Court File and Parties

COURT FILE NO.: CR-22-158 DATE: 2024-03-20 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: His Majesty the King, Respondent AND Ali Bhatti, Applicant

BEFORE: Justice Spencer Nicholson

COUNSEL: M. Hilliard for the Crown C. Zeeh for the Applicant

HEARD: January 22 and 24, 2024

Reasons on S. 8 Application

NICHOLSON J.:

[1] The Applicant, Ali Bhatti, is charged with several firearms offences. He seeks to exclude the firearm evidence from his trial pursuant to s. 24(2) of the Charter on the basis that his s. 8 Charter rights were breached.

[2] The firearms, and ammunition, were found hidden within the door frame of the rental vehicle that the Applicant was operating when he was detained by members of the London Police Services. Mr. Bhatti had been stopped along the roadside for the purpose of executing a general warrant that authorized the seizure of his cellphone associated to a specific phone number.

[3] Mr. Bhatti challenges the issuance of the general warrant and claims that the search of his vehicle went beyond the scope of the warrant.

Background

[4] It is important to note that Mr. Bhatti was not the target of the police investigation that resulted in the general warrant being issued. Mr. Bhatti was a victim of a terrible crime.

[5] On September 10, 2021, Mr. Bhatti’s fiancé, Lynda Marques, was murdered. She was parking in the driveway of the home that she shared with Mr. Bhatti and their child. Two masked men exited a black car and fired twenty shots into Ms. Marques’ vehicle, killing her.

[6] The police conducted a thorough investigation into the killing. They were able to track the suspects’ vehicle from the scene where it subsequently met up with another vehicle, a Ford Fusion. The suspects ditched the black vehicle and drove away in the Fusion. The Fusion was traced to a car rental agency, and it was determined that the renter, Omar Afandy, had been in the London area on the day of the shooting. It was later determined that the black vehicle had been stolen in Toronto.

[7] Toronto Police Services were also interested in the same rented Fusion as part of a drug trafficking investigation involving Ammar Patel, who was believed to be a member of the Thorncliffe Park Kings gang.

[8] On November 17, 2021, Mr. Patel was arrested by the Toronto Police after he conducted several drug transactions with an undercover police officer. He was interviewed following his arrest by members of the London Police Services about Ms. Marques’ murder. He denied any involvement with the murder and denied ever being in London. However, his presence in London on the day of the murder was supported by his phone records. A search of Mr. Patel’s phone determined that the device had searched up Ms. Marques’ address, navigated to the area where the black car had been abandoned and contained text message communications about the stolen black car.

[9] Mr. Bhatti is suspected to be involved in drug trafficking in London, and the police considered that he may have been the intended target of the shooting. The police also considered that Mr. Bhatti might seek retribution for his fiancé’s death by taking matters into his own hands. The police believed that Mr. Bhatti may have information about the identity of the shooters.

[10] Mr. Bhatti was generally cooperative with the police investigation into his fiancé’s murder. For example, he granted them access to surveillance video from his home from the day of the shooting. He offered to take a polygraph test. However, the police also believed that he was not being entirely forthcoming. During a police interview on December 13, 2021, Mr. Bhatti mentioned that a “friend” told him that someone in Toronto was arrested and had spoken to an undercover police officer about Ms. Marques’ murder. Mr. Bhatti would not disclose the source of his information.

[11] The London Police believed that Mr. Bhatti’s cellphone would contain information that could lead to the identity of the shooters and assist in determining a motive for the shooting. Accordingly, the police sought and obtained a general warrant, pursuant to s. 487.01 of the Criminal Code in respect of Mr. Bhatti’s cellphone. The Information to Obtain affidavit (“ITO”) is dated December 20, 2021, and sworn by DC Comeau.

[12] The ITO outlined the details of the murder, the police investigation in both London and Toronto, the investigation into Mr. Afandy and Mr. Patel, and the arrest and interview of Mr. Patel. An Ontario Court Justice, on the basis of the ITO, granted the general warrant.

[13] The general warrant contained specific directions to the executing police officers. The preamble stated:

“THIS IS THEREFORE to authorize that Peace Officers may detain the person in possession of the cellular device associated to the phone number --**** for the purpose of searching their person and immediate area for this cellular device.

The above mentioned mobile device will be turned over to the Digital Forensic Unit to be analyzed to locate evidence on the mobile device. Examination of the mobile device shall be limited to seeking data relevant to the offence of Murder, contrary to section 235(1) of the Criminal Code . …”

[14] Further, the general warrant stated as follows:

“THIS WARRANT IS SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS to ensure that the activity authorized by this Warrant is reasonable in the circumstances:

• For the purpose of this warrant, “the device” is the one associated to the number --****;
• Peace Officers will detain Ali Bhatti and tell him that he is being detained under the authority of a General Warrant, pursuant to Section 487.01 of the Criminal Code;
• Peace Officers will use the minimal amount of force necessary to detain Ali Bhatti for the purpose of this warrant;
• The search and detention of Ali Bhatti will not interfere with his bodily integrity;
• Peace Officers will advise Ali Bhatti of his rights to counsel and provide him with his caution;
• Peace Officers will search Ali Bhatti and his surrounding area, for his cellular device (if Ali is in possession of multiple cellular devices, these will be seized only to determine which device is associated to the phone number --****--any further analysis of any device, other than the one which is the target of this warrant, will not be analyzed further without separate judicial authorization);
• Once the cellular device has been seized, Ali Bhatti will be released from this detention, unless he is subject to arrest or further detention unrelated to this General Warrant;
• The warrant will only be executed once; and
• The detention of the seized devices will be determined pursuant to Section 489 and 490 of the Criminal Code.”

