Court File and Parties

COURT FILE NO.: CR-23-30000309 DATE: 20240802

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

His Majesty the King Respondent – and – Leshawn Thomas Applicant

Counsel: Shedrack Agbakwa and Sabrina Morcos, for the Applicant Rhianna Woodward, for the Respondent

HEARD: June 24-27, 2024

RULING ON CHARTER APPLICATION

NISHIKAWA J.

Overview

[1] On October 25, 2022, officers of the Toronto Police Service (TPS) executed a search warrant at 193 Glendower Circuit in Toronto. As police were entering the residence, they observed two firearms being thrown from the window of a bedroom on the third floor. Police retrieved the firearms from the laneway behind the house.

[2] After entering the residence, officers of the TPS Emergency Task Force (ETF) found the Applicant, Leshawn Thomas, in the closet of a second-floor bedroom. The individual who had been observed discarding the firearms, Z.W.C., [1] was found in the closet of the third-floor bedroom from which the firearms had been thrown. Mr. Thomas, Z.W.C., and two other individuals were arrested and taken into custody.

[3] The Applicant was charged with multiple firearm related offences relating to the two discarded firearms. The Applicant is also separately charged with the armed robbery of an individual at a Shoppers Drug Mart on October 22, 2022 (the “October 22 robbery”).

[4] During the execution of the search warrant, the police seized three cell phones from the third-floor bedroom from which the firearms were thrown. For the purposes of this application, the Applicant does not deny usage or ownership of one of the phones, a white iPhone 13 with a black case (the “white cell phone”). The white cell phone had a photograph on the lock screen of a male matching the Applicant’s description.

[5] Police associated the other two cell phones that were located in the third-floor bedroom, a red iPhone (the “red cell phone”) and a blue iPhone (the “blue cell phone”), to Z.W.C. The red cell phone had a lock screen photograph of Z.W.C. The blue cell phone had a lock screen photograph of both the Applicant and Z.W.C.

[6] After the execution of the search warrant at 193 Glendower, Detective Constable Luigi Trovato of the TPS Major Crimes Unit sought a search warrant for the contents of the three seized cell phones. On November 7, 2022, Justice of the Peace Bentley Springer (the “issuing justice”) granted judicial authorization.

[7] A search of the contents of the white cell phone led to the discovery of photographs of firearms believed to be the same firearms thrown from the third floor of 193 Glendower.

[8] The Applicant brings an application under s. 8 of the Charter to exclude from evidence the contents of the search of his cell phone. In brief, Mr. Thomas alleges that the search warrant could not have issued because the police lacked reasonable and probable grounds to believe that evidence of the offences under investigation would be found on his cell phone. The Applicant further submits that the police failed to make full, fair and frank disclosure in the Information to Obtain the search warrant (ITO) as it pertained to the white cell phone.

Issues

[9] This Application raises the following issues:

(a) Should leave to cross-examine the affiant of the ITO be granted?

(b) Should portions of the ITO be excised on the basis that they are misleading? Relatedly, should the ITO be amplified as requested by the Crown?

(c) Did the police lack reasonable and probable grounds to believe that the Applicant committed an offence and that evidence of the offence would be located on his cell phone?

(d) If the Applicant’s rights under s. 8 of the Charter were breached, should this court exclude evidence seized from the Applicant’s cell phone?

Factual Background

The ITO

[10] Appendix ‘C’ of the ITO describes a number of robberies at gunpoint committed in Scarborough between October 5 and October 22, 2022, and the discharge of a firearm on October 9, 2022. The perpetrator of the offences is believed to be Z.W.C. Very few of the paragraphs of the ITO relate to Mr. Thomas. The Applicant is referred to in the following paragraphs:

(a) Paragraph 34 states: “The passenger, not immediately identified, was later identified as Leshawn THOMAS.”

(b) Paragraph 43 states: “The 3rd storey bedroom where the guns were seen being thrown out the window is the bedroom that [Z.W.C.] was seen in as well as Leshawn THOMAS was found hidden in the closet by Emergency Task Force Officers after entry was made.”

(c) Under “Grounds to Believe Criminal Offences Have Been Committed”, paragraph 4 states: “The three cell phones were found in the same bedroom where Z.W.C. and Leshawn THOMAS were located by police.”

