R. v. Strong, 2020 ONSC 7528

OSHAWA COURT FILE NO.: CR-19-15014

DATE: 20201204

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ADAM STRONG

Applicant

Jinwon Kim and Bryan Guertin, for the Crown

Thomas Balka and Justin Guile, for the Applicant/Defendant

HEARD: September 28, 29, 30, October 1, 2, 4, 5, 6, 7, 8, 13, 14 and 15, 2020

REASONS FOR RULINGS ON CHARTER APPLICATIONS

DI LUCA J.:

[1] Adam Strong is charged with the first-degree murder of two young vulnerable women, Kandis Fitzpatrick and Rori Hache. The Crown alleges that Mr. Strong unlawfully confined and/or sexually assaulted both Ms. Fitzpatrick and Ms. Hache and then killed them. The Crown further alleges Mr. Strong dismembered and disposed of their bodies in order to cover up his crimes.

[2] Mr. Strong is being tried before me without a jury. Pre-trial motions were originally scheduled to be heard in June of 2020. However, as a result of the COVID-19 pandemic, they were delayed to the start of the trial and have now proceeded along with the trial in a blended fashion. In order to keep the trial moving, I endeavored to provide counsel with bottom-line rulings as the motions were heard, with reasons to follow.

[3] These reasons address the following Charter applications:

a. A s.10(b) Charter application to exclude the initial utterances made by Mr. Strong immediately before and shortly after his arrest for murder on December 29, 2017;

b. A s. 9 Charter application in relation to what is alleged to be the unlawful arrest of Mr. Strong in relation to the murder of Ms. Fitzpatrick;

c. A s. 8 Charter application in relation to the forensic re-testing of items previously seized under lawful warrant; and,

d. A s. 8 Charter application in relation to the general warrant used to obtain Google user data.

[4] The bottom-line rulings provided to date are as follows:

a. On September 30, 2020, I advised the parties that the s. 10(b) Charter application was dismissed. I indicated that I was not satisfied that Mr. Strong was detained immediately prior to his arrest. I further indicated that I was not satisfied that the police violated either the informational or implementational component of the right to counsel guaranteed by s. 10(b) of the Charter.

b. On October 2, 2020, I advised the parties that the s. 8 Charter application in relation to the forensic re-testing of the specialty knife and freezer was dismissed, as I was not satisfied that the forensic re-testing of these items resulted in a breach of s. 8 of the Charter.

c. On October 15, 2020, I dismissed the s. 9 Charter application and found that the police had sufficient grounds to arrest Mr. Strong for the first-degree murder of Kandis Fitzpatrick.

d. On October 15, 2020, I also dismissed the s. 8 Charter application in relation to the seizure of Google user data indicating that I was not satisfied that resort to a general warrant for this purpose violated s. 8 of the Charter. I further indicated that even if I was wrong on this issue, I would nonetheless admit the evidence under s. 24(2) of the Charter.

Background to the Alleged Offences

[5] Ms. Fitzpatrick and Ms. Hache were both in their late teens when they went missing. Around the time of their respective disappearances, they were undergoing personal challenges. They had turned to drugs, were involved in the sex trade and were at times living on the street.

[6] Ms. Fitzpatrick went missing in approximately March of 2008, though the police were only notified in 2010. Her whereabouts have never been discovered. However, her DNA was found on a specialty hunting knife located inside a kitchen drawer in Mr. Strong’s apartment. Her DNA was also located inside a chest freezer located in Mr. Strong’s bedroom.

[7] Ms. Hache went missing in late August 2017. On September 11, 2017, her dismembered and disembowelled torso was found in Lake Ontario. While police were able to identify the torso as belonging to Ms. Hache, they developed no leads on a suspect despite an extensive investigation.

[8] On December 29, 2017, plumbers were called to Mr. Strong’s residence at 19 McMillan Drive by the upstairs tenants who noted that the plumbing was backed up. The plumbers snaked the drains and began pulling up strips and chunks of a substance that appeared to be flesh of some sort. The plumbers were concerned that the flesh was possibly human so they called 911.

[9] Police arrived, spoke with Mr. Strong and quickly learned that a body was located in the home. A subsequent search resulted in the discovery of Ms. Hache’s head, pelvis, arms and legs inside the chest freezer located in Mr. Strong’s bedroom. Flesh and skin had been removed from certain body parts and a further quantity of flesh and skin was later extracted from drains of the home. Ms. Hache’s blood was also found in various locations inside Mr. Strong’s apartment, including on BDSM restraints. Her DNA was also found on a number of sex toys also located in the apartment.

[10] Based on the flesh-like material observed at the scene and Mr. Strong’s comments to the officers attending at the scene, he was initially arrested for murder. Once processed at the police station, he was advised that he was only being charged with indignity to a human body, but that the investigation was ongoing.

[11] On November 8, 2018, the charge of indignity to a human body was withdrawn by the Crown. Mr. Strong was then re-arrested and charged with two counts of first-degree murder against Kandis Fitzpatrick and Rori Hache, respectively.

The Section 10(b) Charter Application

[12] The s. 10(b) Charter application raises three issues relating to the initial interaction between police and Mr. Strong on the evening of December 29, 2017. First, the defence alleges that when Mr. Strong came out of his apartment to speak with police officers, he was legally detained and therefore should have immediately been given his right to counsel. Second, the defence further alleges that the delay between Mr. Strong being placed under arrest and being given his rights to counsel also amounts to a violation of his Charter rights. Third, the defence argues that the delay in providing Mr. Strong access to counsel also amounts to a violation of his Charter rights. The defence seeks exclusion of the initial utterances made by Mr. Strong outside his residence and while in the police car on the way to the station. The defence concedes the voluntariness of these utterances and, as a result, unless they are excluded under s. 24(2) of the Charter, they are admissible.

[13] In support of the application, I received the affidavit of Nicole Lyon, defence counsel’s assistant. This affidavit sets out the timeline of events and includes as exhibits various police notes and reports. By agreement of counsel, the various police notes and reports were considered essentially “willsays” of anticipated evidence on the application. The substantive evidence on the application came from viva voce police witnesses who testified regarding their involvement with Mr. Strong on December 29, 2017, as well as a recording of a 911 call made by the plumbers.

[14] Cst. Kevin Park of the Durham Region Police Service (“DRPS”), was on duty on December 29, 2017, when at approximately 8:00 p.m. he received a “lost or found property” call which is generally treated as a lower priority call. He was advised that some plumbers had attended at a residence and removed approximately 15 pounds of flesh, muscle and skin from a drain and did not know whether it was human. As he was near the location, he responded to the call and drove to 19 McMillan Drive. He was also joined by Cst. Lacirasella and Cst. Coull, who were dispatched to the call. At the time, Cst. Coull was a training officer working with Cst. Lacirasella.

[15] Cst. Park arrived on scene at approximately 8:07 p.m. and spoke with two plumbers. The plumbers showed him a photo on a phone depicting a long piece of flesh-like substance, and then removed a plastic bag containing pieces of the substance from their work van. Cst. Park looked inside the bag. While he had seen human and animal remains before, he was not sure what he was looking at. He sent the photo to Sgt. Theron Mounsey, a uniformed sergeant who was on duty, and he too was not sure what the substance was.

[16] Sgt. Mounsey arrived on scene at approximately 8:34 p.m. He observed the flesh-like substance in the plastic bag but remained uncertain as to what it was. He decided that the officers present should treat the scene as an investigation and “go by the book.” He directed other officers to secure the scene, including the bag of flesh-like substance and some nearby garbage bins.

[17] In speaking with the plumbers, Cst. Park learned that the basement tenant at the residence had removed his toilet. Cst. Park decided he would attempt to speak with the basement tenant to see if he could obtain any useful information. The decision to knock on the door was made after Sgt. Mounsey arrived and was briefed.

[18] Cst. Park approached the side door to the residence, which was the door for the basement apartment. Cst. Coull and Cst. Lacirasella were in the lead and Sgt. Mounsey followed. While Cst. Park indicated in his notes that he went to the door of the residence to speak to the tenant and “secure the scene”, he clarified in his evidence that he meant “potentially secure the scene.” As well, while all four police officers approached the door there was no specific plan or agreement between them, it was merely how the events unfolded. According to Sgt. Mounsey, as they were approaching the door they had no grounds to arrest Mr. Strong, they did not even know whether any criminal offence had been committed. Their purpose was to make an inquiry regarding the flesh-like material that had been removed from the drain.

[19] Cst. Lacirasella knocked on the door and within a minute or so, the door was answered by Mr. Strong. Cst. Lacirasella had learned of Mr. Strong’s name by performing a computer check prior to knocking on the door and he confirmed Mr. Strong’s name with him. He next asked if they could come in to speak with him and they exchanged some comments about the cold weather. The weather that evening was very cold, with a temperature of approximately -20C.

[20] Mr. Strong did not respond to the request to come inside. He did, however, step out onto the driveway allowing his door to close behind him. At approximately 8:36 p.m., Cst. Lacirasella asked Mr. Strong what he had been flushing down the toilet. Mr. Strong sighed, dropped his head and said words to the effect, “you got me…the gig’s up…it’s a body.”

[21] This utterance took Cst. Park by surprise and he needed a few moments to process it. He then placed Mr. Strong under arrest for murder. Cst. Park then asked Mr. Strong to put his arms behind his back so he could be handcuffed. Given Mr. Strong’s large build, a second set of handcuffs was required. Mr. Strong asked Cst. Park if he could lock up his apartment and indicated that the key was in his pocket. The key was retrieved and handed to Cst. Lacirasella who locked the front door of the apartment. Mr. Strong thanked the officers for being “gentlemen”, and he was escorted down the driveway towards the police cruiser parked a short distance away on the roadside.

