COURT FILE NO.: CR-23-70000182-0000 DATE: 20240726

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Respondent

– and –

JORDAN DENNIS Applicant

Counsel: Jay Spare, for the Respondent Jeffrey Fisher, for the Applicant

HEARD: June 27-28, 2024

REASONS FOR JUDGMENT ON APPLICATION PURSUANT TO SECTION 24(2) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

VERMETTE J.

[1] The Applicant, Jordan Dennis, is charged with robbery with a handgun contrary to section 343(d) of the Criminal Code, disguise with intent contrary to section 351(2) of the Criminal Code, and pointing a firearm at another person contrary to section 87(1) of the Criminal Code.

[2] The Applicant has brought an application for an order under section 24(2) of the Canadian Charter of Rights and Freedoms (“Charter”) excluding evidence obtained through: (1) a warrantless search of a laptop computer on March 4, 2022, and (2) the execution of two search warrants several days later.

[3] The Applicant’s main complaint relates to the warrantless search of his laptop computer, which the Crown concedes was an infringement of section 8 of the Charter. The observations made by the police officer who searched the laptop were then relied upon in the Informations to Obtain that requested the issuance of the two search warrants in issue.

[4] On July 12, 2024, I granted the Application in part and dismissed it in part with reasons to follow. The following are my reasons.

I. Background

[5] The evidence before me on this Application included:

a. the viva voce evidence of two police officers with the Peel Regional Police Service, Ashley Chircop and Clark Carvalho;

b. the viva voce evidence of Pratheep Manuel, who used to be a manager at the hotel where some of the relevant events took place;

c. the affidavit and viva voce evidence of the Applicant, Jordan Dennis;

d. exhibits, including:

i. the Applicant’s Application Record, which contained, among other things, the transcript of the evidence of Officer Chircop at the preliminary inquiry, the Information to Obtain of Detective Constable (“DC”) John Park to search the Applicant’s inmate personal property vault at the Maplehurst Correctional Facility (“Maplehurst ITO”), and the Information to Obtain of DC John Park to search a white 2021 BMW X3 (“BMW ITO”);

ii. the Crown’s Responding Record, which contained, among other things, hotel registration records and search execution photographs;

iii. a bulletin prepared by the Toronto Police Service (“TPS”) regarding the robbery of a jewelry store on February 24, 2022; and

iv. the Applicant’s criminal record.

[6] The following is a summary of the relevant facts based on the evidence before me.

A. Robbery of jewelry store in Toronto

[7] On February 24, 2022, three men robbed a jewelry store in Toronto. The men wore masks and hoods. One of the men had a handgun. The handgun was held by the three men at different times while in the jewelry store. The men loaded jewelry into bags and left. They took approximately $750,000.00 worth of jewelry. The Crown’s theory is that the Applicant was one of those three men.

[8] The incident in the store was captured on video surveillance. Video footage obtained from neighbouring units shows the three men fleeing the jewelry store on foot and going into an alleyway. One of the suspects is captured on video with his face unmasked. Video footage of the alleyway shows a white BMW SUV travelling at a high rate of speed. The camera did not capture the front of the vehicle and the view of the rear of the vehicle reveals that it did not have a licence plate.

[9] One of the three men, Jahsyah Thomas, was identified as a result of a fingerprint lifted from a glass display case in the jewelry store. Mr. Thomas has entered a guilty plea to the charge of robbery and has been sentenced.

[10] The surveillance video in the store shows a pair of zip ties falling on the floor from the pocket of one of the suspects. Those zip ties were later found to contain the DNA of the other co-accused, Jermaine Davis.

[11] The Crown alleges that the third suspect who was captured on video with his face unmasked is the Applicant.

B. Investigation conducted by the Peel Regional Police Service

[12] On March 3, 2022, the Peel Regional Police Service received information from Pratheep Manuel, a manager at a hotel located in Mississauga (“Hotel”). Mr. Manuel informed the police that upon cleaning room #514 after the guests had checked out, two bullets were located within the room. Room #514 was registered under the Applicant’s name. Mr. Manuel also told the police that based on the level of activity in and out of the room, he believed that room #514 may have been a “working room” in which sex work had taken place.

[13] Later on March 3, 2022, Hotel staff advised the police that the Applicant had checked into a different room, room #425, with Dwayne Wilson. Room #425 was registered under Dwayne Wilson’s name. The Hotel’s registration records show that four adults were associated with room #425 at the time of check-in.

[14] At 8:00 a.m. on March 4, 2022, police received information that the Applicant was in the Hotel, and possibly in room #425.

[15] While police set up containment on room #425, Dwayne Wilson exited the room and stated that his brother, the Applicant, was in the room, but was unwilling to leave the room.

[16] Police then observed a firearm and ammunition fall from the 4th floor of the Hotel. Further investigation revealed that these items came from room #425, where a hole had been cut out of the window mesh. Dwayne Wilson was then arrested for firearms charges.

[17] Officer Chircop requested a Feeney warrant for the arrest of the Applicant. The warrant was granted by a justice of the peace and the tactical team executed the warrant shortly after 11 a.m. The Applicant was arrested. He was the lone occupant of the room at the time of his arrest. Officer Carvalho took custody of the Applicant from the tactical team.

[18] Officer Chircop then prepared an Information to Obtain a search warrant for room #425 (“Hotel ITO”). The offence in relation to which the warrant was sought was possession of a firearm without being the holder of a licence. This offence was alleged against both Dwayne Wilson and the Applicant.

[19] In addition to the information above, the Hotel ITO stated that police had located a vehicle in the parking lot associated to the parties in room #425, i.e., a white 2014 Ford Focus that was a rental vehicle from Centreline Auto Group.