(d) Under “Conclusion”, paragraph 1 states: “The three cell phones were located in the same bedroom as [Z.W.C.] and Leshawn THOMAS where police observed them as well as arrested them.”

(e) Under “Conclusion”, paragraph 3 states: “The screensaver on the [sic] two of the three cell phones have a picture of both accused [Z.WC.] and Leshawn THOMAS.”

[11] The ITO specifies at Appendix ‘B’, Offences in Relation to Which This Warrant is Being Sought, that the Applicant was charged with possession of a loaded regulated firearm and with the October 22 robbery.

[12] The ITO details the data sought to be extracted from the cell phone, including data relating to use, ownership and access; data relating to the configuration of the devices; data relating to call logs and contact lists; data providing evidence of the alleged offences; and any photographs, videos, text messages, emails or other communication stored in the devices in relation to the charges.

Analysis

Should Leave to Cross-Examine Be Granted?

[13] At the hearing of the application, the defence sought to cross-examine DC Trovato, the ITO affiant, on a number of issues. The Crown conceded that in the circumstances, the defence would be entitled to cross-examine DC Trovato on items (b), (c), (d), and (e) above.

[14] At the hearing, I granted leave to cross-examine DC Trovato on those portions of the ITO as well as item (a) above and denied leave to cross-examine on a further issue, with reasons to follow.

[15] My reasons are brief. Leave to cross-examine DC Trovato on paragraph 34 of the ITO, the statement identifying Mr. Thomas as the passenger of the white Hyundai, was granted because the ITO provided no information as to how DC Trovato came to believe that the passenger of the vehicle was Mr. Thomas. The ITO described a number of offences during which Z.W.C. and other unidentified persons are alleged to have used the white Hyundai, which was a stolen vehicle. The statement identifying Mr. Thomas as the passenger was relevant because it provided a link between the Applicant and the white Hyundai and between the Applicant and Z.W.C. Therefore, I found that cross-examination could elicit information that would discredit one of the preconditions to the issuance of the warrant.

[16] However, I denied leave to cross-examine DC Trovato on his failure to note the presence of a 19-year-old woman, Tamia Ebrahim, in the residence when the search warrant was executed. The defence argued that the failure to mention Ms. Ebrahim was “strategic” because it would lead the issuing justice to conclude that Mr. Thomas was at the residence to meet with Z.W.C., as opposed to another person in the residence. The ITO did, however, state that other individuals were present in the residence, including the two other accused and their mother. In my view, the failure to mention Ms. Ebrahim did not necessarily lead to the conclusion that Mr. Thomas was there to meet with Z.W.C. Moreover, the suggestion that the Applicant was there to meet Ms. Ebrahim was speculative. As a result, cross-examination on this issue was not likely to elicit information that would discredit one of the preconditions to the issuance of the warrant.

DC Trovato’s Evidence

The statement that the Applicant was found in the third-floor bedroom

[17] DC Trovato testified that he attended 193 Glendower when the search warrant was being executed. He was there for approximately two hours. DC Trovato was not involved in the execution of the search warrant but had gone there to provide descriptions and photographs of the clothing and valuables to be located. Detective Constable McIlhone, one of the officers on scene, advised DC Trovato that Z.W.C. was seen discarding the firearms from a third-floor bedroom window.

[18] On cross-examination, DC Trovato was confronted with the notes of the ETF officers, which state that Mr. Thomas was found in the closet of a second-floor bedroom. DC Trovato admitted that he mistakenly stated in the ITO that Mr. Thomas was located in the closet of the third-floor bedroom from which Z.W.C. had been seen discarding the firearms. DC Trovato testified that when he drafted the ITO, he believed, based on discussions with officers on site, that Mr. Thomas was located in the same bedroom as Z.W.C. However, DC Trovato admitted that he was not told, by DC McIlhone or anyone else, that Mr. Thomas was located in the same room as Z.W.C or in the room from which the firearms were thrown.

[19] When cross-examined as to why he did not try to confirm where the Applicant had been located, DC Trovato testified that he did not have access to ETF officers on scene. He did not seek to obtain the ETF officers’ notes before swearing the ITO for the cell phones on November 7, 2022, more than 10 days after the search warrant was executed at 193 Glendower.