[22] Once outside the cruiser, Mr. Strong was searched for weapons and then placed in the rear seat. At approximately 8:40 p.m., as he was getting into the car, Mr. Strong indicated that he wanted to “spill the beans.” Cst. Park stopped him and said he was going to read him his rights. Cst. Park had not read the rights earlier. He explained that this was the first time he felt it was safe to do so.

[23] Mr. Strong was then read his rights to counsel and caution. He advised that he understood his rights and caution and stated that he did not have a lawyer. Cst. Park indicated that he could speak with Legal Aid for free advice or could be provided with a list of lawyers. Mr. Strong confirmed that he wished to speak to Legal Aid.

[24] Cst. Park then contacted the police station to advise that he was bringing in an arrested party, and he commenced “facing up the report” by entering biographical data and related details into his cruiser computer terminal. This data entry is done routinely as a means of letting the officers running the cells at the police station know who is being brought in and why. There was no discussion between Mr. Strong and Cst. Park during this portion of their encounter.

[25] At approximately 8:49 p.m., as Cst. Park was entering data on his terminal, Mr. Strong made the following further utterance “if you want to recover her, she’s in my freezer, she is mainly de-fleshed.” As the utterance was made, Cst. Park typed it into his terminal. Mr. Strong could see the terminal from the back seat and corrected Cst. Park’s choice of words.

[26] Shortly thereafter, Cst. Park departed the scene and drove to the police station, arriving at approximately 8:53 p.m. There was no discussion along the way and Cst. Park asked no questions.

[27] At approximately 8:55 p.m., as they were sitting inside the police car inside the sally port to the police station, Mr. Strong stated “I considered suicide and I knew it was done. I knew the plumbers were going to pull parts of her up.” In response, Cst. Park told Mr. Strong to “sit tight” as he needed to go speak with the cell Sergeant. Mr. Strong remained in the car as Cst. Park went inside. Cst. Park came back out to the car to check on Mr. Strong a few times and loosened the handcuffs on one occasion.

[28] Mr. Strong was then processed inside the station. Three gold chains with various pendants were removed from his neck and placed into a property bag. Mr. Strong became visibly emotional when the jewelry was removed and stated, “Be careful with my jewelry, it took me a long time to procure it.” He was then lodged in a cell to await a call back from duty counsel.

[29] At 9:37 p.m., Cst. Park contacted duty counsel and at 9:52 p.m., duty counsel called back. Mr. Strong was then placed in a private room for a consultation with duty counsel.

Findings and Analysis – Section 10(b) Application

[30] The right to counsel guaranteed by s. 10(b) of the Charter arises only upon arrest or detention. Once a person has been detained or arrested, the police must comply with the informational and implementation components of s. 10(b): see R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at para. 17. These components require that a detainee or arrestee be advised of the right to counsel, including the availability of Legal Aid, and further that the detainee or arrestee be permitted an opportunity to contact counsel of their choice: see R. v. Taylor, 2014 SCC 50. Subject to concerns about officer or public safety, the police are required to immediately advise a detainee or arrestee of the right to counsel: see R. v. Suberu, 2009 SCC 33, at para. 41. Once a detainee or arrestee indicates a desire to speak to counsel, police are required to hold off on questioning until an opportunity to consult counsel has been provided: see Suberu, supra, at para. 38. However, the police are not required to prevent a detainee or arrestee from making spontaneous utterances prior to consultation with counsel: see R. v. Miller, 2018 ONCA 942 and R. v. Guenter, 2016 ONCA 572, at paras. 61-62.

[31] Detention refers to the suspension of a person’s liberty interest by a significant physical or psychological restraint: see R. v. Grant, 2009 SCC 32, at paras. 30-44 and Suberu, supra, at paras. 2-5 and 28. A psychological detention arises when an individual is legally required to comply with a police demand, or where a reasonable person in the defendant’s position would conclude from the state conduct that there was no choice but to comply and that he or she was not free to leave: see R. v. Le, 2019 SCC 34, at paras. 24-27.

[32] Not every interaction between police and an individual results in a detention. The police are permitted to speak to people and ask questions, even in cases where a person turns out to be implicated in a criminal offence: see R. v. Guenter, supra, at para. 41, R. v. MacMillan, 2013 ONCA 109 at para. 36, and R. v. Peterson, 2013 MBCA 104, at para. 52.

[33] A determination of whether and/or when a person has been detained requires a consideration of the totality of circumstances with a focus on the following factors:

(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for a focussed investigation.

(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

See Grant, supra, at para. 44.

[34] I start my analysis with the pre-arrest utterances made by Mr. Strong just outside his doorway. On this issue, Mr. Strong has the burden of proving on a balance of probabilities that he was detained when the police spoke to him.

[35] I am not satisfied that Mr. Strong was detained prior to the time when he was placed under arrest for murder by Cst. Park. As such, I find the police had no obligation to read him his right to counsel at that time. I reach this conclusion for the following reasons:

a. The police were not initially investigating a crime. The call came in as a low priority “lost or found property” call. The plumbers who made the call were concerned about the flesh-like substance that had been pulled from the drain and wanted to alert police. The officers who were dispatched to the scene did not immediately conclude that the flesh was human. They did not know whether it was human or animal, or perhaps something else entirely. I accept the evidence that when they approached the door, they were not investigating a crime. Rather, they were attempting to determine what the nature of the substance pulled from the drain was.

b. While I accept that Sgt. Mounsey instructed officers to treat the matter “by the book” as an investigation and took steps to secure the bag of flesh-like substance and some nearby garbage, I do not see this as indicative of a focussed police investigation into a criminal offence. Instead, I view this as an experienced officer exercising caution and being alert to the possibility that the unknown substance was related to the commission of an offence.

c. I am not troubled by the fact that the police checked their computer system to determine who the basement tenant was before knocking on the door. I do not view this as indicative of the fact that the police were investigating a specific crime or targeting Mr. Strong for investigation. Rather, I view it as a cautious step in the circumstances. I accept that the police simply wanted to know who might be at the door when they knocked.

d. I accept Cst. Park’s evidence that after assessing the information available, it made sense to knock on the door and ask the basement tenant what was being flushed down the drain. I further accept that when he made this decision, he was not investigating a crime. Rather, he was simply trying to determine what the substance being flushed down the drain was. I am not troubled by the officer’s notebook entry about “securing the scene.” I accept his explanation that he meant “potentially secure the scene.” Again, this an instance of an officer being alert to the possible need to secure a scene depending on the information obtained. In the circumstances, I find this thought process to be balanced and entirely reasonable.

e. I am not troubled by the fact that four police officers went to the door to speak with Mr. Strong. While in some circumstances this type of approach might give rise to a psychological detention, I am not satisfied that this is what happened here. I accept that there was no specific decision to approach the residence en masse. I note that moments prior, three of the four officers had been speaking with the plumbers who were on scene. I further accept the evidence of where the officers stood during this very brief encounter. There was no attempt to circle Mr. Strong or move him away from his door. The officers did not present as aggressive or intimidating. They were polite and cordial.

f. I have no direct evidence from Mr. Strong indicating that from his perspective he felt he was detained. Moreover, the available evidence is to the contrary. I accept that Cst. Lacirasella asked whether the officers could step inside the residence to speak with Mr. Strong. I also find that Mr. Strong responded by stepping outside and allowing the door to close behind him. He clearly felt no compulsion to permit the police officers inside. Further, the nature of the interaction was hardly confrontational. I accept that the tone and nature of the language used was not aggressive or intimidating. Indeed, very little discussion occurred prior to Mr. Strong’s incriminating first utterance. The interaction at the door lasted moments.

g. Immediately after the arrest, Mr. Strong thanked the police officers for being “gentlemen” and then asked if they could lock up his apartment, which they did.

[36] I turn next to examining what occurred immediately after the arrest. Counsel argues that the police violated Mr. Strong’s s. 10(b) Charter rights by failing to immediately advise him of his right to counsel. I disagree for the following reasons.

a. There is no issue that following his initial utterance, Mr. Strong was placed under arrest for murder and the police were required to comply with s. 10(b) immediately.

b. The right to counsel was read to Mr. Strong a few minutes after he was placed under arrest. However, the context is important. The police were dealing with a surprising and quickly emerging situation. They attended a low priority call which turned into an admission relating to the presence of a body. The officer who arrested Mr. Strong took immediate steps to handcuff him. This required two sets of handcuffs given Mr. Strong’s size. The officer, at Mr. Strong’s request, retrieved a key from Mr. Strong’s pocket so that the apartment door could be locked. He then walked Mr. Strong down a short driveway to a police cruiser parked on the roadway. It was a very cold evening with a temperature of approximately -20C. The officer conducted a safety search of Mr. Strong prior to putting him in the police vehicle.

c. As he was being put in the vehicle, Mr. Strong spontaneously indicated that he wanted to “spill the beans.” The officer stopped him and read him his right to counsel.

d. The delay between the arrest and the provision of the rights to counsel was at best a matter of a few minutes. I accept the officer’s evidence that he read the rights to counsel as soon as he felt safe to do so. In the circumstances, I see no constitutional problem with the officer needing a few minutes to place handcuffs on a person arrested for murder, moving them down a driveway to a police car and conducting a safety search before putting them in the police car.

e. I also accept that there was no attempt to elicit any information from Mr. Strong during this time. To the contrary, when Mr. Strong indicated that he wanted to “spill the beans”, he was interrupted by the officer who read him his rights and then took steps to ensure that Mr. Strong understood his rights.