[20] The Hotel ITO listed the following items to be searched for/seized: (1) firearm and accessories; (2) ammunition; (3) magazines; (4) identity documents; and (5) firearm lockbox.

[21] The Peel Regional Police Service executed the search warrant on March 4, 2022. Officer Chircop was part of the team that executed the search warrant. The officers found ammunition and a large amount of cash ($86,320.00) in room #425 (“Hotel Room”), as well as two black balaclavas on the couch.

[22] The Hotel Room also contained video camera equipment that appeared to be new and an Apple laptop computer that was on a table. Packaging for the video camera equipment was still in the Hotel Room, but there was no packaging for the laptop. Officer Chircop’s evidence is that she thought that the video camera equipment and the laptop had been stolen because they “did not fit in the room”. She decided to open up the laptop to see if she could get a name. She thought that she could see who the owner of the laptop was by clicking on the Apple icon or doing a cursory search. After she opened up the laptop, Officer Chircop saw that it was unlocked and did not require a password. Officer Chircop saw that there was a video program, iMovie, that was available on the screen. She saw a black screen with a play button. She pressed the play button and then saw what looked like a music video, but with no audio. The video showed a Black man in the driver’s seat of a vehicle with stacks of money and jewelry on the dashboard. According to Officer Chircorp, the vehicle was a white BMW. She stopped watching the video after two or three seconds and closed the laptop. The laptop was not seized and was left in the Hotel Room. After seeing the video, Officer Chircop was sufficiently comfortable that the laptop belonged to the occupants of the Hotel Room.

[23] Officer Chircop admitted that she did not turn her mind to the possibility of seeking another search warrant for stolen property, and that she probably did not have grounds to obtain such a warrant. She also agreed that there were no exigent circumstances in relation to the search of the laptop.

[24] Following their arrest on March 4, 2022, both the Applicant and Dwayne Wilson were held in custody at Maplehurst Correctional Facility (“Maplehurst”).

[25] The Applicant has since pled guilty to possession of the firearm that was thrown out of the window of the Hotel Room.

C. Information provided by Officer Chircop to the TPS

[26] On March 6, 2022, Officer Chircop saw a bulletin from the TPS (“TPS Bulletin”). The TPS Bulletin was about the February 24, 2022 robbery at the jewelry store. It contained pictures of the three suspects and the suspect vehicle, a white BMW SUV. Officer Chircop concluded from a review of the TPS Bulletin that the Applicant was possibly a suspect. She thought that suspect #2 resembled the Applicant. She also remembered the balaclavas found in the Hotel Room and the video that she had seen on the laptop involving a white BMW with money and jewelry.

[27] Officer Chircop asked one of her co-workers to go to the Hotel’s parking lot to see whether a white BMW SUV was there. Such a vehicle was located (“White BMW”). Officer Chircop then called the TPS officer mentioned in the TPS Bulletin to pass on the information that she had.

D. The Applicant’s evidence

[28] In his affidavit, the Applicant states that the laptop in the Hotel Room belonged to him and no one else. He further states that he bought it at a computer store in the east end of Toronto approximately two or three days before his arrest.

[29] The Applicant testified that the video camera equipment in the Hotel Room was also purchased two or three days prior to his arrest. The laptop and the video camera equipment were purchased at different locations. The video camera equipment was bought to do music videos, and the laptop was purchased to edit music videos.

[30] The Applicant confirmed that there was no password protection on the laptop. He stated that the video in issue was made during the two or three days prior to his arrest. The Applicant was the actor/singer. No one recorded him and he did not need anyone to do so as the camera that he used moved when he moved.

[31] The Applicant’s evidence was that the Hotel Room was registered under his brother’s name. In addition to the Applicant and his brother, there was a third person in the Hotel Room who was a friend of both the Applicant and his brother. That friend was involved in the production of the video with the Applicant. Both the Applicant and the friend edited the video on the laptop. They took turns to do so. The Applicant’s brother was not involved with the video.

[32] The Applicant stated that aside from editing the video, the laptop was not used for anything else. He testified that this was the first time that he was doing a music video and that he was just practicing. He said that he did not intend to share the video with friends on social media.

[33] The Applicant’s evidence with respect to the White BMW was that he did not own it, and he did not lease it or rent it.

E. Maplehurst ITO and BMW ITO

[34] On March 7, 2022, DC Park signed the Maplehurst ITO and the BMW ITOs (together, the “ITOs”) for two search warrants: one for the Applicant’s inmate personal property vault at Maplehurst, and one for the White BMW. The items to be searched for/seized listed in the Maplehurst ITO are: (1) four necklaces/chains; (2) one watch; and (3) a BMW key fob. The items to be searched for/seized listed in the BMW ITO are: (1) black handgun; (2) ammunition; (3) various jewelry; (4) various items of clothing; (5) black surgical gloves; (6) identification in the name of Dwayne Dennis; and (7) identification in the name of the Applicant. The grounds set out in the two ITOs are substantially the same. The offence referred to in the ITOs is the robbery of the jewelry store on February 24, 2022.

[35] Both ITOs have a section entitled “Investigation by Peel Regional Police”. It reads as follows:

34. On Saturday March 5th, 2022 I was made aware of an investigation conducted by the Peel Regional Police.

35. I was forward [sic] emails sent by PC Chircop as well as a copy of the report submitted by Peel Regional Police. The report is titled PR220075292. I read the emails and the report which can be summarized as follows.