[15] The London Police decided that they would execute the general warrant while Mr. Bhatti was driving his motor vehicle. Accordingly, they were conducting surveillance on his residence on January 6, 2022 to observe him depart his home. He left his residence in a Dodge Durango, which was a rental vehicle in his name.

[16] At 6:45 pm, DC Weber and DC Pavoni of the London Police Services, both experienced officers, pulled Mr. Bhatti over while he was driving. He was the sole occupant of the vehicle. They advised him that he was being detained and advised him to step out of his vehicle, which he did. They informed him that they were executing the general warrant.

[17] DC Weber observed three cellphones and an open bag in the pocket in the driver’s side door. He felt something hard in the bag and when he pulled the object out, it was a pistol magazine. It is agreed that the pistol magazine is not one of the prohibited weapons for which Mr. Bhatti is charged. Indeed, Mr. Bhatti was not arrested in relation to this magazine. DC Weber informed DC Pavoni of what he had located. DC Weber remained with Mr. Bhatti behind the Durango while DC Pavoni searched around the front seat of the Durango for other cellphones. It was DC Pavoni’s evidence that he was not authorized to search the entire vehicle, just Mr. Bhatti’s surrounding area. He acknowledged that there would have been areas of the vehicle that he could not search pursuant to the general warrant.

[18] DC Pavoni was familiar with Dodge Durangos and knew that items could be hidden in a space located within the frame of the driver’s side door. Further, he had been previously advised that Mr. Bhatti, known to be involved in the drug subculture, had previously secreted objects within this space of a Dodge Durango. He admitted on cross-examination that although he had previously found many illegal items associated with drug trafficking within vehicle door frames, he had never found a cellphone in one. However, he also testified that there would be ample storage for up to 50 cellphones in that area.

[19] DC Pavoni noticed that the arm rest on the door frame appeared to have been tampered with. He searched within the door frame and located the firearms for which Mr. Bhatti faces the charges in this case. Mr. Bhatti was arrested for possession of these weapons. I reiterate that up until that time he was not under arrest.

[20] Both police officers testified on this application. It was their evidence that although they were looking for a phone associated with a specific phone number, it was their belief that more than one cellphone could have been associated with that number at some point in time, given that SIM cards can be changed between phones. Thus, it was their view that all cellphones within the vicinity of Mr. Bhatti needed to be located.

[21] Both officers testified that they could not simply call the number authorized on the general warrant. Doing so would not tell them whether any other phones had been “associated” with the phone number at an earlier time. It was their testimony that they were looking for multiple devices. Later, the forensic unit would determine which phone was associated with the particular phone number described in the warrant.

[22] Both officers testified that Mr. Bhatti was argumentative when they pulled him over. However, he offered to provide the phone to the police. The police declined that offer.

[23] Since Mr. Bhatti’s arrest as a result of these firearm charges, Mr. Afandy and Mr. Patel have been arrested and charged with first degree murder of Ms. Marques. Neither is believed to be one of the two shooters. The theory of the Crown is that these two men aided and abetted the shooters.

Issues To Be Determined

[24] The Applicant claims that his section 8 Charter rights were violated by the police. Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure.

[25] A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable (see: R. v. Collins, [1987] 1 SCR 265, at para. 23).

[26] Counsel for the Applicant argues that it is well settled that the search of cellphones implicates important privacy interests which are different in both nature and extent from the search of other “places”. Cellphones have immense storage capacity, may generate information about intimate details of the user’s interests, habits and identity without the knowledge or intent of the user, may retain information even after the user thinks it has been destroyed, and may provide access to information that is in no meaningful sense “at” the location of the search. A cellphone search engages very significant informational privacy interests (see: R. v. Fearon, 2014 SCC 77, at paras. 51 and 63).

[27] I agree and have kept the high privacy interests that Mr. Bhatti would have in his cellphones in mind.

[28] The resolution of this application, in my view, requires the determination of three issues, as follows:

(1) Was it appropriate for the police to rely upon a general warrant under s. 487.01(1)(c) of the Code to search for and seize the Applicant’s cellphones? (2) Was there at least some evidence that might be reasonably believed on the basis of which the general warrant could have issued? (3) Did the search conducted by the police exceed the scope of the general warrant?

Issue (1): Was it appropriate for the police to rely upon a general warrant under s. 487.01(1)(c) of the Code to search for and seize the Applicant’s cellphones?

