Court File and Parties

Citation: R. v. Bhatti, 2024 ONSC 2068 Court File No.: CR-22-158 Date: 2024-04-08 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: In Writing

Reasons on S.8 Application—s. 24(2) Analysis

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. The police sought his cellphone as part of their investigation into the murder of Mr. Bhatti’s fiancée. Mr. Bhatti was not a suspect but was believed to be withholding information about who was responsible.

[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.

[4] By Reasons dated March 20, 2024, I held that the general warrant issued pursuant to s. 487.01 of the Criminal Code could have been granted by the issuing justice in this case. However, I found that when the police executed the general warrant to seize Mr. Bhatti’s cell phone, the police search of Mr. Bhatti’s vehicle which resulted in the discovery of the firearms exceeded the scope of the judicial authorization.

[5] On agreement of both parties, the s. 24(2) arguments were made in writing. I have now considered those arguments.

[6] The facts of this case are described in my Reasons dated March 20, 2024, and I will not repeat them here. Those Reasons and these Reasons must be read in conjunction.

The Grant Test

[7] Section 24(2) of the Charter requires the exclusion of the impugned evidence if it is established that, having regard to all of the circumstances, the admission of the evidence in the proceedings would bring the administration of justice into disrepute. The onus is upon Mr. Bhatti on a balance of probabilities.

[8] In R. v. Grant, 2009 SCC 32, the Supreme Court of Canada stated that the purpose of s.24(2) is to “maintain the good repute of the administration of justice”. The question is whether a reasonable person informed of all the relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute (Grant, at para. 68).

[9] The Grant analysis is a three-part test. First, the court must assess the seriousness of the Charter-infringing state conduct. Secondly, the court must assess the impact of the breach on the Charter-protected interests of the accused. Thirdly, the court must consider society’s interest in the adjudication of the case on its merits.

[10] In R. v. McGuffie, 131 O.R. (3d) 643, 2016 ONCA 365 the Ontario Court of Appeal described the interaction of the three strands of the test as follows, at para. 62:

[62] The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society’s interests in an adjudication on the merits, pulls in the opposite direction towards the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case: see R. v. Harrison (2009), 2009 SCC 34, 97 O.R. (3d) 560, [2009] 2 S.C. R. 494, [2009] S.C.J. No. 34, 2009 SCC 34, at paras. 33-34.

Seriousness of the Breach

[11] This factor focuses on the seriousness of the breach with a view to preserving and encouraging public confidence in the courts. There is a spectrum of state misconduct running from inadvertent, technical errors to wilful or flagrant disregard for individual rights and interests. The court must not condone significant state misconduct. The more serious or deliberate the breach, the greater the need for the courts to dissociate itself from the misconduct to preserve confidence in the justice system and the rule of law (Grant, at paras 72-75).

[12] In this case, I find as a fact that the police had formulated the plan to stop Mr. Bhatti in his vehicle for the purpose of executing the general warrant and they intentionally waited until Mr. Bhatti was driving his vehicle. Although I have held that it was appropriate for the police to rely upon a general warrant in this case, they did not seek or obtain a search warrant that would have permitted them to search the entire vehicle. They were thus, in my view, constrained by the nature of the warrant that they requested and, in particular, its wording.

[13] It must be kept in mind that the police were able to immediately locate and seize three cell phones from the vehicle that Mr. Bhatti occupied. The general warrant authorized them to seize one cellphone associated with a specific telephone number. The police made no effort to ascertain whether any of the three cellphones that were in plain sight were associated with the phone number. They did not dial the number. They did not ask Mr. Bhatti, who was not a suspect at the time in his fiancée’s murder, if any of the phones were associated with the phone number in question.

[14] DC Weber, in his testimony, described that the general warrant authorized them to “seize the cellular device that had a specific phone number, as well as any other phones that may have had that phone number at some point”. Later, he described that “there could be a dozen phones that we need to seize to determine which one had that number at some point.” In my view, DC Weber’s interpretation greatly broadened the scope of the general warrant that had been issued. The warrant, on its face, did not authorize the seizing of any cellphone that had ever been associated with that phone number. DC Weber’s interpretation, echoed by DC Pavoni, read into the general warrant language that was not present.

[15] The police officers, in their testimony, acknowledged that there were limits to the general warrant and that it did not give them carte blanche to search the entire vehicle. DC Weber described that after he had seized the three cellphones the search was not yet completed because he had not searched the driver’s seat, or the centre console. DC Pavoni later searched the centre console and cup holder area. Those areas were, in my view, appropriate areas to search on the strength of the general warrant.

