SUPERIOR COURT OF JUSTICE
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
Kahli Johnson-Phillips and Shanice Wynter
Accused
Jayme Lesperance and Bryan Pillon, for the Crown
Michael A. Moon and Nicole Bellefeuille, Counsel for Mr. Johnson-Phillips and Anthony G. Bryant Counsel for Ms. Wynter
HEARD: January 3 to 6, 2023; January 9 to 13, 2023; January 16 to 20, 2023; January 30 and 31, 2023; and February 1 and 2, 2023
PUBLICATION BAN
Pursuant to s. 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before ethe jury retires to consider its verdict, or until further order of the court.
RULING ON PRE-TRIAL APPLICATIONS
CALLANDAR ROAD s. 8 APPLICATION and NISSAN ALTIMA s. 8 APPLICATIONS
HEBNER J.
Overview
1On August 27, 2018, at approximately 2:41 a.m., 20-year-old Jason Pantlitz-Solomon was shot 14 times outside of a Pizza Pizza restaurant located at 294 Ouellette Avenue in Windsor, Ontario. He died of his injuries. Mr. Pantlitz-Solomon’s 19-year-old girlfriend, Camille Lufitha-Molima, was shot once in the left thigh. She was treated at hospital and released. Video and witness accounts of the shooting reveal that there were two shooters. Police recovered two different types of cartridge casings from the crime scene.
2Camille Lufitha-Molima told police that prior to the shooting, she and the deceased attended a “lingerie party” at an Airbnb above the Pizza Pizza restaurant. The deceased was a University of Windsor student who made money from selling marijuana, including homemade “weed cookies”. Prior to the shooting, the deceased received a Snapchat message from a purchaser saying they would be there in two minutes. The message brought the two victims outside immediately before they were shot.
3Mr. Kahli Johnson-Phillips and Ms. Shanice Wynter are jointly charged with committing first degree murder against the person of Jason Pantlitz-Solomon contrary to s. 235 of the Criminal Code of Canada, R.S.C. 1985, c. C-46. Mr. Johnson-Phillips is also charged with attempted murder of Ms. Lufitha-Molima contrary to s. 239(1) of the Criminal Code. Ms. Wynter is also charged with aggravated assault against Ms. Lufitha-Molima by wounding her with a firearm, contrary to s. 268 of the Criminal Code.
4The trial is scheduled to begin on September 11, 2023.
5The accused have jointly brought three applications seeking to exclude from the trial the following evidence:
- The Nissan Altima motion:
a. Evidence obtained from a black iPhone that was seized from outside of a white Nissan Altima on August 27, 2018, by Peel Regional Police Service (PRPS); and
b. Evidence obtained from a silver iPhone with a black case that was seized from a white Nissan Altima on August 29, 2018, by the PRPS;
- The Callandar Road motion:
c. Evidence obtained from a black iPhone seized from a residence at 13 Callandar Road in Brampton, Ontario on February 7, 2019, by PRPS.
6All of this evidence was subsequently provided to Windsor Police Service (WPS) by way of production orders.
7The accused assert that their rights to be secure against unreasonable search or seizure under s. 8 of the Canadian Charter of Rights and Freedoms have been violated and they seek relief under s. 24(2) excluding evidence obtained from the three cell phones from the trial of this matter.
Theory of the Crown’s Case
8The Crown asserts that the accused, Mr. Johnson-Phillips, a second unknown person, and Keima Davis-Baynes drove a white Nissan Altima from the Mississauga area to Windsor the night of August 26, 2018, where they shot the victims, left Windsor and returned to the Mississauga area. The Crown alleges that Mr. Johnson-Phillips and Ms. Wynter planned and executed the murder of Mr. Pantlitz-Solomon together.
9The Crown asserts that the two cell phones seized from the Altima were used and controlled exclusively by Mr. Johnson-Phillips. The Crown’s theory is that the two cell phones seized from the Altima contain communications between the two accused. The Crown concedes that following the Supreme Court of Canada's decision in R. v. Marakah, 2017 SCC 59, both accused have standing to challenge the admission of the evidence under s. 8 of the Charter.
10The Crown asserts that the phone found in the master bedroom at Callandar Road belongs to Mr. Johnson-Phillips. Only Mr. Johnson-Phillips has standing to challenge the admission of evidence from this phone.
The Evidence
11The following witnesses gave evidence on the motions, most of whom were officers with PRPS at the time of these events:
Police Constable (PC) Marziliano, an officer with the Criminal Investigations Branch (CIB). PC Marziliano was involved in the investigation of the Jerome Edwards shooting.
PC Carroll, with the CIB. PC Carroll was the officer in charge (OIC) of the Edwards investigation.
PC Paiement, with the CIB. PC Paiement was involved with the Nissan Altima takedown and was tasked to obtain a warrant to search the vehicle and the cell phones found inside.
PC McLellan, with the CIB. PC McLellan was involved with the Edwards investigation.
PC Koumbari, with the Forensic Identification Unit. PC Koumbari attended at the scene of the Altima takedown to collect evidence.
PC Ewan, a uniform patrol officer who attended the scene of the Altima takedown.
PC Farrow, with the Tactical Unit. PC Farrow was one of the tactical officers who took down the Altima.
PC Grant, a uniform patrol officer who assisted with the arrest of Keima Davis-Baynes.
PC Poffley, with the CIB. PC Poffley was the OIC of the Altima takedown.
Sgt. Canas, with the Tactical Unit. Sgt. Canas was the OIC of the Callandar Road search.
PC Hill, the exhibit officer at the Callandar Road search.
PC Kalonomos, a detective with York Regional Police. PC Kalonomos was investigating home invasion robberies that occurred in Vaughn, Ontario. He attended on the Callandar Road search.
Officer Vanderwal, a plainclothes officer with the PRPS Central Robbery Bureau. Officer Vanderwal assisted with the search of 13 Callandar Road.
PC Farrow, a member of the PRPS Tactical Unit that attended at the Callandar Road search.
PC Finnie, with the PRPS Central Robbery Unit. PC Finnie was the affiant on the Callandar Road warrant.
Officer Lumi with the PRPS. Officer Lumi assisted with the Callandar Road search.
PC Chaulk with the PRPS. PC Chaulk is with the Digital Forensic Service, which was called the Tech Crimes Unit at the time of the events. He, along with PC Hebden, dealt with the extraction of data from the cell phones.
PC Hebden with the PRPS. PC Hebden was with the Tech Crimes Unit at the time of the events.
12In addition to the viva voce evidence, counsel filed an agreed statement of facts.
The Issues
13The issues raised by the accused, and my conclusions on each of those issues for the reasons set out herein, are set out in the following paragraphs.
The Nissan Altima Motion
14The accused are seeking to exclude from the trial the data extracted from two of the three cell phones found in the Nissan Altima, specifically the black iPhone found outside the Altima and one of the silver iPhones found inside the Altima. The accused allege that their rights to be secure against unreasonable search or seizure under s. 8 of the Charter have been infringed and that the evidence must be excluded under s. 24(2). The issues are:
The first search warrant contained a Branton error (see R. v. Branton (2001), 2001 CanLII 8535 (ON CA), 53 O.R. (3d) 737) and had a temporal impossibility. I find that the s. 8 rights of the accused have not been infringed by these errors.
The accused assert that a continued search of the black iPhone took place after the warrant had expired or was no longer valid. I find that there was no expiry of the warrant and that the s. 8 rights of the accused have not been infringed by the continued search of the phone.
The PRPS delayed making a return to justice for the seizure of the cell phones under s. 489.1 of the Criminal Code. Consequently, PRPS did not have a detention order for approximately two and a half years. I find that the s. 8 rights of the accused were infringed as a result of both the delay in the return to justice and the lack of a detention order.
The PRPS did not make a return to justice after the extraction of data from the black iPhone and the silver iPhone. The accused assert that their Charter rights were infringed as a result. In the same vein, the accused assert that the continued detention of the data on the police server without a detention order constitutes a breach of their Charter rights. I find that a return to justice after the extraction of the data from the cell phones and a detention order for the data was not required.
After conducting an analysis under s. 24(2) of the Charter, I find that the admission of the evidence from the cell phones would not bring the administration of justice into disrepute, and I dismiss the application.
The Callandar Road Motion
15The accused, Mr. Johnson-Phillips, seeks to exclude from the trial a picture and a video extracted from the black iPhone seized from the residence at 13 Callandar Road. Mr. Johnson-Phillips alleges that his right to be secure against unreasonable search or seizure under s. 8 of the Charter has been infringed and that the evidence must be excluded under s. 24(2). The issues are:
The Crown has conceded that the warrant obtained to search the residence was facially invalid. The result is a search of the residence without a valid warrant and a breach of the s. 8 rights of Mr. Johnson-Phillips.
The accused asserts that police ought to have attended before a Justice of the Peace in person to obtain the warrant. Instead, police proceeded by way of a tele-warrant. I reject this assertion.
The accused asserts that the removal of ten cell phones, in the absence of the items being listed in the warrant and without articulating reasonable and probable grounds for doing so, constitutes a violation of his s. 8 rights. I agree.
The police filed a timely report to justice that was deficient, and Mr. Johnson-Phillips asserts that his s. 8 rights were infringed as a result. I find that the s. 8 rights of Mr. Johnson-Phillips have not been infringed as a result.
On an analysis under s. 24(2) of the Charter, I find that the picture and video must be excluded.
Nissan Altima Facts
16At approximately 7:20 p.m. on August 25, 2018, Jerome Edwards, a resident of Acorn Place in Mississauga, Ontario, was the victim of a drive-by shooting. A white four-door Nissan Altima drove past him when a passenger in the vehicle opened the window and discharged multiple rounds from a firearm at him. The Altima sped away. Mr. Edwards suffered several non-life-threatening gunshot wounds and was taken to hospital.
17Civilian witnesses observed the shooting and were able to provide descriptions to police. One of the witnesses wrote down the license plate: CEJH 659.
18PRPS determined the registered owner of the vehicle to be Andrea Daley. Police drove to her residence on the other side of Toronto and looked for the vehicle in the parking lot. The vehicle was not there. Police put out an alert for the vehicle with instructions to contact CIB if it was located.
19On August 26, 2018, at approximately 9:40 p.m., PC Paiement spotted the Altima in the area of 5955 Creditview Road, Mississauga, a townhouse complex. The Altima was parked between two rows of townhouses with its headlights on and its engine running. PC Paiement saw someone attend at the trunk of the vehicle and then enter the car. The vehicle left at 9:48 p.m. traveling north on Creditview and then east on Britannia. PC Paiement tried to follow the vehicle but lost it in traffic.
20On August 27, 2018, PRPS set up surveillance at 5955 Creditview Road. PC Paiement was parked in the parking lot. PC Poffley spotted the vehicle at 9:20 p.m., which had reversed into a driveway with the driver side door open. At approximately 10:33 p.m., PC Poffley saw the vehicle move to a parking spot in the visitor parking, where it parked facing away from the road.
21The Tactical Unit was called, and a briefing took place at an offsite rendezvous, a high school just south of the Creditview complex. Using two unmarked F-350 trucks, the Tactical Unit conducted a high risk stop. One truck pinned the Altima by making contact with it on the rear passenger side. The other truck hit the Altima on the driver's side, right behind the pillar between the front and rear doors.
22A Black male was seen standing outside the driver’s door of the Altima as the tactical team approached. The Black male fled on foot just before the trucks hit the Altima.
23A female was seated in the front passenger seat. She identified herself as Kayla Bains. This was false. Her real name was Keima Davis-Baynes.
24Once the Altima was controlled, PC Carroll attended at the vehicle. He saw a handgun, (a Sig Sauer) in the driver’s side front footwell and seized it for public and officer safety reasons. He also saw a black iPhone on the grass just outside the driver’s door as well as a driver’s license in the name of Kayla Davis.
25There was conflicting evidence as to which officer put the black iPhone into an evidence bag. In any event, it was collected from the grass, placed into an evidence bag and transported to PRPS where it was put into a property room.
