COURT FILE NO.: CR-24-20000056-0000 CR 24-20000057-0000
DATE: 20240524
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
SHAMAL SEARCHWELL-BEALS
Applicant/Defendant
COUNSEL: George Lennox, Daniel Santoro, and Dean Sgouromitis for the Crown/Respondent Leora Shemesh, for the Applicant/Defendant
HEARD: January 22, 24, 25, February 12, 13, March 15, April 23, 2024
JUSTICE S. S. NAKATSURU
[1] The Applicant, Shamal Searchwell-Beals, alleges several violations of his Charter rights and seeks exclusion of cocaine and cash from his trial.
[2] In May and June of 2021, police were intercepting the phone calls of Damen Smith during a police project named Red Owl. They believed that Mr. Smith was involved in drug trafficking. While listening to his calls, police learned that Mr. Smith was communicating with an unknown male who used the phone number 647-222-1348 (hence referred to as “1348”). Police believed that Mr. Smith and the unknown male were discussing drug trafficking.
[3] On June 15, 2021, Mr. Smith and the unknown male talked on the phone and discussed meeting up at a “Mac’s”. The police believed this to be a reference to the Mac’s Milk convenience store located in a plaza at 905 Jane Street. Police attended the plaza at the time the two men had discussed. They watched Mr. Smith arrive at the parking lot in a Nissan Rogue along with a female passenger. They saw another male, the Applicant, arrive in the parking lot in a red Hyundai. The Applicant exited the Hyundai and got into the backseat of Mr. Smith’s Rogue. The police initiated a takedown. Mr. Smith attempted to drive away by reversing onto Jane Street, but his car was deliberately rammed by the police. Mr. Smith got out of the car and fled but was apprehended after a foot chase. The Applicant remained in the car, was cooperative with police, and was subsequently arrested. Thereafter, the police obtained a search warrant for a residence purportedly associated to the Applicant, 12 Greendale Avenue. The police discovered cocaine and cash within the residence.
[4] The Applicant seeks exclusion of the evidence based on the following Charter grounds:
• The police failed to immediately advise the Applicant of his right to counsel, in breach of s. 10(b). Additionally, the Applicant requested access to a lawyer and the police failed to facilitate that constitutional right for some two hours for no legitimate purpose.
• The search warrant for the Applicant’s home could not have issued, because the Information to Obtain (ITO) did not disclose the requisite reasonable grounds.
• The affiant fabricated the urgency of the search of the house by indicating to the justice of the peace’s office that there was a female detained inside the residence. The home had been vacated some two hours earlier.
• The police repeatedly entered the Applicant’s home, without a warrant, to freeze the residence in breach of s. 8. There were no exigent circumstances to justify the warrantless invasions.
A. FAILURE TO PROVIDE RIGHT TO COUNSEL IMMEDIATELY
[5] The duty to inform of the right to counsel arises immediately upon detention or arrest: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 24. That did not happen in this case.
[6] On June 15, 2021, at 6:28 p.m. Detective Balint gave the takedown signal to his surveillance team to arrest the occupants of the Rogue. Based upon intercepts of private communication, the police were anticipating that Mr. Smith was going to meet his drug supplier. Soon after the dramatic attempt to escape police containment, D.C. Doyle went to the Rogue, his gun drawn, and advised the female and male occupant that they were being detained for a drug investigation. Raven Forde was in the front passenger seat. The Applicant was in the rear passenger seat. D.C. Doyle directed the Applicant out of the car, put him onto the ground, and handcuffed him. D.C. Doyle was alone at the time. D.C. Miles arrived shortly thereafter to deal with Ms. Forde. When D.C. Doyle stood the Applicant up, some cash fell from his person which was seized. The Applicant was turned over to Detective Balint. D.C. Doyle was not sure when he did that, but he estimated it took five minutes from the time of the Applicant’s detention. D.C. Doyle testified he believed he told Detective Balint that he had not advised the Applicant of his right to counsel. Detective Balint could not recall one way or the other.
[7] D.C. Doyle explained why he did not give the Applicant his right to counsel. D.C. Doyle was by himself at the car in the middle of live traffic trying to take control of the scene. He testified that he did not have the time to give right to counsel. He knew the Applicant would get his rights shortly after.
[8] Detective Balint testified that soon after arresting the Applicant and placing him in his vehicle, he was advised that a gun and drugs were found in the car. He placed the Applicant under arrest for possession of the firearm and the drugs. The officer testified he gave the Applicant his right to counsel including duty counsel. The Applicant said he wanted to call a lawyer but was not sure who. Due to the chaotic scene, Detective Balint advised the Applicant he could call from the station.
[9] No exact times were noted, nor could the officers recall exactly when the Applicant was transferred to Detective Balint’s custody nor when exactly Detective Balint gave right to counsel. However, a rough time can be approximated from the total evidence. Right to counsel was only given after the gun and drugs were found. D.C. Miles discovered the gun after he had Ms. Forde exit the Rogue. At the same time, he saw what appeared to be drugs in the door panel. D.C. Miles did not have an exact time when he found the gun and saw the drugs. However, he testified that he arrested Ms. Forde for both and gave her rights to counsel at 6:45 p.m. At 6:48 p.m., D.C. Miles then walked Ms. Forde over to Detective Balint. I find that it was at this time that Detective Balint would have become aware of the gun and drugs found in the Rogue. Thus, I infer that Detective Balint would only have arrested the Applicant for the gun and drugs offences and read right to counsel, sometime after 6:48 p.m., likely shortly after. This is confirmed by the fact that at 6:52 p.m., Detective Balint turned custody over to P.C. Beninger, a uniformed officer. He was not sure if he told P.C. Beninger he had given right to counsel. However, there is circumstantial evidence on P.C. Beninger’s body worn camera that he did. The video shows P.C. Beninger at 7 p.m. telling the Applicant that although the Applicant had already been given his right to counsel, P.C. Beninger was going to do it again.
[10] The initial detention by D.C. Doyle would have taken place shortly after 6:28 p.m. D.C. Doyle testified it took about three minutes to get the Applicant out of the car. Given the above timeline, the Applicant would not have received his right to counsel from Detective Balint until sometime after 6:48 p.m. but before 6:52 p.m. Thus, the Applicant did not receive his right to counsel for approximately 16 to 21 minutes, give or take, after his detention.
[11] I find the initial delay in providing the informational component of right to counsel, was justified by the dynamic and exigent circumstances occurring at the time: R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at paras. 26-28; R. v. Keshavarz, 2022 ONCA 312, 413 C.C.C. (3d) 263, at para. 77; R. v. Cameron, 2024 ONCA 231, at paras. 45-46. I accept D.C. Doyle’s testimony as to why he did not immediately give the Applicant his right to counsel. The Rogue had been driven in a dramatic and unsafe manner. It posed a risk to public safety. The driver quickly fled on foot following the collision with the police vehicle. Other officers had to chase him. This left D.C. Doyle alone with the Applicant and another occupant in the Rogue that he had to attend to. He was in the middle of Jane Street with live traffic and unknown pedestrians around him. This justified a delay in giving the Applicant his s. 10(b) right. While he handcuffed the Applicant who was compliant and was then in his control, his attention was still reasonably on the female occupant in the car and his surroundings.
[12] However, once D.C. Miles returned to the scene just before 6:45 p.m. and was able to deal with Ms. Forde, D.C. Doyle should have given the Applicant his right to counsel. If he did not, Detective Balint should immediately have. I cannot say with any precision how long it was delayed. Using the above timeline, the best I can estimate the undue delay is about 3 to 7 minutes. But I can say it was not given immediately. It seems that the officers were preoccupied with the scene and the search of the vehicle. They did not give sufficient attention to providing the Applicant with his right to counsel. However, this was not due to any deliberate decision not to provide it immediately nor from any bad faith. This finding is supported not only by the testimony I heard from the relevant officers, but also from the fact that Detective Balint and P.C. Beninger both gave the Applicant his right to counsel very soon after while on scene.
[13] A s. 10(b) violation has been proven on a balance of probabilities.
B. DELAY IN IMPLEMENTING RIGHT TO COUNSEL
[14] There was some delay in the implementation of the Applicant’s right to counsel. While I cannot be exact, given that the there is no exact time for when Detective Balint gave the Applicant his right to counsel, I know that he spoke to a lawyer at 8:33 p.m. So, it was about two hours later.