36. On Friday March 4th, 2022 at 7:45 AM Peel Regional Police received a call to attend the Unit #425 at the Marriott Residence Inn, located at 5070 Creekbank Road in the City of Mississauga in relation to a firearm within the hotel room.

37. Police attended and were present outside the door when a male exited the room at 9:37 AM. The male was detained pending an investigation.

38. He was identified as Jordan DENNIS with a date of birth of June 8, 1987. [1]

39. At 9:55 AM Police observed an occupant in room #425 throwing items out of the window. The items were recovered and seized by Police and identified as a black firearm and ammunition.

40. At 10:00 AM Jordan DENNIS was arrested and transported to 12 Division.

41. A Feeney warrant was executed at Unit #425 at 11:11 AM. The occupant was arrested and identified as Dwayne DENNIS with a date of birth of […].

42. A Criminal Code search warrant was executed in Unit #425. During the search a large amount of Canadian currency was seized.

43. A laptop was located within the unit but was not seized. Peel Region investigators looked at the laptop and could see that the males were making some king [sic] of music video which featured a white BMW SUV, large amounts of jewelry and cash.

44. A Peel Regional Police analyst reviewed the image of Jordan DENNIS and of a bulletin created by Toronto Police Service Hold Up Squad that attempted to identify the suspects involved in the […] Jewelry store robbery and believed there to be a link between these occurrences.

45. The white BMW SUV was located in the parking lot of the hotel. The vehicle had a Ontario licence plate attached. The licence plate was […].

46. This vehicle was towed to a secure Toronto Police Service facility located at 2050 Jane Street, Toronto, ON.

[36] In the ITOs, DC Park states that he compared the image of a booking photo of the Applicant taken on June 28, 2018 to the image of one of the suspects in the video footage collected in relation to the robbery of the jewelry store. DC Park includes the two images in the ITOs and expresses the belief that the comparison of the two images shows a strong resemblance between the Applicant and the suspect.

[37] The ITOs also include a section entitled “Vehicle Towed to Jane Street Garage”. In addition, the Maplehurst ITO contains a section entitled “Maplehurst Correctional Facility”. These two sections read as follows:

VEHICLE TOWED TO JANE STREET GARAGE

52. A CPIC check on the white BMW located in the parking lot of the hotel at 5070 Creekbank Road, Mississauga revealed the following information.

53. The licence plate […] is attached to a white 2021 BMW.

54. The vehicle is registered to WTH CAR RENTAL with a business address of 1 Convair Drive, Toronto.

55. The below images are a comparison of the BMW SUV that was towed from 5070 Creekbank Road to the suspect vehicle believed to be used as a getaway vehicle in the […] Jewelry store robbery.

[Two images included.]

MAPLEHURST CORRECTIONAL FACILITY

56. On Monday March 7, 2022 I spoke with Corrections Officer Valentine GEORGE who advised that both Jordan DENNIS and Dwayne DENNIS are currently in custody at Maplehurst Corrections Facility.

57. GEORGE advised that when Dwayne DENNIS was booked into the facility, all of his property was placed into Prisoner Property Vault #6. The contents are described as various papers and identification.

58. GEORGE advised that when Jordan DENNIS was book [sic] into the facility, all of his property was placed into Prisoner Property Vault #73. The content [sic] are described as, clothing, 4 gold necklaces/chains, a watch, $4,000 in cash, and a BMW vehicle key fob.

[38] The search warrant for the White BMW was executed on March 10, 2022. The White BMW contained, among other things, a Hotel receipt for the Applicant, a jewelry store business card with a fingerprint from the Applicant, sunglasses containing DNA from the Applicant, an opened container of zip ties, and bottles which later tested to contain the DNA of Jermaine Davis, co-accused with the Applicant.

II. Discussion

[39] I first discuss the issues raised under section 8 of the Charter. I then turn to the analysis under section 24(2).

A. Section 8 Analysis

1. Search of the laptop computer in the Hotel Room

[40] The Crown concedes that there is an infringement of section 8 of the Charter in this case because the search of the laptop was beyond the scope of the search warrant for the Hotel Room and the search of the laptop is not justifiable on any other legal basis.

[41] I agree with the Crown’s concession. In R. v. Vu, 2013 SCC 60 (“Vu”), the Supreme Court of Canada clearly stated that a computer search requires specific pre-authorization (see, e.g., paras. 2-3). There was no legal basis for the search of the laptop.

[42] Accordingly, the search of the laptop conducted by Officer Chircop breached the Applicant’s section 8 rights.

2. Excision of the ITOs

[43] Given that the information acquired from the search of the laptop computer was obtained in contravention of section 8 of the Charter, the observations made by Officer Chircop during the search of the laptop must be excised from the ITOs. See R. v. Grant, [1993] 3 S.C.R. 223 at 251.

[44] The Applicant’s position is that absent the results of the unlawful laptop search, the two search warrants subsequently obtained by the TPS could not have been issued. His position is that the sections of the ITOs entitled “Investigation by Peel Regional Police” and “Vehicle Towed to Jane Street Garage”, i.e., paragraphs 34-46 and 52-55 of the ITOs, must be excised in their entirety.

[45] The Crown argues that the section entitled “Investigation by Peel Regional Police” should not be entirely removed because, independent of the search of the laptop, Officer Chircop thought that suspect #2 in the TPS Bulletin was the Applicant. The Crown’s position is that only the following paragraphs should be excised in the ITOs: the last sentence of paragraph 43, paragraphs 45-46 and paragraphs 52-55 (i.e., only part of the section entitled “Investigation by Peel Regional Police” and the entire section “Vehicle Towed to Jane Street Garage”). While the Crown acknowledges that the search warrant for the White BMW could not have issued based on the remaining evidence in the BMW ITO, the Crown submits that the search warrant for the Applicant’s inmate personal property vault at Maplehurst could still have issued based on the Maplehurst ITO.

