His Majesty the King v. Justice Snache

COURT FILE NO.: CR-22-14

DATE: 20230414

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

JUSTICE SNACHE

Defendant

COUNSEL:

Michelle Levasseur and Miriam Villamil-Pallister for the Crown

Jay Herbert and Ryan Stiles for the Defendant

HEARD: March 13-16, 20-23, and 27-28, 2023.

WARNING

An order has been made under s. 486.4 of the Criminal Code restricting publication of any information that could identify a complaint/witness identified only as “s.b.” in this proceeding.

rulings on pre-trial applications

c. boswell j.

[1] Derek Simmerson was stabbed to death on November 19, 2020 as he walked along Coldwater Road in Orillia, Ontario. Three days later, Justice Snache turned himself in to the police and confessed to the killing. He was charged with first degree murder. Following a preliminary inquiry, he was committed to trial on the charge of second degree murder.

[2] With the consent of the Attorney General, Mr. Snache re-elected to have his trial heard by a judge sitting without a jury. The trial is scheduled to commence on April 17, 2023.

[3] A number of applications were heard in advance of the trial. They include:

(a) An application by the Crown to admit the statement given by Mr. Snache to the police on November 22, 2020 as voluntary;

(b) An application by Mr. Snache to stay the proceedings as a remedy for an unlawful strip search, or alternatively to exclude his statement to the police;

(c) An application by Mr. Snache to set aside warrants authorizing the search of Mr. Snache’s residence and cell phone and to obtain a sample of his DNA and to exclude any items seized by the police as a result of the execution of the warrants;

(d) An application by Mr. Snache to exclude GPS location evidence extracted from his cell phone; and,

(e) An application by Mr. Snache to adduce evidence of a third party suspect.

[4] The third party suspect application has been deferred until later in the trial. This ruling will otherwise address the balance of the applications together. I will begin with an overview of the circumstances underlying the alleged offence and the investigation that followed.

I. OVERVIEW OF THE FACTS AND CIRCUMSTANCES

The Death of Mr. Simmerson

[5] The narrative begins at about 8:22 p.m. on November 19, 2020. Officers of the Orillia detachment of the Ontario Provincial Police were dispatched to the intersection of Coldwater Road and Emily Street in Orillia as a result of a number of calls to 911. Upon arrival they found an injured and bleeding male lying on the road.

[6] Witnesses advised that the injured male – later identified as Derek Simmerson – had been seen running eastbound on Coldwater Road yelling for help. Mr. Simmerson was transported to the local Orillia hospital where he was pronounced dead. A pathologist who conducted a post-mortem examination has opined that death was caused by stab wounds to the torso that pierced Mr. Simmerson’s heart and liver.

The Initial Focus of the Investigation

[7] A witness advised the police that prior to the calls to 911, she had observed a male and female walking eastbound together on Coldwater Road. They were involved in a heated argument.

[8] Just prior to his death, Mr. Simmerson had been the subject of a brief police investigation into an allegation of sexual assault made by his former girlfriend, S.B. The police concluded that there was insufficient evidence to proceed with a charge against Mr. Simmerson. They advised S.B. of their decision two days before he was attacked.

[9] It is fair to say that, in the very early going at least, S.B. was a person of interest in the investigation into Mr. Simmerson’s death. She has a reputation for being somewhat volatile. Indeed, she appears to have been somewhat belligerent with the officer who spoke to her about her allegation of sexual assault. Given the outcome of the police investigation into that allegation, she may have had a motive to seek “street justice” against Mr. Simmerson.

The Bloody Knife

[10] Mr. Snache was similarly a person of interest to the police very early on in the investigation. He came to their attention when a taxicab driver delivered a bloodied knife to the police station, reporting that it had been left in the back seat of his vehicle.

[11] The cab driver advised the police that he picked up a fare at Tim Horton’s in downtown Orillia at about 10:32 p.m. on November 19, 2020 and delivered him to 3430 Bayou Drive in Severn Township at about 10:44 p.m. The fare left the knife, along with a receipt from the Common Stove Restaurant, in the back seat when he exited the vehicle.

[12] In November 2020, Mr. Snache was living with his mother and stepfather at 3430 Bayou Drive. The cab driver’s description of the passenger who left the knife behind was consistent with Mr. Snache.

[13] A security camera recording from the Common Stove Restaurant captured a single male entering the restaurant at about 8:30 p.m. on November 19, 2020. The male matches Mr. Snache’s description. The Common Stove Restaurant is located in downtown Orillia, not far from the area where Mr. Simmerson collapsed at roughly 8:22 p.m.

[14] I will add here that the bloody knife was submitted, in due course, to the Centre of Forensic Sciences for DNA analysis. It was concluded that Mr. Simmerson could not be excluded as the source of the blood on the blade of the knife. The handle of the knife contained a mixture of DNA from three people, one of whom was Mr. Simmerson. At least one of the other two sources of DNA on the handle was male. A subsequent DNA analysis conducted after the police had obtained a sample of Mr. Snache’s DNA concluded that Mr. Snache could not be ruled out as the source of the male DNA profile obtained from the handle of the knife.

Mr. Snache Turns Himself In

[15] Shortly before 11:00 a.m. on November 22, 2020, a lone male walked into a gas bar on the northbound side of Highway 11 in Severn Township, just north of Orillia. He approached the cashier and asked her to contact the police for him. He did not say why. He then went outside and waited for the police to arrive.

[16] At roughly 11:07 a.m., OPP Constable Jason McIsaac pulled his marked Chevrolet Tahoe into the parking area of the gas station. He was accompanied that day by an auxiliary officer named Anderson Reid. The two officers exited the police vehicle and the male calmly approached them. PC McIsaac instructed the male to take a step back and to remove his hands from his pockets. He complied. PC McIsaac then asked a generic question to the effect of, “How can we help you today?”

[17] The lone male was Justice Snache. PC McIsaac testified that his answer was: “I want to confess to a murder.” Officer Reid[^1] testified that it was “I would like to confess to a murder”. Either way, his intent was clear.

[18] PC McIsaac immediately cautioned Mr. Snache that these were very serious allegations, that he didn’t need to say anything and that anything he did say “could be used against him”. He then asked what murder Mr. Snache was talking about. Mr. Snache responded that it was a murder at Emily Street and Colborne Street.

[19] PC McIsaac was aware that a man had been stabbed to death at Emily Street and Coldwater Road three days earlier. He arrested Mr. Snache for that offence.

[20] Mr. Snache was lodged in the back seat of the Tahoe after a brief pat-down search during which a cell phone, a pack of cigarettes and a wallet were seized. He was advised of his right to counsel and cautioned by PC McIsaac. Mr. Snache said he understood the caution and indicated that he did not wish to speak to counsel.

[21] PC McIsaac called a superior officer for further instructions. In response, Detective Constable Kevin Rempel was dispatched to the scene. He arrived at roughly 11:20 a.m. He entered the passenger side of the Tahoe and drove with PC Isaac and Mr. Snache to the Orillia detachment of the OPP, located about 10 minutes away. Auxiliary Officer Reid followed in DC Rempel’s car.

[22] During the drive to the detachment, DC Rempel made small talk with Mr. Snache in an effort to begin building a rapport with him. He also confirmed that Mr. Snache knew he was under arrest for first degree murder, advised him of his right to free duty counsel advice and confirmed that PC McIsaac had not asked him any investigatory questions.

The Processing of Mr. Snache

[23] When they reached the detachment, DC Rempel directed Mr. Snache into a small interview room. He advised Mr. Snache that everything at the police station was audio and video recorded. That was not entirely true, but certainly the interview room had audio and video recording. He encouraged Mr. Snache to take the opportunity to speak to counsel.

[24] PC McIsaac again advised Mr. Snache that he was charged with first degree murder and again advised him of his right to counsel. Mr. Snache said he did not wish to speak to counsel. PC McIsaac then took a few minutes to fill out a Prisoner Custody Report (“PCR”). The PCR contains information regarding the name, address and date of birth of the prisoner, emergency contact information, details of any medications being taken, and property information.

[25] DC Rempel asked Mr. Snache if he had eaten breakfast yet. He had not, so DC Rempel took his breakfast order: an egg sandwich and coffee. As he left to place that order, he told Mr. Snache that he would be back to collect some of his personal property and also that he had placed a call to duty counsel on Mr. Snache’s behalf, despite Mr. Snache’s indication that he did not wish to speak to counsel.

[26] Upon his return to the interview room, DC Rempel advised Mr. Snache that they were going to take “some of his shoes and all that stuff”. The OPP policy is to permit a detainee to wear only one layer of clothing, largely to mitigate the risk of self-harm. Mr. Snache was wearing a tank top, a t-shirt and a hoodie. DC Rempel seized the tank-top and hoodie as well as Mr. Snache’s shoes and his belt. In the course of doing so, DC Rempel did a further pat down search of Mr. Snache and checked the contents of his pockets. Just as that process was finishing, duty counsel called back, so DC Rempel arranged for Mr. Snache to speak to counsel. The time was now 11:59 a.m.

[27] By 12:09 p.m. DC Rempel and Mr. Snache were back in the interview room together. Mr. Snache confirmed that he had spoken with duty counsel and that he understood the content of the conversation. DC Rempel then advised him that another officer would be coming by to collect more evidence. He asked if the pants Mr. Snache was wearing were the ones he had on the night of the alleged offence. Mr. Snache said they were and so DC Rempel told him they were going to take those pants and get him some others to put on.

[28] At 12:24 Mr. Snache’s breakfast arrived. He did not eat it.

[29] At 12:47 p.m. two new officers entered the interview room: Identification Officer Janice Harris, assisted by DC Dale Hatfield.

[30] Officer Harris advised Mr. Snache that she was going to take some photographs of him and that they were going to trade some clothes with him. In her testimony on the voir dire she referred to this as “forensic processing”. She intended to seize his shirt, pants and socks for their potential evidentiary value. And she intended to take photographs of him, including both his upper and lower body to document any injuries, or lack of injuries.

[31] The processing took place right in the interview room. The interview room was roughly 10 feet by 7 feet in size. It had a single entry door, which was windowless and which opened into the room. It also had a small alcove in one corner of the room. When the door was opened it tended to block the alcove.

[32] The interview room was audio and video recorded. The video recording was taken by two separate cameras, which gave different perspectives on the room. One camera focused on the chair where detainees sit. The other was mounted higher up and gave a bird’s eye view of the whole room. The audio and video feed was transmitted to what has alternatively been called a monitoring room and a scribe room. It was a small room in which another officer monitored the activity in the interview room and made notes of anything significant.

[33] In any event, DC Hatfield had with him a fresh t-shirt and a change of pants for Mr. Shire. He offered him a choice of jeans or sweatpants. Mr. Snache chose the latter. The processing then began.

[34] Officer Harris first photographed Mr. Snache from the front, back and sides, fully clothed. She then photographed his hands, both the tops and the palms. She then had him remove his shirt, which was bagged. She took photographs of his shirtless upper body both front and back, as well as his arms. At one point as he was shirtless, DC Hatfield opened the door in response to a knock. A third officer passed him a flashlight that Officer Harris had requested.

[35] When the upper body photographs were finished, Mr. Snache was provided with the fresh t-shirt to put on. He had been shirtless for 3 minutes and 50 seconds.

[36] Next, Officer Harris confirmed that she wanted Mr. Snache’s pants. And she confirmed he had underwear on. She pointed out to Mr. Snache that there was a video camera in the room and she directed him to stand in the small alcove so that he could take his pants off without being captured by that video camera. She was not aware there was a second, birds-eye-view camera that captured the whole room. DC Hartfield was aware of the second camera but said nothing about it. He testified on the voir dire that he thought Officer Harris was taking steps to protect Mr. Snache’s privacy.

[37] Mr. Snache removed his pants and they were bagged. He stood in the alcove as instructed. Officer Harris photographed Mr. Snache’s legs, front and back as well as his feet.

[38] In the meantime, while Mr. Snache was standing pantless, DC Hartfield opened the door and exited, apparently to remove the string tie from the sweatpants he was going to provide Mr. Snache. He left the door slightly ajar. He returned 40 seconds later, again opening the door while Mr. Snache was pantless.