[15] The onus lies on the Crown to justify this delay: R. v. Hobeika, 2020 ONCA 750, 153 O.R. (3d) 350, at paras. 42, 75.
[16] The history of his arrest process is as follows.
[17] After the Applicant advised he wanted to speak to a lawyer, at 6:52 p.m., Detective Balint turned the Applicant over to P.C. Beninger, a uniformed officer.
[18] P.C. Beninger searched the Applicant at 6:56 p.m. At about 7 p.m. the Applicant was placed in the rear of the cruiser and given his right to counsel by P.C. Beninger. The Applicant said he had a lawyer when he was 18 years old, and he knew his number. Thereafter, P.C. Beninger did some checks on his computer and asked the Applicant some basic questions. P.C. Beninger testified that he prefilled in the computer the necessary information for the booking and he sent it off to the booker. The exchange between the Applicant and P.C. Beninger was friendly and professional. At one point, P.C. Beninger left his cruiser for a short time before returning. P.C. Beninger could not recall the exact reason why. At 7:17 p.m., P.C. Beninger left the scene for 12 Division.
[19] At 7:25 p.m., the Applicant arrived at the station. At the station, P.C. Beninger had to wait in line to parade him before Staff Sgt. Gilbert. There were officers booking other detainees ahead of him. This testimony was not undermined in cross-examination.
[20] At 8:09 p.m., the parade started. From 8:12 p.m. to 8:16 p.m., a frisk search was conducted. Then the Applicant was taken to a CIB room. At 8:19 p.m., P.C. Beninger received a telephone number of a lawyer, Royland Moriah, possibly from the Applicant. It took about 14 minutes to get in touch with counsel. At 8:33 p.m., the Applicant spoke to Mr. Moriah. P.C. Beninger could not recall why it took that long to call Mr. Moriah. He did not have to leave a voicemail but rather the call was made to counsel at 8:33 p.m., Mr. Moriah picked up, and the phone was transferred to the Applicant.
[21] I find that the delay has been reasonably explained and justified. Indeed, aside from the approximately 45 minutes waiting to get into the parading room at 12 Division, the implementation of the Applicant’s right to counsel was addressed relatively quickly and smoothly from the time he advised he wish to exercise his right to counsel and when it was implemented. There was a modest delay of about 17 minutes while the Applicant sat in the police cruiser at the scene, but this was explained by P.C. Beninger as time required to complete the procedure needed to parade an arrestee. While not the model of dispatch, the video of what happened in the police car does not strike me as something other than a reasonable delay, especially given the friendly nature of the exchange between the Applicant and the officer. This justifies the delay in transport from the scene.
[22] Sadly, P.C. Beninger’s prepopulating the electronic form did not speed the Applicant through into the station. There were other police officers parading detainees ahead of him. I am mindful that this need to wait to get into the parading room may not always justify a delay in implementing right to counsel. However, I am satisfied that this particular wait was an unavoidable occurrence by happenstance at 12 Division. The evidentiary record does not establish that there is any systemic quality for such a delay. The legitimacy of this wait was not seriously challenged. While the approximately 45 minutes spent waiting in line strikes me as unfortunate, it has been sufficiently explained and justified: R. v. Desilva, 2022 ONCA 879, 421 C.C.C. (3d), 177, at para. 79.
[23] After the parade and search was completed, the Applicant was able to speak to his counsel of choice within 14 minutes of the Applicant identifying that lawyer. While P.C. Beninger could not explain exactly what was happening during that time, it was not so long that it is concerning to me.
[24] Looking at the overall delay and the reasons for it, I am satisfied that the Crown has met its burden: Keshavarz, at para. 67. I find there to be no violation of the implementational aspect of the Applicant’s s. 10(b) right to counsel.
C. THE GAROFOLI APPLICATION
[25] While a warrantless search was conducted prior to the search warrant, one aspect of a valid warrantless search is the existence of reasonable and probable grounds. Therefore it logically makes sense to deal with the Applicant’s argument that those grounds were lacking in the ITO. The grounds set out in the ITO were essentially the grounds for the warrantless entry and search at 12 Greendale Avenue that took place prior to the issuance of the search warrant.
1. Judicial Review of Search Warrants
[26] In the judicial review of a search warrant, a presumption of validity exists. The onus is on the challenging party to show the warrant is invalid. The standard of review is whether the issuing justice could, acting judicially, have found that the legal thresholds were met; whether there was sufficient credible and reliable evidence to permit the justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of the search.
[27] The standard a reviewing judge must apply is whether the ITO contained sufficient reliable evidence that might reasonably be believed on the basis of which the authorizing justice could have concluded that the conditions precedent required to be established had been met: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1452; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 51, 54; R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at paras. 81, 84; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40; R. v. Herta, 2018 ONCA 927, 143 O.R. (3d) 721, at para. 20.
[28] There is both a facial and sub-facial challenge to the search warrant.
2. The Facial Challenge
[29] The facial challenge was not pressed in oral submissions. However, as it is included in the written materials, I will address it. The ITO states “a male, later identified as Shamal Searchwell-Beals” was the man in the back seat of the Rogue. The ITO does not explicitly state how the male was identified to be the Applicant. The Applicant submits therefore that the references in the ITO to Shamal Search-Beals is conclusory. Once excised, he argues, no connection between the premise that was searched and the male in the red Hyundai remains. Therefore, the search warrant could not have issued.
[30] I disagree. It is plain and obvious from the ITO that the male’s identity was learned from his arrest. This is not a case where the affiant avers that an unknown male on the wiretaps is simply stated to be or identified to be “X”. Here, the ITO states that the male on the wires who initially attended to meet with Mr. Smith was unknown. It was only upon his arrest that the male’s identity became known. Any reasonable person, let alone an experienced justice of the peace, could readily infer from the circumstances laid out in the ITO that through reliable methods to ascertain the identity of an arrested person including self-identification by the arrestee, Mr. Searchwell-Beals’s identity became known. Both the issuing justice of the peace and the reviewing justice are entitled to draw reasonable inferences from the information set out in the ITO: R. v. Nero, 2016 ONCA 160, 345 O.A.C. 282, at para. 71. Contrary to the defence submission, this is not a conclusory statement that needs to be excised. I also note that there is no allegation that the justice of the peace was ever misled about whether there was any reason to question Mr. Searchwell-Beals’ identification.
[31] There is no merit to the facial challenge to the search warrant.
[32] The sub-facial challenge is more complicated and was more strenuously argued.
3. The Sub-facial Challenge
[33] On a sub-facial challenge, the Applicant attempts to prove, by placing material before the reviewing justice: (1) that the record before the issuing justice did not accurately reflect what the affiant knew or ought to have known, and (2) that, if it had, the search warrant could not have issued: Araujo, at paras. 50-54; World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207, at para. 120. Sub-facial attacks do not expand the scope of the review: Sadikov, at para. 38.
[34] In R. v. Booth, 2019 ONCA 970, 386 C.C.C. (3d) 281, at paras. 57-59, Paciocco J.A. summarized the procedure involved in a sub-facial challenge:
Erroneous information in an ITO that should not have been included will be excised.
Erroneous information that would have been appropriate for inclusion in the ITO if presented accurately will sometimes be corrected by "amplification" so that it can be considered during the sufficiency review.
When material information that would hinder a finding of reasonable and probable grounds has been improperly omitted, the ITO must be amplified to include it.
Amplification relating to information that could advance the warrant application is permissible only if the error in not making full and frank disclosure is a minor, technical error and made in "good faith". Characterization of the error as minor and technical turns on its nature and not the importance of the topic the error relates to: R. v. Duncan, 2021 ONCA 673, at para. 15; R. v. Feizi, 2022 ONCA 517, at para. 9.
[35] In this sub-facial challenge, both parties agreed that the evidence called on the application could be relied on to be used in accordance with the law.
[36] I must first deal with a unique feature of this case. The Applicant had sought leave to cross-examine D.C. Graham, the affiant who swore the ITO. As I decided in the decision reported as R. v. Searchwell-Beals, 2024 ONSC 1187, pursuant to s. 700(2) of the Criminal Code, I excused D.C. Graham from testifying due to a medical condition. I had previously granted leave to cross-examine D.C. Graham on certain areas of his ITO. My excusal resulted in the Applicant being unable to conduct this cross-examination.
