COURT FILE NO.: CR-21-50000086-0000

DATE: 20220530

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TAPIWA MUSARA, STEPHAN MYERS, JACQUELINE MYERS-ELLIS, DEVONE NOLAN

Defendants

Susan Orlando, David Steinberg, Julia De Vuono, for the Crown

Megan Andrews, for Tapiwa Musara

Melody Izadi, for Stephan Myers

Sherif Foda and Rick Frank, for Jacqueline Myers-Ellis

Susannah Chung-Alvares and Emily Lam, for Devone Nolan

HEARD: November 29 to December 3, December 6 to 24, 2021; January 10 to February 7, 2022

JUSTICE S. NAKATSURU

TABLE OF CONTENTS

THE OMNIBUS CHARTER APPLICATION.. 4

SECTION I: UNREASONABLE SEARCH AND SEIZURE.. 4

A. THE GAROFOLI APPLICATION.. 5

B. THE SEARCH OF MR. NOLAN’S BAG.. 24

C. THE MANNER OF SEARCH.. 25

SECTION II: THE RIGHT TO COUNSEL.. 43

A. OVERVIEW OF THE ALLEGED VIOLATIONS. 43

B. MS. MYERS-ELLIS. 44

C. MR. MUSARA.. 49

D. MR. NOLAN.. 52

SECTION III: ARBITRARY DETENTION AND BAIL.. 55

A. REASONABLE AND PROBABLE GROUNDS TO ARREST MS. MYERS-ELLIS. 55

B. REASONABLE AND PROBABLE GROUNDS TO ARREST MR. NOLAN.. 55

C. SECTION 503(1)(a) OF THE CODE: MS. MYERS-ELLIS AND MR. MUSARA.. 55

D. MR. NOLAN’S BAIL HEARING AND SECTION 11(E) OF THE CHARTER.. 59

SECTION IV: OTHER CHARTER COMPLAINTS. 59

A. RACIALLY BIASED AND DISCRIMINATORY INVESTIGATION.. 60

B. NEGLIGENT INVESTIGATION.. 67

C. DELAYED DISCLOSURE.. 69

D. OTHER MERITLESS CHARTER ISSUES RAISED.. 73

SECTION V: REMEDY.. 73

A. MS. MYERS-ELLIS. 73

B. MR. MUSARA.. 78

C. MR. NOLAN.. 82

D. MR. MYERS. 82

OVERVIEW OF THE ALLEGATIONS

[1] In March of 2018, the complainant, S.D., an eighteen-year-old woman, went to a party at a student residence in Barrie, Ontario. She became severely intoxicated. At that party, she was allegedly sexually assaulted by seven men, including Stephan Myers and Tapiwa Musara (the latter of whom she only knew as “Tap”). S.D. also accuses Mr. Myers of forcing her into the sex trade soon thereafter and becoming her “pimp”. Until February of 2019, she says she feared him, worked for him at his direction, and handed over to him half the proceeds she made from sex work. She also became involved in a relationship with him.

[2] On February 24, 2019, with the help of police, S.D. moved out of the basement of 48 Drake Drive in Barrie, Ontario, where she had lived with Mr. Myers. The residence is the home of Mr. Myers’ mother, Jacqueline Myers-Ellis, who lived upstairs.

[3] Earlier, in October of 2019, S.D. claims she was present when Mr. Myers discharged a firearm at Shanique Baker, the mother of his child, during a dispute in a Shoppers Drug Mart parking lot. S.D. drove Mr. Myers away from the scene. Mr. Myers soon turned himself into the police. Then, S.D. threw the gun used in the shooting, along with another gun and a taser, into a lake near Orillia, S.D.’s hometown. Anya Browne, a tenant in the residence of Ms. Myers-Ellis, is said to have driven S.D. to the lake to do that. Ms. Browne and Ms. Myers-Ellis were also close friends.

[4] S.D. alleges that Ms. Myers-Ellis instructed her to say false things to the Peel Regional Police should they come to question her about the shooting. S.D. says that she continued to engage in sex work at Mr. Myers’ direction while he was in custody, though she gave the proceeds to Ms. Myers-Ellis instead.

[5] When Mr. Myers was in jail awaiting his charges, S.D. claims that Mr. Musara, a friend of Mr. Myers, sold her drugs. Mr. Musara was aware that S.D. was escorting for Mr. Myers. Mr. Musara also threatened and assaulted her. S.D.’s drug addiction became very bad during this period.

[6] Finally, S.D. claims that Devone Nolan, only known to her as “Body”, sexually assaulted her two times. Mr. Nolan is also said to have been at the original party in Barrie where the alleged sexual assault by seven men took place. Mr. Nolan is an associate of Mr. Myers and Mr. Musara. S.D. alleges she paid Mr. Nolan money for the rental of an Airbnb and that he tried to get her to work for him when Mr. Myers was in custody.

[7] On March 3, 2019, S.D. went to the Toronto Police Service (“TPS”). She had become fearful of someone whom she thought was an associate of Mr. Myers and whom she had observed videotaping her while she was staying at a shelter in Toronto. The police referred her to the Human Trafficking Enforcement Team (“HTET”) of the TPS.

[8] D.C. Powell and D.C. Zeppieri of the HTET met with S.D. on March 5, 2019, and she gave a sworn videotaped statement. This led to further investigation including other interviews and meetings with S.D., police surveillance of the suspects, search warrants, a production order, and the forensic examination of digital data on several electronic devices. Ultimately, Mr. Myers, Mr. Musara, and Mr. Nolan were charged with sexual assault and offences related to human trafficking. Ms. Myers-Ellis was charged with receiving a material benefit from sexual services (of which she was discharged after the preliminary inquiry) and attempting to obstruct police[^1].

THE OMNIBUS CHARTER APPLICATION

[9] Before trial, all four defendants brought what they have described as an “Omnibus Charter application”. It was described this way likely because a plethora of Charter breaches are alleged. The remedy sought was a stay of proceedings or alternatively, the exclusion of evidence. Some of the claims were unique to individual applicants and some of them were common to all.

[10] In seeking a stay, the applicants have challenged many police and prosecutorial actions. While some of those alleged improprieties have not led to separate and distinct Charter violations, the applicants argue that cumulatively the remedy of a stay of proceedings is clearly warranted.

[11] On February 7, 2022, I released oral reasons. I dismissed some of the claims in the application. I granted others. Certain evidence against Mr. Musara was excluded. The remaining charge against Ms. Myers-Ellis was stayed. These are my written reasons explaining why I made all of those decisions.

[12] The hearing of the Omnibus Charter application was long and involved many witnesses and exhibits. I have looked closely at all of the applicants’ claims. Some of them, I will not say much about because they are clearly without merit. Others are more significant, and I will say more about them.

[13] I do not intend to discuss at length the large body of evidence I have heard. My reasons will make sense when viewed alongside the written record and the testimony of the witnesses. My decision will be transparent to the parties and will hold me accountable.

SECTION I: UNREASONABLE SEARCH AND SEIZURE

[14] Section 8 of the Charter protects people from unreasonable search and seizure. The right protects an individual’s reasonable expectation of privacy. The limits of the right are assessed by determining whether, in the particular situation, the public’s interest in being left alone by the state must give way to the state’s interest in intruding on a person’s privacy to achieve its goals, such as law enforcement: Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145.

[15] A search is reasonable if: (1) it is authorized by law; (2) the law itself is reasonable; and (3) the manner in which the search is carried out is reasonable: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265.

A. THE GAROFOLI APPLICATION

[16] A number of judicial authorizations have been challenged: (1) the warrant to search 48 Drake Drive, Barrie, issued on May 16, 2019; (2) the warrant to search 113 Livingstone Avenue West, Barrie, issued May 16, 2019; (3) the search warrant issued May 29, 2020, to search and examine the contents of the electronic devices, such as cell phones, seized during the execution of the search warrants on the dwellings and motor vehicles[^2] and during the arrest of Mr. Nolan on June 22, 2019; and (4) the production order issued January 7, 2020, for the banking records of the applicants.

[17] The Informations to Obtain (“ITOs”) for the search warrants with respect to the dwellings and the electronic devices were sworn by D.C. Powell. The ITOs are essentially the same. The ITO for the electronic devices updates the ITO for the search of the dwelling houses. The ITO for the production order was sworn by D.C. Justin Zeppieri. D.C. Powell was the primary officer in charge of the investigation. At the time, D.C. Zeppieri was training with the HTET and was assisting D.C. Powell.

[18] A Garofoli application has been brought pursuant to R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421. The applicants attack the various judicial authorizations. They submit that: (1) on the face of the ITOs, there are insufficient reasonable and probable grounds; (2) the affiants subverted the search warrant and production order process; (3) going beneath the face of the ITOs and looking at the evidence on the application, after excision and amplification, there are insufficient reasonable and probable grounds. Usually, the issue of subversion is considered after the determination of whether there remain sufficient grounds after excision and amplification. However, given the primacy of the attack based on subversion, it makes sense to consider it first.

[19] Search warrants are presumed valid. The onus is on the challenging party to show they are invalid. The standard of review is whether the issuing justice, acting judicially, could have found that the legal thresholds were met. The question on a review is not whether I would have issued the search warrants or production order. Rather, it is whether it was open for the issuing justice to do so; whether there was sufficient credible and reliable information to permit the issuing justice to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place of the search. Deference should be shown to the issuing justice in this respect.

[20] Reasonable grounds are constituted by credibly based probability, a standard that exceeds suspicion but is less than a balance of probabilities. Reasonable inferences can be drawn by the issuing justice from the information set out in the ITO.

[21] I will first deal with the search warrants for the homes.

1. THE SEARCH WARRANTS FOR THE HOMES

[22] A single ITO was prepared by D.C. Powell for the two different dwellings and several motor vehicles associated with them. The ITO is lengthy and outlines the police investigation in chronological order up until the moment the search warrants were sought. The ITO lists several targets: Mr. Myers, Ms. Myers-Ellis, Ms. Browne, Mr. Musara and Mr. Nolan. The results of police background checks in respect of all of them are set out. The offences they are alleged to have committed are numerous. The focus is on offences related to human trafficking and possession of firearms.[^3] The grounds of belief for the search warrants are detailed.

(a) Facial Validity: Reasonable and Probable Grounds

(i) 48 Drake Drive

[23] Mr. Myers and Ms. Myers-Ellis submit that on the face of the ITO, no reasonable and probable grounds existed for this search warrant to issue.

[24] I disagree.

[25] In the ITO, D.C. Powell sets out information the police received from S.D. This information included that Mr. Myers was her pimp for several months and that even while in custody he continued to direct her to work in the sex trade. In addition, Ms. Myers-Ellis forced S.D. to work in the sex trade and kept a large portion of the money she made. Ms. Browne not only helped her dispose of guns and a taser but she also received money from S.D. Bank records produced by S.D. showed the transfer of money to all three targets.

[26] When the totality of the information is considered, there were ample reasonable and probable grounds that evidence of the listed offences would be found at 48 Drake Drive. This would include evidence of the human trafficking related offences, which was the focus of the application for the search warrant.

[27] The applicants submit that the information provided was too stale. Mr. Myers had been in jail since October of 2018. There was an intervening period of seven months from the time Mr. Myers was last at 48 Drake Drive to the time the search warrant was sought. Thus, the police did not have reasonable and probable grounds that evidence of the offences would be found at the dwelling.

[28] This submission lacks merit. When the totality of the circumstances is considered, the information provided was not stale. Staleness depends upon the offence and the evidence being sought. For instance, information about perishable evidence is likely to become stale faster. In this case, the information the police had was that 48 Drake Drive was Mr. Myers’ residence. Although he had not yet obtained bail regarding the shooting allegations, 48 Drake Drive remained his residence. It was a reasonable inference that his possessions had remained at 48 Drake Drive despite the intervening months. Given that Mr. Myers’ mother lived there, it was entirely reasonable to infer that Mr. Myers’ things would not have been moved or thrown out. Indeed, given that Mr. Myers was in pre-trial custody, it was reasonably foreseeable that he could secure his release at some point and move back into the premises.

[29] Let me give a concrete example why the information was not stale. The ITO states that ammunition from the disposed guns had not been located. It was reasonable to think that a search of the premises might uncover such ammunition despite the passage of time.

[30] In these circumstances, it was entirely reasonable to conclude that evidence of offences committed by Mr. Myers would still be found at the residence, including mobile phones, computers, and documentation related to human trafficking such as hotel receipts. Moreover, S.D. had only moved out of 48 Drake Drive in February of 2019, a point more recent in time compared to when the search warrant was sought. While S.D. would likely have taken her belongings with her when she moved out, the reasonable possibility remained that some of her items might still be there. This is made express in the ITO where D.C. Powell avers that S.D. advised the “Guess” bag used to transport the guns was still at 48 Drake Drive.

[31] Additionally, the existing residents living at 48 Drake Drive are said to have committed some of the listed offences for which evidence was being sought. Ms. Myers-Ellis is said to have been receiving money that she knew was income S.D. earned from the sex trade at her son’s direction. Ms. Browne is said to have helped S.D. dispose of the firearms and taser and to have received money from S.D. knowing it was from sex work. All this information was very current.

[32] This s. 8 claim is rejected.

(ii) 113 Livingstone Avenue West

[33] Mr. Musara also submits that on its face, there was a lack of reasonable and probable grounds for the search warrant for this dwelling house to issue. As I stated to counsel during her oral submissions, whether there were sufficient grounds is best considered on the sub-facial challenge.

(b) The Subfacial Challenge: Subversion

[34] Mr. Myers, Ms. Myers-Ellis, and Mr. Musara challenge the ITOs on the ground of subversion. Since D.C. Powell submitted the same ITO for the search warrants for 48 Drake Drive and 113 Livingstone Avenue West, I will consider all aspects of the subversion challenge to the dwelling houses together. Plus, essentially the same ITO was sworn by D.C. Powell for the search warrant to extract the data from the electronic devices.

[35] The production orders for the bank records are challenged on the basis of subversion as well. Thus, the ITO sworn by D.C. Zeppieri needs to be considered. I will do this later when considering the production orders.

[36] Finally, even where there is not a distinct s. 8 challenge to the judicial authorizations, all the applicants (including Mr. Nolan) submit that the police conduct in drafting the ITOs should be considered when it comes to the remedy they are seeking for any Charter violations found.

[37] Watt J.A. held in R. v. Paryniuk, 2017 ONCA 87, at paras. 62, 69, that courts have the discretion to set aside a warrant on the grounds of subversion despite the existence of reasonable and probable grounds for its issuance. The following principles must be considered:

• An affiant officer’s failure to make full and frank disclosure must be egregious enough to subvert the pre-authorization process through deliberate non-disclosure, bad faith, deception, fraudulent misrepresentation or the like.

• The threshold for setting aside the warrant in these circumstances is high. The conduct necessary to engage this discretion has been described as being so subversive of the search warrant process as to in effect amount to an abuse of process, requiring that the warrant be quashed.

• Subversion connotes undermining, corrupting, weakening, destroying or disrupting a system or process.

• The residual discretion is exercised having regard to the totality of the circumstances.

[38] To assess the applicants’ subversion arguments, factual findings with respect to the testimony of the affiants and the ITOs first need to be made.

(i) General Credibility Findings Regarding D.C. Powell

[39] Leave to cross-examine D.C. Powell and D.C. Zeppieri on certain topics was granted. They were thoroughly cross-examined. The applicants submit that they were not credible or honest witnesses and that this adds to the force of the argument that the officers subverted the process of obtaining the authorizations.

[40] Here are my credibility findings regarding D.C. Powell’s in-court testimony.

[41] In the main, I found D.C. Powell to be a good witness. She was generally fair and responsive to questioning. She candidly admitted to many of the defence suggestions put to her. She was firm in her views. She was also a very careful witness. She was unwilling to admit to something unless she was shown it. Understandably, her recollections were not always good. As a result, her requests to have her attention drawn to statements or documents before agreeing to suggestions did not come across as evasive. At times, she was protective of the complainant and the police investigation, probably more than necessary. But I did not find any improper purpose or intention behind that attitude. Overall, I found her to be a credible witness.

[42] The problem is that she was not a careful and impressive affiant. I will in the next section explain the deficiencies in the ITOs.

(ii) Errors in the ITOs sworn by D.C. Powell

[43] To start, no doubt, the ITOs were far from perfect. Of course, perfection is not required. Mistakes, especially in ITOs of this length, are not surprising. This is highlighted by the fact that D.C. Powell’s application for a search warrant for the electronic devices was twice refused by a justice of the peace due to errors she had made. While some were spelling mistakes, others involved errors in the addresses. These errors were apparent on the face of the ITOs. Some were caught by the justices who reviewed them. Some were not. The most up-to-date ITOs still have spelling errors.

[44] Even giving full recognition that affiants are human beings and thus prone to human failings when drafting ITOs, D.C. Powell failed in her obligations as an affiant.

[45] I conclude the following features of the ITO were intentionally misleading:

• First, D.C. Powell did not accurately set out the change in S.D.’s statements about the person who drove her and helped her get rid of the guns and taser. In summarizing the relevant part of the March 5 interview with S.D., D.C. Powell averred that S.D. said “someone” attended the hotel S.D. was staying at and drove her to Orillia to dispose of the firearms. No gender pronouns were used and the sentence structure is passive. Later in the ITO, D.C. Powell said that on May 7, 2019, S.D. told the police she had a “correction” to her initial statement and that S.D. “now remembered who the driver” was. It was Anya Browne, who lived at 48 Drake Drive. Looking at these passages and indeed, the entire ITO, the issuing justice would have concluded that S.D. had recalled the identity of the driver in May, not being sure of it earlier.

However, what S.D. said under oath in her video statement of March 5 was that an associate of Mr. Myers, whom she referred to as a “Black pimp”, took her to get rid of the guns and taser after the shooting. She gave particulars about this man. Also, S.D. maintained it was a male pimp when she took the police to Lake Couchiching on March 21 to point out where she had thrown the guns into the lake. In light of this, her later “correction” was a dramatic change. It went from an unknown male pimp and associate of Mr. Myers to Ms. Browne, a target of the investigation who lived at 48 Drake Drive.

I cannot but conclude that this was intentionally misleading. Even if D.C. Powell truly believed what she testified to in this respect — that the change in S.D.’s story could have been attributed to trauma or some other reasonable explanation — this should have been disclosed to the issuing justice. The change reflected poorly on the credibility and reliability of S.D. D.C. Powell must have been aware of the significance of the change in S.D.’s version. Any investigator, let alone one as experienced as she was, would have been. In my opinion, while in her own mind D.C. Powell may have found an acceptable reason for the change in S.D.’s story and she did at least advise the issuing justice that S.D. had “corrected” her initial statement, she drafted the ITO in this way to lessen the true extent of the problem created by this change.

• Second, D.C. Powell was not full, frank, or fair in the ITO when it came to S.D.’s statement to the police about giving the proceeds of her sex work to Ms. Myers-Ellis. S.D. told the police that after Mr. Myers went into custody, she started to pay Ms. Myers-Ellis $800 a month in rent for the basement where she lived. S.D. stated that this rent was too high, but did not characterize it as anything but real rent.

The ITO does not disclose this. To the contrary, it indicates that the money was paid for another purpose. In the “Overview of the Investigation” section, the ITO states that S.D. was “directed to resume working and handing over money she earned to MYERS mother Jacqueline MYERS-ELLIS”. S.D. was not directed to do either. When summarizing the March 5 interview, the ITO states that to cover up what had happened and to protect her son, Ms. Myers-Ellis told S.D. to tell the police investigating the shooting that S.D. rented a room in their home. This made it appear that giving money as rent was a fiction.

The ITO also states that “Stephan told [S.D.] to continue to work in the sex trade and to turn over the money to Jacqueline”. This too is inaccurate. In the “Grounds to Believe the Named Offences were Committed” section of the ITO, D.C. Powell averred that once Mr. Myers was arrested and in custody, “MYERS-ELLIS continued to force S.D. to work in the sex trade and kept a large portion of the money she made”. D.C. Powell admitted in cross-examination that this statement was clearly wrong. She explained she meant to say it was Mr. Myers rather than Ms. Myers-Ellis who did this. This resulted in a significant error.

When the totality of the ITO is considered on this issue, including itemization of bank transfers made by S.D. to Ms. Myers-Ellis, the issuing justice would have a strong picture in mind that once Ms. Myers-Ellis’ son was arrested, she took over in directing S.D. in the sex trade and getting the proceeds from it. This picture is very wrong.

I have struggled with whether these misleading portions of the ITO were intentional. Ultimately, I find that they were. I cannot see how D.C. Powell could have simply missed this in preparing and then reviewing the ITO — not just once, but twice, since it was basically the same ITO for the search warrant as for the electronic devices. It may be that D.C. Powell truly believed Ms. Myers-Ellis had taken on this role after her son was arrested. However, the manner in which the ITO is structured conveys to the issuing justice that S.D. specifically told this to the police, when she did not. At the very least, if not intentionally misleading, it was highly negligent of D.C. Powell to convey this to the issuing justice when it was not based on the information that she had.

[46] The following errors were the result of negligence, but not intentionally misleading:

• First, the ITO omits that the HTET advised S.D. on March 15, 2019, that they would not be charging her for the shooting and the disposal of the guns. In my view, this was not a deliberate omission. The ITO reveals S.D.’s admitted involvement in disposing of the guns. Moreover, she disclosed this information voluntarily to the police even before any discussion about her potential liability for such crimes. In this context, D.C. Powell’s explanation for why she did not disclose this is reasonable. However, this information clearly should have been revealed to the issuing justice. The fact that the police advised S.D. that she would not be charged was a relevant piece of information regarding S.D.’s credibility. It was not up to D.C. Powell to determine how material it was to the issuance of the warrants.

• Second, the ITO states Mr. Myers got the two firearms, taser, and bullets from “Tap”, or Mr. Musara. The ITO is definitive that S.D. provided this information. However, in her March 5 statement, S.D. admits that she is not 100% sure that Mr. Musara was the source of the weapons. Rather, she assumed this to be the case since, after Mr. Myers went into custody, Mr. Musara made a comment to the effect of asking “where the fuck” she thought Mr. Myers got the guns from. In my opinion, this comment attributed to Mr. Musara is ambiguous. It could be bragging by Mr. Musara, as the Crown suggests, or it could be something more innocent in meaning. Moreover, S.D. gave no information about the surrounding circumstances of this conversation. While D.C. Powell recast this isolated comment from Mr. Musara to a definitive conclusion, I find this was not an effort to intentionally mislead but rather that it was negligent. A full, fair, and frank ITO would have set out the particulars so that the issuing justice could come to their own independent assessment of whether the guns came from Mr. Musara. D.C. Powell wrongly came to her own conclusion, of her own initiative. This was not a minor or peripheral detail when it came to determining whether there were reasonable and probable grounds for 113 Livingstone Avenue West.

• Third, under the section dealing with the police investigation, D.C. Powell notes that D.C. Zeppieri advised her on March 19, 2019 that the Barrie Police Service investigated information that individuals known as “Body” and “Tap” were recruiting girls into the sex trade at a local high school. The source of the information was a parent who wanted to remain anonymous. However, the ITO then states that the parent was Sommer Crombie, the mother of the girl Tap was dating. Tap was living with them at 113 Livingstone Avenue West. The Crown conceded that the source was not in fact Sommer Crombie. D.C. Powell testified that this was what D.C. Zeppieri had told her. D.C. Zeppieri testified that he had not told her this, but rather had told her the accurate name of the parent found in the records he had received from the Barrie Police Service.

In resolving this conflict in the evidence between the two officers, I accept the testimony of D.C. Zeppieri. There is no reason why he would convey the wrong information to D.C. Powell. D.C. Powell’s recollection is not reliable. I find this was not deliberate deception on D.C. Powell’s part but negligence in failing to accurately convey in the ITO the information the police had and what D.C. Zeppieri had told her. However, it was not a benign error, since attributing the source of the information to Sommer Crombie enhanced its value. If the source was someone who lived with Mr. Musara and whose daughter was dating him, the probative value of the information would be strengthened.

• Fourth, the ITO states that S.D. told the police on March 5that “she also worked for ‘Tap’” while Mr. Myers was in custody. I find that this was an inference drawn by D.C. Powell, not something S.D. actually said.

[47] The following errors were simple mistakes:

• First, in relating what S.D. said on March 5, the ITO states in describing “Body” that he had a fanny pack “(where he keeps his gun)”. D.C. Powell acknowledged this was a mistake. I accept her evidence. It was careless, but only a mistake.

• Second, under the section dealing with the police investigation, the ITO states that S.D. told the police officer conducting the photo line-up on March 21, 2019 that Mr. Nolan had “trafficked her”. This is a mistake. I conclude it was an innocent mistake since D.C. Powell clearly indicated in the ITO that on March 5, S.D. told the police that she never worked for Mr. Nolan.

[48] The applicants point to other alleged faults in D.C. Powell’s ITO. I do not accept them for the following reasons:

• The applicants submit that D.C. Powell did not accurately set out the contents of the March interview when S.D. initially could not identify any of the seven males who had sexually assaulted her. It is submitted that it was only by way of a leading question from D.C. Powell that S.D. named Omar, Mr. Myers, “Tap” and a white male named “Shameless” or “Shames”[^4] as the men who had sexually assaulted her that night. I find this was not misleading or inaccurate. In the “Overview” section, the ITO states that the seven men were “unknown”. Moreover, the summary of the March 5 interview in the ITO accurately sets out that S.D. acknowledged being “fucked-up” and “barely conscious” and that she “could not keep track of all the guys who raped her”. The issuing justice would not have been misled about the difficulties in relying on the identification evidence of S.D. In addition, it was not inappropriate for D.C. Powell to ask if any of the three men who had driven S.D. to the party had also been involved in the sexual assault. Finally, it would be impractical to list every little detail of S.D.’s lengthy March 5 statement in the ITO. What was set out was accurate and not misleading. I will also point out that the sexual assault was not the basis for which this search warrant was issued so even if it was misleading, it had no impact on the issuance of the warrant.

