Reasons for Decision

Overview

Edwin Capehart is charged on an Indictment dated January 25, 2023, with 16 criminal offences arising out of an arrest on September 30, 2021, and subsequent police investigation:

a. Criminal Code, s. 86(1) – Careless Handling of a Firearm
b. Criminal Code, s. 86(2) – Transportation or Handling of Firearm in Contravention of Regulations
c. Criminal Code, s. 88 – Possession of Weapon for a Purpose Dangerous to the Public Peace
d. Criminal Code, s. 90 – Concealed Carrying of Firearm
e. Criminal Code, s. 91(1) – Unlawful Possession of a Firearm
f. Criminal Code, s. 92(1) – Possession of a Firearm, Knowing Possession Unlawful
g. Criminal Code, s. 95(1) – Possession of a Loaded Prohibited Firearm
h. Criminal Code, s. 108(1)(a) – Possession of Firearm Knowing Serial Number Defaced
i. Criminal Code, s. 145(5)(a) – Failure to Comply with Release Order (3 counts)
j. Controlled Drugs and Substances Act, s. 4(1) – Possession of a Schedule I Substance
k. Controlled Drugs and Substances Act, s. 5(2) – Possession of a Schedule I Substance for the Purpose of Trafficking (2 counts)
l. Controlled Drugs and Substances Act, s. 5(2) – Possession of a Schedule III Substance for the Purpose of Trafficking
m. Cannabis Act, s. 10(2) – Possession of Cannabis for the Purpose of Sale

Edwin Capehart (“the Applicant”) makes an application to exclude evidence on the basis of alleged violations of his rights under the Canadian Charter of Rights and Freedoms (“Charter”). The Applicant raises two specific challenges:

a. The Applicant challenges the warrantless download of data from a cellular phone seized incident to arrest, alleging a violation of his s.8 Charter rights; and
b. The Applicant challenges two search warrants obtained during the police investigation, one in relation to his motor vehicle and a second in relation to a cellular phone.

The Respondent Crown opposes this application. The Respondent takes the position that the Applicant’s Charter rights were not violated. Should this Court find that the Applicant’s Charter rights were violated, the Respondent further takes the position that the impugned evidence ought not to be excluded pursuant to the analysis prescribed in R. v. Grant, 2009 SCC 32.

This application was heard as a blended voir dire with the trial proper, which was heard as a judge-alone trial over five days.

At the commencement of the trial, Mr. Capehart entered a guilty plea to three counts: Count 1, failure without reasonable excuse to comply with a condition of release by being in possession of any drugs or drug paraphernalia, contrary to s.145(5)(a) of the Criminal Code; Count 2, failure without reasonable excuse to comply with a condition of release by possessing more than one cell phone, contrary to s.145(5)(a) of the Criminal Code; and Count 4, possession of a Schedule I substance, oxycodone, contrary to s.4(1) of the Controlled Drugs and Substances Act. The Court accepted his guilty plea on these three counts.

At the end of the trial, in its final submissions, the Crown conceded that there should be an acquittal on Count 14, possession of fentanyl contrary to s.5(2) of the Controlled Drugs and Substances Act.

Accordingly, the balance of these Reasons will therefore address the remaining 12 counts on the Indictment.

Evidence

Six witnesses gave evidence as part of the Crown’s case: Constable Jordan Duggan, a police constable with the Waterloo Regional Police Service (“WRPS”); WRPS Constable Rob Prentice; WRPS Constable Rachel Fisher; WRPS Constable Adam Vandenberg; WRPS Detective Constable Eric Woolley; and Special Constable Kevin Medeiros, employed by the WRPS as a digital forensic analyst.

The Defence called no evidence on the trial.

Initial Police Investigation

In September of 2021, WRPS police officers commenced an investigation to locate and arrest the Applicant for the offence of Failing to Comply with a Release Order. The Applicant was at that time bound by a Release Order made on April 4, 2020, by Justice of the Peace Cotter. The Release Order included a curfew term that required the Applicant to remain within his residence between the hours of 10:00 p.m. and 6:00 a.m. On September 8, 2021, WRPS officers conducted a compliance check on the Applicant and formed reasonable grounds to believe that he was in breach of this curfew term.