[29] In this case, the defence argues that it was improper for the authorities to rely upon a s. 487.01 general warrant as there was a more specific warrant that could have been sought.

[30] In order for a s.487.01 general warrant to issue, there must be reasonable grounds to believe that information regarding a specified offence will be obtained through the use of the “technique, procedure or device”. Furthermore, the issuing justice must be satisfied that it is in the best interests of the administration of justice to issue the warrant. Finally, there must be no other provision in the Code or other Act of Parliament that would provide for a warrant permitting the “technique, procedure or device to be used or the thing to be done”.

[31] Section 487.01 of the Code was reviewed by the Supreme Court of Canada in R. v. TELUS Communications Co., 2013 SCC 16, [2013] 2 SCR 3. It was noted that s. 487.01 was meant to make search warrants available for techniques or procedures not specified in the Code (at para. 16). Justice Abella referred to R. v. Ha, 2009 ONCA 340, 96 O.R. (3d) 751 (Ont.C.A.), where it was noted that s. 487.01(1)(c) focuses on “the particular investigative technique or procedure that the police seek to utilize and whether it can properly be authorized by another provision in the Code or any other federal statute”.

[32] Section 487.01(1)(c) should be broadly construed to ensure that a general warrant is not used presumptively to circumvent a more specific or rigorous pre-authorization requirement for warrants. The Crown is only entitled to a general warrant where it can show that no other provision would provide for a warrant, authorization or order permitting the technique (see: TELUS, at paras. 19-20).

[33] In R. v. Ha, at para. 43, MacPherson J.A. stated as follows:

[43] I agree with the analysis of Frankel J.A. The focus in the s. 487.01(1)(c) analysis is not on whether there are other investigative techniques that might accomplish the purported investigative purpose or goals of the police; rather, the focus is on the particular investigative technique or procedure that the police seek to utilize and whether it can properly be authorized by another provision in the Code or any other federal statute. In this case, the police sought to obtain authorization to conduct an unlimited number of covert entries and searches on private property over a two-month period. Except for s. 487.01 of the Code, there is “no other provision in …any other Act of Parliament” that could potentially accomplish this goal.

[34] Thus, courts have held that the police may seek to investigate using a general warrant even when they are in a position to obtain a s.487 search warrant.

[35] In this case, the alternative to the general warrant would have been a search warrant issued under s. 487 of the Code. That provision makes clear that a s. 487 search warrant is issued when there are reasonable grounds to believe that there is in a building, receptacle or place evidence of an offence.

[36] The Crown relies upon R. v. Ranglin, 2016 ONSC 3972, where the police had seized the accused’s cellphones when he was arrested and placed them in a locked police desk. The phones were subsequently searched pursuant to a s. 487 warrant and the defence argued that a s. 487 warrant was not the proper warrant. The court disagreed because the cellphones were being kept in a specific location, the police station, a building. In that case, a s. 487.01 general warrant would have been inappropriate.

[37] In Ranglin, at para. 66, Ricchetti J. noted that “[p]erhaps, if the police wanted to stop Mr. Ranglin somewhere in public and seize his cell phones, a s. 487.01 general warrant may have been the proper warrant. But in this case, unlike Kitaitchik, the two cell phones were at a specific location in a building”. I do recognize that this statement was obiter dicta, but in my view, it is a sensical statement of law.

[38] I agree with the Crown’s submissions that the police were not seeking to enter a building, receptable or place when they sought the general warrant in this case. Their investigative technique or investigative procedure did not involve searching a specific place. Rather, the police wanted the ability to stop Mr. Bhatti and retrieve from his person his cellphone. It would be far more likely that he would have his cellphone with him at any given time, than leaving it in a particular place.

[39] The Applicant relies upon R. v. K.Z., 2014 ABQB 235, and R. v. Villaroman, 2018 ABCA 220. Both of those cases involve computers. Clearly a modern cellphone has the ability to perform similar functions as a desktop computer and thus, there should be a similar concern in respect of cellphones as there is for the privacy interests in computers. However, unlike a desktop computer, a cellphone is mobile and thus, is carried about and is less likely to be kept within a specific place.

[40] More importantly, in both those cases, the computer had already been seized and the issue was whether the general warrant was sufficient to authorize the subsequent search of the computer. Whether or not a general warrant is sufficient to search the contents of the cellphone does not arise in the case before me (see: R. v. Vu, 2013 SCC 60 in that regard). The Applicant, in this application, is not seeking to exclude evidence that was found on any of his cellphones. He is seeking to exclude the firearms found in his vehicle while the police were executing the general warrant to seize his cellphone(s).

[41] Furthermore, I note that a warrant authorizing the search of Mr. Bhatti’s home or vehicle for his cellphone would be more, not less, intrusive.

[42] The defence did not raise s. 487.01 (1)(b) as an issue. I find that s.487.01(1)(c) does not prevent a general warrant from issuing in this case for the purpose of searching Mr. Bhatti and seizing his cellphones.

Issue 2: Was there at least some evidence that might be reasonably believed on the basis of which the general warrant could have issued?