[37] I turn lastly, to assessing whether the police violated Mr. Strong’s s. 10(b) rights by failing to comply with the implementational component, and in particular by failing to provide him with access to counsel in a timely fashion. In my view, the police were under no obligation to facilitate contact with counsel at the roadside. While some delay was caused by Cst. Park “facing up” the computer report to facilitate Mr. Strong’s arrival and processing at the station, I do not see this delay as a failure to comply with the implementational component of s. 10(b). The police are required to provide an opportunity to contact counsel “as soon as practicable”: see Taylor, supra, at paras. 28-28. They are not required to make an emergency run to a police station whenever they have someone in custody. They are also not required to provide a telephone to an arrestee while inside a police cruiser.

[38] On the evidence before me, I am satisfied that the police moved with reasonable dispatch in taking Mr. Strong from the scene to the police station. Mr. Strong was read his rights at approximately 8:40 p.m. The officer clarified Mr. Strong’s response to ensure that Mr. Strong wanted to speak with duty counsel. He then took steps to enter information on Mr. Strong’s arrest report for processing at the station. At 8:49 p.m., as the officer was typing on his terminal, Mr. Strong made a further utterance about the body parts being in the freezer. The officer typed this spontaneous utterance into the computer terminal and Mr. Strong corrected the officer’s recording of the utterance. At 8:53 p.m., the officer departed the scene and drove to the station that was nearby. At no time during this portion of the event did the officer ask Mr. Strong any questions.

[39] I am further satisfied that once at the police station, the police again moved with reasonable dispatch to facilitate access to counsel. In this regard, I note that Mr. Strong made a further unprompted utterance about contemplating suicide at approximately 8:55 p.m. He was then left alone in the police car which was parked in a sally port as the arresting officer attended inside the station to make arrangements for Mr. Strong’s processing. The officer checked on him a number of times given the potential risk of suicide. Mr. Strong was then paraded and processed. He was further searched and certain items were seized from him. A call was placed to duty counsel at approximately 9:37 p.m., and he was shortly thereafter placed in contact with counsel. While I accept that the call to counsel could perhaps have been made earlier, I am also satisfied that the police were mindful of their obligation to hold off on questioning during this period. As well, I accept that the officers were dealing with an impromptu arrest for murder where they had just learned of the presence of de-fleshed body parts in a freezer. This was not a routine arrest for a common offence. Ultimately, I am not satisfied that the police did anything to violate Mr. Strong’s s. 10(b) rights during this initial encounter. To the contrary, Mr. Strong’s rights were respected by officers who did not seek to capitalize on his apparent willingness to “spill the beans.”

[40] In view of my findings in relation to s. 10(b), there is no need to consider whether the utterances should be excluded under s. 24(2) of the Charter.

The Section 9 Charter Application

[41] The applicant argues that police violated his s. 9 Charter rights when they arrested him for the first-degree murder of Kandis Fitzpatrick on November 8, 2018. As initially framed, the application alleged that police lacked reasonable and probable grounds to arrest Mr. Strong for the first-degree murder of Kandis Fitzpatrick and that as a result, his detention on that charge was arbitrary. The defence posited that the arrest was tactical. The police were planning on interviewing Mr. Strong in relation to Kandis Fitzpatrick and believed that if they arrested him for the offence, it might prompt him to provide an inculpatory statement. The remedy sought was a stay of proceedings in relation to count 1 of the indictment, which relates to the first-degree murder of Ms. Fitzpatrick.

[42] At the outset of submissions on the application, the defence revised its position and conceded that the arresting officer subjectively believed he had sufficient grounds to arrest Mr. Strong. However, the defence maintained its position that those subjective grounds fell short when measured objectively. The defence also conceded that a stay of proceedings would not be an appropriate remedy, and instead argued that the portions of Mr. Strong’s lengthy second interview that touched upon Ms. Fitzpatrick should be excluded from evidence. Lastly, the defence conceded that the police had sufficient grounds to arrest Mr. Strong for the first-degree murder of Rori Hache, and that as a result he was lawfully detained in relation to that charge.

[43] Both the applicant and the respondent filed application records in support of their respective positions. The records detail the various investigative steps that transpired between Mr. Strong’s initial arrest on December 29, 2017, and his eventual arrest for the first-degree murder of Kandis Fitzpatrick and Rori Hache on November 8, 2018. For the most part, the evidence is agreed upon. The application records were supplemented with viva voce evidence from the arresting officer, Detective Darren Short and Dr. Maja Popovic, a forensic DNA expert with the CFS. A volume entitled “Section 9 Application Materials” was used in examining Dr. Popovic who testified remotely.

[44] Det. Darren Short was the officer who formed the grounds to believe that Mr. Strong had committed the first-degree murder of Kandis Fitzpatrick. In his evidence, he outlined the various investigative steps that culminated in Mr. Strong’s re-arrest on November 8, 2018.

[45] Det. Short explained that during the initial processing of Mr. Strong’s residence, police discovered a “specialty” knife in a kitchen drawer. Det. Short noted that the knife appeared designed for a specific purpose, and following some internet research and discussion with a colleague who was familiar with that type of knife, he learned that it was specifically designed to skin and gut animals. Det. Short formed the belief that the specialty knife may have been used to dismember and de-flesh Ms. Hache’s body.

[46] The specialty knife was submitted for forensic examination, along with a number of other knives located at Mr. Strong’s residence. In early April 2018, Det. Short reviewed a report from the CFS and learned that a swab of the handle had revealed a male DNA profile. He also learned that swabs of “tissue like material” had revealed a female DNA profile. However, much to his surprise, he learned that Ms. Hache was excluded as the donor of this DNA profile.

[47] At the time, Det. Short had been a homicide investigator for a number of years and had been involved in 30 to 40 homicide investigations. He was struck by the clean and methodical nature of the dismemberment of Ms. Hache. Once the initial DNA results revealed the presence of a second female profile on a knife designed for gutting and skinning animals, he concluded that Ms. Hache was not the only victim.

[48] His next investigative step was to determine who the female DNA profile belonged to. Det. Short learned that Ms. Fitzpatrick had been missing for a number of years. He made arrangements for her parents, William Fitzpatrick and Vicki Iadipaolo, to provide DNA samples for comparison purposes. The results of the comparison suggested that the unknown female DNA profile belonged to a child of Mr. Fitzpatrick and Ms. Iadipaolo. Further testing excluded their two other daughters, Krista and Oksana. As a result, Det. Short came to believe that the DNA profile on the specialty knife belonged to Kandis Fitzpatrick.

[49] Det. Short next set out to determine whether Kandis Fitzpatrick was deceased. He learned that she had been last seen by family members in early 2008 and that at that time she was approximately 19 years old, was living on the streets with a drug dependency and had turned to the sex trade.

[50] Checks in relation to Ms. Fitzpatrick were conducted on OHIP records, social services databases, banking institutions, passport services and driver’s license records across all provinces. A media release seeking information about Ms. Fitzpatrick’s whereabouts was released on July 10, 2018. Her known associates were also located and interviewed.

[51] While police received some tips and leads, Ms. Fitzpatrick’s whereabouts were never determined. As a result, Det. Short concluded that she was deceased.

[52] As the investigation progressed, Det. Short formed grounds to believe that Ms. Hache was murdered during a sexual encounter with Mr. Strong. He based this conclusion on autopsy results which, while inconclusive on a cause of death, noted areas of trauma to Ms. Hache’s face and head. He considered the nature of her dismemberment, including the disposal of her torso and organs. He also considered the various items of forensic evidence gathered during the search of Mr. Strong’s apartment, including the presence of certain blood stains and DNA evidence on various items, including a hammer, knives, sex toys and restraints. He learned that Mr. Strong could not be excluded as a contributor from DNA samples taken from vaginal and anal swabs of Ms. Hache’s pelvis. He learned that Mr. Strong visited a number of websites that depicted gore and sexual violence against women. Lastly, he also considered interviews with former intimate partners of Mr. Strong who indicated that he had a preference for BDSM type activities including choking that was, at times, non-consensual.

[53] While Det. Short had no evidence of a connection between Ms. Hache and Ms. Fitzpatrick, he drew some connections between their respective disappearances. They were both similarly situated in terms of their life circumstances. They were both roughly the same age and physical build. They both frequented the same general areas of downtown Oshawa.

[54] The specialty knife was re-submitted for further forensic analysis.[^1] While consideration was given to performing histological testing to determine whether or not the “tissue like material” was human flesh, the decision was ultimately made to conduct further DNA testing. As a result, a further DNA profile was obtained and Ms. Fitzpatrick was not excluded as the donor.

[55] Based on all of the investigation, Det. Short formed grounds to believe that the specialty knife had been used on Ms. Fitzpatrick “as designed.” While he did not know how she was killed, he believed that Mr. Strong killed her during a sexual encounter and then dismembered the body to destroy evidence and avoid detection.

[56] Det. Short consulted with senior Crown counsel, and the decision was made to charge Mr. Strong with first-degree murder in relation to both Ms. Fitzpatrick and Ms. Hache. The decision was conveyed to Mr. Strong’s counsel and on November 8, 2018, Mr. Strong was charged accordingly. On that same date, the Crown withdrew the charge of causing an indignity on the body of Ms. Hache.

