His Majesty The King v. Marlon Joseph Downey, 2023 ONSC 3044

COURT FILE NO.: CR-21-30000045 DATE: 20230601

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Respondent – and – MARLON JOSEPH DOWNEY Applicant

Counsel: Paul Leishman, for the Respondent Ariel Herscovitch, for the Applicant

HEARD: Feb. 1, 2, 10, March 29, April 14 and 25, 2023

B.P. O’Marra, J.

RULING ON AN APPLICATION TO EXCLUDE EVIDENCE PURSUANT TO SECTIONS 8, 9 AND 24(2) OF THE CHARTER

[1] The applicant applied to exclude drugs and other items seized by the police from a motor vehicle, including extraction of information from cell phones and tablets found therein.

[2] On April 25, 2023, I dismissed the application.

[3] These are my reasons.

OVERVIEW

[4] In the summer of 2020 members of the Toronto Police Service (“TPS”) commenced an investigation into the alleged human trafficking of a female victim. I will refer to her by her initials H.C. She was 21 years old. The investigation was based primarily on information provided to police by P.C., the mother of H.C.

[5] In late August 2020, the police were looking to arrest the applicant for these offences. On August 31, 2020, they conducted surveillance of a motor vehicle registered to both the applicant and H.C. They observed that car drive to an address in Brampton where a passenger (not the applicant or H.C.) got out of the car. The car then was driven to 21 Graham Crescent in Brampton. That is the residence of several members of the applicant’s family. The car parked in the driveway. A male, believed to be the applicant, exited the car. When the police approached, the male ran into the residence. The police entered the residence in hot pursuit. The male was not located. No arrest was made that day.

[6] When the officers went back to the parked car in the driveway there appeared to be people from the residence looking into the car and attempting to remove items from it. They were told that the car was being seized by police and they were not to remove anything from it. Someone from inside the residence then locked the door of the car with a key fob.

[7] The car was seized by police and detained in a secure facility until a search warrant was granted on October 29, 2020. The Information to Obtain (“ITO”) for the warrant referred to the following items to be seized:

1. Cellular Phones.
2. Tablet Devices. a. The electronic devices located will be subsequently searched for the following items: i. Text messages, e-mails, internet browsing history, Bitcoin wallets, photographs, Instagram messages, blackberry messages, any other form of cellular messages, audio files, or video files showing links to the offences of Human Trafficking stored in electronic form. ii. Telephone documents, written data or electro-magnetic data storage units, containing records of telephone calls made by Marlon Downey and H.C. and evidence of ownership of telephones or cellular phones. iii. Telephone lists in the form of written data or electro-magnetic data, containing names, nicknames, numbers or personal information of Marlon Downey and H.C. including those contained within the respective cellular telephones or communication devices.
3. Identification of Marlon Downey.
4. Identification of H.C.
5. Documentation related to the ownership of a 2008 Cadillac CTS with license plate CPKX 522.

[8] Before the search warrant was granted, H.C. and her lawyer repeatedly contacted TPS to ask for the return of the car. Those requests were not complied with.

[9] The car was not searched until after the search warrant was granted. The items recovered from the car included the following:

a. Identification in the names of the applicant and H.C. b. Approximately 24 grams of fentanyl, 25 grams of cocaine and a digital scale. c. A book entitled “The Art of Mackin”. d. 4 iPhones

[10] A few days after the car was searched it was returned to H.C. An electronic tracking device had been sought by TPS and granted for installation in the car.

[11] A Report to a Justice related to the search warrant was filed on September 16, 2020. It specified that the car was seized by police on August 31, 2020. The presiding Justice authorized further detention until the completion of all proceedings.

[12] The applicant was eventually arrested on November 25, 2020, and was charged with the following:

1. Trafficking in persons contrary to s. 279.01(1) of the Criminal Code, Criminal Harassment: Repeatedly Follow contrary to s. 264.2(a) of the Criminal Code, Assault contrary to s. 264.1(1)(a) of the Criminal Code, Unlawfully in dwelling house contrary to s. 349.(1) of the Criminal Code, Possession of a Schedule I, II or III substance (x2) contrary to s. 4(1) of the Controlled Drugs and Substances Act, and Possession for the Purpose of Trafficking of a Schedule I, II, III or IV substance contrary to s. 5(2) of the Controlled Drugs and Substances Act.

