigation into criminal gang activity in the Weston Road area of north-west Toronto, known as “Project Patton”. The other reason for its length and detail is that it was an omnibus Information relating to ten separate targets, seven separate residences, and three separate cars. The affiant carefully separated out his grounds relating to each target and each place to be searched. However, there was some inevitable overlap due to the allegation that the various targets were all participating in a single criminal organization, contrary to s. 467.11 of the Criminal Code, by means of trafficking in controlled substances and possessing firearms.

[9] A wiretap authorization relating to “Project Patton” had been granted on March 6, 2018 and a second authorization was granted on April 29, 2018. The second authorization was to expire on June 27, 2018. Justice Kelly granted a number of search warrants, including the one in this case, on June 15, 2018 and authorized their execution at any time during the next week, up until midnight on June 22, 2018. This allowed the police to set the time for the “take down” date (when a large number of search warrants and related arrests were to be carried out), so that they occurred shortly before the second wiretap authorization was to expire.

[10] In brief summary, the background to “Project Patton” set out in Det. Cst. Tahiraj’s search warrant Information was as follows:

There is a group of individuals located in the west end of Toronto engaged in organized criminal activity. This gang has long been known as the Five Point Generals. The Five Point Generals are primarily involved in the trafficking of drugs and firearms and have completely taken over the Weston Road Community. This area includes Weston Road from south of Highway 401 to St. Clair Avenue West. The Five Point Generals regulate the sale of street level drug distribution within this area. It is believed that the Five Point Generals are expanding their criminal activities to other parts of Toronto as well as other cities throughout the Province of Ontario.

The Five Point Generals and its subset group the G2M/SSWR gang are in conflict with a number of other criminal organizations. The homicide of an alleged G2M/SSWR member along with a number of shootings within the Weston Road community is believed to be a direct result of the conflict with rival gangs. This investigation has uncovered links to two (2) homicides and twelve (12) shootings related to the conflict between the Five Point Generals and their rivals.

The leading members of the Five Point Generals run a subset group who are referred to as both G2M (“Goonies to Mobsters” or “Gang to Money”) and SSWR (South Side Weston Road). The G2M/SSWR gang work with the Five Point Generals primarily in the trafficking of drugs within the Weston Road community. In an attempt to insulate themselves, older members of the Five Pont Generals use younger G2M/SSWR gang members to conduct street level drug transactions. Members of the G2M/SSWR gang have been involved in a number of recent violent acts which include numerous shootings against rival gang members. It is believed that these violent acts stem from a power struggle over territory within the Weston Road community.

The Five Point Generals are a large and organized group. Through acts and threats of violence the group is pushing other street gangs our of the community forcing them to operate in other parts of the city. The offences of drug and firearms trafficking provide both a direct and indirect material and financial benefit to the Five Point Generals, its subset group the G2M/SSWR gang and their associates. I therefore believe that the Five Point Generals is a criminal organization.

The focus of this investigation is to acquire admissible evidence identifying the leaders, associates and contraband suppliers of this criminal organization so that investigative steps may be taken to halt the violence and related criminal activity that this gang is perpetrating in the Weston Road Community.

[11] I will only summarize the affiant’s grounds to arrest Adrian Scott and to search his premises, as he was the target who led the police to 25 Duntroon Crescent where the present search took place on June 21, 2018.

[12] Scott had both a criminal record and outstanding charges that related to firearms. In May 2015 he was convicted of possessing a loaded prohibited or restricted firearm. The mandatory s. 109 prohibition order was made at the time of sentencing. In January 2017, Scott was again charged with a number of firearms offences, including use of a firearm while committing an indictable offence and possession of a firearm in violation of the 2015 prohibition order. He was on bail for these latter offences at the time of the “Project Patton” investigation in 2018. Scott was associated with the 25 Duntroon Crescent address as it was the address on his suspended driver’s license and it was the address on his terms of bail. The police conducted 22 bail compliance checks at this address during 2017. On all 22 occasions, Scott was “either home being compliant or out with his surety.” On March 25, 2018, as noted above, Scott directed another target (Richard Donison) to the tent in the driveway of 25 Duntroon Crescent in order to pick up a bag of ammunition. In other words, there was substantial evidence that Scott resided at 25 Duntroon Crescent and that he had sufficient control of the premises to allow him use of a tent-like structure in the driveway, including for criminal purposes.

[13] Scott was named in the “Project Patton” wiretap authorizations and his telephone calls were intercepted. The affiant set out summaries of numerous calls in the search warrant Information, separating them into calls that were “firearms related”, calls that related to “trafficking controlled substances”, and calls “relating to criminal organization”. In relation to the first category, the March 25, 2018 calls (already summarized above) were set out, inferring that Scott was supplying ammunition to Donison. The affiant then summarized three further calls between Scott and Donison on May 10th, 14th and 16th, 2018 that appeared to relate to firearms (as well as drug trafficking). Based on these calls, the affiant stated that he believed three of the targets (Scott, Donison, and one Hakeem Mohamed) “work together in the trafficking of controlled substances” and that “the group puts money together to purchase firearms” and that Scott “is attempting to get new firearms to replace ones that have been recently seized.” The affiant noted, in this regard, that “a loaded firearm was located” and was seized by the police at the time of Scott’s most recent arrest, in January 2017. In addition, on April 16, 2018 a loaded Glock handgun was seized by the police from an apartment building where Donison resided. It was found hidden in a 17th floor common area near Donison’s apartment. Subsequent wiretaps of Donison’s calls indicated that the seized Glock handgun belonged to him. The above calls between Donison and Scott referred repeatedly to “losing three [firearms]” and to the fact that “there should always be two [firearms] no matter what.” The affiant inferred that Scott and Donison were “attempting to purchase a firearm(s) through an unknown person that has been referred to as Scott’s neighbour.” There were repeated references in the summarized calls to this “neighbour” of Scott’s, as the potential source for their firearms, but there is nothing to indicate the identity of the “neighbour” who was not named by either Scott or Donison in the intercepted calls.

[14] I will not summarize the numerous wiretap intercepts relating to Scott’s alleged drug trafficking activities or relating to the alleged criminal organization, as they are not directly relevant to the present s. 8 Charter motion. The affiant concluded that “the background information” about the named targets, together with the “relevant intercepts” set out in the search warrant Information, provided him with “reasonable grounds to believe that either drugs and/or firearms will be located at the places to be searched.” He stated that “members of the criminal organization and their associates have been engaging in the trafficking of narcotics and firearms throughout the entire investigation and continue to do so.”

[15] The Applicants concede that the above-summarized search warrant Information sets out sufficient grounds to justify a search of Adrian Scott’s residence. Their submission is that a second unrelated residence was discovered inside 25 Duntroon Crescent, upon execution of the search warrant. There is nothing in the search warrant Information about that second or inner residence in the basement where the two Applicants resided.

(ii) The briefings prior to execution of the search warrant

[16] The search warrant was not executed by members of the “Project Patton” investigative team nor was the affiant, Det. Cst. Tahiraj, present when the warrant was executed. Presumably due to the large number of arrests and searches being carried out on the “take down” date, the “Project Patton” investigators sought assistance from other police units. In this case, the initial entry into the 25 Duntroon Crescent premises was to be carried out by an RCMP Tactical Team. After the premises were secured, the RCMP officers were to withdraw and the search was to be carried out by a team of detectives from the Toronto Police 23 Division Major Crime Unit. None of these officers had any prior connection with “Project Patton”, with the target individuals, or with the premises located at 25 Duntroon Crescent. None of them had listened to the wiretaps or read the 159-page search warrant Information. They relied on the instructions they were given at briefings and they relied on Kelly J.’s search warrant.

[17] The RCMP Tactical Team was led by Sgt. Duncan and the 23 Division Major Crime Unit search team was led by Det. Allen. These two senior officers were briefed separately by the “Project Patton” investigators, on the day prior to the search. They were provided with the search warrant and with a written package of information about the target Adrian Scott. In particular, they were given a photograph of Scott, his criminal record, and his outstanding charges. They were advised that he was expected to have a firearm and that he was “arrestable” for conspiracy, participating in a criminal organization (the Five Point Generals), trafficking controlled substances, and firearms trafficking. In addition, they were advised that Scott lived at the 25 Duntroon Crescent premises and that he may have family living with him, including children. Finally, they were given a photograph of the house to be searched and knew that it had both a front door and a side door.