Police applied for, and were granted, a Tracking Warrant to assist in locating the Applicant. The Tracking Warrant was authorized on September 17, 2021, and was in relation to the Applicant’s known cellular phone number.

The Applicant’s Arrest

On September 30, 2021, WRPS investigators located the Applicant with the assistance of location data obtained from the Tracking Warrant. Prior to locating the Applicant, the officers identified a motor vehicle they believed the Applicant to be operating, being a grey Cadillac sedan.

Police officers located the Cadillac in the area of Westmount Road and Brybeck Crescent, in the City of Kitchener. The vehicle was parked nearby to a low-rise apartment complex at 145 Brybeck Crescent. The police commenced static surveillance of the Cadillac at approximately 9:13 a.m. At approximately 1:00 p.m., Detective Constable Woolley observed the Applicant approaching the Cadillac. Woolley observed the Applicant open the vehicle’s trunk using a key, deposit a duffel bag inside, and close the trunk. Wooley and other involved officers exited their vehicle to arrest the Applicant. Woolley yelled to the Applicant to stop and that he was under arrest. The Applicant did not comply with the directions of Woolley, and instead took off running on foot.

Police commenced a foot chase of the Applicant as he fled through Timm Park, towards Gage Avenue. Timm Park is a small municipal park nearby to 145 Brybeck Crescent. The Applicant ran through a small, wooded area in the park before exiting into the parking lot of an adjacent commercial property. The police temporarily lost sight of the Applicant as he ran through this wooded area.

The Applicant was arrested in the parking lot of the commercial property. He had apparently tripped and fallen, allowing police to catch up to him.

Constables Duggan and Prentice placed the Applicant under arrest at approximately 1:06 p.m. During a search incident to arrest, police located the following items on the Applicant’s person:

a. A pair of black gloves
b. Two cellular phones
c. A “Ziploc” baggie containing 7 white pills believed at the time to be Oxycodone
d. $2,935 in Canadian Currency

Recovery of the Firearm

At approximately 1:17 p.m., following the Applicant’s arrest, Constable Fischer called in a request for a canine unit to attend and conduct an article search. Constable Duggan guarded the wooded area at Timm Park while waiting for the canine unit, to ensure that nobody entered or exited. Nobody did so. Constable Vandenberg and Police Service Dog Tracker attended at the scene and commenced the article search at approximately 2:01 p.m. Tracker had training in the detection of firearms, ammunition and currency. At approximately 2:07 p.m., PSD Tracker located a firearm. The firearm was laying on the ground in the wooded area that the Applicant had run through, approximately 10 feet from the location of his arrest. It was 8-12 inches into the bushline. The firearm was a Glock 19 model handgun, loaded with a magazine containing 10 rounds of ammunition. It was in a clean condition, with no vegetation growing through it. The serial number had been scratched off. The magazine was inserted into the magazine well.

Subsequent forensic analysis of the handgun did not detect any fingerprints, and no DNA profile suitable for comparison was obtained. The Centre for Forensic Sciences Biology Unit reported that there were insufficient amounts of DNA, such that an analysis did not proceed.

None of the police officers involved in the pursuit or arrest of Mr. Capehart observed him to discard a firearm while he was being pursued, although they temporarily lost sight of him while he was fleeing through a wooded area.

The Applicant’s Cellular Phones

Constable Fisher took over custody of the two cellular phones seized from the Applicant incident to his arrest, an iPhone 12 Pro Max, and an iPhone 11. She lodged the cellular phones in a WRPS Cybercrime Unit evidence locker at approximately 5:58 p.m. on September 30, 2021.

On October 1, 2021, Kevin Medeiros obtained the cellular phones from the evidence locker at 9:15 a.m. Medeiros is a Special Constable member of the WRPS employed as a computer and mobile forensic analyst in the Cybercrime Unit. He waited until 2:26 p.m. to confirm receipt of the required submission form from the investigating officers. He regarded submission of the form as a commitment to writing an application for a warrant. He indicated that he would not take action to download without submission of the form. He received the form at some time after 2 p.m. on October 1. Mr. Medeiros determined that the cellular phones were locked, with no known password, and that they were in a state identified as “After First Unlock” (“AFU”). In the AFU state, the forensic tools available to the WRPS were capable of extracting and preserving a copy of the data on the cellular phones. At an unknown future time, the phone would switch to a state identified as “Before First Unlock” (“BFU”). In the BFU state, the data on the device would become encrypted and inaccessible to police forensic tools. It was not possible to predict when the phone might switch from an AFU to a BFU state, or what might trigger this. As of October 1, 2021, there was no known means to access the data of a cellular phone in the BFU state without a known password.