THE CHARTER APPLICATIONS

[13] The applicant seeks exclusion of the evidence seized in the car based on the following breaches of s. 8 of the Canadian Charter of Rights and Freedoms:

a. The seizure of the car without a warrant or other legal justification, b. The retention of the car for almost two months before seeking a search warrant, c. Extracting information from the cell phones and tablets seized without reasonable grounds to do so.

GROUNDS TO SEIZE THE CAR

[14] Detective Constable (“DC”) Jason Reynolds of TPS was the affiant on the ITO. His grounds to seek a warrant to search the car were linked to the grounds to arrest the applicant. The information he gathered for the ITO included the following as summarized in the Respondent’s Factum:

DC REYNOLDS’ INVESTIGATION PRIOR TO THE SEIZURE OF THE VEHICLE

[15] On August 26, 2020, the complainant in this matter, P.C., provided a sworn video statement to DC Jason Reynolds and DC De Medeiros.

[16] P.C. provided the following information:

a. The Applicant and her daughter, H.C. became involved in a relationship in the summer of 2019. After some time, P. started receiving phone calls from her daughter crying and saying that she needed to come home. b. P. was advised by H. that she knows she is being trafficked in the sex trade, and that she has no way out. H. informed P. that she could not call the police because they would kill her. c. On July 16, 2020, H. came home at approximately 11:00 a.m., P. left to do groceries and when she got back home, she noticed H. was no longer there. Upon checking the security cameras, P. observed a male with a thin build, wearing a black hoody with the hood up, light blue jeans and dark coloured shoes. At approximately 11:24 a.m., the male walked to the front door and appeared to be having a conversation with H. The male and H. entered the home for one minute. The male then left the home and walked down the street. Approximately 20 minutes later, H. can be seen leaving the house with 2 bags of belongings in hand and walking in the same direction as the male. P. reported H. missing following this incident. d. On July 18, 2020, P. received a call from H. H. confirmed it was the Applicant who was at the house that day and asked P. for $200. H. informed P. that she was in London. e. On August 3, 2020, H. called P. and advised that she was in London. H. asked her mom not to call the police and that, “she cannot snitch or they will kill her”. f. On August 15, 2020, H. called J.C., her father, and advised that she had run away from the Applicant. g. On August 16, 2020, an individual, with the same characteristics as the Applicant, came to P. and J.’s house looking for his phone. He informed them that H. had his phone and it pinged to their location. P. photographed the vehicle, a silver 2008 Cadillac with the license plate #CPKX 522.

[17] DC Reynolds reviewed video surveillance provided by P. from July 16, 2020. The video showed a male and H. standing in front of the house at approximately 11:26 a.m. The Applicant concealed his hands and features and was wearing a mask.

[18] DC Reynolds also reviewed Toronto Police Services report #2020-2537192 and learned the following:

a. TPS received a call on August 16, 2020, at 10:55 a.m., from P. who stated that her daughter was being stalked by a male who knocked on the door and arrived in her daughter’s car. b. The report stated that H. was currently involved in the sex trade and the Applicant was believed to be H.’s ex-domestic partner and pimp. The Applicant was a known pimp and was associated to H. as a co-accused for an arrest on possession of cocaine. c. H. and the Applicant were associated to a Human Trafficking investigation in Windsor. The Applicant had a lengthy criminal history and was flagged as Caution Violent, Armed and Dangerous. d. The report further stated that the Applicant was previously associated to a beige 2010 Acura MDX, license plate CAXR547. The Applicant was currently operating a silver/grey 2008 4-door Cadillac with license plate CPKX522, registered to the Applicant as the lessor and H. as the lessee. e. The officers did not locate the Applicant or the vehicle. P. and J. advised the officers that they last saw H. August 9, 2020, when she picked up an insurance card for her new vehicle. She was alone and driving a silver Cadillac. The card showed H.’s name and that she was insured as of July 24, 2020. f. H. called her parents from a number they did not recognize. H. said she was running away from the Applicant. She transferred $500 to her brother for safekeeping. g. P. and J. informed the officers that at approximately 10:30 p.m., an individual, who they believed to be the Applicant and the “him” H. refers to, was parked on their street. The Applicant identified himself as “Jason” to P. and J. and stated, “I just want my iPhone back…” The Applicant subsequently left and was seen getting into the silver Cadillac, which they believed to be the same vehicle H. was driving. h. P. and J. described the male as black, 5’8”, medium build, brown/black hair in corn rows tied back, a black T-shirt with a white “Kenzo” logo on front and white stripe down the sleeve, black shorts, white socks with grey slip-on sandals, and wearing a blue medical mask over his face. Officers reviewed the mugshot of the Applicant on file. Though the male has his face covered by the mask, there are obvious physical similarities and a significant likeness. i. Police requested subscriber information and a ping on the phone number H. used. The phone number was registered to Telus account under the name “Princess P”, with the address of 98 Bristol Rd. E. Mississauga. Telus was unable to ping the phone as it was turned off but advised of where it last pinged. j. Officers attended the area of 98 Bristol Rd. E., which appeared to not exist.