[39] Mr. Snache was pantless for 2 minutes and 37 seconds.

The Utterance About Cracked Ribs

[40] When Officer Harris had completed her processing tasks, she asked Mr. Snache if he had any injuries that he wished her to photograph. He replied, “I think I’ve got a few cracked ribs here”. He lifted his shirt and Officer Harris took a photograph of an area of his left ribcage that appeared to her to be a “little, tiny bit red.”

[41] There was no follow up made with respect to the cracked ribs comment. Mr. Snache did not ask for medical attention and the police did not offer it, nor make any further inquiries about his ribs. No notation was made about the possible cracked ribs in the PCR.

The Confession

[42] When Officer Harris finished with Mr. Snache, she and DC Hatfield left the interview room. On his way out, DC Hatfield instructed Mr. Snache to wave at the cameras if he needed anything and someone would come and help him out. A short time later, he did so. DC Hatfield promptly returned to the interview room and facilitated a request by Mr. Snache to use the washroom.

[43] Moments after Mr. Snache returned to the interview room from the washroom he was joined by DC Rempel. DC Rempel asked if the other officers had treated him okay. He responded, “Of course”. He confirmed to DC Rempel that the other officers had not made any threats, promises or inducements to him.

[44] DC Rempel thanked Mr. Snache for turning himself in. Then he asked what made Mr. Snache go to the Husky to summon the police. He answered:

I don’t know I was just kinda - - I don’t know, like, I killed someone so I was, like, well – like I didn’t get in trouble for it. It was, like, all right so I guess I’ll just call the cops or something.

[45] He went on to add that he “felt guilty about it.”

[46] The conversation continued:

DC REMPEL: …What happened Thursday night?

JUSTICE SNACHE: So, I think I got off work and then I went to go have a beer, had a few, got some dinner, and was like, all right. Went to go buy some stuff from a grocery store or something or I went to another bar.

DC REMPEL: Yeah.

JUSTICE SNACHE: So, I did that, and then I guess I just had this knife on me. I didn’t even know I had it and then, I guess, I just ended up killing a guy.

[47] DC Rempel stopped to determine that Mr. Snache worked at Food Basics. He asked where Mr. Snache went after work, to which Mr. Snache responded:

After that, I just made my way up to Zehrs and then – well, up by there, I just went down there, made it to the hill, killed the guy, and then I just went over to – I don’t even remember the bar but it’s on, like, the main streets there.

[48] Again, the conversation continued:

JUSTICE SNACHE: Actually, I think I stopped at Tim Horton’s, I just passed by Zehrs. But I was at State & Main a little bit earlier than that.

DC REMPEL: How long do you think you were there for?

JUSTICE SNACHE: I’m not really sure but I ended up reading about it in the news and I guess it happened around eight.

DC REMPEL: …did you walk then until you met this guy or did you take a bus?

JUSTICE SNACHE: I just walked.

DC REMPEL: How did you cross paths with this guy?

JUSTICE SNACHE: We were just walking on the same sidewalk and…

DC REMPEL: And, the biggest question, do you know this dude?

JUSTICE SNACHE: No idea.

DC REMPEL: You have no idea who this guy is?

JUSTICE SNACHE: No clue.

DC REMPEL: What happened then? There has to be some sort of interaction?

JUSTICE SNACHE: I don’t know. I don’t really have nothing for you, if I’m honest.

DC REMPEL: You mean you’re just not sure?

JUSTICE SNACHE: Just not really sure. I was kinda drunk that night too, so…

DC REMPEL: …so do you say anything to him or does he say something to you?

JUSTICE SNACHE: I’m honestly not that sure.

DC REMPEL: You have no idea?

JUSTICE SNACHE: No idea. Just remember, like, going by Zehrs….

DC REMPEL: Yeah.

JUSTICE SNACHE: …walking down the road, kinda blacking out a bit…

DC REMPEL: Yeah.

JUSTICE SNACHE: …and then – yeah.

DC REMPEL: Where, where did this happen?

JUSTICE SNACHE: Like, right by Emily Street, like I was going downhill, he was going uphill.

[49] Mr. Snache went on to describe having a knife in his pocket. He said when he woke up the next morning it was gone. It was, he said, a “one-sided steel knife”, with a four to six inch long blade. DC Remple asked him what he did with the knife:

JUSTICE SNACHE: I don’t know, I guess something happened and just ended up stabbing him.

DC REMPEL: And do you remember stabbing him then?

JUSTICE SNACHE: A little bit. A little bit.

DC REMPEL: Walk me through that then.

JUSTICE SNACHE: I don’t know, I can’t even fully piece it together, but I know I killed that guy.

DC REMPEL: And why do you know it’s, why do you know it’s that guy that you killed, the one in the news?

JUSTICE SNACHE: I’m fairly certain, like, I had blood on my other shoes and stuff like that.

[50] Mr. Snache went on to describe the shoes he was wearing – brown Timberlands – which he said were in his room at his mom’s house. The police would later seize the boots and determine that they did not have blood on them.

[51] As the interview continued, DC Rempel asked Mr. Snache for more details about how he killed Mr. Simmerson:

JUSTICE SNACHE: Honestly, I think I just stabbed him.

DC REMPEL: Do you know where you stabbed him?

JUSTICE SNACHE: I’m guessing in the stomach. I’m pretty sure it was the stomach actually.

DC REMPEL: Do you recall how many times?

JUSTICE SNACHE: Once or twice.

DC REMPEL: …So, you stab him and then what happens to him?

JUSTICE SNACHE: I think I stabbed him, pulled out the knife, he ran a little bit, and then I ended up stabbing him again.

DC REMPEL: You stabbed him again?

JUSTICE SNACHE: Yeah, and then I guess he ended up dropping in the middle of the street and then a truck just pulled up and called the ambulance.

DC REMPEL: So, truck pulls up, calls the ambulance, and you’re watching this guy interact with him on the ground?

JUSTICE SNACHE: I kinda looked over, saw him, and was, like, “All right, well…”

DC REMPEL: So, what did you do next?

JUSTICE SNACHE: What’d I do next? I just kinda went about my night, went to a bar, like, I’ve got the receipts and everything. I just don’t have the knife anymore.

[52] Mr. Snache described, in some detail, what the balance of his night entailed. He said he walked down to a bar where he thinks he ordered an appetizer. After some further discussion he identified the bar as the Common Stove. He was not sure how long he stayed there. He said he then took a taxicab van home.

[53] DC Rempel asked whether he would be surprised to know that the police spoke to a taxicab van driver who found a bloody knife in the back and asked if he thought that might be Mr. Snache’s knife. Mr. Snache replied, “I’m fairly certain that’s it.”

[54] As the interview was winding down, DC Rempel asked Mr. Snache how it made him feel to have told DC Rempel what happened. He said, “I mean, I feel a little better getting it off my chest, to be honest.” When asked why he decided to talk to DC Rempel, he said, “Like I said, just felt guilty and it’s murder, like, that’s wrong, right?”

The Search Warrants

[55] The day following the killing, the police obtained a warrant to search Mr. Simmerson’s residence and his phone. The warrant application was supported by the sworn Information to Obtain (“ITO”) of DC John Leiper. The ITO set out the limited information the police had about the offence to that point. Notably, DC Leiper included the following information at paragraphs 16-17 of the ITO:

16. Police canvassed the area for witnesses and determined that prior to Derek Simmerson being located, a male and female were involved in a heated verbal dispute a short distance away.

17. A Niche report advised that Derek Simmerson had recently been accused of sexual assault by an ex-girlfriend. The incident was reported to police on September 30, 2020. Police investigated and determined there were (sic) insufficient evidence to proceed with criminal charges. The complainant was advised of the outcome of the investigation on November 17, 2020.

[56] At paragraph 25 of the ITO, DC Leiper set out a list of persons involved in the investigation. One of them was S.B.

[57] DC Leiper swore three further ITOs in support of warrant applications on November 23, 2020, December 2, 2020 and October 27, 2021.

[58] The November 23, 2020 warrant application sought judicial authorization to conduct a search of Mr. Snache’s residence. The police were searching, in particular, for a pair of brown Timberland boots, a black knapsack that Mr. Snache had with him on the night of November 19, 2020 and a red hoodie that he was wearing on that same night. The warrant was authorized on November 23, 2020 and, I understand, executed on the same date. While no blood was found on the Timberland boots, a biologist from the CFS did locate a spot of blood on the red hoodie seized from Mr. Snache’s residence. Mr. Simmerson could not be excluded as the source of that blood.

[59] The December 2, 2020 warrant application sought judicial authorization to search Mr. Snache’s cell phone. The warrant was granted and an extraction of the phone was completed by Special Constable Dave Rate on January 14, 2021.

[60] The October 27, 2021 warrant application was for authorization to obtain a sample of Mr. Snache’s DNA. This warrant was also granted.

[61] Notably, the ITOs filed in support of the latter three warrants no longer included any information about the argument heard between a male and female on Coldwater Road just before Mr. Simmerson was attacked nor any reference to the sexual assault allegation of S.B. Moreover, S.B. was no longer included in the list of persons involved in the case.

GPS Tracking

[62] Special Constable Dave Rate testified about his examination of Mr. Snache’s cell phone. He said he used software known as “Graykey” to extract a digital copy of the contents of the phone, which was an iPhone XR. He then used Cellebrite software to examine those parts of the phone authorized by warrant to be searched.

[63] Of particular interest to the investigation was any Global Positioning System (“GPS”) data on the phone.

[64] When the location services function of an iPhone XR is turned on – as it was in this case – the phone regularly communicates with GPS satellites for the purpose of calculating its location through a process known as trilateration. The phone saves the GPS data downloaded to the phone in a “locations” file.

[65] SC Rate was able to access Mr. Snache’s locations file and obtain GPS location data for the phone for the antemortem, perimortem and post-mortem periods relative to the death of Mr. Simmerson.

[66] Mr. Simmerson was stabbed at or near the intersection of Coldwater Road and Emily Street. A man named Lou Pasubio witnessed Mr. Simmerson crossing the road at Emily St. He staggered and collapsed. Mr. Pasubio called 911 at 8:21:01 p.m. requesting assistance for Mr. Simmerson.

[67] GPS data recorded at 8:16:06 p.m. on November 19, 2020 places Mr. Snache’s phone on Coldwater Road, roughly 250m west of Emily Street. The GPS data includes an indication of precision. In this instance, the location was indicated to be accurate to within a 24.73m radius.

[68] At 8:19:01 p.m., GPS data locates Mr. Snache’s phone to an area just south of Coldwater Road and just west of Emily Street, accurate to within a radius of 41.20m. That radius includes the intersection of Coldwater Road and Emily Street.

[69] At 8:20:47 p.m., GPS data locates the phone on Coldwater Road, roughly 250m east of Emily Street, accurate to within a radius of 32.83m.

[70] The Common Stove Restaurant is located 27 Mississaga St. West in Orillia. At 8:29:34 p.m., GPS data from Mr. Snache’s phone locates it within about 25m of that restaurant, accurate to within a radius of 25.65m.

[71] As I noted above Mr. Snache was residing at 3430 Bayou Drive, Orillia in November 2020. At 11:00:24 p.m. on November 19, 2020, GPS data locates Mr. Snache’s phone on Bayou Rd., roughly 35m from #3430, accurate to within a radius of 65m.

[72] Crown and defence agreed, for the purpose of the motion regarding the admissibility of GPS evidence, to the following:

(a) Mr. Snache was captured on video surveillance at the State & Main Restaurant, located at 3281 Monarch Drive, Orillia between 5:39 p.m. and 7:51 p.m on November 19, 2020;

(b) He attended the Common Stove Restaurant between 8:30 p.m. and 9:10 p.m.;

(c) He then attended at Kensington’s Bar at 85 Mississaga St. E., Orillia, departing before 10:00 p.m.; and,

(d) He then attended a Tim Horton’s on Colborne Street at 10:01 p.m. and was picked up by a taxi at approximately 10:32 p.m. He was transported by taxi to 3430 Bayou Road and dropped off at approximately 10:44 p.m.

[73] Dozens of GPS location points put Mr. Snache’s phone in the vicinity of the State & Main Restaurant in the period prior to 7:51 p.m.