• Mr. Nolan submitted that it was misleading not to have put into the ITO that S.D. had not really mentioned “Body” until she was shown a photo line-up including his photo on March 21, 2019. The defence submits that S.D.’s accusations against “Body” came only after a suggestive question by D.C. Powell. I do not agree. The ITO is not misleading. The ITO tracks the statements given by S.D. in chronological order. It is apparent from that S.D. did not accuse “Body” of anything until March 21, 2019. Moreover, while D.C. Powell’s questioning may have been suggestive, this was not necessary to mention in the ITO. The information S.D. gave about Mr. Nolan, as set out in the ITO, was accurate.

(iii) Conclusion on the Subversion of the Search Warrant Process

[49] I find there were deliberate misleading disclosures, material non-disclosures, and other misrepresentations in the ITOs of D.C. Powell. However, D.C. Powell’s breaches of her obligations as an affiant in the ex parte search warrant application were not so egregious to have undermined, corrupted, weakened, destroyed or disrupted the search warrant process. The high test for subversion has not been met.

[50] Understandably, the Crown concedes that D.C. Powell and D.C. Zeppieri made mistakes in drafting the ITOs. As noted above, some misrepresentations were intentional and serious. Others, negligent. However, something more than isolated instances of misrepresentation or even fraud is required. More than a failure to abide by the obligation to make full, frank, and fair disclosure is required. No less than conduct that subverts the process must be proven. On the facts of this case, the following considerations are important.

[51] First, this was a 28-page, single-spaced ITO filled with detailed information. While the existence of reasonable and probable grounds does not preclude a finding of subversion, it is important that D.C. Powell was diligent in providing considerable information to the issuing justice. D.C. Powell included information from S.D. that did not always support the issuance of the warrants, for instance, the inebriated state that S.D. was in when she was initially sexually assaulted.

[52] Second, the applicants submit that D.C. Powell intentionally slanted the investigation against them. However, that submission must recognize the context whereby the police had evidence that confirmed significant aspects of S.D.’s information. With respect to 48 Drake Drive, for instance, the guns and taser were found in the exact location S.D. pointed out to the police. This confirmation specifically addressed the change in S.D.’s story from the “Black pimp” to Ms. Browne. Put another way, while the lack of a motive to deceive is not determinative, it does not appear D.C. Powell had any motive to slant the investigation. As the Crown correctly argued, the ITO was not thin on reasonable and probable grounds.

[53] Third, even though there was some intentional misleading, it was not egregious. Several errors in the ITO can be attributed to how D.C. Powell subjectively interpreted S.D.’s comments. In other words, the officer drew inferences or conclusions based on the information she received from S.D. which went beyond what S.D. had actually said. For example, D.C. Powell no doubt believed that the $800 rental payment to Ms. Myers-Ellis was just a means to get ill-gotten gains to Mr. Myers’ mother under a fiction. But that is an interpretation. The misleading part of the ITO was that it was structured so as to convey to the issuing justice that this was what S.D. had said, not an inference or a conclusion being made by the investigators. This is wrong. But crucially, the inference or conclusions themselves were not entirely without any foundation in what S.D. told the police. The ITO, seen in this light, diminishes support for the idea that D.C. Powell subverted the process.

[54] Finally, even if what D.C. Powell did have a tendency to subvert the process, it did not in effect amount to an abuse of process. She may not have acted in good faith in making some of the more significant misrepresentations. However, I cannot say she acted in bad faith overall. I am comforted in this finding having had the opportunity to see and hear D.C. Powell cross-examined on the Garofoli application and to consider the testimony that she gave.

[55] Thus, I do not exercise my residual discretion based on the totality of the circumstances. I do not quash the search warrants for the dwelling houses and the electronic devices on the basis of subversion.

(c) Excision and Amplification

[56] In R. v. Booth, 2019 ONCA 970, 386 C.C.C. (3d) 281, at paras. 57 to 59, Paciocco J.A. summarized what is next required in assessing the validity of the ITOs of D.C. Powell:

Where full and frank disclosure has not been made, a reviewing court will correct the warrant ITO to achieve full and frank disclosure, and then determine based on that corrected ITO whether the warrant could properly have issued if full and frank disclosure had been made. “What is involved is an analysis [of the corrected ITO] to determine whether there remains sufficient reliable information upon which the search authority could be grounded”: R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321, at para. 45.

Sometimes erroneous information in an ITO will be corrected by simply removing it. Information that should not have been included in the warrant will always be “excised” in this way: Morelli, at para. 45.

Erroneous information that would have been appropriate for inclusion in the ITO if presented accurately will sometimes be corrected by “amplification” so that it can be considered during the sufficiency review. Amplification entails adding information that should have been disclosed in order to give an accurate picture or replacing mistakenly inaccurate information with accurate information. When material information that would hinder a finding of reasonable and probable grounds has been improperly omitted, the ITO must be amplified to include it. However, amplification relating to information that could advance the warrant application is permissible only if the error in not making full and frank disclosure is: (1) a “minor, technical error”; and (2) made in “good faith”: Araujo, at para. 59; Morelli, at para. 41.

(i) The ITO for 48 Drake Drive

[57] Regarding 48 Drake Drive, after excision and amplification (by adding that S.D. paid Ms. Myers-Ellis $800 for rent) there remain sufficient reasonable and probable grounds that evidence of the listed offences would be found at 48 Drake Drive such that this search warrant could have issued. As explained above in my dismissal of the facial challenge to the warrant, my conclusion is based on the fact that Mr. Myers and S.D. were past residents at that address. Specifically, it can reasonably be inferred that Mr. Myers’ possessions remained in his mother’s home. This is so even after excision and amplification.

[58] Looking at the totality of the circumstances, this warrant could have issued.

(ii) The ITO for 113 Livingstone Avenue West

[59] The same conclusion cannot be made with respect to the search warrant for this dwelling. Critical to the reasonable and probable grounds for this search warrant were three averments in the ITO: (1) that S.D. told the police on March 5 that Mr. Myers received two guns, a taser, and bullets from “Tap”; (2) that S.D. told the police on March 5 that Mr. Musara was a human trafficker, including that she had “also worked for ‘Tap’ while Stephan was in custody”; and (3) information from the mother of the girlfriend of Mr. Musara that he was involved in procuring high school girls in Barrie into the sex trade.

[60] Other potential grounds to search are uncompelling. The assaults, the sexual assault, and the threats that S.D. told the police she suffered at the hands of Mr. Musara, while evidence of criminal offences committed by him, are not offences that the police were seeking evidence of at the dwelling. Nor were there objective grounds to believe that evidence of those offences could be found at the dwelling. While the case that drugs might be found at the premise was stronger, given that S.D. said Mr. Musara sold cocaine, the search warrant did not seek to search for any illegal drugs or related evidence and the affiant does not purport to have grounds to look for that evidence. Finally, to suggest that evidence pertaining to offences committed by the other targets would be found at 113 Livingstone Avenue West is mere speculation. For instance, the fact that Mr. Nolan was once seen visiting the home does not enhance the grounds to search on the basis that evidence connected to Mr. Nolan could be found there.

[61] The problem is that the three critical averments are inaccurate and misleading.

[62] First, with respect to the reference that Mr. Myers got the guns, taser, and bullets from Mr. Musara, the ITO overstates the definitiveness of the assertion. Not only did S.D. admit that she was not 100% sure, the only basis for her belief was the ambiguous comment made by Mr. Musara. S.D.’s recollection or interpretation of the comment could easily have been unreliable. The reality of what S.D. told the police is not reflected in the definitive statement provided in the ITO. The wording used in the ITO comes across as if S.D. observed the receipt of the items or heard a more direct admission from those involved. This created a false and misleading impression.

[63] This misrepresentation was not made in good faith. D.C. Powell knew that S.D. had been inconsistent and prone to exaggeration in her narrative of what happened to her. Her recollections were not always reliable. In this context, D.C. Powell effectively glossed over these problems in conveying the information to the justice.

[64] Neither was it a “minor or technical” error. The information was central to obtaining the search warrant for 113 Livingstone Avenue West.

[65] In my view, this misrepresentation is similar to the one made in Booth at paras. 73-76. The ITO in that case outlined a witness’ observations of the licence plate of the getaway car used in a robbery. The ITO stated that the witness had seen a partial plate and set out the serial numbers and letters. In reality, the witness was not that sure. Paciocco J.A., at para. 88, did not permit amplification and excised this portion of the ITO.

[66] Thus, the requirements for Crown amplification have not been met here. The reference to where Mr. Myers got the guns and bullets must be excised.

[67] I feel obligated to point out that even if this statement was not excised, the actual information S.D. gave to the police would have little objective weight in moving the case forward for the search warrant. Even aside from the potential ambiguity of the comment itself, the circumstances raised a serious concern about the staleness of the information. It is unclear from the comment when Mr. Musara would have provided the weapons to Mr. Myers. No timeframe was ever mentioned. Based on when Mr. Myers last had possession of the guns, it would have been further in the past than October of 2018. Based on what S.D. said about her learning to use those guns as laid out in the ITO, Mr. Myers had those guns for a time even before then. Thus, Mr. Musara could only have possessed the guns quite some time prior to when the police sought the search warrant. There was no other information that Mr. Musara possessed such weapons around the time the police sought the warrant.

[68] Moreover, there is no connection between 113 Livingstone Avenue West and the material time period when Mr. Musara could have supplied the weapons to Mr. Myers. At the time when S.D. met and spent time with Mr. Musara, his residence was at 242 Penetanguishene Road. 113 Livingstone Avenue West was the home of his girlfriend and her mother.

[69] I appreciate that an affiant can rely on their experience and training as a police investigator. The possible connection between drugs and guns is self-evident. However, the mere fact that an individual sells drugs does not give rise to reasonable and probable grounds to search for weapons or firearms. Furthermore, D.C. Powell does not refer to this connection as forming any part of her grounds to believe guns would be found at the premises.

[70] Second, the averment that S.D. worked for Mr. Musara while Mr. Myers was in custody is wrong. S.D. never said this in her March 5 interview. She never told the police Mr. Musara committed acts that could constitute human trafficking. At its highest, S.D. said she worked at places such as Mr. Musara’s residence or locations he rented on a short-term basis. Indeed, S.D. told the police that she continued to work for Mr. Myers while he was in custody.

[71] The Crown submits that this was just loose language used by the affiant; an imprecise but accurate summary of what S.D. told the police overall. In addition, this was a reasonable and compelling inference made by D.C. Powell based on what S.D. said overall about Mr. Musara. Thus, the Crown argues it can be amplified: R. v. Lall, 2019 ONCA 317, at para. 37.

[72] I disagree. The error was made in the absence of good faith. Looking at the entirety of the information S.D. provided about her interactions with Mr. Musara, it was unreasonable for D.C. Powell to take from the various things she said about Mr. Musara — for example, threatening comments he made, the assaults, the drugs he sold her and even her paying him for his residence or using his short-term rentals — and extrapolate to the conclusion that S.D. worked for him. I do not accept any of D.C. Powell’s testimony that tries to otherwise justify this. In the context of the whole of the ITO, the justice was told that after the arrest of S.D.’s pimp, Mr. Musara at least partially took over that role. Nothing else in the ITO provides any different context to that statement. Additionally, the way the ITO was structured, with this erroneous information placed under the summary of S.D.’s statement to the police on March 5, the reader would believe this was something S.D. told the police, and not that it was an inference being drawn by the police based on their dealings with S.D.

[73] This too was not a minor mistake. It was central and formed another pillar for the reasonable and probable grounds that evidence of human trafficking could be found at 113 Livingstone Avenue West.

[74] As a result, this information must be excised and cannot be amplified.

[75] Third, the Crown relies heavily on the information received by D.C. Zeppieri on March 19, 2019 that Mr. Musara and Mr. Nolan were attempting to recruit girls at St. Joseph’s High School in Barrie into the sex trade. However, false information also taints this. The ITO stated that the source of the information was a concerned parent that wished to remain anonymous. The ITO stated that this parent was Sommer Crombie, the mother of Mr. Musara’s girlfriend, and that Mr. Musara was living with both of them at “113 Livingstone Street (sic) West”. Given the close connection between Mr. Musara and the source of the information, I have little doubt that it would have had a compelling effect on the issuing justice. Inferentially, Ms. Crombie would have had many ways to reliably gain such knowledge. The problem is that the source was not Ms. Crombie. This was not a minor misattribution as to the source of information; the mistake went from an anonymous source to someone who was closely connected to and living in a familial-type relationship with Mr. Musara.

[76] Given that this mistake was serious, it cannot be amplified. The information must be excised.

[77] Mr. Musara submitted that all of the contents of the Barrie information as set out in the ITO should be deleted. I do not agree. The misrepresentation was as to who the source was, not what the source said. Thus, what should be deleted is the portion of the paragraph that states the source was Ms. Crombie.

[78] In sum, the issuing justice was told that S.D. said Mr. Myers got the guns and bullets from Mr. Musara. This was significantly misleading. The issuing justice was told that S.D. worked for Mr. Musara when Mr. Myers was in custody. This was false. The issuing justice was told that Mr. Musara was recruiting girls, as conveyed by the mother of the girl he was dating while living in the house where the police were seeking the warrant. The attribution of that information was false.

[79] What then is the effect on the ITO after these excisions are made?

[80] The comment that Mr. Musara was the source of the guns was the only probative indication in the ITO that Mr. Musara ever possessed or sold guns. The fact that Mr. Musara had previously been charged with firearms offences was one factor to consider, but given these charges were stayed in 2013, it did not objectively advance the grounds for the warrant. S.D.’s broad and general indication that members of the Barrie gang were armed was not of much moment, since the ITO did not allege that Mr. Musara was a member of the gang nor did S.D. provide information that connected him to guns through gang membership.

[81] Without the averment that S.D. worked for Mr. Musara, there is little in the ITO to indicate that Mr. Musara committed any human trafficking related offences. Nothing ties the search of the premises for electronic devices or other evidence to any listed offence he is said to have committed in relation to S.D. Without such a connection, D.C. Powell’s averment that S.D.’s banking records indicated that she transferred money to Mr. Musara on a few occasions is of little value and not indicative of human trafficking. This is especially so in the context that S.D. was buying drugs from Mr. Musara.

[82] Deleting the name of the source of the Barrie information has significant ramifications. As the ITO reads after excision, an anonymous source said Mr. Musara and Mr. Nolan were recruiting girls at a local high school. This is not compelling. The source, being anonymous, cannot be considered credible. The police did nothing to confirm that Mr. Musara or Mr. Nolan were recruiting girls from that high school either by surveillance, interviews, or other investigation. Thus, none of the criteria in R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140 at 1168 are met.

[83] In conclusion, after excision, considering all the information in the ITO and the reasonable inferences that can be drawn from it, I find there was no basis that this search warrant could have issued for 113 Livingstone Avenue West.

[84] Mr. Musara has proven on a balance of probabilities that the search of that address violated his rights under s. 8 of the Charter.

2. THE SEARCH WARRANT FOR THE ELECTRONIC DEVICES

[85] 25 electronic devices were seized by the police. Reasonable and probable grounds to search those devices must be assessed in relation to each separate applicant and each device.

[86] Given the quashing of the search warrant for 113 Livingstone Avenue West, the electronic devices found there were unlawfully seized. Thus, the search of the phone said to belong to Mr. Musara was a violation of s. 8.

[87] Although it is unnecessary to go further, I note that given the ITO for the search warrant for the electronic devices sworn by D.C. Powell is largely identical to the search warrant for 113 Livingstone Avenue West, the lack of any connection to human trafficking in the ITO after excision leads to the same conclusion — that the search warrant for the electronic devices was invalid.

[88] Moving to the electronic devices seized from 48 Drake Drive, I find that on the face of the ITO as drafted by D.C. Powell, there were reasonable and probable grounds for a search warrant to issue for these devices. Given the information against Mr. Myers, it was objectively reasonable to conclude that the electronic devices in question would have evidence of human trafficking related offences on them.

[89] With respect to subversion, given my finding above, this search warrant cannot be quashed due to subversion. I note that same conclusion pertains to any cellphones taken from Mr. Nolan and searched as this was the only argument he raised.

[90] After excision, for the reasons I gave above regarding the ITOs for the dwellings, reasonable and probable grounds remain for the search warrants for the electronic devices seized from 48 Drake Drive.

[91] The one exception is a mobile phone that belonged to Ms. Myers-Ellis. There is no dispute that this was her phone. When the police were executing the search warrant at 48 Drake Drive, Ms. Myers-Ellis pointed out this phone as hers. She was allowed to use it later when she was brought to the police station. Unlike the other electronic devices found at 48 Drake Drive, the s. 8 analysis regarding this phone turns on grounds that specifically relate to Ms. Myers-Ellis.

[92] With respect to the search of this phone, after the excisions, the issuing justice could not have issued this warrant given the lack of reasonable and probable grounds that any evidence would be found on it.

[93] To start, Ms. Myers-Ellis was said to have committed the offences of attempt to obstruct police and receive a material benefit from the obtaining of sexual services.

[94] Regarding the former offence, nothing in the ITO connects the offence of attempt to obstruct police to potential evidence on the device, either directly or by inference. S.D. had said the attempt consisted of only oral statements made to her by Ms. Myers-Ellis on one occasion. S.D. gave no indication that there were any electronic communications. One cannot infer from the totality of the circumstances that evidence of that offence could be found on the phone.

[95] Regarding the offence of receiving a material benefit, reasonable grounds are also lacking. S.D. said she was being charged $800 for rent. Once amplified, the information that S.D. gave money to Ms. Myers-Ellis is neutralized. Section 286.2(4) (a) of the Criminal Code excludes legitimate living arrangements from the ambit of the offence. The payment of rent was not made in a formal landlord/tenant relationship so the periodic payments in differing amounts from S.D. to Ms. Myers-Ellis, as shown by the banking records, are not inconsistent with rent. S.D. may have made her rental payments whenever she had the money or motivation to do so.

[96] Looking at the totality of the ITO, before excision and amplification, it paints a picture of Ms. Myers-Ellis being integral to the scheme of human trafficking involving S.D. This depiction is then connected to the averments about how human traffickers use electronic devices, especially cell phones, to conduct their trade. Once the proper excisions and amplification are made, however, this picture is wrong. While Ms. Myers-Ellis was aware that S.D. was a sex worker, the money given to her was for rent; an objectionable amount in S.D.’s view, but not disingenuous. The sum is certainly less than 50% of what S.D. had previously been giving Mr. Myers as his share of the proceeds from her sex work. Once proper excisions are made, there is nothing left to support the conclusion that Ms. Myers-Ellis was involved in the trafficking of S.D. or receiving a material benefit from her sexual services other than rent.

[97] The Crown submitted that the examination of the phone could reveal contacts or communications between other suspects that could provide evidence of listed offences committed by one or more of the targets, including Mr. Myers. The Crown also submitted that when committing crimes, people normally talk and text using their electronic devices. While I do not doubt this might be a sound basis to obtain a warrant to examine the contents of a phone in some other case, on the information provided in this ITO, I find that this is plain speculation. To accede to this argument would be tantamount to giving my blessing for the search of cell phones for any offence under any circumstances, based on the mere assertion that the search might uncover evidence. This would totally negate the safeguards provided in the Criminal Code and the constitutional protections under the Charter. It would not strike the right balance between privacy and the needs of law enforcement. Objectively, more is required, and this ITO does not provide it after excision and amplification.

[98] I find that Ms. Myers-Ellis' s. 8 rights were violated as the search warrant for her phone could not have been granted.

3. THE PRODUCTION ORDERS FOR THE BANK RECORDS

[99] Mr. Myers and Ms. Myers-Ellis challenge the production orders for banking records. While banking records were sought for Mr. Musara and Mr. Nolan, the Crown does not rely upon any records obtained pursuant to the orders. Thus, Mr. Musara and Mr. Nolan do not seek to quash the orders but rather rely on any alleged misconduct by D.C. Zeppieri to support their overall request for a stay of proceedings.

[100] The ITO of D.C. Zeppieri covers much of the same ground as those of D.C. Powell. There is an overview focusing on what S.D. told the police on March 5, the background of the targets, and the grounds of belief as required by the Criminal Code. Like D.C. Powell’s ITOs, it is detailed and lengthy.

[101] Little emphasis was placed on the challenge to the facial validity of the ITO for the production orders. In my view, there were sufficient reasonable and probable grounds for the orders to issue.

[102] The major challenge was sub-facial, along the same lines as the challenge to the search warrants for the dwelling houses and electronic devices.

(a) Subversion

(i) General Credibility Findings Regarding D.C. Zeppieri

[103] D.C. Zeppieri’s credibility was also challenged. It was argued that he was blatantly dishonest. I did not find him so. His recollection was not always great. That is to be expected given the passage of time. But he was fair and generally open to accepting reasonable suggestions made to him by the defence. Indeed, overall, he was quite frank in admitting the errors in his ITO. I found him to be a credible witness.

[104] I note that inconsistencies between the evidence of D.C. Powell and D.C. Zeppieri were minor and explainable due to differing recollections. An example is whether after the March 5 interview with S.D., D.C. Zeppieri discussed S.D.’s potential liability for her involvement in the disposal of the firearms and taser. D.C. Zeppieri recalled this from his notes. D.C. Powell did not.

(ii) Errors in the ITO by D.C. Zeppieri

[105] The ITO sworn by D.C. Zeppieri contained several errors. Some were the same ones made by D.C. Powell. Before I get to them, I point out a significant contextual factor that differentiates D.C. Zeppieri’s ITO from D.C. Powell’s. D.C. Zeppieri swore his ITO on November 27, 2019,[^5] months after D.C. Powell’s first ITO, and when he was no longer with the HTET. D.C. Zeppieri essentially agreed to prepare this ITO because D.C. Powell was busy with other police matters. Hence, D.C. Zeppieri’s recollections were that much more distant and he was more reliant upon the notes and documents he had available to him.

[106] I find the following to be intentionally misleading in D.C. Zeppieri’s ITO:

• D.C. Zeppieri intentionally misled the justice about the change in S.D.’s story regarding the “Black pimp” who drove to Lake Couchiching. At para. 22 of the ITO,[^6] D.C. Powell wrote that S.D. stated a “friend” was sent to get S.D. after the shooting. Like D.C. Powell, D.C. Zeppieri used passive language without gender pronouns that obscured who took her to the lake. At paras. 43 and 67, D.C. Zeppieri stated that it was Ms. Browne who was alleged to have driven S.D. to discard the firearms. In this ITO, unlike in D.C. Powell’s, the justice would not even have known that S.D.’s story had changed, let alone how dramatically. In cross-examination, D.C. Zeppieri admitted that he had recognized at the time how significant the change was. In fact, he had wanted to take S.D. to do a videotaped statement when she first told the police of this change. In my view, this portion of the ITO amounted to deliberate deception. I appreciate that by the time this ITO was drafted, Ms. Browne had admitted to the police that she had taken S.D. to the lake. However, Ms. Browne denied that S.D. had ever discarded any firearms in her company. Regardless of what D.C. Zeppieri believed, the problem, as in the case of D.C. Powell, was that that he did not fully or fairly set this information out to let the justice decide what to make of it. He should have.

• At paras. 23, 40, and 69 of the ITO, D.C. Zeppieri stated that Mr. Myers had directed S.D. to send money she had made from sex work to his mother online and “to pay his mother $800 for a room in the basement which was under the guise of rent”. This was deliberately wrong. S.D. did not say Mr. Myers directed her to give his mother the proceeds “under the guise” of paying rent. It was rent. The Crown argued that it could reasonably be inferred the rent was a fiction from the fact that Mr. Myers forced S.D. to live with his mother and S.D. said she paid a ridiculous amount for rent. I do not agree. D.C. Zeppieri may have interpreted it in this way, but this was unreasonable. While D.C. Zeppieri relied on a summary of the transcript of the March 5 interview in drafting the ITO, this is not an adequate explanation for this error, as he was present for the interview and knew very well what S.D. had said.

[107] I find the following mistakes were a result of negligence:

• Like D.C. Powell, D.C. Zeppieri omitted any disclosure of the HTET advising S.D. that they would not be charging her for her involvement in the disposal of the firearms.

• At paras. 22 and 24, D.C. Zeppieri averred that S.D. went to Mr. Musara’s residence after Mr. Myers’ incarceration, at Mr. Musara’s direction. S.D. said in her statement to the police that she had in fact reached out to Mr. Musara to ask for help after having a negative experience with a man named Donte at his house.

• At para. 69, D.C. Zeppieri wrongly stated that S.D. was directed to work for Mr. Musara and that Mr. Musara created online advertisements for S.D.

• At para. 70, D.C. Zeppieri wrongly claimed that Mr. Musara kept and controlled S.D.’s money.

• At para. 71, D.C. Zeppieri wrongly claimed that when S.D. was with Mr. Musara, she felt isolated, that she was not allowed to talk to his friends, and that he wanted to maintain control over her.