[43] A reviewing judge’s role is to determine whether there is at least some evidence upon which the issuing justice could have issued the warrant. The reviewing judge is not to substitute his or her own views for those of the issuing justice. The question is whether there is at least some evidence that might be reasonably believed on the basis of which the authorization could have issued (R. v. Garofoli, [1990] 2 S.C.R. 1421, at pp. 1452, 1454; R. v. Araujo, 2000 SCC 65, at para. 51; R. v. Morelli, 2010 SCC 8, at paras. 39-43 and R. v. Sadikov, 2014 ONCA 72).

[44] The ITO affidavit has to disclose a “credibly based probability that replaces suspicion” (see: R. v. Booth, 2019 ONCA 970, at para. 56 and R. v. Cusick, 2019 ONCA 524, at para. 35).

[45] A warrant, once issued, is presumptively valid. Furthermore, the onus is upon the party challenging the warrant, in this case, the Applicant (see: Cusick, at para. 43).

[46] The affiant of an ITO is obligated to provide full, frank and fair disclosure of all material facts, including facts that might detract from the reasonable and probable grounds (Araujo, at para. 46 and R. v. Ling, 2009 BCCA 70, at para. 38). However, the obligation to provide full, frank and fair disclosure does not require the affiant to disclose every fact which might possibly be relevant—only material facts.

[47] In considering whether the warrant could have issued, the reviewing judge must exclude erroneously included information in the ITO. Where it is found that the affiant of an ITO has omitted material information, in good faith, the sufficiency of an ITO should be reviewed as though the additional information had been included (see: R. v. Morelli, at paras. 41 and 60).

[48] In Booth, the Court of Appeal, at para. 59, stated that amplification should be used to add material information that should have been disclosed in order to give an accurate picture or to replace mistakenly inaccurate information with accurate information.

[49] Furthermore, warrant review requires a contextual analysis of the entirety of the ITO, leaving aside redacted portions and including any amplifications. A narrow focus on a portion of the ITO is inconsistent with the presumption that the issuing justice diligently and independently reviewed the entire ITO and considered its contents (see: R. v. Victoria, 2018 ONCA 69 at para. 97).

[50] Inaccuracies in an ITO are not a sufficient basis on which to ground a finding of bad faith, or an intent to mislead, much less to provide a basis on which to set aside a warrant (R. v. Araujo, at para. 54).

The ITO:

[51] The ITO was sworn by DC Comeau on December 20, 2021. It contains 335 paragraphs and is 141 pages in length, without including its appendices. The ITO was in support of a general warrant under s. 487.01, a general production order, a tracking warrant to track an individual, a transmission data recorder warrant, a non-disclosure order and a sealing order. As noted, the general warrant was to detain Mr. Bhatti for the purpose of seizing his cellphone, and the subsequent examination of the cellphone.

[52] DC Comeau lays out the circumstances of Ms. Marques’ murder on September 10, 2021. The ITO also describes in considerable detail the police investigation that followed, including how the police were able to identify Osman Afandy as the renter of the Ford Fusion that met up with the black vehicle following the shooting, and how they were able to connect Mr. Afandy with Ammar Patel. Furthermore, the ITO sets out credible evidence that Mr. Afandy and Mr. Patel were in London on the day of the shooting and had searched for the location of Ms. Marques’ home on their cell phone.

[53] Mr. Patel was arrested while in the presence of an undercover police officer on November 17, 2021 for an unrelated shooting and was interviewed by London Police Services about the Marques’ murder. Mr. Patel denied any knowledge of the murder and having ever been to London.

[54] Paragraph 81 of the ITO is important as it sets out that Mr. Bhatti was interviewed on December 13, 2021 in relation to the investigation. Mr. Bhatti is described as having indicated that he was aware that an arrest had been made, and that an individual had been selling drugs to an undercover police officer and had disclosed to the undercover officer his involvement in Ms. Marques’ murder. Notably, Mr. Bhatti’s information is inaccurate as Mr. Patel denied any involvement in Ms. Marques’ murder. Mr. Bhatti is described as having indicated that the source of this information came from Toronto but would not identify the source. DC Comeau stated “[n]o media releases have been disseminated outlining the undercover operation utilized during this investigation. At this time, it is unclear how Ali Bhatti would have become aware of this information”.

[55] DC Comeau included an “Affiant Note”, as follows:

“Ali Bhatti did not specifically state that the subject was Ammar Patel, however, it is reasonable to believe that he is referring to Ammar Patel.”

[56] This information about the December 13, 2021 meeting between Mr. Bhatti and the police is repeated at paragraph 241 of the ITO. This time it is noted that Mr. Bhatti stated that he would provide to the officers an article which identified the person who was arrested. The Affiant Note following that paragraph states:

“I believe that Ali Bhatti is referring to the arrest of Ammar Patel. At this time it is unknown how Ali Bhatti would be aware of Ammar Patel’s involvement in the murder of Lynda Marques or his transactions with the Undercover Toronto Police Officer, as this is not public knowledge. As of this date Ali Bhatti has not provided the article which he stated would identify the person who was arrested.”