[46] In reply, the Applicant argues that both search warrants fail. He submits that the only reason why Officer Chircop called the TPS was because of the video that she saw on the laptop, and there is no evidence that she would have called the TPS just based on the Applicant’s picture.

[47] I disagree with the Applicant that there is no evidence that Officer Chircop would have called the TPS based only on the Applicant’s picture. Officer Chircop gave evidence at the hearing before me that she thought that suspect #2 resembled the Applicant. As noted by DC Park in the ITOs and as shown by the pictures included in the ITOs, one could conclude that there is a strong resemblance between the picture of suspect #2 in the TPS Bulletin and the Applicant. There is no reason why Officer Chircop would not share this information with the TPS. This is especially the case given paragraph 44 of the ITO, which states:

44. A Peel Regional Police analyst reviewed the image of Jordan DENNIS and of a bulletin created by Toronto Police Service Hold Up Squad that attempted to identify the suspects involved in the […] Jewelry store robbery and believed there to be a link between these occurrences.

[48] In my view, the only information that must be excised from the ITOs is information that relates to the laptop and the White BMW. Such information is contained in paragraphs 43, 45-46, and 52-55. Paragraph 44 does not contain this kind of information.

[49] I agree with the Crown that the search warrant for the White BMW could not have issued based on the remaining information in the BMW ITO. Given this, the White BMW was searched in violation of section 8 of the Charter.

[50] However, I also agree with the Crown that the search warrant for the Applicant’s inmate personal property vault at Maplehurst could still have issued without the improperly obtained information excised from the Maplehurst ITO.

[51] When reviewing a warrant, the question is not whether the reviewing justice would have issued the warrant, but whether the issuing justice could have done so. The test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued. See Vu at para. 16 and R. v. Sureskumar, 2023 ONCA 705 at para. 38 (“Sureskumar”). The reviewing court is to consider whether there was sufficient credible and reliable evidence to permit the issuing justice to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place. See R. v. Kalonji, 2022 ONCA 415 at para. 19 (“Kalonji”) and R. v. Morelli, 2010 SCC 8 at para. 40.

[52] In applying this test, the reviewing judge is required to adopt a common-sense and holistic approach, and take into account that authorizing justices may draw reasonable inferences from the evidence in the information to obtain. Thus, reasonable inferences can be relied upon in the absence of direct evidence. See Kalonji at para. 25, Vu at para. 16 and R. v. Herta, 2018 ONCA 927 at para. 20 (“Herta”).

[53] The “reasonable grounds to believe” standard does not require proof on the balance of probabilities. This standard is one of credibly-based probability. Credibly-based probability exceeds suspicion, but falls short of a balance of probabilities. The authorizing justice has to make their decision about whether to issue the warrant from the evidence included in the information to obtain as a whole, approaching the assessment on a common-sense, practical and non-technical basis. See R. v. Sadikov, 2014 ONCA 72 at paras. 81-82 and Herta at para. 20.

[54] I find that based on paragraph 44 of the ITO (reproduced above) and the comparison between the picture of the Applicant and the picture of suspect #2 in paragraphs 47-49 of the Maplehurst ITO, there was sufficient credible and reliable evidence to permit the issuing justice to find reasonable and probable grounds to issue the warrant for the Applicant’s inmate personal property vault at Maplehurst.

3. Standing of the Applicant with respect to the search of the White BMW

[55] The Crown argues that there is a question as to whether the Applicant has standing with respect to the White BMW. The Crown points out that there is no evidence before the Court that the key fob found at Maplehurst is the key fob for the White BMW. The Crown acknowledges that the Applicant had items in the BMW, including sunglasses.

[56] The Applicant submits that there is no standing issue with respect to the search of the White BMW. He states that there is strong circumstantial evidence that the key fob found at Maplehurst is the fob for the White BMW. The Applicant point outs that the White BMW was found in the parking lot of the Hotel many days after his arrest, which constitutes evidence that the Applicant had exclusive possession of the vehicle. The Applicant also notes that reservation documents for the Hotel in his name were found in the White BMW.

[57] The Crown’s argument with respect to the Applicant’s standing in relation to the White BMW was not raised in its Factum. It was raised for the first time at the hearing. As a result, this Court only received cursory arguments on the issue of whether the Applicant had a reasonable expectation of privacy in the White BMW and/or the items seized in the White BMW.

[58] In light of this and my conclusions under section 24(2) of the Charter in relation to the search of the White BMW, I will presume that the Applicant had a reasonable expectation of privacy with respect to the White BMW and/or its contents and, therefore, standing with respect to the search of the White BMW.

B. Section 24(2) analysis

1. General applicable principles

[59] There are two components to determining whether evidence must be excluded under section 24(2) of the Charter: the threshold component and the evaluative component. The threshold component asks whether the evidence was “obtained in a manner” that infringed or denied a Charter right or freedom. [2] If the threshold requirement is met, the evaluative component asks whether, having regard to all the circumstances, admitting the evidence would bring the administration of justice into disrepute. See R. v. Beaver, 2022 SCC 54 at para. 94 (“Beaver”).

[60] Threshold component. Section 24(2) is engaged only when the accused first establishes that evidence was “obtained in a manner” that breached the Charter. The threshold requirement insists that there be a nexus between the Charter breach and the evidence, absent which section 24(2) has no application. Determining whether evidence was “obtained in a manner” that infringed the Charter involves a case-specific factual inquiry into the existence and sufficiency of the connection between the Charter breach and the evidence obtained. See Beaver at para. 95.