[20] DC Trovato also admitted that paragraph 43 of the ITO was “poorly written” because it said that the guns were seen being thrown out of the window and did not specify that it was Z.W.C. who was seen throwing the guns, even though he had that information. He did, however, state at paragraph 2 of the Conclusion that it was Z.W.C. who tossed the guns.

[21] As a result, DC Trovato had no basis for the statement that Mr. Thomas was located in the third-floor bedroom from which the firearms were thrown and where the three cell phones were located.

The statement that the Applicant was later identified as the passenger of the white Hyundai

[22] Paragraphs 32 to 33 of the ITO state that TPS officers observed the white Hyundai pulling up and parking on Glendower Circuit at approximately 3:25 p.m. on October 25, 2022, the day the search warrant was executed. The driver was identified as Z.W.C. As noted above, paragraph 34 states that the passenger was “later identified as Leshawn THOMAS.”

[23] DC Trovato’s testimony on this point was convoluted. It became clear through cross-examination and re-examination, however, that DC Trovato had no basis for the statement in paragraph 34. Mr. Thomas was not known to DC Trovato until his arrest on October 25, 2022. He was not identified as a target on the ITO for 193 Glendower. DC Trovato testified that by reviewing CCTV footage of 193 Glendower and other video surveillance after the Applicant’s arrest, he was later able to identify Mr. Thomas as the person on the footage. However, DC Trovato could not have identified Mr. Thomas as the passenger of the white Hyundai on October 25, 2022, because he was not a member of the surveillance team and there was no CCTV footage for that date. The statement is thus incorrect.

Paragraph 51 of the ITO

[24] In respect of paragraph 51 of the ITO, DC Trovato confirmed that despite his statement that “two of the three cell phones has [sic] a picture of Z.W.C. and Leshawn Thomas” only one cell phone, on the right-hand side of the photograph, shows both Z.W.C. and Mr. Thomas. In addition, DC Trovato admitted that his statement that “[t]he clothing in the photo is linked to victim’s belongings as well as clothing worn during various robberies” refers only to the photograph of Z.W.C., and not to Mr. Thomas. He admitted that the clothing worn by Mr. Thomas in the photographs was not linked to the victim’s belongings or the robberies and that the language used was confusing.

[25] Paragraph 51 is therefore incorrect and misleading in the following respects. First, only one of the photographs on one of the cell phones, Z.W.C.’s cell phone, has a photograph of two individuals believed to be Mr. Thomas and Z.W.C. The other phone, the Applicant’s cell phone, has a photograph of one individual believed to be Mr. Thomas. Second, the photograph of Mr. Thomas does not show him to be wearing a victim’s clothing or clothing that was worn during various robberies.

Should Portions of the ITO Be Excised or Amplified As Requested by the Parties?

[26] In R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 58, the Supreme Court of Canada held that “in looking for evidence that might reasonably be believed on the basis of which the authorization could have issued, the reviewing court must exclude erroneous information.” Where the erroneous information results from a simple error and not from a deliberate attempt to mislead the authorizing judge, however, amplification may be in order: Araujo, at para. 57.

[27] In R. v. Booth, 2019 ONCA 970, 386 C.C.C. (3d) 281, at para. 59, Paciocco J.A. explained amplification as follows:

Amplification entails adding information that should have been disclosed in order to give an accurate picture or replacing mistakenly inaccurate information with accurate information. 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. However, amplification relating to information that could advance the warrant application is permissible only if the error in not making full and frank disclosure is: (i) a “minor, technical” error; and (ii) made in good faith: Araujo, at para. 59; Morelli, at para. 41.

[28] An error can be minor or technical even if it relates to an essential component of a search warrant application. The characterization of an error as minor or technical turns on the nature of the error and not on the importance of the topic the error relates to: R. v. Feizi, 2022 ONCA 517, at para. 9.

[29] The Crown concedes that the paragraphs in the ITO stating that Mr. Thomas was found in the third-floor bedroom from which the firearms were thrown, and where the cell phones were located, must be excised. The Crown further submits that the record should be amplified to reflect that Mr. Thomas was found in the second-floor bedroom. The Crown also concedes that the statement that Mr. Thomas was later identified as the passenger of the white Hyundai must also be excised.