26The Nissan Altima was seized and towed to the PRPS Forensic Identification Services automotive bay. In addition to the firearm and cell phone the following, (non-exhaustive list) were seized from inside of the Altima pursuant to the search warrant:
Two silver iPhones;
Gun shot residue samples;
“Prada” sunglasses from the rear passenger seat pouch, later determined to have a DNA swab sample to Mr. Johnson-Phillips;
Identification cards by the name of “Keima Ahliya Davis-Baynes” from the front passenger floor;
A Hennessey Liquor container with a friction ridge impression (fingerprint) match to Mr. Johnson-Phillips;
A friction ridge impression on the rear passenger interior door handle was identified to the right thumb of Mr. Johnson-Phillips.
27Ms. Davis-Baynes was charged with five Criminal Code firearms offences, namely:
possession of a firearm without a license (s. 91(1));
being the occupant of a motor vehicle with a firearm present (s. 94));
possession of a loaded restricted firearm without a license (s. 95(a));
possession of a weapon dangerous to the public peace (s. 88(1)); and
careless storage of a firearm (s. 86(1)).
Later the same day, Ms. Davis-Baynes was charged with the offences of obstructing police and breach of recognizance.
28All firearm charges were withdrawn against Ms. Davis-Baynes on December 27, 2018, when she entered a guilty plea to obstruction of justice. At that point, the proceedings on Ms. Davis-Baynes’ information were complete.
The Nissan Warrants
1. The Black iPhone
29A warrant was sought by PC Paiement on August 28, 2018, to forensically examine the black iPhone found in the grass beside the Altima. The warrant was granted by Justice of the Peace Chang Alloy on August 29, 2018. Appendix A to the warrant authorizes the forensic examination and extraction of data within the phone. Appendix B to the warrant described the five firearms offences in relation to “Kayla Bains”.
30The Chang Alloy warrant had two flaws. Firstly, it was “stale dated” in that it authorized the search be conducted on August 28, 2018, when the warrant was signed on August 29. Secondly, it contained a Branton error in that the warrant form faceplate was outdated, having been replaced after the Court of Appeal found that template to be invalid on its face: R. v. Branton (2001), 2001 CanLII 8535 (ON CA), 53 O.R. (3d) 737 (Ont. C.A.).
31The officers in the property room refused to surrender the phone for examination as a result of the defects in the warrant.
2. The Nissan Warrant
32A warrant was also sought by PC Paiement on August 28, 2018, to search the Nissan Altima bearing license plate number CEJH659. Exhibit A listed items to be searched for, including electronic devices. The information to obtain (ITO) on the Nissan warrant also sought judicial authorization to forensically examine and extract information for any electronic devices found in the vehicle.
33The Nissan warrant was granted by Justice of the Peace Chang Alloy on August 29, 2018. The Nissan warrant had the same two flaws as the black iPhone warrant, namely the stale dated flaw and the Branton error. Nonetheless, the Nissan was searched on the strength of the warrant. Two silver iPhones were seized during this search.
3. The Joint Cell Phone Warrant
34On September 4, 2018, PC Paiement drafted three separate ITO face plates, with individualized appendices for items to be seized:
Appendix A - black iPhone in bag #1226233;
Appendix A1 - silver iPhone in bag #1281711; and
Appendix A2 - silver iPhone in bag #128712.
35Appendix A to each of the warrants set out the parameters of the search as follows:
The electronic device will be analyzed to locate evidence on or available to the items. These items will be analyzed for data including, but not limited to call information, call history, text information, contact details, recent calls, emails, recently accessed webpages, use history, and images and videos found on the device(s) or on remote storage location(s) that would assist in identifying parties associated to the victim and/or the suspect(s). It is anticipated that all electronic devices will be searched by the Peel Regional Police Technological Crime Unit.
36Appendix B to each of the warrants described the five firearms offences in relation to “Kayla Bains”. Appendix C to each of the warrants set out the “Grounds for Belief” in the form of an affidavit signed by PC Paiement. Both sides concede that the “Grounds for Belief” is the ITO affidavit filed in support of the application to obtain the warrant.
37The warrants were applied for and rejected as Justice of the Peace Cassano voiced concerns about the continuity described for the silver iPhones within the ITO affidavit. Constable Paiement revised his ITO affidavit and resubmitted the warrant application to the Justice of the Peace.
38The warrants were ultimately issued on September 5, 2018, by Justice of the Peace Morin. Each warrant indicated that it was sought in relation to the commission of an offence and referenced Appendix B. However, Appendix C (the ITO) described the investigation into the Jerome Edwards shooting in detail. Moreover, Appendix C contained over 23 paragraphs under the heading “Reasonable Grounds to Believe the Offence has been Committed” where PC Paiement explained why he believed that the occupants of the Nissan Altima were involved in the Jerome Edwards shooting.
39The joint cell phone warrant on its face required the search and seizure of the cell phones listed to be conducted between the hours of 7:00 a.m. and 9:00 p.m. on September 6, 2018. There is a note that the warrant was executed by PRPS Constable Wells on September 6, 2018. All three cell phones were connected to an “advanced unlocking tool” on September 6, 2018, pursuant to the Morin Warrant. The extraction was not complete on any of the phones that day as it typically takes time for the investigative tool to discover the password. Unsuccessful attempts over the subsequent days or months occurred before the phones were ultimately unlocked allowing the locked data to be accessed.
40The Crown's theory is that Mr. Johnson-Phillips was exclusively operating and controlling the black iPhone found in the grass outside the Nissan Altima and one of the silver iPhones located inside the vehicle (“silver iPhone #1”). The other silver iPhone in the Altima belonged to Ms. Davis-Baynes (“silver iPhone #2”) and was not the subject of the applications. The silver iPhone #1 was successfully unlocked on or about September 24, 2018. The black iPhone was finally unlocked in July of 2019.
4. The Search of the iPhones
41The PRPS Tech Crimes Unit extracts data from electronic devices that are subject to a warrant to search. The Unit extracts the data, analyses it and provides data to investigators.
42PC Hebden dealt with the black iPhone. The phone was connected to an advanced unlocking tool for the purpose of obtaining a passcode so as to gain access to the device.
43In February of 2019, the Unit achieved a partial extraction. The device at that point was still locked, but police were able to access unencrypted data. PC Hebden extracted data that fit within the terms and conditions listed in the warrant. The extraction was limited until the passcode was obtained through the unlocking tool. The phone was reconnected to the unlocking tool on February 4, 2019.
44The passcode to the phone was recovered on July 14, 2019. PC Hebden could then gain entrance to the device. PC Hebden extracted the data by obtaining a mirror image of everything on the phone. The entire data extraction was stored on the digital forensics network storage. He said that an entire data extraction needs to be completed before a further analysis can be conducted and the items identified in the warrant can be provided to the investigators.
45The data extracted and stored is unreadable until it is loaded into a program called Cellebrite Physical Analyzer. This application takes the data in its raw or digital form and presents it to an officer in readable format, similar to what a user of the device would see.
46Following this process, a report is created, consisting of the specific data identified in the search warrant, and provided to the investigating officers. Only those things listed in the warrant were provided to the officers.
47The original extraction, in its unreadable form, continues to be stored on the digital forensics network storage and is only available to the Tech Crimes Unit. PRPS officers outside of the unit cannot directly access the stored data. The data may be accessed again if further analysis is necessary or if another search warrant is obtained.
48PC Chaulk dealt with the silver iPhone #1. This phone was unlocked on September 24, 2018, and the data was available. PC Chaulk followed the same process as PC Hebden, described above.
49The data was accessed by WPS through a number of production orders. The defence do not challenge the production orders and have no complaint with the actions of the WPS. Rather the defence challenges the actions of the PRPS in extracting and retaining the data.
5. The Return to Justice
50When police have seized property under a warrant, the Criminal Code, s. 489.1(1) and s. 490 imposes certain requirements on police and the justice system:
489.1 (1) Subject to this or any other Act of Parliament, if a peace officer has seized anything under a warrant issued under this Act, under section 487.11 or 489, or otherwise in the execution of duties under this or any other Act of Parliament, the peace officer shall, as soon as is practicable,
(a) return the thing seized, on being issued a receipt for it, to the person lawfully entitled to its possession and report to a justice having jurisdiction in respect of the matter and, in the case of a warrant, jurisdiction in the province in which the warrant was issued, if the peace officer is satisfied that
(i) there is no dispute as to who is lawfully entitled to possession of the thing seized, and
(ii) the continued detention of the thing seized is not required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding; or
(b) bring the thing seized before a justice referred to in paragraph (a), or report to the justice that the thing has been seized and is being detained, to be dealt with in accordance with subsection 490(1), if the peace officer is not satisfied as described in subparagraphs (a)(i) and (ii).
490 (1) Subject to this or any other Act of Parliament, where, pursuant to paragraph 489.1(1)(b) or subsection 489.1(2), anything that has been seized is brought before a justice or a report in respect of anything seized is made to a justice, the justice shall,
(a) where the lawful owner or person who is lawfully entitled to possession of the thing seized is known, order it to be returned to that owner or person, unless the prosecutor, or the peace officer or other person having custody of the thing seized, satisfies the justice that the detention of the thing seized is required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding; or
(b) where the prosecutor, or the peace officer or other person having custody of the thing seized, satisfies the justice that the thing seized should be detained for a reason set out in paragraph (a), detain the thing seized or order that it be detained, taking reasonable care to ensure that it is preserved until the conclusion of any investigation or until it is required to be produced for the purposes of a preliminary inquiry, trial or other proceeding.
(2) Nothing shall be detained under the authority of paragraph (1)(b) for a period of more than three months after the day of the seizure, or any longer period that ends when an application made under paragraph (a) is decided, unless
(a) a justice, on the making of a summary application to him after three clear days notice thereof to the person from whom the thing detained was seized, is satisfied that, having regard to the nature of the investigation, its further detention for a specified period is warranted and the justice so orders; or
(b) proceedings are instituted in which the thing detained may be required.
(3) More than one order for further detention may be made under paragraph (2)(a) but the cumulative period of detention shall not exceed one year from the day of the seizure, or any longer period that ends when an application made under paragraph (a) is decided, unless
(a) a judge of a superior court of criminal jurisdiction or a judge as defined in section 552, on the making of a summary application to him after three clear days notice thereof to the person from whom the thing detained was seized, is satisfied, having regard to the complex nature of the investigation, that the further detention of the thing seized is warranted for a specified period and subject to such other conditions as the judge considers just, and the judge so orders; or
(b) proceedings are instituted in which the thing detained may be required.
51These sections apply to both warrantless seizures and items held by police after the execution of a warrant. A comprehensive supervisory scheme is set out in s. 490 of the Code, which requires the Justice who receives the report to return the property unless the Justice is satisfied that detention is required for investigation or a court hearing. The Justice may extend the detention but only up to a year, after which an order from a Superior Court of Justice judge is required: Criminal Code, s. 490(3).
52Courts have recognized that this procedure fulfils an important function of judicial oversight of items seized and held by the police: R. v. Canary, 2018 ONCA 304, at para. 45: R. v. Garcia-Machado, 2015 ONCA 569, 126 O.R. (3d) 737 (Ont. C.A.), at paras. 15, 55; R. v. Backhouse 2005 CanLII 4937, (Ont. C.A.), at para. 112.
53PC Poffley was the officer in charge of the investigation involving the Nissan Altima on August 27, 2018. PC Poffley explained that the OIC is the officer tasked with making ultimate decisions on the case, seeing the case through court, gathering witness testimonies and disclosure. If there is a trial, the OIC is the person to ensure that everyone attends when needed.
54PC Poffley’s evidence was that police best practices require the affiant on an ITO to complete the required Return to Justice. He said that he had assumed that PC Paiement, as the affiant on the warrant, had taken care of the Return to Justice. In February of 2021, PC Poffley found out that PC Paiement had failed to do so, and PC Poffley prepared one himself.
55PC Poffley’s first Report to a Justice was filed February 12, 2021. The Report identified the handgun found in the driver’s footwell and the black iPhone found in the grass outside of the driver’s door. Appendix A to the Report included the following:
While reviewing paperwork involving this case, it was noticed that a Return to Justice appears to have not been filed in relation to these items. While not nefarious or done in bad faith, it appears as though an administrative error has occurred, and I am currently submitting this Report to Justice upon my findings pertaining to the missing RTJ. While the owner/operator of the seized items are currently unknown, police are currently still attempting to identify the owner of the above-mentioned items, which ultimately will lead to the possible arrest of the subject for firearms related offences as well as attempted murder. It must also be noted that the vehicle in question noted above appears to have been used in the commission of further crimes in the Windsor area in which suspects were arrested and are awaiting trial. The above-mentioned items are required as material evidence in that case before the courts. The writer is asking for the continued detention of the above-mentioned items for the purposes outlined above.
