Court File and Parties

Oshawa Court File No.: CR-22-15789 Date: 2023-03-20 Ontario Superior Court of Justice

Between: His Majesty The King – and – Amal Greensword Defendant/Applicant

Counsel: G. Raven, for the Crown N. Debellefeuille, for the Defendant/Applicant

Heard: February 27, March 1 and 2, 2023

Reasons for Decision

De Sa J.:

Overview

[1] The Applicant, Amal Greensword (hereinafter referred to as “Greensword” or “the Applicant”), stands charged with the following offences:

1. Trafficking cocaine
2. Trafficking fentanyl
3. Possession of proceeds of crime over $5,000.00

[2] The Applicant has brought an application seeking exclusion of texts seized from the phone of Michael Logan, which were obtained by the police without a warrant. The search was conducted by police shortly after Mr. Logan’s arrest to confirm what was believed to be a drug transaction between the Applicant and Mr. Logan. The police conducted the search incident to arrest.

[3] The Applicant takes the position that the search did not comply with the requirements set out in R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621. The Applicant also takes the position that the arrest of the Applicant was conducted with excessive force (guns drawn), and the decision to conduct a strip search of the Applicant was unreasonable in the circumstances. Considering the various alleged breaches (ss. 7, 8 and 9 of the Charter), the Applicant takes the position that the texts should be excluded pursuant to s. 24(2).

[4] In my view, the search was properly incident to a lawful arrest. Moreover, the manner of arrest and strip search were reasonable having regard to all the circumstances. Accordingly, the application is dismissed.

[5] The reasons for my decision are outlined below.

Summary of Facts

Investigation into Greensword

[6] The investigation into the Applicant arose because of information received from a confidential human source about the Applicant’s involvement in the trafficking of illicit drugs.

[7] Police conducted surveillance on the Applicant. The Applicant was observed to be engaged in various short meetings with individuals in what police believed to be drug transactions.

[8] On January 29, 2020, police obtained a search warrant for the Applicant’s home located at 2502 Rosedrop Path, Oshawa. In the course of the search, police seized drug packaging, digital scales and over $16,000 in currency. Police also seized 4 phones that belonged to the Applicant.

[9] Given the absence of any drug seizures, police released the Applicant unconditionally without laying charges. However, the investigation into the Applicant’s drug trafficking activities continued.

[10] Police submitted the drug packaging that was seized, and it came back testing positive for residue of cocaine and fentanyl.

[11] Police also obtained warrants to extract the contents of the Applicant’s phones. The resulting analysis located videos of the Applicant documenting himself in possession of significant quantities of cocaine and fentanyl, including a video where he described how to convert powder cocaine into crack cocaine. The videos were taken in January 2020.

[12] Detective Campbell (“Campbell”), the officer in charge of the Guns and Gangs Unit, was familiar with the Applicant, and recognized the Applicant’s voice on the videos discussing cooking crack cocaine and fentanyl. Campbell also recognized the location in the videos where the drugs were being prepared to be the Applicant’s home at 2502 Rosedrop Path. Campbell had been inside the address during the execution of the search warrant on January 29, 2020.

[13] Campbell also reviewed various texts from the phone extraction. While the surveillance (meet ups) could not be linked to the texts, the text messages on the phone clearly demonstrated that the Applicant was involved in drug trafficking. The conversations were often in coded language and clearly related to the sale of drugs.

[14] As the investigation continued, police received further information that the Applicant was still involved in drug trafficking.

[15] On June 3, 2020, at 2:20 p.m. a briefing was conducted. Police made the decision to arrest the Applicant. Before arresting the Applicant, however, the team would continue surveillance on the Applicant to further corroborate the more recent information that the Applicant was still trafficking.

[16] Investigators were informed the requisite grounds to arrest the Applicant for trafficking were present. However, either Campbell (the “OIC”) or Detective Constable Lee (the “Road Boss”), would be the ones to make the call as to when the arrest was to take place. Investigators were informed that the Applicant had a history of violence and was entrenched in the drug subculture.

Arrest of Michael Logan and Search of Phone

[17] At approximately 5:30 p.m., the Applicant was observed leaving 2502 Rosedrop Path with his partner and child. The Applicant was followed to 63 King St. W. in Bowmanville, where he met Michael Logan (hereinafter, “Mr. Logan”) in the rear parking lot of the address.

[18] At 6:01 p.m., the Applicant exited his vehicle and briefly entered Mr. Logan’s van. The Applicant and Mr. Logan were observed looking toward the centre of the vehicle console for a short period, and then the Applicant exited.