[74] As I noted a moment ago, GPS data put Mr. Snache’s phone within close proximity to the Common Stove Restaurant at roughly 8:30 p.m.

[75] Multiple GPS location points put Mr. Snache’s phone within close proximity to Kensington’s Bar in the time period between about 9:11 p.m and 9:38 p.m.

[76] Multiple GPS location points put Mr. Snache’s phone within close proximity to the Tim Horton’s at 25 Colborne Street East between 9:59 and 10:30 p.m.

II. THE ISSUES

A. THE STATEMENT

[77] Mr. Snache’s confession is a powerful piece of evidence in the Crown’s case against him. But it is not admissible unless and until the Crown satisfies the court, to the reasonable doubt standard, that the statement was given voluntarily. The Crown accordingly applies for a ruling that the statement was made voluntarily and is admissible in evidence.

[78] When I use the term “statement” in relation to Mr. Snache, I am including both his initial utterances at the Husky gas station and his subsequent videorecorded interview with DC Rempel.

[79] Defence counsel submits that the circumstances that surrounded the taking of the statement give rise to a reasonable doubt about its voluntariness. At the same time, the defence has pursued an application for a ruling that the police violated Mr. Snache’s rights under ss. 7 and 8 of the Charter in the period immediately preceding the videorecorded statement. Defence counsel submits that the Charter violations are serious enough to a warrant a stay of proceedings, or, at the least, an order excluding the statement from evidence.

[80] The applications overlap. Even if the court does not agree that a stay is warranted, or that the statement should be excluded, the alleged Charter breaches factor into the assessment of voluntariness. Defence counsel contends that they contributed to an atmosphere of oppression that undermined the voluntariness of the confession.

[81] The positions of the parties raise the following issues for determination in relation to the statement:

(i) Did Mr. Snache require medical attention? If so, did a failure to obtain that medical attention breach his rights under s. 7 of the Charter?

(ii) Was Mr. Snache subjected to a strip search and, if so, was the search constitutionally compliant?

(iii) If the court concludes that one or more of Mr. Snache’s Charter-protected rights were breached, is a stay of proceedings an appropriate remedy?

(iv) Was Mr. Snache’s statement made voluntarily?

(v) If the statement was voluntary should it nevertheless be excluded as a result of one or more Charter breaches?

[82] I will consider these issues in turn. I note that defence counsel raised an issue with respect to the application of s. 11(d) of the Charter in his factum filed in respect of the statement voir dire. He elected not to pursue that issue in oral argument and, accordingly, I will not address it.

A.(i) Did Mr. Snache require medical attention?

[83] Section 7 of the Charter provides that everyone has the right to life, liberty and security of the person and not to be deprived thereof except in accordance with the principles of fundamental justice.

[84] Mr. Snache submits that when the state has total control over a detainee they are constitutionally obliged to care for that person’s health and welfare. This obligation extends to obtaining medical attention for a detainee who reasonably requires it. He says that when he told the police that he had “a few cracked ribs” the duty of the police to obtain medical assistance for him was triggered. Their failure to obtain such assistance, he says, breached the security of the person component of his s. 7 right.

[85] There is certainly authority in support of Mr. Snache’s position, in theory. See for instance, R. v. Fontaine, 2021 ONCJ at paras. 160-174; R. v Ugbaja, 2019 ONSC 96 at paras. 39-42; and R. v. O’Shea, 2018 ONCJ 431 at para. 30.

[86] I accept that s. 7 of the Charter imposes upon the state a positive duty to obtain medical attention for detainees in certain circumstances. It is unnecessary for me to comment further on the contours of that duty because, in my view, it was not engaged here. I find that Mr. Snache was not in need of medical attention while in the custody of the OPP.

[87] The sole indication that Mr. Snache might have required medical attention was his comment to Officer Harris that, “I think I’ve got a few cracked ribs here”.

[88] Mr. Snache gave no indication as to why he thought he had cracked ribs. He provided no information about any injury that he might have suffered to cause his ribs to crack, nor how recent the injury may have been.

[89] Mr. Snache gave no indication that he was in discomfort at any time. He did not complain of pain. None of his conduct suggested that he was suffering any pain or discomfort or limitation of movement. He was able to get in and out of the police vehicle without difficulty. His movements in removing his shirt and pants do not in any way signal that he was in pain or in need of medical assistance.

[90] Mr. Snache did not testify on the voir dire or provide any evidence to suggest that he was in pain when in police custody. Indeed, no evidence was tendered on the application to confirm or deny whether Mr. Snache actually had cracked ribs on November 22, 2020.

[91] I do not know why Mr. Snache thought he might have had cracked ribs. But on the whole of the evidence tendered on the statement voir dire, I am satisfied that he was not in need of medical attention. The failure to obtain medical attention for him was, in the result, not a breach of his s. 7 Charter right, nor did it create or add to an atmosphere of oppression. It is a non-factor.

A.(ii) Was Mr. Snache strip-searched and, if so, was the search constitutionally compliant?

Was there a strip search?

[92] Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure.

[93] Mr. Snache submits that he was subjected to a humiliating strip search by a female police officer, in breach of his s. 8 right. The Crown does not agree that he was subjected to a strip search at all and contends that his s. 8 right was never infringed.

[94] Recall that Mr. Snache was directed by Officer Harris to remove his shirt and pants. She photographed him in various stages of undress, including as he stood in his underwear. In my view, this process constituted a strip search.

[95] The nature of a strip search was defined by the Supreme Court in R. v. Golden, 2001 SCC 83, where Justices Iacobucci and Arbour held, at para. 47, that the following description accurately captures the meaning of the term “strip search”:

The removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of the person’s private areas, namely genitals, buttocks, breasts (in the case of a female) or undergarments. (Emphasis mine).

[96] There is no dispute that Mr. Snache was directed to remove clothing to the point where he was left in his underwear. Nor could there be, given that the whole search was videorecorded.

[97] The difference in the parties’ positions is informed by their views as to the significance of the purpose of the search, captured, the Crown argues, by the reference in Golden to the removal of clothing “so as to permit a visual inspection”.

[98] To be clear, a number of the police officers who testified on the voir dire were underinformed about the nature of strip searches. Officers Rempel and Duna each shared the view that a strip search only occurs where a detainee’s genitals are exposed. For their edification, that view is incorrect.

[99] Officer Hatfield acknowledged that a strip search could include a person being in their boxers but asserted that a strip search required that an officer be searching for hidden contraband. Again, a misconception.

[100] Officer Harris testified that in November 2020, she was not aware of the requirements of Golden with respect to strip searches. She did not believe, at the time, that she was conducting a strip search. She said she has since come to realize that her processing of Mr. Snache was, in fact, a strip search.

[101] Police Constable Isabella Vella is an “in-service” trainer for the OPP in the area of defensive tactics. That area includes training on strip searches. She agreed with defence counsel’s suggestion that the definition of “strip search” includes any visual inspection of undergarments. But she expressed the view that a search is not a strip search unless there is going to be an inspection of a person’s genitals, buttocks, breasts or undergarments.

[102] For PC Vella, whether a process is properly classified as a strip search depends on the intent of the officer engaged in that process. If the officer’s intent is to look for evidence or a means of escape or any object that might pose a safety risk, then it is a search. If the intent is merely to collect evidence, then it is not a search. Indeed, PC Vella went so far as to say that even if a detainee’s genitals are exposed, no strip search occurs unless the intent of the officer is to search for evidence.

[103] There is some appellate authority that tends to support PC Vella’s evidence. In R. v. Backhouse, 2005 CanLII 4937 (ON CA), [2005] O.J. No. 754 (C.A.), the accused was arrested roughly 2 ½ hours after a masked man shot three people in a residence, killing two of them. The accused’s clothing was seized by the arresting officer and he was provided with another garment to wear. The accused argued that the seizure of his clothing amounted to a strip search. The Court of Appeal disagreed.

[104] Rosenberg, J.A. held that the seizure of the accused’s clothing did not meet the definition of a strip search in Golden because it was not conducted for the purpose of inspecting the accused’s private parts or his undergarments. Mr. Backhouse had only been told to remove his clothing so that it could be inspected and seized for further testing. Rosenberg, J.A. went on to say, however, that he “would not want to rest this decision on such a technical distinction”. He then assessed the manner in which the search was conducted against the Golden framework and concluded that even if it was a strip search, the Crown had established its reasonableness.

[105] Given the development of s. 8 jurisprudence in this country, I have great difficulty accepting that the determination of whether a strip search occurred is dependent in any way on the state of mind of the officer(s) conducting the search.

[106] I accept that there are cases that suggest that a strip search has two components. First, that the detainee’s clothing be removed. Second, that the purpose of the removal be for the inspection of the detainee’s private areas or undergarments. In my view, however, Golden does not insist on those two components. I say this for two reasons.

[107] First, nothing in the Golden definition of a strip search imports the subjective intentions of the police conducting the search. If the purpose of the search was determinative, the Supreme Court could easily have defined a strip search as “the removal or rearrangement of some or all of the clothing of a person for the purpose of conducting a visual inspection of a person’s private areas…” They did not adopt that definition.

[108] In my view, the phrase, “so as to permit a visual inspection” merely identifies the conditions under which a visual inspection of person’s private areas or undergarments may be made. It does not require that a visual inspection be intended or carried out.

[109] Second, s. 8 jurisprudence focuses on the reasonable expectations of privacy of the individual. It does not focus on the intentions of the searcher.

[110] Section 8 is engaged where the actions of the state intrude upon an individual’s reasonable expectations of privacy. See R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128 and Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145. Indeed, privacy is the dominant organizing principle of s. 8. See R. v. Tessling, 2004 SCC 67, at para. 19. Section 8 is a shield against unjustified state intrusion on personal privacy. See R. v. Kang-Brown, 2008 SCC 18, at para. 8.

[111] Section 8 jurisprudence takes a “purposive approach to s. 8 that emphasizes the protection of privacy as a prerequisite to individual security, self-fulfilment and autonomy as well as to the maintenance of a thriving democratic society”. See R. v. Spencer, 2014 SCC 43, at para. 15.

[112] PC Vella defined a “search” as the process where the police are looking for evidence. She contrasted it with a process where the police are merely collecting evidence. That definition is not in keeping with Charter jurisprudence.

[113] Whether a search has taken place, as a matter of law, does not depend on the intentions of the police, but rather whether, in the totality of the circumstances, the actions of the police encroached upon a reasonable expectation of privacy of the accused. Assessing reasonable expectations of privacy generally involves a consideration of a number of factors that fall into four groups: (1) the subject matter of the alleged search; (2) the claimant’s interest in the subject matter; (3) the claimant’s subjective expectation of privacy in the subject matter; and (4) whether the subjective expectation of privacy is objectively reasonable. See Spencer, at para. 18.

[114] All of this is to say that s. 8 jurisprudence focuses on the perspective of the accused, as it must. The jurisprudence governing the strip search process in particular focuses on the maintenance of the privacy and dignity of the accused. See R. v. Atule, 2018 ONSC 5416, at paras. 51-52. The subjective intention of the officer conducting the search has little, if any, bearing on the extent to which the search process intrudes upon the privacy and dignity of the accused.

[115] Strip searches are demeaning no matter the circumstances. See R. v. Black, 2022 ONCA 628 at para. 38. What makes them demeaning is that the accused is compelled to strip naked, or down to his or her undergarments before one or more police officers. The detainee is humiliated because he or she is left naked or nearly naked in the presence of one or more officers. The intention of the officer(s) undoubtedly makes little difference to the detainee in those circumstances.

[116] I appreciate that others may take a different view about what constitutes a strip search according to the Golden definition. There is little doubt, however, that the process engaged in by Officers Harris and Hatfield amounted to a strip search, even if a strip search requires that the removal of Mr. Snache’s clothing be for the purpose of conducting a visual inspection of his private areas or undergarments. That test is met in the circumstances of this case.

[117] Mr. Snache was directed to remove his shirt and pants, albeit at different stages. He was photographed in various stages of undress. Officer Harris was, at one point, on her knees, not far from Mr. Snache’s crotch area, photographing his upper legs and underwear. This process was a strip search.