[108] After hearing D.C. Zeppieri’s evidence, I find these errors to be a result of negligence and not deliberate. When drafting the ITO, he did not pay due attention to its wording. First, there is the aforementioned context; D.C. Zeppieri was no longer with the HTET, was drafting the ITO at some time removed from the events, and was using records to refresh his memory. Second, as cross-examination revealed, a portion of the inaccurate depiction of Mr. Musara’s involvement was identical to what D.C. Zeppieri wrote about what Mr. Myers did (at para. 61), indicating a cut and paste form of drafting. Some other averments in the ITO appear to mistakenly confuse Mr. Musara’s limited role with that of Mr. Myers. To me, this is a sign of rushed and negligent drafting as opposed to intentional deception. Third, unlike D.C. Powell’s ITO, which was structured to make it seem that S.D. said certain things, D.C. Zeppieri’s ITO was not structured in this way. These errors were found in the sections entitled “Overview” and “Grounds to Believe Subject Has Committed Offences”. In this context it is more likely that negligence and carelessness caused the mistake, as the affiant was not required to be as exact in his language.

[109] I find the following was a simple mistake:

• In para. 17 of the ITO, D.C. Zeppieri wrote that S.D. fell asleep and “woke up to Tap having sex with her”. S.D. did not say she had fallen asleep before the sexual assault took place.

[110] As with D.C. Powell’s ITO, I find there was no breach of the duty to make full, fair, and frank disclosure about the sexual assault in D.C. Zeppieri’s ITO. The applicants argue D.C. Zeppieri failed to properly disclose S.D.’s incapacitation, the difficulties she had in identifying persons involved in the sexual assault, and the fact that she had identified the white suspect “Shames”. I disagree. It was not necessary to disclose every minute detail of S.D.’s statement in the ITO. Also, unlike the human trafficking offence, the sexual assault was not integral to the information about the banking records but was merely part of the background narrative.

(iii) Conclusion on Subversion

[111] I find that the test for subversion has not been met.

[112] D.C. Zeppieri admitted to his mistakes. He was not evasive under cross-examination. He said he used the notes that he had made and did not have access to transcripts of the interviews. He acknowledged he could have done a better job drafting the ITO. While at times he did not act in good faith, he did not set out with the intent to subvert the production order process.

[113] Like D.C. Powell, in many parts of the ITO, D.C. Zeppieri was negligent in his drafting. He made unreasonable interpretations of the information that the police had. But unlike D.C. Powell, the structure of his ITO does not suggest that the erroneous information came directly from statements made by S.D. Obviously, it can be inferred that it did, but the structure provided a less misleading picture to the issuing justice. For instance, in the section pertaining to the grounds for the offences, D.C. Zeppieri states that the information he had in this respect came from the synopsis for a guilty plea created in relation to the investigation. An experienced justice would be aware of the nature of such information found in a synopsis.

[114] In assessing whether the totality of the circumstances amounted to subversion, I must take the intentional misleading into account. However, the first instance of this was limited to the disposal of the firearms, which was immaterial to the production order. Although the second instance pertaining to the rent was more relevant, even with these two intentional mistakes and the cumulative negligent mistakes, this simply does not rise to the level of egregiousness to conclude subversion has taken place. Ultimately, the drafting was sloppy, but it was not akin to an abuse of process.

(b) Excision and Amplification

[115] The false and inaccurate information must be excised. The mistakes were not made in good faith and were not minor or technical. Thus, no amplification by the Crown is permitted. Again, the only amplification permitted is the addition of the true information that S.D. was paying Ms. Myers-Ellis $800 in rent.

[116] With respect to Mr. Myers, I dismiss his challenge to the ITO. Even after excision and amplification, there remain ample reasonable and probable grounds for this production order to issue with respect to his bank accounts. Given the nature of human trafficking generally and the information regarding Mr. Myers’ pivotal role in trafficking S.D., abundant grounds to obtain his banking records exist.

[117] With respect to Ms. Myers-Ellis, it is a different matter.

[118] In my view, after excision and amplification, the justice of the peace could not have issued this order with respect to Ms. Myers-Ellis based upon the remaining information. Essentially, stripped of the references where it was wrongly stated that Ms. Myers-Ellis was trafficking or assisting in the trafficking of S.D. and was receiving money from that, what remains is that S.D. was paying Ms. Myers-Ellis money from her sex work to rent the basement. The mere fact that S.D. gave money for rent to Ms. Myers-Ellis and that Ms. Myers-Ellis knew the money came from sex work cannot objectively constitute reasonable and probable grounds to obtain Ms. Myers-Ellis’ banking records. Otherwise, a residential landlord would be required to produce their banking records to the police whenever they knowingly provided rental shelter to a sex trade worker. Landlords would be loathed to provide shelter in such situations, thus exacerbating one of the harms that Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101 identified and that s. 286.2(4)(a) of the Criminal Code was intended to address.

[119] The production order for Ms. Myers-Ellis’ bank records should not have issued. A violation of s. 8 of the Charter has been proven.

B. THE SEARCH OF MR. NOLAN’S BAG

[120] Mr. Nolan was stopped on June 22, 2019, by the Ontario Provincial Police (“OPP”) for a traffic violation. While investigating this violation, a warrant for his involvement in the alleged offences against S.D. came to light. The OPP officers arrested him. The officers had information that Mr. Nolan was armed and dangerous. They seized a bag from the car and searched it. An Agreed Statement of Facts states that the searching officer relied upon the common law power of search incident to arrest. Mr. Nolan and the bag were taken to the OPP detachment and from there to 14 Division in Toronto. D.C. Powell attended at the division and seized the bag and its contents.

[121] Mr. Nolan challenges the search of the bag, which contained money and his electronic devices. The Crown submits that the search was lawful as being incident to the arrest.

[122] For a search to be incident to arrest, the police must be attempting to achieve some valid purpose connected to the arrest. These are generally ensuring the safety of the police and public, the discovery of evidence, and the preservation of evidence. There are subjective and objective elements to the test. The police must have a valid purpose in mind when conducting the search and the officers’ belief that the search will fulfill that purpose must be reasonable: R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51.

[123] Based upon the totality of the circumstances and the explicit agreed-upon fact that the police officers conducted the search incident to arrest, I find there was no s. 8 violation.

C. THE MANNER OF SEARCH

[124] A Charter-compliant search must be executed reasonably. In this application, a number of searches are alleged to have been conducted in violation of s. 8: (1) the search of 48 Drake Drive; (2) the search of 113 Livingstone Avenue West; (3) the search of the digital devices by way of data extraction; and (4) the search of Ms. Myers-Ellis’ cell phone by unlawfully disabling the phone password and failing to abide by the conditions of the search warrant.

1. THE EXECUTION OF THE SEARCH WARRANTS ON THE DWELLINGS

(a) Overview of the Execution of the Search Warrants

[125] On May 17, 2019 at 6:00 a.m., dynamic entries were conducted at both 48 Drake Drive and 113 Livingstone Avenue West. The detective in charge of the HTET unit responsible for the investigation, Detective Correa, obtained the assistance of two tactical police units for the searches. The Barrie Tactical Support Unit, along with members of the HTET, executed the warrant at 48 Drake Drive, and the Toronto Emergency Task Force (“ETF”), along with members of the HTET, executed the warrant at 113 Livingstone Avenue West.

[126] Both Ms. Myers-Ellis and Mr. Musara challenge the decision to conduct a dynamic entry. They submit that the departure from the knock and announce rule was not justified.

[127] In addition, they submit that even if the dynamic entry was justified, the manner in which the search was conducted was unreasonable. In the case of Ms. Myers-Ellis, it is submitted that the amount of force used to conduct the dynamic entry was excessive, the manner in which the police treated her and Ms. Browne was unreasonable, and the search of the contents of the home was done unreasonably. Similar arguments are made by Mr. Musara, who at the time of the entry was asleep with his girlfriend at 113 Livingstone Avenue West.

(b) The Applicable Legal Principles

[128] R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at paras. 18-25, 31, sets out the governing legal principles. Absent exigent circumstances, the police must “knock and announce” their presence and purpose before forcing their way into a dwelling. When the police depart from this rule and conduct a “dynamic” or “hard” entry, the onus is on them to explain why it was necessary to do so by demonstrating, for example, that they had reasonable concerns about the possibility for violence or the destruction of evidence. The greater the departure from the principles of announced entry, the heavier the onus on police to justify their approach. At the same time, reviewing courts will yield to the experience and judgment of the executing officers when assessing the reasonableness of the chosen manner of search. The reasonableness of the officers’ decisions is judged by what was or should have been known to them at the time, not through the lens of hindsight. Moreover, the police are afforded wide latitude in deciding how to enter premises, and officers are not expected to measure the amount of force needed with nuanced precision. A reviewing court does not play the role of “Monday morning quarterback”. The essential question is whether the search overall, in light of the facts reasonably known to the police, was reasonable.

(c) The Decision to Conduct a Dynamic Entry at 48 Drake Drive

[129] Detective Correa explained that while the HTET do execute search warrants, he was of the view that a tactical unit that had special training and equipment would be helpful. In making this decision, Detective Correa had in mind several factors: that Mr. Myers was violent and dangerous, had guns, and had trafficked in drugs; that the group of people he was involved with was dangerous; and that members of this group had participated in a sexual assault. Once the tactical unit agreed to assist, that unit’s members decided the manner in which the entry would be made.

[130] Overall, I accept Detective Correa’s testimony. He was a credible witness. The applicants alleged that Detective Correa misled the court about a past comment made in an unrelated investigation during an interview of a person, to the effect that the officer told this person “you are either a victim or an accused”. I accept Detective Correa’s explanation and that it was an innocent failure of memory when he did not recall saying this.

[131] Sgt. Frye authored the Operational Plan to conduct the entry for the Barrie Tactual Support Unit. He was the tactical sergeant responsible for the supervision of the execution of the search warrant at 48 Drake Drive. A briefing took place on May 16, 2019 with investigators from the HTET. Sgt. Frye relied on the information they provided. The factors he considered in the dynamic entry were the possibility of firearms, the possibility of perishable evidence like cell phones and computers, and the fact that another search warrant at 113 Livingstone Avenue West was being conducted simultaneously. In his view, if the search warrant was not done dynamically, officer safety concerns would arise, specifically with respect to the potential presence of firearms in the residence. He testified that this was central to the decision made regarding the manner of the entry.

[132] As further outlined below, there were some mistakes in the information received from the HTET. However, Sgt. Frye testified that the misinformation would not have impacted his plan.

[133] When the factors are viewed collectively, I cannot gainsay the resort to a dynamic entry.

[134] In October, the information that the police had was that firearms were used by Mr. Myers, not simply possessed. The police were looking for firearms in his home. The police knew two women lived at the home but could not say who would be present at the time of search. They also had information that an unknown white male (Mr. Shemen) could be present.

[135] I appreciate that the gun incident was seven months old, the guns had been disposed of, and Mr. Myers was in custody. These factors lessened the risk to officer safety. Still, the risk was not negligible. Detective Correa testified about his concerns based upon his experience that once a person has guns, they will want to replace them. Moreover, he testified from his experience gained when he worked with the Guns and Gangs unit about the connection between guns and drug trafficking. All these considerations factored in favour of a dynamic entry for safety reasons.

[136] Moreover, the possibility that electronic devices could be destroyed justified a dynamic entry. On this issue, a number of factors need to be balanced. First, electronic devices are now ubiquitous. Nearly everyone has them, on their person and in their home. If too much emphasis is placed on the concern that these devices will be destroyed, the police will almost always be justified in conducting a dynamic entry. On the one hand, some case-specific facts supported a surprise entry here. In human trafficking cases, as the ITO explains, electronic devices, especially cell phones, are important items given the potential to find evidence on them. Text messaging is often how human traffickers communicate with and control their victims. The officers testified how readily mobile phones can be destroyed or rendered difficult to access. The known occupants had a history that raised the possibility they might destroy evidence. S.D. alleged that Ms. Myers-Ellis counselled her to obstruct the police in the investigation of the Peel shooting. Ms. Browne was said to have helped S.D. get rid of the guns. On the other hand, no confirmed criminal history supported the concern that the occupants would try and destroy evidence. The little background information the police had about Ms. Myers-Ellis and Ms. Browne, aside from the allegations made by S.D., did not raise any serious concerns. They were middle-aged women with jobs and no criminal past.

[137] The final justification was that another search warrant was being executed at the same time at a premise said to be connected to 48 Drake Drive. It is true that absent the element of surprise, the occupants of 48 Drake Drive could have given warning to the occupants of 113 Livingstone Avenue West. However, I recognize that the connections between the two premises were not that strong as they depended in turn upon the connection between Mr. Musara and Mr. Myers, and Mr. Myers, being in custody, was out of the picture at the time.

[138] At the end of the day, this is a close call. However, I am satisfied that the decision to conduct a dynamic entry was proper and reasonable in the circumstances.

(d) The Manner in Which the Search Was Conducted at 48 Drake Drive

[139] This is not the end of the analysis. Ms. Myers-Ellis submits that even if the dynamic entry was reasonable, the manner in which the search was conducted was not.

[140] I must exercise restraint in reviewing this conduct of the police. Once a departure from the knock and announce principle is justified, the courts have an understandable reluctance to second-guess the tactics used by the police or to scrutinize them on a micro level. More so when these decisions are made by a tactical unit with experience in conducting dynamic entries.

[141] That said, the decision to conduct a dynamic entry does not give carte blanche to the police in how they go about that entry. Balanced against the police objectives in ensuring safety and preserving evidence are the privacy, dignity, and security rights of the occupants. People have the right to feel secure within their homes. We do not say a person’s home is their castle for nothing. Even when it is justifiable to allow the state to storm that castle with surprise, this does not mean that any and all tactics are okay. Moreover, judicial deference to police tactics cannot make those tactics impervious to judicial review. The totality of the circumstances must still be considered.

[142] The essence of a dynamic entry is the element of surprise. Other than that, the police tactics used in conducting a dynamic entry are highly variable and should be assessed based on what the police knew or ought to have known at the time of search warrant execution, bearing in mind that it can be a fluid situation. Circumstances confronting the police at the door of a dwelling may change significantly and quickly. The police should reassess the security requirements of a dynamic entry as those circumstances change. This can mean more or less force being applied, depending on the case.

[143] In my opinion, there are two reasons why the manner of search at 48 Drake Drive was unreasonable: (1) the police were acting on a misunderstanding of the situation at 48 Drake Drive based on their own carelessness; and (2) there was a significant departure from the standard of reasonableness when the search is looked at holistically.

(i) Erroneous Information Used by the Barrie Tactical Support Unit

[144] The inaccurate information provided to the Barrie Tactical Support Unit improperly raised the potential threat level posed by the occupants at 48 Drake Drive.

[145] Sgt. Fry authored the Operational Plan for 48 Drake Drive. He based this plan upon information received in the briefing and through email exchanges with Detective Correa. Somehow, a serious misinterpretation or miscommunication of the information provided by the HTET occurred. The Operational Plan that guided the Barrie Tactical Support Unit in the execution of the search warrant entry indicated that Ms. Myers-Ellis was responsible for trafficking the complainant out of her home and that she had taken over as the ringleader of the trafficking group. This was very wrong. Objectively, such information would only increase concerns for officer and public safety and the potential for the destruction of evidence.

[146] Moreover, not all relevant information was adequately conveyed to the Barrie Tactical Support Unit. Importantly, what was not conveyed was the dated nature of the information about the guns Mr. Myers had and the fact that they had since been recovered.

[147] These mistakes contributed to how the tactical unit conducted the dynamic entry. Regardless of any testimony to the contrary, I cannot see how they could not have.

(ii) The Unreasonableness of the Search

[148] There are conflicts in the evidence about how the police searched 48 Drake Drive, starting from the initial entry to the completion of the search.

[149] The following facts are undisputed. A large number of Barrie tactical officers used a battering ram to open the front door of 48 Drake Drive early in the morning, when Ms. Browne and Ms. Myers-Ellis were asleep. They used a “distraction device” which emitted a loud bang and flash at the front door and left a burn mark on the floor. The officers came in well-armed with carbines that had flashlights attached to their barrels and were slung in the “low-ready” position. Ms. Browne awoke, came out of her bedroom, and was confronted by tactical police at the second floor landing just outside of her bedroom door. She was ordered to lie prone on the floor. Ms. Myers-Ellis was in her bedroom still asleep when she was awoken by tactical officers.

[150] Then there are some disputed factual findings I must make.

[151] Daniel Shemen, Ms. Myers-Ellis’ boyfriend, had stayed the night. He testified that he had left the house to go to work at about 4:30 a.m. As is his habit, likely born of stubbornness, he left the door unlocked. Ms. Browne confirmed that this was Mr. Sheman’s habit. The Barrie tactical unit did not check to see if the door was unlocked. That is not their way. They just used the battering ram. I accept that the door was unlocked.

[152] Ms. Browne testified that except for panties, she was naked at the time the officers entered the house. She grabbed a blanket when awoken by the police. She was ordered prone to the ground at gunpoint and handcuffed to the rear. She lay there for about 10 to 15 minutes almost completely naked. While on the ground, she could see that Ms. Myers-Ellis was also laid prone on the ground in her bedroom. The second floor landing was small and the bedrooms were close to one another. Ms. Myers-Ellis was in Ms. Browne’s field of vision. Ms. Browne testified that Ms. Myers-Ellis was “butt-naked” and hand-cuffed to the rear.

[153] The Crown called several Barrie Tactical Support Unit officers. They contradicted much of what Ms. Browne testified to, including whether guns were pointed at her and whether Ms. Myers-Ellis was in a prone position, hand-cuffed, or naked. Ms. Myers-Ellis did not testify on the application.

[154] I accept Ms. Browne’s testimony on these factual issues. I find that the arguments made by the Crown about her credibility or reliability do not touch what she testified happened during the search. Ms. Browne’s testimony about how the police mistreated her friend was not influenced by bias due to her friendship with Ms. Myers-Ellis. It was honest. It was plausible.

[155] While the Barrie officers contradicted Ms. Browne’s testimony, they also confirmed parts of it. P.C. Chubb testified that he ordered Ms. Browne to the ground. He stepped over her to go into her bedroom. P.C. Speers then put her in the room. By then, Ms. Browne had a blanket around her. The police then took steps to protect her dignity but they did not let her get dressed until it was safe to do so.

[156] One area the Crown submits is an important contradiction is the amount of time Ms. Browne testified she spent on the ground. By all accounts the tactical unit had secured the premises quickly and turned over the premises to the HTET in about five minutes. However, I find Ms. Brown’s estimate that she was on the floor for 10 to 15 minutes to be an understandable mistake. It would be hard to estimate time in these circumstances. She was shocked and upset. Her testimony that the guns were pointed at her is also just a misunderstanding, given her prone position and the fact that the guns were being held at the ready. She could have reasonably perceived that the guns were being pointed at her when the officers had not done so directly. I also accept that she was only dressed in her panties. The pre-search video taken about 15 minutes after the warrant was executed showed Ms. Browne clothed and seated on a bed after D.C. Hassard from the HTET took over from the tactical officer. D.C. Hassard confirmed that there was only a blanket around Ms. Browne when she first took custody of her. This only makes sense if she was, as she claimed, bare on top. D.C. Hassard let her get dressed. Thus, I am satisfied that Ms. Browne was lying prone and nearly naked on the ground for a few minutes.

[157] More crucial to the assessment of the Charter issue is Ms. Browne’s testimony that that she saw Ms. Myers-Ellis lying on the floor “butt naked” and hand-cuffed. She testified that she saw Ms. Myers-Ellis in that position for a few minutes.

[158] P.C. McLellan and P.C. King of the tactical squad contradicted Ms. Browne on this. P.C. McLellan was the first officer who went into Ms. Myers-Ellis’ bedroom, at 6:01 a.m. He recalled Ms. Myers-Ellis sitting or lying in bed. She was cooperative and compliant. He arrested her for human trafficking at 6:02 a.m. He handed her over to the HTET investigators at 6:08 a.m. He could not recall much happening during the time before he handed her off, as he just stood by in the bedroom. He could not recall how Ms. Myers-Ellis was dressed but testified that he did not recall seeing her private parts and that if he had, he would have remembered it. He initially testified in chief that he could not recall if he cuffed her or not. She remained sitting or lying on the bed throughout. Under cross-examination, his evidence became more definitive that she was not naked, he did not put her on the floor lying prone, and he did not hand-cuff her.

[159] P.C. McLellan came across generally as honest. But I have some difficulties with his evidence for the following reasons. First, his notes are sparse and he did not have a good recollection of this search warrant execution. Second, he could not recall how Ms. Myers-Ellis was dressed except to say he would have remembered if she was naked. I am not so certain of this given his poor recollection and the number of warrants he has executed. Third, his testimony that Ms. Myers-Ellis remained seated on the bed and uncuffed did not make great sense. Ms. Myers-Ellis was the main target. He had arrested her and was with her for about six minutes. Yet according to P.C. McLellan, he just stood there with his carbine slung on his shoulder. Given that Ms. Myers-Ellis was under arrest and given the information the Barrie police had about her role in the offences, it is more plausible that she would be cuffed and put in a position of disadvantage on the bed or on the floor.

[160] P.C. McLellan could not recall the HTET investigator he handed off Ms. Myers-Ellis to.

[161] P.C. King was in Ms. Myers-Ellis’ bedroom with P.C. McClellan. He cleared the small ensuite bathroom and then also stood by in the bedroom. P.C. King could not recall if Ms. Myers-Ellis was naked. But in re-examination, he was more confident that she was not, because this was something he would have recalled. P.C. King did not recall whether Ms. Myers-Ellis was hand-cuffed or not.

[162] I find that P.C. King did not have a good memory. Moreover, he was very focused on the tasks he was doing at the time of the entry into the home and did not have much recollection of anything beyond that. He noted at 6:02 a.m. that Ms. Myers-Ellis was in bed and secured. P.C. King’s recollection is mainly confined to his brief notes. Understandable, perhaps. But his testimony does not help me in making findings of fact.

[163] In short, I have little confidence in these two officers’ testimony that Ms. Myers-Ellis was not lying prone, naked, or handcuffed. I appreciate the officers felt that the search warrant entry was uneventful and that significant time has passed since then. It may well be that for these officers, finding Ms. Myers-Ellis naked, forcing her to lie prone, and hand-cuffing her is not so eventful given their considerable experience in such matters. But this does not answer the question of how Ms. Myers-Ellis was arrested.

[164] On the other hand, I find it entirely plausible that the officers would take Ms. Myers-Ellis from the bed and make her lie prone on the ground to handcuff her. If she was in bed covered with bedding, much of her would not be visible. The officers would not have allowed this given the concern about guns and weapons. It makes sense that the officers would take her out of that position and onto the floor. Moreover, given Ms. Browne’s and Mr. Sheman’s evidence, I find it entirely plausible that Ms. Myers-Ellis was naked at the time. I am satisfied that this is what in fact happened.

[165] After making these findings of fact and taking into consideration all the circumstances, I find the manner of search was overall unreasonable. It is the cumulative nature of the police conduct that makes it so.

[166] The use of numerous tactical officers with carbines strikes me as excessive given the true state of affairs at 48 Drake Drive, which the Barrie Tactical Support Unit ought to have known about. That said, this alone would not have made the search unreasonable.

[167] Battering down the door was unnecessary. The distraction device was unnecessary. All officers who were asked agreed that distraction devices are dangerous. They can hurt people and damage property. This one burnt the floor. I know I should hesitate before second-guessing this type of tactic, but I note that the Toronto ETF at Livingstone Avenue West did not resort to a distraction device, even though there was greater risk to safety there. In this case, the occupants of the home were shocked by the use of the device.

[168] Sgt. Fry testified there is no change in procedure if on a dynamic entry a person is found to be naked. In general, the person is given verbal instructions and taken into custody. Once in secure custody, their dignity is restored by clothing them. I have no problem with this procedure. It is fair. It is respectful. But it was not properly followed in this case. Putting both women in a state of undress on the ground at gunpoint, cuffed to the rear, for even a few minutes was totally unnecessary. They were compliant and cooperative. The house was small. The situation in the house was calm and readily secured. The women could have been quickly detained, secured in a standing or sitting position, and immediately given an opportunity to get dressed. I appreciate Ms. Myers-Ellis may not have lain prone and naked for a long time. But in these circumstances, even a few minutes was too long. Especially if one is naked, shocked, surrounded by armed men in tactical gear, and feeling vulnerable.

[169] In summary, a s. 8 violation occurred due to the overall conduct of the Barrie tactical unit. Given the number of search warrant executions they have conducted, the officers may not have seen this entry as a big deal. But objectively, it was a big deal for the occupants. Moreover, the misinformation about Ms. Myers-Ellis likely informed how the police conducted their dynamic entry. If the tactical team had had the correct information, I find it likely that they would have used less force and would have conducted themselves differently.

[170] A second challenge is made to the manner of search conducted by the HTET officers. The applicant objects to how the HTET conducted the search once the tactical unit cleared the home. During the search, it is alleged that the police made some unprofessional comments about a sex toy. It is also alleged they deliberately left it out in the open on top of a pile of clothes in Ms. Myers-Ellis’ bedroom. A photograph taken by the police shows this. In addition, Ms. Myers-Ellis contends that the dwelling was left in a messy state.

[171] In my opinion, even if true, these matters would not amount to a Charter violation: R. v. Donaldson, 2020 ONSC 4611, at paras. 33-36 reversed but not on this point 2022 ONCA 415. Nothing was damaged during the search by the HTET. Ms. Browne could have misheard the officers’ alleged comments. The sex toy being left out in the open was careless and unprofessional but not flagrant misconduct.

[172] While I reject this Charter challenge, I feel compelled to say this. I understand that the need to conduct efficient and thorough searches will mean that searched premises will not be left in a pristine state when the police depart. Yet, I would hope that the police understand that the disruption required for the execution of a search warrant does not extinguish a person’s property and dignity rights. The search should be respectfully done.

(e) The Decision to Conduct a Dynamic Entry at 113 Livingstone Avenue West

[173] I have found that a search warrant should not have issued for this residence. Mr. Musara, in his quest for a stay of proceedings, also challenges the manner in which the search at 113 Livingstone Avenue West was conducted. Detective Correa and Sgt. McFarlane of the Toronto ETF made the decision to use a dynamic entry. I find this decision was objectively reasonable given their concerns for officer and public safety as well as the potential for the destruction of perishable evidence.