[19] After the Applicant exited the vehicle, Mr. Logan was observed doing something on his lap as he sat in the driver’s seat of his van and then placing a bag on the passenger seat of the vehicle. The entire meeting between the Applicant and Mr. Logan took about one minute.

[20] After observing the meeting, half the team was directed by Campbell to continue following the Applicant while he and two other officers stayed with Mr. Logan.

[21] Campbell believed that the meeting between Mr. Logan and the Applicant was consistent with a drug transaction. On the basis of the previous investigation into the Applicant and the observations of what was believed to be a drug transaction, Campbell made the decision to arrest Mr. Logan.

[22] Officers approached Mr. Logan’s vehicle with their guns drawn. As Campbell attended the vehicle, he directed Mr. Logan to get out of the vehicle. Mr. Logan was placed under arrest at 6:07 p.m. Shortly after his arrest, police searched the vehicle incident to arrest. The bag observed on the passenger seat was searched and a quantity of fentanyl and crack cocaine was located inside. A digital scale, a cellphone and a bat was also located in the vehicle.

[23] Between 6:07 p.m. and 6:13 p.m., Campbell searched Mr. Logan’s cellphone incident to arrest. Officer Campbell searched the most recent text messages with a view to confirming the nature of the transaction with the Applicant. Campbell testified that his only intention was to look for the texts related to the drug transaction at issue with the Applicant.

[24] Upon a review of the most recent texts, Campbell located text messages between “P” (a nickname believed to be associated with the Applicant) and Mr. Logan. The texts reflected Mr. Logan’s desire to purchase cocaine and fentanyl, as well as an agreement between the two on meeting at a time consistent to the Applicant’s attendance with Mr. Logan. At approximately 6:30 p.m., Officer Parker photographed the texts reviewed to keep a record of the search. The phone was not seized from Mr. Logan.

[25] The agreed upon price for the drugs was $325 and the quantities found in Mr. Logan’s possession were consistent with the transaction being completed.

[26] Campbell advised the team following the Applicant that he was also arrestable for the transaction with Mr. Logan.

The Arrest of Greensword

[27] Subsequent to meeting Mr. Logan, the Applicant travelled to an address at 499 Madison Avenue in Oshawa at approximately 6:18 p.m. He pulled into the driveway for a short duration of time before leaving. Given the short duration of the meeting, this was also believed to be a possible drug transaction.

[28] Police followed the Applicant to Mississauga, where he exited at Hurontario Street. At 7:08 p.m., Detective Constable Lee called for the arrest of the Applicant. As the Applicant was stopped at a light, he was boxed in by unmarked vehicles. Officers exited their vehicles wearing marked police vests. Officer Bradley approached the driver’s side of the vehicle with his firearm drawn in the “Sul” position (barrel facing downward). At the same time, Lee approached the passenger side of the vehicle with his gun drawn and pointed towards the female passenger in the vehicle directing her to put her hands up.

[29] The Applicant was directed to exit the vehicle by Officer Bradley and was arrested. He was given his rights to counsel and cautioned.

[30] When the situation was under control, Lee holstered his firearm.

[31] The Applicant was searched incident to arrest and found in possession of a large quantity of currency. He had bundles of cash in his front pockets and his right rear pocket. He also had a wallet with additional cash in his rear left pocket. Police searched the vehicle and found another quantity of cash on the driver’s seat of the vehicle. No drugs were located on his person or in the vehicle.

The “Strip Search” at the Station

[32] At 8:47 p.m., the transport arrived and took the Applicant to the station. After attending the station, the Applicant was strip searched prior to being placed in the cell.

[33] DC Broadfoot testified that given the recent transactions, and the fact that the police were unable to locate drugs in the vehicle or on the Applicant’s person, he had concerns that Mr. Greensword may have concealed contraband on his person. In his experience, he knew that drug dealers would conceal drugs in their body cavities.

[34] DC Broadfoot conducted the search in a private location, having the Applicant remove a single piece of clothing at a time, and then putting it back on once searched.

[35] No further items were located.

[36] After the search was complete, the Applicant was given access to counsel.

Analysis

Standing to Challenge Search of Text Messages on Mr. Logan’s Phone

[37] The Applicant seeks exclusion of the text messages that police located and photographed on the phone of the alleged customer, Mr. Logan.