[16] Further, I note that Mr. Bhatti was handcuffed to the back of his vehicle, according to DC Pavoni, despite not being a suspect in the murder. DC Pavoni described that Mr. Bhatti was being uncooperative and argumentative, but also indicated that Mr. Bhatti offered to retrieve the cellphone for him. At that stage, there would be no impediment to the police officers asking him which phone belonged to the specific phone number in question, even if they understandably did not want him to retrieve the phone himself, for fear of losing evidence contained on the device.

[17] I recognize that there was some ambiguity in the general warrant. It spoke of seizing a cellphone associated with a phone number. It also permitted the seizure of multiple devices to ascertain which of them was associated with the phone number. As the police testified, it is possible to switch SIM cards so that at any given time, any one of several cellphones could have been associated with that phone number.

[18] Finally, it must be recognized that it is not readily discernible what would constitute Mr. Bhatti’s “immediate” or “surrounding” area.

[19] Given the legal uncertainty at play, the police officers had a duty to act cautiously and to question the limits of their authority (see: R. v. McColman, 2023 SCC 8, at para. 63). The police officers here sought no guidance from any supervisors before searching the door frame. They did not appear to consider that they could attempt to obtain a further warrant to search the remainder of the vehicle.

[20] It must also be kept in mind that DC Pavoni, despite being aware of the hidden compartment within the doorframe, including his second-hand knowledge that Mr. Bhatti had hidden objects in that area on other occasions, had never located cellphones in such a compartment. This was despite having dealt with “dozens” of vehicle voids while working in the Guns and Drugs unit.

[21] The two police officers were experienced. DC Weber had been a police officer for over 16 years at the time of the execution of the warrant and DC Pavoni for over 19 years. They ought to have at least had pause to consider whether the general warrant authorized the search beyond the three cellphones that were already in their possession.

[22] I note that defence counsel did not cross-examine the officers sufficiently for me to conclude that this was a “pretext stop” in order for the police to search the vehicle of a person that they reasonably believed was involved in the drug subculture. However, while I do not conclude that the police officers were acting in bad faith, the absence of bad faith does not equate to good faith (see: R. v. Le, 2019, SCC 34, [2019] 2 S.C.R. 692, at para. 147). Good faith cannot be claimed if the Charter breach arises from a police officer’s negligence, unreasonable error, ignorance as to the scope of their authority or ignorance of Charter standards (see: R. v. Tim, 2022 SCC 12, at para. 85). Here, the police officers’ interpretation of the scope of the general warrant fits within at least some of those categories.

[23] The Crown urges me to hold that the breach here falls into the lower end of the spectrum. The Crown relies upon R. v. Buchanan, 2020 ONCA 245 and R. v. St. Clair, 2021 ONCA 895. It is further argued that the police were faced with the intricacies of applying difficult law, with respect to interpreting “surrounding” or “immediate” area.

[24] The difficulty with those arguments is that they ignore the overly broad interpretation that the police officers placed on the language of the general warrant which they felt would allow them to seize every cellphone ever associated with that phone number. It ignores the officers’ unwillingness to even consider utilizing the simple methods that were clearly available to determine whether they had already seized the cellphone that was the subject matter of the general warrant.

[25] Both parties refer me to R. v. Beaulier, 2010 SCC 7, reversing the Quebec Court of Appeal decision, R. v. Beaulier, 2009 QCCA 797, which had overturned the trial judge’s decision. In that case, RCMP officers had obtained an authorization to intercept the accused’s private communications and while installing a listening device in his car, found a hidden compartment containing a leather case with a loaded firearm in it. The trial judge found that the search exceeded the scope of the judicial authorization, and therefore was a breach of the accused’s s. 8 Charter rights. Nevertheless, the evidence was admitted at trial following the s. 24(2) analysis.

[26] In large measure, Beaulier is about deference to the trial judge’s conclusions regarding s. 24(2). I do not read Beaulier as involving an overly broad interpretation of the authorization, as I have found here.

[27] I am also referred to R. v. Williams, 2024 ONSC 1019, 2024 CarswellOnt 3630, in which Vermette J. conducted a s. 24 (2) analysis and allowed the impugned evidence from a search of a motor vehicle into evidence. In that case, the police had obtained a judicial authorization prior to the search. However, it was held that there was insufficient evidence to permit the issuing justice to conclude that there were reasonable and probable grounds to believe that weapons could be found in the motor vehicle. I note simply that Vermette J. reached a different conclusion with respect to seriousness in that case than I have in this case.