[57] The ITO also includes background information with respect to Mr. Bhatti, which DC Comeau states was included to identify a potential motive to the murder. Mr. Bhatti is noted to have outstanding drug charges and weapons charges. DC Comeau also states that Mr. Bhatti was identified as being part of a criminal network involved in trafficking drugs and that he is believed to be a high-level drug dealer investigated under “Project Bass”. However, he is also described as never having been charged as part of “Project Bass”. Project Bass is described in considerable detail within the ITO.

[58] At paragraph 291 of the ITO, DC Comeau describes the reasonable grounds to believe information concerning the murder will be obtained through the use of a general warrant. Among the offered grounds are that there was confidential informant evidence that Mr. Bhatti was the intended target of the murder and that he was seeking retribution for the murder. It is also described that he is believed to be a high-level drug dealer and that “it is reasonable to believe that he was the intended target and may have information in relation to suspects who are responsible for the murder”. It is further noted that he was aware of Mr. Patel’s arrest, but it was unknown how he was aware of this information.

[59] DC Comeau then sets out reasonable grounds to believe that the cellphone with the number --**** will provide evidence with respect to the murder. This includes at paragraph 295.

Arguments of the Applicant:

[60] The Applicant submits that there were several deficiencies in the ITO.

[61] The first is that the December 13, 2021 meeting between Mr. Bhatti and the police was misrepresented in paragraphs 81, 241, 291 and 295. The police officer’s notes from the interview have been produced on this application. DC Bourdeau’s notes state:

“Bhatti advised that he had been told by a friend in Toronto that there was a raid a few weeks ago, a kid was arrested who had sold drugs to u.c. officer, kid told the u.c. officer that he was involved in murder. Bhatti refused to say the name of the “friend”. Asked Bhatti if had any idea about who would want to kill him—he said “maybe”. Told Bhatti it would be helpful to investigation if he would share this info. Bhatti advised that the person had been arrested before, he will send me a news article about the person—Bhatti would not outright say the name of the person”.

[62] There is nothing materially inconsistent with these notes and DC Comeau’s summary of them in the ITO.

[63] However, the Applicant has produced four online articles dated November 24, 2021, which refer to the arrest of Ammar Patel, as well as three other individuals. Accordingly, the Applicant argues that the ITO is inaccurate to the extent that it suggests that no information about Mr. Patel’s arrest was released publicly and therefore, the only reason that Mr. Bhatti would know about the arrest is if he was receiving information from an “insider” is not a reasonable inference to draw.

[64] It is true that the ITO erroneously states that no media releases have been disseminated outlining the undercover operation, when there were four articles about Mr. Patel’s arrest. DC Comeau was cross-examined on this issue. He agreed that he was aware prior to swearing the ITO that there were media releases about Mr. Patel’s arrest. Frankly, DC Comeau’s explanation for misstating the fact that there were no media releases was not particularly satisfactory. He appeared to blame “copying and pasting”. No cogent explanation emerged. However, there was also no evidence to suggest any intentional effort to mislead.

[65] The ITO, at paragraph 291, states that Mr. Bhatti is aware of Mr. Patel’s arrest, but it is unclear how. Had DC Comeau correctly identified that there were online articles about Mr. Patel’s arrest, it would not have appeared as a “mystery” to the issuing justice how Mr. Bhatti knew about the arrest. However, the articles themselves do not provide any information that would connect Mr. Patel to the Marques’ murder and, therefore, it is still very much a live issue what other information Mr. Bhatti would have had that made him think that Mr. Patel was involved. Therefore, had DC Comeau properly included this information, in my view it is unlikely to have impacted the issuance of the warrant.

[66] The Applicant also argues that DC Comeau should have included in the ITO that Mr. Bhatti was being cooperative in the police investigation. For example, Mr. Bhatti showed the police surveillance of the shooting from his residence, he agreed to have the officers search the vehicle in the driveway, and he was willing to take a polygraph test. He also met and discussed the case with the investigators on multiple dates. Furthermore, he was open with the police about his involvement in drug trafficking.

[67] I agree that the absence of this information within the ITO fails to fairly describe the extent of Mr. Bhatti’s cooperation. However, the ITO does not suggest that he is being uncooperative, rather it indicates that he is not being fully forthcoming with respect to how he knows that there is a connection between Ms. Marques’ death and Mr. Patel. Despite Mr. Bhatti’s level of cooperation there is sufficient evidence to infer that he is still withholding information from the police. That makes that level of cooperation immaterial, in my view.

[68] Again, had the ITO contained more information detailing the level of cooperation that Mr. Bhatti was providing, I am not satisfied that the general warrant would not have issued.

[69] The Applicant argues that DC Comeau’s ITO improperly attempted to tarnish his character by describing his involvement in drug trafficking and Project Bass. However, in my view, these details are not included for any improper purpose. To the contrary, it is critically important to the police investigation that Mr. Bhatti was involved in drug trafficking, as the police suspected that Ms. Marques’ murder was connected to drug trafficking. Thus, this very information is the heart of the reason why the police reasonably believed that Mr. Bhatti’s cellphone would contain information that could lead to the identity of the killers, or reveal their motive, or provide evidence that Mr. Bhatti might be seeking retribution.