[30] I agree that those erroneous statements in the ITO must be excised and that the record must be amplified to state that Mr. Thomas was found in the closet of the second-floor bedroom.

Paragraph 51 of the ITO

[31] The parties differ in respect of how this court should address the errors in paragraph 51 of the ITO, which states:

51. The screensaver when powered on shows on two of the three cell phones to be searched further has a picture of [Z.W.C.], and Leshan [sic] Thomas. See photo below:

[photograph of two phones]

The clothing in the photo is linked to victim’s belongings, as well as clothing worn during various robberies.

[32] The Crown’s position is that paragraph 51 should be amplified to state that the cell phone on the right-hand side of the photograph has a picture of Z.W.C. and Leshawn Thomas and that the clothing worn by Z.W.C. in the photo is linked to victim’s belongings, as well as clothing worn during various robberies.

[33] The defence submits that paragraph 51 of the ITO was misleading and should be excised in its entirety.

[34] In my view, amplification would be appropriate with respect to the first sentence of the paragraph. The error in the statement was a minor, technical error that was evident on the face of the ITO. The two cell phones in the photograph could not both have depicted both Z.W.C. and Mr. Thomas because the cell phone on the left-hand side of the photograph showed only one person. DC Trovato admitted on cross-examination that he intended to describe the cell phone on the right-hand side of the photograph. Moreover, the information as to what the two cell phones depicted was available to the police at the time. Amplification thus would not circumvent the requirement of prior authorization.

[35] However, amplification would not be appropriate for the second sentence of paragraph 51. The statement that the clothing in the photo was linked to victim’s belongings and clothing worn during the robberies must be excised because the failure to disclose that Mr. Thomas was not wearing clothing linked to victim’s belongings or worn during various robberies was more than a minor, technical error. The omission relates to evidence that would negate the probable grounds and goes to the heart of case against Mr. Thomas. That sentence is the only portion of the ITO that draws a connection between the Applicant and the robberies. However, the robbery with which Mr. Thomas is charged did not involve the theft of clothing. The erroneous statement about the clothing was false, misleading and highly prejudicial to the Applicant.

[36] While DC Trovato testified that he thought he was being clear when he drafted paragraph 51, it is evident that it was drafted in a careless and imprecise manner. It would have been much more straightforward, and no more onerous, for DC Trovato to describe what each cell phone showed.

[37] Based on DC Trovato’s testimony, he included the photograph at paragraph 51 to show a number of different things. He was trying to show that the person on the white cell phone (on the left-hand side of the photograph) was also on the screensaver of the phone on the right-hand side of the photograph. He was also trying to show that the same individuals were in other photographs in the ITO. DC Trovato further testified that he was also trying to connect the two cell phones to the robberies. Rather than to provide full, fair and frank disclosure of those objectives, DC Trovato made a broad statement about “the clothing in the photo” without reference to who was wearing the clothing. The statement was false and misleading. While there is insufficient evidence to find that DC Trovato deliberately attempted to mislead the issuing justice, it is not possible to characterize the error as having been made in good faith. For an error to be in good faith, it must be reasonable: R. v. Paterson, [2017] 1 S.C.R. 202, 2015 SCC 15, at para. 44.

[38] Accordingly, in the circumstances, I find it appropriate to amplify the first sentence in paragraph 51 to state as follows: “the screensaver on the cell phone on the right hand of the photograph has a photograph of Z.W.C. and Leshawn Thomas.” For the same reasons, paragraph 3 under the heading, “Conclusion”, is corrected to state as follows: “The screensaver on one of the three cell phones has a picture of both accused [Z.WC.] and Leshawn THOMAS.”

[39] The statement regarding the clothing is excised.

[40] In addition, because DC Trovato made no attempt to describe the cell phone on the left-hand side of the photograph, it would not be appropriate to amplify the record to include a description of what that cell phone depicts.

Did the ITO Disclose Reasonable and Probable Grounds to Believe an Offence had Been Committed and Evidence Would be Located in the White Cell Phone?

[41] The next issue is whether, considering the record as modified, 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 located on the white cell phone: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40.

The Applicable Principles

[42] Section 8 of the Charter states that “everyone has the right against unlawful search and seizure.” The purpose of s. 8 is to protect the property and privacy rights of persons against unwarranted incursions by the state: R. v. Hassan, 2020 ONSC 6354, at para. 56.