Was the search constitutionally compliant?

[118] Strip searches, though intrusive, are at times warranted.

[119] The requirements of a constitutionally compliant strip search were examined in Golden.

[120] Strip searches are generally performed as a search incident to arrest. Searches incident to arrest are an established exception to the general rule that warrantless searches are prima facie unreasonable. See Golden, at para. 84.

[121] For a search incident to arrest to be valid, three conditions must be met: (1) the arrest must be lawful; (2) the search must be truly incident to arrest; and (3) the manner in which the search was conducted must be reasonable. See R. v. Stillman, [1997] 1 S.C.R. 67, at para. 27.

[122] There is no doubt that the arrest of Mr. Snache was lawful.

[123] There is also no dispute that the search was truly incident to his arrest. The police had a legitimate interest in securing evidence. Mr. Snache told DC Rempel that the pants he had on were the ones he was wearing when he stabbed Mr. Simmerson. In those circumstances, the police had reasonable and probable grounds to seize those pants. They also had reasonable and probable grounds to photograph Mr. Snache’s body for injuries, given the assertion that he had been involved in a violent altercation with Mr. Simmerson.

[124] What is central to the allegation of a s. 8 breach in this instance is the manner in which the search was carried out. Golden provides a framework, at para. 101, for conducting strip searches. That framework was not adhered to in all respects in this case, undoubtedly because none of the officers involved in the investigation appear to have appreciated that they were, in fact, conducting a strip search.

[125] Two breaches of the Golden framework are particularly glaring. The first is that the officer who carried out the search – Officer Harris – was not of the same gender as the individual being searched. Mr. Snache was not given the option of choosing the gender of the searching officer.

[126] According to Officer Harris, the IDENT unit to which she was attached had six active officers in this area. She was the only female officer in the unit. Two of the other unit members were apparently in Toronto attending an autopsy at the time Mr. Snache was searched. I am unclear about the status of the others, though one may not have been on shift at the time. In any event, Officer Harris agreed with defence counsel’s suggestion that a male officer could have been called. The simple fact is, no one understood that it was not only a breach of the Golden framework, but also a breach of the OPP policy on strip searches to have a female officer conduct a strip search of a male detainee.

[127] The second glaring breach of the Golden framework is that the search was not conducted in private. Though it took place in a small interview room that could have been made private, two factors undermined Mr. Snache’s privacy. The first is that Officer Hatfield opened the door on three occasions while Mr. Snache was in a state of undress. The second – far more significant – is that the entire search was live streamed to an adjoining monitoring room and videorecorded from start to finish. The videorecording has been watched by numerous individuals, from investigating officers to Crown attorneys and to court staff, including me.

[128] Two lesser breaches of the Golden framework are that (1) the search was not authorized by a police officer acting in a supervisory capacity; and (2) a proper record was arguably not kept.

[129] I characterize these latter two breaches as “lesser” because I am confident that had a supervising officer specifically recognized the search as a strip search, it would have been authorized. And though the OPP mandated strip search form was not completed, there is obviously a fulsome, if unconstitutional, record of the search. The entire thing, as I have noted, is recorded on video.

[130] The fact that the Golden framework was not strictly adhered to does not necessarily equate to a breach of s. 8. If the breach of the framework has no material impact on the privacy and dignity of the detainee, then there is no Charter breach. See Atule, at para. 51 and Black, at para. 40.

[131] Mr. Snache did not adduce any evidence on the voir dire regarding his subjective experience. That said, appellate courts have repeatedly emphasized the inherent humiliating and degrading character of them. See, for instance, Golden at para. 90 and Black at para. 38.

[132] I can, and do, infer that the fact that a female officer directed Mr. Snache to remove his clothing, including his pants, and proceeded to photograph him in a state of undress, was degrading and humiliating. Mr. Snache may not have realized that the whole search was being videorecorded at the time, but when that realization came, he no doubt felt some further measure of humiliation. And, regrettably, that humiliation is repeated every time the videorecording is replayed.

[133] I conclude that Mr. Snache’s s. 8 right to be free from unreasonable search and seizure was breached as a result of the manner in which the police conducted a strip search of him subsequent to his arrest.

A.(iii) Is a stay of proceedings an appropriate remedy for the Charter breach?

[134] Mr. Snache submits that the breach of his s. 8 right warrants the imposition of a stay under s. 24(1) of the Charter. In the alternative, he says the statement that followed the breach should be excluded from evidence at his trial, pursuant to s. 24(2) of the Charter.

[135] The circumstances in which a stay of proceedings may be warranted under s. 24(1) of the Charter have been examined by the Supreme Court in a number of decisions rendered over the past three decades, including R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391, R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, and most recently, R. v. Babos, 2014 SCC 16.

[136] The Supreme Court of Canada has aptly described a stay of proceedings as the most drastic remedy a criminal court can order. See Regan, at para. 53. A stay brings criminal proceedings to a permanent end. In the result, the truth-seeking function of the trial process is frustrated, the public is deprived of the opportunity to see justice done on the merits of the case, and victims are, in many cases, deprived of their day in court. See Babos, at para. 30. It is unsurprising then, that stays are rare and only imposed in the “clearest of cases”. See O’Connor, at para. 68.

[137] In Babos, the Supreme Court identified two categories into which cases rising to the “clearest of cases” threshold generally fall:

(i) The “main” category, where state conduct compromises the fairness of an accused's trial; and,

(ii) A residual category, where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process.

[138] The test used to determine whether a stay of proceedings is warranted under either category is the same and consists of three parts:

(i) There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that "will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome";

(ii) There must be no alternative remedy capable of redressing the prejudice; and,

(iii) Where there is still an uncertainty about whether a stay is warranted after the first two factors are applied, the court must balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system against the interests that society has in having a final decision on the merits.

[139] In the circumstances of this case, the fairness of Mr. Snache’s trial has not been put in jeopardy as a result of the manner in which he was strip searched. Accordingly, I will focus on the residual category of cases, where the concern is for the integrity of the administration of justice.

[140] As Babos makes clear, in a residual category case, like this one, the question to be answered at the first stage of the test is whether proceeding with the trial – in light of the impugned state conduct – would do further harm to the integrity of the justice system. See Babos, at para. 38.

[141] Similarly, at the second stage of the analysis, the goal is not to find a remedy that will redress a past harm done to the accused. The focus is on whether a remedy short of a stay will adequately dissociate the justice system from the impugned state conduct. See Babos, at para. 39.

[142] Finally, at the last stage of the analysis, the court is called upon to decide which of two options better protects the integrity of the system: staying the proceedings or having a trial despite the impugned conduct. See Babos, at para. 41.

[143] In my view, considering the test enunciated in Babos, this is not one of those clearest of cases where a stay is warranted. Indeed, a stay of proceedings in this murder trial would cause far greater harm to the administration of justice than would proceeding with a trial notwithstanding the impugned conduct of the state.

[144] To be clear, I am not an apologist for the conduct engaged in by the police in this instance.

[145] Mr. Snache is a young Indigenous man. It is well-known that young Indigenous males are over-represented in Canadian prison populations. I am not suggesting that the police intentionally disregarded their constitutional obligations towards Mr. Snache because he was Indigenous. But what I am saying is that when they fail to adhere to those constitutional requirements when they deal with young Indigenous males, they perpetuate the notion of an unfair and discriminatory justice system and they perpetuate the long history of harm done to Indigenous peoples by the administration of justice in this country.

[146] Moreover, the constitutional failures occurred here due to a lack of awareness and training on an important issue. None of the involved officers acted in bad faith. In fact, every officer who engaged with Mr. Snache did so in a courteous, professional, and decent manner. Based on my observations of their interactions, they acted in a way that they thought respected Mr. Snache’s constitutional rights. But to a one, they did not appreciate what those rights entailed when it came to strip searches.

[147] That is to say, the s. 8 breaches occurred here due to an institutional failure to properly train both front line and senior officers on what constitutes a strip search and the framework to be followed when conducting one.

[148] Officer Harris, for instance, was not familiar with the R. v. Golden case in November 2020, despite the fact that it was released in 2001 and despite the fact that she frequently photographed male detainees in various stages of undress.

[149] I accept that police officers have a lot on their plates. They cannot be expected to have an encyclopedic knowledge of constitutional law. But there are areas where their interactions with accused persons regularly engage constitutional issues: arrest and detention; facilitating rights to counsel; and search and seizure, including strip searches. These are areas where they do need to have at least a basic foundation in the constitutional implications of their actions.

[150] Having observed the cross-examination of a number of OPP officers involved in this investigation, as well as training officer Vella, I am of the view that better training is required in this important and sensitive area.

[151] Having said that, it is important to view the search of Mr. Snache in context. I have found that he was strip searched, that certain aspects of the search did not comply with the Golden framework and that Mr. Snache undoubtedly experienced some measure of humiliation in the process. But in the overall context, I am satisfied that the treatment of Mr. Snache, despite its constitutional flaws, was generally decent.

[152] The officers who interacted with Mr. Snache, to a one, treated him with respect. Despite having confessed to committing a violent homicide, he was treated with decency and compassion by those who interacted with him.

[153] Officer Harris, in particular, behaved quite decently with Mr. Snache even though she unwittingly breached his s. 8 right. She was professional, efficient and did her best, insofar as she understood the circumstances, to preserve Mr. Snache’s privacy and dignity.

[154] Mr. Snache turned himself into police. He advised them that he was wearing the same pants he had on when Mr. Simmerson was killed. He understood why the police needed to collect his pants. Officer Harris and DC Rempel did their best, in my view, to keep him informed as to what they were doing and why they were doing it.

[155] From Mr. Snache’s point of view, as the forensic processing continued, his privacy was being respected. He was never entirely naked. He was never even left simply in his underwear. At the point when he removed his pants, he was wearing a long t-shirt and boxers. He appreciated why his pants were seized and why Officer Harris inspected his body for injuries.

[156] At his most exposed, Mr. Snache was in a state of dress no different than a person wearing shorts and a t-shirt in public in the summertime. I appreciate that context is everything. I accept that being stripped down to your underwear and photographed by the police is not the same thing as walking along a beach in a t-shirt and shorts on a warm summer’s day. That said, Mr. Snache’s private areas were not exposed. The process was efficient and professionally executed. And it did not appear to have a significant impact on his dignity.

[157] When asked by DC Rempel if Officers Harris and Hatfield treated him well he said, “Of course”.

[158] I find that the circumstances here were not constitutionally compliant. That errors occurred reflects an institutional problem. And that is significant. That said, the circumstances were not, in my view, egregious. The facts here are a far cry from the facts of Golden. The circumstances here, while concerning, would not shock the conscience of the community.

[159] It is important that the OPP learn from this case and amend their training practices. But proceeding with this case would not do further harm to the administration of justice.

[160] I tend to be of the view that the appropriateness of a stay can be decided at the first prong of the Babos test. I do not believe that it is necessary for the court to dissociate itself from the impugned conduct in this instance. I believe it is enough that the court point out the constitutional deficiencies and that the OPP be given an opportunity to improve its training.

[161] I appreciate the argument that Golden was almost 20 years old when Mr. Snache was strip searched. Indubitably, OPP officers ought to have had better training on it. But it would be wrong to say that the Golden definition of a strip search is free of controversy.

[162] Indeed, there is caselaw that suggests the mere collecting of a detainee’s clothing, even if it leaves the person naked for some period of time, is not a strip search. Backhouse would suggest as much. See also R. v. Veness, 2007 ABQB 283 and R. v. Downey, 2019 ABQB 376 which were relied upon by the Crown as support for its assertion that what took place here was not a strip search. While I disagree with the reasoning in both Veness and Downey, it remains a fact that there is existing caselaw that does tend to support the OPP’s position that they did not conduct a strip search of Mr. Snache. It is difficult to criticize the OPP’s interpretation of the law as “egregious” when the law appears to be somewhat unsettled, despite the apparent clarity of Golden.

[163] In any event, I conclude that continuing with this trial will not do further harm to the administration of justice. As such, a stay of proceedings is not warranted on that basis alone.