[19] DC Reynolds viewed the photograph of the Applicant’s vehicle and the Applicant taken by P. on August 16, 2020.

[20] DC Reynolds conducted an open source “Google” web search for the phone number associated to H., 647-762-6789. DC Reynolds located several advertisements for sexual services on the website, Leolist.com, of H. Her name was listed as “Cassie”.

[21] DC Reynolds next conducted a search/check on H. and found the following police reports:

a. Windsor Police Report #2020-22097. i. A Human Trafficking investigation which occurred in January 2020. The Applicant and H. were investigated for their involvement in the exploitation of a 16-year-old female in the sex trade. b. Niagara Police Report #2020-82862. i. On Saturday, August 29, 2020, at approximately 9:00 p.m., police attended Grisdale Road and Merritt Road in the City of Thorold for an intoxicated person call for service. The 9-1-1 caller, Gregory Morden, observed a silver four door vehicle stop and let out a female on Grisdale Road, where there were no homes. ii. The female approached Morden. Morden noticed she was visibly upset and crying. She was holding her lower abdomen and appeared to be in pain. She asked Morden to contact her mother in Etobicoke. Morden called the number provided but it appeared to be out of service. iii. The female identified herself as H.C. H. asked Morden to call someone for help. Morden asked if she was hurt. H. responded, “not yet”. Morden said help was coming and called the police. Upon finding out that the police were called, H. got upset and walked back to where she was dropped off. iv. As H. walked back, Morden heard two beeps of a car horn from the same silver four door vehicle that was waiting down the street. H. entered the rear passenger door and the vehicle drove off. v. Morden provided the license plate number, CPKX 522 and advised it was a four door Cadillac. The license plate returned back to registered owner, Marlon Downey of 64 Mossgrove Crescent in the City of Brampton. vi. OPP relayed this information to D.C. Reynolds, the OIC. vii. As per the information provided, H.’s phone was pinged for her safety. The ping returned back to Kings Cross and Kensington in the City of Brampton, with a radius of 1.5 kilometers at 11:45 p.m.

[22] DC Reynolds had grounds and sought an arrest warrant for the Applicant for the following offences: Trafficking in Persons Exercise Control cc 279.01 (Assault, CC 266, Threaten Death CC 264.1(1), Criminal Harassment CC 264(2)(a), Unlawfully in a Dwelling CC 349 (1).

[23] On August 31st, 2020, DC Reynolds informed DC Mark Tan of the Toronto Police Service Gun Violence Suppression Team regarding the grounds to arrest the Applicant.

[24] DC Reynolds then looked at the memo book notes of DC Kevin Bolduc of the Toronto Police Service Gun Violence Suppression Team (the “Team”) on the attempt to arrest the Applicant. The notes contained the following:

a. The Team observed the 2008 silver Cadillac CTS with license plate CPKX 522 travelling at a high rate of speed. b. The Team surveilled the vehicle. DC Bolduc observed the Applicant exit from the driver side of the vehicle. Members of the Team chased the Applicant, but he escaped. c. The Team sealed and seized the 2008 silver Cadillac CTS with license plate CPKX 522. The vehicle was towed by TPS and stored in a police storage facility located at 2050 Jane Street.