[174] First, S.D. had told the police about the possibility that Mr. Musara had supplied the guns and bullets to Mr. Myers. I have found that this information was stale and the circumstances of how S.D. came to this belief were problematic for the issuance of the search warrant. However, when it comes to deciding how to conduct a search, the information that can be reasonably considered by the police does not have to reach the same threshold as reasonable and probable grounds. It was reasonable for the police to rely on this information in their decision to depart from the knock and announce principle.

[175] Second, the police were aware that Mr. Musara was a drug dealer. S.D. had also told the police that Mr. Musara was the head of the Barrie gang. Detective Correa’s experience with gangs and his belief about the association of guns and drug trafficking counts more when assessing this departure from the knock and announce rule.

[176] Third, Mr. Musara had a criminal record for possession of a drug and failing to comply with bail. He also had past firearm charges that had been stayed. According to S.D., Mr. Musara had acted violently against her. Thus, there was a potential he could behave violently if confronted by the police in the execution of a search warrant.

[177] Fourth, during their surveillance, the police observed Mr. Nolan at 113 Livingstone Avenue West. Thus, it was possible that he could have been present at the time the warrant was executed. Mr. Nolan’s criminal convictions for assault with a weapon and robbery with a firearm were much more serious than Mr. Musara’s.

[178] Fifth, for similar reasons as with the dynamic entry at 48 Drake Drive, the ease with which electronic evidence can be destroyed supported the use of a dynamic entry.

[179] Mr. Musara has also challenged how the search was conducted. I find that the assistance and involvement of the ETF was warranted. Moreover, the manner in which the ETF conducted the search overall was objectively reasonable. The occupants were also treated reasonably.

[180] The door was rammed open. The Toronto ETF came in with their carbines. There were several persons in the dwelling that needed to be secured. In an upstairs bedroom, Mr. Musara and his girlfriend were asleep in a bed. Another man, a Mr. Harris, was asleep on the floor. Mr. Musara and his girlfriend were cooperative and obeyed instructions; they laid on their stomachs on the bed at P.C. Bernardo’s direction. P.C. Bernardo pointed his carbine at them with the light on until everyone in the room was secured. P.C. Bernardo’s partner struggled with Mr. Harris on the floor briefly, as he was not following commands. All of this took less than a minute. P.C. Bernardo then moved his carbine into the ready position and stood by. In my opinion, all of this was reasonable in the circumstances. Indeed, Mr. Musara does not strongly argue otherwise.

[181] Mr. Musara still takes issue with the manner in which the ETF secured the premises and the HTET subsequently searched the premises. Detective Correa testified that once the ETF called him in, he did a walkthrough of the premises. A door in the bathroom was pointed out to him. It was damaged. A picture frame had also been knocked down and damaged.

[182] I pointed out to counsel for Mr. Musara that there was no direct or otherwise admissible evidence as to how these items were damaged or who caused the damage. Thus, the applicant has not proven that it was caused by the police. It would have been easy enough for Mr. Musara to call one of the occupants of 113 Livingstone Avenue West to testify that these items had not been damaged prior to the police’s arrival, but he did not.

[183] As in Ms. Myers-Ellis’ case, I find that the police leaving the premises in a messy state is not in and of itself a s. 8 violation.

[184] Looking at the totality of the circumstances, the manner of search at the dwelling did not amount to a s. 8 violation.

[185] In the alternative, assuming that Detective Correa’s evidence is some circumstantial evidence from which I can find that the Toronto ETF caused the damage, and since the damage was left unexplained, this was a violation of s. 8 of the Charter. But it was a minor one. I observe that Code J. in Thompson, 2010 ONSC 4559 found a s. 8 violation when the police caused significantly greater damage to property along with other misconduct during a search but did not ultimately exclude the evidence under s. 24(2) of the Charter.

2. THE SEARCH OF THE ELECTRONIC DEVICES

[186] Once the search warrant was issued for the electronic devices, the TPS Tech Crimes Unit extracted the data. The HTET investigators later examined the data. The applicants raise several issues challenging whether this was done in conformity with the terms and conditions of the search warrant. With respect to Ms. Myers-Ellis, I have found that the search warrant for her mobile phone should not have issued. However, in arguing for the remedy of a stay of proceedings, Ms. Myers-Ellis presses all Charter violations by the police.

[187] The question that needs to be answered is not whether the forensic examination of the electronic devices constituted a serious intrusion of privacy. There is no doubt that it did. Rather, the question is whether the search warrant authorized that manner of intrusion. While not always constitutionally necessary, this search warrant imposed several terms and conditions on how that manner of search was to be conducted: R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at para. 62. If not authorized, then it was an illegal search and a s. 8 violation.

(a) The Extraction of the Data Within the Time Limit in the Search Warrant

[188] The applicants submit that the search warrant for the electronic devices required that the data be extracted and examined within five days of the issuance of the search warrant, from June 1 to June 5, 2020. The date range is written on the face of the search warrant. In support of that interpretation, the applicants point to D.C. Powell’s ITO requesting five days to obtain the electronic devices and have them examined by a member of the TPS Technological Crime Section. The extraction of all the devices alleged to have belonged to the applicants was actually conducted months later.

[189] The Crown responds that the search warrant authorized a five-day period in which the police could obtain and seize the electronic devices from the property bureau of the TPS where they were being kept after seizure. This plan is outlined in D.C. Powell’s ITO. The temporal limitation in the warrant has nothing to do with the examination of the devices. Moreover, the ITO states that some 25 electronic devices were to be examined forensically. It would be practically impossible to extract and examine the data from all those devices within five days.

[190] In my view, the answer depends upon the terms and conditions of the search warrant. The one sentence in the ITO the applicants focus on is ambiguous. It could be interpreted as either five days to obtain the devices, or five days to obtain the devices and have the data examined. Regardless of what D.C. Powell avers to in her ITO, it is the search warrant that governs the manner in which the search of the electronic devices must be conducted.

[191] I agree with the Crown that the five-day window was the period whereby the police could seize the devices at the property bureau and take them to the Tech Crimes Unit. When one looks at the express terms of the warrant, it does not state that the extraction and examination of the data should be completed in the five-day period. When read along with the appendixes, the proper interpretation conforms to the Crown’s position. Other search warrants may very well require extraction and examination of the data within a set time. But this one did not.

[192] My finding is consistent with several authorities where similar arguments were made and rejected. In R. v. Nurse and Plummer, 2014 ONSC 1779, at paras. 41-53, Coroza J. (as he then was) found that the extraction and analysis of the data after the “expiry” of the timeframe set out in the search warrant did not amount to a s. 8 violation. The search warrant, properly interpreted, permitted this. On appeal, Mr. Nurse did not argue that the trial judge had erred regarding this issue and the Court of Appeal did not expressly consider it: 2019 ONCA 260, at para. 131.

[193] The defence’s argument has also been rejected by trial courts. In R. v. T.I., 2021 ONSC 2722, at paras. 26-34, Akhtar J. considered that police submitting two phones for data extraction two months after their lawful seizure (pursuant to a warrant with a date range of September 27, 2018 to October 2, 2018) did not amount to an unlawful search. Quoting from Paciocco J.’s (as he then was) decision in R. v. Barwell, [2013] O.J. No 3743 (C.J.) at paras. 29-30, Akhtar J. held that there was no requirement for a forensic examination to take place during the time specified in the warrant and that such a requirement would be unrealistic and counterproductive. In R. v. Yabarow, 2019 ONSC 3669, at paras. 44-49, Dambrot J. also held that police are not bound to conduct forensic examinations of data seized from digital devices only within the time periods outlined for execution of a warrant.

[194] The Form 5 search warrant issued by the justice of the peace under s. 487 of the Criminal Code in this case is generally used for the search and seizure of property at places. As a parting comment, I observe that though a s. 487 warrant to search an electronic device for data may not be a different animal from a warrant to search a “building” or a “place”, it certainly is a different breed. For such search warrants. to unthinkingly use Form 5 as a kind of fill-in-the-blank template may be unwise. To avoid Charter challenges like this in the future, it may be prudent to pay more attention to s. 487(3) of the Code which states:

A search warrant issued under this section may be in the form set out as Form 5 in Part XXVIII, varied to suit the case. [Emphasis added]

(b) The Extraction of the Data Without Regard to Relevance

[195] A condition of the search warrant found in Appendix A states: “The examination of the data in any of the digital devices is to be limited to the seeking of data relevant to the offences listed in Appendix ‘B.’” Appendix B contains a long list of offences, including firearms and human trafficking offences.

[196] The applicants submit that the police were required to determine relevance to the listed offences at the time the data was extracted from the electronic devices. In other words, because the search of the devices began with the extraction of the data, at that point the police should have complied with this condition of the search warrant.

[197] I do not agree.

[198] I do not gainsay the importance of this condition in the search warrant. However, to interpret the condition found in the search warrant in the manner suggested by the applicants is unduly rigid. In assessing what the search warrant condition demanded of the police, it is wrong to conflate the word “examination” as used in that condition with a “search” under s. 8 of the Charter. In my view, the condition required that in examining and seizing the data in the phone,[^7] determining its relevance to the listed offences was required. Put another way, a wholesale examination and seizure of data was not permitted. However, the police did not have to make this determination at the exact moment they extracted and downloaded the data from the electronic devices — an action that might, under a constitutional analysis, be considered the commencement of the “search” of the device. That type of “search” and the “examination” as found in the condition of the warrant are not equivalent.

[199] Moreover, as the evidence on this application demonstrated, it would be impossible to determine relevance at the point of data extraction. The extraction process is a nearly automatic process whereby the data is taken from the electronic device by a computer program, Cellebrite in this case, in a numeric format not comprehensible to a human reader. A condition of a search warrant should not be interpreted in a fashion that makes its fulfillment impossible.

[200] As ancillary arguments, the applicants question the security of the storage system whereby the extracted data is left on central police servers with attendant concerns about exactly when the data is destroyed and potential data breaches of the servers. These issues do not engage my role in judicially reviewing this search warrant. I will just say that the retention and return provisions of the Criminal Code, security measures and protocols adopted by the TPS, and privacy laws are better placed to address those concerns. If an issuing justice is concerned about the retention of such data, it can be made a term of a search warrant to delete the extracted data after a specified period of time, such as the conclusion of the appeal period after a verdict or any appeal.

(c) The Examination of the Data for Relevance by Tech Crime Officers

[201] The applicants make the alternative argument that if relevance need not be assessed at extraction, once the Cellebrite program decoded the extraction, the Tech Crime Unit officers were required to comply with the condition when they reviewed the decoded material for compliance with other terms and conditions, such as temporal limits. D.C. Vadivelu undertook this process for Ms. Myers-Ellis’ phone. He created a report that he sent to the investigators of the HTET along with the material data from the phone without making any assessment of the relevance of the data to the listed offences. D.C. Vadivelu testified that it was for the investigators to determine the relevance of the information found in the electronic devices.

[202] For similar reasons set out above, the applicants do not properly interpret this limiting condition in the search warrant. Nothing in the search warrant states that a Tech Crime Unit analyst, and not another officer, must examine the data for relevance.

[203] From a practical perspective, the HTET investigators have the knowledge to make decisions about relevance. The Tech Crime officers do not. The applicants submit that a Tech Crime officer could get input from or consult with the investigators to do this. However, given the nature and scope of the duties the Tech Crime officers have, this would be impractical. It makes more sense that once the report is given to investigators, they should be the ones to determine relevance as required by the warrant. While practical exigencies do not take precedence over search warrant conditions, those conditions should not be interpreted in a manner that would make police investigations unworkable.

[204] An assessment of the search warrant provisions bears out this interpretation. The search and seizure of the data permitted by the search warrant contemplates several steps or stages. Different words are used to describe them. The wording supports the conclusion that flexibility is permitted as to who makes the determination of relevance.

[205] First, the warrant specifically states that the “extraction” is to be done by the Technological Crime Section. In the forensic analysis of electronic devices, “extraction” is a term of art. Nothing on the face of the warrant expressly limits the scope of the extraction of the data. However, the data and information to be “collected” from the electronic devices is limited to the date range of March 1, 2018 to February 24, 2019. Thus, the use of a different term, “collected”, in the warrant indicates that the collection of the data from the electronic devices should be temporally limited at the front end, something that the Cellebrite program readily allows the Tech Crime officer to do. The search warrant goes on to state, “The examination of the data in any of the digital devices is to be limited to the seeking of data relevant to the offences listed in Appendix ‘B’”. The use of the word “examination” rather than “collection” leaves it open for officers other than the initial officers who downloaded and prepared the data to perform this limiting function. The word “examination” connotes a detailed inspection or investigation. The Tech Crime officers do not “examine” the data. This is left to the investigators to do.

[206] In sum, I see no failure to abide by this condition in D.C. Vadivelu leaving it to the HTET investigators to perform this requirement of the search warrant.

(d) The Lack of Examination for Relevance of the Data in Ms. Myers-Ellis’ Phone

[207] Some police officer has to determine relevance to the listed offences. For Ms. Myers-Ellis’ cell phone, it was supposed to be D.C. Zeppieri, to whom D.C. Vadivelu gave the retrieved data and information.

[208] I am satisfied that the police did not properly examine the data in Ms. Myers-Ellis’ phone for relevance in accordance with the search warrant. There is no evidence that this problem arose for the other electronic devices that were examined.

[209] On August 5, 2020, D.C. Zeppieri scrolled through the messages that were extracted from Ms. Myers-Ellis’ phone. As I understand his evidence, he mainly did this to determine ownership of the phone. He was aware of the condition limiting the examination to the listed offences. Some of the messages on the phone were intimate and sexual messages between Ms. Myers-Ellis and Mr. Sheman. D.C. Zeppieri agreed that these messages had no relevance to the investigation of the offences set out in Appendix B of the warrant. The officer’s opinion as to relevance is not determinative of whether the manner of the search conformed to the conditions of the warrant. But D.C. Zeppieri’s opinion has some probative value, as he was one of the primary investigators.

[210] I find that D.C. Zeppieri did nothing to ensure relevance to the listed offences. D.C. Zeppieri “searched and seized” all of the messages in Ms. Myers-Ellis’ phone without paying any mind to the relevance condition in the warrant. This is clear from the fact that the sexually intimate messages were given to the prosecution and then disclosed to the defence.

[211] The search warrant anticipated that some “examination”, some initial interference with Ms. Myers-Ellis’ privacy, would be necessary to establish relevance. However, it also contemplated that any ongoing intrusion would ultimately be limited by relevance to the listed offences. As I see it, the purpose of the condition is two-fold. First, so that officers do not examine the data to try and uncover other crimes not specifically listed. Second, so as to limit the continuing disruption of Ms. Myers-Ellis’ privacy using the yardstick of relevance. Given the highly intrusive nature of a search of electronic devices, only relevant data should be examined and retained. Once the police determine that certain data is irrelevant to the offences, they cannot keep that data for investigative purposes, nor can they copy it, use it, or disclose it to others. It must not be forgotten that s. 8 applies to both “searches” and “seizures” of the information. Furthermore, privacy is not all or nothing.

[212] The Crown argues that the messages, including the sexual messages, were relevant to the use and ownership of the device. The Crown also submits that relevance is a moving target; it may only be later, perhaps even during the trial itself, that certain messages or information may become relevant. Respectfully, the Crown’s submissions amount to ex post facto justifications to try and justify the police’s conduct. Even leaving aside that the police were well aware the phone belonged to Ms. Myers-Ellis, as she had identified it and had given them the password, the police did little or nothing to adhere to the relevance requirement of the warrant. Essentially, they ignored it. Regarding potential relevance arising later on, as the authorities hold, the investigators and the Crown are not prevented from re-examining the extracted data if an unforeseen issue arises: see Nurse.

(e) Taking Photos of the Screen of Ms. Myers-Ellis’ Phone Displaying Data Outside the Temporal Limits of the Warrant

[213] There is another way the manner of search did not conform to the search warrant and thus was unreasonably conducted. D.C. Vadivelu took photographs of different screens of Ms. Myers-Ellis’ phone which contained data outside of the temporal limit set out in the search warrant.

[214] D.C. Vadivelu testified that in accordance with his training, when he extracts data from an electronic device, he also takes steps to verify the process of extraction and its accuracy. This is the standard practice followed by his unit as well as other police agencies. In that validation process, D.C. Vadivelu randomly takes photographs of various phone screens showing data contained in the phone, such as apps, photographs, call logs, messages, and other content. He later compares the contents of those photographs with the data extracted by the Cellebrite program. In that way, he can verify that the extraction process was done properly.

[215] The violation of the Charter occurred because some of the photos of the phone were beyond the date range in the search warrant, March 1, 2018 to February 24, 2019. The dates of some of the data he photographed and thereby collected, as clearly shown on the screen of Ms. Myers-Ellis’ phone, was outside that range. D.C. Vadivelu either knew or should have known this was the case.

[216] The Crown submits that the photos D.C. Vadivelu took were only for validation purposes and not for investigative purposes. Thus, if this was a breach of the Charter, it was a minor and technical one. I do not accept that characterization.

[217] First, D.C. Vadivelu testified that in addition to the validation purpose, he was concerned about preserving evidence in case the extraction conducted afterwards went awry. Moreover, he took more pictures of the photographs found in Ms. Myers-Ellis’ phone than would seem necessary for validation purposes.

[218] Second, regardless, he should have taken more care to conform with the warrant’s temporal condition. He should not have taken photos of the screens when it clearly indicated a date outside the applicable time period. It would not have been difficult to scroll to another page or folder that would be within the time range. Thus, I do not accept D.C. Vadivelu’s various explanations of why he took photos of the phone screen. The explanations strike me as a reconstruction of recollection to justify what was, at its core, a careless decision to take photos of information outside the timeframe of the warrant. To now contend that some things are relevant to the use, ownership, and settings on the phone is simply an after-the-fact justification for what he did. Plainly, some things he took photos of had no connection to that purported purpose.

[219] Third, D.C. Vadivelu admitted that he should not have forwarded the photographs to the investigators. Even though the information contained on them was limited, it clearly could be of investigative value. For example, contacts between identified people, photographs of certain things and locations, or notes taken by the user as shown in a banner all might be extremely useful to an investigator. The issuing justice wanted to limit the intrusion into privacy by setting a firm date range in which the data and information could be collected. This was not respected by D.C. Vadivelu, even assuming he had a forensically appropriate purpose for taking the photographs.

[220] Aside from the negligence demonstrated by D.C. Vadivelu, looking at it from a broader perspective, the s. 8 breach is grave. D.C. Vadivelu testified that doing this was standard practice. Moreover, he instructs and trains others in his field. While perhaps this attitude and conduct by D.C. Vadivelu is confined to his own specific practice, the nature of his testimony leads me to be concerned about a greater systemic issue. If forensic officers routinely do not adhere to temporal limits in a search warrant because they are purportedly only collecting the data for verification or validation purposes, the court must dissociate itself from this practice.

(f) The Second Examination of Ms. Myers-Ellis’ Phone in August of 2021

[221] D.C. Vadivelu conducted his extraction and examination of Ms. Myers-Ellis’ phone on July 29 to July 30, 2020. Thereafter, it was securely kept in the possession of the Tech Crimes Unit.

[222] At the request of the Crown, to respond to allegations made by Ms. Myers-Ellis that her phone had been tampered with, D.C. Vadivelu looked at her phone a second time from August 13-16, 2021. He wished to determine if any messages had been deleted and the potential reasons for that. D.C. Vadivelu examined the phone, looked at the settings, and took photos of them. He noted that SMS text messages were set for automatic deletion after a certain number of messages. This appeared to put to rest the issue of tampering. The allegation of tampering with the phone has not been raised on this Omnibus Charter application.

[223] Ms. Myers-Ellis submits that the August 2021 examination of her phone went beyond the terms and conditions of the search warrant.

[224] First, she submits that this further search of the phone did not fall within the search warrant. Only the data extracted from the phone in July of 2020 could be examined, not the phone itself. She submits that the Crown should have brought an application under s. 605 of the Criminal Code to conduct a further examination of the phone.

[225] In addition, Ms. Myers-Ellis argues that what D.C. Vadivelu did was beyond the limitations in the search warrant, in that his subsequent examination was not restricted to the timeframe of March 1, 2018 to February 24, 2019.

[226] Finally, Ms. Myers-Ellis submits that this search was not authorized because it was not relevant to any of the listed offences. It was done for the purpose of determining whether tampering took place.

[227] I reject these arguments.

[228] Regarding the first argument, the Crown is correct that this subsequent examination did not require additional judicial authorization as it was not another search. On this issue, the leading case from the Court of Appeal is Nurse. In Nurse, the police seized two phones incident to arrest, then obtained a warrant and extracted messages from them. Although the police initially found nothing of note on the phones, they were able to retrieve incriminating messages a year later due to a software update. The Court held that the police’s subsequent examination of the data was not a new search — rather, it was another interpretation, inspection, or analysis of materials already lawfully seized and thus did not require additional authorization. Re-inspecting or re-interpreting raw data obtained from a lawfully seized device does not involve a further invasion of privacy; once a warrant for a digital device is issued and executed, the privacy interests of the device’s owner are subjugated to law enforcement interests. Thus, on the facts of Nurse, once the police had imaged the data on the devices, there were no restrictions on when or how often they could examine or inspect that data.

[229] Although the Court cautioned against drawing direct analogies between physical objects and digital devices, it acknowledged that this situation was similar to other law enforcement practices that do not require additional authorization, such as subjecting lawfully seized documents to multiple analyses by forensic accountants or re-submitting lawfully seized articles of clothing for additional DNA testing.

[230] Ontario Superior Court justices have come to the same conclusion. In R. v. Otto, 2019 ONSC 2514, at para. 129, Di Luca J. found no s. 8 breach where, after seizure, phones were removed from an evidence locker, a forensic image was created of them, and they were returned to the locker. Di Luca J. considered that the later inspection of the devices was related to the specific investigation that resulted in the initial seizures. In other words, the police were not conducting a further forensic examination for a purpose unrelated to the initial issuance of the warrant. In R. v. Robinson, 2021 ONSC 2446, at para. 26, Akhtar J. also considered that a second analysis of data extracted from an electronic device did not constitute a new search but rather was the same search authorized by the warrant that allowed seizure of the device. Similarly, in R. v. Sinnappillai, 2019 ONSC 5000, at para. 80, Boswell J. held “[t]here is no requirement in law limiting when or how often the police may inspect the data copied from [a] phone.”

[231] Ms. Myers-Ellis submits that Nurse can be distinguished on the basis that it was the re-examination of the extracted data that was in issue in Nurse while in the case at bar, D.C. Vadivelu did not examine the extracted data but the settings of the phone. In my opinion, this is a distinction without a difference. In July of 2020, the phone was searched, the settings looked at, and the data retrieved. What D.C. Vadivelu did in August of 2021 was simply a reinspection of the same data, albeit data that still remained on the phone. The impact on a person’s right to privacy is the same in both situations. There was no new or further invasion of privacy by D.C. Vadivelu unrelated to the reasons why the search warrant was issued. Following the principle expressed in Nurse, once a warrant for this electronic device was issued and executed, Ms. Myers-Ellis’ privacy interests in her phone were subjugated to law enforcement interests.

[232] Regarding the second argument made by Ms. Myers-Ellis, with respect to the timeframe condition, the search warrant specifically states that the “examination for digitally stored passwords etc., should not be limited by the date range”. While the settings for deletion may not be passwords per se, they are fundamental to obtaining access to data and therefore do not fall under the temporal restriction.

[233] Regarding the third argument made, while checking the settings of the phone is not expressly relevant to the listed offences, the search warrant expressly authorizes the searches and examinations of “passwords etc.” No access to relevant data can be conducted unless passwords, keys, and other material settings are examined. Thus, the warrant contemplates that this type of examination of the phone need not be specifically relevant to the listed offences.

(g) Disabling the Password Setting on Ms. Myers-Ellis’ Phone

[234] At the police station, D.C. Rabbito permitted Ms. Myers-Ellis to use her cell phone to call her employer. Her phone was password-protected. She provided the password to D.C. Rabbito. He made a notation of it. D.C. Rabbito did not allow her to use the phone unsupervised. After she was done using her phone, D.C. Rabbito placed it on a table where other seized evidence was located. D.C. Goulah was in charge of processing the cell phone as an exhibit. He bagged and sealed the phone. I am satisfied that once he had done this, the chain of custody of the phone was kept.

[235] The Charter issue arises because when D.C. Vadivelu first examined the phone, there was no password on the phone. This is not something he would have been mistaken about.

[236] Thus, somewhere, somehow, before D.C. Vadivelu opened the sealed property bag, someone disabled the password setting on Ms. Myers-Ellis’ phone. I conclude that this was done by someone in-between the time D.C. Rabbito last had possession of the phone and before D.C. Goulah processed the phone. It was left on a table in the interim. I accept that these two officers did not disable the password.

[237] I find it is proven on a balance of probabilities that it was a police officer who did this. I do not know exactly who disabled the password setting or why they did so. Perhaps the officer who did it believed that since Ms. Myers-Ellis had given the police her password, there was no harm in doing so. However, that inference is speculative. What I can conclude is that the disabling of the password was intentional and deliberate.

[238] The Crown raised other possible innocent explanations. The Crown suggested for example that D.C. Vadivelu did not inspect the phone with its SIM card in it, or perhaps an app could have interfered with the setting. I find these possible explanations equally speculative.