Based on his observations of the phones’ state (AFU), Mr. Medeiros believed it was necessary to extract a copy of the iPhones’ data on an exigent circumstances basis to preserve it for later forensic analysis (once a warrant was obtained). He stated that he would not do an AFU preservation where potential loss was not an issue, but only where the concern was the potential loss of data. Mr. Medeiros downloaded a copy of the data on each cellular phone. The data was downloaded in an unreadable format and stored on a specific server at the Cybercrime Unit that is not backed up, pending judicial authorization. A full data dump was conducted. Mr. Medeiros stated that he would not further process the downloaded data until a warrant was obtained, which would provide parameters. If no warrant were obtained within 30 days the data would be wiped. He would then filter the downloaded data in accordance with the parameters specified in the warrant, before forwarding the information to the investigating officer. A warrant authorizing a search of the phones’ contents was subsequently obtained, but not until October 7, 2021.

Search of the Applicant’s Motor Vehicle

Police seized the Applicant’s Cadillac car on September 30, 2021, at the time of his arrest. The vehicle was towed to a secure location, a WRPS “Ident Bay”, pending authorization of a warrant to search the vehicle.

On October 1, 2021, Detective Constable Woolley applied for a warrant to search the seized Cadillac. The warrant was authorized the same day by Justice of the Peace Anderson. Police executed the search warrant on October 1, 2021. During a search of the motor vehicle, police located items in the trunk of the vehicle, including:

a. The duffel bag observed by police on September 30, 2021, which contained approximately 527.6 grams of suspected cannabis and baggies, approximately 149 grams of a suspected controlled substance; and a black fanny pack
b. The black fanny pack itself contained a digital scale, dime bags, a ¼ tsp. sized spoon with a white residue, and approximately 99.6 grams of suspected cocaine

Police located the Applicant’s driver’s licence and a wallet containing his health card in the centre console of the vehicle. Police located payroll documentation relating to the Applicant in the glove compartment of the motor vehicle.

Forensic Analysis of the Cellular Phone Data

On October 7, 2021, police applied for and were granted a Search Warrant in relation to the cellular phones seized at the time of the Applicant’s arrest. Police subsequently completed a post-seizure examination of the cellular phones’ data. On one of the phones, police located text message conversations consistent with drug trafficking along with a video of a firearm matching the appearance of the Glock handgun found after the Applicant’s September 30, 2021 arrest.

Agreed Statements of Fact

The Crown and Defence agreed two Statements of Agreed Facts, which were made exhibits at trial. In these, the Defence made a number of admissions relating to the seized firearm and ammunition, to the seized controlled substances, the forensic processing of the firearm, and the DNA results.

The s.8 Charter Application Voir Dire

The Applicant’s Position

The Applicant submits that the ITO for the motor vehicle search did not contain reasonable and probable grounds, and that the ITO for the cell phones did not contain reasonable and probable grounds after excision. The Applicant submits that the Crown has not met its onus to demonstrate exigency.

The Respondent’s Position

In relation to the challenge to the warrantless download of data from the Applicant’s cellular phones, the Respondent takes the following position:

a. The Applicant’s rights under s. 8 of the Charter were not violated. The warrantless download and preservation of the data was authorized by law, being the “exigent circumstances” doctrine established in section 487.11 of the Criminal Code.

In relation to the challenge to the validity of the motor vehicle and cellular phone Search Warrants, the Respondent takes the following position:

a. There is no violation of the Applicant’s s.8 Charter rights in relation to the Cadillac Search Warrant. The warrant is valid on its face. There is sufficient information contained in the ITO, on the basis of which the authorizing justice could have issued the warrant.
b. There is no violation of the Applicant’s s.8 Charter rights in relation to the Cellphone Search Warrant. The warrant is valid on its face. There is sufficient information contained in the ITO, on the basis of which the authorizing justice could have issued the warrant.