56An order of detention was signed by Justice of the Peace Double, directing that “all items seized” be detained in the custody of Peel Regional Police “until the completion of all proceedings, as charges have been laid”.
57A second Report to a Justice was prepared and filed by PC Poffley on February 22, 2021. In this report, Exhibit A referenced the Sig Sauer handgun, the black iPhone, and the other items seized from the Altima, including the two additional cell phones. This Report to a Justice was initially refused by Justice of the Peace Carty, who sought more information about the status of the investigation. The Justice of the Peace asked five questions, including the following, that were answered as follows by PC Poffley:
Q: What is the status of the investigation?
A: I have expanded the above affidavit to include the Windsor Police murder charges. The Jerome Edwards investigation is currently still open, and information is still being sought in relation to who shot Jerome Edwards on August 25, 2018.
Q: Have charges been laid against anyone in relation to the investigation?
A: Charges were laid against Keima Davis-Baynes for various firearms offences in relation to the found firearm in the vehicle mentioned above. The identity of the person who fled the vehicle is currently unknown and investigators are still attempting to identify them. Davis-Baynes is currently facing first degree murder charges along with two other persons in the Windsor area for the murder of Jason Solomon-Pantlitz. The items noted above in the affidavit are material evidence required for the trial of those persons. Therefore, the retention of the above items would serve two purposes one: material evidence to be tendered at trial in Windsor and two: allow for the thorough investigation of who shot Jerome Edwards.
Q: How much more time are investigators seeking to hold the items?
A: Timeframe is unknown, but I would request that the items noted be retained until at least the culmination of Windsor's trial as these items are material real evidence.
58After PC Poffley answered these questions, Justice of the Peace Carty signed the Order of Detention on February 22, 2021, allowing detention of the items until the completion of the “murder trial in Windsor”.
5. Retention of the Data
59PC Hebden explained that the original data, in its unreadable form, is retained on the police server. He said the data is retained in case it is necessary for any reason in the future, such as for a trial, an appeal, or such other reason. He said that it is important to retain the original evidence and used an analogy of blood on a knife; that if blood is taken from a knife pursuant to a search warrant, then the original blood must be retained in case it is needed in the future. He described it as “investigative necessity”. There is no time frame for the destruction of the data.
60PC Hebden said that he does not prepare a report to justice on the data extracted from the phone because a report to a justice would already have been completed for the device itself.
Callandar Road Facts
61On November 21, 2018, an attempted robbery occurred at Ashok Jewellery in Brampton, Ontario. Three men had entered the store through a window using hammers. One of the men was armed with a firearm. PRPS Forensic Investigation Officers attended at Ashok Jewellery and obtained a swab of blood from the windowsill. The DNA profile in the blood was a match for Mr. Johnson-Phillips in the DNA forensic data bank.
62PRPS relied on surveillance that disclosed that Mr. Johnson-Phillips attended a residence located at 13 Callandar Road in Brampton, Ontario.
63In the early morning hours of February 7, 2019, PC Finnie prepared a warrant to search 13 Callandar Road and submitted it via e-mail where it was received and granted by Justice of the Peace Malik.
The Callandar Road Search
The Warrant
64PC Finnie’s ITO filed to obtain the Malik warrant had an Appendix A setting out a list of the items to be searched for and seized. The list contained 13 items under the heading “Ashok Jewellers” and eight items under the heading “Project Mule Home Invasions”, a York Regional Police investigation. The Ashok Jewellers items consisted of clothing, shoes, masks, a small black bag, a firearm, ammunition, hammer and documents relating to a Dodge Durango. The Project Mule Home Invasions items consisted of gloves, clothing, two separate masks and shoes.
65The ITO had an Appendix B setting out the offences in relation to which the warrant was being sought. There were three separate offences identified, all of which were alleged to have been committed by Mr. Johnson-Phillips on November 21, 2018. The offences were: that Mr. Johnson-Phillips robbed Blaram Kumar; that Mr. Johnson-Phillips used an imitation firearm while attempting to commit the indictable offence of robbery; and that Mr. Johnson-Phillips had his face masked with intent to commit an indictable offence.
66PC Finnie provided Justice of the Peace Malik with the ITO, a request for a sealing order and a warrant faceplate including a blank Appendix A page and a blank Appendix B page. At 1:40 a.m., a signed warrant was returned to PC Finnie including the blank Appendix A and Appendix B pages. The warrant essentially authorized the search and seizure of nothing and to investigate no offences. The cover e-mail of Justice of the Peace Malik to PC Finnie reads “granted, please confirm if everything is in order”. PC Finnie did not respond.
67The defect in the warrant was either ignored or not noticed by PC Dean, the Officer in Charge of the Ashok Jewellery investigation. A briefing was conducted at 5:04 a.m. and although the warrant did not contain a completed Appendix A or B, officers at the briefing recalled seeing a paper copy of the warrant including the items listed to be seized.
The Execution
68PRPS deemed the warrant to search as “high risk” and enlisted the assistance of the Tactical Unit. Members of the Tactical Unit and the PRPS Robbery Bureau gathered at a parking lot close to the residence.
69At 6:01 a.m., the Tactical Unit entered the residence at 13 Callandar Road by battering through the front door with a ram. The surveillance had disclosed that a large dog lived in the residence and accordingly the Tactical Unit used a flash bang device to distract and control the dog. All of the occupants of 13 Callandar Road were “called out” meaning they were to present themselves to police to be removed from the residence. In total, six people were removed from the residence, including Mr. Johnson-Phillips who was called down from the upper level of the residence by PC Farrow. Mr. Johnson-Phillips was arrested for the Ashok Jewellery robbery and taken into custody.
70PC Vanderwal conducted a search of the master bedroom on the upper floor of the residence. He located a black cracked iPhone inside a Gucci bag in the master bedroom. He testified that he showed PC Hill, the Exhibit Officer, the location of the item. PC Hill made the decision to seize it. In total, ten cell phones were seized from the residence.
71At approximately 7:45 a.m., the last item seized was turned over to PC Hill. At approximately 7:50 a.m., the police left the residence.
72The cell phones were not included in the list of items to be seized from the residence. PC Hill was asked in cross-examination why he seized the cell phones. He said that information on the phones may advance the Ashok investigation and that information on the phones could corroborate the involvement of persons in the robbery, or not. He said that cell phones are “basically a mobile computer” and that he believed the absence of cell phones in the warrant was an “oversight”. He explained that cell phones can provide GPS locations of the phone which would be relevant to the robbery team to see if the phone was at or near the location of the jewelry store at the time of the robbery. He said the phone could show communication with others, including other potential suspects.
73Later in his cross-examination, PC Hill demonstrated an insufficient overall reasoning for seizing the cell phone. PC Hill could not articulate reasonable and probable grounds to seize the cell phones, other then they “might” contain evidence. He said he seized all four cell phones in the bedroom based on a “hunch”. He said some people might have two phones or move SIM cards from one phone to another. He said if the Investigative Team did not want any item, they could return them.
74PC Hill acknowledged that the cell phones could not be searched without another warrant. He transported the phones back to PRPS. He said his practice is to remove the SIM card out of the phone to prevent any deletion of the data and tape the SIM card to the back of the phone. He can't specifically recall completing this task with the black iPhone, but this is generally the way he proceeds. The phones would then be put into an individual evidence bag. PC Hill could not recall if the evidence bags were sealed at the scene or not. All the cell phones, in their evidence bags, were placed in a locker.
The Report to Justice
75On February 14, 2019, one week after the execution of the Callandar Road search warrant, PC Lumi submitted a Report to a Justice. PC Lumi mistakenly checked off the box indicating the items were seized pursuant to s. 487 of the Criminal Code despite the warrant being issued pursuant to s. 487.1 (tele-warrant). PC Lumi testified this was an inadvertent error and he nonetheless completed the latter portion of the form which required completion if the warrant was issued pursuant to section 487.1.
76In response to the form question of what was seized, PC Lumi inserted “see exhibits report “A” attached”. He also ticked the box indicating that items were seized in addition to the items mentioned in the warrant and inserted “see exhibits report “B” attached”. In his examination-in-chief, PC Lumi identified a three-page chart containing a list of items from 13 Callandar Road, marked Exhibit 20 on the applications, as the Appendix that was attached to the Return to Justice. This list is not divided into Appendix A and Appendix B and clearly contains a number of items that were not included in the warrant. The list appears to be a unified list containing all items seized, rather than two separate lists differentiating between those items listed in the warrant and those items not listed in the warrant.
77In cross-examination, PC Lumi said he could not recall if he gave the Justice of the Peace an Appendix A. He said he does not usually provide a detailed explanation for items seized that were not listed in the warrant.
78In the Report to Justice, under the heading “Grounds for believing that the things which were seized in addition to the things mentioned in the warrant, had been obtained by, or used in the commission of an offence”, PC Lumi inserted “Evidence found from home invasion and bank robbery in York Region and these items are being held with York Regional Police”. In cross-examination, PC Lumi was asked if he agreed that the answer to this question left the impression that all items seized outside of the warrant were in relation to the York investigation and were provided to the York Regional Police. PC Lumi's answer was “not necessarily”.
79Constable Lumi attended personally before the Justice of the Peace. He could not recall how long the meeting was. He said that he may have provided explanations orally that were not in the form.
Re-Statement of the Issues Respecting the Nissan Altima Search
80The accused are seeking to exclude from trial the data extracted from two of the three cell phones, namely the black iPhone found outside the Altima and the silver iPhone #1 found inside the Altima (the two cell phones operated exclusively by Johnson-Phillips according to the Crown’s theory).
81The accused are not seeking the exclusion of the Nissan Altima itself, the firearm or any of the remaining items seized inside.
[82] The accused claim that there were multiple s. 8 Charter breaches in respect of the warrants obtained to search the iPhones in the Nissan Altima. They claim the following as s. 8 breaches:
The first warrant (the Chang Alloy warrant) had a Branton error and a temporal impossibility;
The search of the black iPhone took place after the firearms charges against Ms. Davis-Baynes were withdrawn and so the warrant had expired or was no longer valid;
The required return to justice of the joint cell phone search was delayed by two and a-half years;
There was never a Return to Justice in respect to the forensic examination of the cell phones and the data extraction. Police continue to retain the data without a detention order.
83While determining ownership of the two cell phones at issue was impossible for police at the time of the search, the Crown concedes that both respondents had a residual privacy interest in both of the cell phones given the communications on the phones.
84The Crown takes the position that the Branton error and temporal impossibility on the first warrant was cured by the Morin warrant dated September 5, 2018. Accordingly, the Crown asserts that the Branton error and temporal impossibility in the Chang Alloy warrant had no effect on the rights of the accused to be secure against unreasonable search or seizure. Accordingly, the Chang Alloy warrant did not constitute a breach.
85The Crown takes the position that the search of the iPhones took place when they were originally connected to an advanced unlocking tool on September 6, 2018, and accordingly the search predates the withdrawal of the firearms charges against Ms. Davis-Baynes. Moreover, the Crown asserts that the Morin warrant was not solely attached to those charges as the ITO filed by PC Paiement detailed the investigation into the Jerome Edwards shooting and explained that he believed that occupants of the Altima were involved in the Edwards shooting. Accordingly, the warrant did not become stale-dated when the firearms charges were withdrawn against Ms. Davis-Baynes and the continued search and detention of the phones after the withdrawal of those charges did not constitute a breach.
[86] The Crown concedes that the delayed Return to Justice constitutes a breach of the s. 8 Charter rights of the accused given the Court of Appeal decision in R. v. Garcia-Machado, 2015 ONCA 569.
Re-Statement of the Issues Respecting the Callandar Road Search
87The accused, Mr. Johnson-Phillips, seeks to exclude the black iPhone located in the master bedroom from being admitted as evidence at trial. The accused does not seek to exclude the balance of the items, including the KMAC necklace.