[37] Unquestionably, under s. 7 of the Charter, the Applicant has a right to make full answer and defence: R. v. Carosella, 1997 CanLII 402 (SCC), [1997] 1 S.C.R. 80, at para. 37; R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680, at paras. 22-24. This includes the right to cross-examine Crown witnesses: R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at paras. 41-44. The unavailability of the affiant for cross-examination on his ITO should not deprive the Applicant of this right to make full answer and defence even on an application regarding the admissibility of evidence: R. v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305, at paras. 52-60.
[38] To ensure the Applicant can make full answer and defence on the Garofoli application, I find that the appropriate remedy for the unavailability of D.C. Graham is to excise or amplify in favour of the defence those portions of the ITO that were targeted for cross-examination by the Applicant.
[39] A similar remedy of excision of information in an ITO has been granted in a Garofoli application when evidence has been lost due to unacceptable police negligence in “lost evidence” cases: R. v. Downes, 2022 ONSC 4308, 514 C.R.R. (2d) 153, at para. 34; R. v. St. Clair, 2020 ONSC 2251 at paras. 32-41; R. v. Pham, 2021 ONCJ 285, at para. 197. Of course, the doctrinal basis for the remedy is not the same. In “lost evidence” cases, more than simple unavailability of the evidence is required before a s. 7 remedy is granted; for instance, unacceptable police negligence must be found. However, an underlying concern animating the “lost evidence” remedy is, like here, fairness to the accused: R. v. Janeiro, 2022 ONCA 118, 501 C.R.R. (2d) 142, at para. 109.
[40] As well, in other areas of the law, judicial discretion is afforded to craft appropriate remedies to address the unavailability of a witness and its impact on the accused’s right to make full answer and defence. For example, on a step six Garofoli application, Rouleau J.A. in Crevier, at para. 88, held that where the applicant cannot cross-examine an affiant given the redactions to the ITO, this can be considered a factor in the weight to be given to the redacted portion of the ITO. Cited in Crevier is the case of R. v. Cameron, 2006 CanLII 16078 (ON CA), [2006] O.J. No. 1928 (C.A.) at paras. 20-42 which canvassed the options available to a trial judge when a witness falls ill and is unavailable to complete cross-examination; options ranging from the inadmissibility of the evidence to lesser weight being accorded to it.
[41] In my opinion, the remedy that I have fashioned on the facts of this case respects the process of a Garofoli application and ensures fairness to both Crown and the Applicant. Had I found fraud or deliberate non-disclosure after D.C. Graham had been cross-examined, excision and amplification would have generally resulted. “[T]he existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge”: Garofoli at p. 1452; see also R. v. Hall, 2016 ONCA 13, 128 O.R. (3d) 641 at paras. 47-48. I further observe that even when information in the ITO is obtained in violation of the Charter, the remedy provided in that instance is the same; this information is excised and the determination of whether the warrant could have issued is based on what remains after such excision: R. v. Zacharias, 2023 SCC 30 at paras. 30-34; Araujo at para. 52; R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223 at p. 251.
[42] There is yet another added wrinkle. After final submissions were completed, the parties brought to my attention the case of R. v. Gill, 2024 ONSC 2089. Rightfully so since in Gill, D.C. Graham was the affiant for a different search warrant in Project Red Owl. Like in my case, due to his medical condition, he was not available to be cross-examined. The parties were given a chance to make supplemental submissions regarding this new decision.
[43] Like me, Justice K. Campbell in Gill attempted to fashion an appropriate remedy considering D.C. Graham’s unavailability to be cross-examined as an affiant on a Garofoli application. Like Justice Campbell (at paras. 17-18) and for the same reasons, I too reject a stay of proceedings as an appropriate remedy. Simply, the stringent test for one has not been met. The Applicant did not press this argument before me.
[44] The remedy fashioned in Gill for the absence of the cross-examination of D.C. Graham was to draw all factual inferences that could realistically flow from the ordered cross-examination of the affiant to be drawn in favour of the accused. Put another way, to draw adverse inferences against the Crown on the factual issues. The Applicant now requests that I do the same.
[45] I do not doubt that this can be a potential remedy available to a judge, but I do not do so in my case for two reasons. First, the ITO in question in Gill appears to be very different from the one in the case at bar. In Gill, it seemed that the issuance of the search warrant hinged on pivotal wiretap intercepts that demonstrated Mr. Gill had a firearm. But the affiant did not include other wiretaps where Mr. Gill denied having a firearm and suggested others were lying about him having one. In these circumstances, Justice Campbell determined this remedy to be the right one. In my case, I find that the defence challenges to the ITO do not approach that type of a singular focused attack on the veracity of the affiant and the validity of the grounds for the search warrant to issue. As found by Justice Campbell, without the deceptive averment by omission, the search warrant could not have issued. As my decision will show, I am not dealing with the same set of circumstances in this ITO. Second, for the reasons given above, I find that excision and amplification is the better remedy. It is more precise and tailored than drawing all factual inferences in the defence’s favor. It considers the practical reality that the cross-examination of D.C. Graham, had it occurred, may not have necessarily always favoured the defence on each factual issue. Moreover, as I said before, it is a remedy that respects the nature of the judicial review process of search warrants and preserves its integrity.
[46] Thus, I excise the following. In paras. 49(a)(iv)(1)(a) and 59(a) of the ITO, it states that on May 20, 2021, the wires show Mr. Smith meeting “Ziggy Johnson” at the latter’s residence. Specifically, the paragraphs go on to state “Location Based Services (LBS) for the device associated to Damen Smith at the time of the above intercepted communication indicates the cellular tower is in the area of Jane Street north of Alliance Avenue, Toronto.” Evidence led on this application demonstrates that the LBS data does not show this. It will therefore be excised from the ITO.
[47] The following evidence will amplify the ITO as it hinders a finding of reasonable and probable grounds: (1) that in the year 2020, in police occurrence reports, the Applicant had provided the police with two cellular phone numbers that were not 1348; (2) that shortly after the Applicant’s arrest, when the police attempted to confirm that the cellphone he had on his person was 1348, that phone did not ring; (3) that Mr. Smith used the Mac’s Milk plaza for other drug deals on earlier dates in May and June; and (4) that on June 15, wiretaps showed that Mr. Smith may have been involved in setting up two drug deals that day. Specifically, at 15:38, with an unknown male using telephone number 437-216-3906, Mr. Smith agreed to meet “at the Mac’s in like fifteen.”
[48] That is the extent of the excision and amplification. I disagree with the Applicant’s submission that a wholesale excision of anything connecting the name “Ziggy Johnson” to Mr. Searchwell-Beals is necessary or appropriate. First, there is nothing erroneous or misleading about the other portions of the ITO. There was no failure of full and frank disclosure in the other portions of the ITO. Under the sub-facial challenge, they are not affected. Second, there is no unfairness to the Applicant due to D.C. Graham’s unavailability by not extending excision in the manner argued for by the Applicant. Leave to cross-examine was not sought nor given on these other aspects of the ITO. The officer’s unavailability for cross-examination does not affect them. They would not have been excised even if the officer was available as a witness.
[49] When excision and amplification is complete, the reviewing court determines whether, based on the corrected ITO, there remains a reasonable basis upon which the authorizing justice, acting judicially, could find reasonable grounds to believe that an offence has been committed and that evidence of the offence would be found at the specified place: R. v. Phan, 2020 ONCA 298, 387 C.C.C. (3d) 383, at para. 53. The affidavit is tested on what the affiant knew or ought to have known at the time it was sworn, not the ultimate truth of the assertion in it. In that manner, the judicial review focuses on the affiant's reasonable belief: World Bank Group, at paras. 121-123; Phan, at para. 51; R. v. Pires; R. v. Lising, 2005 SCC 66, [2006] 3 S.C.R. 343, at para. 41.
[50] Having completed this process, I am satisfied that on the remainder of the ITO, this search warrant could have issued. This conclusion is based on the evidence from the wiretaps and the circumstantial inferences that can be drawn from the meeting that took place in the plaza in front of the Mac’s Milk store as observed by the police.
