COURT FILE NOS.: CR-22-10000063-0000 CR-22-40000198-0000 CR-22-40000197-0000 DATE: 20230925

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Jennifer Stanton, Heather Lamourie, Patrick Clement, and Arian Khader for the Crown

- and -

CJAY HOBBS Leora Shemesh and Rameez Sewani for CJay Hobbs

HEARD: December 5 – 9, 12 –16, 2022, January 12 and 30, 2023.

REASONS FOR DECISION ON CHARTER APPLICATION

CORRICK J.

Introduction

1On May 26, 2020, Dimarjio Jenkins was shot and killed while walking on a street in downtown Toronto. The shooter, who has not been identified, fled in a blue Volkswagen SUV.

2On November 7, 2020, 12-year-old Dante Andreatta was shot and killed while walking with his mother on a street in North York. In a parking lot across the street from where Dante and his mother were walking, two gunmen opened fire on five people sitting in a Honda Civic, spraying the area with bullets. Dante was struck and killed by a stray bullet. The two gunmen fled the scene in a Honda Accord. I will refer to this event as the North York shooting.

3The Crown alleges that Mr. Hobbs drove the shooters to and from the scenes of both shootings. As a result, he is charged with several offences on three separate indictments. He is charged with the first-degree murder of Dimarjio Jenkins. He is charged, together with Rashawn Chambers and Jahwayne Smart with the first-degree murder of Dante Andreatta and the attempted murder of the five people who were in the Honda Civic. Finally, he is charged with two counts of possession of a firearm in contravention of a court order prohibiting him from doing so.

4Mr. Hobbs applies to exclude evidence obtained by the police throughout their investigation of these shootings. His application is based on breaches of several of his rights guaranteed by the Charter of Rights and Freedoms.

The Hearing of the Application

5As the application relates to all of the charges Mr. Hobbs is facing, an order was made that a joint hearing be held pursuant to s. 551.7 of the Criminal Code. I was appointed as the case management judge, pursuant to s. 551.3 of the Criminal Code to adjudicate the application.

6On consent of all counsel, the application was heard in two stages. In December 2022 and January 2023, I heard the evidence and submissions related to whether Mr. Hobbs’s rights were violated. On March 6, 2023, I advised the parties orally of my decisions on the Charter breaches. These are the reasons for those decisions.

7On April 13 and 14, 2023, I heard submissions on whether certain evidence should be excluded as a result of the Charter breaches I had found. On June 9, 2023, I provided counsel with the reasons for my decision on that matter (R. v. Hobbs, 2023 ONSC 3482).

Overview of the Investigation

8Defence counsel provided a helpful flow chart of significant events in the police investigation of Mr. Hobbs. The chart does not include the entirety of the investigation but includes the events relevant to this application. This overview borrows significantly from that flowchart.

9Several witnesses to the shooting of Mr. Jenkins told police that the shooter arrived and fled in a car with the licence plate number CKKE113. Video surveillance revealed a blue Volkswagen with that plate number in the area of the shooting. Police traced the plate number to a car rental agency in North York. The rental agency told police that the car, a blue Volkswagen Tiguan, had been rented by Marlo Williams on May 1, 2020. Mr. Williams had provided the rental agency with an Alberta driver’s licence that contained his photograph. Police discovered that the Alberta driver’s licence was fake. Mr. Williams also gave the rental agency a cellphone number of 437-225-5664.

10Police submitted the photograph from the fake Alberta licence to Forensic Identification Services (“FIS”) for facial recognition analysis. On June 1, 2020, the analysis identified CJay Hobbs as a “potential” suspect. The Facial Recognition Analysis Report sent to the investigators included the following statement: “As Facial Recognition is not a positive means of identification, this name is being offered as a potential un-verified identification of your suspect. As such, it is incumbent on the investigating officer to verify this information through accepted investigative technique.”

11On June 9, 2020, police obtained a tracking warrant for the phone number that the renter of the VW Tiguan gave the car rental agency. The warrant included a “resort to” clause permitting the police to track any other device that they believed on reasonable grounds was being resorted to by the renter of the Tiguan.

12Police learned from Toronto Social Services that Mr. Hobbs had bank accounts at the Toronto Dominion Bank and at the Royal Bank. On June 12, 2020, police obtained production orders for Mr. Hobbs’s banking records. Mr. Hobbs submits that the production orders were issued in breach of his rights protected by s. 8 of the Charter.

13From the bank records, police learned that Mr. Hobbs had made purchases from the Bone & Biscuit pet store on May 22 and 26, 2020, and from Uber Eats on May 26, 2020.

14On June 16, 2020, police learned that the purchases from the Bone & Biscuit Store were made by a customer named CJ William, who had an account with the store. Associated with the account was a phone number of 647-764-1888. Police also obtained surveillance video from the store showing a blue SUV outside of the store on May 22 and 26, 2020. The blue SUV matched the description of the VW Tiguan observed at the scene of the Jenkins murder.

15Police obtained nothing of evidentiary value from the tracking warrant for the cell phone number from the car rental agency. On June 17, 2020, they used the “resort to” clause in the warrant to begin tracking 647-764-1888, the number on the Bone & Biscuit Store customer account. They obtained two further 60-day tracking warrants for that phone number on August 13, and October 14, 2020.

16As a result of the information gathered from Mr. Hobbs’s bank records, police obtained a production order for Uber Eats. Their records revealed that an Uber Eats user with the phone number 647-764-1888 had food delivered to 169 Fort York Blvd., a condominium building known as The Garrison, in the early morning hours of May 26, 2020.

17On June 19, 2020, police attended The Garrison and viewed surveillance videos. From this review, police associated a Black male alleged to be Mr. Hobbs with unit 818 and with a blue VW Tiguan and a white Acura. Mr. Hobbs argues that the review of the surveillance footage from The Garrison violated his s. 8 rights.

18The North York shooting occurred on November 7, 2020. The Crown alleges that the data from the tracking warrant on phone number 647-764-1888 implicates Mr. Hobbs as the driver of the Honda Accord in which the shooters arrived and left the scene.

19On November 12, 2020, the tracking data from the cellphone alerted police that Mr. Hobbs was at Pearson Airport in Toronto. Upon learning that Mr. Hobbs was flying to Halifax, Toronto police notified Halifax police to have Mr. Hobbs arrested for first-degree murder. Mr. Hobbs was detained after landing in Halifax for flying with fake identification. He was searched and three cellphones in his possession were seized.

20One hour elapsed before Mr. Hobbs was informed that he was under arrest for first-degree murder, informed of his right to counsel, and permitted to call a lawyer. Mr. Hobbs submits that the police violated his rights protected by ss. 8, 10(a) and 10(b) while he was in detention at the Halifax airport.

21On November 20, 2020, police obtained a search warrant for the cellphones seized from Mr. Hobbs in Halifax. The warrant was valid from November 20 to 25, 2020. The phones were retrieved from an evidence locker at 31 Division of the Toronto Police on November 23, 2020. Only one phone was examined. The data from that phone was extracted on November 27, 2020, two days after the warrant had expired.

22Police filed Reports to Justice for the cellphones on December 20 and 21, 2020, after one of the phones had been examined. No Report to Justice was filed for the data extracted from the cellphone.

23Mr. Hobbs argues that his s. 8 rights were breached by the improper issuance of the search warrant, the data extraction after the time frame authorized in the warrant, the failure to file Reports to Justice as soon as practicable and the failure to file a Report to Justice following the extraction of the data.

24This application was argued in four parts related to the four distinct issues.

1. The production order for the banking records.
2. The warrantless review of surveillance video from The Garrison.
3. The detention and arrest of Mr. Hobbs at the Halifax airport and seizure of his cellphones.
4. The examination of Mr. Hobbs’s cellphone.

ISSUE 1 – The Banking Records

25Mr. Hobbs challenges the production orders for his banking records by mounting a facial attack on the Information to Obtain (“ITO”) prepared by D.C. Dustin Wilkins. He argues that the ITO is deficient in two respects. First, it does not establish reasonable grounds to believe that he was connected to the murder of Demarjio Jenkins. Second, it fails to establish reasonable grounds to believe that the banking records will afford evidence respecting the commission of the murder.