[57] In cross-examination, Det. Short agreed that despite an extensive investigation, he had little direct evidence relating to Ms. Fitzpatrick. None of Mr. Strong’s electronic devices, which were forensically examined, provided any direct evidence. The police were unable to connect Ms. Fitzpatrick with items of jewelry found on Mr. Strong during his initial arrest. None of the womens clothing found in Mr. Strong’s apartment was connected with Ms. Fitzpatrick. A search of Mr. Strong’s backyard using shovels and sonar produced no evidence. As well, forensic examination of blood stains failed to reveal any connection with Ms. Fitzpatrick.[^2]

[58] In terms of the “specialty knife”, Det. Short indicated that he believed the “tissue like material” found on the blades was human flesh. He was challenged on this belief and it was suggested to him that the DNA report from the CFS merely stated that a DNA profile was obtained from the “tissue like material.” It did not state that the “tissue like material” was human flesh. Det. Short indicated that he concluded based on reading the report, that the DNA profile came from human flesh that was on the blade. He did not recall specifically asking Dr. Popovic whether she had concluded that the tissue was human. He also could not recall ever discussing his belief that the “tissue like material” was human flesh with Dr. Popovic.

[59] Det. Short confirmed that histological testing, which could have indicated whether the “tissue like material” was human, was not done, though he indicated his understanding that histological testing would have consumed the entire sample thus prohibiting any further DNA testing.

[60] Dr. Maja Popovic testified regarding her involvement in testing the specialty knife. The specialty knife was initially examined on February 23, 2018, and examined again on August 7, 2018. On each examination swabs were taken from specific areas of the knife and tested for DNA. Results were set out in reports dated March 26, 2018, August 30, 2018, and September 18, 2018. In the report dated March 26, 2018, Dr. Popovic indicates that a DNA profile was developed from two swabs of “tissue-like material” taken from the knife, with one swab taken from the small blade on the knife and one swab from the larger blade. The report also confirms that Ms. Hache was excluded as the donor of the DNA profile. In the report dated August 30, 2018, Dr. Popovic indicates that Mr. Strong could not be excluded as the contributor of a DNA profile developed from a swab of the handle of the specialty knife. In the report dated September 18, 2018, Dr. Popovic indicates a swab of the blade and inner surfaces of the blade bed which were exposed when the knife was disassembled, produced a DNA profile in relation to which Ms. Fitzpatrick could not be excluded as the donor. The report also notes that “tissue-like material was observed.”

[61] In relation to the second examination, Dr. Popovic testified that the specialty knife was disassembled to expose previously unexamined portions of the blades. Small pieces of tissue-like material were observed. The pieces of tissue-like material tested negative for blood, though swabs were sent off for DNA testing. Dr. Popovic was present for the testing, as was the pathologist, Dr. Williams, who was tasked with determining whether a histological analysis would be possible.

[62] Dr. Popovic was questioned specifically on the nature of the “tissue-like material.” She explained that the material collected looked like tissue, though it was beyond her area of expertise to say that it actually was human tissue. She noted that the material produced a relatively large amount of DNA which suggests it could be human tissue. She agreed that in her experience, knives are often examined for the presence of tissue-like and grease-like material because it is often a rich source of DNA. That said, the DNA profile could also have come from a bodily fluid such as saliva, vaginal discharge or nasal discharge, though not blood. Dr. Popovic could not determine what the tissue-like substance ultimately was, and agreed that it was possible that Ms. Fitzpatrick’s DNA was on top of or mingled with the “tissue-like material.” She also agreed that she could not ultimately conclude whether the tissue-like material was either human, animal or plant in origin. Lastly, she agreed that given the size of the area swabbed on the knife blade, she could not say that the DNA came specifically from the tissue-like material. As a result, she could not conclude that because she obtained a human DNA profile, the tissue was therefore human.

[63] Lastly, Dr. Popovic was asked whether she recalled discussing her findings with Det. Short. With reference to her notes, she was able to recall discussing the initial report with him on April 9, 2018. According to her notes of the conversation, she advised Det. Short that she could not say whether the tissue-like material was human, but that the amount of DNA obtained suggests that either tissue or a bodily fluid was the source.

Findings and Analysis – Section 9 Application

[64] In determining this application, I am guided by the following legal principles. First, in order to lawfully arrest a person for the commission of an offence, a police officer must subjectively possess reasonable and probable grounds to believe that the person has committed the offence. In addition, the subjectively held belief must be justifiable from an objective point of view: see R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at para. 17.

[65] Reasonable and probable grounds is not a high standard of proof. It does not require proof beyond a reasonable doubt or even a “prima facie” case. The test is met where, based on all the circumstances known to the police officer, “credibly-based probability replaces suspicion”: see R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1166, R. v. Storrey, supra, R. v. Chehil, 2013 SCC 49, at para. 27 and R. v. Shepherd, 2009 SCC 35, at para. 23.

[66] The objective reasonableness of a police officer’s subjective belief is assessed from the vantage point of a reasonable person “standing in the shoes of the police officer”, which includes a consideration of an officer’s training and experience: see R. v. MacKenzie, 2013 SCC 35 at paras. 62-63.

[67] At the time of Mr. Strong’s arrest for first-degree murder, the police knew and/or believed the following, inter alia, about Rori Hache:

a. She was a young troubled teen who had been involved in drugs and was living on the street and engaged in the sex trade;

b. She went missing and her dismembered and disemboweled torso was found in Lake Ontario on September 11, 2017;

c. On December 29, 2017, police learned that parts of her body had been flushed down a drain at 18 McMillan Drive. They also learned that her head, de-fleshed arms and legs and de-fleshed torso were in a freezer inside Mr. Strong’s bedroom;

d. Her blood and DNA was found on knives, various sex toys and restraints, an air mattress, and in various locations inside Mr. Strong’s residence.

[68] As noted above, the defence accepts that police had sufficient grounds to arrest Mr. Strong for the first-degree murder of Rori Hache. The concession is more than warranted based on the totality of the evidence.

[69] In relation to Kandis Fitzpatrick, the police knew and/or believed the following:

a. She was a young troubled teen who had been involved in drugs and was living on the street and engaged in the sex trade;

b. She had been missing without a trace since approximately late March 2008, though she was only reported missing to police in February of 2010;

c. A specialty knife designed for gutting and skinning animals was found in a drawer in Mr. Strong’s kitchen. The knife was in a sheath. Once removed from the sheath, it appeared that there was “tissue like substance” on the visible portion of the blade;

d. The specialty knife was submitted for forensic testing. An initial test reported on March 26, 2018, revealed that Ms. Hache was excluded as the donor of a DNA sample taken from the tissue-like substance on the blade. A familial DNA analysis was conducted and on June 21, 2018, the CFS reported that the donor of the DNA sample was likely the biological daughter of William Fitzpatrick and Vicki Iadipaolo, the parents of Kandis Fitzpatrick;

e. The specialty knife was resubmitted for further forensic testing. The knife was disassembled, and further samples were taken from the “tissue like substance” found on the blades. DNA tests reported on August 27, 2018, revealed that Ms. Fitzpatrick could not be excluded as the donor.

[70] The police also had a basis to believe that Mr. Strong had an interest in BDSM style activities including choking, and had engaged previous partners in consensual and non-consensual bondage and choking activities. His on-line interests included gore sites and pornography with a violent bent.

[71] Based on the foregoing, the arresting officer formed the subjective belief that Ms. Fitzpatrick had been the victim of a first-degree murder by Mr. Strong. In this regard, he came to believe that Ms. Fitzpatrick met her end in a manner similar to Ms. Hache.

[72] The defence concedes that the arresting officer, Det. Short, subjectively believed that Mr. Strong committed the first-degree murder of Kandis Fitzpatrick. Again, this concession is appropriate. Det. Short was able to clearly and credibly articulate the reasons why he held this belief.

[73] The remaining issue is whether Det. Short’s belief was objectively reasonable. In my view, his belief was reasonable. I reach this conclusion for the following reasons:

a. The grounds to support the charge of first-degree murder for the death of Ms. Fitzpatrick cannot be assessed in a vacuum. The assessment of the evidence available to police should be viewed holistically, including the evidence relating to the death of Rori Hache. In this regard, the police are not strictly bound by the rules of evidence that will govern the ultimate assessment of that evidence. They are not required to clinically apply the legal analysis from R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, in order to determine whether the evidence they have gathered regarding Ms. Hache meets the legal requirements for similar act evidence, and therefore supports the charge relating Ms. Fitzpatrick. Instead, the police are permitted to look at the evidence broadly using their training, experience and common sense.

b. In this case, an objective person standing in the shoes of the arresting officer would readily draw connections between Ms. Hache and Ms. Fitzpatrick. They were both roughly the same age at the time of their disappearance. They were both similarly situated in terms of their life struggles. They were both working as sex workers. Ms. Hache was dismembered and some of her body parts were found in a freezer in Mr. Strong’s bedroom. Ms. Fitzpatrick’s body has never been located, but her DNA was found on the blade of a knife specifically designed for gutting and skinning animals. The specialty knife was located in a drawer in Mr. Strong’s kitchen.

c. In relation to the source of the DNA on the specialty knife, I am satisfied that Det. Short reasonably believed that the DNA profile came from a human tissue sample. The DNA reports repeatedly use the phrase “tissue-like material.” The reports note the discovery of a human DNA profile in relation to which Ms. Fitzpatrick ultimately cannot be excluded as the contributor. While Dr. Popovic does not offer the expert opinion that the tissue is human, she is clear in her evidence that the sample came from a DNA rich source which would be either tissue or a bodily fluid other than blood. She indicates that she conveyed this to Det. Short in a discussion.

d. In assessing grounds, the ultimate correctness or accuracy of the grounds is not really the issue. The focus is on whether the arresting officer reasonably believed he had grounds at the time of the arrest. The arresting officer may ultimately be wrong about some or even all of the grounds relied upon without necessarily undermining the reasonableness of the initial belief. As such, even if Det. Short was ultimately wrong in concluding that the DNA sample was from human tissue, this finding would not undermine his grounds so long as his initial belief was reasonable.

e. In any event, even assuming that the DNA profile came from a bodily fluid which was on top of or mixed in with the tissue-like substance, it is hard to see how that fact would serve to undermine the existence of the officer’s belief in the nature of Ms. Fitzpatrick’s disappearance or in Mr. Strong’s involvement with it.