Should the Court find a breach of the Applicant’s rights in relation to either the warrantless cellphone downloads or the Search Warrants, the Respondent further submits that a proper balancing of the factors to consider under s. 24(2) of the Charter leads to the conclusion that the impugned evidence is nevertheless admissible.

Issue 1: The Warrantless Cellular Phone Download

The Respondent takes the position that the warrantless download conducted by Mr. Medeiros on October 1, 2021, was a valid application of the “exigent circumstances” doctrine. The download, it submits, was therefore authorized by law and did not violate the Applicant’s s. 8 Charter rights.

The power of police to engage in a warrantless search on the basis of “exigent circumstances” is well established in Canadian law. Section 487.11 of the Criminal Code provides one statutory avenue under which police may engage in a lawful, yet warrantless, search on the basis of “exigent circumstances”. Other statutory avenues for warrantless searches are available depending on the particular circumstances of a case. For example, ss. 117.02 or 117.04(2) of the Criminal Code, or s. 11(7) of the CDSA; however, these provisions are not applicable in this case.

Section 487.11 of the Criminal Code provides that where a peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, may, in the course of his or her duties, exercise any of the powers described in subsection 487(1) or 492.1(1) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant. A warrantless search may be justified under section 487.11 where:

a. The conditions for obtaining a normal search warrant exist [i.e., a warrant under ss.487(1) or 482(1)]; and
b. It would be impracticable by reason of exigent circumstances to obtain that warrant.

“Exigent circumstances” and “impracticability” are not defined in section 487.11. In R. v. Paterson, 2017 SCC 15, the majority of the Supreme Court of Canada considered the interpretation of “exigent circumstances” in relation to s. 11(7) of the Controlled Drugs and Substances Act. In summary, the Court held that the search must be “compelled by urgency, calling for immediate police action to preserve evidence, officer safety or public safety,” and that “this urgency must be shown to have been such that taking the time to obtain a warrant would pose serious risk to those imperatives”.

While Paterson dealt with a different statutory authority (s.11(7) CDSA, vs. s.487.11 Criminal Code), I agree with the Crown that the language of the two provisions is so similar that there is no basis upon which to distinguish them. The interpretation of these terms in Paterson ought to apply equally to section 487.11 of the Code.

I find that the conditions were met in this case to engage the exigent circumstances doctrine as set out in section 487.11 of the Criminal Code, but that the extended period of time (6 days) between when the warrantless download occurred, and a warrant was applied for, constituted a breach of the accused’s s. 8 Charter rights. The first question to be considered is whether the conditions for obtaining a search warrant existed at the time of the download. I find that they did. To obtain a search warrant, police were required to have reasonable grounds to believe that a search of the phone would afford “evidence with respect to the commission of an offence” against the Criminal Code or any other Act of Parliament. At the time the phone was downloaded the police had reasonable grounds to believe that the Applicant was engaged in multiple criminal offences. It was reasonable to believe that a search of the cellular phones would afford evidence with respect to the commission of any number of these offences, for example:

a. In relation to the Applicant’s charges of failing to comply with release order, location data on the phone would corroborate the dates and times the Applicant was not in compliance with, for example, his curfew term
b. In relation to the Applicant’s drug possession charges, it is common knowledge that a cell phone is a crucial tool of the drug trade – used by buyers and purchasers to conduct transactions. The Applicant had very recently been arrested in possession of a small quantity of suspected narcotic pills and a quantity of cash.

The police are not entitled to manufacture exigency, by action or by inaction. But, they also don’t have to rush to failure. It was reasonable in these circumstances to conclude that there was a real risk of imminent loss of access to evidence on the cell phone.

An apt analogy in this circumstance is what happens when public authorities find a UXO (Unexploded Ordinance) in a public setting. This is still a regular occurrence in many places that have previously experienced aerial or artillery bombardment during an armed conflict, and the residue from that war unexpectedly comes to light years later. For example, in the United Kingdom or continental Europe, where unexploded bombs or shells from the First or Second World Wars come to light in a farmer’s field or during construction activity for buildings or highways. The dilemma posed by such UXO is that they are notoriously unstable. They may explode imminently when disturbed, notwithstanding their long period of quiescence; or, they may remain in their unexploded state for a further extended period. One cannot predict. They are a known unknown. The point is, once discovered they must be treated for safety reasons as if they are at risk of detonating at any moment, as they are inherently unstable and unpredictable, and the consequences may be catastrophic. Action must be promptly taken to defuse them or have a controlled detonation. This is closely analogous to the AFU/BFU dilemma regarding the seized cellphones.