88The accused, Ms. Wynter, does not have a privacy interest in the cell phone and does not seek standing in this application.
89The accused assert, and the Crown concedes, that the failure of PC Finnie to include Appendix A or B in the Callandar Road warrant is a standalone s. 8 violation and the result is that the warrant was facially invalid.
[90] The accused, Mr. Johnson-Phillips, asserts that the removal of ten cell phones, in particular the black iPhone with the cracked face, in the absence of the items being listed in the warrant and without properly articulating reasonable and probable grounds for doing so, constitutes a violation of his s. 8 Charter rights.
91The accused asserts that the Report to Justice filed by PC Lumi was deficient for a number of reasons, namely:
he failed to list the basis for items seized that were not listed in the warrant;
he could not recall whether there were any appendices attached to the Return to Justice;
the implication in the warrant was that items seized outside those authorized by the warrant were left with York Regional Police when in fact the ten cell phones were kept by PRPS.
92The Crown concedes that virtually no aspect of the Report to Justice was completed correctly, apart from the fact that PC Lumi obtained the Report to Justice and personally brought it before the Justice of the Peace for review as soon as practicable.
Analysis
93The Charter, s. 8, provides that “everyone has the right to be secure against unreasonable search or seizure”. Remedies for an infringement of this right are found in s. 24:
24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
94In order to comply with s. 8 of the Charter, prior to conducting a search the police must provide "reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search": (Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at 168). If the police satisfy a Justice of the Peace of the “reasonable and probable grounds” the Justice of the Peace will issue a search warrant.
95The accused bears the burden of persuading the court that their rights or freedoms have been infringed. However, once the accused has demonstrated that a warrantless search has occurred, the Crown has the burden of showing that the search was, on a balance of probabilities, reasonable. A search will be reasonable if: it is authorized by law; the law itself is reasonable; and the manner in which the search was carried out is reasonable, R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265.
Analysis – Nissan Cell Phones
96For purposes of the analysis, I group the issues raised by the accused into four issues with the search of the Nissan Altima.
The Branton Error
97The first issue deals with the warrant dated August 29, 2018. That warrant was granted on August 29 and authorized the forensic examination and extraction of data from the black iPhone to take place on August 28, 2018. The warrant used an outdated form.
98In R v. Branton, (2001), 2001 CanLII 8535 (ON CA), 53 O.R. (3d) 737 (Ont. C.A.), the respondent openly sold “direct to home” satellite systems with access cards that could decode United States satellite programming signals. Police obtained three search warrants that were executed at the respondent’s business premises. Police seized a number of items including documents, office computers, employee records, etcetera. The respondents successfully applied to quash the warrants and the Crown appealed.
99One of the grounds for quashing the warrants argued before the motions judge was whether the search warrants were invalid on their face for failure to comply with s. 487 of the Criminal Code. The search warrants purported to authorize the search and seizure of “things... that are being sought as evidence in respect of the commission, suspected commission or intended commission of an offence against the Radiocommunication Act...”. The warrant was issued pursuant to s. 487(1)(b) of the Criminal Code, which limits a search to “evidence with respect to the commission of an offence”. In authorizing the search for evidence of the “suspected or intended commission” of an offence the warrant exceeded the authority prescribed in s. 487. At para. 36, the Court of Appeal said: “While the motions judge did not comment on this submission, it appears that the warrant was also invalid on its face.”
100After Branton was decided, courts were undecided on how to deal with a Branton error with some judges excising the offending language to cure the error and others disagreeing with that approach: see R. v. Nurse and Plummer, 2014 ONSC 1779, at para. 32-34). In Nurse, Coroza J. (as he then was) said “It seems to me that the proper approach is to review the particular circumstances of a case where the Branton error is alleged and determine if there is a possibility for confusion or overly broad conduct not permitted by the section”: para 35.
101In this case, the form was changed after Branton was decided. PC Paiement used an outdated form. The Branton error was caught by officers in the property room who refused to surrender the phone for examination. The same mistakes appeared in the Nissan warrant dated August 29, 2018.
102In my view, PC Paiement rectified the errors when he obtained new warrants to search all three cell phones issued on September 5, 2018. The searches were completed based on these new warrants. There was no confusion or overly broad conduct as a result of the erroneous warrant.
[103] Accordingly, I do not consider the warrant containing the Branton error to have breached the accused’s’ s. 8 Charter rights.
The Withdrawal of the Charges against Ms. Davis-Baynes
104The second issue deals with the withdrawal of the weapons charges against Ms. Davis-Baynes.
105The Morin warrants dated September 5, 2018 (one for each of the black iPhone found in the grass outside of the Nissan and the two silver iPhones found inside the Nissan) authorized a search of the cell phones on September 6, 2018, between 7:00 a.m. and 9:00 p.m. The phones were connected to an advanced unlocking tool on that day. The black iPhone was not unlocked until July of 2019, approximately seven months after the firearms charges against Ms. Davis-Baynes were withdrawn.
106What is the effect of the delay in the successful extraction of data from the black iPhone to a date past the withdrawal of charges against Ms. Davis-Baynes?
107I start by noting that a search warrant does not require a date of execution. In the absence of a date of execution on search warrants, they are presumed to be executed on the date they are signed: R v. Rafferty, 2012 ONSC 703, at para. 23.
108Moreover, the warrant authorizes police to enter the premises (the police tech property room and the cell phone) and search for items. The warrant did not require that the search be completed by 9:00 p.m. on September 6: R v. Woodall, [1993] O.J. No 4001 (Ont. C.A.) and R. v. Picton, 2006 BCSC 1090, at para. 91.
109The issue was litigated in Attorney General of Canada v. Levy, 2020 ONSC 5847, 152 O.R. (3d) 705 (Ont. S.C.J.) where the applicant asserted that the authorized forensic examination of his cell phone must be completed before the expiry on the single day named in the warrant. Goldstein J reviewed R. v. Barwell, [2013] O.J. No. 3743 and R. v. Nurse, 2014 ONSC 1779, [2014] O.J. No. 5004 and rejected the applicant’s argument. At paragraph 36, Goldstein J said:
In this case, Constable Dean seized the phone on a day set out in the warrant. He turned the phone over to Tech Crimes. It would be completely unrealistic to assume that the police could conduct a forensic examination in such a short period of time. Neither the law nor the warrant required it.
[110] Accordingly, the fact that police continued to search the phones after 9:00 p.m. on September 6, 2018, does not, in and of itself, constitute a breach of the accused’s s. 8 Charter rights.
111The accused assert that the warrant expired when the charges against Ms. Davis-Baynes were withdrawn. The accused rely on the Ontario Court of Justice decision of LeDressay J. in R. v. D’Ammizio, [2021] OJ No. 7613 (Ont. S.C.J.). In that case, on January 18, 2020, the applicant was arrested for fraud and a cell phone was seized during a search incident to arrest. A report to a justice was made and, on February 6, 2020, an Order of Disposition of Items Seized was made providing that the phone be detained “until the completion of all proceedings, as charges have been laid”. On April 16 a warrant was issued to search the data in the phone. On June 23, the applicant resolved his charges with a plea and the remaining charges were withdrawn. On August 5, an examination of the cell phone was done and based on data extracted the applicant was arrested and new charges were laid. The accused brought an application to exclude the data and the application was granted. At paragraph 51 and 52 the Court held:
51 In this case the only authority for the police to retain the Applicant’s cell phone was the order of detention made on February 6, 2020. This order stated that the property, which included the Applicant’s cell phone, could be detained in the custody of the Halton police "until the completion of all proceedings, as charges have been laid." These proceedings were completed on June 23, 2020. There was no Report to Justice filed after the search warrant was executed on April 22, 2020, or when the data was extracted from the cell phone on August 5, 2020. Therefore, there was no other Order of Detention made with respect to the Applicant's cell phone.
52 Therefore, I find that the police had no lawful authority to detain the Applicant's cell phone, after proceedings with respect to all of the charges arising from January 18, 2020, were completed, on June 23, 2020. As the extraction of data only took place on August 5, 2020, it occurred when the police had no authority to detain the Applicant’s cell phone
112In my view, D’Ammizio is not applicable in this case. In D’Ammizio, the trial judge was interpreting the detention order that was properly obtained by police as authorizing the detention of the phone only until those charges were completed. There was no such order in this case as no Report to a Justice was made in a timely manner. The lack of a timely Report to a Justice does constitute a breach of the s. 8 rights of the accused and is discussed below.
113As to the alleged expiry of the warrant, I note that there is nothing in the warrant nor in the Criminal Code that provides that a warrant expires when the charges detailed in the warrant are completed. Secondly, the ITO filed in support of the application for the warrant details the Jerome Edwards shooting and sets out the grounds to believe that data on the cell phones may assist in the investigation into that shooting. On a reading of the ITO as a whole, it is clear that the warrant was sought in connection with the Edwards shooting investigation as well as the Davis-Baynes charges and there is no evidence that the Edwards investigation was completed before the phones were unlocked.
114The accused assert that, in considering whether the warrant expired when the charges against Davis-Baynes were withdrawn, the warrant, along with appendix A (parameters of the search) and appendix B (list of weapons offences against Ms. Davis-Baynes), must be considered as a standalone document without reference to appendix C (the ITO). I reject that assertion. In Nurse, Coroza J. (as he then was) considered challenges to the facial validity of a search warrant of cell phones. One of the challenges was that the warrant authorized police to retrieve the phones from the OPP vault but did not authorize police to extract data from the phones. In rejecting that challenge and finding that the warrant authorized the police to search for data, Coroza J. considered the content of the ITO. He held, at paragraphs 25 and 57:
25 With respect to challenges as to the facial validity of the warrant, I must examine only the face of the warrant and the ITO and stay within the four corners of the documents that were before the issuing justice.
57 First the ITO made it clear that the phones were seized incident to arrest and Appendix A attached to the warrant makes it clear that the issuing justice was authorizing a search to be conducted on the phones. Inherent in the phrase “a search will be conducted on the phones” is that the search will be conducted of the data found in the phones.
115Applying the same reasoning here, the ITO made it clear that the justice was authorizing a search based on both the firearms charges against Ms. David-Baynes and the investigation into the Jerome Edwards shooting. Accordingly, in my view, the continued search of the cell phones following the withdrawal of the Davis-Baynes firearms charges does not constitute a breach.
116However, I consider the fact that police detained the cell phones for longer than three months after the day of the seizure without authorization contrary to s. 490(2) of the Criminal Code. In R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531, Justice Coté explained, at para. 134:
… In addition, s. 490(2) of the Criminal Code provides that seized property may not be detained for longer than three months unless the justice is satisfied that it is still required or unless legal proceedings requiring the use of the property have been instituted. Continued detention of an individual's property in violation of these Criminal Code provisions amounts to a violation of an accused's s. 8 Charter rights regardless of whether the initial seizure was valid (R. v. Garcia-Machado, 2015 ONCA 569, 126 O.R. (3d) 737 (Ont. C.A.), at paras. 43-45)…
[117] The continued detention past three months without judicial authorization is a breach of the s. 8 Charter rights of the accused. This issue is tied to the third argument, namely the lack of a timely Return to a Justice.
The Delayed Return to a Justice
118The third issue is the lack of a timely Report (or Return) to Justice. The Criminal Code, s. 489.1(1) requires a Return to Justice “as soon as practicable”. The warrant was executed on September 6, 2018, when the phones were attached to the unlocking device and a Return to Justice was not filed until February 12, 2021.
119In R. v. Garcia-Machado, 2015 ONCA 569, the accused crashed his vehicle into two trees. Police had reasonable grounds to believe that the accused was intoxicated. Police seized a vial of the accused’s blood drawn at the hospital under the authority of a valid search warrant. The incident occurred on August 25, 2012, and the warrant was executed on August 28, 2012. The information charging the accused with impaired driving causing bodily harm was sworn on October 26, 2012. A report to justice required by s. 489.1(1) was filed by police on December 17, 2012, approximately 15 weeks after the seizure. The question on the appeal was whether the failure of police to make a return to justice as soon as practicable rendered the continued detention of the blood sample unreasonable and therefore contrary to s. 8 of the Charter.