[61] Whether evidence was “obtained in a manner” that infringed an accused’s rights under the Charter depends on the nature of the connection between the Charter violation and the evidence that was ultimately obtained. The courts have adopted a purposive approach to this inquiry. Establishing a strict causal relationship between the breach and the subsequent discovery of the evidence is unnecessary. Evidence will be tainted if the breach and the discovery of the impugned evidence are part of the same transaction or course of conduct. The required connection between the breach and the subsequent discovery of the evidence may be temporal, contextual, causal, or a combination of the three. A remote or tenuous connection between the breach and the impugned evidence will not suffice. See Beaver at para. 96 and R. v. Mack, 2014 SCC 58 at para. 38.

[62] Evaluative component. Under the second component, a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (a) the seriousness of the Charter-infringing state conduct, (b) the impact of the breach on the Charter-protected interests of the accused, and (c) society’s interest in the adjudication of the case on its merits. The court’s role on a section 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. The balancing mandated by section 24(2) is qualitative in nature and no overarching rule governs how the balance is to be struck. See R. v. Grant, 2009 SCC 32 at paras. 71, 86, 140 (“Grant”). In all cases, the court must assess the long-term repute of the administration of justice: R. v. Côté, 2011 SCC 46 at para. 48 (“Côté”).

[63] Under the first factor – the seriousness of the Charter-infringing state conduct, the court must assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct by excluding evidence linked to that conduct in order to preserve public confidence in and ensure state adherence to the rule of law. See Grant at para. 72.

[64] The court’s task in considering the seriousness of Charter-infringing state conduct is to situate that conduct on a scale of culpability. At one end of the scale is conduct that constitutes a wilful or reckless disregard of Charter rights, a systemic pattern of Charter-infringing conduct, or a major departure from Charter standards. At the other end of the scale are less serious Charter breaches, including breaches that are inadvertent, technical, or minor or those that reflect an understandable mistake. Admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law, but admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute. Good faith on the part of the police will also reduce the need for the court to disassociate itself from the police conduct, but ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith. See Grant at paras. 74-75, R. v. Paterson, 2017 SCC 15 at para. 43, and Beaver at para. 120.

[65] The second factor – the impact of the breach on the Charter-protected interests of the accused – calls for the identification of the interests protected by the relevant Charter right and an evaluation of the extent to which the breach actually undermined the interests protected by the right. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute. See Grant at para. 76 and Beaver at para. 123.

[66] An assessment of the impact of a Charter breach should consider whether the impugned evidence could have been obtained through other Charter-compliant means. That analysis cannot be speculative. There must be compelling grounds to believe the evidence would otherwise have been obtained. In those circumstances, discoverability is a factor that should be considered in determining the impact of the violation of the rights of the accused. See Sureskumar at para. 28.

[67] The third factor – society’s interest in the adjudication of the case on its merits – asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society’s collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law. The reliability of the evidence and the importance of the evidence to the prosecution’s case are factors to be considered in this line of inquiry. While the seriousness of the alleged offence may also be a valid consideration, it has the potential to cut both ways. See Grant at paras. 79, 81, 83, 84.

[68] The third line of inquiry becomes particularly important where one, but not both, of the first two inquiries pulls towards the exclusion of the evidence. Where the first and second inquiries, taken together, make a strong case for exclusion, the third inquiry will seldom if ever tip the balance in favour of admissibility. Conversely, if the first two inquiries together reveal weaker support for exclusion of the evidence, the third inquiry will most often confirm that the administration of justice would not be brought into disrepute by admitting the evidence. See R. v. McGuffie, 2016 ONCA 365 at para. 63 and R. v. Le, 2019 SCC 34 at paras. 141-142.

2. Positions of the parties

[69] The Applicant’s position is that the evidence should be excluded. He submits that the Charter-infringing conduct was serious and that Officer Chircop’s conduct was not taken in good faith. The Applicant states that Officer Chircop did not have a reasonable belief that she was acting in accordance with the law. He argues that she deliberately engaged in a search of the laptop knowing that she did not have grounds to obtain a search warrant and that her conduct was in direct opposition to longstanding Supreme Court precedent. According to the Applicant, the argument that the TPS acted in good faith because they obtained a warrant should be rejected because this otherwise “launders” the bad faith conduct of an officer by another officer who relies on the information obtained in breach of the Charter.

[70] The Applicant argues that his Charter-protected rights were seriously affected by Officer Chircop’s misconduct. He points out that personal computers enjoy a high degree of privacy.

[71] With respect to the last prong of the test under section 24(2), the Applicant submits that while society has an interest in the adjudication of this case on the merits, the Crown’s case does not solely depend on the impugned evidence. The Applicant states that the Crown would rely on the similarity between the Applicant’s appearance and surveillance footage showing one of the suspects prior to and during the robbery. The Applicant argues that even though the second factor of the test may not pull strongly towards exclusion, the evidence should be excluded because of the seriousness of the Charter-infringing conduct.

[72] The Crown’s position is that the evidence should not be excluded pursuant to section 24(2) of the Charter.

[73] The Crown argues that Officer Chircop acted in good faith in conducting a cursory search of the laptop based on her belief that the items in the Hotel Room may have been stolen. The Crown points out that Officer Chircop made detailed notes about the search and relayed what she had done and found to the other officers in the Hotel Room. According to the Crown, Officer Chircop had an articulable basis to check the ownership of the computer and was honest about what she did. The Crown submits that there was no deceit, flagrant disregard for the Charter or a systemic pattern of breaches in this case.