The second question to be considered is whether it would have been impracticable given the circumstances to have obtained a warrant. In the present case, there was urgency to the situation such that taking the time to obtain a warrant would pose a serious risk to the preservation of evidence on the phone: Mr. Medeiros identified two possible states for the phones: AFU and BFU. The phones were in AFU state, allowing police to download and preserve the data. At an unknown future time, the phones could switch to a BFU state, making the data on them totally inaccessible to police. There was no known way to access the data on the phones after they switched to the BFU state. It was not possible to reliably predict when the phones might switch states. Given these considerations, there was exigency to the situation that made it impracticable to obtain a warrant before the download. Had police taken the time to do so, there was a real risk that the phones could switch to a BFU state in the meantime. Had the phones switched to BFU state, the evidence on them would be lost to police as it would be inaccessible. Taking the time to prepare a warrant first would be a gamble that posed a serious risk of the loss of evidence.

However, scrutiny must then shift to how long the police took to apply for a warrant after the download, and whether there is evidence of a systemic attitude of complacency in this regard.

The Applicant refers to the unreported decision of Brennan J. in the Ontario Court of Justice on a s.8 Charter application for exclusion of evidence in R. v. Palmer (Kitchener Informations No. 4411-998-23-441-5557-00 and 4411-998-23-44107521-00) on November 4, 2024. In that case, the WRPS had seized two cellphones. The digital forensic analyst (Kevin Medeiros, the same analyst as in the present case) downloaded the contents of an iPhone 14 in advance of the obtaining of a warrant, purportedly on the same basis of exigency because of the AFU/BFU risk. The phone was seized on September 21, 2023 in Windsor, but the investigating police officer did not apply for a warrant to search the phones until October 10, 2023. Justice Brennan determined that the search was warrantless and could only be justified if it was done in exigent circumstances as set out in s.487.11 of the Criminal Code. The issue in Palmer, as in this case, is whether the circumstances necessitated preserving a digital copy of the phone’s contents on a police server before a warrant was obtained. Justice Brennan found that the risk that the phone may have been wiped or encrypted was too speculative to give rise to a reasonable belief that the phone needed to be searched so quickly, once Medeiros got to it, that it was impracticable to obtain a warrant. In that case, she found that 20 hours had elapsed between when the phones were seized and Mr. Medeiros first looked at them. An imminent risk of the loss or destruction of evidence requires urgent police action that makes it impracticable to obtain a warrant. She also highlighted that police then further waited 19 days before obtaining a warrant. On these facts, Justice Brennan determined that the data download on the iPhone 14 violated s.8 of the Charter. In conducting the Grant analysis under s.24(2), she found that the admission of the evidence in that case would bring the administration of justice into disrepute, and excluded the evidence.

Warrantless searches are presumptively unreasonable. Exigent circumstances only arise where there is a risk to public or officer safety or the destruction or loss of evidence: R. v. Kelsy, 2011 ONCA 605, para 24. I can accept that there was sufficient exigency to download the data before the obtaining of a warrant to search the phones. The issue of greatest concern in the present case is the subsequent interval of six days between when the data was downloaded on October 1, and when a warrant was applied for and obtained on October 7. This is too long. It bespeaks a complacency on the part of the police regarding the accused’s s.8 Charter rights. Exigent circumstances should be considered as extraordinary and treated as such. They may be relied upon to justify an intrusion into privacy only where necessary. Any less stringent test would have the effect of the police circumventing the need to obtain prior judicial authorization where it is merely inconvenient or not expedient: R. v. Bakal, 2021 ONCA 584, para 19. In this circumstance, while the police may have acted promptly to preserve the potential evidence by the download of data from the phone, they are not entitled to then adopt a leisurely approach to obtaining a warrant. This was clearly not considered a priority. I agree with Justice Brennan that exigent circumstances cannot be used as an excuse merely because it would be more convenient or expedient for the police.

In these circumstances, I find that the failure of the police to promptly apply for a warrant violated the accused’s s.8 Charter rights. I must then consider whether the admission of this evidence is justified after an analysis under s.24(2) of the Charter.