[74] Ultimately, when I look at the totality of the evidence available to Det. Short when he arrested Mr. Strong, I am not satisfied that he lacked reasonable and probable grounds for concluding that Mr. Strong was responsible for the first-degree murder of Kandis Fitzpatrick.

[75] While this finding is sufficient to dispose of the application, I wish to further note that I have not been provided with any authority suggesting that a state of detention can be analytically bifurcated into a non-arbitrary detention and an arbitrary detention. There is no suggestion that this is a case where the police misused or abused the arrest process for tactical reasons. Indeed, it is conceded that Mr. Strong was lawfully arrested and therefore properly detained in relation to the charge of first-degree murder on Rori Hache.

[76] As a result, it is hard to see how, if the police had fallen short of the reasonable and probable grounds mark in relation to Kandis Fitzpatrick, the otherwise lawful detention of Mr. Strong would somehow become arbitrary. The nature of Mr. Strong’s detention did not change. He would have been arrested, charged and detained in exactly the same manner. Moreover, his interview would have proceeded no differently. Even if the police had not arrested him in relation to Kandis Fitzpatrick, nothing would have prevented them from asking him questions about her disappearance, subject to any resulting issues dealing with voluntariness.[^3]

The Section 8 Charter Application – Knife and Freezer Re-Testing[^4]

[77] The initial police investigation was focused on identifying the body parts found inside the drains and freezer at Mr. Strong’s residence at 19 McMillan Drive in Oshawa. Police quickly drew a connection between the remains and the torso that had been found in Lake Ontario on September 11, 2018, and DNA testing established that the remains belonged to Rori Hache. The investigation into Rori Hache’s death was named “Project Desmond.”

[78] On December 30, 2017, a search warrant was issued for Mr. Strong’s residence.[^5] The search continued over a number of days and on January 4, 2018, an additional warrant was issued. This second warrant was essentially an extension of the first and was necessitated by the time needed to search the home, remove an explosive device and then process the many exhibits seized. At the time of the warrants, the offence under investigation was indignity to the body of Rori Hache. Among the various items that the police were authorized to search for was “human remains, bodily fluid, hair.”

The Specialty Knife

[79] On January 7, 2018, a “specialty knife” was seized from a utensil drawer in Mr. Strong’s kitchen. The knife, known as a Wyoming Knife, is specifically designed for use in skinning or gutting animals.

[80] The knife was submitted to the CFS for testing and on March 26, 2018, a report was provided to police indicating that two swabs of “tissue-like material” taken from the blades of the knife revealed a female DNA sample suitable for profiling. Much to the surprise of the investigators, Rori Hache was excluded as the source of the DNA profile.

[81] As a result of the CFS findings, the police commenced a second investigation, named “Project Duncan”, to determine if the unknown female DNA profile was from a potential second victim.

[82] On June 21, 2018, familial testing on the initial DNA sample taken from the knife revealed that a child of William Fitzpatrick and Vicki Iadipaolo was the likely source. Kandis Fitzpatrick is the biological daughter of William Fitzpatrick and Vicki Iadipaolo. Oksana Fitzpatrick and Krista Fitzpatrick are also biological daughters, though they were later excluded as the donors of the DNA sample.

[83] On June 29, 2018, the knife was submitted to the Ontario Forensic Pathology Service for examination by a forensic pathologist, Dr. Andrew Williams. Dr. Williams examined the knife to determine whether a tissue sample could be extracted for histological examination. No histological testing was done as it was determined that testing would preclude any further DNA analysis given the small quantity of biological material available.

[84] On July 4, 2018, the knife was re-submitted to the CFS for further testing. The knife was disassembled, and additional areas of the blades were tested. This examination yielded further DNA samples. These samples were from the same contributor as the earlier sample.

[85] On July 5, 2018, police obtained a search warrant authorizing a further search of Mr. Strong’s residence for bodily substances and human remains of Kandis Fitzpatrick.

The Freezer

[86] On January 17, 2018, the chest freezer found inside Mr. Strong’s bedroom was seized. Swabs were collected from the freezer on January 30, 2018, and then submitted for analysis at the CFS.

[87] On May 7, 2018, police submitted an additional seven swabs taken from the freezer to the CFS for testing. The testing request submission noted “(Possibly other victims, possibly unknown female profile #2).” On July 19, 2018, the CFS determined that Rori Hache could not be excluded as the donor of the DNA profile on six of the seven additional swabs. Kandis Fitzpatrick was excluded as a donor of DNA on these swabs.

[88] On August 7, 2019, police submitted the entire freezer to the CFS for further examination in order to determine whether any further blood or DNA related to either Rori Hache or Kandis Fitzpatrick could be located. On September 24, 2019, the CFS reported that Ms. Fitzpatrick could not be excluded as the donor of a DNA profile extracted from blood found in three locations inside the freezer, and that Ms. Hache could not be excluded as a donor of a DNA profile from blood in one additional location.

Findings and Analysis – Section 8 Application – Knife and Freezer Re-Testing

[89] The defence argues that forensic re-testing of the specialty knife and the freezer was unlawful and resulted in a violation of s. 8 of the Charter. In short, the defence argues that the purpose of re-testing the knife and the freezer was essentially unrelated to the investigation of Rori Hache’s death, but instead formed part of a separate investigation into the death of Kandis Fitzpatrick. The defence further argues that while Mr. Strong’s privacy rights in relation to the knife and the freezer were lawfully curtailed by the initial search warrant and forensic testing done in relation to the death of Rori Hache, once the investigation veered towards a separate alleged victim, Mr. Strong retained an undefeated privacy interest in relation to the items seized under warrant. As such, the police ought to have obtained a “locker warrant” to permit them to lawfully re-seize the items from the police property locker and then conduct further forensic testing.

[90] The Crown opposes the application and argues that Mr. Strong has no residual privacy interest in relation to the knife and freezer. Once those items were seized under a lawful warrant, the police were free to forensically test and re-test the items as they saw fit. The Crown acknowledges that while a residual privacy interest arises in cases where electronic devices are seized, it maintains that no similar privacy interest arises in this case. In any event, the Crown also argues that the search for evidence in relation to the murder of Rori Hache would reasonably include a search for evidence of other alleged victims.

[91] This application essentially turns on whether Mr. Strong retained a continuing reasonable expectation of privacy in relation to the knife and freezer. In my view, he did not. I reach this conclusion for the following reasons:

a. First, the police had valid warrants to search Mr. Strong’s apartment. There is no issue that the police validly seized both the freezer and the specialty knife during a judicially authorized and reasonably conducted search.

b. Second, the police did not require a separate warrant or specific judicial authorization to forensically test either the knife or the freezer, or for that matter any of the physical items seized pursuant to the warrant, except for the electronic devices. It is traditionally accepted that the police do not need separate or specific judicial authorization to forensically test a non-electronic item that has been lawfully seized: see Canada (Attorney General) v. Foster (2006), 2006 CanLII 38732 (ON CA), 215 C.C.C. (3d) 59 (Ont.C.A.), at paras. 37 and 59, R. v. Backhouse (2005), 2005 CanLII 4937 (ON CA), 194 C.C.C. (3d) 1, at para. 91, R. v. Weir, 2001 ABCA 181, at para. 18 and R. v. Oland, 2015 NBQB 243, at paras. 181-188.

c. The reason behind this traditional view is related to the concept of reasonable expectation of privacy. The law recognizes that people can have a reasonable expectation of privacy in relation to certain places like a home, car, briefcase, etc. As a result, police require a warrant to search such a place. However, where, for example, an object like a box is found inside a home, the law does not generally recognize a further distinct expectation of privacy in relation to the contents of the box. As such, a lawful warrant for the home will generally permit police officers to look inside a box found inside a home.[^6] The police do not need to apply for a separate warrant to search the contents of the box. The same approach applies to forensic testing of physical non-electronic items. Once the police have a warrant for a home and lawfully seize an item, they are permitted to subject it to forensic testing without further judicial authorization. Again, the law does not generally recognize a distinct expectation of privacy in relation to the physical properties of an item, for example, a coat that is then tested to determine whether a DNA profile can be extracted from a stain that appears on the coat. As long as police have lawful authority to conduct the initial seizure of the item, they are not required to obtain further judicial authorization to perform the testing.

d. Support for this proposition is found in R. v. Jones, 2011 ONCA 632, where the Court of Appeal considered whether a lawfully seized computer was “indivisible” for the purpose of a later forensic examination. The Crown argued that a computer, much like any other lawfully seized item, could be forensically examined in its entirety. While the court rejected this argument in relation to electronic items such as computers, it affirmed the general principle discussed above, namely, that a person no longer retains an expectation of privacy in relation to a lawfully seized physical item. The Court explained as follows at paras. 45-46:

A central theme in the Crown's argument was the notion of the computer as an indivisible object of search. On this view, a computer is an item to be seized and, like any other physical object lawfully seized, is subject to whatever testing the police may determine necessary -- even with respect to subsequently discovered crimes. For example, a suspect's clothing seized under a warrant in a sexual assault investigation may later be tested for semen in the context of a subsequent murder investigation: see R. v. DeJesus, 2010 ONCA 581, at paras. 5-10. Body samples (scalp and pubic hair) given on consent with a view to eliminating an individual as a suspect in one murder case were properly tested for a DNA match in connection with a second murder: R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at paras. 82-90: see, also, R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, at para. 43; R. v. Dore (2002), 2002 CanLII 45006 (ON CA), 166 C.C.C. (3d) 225 (Ont.C.A.), at para. 50. The rationale behind this concept is that no reasonable expectation of privacy remains in the object once an object has been lawfully obtained by the police for the purpose of criminally investigating the suspect.