[38] The privacy interest asserted relates to the conversations between Mr. Logan and the Applicant that were seized from Mr. Logan’s phone: R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608.

[39] While the Applicant has not admitted being a party to the texts, the Crown theory maintains that the texts at issue were between Mr. Logan and the Applicant: R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696.

[40] On the basis of the Crown theory, I am satisfied that the Applicant has the requisite standing to challenge the police search of Mr. Logan’s phone. R. v. Marakah, supra; R. v. Jones, supra.

Search of Phone Incident to Arrest

[41] In R. v. Fearon, supra, the Supreme Court of Canada affirmed the right of the police to search cell phones incident to arrest. However, given the privacy concerns raised by the virtually infinite storage capacity of cell phones, the Court set stricter parameters on the police authority to search cell phones incident to arrest.

[42] The Supreme Court held that police officers will not be justified in searching a cell phone or similar device incidental to every arrest. Rather, such a search will comply with s. 8 where:

(1) The arrest was lawful;

(2) The search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable. The valid law enforcement purposes in this context are:

(a) Protecting the police, the accused, or the public;

(b) Preserving evidence; or

(c) Discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest;

(3) The nature and the extent of the search are tailored to the purpose of the search; and

(4) The police take detailed notes of what they have examined on the device and how it was searched.

[43] In this case, the Applicant argues that there were no grounds to arrest Mr. Logan. Only after the search was conducted did they have grounds to arrest him. Accordingly, the search was not properly incident to a lawful arrest.

[44] Even if the arrest of Mr. Logan was lawful, the Applicant argues that the search exceeded the permissible scope outlined in Fearon.

[45] First, the search in this case was directed at the discovery of evidence as against the Applicant, not against Mr. Logan. The Applicant argues that the authority to search incident to arrest is confined to searching for evidence as against the arrestee. In other words, the Applicant argues that the police were limited to searching Mr. Logan for evidence of Mr. Logan’s possession, not for evidence of trafficking as against the Applicant.

[46] Second, the Applicant also argues that the investigation would not have been stymied or hampered in the absence of the search. By this time, the police had the grounds to arrest the Applicant. The police could have easily seized the phone and conducted the search with a warrant at a later time without affecting the investigation. In other words, there was no urgency requiring the police to search the phone at that time.

[47] I disagree that there were insufficient grounds to arrest Mr. Logan. From the investigation into the Applicant, the police were well aware that the Applicant was involved in the trafficking of drugs and fentanyl. Observations from the January investigation indicated that the Applicant would engage in brief meetings with customers to do his exchanges. This was evident from the surveillance and review of the text messages on his phone.

[48] The meeting with Mr. Logan was consistent with these types of transactions. It was also consistent with officers’ experience regarding the manner in which such transactions took place.

[49] Police had received information that the Applicant was still involved in trafficking drugs. The Applicant only met with Mr. Logan for under a minute in a location far from his home. While the hand-to-hand transaction was not observable, given the Applicant’s history, the informant information, and the circumstances of the meeting, it was reasonable to infer that an exchange of drugs for money had taken place.

[50] In reviewing the sufficiency of the grounds to arrest, this Court must consider the entire constellation of factors that was presented to the officer, rather than parse out each individual observation and strip it of the larger context. [1] Considering the entire constellation of factors presented to the officer, I am satisfied that there were reasonable grounds to believe that the Applicant was involved in drug trafficking, and that Mr. Logan was a customer who just purchased drugs.

[51] With respect to the scope of the search, I am also satisfied that the search of the phone was properly incidental to arrest.

[52] While the police were looking to verify the trafficking charge by searching Mr. Logan’s phone, this is still sufficiently connected to the objects and purpose of the arrest. This is not the case where police are searching for something unrelated to the investigation at hand or the reason for arrest.

[53] I agree with the Applicant that the Supreme Court made clear that the search power must be used with great circumspection. The fact that some examination of a cell phone is truly incidental to arrest does not give the police a licence to rummage around in the device at will. The search must be tailored to the purpose of the arrest. As the Court explained in R. v. Fearon, supra, at paras. 76 and 80:

..[T]he scope of the search must be tailored to the purpose for which it may lawfully be conducted. Both the nature and the extent of the search performed on the cell phone must be truly incidental to the particular arrest for the particular offence. In practice, this will mean that, generally, even when a cell phone search is permitted because it is truly incidental to the arrest, only recently sent or drafted emails, texts, photos and the call log may be examined as in most cases only those sorts of items will have the necessary link to the purposes for which prompt examination of the device is permitted. But these are not rules, and other searches may in some circumstances be justified. The test is whether the nature and extent of the search are tailored to the purpose for which the search may lawfully be conducted. To paraphrase Caslake, the police must be able to explain, within the permitted purposes, what they searched and why: see para. 25.