[18] Det. Allen is an experienced officer, having been a police officer for 24 years, including 13 years as a detective. He agreed that in the case of smaller investigations he will be familiar with the entire search warrant Information, when executing a search warrant. However, this “Project Patton” investigation was so large and there were so many security concerns that he had to rely on the above summarized briefing he received from the investigators. He also had a Central Command phone number in order to call the investigators for further instructions, if needed.

[19] Det. Allen met with his search team officers at 3:00 am on June 21, 2018 and briefed them on the above summarized matters. He had copies of the search warrant and he reviewed it with the officers. His search team then met up with the RCMP entry team shortly after 4:00 am. This particular search had been assessed as “high risk” because of Scott’s background and the expectation that he would be on the premises and in possession of firearms. The RCMP Tactical Team was trained in “high risk” entries into premises and was equipped to carry out these entries. Sgt. Duncan testified that he has done “dozens” of them.

[20] The two police teams proceeded to 25 Duntroon Crescent. The Major Crime Unit search team waited nearby while the RCMP Tactical Team entered the premises at 5:00 am. It took about ten minutes to secure every room inside the premises. At 5:14 am Det. Allen was advised by Sgt. Duncan that his search team could enter and take over from the RCMP entry officers. Sgt. Duncan and Det. Allen had conducted a joint “walk through” of the entire premises between 5:10 am and 5:14 am, before the search team officers entered.

(iii) The entry into 25 Duntroon Crescent

[21] Six Toronto police officers from the search team and three RCMP officers from the entry team testified before me on the s. 8 Charter motion. I should make some general observations at the outset about the reliability of certain parts of their accounts.

[22] This search took place on June 21, 2018, that is, some two years and three months before the officers testified on the pre-trial motion. Only one officer, Det. Cst. Day of the search team, made contemporaneous notes as she had been given the role of “central notes taker.” All the other officers were actively involved in the “dynamic entry”, making arrests, or searching. Of necessity, these other officers made up their notes after the events were over and they often noted only the major developments. For many of the officers, executing search warrants and making arrests are relatively frequent routine occurrences. Accordingly, when pressed for detailed recollections of small steps or minor events on this particular night, they often had no real recollection and no note of the requested detail. As a result, they tended to testify as to what they “thought” happened or what they “would” have done.

[23] I make these observations not to be critical but to be realistic about the reliability of certain details or nuances in the factual narrative. Fortunately, there are contemporaneous photographs and videotapes taken by the Toronto police search team. They are time-stamped, they were admitted pursuant to an Agreed Statement of Fact, and they are clear and reliable. Given the existence of these photos and videotapes, and given my concerns about the reliability of some of the detailed recollections sought from the witnesses, I will not refer to some of the details that the witnesses tried to recall. These parts of the evidence were not very useful or necessary in the end.

[24] The three RCMP entry officers who testified were only part of the larger team of 11 RCMP officers who carried out the “dynamic” or “high risk” entry into 25 Duntroon Crescent. They divided into two separate groups because there was a front door and a side door and the plan was to enter both of these exterior doors at the same time. The photographs and videotapes indicate that there was a single exterior hydro meter and single mail box for the entire house and there was no separate door bell, mail box, mail slot, or municipal address at the exterior side door. In other words, nothing about the house indicated the existence of two separate units inside the premises. The tent structure in the driveway that had apparently been used for ammunition trafficking (as summarized above) was still there, with two cars parked in front of it. Both exterior doors were locked and force was used by the RCMP officers to break them open.

[25] The main points emerging from the accounts of the three RCMP officers who testified on the s. 8 motion were as follows:

• their role and their objective was to look for people and to secure the premises from any threat, before the search team entered;

• as a result of this limited role, they did not look for or collect or identify any evidence to be seized and they did not identify the occupants of the premises;

• most importantly for purposes of the present s. 8 Charter motion, they were not expecting to find separate residences or units within the house. However, upon entry they found what appeared to be an upstairs unit and a downstairs unit, with some degree of separation and some degree of access between them. In this regard, the exterior side door to the house gave onto a landing which led to one set of interior stairs going down to the basement and also led to a second smaller set of interior stairs going up to the main floor. There was an interior door at the top of these stairs (going into the main floor unit) and there was another interior door at the bottom of the stairs (going into the basement unit). It can be inferred that both of these interior doors must have been locked and that the RCMP officers used force to break them open (damage can be seen to both doors in the police photos and videotapes). It can also be inferred that anyone with the keys could have access to these units, even if the exterior side door and the two interior doors at the top and bottom of the stairs were locked. In this regard, there was a laundry room at the bottom of the stairs just outside the basement unit, which appeared to be for use by the entire house. In addition, there was a furnace and water heater room and an electrical panel room, both located inside the basement unit, which also appeared to serve the entire house;

• lastly, the RCMP officers found two adults (a man and a woman) and two children in the upstairs unit and they found two adults (a man and a woman) and one child in the basement unit. They did not know whether the target Adrian Scott was present as it was not their role to find him and they did not identify either of the two male adults who were present. Everyone on the premises was cooperative. They were handcuffed and told to lie on the floor by the RCMP officers.

[26] Sgt. Duncan was questioned about whether he observed a handgun magazine on the carpet in the living room area of the basement unit. As I will explain below, there clearly was an unloaded handgun magazine in plain view in this location. Sgt. Duncan testified that their role was to secure the premises from any threat and if he had seen a firearm, or a magazine for a firearm, he “would have attended to it” and he “would have pointed it out” to Det. Allen when they did the “walk through” between 5:10 am and 5:14 am. Sgt. Duncan did not recall seeing the magazine or pointing it out to Det. Allen. I should note that Sgt. Duncan also testified that he made “no real observations” of this living room area in the basement unit and he could not describe any of its features. The RCMP officer or officers who secured the living room area of the basement unit and who stood guard over the detained male found in this room (the Applicant Goorahoo) did not testify on the motion before me.

(iv) The search of 25 Duntroon Crescent: Det. Allen’s account

[27] Det. Allen is by far the most important of the six Toronto search team officers who testified on the s. 8 Charter motion. It was Det. Allen who was in charge of the search team and he made the critical decision to proceed with a search of the entire house, after it was discovered that there appeared to be two residential units within the house. Accordingly, I will set out his evidence in some detail.

[28] At 5:10 am, Det. Allen conducted a “walk through” with Sgt. Duncan in order to see where people were located within the premises and to obtain any observations made by the RCMP officers. In my view, there were three important things that Det. Allen learned on this initial “walk through”, according to his testimony. First, he saw that there appeared to be two separate residential units in the house with two adults and two children in the upstairs unit and two adults and one child in the basement unit. Second, he saw that the target Adrian Scott was not present. Third, he was advised that there was a firearm magazine in plain view on the living room floor and he saw the magazine himself during the “walk through”.

[29] In relation to the first observation summarized above – the two separate units – Det. Allen noted the following details: the exterior side door accessed both units; there was no separate municipal address at this side door; the basement unit could also be accessed from the main floor unit; the three separate doors that led to this basement unit (one exterior door and two interior doors) all had locks and they had all been forcibly breached by the RCMP upon entry; there was a shared laundry room in the basement at the foot of the stairs located just outside the door to the basement unit; there was a furnace and water heater room for the entire house located inside the basement unit; and there was a single exterior hydro box for the entire house (it is unclear whether Det. Allen noticed the electrical panel room for the entire house which was also located inside the basement unit).

[30] In relation to the second observation summarized above – Scott not being present – Det. Allen explained that he had no prior information as to where the target Adrian Scott lived in the house. In addition, he did not learn where Scott lived in the house during the initial “walk through” as he was simply being shown who was present. He was not provided with the names of the four adults found in the premises at the time of this initial “walk through” because he did not stop to question them. He delegated the task of determining their identities to the search team officers, after completing the “walk through,” and learned their names later on from these officers. Det. Allen had assigned Det. Cst. Day the role of “central notes taker” and she accompanied him on the “walk through”, while making contemporaneous notes. Her note about the “walk through”, from 5:10 am to 5:14 am, indicates that two adults and two children were upstairs, two adults and one child were downstairs, and that “T1 not home” and “V1 not O/S”. Det. Cst. Day testified about these notes and explained that the search team had a separate search warrant for an Infiniti car associated with Scott (referred to as “V1” or “vehicle one”), that this car was not parked in the driveway (referred to as “not O/S” or “not on scene”), and they concluded that Scott (referred to as “T1” or “target one”) was “not home” because his car was not parked at the house and he was not one of the two male adults present (it will be recalled that the search team had Scott’s photograph). Det. Allen testified that he later learned the identities of the two adults upstairs and he understood that the male, one Damian Campbell, was a relative of Scott. At some point, Det. Allen asked Campbell “where Scott was” and Campbell replied that he did not know. It was during the ensuing search of the upstairs unit by Det. Cst. Xiouris that Det. Allen learned where Scott resided in the house because he was advised that Det. Cst. Xiouris had seized cash in an upstairs bedroom and that it was “Scott’s bedroom” (as will be explained below). This was some time shortly after 5:44 am, which was around the time when the two Applicants were being arrested in the downstairs unit because of firearms related seizures made by Det. Cst. Homiak in the downstairs bathroom (as will also be explained below).