[25] Finally, DC Reynolds reviewed a videotaped statement provided by D.P. to DC Scott Taylor of the Human Trafficking Enforcement Team. The videotape was provided on July 5, 2020. D. provided the following details:

a. D. was an independent sex worker who became reacquainted with the Applicant in June of 2020. D. was asked to work as an escort at various motels/hotels in Western Ontario. b. D. believed herself to be in a mutual relationship with the Applicant. The Applicant gained possession of D.’s personal items, including her identification cards, banking information, personal documents and clothes. D. gave all her money to the Applicant, believing they had a future together. c. At one point, the Applicant threatened D. D. felt obliged to comply since the Applicant had all her money and belongings. The escort money earned by D. was used to pay for the motel/hotel room and the rest was turned over to the Applicant. d. From approximately June 1st, 2020 to June 15th, 2020, the complainant gave approximately $10,000.00 she earned to the Applicant. D. asked the Applicant to return her money and personal belongings. The accused did not and stopped responding to phone calls. On Sunday July 5th, 2020, D. contacted TPS to report her situation.

GROUNDS TO SEIZE CELL PHONES AND EXTRACT INFORMATION FROM THEM

[26] In the ITO DC Reynolds set out his training and experience related to human trafficking investigations. He referred specifically to electronics associated to such investigations as follows:

Human Trafficking Investigations

In the human trafficking investigations that I have been involved in, all of them involved the use of mobile phones for the purpose of trafficking in persons. The mobile phones are used in numerous ways including but not limited to:

Electronics Associated to Human Trafficking Investigations

1. Mobile phones, laptops, tablets and personal computers are commonly used by traffickers to take or upload pictures of their victims for the purpose of creating online escort advertisements. I have learned that traffickers will post advertisements themselves or cause for escort advertisements to be posted. Traffickers often require that escort advertisements be updated daily. Updating escort advertisements daily causes the advertisement to be at the top of the list of latest advertisements when conducting an internet escort advertisement search.

2. Mobile phones are utilized by traffickers in communicating and maintaining control of their victims. Traffickers will often monitor the victim through the use of mobile phone calls and text messages. Victims are often required to report to their traffickers when they are contacted by a client, what sexual act is requested, how much the client is willing to pay, when the sexual services have concluded, and how much money the victim had obtained. These reporting requirements are very common in human trafficking investigations and are a control tactic utilized by the traffickers. Traffickers will often send text messages on behalf of the victim to clients and determine what sexual acts will be offered for an agreed upon price. The trafficker will schedule the time and demand that the victim provide the sexual service. The majority of mobile phones have the ability to take pictures. Mobile phones utilized by traffickers often contain pictures of their victims dressed in lingerie or in the nude. These photographs are often used in escort advertisements.

THE DELAY IN APPLYING FOR THE SEARCH WARRANT

[27] This issue relates to the personal health and volume of work faced by DC Reynolds in the time after the car was seized and before the search warrant was applied for. He testified on this application and was cross examined. His evidence included the following information:

a. He has been a police officer since May 2000 and joined the Human Trafficking Enforcement Team in February 2015. b. He was one of the lead investigators in relation to a human trafficking ring that trafficked women in the online sex trade industry all over Ontario and other provinces. c. These type of investigations and cases routinely involve significant time in preparation for court. d. Disclosure material on such cases is often voluminous, including hundreds of cell phone records, text messages, photos and videos. e. Applications for search warrants and production orders are labour intensive and time consuming. f. Victims in such cases are often distrustful of police and suicidal. Some victims have formed a complicated bond with their controllers. Victims are often groomed by the trafficker and believe they are in a personal and intimate relationship with them. g. The members of the team are usually involved in several investigations and preparations for court at any given time.

[28] DC Reynolds was advised on August 31, 2020 that the car in question had been seized by police as “offence related property”. He was tasked with preparing the ITO for the search warrant. From early September 2020 he experienced symptoms of hypertension. Those symptoms increased as he worked on this and other ongoing investigations. There was a significant concern for the safety of H.C., that involved DC Reynolds and other members of the team in efforts to locate and arrest the Applicant. Those efforts included himself and other members of the team going to London, Ontario on September 9, 2020 to follow up on some ads that had been placed for sexual services of H.C. The Applicant was not located after surveillance was conducted in that area.

[29] On September 16, 2020 DC Reynolds received a call from a victim on an unrelated case that required his immediate attention. He and other members of the team were involved in that other case for two weeks.