[70] The involvement by Mr. Bhatti in drug trafficking outweighs the omitted cooperation that he was providing and that could have been included in the ITO. The very fact of Mr. Bhatti’s involvement in the drug subculture was integral to formulate a credibly based probability that evidence could be found on his cellphone in the circumstances here, where there was also other evidence, such as the CI evidence, that suggested that he had been the intended target of the shooters.

[71] It is noteworthy that DC Comeau was forthright in explaining in his ITO that Mr. Bhatti was never charged as a result of Project Bass. Thus, there was some balance to DC Comeau’s description of Mr. Bhatti as admittedly being involved in the drug sub-culture.

[72] The Applicant further argues that the ITO failed to adequately describe that the police already had a tracking warrant on Mr. Bhatti’s cellphone and thus, could use that information to determine his phone’s whereabouts. He also argues that the police had knowledge of who he was in contact with because they had seized the cellphones of five of his associates. The Applicant also argues that the affiant stated that “it is reasonable that Ali Bhatti has communicated with persons in the past that are connected with the murder” when the previously obtained production order and TDR/tracking warrant provided no evidence that his phone had been connected with Patel or Afandy.

[73] I reject those arguments. A legitimate basis for seeking Mr. Bhatti’s cellphone is that it would contain a fulsome record of his contacts so that the police did not have to adduce with whom he had been in contact by piecing together the phone records of the five other associates. Their cellphones would not show all contact between him and any other individuals. Furthermore, being “connected” with Afandy and Patel can involve many layers beyond direct contact. Simply because there is other evidence that might assist the police does not diminish the importance of any evidence contained on Mr. Bhatti’s phone.

[74] The Applicant argues that there was insufficient evidence disclosed in the ITO to establish a credibly based probability that evidence would be found on Mr. Bhatti’s cellphone. He argues that everyone uses their cellphones for communication, to conduct internet searches and to store information, for example and that the mere ownership of a cellphone by Mr. Bhatti does not lead to a credibly based probability that evidence pertaining to Ms. Marques’ murder would be found on his cellphone. In the Applicant’s submission, there has to be something to bridge the informational gap that exists in this case.

[75] I respectfully disagree. The issuing justice was entitled to draw reasonable inferences from the following in the ITO:

• Mr. Bhatti was involved in the drug subculture and trafficking in London;
• His fiancé was killed in a brazen shooting in his driveway, while sitting in Mr. Bhatti’s car, that has the hallmarks of a targeted “hit”;
• One of the vehicles used by the shooters has been connected to a known member of a gang in Toronto associated with drug-trafficking;
• Mr. Bhatti appears to have information about this person being involved in his fiancé’s murder despite the fact that the online articles make no mention of that fact;
• Mr. Bhatti would not disclose how he knew that a person linked to his fiancé’s death had been arrested in Toronto;
• A confidential informant has indicated that Mr. Bhatti may seek retribution for his fiancé’s death; and
• A great deal of information is kept on a person’s cellphone, including communications with others, internet searches, photos, etc..

[76] In my view, the Applicant’s argument that there was insufficient evidence connecting Mr. Bhatti with Mr. Afandy and Mr. Patel cannot prevail. The evidence may have been circumstantial, but it could lead to the inference that they knew of each other. It is a reasonable inference that this was a targeted hit on the family member of a person involved in drug trafficking done by someone else involved in drug trafficking.

[77] I am not persuaded that, even had the information that DC Comeau omitted from the warrant been included, there was no evidence that might be reasonably believed on the basis of which the general warrant could have issued.

[78] This ground of the Application fails.

Issue 3: Did the search conducted by the police exceed the scope of the general warrant?

[79] I reiterate that Mr. Bhatti was not a suspect in the murder of Ms. Marques at the time of the execution of the general warrant. Instead, he was a victim of this brutal crime.

[80] In order to be reasonable, searches and seizures must be authorized by law. If the scope of the authorization for a search is exceeded, then a search and/or seizure is no longer reasonable. The scope of the search must be limited to the area and to those items for which the law has granted the authority to search (see: R. v. Caslake, [1998] 1 SCR 51).

[81] Accordingly, given the intrusion on privacy that a state search and seizure entails, the warrant must set out with a significant degree of precision the area to be searched and the items to be seized. This is so that the person subjected to the search can understand the extent of the search authorized. It also guides and, importantly, limits the actions of the police officers executing the warrant (see: R. v. Ting, 2016 ONCA 57, at para. 60).

[82] I return to describe the scope of the general warrant again.

[83] The general warrant, on its face, authorized the detention of Mr. Bhatti for the purpose of searching him, and his “immediate area”, for the cellular device associated to the phone number --****. Later in the warrant, the search of Mr. Bhatti and “his surrounding area” is authorized.