26The production orders in question were issued pursuant to s. 487.014 of the Criminal Code. Before issuing a production order, the justice must be satisfied that there are reasonable grounds to believe that an offence has or will be committed and that the document or data being sought will afford evidence respecting the commission of the offence. Once issued, production orders are presumed valid: R. v. Mawick, 2021 ONCA 177 at para. 36; R. v. Sadikov, 2014 ONCA 72 at para. 83. Mr. Hobbs, therefore, bears the burden of demonstrating their invalidity.

27A review of the validity of a production order is governed by the same principles that apply to a review of the validity of a search warrant.

28When the facial validity of the warrant is challenged, the review is confined to the four corners of the ITO. The record is fixed. It is neither amplified nor altered: Sadikov at para. 37. The reviewing court must determine whether the face of the ITO discloses sufficient credible and reliable evidence upon which the justice could have issued the production order. The reviewing court is not entitled to substitute its view for the view of the issuing justice. The test is whether there was any basis upon which the order could have issued, not whether the reviewing court would have issued it: R. v. Morelli, 2010 SCC 8 at para. 40; R. v. Vu, 2013 SCC 60 at para. 16. A reviewing judge should intervene only if there was no basis upon which the issuing justice could be satisfied that the pre-conditions for granting the order existed: See R. v. Garofoli, [1990] 2 S.C.R. 1421 at paras. 67-68; R. v. Sadikov at para. 84.

29The “reasonable grounds to believe” standard set out in s. 487.014 of the Criminal Code has been described in various ways. In the seminal case of Hunter v. Southam Inc., [1984] 2 S.C.R. 145, the Supreme Court of Canada established the constitutional standard of reasonable and probable grounds to believe for the issuance of search warrants. The court wrote at para. 43 that, “the state’s interest in detecting and preventing crime begins to prevail over the individual’s interest in being left alone at the point where credibly-based probability replaces suspicion.”

30Twenty years later, the Supreme Court of Canada held that the “reasonable grounds to believe” standard requires more than mere suspicion but less than the civil standard of a balance of probabilities and is satisfied “where there is an objective basis for the belief which is based on compelling and credible information:” Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para. 114.

31The issuing justice must assess the evidence included in the ITO as a whole and take a practical, common sense, non-technical approach to its assessment: Sadikov at para. 82. The issuing justice can draw reasonable inferences from the evidence in the ITO: Vu at para. 16; Sadikov at para. 82. The author of the ITO need not underline the obvious: Vu at para. 16.

32As a reviewing court, my task is to determine whether there was reliable evidence that might reasonably be believed on the basis of which the production order could have issued: Morelli at para. 40; R. v. Araujo, 2000 SCC 65 at para. 54; Sadikov at para. 84. I am satisfied that there was.

33Defence counsel argues that the only evidence outlined in the ITO that connected Mr. Hobbs to the Jenkins murder is the facial recognition analysis, which cannot rise to the standard of “credibly-based probability” because it was only a potential unverified identification of the person depicted in the photograph on Marlo Williams’s driver’s licence.

34In addition, defence argues that there is nothing in the ITO to support the reliability of facial recognition analysis. Defence submits that the only information in the ITO relevant to the reliability of facial recognition analysis demonstrates that it is not reliable as it generated a false positive identification in relation to another suspect in the same homicide investigation.

35Crown counsel disagrees that the facial recognition analysis was the only evidence in the ITO that connected Mr. Hobbs to the Jenkins murder and submits that there was sufficient credible evidence in the ITO upon which the issuing justice could have issued the production order.

36In my view, the ITO when read as a whole contained sufficient credible and reliable evidence to permit the issuing justice to determine that there were reasonable grounds to believe that Mr. Hobbs was connected to the Jenkins shooting and that Mr. Hobbs’s banking records would afford evidence respecting that offence.

37Specifically, the issuing justice had the following information before her in the ITO:

1. The facial recognition analysis results – the photograph from the fake driver’s licence of “Marlo Williams,” which was submitted to the analyst, appeared in the ITO directly beside the photograph of Mr. Hobbs, who the analyst identified as a potential suspect. This allowed the issuing justice to draw her own conclusion about whether the same person was depicted in both images. The warning attached to the facial recognition analysis report that Mr. Hobbs was a “potential un-verified” suspect did not prevent the issuing justice from using her own powers of observation to assess whether it was reasonable to believe that the two images depicted the same person. The same can be said for the fact that the affiant failed to describe facial recognition technology or that he deposed that Mr. Hobbs had been identified as only “possibly” being the male depicted on the Alberta licence. The affiant made full and frank disclosure about the false positive identification generated by the same technology, which the justice could consider in making her assessment.

   I am unable to say that the issuing justice could not have determined that the two photographs probably depicted the same man given the following features common to the faces in both photographs:

   1. the size and shape of the lips;
   2. the shape of the eyebrows, which is quite distinct;
   3. the shape of the eyes;
   4. the size and shape of the nose;
   5. the size of the ears and the fact that the left ear sits out slightly further from the head than the right ear;
   6. the hairline; and
   7. the shape of the face, although it is fuller in the photograph from the licence.

2. The Alberta Ministry of Transportation had no record of a Marlo Williams and Service Alberta confirmed that Marlo Williams’s driver’s licence was not authentic.

3. Mr. Hobbs had an Ontario driver’s licence, but it was under suspension. It would not have been available to him to use to rent a vehicle.

4. The VW Tiguan was rented on May 1, 2020. The renter made weekly payments of $400 in person. The renter made the last payment in person on May 25, 2020, the day before the Jenkins shooting.

5. Video surveillance from the car rental agency showed a blue VW Tiguan parking in the lot outside of the car rental agency on May 25, 2020. The driver of the Tiguan entered the rental agency, counted money, and handed it to one of the staff members. He exited and walked to the driver’s side of the Tiguan. The Tiguan left the parking lot moments later. The man who gave the money to the staff as seen on the video is a Black man with short-cropped hair.

6. Mr. Hobbs had numerous addresses in the Toronto and Greater Toronto area, going back to 2010, associated with his driver’s licence and his file with Toronto Social Services.

7. The cell phone number (437-225-5664) the renter of the Tiguan gave to the car rental agency was a Rogers Communications number related to a Chatr prepaid account. On May 1, 2020, when the Tiguan was rented, that number was associated to a specific device. On May 19, 2020, that device was assigned a new phone number. Between June 2 and 10, 2020, the phone number (437-225-5664) had been assigned to five different devices. Between 2015 and 2018, Mr. Hobbs provided police with four different phone numbers. His file with Toronto Social Services listed a fifth phone number. In 2017, he was arrested in possession of five separate cell phones.

8. The Toronto Dominion Bank confirmed that it had a current profile for CJay Hobbs.

9. The Royal Bank of Canada confirmed that CJay Hobbs had three accounts with them, all of which were closed in May 2020. One account was a business account with activity totalling under $3,000 in May 2020.

38When the totality of the information in the ITO is considered, there was sufficient credible and reliable evidence upon which the issuing justice could have issued the production orders for the banking records. The issuing justice could have concluded that “Marlo Williams” was CJay Hobbs, that Mr. Hobbs had disguised his identity to rent the Tiguan, and that he had made weekly in-person cash payments to the rental agency, including on the day before the Jenkins shooting.

39I do not agree with the Crown that the issuing justice could have drawn a reasonable inference that the renter of the Tiguan paid the $1,000 deposit for the vehicle by credit card or that he made the weekly rental payments by digital means, such as e-transfers. No credit card details are recorded in the information provided by the rental agency. If the renter paid by e-transfer, there would have been no need for him to attend the rental agency in person each week. The only reasonable inference to be drawn from the information in the ITO is that the deposit on May 1, 2020 was paid in cash as were the weekly payments.

40I am satisfied that the Crown has established that Mr. Hobbs’s banking records would “afford evidence respecting the commission” of the Jenkins murder. The Supreme Court of Canada has given those words a broad interpretation to include all material that is, “relevant or rationally connected to the incident under investigation, the parties involved, and their potential culpability…”: CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743 at para. 15.

41Police had evidence that Mr. Hobbs had bank accounts that were active in May 2020, the timeframe during which the police believed he was making weekly cash payments to the car rental company. It was reasonable for the issuing justice to infer that Mr. Hobbs obtained cash from one of his bank accounts to pay the car rental company. A connection linking Mr. Hobbs to the rental of the VW Tiguan and from there to the Jenkins murder could be made if he withdrew cash from his account at a time proximate to the time the weekly car rental payments were made.