[28] It is my view that the seriousness of the breach falls towards the more significant end of the spectrum. The officers’ treatment of Mr. Bhatti, although of known ill-repute, was from the outset as if he was a suspect—not a victim—of the crime under investigation. This impacted the manner in which the police officers executed the general warrant. Their interpretation of the general warrant was unnecessarily, and unfairly, broad. They failed to consider any other avenue that would lead to them obtaining what they were authorized to obtain. In my view, the police actions here fall closer to reckless disregard of Charter rights, then inadvertent, technical, or minor breaches, or even negligence.

[29] Thus, I conclude that the first of the Grant factors favours excluding the evidence.

Impact on the Charter-Protected Interests of the Accused

[30] The court, at this second stage, must consider the extent to which the breach undermined the interests protected by the rights infringed upon. The impact of the breach can range from “fleeting and technical to profoundly intrusive”. The more serious the impact, the more the admission of the evidence would signal to the public that their Charter rights are insignificant or offer little protection, thereby breeding public cynicism and bringing the administration of justice into disrepute (see: Grant, at para. 76).

[31] An unreasonable search, for example, may impact upon the accused’s privacy interests, which can include their human dignity. An unreasonable search that encroaches on an area in which there is a high expectation of privacy, or is demeaning, is more worthy of condemnation by the court.

[32] I must keep in mind that drivers have a reduced expectation of privacy in their vehicles (see: R. v. Tim, at para. 93). In this case, Mr. Bhatti was operating a rental vehicle so that his expectation of privacy was perhaps even lessened. He had, however, been seen operating the same vehicle on previous surveillance and I infer that this was a vehicle he had in his possession for more than a brief period of time.

[33] On the other hand, despite the reduced expectation of privacy for motor vehicles there is ample authority for the proposition that this does not make an unjustified search permissible (see: R. v. Harrison, 2009 SCC 34, [2009] 2 SCR 494, at para. 31-32; R. v. Harflett, 2016 ONCA 248, at paras. 47-48; and R. v. Dunkley, 2016 ONCA 597 at 58).

[34] The firearms located within the doorframe would not have been found absent the search, which I found to be unreasonable as beyond the scope of the general warrant. There is thus a greater impact on Mr. Bhatti’s Charter-protected interests (see: Grant, at para. 122 and 137; Tim, at para. 94).

[35] Further, DC Pavoni testified that Mr. Bhatti was handcuffed at the rear of the vehicle during the search. Both officers testified that Mr. Bhatti was uncooperative or argumentative. However, their evidence did not clearly establish a reason to handcuff Mr. Bhatti, who I repeat was not a suspect under investigation for Ms. Marques’ murder at the time of the traffic stop.

[36] Finally, it is at this part of the analysis that I consider that Mr. Bhatti was the victim of the offence being investigated, not the target of the investigation. The police were investigating the murder of his fiancée and he was not a suspect in that murder. They may have had ample other reasons for believing that he was involved in illicit activity generally, including drugs, but drugs were not the purpose of pulling him over to obtain his cellphone. In my view, the police lost sight of that important distinction.

[37] A person who has been the victim of a crime, particularly one as brutal and heinous as the murder of Ms. Marques, must have the confidence that the police will treat them fairly and in accordance with Charter principles.

[38] I should not be taken to imply that a person suspected of a crime is not entitled to Charter protection as well. However, Mr. Bhatti’s status as a victim of this crime, in my view, heightens the impact on him of the Charter breach.

[39] The search of the doorframe of Mr. Bhatti’s vehicle, in my opinion, had a significant impact on Mr. Bhatti’s right to be free of unreasonable search and seizure in the context of the murder of his fiancée. Again, this factor favours excluding the evidence.

Society’s Interests in Deciding the Case on Its Merits

[40] The third factor requires the court to consider society’s interests in conducting a trial on the merits. The exclusion of evidence under s.24(2) of the Charter most often results in the dismissal of criminal charges as the Crown is left with no prosecutable case. This is a strong factor in favour of inclusion of evidence. It is well accepted that the third Grant factor almost always weighs in favour of admitting the impugned evidence.