[239] What is the consequence of this? While this finding raises questions about the continuity of the device while in police custody and the integrity of the data, it by itself does not amount to a Charter violation. However, the examination and manipulation of the phone and its data to disable the password setting was not authorized by law. No search warrant to search the phone had yet been obtained. The police did not have Ms. Myers-Ellis’ consent nor any other common-law authority to search the phone: R. v. Fearon, 2014 SCC 77, [2014] 2 S.C.R. 621.

[240] Thus, the search was not authorized and a s. 8 violation has been proven.

[241] I disagree with the Crown that the breach was technical and minor. The problem with turning off a password is that anyone can then readily inspect the contents of the phone without a search warrant. Whether this happened and to what extent, we will never know.

[242] What has not been proven on a balance of probabilities is that the phone was somehow tampered with by the police, for instance by deleting messages. The defence has not shown that disabling the password affected their right to make full answer and defence or that it was an abuse of process. Thus, no violation of s. 7 of the Charter has been established.

SECTION II: THE RIGHT TO COUNSEL

[243] Upon arrest or detention, s. 10(a) of the Charter guarantees a person the right to be informed promptly of the reasons therefor. Section 10(b) guarantees the right to retain and instruct counsel without delay.

[244] Section 10(a) ensures that a person need not submit to an arrest or detention without knowing the reasons for it. It complements the right to counsel in s. 10(b), since a person can only make an informed choice about exercising their right to counsel if they understand the reasons for their arrest or detention and the extent of their jeopardy: R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869; R. v. Borden, 1994 CanLII 63 (SCC), [1994] 3 S.C.R. 145.

[245] Section 10(b) imposes both informational and implementational duties on the police. The informational duty requires that the detainee be advised of the right to retain and instruct counsel immediately. The implementational duty requires the police to provide the detainee with a reasonable opportunity to retain and instruct counsel and to refrain from eliciting evidence from the detainee until they have a reasonable opportunity to reach a lawyer or they have waived their right to do so: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460. The right to counsel is designed to ensure that detainees who are put in a state of disadvantage to the state are treated fairly in the criminal process: R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173.

A. OVERVIEW OF THE ALLEGED VIOLATIONS

[246] Ms. Myers-Ellis, Mr. Musara, and Mr. Nolan raise various s. 10 violations. Ms. Myers-Ellis and Mr. Musara were arrested the morning the search warrant was executed. Both submit that they were not properly informed of the reasons for their arrest as required by s. 10(a). Ms. Myers-Ellis submits that she was told she was under arrest for human trafficking at the scene but not informed of the charges of obstruct police and receiving a material benefit. Mr. Musara contends that he was not told about being charged with any drug offences, an omission that worked to his detriment when he chose to give a statement to the police.

[247] Regarding s. 10(b) of the Charter, Ms. Myers-Ellis submits that the Barrie Tactical Support Unit who arrested her should have advised her of her right to counsel. She was not informed of her rights until an HTET investigator entered the residence and took custody of her. She further submits that she asked to speak to a lawyer at the scene of the search, but the police failed in their duty not to obtain incriminating evidence from her when they asked for her phone password. Additionally, there was an unreasonable delay in facilitating access to counsel. She did not speak with counsel until she was brought back to Toronto and processed at 23 Division.

[248] Mr. Musara also alleges that he was never advised of his right to counsel at the scene. He was only informed of his right to counsel after his transport to the police station and when he was being interviewed by the police. Mr. Musara further submits that his right to counsel was not given to him promptly by the Toronto ETF who initially arrested him nor by the HTET to whom he was turned over. Finally, Mr. Musara argues that his right to counsel was unreasonably delayed as he did not get an opportunity to exercise that right until he was brought back to Toronto and processed at 23 Division.

[249] Mr. Nolan was arrested on a different day by the OPP. Mr. Nolan submits that he was not properly informed of what the charge of “procuring” meant while being transported to the OPP detachment, which led to a violation of s. 10(a). In terms of the alleged s. 10(b) violation, Mr. Nolan asked to speak to counsel of choice but the police failed to provide him with a reasonable opportunity to retain and instruct counsel.

B. MS. MYERS-ELLIS

1. THE ALLEGED SECTION 10(A) VIOLATION

[250] When P.C. McLellan of the Barrie Tactical Support Unit entered Ms. Myers-Ellis’ bedroom and placed her under arrest, he advised her that she was under arrest for human trafficking. Ms. Myers-Ellis submits that the reason for the arrest was wrong as she was only wanted for receiving a material benefit from sexual services and obstructing police.

[251] Crown responds that nothing turns on this inaccuracy for the purpose of s. 10(a). Human trafficking is a far more serious offence and the reason given would have driven home to Ms. Myers-Ellis the grave situation that she was in.

[252] I agree with the Crown. Ms. Myers-Ellis was adequately advised of what she was facing for the purpose of s. 10(a). When the substance of what she was advised is viewed reasonably in all the circumstances of the case, Ms. Myers-Ellis would have understood the jeopardy that she was in and would have been able to make a reasonable decision to decline to submit to arrest or to decide whether to exercise her right to consult counsel.

2. SECTION 10(B): THE FAILURE TO ADVISE OF THE RIGHT TO COUNSEL IMMEDIATELY

[253] When P.C. McLellan advised Ms. Myers-Ellis that she was under arrest at 6:02 a.m., he did not inform her of her right to counsel. Neither did P.C. King who cleared the ensuite bathroom. Both the bedroom and bathroom were quickly cleared. Then the two officers essentially stood by in the bedroom with Ms. Myers-Ellis for about six minutes. At about 6:08 a.m., once the residence was turned over to the HTET investigators, P.C. McLellan turned custody of Ms. Myers-Ellis over to D.C. Reynolds of the HTET, who then gave Ms. Myers-Ellis the caution about her right to counsel.

[254] Ms. Myers-Ellis submits that that her s. 10(b) right was violated because the Barrie Tactical Support Unit officers should have informed her of her right to counsel immediately.

[255] I agree. The informational component of s. 10(b) was infringed given the unreasonable delay.

[256] I acknowledge that informing a person of their right to counsel can be delayed if there is a reasonable concern for officer or public safety or the destruction of evidence. This is well-established law: R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, at para. 34. Delay has been justified when such concerns arise while executing a search warrant or making an arrest: R. v. Popwell, [2007] O.J. No. 1137 (S.C.), at paras. 24-26; R. v. Creary, 2021 ONSC 4936, at paras. 81-93.

[257] A noteworthy case is R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561 (C.A.), at para. 61, where Trotter J.A. upheld a trial judge’s ruling that a seven-minute delay in advising the appellant of his right to counsel while the house was being cleared by the OPP, who had executed a dynamic entry search warrant, was justified on the grounds of officer or public safety. In my opinion, while this case shares similarities to the case at bar, Trotter J.A. was not establishing a broad principle of law that such a delay in similar circumstances is always justified. Rather, as he stated at para. 62, “on the facts of this case”, concerns for officer safety justified a brief delay.

[258] The facts in the case before me do not justify the brief delay for the following reasons.

[259] First, members of the Barrie Tactical Support Unit, composed of 12 officers, a supervising sergeant, and a K9 unit, were involved in the entry and the securing of the residence. 48 Drake Drive was a small townhouse. The information the police had was that two middle-aged women lived there with perhaps one man occasionally present. The entry was swift and without incident. A number of officers went up to the second floor. The two women upstairs were quickly secured. The police were not shorthanded, and the residents were readily found. They posed no problem. There was no case-specific reason for delaying the right to counsel, either on the basis of officer or public safety or any other reason.

[260] Second, within her bedroom, Ms. Myers-Ellis was secured within seconds. She was cooperative and compliant. For several minutes, two officers just stood by in the room with her. I appreciate that they could have been called away to assist with other duties during this time, but they were not. In my view, the duty that they had at the time, which they did not heed, was to take the opportunity to give Ms. Myers-Ellis her fundamental rights under s. 10(b).

[261] Third, P.C. McLellan had his notebook with him which contained the standard caution regarding the right to counsel. In cross-examination, he admitted that he probably should have given Ms. Myers-Ellis her right to counsel but did not believe it was his role. He left it up to the investigators as they knew more about the case and would be coming into the residence shortly. As he understood it, his role was just to secure the premises. This was the plan going in.

[262] All of this strikes me as a systemic issue. It seems that the tactical team viewed it as standard practice when conducting search warrant entries not to give the right to counsel unless investigators were unduly delayed in being permitted on the scene. Members of the tactical team seem to feel that it is not their responsibility to give rights to counsel. Such a blanket practice is wrong. The reasons given by P.C. McLellan do not provide a reasonable justification for delaying the informational component of the right to counsel. The fact that the HTET officers knew more about the case is irrelevant to whether P.C. McLellan could give Ms. Myers-Ellis her right to counsel. The fact that he only considered it necessary to do so if the HTET officers were unduly delayed implies that he would only provide it to a detainee in circumstances where the obligation to give it immediately has already been violated.

[263] I am keenly aware that the delay in providing the informational component of s. 10(b) here was only about six or seven minutes. However, those few minutes may seem eternally long in the mind of a woman who, while sleeping in her own bed, is awoken at gunpoint in the early morning hours by a heavily armed tactical team, in an undressed state, undoubtedly shocked, and feeling vulnerable. It is hard to think of a situation where a person would be in greater need of knowing of their right to counsel immediately. The fact that she was given her right to counsel only a few minutes later is something that can be considered when it comes to remedy.

[264] The right to counsel helps in regaining the detainee’s freedom, guards against the risk of involuntary self-incrimination, and gives psychological support in knowing that one is not alone while in the control of state agents. Famously, in R. v. Rover, 2018 ONCA 745, at para. 45, Doherty J.A. in assessing a failure to provide the implementational component of s. 10(b), described counsel as a “lifeline”. The same can be said about the informational component. One must know about this “lifeline” to reach for it.

3. SECTION 10(B): THE DUTY TO HOLD OFF

[265] Once a detainee has been informed of their rights under s. 10(b) and the person indicates that they wish to contact counsel, the police have a duty to hold off from questioning or otherwise attempting to elicit evidence from the detainee: Pileggi, at para. 71; R. v. M.S., [2021] O.J. No. 3232 (C.J.), at paras. 78-83.

[266] First, I find that Ms. Myers-Ellis asked to speak to counsel. While Ms. Myers-Ellis did not provide evidence on this application, I accept the testimony of Ms. Browne that Ms. Myers-Ellis asked to speak to a lawyer. Ms. Browne testified that she and Ms. Myers-Ellis were at the table in the living room during the execution of the search warrant. Two female officers were present. Ms. Browne asked Ms. Myers-Ellis to call a lawyer, knowing that her son Jamal was a lawyer. Ms. Myers-Ellis then asked the police if she could call her lawyer. The female officer with red hair replied that she could do so when she got to the station.

[267] Ms. Browne was straightforward, honest, and reliable on this point. Her evidence was uncontradicted and plausible. I have not heard any evidence to the contrary from officers who could have testified about this.

[268] In addition, I accept Ms. Browne’s testimony that while at the house, the police brought the cell phones to the table where she and Ms. Myers-Ellis were sitting. After indicating that she wished to call counsel, Ms. Myers-Ellis also wanted to call her work or someone else — Mr. Shemen or her son — to come look after the front door which, after being rammed, could not be secured. The police asked for the password to her cell phone to unlock it and obtain the telephone numbers she needed. Ms. Browne testified that she shook her head “no” to her friend, thinking that this was not a good idea. Ms. Browne could not recall if Ms. Myers-Ellis had given the police the password or if they allowed Ms. Myers-Ellis to make the call herself. Again, the Crown did not call any police officer that contradicted Ms. Browne’s testimony.

[269] I agree with the applicant that asking Ms. Myers-Ellis for her password to her phone breached the s. 10(b) duty on the police to hold off from questioning her and seeking evidence.

[270] In seeking the password, the police could have obtained something that had evidentiary value. First, Ms. Myers-Ellis identified which of the several cell phones in the residence belonged to her. This was direct evidence connecting her to the phone and its contents. Second, the password had investigative value. In obtaining it, the police could have looked at the contents of her phone without any need to disable or bypass her password by forensic means.

[271] I do not have direct evidence of the exact purpose of the police’s request. I do not criticize the police if their only purpose was to help Ms. Myers-Ellis contact her work, boyfriend, or son. However, regardless of their exact purpose, the police need not have gotten the password from her. Under close supervision, they could have handed her the phone, and she could have entered the password and then handed the phone back to the officer to make the call.

4. SECTION 10(B): THE UNREASONABLE DELAY IN FACILITATING ACCESS TO COUNSEL

[272] The implementational duty on the police under s. 10(b) to provide access to a lawyer arises immediately upon the detainee's request to speak to counsel. The police are therefore under a constitutional obligation to help the detainee access a lawyer at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 24.

[273] Whether a delay in facilitating access to counsel is reasonable is a factual inquiry.

[274] Courts have recognized that specific circumstances, including concerns for police safety, public safety, or the preservation of evidence, may justify some delay in providing a detainee access to counsel. Such concerns must be case-specific. The police may delay access to counsel only after turning their mind to the specifics of the circumstances and concluding, on some reasonable basis, that police or public safety or the need to preserve evidence justifies the delay. Even if such circumstances exist, the police must take reasonable steps to minimize the delay: Rover, at paras. 26-27.

[275] No efforts were made at the scene to facilitate Ms. Myers-Ellis’ access to counsel. Detective Correa had arranged a prisoner wagon to transport any detainees back to 23 Division in Toronto, where arrangements had been made by the HTET to use their facilities for the investigation and the processing of the accused. This included providing an opportunity to contact counsel. The prisoner wagon brought Ms. Myers-Ellis, Ms. Browne, Mr. Musara, and Mr. Harris back to Toronto. At 23 Division, at 10:40 a.m. D.C. Rabitto, who was in charge of Ms. Myers-Ellis, placed a call to duty counsel. Ms. Myers-Elis got a call back at 10:59 a.m.

[276] Looking at the evidentiary record, there were two sources of significant delay in this case: (1) getting Ms. Myers-Ellis back to Toronto, and (2) waiting at the sallyport to enter the division to parade the individuals.

[277] Despite submissions by the applicant to the contrary, I find that it was reasonable that Ms. Myers-Ellis was not given access to counsel at 48 Drake Drive. The officers testified that they could not give her the privacy required and were not seriously challenged on this. Bearing in mind that a search involving numerous officers was going on at the time, it would have been difficult to give her privacy to speak with counsel. This decision was reasonable: Pileggi, at para. 71; R. v. Burnett, 2021 ONCA 856, at para. 139.

[278] However, I am troubled by the fact that no thought was given to any plan to facilitate access to counsel at a closer location in Barrie where the warrants were executed. Detective Correa admitted he made no attempts to do so. I appreciate that the police services involved, Toronto and Barrie, are different. However, Detective Correa had already gained the assistance of the Barrie Tactical Support Unit in executing the search warrant. Would it have been that much more difficult to get access to the Barrie Police Services Headquarters just to facilitate a phone call to a lawyer? This would have alleviated much of the delay caused by a trip back to Toronto with the accused.

[279] While I raise this question, I acknowledge that there may have been logistical and jurisdictional issues raised by such a request. Thus, standing by itself, I do not find the delay caused by transporting the accused back to Toronto to be unreasonable.

[280] There were two transporting decisions that cannot reasonably be justified. These decisions factor into whether the first reasonable opportunity was given to Ms. Myers-Ellis to exercise her right to counsel.

[281] First, Detective Correa testified that, due to resource and efficiency concerns, he decided to get a single wagon to transport the accused to 23 Division rather than using police cruisers. I am mindful that in this world of finite resources, using police cruisers to transport may strike some as extravagant. However, I agree with the defence that it would be an impoverished view of our fundamental rights to automatically accept this justification as reasonable. The police planned to search two premises and expected to encounter and arrest four people. While it was always possible that a greater number would be arrested and need to be transported, a mass arrest was not contemplated. The use of four police vehicles does not seem to be hugely taxing on police resources in these circumstances. Using a single wagon to go to two different residences and pick up all the accused without a doubt contributed to the delay.

[282] Even if I put aside the decision to use a single prisoner wagon rather than police cruisers, the failure of preparation in getting the wagon to Barrie caused significant delay. At the time the search warrants were executed in Barrie, the prisoner wagon was still in Toronto. P.C. Seaforth and P.C. Okutin were the officers from 52 Division assigned to transport the accused from Barrie to 23 Division. P.C. Seaforth knew of his assignment before May 17. On that day, he arrived at 52 Division just before 6 a.m. He did not do the paperwork normally done at the beginning of his shift because he was told to get to Barrie right away. He arrived at 48 Drake Drive at 7:15 a.m. Clearly, someone had poorly planned or forgotten about the prisoner transport. Otherwise, the wagon would have been at the scene before the search warrants were executed, as were the HTET officers and Toronto Police Service ETF officers. This delay was caused by poor planning or negligence and not an unforeseen or unexpected event.

[283] The second source of delay came once the wagon arrived at 23 Division. There was a significant delay before the accused were allowed to disembark and be processed. P.C. Seaforth arrived at 23 Division at 9:10 a.m. It was not until 10:04 a.m. that all the detainees disembarked from the wagon. The booking sergeant told P.C. Seaforth to wait. P.C. Seaforth could not offer any explanation for this, and the Crown did not call the booking officer. This delay has essentially been left unexplained.

[284] I find a violation of s. 10(b) given the unreasonable delay in the facilitation of Ms. Myers-Ellis’ access to counsel.

C. MR. MUSARA

1. THE ALLEGED SECTION 10(A) VIOLATION

[285] Mr. Musara submits that his right under s. 10(a) of the Charter was violated.

[286] The search of 113 Livingstone Avenue West resulted in the seizure of a quantity of cocaine in a jacket found in the bedroom where Mr. Musara was asleep with his girlfriend. Mr. Musara also had drugs on his person. He was not told he was being arrested for the offence of possession for the purpose of trafficking. An Agreed Statement of Facts sets out the evidence relating to his arrest, transportation, and investigation. Nothing in the Agreed Statement of Facts suggests that the officers told him what he was being arrested for. No reference was made to drug charges until certain comments made by the sergeant in charge of the station.

[287] Mr. Musara gave a video statement at the police station with D.C. Zeppieri on May 17, 2019. At the beginning of the interview, he was advised of the charges he faced, but not told of any charges relating to the cocaine on his person and in the jacket. D.C. Zeppieri testified that he was reading the charges off the synopsis, which did not include drug charges. He knew about the possession for the purpose of trafficking charge but forgot to mention it. During the interview, Mr. Musara was specifically asked about the cocaine found in the home and he admitted it was his. Mr. Musara advised that he had stopped dealing in drugs. He also talked about selling cocaine to S.D.

[288] The Crown submits that there was no violation of s. 10(a) for a number of reasons. First, Mr. Musara was advised he was under arrest for human trafficking, a far more serious charge. Second, Mr. Musara had drugs on him and therefore would have been aware that the drugs were one of the circumstances that had led to his arrest. Third, during a discussion about the Level 3 search that had occurred while Mr. Musara was being booked, the sergeant explained that one reason for the search was that the drugs located could pose a harm to him or to others in police custody. Fourth, as Mr. Musara was at least aware of the drugs found on his person, he could have obtained legal advice from duty counsel about them before speaking to the police.

[289] All the points made by the Crown are good ones. However, at the end of the day, on the unique circumstances of this case, the failure to advise Mr. Musara of the drug charges made a difference in terms of the interest s. 10(a) is meant to protect. Moreover, it made a difference in terms of getting legal advice, thus raising a potential breach of s. 10(b).

[290] Normally, it would be easy to draw the inference that a person would know about drugs found in their own pants. Here, not so, since when Mr. Musara was getting dressed, it was D.C. Davies who grabbed a pair of pants from the floor of the bedroom and helped Mr. Musara put them on, as he was hand-cuffed. Mr. Musara did not pick out those pants himself. Also, Mr. Musara may not have known of the discovery of the larger quantity of drugs located in the bedroom. The fact that he was told he was being arrested for more serious human trafficking charges, but not told about drug charges, could reasonably have led him to believe he could speak about drugs with impunity. That is what appears to have happened. In his statement, he made repeated references to selling drugs and selling drugs to S.D.

[291] In the rather exceptional facts of this case, I find there to be a Charter violation. The police did not provide Mr. Musara with sufficient information about the nature of his arrest so that he could reasonably understand the reason for his detention and the extent of his jeopardy: R. v. Roberts, 2018 ONCA 411, 360 C.C.C. (3d) 444, at para. 87.

2. SECTION 10(B): THE FAILURE TO GIVE THE RIGHT TO COUNSEL IMMEDIATELY

[292] As in the case of Ms. Myers-Ellis, the Toronto ETF officers who arrested Mr. Musara did not advise him of his right to counsel. However, I find this initial delay was justifiable due to safety concerns. P.C. Bernardo was the officer who detained Mr. Musara on the bed. Mr. Harris, who was on the floor, was not listening to commands and offering some resistance. He had to be dealt with by another officer. Moreover, the residence was a large home with eight occupants and there was commotion in other areas. All of this contributed to a reasonable justification for the failure to advise Mr. Musara immediately of his right to counsel.

[293] However, the justification for the delay ended when the ETF declared that the premises was secure at 6:06 a.m. P.C. Bernardo was just standing by at this point. Mr. Musara and his girlfriend were on the bed and cooperative. Mr. Harris had been subdued. By then the ETF had secured the premises sufficiently to allow Detective Correa to do a walkthrough of the home. At 6:19 a.m., Mr. Musara was formally turned over to D.C. Davies of the HTET. Certainly, by then, there was no reason not to advise Mr. Musara of his right to counsel. Yet D.C. Davies did not do so either.

[294] This leads me to the question of whether Mr. Musara was given his right to counsel by any officer before he got to 23 Division. Mr. Musara argues that he was not. The challenge here is that the Agreed Statement of Facts and the evidence I have heard on this application leads to no easy conclusion on this issue. Mr. Musara did not give any evidence himself on this point.

[295] Based on the evidence, the ETF entered at 6:01 a.m. P.C. Bernardo quickly detained and cuffed Mr. Musara. He did not give him his right to counsel between 6:01 a.m. to 6:19 a.m. while he was with Mr. Musara in the bedroom. Detective Correa did a walkthrough at 6:06 a.m. with the ETF, but he did not give Mr. Musara his right to counsel. D.C. Davies took custody of Mr. Musara at 6:19 a.m. but never gave him his right to counsel, up until the time Mr. Musara was transferred into the custody of D.C. Medeiros at 6:58 a.m. D.C. Medeiros sat with Mr. Musara at the table until he was ready to transport. The Agreed Statement of Facts is silent as to whether D.C. Medeiros gave Mr. Musara his right to counsel. I have not heard from D.C. Medeiros on this application.

[296] Based on this evidence, at the earliest, it was D.C. Medeiros who could have given Mr. Musara his right to counsel. I find that the informational component of s. 10(b) was not provided to Mr. Musara for at least 40 minutes. This cannot be justified for any possible reason. A s. 10(b) violation has been established.

[297] That determined, Mr. Musara has not established that he was never advised of his right to counsel at all. Most likely, D.C. Medeiros did so. I conclude this for two reasons.

[298] First, there is reliable evidence from the booking video at 23 Division that Mr. Musara had been given his right to counsel. At 10:40 a.m., the booking staff sergeant stated to Mr. Musara that he had been advised of his right to counsel and asked if he understood that right. Mr. Musara said yes. Mr. Musara was further asked whether he had his own lawyer and advised that he could call duty counsel if he wished. Mr. Musara affirmed that he understood all this without evidence of hesitation, confusion, or intimidation into responding in the affirmative. Given that he said he understood the right, I am satisfied that he necessarily was told about it previously. Put differently, I find that Mr. Musara effectively adopted the staff sergeant’s assertion that he had been given his right to counsel before being booked at 23 Division. The applicant’s argument that Mr. Musara’s responses were related to his previous past experiences being arrested by the police is speculative, inconsistent with the video, and unpersuasive.

[299] Second, Mr. Musara did not testify. He would know the circumstances of whether and when he was provided his right to counsel that morning. The onus is on him to establish a violation of his s. 10(b) right. While he has established a s. 10(b) violation to the extent that there was significant delay in advising him of his right to counsel, he has not proven that this right was denied completely.

3. SECTION 10(B): THE UNREASONABLE DELAY IN FACILITATING ACCESS TO COUNSEL

[300] Mr. Musara was subject to the same delays in transport to 23 Division as Ms. Myers-Ellis. They were riding in the same prisoner transport wagon. However, there is a fundamental distinguishing fact between their positions as to whether there was an unreasonable delay in facilitating access to counsel. I found as a fact that Ms. Myers-Ellis asked to speak to a lawyer. I am unable to come to the same conclusion regarding Mr. Musara.

[301] Again, Mr. Musara’s failure to testify is important. He is also unable to point to other evidence establishing that he ever asked to speak to a lawyer before he arrived at 23 Division. Even on the booking video, nothing indicates that he wished to exercise his right to counsel. The fact that he did speak to duty counsel later at 11:46 a.m. is not sufficient to infer that he had asked to speak to counsel at an earlier time. Without more evidence, I cannot determine whether he had asked earlier and was not given a chance to call counsel in a timely manner, or that he just changed his mind and called counsel when given an opportunity to do so later.

[302] It is incumbent on Mr. Musara to prove that he asked to speak to counsel but his request was denied, or that he was denied any opportunity to even ask: R. v. Backhouse (2005), 2005 CanLII 4937 (ON CA), 194 C.C.C. (3d) 1 (Ont. C.A.), at paras. 76-81. In my view, he has not proven this. Thus, a s. 10(b) violation on the basis of an unreasonable delay in providing access to counsel does not arise.