[43] A search will be reasonable if it is authorized by law, the law itself is reasonable, and the manner in which the search was carried out is reasonable: R. v. Collins, [1987] 1 S.C.R. 265, at p. 278. A search warrant is presumptively valid: R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 30. The Applicant bears the burden of demonstrating that the warrant was not validly issued, that is, that the minimum standard required for authorizing the search was not established by the ITO: R. v. Crevier, 2015 ONCA 619, 339 O.A.C. 120, at para. 66.

[44] The standard for the issuance of a search warrant is that there are reasonable and probable grounds to believe that an offence has been committed and that there is evidence of that offence to be found at the place to be searched: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, 11 D.L.R. (4th) 641, at p. 168.

[45] The reviewing judge must not substitute their view for that of the issuing justice. The question is not whether the reviewing court would have issued the warrant, but whether there is sufficient credible and reliable evidence to permit a justice of the peace 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: Morelli, at para. 40. If, based on the record before the issuing justice, as amplified by the evidence adduced at the application hearing, the issuing justice could have issued the warrant, the reviewing judge should not interfere: R. v. Garofoli, [1990] 2 S.C.R. 1421, 80 C.R. (3d) 317, at p. 1452.

[46] “Reasonable and probable grounds” means a “credibly-based probability” and does not mean proof beyond a reasonable doubt or even a prima facie case: Morelli, at paras. 127–28; R. v. Debot, [1989] 2 S.C.R. 1140, 73 C.R. (3d) 129, at p. 1166. A credibly-based probability requires that the grounds provided demonstrate a probability, as opposed to a suspicion, that the relevant facts could be true, and assuming the information to be true, that there are reasonable grounds to believe that the information relied upon is credible enough to support a conclusion that there is a reasonable probability that the relevant facts exist: R. v. Floyd, 2012 ONCJ 417, at para. 9.

[47] As stated in Garofoli, the existence of fraud, nondisclosure, misleading evidence and new evidence are all relevant, but their sole impact is to determine whether there continues to be any basis for the decision of the issuing judge.

Application to the Facts

[48] As stated earlier in these reasons, very few paragraphs of the ITO relate to Mr. Thomas. The majority of those paragraphs have been excised (paragraphs 34, 43, the second sentence of paragraph 51; paragraph 4 under “Grounds”; and paragraph 1 under Conclusion). After excision and amplification as detailed above, the ITO contains the following information relating to Mr. Thomas:

• the Applicant’s name, address and date of birth are provided under the heading “Involved Persons.” There is also a description of the Applicant as “adult male, described as male black, approximately (5’7 feet) 175 lbs., brown eyes, black curly hair.” He was on release orders for charges relating to firearm and failing to comply with release orders;
• the Applicant was charged with possession of a loaded regulated firearm, contrary to s. 95(1) of the Criminal Code, and with the armed robbery of Jude Capalar on October 22, 2022, contrary to s. 344(1)(a.1) of the Criminal Code;
• police had evidence to suggest that multiple armed robberies had been committed in Scarborough and that Z.W.C. may have been involved in those robberies;
• the Applicant was found in the closet of the second-floor bedroom of 193 Glendower during the execution of the search warrant on October 25, 2022;
• the white cell phone was located in the same third floor bedroom from which Z.W.C. was observed tossing guns; and
• a photograph of the Applicant and Z.W.C. is on the screensaver of one of the other cell phones believed to belong to Z.W.C.

[49] The Crown relies on the charge for the October 22 robbery as a basis for the issuance of the search warrant. Although the ITO states that Mr. Thomas was charged with the October 22 robbery, the ITO does not specifically provide any evidence connecting the Applicant to that incident. I note that other than the reference to the white SUV, the ITO does not explicitly connect Z.W.C. to the October 22 robbery. At paragraph 28, of the ITO, DC Trovato attaches two screenshots from video recordings that he subsequently received relating to the October 22 robbery. However, the individuals on the two screenshots are not identified.