[31] The third principal observation made by Det. Allen during the initial “walk through” was that there was a firearms magazine in plain view on the living room carpet in the basement unit. There is no dispute that this magazine was on the living room carpet in the basement unit, as it is depicted in Det. Cst. Williams’ photographs and videotapes and it was seen by all of the Toronto search team officers who were in the area. The only dispute is exactly when Det. Allen saw it and whether it was during his initial “walk through” with Sgt. Duncan (who does not recall seeing it and pointing it out, as explained above). Det. Allen described the magazine in some detail as a handgun magazine that was similar to the ones used by the police, that it was unloaded as no bullets could be seen at the top, and that there was a brass object on the floor nearby that initially looked to him like a shell casing. He also testified that when he first saw the magazine, the Applicant Goorahoo was still lying on the floor nearby in the living room area, which is where the RCMP officers put him before handing him over to the Toronto search team officers (who then allowed him to stand up and move away from the living room floor). This detail tends to infer that Det. Allen saw the magazine at a time when the RCMP officers were still in control of the premises. Det. Allen believed that an RCMP officer, either Sgt. Duncan or another RCMP officer who was present in the living room area, pointed out the magazine on the floor during the “walk through.” Det. Cst. Day corroborated this latter point. In addition, Det. Allen made a note stating, “info, pistol magazine in plain view on floor living room”. The video of the scene in the basement, prior to the search, shows the magazine and the nearby brass object in plain view on the living room carpet at 5:24 am, which would be 10 minutes after the “walk through” ended at 5:14 am.

[32] In all the above circumstances, Det. Allen made the decision to proceed with a search of the entire house. He relied mainly on the fact that the search warrant authorized a search of the entire “dwelling house and any unattached structures at 25 Duntroon Crescent”. He took this description to include the basement unit, the upstairs unit, the tent-like structure in the driveway, and a shed in the back yard (Det. Allen went on to personally search both of these exterior units). In addition, Det. Allen relied on the fact that there was access between the upstairs unit and the basement unit and that the target Adrian Scott could have keys to the various doors leading to the basement unit. Det. Allen knew little about the two adults in the basement, he did not yet know whether Scott resided upstairs or downstairs, and Scott himself was not present. Finally, the handgun magazine in plain view on the living room carpet of the basement unit was an additional factor, although Det. Allen made it clear that this was not critical to his decision to proceed with a search of the entire premises.

[33] Det. Allen testified that he could not recall ever encountering this situation before, where he unexpectedly discovered two units within a residence that was to be searched. He knew of no police training on the topic. Cpl. Kelly of the RCMP gave somewhat similar evidence in response to counsel’s suggestion that it was a “unique” situation. Det. Allen concluded, in the above circumstances, that there was no need to suspend the search and seek a separate search warrant for the basement unit and that the existing search warrant covered the entire municipal address with its various units. He agreed that there was no urgency or potential for loss of evidence because the four adults found on the premises had all been detained. He also agreed that he did not know what was set out in the search warrant Information, if anything, about the possible existence of multiple units inside 25 Duntroon Crescent.

[34] The chronology that ensued, once Det. Allen had decided to proceed with the search, was that at 5:14 am he instructed Det. Cst. Williams to take still photographs and a videotape of the premises and he instructed his search team to enter the home and begin the search. He assigned three officers to the basement unit (Det. Csts. Homiak, Ellis and MacIsaac) and three officers to the main floor unit (himself and Det. Csts. Day and Xiouris). Det. Allen was initially upstairs (with Det. Csts. Day and Xiouris). He explained the search warrant to the two adults upstairs, obtained their names, and told them that they were detained and not arrested. He then returned to the basement unit where Det. Cst. Ellis had been speaking to the two Applicants while Det. Cst. Williams was taking photographs. Det. Allen went outside and searched the tent-like structure in the driveway (which he called a “temporary garage”) and he searched the shed in the back yard. He found nothing in these two outside units. He returned to the house and was advised that Det. Cst. Homiak had seized handgun parts in the bathroom of the basement unit. Det. Allen instructed the officers to arrest the two Applicants for possession of a firearm. He estimated that this occurred at a fairly early stage, about 20 minutes after the search team had entered the house (as will be further explained below).

[35] Det. Allen phoned the Central Command number at this point, to update the “Project Patton” investigators about the seizure of gun parts in the basement, about the two units in the house, and about Adrian Scott’s absence from the premises. He did not ask whether a further search warrant should be obtained. Arrangements were made for a relative to pick up the two Applicants’ child and they were transported to the police station by uniform officers. The search of the house continued. At some point, as will be summarized below, Det. Cst. Xiouris advised Det. Allen that cash had been found in Adrian Scott’s bedroom upstairs and Det. Cst. Homiak advised that a fully completed firearm had been found in a ceiling vent in one of the basement bedrooms. An exit video was taken by Det. Cst. Williams at 7:45 am and Det. Allen turned over the residence to the two adults on the main floor (who had not been arrested) at 7:52 am.

(vi) The search of 25 Duntroon Crescent: the accounts of the other search team officers

[36] I will briefly summarize the more significant points that emerged from the evidence of the five Toronto search team officers who were under Det. Allen’s direction. Det. Cst. Day, the “central notes taker”, accompanied Det. Allen on the initial “walk through” between 5:10 am and 5:14 am, as summarized above. Her next task was to get the names and addresses of the four adult occupants and to make diagrams of the main floor and basement units that were being searched. She began on the main floor. When drawing a diagram of the main floor, she was told by the occupants that a certain bedroom was where Adrian Scott resided and so she described it as the “target bedroom” on her diagram.

[37] While Det. Cst. Day was completing the above tasks on the main floor, she was advised that Det. Cst. Homiak had located several firearms parts in the basement and that arrests had been made. As a result, when she went downstairs she was initially involved in the arrest, and the search incident to arrest, of the Applicant Menjivar because Det. Cst. Day was the only female officer at the scene. This was between 5:48 am and 5:51 am. Det. Cst. Day then completed her diagram of the basement unit. The Applicant Menjivar told her which bedroom she occupied (together with her daughter), and which bedroom the Applicant Goorahoo occupied, and Det. Cst. Day noted this information on the diagram (Exhibit 3B). There were three separate bedrooms in the basement unit, as well as a kitchen, bathroom and living room.

[38] Det. Cst. Homiak has some knowledge and experience with firearms because he is a hunter and target shooter in his private life. He was the officer who carried out the most significant searches in the basement unit. He was advised by Det. Allen that a magazine had been found in the living room area of the basement and that two adults and a child were present in the basement. Det. Cst. Homiak entered the premises at 5:14 am and proceeded to the basement. The firearm magazine was clearly visible on the floor of the living room area upon his initial entry. He recognized the brass object on the floor near the magazine as a “bore sighter tool,” used to check the sights on a firearm. He did not want to touch or seize these objects until they were photographed by the exhibits officer, Det. Cst. Williams, in the location where they were found. Other officers from the search team were dealing with the two adults who were present in the basement. Accordingly, Det. Cst. Homiak proceeded to the basement bathroom and began his search in that room.

[39] In the bathroom vanity, underneath the sink, Det. Cst. Homiak found a box containing numerous firearms components. In particular, he seized nine Glock magazines, five Glock slides with barrels, one handgun frame or receiver, and a number of handgun slide rails and trigger components. All of these parts were for 40 calibre handguns and all were marked with the Glock manufacturer label. In addition to these firearm parts or components, he found a “speed loader” which is a tool used to facilitate loading a magazine with ammunition. There were some other tools present in this location such as a screwdriver, file, and allen key. All of these items were photographed in the bathroom by Det. Cst. Williams before Det. Cst. Homiak seized them. These photographs are time-stamped at 5:51 am.