[41] There is no question that the firearms located in the door frame of the rental vehicle constitute “real” and “reliable” evidence with respect to the charges that Mr. Bhatti currently faces. Furthermore, there can be no doubt that the Crown will not be able to successfully prosecute Mr. Bhatti if the evidence is excluded. The evidence is critical to the Crown’s case.

[42] Additionally, Mr. Bhatti faces serious charges. Gun violence is a terrible problem in society and in this community and the presence of guns such as those found in Mr. Bhatti’s vehicle pose a substantial threat to the safety of the public.

[43] Thus, the third factor weighs, as always, in favour of admitting the evidence.

Balancing the Grant Factors

[44] The balancing exercise mandated by s.24(2) is qualitative and not capable of mathematical precision. The evidence must be weighed on each line of inquiry to determine whether, having regard to all the circumstances, its admission would bring the administration of justice into disrepute.

[45] It is not a contest between the degree of police misconduct and the seriousness of the offence. Allowing the seriousness of the offence and the reliability of the evidence to overwhelm the s.24(2) analysis would deprive those charged with serious crimes of the protection of the individual freedoms afforded to all Canadians under the Charter and, in effect, declare that in the administration of the criminal law ‘the ends justify the means’ (see: R. v. Harrison, at paras. 37 and 40).

[46] I reiterate that if one, but not both, of the first two inquiries pull towards the exclusion of the evidence, the third line of inquiry becomes particularly important. However, where the first and second factors, taken together, make a strong case for exclusion, the third inquiry will seldom if ever tip the balance in favour of admissibility. If the first two inquiries provide only weaker support for exclusion of the evidence, the third branch will most often confirm that the administration of justice would not be brought into disrepute by admitting the evidence.

[47] Gun violence has been the subject of the balancing exercise in many s. 24(2) analyses. In R. v. Omar, 2019 SCC 32, [2019] 2 S.C.R. 576, the Supreme Court substantially agreed with the dissenting reasons of Brown J.A. in R. v. Omar, 2018 ONCA 975, 144 O.R. (3d) 1, in which he articulated the evils associated with firearms and communities’ legitimate desire to combat those evils.

[48] Nevertheless, there is no firearm exception under s. 24(2) that calls for guns obtained in breach of Charter rights being admitted into evidence in all cases (see: R. v. Whittaker, 2024 ONCA 182, at paras. 59-60).

[49] These are difficult cases. I have little doubt that many members of our community would be content to have a person involved in the drug-subculture, accused of firearm offences, convicted of these offences irrespective of a violation of their Charter rights. But that is not the test.

[50] Rather, the test is whether the admission of the evidence would bring the administration of justice into disrepute.

[51] In the case before me, Mr. Bhatti’s fiancée was gunned down in a brazen attack in the driveway of their home. Although the police suspected that his involvement with the drug subculture played a role in the killing, Mr. Bhatti was not suspected of being involved in her killing. He was fairly cooperative with the police investigation, although the police had reason to believe that he was withholding information that could assist their investigation. Accordingly, they obtained a general warrant to allow them to seize one cellphone associated with one specific phone number.

[52] The police determined that the appropriate manner to execute the general warrant was while Mr. Bhatti was driving in his vehicle. When they executed the general warrant, they immediately located three cellphones. They made no efforts to ascertain if any of these devices was the one, they were seeking, including asking Mr. Bhatti. This could have been done with minimal effort and risk, particularly since they had handcuffed Mr. Bhatti. Rather, the police interpreted the general warrant as authorizing them to seize every cellphone within Mr. Bhatti’s immediate vicinity that might have, at any time, been associated with the phone number they were provided. Thus, despite having already found three cellphones, the police officers decided that the general warrant permitted them to search a hidden but known compartment in the doorframe for more. They did so despite the officer’s experience never having previously yielded cellphones in one of those compartments.

[53] Absent Mr. Bhatti’s involvement with the drug subculture, I do not believe that a reasonable person fully informed of the importance of Charter rights and values would accept that the victim of such a heinous crime should have been subjected to the search that transpired in this case. Mr. Bhatti’s criminal background does not make him any less worthy of Charter protection than any other victim in this context would be.

[54] Accordingly, it is my view that the admission of the impugned evidence in this case would bring the administration of justice into disrepute.

[55] For those reasons, Mr. Bhatti’s application is granted. The evidence found within the doorframe of the Dodge Durango is excluded from the trial.

“Justice Spencer Nicholson” Justice Spencer Nicholson Date: April 8, 2024