120Hoy ACJO, speaking for the Court in Garcia-Machado, concluded that the answer was “yes”. At para. 45, she explained:
…As I have explained, it is clear that an individual retains a residual, post-taking reasonable expectation of privacy in items lawfully seized and that Charter protection continues while the state detains items it has taken. Sections 489.1(1) and 490 govern the continued detention by the state of the items seized and, I conclude, the requirement in s. 489.1(1) to report to a justice as soon as practicable plays a role in protecting privacy interests. The Constable's post-taking violation of s. 489.1(1) by failing to report to a justice for more than three months after seizure of the blood and hospital records compromised judicial oversight of state-detained property in which the appellant had a residual privacy interest. It therefore rendered the continued detention unreasonable and breached s. 8. The fact that a person may have a diminished reasonable expectation of privacy after a lawful, initial police seizure and that in a particular case there may have been virtually no impact on that expectation will be important factors in the analysis under s. 24(2) of the Charter. However, they will not render continued detention after a clear violation of the requirement in s. 489.1(1) to report to a justice as soon as practicable reasonable.
121Hoy ACJO further explained in paras. 54 and 55 the importance of judicial oversight of detained property:
54 A second important aspect of s. 490 is that it provides the lawful owner of the item seized, a person lawfully entitled to possession of the item seized, or the person from whom the item was seized the right to apply for return of the item - the meaningful remedy that Tse adverts to. Return of the seized items reduces or eliminates the risk that the state will violate the person's residual privacy interest. As Rosenberg J.A. noted, at para. 113 of Backhouse, s. 490's relatively summary procedure is much preferable to a more cumbersome and expensive replevin action in civil court.
55 The recording of the items seized, the right to notice and the right to apply for return of things seized confer important protections on people whose items the state holds in detention. Compliance with s. 489.1(1) is the gateway to all of these protections. The appellant failed to report to a justice for over three months after the blood and hospital records were seized. Effective judicial oversight of property in which the appellant maintained a residual privacy interest was compromised. I conclude therefore that the Constable's clear failure to comply with the requirement in s. 489.1(1) that he report to a justice as soon as practicable breached s. 8 of the Charter. I leave for another day whether any other breach of s. 489.1(1) or any breach of s. 490 - even if so minor or technical as to have no real impact on the judicial oversight contemplated by the sections - would breach s. 8 of the Charter.
122In 2018, Fairburn J.A., in R. v. Canary, 2015 ONCA 569 confirmed these principles, emphasizing that filing a report under s. 489.1 must not be "conceptualized as a meaningless exercise in paperwork":
Section 489.1(1) applies to seizures made both with and without prior judicial authorization: Backhouse, at para. 111. The provision fulfills an important purpose, providing the gateway to s. 490 of the Criminal Code: R. v. Garcia-Machado, 2015 ONCA 569, 126 O.R. (3d) 737, at paras. 15, 55; Backhouse, at para. 112. Section 489.1 should not be conceptualized as a meaningless exercise in paperwork. Filing the initial report under s. 489.1(1) is the act that places the property within the purview of judicial oversight. It provides for a measure of police accountability when dealing with property seized pursuant to an exercise of police powers. This provides an important measure of protection to the party who is lawfully entitled to the property, but also provides a measure of protection to the police who become the custodians responsible for the property seized. Allowing for this type of oversight is particularly important in the wake of warrantless seizures, ones where no prior authorization has been given, meaning the seizures are beyond the knowledge of the judicial system.
123Here, PRPS had no information as to the lawful owner of the black iPhone and the white iPhone #1, or the person(s) entitled to possession of them. There was no way of knowing who these persons were until the phones were unlocked. However, the black iPhone was unlocked in July of 2019 and the Return to Justice was not completed until February of 2021, approximately 16 months later.
124Ms. Davis-Baynes received her phone (white iPhone #2) in June of 2019 following an email exchange between Ms. Davis-Baynes and PC Poffley.
125The delayed Return to a Justice in respect of the two cell phones is a Charter breach. The continued detention of the cell phones without a detention order is a Charter breach. A s. 24(2) analysis is required.
The Absence of a Return to Justice Following the Extraction of Data from the Phones and the Continued retention of the Data
126The accused assert that the failure of PRPS to provide a further report to a Justice of the Peace after the data was seized from the cell phone constitutes a s. 8 breach. The accused rely on R. v. Sinnappillai, 2019 ONSC 5000, a decision of Boswell J. where he found that the failure to make such a report does constitute a breach. In doing so, Boswell J. relied on the ruling of Dawson J. in R. v. Merritt, 2017 ONSC 5245, at para 244-245:
The [Crown] argues that no additional report to a justice was required because the property itself was already being supervised by the court pursuant to the earlier detention order. I would point out, however, that under the original s. 490 order the court was supervising the detention of the physical items. As no return was made in relation to the execution of the October 18 warrant the court was not supervising the detention of the data gleaned from the computers and USB keys.
As was subsequently held by the Supreme Court of Canada in Vu, the privacy interest in the data contained on a computer or similar device is subject to a separate level or layer of privacy protection from the seizure of the device itself. Treating supervision of the seized computer as a physical item as comparable to supervision of the data seized from the computers and USB keys is inconsistent with the concerns expressed in cases such as Vu and R. v. Morelli, 2010 SCC 8, R. v. Sinnappillai 2019 ONSC 5000 Page 17 of 22 [2010] 1 S.C.R. 253. Consequently, I am of the view that failure to make a report to a justice in relation to the execution of the October 18, 2013, warrant constitutes a violation of s. 8 of the Charter.
127That decision can be contrasted with the decision of Akhtar J. in R. v. Robinson, 2021 ONSC 2446, where he said at paras. 26-27:
26 I agree with the Crown that these cases have been overtaken by the Court of Appeal for Ontario's holding in R. v. Nurse, 2019 ONCA 260, 145 O.R. (3d) 241, at paras. 132-138, that Blackberries and other electronic devices were not a "place" to be searched and that a second analysis of data extracted from the device did not constitute a new "search" but the same search authorised by the warrant that allowed seizure of the device.
27 Here, the data obtained from the phone was not a "thing" and did not require a second Report to Justice.
128I agree with the reasoning of Akhtar J. in Robinson. If a Report to a Justice is made on the cell phone itself, then it would inevitably include the data on the phone. To put the matter another way, if there is judicial oversight on the phone itself through compliance with the provisions of the Criminal Code, there is judicial oversight of the data on the phone. The phone is the “thing seized” and detained whereas the data on the phone is the information gleaned from a search of it.
129I turn then to the continued detention of the data. The Crown points out that s. 490(13) of the Criminal Code allows it to make, and retain, a copy of documents. The section reads:
490(13) The Attorney General, the prosecutor or the peace officer or other person having custody of a document seized may, before bringing it before a justice or complying with an order that the document be returned, forfeited or otherwise dealt with under subsection (1), (9) or (11), make or cause to be made, and may retain, a copy of the document.
130There is also s. 487(2.1) that allows police to retain a copy of data contained in a computer system:
(2.1) A person authorized under this section to search a computer system in a building or place for data may
(a) use or cause to be used any computer system at the building or place to search any data contained in or available to the computer system;
(b) reproduce or cause to be reproduced any data in the form of a print-out or other intelligible output;
(c) seize the print-out or other output for examination or copying; and
(d) use or cause to be used any copying equipment at the place to make copies of the data.
131Here, the data retained was in an unreadable format. The Windsor Police Service obtained a production order for the data. The defence asserts that, once the data was searched and the extractions permitted by the Morin warrant provided to investigators, the raw, unreadable data ought to have been destroyed. In that event, the raw, unreadable data would not have been available to WPS. I do not accept this assertion.
132PC Hebden said that the raw data, just like other evidence, is retained in case it is needed for trial, appeal or such other purpose. The data may be necessary many years after it is originally seized to address a claim of wrongful conviction. Moreover, as was pointed out in Nurse, the development of better software to interpret the data may warrant another look.
133It seems to me that the protection of privacy interests in cell phone data is addressed by the procedure described by PC Hebden. The data is retained in a form that is unreadable. It is only analyzed by a software program (such as Cellebrite) if and when a warrant is obtained and then only the data identified in the warrant is provided to investigators. This procedure does not hamstring the police investigation of crimes and ensures judicial oversight before the data, in its raw form, is searched anew. This is precisely what happened in this case when the WPS properly obtained a production order for the data.
134The central issue in this case remains the same; there was no timely return to justice either before or after the extraction of the data resulting in a total lack of judicial oversight from September of 2018 to February of 2021. The lack of a timely return to justice resulted in the detention of the phones without a proper detention order. This is the breach of Charter rights in this case that encompasses the other arguments of defence counsel.
Analysis – Callandar Road Cell Phone
135The Crown has conceded that the Callandar Road warrant was facially invalid as a result of the blank Appendices A and B attached. The signed warrant was returned to PC Finnie with the blank Appendices. The cover email asked for confirmation that “everything is in order” and the confirmation was never provided.
136In R. v. Nguyen, 2017 ONSC 1341, Fairburn J. (as she then was) dealt with a similar issue – the warrant in that case did not list the items to be searched for.
110I have no doubt that the police used Appendix A to the ITO as if it was Appendix A to the warrant. This view is supported by the lack of any complaint by the accused, who holds the onus on this application, that there has been an over seizure. In other words, it appears that the warrant was executed in compliance with Appendix A to the ITO. Despite this fact, I am satisfied that the issuing justice did not turn her mind to the list of items to be seized and that there was no actual Appendix A to the warrant. This gives rise to a s. 8 breach.
111While Crown counsel argued that this type of breach could be remedied by the contents of the ITO, I disagree. Without a list of items to be seized, the search warrant failed to serve its function. While the police proceeded on the assumption that the items on Appendix A to the ITO had been authorized for seizure, this was just an assumption. Without a complete warrant, the police were not limited in what they seized from 66 Barr Crescent. The warrant was facially flawed and did not serve the important function of constraining police behaviour. In addition, the warrant failed to serve its notice function to those impacted by the search.
137I reach a similar conclusion here. Many of the officers at the briefing recalled seeing an Appendix A listing the items to be searched. Officer Vanderwal noted the items listed under the ITO Appendix A heading “Ashok Jewellers” in his notebook. I find that the officers used Appendix A to the ITO as if it was Appendix A to the warrant. These circumstances gave rise to the concession of facial invalidity by the Crown.
138The accused, Mr. Johnson-Phillips, claims the following three additional problems with that warrant:
- The warrant sought by PC Finnie was a tele-warrant. Mr. Johnson-Phillips takes issue with the failure of PC Finnie to attend before a Justice of the Peace in person.
139At the time this warrant was executed, s. 487.1 of the Criminal Code allowed tele-warrants only where “it would be impracticable to appear personally before a justice to make an application for a warrant in accordance with section 487”. The impracticability requirement was deleted in the January 13, 2023, amendments to the Code.
140The accused relies on R. v. Persaud, 2016 ONSC 8110, where a tele-warrant was sought in relation to a fraud investigation. Hill J. dealt with the argument at paras. 81 and 82:
81 Was it however "impracticable" for Det. Dolan to have reapplied for warrants to search on the following morning? On the one hand, the officer noted as to "Urgency" on the introduction page left with the original ITO earlier in the day, "None". Cross-examined in this proceeding, the detective advanced as his first reason for wanting to perform the searches on June 27 that he wished to execute a search warrant in another case on June 28. Almost by way of adversarial afterthought, as to why he was "a bit" rushed, did the witness make reference to the prospect of loss of evidence. To the extent that urgency is one factor to be considered within the impracticability analysis, there was little evidence of such circumstances.
82 While I find this to be a close case as to whether the affiant discharged his onus of demonstrating to the TWC (telewarrant centre) the impracticability of a personal appearance, I am not prepared to interfere with the decision of the justice of the TWC to have entertained the application.
141PC Farrow was with the PRPS Tactical and Rescue Unit. His Team was assisting the Central Robbery Unit. A briefing took place at 4:52 a.m., where officers were told that Mr. Johnson-Phillips was arrestable. Their purpose was to arrest him and render the residence safe for the investigation.
142The threat assessment was level 4, which is the highest level. The role of the Tactical Unit was to “breach and hold”, meaning enter the residence and control the occupants.
143Officers arrived at the rendezvous point at 5:52 a.m., and at the residence at 6:01 a.m.