[30] DC Reynolds testified that his health declined as he experienced headaches and blurred vision. He continued to work on the ITO in this matter as well as other cases. Shortly before the ITO was presented on October 29, 2020, he suffered a stroke.

[31] DC Reynolds was asked in cross examination whether he considered delegating preparation of the ITO to another officer. He discounted that suggestion since he was the primary writer on this case that had many nuances and developments since it started. He felt it would not have saved much time for him to bring someone else up to speed on the case.

[32] In early October 2020, H.C. attended the police station after calling to seek return of the car. It appeared to DC Reynolds that she was following direction from the Applicant in that regard. He told her that the Applicant could come in for the car. She laughed at that suggestion.

[33] By mid-October 2020, DC Reynolds and the team felt that a tracking device in the car would be the best way to locate and arrest the Applicant. The ITO for a tracking warrant would be virtually the same as for a search warrant.

[34] In cross examination DC Reynolds agreed that all of the grounds he submitted in the ITO on October 29, 2020 were available as of August 31, 2020.

WAS THE SEIZURE OF THE CAR ON AUGUST 31, 2020 LAWFUL?

[35] The Applicant submits that the warrantless seizure of the car was not lawful.

[36] Section 489(2) of the Criminal Code, R.S.C. 1985, c. C-46 provides as follows:

Seizure Without Warrant

Every peace officer, and every public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, who is lawfully present in a place pursuant to a warrant or otherwise in the execution of duties may, without a warrant, seize any thing that the officer believes on reasonable grounds

a. has been obtained by the commission of an offence against this or any other Act of Parliament; b. has been used in the commission of an offence against this or any other Act of Parliament; or c. will afford evidence in respect of an offence against this or any other Act of Parliament.

[37] The police were acting on information and surveillance that indicated the Applicant was transporting the victim H.C. to various locations to be trafficked.

[38] This is not an instance of a car that is unconnected to the crimes being investigated. Human trafficking investigations in this and other cases include the victim being driven to hotels or other locations for the purpose of sexual services for hire. In my view there was evidence that this car had been used in the commission of offences against the Criminal Code. Thus, the seizure of the car was lawful and Charter compliant.

[39] The police clearly had grounds to arrest the Applicant on August 31, 2020. If he had not escaped capture that day as he was in or near his car, the police could have lawfully searched the car incident to his arrest. When he successfully fled on foot, the car was properly and lawfully viewed as offence-related property subject to seizure without a warrant.

THE DELAY IN REPORTING TO A JUSTICE

[40] Section 489.1(b) of the Criminal Code requires a return before a Justice of anything seized, inter alia, pursuant to s. 489(2) without a warrant as soon as practicable. There was a return to a Justice on Sept. 17, 2020. The filing is mandatory but there is no specific time limit for the return. Analysis of “as soon as practicable” includes flexibility and context and is fact specific: R. v. Robinson, 2021 ONSC 2446, at para. 12.

[41] In R. v. Garcia-Machado, 2015 ONCA 569, 126 O.R. (3d) 737, the accused faced charges of impaired driving causing bodily harm and driving over 80. A police officer obtained a search warrant authorizing the seizure of hospital records and blood samples taken for medical reasons. The officer filed the report to justice 15 weeks after seizure. The officer was unaware he was required to report to a justice “as soon as practicable”. The trial judge found that to be a violation of s. 8 of the Charter and excluded the evidence pursuant to s. 24(2) of the Charter. The accused was acquitted. An appeal by the Crown was allowed. The court held, at para. 45, that an individual retains a residual, post-taking reasonable expectation of privacy in items lawfully seized. Charter protection continues while the state detains those items. The violation of s. 489.1(1) of the Criminal Code compromised the judicial oversight provided for state-detained property in which the accused had a residual privacy interest.

[42] However, the court went on to say, at para. 58, that the trial judge failed to consider a number of relevant factors in assessing the seriousness of the breach and its impact on the accused’s Charter-protected interests. Among those factors was the following: had a report been made “as soon as practicable” the justice would undoubtably have ordered the continued detention. Further, while compliance with s. 489.1 was delayed there was not a complete failure to comply. The violation was minor or technical and had no real impact on the accused’s Charter-protected interests. The offences were serious. The evidence was reliable and critical to the Crown’s case. Admission of the evidence would not bring the administration of justice into disrepute.