[50] The description of the October 22 robbery refers to two suspects. After robbing the victim, the suspects took off in a white SUV. Suspect #1 is described as “M/B, 5’7, medical mask, black clothing, gun, slim build[.]” Suspect #2 is described as “M/B, 5’10, slim build[,] black mask, black clothing.” Z.W.C. is described in the ITO as “male black, approximately (5’9 feet), 146 lbs, brown eyes, black hair.” The ITO does not state that the two suspects are believed to be Z.W.C. and the Applicant. I note in passing that at 5’7” and 175 lbs., it is not obvious on the record that Mr. Thomas matches the description of Suspect #1 as having a slim build.

[51] By contrast, in respect of the other incidents, multiple connections are made between Z.W.C. and the specific incident or the presence of the white Hyundai and the specific incident. In the case of two of the incidents, witnesses identified Z.W.C. as the perpetrator. The ITO describes how Z.W.C. communicated with a victim of one of the robberies through SnapChat, sending photographs of himself with a firearm. In addition, the ITO describes how during the commission of one of the other robberies, Z.W.C. was in communication with another individual by cell phone. There are no such allegations in respect of Mr. Thomas, or the October 22 robbery.

[52] The ITO relates not only to the robbery charges, but also the firearm charges. However, the ITO does not state how a search of the white cell phone could yield evidence pertaining to the firearm charges, such as photographs of the firearm. At paragraph 4 of the Conclusion, DC Trovato states: “All three of these cell phones need to be searched in order to obtain electronic evidence in relation to the robberies where electronic data in various forms (i.e. photos, texts, messaging) was exchanged between the perpetrator and the victims.” Paragraph 8 of the Conclusion states that “[s]pecific data such as photos, phone logs, and messaging will link the accused(s) to various criminal offences described in this information.” This statement is extremely broad and does not explain why police believe that such evidence would be found on the white cell phone.

[53] Moreover, under the heading “Grounds to Believe the Things to be Seized will Afford Evidence of the Offence,” the ITO explains how clothing and valuables could be used as further evidence of the robbery and will corroborate descriptions provided by victims. The section does not explain how evidence from the seized cell phones would afford evidence of the offences. This section appears to have been copied from the ITO for the search warrant for 193 Glendower, which contains the same language. [2]

[54] The ITO contains no evidence to support that anyone involved in the October 22 robbery used the white cell phone to take photos of themselves or stolen property; that anyone involved in the October 22 robbery used the white cell phone to communicate regarding or during the commission of that robbery; or that police believed there would be photographs or other evidence of the firearms on the white cell phone.

[55] After excision of the statements above, there is very little connecting the Applicant to the firearms or to the October 22 robbery. What is left is some evidence that Mr. Thomas has an association with Z.W.C., that he was at 193 Glendower when the search warrant was executed and that his cell phone was in the bedroom from which the firearms were thrown. Other than the presence of his cell phone in the third-floor bedroom, Mr. Thomas is in a similar position to the other two young men who were found at 193 Glendower when the search warrant was executed.

[56] While DC Trovato may have had a subjective belief that evidence of the offences would be found on the white cell phone, based on the record, that belief was not objectively reasonable. In my view, the ITO “amounted to little more than somewhat educated guesswork styled as evidentiary foundation”: R. v. Knight, 2018 ONSC 2327, at paras. 42-43.

[57] Moreover, the reasonable and probable grounds that existed to search the other two cell phones, which are believed to belong to Z.W.C., did not extend to the Applicant’s phone. Reasonable and probable grounds must be stated for each location to be searched: R. v. Lucas, ONCA at para. 185. I further note that because of the photographs on the lock screens of the cell phones, police did not need to search the phones to identify ownership. DC Trovato testified that DC Funchion of the TPS concluded that the red cell phone and the blue cell phone were associated with Z.W.C. and that the white cell phone was associated with Mr. Thomas.

[58] Accordingly, the search warrant for the white cell phone could not have issued.

Residual Discretion to Quash the Search Warrant

[81] Based on my finding that the search warrant could not have issued, I need not consider the Applicant’s argument that this court ought to exercise its discretion to quash the search warrant on the basis that the police case subverted the pre-authorization process. See R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321.

Should the Evidence be Excluded?

[59] The evidence at issue in this case is not the seized firearms but photographs of firearms believed to be the firearms at issue on the white cell phone.

The Applicable Legal Principles

[60] Section 24(2) of the Charter allows the court to exclude evidence obtained in a manner that violated an individual’s Charter rights, where admitting the evidence would bring the administration of justice into disrepute.