144PC Finnie, the officer who obtained the warrant, said that he was assigned the task in the morning of February 6. He completed the ITO and draft warrant by 9:15 p.m. He said that the Justice of the Peace office was open at 9:00 or 10:00 in the morning and accordingly an in-person attendance would have to wait until 9:00-10:00 in the morning on February 7. The plan was to conduct the search at 6:00 a.m. and so PC Finnie used the tele-warrant system.
145When pressed as to the reason for using a tele-warrant instead of attending in person, PC Finnie said that the information was that Mr. Johnson-Phillips was in the residence, that he was dangerous and that there were safety issues.
146The information police had at the time was that Mr. Johnson-Phillips was arrestable for robbery involving a firearm. Surveillance of the home disclosed a large dog in the residence. It was an urban setting in a populated area. There is every reason to believe the officers chose a 6:00 a.m. execution time because they thought the early hours minimized the risk to the police, to the occupants and to the residents of adjacent properties. Under the circumstances, I am not prepared to question that decision, nor am I prepared to question the decision of the Justice of the Peace to grant the application.
- Police seized ten cell phones from the residence. There were no cell phones listed in Appendix A of the ITO. The cell phone in question, the black iPhone with the cracked screen seized from the master bedroom, was inside of a bag.
147PC Hill, the Exhibit Officer, was the officer who made decisions during the search. He said that when an officer found an item from the list of items to look for, that officer would call him to photograph the item and its location. PC Hill would then make the decision to seize the item, or not.
148When asked why he seized ten cell phones from the residence when none were listed in the ITO, PC Hill said he thought the failure to list the phones was an oversight; those phones are a good source of information; that if they were not needed, they would be returned. Mr. Johnson-Phillips’ identification was in the master bedroom and so PC Hill concluded that Mr. Johnson-Phillips was associated with that bedroom. He seized the black iPhone and put it into the exhibit box.
149The Criminal Code, s. 489(1), sets out the parameters for seizing items not mentioned in the warrant:
489 (1) Every person who executes a warrant may seize, in addition to the things mentioned in the warrant, any thing that the person believes on reasonable grounds
(a) has been obtained by the commission of an offence against this or any other Act of Parliament;
(b) has been used in the commission of an offence against this or any other Act of Parliament; or
(c) will afford evidence in respect of an offence against this or any other Act of Parliament.
150Before s. 489(1) can operate to permit the person who executes a warrant to seize things not mentioned in the warrant, that person must believe on reasonable grounds that the things to be seized fall within any of the conditions contained in s. 489(1)(a), (b) and (c).
151PC Hill said that he seized all four cell phones in the master bedroom, including the black iPhone, on a “hunch”. A hunch cannot constitute reasonable grounds. Reasonable grounds must be objectively reasonable and must go beyond a hunch or intuition (R. v. Beaver, 2022 SCC 54 at para. 88). The grounds must be justified from an objective point of view such that a reasonable person placed in the same position as the officer would conclude that there were reasonable grounds for the seizure (R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 SCR 241). In R. v. Harrison, 2009 SCC 34 police searched a rental car and located drugs. The officer said that he detained and searched the vehicle because rental cars are often used to courier drugs and the car was going the speed limit which was unusual for that stretch of highway. At paragraph 20 the court said, “While an officer’s “hunch” is a valuable investigative tool – indeed, here it proved highly accurate – it is no substitute for proper Charter standards when interfering with a suspect’s liberty.”
152There was no evidence that PC Hill had reasonable grounds to seize the black iPhone, he could not articulate reasonable grounds, and his hunch cannot constitute reasonable grounds. In my view, the Crown cannot have regard to s. 489(1) to justify the seizure of the iPhone.
153I turn then to the next question: was the seizure of the phone justified under the common law plain view doctrine? The answer is no.
154The plain view doctrine is only available if the police are in the residence lawfully. In R. v. Spindloe, 2001 SKCA 58, at paras. 29-37, Jackson J.A. adopted the requirements of a plain view seizure set out in R. v. Belliveau and Losier, 1986 CanLII 88 (N.B.C.A) as follows:
(i) the police must have gained entry or be in the premises lawfully; (ii) the nature of the evidence must be "immediately apparent" as constituting a criminal offence; and (iii) the evidence must have been discovered inadvertently.
155Here, police were not lawfully in the premises as the warrant was facially invalid. The nature of the evidence was not immediately apparent as constituting a criminal offence, as the item was a cell phone, as opposed to say, a firearm, a brick of cocaine or some similar item. The evidence was not discovered inadvertently – it was located inside of a bag.
156The last question is whether the seizure was a valid seizure incident to arrest.
157In R. v. Stairs, 2022 SCC 11, the Supreme Court had occasion to review the requirements for a valid search incident to arrest when a person is arrested in their home at paragraph 82, the Court set out the following:
In summary, a search of a home incident to arrest for safety purposes will comply with s. 8 of the Charter when the following requirements are met:
The arrest was lawful.
The search was incident to the arrest. The search will be incident to arrest when the following considerations are met.
Where the area searched is within the arrested person's physical control at the time of the arrest, the common law standard must be satisfied.
Where the area searched is outside the arrested person's physical control at the time of the arrest -- but the area is sufficiently proximate to the arrest - - the police must have reason to suspect that the search will further the objective of police and public safety, including the safety of the accused.
Where the area searched is outside the arrested person's physical control at the time of the arrest -- but the area is sufficiently proximate to the arrest - - the nature and the extent of the search must be tailored to the purpose of the search and the heightened privacy interests in a home.
158In this case, Mr. Johnson-Phillips, along with the rest of the residents on the second floor of the home, was called down to the first floor by the Tactical Unit. He was seen coming from the direction of the master bedroom. He was arrested, and searched incident to arrest, on the first floor. After the Tactical Unit took all of the residents outside, the investigating officers attended inside the home and conducted the search.
159The black cell phone in question was found inside a bag in the master bedroom on the second floor. It was not found in a search of the area within Mr. Johnson-Phillips’ physical control. It was not found in an area sufficiently proximate to the arrest. There was no evidence that the search of the master bedroom was done to further the objective of police and public safety.
160Stairs was decided by the Supreme Court in 2022 and I must consider the standard that was in existence prior to the Court's decision. The Supreme Court identified that pre-Stairs standard in para. 61 of their decision:
When the police make an arrest, under the existing common law standard, they may conduct a pat down search and examine the area within the physical control of the person arrested. But when the police go outside the zone of physical control, the standard must be raised to recognize that the police have entered a home without a warrant. In these circumstances, it is not enough to satisfy the existing common law standard, which requires some reasonable basis for the search. Rather, the police must meet a higher standard: they must have reason to suspect that the search will address a valid safety purpose.
161The pre-Stairs standard was also not met by police. There was no evidence that police had reason to suspect that the search would address a valid safety purpose. Accordingly, in my view, the search inside the bag in the master bedroom cannot qualify as a search incident to arrest.
- The Return to Justice was completed improperly.
162The last issue raised by the defence is the Report to Justice dated February 14, 2019. This Report was timely in that it was filed within a week of the seizure. However, the ITO purported to attach an Exhibit “A” and an Exhibit “B” referencing a list of items seized pursuant to the warrant and items seized in addition to the warrant. There were no such lists attached. Instead, there was one list containing all items seized from 13 Callandar Road that did not differentiate between items listed in the warrant and items that were not listed in the warrant. Moreover, the lists are referenced in the order signed by Justice of the Peace Cassano, with the items listed in Exhibit A as being items detained by PRPS and the items listed in Exhibit B as being items detained by York Regional Police.
163Another issue with the report was the completion of the face page. The “487” box was checked as opposed to the “487.1” box, which indicates that the warrant was applied for in person as opposed to by way of a tele-warrant. There is a box to be ticked with space underneath to list the grounds for reasonable belief that the items seized in addition to the items listed in the warrant were obtained by or used in the commission of an offence. That box was ticked, but there were no grounds listed.
164PC Lumi of the PRPS was the officer who prepared and filed the Report to Justice. According to his evidence, PC Lumi attended in person before Justice of the Peace Cassano in order to file the report. He said he ticked the “487” box in error. He said he doesn't usually provide a detailed explanation for items ceased outside the warrant.
165The Report to a Justice was completed improperly. The Crown concedes as such. The report, specifically, did not provide the grounds for seizing the cell phones.
166PC Lumi could not recall if an Appendix A and Appendix B were provided to the Justice of the Peace when he met with her. He could not recall how long he met with the Justice of the Peace. He said that in 2019, the process allowed for an oral explanation to the Justice of the Peace outside of the form. PC Lumi could not recall if he went through each and every item listed in the appendix to explain why those items were seized.
167The Justice of the Peace was satisfied with the report and ordered a continued detention of the items seized.
168Although the report was not completed properly, there is no way of knowing whether PC Lumi provided all the required particulars to the Justice orally. A transcript of the attendance before the Justice of the Peace was apparently not available. I have some concern with the lack of transparency. However, given the Justice of the Peace approved the continued detention of the items, I can only conclude that she was satisfied with the information she received, and that Officer Lumi answered her questions satisfactorily. I am not prepared to second guess her decision.
169Where does that leave us? The warrant was facially invalid. The seizure of the cell phone was outside the warrant, without the reasonable grounds required by s. 489(1). The seizure of the phone was not justified under the plain view doctrine or as a search incident to arrest. In those circumstances, in my view, police did not have the right to seize the black cell phone. Its seizure constituted a Charter breach.
Section 24(2) Analysis
170There are 2 separate s. 24(2) analyses that must be conducted. One is the analysis respecting the data from the black cell phone seized from Callendar Rd. The other is the analysis respecting the cell phones (the black iPhone and the silver iPhone #1) from the Nissan Altima.
The Law
[171] Given my conclusion that PRPS violated the s. 8 Charter rights of Mr. Johnson-Phillips, I am required to conduct an analysis under s. 24(2) of the Charter. That section reads:
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
172I set out the law on s. 24(2) as a guide to both analyses.
173The framework for a s. 24(2) analysis is set out in the seminal decision of R. v. Grant, 2009 SCC 32 [2009] 2 SCR 353, at para 71:
A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. 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. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.
174In R. v. Choi, 2021 BCCA 410, the British Columbia Court of Appeal summarized the analytic process for considering the s. 24(2) exclusion of evidence:
[60] A s. 24(2) Charter analysis has two components. The first engages a threshold determination of whether the evidence was obtained in a manner that infringed or denied a Charter right; the second, an evaluation of whether the admission of the evidence obtained in a Charter-infringing manner would bring the administration of justice into disrepute: Robertson at para. 50.
61At the threshold stage, in determining whether evidence was obtained in a Charter-infringing manner courts assess the nature of the connection between the violation and the evidence obtained employing a purposive and generous approach. Evidence will be found to be tainted if the breach and the discovery of the evidence are part of the same transaction or course of conduct. A causal relationship between the breach and the discovery is unnecessary; the required connection may be temporal, contextual, causal, or a combination of the three. However, a connection that is too tenuous or too remote is insufficient. A finding on the strength of the connection between impugned evidence and a Charter breach is a finding of fact: R. v. Mack, 2014 SCC 58 at paras. 38–39; R. v. Pino, 2016 ONCA 389 at para. 72.
62At the evaluative stage, courts conduct an objective assessment of whether the admission of evidence found to have been obtained in a Charter-infringing manner would, having regard to all the circumstances, bring the administration of justice into disrepute. As established in Grant, this exercise involves three lines of inquiry: the seriousness of the Charter-infringing conduct, the impact of the breach on the Charter-protected interests of the accused and society’s interest in an adjudication on the merits. The first two lines of inquiry typically pull toward exclusion of the evidence, although they need not do so with identical degrees of force to compel its exclusion. It is their sum, not their average, that determines the extent of the pull towards exclusion. The third line of inquiry typically pulls in the opposite direction, towards admissibility: Le at paras. 141–142.