[51] Regardless of the excisions and the amplifications, the ITO discloses the required reasonable and probable grounds to search the 12 Greendale Avenue residence. The grounds may be summarized as follows:
a. Wiretap evidence demonstrates that an unknown male using phone number 1348 with subscriber name “Ziggy Johnson” supplies drugs to named target Damen Smith.[^1]
b. Intercepted calls on June 13 revealed Mr. Smith looking for drugs from “Ziggy Johnson” who advised he did not have any but was expecting a delivery the next day. The affiant avers he believed that the June 15 transaction was in relation to this expected drug delivery. On June 15, there are several calls between Mr. Smith and “Ziggy Johnson” regarding meeting. In an intercepted communication on June 15 at 6:04 p.m., “Ziggy Johnson” and Mr. Smith agreed to meet “at the Mac’s in 10” for a drug transaction. At 6:17 p.m., Mr. Smith received a call from “Ziggy Johnson” saying he had to ‘“ski” [weigh] something and Mr. Smith said okay and that he had just pulled up. The affiant avers he believed this meeting was a drug transaction.[^2]
c. Shortly thereafter, police surveillance observed Mr. Smith enter a plaza with a Mac’s Milk convenience store. Soon afterwards, a male driving a red Hyundai pulled up next to Mr. Smith’s Rogue and entered it. This male and Smith were arrested, and in the car, police find a firearm, drugs, and money. Some drugs were found in the rear seat area where the Applicant was seated.[^3]The male is identified as the Applicant, Mr. Searchwell-Beals.[^4]
d. Police investigation determined Mr. Searchwell-Beals’s home address as 12 Greendale Ave, Unit A. Intercepted communications suggested that Mr. Searchwell-Beals stores drugs in his residence.[^5]
[52] Objectively, these wires and the circumstances of the police stop of the Rogue, as described in the ITO, provide a powerful inference that Mr. Searchwell-Beals is “Ziggy Johnson”. In short, “Ziggy Johnson” was going to meet Mr. Smith at the Mac’s Milk plaza for a drug deal on June 15. Then the Applicant showed up to the meeting at the time the wires indicate they would meet. That is a sufficient connection between “Ziggy Johnson” and the Applicant for the search warrants for the Hyundai and 12 Greendale Avenue to issue.
[53] In paragraph 51(a)(v) of the ITO, D.C. Graham avers that it was the intercepted communications between Mr. Smith and the male using the phone number ending in 1348 combined with the arrest information from June 15, 2021, that led him to believe Shamal Searchwell-Beals was using this phone number. For the reasons given above, I find objectively that this belief is reasonable.
[54] I fully appreciate that the excision and amplifications detract from reasonable and probable grounds. However, it must be remembered that a search warrant is an investigative tool. The ITO need not establish beyond a reasonable doubt or on a balance of probabilities that the man in the back of the Rogue, the Applicant, is “Ziggy Johnson”.
[55] I do not agree with the Applicant’s position that the excision and amplifications, when assessed collectively, could have affected the issuance of this search warrant in light of what remained untouched in the ITO. The fact the Applicant may have had different cellphone numbers a year earlier is of little moment on reasonable and probable grounds. This added information does not preclude him from having the cell phone number 1348 in 2021. The excision of the LBS data would have not made any difference since, at best, it was some confirmatory evidence that Mr. Smith attended Greendale Ave on a prior occasion, May 20, thus connecting him to the Applicant. Given the nature of the LBS data which could only designate a relatively speaking broad area of the city in which the device was located, it had very little probative weight even in its erroneous form. After excision, what remains would not have changed the justice of the peace’s assessment of this confirmatory evidence nor whether this search warrant could have issued. The fact that Mr. Smith had used the Mac’s plaza previously for drug transactions is essentially neutral information if not information that adds to the reasonable and probable grounds. The use of the name “Searchwell-Beals” rather than “Ziggy Johnson” throughout the ITO, was not misleading given that the ITO made it clear that until his arrest, he was an unknown male.[^6]
[56] Granted, the following two amplifications are more significant. Yet they, too, do not detract from my conclusion, even when assessed cumulatively with all the other matters. On the issue of his cellphone not ringing, it is a commonsense inference that a person may have more than one cellphone. Indeed, paragraph 56(a) of the ITO references a phone call with Mr. Smith in which “Ziggy Johnson” said he needed to look at his “other phone”. The Hyundai had not yet been searched. It would be plain to the issuing justice that 1348 could have been left in the vehicle.[^7] Moreover, it is also reasonably possible that the Applicant had not brought 1348 with him to the meeting in the Rogue but took another phone.
[57] Regarding the wiretap about meeting another drug purchaser on June 15, the call that was omitted between Mr. Smith and a different unknown male occurred at 15:38. This call took place two hours earlier than the meeting the police observed. That this was the male who met up with Mr. Smith at the time of the police take-down was such a remote possibility, it could not have altered a reasonable assessment of the grounds. Even if disclosed, the most compelling inference remained that “Ziggy Johnson” who called to meet with Mr. Smith at a time most proximate to the take-down was the person who showed up at the Mac’s Milk plaza and got in Mr. Smith’s car.
[58] All of this is to say that the search warrant for the Hyundai and 12 Greendale Avenue could have issued even if the issuing justice of the peace had known all of this evidence that the Applicant argues shows he may not have been “Ziggy Johnson”. This conclusion is based upon the wires alluded to above and the fact the Applicant arrived at the Mac’s Milk plaza as “Ziggy Johnson” said he would. It bears repeating that the test on judicial review is not whether more investigation could or should have been done, nor whether I would have issued the warrant, but rather whether it could have been granted.
[59] This brings me to the issue of the misleading emails to the justice of the peace’s office. I have no doubt the emails written by D.C. Graham were wrong and misleading. On June 15, 2021, at 22:56, D.C. Graham submitted by email his application for the search warrant (a telewarrant) to the justice of the peace’s office at Old City Hall. At 23:02, the office asked him whether the warrant needed to be executed immediately and was urgent. At 23:09, D.C. Graham advised that it was and gave details, including the fact that officers were at the residence with an occupant awaiting judicial authorization to search. At 23:10, the office responded and said to submit this application to the local intake office during business hours tomorrow. At 23:22, D.C. Graham advised that the application was urgent and “[o]fficers have secured the residence and are currently inside with a female who is detained and who is alleged to be the roommate of the arrested party” and his belief that “this search warrant needs to be executed as soon as possible as the female occupant is currently being detained pending the search warrant.” At 23:30, the justice of the peace office replied that the estimated wait would be five to six hours and they would tell him when to send the materials. On June 16, 2021, at 00:01, D.C. Graham advised they had made other arrangements and that he was withdrawing from the waitlist. The officer-in-charge of the wireroom, Detective Tanabe testified that he was aware of the estimated wait time. But he was not aware of the misleading emails. Detective Tanabe decided that it would be best not to wait that long for the search warrant. He based this upon his experience that it would be difficult to obtain a search warrant at this hour and knew the estimate was not guaranteed. He decided that it would be more efficient to apply for the search warrant during the regular day shift when there would more justices of the peace working. Further, D.C. Graham had already done a long and hardworking shift. It was Detective Tanabe’s decision that D.C. Graham should abandon this application, head home, and try again early the next morning. In his view, this was likely to be the result regardless.
[60] On June 16, 2021, D.C. Graham re-submitted the application for the search warrant at 9:03 a.m. and the telewarrant was issued just before 11:00 a.m.
[61] It was not true that a female occupant was detained at the time. Detective Balint and his fellow officers had cleared the house by then and there was in fact no one being detained. Of course, D.C. Graham could have just made an honest mistake but given his unavailability as a witness, this cannot be determined for certain. However, to ensure the Applicant is treated fairly and can make full answer and defence to the greatest extent feasible on his Charter application, I am prepared to find this was a deliberate falsehood. Also, the flow of the email exchange supports this. D.C. Graham resorted to advising the justice of the peace’s office that a female was being detained to justify the urgency of his application only after the office told him to take his application to the local intake office the next day. I am prepared to find that he told the office this falsehood to get precedence for his application.
[62] Despite this misleading of the justice of the peace’s office, the Applicant does not argue that this amounts to a stand-alone s. 8 violation. I agree with that concession. This falsehood does not form any part of the ITO nor affect the reasonable and probable grounds for the search warrant. Moreover, it formed no part of why a telewarrant was sought under s. 487.1 of the Criminal Code. Put differently, the urgency created by the purported detention of the female occupant formed no part of any exigent circumstances that made it impracticable for the affiant to appear in person to get a regular search warrant under s. 487. The ITO states the reason for this requirement under s. 487.1 was that the Regional Senior Justice of the Peace had issued a direction during the COVID-19 pandemic that all search warrants were to be submitted electronically. Thus, this falsehood by D.C. Graham had no material relevance to the issue of the impracticableness of a personal attendance for a regular search warrant: R. v. Darling, 2020 ONSC 6397, at paras. 44-53; R. v. Erickson, 2003 BCCA 693, 192 B.C.A.C. 203, at para. 33; R. v. Labelle, 2022 ONSC 5399 at paras. 127-128. Finally, I note that this request for a telewarrant was withdrawn that night. A new request was put forward the next morning without any reliance upon a false foundation to gain priority.