[74] The Crown states that the subsequent searches informed by Officer Chircop’s observations were conducted pursuant to search warrants by officers who believed that they were acting under lawful authority. The Crown submits that the executing officers did not wilfully or even negligently breach the Charter. The Crown also argues that the police officer who obtained the warrants acted as he was obligated to under the law: the affiant set out the information received from Peel police and was entitled to rely on information provided by another officer. According to the Crown, the affiant was not required to second-guess every piece of information or assume that the search conducted by Peel police pursuant to a warrant was illegal.

[75] The Crown submits that the Applicant had a low expectation of privacy and that the impact of any breach of the Applicant’s privacy interest was slight. The Crown notes that the search of the laptop was conducted in a matter of seconds while the police was executing a search warrant for the Hotel Room, and Officer Chircop did not open any application or files aside from that which was already displayed on the screen of a computer without password protection. The Crown also points out that the laptop was shared with another person who used it in the absence of the Applicant, and that the Hotel Room was not registered in the Applicant’s name. The Crown states that no intimate details were revealed in the search, and that the laptop did not contain core biographical data or a lot of personal information. The Crown compares what happened to opening and closing a physical file folder with a single photo in it.

[76] With respect to the search of the Applicant’s inmate personal property vault at Maplehurst, the Crown submits that there was no intrusive impact as the Applicant’s property had already been catalogued by the jail and no core biographical information was involved. As for the search of the White BMW, the Crown argues that the impact on the Applicant’s rights was minimal because there is no evidence that this was his vehicle. The only evidence is that he had some items in it. The Crown also argues that the White BMW was discoverable. The Crown states that it is not speculative to say that the TPS would have sought out a white vehicle associated with the Applicant after his arrest.

[77] As for the last prong of the test under section 24(2), the Crown states that the evidence in issue in this case is real, tangible and reliable. The Crown submits that the exclusion of this evidence would undermine the truth-seeking function of the trial and compromise the ability of the Crown to prove the case on its merits. The Crown also argues that the public has an obvious interest in curtailing gun crime. The Crown states that the video found on the laptop is a small piece in a larger puzzle, but it is important because it connects the Applicant to the White BMW.

3. Application to the facts of this case

[78] I now turn to the application of section 24(2) to the facts of this case. I discuss below whether the following evidence should be excluded: (a) Officer Chircop’s observations of the laptop’s contents; (b) the results of the warrant to search the White BMW; and (c) the results of the warrant to search the Applicant’s inmate personal property vault at Maplehurst.

a. Analysis – Officer Chircop’s observations of the laptop’s contents

[79] Seriousness of Charter-infringing conduct. In Vu, more than ten years ago, the Supreme Court of Canada clearly stated that a computer search requires specific pre-authorization (see, e.g., paras. 2-3).

[80] In my view, Officer Chircop showed reckless disregard for the Applicant’s Charter rights. As the officer who prepared the Hotel ITO, Officer Chircop knew that the search warrant that was obtained for the Hotel Room did not authorize the police to search a computer. Nevertheless, she did not turn her mind to the possibility of seeking another search warrant for stolen property and/or a computer, and she acknowledged that she probably did not have grounds to obtain such a warrant. There were no exigent circumstances in this case.

[81] I do not accept the Crown’s argument that Officer Chircop acted in good faith. As stated above, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith. A casual attitude towards Charter rights generally aggravates the seriousness of the Charter-infringing conduct: see Côté at para. 71.

[82] I find that Officer Chircop showed ignorance of Charter standards and reckless disregard of Charter rights. This is serious conduct on the part of the police that favours the exclusion of the evidence.

[83] Impact of the breach on the Charter-protected interests of the Applicant. In Vu, the Supreme Court of Canada expressed the view (at para. 40) that “[i]t is difficult to imagine a more intrusive invasion of privacy than the search of a personal or home computer”. An unreasonable search that intrudes on an area in which an individual reasonably enjoys a high expectation of privacy is more serious than one that does not: see Grant at para. 78.

[84] The privacy interests protected by the requirement to obtain a specific pre-authorization before searching a computer are important ones. However, in the specific circumstances of this case, the impact on the Applicant’s protected interests was not substantial. The Applicant had purchased the laptop only a couple of days prior to the search and, aside from editing the video, he had not used the laptop for anything else. Therefore, the information contained on the laptop was very limited. Further, the search of the laptop was extremely short – it lasted two or three seconds – and the only thing that Officer Chircop saw was a video (without sound) of the Applicant in a car with money and jewelry. The search did not expose any intimate details of the Applicant’s lifestyle or information of a biographic nature. I note, however, that there is no evidence before me that the video was meant to be shared with others, and I do not accept the Crown’s argument to the contrary.

[85] In light of the foregoing, I conclude that this second factor only slightly favours the exclusion of the evidence.

[86] Society’s interest in the adjudication of the case on its merits. I agree with the Crown that society’s interest in the adjudication of alleged gun crimes on the merits is high. The Crown’s case is a circumstantial one, with potential identification issues. Officer Chircop’s observations of the laptop’s contents are not crucial to the Crown’s case, but they are part of the circumstantial evidence linking the Applicant to the alleged getaway car. However, Officer Chircop’s observations are not real, tangible evidence. Their reliability is not particularly strong given that Officer Chircop only watched the video for two or three seconds, and this occurred more than two years ago.

[87] In light of the foregoing, this factor favours the admission of the evidence, but not significantly.