[164] I am also satisfied that, at least in theory, there are alternative remedies available here. Mr. Snache seeks, as an alternative remedy, that his statement to the police be excluded from evidence. That said, and for reasons I will express in a moment, I do not intend to exclude Mr. Snache’s statement from evidence. So, while there is an alternative remedy available, I do not intend to avail of it.

[165] Had I been left in a state of uncertainty about the appropriateness of a stay, after having considered the first two prongs of the Babos test, I would conclude that the balancing of interests strongly pulls in favour of having a trial on the merits. Cases where state conduct is so egregious as to warrant a stay will be exceptional and rare. See Tobiass, at para. 91. Society’s interest in seeing this case resolved on its merits is very high. The overall context in which the police interacted with Mr. Snache, including the strip search, does not, in my view, come close to tipping the scale in favour of a stay.

[166] In the alternative to a stay, Mr. Snache submits that his statement to the police ought to be excluded under s. 24(2) of the Charter as a result of the breach of his s. 8 right. Before I assess whether a s. 24(2) remedy ought to be imposed, I must first determine if the statement was made voluntarily. It is only admissible in evidence if the Crown first establishes its voluntariness to the reasonable doubt standard. It is only if the statement is admissible that the question of its exclusion under s. 24(2) becomes relevant. See R. v. Grant, 2009 SCC 32, at para. 90.

A.(iv) Was the statement voluntary?

[167] As a matter of logic and human experience, it is hard to imagine that someone would falsely confess to serious criminality. Experience shows, however, that it does happen.

[168] Our law recognizes that there is little that can be done to hedge against the rare individual who intentionally and voluntarily falsely confesses to a crime that he did not commit. What the Canadian confessions rule focuses on is the elimination of conditions – such as oppressive or abusive conduct by authorities – that may give rise to involuntary false confessions.

[169] Confessions that are not voluntary are inherently unreliable and, for that reason, inadmissible. Moreover, ensuring that confessions are voluntarily made supports the rights of the accused person and general fairness in the criminal process. See R. v. Oikle, 2000 SCC 38, at para. 69.

[170] Oikle remains the controlling authority with respect to the confessions rule in Canada. It provides that a confession made to a person in authority will not be admissible if it is made in circumstances that raise a reasonable doubt about its voluntariness.

[171] The focus on the voluntariness inquiry is largely on the conduct of the police and its impact on the accused person’s ability to exercise his or her free will. See R. v. Singh, 2007 SCC 48, at para. 36.

[172] In assessing the voluntariness of a statement made to a person in authority, the court must examine and evaluate all of the circumstances surrounding the making of the statement in a contextual manner including, but not limited to, a consideration of the following factors: threats; promises; oppression; the requirement of an operating mind; and police trickery. See Oikle, at paras. 47-67. Before admitting the statement into evidence against an accused, the court must be satisfied that it was made “without fear of prejudice or hope of advantage and that it represents the product of an operating mind that has not been overborne by oppressive and inhumane circumstances or police trickery.” See R. v. Morgan, 2021 ONCA 531, at para. 14.

[173] The test is an objective one, but the individual characteristics of the accused person are relevant considerations in applying that objective test. See Singh, at para. 36.

[174] Almost the entirety of the interactions between the police and Mr. Snache between initial contact and the completion of his statement were recorded, either on audio, on video, or both. Having carefully examined the record of those interactions, I have no hesitation in concluding that Mr. Snache’s confession was made voluntarily.

[175] It is of particular significance that it was Mr. Snache’s choice to confess, prior to any interactions with the police. He initiated contact with the police for the purpose of making a confession.

[176] When asked by PC McIsaac how the police could assist him, he spontaneously answered that he wanted to confess to a murder. That was the very reason he contacted the police. Counsel disputed whether there was any significance to the fact that PC McIsaac recalled Mr. Snache saying, “I want to confess to a murder” and Auxiliary Officer Reid recalling him saying, “I’d like to confess to a murder”. I see no material difference in those recollections. The same idea is conveyed: it was Mr. Snache’s choice to confess.

[177] Nothing in the interactions between Mr. Snache and the police that followed that initial contact created an atmosphere of oppression or otherwise gives me any cause to be concerned about the voluntariness of the confession that followed.

[178] Mr. Snache was immediately cautioned by PC McIsaac that he did not need to say anything to the police and that what he did say may be used against him. He then asked only what murder Mr. Snache was talking about. When Mr. Snache’s answer confirmed that he was talking about a legitimate offence, PC McIsaac arrested him, advised him of his right to counsel and re-cautioned him. He held off asking any further investigative questions. There is no suggestion that Mr. Snache’s s. 10(a) or (b) rights were infringed.

[179] Though Mr. Snache indicated that he did not care to speak to counsel, DC Rempel nevertheless set him up with duty counsel and urged him to take advice from counsel given the seriousness of the charges.

[180] DC Rempel obtained breakfast for Mr. Snache.

[181] Mr. Snache was then processed in a manner that breached his s. 8 Charter right, but in the overall context in which that breach occurred, I find that it did not create an oppressive environment, nor did it impact on Mr. Snache’s decision to speak to the police about his involvement in the offence. Though I accept that every strip search is humiliating and degrading, Mr. Snache very much appeared to take the “processing” experience in stride. That may reflect the fact that each officer who dealt with him was courteous, professional and quite pleasant with him.

[182] Mr. Snache’s recall of the events in issue appeared to be rather basic and lacking in detail, but at the same time, he appeared rational and appropriately responsive to questions put to him by any of the officers who interacted with him. I am satisfied that he had an operating mind throughout. He was aware of the expected consequences of his confession.

[183] Mr. Snache was never threatened. He was never made any promise nor offered any inducement to confess. Based on his own comments to DC Rempel, he wanted to confess to the police to “get it off his chest”. He said he felt guilty about what he had done and felt better having made his statement.

[184] No police trickery was used. Indeed, DC Rempel took a very relaxed and, I would say, gentle approach with Mr. Snache. He more or less asked Mr. Snache to explain what happened and then followed up with appropriate clarifying questions as the interview went on.

[185] In all the circumstances, I am satisfied beyond a reasonable doubt that Mr. Snache’s statement – which includes his brief utterance to PC McIsaac as well as his interview with DC Rempel – was voluntary.

[186] A finding of voluntariness is a precondition to the admissibility of Mr. Snache’s statement. Having made such a finding, it is now appropriate to consider whether the statement should nevertheless be excluded from evidence as a remedy for the s. 8 breach I have previously identified.

A.(v) Should the statement be excluded under s. 24(2) of the Charter?

[187] Section 24(2) of the Charter provides that where evidence has been obtained in a manner that infringed one or more Charter-protected rights, the evidence shall be excluded if its admission into evidence would bring the administration of justice into disrepute.

[188] In this case, it cannot be said that Mr. Snache’s statement to the police was causally connected to the breach of his s. 8 right. That said, it is not necessary for the court to find a causal link between a breach and evidence obtained by the police as a prerequisite to an exclusionary order. In R. v. Pino, 2016 ONCA 389, the Court of Appeal held that impugned evidence may meet the “obtained in a manner” requirement, even without a causal connection to a Charter breach, provided the evidence and the breach are part of the same transaction or course of conduct and provided the connection is neither too tenuous or too remote.

[189] I am prepared to accept that there is a sufficient connection between the strip search (the forensic identification processing) and Mr. Snache’s statement (which immediately followed it) to satisfy the “obtained in a manner” requirement of s. 24(2).

[190] I will proceed to assess whether the admission of the statement into evidence would bring the administration of justice into disrepute.

[191] In R. v. Grant, 2009 SCC 32, at para. 71, the Supreme Court provided trial judges with direction in terms of the analysis to be applied to applications brought under s. 24(2) of the Charter:

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.

[192] Grant instructs that the focus of the exclusionary rule should be on the long-term reputation of the justice system. The s. 24(2) analysis is not about punishing the police for any perceived misbehaviour nor is it about deterring future Charter violations.

[193] I will consider the Grant factors in turn.

The Seriousness of the Breach

[194] The task of the court at this stage of the analysis is to “situate the conduct on a scale of culpability”. See R. v. Le, 2019 SCC 34, at para. 143. Inadvertent, technical or minor breaches are at the low end of the scale. Wilful or reckless disregard of Charter rights are at the high end of the scale.

[195] The forensic processing of Mr. Snache that I have found to have constituted a strip search was a search that was authorized by law. The police had reasonable and probable grounds to seize Mr. Snache’s clothing and to document his body for any injuries that might be consistent with a violent struggle. It was the manner in which they carried out the search that caused the s. 8 breach.

[196] I have found that while the officers involved in the strip search of Mr. Snache were well-intentioned, courteous and professional, they nevertheless breached his s. 8 right because they were not sufficiently informed of the law governing strip searches. The breaches were not wilful nor flagrant. But I would not describe them as inadvertent, technical or minor breaches either. They resulted from an institutional shortcoming and were systemic in nature. These factors tend to support the conclusion that the breach was fairly serious in nature.

[197] Having said that, as I noted above, there is some uncertainty in the caselaw as to whether the type of “processing” engaged in here amounted to a strip search. That uncertainty tends to lessen the seriousness of the breach.

[198] All things considered, the seriousness of the breach tends to point towards exclusion of the evidence, but in my view, only moderately so.

The Impact of the Breach on Mr. Snache’s Charter-Protected Interests

[199] There are as many and varied impacts of Charter breaches as there are breaches themselves. Impacts may range from fleeting or technical to invasive or profound.

[200] Mr. Snache did not adduce any evidence on the voir dire regarding his subjective experience during the strip search. I accept that any strip search is humiliating and degrading to some extent. That much has been repeatedly emphasized by appellate courts over the last twenty years or so. I take judicial notice of that fact.

[201] The particular level of humiliation suffered by Mr. Snache can only be inferred from the circumstances of the search as reflected in the recording of it.

[202] Mr. Snache, it must be said, was treated with respect and decency by Officer Harris, despite the fact that her very presence largely contributed to the s. 8 breach. He did not appear uncomfortable in her presence. He interacted with her in a relaxed and casual way. As I have noted, he was never fully naked, nor even left just in his underwear. When he was in his underwear he was also wearing a long t-shirt.

[203] The impact on Mr. Snache appears to have been modest at worst. Again, when asked by DC Rempel if Officers Harris and Hatfield treated him well he answered, “Of course”.

[204] On a consideration of the circumstances as a whole, I find that the strip search, while inherently humiliating and degrading on any detainee, was not markedly so on Mr. Snache.

[205] Again, this factor pulls in favour of exclusion, but only moderately so.

Society’s Interest in Adjudication on the Merits

[206] At this third stage of the Grant analysis, the court must determine “whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion.” See Grant, at para. 79.

[207] I have found, beyond a reasonable doubt, that Mr. Snache’s statement to the police was voluntarily made. The extent to which it is supported or undermined by other evidence in the case remains to be seen, but it certainly meets the threshold reliability standard.

[208] The evidence is, moreover, of obvious importance to the prosecution’s case. That is not to say that it is the only evidence the Crown has. This is a case where identification is the central issue. The Crown has evidence that Mr. Snache left a bloody knife in the rear of a taxicab several hours after Mr. Simmerson was killed. There is evidence that Mr. Simmerson’s DNA was on the blade of the knife and Mr. Snache’s DNA on the handle. And there is evidence that a hoodie seized from Mr. Snache’s residence had a spot of Mr. Simmerson’s blood on it.

[209] That said, the confession is a central piece of the Crown’s case against Mr. Snache. Its importance cannot be overstated.

[210] This third Grant factor almost always supports admission. See R. v. McGuffie, 2016 ONCA 365, at para. 62. I find that to be the case here. In fact, in light of the seriousness of the offence, the threshold reliability of the statement and its importance to the Crown’s case, I find that the third factor strongly favours admission.

[211] I appreciate that the seriousness of the offence is a factor that can cut both ways, as McLachlin C.J. and Charron J. observed, at para. 84 of Grant. The public has a heightened interest in seeing a determination on the merits where the offence is serious, but it also has a “vital interest” in having a justice system that is beyond reproach, particularly in serious cases where the stakes are high. I am, however, of the view that the seriousness of the offence is, when considered in conjunction with the overall circumstances here, a factor that tends to support admission of the evidence.