[84] The general warrant, in my view, makes it clear that there is one target cellular device. The warrant’s preamble refers to the cellular device and this cellular device.

[85] The warrant defines “the device” to be “the one associated to the number --****”. That definition is drafted in the present tense, which in my view is inconsistent with the officers’ view that they could seize any cellular device that had ever been associated with that number.

[86] Further, the warrant describes that if Mr. Bhatti has multiple cellular devices, these were to be seized only to determine which device “is associated to the phone number”, which I again note is expressed in the present tense.

[87] The general warrant describes “[o]nce the cellular device has been seized”, which again connotes a singular device. However, in fairness, the warrant later states “[t]he detention of the seized devices”, which does suggest that multiple devices could be seized.

[88] Accordingly, on the whole, I find that the general warrant contemplated the seizure of one cellular device with a particular phone number. Other phones could be seized for the limited purpose of determining which of the multiple phones was currently associated with that particular phone number.

“Immediate” or “Surrounding Area”:

[89] I have also considered what is meant by the terms “immediate” or “surrounding area”.

[90] It is my view that this is a contextual exercise that is not governed solely by proximity. In my view, when the object that is to be seized is a cellular device, it also includes a consideration of accessibility.

[91] The Crown relies upon R. v. Stairs, 2022 SCC 11, where the Supreme Court of Canada upheld a search of the accused’s basement when the arresting officers did a visual inspection to ensure that no one else was present and there were no other hazards during the accused’s arrest. The Court referred to “a search in the surrounding area” as being valid if the purpose of the search was for a valid law enforcement objective connected to the arrest. The Court distinguished between two subcategories within the “surrounding area” of an arrest as:

(a) The area within the physical control of the person arrested at the time of arrest; and (b) Areas outside the physical control of that person, but which are part of the “surrounding area” because they are sufficiently proximate to the arrest.

[92] At para. 60, Moldaver and Jamal JJ., for the majority of the Court, stated as follows:

[60] The task of determining whether a particular area is part of the surrounding area of the arrest and which subcategory it falls under lies with the trial judge. Consistent with this Court’s jurisprudence, whether an area is sufficiently proximate to the arrest is a contextual and case-specific inquiry. The key question is whether there is a “link between the location and purpose of the search and the grounds for the arrest” (R. v. Nolet, 2010 SCC 24, at para. 49). The inquiry is highly contextual; the determination must be made using a purposive approach to ensure that the police can adequately respond to the wide variety of factual situations that may arise. Depending on the circumstances, the surrounding area may be wider or narrower. As one learned author notes: “A search incident to arrest can extend to the surrounding area, and so might include searching the building or vehicle in which the accused is arrested” (S. Coughlin, Criminal Procedure (4th ed. 2020), at p. 124).

[93] Later, at paras. 79 and 80, Moldaver and Jamal JJ. stated:

[79] The search incident to arrest power only permits police to search the surrounding area of the arrest (Cloutier, at pp. 180-81; Coughlan, at p. 124). This Court’s guidance on how to determine what constitutes the surrounding area of the arrest remains constant. As indicated, the key consideration is the link between the location and purpose of the search and the grounds for the arrest (Nolet, at para. 49).

[80] In addition, the nature of the search must be tailored to its specific purpose, the circumstances of the arrest, and the nature of the offence. As a general rule, the police cannot use the search incident to arrest power to justify searching every nook and cranny of the house. A search incident to arrest remains an exception to the general rule that a warrant is required to justify intrusion into the home. The search should be no more intrusive than is necessary to resolve the police’s reasonable suspicion.

[94] It must be remembered that the discussion in Stairs was in the context of a search incident to arrest. In the case before me, the issue is the scope of a judicially authorized search where there is no suggestion that concerns typically present during an arrest, such as safety or the destruction of evidence, existed.

[95] It is my view that the police officers in this case exceeded the scope of the general warrant that had been issued.

[96] The police were authorized to detain Mr. Bhatti for the purpose of taking a specific cellphone that he had on his person or in his immediate or surrounding area. In so doing, the general warrant did permit them to seize other cellphones until it could be ascertained whether they had located the correct cellphone. DC Weber properly located three cellphones in Mr. Bhatti’s immediate vicinity, by way of a visual search. Those phones were readily accessible to Mr. Bhatti as he sat in the driver’s seat of his vehicle. They were undoubtedly within his immediate or surrounding area.

[97] I disagree with the police officers’ assertion that they were permitted to search for any and all cellphones that Mr. Bhatti might have with him. The general warrant specified the cellphone that they were to locate. In my view, the police, with minimal effort, could have ascertained if one of the three cellphones that DC Weber seized was presently associated with the phone number contained on the general warrant. They merely had to dial the number on their own cellphones. They made no such efforts.

[98] I do not agree that the police were entitled to search for an indeterminate number of cellphones because any of them could have been, at any given time, associated with that phone number. That is simply not what the general warrant authorized them to do.