[40] Det. Cst. Homiak advised Det. Allen that he had found all the components for a complete firearm. As summarized above, it is at this point that Det. Allen instructed the search team officers to arrest the two Applicants. These arrests were carried out between 5:48 am and 5:51 am. In other words, the search team had been on the premises for about 34 minutes by the time the Applicants were arrested.

[41] Det. Cst. Homiak was not involved in the arrests. He proceeded to the living room area and seized the magazine and “bore sighter tool” that he had previously observed on the floor. There were also two tools nearby on the floor, namely, a drill bit and a file. Det. Cst. Homiak observed that the magazine was for a 40 calibre handgun. All of these items were photographed by Det. Cst. Williams in the location where they were found, before Det. Cst. Homiak seized them. These photographs are time-stamped at 5:49 am.

[42] Det. Cst. Homiak proceeded to the basement bedroom that is designated as “Goorahoo’s bedroom” on Det. Cst Day’s diagram (Exhibit 3B). The photographs and videotape of this room show a bed, two night stands, shelves, a laundry hamper, and clothing in the room. In the corner of the bedroom, in plain view beside one of the night stands, Det. Cst. Homiak observed a drill press and a vice on the floor. The drill press is plugged into an electrical outlet. Det. Cst. Homiak also observed plastic filings on the floor beside the drill press, as well as a drill bit, a wrench, and a key chuck. The black plastic filings appeared to Det. Cst. Homiak to be consistent with the polymer plastic used to make the Glock frame or receiver that he had seized in the bathroom. Once again, all of these items were photographed in the location where they were found.

[43] On top of one of the night stands beside the bed in this same bedroom, Det. Cst. Homiak found a 9mm Glock magazine in plain view. The magazine was loaded with ammunition. Beside the magazine was a “speed loader” tool. Det. Cst. Homiak noticed an air vent in the bedroom ceiling. It was in the side of a bulkhead that covered a duct. The air vent looked out of place as it was not screwed into the bulkhead drywall or into the metal duct. As a result, this air vent was easily removed. Det. Cst. Homiak looked inside the duct and saw the back end of a firearm as well as a red object that was farther down the duct. He could not easily reach these items and had to cut the drywall and duct in order to seize them. The firearm was a complete 9mm Glock handgun with a loaded over-capacity magazine. The red object was a “jig” that was holding a firearm receiver. A “jig” is a tool with three holes that is used to align the location where the holes are to be drilled in the side of a receiver for a handgun. There was a receiver inside this “jig” that was in the process of being drilled. These seizures from the duct were the last ones to be photographed by Det. Cst. Williams, between 7:20 am and 7:32 am.

[44] Det. Cst. MacIsaac and Det. Cst. Ellis were the two Toronto search team officers who were not involved in actual searching but who supervised the initial detention of the two Applicants in the basement. They were directed by Det. Allen, who was upstairs on the main floor at the time, to go down to the basement. It was 5:14 am. Det. Cst. MacIsaac testified that he entered the basement at 5:16 am and that he saw the firearm magazine lying on the floor in the living room area. The RCMP officers were still present, watching the two detained adults. The male, Goorahoo, was seated on the living room floor in handcuffs. He was covered only by a towel. The female, Menjivar, was in a bedroom down the hallway that is designated as “Menjivar and daughter’s bedroom” on Det. Cst. Day’s diagram (Exhibit 3B). She was handcuffed and she was with her daughter. An RCMP officer was standing outside the bedroom door. Det. Cst. MacIsaac relieved the RCMP officer and removed the Applicant Menjivar’s handcuffs. He stayed with Menjivar and her daughter for about a half hour, making small talk. He was not involved in the search of the basement or in the arrests of the two Applicants.

[45] Det. Cst. Ellis gave a similar account of arriving in the basement and seeing the Applicant Goorahoo seated on the floor in the living room area, handcuffed and covered only with a towel. There were a number of RCMP officers nearby securing the basement area. Det. Cst. Ellis assumed control of Goorahoo and took him into a room off the living room, removed the handcuffs and allowed him to get dressed. Det. Cst. Ellis then handcuffed Goorahoo, but now with his hands in front because he was cooperative, and they returned to the living room area. Det. Cst. Ellis had Goorahoo sit on the white living room couch. At this point, Det. Cst. Ellis saw the firearm magazine on the floor, between the couch and the wall. He asked Goorahoo if there was a firearm in the unit. Goorahoo replied “no” and explained that he and his girlfriend were members of a gun club and they were applying for licenses. Det. Cst. Ellis asked Goorahoo for identification and he produced a driver’s license in the name of Lynsay Goorahoo with an address in Newmarket.

[46] Det. Cst. Ellis estimated that this entire process, from his initial entry into the basement until he had the Applicant Goorahoo dressed and seated on the white living room couch, took about five to seven minutes, and so he estimated that it would have been about 5:20 am when he first saw the firearm magazine. He testified that neither Det. Allen nor the RCMP officers had told him about the firearm magazine and that this is something he would have wanted to know, for everyone’s safety. As soon as Det. Cst. Ellis saw the magazine, he “would” have brought it to the other officers’ attention and he “would” have warned them to be careful. He gave this warning aloud, although he did not recall any other officers being in the area at the time or who he actually gave the warning to. In addition, he did not recall Det. Cst. Williams taking still photographs or the entry video at the time, including of the white couch and the magazine on the floor. The entry video is time-stamped 5:24 am and it shows the Applicant Goorahoo dressed, handcuffed at the front, and standing at the side of the living room area. Det. Cst. Ellis agreed that he was present at this time but he did not recall Det. Cst. Williams taking the video (which includes images of the magazine on the floor in front of the white couch with no one seated on the couch). There are also a number of still photographs taken in the basement, time-stamped 5:22 am and 5:23 am, that Det. Cst. Ellis could not recall and that do not show Goorahoo seated on the white living room couch.

[47] Det. Cst. Ellis testified that he still had custody of the Applicant Goorahoo in the basement at 5:48 am, when Det. Allen instructed the search team officers to arrest the two Applicants (as a result of Det. Cst. Homiak’s seizure of firearms parts in the basement bathroom). Det. Cst. MacIsaac brought the Applicant Menjivar out of her bedroom and Det. Cst. Ellis arrested both Applicants and advised them of their right to counsel. At 6:10 am, they were handed over to uniform officers to transport them to the station.

[48] The last of the Toronto search team officers is Det. Cst. Xiouris. He searched the main floor unit. Before he began searching, he spoke to the two adults and two children who were present, he obtained clothing for them, and he let them get dressed. In particular, he asked the two adults whether the target Adrian Scott was home and was told that he was not home. Det. Cst. Xiouris learned this shortly after 5:14 am. Det. Cst. Williams took main floor entry photographs that are time-stamped between 5:19 am and 5:22 am. Det. Cst. Xiouris then began to search the various rooms on the main floor. He first searched the bedroom where he had found the two adults who were present with their children. He found nothing in this room. He believed the two adults to be cousins of the target Adrian Scott. He then began to search the bedroom where he understood Scott to reside, based on what the two adults present had told him. It was now about a half hour after he had first entered the premises at 5:14 am. In other words, the search of Scott’s bedroom would have taken place at about 5:44 am.

[49] Det. Cst. Xiouris found documents in Scott’s name and a photograph of Scott in this bedroom. He also found a computer tablet, two cell phones, $2600 in cash, and a magazine ammunition loader, all in a shoe box in the closet. As set out above, Det. Cst. Xiouris advised Det. Allen of these seizures in what he believed to be Scott’s bedroom.

(vi) The affidavit of the Applicant Menjivar

[50] The only evidence filed by the Applicants on the s. 8 motion is an affidavit sworn by the Applicant Menjivar. Some of it is not contentious. However, there are other assertions in the affidavit that are controverted by the viva voce testimony of a number of police officers. In addition, her assertions about the status of the premises and who had keys and who customarily had access to different parts of the premises, even if credible and reliable, are not matters that were within the knowledge of the police at the time. Finally, Menjivar did not testify on the motion before me. As a result, I have no way of evaluating her credibility and reliability when important parts of her account are contested by the accounts I did hear, under cross-examination, from the police witnesses. See: R. v. Coburn (1982), 1982 CanLII 3715 (ON CA), 66 C.C.C. (2d) 463 (Ont. C.A.); R. v. Barron (1985), 1985 CanLII 3546 (ON CA), 23 C.C.C. (3d) 544 (Ont. C.A.); R. v. Humphrey, 2011 ONSC 3024 at paras. 6-7 and 98-9.