The Balance

[212] No magic formula exists to aid in the balancing of the three Grant factors. Assuming each factor may point strongly in a given direction, weakly in a given direction, or be neutral, then there are some 27 configurations of the Grant factors.

[213] In this instance, I have found that the s. 8 breach was serious, though not at the top end of the scale when all of the circumstances are carefully considered. I have found that the seriousness of the breach moderately points towards exclusion. Similarly, I have found that the impact of the breach moderately points towards exclusion.

[214] As Doherty J.A. instructed in R. v. McGuffie, as above, at para. 62, the strength of the claim for exclusion under s. 24(2) is equal to the sum of the first two lines of inquiry. Here, both point moderately towards exclusion. Collectively, I find that they pull moderately towards exclusion. Had I found that they together make a strong case for exclusion, then the third factor would be unlikely to tip the balance in favour of admission. See McGuffie, at para. 63.

[215] In the circumstances here, I find that the third factor does tip the scale in favour of admission. The first two factors are simply not, in my view, sufficiently strong to overcome the compelling interest that society has in the adjudication of this case on its merits.

[216] The bottom line, for me, is that the reputation of the administration of justice would be significantly harmed by the exclusion of a voluntarily given, significantly corroborated confession on the basis that the defendant was photographed by a female officer while wearing a t-shirt and boxer shorts. For me, the exclusion of the evidence, rather than its inclusion, would be harmful to the long term reputation of the administration of justice.

[217] In the result, I find that the statement is admissible.

[218] I will move on to address the next application, which is a defence request that three search warrants authorized during the investigation into Mr. Snache be set aside and that any items seized as a result of the execution of the warrants be excluded from evidence.

B. THE SEARCH WARRANTS

[219] Recall that the search warrants in issue are the following:

(i) A warrant dated November 23, 2020 authorizing a search of Mr. Snache’s residence;

(ii) A warrant dated December 2, 2020 authorizing a search of Mr. Snache’s cell phone; and,

(iii) A DNA warrant dated October 27, 2021.

[220] The defence application focuses on an alleged failure of the affiant, DC Leiper, to make full, frank and fair disclosure in the ITOs he swore and filed in support of the warrant applications.

[221] Before I embark on an analysis of the substantive issues raised in the application, I need to fulfil an undertaking I gave to counsel when the application first commenced.

The Request for Leave to Cross-examine DC Leiper

[222] In particular, at the outset of the application, defence counsel sought leave to cross-examine DC Leiper in the following areas:

(a) Efforts made by DC Leiper to ascertain the reliability of the information in his ITOs;

(b) Why DC Leiper removed specific information related to other potential suspects, resulting in the failure of providing full, frank and fair disclosure;

(c) The experience of DC Leiper in drafting ITOs; and,

(d) Why DC Leiper failed to provide any and all relevant information to the issuing justice.

[223] Defence counsel estimated that the cross-examination would take, in total, less than two hours.

[224] Cross-examination in applications of this nature is not automatic. Counsel must obtain leave of the court. Crown counsel did not oppose the defence request to cross-examine DC Leiper about why he removed information about an alternate suspect from ITOs sworn after Mr. Snache’s confession. They also did not oppose cross-examination about DC Leiper’s experience with drafting ITOs. The Crown opposed cross-examination at large on the issue of what DC Leiper personally did to confirm the reliability of information he was provided by others, submitting that an affiant is entitled to rely on information provided by third parties.

[225] In an effort to proceed as efficiently as possible, I advised counsel that I would give them a bottom line ruling on the issue of leave, with written reasons for that ruling to follow.

[226] I gave the defence leave to cross-examine DC Leiper, limited to the following areas:

(a) His general experience in drafting ITOs;

(b) His understanding of the obligations of an affiant; and,

(c) Why he removed evidence of a possible third party suspect from three ITOs sworn and filed after Mr. Snache’s confession on November 22, 2020. I made it clear that the cross-examination was not to delve into the area of whether the third party was or was not investigated. It was to be constrained to whether the affiant misled the authorizing justices or failed to make full, fair and frank disclosure of material facts.

[227] The following are, in brief, my written reasons satisfying the undertaking I gave in relation to the ruling I made granting leave.

[228] Defence-initiated applications, like this one, that challenge the sufficiency of the evidentiary record that supported the granting of a judicial authorization or warrant are conventionally referred to as “Garofoli” applications, which is a nod to the Supreme Court’s ruling in R v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421. The goal of a Garofoli application is to exclude from trial evidence seized upon execution of the warrant, on the basis that the evidence filed in support of the authorization failed to meet the standard required by s. 8 of the Charter. See R. v. Ontario (Provincial Police) v. Thunder Bay (City) Police Service, 2017 ONCA 722 at endnote 2.

[229] Defence counsel frequently seek to cross-examine the affiants of impugned ITOs.

[230] There is no presumptive right to conduct cross-examinations in the context of a Garofoli application. Counsel seeking to cross-examine the affiant of an ITO must seek leave of the court to do so. Leave will only be granted where the applicant demonstrates that there is a reasonable likelihood that the proposed cross-examination will yield evidence discrediting the existence of one or more of the grounds for the issuance of the warrant. See R. v. Garofoli, at para. 88.

[231] Even where cross-examination is permitted, reasonable limits are to be placed on the scope of the examination in order to prevent prolixity and to ensure that it remains focused on matters that are relevant and material. See R. v. Garofoli, at para. 89 and R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343.

[232] As I will explain in greater detail momentarily, there is a very limited scope of review on a Garofoli application. Specifically, the reviewing justice is tasked with determining only whether the warrant could have been authorized on the basis of the sworn evidence filed in support of the application. Given that narrow scope of review, any permissible cross-examination must necessarily be narrowly prescribed. It must reflect the position of counsel and be limited to matters probative of the live issue(s) to be determined on the application.

[233] Having said all of that, while the test leaves only a narrow window for cross-examination, it is not an otherwise onerous test. It is not necessary for defence counsel to demonstrate that the cross-examination will inevitably be successful. Counsel need only demonstrate that there is a reasonable likelihood that the cross-examination will elicit evidence that will be of assistance to the court in determining a material issue.

[234] In this particular instance, defence counsel did not assert that any of the three ITOs in issue contain erroneous or unconstitutionally-obtained evidence. He did not suggest that any content of the ITOs in issue should be excised. Instead, his argument focused on DC Leiper’s decision to remove from the impugned ITOs any reference to S.B. and the role she may have played in the death of Mr. Simmerson.

[235] Warrant applications proceed on an ex parte basis and because of that, affiants of ITOs filed in support of such applications have an obligation to make full, frank and fair disclosure of all material facts to the court. See R. v. Araujo, 2000 SCC 65 at para. 46.

[236] There was a legitimate dispute here about the materiality of information that DC Leiper decided to remove from any of the ITOs he authored after November 19, 2020. In my view, cross-examination on the reason(s) why DC Leiper removed that information was warranted and I granted leave to counsel to conduct an examination in that area, as well as the related areas of DC Leiper’s experience in drafting ITOs and his understanding of the obligations on an affiant when drafting an ITO. His appreciation of the obligation to make full, frank and fair disclosure was relevant to the issue raised by defence counsel. It is the standard against which his decisions regarding the content of the ITOs is to be measured.

[237] I did not permit cross-examination more generally into any steps that DC Leiper took to confirm the reliability of information he put into the ITO. There are three principal reasons for this decision.

[238] First, in my view, this proposed area of cross-examination was not sufficiently defined and could very well amount to a cross-examination at large, which is generally not permitted on Garofoli applications.

[239] Second, the defence application was not grounded in the assertion that the ITOs contain unreliable information or that DC Leiper was reckless about the quality of information he included in the ITOs.

[240] Third, the standard against which alleged errors or omissions in the ITO are tested is the affiant's reasonable belief at the time the ITO was composed, not the ultimate truth of the facts stated: World Bank Group v. Wallace, 2016 SCC 15, at para. 121.

[241] DC Leiper was entitled to rely on information provided to him by others. As Moldaver and Côté JJ. instructed in Wallace, at para. 34:

On a Garofoli application, the affidavit before the authorizing judge is assessed based on what the affiant “knew or ought to have known”, not whether the information is true (R. v. Pires, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 41).

[242] In the result, the proposed cross-examination would only be relevant if it could be demonstrated that DC Leiper knew or ought to have known that the information he relied on was false. But since there is no assertion here that the information he relied on was false, this area of cross-examination was entirely irrelevant.

The Substantive Issues Raised on the Garofoli Application

[243] I will turn now to the issues otherwise raised on the Garofoli application. In the context of the submissions made by counsel, the following issues must be resolved:

(i) Did DC Leiper make full, fair and frank disclosure in the impugned ITOs?

(ii) With respect to each warrant, is there a basis upon which the issuing justice could have granted the authorization?

(iii) If a warrant is set aside, should evidence seized as a result of the execution of the warrant be excluded?

[244] I will set out some of the general principles that govern Garofoli applications before I address each of the issues raised by Mr. Snache.

[245] The first two warrants in issue were sought and granted under s. 487(1) of the Criminal Code. Before a warrant may be granted under that section, the issuing justice must be satisfied that there are reasonable grounds to believe that an offence has been committed and that evidence of that offence is to be found in the place to be searched. These requirements are the minimum standard for compliance with s. 8 of the Charter. See R. v. Morelli, 2010 SCC 8, at para. 39.

[246] The DNA warrant was sought and granted under s. 487.05 of the Criminal Code. Before granting a DNA warrant, the issuing justice must be satisfied that there are reasonable grounds to believe that (1) an office has been committed; (2) a bodily substance has been found or obtained at any one of a number of enumerated locations; (3) the target of the DNA warrant was a party to the offence; and (4) that forensic DNA analysis of a bodily substance from the target of the warrant will provide evidence about whether the bodily fluid will match the bodily substance referred to in (2) above.

[247] As is apparent from the wording of ss. 471(1) and 487.05, the focus of the authorizing justice is on the reasonable grounds of the affiant.

[248] The “reasonable grounds” requirement imports a credibly based probability standard. That standard requires more than suspicion but demands less than a balance of probabilities. See R. v. Herta, 2018 ONCA 927, at para. 20.

[249] As I noted above, the standard against which alleged errors or omissions in an ITO are tested is the affiant's reasonable belief at the time the ITO was composed, not the ultimate truth of the facts stated: World Bank Group v. Wallace, as above, at paras. 121-122. If it were otherwise, the Garofoli application could potentially turn into a trial of every allegation in the ITO.

[250] Affiants may not, of course, ignore signs that other officers are misleading them or omitting material information. But unless sometimes appears amiss, they are entitled to rely on information received from others and need not conduct their own investigation. See Wallace, para. 123.

[251] The analysis of any challenge to a judicially authorized warrant begins with the presumption that the warrant is valid. A reviewing court is restricted in its ability to interfere with a presumptively valid warrant. The determinative question is whether, on the basis of the sworn evidence filed, the issuing judge could (not should) have granted the warrant. See R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at para. 56, where Sopinka J. outlined the test as follows:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere.

[252] The onus is on the applicant to demonstrate that there was no basis upon which the issuing justice could have granted the authorization in issue. To discharge that onus, the applicant must generally attack the preconditions to the authorization. In other words, the applicant must undermine the existence of reasonable grounds. If the applicant fails to undermine those grounds, a conclusion will usually follow that the issuing justice could have authorized the warrant or production order, as the case may be.

[253] The analytical approach a reviewing judge should take to the sufficiency of an ITO was described by Fairburn J.A., as she then was, in R. v. Herta, as above, at para. 21. She instructed that the reviewing judge must take a common sense and holistic approach and added that the ultimate question is whether the issuing justice could have found that the ITO and the reasonable inferences that could be taken from it, gave rise to a credibly based probability that an offence had occurred and that evidence of it could be found at the place to be searched.

[254] As I noted above, the ex parte nature of the warrant application process demands that affiants make full, fair and frank disclosure of all material facts. That said, ITOs should also be clear and concise. They do not have to contain every minute detail of the police investigation. See R. v. Araujo, as above, at para. 46.