D. MR. NOLAN

1. THE ALLEGED SECTION 10(A) VIOLATION

[303] Mr. Nolan submits that a violation of s. 10(a) occurred because he was not properly advised about his arrest for “procuring”.

[304] Mr. Nolan was arrested on June 22, 2019 by OPP officers conducting a traffic stop. While being investigated, the officers discovered an outstanding warrant for his arrest.

[305] At 5:17 p.m., TPS officers arrived at the OPP detachment and took custody of Mr. Nolan. The TPS officers placed him in the cruiser for transport back to Toronto. The conversation between the officers and Mr. Nolan during the ride was recorded. Mr. Nolan was advised he was under arrest for sexual assault and procuring. Mr. Nolan asked what “procuring” was. The police ignored him. The officers and Mr. Nolan then discussed several unrelated matters.

[306] Mr. Nolan is then heard essentially talking to himself. Clearly, he was at a loss about the sexual assault charges. He gravitated back to the procuring and remained confused about its meaning. Mr. Nolan asked the officer again what it meant. After quite a long pause, the officer told him procuring meant “obtaining”, and he gave an example of procuring a document. Mr. Nolan asked whether it meant obtaining sex, as he couldn’t figure out what kind of charge it was and had never heard of it before. The officer replied that they would figure it out and that his lawyer would help him with it. No further assistance was given to Mr. Nolan in the police cruiser or at the station about what “procuring” meant.

[307] I find that in these exceptional circumstances, a s. 10(a) breach arises. Procuring a person to offer or provide sexual services for consideration under s. 286.3 of the Code is a serious criminal offence. The police had a duty to ensure Mr. Nolan knew why he was being arrested. Mr. Nolan plainly indicated that he did not understand what “procuring” meant. The police officers seemed equally puzzled as well. Their attempts to clarify were not that helpful. Given that the police were aware of the nature and extent of Mr. Nolan’s confusion, to meaningfully respect his s. 10(a) right, some explanation should have been forthcoming; for example, the officers could have called in for assistance or the issue could have been addressed at the station. Without more, Mr. Nolan would not know the jeopardy he was facing and thereby would not be in a position to meaningfully exercise his right to counsel.

[308] Davies J. found a s. 10(a) violation on a similar set of facts in R. v. Mootoo, 2021 ONSC 2596, at paras. 27-37. She persuasively observes that the use of the single word “procuring” does not meaningfully describe what is in fact a serious criminal offence and does not allow a layperson to understand or appreciate the associated jeopardy. Moreover, similar to Mr. Nolan’s case, there were indications in Mootoo that the accused did not understand what procuring meant and that the police had provided inaccurate information about the offence. Finally, Davies J. found that providing an opportunity for counsel to properly explain the offence to the accused did not obviate the police’s duty to ensure compliance with s. 10(a). I adopt her reasoning.

[309] This is not to say that in every case police officers are required to go beyond advising a detainee that they are under arrest for a specific offence like “procuring”. In some cases, the nature of the other offence(s) that the detainee is advised they are under arrest for, such as human trafficking, might provide enough context to meet the requirements of s. 10(a). In the case at bar, being advised he was under arrest for sexual assault did not convey to Mr. Nolan the very different jeopardy he was in for the offence of procuring. Also, how the detainee reacts to being advised they are under arrest for “procuring” is important. If the police become aware that the detainee is confused, this should raise a red flag and place an additional duty on the police to explain further. In other cases, where such confusion is not apparent, simply advising a detainee that they are under arrest for “procuring” might suffice.

[310] I find there was a violation of Mr. Nolan’s s. 10(a) rights. That said, I appreciate that the officers acted in good faith and were trying to be helpful. Also, Mr. Nolan was able to exercise his right to counsel and has not shown he was prejudiced by the s. 10(a) violation. These factors are properly considered under remedy.

2. SECTION 10(B): THE DUTY TO HOLD OFF

[311] Mr. Nolan asked to speak with his lawyer. Hence, the police had a duty to hold off from eliciting evidence from Mr. Nolan until he had a reasonable opportunity to do so.

[312] I find that the police breached this duty twice.

[313] First, while being transported back to Toronto, questions asked of Mr. Nolan were mostly just appropriate responses by the police officer to concerns he had. Other discussion was mundane and conversational. However, one exchange between the officer and Mr. Nolan was problematic. When talking about his arrest and in responding to Mr. Nolan’s confusion about why he was being charged, the officer told him that the arrest warrant was “issued yesterday”. The officer then asked whether that meant anything to Mr. Nolan. Mr. Nolan replied that that made no sense. While the Crown argued that the question posed was part of a nonchalant and friendly discussion and the officer was not trying to seek evidence, it was a dangerous inquiry to make. I find that the question sought evidence and could well have led to a highly self-incriminating reply. Trotter J.A. frowned upon this type of questioning in Pileggi, at para. 72.

[314] The second breach occurred during booking. All of the questions the staff sergeant in charge of the station asked Mr. Nolan were fine, given the context and purpose of the booking process: R. v. Dupe, 2010 ONSC 6594, paras. 22-38. Except one. As the staff sergeant was going through Mr. Nolan’s property, he examined the considerable amount of cash in Mr. Nolan’s bag. The staff sergeant advised Mr. Nolan that they would count the money and that it was going to follow along with him. At that point, the staff sergeant also asked him why he had all this money with him. Mr. Nolan replied that it was for rent, even though it was an unusually large amount of cash to be carrying around. In my view, this question could only have been intended to seek incriminating evidence from Mr. Nolan. It was wrong to ask it.

[315] The Crown does not seek to tender any of the statements Mr. Nolan made to the police. I agree that the breaches themselves were not particularly serious given the totality of the circumstances. However, again, that is a matter going to remedy.

3. SECTION 10(B): THE DELAY IN FACILITATING ACCESS TO COUNSEL

[316] There was some delay in facilitating access to counsel for Mr. Nolan. Mr. Nolan asked to speak to his lawyer at around 3:47 p.m. but was not put in touch with a lawyer until 7:40 p.m.

[317] However, when looked at contextually, the fundamental reason for the delay was Mr. Nolan’s desire to contact his counsel of choice.

[318] Mr. Nolan was arrested pursuant to the warrant at 3:44 p.m. He was given his right to counsel at 3:47 p.m. after a pat-down search. At that time, Mr. Nolan told the police he understood the right to counsel and gave the name of Ms. Chung-Alvares as his lawyer.

[319] At 4:02 p.m., Mr. Nolan was transported to the OPP Port Credit detachment where at 5:00 p.m. he was lodged in a cell. The police called D.C. Powell and then Ms. Chung-Alvares. At some time between 5:00 p.m. and 5:21 p.m., police left a voicemail message for Ms. Chung-Alvares.

[320] Ms. Chung-Alvares was unable to contact Mr. Nolan promptly. Another message was left when Mr. Nolan arrived back at 14 Division. Defence counsel finally called at 7:40 p.m. and D.C. Powell put Mr. Nolan in touch with counsel.

[321] I do not find that this delay in facilitating Mr. Nolan’s right to counsel breached s. 10(b). Mr. Nolan wanted to exercise his right to counsel of choice. The delay was caused by that.

[322] In the alternative, if there was a breach of s. 10(b), it was minor and limited to the time between Mr. Nolan’s arrival at the OPP detachment and the time the first voicemail was left for his lawyer. This period of delay, of about an hour or an hour and a half, has not been explained by the Crown. I see no reason why a call to counsel could not have been made sooner. Thereafter, the delay is explained by Mr. Nolan’s wish to contact his lawyer of choice.

SECTION III: ARBITRARY DETENTION AND BAIL

[323] Section 9 of the Charter serves to protect individual liberty against unlawful state interference. A lawful detention is not arbitrary unless the law authorizing it is itself arbitrary. A detention that is not authorized by law is arbitrary and violates s. 9: R. v. Duguay, 1989 CanLII 110 (SCC), [1989] 1 S.C.R. 93.

[324] Section 11(e) of the Charter provides a right not to be denied reasonable bail without just cause. The denial of bail can only occur in a narrow set of circumstances. The denial of bail must be necessary to promote the proper functioning of the bail system and must not be undertaken for any purpose extraneous to the bail system: R. v Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711.

A. REASONABLE AND PROBABLE GROUNDS TO ARREST MS. MYERS-ELLIS

[325] For an arrest to be Charter-compliant, there must subjectively and objectively be reasonable and probable grounds for the arrest: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241. Ms. Myers-Ellis submits that objectively there were no reasonable and probable grounds to arrest her.

[326] I disagree. S.D. provided those grounds. Despite there being credibility and reliability concerns about some of the information S.D. provided, her information that Ms. Myers-Ellis attempted to obstruct police by coaching S.D. to lie if interviewed about the shooting was sufficient to establish those grounds. S.D.’s information was partially confirmed by the finding of the guns and taser, the bank records in S.D.’s possession, a witness present at the party where she alleges she was sexually assaulted, and the Peel police investigation into the shooting.

B. REASONABLE AND PROBABLE GROUNDS TO ARREST MR. NOLAN

[327] Equally, I find no breach of s. 9 with respect to Mr. Nolan’s arrest. There were subjective and objective reasonable and probable grounds for it. On March 21, 2019, S.D. told police that Mr. Nolan had sexually assaulted her twice and that he had attempted to procure her into the sex trade. This in and of itself provided the grounds for his arrest.

C. SECTION 503(1)(a) OF THE CODE: MS. MYERS-ELLIS AND MR. MUSARA

[328] After their arrests, Ms. Myers-Ellis and Mr. Musara were not brought before a justice of the peace within the time required by law. Section 503(1)(a) of the Criminal Code requires that the police bring an arrested person before a justice without unreasonable delay and in any event within 24 hours of the arrest. Failure to do so constitutes an arbitrary detention under s. 9 of the Charter: R. v. Reilly, 2018 ABPC 85, at paras. 44-45, aff’d 2020 SCC 27; R. v. Holmes (2002), 2002 CanLII 45114 (ON CA), 62 O.R. (3d) 146 (C.A.), at para. 22; R. v. Poirier, 2016 ONCA 582, 131 O.R. (3d) 433, at paras. 56-61, 89-96.

[329] The Crown concedes the s. 9 violation. The contested issue is one of remedy. I will address this more specifically later when I consider the effect of all the Charter violations with respect to each applicant. For the moment, I set out some of the factual findings regarding the violation.

[330] Turning first to Ms. Myers-Ellis. The day of her arrest, May 17, was a Friday. After being booked, speaking with counsel, and being interviewed by the HTET investigators, she was lodged in the cells of 23 Division. She did not make it to bail court that day, even though the HTET investigators and the Crown office had planned to have the detainees attend bail court that day. Special arrangements had been made on May 17 for two Crowns from the HTET to be on stand-by and for a special justice of the peace to deal with the bail hearings.

[331] The breach led to serious consequences. Ms. Myers-Ellis first appeared before a justice of the peace in weekend and statutory holiday bail court (“WASH” court) at Old City Hall on May 18. This first appearance before a justice was beyond the 24 hour requirement of s. 503(1)(a). At that bail hearing, the attending Crown, who was not one of the HTET Crowns, did not wish to commence the bail hearing and erroneously indicated to the justice that Mr. Myers was still at large. Defence counsel, who was prepared to conduct the bail hearing, advised that her knowledge was that Mr. Myers was in custody. The Crown replied that she was unable to fashion a release or properly run a bail hearing when Mr. Myers had yet to be found. The Crown asked for an adjournment to May 21 and the defence objected. The Court acceded to the request and adjourned the bail hearing to May 21, a Tuesday given the Victoria Day long weekend. Ms. Myers-Ellis obtained bail with Crown consent on May 21. In total, Ms. Myers-Ellis spent five days in pre-trial custody.

[332] The bail hearing could have been conducted on May 17, and should have been conducted at the latest on May 18. The Crown’s mistaken understanding about Mr. Myers still being at large has not been fully explained. It may well be, as argued by the Crown on this application, that certain inconsistent information in the synopsis led to this confusion. However, that is still the state’s fault. Depending on the nature of the misstatement that leads to an adjournment of a bail hearing, there can be serious constitutional ramifications: R. v. Al-Adhami, 2020 ONSC 6421, at paras. 62, 74-78.

[333] Nonetheless, on the facts of this case, I find that the justice of the peace had the jurisdiction to adjourn the bail hearing. The decision to do so was lawful and thus, not arbitrary within the meaning of s. 9. But had Ms. Myers-Ellis been brought to bail court on May 17 as arranged, I seriously doubt that the need to adjourn would have arisen given that the bail hearing would have been run by HTET Crowns, who presumably would have been knowledgeable about the case and would have known that Mr. Myers was in custody.

[334] Mr. Musara was dealt with by the HTET investigators at 23 Division in a similar fashion as Ms. Myers-Ellis. He too only first attended before a justice of the peace in WASH court on May 18. He came before the court after the bail hearings of Ms. Myers-Ellis and Ms. Browne had already been adjourned. Duty counsel representing Mr. Musara advised that they were ready to go with the bail hearing but that the co-accused had all been adjourned. The Court adjourned Mr. Musara’s bail hearing to May 21 as well. On May 21, at his request, Mr. Musara adjourned the bail hearing to May 22. Ultimately, a special bail hearing was set up for May 29. On that day, after a contested hearing, he was released.

[335] Like with Ms. Myers-Ellis, I find there was no separate violation of the Charter in the adjournments from May 18 to May 29. These were proper adjournments. Indeed, one was at Mr. Musara’s own request. When dates were canvassed for the special bail hearing, defence counsel was not available May 23 and 24. The first date offered by the trial coordinator during the week of May 27 in accordance with all counsel’s availability was May 29. A special bail hearing was required under the local practice and procedure of the courthouse. The delay in scheduling one did not amount to a violation of s. 9 or s. 11(e). To ensure fairness and efficiency in the overall functioning of the bail court, the rule for special bail hearings set by the Regional Senior Justice makes eminent sense. Given the estimated length and complexity of Mr. Musara’s bail hearing, the application of this rule to Mr. Musara’s bail hearing also makes sense. May 29 was the first date that could accommodate the Court and counsel.

[336] That said, the fact that Ms. Myers-Ellis and Mr. Musara were not brought before a justice within 24 hours, as required by s. 503(1)(a) of the Code, remains a s. 9 breach. The reason why this happens needs to be resolved in order to later fashion the proper remedy for this breach.

[337] Detective Correa, D.C. Powell, and D.C. Zeppieri gave evidence on this issue. They had all assumed that the accused had made it to bail court on May 17, and were surprised to hear they had not, given that special arrangements had been made to ensure as much.

[338] At 1:39 p.m., D.C. Powell completed the paperwork to send Ms. Myers-Ellis to bail court. Mr. Musara’s interview with D.C. Zeppieri and D.C. Medeiros finished at 2:02 p.m. He asked about going to court, and D.C. Medeiros told him that they would see if they could get him there. D.C. Powell testified as to the applicable process. First, the officer in charge of the station, the booking sergeant, would have to review the paperwork of the detainees to ensure it was complete. Then, the file would be sent to the central charge processing unit to prepare the information under s. 504 of the Code to charge the accused and be used at the bail court. Once the information was completed and returned to the division, the officer in charge of the station would fingerprint the accused and arrange the transport to the courthouse. D.C. Powell left 23 Division in the afternoon on May 17 with the understanding that this would all be done in time that day.

[339] Detective Correa also provided some insight into what happened. From a prior role as a booker in charge of a police station, he had some direct knowledge and experience of the process. He confirmed the general process as testified to by D.C. Powell. He also had access to some of the data that tracked what happened in Ms. Myers-Ellis and Mr. Musara’s case. This evidence was not contested by the parties. At the central processing unit, where all TPS informations are created, the drug charge information was generated at 2:55 p.m. and the human trafficking charge information was generated at 3:55 p.m.

[340] Detective Correa also testified that given the drug charges Mr. Musara faced, both Ms. Myers-Ellis and Mr. Musara were required to go to bail court at Old City Hall rather than at the Metro West courthouse at 2201 Finch Avenue West as originally planned. However, the police had considered this possibility and had plans to get the accused to Old City Hall as well. Once the informations were received back at 23 Division, the accused still needed to be fingerprinted and then transported to court. For some reason that Detective Correa could not explain, the applicants did not make it to bail court on May 17.

[341] I have not heard any evidence from the officer in charge of 23 Division that day. I do not know why, despite the efforts of the HTET, the police were unable to get the accused to bail court. However, based on the evidence that I have heard, I conclude that some of the reasons were systemic.

[342] First, the process whereby all informations are created and logged at the central processing unit is due in part to the need for a police statistical database. Put differently, this process serves an internal TPS purpose unrelated to the processing of an individual detainee. It also may be less costly to undertake the task centrally. Regardless, clearly this process may cause delay in getting the accused before a justice, depending on the efficiency of the unit and any backlog there. I can easily infer more delay is created by this centralized requirement than if each arresting or investigating officer was responsible for the creation of the information, as Detective Correa advised has been the practice in the past. This poses a potential systemic barrier to the quick processing of the essential charging document required to send an accused to bail court. I see no reason why creating an information in a human trafficking case should take over two hours to complete, as it did in this case.

[343] Second, I do not see why it is necessary for the informations to be returned to the station before administrative tasks such as fingerprinting are completed. No doubt, this creates additional delay before the accused is ready for transport. Surely fingerprinting can be done before the informations are returned to the station from the central processing unit. There may well be a good reason why the process is structured in this way. But I have not heard any evidence explaining it. Thus, I am led to conclude that this may also be a systemic barrier to having an accused brought before a justice in a timely fashion.

[344] Third, I am struck by the lack of oversight in ensuring that the accused in this case were properly brought to bail court. To emphasize, this case is not about investigating officers inadvertently forgetting about the legal requirement in s. 503(1)(a). Nor is it a case where unforeseen events made it impossible or impractical to get the accused to court on time. The HTET officers did an excellent job of organizing and planning for a bail hearing for each accused, even to the extent of ensuring designated Crowns and a special justice of peace were available. However, no one followed through to make sure the plan was realized.

[345] I do not necessarily fault D.C. Powell, D.C. Zeppieri, or Detective Correa. They had had a long, full day. But they left 23 Division and went off-duty without following up on what had happened to the accused, entrusting the responsibility of following through to the officers at 23 Division. Perhaps it would have been wiser to have an HTET officer take individual responsibility in ensuring the accused got to bail court. It is reasonably foreseeable that the officer in charge of the station might become preoccupied or distracted by a host of other duties and might fail to give the accused the attention required. It is likely that those who have ownership of the investigation will be more zealous about ensuring their case is not jeopardized by a failure to observe a mandatory provision of the law.

[346] Finally, it remains somewhat of a mystery why there was no “Plan B”, just in case something arose that waylaid even the best of plans to get the accused before a justice in time. As D.C. Zeppieri testified, there are alternative means other than physical transport to a court to have an accused brought before a justice, including video appearances or call-ins. These alternative means were not used in this case, highlighting the value of an HTET officer being given the oversight responsibility.

[347] Fundamentally, what is required by s. 503(1)(a) is not that a detainee have their entire bail hearing without unreasonable delay and within 24 hours. All that is required is that they be brought before a justice within that timeframe. It is not an onerous requirement. But it is more than a mere formality. The provision exists for important purposes: (1) to ensure judicial supervision over a detainee’s deprivation of liberty; (2) to provide a detainee the earliest opportunity to access the interim judicial release provisions; and (3) to deter abuses by the police, who might be tempted to prolong a person’s custody to further investigative objectives.

[348] Thus, the violations of s. 9 were serious in this case. They are made more serious by the systemic factors that contributed to them.

D. MR. NOLAN’S BAIL HEARING AND SECTION 11(E) OF THE CHARTER

[349] Mr. Nolan submits that his bail proceedings violated s. 11(e) the Charter. He submits his bail hearing was not conducted in a timely manner. Essentially, after his arrest, Mr. Nolan was brought to bail court on June 23, 2019. The information was not before the court at the time. His lawyer was content to proceed on an unsworn information, as his sureties were present. However, the presiding justice of the peace was not inclined to run a contested bail hearing given the lack of time. Moreover, the Crown requested an adjournment to a different courthouse so that a HTET Crown could deal with the bail hearing. The case was adjourned to June 24. On June 24, the bail hearing could not be conducted. The case was adjourned to June 25 and Mr. Nolan was released on that date.

[350] I do not find there to be a breach of the Charter. The adjournments were reasonable given the circumstances. The facts of this case are readily distinguishable from R. v. Simonelli, 2021 ONSC 354, the case relied upon by Mr. Nolan. In that case, there were systemic factors and a lackadaisical attitude towards the delay, both of which are absent from Mr. Nolan’s case.

SECTION IV: OTHER CHARTER COMPLAINTS

[351] The applicants argued other Charter violations. I find none of these arguments have any merit.

A. RACIALLY BIASED AND DISCRIMINATORY INVESTIGATION

[352] We all live in a racist world. We all have prejudices. We all resort to stereotypes. No one is immune. At times, racial bias can influence our views and actions on an unconscious level. That is what makes racism so insidious. So difficult to detect and finally eradicate.

[353] The applicants submit that underlying all their submissions about constitutional violations are alleged violations of ss. 7 and 15 of the Charter, in that the investigation of the applicants has been contaminated by anti-Black racism. Hard and uncomfortable allegations of anti-Black racism were thoroughly pursued by the applicants in these proceedings. This took some time. A lot more than anticipated.

[354] Allegations of racial bias in police investigations must be taken seriously. A just society has not been realized for many racialized persons. Anti-Black racism is undeniable within our society and system of justice.[^8] It can become embedded in police attitudes, practices, and systems. We in the justice system must do our part to uncover it. We should do our best to shine a light on it and provide appropriate remedies if proven.

[355] That said, it does a serious disservice to the administration of justice to permit exploration of such allegations at a trial based only upon broad generalizations about the case, speculative theories, or the mere fact that one or more of the accused are racialized. Judicial resources, strained as they are, cannot be further imposed upon by tenuous claims of discrimination. Moreover, a baseless attack will do nothing to enhance the repute of policing or criminal justice in the eyes of racialized communities. Indeed, it can be of great detriment to the progress we have made towards ensuring equality and respect within the criminal justice system.

[356] On the facts of this case, I find that there is no foundation to the claims of racism and racial bias, conscious or unconscious.

1. THE LEGAL PRINCIPLES

[357] A detailed analysis of the legal principles is unnecessary, as this issue can largely be determined on a factual basis. Moreover, the parties have not well-developed the legal framework to assess their broad and sweeping claims of racism.

[358] The applicants allege that the racism of the police investigation resulted in violations of ss. 7 and 15 of the Charter. Section 7 protects the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Section 15 guarantees equality before and under the law and the right to equal protection and benefit of the law without discrimination.

[359] Yet, the applicants and the Crown both rely upon the authorities that have developed the law about racial profiling and arbitrary detention under s. 9 of the Charter, without resorting to the legal analysis required under s. 7 or s. 15. There are differences in terms of the applicable legal principles. Not the least being that under s. 7, it is likely that the applicants would have to demonstrate that any conscious or unconscious racism adversely affected their ability to make full answer and defence or the fairness of their trial.

[360] Nonetheless, concepts and approaches developed under the racial profiling jurisprudence are helpful in making factual determinations and assessing whether racism affected this police investigation. Moreover, the fundamental evil that needs to be addressed is the same: that race is illegitimately being used as a proxy for criminality or a general criminal propensity of an entire racial group. Thus, I have considered the following authorities: R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692; R. v. Brown (2003), 2003 CanLII 52142 (ON CA), 64 O.R. (3d) 161 (C.A.); Peart v. Peel Regional Police Services (2006), 2006 CanLII 37566 (ON CA), 43 C.R. (6th) 175 (Ont. C.A.); R. v. Dudhi, 2019 ONCA 665, 147 O.R. (3d) 546; R. v. Sitladeen, 2021 ONCA 303, 155 O.R. (3d) 241.

[361] From those authorities, the following legal principles commend themselves when assessing the evidence in this case:

• Racial profiling occurs when race or racial stereotypes about offending or dangerousness are used, consciously or unconsciously, to any degree in suspect selection or subject treatment.[^9]

• There are two components to racial profiling: (1) the attitudinal component, i.e. where the person in authority accepts that race or racial stereotypes are relevant in identifying the propensity to offend or to be dangerous; and (2) the causation component, i.e. where this thinking consciously or unconsciously motivates or influences, to any degree, decisions by persons in authority in suspect selection or subject treatment.[^10]

• The inquiry is primarily focused on the motivations of the police, but given the unconscious nature of racism, a denial of racism by the police is not the end of the inquiry.[^11]

• Racial profiling will rarely be proven by direct evidence and will normally be proven by inferences drawn from circumstantial evidence, including the “correspondence test”, where the circumstances correspond to the phenomenon of racial profiling which provides a basis to reject direct evidence to the contrary.[^12]

• The existence of objective grounds for the detention cannot justify the impugned police decision or conduct if they are tainted by any degree of racial profiling. Policing decisions based even in part on racism or racial stereotypes are by definition objectively unreasonable decisions.[^13]

2. THE ALLEGED RACISM

[362] The applicants submit that anti-Black racism subconsciously infected the police investigation in the following ways: (a) the police’s treatment of the applicants, including false allegations made against them, was based upon racist tropes of criminality; (b) Black and white suspects were treated differently in the investigation; (c) the white complainant S.D. was treated very differently based upon her race; (d) two HTET officers used a derogatory and offensive racial description.

[363] Though I assess each separately, it goes without saying that I have considered their cumulative effect.

(a) Suspect Selection and the Treatment of the Applicants

[364] To begin, none of the police witnesses admitted that racism played a role in this investigation. The officers, especially the lead officers, were all questioned closely. Each officer recognized the existence of anti-Black racism. But they testified that it did not affect their decisions or conduct.