[51] In all these circumstances, I have not set out a summary of the Applicant Menjivar’s affidavit. I note that counsel for the Applicants did not rely on factual assertions in her affidavit in support of the central legal issue they have raised in argument on the s. 8 motion, namely, whether the police should have suspended the search and sought a separate search warrant for the basement unit, upon learning of its existence. I turn now to that legal issue.

C. ANALYSIS

[52] As explained above (at paras. 5-6 and 15), it is conceded that there were reasonable and probable grounds to believe that Adrian Scott resided at 25 Duntroon Crescent, that he was engaged in various kinds of criminal activity, and that evidence of that criminal activity was likely to be found at his residence. As a result, the search warrant was facially valid and could initially be executed by the police without violating s. 8 of the Charter.

[53] There were some submissions, on a motion seeking leave to cross-examine the search warrant affiant, to the effect that the “Project Patton” investigators were negligent in failing to take further investigative steps that might have led them to discover the existence of the basement unit at 25 Duntroon Crescent and/or the existence of its occupants. I dismissed this motion and denied leave to cross-examine, in short oral Reasons, on the basis that it was a “fishing expedition”. There was nothing in the extensive “Project Patton” disclosure that pointed to the possible existence of separate units within 25 Duntroon Crescent and nothing to suggest that the investigators ought to have looked into this speculative possibility. Furthermore, the external appearance of this one storey suburban bungalow did not point to the existence of multiple units. There was a single municipal address, a single mail box at the front entrance, a single hydro meter at the back of the house, no multiple unit names, buzzers or registries at either door, and no separate mail box, door bell or municipal address at the side door. I am satisfied that the police reasonably believed that 25 Duntroon Crescent was a single family residence and that the target Scott resided there. Accordingly, there was no basis to allow cross-examination of the affiant in relation to these issues. See: R. v. Pires and Lising (2005), 2005 SCC 66, 201 C.C.C. (3d) 449 at paras. 25-27 and 40-41 (S.C.C.); World Bank Group v. Wallace et al, 2016 SCC 15, 2016 S.C.C. 15 at paras. 119 and 122; R. v. Victoria (2018), 2018 ONCA 69, 359 C.C.C. (3d) 179 at paras. 78-80 and 85 (Ont. C.A.).

[54] Given the above starting assumptions on the s. 8 motion, the Applicants conceded that the police had a facially valid warrant and that no one knew that 25 Duntroon Crescent was anything other than a single family dwelling where the target Adrian Scott resided. Accordingly, the Applicants also conceded that the police were entitled to execute the search warrant by way of their initial entry into the home. However, at some point relatively early in the execution of the search warrant, around 5:14 am, the Applicants submit that the police acquired knowledge of a second separate residential unit in the basement. At this point, it is submitted that the police were obliged to suspend the search and seek a separate warrant that explicitly authorized a search of this recently discovered basement unit. In effect, the Applicants’ submission is that a sub-facial defect in the search warrant and its supporting Information emerged during the execution of the search warrant. The dwelling house was no longer known to the police as simply the residence of Adrian Scott. It was now known to be the residence of two separate families, one upstairs and one downstairs. Furthermore, none of this new information had been disclosed to Kelly J. when he granted the search warrant.

[55] This is not an easy search and seizure problem to resolve. There is little authority on the point and there appears to be no binding authority. It is also conceptually difficult to speak of a sub-facial defect that emerges at a point in time after an otherwise valid search warrant has already been executed. Sub-facial defects generally relate to facts that the police either know or ought to have known when they obtained a search warrant, as the above Pires and Lising line of authority establishes. Also see R. v. Jaser, 2014 ONSC 6052 at paras. 64-84, where the leading s. 8 authorities relating to sub-facial defects are discussed.

[56] The law is settled in relation to the degree of particularity required when identifying places to be searched in cases where the place is known or ought to have been known to contain multiple separate units (a proposed search of an apartment building unit is the most obvious example of this kind of search). The police must identify the particular unit or units they wish to search and must set out sufficient grounds to search that particular unit or units. In R. v. Campbell (2011), 2011 SCC 32, 271 C.C.C. (3d) 193 (S.C.C.), aff’g (2010), 2010 ONCA 588, 261 C.C.C. (3d) 1 (Ont. C.A.), the police obtained a search warrant authorizing the search of an entire dwelling house that operated as a rooming house. The police knew the house contained four separate rooms with locked doors, as well as some common areas, and they wished to search the entire premises. The trial judge held that there were insufficient grounds to justify a search of Campbell’s basement apartment and excluded the evidence seized from that particular unit. Campbell was acquitted and the Crown appealed. A majority of the Court of Appeal (Juriansz and Karakatsanis JJ.A.) allowed the appeal, holding that a search of the entire premises, including the basement unit, was justified. On further appeal, the Supreme Court unanimously agreed that the search of the basement unit was justified. Charron J. gave the judgement of the Court and succinctly set out the principle of particularity relating to proposed searches of multi-unit dwellings (at para. 15):

It is important to stress, as Juriansz J.A. rightly acknowledged, that Mr. Campbell’s expectation of privacy in his room within the townhouse is just as high as that of a resident of a single dwelling unit. In drafting ITOs proposing to search more than one unit within a multi-unit dwelling, this principle should be reflected by clearly setting out reasonable and probable grounds for each unit to be searched.

The passage in the Reasons of Juriansz J.A. that addressed this same point, on behalf of the majority of the Court of Appeal, is as follows (at para. 4):

Submissions were made at the trial and on appeal about the expectation of privacy that a person has in a rooming house. In my view, nothing in this appeal turns on the degree of the respondent’s expectation of privacy. The evidence seized was found in the exclusive space of the respondent within a rooming house, and his expectation of privacy there from state intrusion was as high as that of a resident of a single dwelling unit. There is also nothing that turns, in my view, on the fact that a single warrant was sought with respect to the entire rooming house with more than one tenant. The places for which search warrants are sought are often complex and frequently involve more than one person’s interests.

[57] Five years after the Campbell case, the Court of Appeal addressed the issue again in R. v. Ting (2016), 2016 ONCA 57, 333 C.C.C. (3d) 516 (Ont. C.A.). In that case, the police were aware that “a mixed commercial and residential plaza” was divided into two residential units (“one front and one rear”) and one commercial unit, all located at the municipal address for the plaza. The police had grounds to search the rear residential unit and obtained a search warrant that properly specified their authority to search only that “rear unit” at the plaza’s municipal address. The search warrant was lawfully executed at the rear unit by one search team, but it was also mistakenly executed by a second search team at the front unit. This second search team “immediately” realized their mistake, upon entering the front unit. Instead of stopping the unauthorized search of the front unit, the police continued to search that unit for 1 hour and 40 minutes, seizing drugs, money, and cell phones. At this late juncture, they suspended the unauthorized search of the front unit and obtained a second search warrant. However, the second warrant broadly authorized a search of the plaza’s municipal address without specifying any particular unit and without setting out grounds that would justify a search of the entire premises. More drugs were found in this second search of the front unit. Both searches were held to violate s. 8 and the evidence was excluded, both at trial and on appeal. The first search was simply illegal because there were no grounds to search the “front unit” and the warrant had authorized only a search of the “rear unit.” The second search warrant was overbroad and facially invalid because it was not limited to a search of the “front unit”. Miller J.A. (Feldman and MacPherson JJ.A. concurring) gave the judgement of the Court of Appeal and re-stated the principle of particularity set out in Campbell in much greater detail (at paras. 48-51 and 59-60):

An adequate description of the place to be searched is a fundamental component of a search warrant. Its importance cannot be overstated: see R. v. Le, 2011 MBCA 83 at para. 77; James A. Fontana and David Keeshan, The Law of Search and Seizure in Canada, 8th ed (Markham: LexisNexis Canada Inc., 2010) at 87-92.

Without an adequate description of the premises, the issuing justice of the peace would not be assured that he or she is not granting too broad an authorization, or an authorization without proper reason. The police officers called on to execute the search warrant would not know the scope of their search powers. Further, those subject to the warrant would be left in doubt as to whether there is valid authorization for those searching their premises.