[43] In the case before me there was not a complete failure to comply with s. 489.1. Rather there was a delay in compliance. The car was not searched until a warrant was granted on October 29, 2020. The car was entered before then only to remove some perishable food items. That discrete entry was not the subject of any Charter complaint by the Applicant.

[44] The delay in reporting to a justice here was 17 days. If the report had been made forthwith on or after August 31, 2020 the justice would undoubtably have ordered continued detention. The violation of s. 8 related to the delayed report had no real impact on the Charter-protected interests of the accused. The offences were very serious and the evidence seized was reliable and critical to the Crown’s case. Admission of the evidence would not bring the Administration of Justice into disrepute. Its exclusion may well do so.

Did the ITO provide reasonable grounds to seize and search electronic devices found in the car?

[45] At the outset of submissions, the Crown acknowledged that there was a factual error in paragraph 52 of the ITO. That para. refers to a statement H.C. gave to the police. In fact, she never gave a statement to the police. The context would suggest that the references would have been to her mother P.C.

[46] At paras. 9 and 10 of the Charter application, counsel specifies the issues related to electronic devices:

9. At no time does the ITO ever reference any specific electronic devices used either by H.C. or Mr. Downey in the furtherance of the human trafficking offences, or even the fact that H.C. and Mr. Downey would communicate via cell phones or tablets at all. The entirety of the basis for searching the cell phones is boilerplate information contained in the ITO concerning behaviour of human traffickers and their victims generally, such as the fact that electronic devices are often used to communicate with victims, take photos and post advertisements.
10. The ITO provides absolutely no evidence that any electronic device was used for those aforementioned purposes in this case. The police did not provide a single example of any text message, photo or advertisement that was sent, received, taken or prepared on any cell phone or portable electronic device. While there is mention of advertisements featuring H.C., there is no evidence provided to connect any photos taken for those advertisements to any specific electronic devices. In fact, police provided no information whatsoever as to whether Mr. Downey or H.C. were using cell phones or electronic devices to communicate with each other, and if so, what device or devices either of them used. Nevertheless, the ITO seeks, and the warrant was granted to permit, the indiscriminate search of any electronic device that happens to be found in the silver Cadillac, regardless of whom it might belong to or what it might contain.

[47] The ITO at paras. 4 and 5 refers to electronics associated to Human Trafficking investigations and the basis for seeking to seize them:

Human Trafficking Investigations

In the human trafficking investigations that I have been involved in, all of them involved the use of mobile phones for the purpose of trafficking in persons. The mobile phones are used in numerous ways including but not limited to:

Electronics Associated to Human Trafficking Investigations

1. Mobile phones, laptops, tablets and personal computers are commonly used by traffickers to take or upload pictures of their victims for the purpose of creating online escort advertisements. I have learned that traffickers will post advertisements themselves or cause for escort advertisements to be posted. Traffickers often require that escort advertisements be updated daily. Updating escort advertisements daily causes the advertisement to be at the top of the list of latest advertisements when conducting an internet escort advertisement search.

2. Mobile phones are utilized by traffickers in communicating and maintaining control of their victims. Traffickers will often monitor the victim through the use of mobile phone calls and text messages. Victims are often required to report to their traffickers when they are contacted by a client, what sexual act is requested, how much the client is willing to pay, when the services are to be provided, when contact is made with the client, when the sexual services have concluded, and how much money the victim has obtained. These reporting requirements are very common in human trafficking investigations and are a control tactic utilized by the traffickers.

3. Traffickers will often send text messages on behalf of the victim to clients and determine what sexual acts will be offered for an agreed price. The trafficker will schedule the time and demand that the victim provide the sexual service.

4. The majority of mobile phones have the ability to take pictures. Mobile phones utilized by traffickers often contain pictures of their victims dressed in lingerie or in the nude. These photographers are often used in escort advertisements.

[48] At paras. 5 and 6 of the ITO there is reference to Victim Typology that includes references to control, transportation and use of electronic devices to implement trafficking of a victim:

Victim Typology

5. Victims suffer physical or emotional abuse and often live and work in horrific conditions. They may also face consequences if they attempt to escape. This crime represents a consistent and pervasive assault on the fundamental human rights of its victims.

6. A typical structure used consists of a “Pimp” usually a male who arranges and manages the female and, in many cases, provides security for her while she performs sexual services with a customer, usually referred to as a “John”.