[61] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71, the Supreme Court of Canada held that in determining whether the admission of evidence would bring the administration of justice into disrepute, the court must balance the following three factors:

(i) the seriousness of the Charter-infringing state conduct;

(ii) the impact of the breach on the Charter-protected interests of the accused; and

(iii) society’s interest in the adjudication of the case on its merits.

[62] In assessing the seriousness of the breach, the court is required to evaluate whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct: Grant, at para. 72. The overarching concern is to maintain public confidence in the rule of law and its processes.

Application to the Facts

Seriousness of the Charter-infringing state conduct

[63] The first Grant factor involves an examination of the conduct of the police. The more severe or deliberate the state or police conduct leading to the Charter violation, the greater the need for the courts to disassociate themselves from the conduct so as to preserve public confidence in the rule of law: Dubé, at para. 119.

[64] I begin by noting that the search of the white cell phone was conducted pursuant to a search warrant that the police believed to be valid. In the circumstances of this case, there is no evidence of an institutional or systemic problem.

[65] Moreover, the defence conceded that based on DC Trovato’s testimony, there was no deliberate attempt to mislead the issuing justice. The defence argues that the Charter-infringing conduct was nonetheless at the serious end of the spectrum.

[66] As the Supreme Court stated in Grant, at para. 75, “ignorance of Charter standards must not be rewarded or encouraged and negligence or willful blindness cannot be equated with good faith.” Sloppy police work falls in the middle between good faith and bad faith: Booth, at paras. 122-23. What is relevant is not the characterization of the police conduct but the underlying findings about the conduct: R. v. Buchanan, 2020 ONCA 245, at paras. 52-53.

[67] In this case, other than the description and biographical information, none of the statements pertaining to Mr. Thomas in the ITO as originally drafted were true. He was not found in the third-floor bedroom. He was not identified as the passenger of the white Hyundai. He and Z.W.C. were not on the screensavers of two of the three cell phones. He was not wearing clothing associated with a victim’s belongings or clothing worn during the robberies. The combination of those errors, along with the reference to the robbery charge was highly misleading and made the case against the Applicant far stronger than it was.

[68] Even if DC Trovato did not deliberately mislead the issuing justice, I have significant concerns about his approach to his duty to provide full, fair and frank disclosure in the ITO. There was a complete absence of any basis in fact for the statements that he made about Mr. Thomas. DC Trovato did not have personal knowledge of those facts and was never told those things by other officers. DC Trovato had no explanation for how he came to believe what he did. He seemed to think that his honest belief was sufficient. However, DC Trovato failed to sufficiently examine the basis for his beliefs. Other statements, such as paragraphs 43 and 51 were unjustifiably vague. This was carelessness that went beyond mere inadvertence. Such negligence is unacceptable when the consequence is a serious intrusion into the privacy of another individual by the state.

[69] The Crown submits that DC Trovato is an “unsophisticated” affiant and that he cannot be expected to meet the standards of a lawyer or expert. DC Trovato’s evidence was that he had just returned to the Major Crimes Unit in October 2022 and that the ITO at issue in this case was the first he had written since 2009. The issue, however, is not simply one of run-on sentences and poor grammar. The fact that a police officer is not a lawyer does not mean that he can be ignorant of his obligations in drafting an ITO. DC Trovato testified that he understands that an ITO must be full, fair and frank, and that he had to believe to be true any information that he was providing.

[70] As Fish J. stated in Morelli, at para. 102:

The repute of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct. Police officers seeking search warrants are bound to act with diligence and integrity, taking care to discharge the special duties of candour and full disclosure that attach in ex parte proceedings. In discharging those duties responsibly, they must guard against making statements that are likely to mislead the justice of the peace. They must refrain from concealing or omitting relevant facts. And they must take care not to otherwise exaggerate the information upon which they rely to establish reasonable and probable grounds for issuance of a search warrant.

[71] In Morelli, the trial judge had found no deliberate attempt to mislead on the part of the ITO affiant. At best, the ITO was “improvidently and carelessly” drafted. Nonetheless, the Supreme Court found that the repute of the administration of justice would be significantly eroded if unacceptable police conduct were permitted to form the basis for so intrusive an invasion of privacy as the search of a home and the seizure and scrutiny of a personal computer. See also: R. v. Rocha, 2012 ONCA 707, at para. 43.