[63] Regardless, the Applicant still argues that this fabricated excuse to seek an urgent warrant was part of a pattern of disregard by the affiant to be full and frank in his obligations as an affiant and forthright in his involvement in securing the search warrant. He argues it reflects adversely on his credibility and reliability as a witness which is relevant to the review of the search warrant. In addition, he submits that it negatively affects the integrity of the search warrant process.
[64] With respect to the former point, I have already taken into account the deficiencies in D.C. Graham’s obligations in making full and frank disclosure in the process of excision and amplification. Consideration of his falsehood in his emails to the office of the justice of the peace does not contribute anything more to that. As for any pattern of disregard for the search warrant process or concerns for the integrity of the process, in my opinion, this along with other failings of D.C. Graham as an affiant is best assessed under the residual discretion to quash a search warrant under subversion.
[65] Justice Watt held in R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321, at paras. 62, 69, that even after excision and amplification, courts have the discretion to set aside a warrant on the grounds of subversion despite the existence of reasonable and probable grounds for its issuance. The following principles are considered:
The police misconduct must be egregious enough to subvert the judicial authorization process through deliberate nondisclosure, bad faith, deception, fraudulent misrepresentation or similar conduct.
The threshold for setting aside the warrant in these circumstances is high.
The conduct necessary to engage this discretion has been described as being so subversive of the search warrant process as to in effect amount to an abuse of process, requiring that the warrant be quashed.
"Subversion" connotes undermining, corrupting, weakening, destroying or disrupting a system or process.
The residual discretion to set aside a warrant on this basis is exercised having regard to the totality of the circumstances.
[66] After having regard to the totality of the circumstances, I find that this high test has not been met. Even if D.C. Graham’s impugned conduct as an affiant and in the emails was deliberate nondisclosure or deceptive, when I look at the totality of the circumstances, the high threshold has not been met. The matters in the ITO that D.C. Graham failed to disclose were not of any great importance to the central basis for the search warrant. Even if deliberate, they were, at their core, failings in making full disclosure as opposed to lies serious enough to subvert the authorization process. Although there were multiple instances of this, coupled with the deception of the justice of the peace’s office in the emails, I view the conduct to be not egregious enough to have undermined, corrupted, weakened, destroyed or disrupted the search warrant process. The totality of the circumstances includes the fact D.C. Graham was tasked with drafting a complicated ITO in a short period of time, having had no prior notice that the Applicant was the person who was going to meet with Mr. Smith and was going to be arrested. All the while under pressure and stress to do it quickly given officers were freezing the premises. He did not have the luxury of time as in other search warrants which are drafted and issued even before an arrest is made. It also includes the fact that in this lengthy and detailed ITO based on an extensive wiretap investigation, D.C. Graham did not deliberately mislead for the purpose of attempting to obtain a search warrant when the grounds for getting one were weak or somehow lacking. He failed as an affiant. But it was not an egregious failure. I do not accept the Applicant’s characterization of his overall conduct as something significantly more serious. Finally, while I condemn the misleading of the justice of the peace’s office in the strongest of terms, it was ultimately unsuccessful since the delay inherent in that office that night resulted in D.C. Graham having to re-submit the application the next day in the regular course of business hours. In conclusion, the search warrant is not quashed based on subversion: R. v. Majeed, 2017 ONSC 2963, at paras. 4-11, aff’d on other grounds 2019 ONCA 422; Cf. R. v. Downes, 2022 ONSC 4308, 514 C.R.R. (2d) 153, at paras. 125-132, 152.
[67] To be frank, I fully appreciate the challenge faced by the Applicant in trying to prove subversion without being able to cross-examine the affiant. But I must emphasize, I find that the unavailability of D.C. Graham to be cross-examined does not alter my decision on subversion. I have given considerable latitude to the defence in impeaching D.C. Graham’s conduct through submissions and have made several assumptions in favour of any defence characterization of that conduct. Despite that, for the reasons I have explained, I have concluded the search warrant should not be quashed based on my residual discretion.
D. THE FREEZING OF 12 GREENDALE AVE
1. The Summary of the Evidence
[68] The relevant evidence relating to the freezing of 12 Greendale Ave can be summarized as follows.
[69] Detective Tanabe was one of the lead investigators in Project Red Owl. He had provided Detective Balint and his surveillance team information gleaned from the intercepts that primarily formed the basis of the grounds to arrest Mr. Smith and for the search warrants for his vehicle and residence. In addition, based on the intercepts, Detective Tanabe formed the belief that on June 15, Mr. Smith was going to meet with his drug supplier in the plaza where the Mac’s Milk convenience store was located on Jane Street.
[70] As the events at the scene of the arrest on Jane Street unfolded, police investigation revealed information that the Applicant was associated with the address of 12 Greendale Avenue. This information was given to Detective Tanabe at 7:30 p.m. by D.C. Graham. At 7:32 p.m., Detective Tanabe instructed the surveillance team to go to the address, freeze it, and hold it while a search warrant was prepared. At 7:50 p.m., Detective Balint, two members of his team, and two uniformed officers arrived at 12 Greendale Avenue. Detective Balint knocked on the door. Inside were two females in their twenties and a young 10-year-old boy. Detective Balint explained the situation. The officers entered the two-story home and searched the premises to ensure no one else was in the residence. They were inside the home during this time for about six minutes. Detective Balint advised the occupants that they would have to leave. Initially, the occupants were upset, unimpressed with the demand to leave, but eventually cooperated and the premise was cleared at 8:35 p.m. The officers stayed outside of the home to prevent anyone from entering.
[71] The officers returned to the home three further times that evening. At 10:03 p.m., the officers re-entered as they believed they saw movement inside. Once satisfied there was no one and what they observed was a television or a cat, they left after a couple of minutes. At 11:14 p.m., the female who resided there was permitted to come back in to feed the cat and to retrieve property required for the next day. At 12:00 a.m., she was permitted to go back into the home to get some food. At 12:32 a.m., the team was relieved by another team of police officers who were assigned to maintain control over the residence while waiting for the search warrant.
2. The Existence of Exigent Circumstances that Make a Search Warrant Impracticable
[72] It is undeniable that the entry into 12 Greendale Ave to preserve evidence while a search warrant was being obtained constitutes a search within the meaning of s. 8 of the Charter: R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, at para. 140; R. v. McCormack, 2000 BCCA 57, 133 B.C.A.C. 44, at para. 5.
[73] As this was a warrantless search, the burden is on the Crown to establish that it was Charter compliant. To do that, the Crown relies upon s. 11(7) of the Controlled Drugs and Substances Act. This subsection inter alia permits a police officer to enter and search a premise without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances, it is impracticable to obtain one.
[74] In the circumstances of this case, subsection 11(7) requires the Crown to prove three things:
a. the police have reasonable and probable grounds for a search warrant under s. 11 of the CDSA;
b. the police believe, on reasonable grounds, that there is an imminent danger that evidence located in the premises will be destroyed or lost if the police do not enter and secure the premises without delay; and
c. the exigent circumstances must make the obtaining of a warrant impracticable meaning impossible in practice or unmanageable to obtain a warrant; put another way, waiting would seriously undermine the police objective.
See R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at paras. 33-34, 36-37; R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223, at p. 241; R. v. Phoummasak, 2016 ONCA 46, 346 O.A.C. 9, at para. 12; R. v. Chuhaniuk, 2010 BCCA 403, 261 C.C.C. (3d) 486, at para. 72; Hobeika, at paras. 35, 43; R. v. Bakal, 2021 ONCA 584, 157 O.R. (3d) 401, at para. 21 R. v. Nguyen, 2023 ONCA 291, at paras. 14, 22-24.
[75] To be clear, the existence of exigent circumstances involves (1) the subjective belief of police; and (2) the objective basis for that belief: McCormack, at para. 25.
[76] Having concluded that D.C. Graham had the grounds for the search warrant, there is no issue about the first requirement.
[77] Moving on, Detective Tanabe was the officer who made the decision that exigent circumstances existed. I find the officer was a fair though perhaps an overly expansive witness, but not to the point of being argumentative as suggested by the Applicant. I accept his evidence.