[255] A failure to include a material fact in an ITO does not automatically vitiate an authorization. The reviewing judge may consider, however, whether the existence of that undisclosed fact may undermine the grounds upon which the warrant was granted. Undisclosed material facts may, for instance, demonstrate that statements made in an ITO were erroneous or misleading. If so, those statements must be redacted. See, for instance, R. v. Morelli, as above, at para. 44.

[256] Moreover, as Justice Doherty observed in R. v. Shivrattan, 2017 ONCA 23, at para 26, “counsel may also argue that the augmented record placed before the reviewing judge demonstrates that the affiant deliberately, or at least recklessly, misled the issuing judge, rendering the entire ITO unreliable as a basis on which to issue the warrant.”

[257] With these general principles in mind, I will address the specific issues raised by Mr. Snache’s Garofoli application.

B.(i) Did DC Leiper make full, fair and frank disclosure in the impugned ITOs?

[258] The principal thrust of Mr. Snache’s attack on the impugned warrants is that DC Leiper failed to make full, fair and frank disclosure in the ITOs he swore in support of the warrant applications.

[259] Defence counsel specifically identified what he contends are material changes between the first ITO sworn by DC Leiper and all subsequent ITOs. Notably, the first ITO was sworn prior to Mr. Snache’s confession. The balance of the ITOs were sworn after that confession.

[260] The first ITO was sworn November 21, 2020, just a day after Mr. Simmerson was killed. At that time, as I noted above, S.B. was a person of interest to the police in the investigation. DC Leiper described in the first ITO that the police had canvassed the area of the killing seeking anyone who might have witnessed anything related to the offence. A witness who resided on Coldwater Road reported that she heard a male and female involved in a heated argument a short distance away just prior to the time when Mr. Simmerson collapsed on the street.

[261] DC Leiper also described how S.B. had made a complaint to the police about being sexually assaulted by Mr. Simmerson. She had been advised on November 17, 2020 – just two days before Mr. Simmerson was attacked – that the police were not going to pursue charges against Mr. Simmerson in relation to her allegation.

[262] At para. 25 of the first ITO, DC Leiper provided a list of persons he described as “involved in this matter”. One of them was S.B.

[263] After Mr. Snache confessed to killing Mr. Simmerson, the content of DC Leiper’s ITOs changed. In the three impugned ITOs, no mention was made of the witness who reported a male and female arguing on the street. Similarly, no mention was made of the sexual assault allegation of S.B. or of the decision by the police not to lay charges in relation to that allegation. Furthermore, S.B. no longer appeared in DC Leiper’s list of persons involved in the investigation.

[264] Instead, the three impugned ITOs focused on evidence that implicated Mr. Snache in the offence. Amongst other things, DC Leiper referred to evidence including:

• the bloody knife left in the back seat of a taxicab that dropped a fare off at 3430 Bayou Road;
• a Common Stove receipt recovered with the knife;
• Security camera footage from the Common Stove;
• COVID screening forms from the Common Stove and Kensington’s Burger Bar; and,
• Mr. Snache’s statement to the police on November 22, 2023.

[265] It is readily apparent that the police investigation into Mr. Simmerson’s murder was evolving rapidly in the few days after the offence was committed. It is unsurprising that the content of DC Leiper’s ITOs evolved as well, as circumstances changed and as the evidence-gathering process continued.

[266] The determinative question is whether, in the face of that evolving base of evidence, DC Leiper failed to make full, frank and fair disclosure of material facts when he intentionally left out information that may have had a tendency to implicate S.B. as a party involved in the offence.

[267] “Material facts”, in the context of an ex parte application, have been described as those whose non-disclosure may affect the outcome of the motion. See Girsberger v. Kresz, [1998] O.J. No. 911 (Ont. Ct. Gen Div.) at para. 28. The test is an objective one. As Justice Sharpe, as he then was, described material facts in the oft-cited case, United States v. Friedland, [1996] O.J. No. 4399 (Ont. Ct. Gen. Div.), at para. 36, citing Gee, Mareva Injunctions and Anton Pillar Relief (3d Edition 1995 at p. 97):

All matters which are relevant to the ‘weighing operation’ that the court has to make in deciding whether or not to grant the order must be disclosed.

[268] DC Leiper testified that, at some point, S.B. was determined to have an alibi, though I am not clear about when that alibi was established and, of course, an alibi would not necessarily rule out her participation as a party to the offence even if she did not directly cause Mr. Simmerson’s death.

[269] DC Leiper testified that, in effect, the investigation had moved on from the early suspicion of S.B. He believed it was unnecessary to refer to her any longer as there was no point in setting out every dead end that the police pursued.

[270] Reasonable people may differ about whether, as a matter of best practice, DC Leiper ought to have continued to provide information about the potential motive that S.B. had to commit the offence. In my view, the information about S.B. would have had no impact on the decisions of the issuing justices to grant the warrants to search Mr. Snache’s residence or his phone or to take a sample of his DNA. As a result, the omission of that information from the impugned ITOs was not a failure to make full, fair and frank disclosure of material facts.

[271] Mr. Snache told the police that he was the person who stabbed Mr. Simmerson to death. Moreover, the police had a bloody knife found in the back of a taxicab. The cab dropped a person matching Mr. Snache’s description off at a house where Mr. Snache lived, just hours after Mr. Simmerson was killed. Found with the knife was a receipt to a bar where a person matching Mr. Snache’s description had been at roughly 8:30 p.m. – just ten minutes or so after the attack on Mr. Simmerson.

[272] Mr. Snache told the police that the knife found in the taxicab was mostly likely his. He said that clothes he was wearing when he attacked Mr. Simmerson could be found in his residence. He told them that boots he was wearing that night had blood on them.

[273] In light of the foregoing evidence, the issuance of the warrant to search Mr. Snache’s residence and to seize his clothing was a “no brainer”. Information concerning S.B.’s potential involvement in the offence – curious as it may have been – would have had zero impact on the determination to grant the warrant to search Mr. Snache’s residence in all the circumstances.

[274] The same can be said about the warrant to search Mr. Snache’s phone. Modern iPhones save GPS location data when location services are turned on. Information which may identify Mr. Snache’s location in the period from shortly before the offence to shortly after the offence is important to establish that he had the opportunity to commit the offence he confessed to. Moreover, determining the number associated with the phone may assist the police in matching it to COVID screening forms purportedly completed by Mr. Snache at two bars he purportedly attended following the attack on Mr. Simmerson. Finally, given that Mr. Snache had no apparent motive to commit the offence, evidence as to who he communicated with prior to and after the offence may provide information about his involvement in the offence and any motive he had to commit it.

[275] Again, given the evidence the police had gathered about Mr. Snache prior to the warrant application on December 2, 2020, the authorization of the warrant to forensically examine Mr. Snache’s phone was also a no brainer. Clearly DC Leiper had reasonable grounds to believe an offence had been committed, that Mr. Snache was involved in it, and that evidence relating to the offence could be found on Mr. Snache’s iPhone. The impugned information about S.B. could not possibly have undermined the grounds for issuing the warrant to search Mr. Snache’s phone. The removal of that information was not material in my view.

[276] Finally, I would say the same thing with respect to the DNA warrant sought in October 2021. Once again, the pre-requisites to the granting of the warrant were easily established on the evidence the police had obtained prior to that point. There were bodily substances found on a knife and a hoodie in Mr. Snache’s residence that had yielded DNA samples. Given the existing evidence that tied Mr. Snache to the offence, the granting of a warrant to obtain a DNA sample from him was almost automatic. None of the impugned information about S.B. could have made a difference to the determination of whether to grant the DNA warrant.

[277] Even if the evidence about S.B. were relevant and material in the overall investigation, it was entirely inconsequential to the warrant applications in issue. The failure to include it did not in any way mislead the issuing justices. I would certainly not conclude that there was any intentional or reckless misleading that might support an order setting aside any of the warrants in the interests of justice.

B.(ii) With respect to each warrant, is there a basis upon which the issuing justice could have granted the authorization?

[278] For the reasons I expressed in relation to the previous issue, I am satisfied that the statutory grounds for the granting of each of the impugned warrants was more than made out. The salient question for determination by me is whether there was a basis upon which the warrants could have issued. I answer that question in the affirmative in relation to each of the impugned warrants.

B.(iii) If a warrant is set aside, should evidence seized as a result of the execution of the warrant be excluded?

[279] Given that I have determined that there is no basis to set aside any of the impugned warrants, I need not consider this question.

[280] I will accordingly go on to an assessment of the next defence application, which is to exclude evidence of GPS data points obtained from Mr. Snache’s phone.

C. THE GPS DATA

[281] Earlier I described the testimony of Special Constable Dave Rate regarding the GPS location evidence he extracted from Mr. Snache’s phone.

[282] The Crown seeks to tender the GPS location data from that phone in an effort to establish that Mr. Snache was essentially in the right place at the right time and thus had the opportunity to commit the charged offence.

[283] Mr. Snache seeks to exclude the GPS evidence. He argues firstly that it includes presumptively inadmissible opinion and secondly, that its probative value is overborne by its prejudicial impact.

[284] Mr. Snache maintains that the court cannot simply accept the reliability of the GPS data extracted from his phone. The Crown, he says, has an obligation to present evidence, from a properly qualified expert, regarding the reliability of that data. Without such evidence, the defendant has no means to test the reliability of the evidence.

[285] The defence argument continues with the assertion that the probative value of the GPS evidence is a function of its reliability. Without a means to test that reliability, the evidence can have no probative value. At the same time, it would cause prejudice to Mr. Snache if it were introduced, again because of an inability to test its reliability.

[286] The Crown’s position is that SC Rate’s evidence is not opinion evidence. Moreover, that the court can take judicial notice of the reliability of the GPS evidence. To proceed otherwise would effectively require the Crown to produce engineers from the United States Army to explain the Global Positioning System and the way it operates; from Apple Inc. to describe the way that iPhones make use of GPS data; and from Cellebrite to explain how the GPS data points located in a phone are plotted on their mapping software. It would be unreasonable to require that type of evidence in every case where GPS data is sought to be adduced. The general accuracy and reliability of GPS data is now notorious and without controversy.

[287] The positions of the parties raise the following issues to be determined:

(i) What use does the Crown intend to make of the GPS data?

(ii) Does the evidence include presumptively inadmissible opinion?

(iii) Is an expert required to provide evidence about the reliability of the iPhone’s GPS location data?

[288] Again, I will examine the issues in turn.

C.(i) The Crown’s proposed use of the cell phone evidence

[289] The central issue in this case is identification. That Mr. Simmerson was killed by an unlawful act is not contentious. The live question is who did it?

[290] The Crown recognizes that they cannot hope to place Mr. Simmerson and Mr. Snache in the exact location where Mr. Simmerson was stabbed, at the exact time that he was stabbed. There are a number of reasons for this.

[291] It is not clear, for instance, where exactly Mr. Simmerson was stabbed. He was observed by witnesses running down Coldwater Road and collapsing at the intersection of Coldwater Road and Emily Street.

[292] Moreover, the Crown does not have GPS location data from Mr. Simmerson’s phone. It is not possible, therefore, to compare the location of Mr. Simmerson’s phone at any given point in time, with the location of Mr. Snache’s phone.

[293] The Crown seeks only to place Mr. Snache in the general area of the attack on Mr. Simmerson at the time it is generally understood to have taken place and thus to establish that he had the opportunity to commit the offence.

C.(ii) Does SC Dave Rate’s evidence include opinion?

[294] The short answer to this question is no. The evidence sought to be tendered through SC Rate is factual in nature.

[295] SC Rate will testify about the steps he took to extract data from Mr. Snache’s iPhone. He will further testify about the information he observed when he examined that data using the Cellebrite software. More particularly, about the latitudinal and longitudinal data points recorded in the locations file of the phone. And he will demonstrate the mapping of those data points using the mapping service function of the Cellebrite software.

[296] SC Rate is not offering any opinion about the reliability of the software he used, the reliability of the GPS location services offered by the iPhone or the engineering behind the Global Positioning System generally. He is not offering any scientific theory. Nor is he even offering an opinion about the precise location of Mr. Snache’s cell phone at any given point in time. He will essentially say, “here is the data that was stored on the phone when I examined it.” He will not offer any “ready made inferences” to the court arising from the extracted data.