Put in the terms of this case, the argument is that a warrant containing no limiting terms with respect to the parts of the computer that could be searched, properly authorizes a full examination of all the data stored on the computer as if it is one indivisible item. I do not accept this view, however. In my opinion, the analogy between forensic testing of a physical object and the examination of the contents of a computer is not an apt one. Unlike a physical object, it is not information generated by the physical characteristics of or adhering to the object that is the target of the search. It is the informational contents of the computer themselves that are the target of the search. This is a qualitative difference.

e. The approach in Jones in relation to electronic devices has been approved of and further developed in more recent cases: see R. v. Reeve, 2018 SCC 56, R. v. Marakah, 2017 SCC 59, R. v. Cole, 2012 SCC 53, and R. v. Fearon, 2014 SCC 77. Based on these cases, it is clear that the nature of the privacy interests engaged when considering the information available on an electronic device creates a vastly different context than that which exists in relation to the examination of physical non-electronic items.

f. In this case, the applicant accepts that the police were lawfully entitled to submit both the freezer and the specialty knife for repeated forensic analysis in relation to the investigation of Ms. Hache’s death. The police had a valid warrant and the seizure and continued detention of those items was lawful. I see no basis to find that Mr. Strong had a distinct expectation of privacy in relation to the surface of the knife or the interior of the freezer, sufficient to trigger the need for further judicial authorization over and above the authorization obtained initially.

g. Further, I do not find persuasive the argument that the police essentially exceeded the bounds of the warrant by conducting forensic testing that was in relation to a “separate” investigation. First, the items were initially lawfully seized as the police reasonably and correctly believed they fell within the scope of the warrant they were operating under. In other words, when conducting the actual search and seizure, the police believed these items were evidence of the offence listed in the warrant, namely, indignity to Rori Hache’s body. Second, the initial testing was directly related to the investigation of the charge relating to Ms. Hache and is accepted by the applicant as having been lawfully conducted. The applicant also accepts that further testing vis-à-vis Ms. Hache would have been entirely permissible. However, the applicant asserts that this testing was rendered unlawful once it related to a different victim. This submission is without merit. The evidence in this case is no different than the evidence that was seized in R. v. DeJesus, 2010 ONCA 581, R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339 and R. v. Rodgers, 2006 SCC 15. It was lawfully obtained by police, and the accused retained no further privacy interest in it after it was lawfully obtained. As such, the police were free to conduct further scientific testing without the need for a warrant. Furthermore, even if the subsequent testing was mainly intended to gather evidence regarding Ms. Fitzpatrick’s disappearance, it was also broadly related to collecting evidence in relation to the charge involving Ms. Hache. There can be no issue that evidence of multiple victims sharing a number of commonalities would advance the case the police were building against Mr. Strong: see R. v. Ricciardi, 2017 ONSC 2788, at para. 42. This is not an instance where there is any suggestion that the police set out to use an initial warrant as a pretext to conduct a different investigation for which they did not have sufficient grounds.

[92] In the absence of a distinct reasonable expectation of privacy, the police did not violate Mr. Strong’s s. 8 Charter rights by submitting the lawfully seized and detained specialty knife and freezer for further scientific testing. In view of this finding, I see no need to engage in a s. 24(2) analysis.

The Section 8 Charter Application – Google General Warrant

[93] In this application, the defence argues that the police improperly resorted to a general warrant to obtain a Google data file that ought to have been obtained using either a production order or perhaps a s. 487 warrant, coupled with an assistance order. The defence notes that resort to a general warrant is only statutorily available where no other type of warrant or judicial authorization exists permitting the technique, procedure or thing to be done. The defence further argues that the information to obtain placed before the issuing justice, failed to provide a basis upon which the issuing justice could conclude that issuance of the general warrant was “in the best interests of justice.” The defence argues that the evidence obtained, namely user location history data, ought to be excluded under s. 24(2) of the Charter.

[94] The Crown’s position is that resort to general warrant for the technique used in this case was appropriate. The Crown notes that while it may have been possible to obtain the evidence sought using a different legal mechanism, the correct focus is on the nature of the investigative technique that was judicially authorized and not the type of evidence that is ultimately obtained. Ultimately, the Crown notes that there is no challenge to the sufficiency of the grounds for the general warrant and, as such, the challenge is essentially technical which and, even if successful, would not warrant exclusion of the evidence.

[95] By way of evidence on this application, I received the affidavit of Joanna Baumgartner, defence counsel’s assistant, with various attachments. I also received the Crown’s responding record containing various items including a letter from David T.S. Fraser, outside counsel for Google LLC and Google Canada Corporation, providing, with the consent of his clients, certain information regarding Google’s policies and practices in relation to production orders issued in Canada. As well, the responding record included the affidavit of Jennifer Daskel, a professor of law in the United States, setting out her opinion on the conflict of law issues that arises where a Canadian production order is served on a U.S. corporate entity such as Facebook. This affidavit was filed in unrelated litigation in Canada and was subject to cross-examination, an excerpt of which was also provided in the responding record. At the outset of the motion, Counsel agreed that I could consider the written material filed in both application records without the need for cross-examination and for the truth of its contents.

[96] I turn next to a brief review of the factual backdrop. Following Mr. Strong’s initial arrest, police obtained a search warrant for his residence at 19 McMillan Drive. Pursuant to that warrant, police seized a number of electronic devices, including a Samsung tablet which used an Android operating system. The search warrant authorized examination of the electronic devices. When the tablet was examined, police learned that the device showed no user activity prior to December 29, 2017, though they could not confirm the date as accurate at that time. Police were also aware that Mr. Strong gave a post-arrest interview, wherein he indicated that he “wiped” his tablet approximately a week before his arrest as it was “running slow.”

[97] The police investigation also revealed that Mr. Strong used a Google email account of scubaadam1@gmail.com, and that the user of this email account had set up a certain telephone number as a recovery number that could be used to reset the account password and thereby access any data the user had stored online.

[98] Investigators came to believe that they could recover the stored data of Mr. Strong’s Google account despite the fact that the tablet had been “wiped.” However, in order to do so, police required access to the phone using the recovery phone number listed for the account. While that phone number had been initially assigned to Mr. Strong, his account had lapsed following his arrest and the phone number was eventually reassigned to a new user, Justin Costello. Investigators came to believe that if they had access to Mr. Costello’s phone, they could reset the password to Mr. Strong’s Google account and then once the password was reset, they could access the account and download the data that would have been available on the tablet had it not been wiped clean.

[99] The investigators contacted Mr. Costello and indicated that they needed to use his phone to receive a confirmation code from Google so they could reset the password that had been set on Mr. Strong’s account. While Mr. Costello confirmed that he was in possession of a phone using Mr. Strong’s former telephone number, he refused, at that time, to assist in the investigation.

[100] In the absence of Mr. Costello’s cooperation, the police opted to obtain a general warrant authorizing the following investigative steps or techniques:

a. The police planned to meet Mr. Costello and demand that he turn over his unlocked cell phone for the purpose of conducting the password reset on Mr. Strong’s Google account.

b. Once Mr. Costello’s phone was in police custody, the police would commence the password reset process for Mr. Strong’s Google account and this would result in a text containing a verification code being sent to the phone. The process of obtaining this verification code would be done in Mr. Costello’s presence and the police would not examine anything else on Mr. Costello’s phone.

c. The password reset process would be undertaken on a police computer. Police would attempt to log in to Mr. Strong’s Google account, and then use the “forgot password” feature to cause a text containing a verification code to be sent to Mr. Costello’s phone. Once police obtained the verification code, they would complete the process by creating a new password for Mr. Strong’s Google account. The police would also change the recovery phone number to a police phone number. These steps would prevent any further access and alteration to the data in the account.

d. The verification text would be deleted from Mr. Costello’s phone and his phone would be returned to him. The entire interaction with Mr. Costello would be audio recorded.

e. Once police reset the password, they would access Mr. Strong’s Google account from the Durham Regional Police Electronic Crimes Unit and download the relevant data files stored in the cloud. The data would be reviewed for relevance and items of interest to the investigation would be extracted for further analysis.

[101] The general warrant was signed by Block J. on October 10, 2018. On October 12, 2018, Mr. Costello met with police officers at an agreed upon location and provided his phone so that the password reset process could be undertaken. The process was completed successfully, and police were able to reset the password and then access and download data relating to Mr. Strong’s account.

[102] David Fraser, outside legal counsel for Google LLC and Google Canada, indicates that all Google consumer services in Canada are provided by Google LLC and not Google Canada Corporation. As a result, the sought-after data is not under the control of Google Canada Corporation and it cannot comply with a production order for Canadian user information.

[103] Further, Google LLC, an American company, will voluntarily provide information in response to Canadian court orders but only where doing so does not conflict with other legal obligations. One such obligation is found in the Stored Communications Act, a United States federal statute that prohibits disclosure of communication content except pursuant to a qualifying warrant issued by a United States federal or state court. A user’s saved location history falls within the definition of “content”, and as such is captured by the disclosure prohibition in the Act.

[104] According to Mr. Fraser, Canadian law enforcement agencies may seek a qualifying U.S. order by following the procedures under the Mutual Legal Assistance Treaty between Canada and the United States.