…The discovery of evidence, in the context of a cell phone search incident to arrest, will only be a valid law enforcement objective when the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest. Only in those types of situations does the law enforcement objective in relation to the discovery of evidence clearly outweigh the potentially significant intrusion on privacy.

[Emphasis added.]

[54] In this case, the police were looking for confirmation of the drug transaction which appeared to have taken place. It was a reasonable exercise of the police authority to check the recent texts with a view to confirming this aspect of the investigation.

[55] The nature of the search was properly limited to only the most recent texts that pertained to the particular investigation at hand. The fact that the police may have checked the contact list to confirm the Applicant’s contact information was also within the parameters of a lawful search.

[56] In my view, the investigation would have also been unnecessarily hampered had the police not conducted the search. The police would be proceeding simply on the observations in the absence of compelling information readily available on Mr. Logan’s phone.

[57] While the search of cellphones is properly limited, there is no requirement for “necessity” to be established. Indeed, such a requirement would frustrate the purposes underlying the search power. In canvassing the issue of exigency as a basis for the search power, the Supreme Court explained in Fearon, supra, paras. 70 and 71:

This approach, in my view, gives almost no weight to the law enforcement objectives served by the ability to promptly search a cell phone incidental to a lawful arrest. If, as is my view, importing a standard of reasonable and probable grounds would significantly undermine these objectives, then imposing a requirement of urgency and restricting the purposes for which the search may be conducted would effectively gut them. This standard, in my respectful view, fails to strike the balance required by s. 8 between the privacy interests of the individual and the state’s interest in protecting the public.

Finally, to prohibit cell phone searches in all but “exigent circumstances” is simply not consistent with the structure of our law relating to search incident to arrest. As P. Brown observes in relation to American case law, which has relied on exigent circumstances to justify a cell phone search incident to arrest

[i]f an actual danger of destruction of evidence were required to trigger the [search incident to arrest] exception to the warrant requirement, then [search incident to arrest] would be a mere subset of the exigency exception... The reasoning in [some] cases is therefore flawed because it silently reads the [search incident to arrest] exception out of existence by rendering it a restatement of the exigency exception.

[Emphasis added.]

[58] Finally, while the officers’ notes are somewhat brief as they pertain to the search, they make clear that it was only the texts related to the drug transaction that were searched. The photographs taken by DC Parker were also used to further document the nature and extent of what was reviewed. This was sufficient to document the nature of the search that was conducted.

[59] In my view, the police search of the phone, in the circumstances, complied with s. 8 of the Charter.

The Arrest

[60] The Applicant takes the position that the police used excessive force in the context of the arrest, and thereby violated the Applicant’s s. 7 Charter rights. The Applicant argues that police had time to seek a warrant for his arrest and execute it safely at his home. Instead, they chose to approach the Applicant’s vehicle with firearms drawn, indifferent to the wellbeing and trauma caused to the children.

[61] In R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, the Supreme Court addressed the factors to be considered when an officer is performing duties pursuant to s. 25 of the Criminal Code:

Section 25(1) essentially provides that a police officer is justified in using force to effect a lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances. That is not the end of the matter. Section 25(3) also prohibits a police officer from using a greater degree of force, i.e. that which is intended or likely to cause death or grievous bodily harm, unless he or she believes that it is necessary to protect him- or herself, or another person under his or her protection, from death or grievous bodily harm. The officer's belief must be objectively reasonable. This means that the use of force under s. 25(3) is to be judged on a subjective-objective basis (Chartier v. Greaves, [2001] O.J. No. 634 (Ont. S.C.J.), at para. 59).

Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. [Emphasis added.] [2]

[62] The police officer’s statutory authority to use force must be measured against the nature of the law enforcement activity being taken, and the particular circumstances surrounding the activity.

[63] In this case, the police had information that the Applicant was violent and was known to be involved in the trafficking of hard drugs. The Applicant was engaged in what was believed to be a drug transaction involving fentanyl and cocaine. There was a great deal of uncertainty as to whether the Applicant had a weapon on his person. The Applicant was also behind the wheel of an operational vehicle.

[64] In such circumstances, police having their firearms drawn with a view to gaining compliance of the subject was not an unreasonable use of force. As officers explained, this approach reduced the potential risk of harm to the officers, and also those present at the arrest.