175The Supreme Court, in R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, described the first stage thusly:
Under the first threshold requirement, there must be some connection or relationship between the infringement of the right or freedom in question and the obtaining of the evidence which is sought to be excluded. However, a strict causal link between the Charter infringement and the discovery of the evidence is not required: Therens, per Le Dain J. at p. 649; Strachan, per Dickson C.J. at pp. 1000-1006, and Lamer J. (as he then was) at p. 1009; and Brydges at p. 210. Generally speaking, so long as it is not too remotely connected with the violation, all the evidence obtained as part of the "chain of events" involving the Charter breach will fall within the scope of s. 24(2): Strachan, per Dickson C.J. at p. 1006, and Lamer J. at p. 1009. This means that in the initial inquiry under s. 24(2) as to whether evidence has been "obtained in a manner that infringed or denied" Charter rights, courts should take a generous approach. However, it should be borne in mind that the presence and strength of the causal connection between the evidence and the Charter breach may be a factor for consideration under the second, more important, branch of s. 24(2): Strachan, per Dickson C.J., at p. 1006; and R. v. I. (L.R.) and T. (E.), [1993] 4. S.C.R. 504, per Sopinka J., at p. 530.
176Once the court is satisfied that the evidence was “obtained in a manner” that infringed an accused’s Charter rights, s. 24(2) does not automatically exclude evidence obtained in breach of a Charter right. The accused bears the onus of establishing that, having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute: R. v. Tim, 2022 SCC 12, at para 75. This is the second stage, or the evaluative stage, where the three lines of inquiry set out in Grant must be considered.
The First Line of Inquiry
177The first line of inquiry under s. 24(2) requires a court to assess whether the admission of the evidence was obtained in a manner that infringed an accused’s Charter rights would send a message to the public that the courts effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and encourage adherence to the rule of law.
178In R. v. Beaver, 2022 SCC 54, Justice Jamal explained that the court must situate the state misconduct on a spectrum or scale of seriousness:
120The first line of inquiry under s. 24(2) considers whether the Charter‑infringing state conduct is so serious that the court needs to dissociate itself from it. This inquiry requires the court to situate the Charter-infringing conduct on a scale of culpability. At one end of the scale is conduct that constitutes a willful or reckless disregard of Charter rights, a systemic pattern of Charter-infringing conduct, or a major departure from Charter standards. At the other end of the scale are less serious Charter breaches, including breaches that are inadvertent, technical, or minor or those that reflect an understandable mistake. The more severe the state’s Charter‑infringing conduct, the greater the need for courts to disassociate themselves from it (see Grant, at paras. 72-74; Le, at para. 143; Harrison, at para. 22; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 47; Tim, at para. 82; Lafrance, at para. 93).
The Second Line of Inquiry
179The second inquiry considers what impact the unlawful conduct had upon the accused’s Charter protected interests. The greater the impact on the accused's personal interests, the more likely admission of the evidence will bring the administration of justice into disrepute. The impact on personal interests is a two-part inquiry. First, the interest engaged must be identified, and then the degree to which the violation impacted this interest must be considered. The range of impact can range from fleeting and technical to profoundly intrusive. As stated in Beaver:
123The second line of inquiry under s. 24(2) considers the impact of the Charter breach on the accused’s Charter-protected interests. This inquiry involves identifying the interests protected by the relevant Charter right and evaluating the extent to which the Charter breach “actually undermined the interests protected by the right” (Grant, at para. 76). As with the first line of inquiry, the court must situate this impact on a spectrum. The greater the impact on the accused’s Charter-protected interests, the greater the risk that admission of the evidence would suggest that Charter rights are of little actual avail to citizens, thus breeding public cynicism and bringing the administration of justice into disrepute (see Grant, at paras. 76-77; Le, at para. 151; Tim, at para. 90; Lafrance, at para. 96).
180The second inquiry is practical, not hypothetical. It is the actual impact that is in issue: R. v. Berry, 2022 BCCA 389.
The Third line of Inquiry
181The Court in Beaver describes the third inquiry:
129The third line of inquiry under s. 24(2) considers societal concerns and asks whether the truth-seeking function of the criminal trial process would be better served by the admission or the exclusion of the evidence (Grant, at para. 79). Relevant factors under this inquiry include the reliability of the evidence, the importance of the evidence to the prosecution’s case, and the seriousness of the offence at issue (Grant, at paras. 79-84; Harrison, at para. 33; Côté, at para. 47; Paterson, at paras. 51-52).
182As stated by the Court in Grant at para. 127:
… As a general rule, however, it can be ventured that where reliable evidence is discovered as a result of a good faith infringement that did not greatly undermine the accused’s protected interests, the trial judge may conclude that it should be admitted under s. 24(2). On the other hand, deliberate and egregious police conduct that severely impacted the accused’s protected interests may result in exclusion, notwithstanding that the evidence may be reliable.
183In R. v. Paterson, 2017 SCC 15, [2017] 1 SCR 202, the Court cautioned that the third inquiry must not overwhelm the others, particularly where the police misconduct is serious:
56It is therefore important not to allow the third Grant 2009 factor of society’s interest in adjudicating a case on its merits to trump all other considerations, particularly where (as here) the impugned conduct was serious and worked a substantial impact on the appellant’s Charter right. In this case, I find that the importance of ensuring that such conduct is not condoned by the court favours exclusion. As Doherty J.A. also said in McGuffie, at para. 83, “[t]he court can only adequately disassociate the justice system from the police misconduct and reinforce the community’s commitment to individual rights protected by the Charter by excluding the evidence... This unpalatable result is the direct product of the manner in which the police chose to conduct themselves.”
The Balancing
184As a final step, the court must balance the factors considered in the three lines of inquiry. In R. v. Le, 2019 SCC 34, the Court described the final balancing process:
141… While the first two lines of inquiry typically work in tandem in the sense that both pull towards exclusion of the evidence, they need not pull with identical degrees of force in order to compel exclusion. More particularly, it is not necessary that both of these first two lines of inquiry support exclusion in order for a court to determine that admission would bring the administration of justice into disrepute. Of course, the more serious the infringing conduct and the greater the impact on the Charter-protected interests, the stronger the case for exclusion (R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 62). But it is also possible that serious Charter-infringing conduct, even when coupled with a weak impact on the Charter-protected interest, will on its own support a finding that admission of tainted evidence would bring the administration of justice into disrepute. It is the sum, and not the average, of those first two lines of inquiry that determines the pull towards exclusion.
142The third line of inquiry, society’s interest in an adjudication of the case on its merits, typically pulls in the opposite direction — that is, towards a finding that admission would not bring the administration of justice into disrepute. While that pull is particularly strong where the evidence is reliable and critical to the Crown’s case (see R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 33-34), we emphasize that the third line of inquiry cannot turn into a rubber stamp where all evidence is deemed reliable and critical to the Crown’s case at this stage. The third line of inquiry becomes particularly important where one, but not both, of the first two inquiries pull towards the exclusion of the evidence. Where the first and second inquiries, taken together, make a strong case for exclusion, the third inquiry will seldom if ever tip the balance in favour of admissibility (Paterson, at para. 56). Conversely, if the first two inquiries together reveal weaker support for exclusion of the evidence, the third inquiry will most often confirm that the administration of justice would not be brought into disrepute by admitting the evidence.
Application of the Analytical Framework to the Cell Phone Obtained during the Callandar Road Search
185Evidence from the cell phone seized from the master bedroom at Callandar Road was clearly obtained in a manner that infringed Mr. Johnson-Phillips s. 8 Charter rights. The warrant was facially invalid and accordingly the search was functionally warrantless. Even if the warrant was valid, the seizure of the cell phone was not justified. Cell phones were not listed as items to be searched for in the warrant; the seizure could not be justified under s. 489(1); and the seizure could not be justified as a search incident to arrest. The connection between the breach and the evidence is not tenuous – there is a direct causal connection.
186I turn, then, to the Grant analysis:
- Seriousness of the Charter Infringing State Conduct
187The defence concedes that PC Finnie made a good faith effort to apply for a valid search warrant and that there were reasonable and probable grounds to grant the warrant to search for the items listed on Appendix A to the ITO. However, he did not finish the job. He did not respond to the email from the Justice of the Peace, and he did not make sure that the correct appendices were attached to the warrant. He should have known better. Nguyen was decided the year before. The result was a search without a valid warrant.
188Then we have the seizure of the accused’s cell phone, found inside a bag, and seized without judicial authorization. If the police wanted to seize cell phones, they should have included them in the list of items to be searched for.
189PC Hill said he thought the lack of cell phones on the warrant was an “oversight”. However, the list that had been attached to the ITO was circulated among the officers during the planning stage and at the rendezvous. Surely if it was an oversight, someone would have, or should have, caught it then. In that event, a further warrant could have been applied for to include cell phones.
190The conduct of police in seizing all of the cell phones in the residence is indicative of a “seek forgiveness later rather than permission in advance” attitude. It is difficult to see this as anything other than a deliberate breach of, or at least reckless disregard for, Charter rights.
191Counsel for the defence urge me to find a situation of systemic non-compliance with Charter rights on the part of the PRPS. Counsel points to the number of cases of Charter breaches coming from courts in Brampton. I am not prepared to make that finding here. In my view, there was insufficient evidence before me to find systemic misconduct.
192However, while there was an absence of systemic misconduct, it does not mitigate against the seriousness of the Charter‑infringing conduct. The court in R. v. McGuffie 2016 ONCA 365, at para. 67, explicitly disapproved of this type of reasoning. In that case, the court said:
Systemic or institutional abuse of constitutional rights may be an aggravating factor rendering police misconduct more serious. The absence of evidence of systemic non‑compliance with Charter requirements by the police is not a mitigating factor. The police are expected to comply with the law, especially the Charter.
193In my view, the police misconduct as a whole can be placed toward the serious end of the spectrum. The seizure of the cell phones without judicial authorization in the circumstances cannot be justified and the PRPS exhibited a reckless disregard for the Charter rights of the residents of 13 Callandar Road.
- Impact on the Accused’s Charter Protected Interests
194In R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, Fish J. said at paras. 2 and 3:
It is difficult to imagine a more intrusive invasion of privacy then the search of one’s home and personal computer.
First, police officers enter your home, take possession of your computer, and carry it off for examination in a place unknown and inaccessible to you. There, without supervision or constraint, they scour the entire contents of your hard drive: your emails sent and received; accompanying attachments; your personal notes and correspondence; your meetings and appointments; your medical and financial records; and all other saved documents that you have downloaded, copied, scanned, or created. The police scrutinize as well the electronic roadmap of your cybernetic peregrinations, where you have been and what you appear to have seen on the Internet — generally by design, but sometimes by accident.
195Here, there was no evidence that 13 Callandar Road was the home of Mr. Johnson-Phillips. There was, however, evidence that he was staying there at least overnight, by his identification found in the master bedroom.
196Here police did have a warrant to search the premises, albeit an invalid one. I must then consider the issue of discoverability. In R. v. Cote, 2011 SCC 46, at paras. 72-74, Cromwell J. held:
We come now to the effect of discoverability on the second branch of the Grant test — the impact on the Charter-protected interests of the accused. Section 8 of the Charter protects an individual’s reasonable expectation of privacy. That reasonable expectation of privacy must take account of the fact that searches may occur when a judicial officer is satisfied that there are reasonable and probable grounds and authorizes the search before it is carried out. If the search could not have occurred legally, it is considerably more intrusive of the individual’s reasonable expectation of privacy. On the other hand, the fact that the police could have demonstrated to a judicial officer that they had reasonable and probable grounds to believe that an offence had been committed and that there was evidence to be found at the place of the search will tend to lessen the impact of the illegal search on the accused’s privacy and dignity interests protected by the Charter.
This is not to say, however, that in such circumstances there is no infringement of an accused’s privacy interests. A reasonable expectation of privacy protected under s. 8 of the Charter includes not only that proper grounds exist but also the requirement of prior judicial authorization. Thus, the absence of a warrant when one was legally required constitutes an infringement of an accused’s privacy. The intrusiveness of such an unauthorized search will be assessed according to the level of privacy that could have reasonably been expected in the given set of circumstances. The greater the expectation of privacy, the more intrusive the unauthorized search will have been. The seriousness of the impact on the accused’s Charter-protected interests will not always mirror the seriousness of the breach, i.e. the Charter-infringing state conduct. For instance, where the police acted in good faith in obtaining a warrant that was found on review not to disclose reasonable and probable grounds to believe that a crime had been committed and that there was evidence to be found at the place of the search, the seriousness of the Charter-infringing state conduct is reduced but the impact of the search on the accused’s Charter-protected interests is greater because the search could not have occurred legally.