[105] The Ministry of the Attorney General and Google have entered into a protocol for the service and transmission of Canadian court orders. Mr. Fraser is “Designated Counsel” for this purpose. However, Mr. Fraser specifies that this protocol generally relates to instances where Google voluntarily provides information. In this instance, had police obtained a production order for the data sought, Mr. Fraser asserts that Google would have been prohibited from voluntarily providing the information and as a result, he would have advised Google LLC to seek a judicial review of the production order. Mr. Fraser’s understanding of the conflict of laws problem on this issue appears to be shared by Jennifer Daskal, who proffers a similar view in her sworn affidavit and cross-examination stemming from a judicial review application involving Facebook.

Google General Warrant – Analysis and Findings

[106] At the outset of my analysis and findings, I note that there is no challenge to the sufficiency of the grounds in relation to the general warrant. In other words, the defence accepts that the police presented the issuing justice with a sufficient basis upon which the issuing justice could conclude that “information concerning the offence” would be obtained using the technique authorized. Further, there is also no challenge to the initial search warrant which authorized not only seizure of electronic devices but also their forensic examination.

[107] I turn first to examining whether the investigative technique authorized by the general warrant could have been authorized by another investigative procedure.

[108] Section 487.01 of the Criminal Code sets out the requirements for the issuance of a general warrant. Section 487.01(a) requires that the issuing justice be satisfied by information on oath and in writing of reasonable grounds to believe that an offence has been or will be committed, and that information concerning the offence will be obtained through the proposed technique, procedure, device or “doing of the thing” proposed. Subsection (b) requires that a justice be satisfied that it is in the best interests of the administration of justice to issue the warrant. Lastly, subsection (c) creates a “no other provision” requirement that restricts the availability of a general warrant to only those instances where no other authorization or order is available. The section provides that a general warrant can only issue where:

…there is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done. [Emphasis added.]

[109] The wording of this subsection does not specifically state that the issuing justice must be “satisfied” that there is no other provision. Instead, it simply requires that there be no other provision. Presumably, the absence of the phrase “is satisfied” simply reflects the fact that this is a legal as opposed to evidential question.

[110] The “no other provision” requirement applies not to the evidence that the police are after, but rather to the proposed method of obtaining that evidence: see R. v. Ha, 2009 ONCA 340, at para. 43 and R. v. Brand, 2008 BCCA 94, at para. 50. The purpose of the “no other provision” requirement is to ensure that the general warrants operate as a residual and not a presumptive investigative tool: see R. v. TELUS Communications, 2013 SCC 16, at paras. 18-19, per Abella J. for the majority. This requirement is of particular importance where resort to the general warrant provisions results in the application of a less onerous standard of issuance, as is the case where a wiretap authorization is the other available provision: see TELUS, supra, at para. 19 per Abella J. and at paras. 69-76 per Moldaver J.

[111] In his concurring reasons in TELUS, Moldaver J. discusses the “no other provision” requirement and suggests that the appropriate test is one of “substantive equivalence.”[^7] He explains as follows at paras. 77-81:

[77] The test under s. 487.01(1)(c) must consider the investigative technique that the police seek to utilize with an eye to its actual substance and not merely its formal trappings. The provision must be interpreted so as to afford the police the flexibility Parliament contemplated in creating the general warrant, while safeguarding against its misuse. As the facts of this case illustrate, there is a need for heightened judicial scrutiny where Parliament has provided an authorization for an investigative technique that is substantively equivalent to what the police seek but requires more onerous pre-conditions.

[78] In so concluding, I note that in creating the general warrant, Parliament did not erase every other search authorization from the Code and leave it to judges to devise general warrants on an ad hoc basis as they deem fit. Courts must therefore be careful to fill a legislative lacuna only where Parliament has actually failed to anticipate a particular search authorization. To do otherwise would chip away at the foundation that shapes the respective roles of the courts and Parliament in our system of criminal justice when individual rights and freedoms are at stake.

[79] That said, I recognize, as I must, that this approach accepts a measure of uncertainty by tasking judges with the job of inquiring into the substance of purportedly “new” investigative techniques. In my view, an interpretation that is faithful to the purpose of the “no other provision” requirement in s. 487.01(1)(c) necessarily demands as much. Two practical guidelines, however, should serve to mitigate concerns that may arise.

[80] First, it is important for the police to appreciate that general warrants are not warrants of general application. On the contrary, they are to be used sparingly, when the investigative technique they wish to employ is truly different in substance from an investigative technique accounted for by another legislative provision. Where uncertainty exists, the police would do well to err on the side of caution. They must know — with certainty — that general warrants may not be used as a means to circumvent other authorization provisions that are available but contain more onerous preconditions.

[81] Second, when judges are faced with an application for a general warrant where the investigative technique, though not identical, comes close in substance to an investigative technique covered by another provision for which more rigorous standards apply, they should proceed with extra caution. At a minimum, judges should look closely at the material filed and satisfy themselves that the request for a general warrant is genuine and not merely a device to escape the rigours of another authorization provision. Where careful scrutiny establishes that a proposed investigative technique, although similar, has substantive differences from an existing technique — not simply that it is similar in substance but different in form — judges may grant the general warrant, but they should be mindful of their obligation under s. 487.01(3) to impose terms and conditions that reflect the nature of the privacy interest at stake. In doing so, they may borrow as appropriate from the conditions that Parliament has chosen to impose on the substantively similar existing authorization.

[112] When I consider Moldaver J.’s guidance, I am not satisfied that the technique authorized by the general warrant was “substantively similar” to other techniques available in the Criminal Code. I reach this conclusion for the following reasons:

a. There is no concern in this case that the police availed themselves of a technique that had a less rigorous standard for judicial authorization. The police did not do an “end-run” around a more demanding legislative provision. If anything, it appears that the option they chose was the more rigorous, albeit perhaps more certain, option: see R. v. Morris, 2018 MBQB 127, at paras. 40-41 and R. v. Jodoin, 2018 ONCA 638 at paras. 14-19. In making this finding, I appreciate that by using the general warrant provision the police avoided the complexity and uncertainty of extra-territorial application of Canadian production orders, and also avoided resort to the Mutual Legal Assistance Treaty, a time consuming and uncertain process. Avoiding uncertainty and complexity does not, in my mind, equate to engaging in an end-run on available legislative provisions aimed at protecting privacy rights. The concern expressed in TELUS relates to instances where the police undermine privacy rights by resorting to an investigative technique that grants them access to information normally protected by a higher or more rigorous standard of judicial authorization.[^8] There is no suggestion this occurred in this case.

b. The technique authorized by the general warrant included a number of steps and stages aimed at obtaining electronic evidence stored “in the cloud.” While some of the steps or stages of process could have been accomplished using other mechanisms, when the process authorized is viewed as a whole, it is clear that the overall technique could not be otherwise authorized under the Criminal Code or other statutes.

c. I start with examining whether a search warrant coupled with an assistance order would have been a substantive equivalent. I accept that an assistance order under s. 487.02 of the Code could have been used to compel Mr. Costello’s assistance. However, I do not see how the verification code that was to be sent to Mr. Costello’s phone could be considered “evidence with respect to the commission of an offence”, and therefore available using a s. 487 warrant. Moreover, once the police had the verification code, they still needed authorization for resetting the applicant’s password and then accessing the data stored in the cloud using their own computer. It is hard to see how a s. 487 warrant could be used for this purpose. It is also hard to see how the police could obtain a s. 487 warrant to search “the cloud” maintained by Google somewhere in the ether. Section 487 warrants are traditionally restricted to searching identifiable buildings, receptacles or places. Determining the physical location of data stored in a cloud system presents obvious challenges. In this regard, it strikes me that the use technique authorized by the general warrant provided a relatively simple solution for obtaining the sought-after data without engaging in the metaphysical exercise of determining where the data resides.

d. I turn next to consider whether a production order would have been a substantive equivalent in the circumstances. I accept that the technique proposed in the general warrant is different than a production order despite the fact that they both might produce the same evidence. However, the real question is whether the technique proposed is the substantive equivalent of a production order. On this issue, the defence argues that a production order served on the appropriate entity of Google would have produced essentially the same information. The Crown argues that the technique authorized under the general warrant was different as it allowed police to control the data, access it in manner that rendered the data most usable to investigators and maintain continuity over that data. Further, the Crown argues that on the material before me, I do not know whether the data obtained with the general warrant would have been the same as the data that would have been produced by Google had a production order been sought.

e. In my view, and subject to the issue of extraterritoriality that I will discuss in a moment, I do not accept that the technique authorized was substantively different than a production order for the sought-after data based solely on the grounds articulated by the Crown and summarized above. I am mindful of the fact that the onus to establish a Charter violation rests with the applicant. However, I note that the Crown has not provided any evidence as to how the technique authorized by the general warrant produced a different data set or type when compared with data that would have been obtained through a production order. Further, on this record, I am not prepared to find that the police would not have been able to address issues of control, access and continuity of the data, if the data had been provided by way of a production order.[^9] Again, this is an assertion not supported by evidence before me.

f. However, when I turn to the issue of extraterritoriality, I am satisfied that the technique used by the police was substantively different than a production order. In this regard, I accept the evidence of Mr. Fraser that the data sought in this case was stored by a United States based corporate entity, subject to the laws of the United States which prohibit disclosure of this type of data in the absence of a qualifying order by a U.S court. Based on Mr. Fraser’s evidence, it appears that a Canadian issued production order would have been challenged and/or not complied with. Based on this uncontradicted evidence, it appears that a production order served on Google LLC would likely not have resulted in the production of the sought-after data. The technique authorized by the general warrant permitted the police to bypass the uncertain issue of extraterritoriality and directly obtain the data they were looking for.