[78] Detective Tanabe gave several reasons as to why he ordered the freeze. He explained that, based on intercepts, he believed that the supplier, “Ziggy Johnson”, was not bringing all his product with him, because he had indicated that he had to weigh the substances, and therefore that meant there were more controlled substances at his residence. After ascertaining the exact address, Detective Tanabe confirmed his suspicion that the residence was near the scene of the arrest. He believed freezing the residence was necessary because:
a. His experience that in all wiretap gang-related investigations he has been involved with, attempts have been made post-arrest to move evidence such as firearms or controlled substances.
b. Groups or networks under investigation have developed a practice of moving contraband when they become aware of an investigation especially by the Guns and Gangs Taskforce, even to the extent that new social media terminology of “spring cleaning” has developed in reference to moving contraband.
c. Specifically in Project Red Owl, he noted an extreme cohesiveness of the group the police were investigating with an emphasis on sharing information to help each other, notifying one another about police presence in order to thwart police investigations, and helping each other avoid jail. In March, Detective Tanabe recalled a specific call involving a named party of the wires talking about the police getting involved with investigating a person and that party giving direction to having that place “cleaned” which the officer interpreted as having contraband removed from the premises. Specifically, in relation to Mr. Smith, there were calls where he would contact others in his group to help them avoid interaction with the police. In one call between Mr. Smith and “Ziggy Johnson”, the two discussed Mr. Smith spotting the presence of police and warning the latter about it so he could avoid that intersection. In another call, Mr. Smith is driving out of town to traffick drugs, and he warns an associate who is driving in tandem about his suspicions about an undercover police officer. In another call between Mr. Smith and “Ziggy Johnson”, Mr. Smith is outside the latter’s residence, and consults whether, out of safety concerns, “Ziggy Johnson” wanted Mr Smith to come in or not.
d. The arrest scene was near 12 Greendale Avenue. The two were within walking distance and a couple of minutes by car.
e. The arrest was in public and executed by plain clothes officers in an intense and chaotic fashion. There were many others in the area at the time, unknown to police who may have observed the arrest and proceeded to make phone calls to warn of the police arrest and the presence of a surveillance team. Indeed, Detective Tanabe testified that from the intercepts around the time of the police arrest, others were talking on the phone about the scene, the police presence, and the fact that Mr. Smith was involved.
[79] For these reasons, Detective Tanabe believed that the drugs at the Applicant’s residence were at “huge risk” of being destroyed if they had to wait for a search warrant before freezing 12 Greendale. I accept his testimony and find that the subjective component of the test has been met.
[80] With respect to objectively assessing the adequacy of those grounds for exigent circumstances, the following is my analysis.
[81] There are some factors relied upon by Detective Tanabe that cannot be considered objectively. Detective Tanabe’s reliance on his experience with other investigations and social media in general cannot be considered in determining the existence of exigent circumstances. These are general concerns and not sufficiently connected to the specifics of the situation confronting the police: R. v. Pawar, 2020 BCCA 251, 393 C.C.C. (3d) 408, at paras. 65-66; R. v. Adler, 2020 ONCA 246, 388 C.C.C. (3d) 114, at paras. 22, 43. Moreover, I cannot consider the intercepted call at 1:25 a.m. the night of the arrest in which a “Hassan Kamara”, an associate of Mr. Smith, and “Ziggy Johnson”, spoke about trying to contact women who were at the Applicant’s house at 12 Greendale Ave for the purpose of flushing the drugs in the toilet. This informed Detective Tanabe’s decision to continue to freeze the residence. Detective Tanabe testified that he heard this call at the time it was intercepted, and this reinforced his view that 12 Greendale Ave should be frozen and continue to be held pending receipt of the search warrant. While it may have held some importance to the officer, it cannot be considered on the objective analysis. Whether the requirements of s. 11(7) of the CDSA were met must consider only what the police knew at the time the decision was made to search 12 Greendale Avenue. Subsequent events do not further the grounds: Hobeika, at paras. 36-37.[^8] In the same vein, the fact that D.C. Graham withdrew his initial telewarrant application and then reapplied in the morning of June 16 is not relevant to the analysis since (a) the decision to freeze the premises was made not by him but Detective Tanabe; (b) that decision had been made much earlier, at 7 p.m.; and (c) when Detective Tanabe decided that the application could be made in the morning, the premises were already secured by the police from any interference.
[82] The circumstances of the arrest are an important factor supporting exigent circumstances. The Rogue breaking containment was most dramatic.[^9] The chaos did not end with the police vehicles crashing into the Rogue. Mr. Smith fled the scene with officers in pursuit on foot and in vehicles. Traffic was obstructed on a busy day-lit street by the accident scene and the detentions/arrests. Guns had been drawn by the police. Police cruisers with flashing lights arrived and blocked the traffic. There were numerous pedestrians observing and some were filming. In addition to the officers who testified to this, the body worn camera video supports this picture. This arrest drew the attention of many in the vicinity. Of the numerous possible scenarios in which police arrests take place, this was the kind of arrest that one could reasonably expect there to be talk spread around about, even by those who did not directly observe it. As it happened, the intercepts revealed that some individuals were making calls proximate to the arrest indicating awareness of the arrests. This provided concrete evidence supporting the reasonable inference that this arrest would soon become discussed in the wider community.
[83] The location of the arrest supports exigent circumstances. It was not far from 12 Greendale Avenue. It was a two-minute drive away, though not just outside the premise that was to be searched, as in cases such as Hobeika, at para. 44. Nonetheless, it was close enough that someone in the vicinity could well have known the Applicant or Mr. Smith and have recognized them being arrested. I note that Mr. Smith had been to this plaza on prior occasions.
[84] There is no evidence that the Applicant was expected back at his residence or that he was acting in concert in drug-trafficking at 12 Greendale Avenue. No surveillance ever had been conducted at the premises. Until the officers knocked at the door, they had no information about who resided there. That said, once the officers knocked at the door, they became aware that there were residents present. While the decision to freeze was made before this information was obtained, the officers had this information prior to entering the premises. In other words, before the entry, the legal status of which is now being questioned, the police knew there were resident(s) who could facilitate a destruction or movement of evidence. This only supports the legality of the entry. While I take the view that events after the entry cannot be considered, it would be entirely artificial to ignore this fact that became known to the police when they arrived at 12 Greendale Avenue and before they entered.
[85] Significantly, Detective Tanabe testified to a series of intercepts arising out of Project Red Owl in general and Mr. Smith in particular that caused him concern. I find that this is a significant case-specific consideration that evidence could be destroyed. It is not a general concern based upon past experience or other investigations.
[86] I appreciate that the intercepts that he alluded to mainly involve Mr. Smith, and not Mr. Searchwell-Beals/ “Ziggy Johnson”. However, they support the concern that the cohesion of the group and the motive to help one other avoid police investigation could lead to the destruction of evidence. This would also involve Mr. Searchwell-Beals indirectly as the intercepts indicate he was part of that circle of associates where such a motive existed, and where assistance was offered. In other words, he was not a stranger for whom Mr. Smith and his associates would have no reason to try and help.
[87] Of course, exigent circumstances alone are not enough. It must be connected to the impracticability of obtaining a search warrant. However, search warrants cannot be obtained immediately. In obtaining a search warrant including a telewarrant, there is an inherent time requirement where the affiant must prepare an ITO and the issuing justice consider it: R. v. Bakal, 2021 ONCA 584, at para. 31. The impracticability of getting a search warrant must consider this fact. At the same time, while I do appreciate the fact that these inherent time requirements exist, and the length of time to get a search warrant may vary depending on the length and complexity of the ITO as well as the availability of resources to prepare a search warrant application and for a judicial officer to consider it, such time requirements cannot play a central role in deciding the issue of impracticability. To hold otherwise would significantly weaken the prior authorization requirement of the s. 8 jurisprudence. It would reward inefficiencies and failures to adequately resource policing and the justice system by permitting greater latitude in finding exigent circumstances.
[88] Along these lines, in the case at bar, a factor that cannot enter the analysis is the inability of the justice of the peace’s office to consider the search warrant application for five to six hours. This unavailability of the justice of the peace’s office has no relevance to the impracticability requirement of s. 11(7). It is the exigent circumstances that must make the obtaining a search warrant impracticable. Not the inner administrative workings or staffing of the issuing justice of the peace’s office.