7. A “groomer” is a male or female who prepares the victim for the lifestyle, dresses and teaches the victim basics of the trade. Groomers have been known to be past victims themselves and in some cases act as an enforcer, punishing the victim for insolence, cheating the pimp out of money, or trying to quit the trade.

8. A transporter is a person who moves the victim from location to location, although hidden during sex transactions. Transporters also collect the daily earnings as they move from locations where victims may be working out of. In the case of a smaller organization, all these roles can be performed by the pimp themselves.

9. Local hotels and motels are used to carry out sexual transactions and in some cases; drugs are also sold out of the same location while the victim works. These motels are chosen because of their location and rates, which are usually, lower than average. Pimps usually pay cash or get the victim to register the room under her name to avoid being identified. In my experience as an investigator, I am aware that hotel staff are often bribed, intimated or pressured into renting rooms for cash with no identification or to allow guests to use back entrances that are usually not monitored by video cameras.

10. The internet has been identified as one platform that pimps, traffickers and johns currently use for buying and selling women and children for sex. Victims trafficked through pimp-controlled sex trafficking, escort services, in-call and out-call services, are commonly marketed on websites such as Backpage.com or Leolist.com and others. Individuals advertised online for commercial sex are often made to appear that they are working independently, when in fact they are victims of sex trafficking more often than is recognized or understood.

[49] In R. v. Skeete, 2012 ONSC 2633, the accused challenged the reasonable and probable grounds in an ITO relating to cell phones. Justice Nordheimer (as he then was), indicated that it is not a prerequisite to the inclusion of cell phones in a search warrant that there be some direct evidence that cell phones are somehow involved in the offences. At paras. 3 and 4 he indicated the following:

3. I would add to that conclusion the reality that in this day and age cell phone use is “ubiquitous” to borrow the word used by Watt J. in R. v. Mahmood, 2011 ONCA 693, [2011] O.J. No. 4943 (Ont. C.A.)
4. In my view, those facts and the logical inferences that flow from them would generally provide sufficient grounds for a search warrant to include cell phones as one of the items for which the police are authorized to search assuming, of course, that the nature of the information that cell phones can provide would be relevant to the offence being investigated. In particular, I do not see it as a prerequisite to the inclusion of cell phones in a search warrant that there be some direct evidence that cell phones were somehow involved in the offence. As long as there are reasonable grounds to believe that the suspect used a cell phone, that ought to be sufficient to include cell phones in the items for which the police are authorized to search. The inclusion of cell phones in this search warrant was therefore justified.

[50] Human trafficking involves overwhelming control by the trafficker in arranging for the sale of sexual services to clients/customers in hotels and other locations. The trafficker is not usually present for the sexual activity but maintains contact and control of the victim. It is not boiler plate inclusion on an ITO to refer to means of transportation and contact (cell phones, tablets etc.). It is difficult to envisage how such criminal activity could be carried out without electronic devices for ads and appointments.

[51] I am satisfied that there was an entirely reasonable basis for the police to seek such devices in this case from the car associated to the Applicant and H.C. for its potential evidentiary value.

What are the Charter Implications of the Delay in Applying for the Search Warrant?

[52] Counsel for the Applicant succinctly stated his position on this at paras. 54 and 55 of his application:

54. It is worth nothing that all of the grounds contained in the ITO to justify the search of the vehicle and cell phone are based on events that occurred and information received prior to and on August 31, 2020, the day that the vehicle was seized. Presumably, those same grounds formed the basis for the police’s decision to arrest Mr. Downey on August 31. The same information could have been provided to a Justice on the day the vehicle was seized or very shortly thereafter. There is absolutely no basis, aside from pure negligence or wanton disregard for Charter rights, to detain the vehicle for nearly two months without a warrant.
55. The onus is on the Crown to justify the warrantless seizure of the vehicle. While the Applicant has obviously not yet heard the officers’ evidence on the voir dire, it is impossible to come up with a justification for failing to comply with the constitutional rights of the Applicant for almost two months.

[53] For reasons that I will outline, I agree that the delay in this case of the search warrant application for the car was a breach of s. 8 of the Charter. However, I disagree that the delay was through pure negligence or wanton disregard for the Applicant and Charter rights. I also disagree that the evidence obtained should be excluded based on s. 24(2) of the Charter.