g. The extraterritorial scope of a Canadian production order is an unsettled and complex area of law. In British Columbia (Attorney General) v. Brecknell, 2018 BCCA 5, the Court of Appeal held that Craigslist, an American company, was “present” in British Columbia by virtue of how it conducted business there, and that as a result a Canadian issued production order could compel it to produce data. Brecknell was followed in Ontario in Re Application for a Production Order, s. 487.014 of the Criminal Code, 2019 ONCJ 755, but not followed in Newfoundland in In the Matter of an Application to Obtain a Production Order Pursuant to s.487.014 of the Criminal Code of Canada, 2018 CanLII 2369 (N.L.P.C.). See also Google Inc v. Equustek Solution Inc., 2017 SCC 34, [2017] 1 S.C.R. 824 and Equustek Solutions Inc. v. Jack, 2018 B.C.J. No 685 (B.C.S.C.), where the Supreme Court of Canada issued a worldwide injunction ordering Google to de-index certain websites, and Google subsequently obtained an order from a California court making the worldwide injunction issued by the Supreme Court of Canada unenforceable in the United States. In view of this case law, I am not prepared to find the use of a Canadian issued production order is substantively similar to the technique authorized under the general warrant in this case. At this stage, there is a real question over whether Canadian courts have jurisdiction to compel the data sought in this case using a production order.

h. Further, while I accept that it was open to police to pursue a diplomatic request under the Mutual Legal Assistance Treaty between Canada and the United States, I do not accept that this process amounts to a “provision” in another Act of Parliament as contemplated by s. 487.01(c) of the Code. The Mutual Legal Assistance Treaty is an agreement between Canada and the United States made pursuant to the Mutual Legal Assistance in Criminal Matters Act. It provides for cooperative requests for assistance in legal matters. Under this process, it would have been open to the Minister of Justice to make a request to the U.S. Attorney General to obtain a search warrant in the United States to obtain the sought-after data. The reach of the Canadian request for legal assistance would end at the border. It would then be up to U.S. authorities to determine whether it was appropriate to obtain a warrant in accordance with U.S. laws: see R. v. Terry, [1996] 2 S.C.R. 307, at paras. 18-19. As such, I do not see this diplomatic process as a “provision” that would be the substantial equivalent of the authorized technique in this case.

[113] I turn lastly to the applicant’s contention that the issuing justice could not have been satisfied that the issuance of the general warrant was “in the best interests of the administration.” On this issue, I am mindful of my role as a reviewing justice. I am not to simply determine whether I, as an issuing justice, would have concluded that issuance of the general warrant met this component of the test. Instead, I am to determine whether, based on the material placed before the issuing justice, he could have reached the conclusion that the test was met.

[114] A consideration of whether the issuance of a warrant is “in the best interests of the administration of justice”, requires a balancing of the privacy interests of the individual and the societal interest in pursuing the goal of law enforcement: see R. v. Ha, supra, at paras. 45-46, R. v. Ronald, 2016 ONSC 1692, at para. 16 and Hunter v. Southam, 2 S.C.R. 145, at pp. 159-160.

[115] In the sworn Information to Obtain (“ITO”), under the heading “Best Interests of the Administration of Justice”, the affiant sets out details as to why the police feel the general warrant is important to their investigation and why they believe it will yield evidence of the offence under investigation. By way of short summary, the police believed that Mr. Strong had purposely wiped his tablet clean fearing his imminent discovery and arrest. Based on other aspects of the investigation, including disturbing images found on other electronic devices and the nature of Mr. Strong’s sexual practices as revealed through an interview with Mr. Strong’s former romantic partner, police believed that gaining access to the data deleted from the tablet would yield evidence of the offence under investigation. They also asserted a belief that location history data would also be located and that it too would provide evidence.

[116] The defence argues that issuance of the general warrant was not in the best interests of the administration of justice because the general warrant compelled a citizen, under threat of obstruction of justice charges, to provide his cell phone to police despite his initial reluctance to do so, and also because the technique authorized allowed police to impersonate Mr. Strong and bypass Google’s privacy protections. On the latter point, the defence argues that Google was essentially co-opted into violating U.S. non-disclosure laws.

[117] The Crown argues that the technique authorized was ultimately no more intrusive of Mr. Strong’s privacy rights than either a search warrant or a production order. The Crown also argues the impact on Mr. Costello’s privacy right was minimal in view of the nature of the search conducted on his phone and the brief timeframe within which it was conducted. Lastly, the Crown argues that there was no impact on Google beyond the fact that data relating to Mr. Strong’s account was obtained. The Crown ultimately argues that in view of the nature and seriousness of the investigation, there was an ample basis upon which the issuing judge could be satisfied that it was in the best interests of the administration of justice to issue the warrant.

[118] In assessing this issue, I note that the issuing justice would have considered the issue on the basis of the entire ITO and not just the paragraphs under the heading “Best Interests of the Administration of Justice.” In doing so, the issuing justice would have considered the nature of the technique proposed in context with the nature and state of the investigation.

[119] On my review of the ITO as a whole, I am readily satisfied that the issuing justice would have had a basis upon which to conclude that issuance of the general warrant was in the best interests of the administration of justice. I agree with the Crown that the technique authorized was no more intrusive on Mr. Strong’s privacy right than a search warrant or production order. Indeed, the police already had authorization to search the content of Mr. Strong’s electronic devices. Further, I agree that the impact on Mr. Costello’s privacy interests was minimal: see R. v. Yu, 2019 ONCA 942, at para. 117. The police took no steps to examine anything on his phone other than retrieving a verification code over which Mr. Costello arguably had no privacy interest. While his interaction with police was compelled under pain of punishment, it was ultimately brief and uneventful. I place little weight on the impact of the technique on Google. Warrants routinely authorize police to conduct covert entries by defeating alarm systems and/or locks. The technique here is essentially no different. Lastly, when I consider the nature of the investigation and the affiant’s unchallenged beliefs that the technique would result in evidence in relation to the investigation, I am satisfied the interests of law enforcement were very high.

[120] As a result, I find that the police properly applied for the general warrant and I find no violation of s. 8 of the Charter. If I am wrong on this issue, I would nonetheless admit the evidence under s. 24(2) on the following basis:

(a) In terms of the seriousness of the Charter infringing conduct, I note that if there was a violation in this instance, it is only because the police used the wrong mechanism for obtaining the evidence. There is no challenge to the fact that the police had sufficient grounds to obtain the evidence sought using whatever method was appropriate. More importantly, there is no suggestion that the police resorted to a general warrant in order to avoid a more stringent or rigorous standard for issuance in relation to an alternative technique. Lastly, I do not fault the police for availing themselves of a technique that was more certain and less open to litigation and the complications of extraterritoriality.

(b) In terms of the impact of the violation on Mr. Strong’s Charter-protected interests, I find that the violation occasioned no impact whatsoever. The defence does not challenge the fact that the police obtained the evidence, they merely challenge the fact that it was obtained using a general warrant instead of a search warrant or production order, which they had ample grounds for.

(c) Lastly, I find that the societal interest in the adjudication of this case on its merits is at the highest level. The accused is on trial for the first-degree murder of two young women. While exclusion of the evidence would not halt the process, the societal interest demands adjudication on the basis of all relevant evidence.

[121] Ultimately, all three lines of the Grant analysis tip strongly towards inclusion. As a result,

had I found a Charter violation, I would have found the evidence to be admissible.

Justice J. Di Luca

Released: December 4, 2020

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ADAM STRONG

Applicant

REASONS FOR RULINGS ON CHARTER APPLICATIONS

Justice J. Di Luca

Released: December 4, 2020

[^1]: Investigators decided to have the knife disassembled and re-tested in the hope that further biological material would be found once the knife was taken apart. Histological testing potentially would have determined whether the tissue like substance was in fact human tissue. Dr. Williams, a forensic pathologist, opined that given the small amount of tissue like material retrieved from the knife, histological testing may not have been successful and might also have consumed and/or tainted the sample preventing any further DNA analysis. The DNA testing done reveals the presence of human DNA but it does not necessarily reveal the specific source of the human DNA, for example whether it is from blood, saliva or tissue.

[^2]: Police eventually tested certain blood stains inside the chest freezer which contained Ms. Hache’s body parts. Some of these stains produced DNA profiles in relation to which Ms. Fitzpatrick could not be excluded as the contributor. These DNA results were obtained after Mr. Strong’s arrest for the first-degree murder of Ms. Fitzpatrick and therefore formed no part of Det. Short’s reasonable and probable grounds assessment.

[^3]: In the circumstances, they would have been required to caution him and give him rights to counsel in relation to Ms. Fitzpatrick.

[^4]: The evidentiary base for this motion was essentially uncontested and consisted of the affidavit of Jordana Baumgartner with attachments. Some additional facts were drawn from the Crown’s responding factum. These facts were also not contested for the purpose of the application.

[^5]: The defence raises no issue with either the various search warrants obtained in relation to 19 McMillan Drive or to the manner of searches conducted pursuant to those warrants. In other words, the defence accepts that the warrants were lawfully issued and the items seized during the various searches were lawfully seized.

[^6]: Assuming that one or more of the items the police are authorized to search for may reasonably be located inside the box.

[^7]: Moldaver J.’s reasons on this issue appear to be approved of by Abella J. writing for the majority at para. 20 of TELUS.

[^8]: The complexity of the MLAT process is not related to protection of privacy rights, but rather issues of extraterritoriality and jurisdiction.

[^9]: Concerns about control and continuity of the data could have been addressed, at least in part, by resorting to a preservation demand under s. 497.012 and/or a preservation order under s. 497.013 of the Code.