42The issuance of the production orders for Mr. Hobbs’s banking records did not violate his s. 8 Charter rights.

ISSUE 2 – Warrantless Review of Video Surveillance from the Garrison

Overview

43Mr. Hobbs argues that his s. 8 rights were violated when police reviewed video surveillance footage from The Garrison condominium building without judicial authorization.

44There is no dispute that on June 19, 2020, Officer Pakka reviewed video surveillance footage from The Garrison without judicial authorization. The dispute concerns whether she had received the necessary permission to do so.

45Similarly, there is no dispute that, on June 27, 2020, Officer Bennoch reviewed video surveillance footage from June 25, 26 and 27 without judicial authorization.

The Evidence

46On this issue, I heard evidence from Officers Pakka and Bennoch, and from Luigi Aceto, the property manager of The Garrison in June 2020. The following is a summary of the evidence.

47Officer Bennoch was a member of the Homicide Squad, while Officer Pakka had been in the Homicide Squad for two months doing a one-year secondment. On June 19, 2020, both officers attended The Garrison to obtain information about unit 818 and any video showing people coming and going from that unit. The police had learned from Mr. Hobbs’s banking records and records from Uber Eats that food was delivered to unit #818 on May 26, 2020, at approximately 2:26 a.m.

48Upon arrival at The Garrison on June 19, 2020, Officer Bennoch spoke to Mr. Singh, the security officer on site. Mr. Singh told Officer Bennoch that the officer would have to make his requests to the property manager. At 12:15 p.m., Officer Bennoch met the property manager, Luigi Aceto, in Mr. Aceto’s office, located behind the security desk. Mr. Aceto informed Officer Bennoch that without a production order, Mr. Aceto could not give him the requested information about unit 818, including a copy of the lease, contact information for the owners and tenants of the unit, fob access records, Incident Reports, and video surveillance.

49Officer Bennoch testified that Mr. Aceto allowed the officers to view the video surveillance footage that day. Mr. Aceto asked Mr. Singh to assist the officers in that regard because Mr. Singh knew how to operate the surveillance system.

50Officer Pakka testified that when she and Officer Bennoch arrived at The Garrison, they were told that they could not view the video without the permission of the property manager. They had to wait some time until the property manager arrived, after which Officer Bennoch spoke to him in his office behind the security desk. Eventually, Officer Bennoch advised her that they had permission to view the video and asked her to watch it and take notes. Officer Bennoch did not view any footage that day.

51Officer Pakka viewed the video at the security reception desk with Mr. Singh, who operated the system. She began her review of video taken in the early morning hours of May 26, 2020, the relevant date and time from the Uber Eats records. She continued to view video from that day and made notes of the comings and goings of a male from unit 818 to the underground parking garage on two occasions where he is seen driving two different cars out of the garage.

52Officer Pakka also reviewed surveillance footage from May 25 and 27 to determine if any other person came out of unit 818.

53While she was reviewing the footage, Mr. Singh told her that an Incident Report related to unit 818 was filed on May 5, 2020. Officer Pakka reviewed video from that date.

54Finally, she reviewed video from May 22, 2020 to determine if the person she had seen on video making a purchase in the area of Park Lawn and Lakeshore Blvd. between 2:00 p.m. and 2:36 p.m. on May 22, 2020 was the person from unit 818. Two days earlier, she had reviewed video surveillance from Park Lawn and Lakeshore Blvd. where someone made a purchase with the same credit card used for the Uber Eats purchase at The Garrison. If she saw the person from unit 818 on The Garrison’s video surveillance between 2:00 and 2:36 p.m., he could not have been making a purchase at Park Lawn and Lakeshore Blvd. at the same time.

55Officer Pakka’s observations were relied upon to obtain a production order for a copy of The Garrison’s surveillance video from May 1 to June 16, 2020. The production order was granted.

56Mr. Aceto testified that in June 2020, he had been the property manager of The Garrison for three months. He testified that there were no written protocols at The Garrison governing management’s interaction with the police. He was authorized by the Board of Directors of the condominium corporation to use his best judgment to determine whether to allow police officers to view video surveillance without a warrant. He said that it was his job to assist the police in any way he could, bearing in mind his responsibility to protect the privacy of the residents of the building.

57Mr. Aceto recalled police officers attending The Garrison on June 19, 2020. He spoke with a male officer that day. He testified that the officer wanted information about unit 818 and wanted to view surveillance video. He testified that he did not give the officer permission to review video without a warrant. He recalled seeing an officer viewing video at the security desk while he was there but believed that he had first received a warrant. He admitted that his recollection was cloudy about whether he granted permission to the officers to view the video on June 19, 2020. He testified that Mr. Singh would not have shown the officers any video unless he had authorized it.

58A production order for a copy of The Garrison’s video surveillance from May 1 to June 16, 2020, and other information related to unit 818, was issued on June 24, 2020. Officer Bennoch reattended the Garrison on June 27, 2020 to begin copying the video authorized by the production order. While there, he reviewed video from June 25, 26, and 27, and made notes of his observations. These dates were outside of the timeline authorized by the production order. There is no evidence that Officer Bennoch was given permission by anyone to view this video.

Findings of Fact

59I find that Mr. Aceto allowed Officer Pakka to view the video surveillance on June 19, 2020, before he had received a warrant or production order. Mr. Aceto instructed Mr. Singh to assist Officer Pakka by operating the security system, and Officer Pakka spent several hours at the security desk reviewing video.

60I base this finding on the following. Mr. Aceto testified that he was unsure about whether he was given a warrant before he allowed the police to review the video, but admitted it was a possibility. He had not taken any notes at the time and the first time he was asked to recall this event was two years later. His memory was so unclear that he called Mr. Singh, who now resides in Alberta, to confirm that his memory was accurate that he had received a warrant first.

61Officer Pakka made detailed notes of the video she reviewed on June 19, 2020. She sat outside of Mr. Aceto’s office with Mr. Singh for several hours reviewing video on the security monitors. Mr. Aceto agreed that he would have noticed that, and if the police did view video that day, he would have authorized it. He also acknowledged that Mr. Singh would not have shown Officer Pakka any video without Mr. Aceto’s permission.

62Finally, on June 26, 2020, Mr. Aceto sent Officer Bennoch an email asking him to provide a copy of the warrant. The production order was issued on June 24, 2020 based partly on the observations Officer Pakka made of the video surveillance on June 19, 2020. It would have been unnecessary for Mr. Aceto to ask for a copy of the warrant on June 26 if he had already received it.

63For these reasons, I find that Mr. Aceto’s memory is faulty, and he is mistaken when he testifies that he received a warrant before he permitted Officer Pakka to view the video surveillance.

Applicable Legal Principles

64The right to be secure against unreasonable search and seizure guaranteed by s. 8 of the Charter protects individuals from state intrusion in matters over which they have a reasonable expectation of privacy: R. v. Edwards, [1996] 1 S.C.R. 128. A warrantless search that intrudes on an individual’s reasonable expectation of privacy is prima facie unreasonable: Hunter v. Southam Inc. Once it is established that the search was warrantless, the onus shifts to the Crown to show, on a balance of probabilities, that the search was authorized by law: R. v. Collins, 1987 SCC 11; R. v. Yu, 2019 ONCA 942 at para. 63.

65In two recent cases, the Ontario Court of Appeal reviewed the contextual analysis that must be undertaken by a court charged with determining whether an individual has an objectively reasonable expectation of privacy over a matter: R. v. Nguyen, 2023 ONCA 367; R. v. El-Azrak, 2023 ONCA 440. As Fairburn A.C.J.O. noted in El-Azrak, at para. 32, the test for determining whether a reasonable expectation of privacy exists is well-known and consists of four questions:

1. What is the subject matter of the search?
2. Does the accused have a direct interest in that subject matter?
3. Does the accused have a subjective expectation of privacy in the subject matter?
4. Would an expectation of privacy be objectively reasonable in the circumstances of the case?

Analysis

66The first step in the analysis is to identify the subject matter of the search, or as Justice Doherty described it, identify “what the police were really after”: R. v. Ward, 2012 ONCA 660 at para. 67. In my view, the subject matter of the search in this case was twofold. First, the police were after the identity of the person who had food delivered to The Garrison by Uber Eats in the early morning hours of May 26, 2020. Second, they were searching for the blue VW Tiguan identified at the scene of the Jenkins shooting.