[54] I agree with the submission of counsel for the Applicant that all the grounds in the ITO to justify the search of the car and cell phones are based on events that occurred and information received prior to/on August 31, 2020, the day the car was seized. That is significant because the ITO did not rely on evidence or information received during the delay after the seizure to justify the issuance of the search warrant.

[55] Earlier in these reasons I ruled that the initial seizure of the car on August 31, 2020, was lawful and Charter compliant. The police were then entitled to secure the car for a reasonable time until a search warrant could be obtained. On any view almost two months delay was not reasonable. It was a breach of s. 8 of the Charter.

[56] Between August 31 and October 28, 2020, DC Reynolds continued working on this and other cases in the human trafficking unit. His health deteriorated to the point that he suffered a stroke not long before he submitted the ITO for review by the justice. He could have delegated preparation of the ITO to another officer which could have shortened the delay. I agree that such a process would have still involved some time for the new affiant to review and prepare the material. Some time could have been saved but it is difficult to specify how much.

[57] In addition to finding that the original seizure of the car was lawful, I have also found that there were reasonable grounds in the ITO to seize cell phones etc., from the car and to extract information from them. Stated in another way, I find that there was a reasonable basis for the authorizing justice to authorize the search of the car and the cell phones.

[58] The grounds for the ITO submitted on October 29, 2020 existed on August 31, 2020. If the ITO and return before a Justice had been made on September 1, 2020, the continued detention of the car and the authority to search the car and its contents would have inevitably been ordered.

[59] It is significant that during the delay up to October 29, 2020, the police kept the car secure and did not search or seize any items from inside. The situation is analogous to where police lawfully enter a residence in exigent circumstances and remain inside awaiting approval of a search warrant. Judicial precedents in this court have held that this constitutes a breach of s. 8 of the Charter, but no exclusion of the evidence provided the police did not search the premises while they awaited the warrant: R. v. Harris, 2018 ONSC 4298, 415 C.R.R. (2d) 332; R. v. McCalla, 2019 ONSC 3256, 439 C.R.R. (2d) 72; R. v. Weeden, 2018 ONSC 5182, 422 C.R.R. (2d) 102.

[60] The Charter breach, the delay in seeking the search warrant, did not itself produce any evidence. In other words, the s. 8 violation in this case did not lead the police to find any evidence.

[61] The framework for the application of s. 24(2) of the Charter was set out by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. The court must consider three lines of inquiry:

(1) The seriousness of the Charter-infringing state conduct; (2) The impact on the Charter-protected interests of the accused; and (3) society’s interest in an adjudication on the merits.

The Seriousness of the Charter-Infringing State Conduct

[62] The conduct of the police, specifically DC Reynolds, was not negligent or with wanton disregard. He was simply overwhelmed by his workload and was facing a serious health crisis. With the information and evidence available as of August 31, 2020, an order for detention and issuance of a search warrant would have inevitably issued if presented a day or two later. The delay did not prejudice any possession claim by the accused in the car. While I have found a breach of s. 8 related to delay, it was more misdemeanour than felony.

Impact on the Charter – Protected Interests of the Accused

[63] If this search related to a residence rather than a car, the accused would have a heightened Charter-protected interest. As explained in Grant, at para. 78: “[a]n unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not”. This was not the case here. Further, the Charter breach I have found did not prejudice any potential claim for return of the car before it was searched.

Society’s Interest in Adjudication on the Merits

[64] Society’s interest in an adjudication on the merits is seriously undercut where highly reliable and important evidence is excluded: R. v. Blake, 2010 ONCA 1, 257 O.A.C. 346. This is especially true in a case of human trafficking where the victim is often uncooperative with the police and prosecution evidence of the activity found on electronic devices is crucial. Further, the charges here are serious – however as noted in Blake, the Supreme Court in Grant pointed out that “the seriousness of the charge will ‘cut both ways’ when assessing society’s interest in an adjudication on the merits” Blake, at para. 31.

Balancing the Factors

[65] I am satisfied that a reasonable person, informed of all the relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would not bring the administration of justice into disrepute.

[66] Result: The application to exclude the evidence is dismissed.

[67] I am grateful to both counsel for their thorough and helpful materials and submissions.

B.P. O’MARRA, J.

Released: June 1, 2023