Accordingly, a warrant that does not adequately describe the place to be searched is invalid. As articulated in Re McAvoy, [1970] N.W.T.J. No. 5 (Terr. Ct.), at para. 50:

To avoid search warrants becoming an instrument of abuse it has long been understood that if a search warrant fails to adequately describe the offence, fails to accurately describe the premises to be searched, or fails to give an accurate description of the articles to be seized then it will be invalid.

Just what constitutes an adequate description will vary with the location to be searched and the circumstances of each case. With respect to a multi-unit, multi-use building, as seen in this case, it is not enough to simply provide a street address that distinguishes the building from others. The description must adequately differentiate the units within the building, as those in a multi-unit dwelling have the same expectation of privacy as those in a single-unit dwelling. The Supreme Court of Canada articulated this point in R. v. Campbell, 2011 SCC 32, [2011] 2 S.C.R. 549, at para. 15:

[The accused’s] expectation of privacy in his room within the townhouse is just as high as that of a resident of a single dwelling unit. In drafting ITOs proposing to search more than one unit within a multi-unit dwelling, this principle should be reflected by clearly setting out reasonable and probable grounds for each unit to be searched.

It is not enough, however, for the ITO to accurately describe the premises to be searched. For a search warrant to fulfill its functions, those who are relying on it – including police officers who are executing it and third parties whose cooperation is sought – must not be required to look past the warrant to the ITO. The warrant itself must be clear and limited on its face with respect to the location to be searched: see Re Times Square Book Store and the Queen (1985), 1985 CanLII 170 (ON CA), 21 C.C.C. (3d) 503 (Ont. C.A.), at 513; and R. v. Parent (1989), 1989 CanLII 217 (YK CA), 47 C.C.C. (3d) 385 (Y.C.A.), at 396-97.

A function of a warrant is to guide and limit the actions of the police officers. A warrant that is ambiguous cannot perform that function. Neither can the subject of the warrant know whether the police are authorized to search the premises.

[58] The above decisions in Campbell and Ting do not address the specific search and seizure issue that arises in the present case. Their statements of principle, concerning the importance of particularity when describing proposed searches of multi-unit dwellings, did not arise when the police were applying for and then executing the search warrant at 25 Duntroon Crescent. As set out above, the police reasonably believed it was a single family dwelling where their target Adrian Scott resided. It could reasonably be assumed that he had access to all parts of his residence and could hide evidence of his criminal activity anywhere in the residence, including in the basement. The fact that the police investigators knew he had access to and control of a tent-like structure in the driveway, and used it to hide instrumentalities of crime, inferred a relatively broad degree of access and control over the premises and a relatively sophisticated ability to hide evidence. Accordingly, the description of the place to be searched as the “dwelling house and any unattached structures at 25 Duntroon Crescent” was entirely warranted and it properly included the basement of the house. There was no violation of the principle of particularity in Campbell and Ting when police obtained a warrant for the entire premises, including the basement, and then executed it on the entire premises.

[59] The more difficult issue in the present case is whether the new facts discovered by the police, at a relatively early stage of the search, gave rise retroactively to a violation of the principle of particularity and required the police to suspend the search until they had obtained a second search warrant that specifically authorized a search of the basement unit, after first setting out the newly discovered facts in a second search warrant Information. There is no doubt, as a practical matter, that the police can suspend a search and seek a further and better warrant on the basis of new facts. See, e.g. R. v. Ting, supra at paras. 55 and 80. There is also no doubt that the police have powers to secure premises, without searching them, in order to protect against potential loss of evidence while awaiting an application for a search warrant. See e.g. R. v. Darteh, 2014 ONSC 895 at para. 196; aff’d 2016 ONCA 141, where the leading authorities on this point are discussed.

[60] Counsel exhaustively researched the above narrower issue that did not arise in Campbell or Ting. They provided the Court with a number of authorities. Some of these authorities were not helpful, for a variety of reasons. However, there were four cases which helpfully addressed the narrow issue in the present case. I will summarize these cases in chronological order.

[61] The earliest of the four cases is R. v. Switzer (1984), 1984 CanLII 641 (BC CA), 13 C.C.C. (3d) 157 (B.C.C.A.). In that case, the police had obtained a search warrant for a dwelling house where their target, one Brown, was believed to reside. The Court described the place to be searched as follows: “The dwelling house in question, when observed from the outside, appeared to be a single family dwelling house. It did not appear to be a place containing multiple residences…there was only one address at the house, namely, 4124 Dumfries St. There was no indication from the outside that there was a separate or other residence in the place.” The house had two entrances, a front door leading to the main floor and a back door at the bottom of stairs leading to the basement. The police entered both doors, breaking open the basement door which was locked. Upon making these two entries, the police learned facts tending to indicate that their target Brown resided on the main floor and that one Switzer and a woman resided in the basement. Importantly, the police also learned facts indicating that Brown may have had some degree of access to the basement. The police proceeded to search the basement, which resulted in a seizure of cocaine. Charges were laid against Switzer. At trial, the search was held to violate s. 8 and the evidence was excluded. On a Crown appeal, the Court of Appeal (Nemetz C.J.B.C., MacFarlane and Craig JJ.A.) found no violation of s. 8, stating the following (at paras. 12-15):

The question, therefore, which arises is whether the search and seizure was one which was authorized by the warrant which the officers had in their possession. I think that the warrant was broad enough in its terms to include what occurred. In saying that I mean that warrants for the search of premises must be precise and must be such that the rights of citizens are not improperly invaded. This warrant in its broad terms authorizes the search of a dwelling-house, 4124 Dumfries Street, of Vancouver, B.C. The drug was located in a dwelling-house at that address. In particular, the warrant refers to the dwelling-house of Ronald B. Brown. The circumstances here reveal that the dwelling-house at 4124 Dumfries Street was the dwelling-house of Ronald B. Brown. He paid the rent and he was the owner of the only telephone which was in the house. There was an extension upstairs and an extension downstairs.

The respondent's position is that the area in the basement of which Switzer was a temporary occupant was a separate and distinct dwelling-house from the dwelling-house of Ronald B. Brown. That submission was accepted by the trial judge and that was the reason for the acquittal of the respondent.

The circumstances do indicate that Switzer was a resident at the house, but that fact taken by itself does not on the evidence that we have seen persuade me that the place where the cocaine was found was the dwelling-house of Switzer and not the dwelling-house of Brown. The case is stronger also because Brown's activities were not confined to the upstairs of the house, but to the downstairs as well. I refer to the fact that he was seen leaving the basement area just before the police broke in.

Having come to the conclusion that the search was authorized by the warrant, and having regard to the circumstances, I think the trial judge erred in holding that there had been an unreasonable search and seizure. In my view the evidence was admissible, and ought not to have been excluded. I would allow the appeal by the Crown and order a new trial on the charge of possession of cocaine for the purpose of trafficking. [Emphasis added].

[62] The second case that I found helpful is R. v. Fernandes, [2009] O.J. No. 5218 (S.C.J.). The police obtained a search warrant for a dwelling house (1 Kenhill Drive in Toronto) where there were a number of residents, including the target Duran Fernandes. The trial judge, Backhouse J., found a number of serious s. 8 and s. 7 Charter violations relating to the search and to lost evidence about the search. In particular, she quashed the search warrant on the basis that there were “no reasonable and probable grounds for granting the warrant.” She went on and addressed the issue that arises in the present case concerning searches of a dwelling house where multiple occupants reside in somewhat different units within the house. Although it was arguably obiter dicta, the principle helpfully enunciated by Backhouse J. was as follows (at para. 55):

Where a residence houses a number of occupants, absent evidence of common usage of the spaces in question or evidence of mutual involvement in the offence in question, it is a defect of substance to permit an overall search of the premises in question. (R. v. Morris, 2008 ONCJ 276 para 35; R. v. Innes, [1990] B.C.J. No. 1009 at p. 2; R. v. Cann, 1997 CanLII 22746 (AB CJ), [1997] A.J. No. 584, at para. 44 (QL)). There was no evidence to support either requirement. Yet, the police in this case knew at the time the warrant was obtained that there was at least one other person living at 1 Kenhill Drive – Rebecca Sooley, a 73 year old woman with no criminal record. The 411 search conducted by the police listed Ms. Sooley as residing at 1 Kenhill Drive. Detective Sutton observed an older woman outside of the premises on October 19, 2007. Detective Sutton testified at the preliminary hearing that he had no evidentiary basis for his stated belief in the Information that Duran Fernandes and Rebecca Sooley lived together at Hallow Crescent or that Ms. Sooley “is a family member or very close friend.” [Emphasis added].