67Having determined the subject matter of the search, the next step is to determine whether Mr. Hobbs had a direct interest in the subject matter. In my view, he had a direct interest in the video surveillance of his image and movements throughout the Garrison. Although he did not testify on the voir dire, I am prepared to accept that he would assert a subjective expectation of privacy in the video surveillance.

68The remaining question is whether Mr. Hobbs’s subjective expectation of privacy was objectively reasonable. The answer to this requires a consideration of all of the circumstances. Justice Cory listed several relevant considerations in Edwards at para. 45:

1. presence at the time of the search;
2. possession or control of the property or place searched;
3. ownership of the property or place;
4. historical use of the property or item;
5. the ability to regulate access, including the right to admit or exclude others from the place;
6. the existence of a subjective expectation of privacy; and
7. the objective reasonableness of the expectation.

69Justice Huscroft added the following considerations to Justice Cory’s list in R. v. White, 2015 ONCA 508 at paras. 45-47:

1. The degree of possession or control exercised over the common area by the claimant.
2. The size of the building. It is reasonable to assume that the number of people present in the common areas of the building will vary in accordance with the size of the building and its population. A resident of a large building may have a lesser expectation of privacy than a resident of a small building.
3. Whether a security system or locked doors function to exclude the public and regulate access to the common areas.
4. The ownership of the unit.

70The reasonableness of an individual’s expectation of privacy will vary among the common areas of a multi-unit building. It is more reasonable to expect privacy in the hallway outside of one’s unit than in the lobby of the building accessed by everyone entering and exiting the building. As Justice Tulloch (as he then was) noted, “the level of expectation of privacy increases the closer the area comes to a person’s residence …”: Yu at para. 84.

71When I consider the totality of circumstances in this case, I have concluded that Mr. Hobbs had a low, but reasonable expectation of privacy in the common areas of The Garrison, other than the parking garage. My conclusion is based on the following circumstances:

1. Mr. Aceto testified that The Garrison was a mid-sized building of twelve or thirteen floors and between 130 and 160 units.
2. Mr. Hobbs did not own unit 818, nor was he listed in the condominium’s records as a tenant of that unit.
3. Access to the building, including the underground parking garage, is controlled by a key fob. It was reasonable for Mr. Hobbs to conclude that the building’s security system excluded the general public.
4. Mr. Hobbs had no control over access to the common areas.
5. The cameras that recorded the video that Officer Pakka viewed had been installed by the condominium corporation, not the police.
6. The cameras in the lobby area were plainly visible.

72I have excluded the parking garage from the common areas over which Mr. Hobbs had a low but reasonable expectation of privacy based on binding authority from the Court of Appeal that there can be no objectively reasonable expectation of privacy in a garage that was shared with many other residents in a multi-unit building and over which Mr. Hobbs had very little control: R. v. Drakes, 2009 ONCA 560 at para. 18; Yu at paras. 78-79.

73I rely on the decision of Justice Huscroft in R. v. White to conclude that Mr. Hobbs’s reasonable expectation of privacy is not entirely eliminated simply because a large number of people, including neighbours and their guests, have access to the common areas in the Garrison: White at para. 48. However, the factors I have listed above establish that his reasonable expectation of privacy in the common areas of The Garrison was low.

74I turn now to whether Officer Pakka’s review of the video surveillance violated Mr. Hobbs’s right to be secure against unreasonable search and seizure. I have concluded that it did not for the following reasons.

75Mr. Aceto consented to Officer Pakka’s review, and as a result, her search of the video surveillance was authorized by law. I am satisfied of the validity of Mr. Aceto’s consent based on the factors set out in R. v. Wills (1992), 7 O.R. (3d) 337 (C.A.).

76Mr. Aceto testified that he was authorized by the Board of Directors of the condominium corporation to permit police to review video surveillance without a warrant. He further testified that he was not coerced or threatened by police to allow them to view the video. He described the officers as very polite and not at all forceful. Although he had only been the property manager at The Garrison for three months, he was an experienced property manager who had dealt with this kind of police request several times and understood that he had the right to refuse their request. He knew what the police were requesting, and he described in detail the potential consequences of giving his consent, particularly how it could affect the privacy rights of others.

77I have also considered the manner in which Officer Pakka conducted her review. The focus of her review was narrow. She did not view months of video surveillance but rather focused on certain dates. She began on May 26, 2020, the date of the Uber Eats delivery, and the date of the Jenkins murder. Having seen the suspect VW Tiguan, she then viewed the preceding and following day. She also looked at May 22 to determine if there was evidence that could eliminate an individual as a suspect. Finally, she looked at May 5, the date of the Incident Report. She observed Mr. Hobbs only in the common areas of The Garrison. She did not observe the interior of unit 818, or any other private space, such as a storage locker. In my view, she conducted her search in a reasonable manner.

Conclusion

78For all of the above reasons, I conclude that Officer Pakka’s review of The Garrison’s video surveillance on June 19, 2020 was lawful and did not breach Mr. Hobbs’s s. 8 rights.

79Officer Bennoch’s review of the Garrison’s video surveillance from June 25, 26, and 27 did violate Mr. Hobbs’s s. 8 rights. It was undertaken without judicial authorization. There is no evidence that Officer Bennoch sought or received permission from anyone at The Garrison to view that video.

ISSUE 3 – The Detention and Arrest of Mr. Hobbs and Seizure of his Cellphones

Overview

80Mr. Hobbs was arrested and charged with first degree murder in Halifax on November 12, 2020. At that time, police seized three cellphones from him. He argues that he was not informed promptly of the reason for his detention and was not allowed to contact counsel without delay, in violation of ss. 10(a) and 10(b) of the Charter. He further argues that his cellphones were seized from him in violation of s. 8.

81Crown counsel concedes a “technical” breach of s. 10(a) and a breach of s. 10(b) but argues that the seizure of Mr. Hobbs’s cellphones was lawful and did not violate his s. 8 rights.

The Evidence

82I previously set out much of the relevant evidence on this issue in my reasons on the application to exclude evidence (R. v. Hobbs, 2023 ONSC 3482). I recount them here again.

83Two police officers testified on the Application, Officer Laraque, a Halifax Regional Police officer, and Staff Sgt. Pynn, an RCMP officer.

84The Halifax airport is under the jurisdiction of the RCMP. Halifax Regional Police is under contract with the RCMP to provide security at the airport. On November 12, 2020, Officer Laraque was working security at the airport. He received a call from the police dispatcher just before 11:45 p.m., informing him that Detective Hillier from Toronto had advised that a person named Rahim Alexander (who was in fact Mr. Hobbs) was flying with fake identification to Halifax and was arrestable for attempted murder. Officer Laraque and his partner proceeded to the gate where the flight had already landed. He had the airline crew hold the passengers on the plane while he located Mr. Hobbs.

85Officer Laraque was concerned about Mr. Hobbs’s reaction on the plane when he was arrested for attempted murder. In an effort to keep the situation as calm as possible on the plane, when Officer Laraque located Mr. Hobbs at 11:50 p.m., he told him that he was being detained for flying with false identification. He seized a cellphone Mr. Hobbs was holding in his hand, patted him down, searched his pockets, handcuffed him, retrieved his backpack, and returned with him to the police office in the airport. Officer Laraque did not inform Mr. Hobbs of his right to contact counsel.

86En route to the office with Mr. Hobbs, Officer Laraque received further information from dispatch that Mr. Hobbs was wanted for murder, not attempted murder, and that Detective Hillier wanted any electronics on Mr. Hobbs’s person to be seized. Mr. Hobbs and his belongings were searched in the police office. A second cellphone was located in his jacket pocket and a third was found in his backpack. The police also located identification in the name of CJay Hobbs.

87Once in the office, Officer Laraque called Detective Hillier, who briefed him on the details of the murder charge. Following this conversation, Officer Laraque was satisfied that Detective Hillier was a police officer. Prior to it, Officer Laraque had been taking instructions from the dispatcher without knowing anything about Detective Hillier.

88Staff Sgt. Erica Pynn of the RCMP arrived in the police office at 12:04 a.m. Officer Laraque briefed her on the situation including the details of his conversation with Detective Hillier. He told her that Mr. Hobbs was being detained for flying with false identification, and that he had been searched. Officer Laraque testified that once Staff Sgt. Pynn arrived, the RCMP had taken over the investigation. He stopped dealing with the situation and left it in Staff Sgt. Pynn’s hands. She became the decision maker, and he took her instructions.