[65] While no firearm was located, the evaluation of whether concerns about safety or destruction reasonably arose cannot be evaluated based on what was learned following the arrest. The review must focus on what police knew at the time of the arrest, and the review must allow for “a certain amount of latitude” and recognition that police cannot precisely determine the amount of force a situation will require.

[66] I reject the suggestion that the police were required to wait until the Applicant returned to his house. It is hardly obvious that an arrest at the house would present a safer situation. Further, there was evidence that the Applicant was involved in ongoing trafficking. The police had an interest in arresting the Applicant with the drugs on his person. The team was in place and Detective Constable Lee testified that he believed the arrest could be conducted safely at that time.

[67] An arrest is a dynamic event with a host of unknown variables at play. For this reason, the courts have provided police a certain amount of latitude in how they execute arrests which are often done in difficult and dangerous circumstances.

[68] As the Court explained in R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at paras. 23-25 in the context of a dynamic no-knock entry where similar considerations are in play:

First, the decision by the police must be judged by what was or should reasonably have been known to them at the time, not in light of how things turned out to be. Just as the Crown cannot rely on after-the-fact justifications for the search, the decision about how to conduct it cannot be attacked on the basis of circumstances that were not reasonably known to the police at the time: R. v. DeWolfe, 2007 NSCA 79, 256 N.S.R. (2d) 221, at para. 46. Whether there existed reasonable grounds for concern about safety or destruction of evidence must not be viewed “through the ‘lens of hindsight’”: Crampton v. Walton, 2005 ABCA 81, 40 Alta. L.R. (4th) 28, at para. 45.

Second, the police must be allowed a certain amount of latitude in the manner in which they decide to enter premises. They cannot be expected to measure in advance with nuanced precision the amount of force the situation will require: R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3, at para. 73; Crampton, at para. 45. It is often said of security measures that, if something happens, the measures were inadequate but that if nothing happens, they were excessive. These sorts of after-the-fact assessments are unfair and inappropriate when applied to situations like this where the officers must exercise discretion and judgment in difficult and fluid circumstances. The role of the reviewing court in assessing the manner in which a search has been conducted is to appropriately balance the rights of suspects with the requirements of safe and effective law enforcement, not to become a Monday morning quarterback. [Emphasis added.]

See also R. v. Golub, 34 O.R. (3d) 743 (ON CA), at paras. 44 and 45.

[69] In the circumstances, I am satisfied the force used in the context of the arrest was not unreasonable or excessive. In my view, there was no breach of the Applicant’s s. 7 rights.

The Lawfulness of the Strip Search

[70] Finally, the Applicant takes the position that the strip search was not justified. The Applicant argues that the Court must distance itself from the casual and callous approach towards the Applicant in conducting a strip search.

[71] The seminal case dealing with the constitutionality of a detailed search or strip searches is R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679. In addressing whether such searches would be considered reasonable, the Supreme Court listed the following factors for consideration:

1. Can the strip search be conducted at the police station and, if not, why not?
2. Will the strip search be conducted in a manner that ensures the health and safety of all involved?
3. Will the strip search be authorized by a police officer acting in a supervisory capacity?
4. Has it been ensured that the police officer(s) carrying out the strip search are of the same gender as the individual being searched?
5. Will the number of police officers involved in the search be no more than is reasonably necessary in the circumstances?
6. What is the minimum of force necessary to conduct the strip search?
7. Will the strip search be carried out in a private area such that no one other than the individuals engaged in the search can observe the search?
8. Will the strip search be conducted as quickly as possible and in a way that ensures that the person is not completely undressed at any one time?
9. Will the strip search involve only a visual inspection of the arrestee's genital and anal areas without any physical contact?
10. If the visual inspection reveals the presence of a weapon or evidence in a body cavity (not including the mouth), will the detainee be given the option of removing the object himself or of having the object removed by a trained medical professional?
11. Will a proper record be kept of the reasons for and the manner in which the strip search was conducted?