[88] Conclusion under section 24(2) of the Charter. Balancing all the factors, I conclude that the admission of Officer Chircop’s observations of the laptop’s contents would bring the administration of justice into disrepute. The seriousness of the state conduct was at the high end of the spectrum. It showed a lack of consideration of Charter standards in the absence of any valid reason. While the actual impact of the breach on the Applicant was not significant, the search intruded on an area in which a person enjoys a high expectation of privacy. Finally, the third factor is attenuated given the nature of the evidence.

b. Analysis – Results of the warrant to search the White BMW

[89] Seriousness of Charter-infringing conduct. The analysis of the Charter-infringing conduct with respect to the search of the White BMW requires the consideration of two Charter breaches.

[90] One breach is the fact that the search of the White BMW occurred in the absence of a valid search warrant. As found above, a valid search warrant for the White BMW could not have issued after the excision of Officer Chircop’s observations regarding the laptop’s contents from the BMW ITO. With respect to this breach, there is no evidence of bad faith or misconduct on the part of DC Park or the TPS regarding the BMW ITO and/or the execution of the search warrant. While affiants may not ignore signs that other officers may be misleading them or omitting material information, they do not need to conduct their own investigation if there is no indication that anything is amiss. See World Bank Group v. Wallace, 2016 SCC 15 at para. 123. There is no evidence before me that would suggest that DC Park knew, or should have suspected, that the information conveyed by Officer Chircop with respect to the video on the laptop was unconstitutionally obtained.

[91] In R. v. Rocha, 2012 ONCA 707 at para. 28, the Court of Appeal stated the following:

Applying for and obtaining a search warrant from an independent judicial officer is the antithesis of wilful disregard of Charter rights. The search warrant process is an important means of preventing unjustified searches before they happen. Unless the applicant for exclusion of evidence can show that the warrant was obtained through use of false or deliberately misleading information, or the drafting of the ITO in some way subverted the warrant process, the obtaining of the warrant generally, as I explain below, tells in favour of admitting the evidence.

[92] The other Charter breach is the search of the laptop conducted by Officer Chircop in contravention of section 8 of the Charter. The threshold requirement under section 24(2) is met with respect to this Charter-infringing conduct because I have already found that the search warrant for the White BMW could not have issued without the information provided by Officer Chircop regarding the video on the Applicant’s laptop. Thus, there is a sufficient connection between the Charter breach and the evidence obtained during the search of the White BMW. I concluded above that Officer Chircop’s conduct showed reckless disregard for the Applicant’s Charter rights when she searched the laptop.

[93] While there is a connection between Officer Chircop’s unlawful search of the laptop and the search of the White BMW, and while this connection is sufficient to trigger the application of section 24(2), I am of the view that this connection and the extent to which the results of the search of the White BMW were “tainted” by Officer Chircop’s conduct are attenuated having regard to all the circumstances. Among other things, Officer Chircop’s Charter-infringing conduct occurred in an unrelated investigation conducted by a different police force a few days before the BMW ITO was prepared and the search warrant for the White BMW was obtained. Officer Chircop’s conduct and the search of the White BMW were not part of the same transaction or course of conduct. The case before me is very different than a case where the police improperly obtain a statement that they know will be inadmissible in order to find derivative evidence which they believe may be admissible (see Grant at para. 128). There could not have been any such intention in this case because the two investigations were completely unrelated at the time of the search of the laptop.

[94] Having regard to all the circumstances pertaining to the search of the White BMW, including Officer Chircop’s conduct showing reckless disregard for the Applicant’s Charter rights and the good-faith conduct of DC Park and the TPS, I conclude that the factor of the seriousness of the Charter-infringing conduct in relation to the search of the White BMW favours the exclusion of the evidence, but in an attenuated way when compared to Officer Chircop’s observations of the laptop’s contents. [3]

[95] Impact of the breach on the Charter-protected interests of the Applicant. The case law has consistently held that there is a lesser expectation of privacy in a car. An individual’s privacy interest in a vehicle and its contents are markedly decreased relative to the privacy interest that individuals have in their home, office or bodily integrity: see, e.g., R. v. Caslake at para. 34, R. v. Belnavis at paras. 38-39 (“Belnavis”) and R. v. Grant and Campbell, 2015 ONSC 1646 at para. 145.

[96] Whether a passenger in a car has a reasonable expectation of privacy in the car depends on the circumstances. See Belnavis at para. 22, R. v. Steele, 2015 ONCA 169 at para. 18 (“Steele”) and R. v. Ahmed, 2022 ONCA 640 at para. 50 (“Ahmed”).

[97] In the present case, the Applicant’s connection to the White BMW is tenuous and unexplained. The Applicant testified that he did not own the White BMW, and that he did not lease or rent it. He gave no evidence regarding any historical use of the White BMW. He also gave no evidence showing any connection to the registered owner of the White BMW (WHT Car Rental), or about the terms on which he came to be inside the White BMW or have items inside it. He did not give evidence regarding the key fob that was found in his inmate personal property vault at Maplehurst or about the items that were found in the White BMW during the search (e.g., sunglasses). There is no evidence before me that would establish some special access to, or privilege in regard to, the White BMW on the part of the Applicant. See Belnavis at paras. 19-25, Steele at paras. 18-20 and Ahmed at para. 50.

[98] Even if I were to presume that the key fob found in the Applicant’s personal property vault at Maplehurst is a key fob for the White BMW, this is insufficient to establish an expectation of privacy in the absence of any other evidence with respect to the connection between the Applicant and the White BMW. See Belnavis at para. 21.