Had the police not misstated the connection between the elderly Ms. Sooley and their target, Duran Fernandes, the trial judge concluded that the issuing justice would have placed “some limitations on the warrant to protect the privacy interests of the other occupants.”

[63] The third case that I found helpful is R. v. Mignot (2016), 362 C.R.R. (2d) 24 (Ont. S.C.J.). In that case, as in Fernandes, the trial judge Woollcombe J. found serious s. 8 violations. In particular, she concluded that the police lacked reasonable and probable grounds in relation to their target, one Merrick Broomfield. The police had obtained a warrant to search Broomfield’s residence (1 Celestial Crescent in Hamilton). Upon execution of the search warrant, they found their target Broomfield “in the front bedroom” with a woman. They proceeded “upstairs” to the “master bedroom” where they found one Mignot, who said that “he lived there” and that the “master bedroom was his”. The police had no evidence connecting Mignot to Broomfield’s alleged drug trafficking until they saw cash in plain view on Mignot’s bed. In addition, the doors to the master bedroom “were open” and the police “did not know if Broomfield had access to the master bedroom”. They proceeded to search Mignot’s bedroom and found a hidden 9 mm handgun and ammunition. Having already found a serious s. 8 violation that invalidated the entire search warrant, Woollcombe J. went on in obiter dicta to briefly address the issue in the present case concerning execution of the search warrant in Mignot’s bedroom (at paras. 132-136):

This is not a case in which the police knew that the home was divided into separated units or separate locked bedrooms. The surveillance conducted prior to the execution of the warrant suggested that in addition to Broomfield, there was both a second male, Mr. Mignot, who lived at the address, and a female. There was no evidence to suggest that that any of these individuals were in any manner constrained from accessing the entire home.

I agree with the applicant that Detective Constable Bendiks should have disclosed in the ITO his belief that there were two people, in addition to Broomfield, living in the home. But, I do not accept that in the context of what was known, this would have led to limitations being placed on any search to be conducted of the residence. The difficulty here is that the police did not know, and could not reasonably ascertain, prior to the execution of the warrant, how the inside of the home was divided and shared.

The more difficult question is whether, once the police were in the home and had identified Broomfield in the rear bedroom, they should have refrained from searching the master bedroom. In my view, the search of the master bedroom was permissible. I say this for two reasons.

First, Detective Constable Shanley testified that he did not know the relationship between Mignot and Broomfield and did not know whether Broomfield had access to the master bedroom. It appeared to him that the master bedroom was open. Moreover, he was not required to accept Mr. Mignot’s statement that the master bedroom was his. Given the way in which the home appeared to be laid out, and the apparent openness between the rooms, it was reasonable for the officer to authorize the search of the master bedroom, notwithstanding that Mr. Mignot claimed the room was his and he was not the target of the investigation.

Second, Detective Constable Shanley testified that he saw the cash on the bed when he conducted the video of the home before directing what areas were to be searched. In my view, given that currency was one of the items the police were searching for, this provided him with a basis to suspect that Mignot may have been involved with Broomfield, or that the cash may have been Broomfield’s and in Mignot’s room. Either way, I think it entitled him to authorize the search of the room.

[64] The fourth and most recent case that I found helpful is R. v. Ivanecky, 2019 ONSC 2218, [2019] O.J. No. 2248 (S.C.J.). The police were investigating the unauthorized sale of marijuana by a business known as Pharma-Cann. Its premises were located in suite 117 of a large commercial plaza at 2980 Drew Road in Mississauga. There were numerous separate units in this plaza. The warrant was limited to “2980 Drew Road #117”, which is undoubtedly the specific unit where Pharma-Cann operated. Upon execution of the search warrant, the police found an interior door marked “employees only”. There was a bathroom, kitchen, and other offices inside this interior door and documents were found there which indicated that “an adjacent business, Max Employment,” operated in this part of suite 117. There were “no markings on the interior door that separates Pharma-Cann from Max Employment.” It appeared that two separate businesses were operating from within suite 117 and the police only had grounds to search in relation to one of those businesses. Nevertheless, they proceeded to search the entire premises. The supervising officer testified on the s. 8 motion and explained why he searched the part of the premises where Max Employment appeared to be located (at para. 21):

Sgt. Laing was asked why he continued to search the Max Employment area once he discovered documents belonging to Max Employment. He explained that he believed the area was still part of Suite 117. The warrant was authorized for Suite 117 and he believed that the company may have been associated to Pharma-Cann and that Pharma-Cann may have been using this area because it appeared that both businesses were sharing a bathroom and a kitchen area that was only accessible by the interior door. [Emphasis added].

On these facts, the trial judge Coroza J. concluded that the police were entitled to search the entire premises as there was nothing about the exterior or interior of suite 117 indicating that it was subdivided into separate units. Coroza J. distinguished R. v. Ting, supra (at paras. 35-43):

In my view, this case is different than Ting. For the reasons that I have outlined above, the police clearly specified the place to be searched. Unlike in Ting, there was nothing to indicate that the description in the Information to Obtain was ambiguous or overly broad. The description matches the information presented to the public, and confirmed during undercover observation.

Ting confirms that the test is whether or not the police provided an adequate description to the issuing justice. The police in this case met that standard and the warrant issued by JP Murphy is a facially valid warrant. The warrant authorized the search of Suite 117 and that is precisely the unit that the officers entered and searched.

I also agree with the Crown that in Ting the officers in that case had information that unit 4204B was further divided into other units, while in this case the officers did not know about the subdivision when they applied for the warrant. Further, it has not been established on the evidence why they should have known that this was the case. [Emphasis added].

[65] It can be seen that all four of the above cases bear some broad resemblance to the present case. In general terms, in all of these cases the police obtained a warrant to search the business or the residence of a particular target and then, upon execution of the search warrant, they learned of the existence of other residents or businesses or other units within the place to be searched. The police nevertheless proceeded to search the entire premises. The common sense principle that emerges from these authorities is that, assuming an initially valid warrant to search what appears to be the single dwelling or single business of a target, the rooms or units of other residents or businesses discovered upon execution can also be searched, provided there is reason to believe that the target has access to these other rooms or units or there is reason to believe that these other residents and their units are associated with the target’s criminal activities. The kind of factors taken into consideration, in applying the above principle, include the degree of access between the units, the existence of any common areas within the units, and any evidence of common criminal activity in plain view in the separate room or unit.

[66] It should be noted that Juriansz J.A. took similar factors into consideration in R. v. Campbell, supra at para. 56, in deciding that the police had sufficient grounds to search all of the separate units in the rooming house in that case:

In the present case, without reiterating the entire constellation of facts summarized in the ITO, I find the following salient facts and inferences to be important when assessing the grounds upon which the justice of peace could have issued the search warrant including the respondent’s exclusive space in the basement:

• The circumstances in which the deceased’s body was found lead to a compelling inference that the murder and/or the disposal of the body took place in townhouse #77.

• The living arrangements were such that the respondent had physical access to the common areas of the building, affording him the opportunity to be involved in the offence within the building. While the tenants all have private rooms with locks in the building, the respondent had unrestricted access to the deceased’s living room, kitchen, dining room, hallways and bathroom. As well he could have accessed her private room if she did not lock her door while in the townhouse or if she would have opened the door to another resident. The issuing justice of the peace could well have inferred these relevant factors from the facts in the ITO.