[72] Unlike conventional searches incident to arrests, strip searches require reasonable and probable grounds. [3] In discussing strip searches, the Court in Golden, supra, explained at paras. 98 and 99:

The fact that the police have reasonable and probable grounds to carry out an arrest does not confer upon them the automatic authority to carry out a strip search, even where the strip search meets the definition of being “incident to lawful arrest” as discussed above. Rather, additional grounds pertaining to the purpose of the strip search are required. In Cloutier, supra, this Court concluded that a common law search incident to arrest does not require additional grounds beyond the reasonable and probable grounds necessary to justify the lawfulness of the arrest itself: Cloutier, supra, at pp. 185-86. However, this conclusion was reached in the context of a “frisk” search, which involved a minimal invasion of the detainee’s privacy and personal integrity. In contrast, a strip search is a much more intrusive search and, accordingly, a higher degree of justification is required in order to support the higher degree of interference with individual freedom and dignity. In order to meet the constitutional standard of reasonableness that will justify a strip search, the police must establish that they have reasonable and probable grounds for concluding that a strip search is necessary in the particular circumstances of the arrest.

In light of the serious infringement of privacy and personal dignity that is an inevitable consequence of a strip search, such searches are only constitutionally valid at common law where they are conducted as an incident to a lawful arrest for the purpose of discovering weapons in the detainee’s possession or evidence related to the reason for the arrest. In addition, the police must establish reasonable and probable grounds justifying the strip search in addition to reasonable and probable grounds justifying the arrest. Where these preconditions to conducting a strip search incident to arrest are met, it is also necessary that the strip search be conducted in a manner that does not infringe s. 8 of the Charter. [Emphasis added.]

[73] In this case, the “strip search” was conducted at the station. The Applicant does not take issue with the manner in which the police conducted the search. Rather, the Applicant disputes that the police had reasonable grounds to believe that a strip search was necessary in the particular circumstances of the arrest, or that contraband would be located on the Applicant.

[74] The Applicant argues that there were no drugs located in the vehicle or on the Applicant’s person. Accordingly, there was no reason justifying the strip search of the Applicant in the circumstances.

[75] I disagree. The Applicant was attending more than one location to conduct what appeared to be drug transactions. Upon arrest, he was found with substantial amounts of money but no drugs. Police did not locate any drugs in his pockets or in the vehicle. In my view, it was reasonable to believe that drugs were secreted on the Applicant’s person.

[76] In my view, the detailed search was authorized by law and exercised in a reasonable fashion and the Applicant’s rights under s. 8 of the Charter were not infringed.

Should The Evidence Be Excluded Under the s. 24(2) Analysis?

[77] The Supreme Court elucidated the formulation of the s. 24(2) analysis in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 and R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494. In Grant, at para. 71, the Court summarized the framework for determining whether the administration of justice would be placed into disrepute if the evidence was to be excluded:

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[78] In addressing the seriousness of the conduct, the Court will consider factors such as the wilfulness or seriousness of the state conduct that led to the breach. The primary goal of this factor is for the courts to dissociate themselves from severe or wilful breaches that would harm the public’s confidence in the justice system.

[79] In this case, if there was a breach, it would be minor in nature. With respect to the cellphone search, the police were looking to further the specific investigation by conducting the search of Mr. Logan’s phone. They took steps to limit the scope of the search by only looking at the most recent texts and made efforts to document the search.

[80] Similarly, if the gunpoint arrest and/or strip search was unauthorized, it was not a flagrant breach. In conducting the arrest in the manner that they did, the police were not intending to disrespect the Applicant’s rights but looking to avoid any harm coming to themselves or other pedestrians. The strip search, similarly, was not done for a malicious purpose.

[81] The impact of any violation on the Applicant’s rights was also not serious in my view. The search was conducted on Mr. Logan’s phone. If the search of the phone was a violation, the primary privacy interests affected would be Mr. Logan’s, not the Applicant’s.

[82] With respect to the strip search, given that the Applicant was going to be held in custody, the likelihood of a strip search was high. Moreover, the search was conducted in compliance with the requirements set out in Golden, supra.

[83] In the context of the arrest, there were no injuries sustained, and the police were respectful to all involved.

[84] Finally, society’s interest in an adjudication on the merits would be high. The charges themselves are serious. The evidence is very significant to the Crown’s case. Excluding the texts would seriously undermine the case against the Applicant.

[85] Having regard to all the circumstances and balancing the factors above, the evidence should be admitted. Admitting the evidence would not bring the administration of justice into disrepute.

Disposition

[86] Having regard to the above, the application is dismissed.

Justice C.F. de Sa

Released: March 20, 2023

[1] R. v. Canary, 2018 ONCA 304, at para. 30. [2] R. v. Nasogaluak, supra, at paras. 34-35. [3] These types of searches are distinct from the searches that may routinely be conducted prior to lodging an inmate into an institution.