[99] The Crown’s theory of the case does not assist the Applicant as it is limited to the allegation that the White BMW was the getaway car after the robbery of the jewelry store and that the Applicant was a passenger in the car at that time. The Crown does not allege a stronger connection between the Applicant and the White BMW.

[100] The items found in the White BMW that appear to be connected to the Applicant – sunglasses, jewelry store business card and Hotel receipt – do not involve any core biographical information. I also note that they were left in the car while it was parked in the Hotel’s parking lot. There is no evidence before me as to whether these items were in plain sight or not.

[101] In light of the foregoing, I conclude that any Charter-protected interest that the Applicant may have had in the White BMW or its contents was minimal and that, therefore, the impact of the breach was also minimal. This factor favours the admission of the evidence.

[102] The impact of the breach is further reduced by an analysis of the issue of discoverability. Based on the actions taken by Officer Chircop after reviewing the TPS Bulletin, I am satisfied on a balance of probabilities that the White BMW would have been located in the Hotel’s parking lot even if Officer Chircop had not searched the laptop and watched the video on it. After seeing the TPS Bulletin, Officer Chircop asked one of her co-workers to go to the Hotel’s parking lot to see whether a white BMW SUV was there. I find on a balance of probabilities that she would have taken the same step even if she had not seen the video given that: (a) Officer Chircop thought that suspect #2 on the TPS Bulletin resembled the Applicant; (b) the TPS Bulletin stated that the suspects had fled from the jewelry store in a white BMW SUV; and (c) the Applicant had recently been arrested at the Hotel. It is the TPS Bulletin that created the potential connection between the Applicant – as a suspect in the TPS’s investigation – and a white BMW SUV, as well as the associated possibility that a white BMW SUV could be in the Hotel’s parking lot following the Applicant’s arrest. The video added to that connection, but was not necessary to establish one.

[103] In any event, if Officer Chircop had not taken the step of having one of her colleagues look for a white BMW SUV in the Hotel’s parking lot after seeing the TPS Bulletin, I find that the TPS would have done so after learning of the resemblance between the Applicant and suspect #2 and the fact that the last location where the Applicant was before his arrest was the Hotel.

[104] Society’s interest in the adjudication of the case on its merits. As stated above, I agree with the Crown that society’s interest in the adjudication of alleged gun crimes on the merits is high. The Crown’s case is a circumstantial one, with potential identification issues. The items found in the White BMW during the search are not crucial to the Crown’s case, but they are part of the circumstantial evidence linking the Applicant to the alleged getaway car. Contrary to Officer Chircop’s observations of the contents of the laptop, the items found in the White BMW constitute real, tangible and reliable evidence.

[105] This factor favours the admission of the evidence.

[106] Conclusion under section 24(2) of the Charter. Balancing all the factors, I conclude that the admission of the evidence found in the White BMW during the search would not bring the administration of justice into disrepute. While the conduct of Officer Chircop in relation to the search of the laptop was serious, the police officers involved in obtaining and executing the search warrant for the White BMW acted in good faith, and the White BMW was independently discoverable. Further, the impact on any Charter-protected interests is minimal, and the evidence found in the White BMW constitutes reliable evidence that connects the Applicant to an alleged getaway car used in a serious crime involving a firearm.

c. Analysis – Results of the warrant to search the Applicant’s inmate personal property vault at Maplehurst

[107] In my view, section 24(2) of the Charter does not apply to the evidence that was seized during the search of the Applicant’s inmate personal property vault at Maplehurst because the threshold requirement is not met, i.e., the evidence was not obtained in a manner that infringed a Charter right. As discussed above, there is no causation between the breach of the Applicant’s section 8 rights with respect to the search of the laptop and the search of his inmate personal property vault at Maplehurst because the search warrant for Maplehurst could still have issued absent the results of the unlawful laptop search. Further, I find that the connection between the breach and the evidence seized at Maplehurst is too remote. As stated above, the Charter-infringing conduct occurred in an unrelated investigation conducted by a different police force a few days before the Maplehurst ITO was prepared and the search warrant was obtained. The breach of the Applicant’s section 8 rights with respect to the laptop and the search at Maplehurst were not part of the same transaction or course of conduct.

[108] In any event, if section 24(2) applied, I would conclude that the admission of the evidence found during the search of the Applicant’s inmate personal property vault at Maplehurst would not bring the administration of justice into disrepute. Most of the analysis set out above with respect to the search of the White BMW applies mutatis mutandis. With respect to the impact of the breach on the Charter-protected interests of the Applicant, I agree with the Crown’s submission that the impact was minimal given that the Applicant’s property had already been catalogued by the jail. Further, no core biographical information was involved.

III. Conclusion

[109] The Application to exclude evidence pursuant to section 24(2) of the Charter is granted in part and dismissed in part. The Application is granted with respect to Officer Chircop’s observations of the laptop’s contents in the Hotel Room. The Application is dismissed with respect to the results of the warrant to search the Applicant’s inmate personal property vault at Maplehurst. The Application is also dismissed with respect to the results of the warrant to search the White BMW.

Vermette J.

Released: July 26, 2024

[1] I note that DC Park mixes up Jordan Dennis and Dwayne Dennis/Wilson in the ITOs.

[2] This is based on the wording of section 24(2) which provides: Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[3] While the Applicant argues that the good-faith conduct of the TPS when obtaining the search warrant for the White BMW should not be considered because this would otherwise “launder” the bad faith conduct of Officer Chircop, I note that in one of the cases relied upon by the Applicant, R. v. Mahmood, 2011 ONCA 693, the Court of Appeal considered the police conduct in relation to both Charter breaches when analyzing the factor of the seriousness of the Charter-infringing conduct: see paras. 133-136.