[297] SC Rate’s evidence is not presumptively inadmissible. It is subject to the same basic rules of admissibility applicable to any evidence offered in a criminal trial. In other words, it must be relevant, material, not subject to any particular rule of exclusion and its probative value must outweigh the prejudicial impact it may cause to the proceedings. See R. v. Calnen, 2019 SCC 6, at para. 107, per Martin J. (dissenting, but not on this point); and R. v. Wood, 2022 ONCA 87 at para. 59.

[298] In my view, the GPS location data offered in evidence through SC Rate is relevant to the material issue of identity and it is not subject to any presumptive rule of exclusion. It remains only to conduct the residual costs/benefits analysis to determine if the probative value of the evidence exceeds any prejudicial impact it may have to the trial process. The way this issue was framed by counsel, it comes down to a question of the reliability of the GPS data. More particularly, whether that reliability may be presumed as a matter of judicial notice, or whether the Crown is obliged to produce an expert witness capable of providing testable evidence about the reliability of the evidence.

C.(iii) Must the GPS location evidence be adduced through an expert?

[299] As I understand the defence position, the assertion is that the Crown must establish the reliability of the GPS location data before it can have any evidentiary value in this trial. Absent a means of testing the reliability of that data, the defence will, they say, be prejudiced and the evidence will lack any probative value.

[300] It is agreed that SC Rate does not have the education, training and experience to speak to the reliability of the GPS location data.

[301] Defence counsel cited a number of decisions in support of his position, including: R. v. Cyr, 2012 ONCA 919; R. v. Sosnowski, 2014 ONCA 837; R. v. Richards, 2015 ABQB 617; R. v. Didechko, 2016 ABQB 376; and, R. v. Swierkot, 2019 QCCQ 7291.

[302] In my view, none of the cases cited by the defence provide strong support for its position.

[303] R. v. Cyr involved the use by the Crown of propagation maps to establish the general area in which an accused might be said to be when his cell phone connected to a particular cell tower. It did not involve GPS location data.

[304] R. v. Sosnowski was a case that involved GPS data, but it is not clear from the decision exactly what sort of devices were involved. It appears that the impugned devices were GPS trackers used in a delivery truck. The Court of Appeal found that the Crown had failed to provide evidence that the devices were time synchronized. The evidence relating to the GPS tracking devices was offered by employees from the company that owned the delivery truck. They had no expertise in the records or the system that generated them.

[305] In my view, Sosnowski is of limited assistance for two reasons. First, because it is not clear what type of devices were in issue. Second, because it was decided nine years ago – prior in time to the ubiquitous proliferation of GPS location services on smart phones.

[306] R. v. Richards is another case where the Crown was attempting to establish the general location of a phone through connections to cell tower sites. It was not a case involving GPS location data. I note that the author of the ruling, Justice Nixon, observed, at para. 312, that “unlike GPS devices, a cell phone is not precise”. This comment was in reference to the use of cell phone tower data to establish the location of a phone. And I note again that the decision was rendered before smart phones evolved to commonly employ GPS location services.

[307] R. v. Didechko was a fatal hit-and-run case. The identity of the vehicle that struck the deceased was uncontroversial. The driver of the vehicle was in dispute. The police used a combination of cell phone call data, including cell tower data, and the GPS co-ordinates recorded by the vehicle to establish that the defendant had been driving the vehicle at the time the deceased was struck. The vehicle in question was equipped with a Garmin GPS system. The Crown in this instance did call an expert engineer from Garmin to testify about how the system operated, so the court was not called upon to determine if expert evidence was necessary.

[308] The trial judge in Didechko made a number of observations that, in my view, tend to work against the defence position here. In particular, he noted that GPS satellites use atomic clocks, which are the most accurate in the world. Further, that the Global Positioning System, when operating properly and interpreted properly, is precise in its accuracy. He expounded on that accuracy at para. 35 where he said:

How could it be otherwise? An aircraft carrying 500 people can take off from the longest runway in Vancouver enter the clouds, 250 feet above the ground, fly all night through the clouds and land the next day in Beijing, China, breaking out of the clouds, 250 feet above the ground with the runway directly in front of it. Global positioning has made aviation much safer and allowed owners of vehicles to have better situational awareness when they are in unfamiliar locations, but has also become a great boon to forensic science. Assuming that the operator / technician utilizing appropriate proprietary software is able to extract the details from the GPS system, that evidence is accurate and reliable.

[309] R. v. Sweirkot is arguably the most helpful case in the defendant’s cause. There, the accused was charged with assaulting the complainant as she drove them in his Range Rover in Laval. The complainant managed to flee from the accused and she went to her father’s residence in Morin Heights. Together they went to a third location they thought would be safer. The next day, the father returned home to find a baseball bat leaning against his front door. He took it as a threat.

[310] At trial, the Crown adduced evidence from a police officer who said she was told by an employee at a Porsche dealership that the GPS tracking system in the accused’s Porsche showed it travelling from Laval to Morin Heights and back on the night in question. The trial judge declined to rely on the evidence given its hearsay nature. The dealership employee had not testified. Indeed, no one testified that the Porsche was equipped with GPS tracking or how it worked. The trial judge added, in obiter, that “for something as technical as global positioning apparatus, expert evidence is required to explain the GPS tracking system and to confirm the accused’s locations”.

[311] Given the obiter nature of the trial judge’s comments, they are less persuasive. It does not appear that submissions were made on the issue of whether an expert would be required to adduce the impugned evidence and the conclusory comment of the trial judge is not the result of a reasoned approach.

[312] There are a number of cases that tend to support the position that expert evidence is not required when the Crown seeks to adduce GPS location evidence.

[313] In Wilgosh v. Good Spirit Acres Ltd., 2007 SKCA 43, the parties litigated over the terms of a custom farming services agreement. One of the live issues between them was the number of acres charged by the appellant, who provided the custom services. The respondents had the acreage of the farm measured using a GPS device. The appellant argued that the accuracy of the GPS report required expert evidence.

[314] The Saskatchewan Court of Appeal ruled that the Global Positioning System is so widely used and accepted that it was open to the trial judge to admit the GPS data as cogent evidence without the support of an expert witness.

[315] In Dorgan and Gavin v. R., 2008 PESCTD 37, leave to appeal denied, 2009 PECA 23, Mitchell J., as he then was, sitting on a summary conviction appeal, made a similar observation. The appellants had been charged and convicted of a violation of the Fisheries Act, R.S.C. 1985, c. F-14, for lobster fishing during a closed time. The appellants contended that the area in which they were fishing was not closed. Accordingly, evidence regarding the location of their traps was of central importance.

[316] The Crown tendered the evidence of a Fisheries officer who located the appellants’ traps using a GPS system. The appellants complained about the absence of evidence regarding the reliability of the system, the software used by the GPS system, and the accuracy of the software and the data more generally.

[317] Citing Wilgosh, Mitchell J., noted, at para. 23, that GPS is widely used and accepted. He suggested that if one took the appellant’s position to its logical conclusion, the Crown would need to call a witness from the United States Army to give evidence about the actual satellites circling the earth, as well as the manufacturer and programmer of the GPS receiver. He held that such a position flew in the face of common sense.

[318] What matters, Mitchell J. said, is that there is some evidence upon which the trial judge could assess the accuracy of the GPS evidence. On the record adduced in that case, there was. Experts had testified that the system was accurate to within 3 to 5 metres. Moreover, the Fisheries officer who testified, explained that he verified his positioning by checking the GPS co-ordinates against where he was actually situated.

[319] Dorgan has been followed in R. v. McDonald, 2019 BCPC 389 at para. 17, R. v. Justin MacDonald, 2019 NBPC 7 at para. 7, and, arguably, in G. v. Gosse 2016 BCSC 812 at para. 78.

[320] In Gosse, Power, J. referred to GPS technology as “widely used by ordinary citizens” and observed that it had “come within the realm of ordinary experience and knowledge.”

[321] Other cases have simply accepted GPS data as reliable technology without comment. See, for instance, R. v. Qureshi, 2021 ONSC 1576, at paras. 240 to 248 and R. v. Tabanoa, 2020 ONSC 3501 at paras. 248-252.

[322] In R. v. Ranger, 2010 ONCA 759, the Court of Appeal held that it is now notorious that cell phone users engaged in a call while travelling from point A to point B will find their cell phones passed off from one tower to another. A trial judge is justified, in the circumstances, of taking judicial notice that a cell phone is in a particular area and travelling in a particular direction based on cell phone tower data.

[323] When Ranger was decided, cell phones did not generally offer GPS location services. Much has changed since then. In my view, and based on my review of the jurisprudence, we have arrived at the point where courts may similarly take judicial notice of the reliability of GPS location data and infer from that data that a cell phone is located in a general area or travelling in a general direction.

[324] Judicial notice is an exception to the general rule that cases must be decided on the evidence presented in court. In other words, it involves the acceptance of a fact without formal proof. As one might imagine, judicial notice applies in very narrow circumstances. Two have been identified. First, where the facts are so notorious or accepted, either generally or in a particular community, that they are not the subject of dispute among reasonable persons. Second, where the facts are capable of “immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy.” See R. v. J. M., 2021 ONCA 150, at para. 31.

[325] The Global Positioning System was originally developed by the U.S. Department of Defence for military purposes. But it has evolved to the point where it is routinely utilized and relied upon in a wide variety of everyday applications. For instance:

• Most adult Canadians will be familiar with the navigation systems installed in most late model automobiles. Those systems enable accurate planning and execution of road trips. Apps such as “Waze” use it to find the quickest route from point A to point B and to avoid traffic;
• Farmers use GPS devices on their tractors to map their fields;
• Recently, luggage trackers like “AirTag” have become popular for tracking and locating luggage lost by air carriers;
• As Germain, J. noted in Didechko, GPS is used for navigation purposes by airlines; and,
• It is used in conjunction with mapping apps to aid users in finding nearby restaurants, schools or other points of interest.

[326] Many of us routinely rely on the accuracy of GPS data without perhaps appreciating that we are doing so.

[327] In my view, the accuracy and reliability of GPS location data is now so notorious and accepted that it is not seriously disputed among reasonable people. That is not to say that it is capable of pinpointing the exact location of a cell phone. It has its limitations and may, of course, be impacted by atmospheric conditions and signal blockage. It may also be impacted if the receiver in use is malfunctioning.

[328] SC Rate testified that there was no evidence to suggest that Mr. Snache’s phone was malfunctioning at any time.

[329] I conclude that the court may take judicial notice of the reliability of the GPS data on Mr. Snache’s phone, within the parameters of accuracy identified by the data.

[330] I am also satisfied that, in this case, the reliability of the GPS location data is capable of being tested without the need of an expert witness, which lends further support to its admissibility.

[331] In particular, there is reliable evidence of locations where Mr. Snache was known to be during the evening of November 19, 2020. In particular, he was recorded by a security camera at the State and Main Restaurant in Orillia between 5:39 p.m. and 7:51 p.m. He was later recorded on a security camera at the Common Stove Restaurant in Orillia between 8:30 p.m. and 9:10 p.m. It is agreed that he then attended at Kensington’s Burger Bar in Orillia, departing before 10:00 p.m. He subsequently took a taxi home to 3430 Bayou Road, Severn Township, arriving at roughly 10:44 p.m.

[332] As I set out above at paras. 70 to 76, GPS location data extracted from Mr. Snache’s phone positions him in close proximity to his known locations, as I have just described them, at the times he is said to have been at those locations. This evidence accordingly provides a certain degree of independent verification of the reliability of the GPS data on the phone.

[333] In the result, I find that the GPS location data proffered by the Crown is relevant to the issue of identity, which is a material issue in these proceedings. I further find that there is no basis to exclude the evidence. It has significant probative value in my view and will not cause significant prejudice in the proceedings. I am alive to its limitations.

C. Boswell J.

Released: April 14, 2023

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

JUSTICE SNACHE

REASONS FOR JUDGMENT

Justice C. Boswell

Released: April 14, 2023

[^1]: In January 2021, Auxiliary Officer Reid became a full police constable with the OPP and is presently stationed in Bancroft.