[72] Here too, the search of the white cell phone was an intrusion into a device that holds vast amounts of personal information and private communications. In my view, DC Trovato fell far short of fulfilling his obligation to make full, fair and frank disclosure. In taking no steps to find out information that was readily available and to learn material facts upon which he was relying, he failed to act with diligence: R. v. Chin, 2021 ONSC 7760, at para. 57.

[73] Based on my findings above, I find that the Charter-infringing conduct in this case, while not intentional, is at the serious end of the spectrum and weighs in favour of exclusion of the evidence.

The impact of the breach on the Charter-protected interests of the accused

[74] The Crown rightly concedes that if the search warrant could not have issued, the impact of the s. 8 breach on the Applicant’s Charter-protected rights is at the higher end of the spectrum because a data-capable cell phone attracts a high expectation of privacy.

[75] The Supreme Court of Canada has found that it is “well settled that the search of cell phones, like the search of computers, implicates important privacy interests which are different in both nature and extent from the search of other ‘places’”: R. v. Fearon, 2014 SCC 77, at para. 51. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy is more serious than one that does not: Grant, at para. 78.

[76] In this case, the police extracted all of the contents and data from the white cell phone. An analysis of the cell phone data revealed ownership data and usage details, phone numbers assigned to the phone, photos, videos, call logs, and SMS text messages as well as other information revealing the intimate details of his lifestyle and personal choices This goes to the “biographical core of personal information” which individuals in a free and democratic society would wish to maintain and control from dissemination to the state: R. v. Bykovets, 2024 SCC 6, at para. 51.

[77] Because the execution of the search warrant to extract the content of the white cell phone was a significant invasion of his informational privacy interests, this factor weighs in favour of exclusion of the seized evidence.

Society’s interest in an adjudication on the merits

[78] The third Grant inquiry is concerned with the long-term reputation of the administration of justice, which is jeopardized by judicial indifference to unacceptable police conduct: Morelli, at para. 102.

[79] Society’s interest in an adjudication on the merits almost always favours admission of the evidence: R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at paras. 62-63.

[80] The admission of evidence obtained in violation of a Charter right cannot be supported solely on the ground that the offence is serious and that the evidence reliable and central to the Crown's case: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494. The negative effects of the loss of reliable, important evidence must be considered, but cannot be allowed to overwhelm the other considerations: R. v. Omar, 2018 ONCA 975, 144 O.R. (3d) 1, at para. 53, rev’d 2019 SCC 32, [2019] 2 S.C.R. 576.

[81] The Crown takes the position that without the photographs of the firearms from the white cell phone, the Crown’s case will be significantly affected and likely will not be able to proceed.

[82] In this case, there is a strong public interest in having the charges for possession of restricted firearms, which pose a serious danger to the public, adjudicated on their merits: R. v. Reid, 2019 ONCA 32. The evidence is reliable in that it arises from a data extraction of the contents of the white cell phone.

[83] Given the importance of the evidence to the Crown’s case and its reliability, this factor weighs in favour of the admission of the evidence.

Balancing

[84] In McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63, Doherty J.A. held that “if the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence.” (Internal citations omitted.)

[85] The overriding consideration in any s. 24(2) analysis is whether admitting the evidence would bring the administration of justice into disrepute: R. v. Whittaker, 2024 ONCA 182, at para. 60.

[86] In this case, the first two factors weigh in favour of exclusion of the evidence. I have found the state conduct to be at the serious end of the spectrum. Based on my balancing of the Grant factors, my view is that the court should dissociate itself from evidence obtained in this manner. The evidence should be excluded.

[87] In the circumstances of this case, a reasonable person informed of the relevant circumstances and familiar with Charter values would conclude that the admission of the seized evidence would bring the long-term reputation of the administration of justice into disrepute.

Conclusion

[88] For the foregoing reasons, the application is granted. Pursuant to s. 24(2) of the Charter, the evidence extracted from the white cell phone is excluded.

Nishikawa J.

Released: August 2, 2024

Footnotes

[1] Z.W.C. is a young person whose identity is protected under the Youth Criminal Justice Act, S.C. 2002.

[2] Mr. Thomas was not named in the ITO for 193 Glendower.