The lawful discoverability of evidence may thus be a relevant consideration when a court must determine whether to exclude evidence pursuant to s. 24(2) of the Charter. When relevant, courts should assess the effect of the discoverability of the evidence under the first and second Grant lines of inquiry in light of all of the circumstances.
197Police entered the residence without a valid warrant. There is no evidence that Mr. Johnson-Phillips looked at the warrant, or asked to see it; but if he had he would not have seen a judicially authorized list of items to be searched for. How then were he to know what items police were looking for and were authorized to seize? I find that the lack of a judicially authorized list of items to be searched for necessarily has an impact on the Charter protected interests of the accused. However, the impact is lessened by the discoverability issue. The police used the appendices attached to the ITO as the appendices to the warrant. If the enquiry of the Justice of the Peace had been responded to, and the same appendices attached, I have no doubt that the warrant would have issued with those appendices. Thus, the impact caused by the entry and search of the premises without a valid warrant is lessened.
198The same cannot be said of the cell phone seizure. It was never listed on the appendices to the ITO. In my view it cannot be said that, if it were listed, police would have been given authority to seize cell phones. The ITO set out the grounds to believe that the items listed in Appendix A would afford evidence of the offences. There were no such grounds listed for cell phones.
199In my view, the second line of inquiry pulls toward exclusion of the cell phone evidence.
- Society’s Interest in an Adjudication of the Charges on their Merits
200At para. 79 of Grant, the Supreme Court described the issue thusly:
Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society’s “collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law”: R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199, at pp. 1219-20. Thus, the Court suggested in Collins that a judge on a s. 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence.
201Would the truth-seeking function of the criminal trial process be better served by the admission or exclusion of the evidence?
202In R. v. Solano-Santana, 2022 ONSC 1952, Nieckarz J. said, at para 59:
In assessing the public interest in an adjudication of the case on the merits, the court is to consider the reliability of the evidence obtained in violation of the protected rights, the importance of that evidence and the seriousness of the offence with which an accused is charged: see R. v. Harrison, 2009 SCC 34, [2009] 2 SCR 494 at paras 68-69.
203The importance of the evidence is but one consideration as explained by the Supreme Court in Le at para. 158:
While we have observed that the third line of inquiry under Grant typically pulls towards inclusion of the evidence on the basis that its admission would not bring the administration of justice into disrepute, not all considerations will pull in this direction. While this inquiry is concerned with the societal interest in “an adjudication on the merits” (Grant, at para. 85), the focus, as we have already explained, must be upon the impact of state misconduct upon the reputation of the administration of justice. While disrepute may result from the exclusion of relevant and reliable evidence (Grant, at para. 81), so too might it result from admitting evidence that deprives the accused of a fair hearing or that amounts to “judicial condonation of unacceptable conduct by the investigatory and prosecutorial agencies” (Collins, at p. 281). An “adjudication on the merits”, in a rule of law state, presupposes an adjudication grounded in legality and respect for longstanding constitutional norms.
204Here, Mr. Johnson-Phillips is charged with homicide, one of the most serious offences set out in the Criminal Code.
205The value of the evidence from the black iPhone found in the master bedroom to the Crown’s case is limited. There are two pieces of evidence the Crown seeks to use from this phone: (i) A photo of the accused holding one of the two firearms used in the shooting of Mr. Pantlitz-Solomon; and (ii) A video of a memorial for Mr. Pantlitz-Solomon sent by Ms. Wynter to Mr. Johnson-Phillips. These are important pieces of evidence the Crown seeks to admit in a complicated case, much of which appears to be based on circumstantial evidence. The Crown described the evidence as a piece of the puzzle for the jury to use. However, the Crown fairly conceded that the absence of this evidence will not gut its case.
206I find that the third line of inquiry pulls in favour of admission, given the serious nature of the charge against Mr. Johnson-Phillips.
The Balancing Exercise
207The first line of inquiry pulls strongly toward exclusion of the evidence. The seizure of the cell phone under these circumstances cannot be justified. The conduct of police was akin to a fishing expedition; it displayed an attitude of seizing the cell phones to see if there was evidence of any crime on them; it displayed an attitude of seeking forgiveness after the fact as opposed to permission beforehand. In my view the Court ought to disassociate itself from such conduct.
208The second line of inquiry pulls strongly toward exclusion of the evidence. A cell phone is an extremely personal item, akin to a personal laptop or computer. It was taken from a bedroom inside a bag. Mr. Johnson-Phillips has a high privacy interest in his cell phone. It cannot be said that judicial authorization for the seizure of the phone would have been granted had it been requested.
209The third line of inquiry pulls toward admission, but not strongly so. The seriousness of the offence and the reliability of the evidence pulls toward admission but the risk of judicial condonation of the conduct of police in this case lessens the strength of the pull.
210On balance, I find that the pull towards exclusion outweighs the pull towards admission and, accordingly, the evidence must be excluded
Application of the Analytical Framework to the cell phones found in and beside the Nissan Altima
[211] I have concluded that the lack of a timely return to justice and the continued detention of the cell phones for longer than three months without judicial authorization breached the s. 8 Charter rights of the accused. The two accused both seek to exclude the evidence from the cell phones from the trial. In my view the test of whether the evidence was obtained in a manner that breached Charter rights has been satisfied. The continued detention of the cell phones, and extraction of data from the phones, without timely judicial oversight was a direct causal connection with the evidence itself. I turn then to the Grant analysis
- Seriousness of the Charter Infringing State Conduct
212A seizure of an item requires a return of the thing seized to a Justice of the Peace “as soon as is practicable”. That didn’t happen in this case. The cell phones were seized in August of 2018 and a return or report to a justice was not done until February 12, 2021, approximately two and a half years after the seizure.
213The purpose of the reporting requirement is to ensure judicial supervision over the detention of items seized, both with and without a warrant. It is an important step that make police publicly accountable for seizures of property. Where the seizure is made without a warrant, the importance of the reporting requirement is enhanced as there is no public record of the seizure until the report is filed. Here there was a warrant and a resulting public record. Nonetheless, the failure to report resulted in the cell phones being in police custody, and subject to search and extraction of data, without any judicial oversight for two and a half years.
214I accept PC Poffley’s evidence in its entirety. As soon as he discovered that PC Paiement had not completed the required return he did so. However, that begs the question – how was it missed in the first place? If the report is to be completed by the affiant of the ITO then there ought to be some tickler or reminder system in place to ensure the task is completed. Moreover, there ought to be some obligation on the officer in charge, in this case PC Poffley, to make sure that the task was completed. There can be no excuse for a failure to file a report mandated by the Criminal Code for two and half years.
215The Criminal Code provisions requiring the report are there for an important reason, namely, to ensure judicial oversight and public accountability whenever police take property items from members of the public. The provisions should not be regarded by police as a bureaucratic paperwork exercise.
216The accused seek a finding that there is a systemic problem in PRPS, not just with failing to file reports to a justice, but in respect of Charter rights generally. I am not prepared to make that finding. I consider that the search was authorized by a warrant. Before the phones were seized, a justice had already balanced the privacy interest of the user of the phones against the interest of the state in investigating the Edwards shooting. I consider that, when a warrant was issued with a Branton error, the forensics department refused to proceed with a search of the phones without a new, proper warrant. I consider that, when PC Poffley discovered that a report to a justice had not been completed, he prepared one and answered questions posed by the justice. These actions are not indicative of a cavalier attitude towards charter rights.
217I am, however, troubled by the failure of the PRPS to implement a check system to ensure compliance with the reporting requirements. There are important policy reasons for filing reports such that police forces ought to have a system in place to ensure the task is completed “as soon as is practicable” in compliance with the statutory regime.
218I find no bad faith on the part of PRPS, and in particular on the part of PC Paiement and PC Poffley, but, given the apparent lack of a check system to ensure compliance with the reporting requirements, I would put the seriousness of the infringing state conduct in the middle of the spectrum.
- Impact on the Accused’s Charter Protected Interests
219This factor calls for an evaluation of the extent to which the breaches actually undermined the interests protected by the rights infringed. I must consider the impact on both accused’s Charter protected interests as a result of the failure to file a timely report to justice and a failure to obtain detention orders. Those failures resulted in a lack of judicial oversight for two and a half years. However, if the PRPS had filed the necessary report, the Justice of the Peace would inevitably have approved the retention of the cell phones to further the investigation into the Jerome Edwards shooting. The cell phone data would then inevitably have been available to the WPS pursuant to their production orders.
220I accept that the accused had a high expectation of privacy in the contents of the cell phones. However, I also consider that the PRPS did not know the owners and users of the cell phones until they were able to access the data on them. The accused were therefor not deprived of the use of the phones as a result of police misconduct until those phones were unlocked (July of 2019 for the black iPhone). Moreover, there was no evidence that the accused made efforts to enquire as to the detention or disposition of the cell phones.
221In my view the impact on the accused is negligible.
- Society’s Interest in an Adjudication of the Charges on their Merits
222At this stage of the analysis, I consider the impact of the evidence on the Crown’s case. I am told that the evidence on the black iPhone in particular is critical to the Crown’s case; that without it there would be no case against Ms. Wynter and the Crown would have to seriously consider whether there was a reasonable possibility of conviction of Mr. Johnson-Phillips.
223As regards the seriousness of the charges and society's interests in adjudication of the case on its merits, this factor must not overwhelm other factors relevant to the s. 24(2) analysis. The court must be vigilant in maintaining respect for Charter rights and ensuring that Charter protections apply to everyone, including persons charged with serious criminal offences: R. v. McGuffie, 2016 ONCA 365 (Ont. C.A.), at para. 74 and R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202 (S.C.C.), at para 55.
224I am mindful of the approach to the consideration of this issue set out in para. 73 of McGuffie:
[t]he seriousness of the offences charged "does not speak for or against exclusion of the evidence, but rather can "cut both ways": Grant, at para. 84. On the one hand, if the evidence at stake is reliable and important to the Crown's case, the seriousness of the charge can be said to enhance society's interests in adjudication on the merits. On the other hand, society's concerns that police misconduct not appear to be condoned by the courts, and that individual rights be taken seriously, come to the forefront when the consequences to those whose rights have been infringed are particularly serious: see Grant, at para. 84; R. v. Dhillon, [2010] O.J. No. 3749, 2010 ONCA 582, [2010] O.J. No. 3749, 2010 ONCA 582, 260 C.C.C. (3d) 53260 C.C.C. (3d) 53, at para. 60.
225Very serious offences are alleged in this case. The accused are charged with first degree murder, one of the most serious offences in the Criminal Code. While the police made serious errors in this case in failing to comply with the reporting requirements detailed in the Criminal Code, I would not characterize those errors as rising to the level of misconduct from which the court must disassociate itself.
226In my view this factor pulls toward inclusion of the cell phone evidence.
The Balancing Exercise
227The first line of inquiry pulls toward exclusion of the evidence with moderate strength. Although I am troubled by the lack of a check system in place for compliance with legislated reporting requirements, I do not find systemic and/or wilful noncompliance with the requirements. I cannot find any bad faith conduct on the part of the police when I consider their conduct in these events.
228The second line of inquiry pulls toward admission given the negligible impact on the accused of the lack of compliance with reporting requirements.
229The third line of inquiry pulls strongly towards admission. The seriousness of the offence and the importance of the evidence to the Crown’s case, coupled with the absence of a need on the part of the court to disassociate itself from the police conduct, result in a strong pull.
230On balance, I find that the pull towards admission outweighs the pull towards exclusion and accordingly I decline to exclude the evidence.
Disposition
231The evidence of the picture and video found on the cell phone that was seized from the master bedroom during the search of 13 Callandar Road shall be excluded.
232The application of the defence to exclude the data from the black iPhone found in the grass outside of the Nissan Altima and the silver iPhone #1 found inside the Altima is dismissed.
Pamela L. Hebner
Justice
Released: March 28, 2023
COURT FILE NO.: CR-21-5249
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Kahli Johnson-Phillips and Shanice Wynter
RULING ON PRE-TRIAL APPLICATIONS
CALLANDAR ROAD s. 8 APPLICATION
and NISSAN ALTIMA s. 8 APPLICATIONS
Hebner J.
Released: March 28, 2023