[67] Applying the approach that emerges from the above line of authority to the facts of the present case, the following factors should be considered in determining whether it was reasonable for Det. Allen to proceed with a search of the entire premises, including the basement unit:

• first, the search warrant clearly authorized a search of the entire premises and the basement area fell within the plain meaning of the place to be searched (as Coroza J. stressed in Ivanecky);

• second, there was compelling evidence that the target Adrian Scott was carrying on criminal activity from the residence and, in particular, that he was hiding instrumentalities of that activity in a unit separate from where he was actually living (the tent-like structure in the driveway). The extent to which Det. Allen had been briefed about Adrian Scott’s use of the tent-like structure in the driveway is unclear, although Det. Allen knew that he had to search it. In any event, it is the knowledge of the investigators who had obtained the warrant authorizing a search of the entire premises that matters for s. 8 purposes and the affiant had set out detailed grounds relating to Scott’s use of the tent in the driveway. See R. v. Debot (1986), 1986 CanLII 113 (ON CA), 30 C.C.C. (3d) 207 at 221 (Ont. C.A.); aff’d (1989), 1989 CanLII 13 (SCC), 52 C.C.C. (3d) 193 at 206 and 213-215 (S.C.C.);

• third, the three doors to the basement unit (described above in para. 29 and in the third bullet point of para. 25) were locked. However, behind these doors were rooms and areas that were common and essential to the whole residence (a laundry room, a furnace and water heater room, and an electrical panel room). In addition, there was access between the main floor and basement units and any resident with a key could access the three common rooms and areas in the basement. Finally, any resident who was allowed into the basement unit by its occupants could access the rooms and areas in that unit (as Juriansz J.A. stressed in Campbell);

• fourth, the target of the search Adrian Scott was not present, the bedroom that he occupied was not known until some time after the search began, and whether he had keys and ready access to the basement unit was also not known. In addition, it could be inferred that common areas of the basement such as the laundry room, the furnace and water heater room, and the electrical panel room could be useful places to hide the instrumentalities of Scott’s criminal activities, akin to the tent-like structure in the driveway that he was known to use; and

• fifth, a handgun magazine was found in plain view on the carpet of the living room area in the basement unit. As the affiant had stated in the search warrant Information (at para. 228): “In my experience, an unlawfully possessed firearm is a tool used by criminals that is not easily attained. The cost of an illegal firearm is expensive…It is not an item that is purchased and easily discarded; it is kept by the offender for a lengthy period of time…Offence related property, such as ammunition, holsters, cleaning kits, and magazines are a few items that are commonly associated to possessing a firearm.” [Emphasis added]. The handgun magazine in plain view on the floor of the basement unit inferred that there was likely a handgun in the basement unit. This provided some evidence of common criminal activity, as between the target Adrian Scott and the occupants of the basement unit (as Woollcombe J. stressed in Mignot).

[68] Weighing the above five circumstances or factors cumulatively, and not considering any one factor in isolation, I am satisfied that they provided an objectively reasonable basis for Det. Allen’s subjective decision to proceed with a search of the entire premises, including the basement unit. As a result, there was no violation of s. 8 of the Charter and the search was lawful.

[69] In relation to the fifth factor set out above – the magazine in plain view on the floor of the basement unit – I should briefly address the credibility issue that was raised by the Applicants. They submitted that the accounts of Det. Allen, Det. Cst. Day and Det. Cst. Homiak were not credible, to the effect that the magazine was observed by Det. Allen and Det. Cst. Day at a very early stage, during the initial “walk through” at 5:14 am, and that Det. Allen alerted Det. Cst. Homiak to the magazine when instructing him to search the basement. The defence relied on Sgt. Duncan, who did not recall seeing the magazine during the “walk through” or pointing it out to Det. Allen. The defence also relied on Det. Cst. Ellis and his account to the effect that he was not alerted to the magazine by Det. Allen at 5:14 am and that he discovered it himself somewhat later at about 5:20 am.

[70] I am not satisfied that the differences between these various accounts are significant but, in any event, I did not find Sgt. Duncan or Det. Cst. Ellis to be reliable on this point. I have already summarized their accounts (in particular, at paras. 26 and 46 above). Sgt. Duncan testified that he has carried out “dozens” of these high risk entries, that he was apparently in the basement living room for only a brief time, and that he recalled little, if anything, about what he actually saw in this particular basement living room area. The RCMP officer or officers who were standing guard in the living room area, watching over the detained Applicant Goorahoo, would have been in the living room area for a longer period of time than Sgt. Duncan and they did not testify. It may well have been one of these officers who pointed out the magazine to Det. Allen. As for Det. Cst. Ellis, his recollection of events in the living room area is vague and uncertain and it is contradicted to some degree by Det. Cst. Williams’ reliable still photographs and video. Furthermore, Det. Allen may not have alerted Det. Cst. Ellis to the magazine because Det. Cst. Ellis’ main role was to watch over the Applicant Goorahoo and because the main searching officer, Det. Cst. Homiak, had already been alerted to the magazine by Det. Allen.

[71] In contrast to these two somewhat unreliable accounts, I found Det. Allen, Det. Cst. Day, and Det. Cst. Homiak to be credible and reliable. Their manner of testifying was straightforward, detailed, and careful. Their accounts made sense in the context of the known reliable facts about the sequence of events. They acknowledged any limitations or deficiencies in their accounts without defensiveness. There were no significant internal inconsistencies in their accounts and they corroborated each other. Finally, the attacks on their note taking, in my view, did not succeed as they satisfactorily explained any omissions of detail.

[72] For all these reasons, I was satisfied that the handgun magazine in plain view on the living room floor of the basement unit, was seen by Det. Allen at an early stage during his initial “walk through”. It became one of the factors that he considered and that the Court can consider in assessing the reasonableness of the search of the basement unit.

[73] Having found no s. 8 violation, I would not normally procced to set out any s. 24(2) Charter analysis. However, the s. 8 issue in this case is difficult and somewhat uncertain. My own s. 8 analysis, as set out above, may be wrong. Accordingly, I will briefly address s. 24(2).

[74] Assuming the search of the basement unit violated s. 8 and that Det. Allen should have suspended the search, prepared a fresh search warrant Information, and sought a second warrant specifically targeting the basement unit, I am satisfied that this was not a serious Charter infringement. Indeed, it was a good faith error at the least serious end of the continuum under the first set of Grant factors. The narrow s. 8 issue in this case is rarely encountered by the police (see para. 33 above). The Applicants’ counsel fairly conceded that the issue is “novel” and “unique”. The authorities on point are few in number, they are not well known, and none of them are binding. I had never encountered the issue before, in over 40 years of analyzing search and seizure problems, and I was unfamiliar with the authorities. My above reading of four of the more helpful cases, as well as the Campbell case, supports the reasonableness of Det. Allen’s decision. If he made a mistake in his understanding of this narrow aspect of s. 8 of the Charter, it was a close judgement call on a difficult point and there was nothing egregious about the error. The first set of Grant factors argues in favour of admitting the evidence. See: R. v. Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1 at paras. 74-5 and 133 (S.C.C.); R. v. Blake (2010), 2010 ONCA 1, 251 C.C.C. (3d) 4 at paras. 24-6 (Ont. C.A.).

[75] The second set of Grant factors clearly argues in favour of exclusion of evidence. An unlawful search of a residential unit has significant impact on the Applicants’ s. 8 Charter interests. The Crown responsibly conceded this point. See: R. v. Grant, supra at paras. 76-8; R. v. Blake, supra at paras. 28-9.

[76] The third set of Grant factors argues in favour of admission of the evidence. The seized loaded handgun, ammunition, magazines, and handgun parts are reliable evidence, they are essential to the Crown’s case, and they involve serious firearms offences. See: R. v. Blake, supra at para. 31; R. v. Omar (2018), 2018 ONCA 975, 369 C.C.C. (3d) 544 at paras. 122-138 per. Brown J.A. (Ont. C.A.); aff’d 2019 SCC 32, [2019] S.C.J. 32.

[77] In conclusion, when balancing the three sets of Grant factors, it would bring the administration of justice into disrepute to exclude the evidence when the s. 8 violation was not serious and when the evidence in question is so significant. See: R. v. Blake, supra at para. 32; R. v. McGuffie (2016), 2016 ONCA 365, 336 C.C.C. (3d) 486 at paras. 62-3 (Ont. C.A.).

D. CONCLUSION

[78] For all the above reasons, the Applicants’ s. 8 Charter motion is dismissed. The firearms related evidence seized in the basement unit of 25 Duntroon Crescent is admissible at the Applicants’ upcoming trial.

M.A. Code J.

Released: October 6, 2020

COURT FILE NO.: CR-19-10000597-0000

DATE: 20201006

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

LYNSAY GOORAHOO and JENNIFER MENJIVAR

REASONS FOR JUDGe MENT

M.A. Code J.

Released: October 6, 2020

R. v. Goorahoo and Menjivar, 2020 ONSC 6088

Case Summary

A. OVERVIEW

B. FACTS

C. ANALYSIS

D. CONCLUSION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 5

Legal Tests 1

Legislation 5