[89] In the final analysis, I conclude that exigent circumstances existed in that there was an imminent danger that evidence located in 12 Greendale Avenue would be destroyed or lost if the police did not enter and secure the premises without delay and those exigent circumstances made obtaining a search warrant impossible in practice if the police were to avoid a serious risk of evidence being destroyed. As I have reasoned, the nature of the arrests, the proximity of the arrest location to 12 Greendale Avenue, the intercepts showing awareness of the arrests, and the cohesion and motive of the group the Applicant was associating with, provide reasonable grounds for the warrantless search under s. 11(7) of the CDSA.
[90] My finding is also consistent with the authorities. In R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, the Court accepted that there were exigent circumstances and that police officers were required to secure the premises that was the subject of a drug investigation. The facts of that case are instructive. Members of a Toronto police drug squad commenced an investigation into the sale of cocaine. An undercover officer purchased cocaine several times at a community centre. On each occasion, the accused went to the address of 486 Dufferin Street and returned with drugs. The accused was arrested along with other co-accused near the residence. The police were concerned that the public nature of those arrests would lead to instructions to destroy or remove evidence that might be on the premises. To prevent the destruction or removal of evidence between the time of the arrest and the arrival of the search warrant, officers attended 486 Dufferin Street. They knocked on the door, identified themselves, and entered the premises without an invitation. They checked the premises for weapons and for the location of residents within the house. They then holstered their weapons and advised the occupants of the house to remain where they were. They did not search the premises but waited for the search warrant. The court held that exigent circumstances existed. They included the nature of the crime, the public arrests near the dwelling‑house and the belief by the police that they needed to enter the house to preserve the evidence while they awaited the search warrant, which they believed to be on the way.
[91] Similarly, in R. v. Watson [2007] O.J. No. 5 (S.C.J.), Marrocco J. (as he then was) held that police entering an apartment to secure premises to prevent the destruction of evidence constituted exigent circumstances where they believed his apartment was the drug base and the scene of a crime. While there was no reason to believe that there was someone at the apartment who could destroy the evidence, there was a possibility that someone was there. This was sufficient to constitute an exigent circumstance. The warrantless entry, however, was justified only as long as this exigent circumstance existed. See also R. v. McCalla, 2019 ONSC 3256, 439 C.R.R. (2d) 72, at para. 60; R. v. Harris, 2018 ONSC 4298, 415 C.R.R. (2d) 332, at paras. 59-74.
[92] The Applicant relied heavily on the case of R. v. Pawar, 2020 BCCA 251, as being analogous to this case. In Pawar, the appellant was arrested on drug charges a few kilometres from his home. Shortly after his arrest, police entered his home without a warrant. Officers removed his mother and brother from the residence, secured the residence and waited for a search warrant that was being prepared. The officer in charge believed that exigent circumstances existed for three reasons. First, officers were aware that at least the appellant’s mother was in the home. Second, the arrest took place in a public area. Third, one officer was concerned the appellant was trying to contact his mother to destroy evidence.
[93] The trial judge was not satisfied that exigent circumstances existed. She found that the concern for the destruction of evidence was general, and speculative in nature. The trial judge held that speculation could not be used as a rationale for circumventing the warrant requirement. A breach of s. 8 was found. At the s. 24(2) analysis, the trial judge was satisfied that the officers acted in good faith in securing the scene, and that their concern for the destruction of evidence was reasonable. She went on to find the breach serious, though somewhat attenuated by the brevity of the warrantless entry and the non-intrusive nature of the search. Lastly, she found the evidence reliable and essential to the prosecution. In balancing these factors, the trial judge concluded that the admission of the evidence would not bring the administration of justice into disrepute.
[94] On appeal, the sole issue was whether the trial judge erred in her s. 24(2) analysis. The existence of exigent circumstances was not in issue. Justice Fitch found that the trial judge committed errors in her analysis, and therefore considered the Grant factors afresh. In assessing the seriousness of the breach, Fitch J.A. found that there was no evidence capable of supporting an objectively reasonable belief that exigent circumstances required the warrantless entry to the appellant’s private dwelling-house. Theoretically, there was always a risk when police make a public arrest that drugs kept in a house may be moved or destroyed. However, there was nothing in this case that raised the risk from the general to the particular. As a result, the breach was serious since the police decision reflected a serious misunderstanding of the well-established body of law on this point. While the breach was not committed in bad faith nor did it reflect a flagrant disregard for constitutional norms, it did engage the appellant’s elevated expectation of privacy in his home such that the breach was more serious. The impact of the breach favored exclusion since the reasonable expectation of privacy in a home was significant. In balancing all three factors, despite the third factor supporting admission of a substantial quantity of drugs, the court excluded the evidence. The court noted concern in the police approach that indiscriminate use of the exigent circumstances’ doctrine will give rise to unconstitutional privacy breaches in like cases in the future.
[95] In my opinion, factually, Pawar can be distinguished.
[96] First, the appellant in Pawar had been arrested at 10 p.m. in a bank parking lot in the town of Williams Lake. The police officer in charge could not recall if there were any pedestrians or vehicles that passed by at the time of the arrest. This case is radically different. The nature of Mr. Smith’s driving, the police cars crashing into the Rogue to stop it, the time of day, the other police cruisers present to stop and divert traffic, the pedestrians and people in nearby apartment buildings watching, all meant that numerous persons not only would have witnessed the Applicant’s arrest, but their attention would have been riveted on it. This, along with the proximity of his residence, were very solid reasons to be concerned that someone might contact the members of his residence.
[97] Second, Detective Tanabe testified based not just on his general experience with other cases, but with regards to this case. He had case-specific reasons, including intercepts of private communications, why he believed there were exigent circumstances that made obtaining a search warrant impracticable. Those reasons were objectively valid ones.
[98] One last matter. The police cannot remain inside the residence after clearing it: R. v. Weeden, 2018 ONSC 5182, 422 C.R.R. (2d) 102, at para. 46; Harris, at paras. 68-74. Here there were repeated entries after the initial clearing of 12 Greendale Avenue. However, each one was justified. The first entry to investigate suspected movement within the house fell within exigent circumstances as they searched for those present in the home who could destroy or move evidence. Once again, the police reasonably believed someone might still be in the home though it turned out to be a cat. The other entries were with the occupants’ consent to allow the occupants to retrieve items they needed. The police did not search for any evidence in any of these entries.
[99] In conclusion, the Crown has proven case-specific concerns objectively grounding the exigent circumstances that made getting a search warrant impossible. There is no s. 8 violation.
E. SECTION 24(2) EXCLUSION OF EVIDENCE
[100] I have found only a single violation of the informational component of s. 10(b). The Applicant seeks exclusion of approximately two kilograms of cocaine and monies found in 12 Greendale Avenue under s. 24(2) of the Charter.
1. Whether the Evidence was "Obtained in a Manner" that Violated the Applicant’s Rights
[101] The Crown did not raise the issue of whether the evidence seized at the residence was obtained in a manner that violated the Applicant’s rights. This is likely because the Applicant was arguing the s. 8 violations which, if they occurred, would leave in no doubt the temporal and contextual connection: R. v. Beaver, 2022 SCC 54, 475 D.L.R. (4th) 575, at para. 95.
[102] Given that I have found only a s. 10(b) violation, it is a serious question whether this test has been met or whether providing the Applicant with his s. 10(b) soon thereafter the breach, when he was arrested, amounted to a “fresh start” thus severing any connection between the finding of the evidence and the Charter violation: Beaver at paras. 97-99. This “fresh start” principle applies to breaches of the informational component of s. 10(b): R. v. Davis, 2023 ONCA 227, 425 C.C.C. (3d) 80, at para. 34.
[103] While I raise this, ultimately, I am of the view that the s. 24(2) analysis of the three Grant factors should proceed because: (1) given the lifeline nature of the s. 10(b) right, subsequent compliance might not fully dispel the effect of the breach; (2) the “fresh start” doctrine should only be applied in the clearest of cases when the informational component of s. 10(b) is breached, and; (3) out of fairness to the Applicant: Davis, at paras. 24, 41, 44.
2. The Grant Analysis
[104] Under s. 24(2), evidence obtained in breach of the Charter is excluded if its admission could, in all the circumstances, bring the administration of justice into disrepute. The focus of the inquiry is on the long-term impact of the admission of the evidence on the repute of the justice system: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 67-70.
[105] The test requires the consideration of three lines of inquiry into:
the seriousness of the Charter-infringing state conduct;
the impact of the breach on the Charter-protected interests of the accused; and
society's interest in the adjudication of the case on its merits.