89Officer Laraque testified that he was not prepared to arrest Mr. Hobbs for murder or attempted murder without first speaking to Detective Hillier or receiving an email or message confirming “everything.” After his conversation with Detective Hillier, he thought he had the requisite grounds to arrest Mr. Hobbs but left the matter up to Staff Sgt. Pynn, who wanted more details about the offence from Detective Hillier.

90Nearly one hour after Mr. Hobbs had been detained, Staff Sgt. Pynn emailed Detective Hillier asking when he was going to send something to allow the police in Halifax to formulate the grounds to arrest Mr. Hobbs for murder. She informed Detective Hillier that Mr. Hobbs had only been detained for flying with fake identification.

91Detective Hillier sent Staff Sgt. Pynn an email setting out some of the details of the North York shooting and indicating his belief that Mr. Hobbs had driven the shooters to and from that crime. Staff Sgt. Pynn instructed Officer Laraque to arrest Mr. Hobbs. One hour after he first detained Mr. Hobbs, Officer Laraque arrested him for first-degree murder, read him his rights to counsel and cautioned him. Mr. Hobbs spoke to counsel of his choice soon thereafter.

Analysis

92Given the Crown’s concession on the ss. 10(a) and 10(b) breaches, it is unnecessary to deal in depth with these two arguments. However, I want to be clear that I do not accept Mr. Khader’s characterization of the s. 10(a) breach as “technical.” Mr. Hobbs was left in the dark about the true reason for his detention for one hour.

93Mr. Khader argues that Officer Laraque had no information about the murder and was thus unable to meaningfully inform Mr. Hobbs about the reason for his detention. This is inaccurate. Officer Laraque knew that Mr. Hobbs was wanted in Toronto for murder and that the police in Halifax were seeking further information. That was why Mr. Hobbs was being detained and he should have been so informed immediately upon his detention as mandated by s. 10(a) of the Charter.

94Mr. Khader also argues that the secondary purpose of s. 10(a), to allow a detainee to meaningfully consult with counsel, could not have been achieved in this case because Officer Laraque was not able to provide the details of the murder to Mr. Hobbs’s counsel. I do not accept this. Informing Mr. Hobbs that he was wanted by police for murder was enough to give Mr. Hobbs and his counsel an idea of the extent of his legal jeopardy and allow for meaningful consultation.

95In addition, as Ms. Shemesh pointed out, it is not usual for police to provide counsel with the details of the offences facing an arrested party. Indeed, when Officer Laraque called Mr. Hobbs’s counsel, he told him that Mr. Hobbs was in custody in Halifax, under arrest for first-degree murder. He provided no other details.

96The failure to advise Mr. Hobbs of the reasons for his detention was not a mere technical breach of his s. 10(a) rights. It was a significant breach, as was the failure to inform him of his right to contact counsel as required by s. 10(b) of the Charter.

97I turn now to the search of Mr. Hobbs and his belongings, and the seizure of his cellphones, cash, and identification. As these searches were warrantless, they were prima facie unreasonable. The Crown thus bears the burden of showing, on a balance of probabilities, that they were reasonable: R. v. Collins at para. 33.

98Mr. Khader argues that Officer Laraque was entitled to search Mr. Hobbs and seize his belongings on four different grounds:

1. Search pursuant to an arrest under the Aeronautics Act.
2. Search pursuant to an arrest for uttering a forged document or obstructing justice under the Criminal Code.
3. Safety search pursuant to investigative detention.
4. Search incident to arrest for murder pursuant to the grounds held by Detective Hillier.

99The first two grounds can be dealt with together. Mr. Hobbs was not arrested for any offence under the Aeronautics Act nor for uttering a forged document or obstructing justice. He was not arrested for any offence related to flying with false identification.

100In R. v. Caslake, [1998] 1 S.C.R. 51, the Supreme Court reviewed the principles governing the power of search incident to arrest. In that case, the police searched an accused’s car hours after he had been arrested for possession of marijuana for the purpose of trafficking. The search uncovered cash and cocaine. The sole reason the officer searched the car was to comply with a policy that the contents of impounded cars be inventoried. Lamer C.J. noted that search would have been justified as incident to arrest had the officer been searching for evidence to use at the accused’s trial. The Chief Justice went on to hold that, “the police cannot rely on the fact that, objectively, a legitimate purpose for the search existed when that is not the purpose for which they searched”: Caslake, at paras. 26-27. Similarly, the Crown cannot rely on the arrest of Mr. Hobbs for offences for which he was not arrested, and which were unrelated to the purpose of the search.

101The search of Mr. Hobbs and his belongings was not a safety search related to investigative detention. It went beyond that. Officer Laraque testified that when he located Mr. Hobbs on the plane, he seized a cell phone that Mr. Hobbs was holding in his hand, patted him down and searched his pockets. When they arrived at the police office, Mr. Hobbs’s jacket and backpack were searched and two further cell phones, cash and identification were seized.

102Officer Laraque had a reasonable basis to believe that his safety or the safety of others was at risk when he detained Mr. Hobbs on the plane justifying a pat-down search. However, there is no evidence that the pat-down search revealed any safety concern justifying Officer Laraque to go beyond that to search Mr. Hobbs’s pockets and later his jacket and backpack: R. v. Mann, 2004 SCC 52 at paras. 45, 49. There is also no evidence that Officer Laraque believed that his safety or the safety of others was at risk if he did not seize the phone that Mr. Hobbs was holding when he was detained. A safety search pursuant to investigative detention did not justify this search or seizure.

103This leaves the issue of whether the search of Mr. Hobbs was a search incident to arrest. The cellphone Mr. Hobbs held in his hand when Officer Laraque approached him on the plane is the main target of this application. This cellphone was ultimately searched pursuant to a warrant. I will focus on that.

104The Crown argues that Officer Laraque was lawfully entitled to seize Mr. Hobbs’s cellphone on Detective Hillier’s instructions because Detective Hillier had reasonable and probable grounds to arrest Mr. Hobbs for murder and search him incident to that arrest. Officer Laraque was simply acting as Detective Hillier’s agent when he seized the cellphone. The Crown further argues that the fact that the cellphone was seized one hour before Mr. Hobbs was arrested is not determinative of whether the seizure was incident to the arrest.

105Counsel argued the issue of whether this was a search incident to arrest on the basis that Officer Laraque had received Detective Hillier’s instruction to seize the cellphones before he seized the phone out of Mr. Hobbs’s hand. This is contrary to the evidence of Officer Laraque and Detective Hillier. Officer Laraque testified that he had no instructions to seize Mr. Hobbs’s cellphones before interacting with Mr. Hobbs on the plane. He received those instructions from the dispatcher while escorting Mr. Hobbs to the police office, after he had already seized the phone. Detective Hillier testified that when the dispatcher from Halifax Regional Police called to advise him that Mr. Hobbs was in custody, he asked that Mr. Hobbs’s cellphones be seized.

106Officer Laraque did not seize Mr. Hobbs’s cellphone from his hand on the instruction of Detective Hillier. There is no evidence why Officer Laraque seized the phone when he detained Mr. Hobbs. I have concluded that it was not seized incident to arrest for the following reasons.

107The power to search and seize evidence incident to arrest does not require a warrant or independent reasonable and probable grounds. The power arises from the fact of the arrest, which itself must be based on reasonable and probable grounds, or an arrest warrant: Caslake, at para. 13.

108An officer who has both subjectively and objectively reasonable grounds to arrest an individual, and therefore to search that individual, does not have to be the officer who effects the arrest or conducts the search. That officer can instruct another officer to make the arrest and conduct the search. The officer who arrests and searches the individual is simply following orders. He or she is not required to have subjectively reasonable grounds for the arrest and search but is instead entitled to assume that the instructing officer had the requisite reasonable and probable grounds: Debot, [1989] 2 S.C.R. 1140, at paras. 49 and 50.