[365] I do not find their testimony surprising. Very few people will admit they are racist. Allow me to say, though, that some who do admit to engaging in racism are perhaps the most enlightened and aware. They truly understand how subconscious racism affects them as they make their way through life, all the while on a conscious level abiding by societal norms and values about the equality of the races. While the evidence that none of the officers are admitted racists — which I accept as truthful — might be the starting point to the analysis, it is by no means the end of it.

[366] Before moving on, I say this about D.C. Powell. She is a Black police officer. I resist the Crown submission that this somehow inoculates her from anti-Black racism; that because she is Black herself, she could not have treated the Black applicants unequally or unfairly on the basis of race and could not have been influenced by false tropes about Black criminality. For example, D.C. Powell’s testimony troubled me when she said she could not name any instance of racial bias on the part of her colleagues. This suggested a lack of awareness or worse, wilful blindness.

[367] But in follow-up responses, D.C. Powell rehabilitated herself. She has the lived experience of discrimination that has made her the type of person, the type of police officer, she is. She has learned from that lived experience, is aware of the danger of racism, and with determination, consciously does not discriminate against others in her job. Her engagement in her community and her efforts in establishing trusting relationships between that community and the police is to be applauded. More importantly, looking at her overall conduct in this case, I find she was not motivated or influenced by anti-Black bias even on an unconscious level.

[368] In this case, suspect selection was not tainted by unconscious racism. It was not based on race. Neither the attitudinal nor causal component is established. Here, the police did not select the suspects. S.D. was the one who went to the police and identified them. The police were duty-bound to investigate her allegations. The main perpetrator central to her complaint was a Black male, Mr. Myers. If any anti-Black racism played a role in suspect selection, it originated with S.D. and not the police.

[369] The other thing about this investigation is that the HTET was focused on the human trafficking component of the allegations made by S.D. This is their mandate. For instance, the HTET did not really pursue any drug trafficking allegations made by S.D. against others. Their resources were naturally committed to the investigation of human trafficking. The investigation does not strike me as anything other than what trained and experienced human trafficking investigators would do given the information received from S.D. Their actions do not indicate that the investigation was influenced by conscious or unconscious racism. They identified the individuals they could based on S.D.’s information and gathered evidence against them.

[370] There are the various false, inaccurate, or misleading statements made in the ITOs and operational plans for the search warrants. In addition, the police did not treat the applicants right when they were arrested and detained. Of course, these actions are not to be condoned. They have resulted in Charter violations for which remedies have been sought and will be given. However, in my view, these violations and other impugned conduct have not been proven to be tainted by anti-Black racism, conscious or unconscious. I recognize that it is difficult to make these connections. However, the onus remains on the applicants to establish this on a balance of probabilities and I find that they have failed to do so.

(b) The Unequal Treatment of a White Suspect

[371] One of the most contentious points raised in this litigation is the police investigation or, more accurately, the lack of investigation into a white male suspect in the sexual assault at the party S.D. attended in Barrie. S.D. alleged that she was sexually assaulted by a group of men. She could say that seven males were involved but could not identify any of them except one named Omar and Mr. Myers. She told the police that all the men were Black except one. That person, according to S.D., was a small white man and she thought his name was “Shames” (or “Shameless”). The only other detail she could recall about Shames was that he lived in the house with the other men or that they were otherwise connected.

[372] The applicants submit that the police investigation was tainted by unconscious racial bias and anti-Black racism given how the police investigated the Black suspects as compared to the white suspect, Shames. In short, they claim little was done to find Shames. Much more was done to investigate the Black suspects. While the Black suspects were arrested, the white male was never found.

[373] I do not agree with this submission. Given the limited information that the police had about Shames, the police investigation into him would have been difficult. I find that the lack of information the police had about Shames was the primary reason why he was not more thoroughly investigated, not unconscious racism. The police had little more than his first name, if indeed Shames was not a nickname. S.D. was not even sure of the spelling or whether he went by Shames or Shameless. The only description given was that he was a white male. That was not much to go on. Moreover, there were serious questions about the reliability of this information given how intoxicated S.D. had been at the time of the assault.

[374] Nonetheless, D.C. Zeppieri did try to locate Shames, including making inquiries of the property manager of the residence where the sexual assault took place and investigating a potential association with a local college. Limited internet searches were also conducted. Granted, the police did not do that much, but they did not simply ignore the white suspect.

[375] The applicants also point to the police press release after the arrests which made no reference to a white suspect being wanted in relation to the sexual assault. I do not give this much weight. I accept Detective Correa’s testimony that the focus of the press release was to determine whether other complainants of human trafficking might come forward. This was reasonable. The failure to identify the white suspect wanted for the sexual assault in the press release is not weighty evidence supporting a racially biased investigation.

[376] Of course, the alleged lack of investigation into Shames should be compared to what the police did in identifying and locating other Black suspects. After the March 5, 2019 interview with S.D., the investigative steps taken were nothing out of the ordinary and do not indicate any racial bias. Those steps were reasonable given the information the police had and where they were in the investigation. They investigated those who they had good information about.

[377] For example, the police had Stephan Myers’ full name and detailed information about him. They were easily able to conduct further investigation into him. The same can be said about his mother and Ms. Browne. On March 19, 2019, after contact with the Barrie police, D.C. Zeppieri received a report which identified the full name of “Tap” as being Tapiwa Musara. The Barrie police also advised that “Body” was a person named Jayden Crooks, who later was identified as Devone Nolan through checks on police databases. S.D. then identified Mr. Nolan in a photo line-up on March 21, 2019. In short, the HTET caught a break from the Barrie police occurrence that allowed them to focus on Mr. Musara and Mr. Nolan. The fact that they were Black was not the reason for that focus.

[378] Additionally, the lack of racial bias in not better investigating and locating Shames is illustrated by the police’s treatment of Omar. In her initial police statement, S.D. said that Omar, along with Shames, was part of the group that had sexually assaulted her. He was a Black male. Given the lack of other information they had about Omar, the HTET expended little effort in trying to identify him. Indeed, they did less than what they did in trying to find Shames. Also, there were other individuals who S.D. claimed were involved in sexual services offences by having girls work in the sex trade for them. They too were Black suspects. But given the limited information and likely limited resources the police had available about those persons, little if anything was done to pursue them.

[379] During this trial, the police found further information about Shames. A further analysis of the phone calls resulted in a more recent investigative lead. This information was disclosed to the defence. As repeatedly testified to by the police officers, this investigation remains open.

[380] I will not go on and detail every aspect of the investigation. Based on the evidence I have heard on this application, the investigation does not strike me as biased simply because the police focused on the Black suspects that they had good information about and not the single white suspect about whom they had little. The slim police investigation into Shames does not come close to establishing that the police were racially motivated against the applicants or that their investigation was tainted by anti-Black racism. Perhaps in another case, where the police had more information about a white suspect and they turned their back on finding that person, there would be more substance to this argument. That is not the case here.

(c) The Treatment of S.D.

[381] S.D. is white. The accused are Black. This alone is an overly simplistic binary framework to assess allegations of racism. Just as I have rejected the notion that a racialized officer cannot be racist against their own race, I reject any notion that just because the complainant and the suspect are of differing races, this is evidence of subconscious racism. There must be more than that.

[382] The applicants point to the police’s decision not to charge S.D. for the disposal of the guns and the taser and any involvement in the shooting, suggesting that this decision was based upon stereotypes or racial bias. I do not agree. D.C. Powell, D.C. Zeppieri, and Detective Correa decided not to charge S.D. because they viewed her as acting under duress, both in driving away from the scene and in disposing of the guns. Moreover, they pointed to the controlling and threatening behaviour by Mr. Myers towards S.D. There was no quid pro quo for her statement of March 5, 2019. No formal offer of immunity was ever given. The HTET could not speak for Peel Regional Police in terms of what they might do.

[383] It is not for me to agree or disagree with the HTET’s decision not to charge S.D. But I do find that the decision was not tainted by unconscious racism. On a subjective level, I find it unproven that the investigating officers decided not to charge S.D. because of her race. Indeed, the officers were not really challenged on this. Furthermore, there were objectively reasonable grounds to support the officers’ state of mind when making this decision.

[384] The applicants also allege that S.D. herself was a racist. During her police interview, on more than one occasion, S.D. used the N-word. Using that word is wrong. Period. The Crown submitted that S.D. was not racist and her use of the N-word was merely her recounting a conversation that she had had with a Black person. In other words, the N-word was used by the Black person and not her. In my opinion, this is not an acceptable excuse. In the social and historical context we live in, any non-Black person using the N-word is simply intolerable regardless of why or how that word is being used.

[385] Intervention and education. S.D.’s use of the N-word should have invoked immediate intervention by D.C. Powell and D.C. Zeppieri, followed by an explanation, however brief, of why it was wrong. Why it might be painful. Why its use has had such devastating consequences in the past and continuing into the present. Why regardless of the context, no one other than a Black person, reclaiming that word, has the right to use it. D.C. Powell understood it was wrong. She testified that in her view, no one, Black or non-Black, should ever use the N-word. But she did nothing about it, likely because she too felt S.D. was just saying what others had said to her. I get that. But an opportunity was lost to educate S.D. about her behaviour.

[386] Nevertheless, this failure did not make the police investigation vulnerable to allegations of racism. It may well be that S.D. unconsciously holds racist beliefs. Her nonchalant resort to the N-word suggests so. However, there were sound investigative reasons to treat S.D. as a complainant. The police cannot choose the race or background of complainants. They must investigate all crime. They cannot avoid investigating a complaint because the person making the complaint may hold reprehensible beliefs. Unfortunately, this even includes racist beliefs.

[387] This necessary and pragmatic stance does not insulate the police from allegations that they were influenced by racial bias or stereotypes held by a complainant. The police must remain alert that that any form of racism is not contaminating the allegations made by a complainant, at least to the extent that the credibility of those allegations might be called into question. Nor should the complainant’s own racism influence the decisions made by the police. If racist tropes are in play, the police cannot turn a blind eye to them. Such wilful blindness can make the police accomplices to racism. That would be unacceptable, and in the right circumstances, it could potentially lead to Charter violations.

[388] However, such is not the case here. Even if S.D. held racist attitudes, consciously or unconsciously, they did not affect the attitudes of D.C. Powell or D.C. Zeppieri, consciously or unconsciously. Nor did it cause them to make illegitimate decisions based on race or racial stereotypes in their actions towards the applicants. S.D.’s terribly wrong choice of words must be condemned, but I am satisfied that it did not contaminate the investigation.

(d) Inappropriate Comments made by Police Officers

[389] My comments apply equally to the use of the word “mulatto” as part of a description of certain suspects by some HTET officers during the investigation. The police officers who testified about this, D.C. Rabitto and D.C. Hassard, were aware, at least to some extent, of the derogatory origins of the word. They both, to some extent, were aware that the word is offensive to some people. In some ways, they were sensitive to the issue. But not sensitive enough.

[390] While I fully appreciate the potential discomfort and discord that might be caused by calling out a fellow officer who uses such a term, intervention is crucial. It need not be done harshly. It can be a teaching moment. Real change only happens if someone speaks up, early and quickly. The evidence I heard at least shows that the TPS are engaging in anti-Black racism training, which is a good thing. That said, on the facts of this case, I find that neither the attitudinal nor the causation component of any Charter violation has been proven by way of the use of this term. It has not been proven that the officers who used the term harboured beliefs or attitudes that used race illegitimately as a proxy for criminality or reflected a general criminal propensity of an entire racial group, even unconsciously. The word does not hold the same social and historical impact as the N-word. The word was used in a description of a suspect. The context of the comment does not show that the officers held racist views, consciously or unconsciously. It further has not been proven that the officers who used the term made or influenced any decisions that affected the applicants’ rights.

[391] In coming to this conclusion, I appreciate that the timing of the impugned comments is not determinative: Dudhi, at paras. 74-78. Comments not made at times material to the arrest of the applicants or other substantive police decisions may still be important circumstantial evidence of an officer’s state of mind.

[392] Lastly, one of the officers transporting Mr. Nolan from the Port Credit OPP detachment to 14 Division asked him if he was a rapper, without any basis to do so. While I do not doubt that the police officer was trying to engage in friendly chit-chat, this was obviously an unacceptable way to do it. However, I find that this question did not amount to anything more than a passing comment between transport officers and a detainee during a long ride back to Toronto. Moreover, the officer exercised no discretion in the decision to arrest Mr. Nolan, as he was simply executing an arrest warrant discovered during a traffic stop. The initial detention itself was never challenged.

[393] At the end of the day, when these isolated comments are assessed in the context of the whole of the evidence, they do not amount to proof of unconscious anti-Black racism.

B. NEGLIGENT INVESTIGATION

[394] The applicants submit that the “negligent investigation” by the police violated the Charter. I feel that some care and exactness should be exercised in the use of this term. No doubt, a “negligent investigation” is a justiciable legal concept in tort law where it can form the basis of an award of damages against the police: Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129. Additionally, police “negligence” or “incompetence” can factor into the determination of discrete Charter violations such as under s. 8 or s. 10(b). Police “negligence” or “incompetence” is often brought into question at the trial proper to challenge the Crown’s proof of the charges beyond a reasonable doubt.

[395] All that recognized, as the law stands, an accused does not have an independent constitutional right, incidental to the right to make full answer and defence or otherwise, to an adequate police investigation of the crime with which they are charged: R. v. Darwish, 2010 ONCA 124, 100 O.R. (3d) 579, at para. 29; R. v. Barnes, 2009 ONCA 432, at para. 1.

[396] Although not expressly formulated in this way by the applicants, but perhaps more accurately analyzed, the applicants are in effect alleging an overarching violation of s. 7 or s. 11(d) of the Charter on the basis that the police investigation amounted to an abuse of process or undermined their right to a fair trial: R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562. The applicants are entitled to point to any police conduct that is improper, malicious, biased, or negligent.

[397] Normally, as in cases involving lost or destroyed evidence, such applications are best decided at the end of the trial to gauge the exact effect of the alleged violations on the conduct of the trial and the defence’s ability to make full answer and defence. However, the applicants raise these issues now to support the argument that a stay of proceedings is a proper remedy given all the Charter violations. Hence, I am prepared to deal with it at this point.

[398] This police investigation was not perfect. Few are. I have already pointed out the differing ways the police conduct fell short, at times to the point of constitutional infirmity. I have also found the police investigation was conducted appropriately in other ways in my rejection of other defence allegations. In the final analysis, I disagree that the overall investigation amounted to an abuse of process or affected the fair trial rights of the applicants.

[399] Taking a bird’s eye view, the HTET conducted a reasonably competent investigation into serious allegations. The HTET took a sworn and detailed statement from S.D. They did not simply trust her word. They did not rush to judgment and make arrests. They sought out confirmation of significant aspects of her allegations. They found much confirmation. They also conducted surveillance, interviewed other witnesses, and executed search warrants and production orders. The conduct of the police was not abusive. True, they made mistakes. However, when the totality of the circumstances is considered, the failings are not such that the overall police investigation amounted to a distinct and independent Charter violation. Any deficiencies in the investigation do not impair the applicants’ right to make full answer and defence or to a fair trial. This is not to say that the applicants’ arguments may not have some effect at trial. But these deficiencies, separately or cumulatively, do not infringe ss. 7 or 11(d).

[400] I will not address each contention of “negligence” made by the applicants during their cross-examination of witnesses or in submissions. There were many, including such things as D.C. Powell meeting S.D. alone to pick up documents from her, leading suggestions made to S.D. in interviews, and the failure to take certain investigative actions or make certain notations. I say simply for the sake of my reasons that I do not accept the contentions and/or do not accept that they amount to Charter violations.

[401] Let me address some more specific complaints.

[402] The applicants’ complaints include D.C. Zeppieri giving S.D.’s dog a chew toy, buying coffee for S.D., and communicating through friendly text messages. In my opinion, provided police officers conduct themselves professionally and retain investigative objectivity, there is nothing wrong with developing a good rapport with complainants or witnesses. There is also nothing wrong with the police showing some empathy and humanity to the people they deal with. These actions were not improper.

[403] Regarding the lack of police investigation into the suspect Shames, I have already dealt with the argument that it constituted racial bias. Whether it was negligent on their part or not, their failure to more vigorously investigate him was not an abuse of process, nor does it have any impact on the fairness of the trial.

[404] I accept that D.C. Zeppieri’s contact with Bell Canada, Ms. Myers-Ellis' employer at the time, was reasonable. He did not intend to jeopardize her job there. S.D. had raised concerns about her safety in that Ms. Myers-Ellis was allegedly watching or recording her and that Ms. Myers-Ellis knew where she was residing. Moreover, there is no evidence that the officer’s contact with Bell Canada had any effect on her employment. Even if did, Ms. Myers-Ellis’ complaint should be with her ex-employer and not the police.

[405] In summary, looking at the entire police investigation, the applicants have not proven a Charter violation based on a “negligent investigation”.

C. DELAYED DISCLOSURE

[406] The Crown's obligation to make timely disclosure to an accused of all relevant information in its possession is well established at common law and constitutionally entrenched in the right to make full answer and defence under the Charter: R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at para. 14.

[407] Not every failure by the Crown to make timely disclosure results in a s. 7 violation. In R. v. Barra, 2021 ONCA 568, 157 O.R. (3d) 196, at para. 138, the Court of Appeal provides a useful summary on this point:

The right of an accused to disclosure is but one component of the right to make full answer and defence protected by s. 7 of the Charter. No bright line rule equates a violation of the right to disclosure with a breach of the right to make full answer and defence: R. v. Dixon, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244, [1998] S.C.J. No. 17, at para. 31; R. v. Bjelland, [2009] 2 S.C.R. 651, [2009] S.C.J. No. 38, 2009 SCC 38, at para. 21. It follows that an accused must do more than show a breach of the right to disclosure to obtain a remedy under s. 24(1) of the Charter: Bjelland, at para. 21, citing R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, at para. 74. That something more is to establish, on a balance of probabilities, that their right to make full answer and defence has been violated: Dixon, at para. 32; Bjelland, at para. 20.

[408] In R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 74, L’Heureux-Dubé J., writing for the majority on this point, provides further guidance on the distinction between a breach of the right to Crown disclosure and a breach of s. 7 of the Charter resulting from that breach:

...Consequently, a challenge based on non-disclosure will generally require a showing of actual prejudice to the accused's ability to make full answer and defence. In this connection, I am in full agreement with the Court of Appeal that there is no autonomous “right” to disclosure in the Charter (at pp. 148-49 C.C.C.):

...the right of an accused to full disclosure by the Crown is an adjunct of the right to make full answer and defence. It is not itself a constitutionally protected right. What this means is that while the Crown has an obligation to disclose, and the accused has a right to all that which the Crown is obligated to disclose, a simple breach of the accused's right to such disclosure does not, in and of itself, constitute a violation of the Charter such as to entitle a remedy under s. 24(1). This flows from the fact that the non-disclosure of information which ought to have been disclosed because it was relevant, in the sense there was a reasonable possibility it could assist the accused in making full answer and defence, will not amount to a violation of the accused's s. 7 right not to be deprived of liberty except in accordance with the principles of fundamental justice unless the accused establishes that the non-disclosure has probably prejudiced or had an adverse effect on his or her ability to make full answer and defence.

It is the distinction between the “reasonable possibility” of impairment of the right to make full answer and defence and the “probable” impairment of that right which marks the difference between a mere breach of the right to relevant disclosure on the one hand and a constitutionally material non-disclosure on the other. [Italics in original; underlining added.]

Where the accused seeks to establish that the non-disclosure by the Crown violates s. 7 of the Charter, he or she must establish that the impugned non-disclosure has, on the balance of probabilities, prejudiced or had an adverse effect on his or her ability to make full answer and defence. It goes without saying that such a determination requires reasonable inquiry into the materiality of the non-disclosed information. Where the information is found to be immaterial to the accused's ability to make full answer and defence, there cannot possibly be a violation of the Charter in this respect. I would note, moreover, that inferences or conclusions about the propriety of the Crown's conduct or intention are not necessarily relevant to whether or not the accused's right to a fair trial is infringed. The focus must be primarily on the effect of the impugned actions on the fairness of the accused's trial. Once a violation is made out, a just and appropriate remedy must be found. [Emphasis in original.]

[409] The applicants do not seek any remedy for the lack of disclosure short of a stay of proceedings, such as an order for disclosure, an adjournment of the trial, recalling of witnesses, the exclusion of evidence, or a mistrial: R. v. Spackman, 2012 ONCA 905, at para. 112. They seek the remedy of last resort. As a result, they must meet the high threshold for such a remedy: O’Connor, at paras. 75-82.

[410] The Agreed Statement of Facts shows that the disclosure process was not perfect. It was not always timely by any stretch. However, I conclude that the applicants have not shown that any impugned non-disclosure has, on the balance of probabilities, prejudiced or had an adverse effect on their ability to make full answer and defence.

[411] To set the context, the disclosure was voluminous. It included at least 69 sets of officer notes, search warrant packages, surveillance packages, some of the disclosure from the companion prosecution against Mr. Myers by the Peel Regional Police, certificates of analysis, firearms reports, data extracted from 16 cellular phones seized, judicial authorization packages, occurrence reports from other police institutions, advertisements for sexual services, hotel records, banking records, photographs, video statements, photo line-up packages, text messages between the complainant and police officers, and emails between officers regarding the press release. In addition, there were numerous defence requests for specific items of disclosure and Crown responses. Given this rather complicated case and somewhat tortuous disclosure history, it is noteworthy that at the end of the day, the applicants do not allege there remains any Crown disclosure that they have not received. Moreover, save for one or two disputes such as redactions made by the Crown in the notes of the Officer in Charge (“OIC”), it was unnecessary to resort to a formal disclosure application to have the disclosure issues sorted out.

[412] The Crown does not dispute that several items were not disclosed to the applicants in a timely manner. However, I find that these items were disclosed in a timely enough fashion for the applicants to make full answer and defence at trial.

[413] This is my analysis on some of the more specific disputes about disclosure:

• The March 21, 2019 photo line-up of Mr. Nolan and the corresponding interviews of S.D. were not disclosed until June 19, 2020. The applicants had previously sought this material through emails with the Crown. It appears that D.C. Zeppieri was under the mistaken impression the statements had been disclosed. This disclosure was not at all timely. In addition, the notes of D.C. Hassard, an officer who conducted the line-up and was involved in other aspects of the investigation, were disclosed on various dates in April to August of 2020. This evidence should have been part of the first package of Crown disclosure. However, no prejudice or adverse effect on the applicants’ ability to make full answer and defence arose from the lack of timely disclosure. None has been suggested by Mr. Nolan or the other applicants. I cannot see any. The disclosure, though late, was made in sufficient time to properly prepare for trial.

• The data from the electronic devices, including the cell phone extractions, was disclosed from May to July of 2021. Given that the data was extracted in June of 2020, this delay cannot be justified. However, there was sufficient time for the defence to review the materials and prepare for trial. The Cellebrite program permitted the defence to review and filter the data in addition to relying upon the Crown reports, which narrowed down the data they intended to use at trial. No adjournment of the trial was ever requested. I do not see how the late disclosure caused any prejudice.

• On November 23, 2021, email communications between D.C. Vadivelu and the Crown were provided to counsel. These emails included the officer’s notes and the photographs he had taken of Ms. Myers-Ellis’ cell phone. Counsel requested the emails on September 2, 2021, and the Crown did not respond until during the course of the conflict-of-interest motion heard in November, 2021. On November 26, 2021, D.C. Vadivelu’s will say statement was provided to counsel. In my view, the late disclosure did not affect Ms. Myers-Ellis’ ability to fully argue any of the issues in the Charter application. Moreover, in light of her ultimate success on the application, the late disclosure created no prejudice. This disclosure is not material to the other applicants.

• Partial or additional officer notes were disclosed close to the start of proceedings or while they were ongoing. Notes of D.C. Powell were initially disclosed in the first disclosure package, but other notes were disclosed later during her examination. Partial notes of D.C. Zeppieri’s role in the investigation from March 5, 2019 to May 17, 2019 were disclosed on September 9, 2021. Notes of D.C. Alexandrovich, the current OIC, were disclosed once the proceedings were underway. D.C. Hassard’s surveillance notes were disclosed during the pre-trial Charter motions. I do not see how any of these delays had a material impact on trial fairness or the ability to make full answer and defence. These materials are not particularly significant to any Charter or trial issues. The defence only required a bit of time to deal with the new disclosure. Regarding the new information about Shames obtained by the OIC and disclosed to the defence, the police and the Crown only learned of his more particularized identity at a later point in the investigation, at which point it was disclosed immediately. The defence cannot compel or direct the police to pursue such matters earlier. In any event, the defence presented no argument that their full answer and defence was impacted by this. Given that Shames was alleged to have been a co-perpetrator and not an alternative suspect in the sexual assault, it is hard to see how his particularized identity could impact the Charter application. Mr. Myers, the only accused charged in relation to the group sexual assault, has not argued that he required further time to investigate Shames as a potential defence witness.

• The same considerations apply to the late disclosure of D.C. Zeppieri’s email to the property management of the Penetanguishene address in an attempt to identify and locate Shames. This email was sent in March of 2019 but only disclosed on January 28, 2022. D.C. Zeppieri’s police notes, disclosed in September of 2019, do indicate that he sent this email. In my opinion, regardless of whether the email should have been part of the initial disclosure package, failing to disclose it earlier had no effect on the applicants’ right to make full answer and defence or the fairness of this Charter application or the trial. No useful information was obtained from the property management in the end.