[99] Furthermore, the hidden compartment within the interior of the driver’s side door, in my view, and in this context, is not within the driver’s surrounding or immediate area. A cellphone would not have been readily accessible to Mr. Bhatti buried in the door. Furthermore, DC Pavoni testified that although he was familiar with this hidden compartment on that type of vehicle, he had never in his experience located a cellphone there.

[100] In this particular case, Mr. Bhatti was well known to use the particular phone number that is referenced in the general warrant. That appears to have been the phone number that he used to carry on his regular day-to-day communication, including with the various police officers involved. It therefore makes little sense that this phone would be kept in an inaccessible location while he drove, such as hidden in the driver’s side door frame, while three other phones were readily accessible to him.

[101] I acknowledge DC Pavoni’s evidence that in his view the hidden compartment was readily accessible. However, acceding to his opinion in that regard is precisely what the court must guard against when warrants are being executed. It is my view that tearing into the frame of the driver’s side door because there were some indicia of tampering is beyond the scope of a warrant authorizing the officer to take Mr. Bhatti’s cellphone, when they had already located three phones. The court must be cautious in allowing the police to be the final arbiter of interpreting an ambiguous provision of a warrant.

[102] In the context of a judicially authorized search, as opposed to a search incident to arrest when there are issues of safety or the potential loss of evidence, it is my view that immediate or surrounding area must be interpreted narrowly. This is consistent with the requirement that warrants be precise and faithfully executed.

[103] The police were looking for a cellphone with a specific phone number. Even though the driver’s side door was only mere inches from the driver of the vehicle, had a cellphone been located therein, it would not have been readily accessible, and I find that it was therefore not in Mr. Bhatti’s immediate or surrounding area. It is not simply a matter of distance. Indeed, a cellphone located farther away from Mr. Bhatti, but readily accessible, in my view, would have been in his immediate or surrounding area. There is no need for me to demarcate distance with any particularity in this case.

[104] I note that had the object specified in the warrant to be seized not been a cellphone, but some other object, the conclusion may have been different. Furthermore, my conclusion may have been different if Mr. Bhatti was the target of the murder investigation, as opposed to a victim of the crime. I also take into consideration that the police had already found three cellphones and could have at least tried to perform a simple test to ascertain whether any of them was the phone sought. Thus, as instructed by Stairs, I have considered the specific context of this particular search.

[105] The Crown argues that because the SIM cards on cellphones can easily be switched, it is possible that during the relevant time frame multiple phones were associated with the particular phone number and thus, the police had to seize all the phones. That argument should have been made to the issuing justice, who could have granted a warrant permitting the police to seize all the cellphones in Mr. Bhatti’s possession. However, that is not the warrant that was sought, and it was not the warrant that was granted.

[106] I reiterate the importance of the language used in a judicially authorized warrant. It informs both the subject of the search and the police precisely what they can and cannot do. In my view, any ambiguity in the warrant should be resolved in favour of the person being subjected to the search. It is always open to the police to seek a further authorization.

[107] I conclude that the police search of the driver’s side door’s hidden compartment exceeded the scope of the judicial authorization. If the police wished to search in that area upon noticing that it had been tampered with, it is my view that they either required another judicial authorization, or some other valid reason.

[108] Therefore, the search of the hidden compartment within the door was, in this case, unreasonable. Accordingly, I find that Mr. Bhatti’s s. 8 Charter right to be free of unreasonable search and seizure was infringed.

Disposition:

[109] For the foregoing reasons, I have concluded that:

(a) Section 487.01(1)(c) of the Code is satisfied and the s. 487.01 general warrant could have been used in these circumstances; (b) There was sufficient evidence that the issuing justice could have granted the general warrant; and (c) The police search of the hidden compartment located in the driver’s side door exceeded the scope of the general warrant that they obtained, making that search unreasonable.

[110] Given that I have found that the police exceeded the scope of the search authorized by the general warrant, Mr. Bhatti’s section 8 Charter rights were infringed.

[111] As discussed during the hearing, s. 24(2) arguments are required and shall be done in writing. It was also discussed that the Applicant would make his submissions first.

[112] The trial is scheduled to commence the week of April 15, 2024. Unfortunately, I have not given counsel much time to prepare their written submissions. I must propose a tight timeline for counsel and this court in order to render a decision prior to trial.

[113] I propose that the Applicant’s written submissions with respect to s. 24(2) be served on the Crown and filed with the court by Tuesday, April 2, 2024 at 4:00 pm. The Crown’s submissions would be served and filed by Friday, April 5, 2024 at 4:00 pm.

[114] Counsel are to communicate with each other and ascertain if this proposed schedule is workable considering their own obligations and schedules. If it is not, they are to collaborate on a revised schedule and advise me by email through the court staff their new proposed schedule. They are welcome to accelerate the schedule if they can, recognizing that the sooner I have their submissions, the sooner I can prepare my decision.

[115] I am not imposing page limits on the submissions but would ask counsel to keep them within reasonable limits.

[116] If an in-person (or zoom) attendance is necessary, I can make myself available some time during the week of April 8, 2024.

Justice Spencer Nicholson Date: March 20, 2024