109Applying those principles to the present case, Detective Hillier had the requisite grounds to arrest Mr. Hobbs and search him incident to that arrest. He instructed Officer Laraque to do so. Officer Laraque was entitled to assume that Detective Hillier had the requisite grounds to arrest Mr. Hobbs. However, Officer Laraque did not make that assumption. He wanted more information before accepting Detective Hillier’s instructions. This fact distinguishes this case from those relied on by Mr. Khader in which the arresting and searching officer acts on the assumption that the officer who ordered the arrest had reasonable grounds to do so. See R. v. Dibble, 2011 ONSC 399; R. v. Ellis, 2016 ONCA 598; R. v. Francis, 2022 ONCA 729.

110The same principles apply to the search of Mr. Hobbs’s jacket and backpack. When these items were searched, Officer Laraque was still not prepared to rely on Detective Hillier’s instruction to arrest Mr. Hobbs. His search of Mr. Hobbs’s belongings violated s. 8.

111The fact that Mr. Hobbs’s cellphones would have eventually been seized once he was arrested, an hour after he was detained, is relevant to the s. 24(2) analysis, but is irrelevant to a determination of whether there was a breach of s. 8.

112Mr. Hobbs’s right to be secure from unreasonable search and seizure was violated when Officer Laraque seized the cellphone from him on the plane and when his belongings were searched in the police office.

ISSUE 4 – The Examination of Mr. Hobbs’s Cellphone

113Mr. Hobbs challenges the facial validity of the search warrant that was issued for his cellphones, as well as the manner in which the warrant was executed. He raises the following five issues.

1. The ITO failed to disclose reasonable grounds to believe that Mr. Hobbs was connected to the North York shooting and was therefore invalid.
2. The search warrant that was issued was overbroad, and the police conducted the search in an overbroad manner.
3. The police executed the warrant after the time specified in the warrant.
4. The police failed to file a Report to Justice as soon as practicable as required by s. 489.1 of the Criminal Code and did not obtain a detention order before examining the cellphone.
5. The police failed to file a Report to Justice once the data from the phone had been extracted.

Issue 4(1) Validity of the Warrant to Search the Cellphone

114I have concluded that the warrant to search Mr. Hobbs’s cellphones issued on November 20, 2020 was invalid as it did not contain sufficient credible and reliable evidence connecting Mr. Hobbs to the North York shooting and, without that connection, there is no basis to believe that his cellphones would provide evidence of the offence.

115Earlier in this decision, I set out the general legal principles that govern the review of the issuance of a search warrant (see Issue 1 – Banking Records). I do not intend to repeat them here.

116Officer Kapoor was the affiant of the ITO for the warrant to search Mr. Hobbs’s phones. When tasked to prepare the ITO, he was new to the Homicide Squad, having joined in October 2020. He was not experienced at preparing ITO’s. Prior to this investigation, he had prepared ITO’s for only two search warrants and one production order when he worked at 23 Division. He was assigned to prepare the ITO’s for all of the warrants and production orders related to the North York shooting.

117There was more than sufficient evidence in the ITO to believe on reasonable grounds that three suspects were involved in the North York shooting, two shooters and one getaway car driver. It outlines in detail the movements of the suspects before, during and after the shooting. It includes still photographs of the suspects taken from video surveillance. Three people are seen on video surveillance at 27 Bathurst Street the morning of the shooting on November 7, 2020. At approximately 2:00 p.m. on the same day, three people wearing the same clothing as the people seen at 27 Bathurst Street are seen getting out of a Dodge Durango parked on the side of Peelar Road in Vaughan and getting into a silver Honda. The silver Honda is seen on video surveillance arriving at 25 Stong Court at 2:12 p.m. The shooting occurs and the silver Honda is seen returning to Peelar Road where two suspects get into the Dodge Durango and both cars are driven away. Three people wearing the same clothing are seen at 3:13 p.m. on the same day at 27 Bathurst Street.

118What the ITO fails to include is evidence in support of the police theory set out at paragraph 22 of the ITO that CJay Hobbs is the third suspect. What details there are about CJay Hobbs are set out in paragraph 65 of the ITO. Paragraphs 65 a. to c. set out that Mr. Hobbs is under surveillance. He is a person of interest in a separate homicide being investigated by Team 6 of the Homicide Squad. Fraudulent Quebec identification for Mr. Hobbs is part of that investigation.

119Paragraphs 65 d. and e. state that Team 6 has a warrant to track a cellphone of Mr. Hobbs, and his cellphone was found to be in the areas of 27 Bathurst Street and of Peelar Road. ¹ There is no evidence in the ITO in support of the assertion that the cellphone found in the areas of 27 Bathurst Street and Peelar Road belong to or is being used by Mr. Hobbs. The number associated with the cellphone is not indicated nor are the date or time when the cellphone was found in the area of 27 Bathurst Street and of Peelar Road.

120Mr. Khader argues that when the ITO is read as a whole, it was reasonable for the issuing justice to infer that the cellphone was found in those areas on November 7, the day of the shooting. He relies on several things in support of that argument:

1. The ITO does not refer to any date, other than November 7, when the three suspects are together.
2. The ITO identifies Mr. Hobbs as one of the suspects and includes a photograph of one of the suspects (alleged to be Mr. Hobbs) using a cellphone at 3:15 p.m. in the vestibule of 25 Bathurst Street.
3. There is no mention of Mr. Hobbs being at 27 Bathurst or Peelar Road on any date other than November 7.
4. Paragraph 65 f. of the ITO reads, “The description of CJay Hobbs matches the description as in this investigation.”
5. Paragraphs 65 h., j. and l. indicate that CJay Hobbs is at the airport and is fleeing, using false Quebec identification in the name of Rahim Alexander. When he is arrested in Halifax on November 12, 2020, he is in possession of three cellphones.
6. The issuing justice was very thorough, having rejected several previous applications for production orders in this case and providing detailed reasons for doing so. According to Mr. Khader, if the issuing justice was unable to figure out how Mr. Hobbs’s cellphones related to the North York shooting, she would have denied the warrant.

121I do not accept Mr. Khader’s argument for the following reasons. There was insufficient information in the ITO to permit the issuing justice to draw the inference that Mr. Hobbs or his cellphones were in the area of 27 Bathurst Street or Peelar Road on November 7, 2020. Not all of the preceding references in the ITO to the suspects relate to November 7. In paragraph 64, which immediately precedes the details about Mr. Hobbs, several photographs of the suspects taken on November 6, 2020 at 27 Bathurst Street are set out.

122The ITO identifies Mr. Hobbs as a suspect in a conclusory statement set out at paragraph 22. No evidence is provided to support the statement. Paragraph 65 f., which asserts that “the description of CJay Hobbs matches the description as in the investigation,” is also a conclusory statement. The basis for this assertion is not set out. There is no description of Mr. Hobbs in the ITO. Only the clothing of the suspect alleged to be Mr. Hobbs is described in the ITO. The clothing as described is not unique. A photograph of the suspects taken at 10:21 a.m. on November 7 at 27 Bathurst Street is set out at paragraph 37a. The clothing is described as a “black jacket with hood, gloves on hands, black pants.” At paragraph 39 b., a note under a photograph taken at 33A Peelar Road at 1:58 p.m. on the same day describes the clothing as a “black jacket with possibly fur trimmed hood.” The final description of the clothing is contained at paragraph 52, on image 29, which was taken at 3:13 p.m. at 27 Bathurst Street. It reads, “black jacket, black gloves.” These descriptions fall short of supporting the assertion that Mr. Hobbs is the third suspect.

123Other portions of the ITO identify Mr. Hobbs as the third suspect without any supporting evidence.

124There is no evidence in the ITO that any of the cellphones found in Mr. Hobbs’s possession on November 12 were at the scene of the shooting on November 7. The number of the cellphone that was subject to the tracking warrant is not set out in the ITO. There is no evidence that any of the cellphones seized from Mr. Hobbs were subject to the tracking warrant. Even if it was reasonable for the issuing justice to infer that the cellphone that was subject to the tracking warrant was present at 27 Bathurst Street and Peelar Road on November 7, there is nothing to support the inference that Mr. Hobbs was in possession of that phone on November 12.

125Mr. Khader argues that the justice could work backwards from the seizure of Mr. Hobbs’s phones in Halifax to the phone pinging at the airport to the phone pinging near Peelar Road on November 7 to infer that Mr. Hobbs was in possession of the phone. However, the ITO does not mention that the phone pinged at the airport, and that inference is therefore not a reasonable one.