Seriousness of the Charter-infringing state conduct
[106] The s. 10(b) breach is serious. But on the facts specific to this case, only moderately so. I do recognize that the duty to provide right to counsel immediately upon detention is a very well-established rule. In this case, the police, though not acting in bad faith, did not respond appropriately to a well-established constitutional right. This situates that violation on the more serious end: Paterson, at para. 44.
[107] Courts have treated breaches of the informational component as being serious. R. v. Thompson, 2020 ONCA 264, 62 C.R. (7th) 286, at paras. 90, 95, is instructive. Justice Jamal characterized an 11-minute delay in advising an arrestee of his right to counsel while they unjustifiably searched his vehicle, as serious. Though additionally there was a systemic component to the violation that rendered it more serious, it was the inability to carry out this relatively easy and straightforward task despite the clear requirement to do so, that compelled Jamal J.A. to this conclusion. This even though Mr. Thompson was given his right a few minutes later. See also Adler, where the delay was ten minutes long and Davis, at para. 5, where the delay was eight minutes. The consensus seems to be that an unjustified breach of this simple and settled rule is considered serious for s. 24(2) purposes.
[108] Moreover, the fact that he was given his s. 10(b) rights later and subsequent police conduct was Charter-compliant does not mitigate the seriousness of the breach: R. v. Griffith, 2021 ONCA 302, 408 C.C.C. (3d) 244, at para. 71; R. v. Jarrett, 2021 ONCA 758, 498 C.R.R. (2d) 38, at para. 53.
[109] On the other hand, I conclude that this violation, while no doubt serious, was not deliberate nor flagrant in the sense the police consciously decided to refrain from advising the Applicant of his s. 10(b) rights. It stemmed from D.C. Doyle and Detective Balint’s negligence in not ensuring the Applicant’s right was given sufficient priority. In addition, the violation was not further aggravated by any failure to give him his right to counsel at all: Cf. R. v. Whittaker, 2024 ONCA 182. Nor was it further aggravated by the police seeking any incriminating evidence from him. As noted, these factors do not mitigate the seriousness of the breach but puts it into proper perspective.
[110] There are two factors that do lead me to find that the seriousness of the breach is moderated.
[111] The first is the context of the scene. The initial delay in providing the informational component of right to counsel was justified by the dynamic and exigent circumstances occurring at the time. The Rogue had driven in a dramatic and unsafe manner. It posed a risk to public safety. The driver quickly fled. Other members of the team had to chase him. This left D.C. Doyle alone with the Applicant and another occupant in the Rogue that he had to attend to. He was in the middle of Jane Street with live traffic and unknown pedestrians around him. This justified a delay in giving the Applicant his s. 10(b) rights. While he handcuffed the Applicant who was then in his control, his attention was still reasonably on the occupant in the car and his surroundings. I am not sure exactly how long this situation lasted, but for the time it did, a suspension of the Applicant’s rights was justified. While the delay after this was not justified, the situation in which the s. 10(b) violation occurred remains relevant since it did not simply end once D.C. Miles returned to the scene. The context continued through the time when the violation took place.
[112] The second is that once the suspension of the s. 10(b) right was no longer justified, while I cannot be sure exactly how long the duration was, I find it was a matter of just a few minutes. I infer this based upon the evidence. It would have taken some time, though not a long time, for D.C. Miles to return after following Mr. Smith in his car. It was only when D.C. Miles returned that D.C. Doyle was able to give his sole attention to Mr. Smith. At this point, D.C. Doyle and/or Detective Balint should have provided him his right to counsel. But overall, the wrongful part of the suspension of the Applicant’s right to counsel was not at all long.
[113] Thus, while the breach was serious, it is sufficiently mitigated such that I do not find it at the most serious end of the continuum for breaches of this nature: Davis, at para. 69.
[114] Before moving on, I will also consider the other conduct of the police: see R. v. Boutros, 2018 ONCA 375, 361 C.C.C. (3d) 240, at para. 26. This takes into consideration the actions of D.C. Graham. I find they do not make the police misconduct that much more serious. D.C. Graham was not involved at all at the scene of the arrest or part of the surveillance team. While he failed in his obligations as an affiant, his embellishments were not a part of pattern of police disregard for the Applicant’s Charter rights that evening. His role was independent and removed from the officers who failed to give the Applicant his Charter rights. Finally, his conduct, though it was wrong, did not amount to any constitutional violation.
[115] In summary, I find that though the violation was serious and supports exclusion, there is not the strongest need to disassociate the court from the Charter-infringing conduct of the police.
The impact on the Charter-protected interest
[116] The right to counsel is directed at assisting detainees with regaining their liberty and protecting them against the risk of involuntary self-incrimination: R. v. Brydges, 1990 CanLII 123 (SCC), [1990] 1 S.C.R. 190, at pp. 202-3. Additionally, the scope of the s. 10(b) protection extends to detainees' psychological security, because access to counsel gives them "the sense that they are not entirely at the mercy of the police" during detention: see Rover, at para. 45; Jarrett, at para. 52.
[117] I find that the impact of the s. 10(b) violation on the protected interest was not that significant.
[118] I recognize that for a violation of the informational component of s. 10(b), the lack of causation between the breach and the evidence is not per se a mitigating factor: Davis, at para. 65.
[119] Nonetheless, the brief time in which the Applicant was without the informational component of his s. 10(b) right, the fact that no strategic decision was made to delay it, and there being no attempt to question him during this time, are all mitigating. Thus, the breach had little impact on the interest that right to counsel is meant to protect, including the impact on the Applicant’s psychological security: R. v. Desilva, 2022 ONCA 879, 421 C.C.C. (3d) 177, at paras. 86-87.
[120] Consideration of this line of inquiry does not greatly support exclusion.
Society's interest in the adjudication of the case on the merits
[121] This factor weighs strongly in favour of the admission of the evidence. The evidence is reliable. It consists of two kilograms of cocaine and monies. Excluding this evidence will mean the prosecution will be eviscerated. While the seriousness of the offence cuts both ways under the s. 24(2) analysis, there is no question that there is a strong interest in the adjudication of these offences on the merits.
The final balancing
[122] The final balancing of these lines of inquiry must always keep its focus on the long-term effect of the admission or exclusion of the evidence. Here, the first inquiry pulls in favour of the exclusion of the evidence, though not with the greatest force. This is mainly because the police conduct was not deliberate nor flagrant and there were contextual factors that tends to diminish the seriousness of the police conduct. While there is a need for the court to dissociate itself from the police action in this case, it is not a super strong need. The second line of inquiry is fairly neutral in pushing for exclusion: Zacharias at para. 75. The third line of inquiry strongly favours admission.
[123] The final balancing is a qualitative exercise and not a mathematical one. Having engaged in this final balancing, it is clear to me that the correct result is to reject the defence application and to admit the evidence. The admission of the evidence could not bring the administration of justice into disrepute. Therefore, the application is dismissed.
Justice S. Nakatsuru
Released: May 24, 2024
COURT FILE NO.: CR-24-20000056-0000 CR 24-20000057-0000
DATE: 20240524
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
Crown/Respondent
- and -
SHAMAL SEARCHWELL-BEALS
Applicant/Defendant
REASONS FOR JUDGMENT
NAKATSURU J.
Released: May 24, 2024
[^1]: Paras. 51, 56-60 of the ITO.
[^2]: Paras. 60-61 of the ITO.
[^3]: The Applicant argued that this was misleading. I find it was not. The ITO does not say drugs were found on the Applicant’s person. The box with methamphetamine and the bag of marijuana were located on the floor of the rear seat area where the Applicant was sitting. Only the most technical reading of the impugned portion could lead one to contend this was misleading.
[^4]: Paras. 16, 52, 61 of the ITO.
[^5]: Paras. 49, 59, 69 of the ITO.
[^6]: Paras. 16, 51, 52, 56
[^7]: Indeed, the evidence on the application is that the police saw two cellphones within the Hyundai. However, since the Crown had not specifically relied on this evidence as amplification for the Crown, I will not consider it. This however does not detract from the inferences the issuing justice of the peace could have drawn from what was revealed in the ITO.
[^8]: However, had I found a s. 8 violation, I would imagine this would be an important consideration under the s. 24(2) analysis.
[^9]: D.C. Miles provided the most florid description. He described how the Rogue went over a low embankment that the police initially believed could not be driven over. The Rogue’s rear end went almost vertical in the air and the rear wheels crashed down. It was shocking. It created chaos on Jane street. One passing vehicle almost struck the Rogue.