• With respect to the Royal Bank of Canada (“RBC”) banking records of Ms. Myers-Ellis, including a letter from RBC advising Ms. Myers-Ellis that they were closing her account, the Crown did not have what was disclosed by RBC in response to a third-party records application. Thus, its disclosure obligations were not triggered by the defence request. D.C. Zeppieri requested that the bank provide a form of financial institution assistance called a “GRID search”, and the police did have the results of that request. However, this is not something that would normally fall within the concept of the fruits of an investigation, and in any event, once the defence requested it, it was provided. The information contained in it is of no moment.

[414] The applicants submit that they suffered prejudice since they did not have full disclosure before they had to make an election as to the form of trial. I do not see it that way. All of the applicants wanted a preliminary inquiry. No one wanted a trial in the Ontario Court of Justice. Based on the impugned disclosure that had not yet been received, I cannot see any prejudice. None of the applicants have made any submissions as to why their respective elections would have been any different.

[415] The applicants are entitled to a fair trial and not a perfect one. Despite the untimeliness of certain disclosure, I find that they will receive that fair trial. There is no merit to this allegation.

D. OTHER MERITLESS CHARTER ISSUES RAISED

[416] There is no merit to the argument that the Crown, by continuing the prosecution against Ms. Myers-Ellis and Mr. Myers, violated s. 7 of the Charter. This argument was not pressed in submissions. Judicial review of prosecutorial discretion is limited. Given the body of evidence against each accused, there were sound reasons for the Crown to continue its prosecution. Indeed, the accused were committed to stand trial after a lengthy preliminary inquiry. The committals were not challenged on certiorari.

[417] There is no merit to Ms. Myers-Ellis’ argument that inaccuracies in the police press release amounted to a violation of the Charter. The inaccuracies did not interfere with her right to make full answer and defence or to a fair trial.

[418] Both the arrest and the subsequent detention of Ms. Myers-Ellis by the HTET were lawful. Any delay in getting her transported from her residence to 23 Division did not make that lawful detention arbitrary.

[419] With respect to Mr. Nolan, submissions were made about the lack of air-conditioning in the police cruiser when he was being transported. While I sympathize with the conditions he had to endure, this did not amount to a Charter violation.

SECTION V: REMEDY

A. MS. MYERS-ELLIS

[420] With respect to Ms. Myers-Ellis, I have found the following violations of the Charter:

• s. 8, regarding the search warrants for her phone and her bank records, the manner of search of her dwelling, certain aspects of the search conducted on her cell phone and the disabling of her password;

• s. 9, regarding the failure to abide by s. 503(1)(a) of the Criminal Code; and

• s. 10(b), regarding the Barrie Tactical Support Unit’s failure to advise her of her right to counsel, the unreasonable delay in allowing her to access counsel, and the police failing to refrain from eliciting evidence in the meantime by asking for her cell phone password.

1. THE LAW REGARDING A STAY OF PROCEEDINGS

[421] A stay of proceedings falls into two categories: (a) where state conduct compromises the fairness of an accused's trial (the “main” category); and (b) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual” category): R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309.

[422] While counsel have argued that the fairness of the applicants’ trial has been compromised, the main thrust of their position is that this case involves the residual category. As my reasons show, no Charter violation or state conduct has adversely affected the fairness of the applicants’ trial. Consequently, I will deal only with the residual category. A three-step test is applied (Babos, at para. 32):

1. There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”;

2. There must be no alternative remedy capable of redressing the prejudice; and

3. Where there is still uncertainty over whether a stay is warranted after steps 1 and 2, the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits”.

[423] Only in the clearest of cases will a stay of proceedings be ordered.

2. THE LAW APPLIED TO MS. MYERS-ELLIS

[424] Regarding Ms. Myers-Ellis, numerous Charter rights were infringed. Of course, it is not a matter of just tallying up the number of Charter violations. The nature and gravity of the violations must be considered. The remedy of a stay is not meant to punish the police. It is not retrospective in nature. It is meant to prevent further harm to the justice system.

[425] In assessing the violations and the prejudice that will befall Ms. Myers-Ellis in her ongoing prosecution and trial, three factors are important.

[426] First is her general treatment by the police. This includes the fact that it did not merely amount to one or two isolated violations of her Charter rights. Overall, the police investigation of Ms. Myers-Ellis reveals a somewhat cavalier and indifferent attitude towards her constitutional rights. Ms. Myers-Ellis was treated as if she was an integral part of a human trafficking scheme, when she was not. The police made mistakes. The police used and disseminated inaccurate information about her. This led to an overzealous entry and search of her home, a denial of her right to instruct counsel without delay, unnecessary detention, and improper searches of her phone. In short, she was not treated fairly as an individual. The pattern of Charter violations reflects that. These cumulative violations cause significant prejudice to the integrity of the justice system.

[427] Second, some of the Charter violations have a systemic character. The failure to advise Ms. Myers-Ellis of her right to counsel by the Barrie Tactical Support Unit seems to be based on a general practice rather than an individual assessment of each detention. The process by which data extractions are verified by the Tech Crimes Unit, which in this case ignored the limiting conditions in the warrant, seems to be widely conducted, sanctioned, and even taught to other investigators. The failure to abide by s. 503(1)(a) of the Code in bringing Ms. Myers-Ellis before a justice within 24 hours seems beset by systemic barriers that delay the speedy processing of detainees.

[428] I wish to say more on the last point. While the unreasonable delay was not fully explained, I inferred from the evidence that centralizing the creation of charging documents and other administrative requirements of processing before sending a person to court is a systemic issue that, if not addressed in the future, will continue to contribute to violations of s. 503(1)(a). In this way, I distinguish my decision in R. v. Darling, 2020 ONSC 6397 that the Crown relies upon. There I declined to issue a stay of proceedings on a similar violation of s. 503(1)(a) since the evidence did not reveal a violation of s. 9 that had systemic dimensions. I further observe that breaches of the Charter do not have to be widespread to be characterized as systemic.[^14] As here, if certain standard practices, policies, or systems significantly contribute to the violation, the violation is graver since there is a systemic quality to it. Moreover, unlike in Darling, I am being asked to fashion a remedy for multiple Charter violations rather than just one.

[429] The failure to abide by s. 503(1)(a) had real consequences for Ms. Myers-Ellis. She should have been released on bail at the earliest opportunity. Instead of attending on the day of her arrest in a bail court, where the matter would have been addressed by specially assigned Crowns with knowledge of the case, Ms. Myers-Ellis arrived the next day in WASH court, where another Crown provided inaccurate information that at least partially led to Ms. Myers-Ellis spending her long weekend in jail. This loss of liberty is something she will never get back.

[430] Third, Ms. Myers-Ellis is now facing a multi-week trial where the focus of the prosecution is about serious sexual assault and human trafficking offences. But Ms. Myers-Ellis is not facing any of those charges. She is only alleged to have attempted to obstruct justice by advising S.D. to not say anything to the police without having a lawyer present and that S.D. got her money from a “sugar daddy”, not escorting, in order to protect her son. Ms. Myers-Ellis is no longer being treated as an integral part of a human trafficking ring, yet she continues to face the prospect of a lengthy trial. She is being compelled to bear the effects upon her security of the person as if the police’s initially mistaken view of her involvement was accurate. The prejudice already suffered to the integrity of the justice system will be further aggravated by such a trial.

[431] Thus, I find that there is prejudice to the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome.

[432] Regarding the second step of the test, I find that no other remedy aside from a stay of proceedings can address this prejudice. First, Ms. Myers-Ellis was discharged on the charge of receiving a material benefit at the preliminary inquiry. Robertson J. found that there was no evidence that Ms. Myers-Ellis was exploiting S.D. or living parasitically off her income from the sex trade. Receiving rent, permitting S.D. to use her son’s car, and getting money for the car’s maintenance fell within the exceptions in s. 286.2(4) of the Code. Thus, excluding irrelevant evidence such as banking records, which relate to a charge that has already been dismissed, is not an appropriate remedy.

[433] Second, regarding the attempt to obstruct justice charge, the exclusion of evidence is not a meaningful remedy either. Ms. Myers-Ellis essentially exercised her right to remain silent in her police interview. The few messages retrieved from her phone that the Crown seeks to tender are of little if any probative value in proving the charge of obstruct justice.

[434] Third, a reduction in sentence is a possible remedy but, in my view, not a meaningful one on the facts of this case. The Crown’s proof of the charge of obstruct justice rests solely on the unconfirmed and uncorroborated evidence of S.D. Though I appreciate that this is not Ms. Myers-Ellis’ trial, I know enough about S.D.’s evidence to anticipate there will be serious credibility and reliability concerns raised about her testimony. There may be no remedy of a sentence reduction available after a trial, since Ms. Myers-Ellis may well be acquitted. I recognize that I held in Darling that the certainty of the remedy does not govern. However, certain factors in this case distinguish it from Darling on this prong of the test. Here there is significant prejudice in Ms. Myers-Ellis being forced to endure a lengthy trial when almost all of the evidence has nothing to do with her. A potential reduction in sentence will do nothing to ameliorate this prejudice. Furthermore, a reduction in sentence does not adequately address the prejudice caused by the systemic factors present in this case that was not present in Darling.

[435] After considering steps one and two, there remains in my mind some uncertainty (though not much) about whether a stay is appropriate. Therefore, I must balance the interests at the third stage of the analysis. There is no question that the need to denounce the police misconduct and preserve the integrity of the judicial system is strong. When looking at the countervailing interest of a trial on the merits, it is important to look at the offence that Ms. Myers-Ellis is charged with.

[436] In Babos, the Court considered the severity of the offence to be an appropriate factor to consider when deciding whether to grant a stay at step three. The alleged offences in Babos involved 22 charges concerning firearms, illegal drugs, and organized crime. The seriousness of such offences “loom(ed) large” and this was ultimately one of the key factors the Babos majority relied on in denying the accused a stay of proceedings. The Court describes the balancing process in the context of residual category cases at para. 41:

However, when the residual category is invoked, the balancing stage takes on added importance. Where prejudice to the integrity of the justice system is alleged, the court is asked to decide which of two options better protects the integrity of the system: staying the proceedings, or having a trial despite the impugned conduct. This inquiry necessarily demands balancing. The court must consider such things as the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges he or she faces, and the interests of society in having the charges disposed of on the merits. … [I]n residual category cases, balance must always be considered. [Emphasis added]

[437] In two Ontario cases applying Babos where obstruction of justice was the only or the primary offence charged, it was determined that society had a strong interest in the case being adjudicated on the merits: R. v. Schertzer, 2015 ONCA 259, 20 C.R. (7th) 187; R. v. Petrolo, 2019 ONCJ 855, 451 C.R.R. (2d) 52. However, in both cases, the accused was a public officer. As such, there was a very substantial public interest in adjudicating the cases, despite the relatively less serious nature of the offences more generally. In another case, where the accused shared a background more similar to Ms. Myers-Ellis’, a charge of obstruct police was stayed: R. v. Young, 2014 ONCJ 171.

[438] In this case, the facts of the obstruct justice charge do not place the offence at the serious end of the spectrum. Ms. Myers-Ellis’ personal circumstances do not strongly support the need to have a trial on the merits. Even assuming S.D.’s allegations are true, what we have is a single mother with no criminal record and a long-term job at Bell, who owns a home and who raised two grown sons. One son is a lawyer. The other is Mr. Myers, who is alleged to be a human trafficker. Mr. Myers lived with S.D. in the basement of Ms. Myers-Ellis’ home. When her son was alleged to have been involved in a shooting with S.D. present and driving the car, in the immediate aftermath, Ms. Myers-Ellis got him a lawyer and turned him into the police. She offered to get S.D. a lawyer as well and advised her that she should also turn herself in, as she was driving the getaway car. S.D. refused. S.D. alleges that Ms. Myers-Ellis first found out that she was an escort after the shooting. Then, she says that Ms. Myers-Ellis told her to lie to the police about where she got her money, which S.D. claims was to protect Mr. Myers. Ms. Myers-Ellis did not tell S.D. what to say about the shooting itself.

[439] In my opinion, the interest in ensuring a final decision on its merits is not strong. I conclude that this is a clear case where a stay of proceedings is warranted. The one count of attempt to obstruct justice is therefore stayed.

3. COSTS AND RETURN OF SEIZED ITEMS

[440] Ms. Myers-Ellis seeks costs against the Crown.

[441] Costs against the Crown are not readily awarded due to strong policy reasons. While rarely justified, they may be granted in two cases: (1) where the conduct of the prosecution is said to merit sanction in the form of costs; or (2) if there are other exceptional circumstances such that fairness requires that the individual litigant not carry the financial burden flowing from their involvement in the litigation: R. v. Garcia (2005), 2005 CanLII 4831 (ON CA), 194 C.C.C. (3d) 361 (Ont. C.A.), at paras. 12-13.

[442] Ms. Myers-Ellis has shown neither to be the case here.

[443] First, the Crown did nothing that constituted a marked departure from the reasonable standards expected of the prosecution: R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, at para. 87. While I cannot approve of the delay in the disclosure of some items, it does not approach a flagrant or marked departure from the norm. There was no intentional course of conduct to delay disclosure. Some of the delay came from mistakes made, erroneous views of what was required, or even negligence on the part of the police. However, there was no bad faith. The fairness of the trial was not impacted. The Crown exercised reasonable diligence in making disclosure in a complicated case.

[444] Regarding the second category, Ms. Myers-Ellis has not put forward any exceptional circumstance to justify costs.

[445] Ms. Myers-Ellis also seeks the return of items seized by the police. The return of such items is best left to be considered under the relevant provisions of the Criminal Code.

B. MR. MUSARA

4. A STAY OF PROCEEDINGS

[446] With respect to Mr. Musara’s application, I have found the following Charter violations:

• s. 8, regarding the search warrants for the dwelling and phone;

• s. 9, regarding the failure to abide by s. 503(1)(a) of the Criminal Code;

• s. 10(a), regarding the failure to advise him of the drug charge;

• s. 10(b), regarding the police not promptly giving him his right to counsel.

[447] Looking at these violations, individually and cumulatively, as well as any other alleged impropriety the applicant points to, Mr. Musara has not met the test for a stay.

[448] First, Mr. Musara has not established that there is prejudice to the integrity of the justice system that will be manifested, perpetuated, or aggravated through the conduct of the trial, or by its outcome.

[449] Of course, I recognize this finding must be consistent with what I have found in Ms. Myers-Ellis’ case. In my view, the police conduct towards Ms. Myers-Ellis was more aggravating. There were more Charter violations committed against her. The breaches of Mr. Musara’s right to counsel were not as multi-faceted and serious. The misinformation the police utilized and disseminated in Ms. Myers-Ellis’ case was more serious.

[450] Some of the same systemic issues that were in play in Ms. Myers-Ellis’ case, specifically regarding the failure to provide the right to counsel without delay and the breach of s. 503(1)(a), apply to Mr. Musara as well. Unlike with Ms. Myers-Ellis, I have no evidence of any systemic issues regarding the search of Mr. Musara’s electronic devices.

[451] Of course, all the conduct Mr. Musara points to must be considered. His request for a stay of proceedings is not dependent on a comparison with Ms. Myers-Ellis or anyone else.

[452] There is no doubt that the Charter violations Mr. Musara experienced were serious. There is a need for the court to disassociate itself from the police conduct. However, I am not satisfied that continuing with his trial will manifest, perpetuate or aggravate the prejudice at stake. With respect to the search warrants, while the grounds fell short of reasonable and probable grounds, the police properly sought judicial authorization before intruding on Mr. Musara’s privacy. The failures to provide him with his right to counsel and to properly inform him of the drug charge appear to have been by oversight, and the HTET did provide Mr. Musara with an opportunity to speak with a lawyer before the interview. The violation of s. 503(1)(a) is the most serious. However, standing alone, it is not so egregious to require a stay, given that the HTET had made serious efforts in advance to provide timely bail hearings for the detainees.

[453] It remains Mr. Musara’s burden to establish that a stay is warranted on a balance of probabilities. He has not satisfied the first prong of the test. I will make some additional comments regarding the second and third parts of the test in any event.

[454] Mr. Musara has also not met the second part of the test. In my opinion, the exclusion of evidence is more than adequate remedy to remedy the Charter violations he experienced. Unlike Ms. Myers-Ellis, Mr. Musara gave a lengthy video statement to the HTET that the Crown seeks to introduce at his trial. In addition, the Crown will be relying on messages between Mr. Musara and S.D. as part of the prosecution case. I have reviewed those messages. Unlike the messages on Ms. Myers-Ellis’ phone, Mr. Musara’s communications have significant probative value from the Crown perspective. They could be interpreted as Mr. Musara harboring S.D., coordinating and controlling S.D.’s movements in the sex trade, and receiving monies from her escorting.

[455] Finally, with respect to the third part of the test, I do not harbour any uncertainty about whether a stay of proceedings should be ordered. Nevertheless, the balancing of the interests tips significantly in favour of a trial on the merits. The offences Mr. Musara faces, including offences related to sexual assault and human trafficking, are numerous and serious. His charges are of a different order from the single count of attempt to obstruct justice Ms. Myers-Ellis faced. Any prejudice inflicted to the integrity of the justice system by proceeding to trial on these charges pales in comparison to the public interest in ensuring that the trial takes place.

[456] Taking into account the Charter violations against Mr. Musara and any other misconduct by the police, this is not one of the clearest of cases requiring a stay of proceedings.

5. EXCLUSION OF EVIDENCE UNDER S. 24(2)

[457] As an alternative remedy, Mr. Musara seeks the exclusion of evidence under s. 24(2) of the Charter. More specifically, he seeks to exclude the evidence of his statement to the police and the messages and data found on his cell phone. Mr. Musara also takes the position that any other evidence obtained from the execution of the search warrants should be excluded, but the Crown does not seek to tender any.

[458] To start, the impugned evidence was “obtained in a manner that infringed or denied” Mr. Musara’s rights within the meaning of s. 24(2). There were causal, temporal, and contextual connections between the evidence and each of the rights breached. There was a causal connection between the s. 8 violation and the evidence found on the phone. Regarding the video statement, there was a contextual and temporal connection, if not some causal connection, with the violations of ss. 8, 9, 10(a), and 10(b): R. v. Keshavarz, 2022 ONCA 312, at para. 52.

[459] The test for whether the admission of evidence would bring the administration of justice into disrepute in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71, considers the following:

a) The seriousness of the Charter-infringing state conduct;

b) The impact of the breach on the Charter-protected interests of the accused; and

c) Society’s interest in the adjudication of the case on its merits.

(a) The Seriousness of the Charter-Infringing State Conduct

[460] First, save for the s. 10(a) breach, the Charter-infringing state conduct was serious. The conduct involved breaches of fundamental Charter rights and criminal laws that are well-known and well-established.

[461] The ITOs for both search warrants contained significant misstatements and I have determined the warrants could not have issued. The affiants knew or ought to have known about some of the errors. Their efforts in drafting the grounds to intrude on Mr. Musara’s reasonable expectation of privacy fell seriously short of the standards expected of affiants.

[462] The breach of the right to counsel was very negligent. There was no reason why Mr. Musara could not have been advised of his right to counsel earlier than he was. It was an oversight by the police officers at the residence. While I do not find that they acted in bad faith, it was an obvious and serious omission. No doubt the officers were busy dealing with the various occupants and conducting the search of the premises, but that is no excuse for forgetting about such a fundamental constitutional right. The fact that they ultimately got around to providing the right to counsel limits the extent of the violation, but this subsequent Charter-compliant conduct does not mitigate the initial breach: R. v. Reilly, 2021 SCC 38.

[463] The breach of s. 9 by not bringing Mr. Musara before a justice as required by s. 503(1)(a) is made more serious given the systemic factors that contributed to it. I recognize that the HTET made efforts to get the accused to bail court, which somewhat mitigates the gravity of the violation. However, the same cannot be said of the other officers who failed in their obligations. Section 503(1)(a) is an important provision and all officers are expected to follow it assiduously.

[464] On the other hand, the breach of s. 10(a) was minor. It was careless for the police to omit the drug charges, but they nevertheless advised Mr. Musara of charges that were more serious and that helped him appreciate the jeopardy he faced.

[465] Second, the fact that there were multiple violations must be accounted for. They were not committed in good faith, as that term is understood in a s. 24(2) analysis. Moreover, this pattern of police abuse, while not committed by the same individual police officers, nonetheless aggravates the violations.

[466] The first step of the Grant test strongly points towards exclusion of the evidence. The police misconduct is such that the court must disassociate itself from it.

(b) The Impact of the Breach on the Charter-Protected Interests of the Accused

[467] Some breaches had a serious impact on Mr. Musara’s constitutionally protected interests. 113 Livingstone Avenue West was a private dwelling and the associated reasonable expectation of privacy is very high. Equally, the search of Mr. Musara’s cell phone was highly intrusive given the amount of personal data on such a device. This factor strongly favours exclusion.

[468] With respect to the violation of s. 503(1)(a) and s. 9, Mr. Musara’s liberty interests were significantly affected. There is a tenuous causal connection between this violation and the evidence seized at 113 Livingstone Avenue West. However, there is a stronger temporal and contextual connection between the violation and his video statement. The police interviewed Mr. Musara while in police custody after his arrest and over a significant amount of time. While I cannot say that taking the police statement “caused” the ultimate breach of s. 503(1)(a), given that Mr. Musara still could have been brought before a justice within the requirements of that provision, it is nevertheless closely tied to the ultimate deprivation of liberty he suffered.

[469] The s. 10(b) violation had a more limited impact on Mr. Musara’s interests, since Mr. Musara ultimately received his right to counsel and exercised it before he gave his statement. He was not asked any incriminating questions by the police before he received legal advice. With respect to the evidence seized from the house, the impact is diminished given the more distant temporal and contextual connection.

[470] With respect to the violation of s. 10(a), there is a stronger impact on his Charter-protected rights. Had Mr. Musara been advised that he was being arrested for possession of cocaine for the purpose of trafficking, I have little doubt he would not have been so forthcoming about his drug dealing in his interview with the police.

[471] On balance, the second step of the Grant test also strongly favours exclusion of the evidence seized at the residence and of his statement to the police.

(c) Society’s Interest in the Adjudication of the Case on its Merits

[472] Mr. Musara is charged with serious offences. The evidence seized from his phone is reliable. However, Mr. Musara’s police statement does not share that same quality. Further, I note that in that statement, Mr. Musara essentially denies committing the offences against S.D. Finally, exclusion of this evidence does not gut the Crown’s case. Although there are confirmatory aspects to the impugned evidence, the prosecution is primarily built around S.D.’s evidence.

[473] The third step of the Grant test favours admission, but only moderately so.

(d) The Final Balancing

[474] The first two lines of inquiry strongly support exclusion of the evidence. The last only moderately supports inclusion. In the final balancing, Mr. Musara has proven that admission of the video statement and cell phone evidence would bring the administration of justice into disrepute. The evidence is excluded.

C. MR. NOLAN

[475] With respect to Mr. Nolan, I have found violations of ss. 10(a) and 10(b) of the Charter. Mr. Nolan seeks no remedy for these violations other than a stay of proceedings.

[476] As indicated, I find the violations were not significant. Taking into account the Charter violations and any other misconduct by the police, the request for a stay of proceedings simply does not meet the high threshold for the remedy. As a result, Mr. Nolan’s application is dismissed.

D. MR. MYERS

[477] With respect to Mr. Myers, I have found no violations of the Charter. Moreover, I reject that the state misconduct against the other applicants amounted to an abuse of process that should result in a stay of proceedings for him. He has no connection to any Charter violations that I have found. Looking at the totality of the circumstances, Mr. Myers has not been able to satisfy any aspect of the test for a stay of proceedings. As a result, Mr. Myers’ application is dismissed.

JUSTICE S. NAKATSURU

Released: May 30, 2022

COURT FILE NO.: CR-21-50000086-0000

DATE: 20220530

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

TAPIWA MUSARA, STEPHAN MYERS, JACQUELINE MYERS-ELLIS, DEVONE NOLAN

REASONS FOR JUDGMENT

NAKATSURU J.

Released: May 30, 2022

[^1]: Ms. Myers-Ellis was originally charged with obstruct police. She is now facing the charge of obstruct justice at her trial.

[^2]: The search of the motor vehicles was not challenged.

[^3]: The listed offences include: trafficking in persons by recruiting; financial/material benefit from trafficking in persons; procuring/exercising control; material benefit from sexual services; advertising another person’s sexual services; sexual assault; uttering threats; unauthorized possession of a firearm; obstruct police; and being an accessory after the fact.

[^4]: Henceforth in these reasons I will refer to the individual that S.D. identified as “Shames”.

[^5]: D.C. Zeppieri swore a second ITO for the bank records on January 6, 2020, which was essentially the same as the first, since the first production order obtained was under the wrong provision of the Criminal Code. It is this ITO that is being challenged.

[^6]: Unlike D.C. Powell, D.C. Zeppieri provided paragraph numbers in his ITO that can be referred to.

[^7]: Once a warrant to search is obtained, the police have the benefit of ss. 487(2.1) and (2.2) of the Criminal Code to reproduce and seize any data they find: Vu, at para. 48.

[^8]: R. v. Morris, 2021 ONCA 680, at para. 1.

[^9]: Le, at paras. 76-77.

[^10]: Dudhi, at paras. 55, 66.

[^11]: Brown, at para. 8.

[^12]: Brown, at paras. 44-45; Peart, at para. 131; Sitladeen at para. 48-49. See also Sitladeen, at para. 54: given the role unconscious racism can play, it is not necessary to find that a police officer is lying about the reasons for the detention.

[^13]: Dudhi, at paras. 60-64; Sitladeen, at paras. 52-54.

[^14]: See more recently R. v. Noor, 2022 ONCJ 140, where Band J. thoroughly canvassed the authorities and concluded that the problem in getting individuals before a justice of the peace within 24 hours continues.