126Mr. Sewani argues that the affiant’s assertion that Mr. Hobbs was fleeing was also a conclusory statement unsupported by evidence. Mr. Khader argues that it was reasonable for issuing justice to infer that he was fleeing because he travelled with fake identification, and to infer that he was fleeing because he was guilty of being at the scene of the shooting on November 7. In my view, the inferences Mr. Khader suggests could have been drawn are not reasonable and amount to speculation.

127I do not accept Mr. Khader’s argument that I can assume that the issuing justice knew how Mr. Hobbs’s cellphone related to the North York shooting because she would not have otherwise issued the warrant. Such an assumption is not in keeping with the purpose of the review process, which is to determine whether the warrant was properly issued.

128This warrant was issued on the basis of an ITO that contained conclusory statements and opinions without the necessary corresponding evidence to support them. Mr. Hobbs has established that there was insufficient reliable and credible evidence to permit the issuing justice to have reasonable and probable grounds to believe that evidence of the North York shooting would be found in his cellphones. The warrant was invalid. As the Crown has not raised any other basis that would justify the search, the search of the phone was not authorized by law and was therefore unreasonable: R. v. Collins at p. 278; R. v. Francis, 2022 ONCA 729 at para. 30. Mr. Hobbs’s s. 8 rights were violated.

129The defence raised other issues with the warrant without knowing what conclusion I would reach on the validity of the warrant. As Justice Dawson noted in R. v. Merritt, 2017 ONSC 1508, at para. 222, it is somewhat artificial to deal with other substantive and timing issues. However, for the sake of completeness, I will deal with the remaining arguments.

Issue 4(2) Overbreadth of the Warrant and Manner of Search

130The warrant issued permitted the search of three cellphones that were seized from Mr. Hobbs in Halifax on November 12. No limitations, restrictions or search protocols were set out in the warrant. It authorized a search of the entire contents of three phones. Only one phone was examined.

131Mr. Sewani’s overbreadth argument has two components. The first is that the warrant itself is overbroad authorizing the extraction of all of the data on three cellphones. The second relates to the manner in which the phone was examined.

132The police were looking for a wide range of information in the cellphones. Although awkwardly worded, paragraphs 100 to 105 of the ITO set out the evidence that the police were looking for. It included communications and content related to the North York shooting, phone numbers associated to Mr. Hobbs and the other accused men, emails, photographs, videos, internet searches, downloaded items, information that may reveal other suspects victims, vehicles, place and addresses, and any commonality found between the cellphones.

133I accept that the warrant authorizes a broad search of the cellphones. Several police officers involved in the investigation noted that it was a broad authorization. But the question is whether it is overbroad. I find that it is not. It is difficult to imagine the type of limitation the issuing justice could have imposed in this warrant that would not have interfered with the ability of the police to conduct a proper investigation. Officer Haljaste testified about the limitless ways that information can be transmitted, stored, or even concealed in a cellphone. Contact information could be stored as a photograph, an email, a text message, a Word document or in the contacts section of the phone. Similarly, photographs can be part of an email, text message or Word document.

134Mr. Sewani argues that the issuing justice should have placed temporal limitations on the search as all of the relevant events in this investigation occurred within a week. However, not all data is time stamped, according to Officer Haljaste. Furthermore, given the complexity of this investigation, involving three suspects, six victims, numerous vehicles and locations, and the evidence required to prove planning and deliberation, a temporal limitation would have prevented the police from doing a thorough investigation. As Justice Cromwell warned, “attempts to impose search protocols during the authorization process risk creating blind spots in an investigation, undermining the legitimate goals of law enforcement that are recognized in the pre-authorization process”: Vu at para. 57.

135In my view, the warrant was not overbroad given the information that was being sought.

136Although there were no limits in the warrant, the police were still required to search the cellphone in a reasonable manner: Vu at para. 61. Mr. Sewani argues that the manner of the search was not reasonable and thus violated s. 8.

137Officer Haljaste downloaded the data from one of Mr. Hobbs’s cellphones, and using a program known as Cellebrite, prepared a report that he passed on to the investigative team. Cellebrite decodes the data into human readable form and categorizes it. The cellphone had data on it from January 1, 2005. Officer Fox-Vignarajah was assigned to search the data. This was the first time she had done this. She kept notes of her search. Her examination began on April 20, 2021 and continued to September 2021. She agreed that the process was very labour intensive. The phone contained an enormous amount of data. For example, 13,000 photos were stored in the phone.

138Mr. Sewani argues that Officer Fox-Vignarajah planned to review the data by starting at the beginning in 2005 and going through it chronologically. She stopped in 2007 when some of the data did not make sense to her. She then reviewed the data from November 2020 moving backwards to 2018. Mr. Sewani argues that the officer’s manner of search was overbroad and not reasonable.

139My recollection of the officer’s evidence is different. She did not begin her review of the data by searching the data from 2005. She began her review by looking at the content under the various tabs in the Cellebrite Report – instant messages, searched items, chats, and photographs. Under each tab, she worked backwards from November 2020 looking for items that would include or exclude Mr. Hobbs as a suspect in the North York shooting. In July 2021, she began reviewing the content under the tab called “Timeline.” This tab contained the entire content of the cellphone by date. She was not familiar with it. She testified that she briefly scrolled through the lines to see what the tab contained. She saw references to Uber and Lyft in 2005 and 2007, which made no sense as they did not exist at that time. She then began reviewing the content from November 2020.

140Officer Fox-Vignarajah testified that when she reviewed the search warrant, she knew that she was authorized to search for information related to the shooting that had occurred on November 7, 2020. She recognized that the warrant authorized a broad search. She went back in her review as far as 2019 and 2018 looking for evidence of a possible dispute between people. In her view, people could hold grudges for years.

141The officer testified that she was no longer seeing relevant data once she reached the data from 2018. She felt that 2018 was too far in the past and going any further would be an invasion of Mr. Hobbs’s privacy.

142In my view, the thorough examination of the data carried out by Officer Fox-Vignarajah was warranted to look for those things listed in the ITO that the police believed would afford evidence of the North York shooting. She did not search the data indiscriminately without regard to the purpose of the search. I find that manner in which the search was carried out was reasonable and did not violate s. 8 of the Charter.

Issue 4(3) Execution of Warrant Out of Time

143Mr. Hobbs argues that his s. 8 rights were further violated when the data was extracted from his cellphone after the expiration of the time limit specified in the warrant.

144A search warrant is a judicial order that governs the parameters of the search that the police are authorized to conduct: R. v. Merritt, 2017 ONSC 80 at para. 224. It describes for the officer executing the warrant and anyone else affected by its execution what actions are and are not authorized: Scott C. Hutchison, Hutchison’s Search Warrant Manual 2015 (Toronto: Carswell, 2014), at p. 93 (referred to in Merritt, at para. 225.) The wording of the warrant is thus critically important.

145The relevant recitals on the face of the warrant in question read, “that there are reasonable grounds to believe that there are in ‘See Appendix A-3’ at Toronto Police Service, 31 Division, certain things namely: ‘See Appendix A-3’.” The warrant then authorizes the police to enter the premises and search for and seize the things specified in Appendix A-3 between the hours of 9:00 a.m. to 6:00 p.m. from November 20, 2020 to November 25, 2020.

146The things specified in Appendix A-3 were described as follows:

DEVICES REQUESTED AND DATA CONTAINED WITHIN: a. Three (3) cellphones contained in the Divisional Locker Management System (DLMS) i. Locker Number 04

147Officer Kapoor removed the cellphones from the locker on November 23, 2020, as authorized by the warrant. He took them to the Intelligence Unit for examination. On November 27, 2020, two days after the timeframe set out in the warrant, Officer Haljaste extracted the data from one of the phones. There is no evidence that the other two phones were examined.

148The Crown argues that the timeframe applies only to the seizure of the cellphones from the police locker where they had been stored since they were seized from Mr. Hobbs, and not to the extraction of the data. He relies, in part, on the decision of R. v. Robinson, 2021 ONSC 2446, in which Justice Akhtar held that the search must be started within the time frame of the warrant. This is accomplished by the seizure of the phone from the police locker. The data extraction need not be completed within that timeframe.

149Mr. Sewani relies on several decisions in support of his argument that the timeframe applies to the extraction of the data: R. v. D’Souza, 2016 ONSC 5855; R. v. Salmon, 2018 ONSC 5670; R. v. Little. The court in Robinson distinguished some of those cases on the basis that the warrants in those cases explicitly set out terms and the time period within which the device had to be searched: Robinson at para. 53. The precise wording of the warrant in the Robinson case is not set out, however the court noted that it contained no such requirement. The warrant authorized searching for and seizing the phone on a specific date: Robinson at para. 61.

150Unlike in Robinson, the warrant in this case authorized the search and seizure of the cellphones and the data contained within [emphasis added]. The facts in this case are more like those in Little and D’Souza. The warrant authorized the seizure of the cellphones from the police locker and the search of the data on the cellphones. The police were required to comply with the time period set out in the warrant and they did not.

151Office Haljaste, the digital forensic examiner who extracted the data from Mr. Hobbs’s cellphone, testified that the timeframe set out in the warrant did not apply to him because he was not executing the warrant. The warrant had been executed when the phone was retrieved from the police locker. I do not accept that characterization of his role. He testified that it is impractical to set a timeframe within which he must extract data because his department had thousands of phones to examine and he may not get to a specific phone for weeks, months or even a year after it comes into his possession. In addition, the extraction process could take hours or days.

152It was open to Officer Kapoor to request a longer time frame within which to extract the data or seek a new warrant if the extraction has not occurred within the authorized time. Neither of these things occurred.

153I do not accept Mr. Khader’s submission that the position taken by the defence puts form over substance. A warrant authorizes the police to invade a person’s privacy and its terms must be meticulously followed. Otherwise, it is left to the officer executing the warrant to determine how intrusive the search will be, rather than the judicial official who issued the warrant. The failure to search the cellphone within the prescribed timeframe set out in the warrant violated Mr. Hobbs’s s. 8 rights.

Issue 4(4) Failure to File the Reports to Justice as Required

154Mr. Sewani argues that Officer Kapoor’s 33-day delay in filing the Report to Justice required by s. 489.1 of the Criminal Code violated s. 8 of the Charter. Section 489.1(1) of the Criminal Code requires police to make a report to a justice of the peace “as soon as practicable” after seizing anything. A failure to comply with this reporting condition constitutes a breach of s. 8 of the Charter: R. v. Garcia-Machado, 2015 ONCA 569 at paras. 44, 45.

155The cellphone that was ultimately examined was seized from Mr. Hobbs in Halifax on November 12, 2020. It was brought to Toronto and placed in a police locker on November 17, 2020. Officer Kapoor removed it from the locker of November 23, and Officer Haljaste extracted the data on November 27, 2020. Officer Kapoor filed the Report to Justice on December 20, 2020.

156There is inherent flexibility built into the assessment of whether the police filed the report to a justice “as soon as practicable”. The determination whether this requirement has been met will depend on the circumstances of the case, including the explanation for the delay: R. v. Canary, 2018 ONCA 304 at para. 47.

157In this case, after hearing Officer Kapoor’s explanation for the delay, I am satisfied that the report was filed “as soon as practicable.” Officer Kapoor gave a day-by-day account of his activities in this investigation from the day of the North York shooting until December 20, 2020, the day he filed the Reports to Justice. He testified that he knew the importance of filing the reports, but he prioritized the preparation and execution of search warrants and production orders for evidence that could be destroyed if not obtained quickly.

158By my rough count, Officer Kapoor was tasked with preparing and executing at least fifteen search warrants or production orders related to investigation of the North York shooting. The investigation was complex, involving three accused persons, a multitude of electronic devices, GPS data, video surveillance from airports, residential buildings and other locations, and cellphone tracking data. He testified that no one else could help him because everyone in his office was equally busy. He finally filed the reports while he was on his annual leave.

159I recognize that other judges have found that shorter delays were not “as soon as practicable.” For example, in R. v. Neill, 2018 ONSC 5323, the trial judge found that a delay of seven days in filing the report to a justice was not “as soon as practicable.” The only explanation provided for the delay in that case was that the officer had to work on other investigations and his shifts did not permit him to file the report. That case involved a single item, a Blackberry phone. On December 20, 2020, Officer Kapoor filed three reports involving 21 items. After considering all of the circumstances in this case, I am satisfied that the reports to a justice were filed “as soon as practicable,” and there was no violation of s. 8.

Issue 4(5) Failure to File a Second Report to Justice

160The police did not file a separate Report to Justice in relation to the data that had been extracted from the cellphone. This, Mr. Sewani argues, is a violation of s. 8. He argues that since the privacy interest in the data contained in an electronic device is subject to protection separate from that provided to the physical device itself, the police are required to file a separate Report to Justice in relation to the data. He relies on two decisions, R. v. Merritt, 2017 ONSC 5245 and R. v. Neill in support of his argument.

161The law is unsettled about whether a Report to Justice is required following the extraction of data from an electronic device. There is no appellate authority on the matter. In the cases relied on by Mr. Sewani, a Report to Justice was filed once the physical device was in the possession of the police. Subsequently, a warrant was obtained to search the device. No Report to Justice was filed once the warrant was executed and the data extracted from the device. In both cases, the court found that the failure to file a Report to Justice in relation to the extracted data was a violation of s. 8 of the Charter.

162The Crown argues that extracting data from a cellphone is not seizing “anything,” but is simply examining the cellphone, which has already been seized. Therefore s. 489.1 does not apply to the data and a second Report to Justice is not required. He relies on the Robinson decision, which in turn relied on the decision in R v. Nurse, 2019 ONCA 260 in support of his argument.

163In this case, a Report to Justice was filed after the cellphone was seized. The cellphone was seized for the purpose of examining its contents for evidence related to the North York shooting. A warrant was issued permitting the police to examine the data within the cellphone.

164The need for a specific authorization to search an electronic device is based on the heightened privacy concerns over the contents of such devices. As Justice Fish wrote, “It is difficult to imagine a search more intrusive, extensive or invasive of one’s privacy than the search and seizure of a personal computer:” Morelli at para. 2.

165However, these same concerns do not pertain to the post-seizure regime set out in ss. 489.1 and 490 of the Criminal Code. Once the Report to Justice was filed, the physical cellphone, containing the data, was within the purview of judicial oversight. The data remains in the phone. The extraction process did not remove it. It merely copied it. Mr. Hobbs’s property (both the cellphone and data) is protected so that he can apply for its return pursuant to s. 490.

166I agree with Justice Akhtar that it is unclear what the filing of a second Report to Justice would achieve: Robinson at para. 24.

167I find that a second Report to Justice was not required in these circumstances and the failure to file one did not violate Mr. Hobbs’s s. 8 rights.

Summary of Conclusions

168In summary, I have made the following findings with respect to challenges raised by Mr. Hobbs:

1. The issuance of the production orders dated June 12, 2020 directed to TD Bank and Royal Bank of Canada did not breach Mr. Hobbs’s s. 8 rights.
2. The police review of video surveillance footage at the Garrison, except for Officer Bennoch’s review of video from June 25, 26, and 27, 2020, did not breach Mr. Hobbs’s s. 8 rights. Officer Bennoch’s review of video from June 25, 26, and 27, 2020 did violate Mr. Hobbs’s s. 8 rights.
3. Mr. Hobbs was not informed promptly of the reasons for his detention or of his right to retain and instruct counsel in Halifax. He was also denied the right to retain and instruct counsel without delay. His rights protected by ss. 10(a) and 10(b) were breached.
4. The seizure of Mr. Hobbs’s cellphones and other properties violated Mr. Hobbs’s s. 8 rights.
5. The search warrant issued for Mr. Hobbs’s cellphones was invalid. The search of his cellphone violated s. 8.
6. The search warrant itself was not overbroad nor was the manner in which the police conducted the search.
7. The search warrant was executed out of time in violation of s. 8.
8. The Reports to Justice required by s. 489.1 were filed as soon as practicable.
9. A second Report to Justice was not required once the data from the cellphone was extracted.

169I wish to thank all counsel for their comprehensive and helpful written materials and their excellent oral submissions.

Corrick J.

Footnotes

1. 1Paragraph 65 e. reads, “His cellphone was found to be in the areas of 27 Bathurst Street, Toronto, and in the area of Peelar Road, Vaughan, and in the area of the shooting at 25 Stong Court, Toronto.” The cellphone was not found to be in the area of the shooting and that portion of the paragraph was excised on consent of the parties.