Issue 2: The Search Warrants

Pursuant to section 487 of the Criminal Code, a justice may issue a search warrant if he or she is satisfied, inter alia, that there are reasonable grounds to believe that the search “will afford evidence with respect to the commission of an offence”. Reasonable grounds to believe has been described as referring to where credibly-based probability replaces suspicion, practical, non-technical probability, and reasonable probability. This standard is substantially lower than proof beyond a reasonable doubt, proof on a balance of probabilities or even a prima facie case. The standard necessarily involves some measure of uncertainty.

The phrase “afford evidence with respect to the commission of an offence” has a very broad meaning. The natural and ordinary meaning of this phrase is that anything relevant or rationally connected to the incident under investigation, the parties involved, and their potential culpability falls within the scope of the warrant. The purpose of a search warrant is to permit police to conduct a prompt and comprehensive investigation, to gather all relevant evidence in order to allow an informed decision about whether charges should be laid.

A search conducted pursuant to a judicial authorization is presumptively valid. The reviewing judge does not substitute his or her view for that of the authorizing justice. If the reviewing judge concludes that the authorizing justice could have granted the authorization, then he or she cannot interfere. Put another way, only where the reviewing court determines that there was no basis upon which the authorizing judge could have issued the warrant can the reviewing court find a breach of section. The ultimate question is simply whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued. The reviewing judge must take into account that authorizing justices may draw reasonable inferences from the evidence in the ITO; the informant need not underline the obvious. The review requires a contextual analysis of the record, not a piecemeal dissection of individual items of evidence shorn of their context in a vain search for alternative exculpatory inferences. The ITO should be reviewed as a whole and not with a limited focus on certain passages or paragraphs. The inferences, conclusions, and beliefs of the ITO affiant need not be the only reasonable ones to be drawn from the evidence. In particular, the evidence also may be capable of alternative innocent or contrary interpretations and explanations, but that does not render “non-innocent” inferences, conclusions, and beliefs unreasonable. So long as the ITO contains reliable evidence that might reasonably be believed, on the basis of which the warrant could have issued, that is sufficient to confirm the validity of the warrant.

There is no obligation on an ITO affiant to anticipate, and explain away in advance, every conceivable indicia of crime they did not see, and every conceivable investigative step they did not take, to counter the creative arguments of skilled defence counsel on a review hearing that may take place many months or years after the event.

In the present case, the Applicant makes a facial validity attack on the Cadillac Search Warrant and, if successful on that front, a sub-facial validity attack on the cellular phone Search Warrant. “Facial Validity” refers to whether the warrant, exactly as drafted, could have been issued. The factual record for this type of challenge is limited to the ITO that was before the issuing justice. The Applicant only disputes whether a justice could have determined, based on that ITO, that the warrant could have been. The Applicant does not dispute the truthfulness or reliability of the contents of the ITO. “Sub-Facial Validity” refers to a challenge made to the substance of the ITO. Sub-facial challenges involve a record that is excised and amplified by the reviewing judge and may (but does not always) involve cross-examining the affiant of the ITO. For example, information that is found to have been obtained unconstitutionally will be excised from the ITO. The reviewing judge on a sub-facial validity challenge considers whether, after his/her excision and amplification of the ITO, there is still information that might reasonably be believed on the basis of which the warrant could have issued.

The issuing justice could have authorized the Cadillac Search Warrant. There was indeed a credibly based probability that ammunition would be found inside the motor vehicle. There was good reason to believe that the recovered firearm belonged to the Applicant. The firearm was located approximately 10 feet from the location of his arrest. The Applicant’s flight path through the wooded area, leaving him unobserved by police, gave an opportunity to dispose of the firearm in the event he was arrested. Conversely, the area on either side of the wooded area was wide open and it was daylight outside; police would have seen if the Applicant attempted to discard the firearm elsewhere. The Applicant would have motivation to discard the firearm. He had moments earlier fled an arrest with multiple police officers in hot pursuit. There was a very real risk of his imminent arrest. There is a reasonable inference that the firearm was recently discarded. It can be seen from the photographs that the firearm was clean and in good condition (i.e., it had not been laying in a bush for a long time). Moreover, an illegal firearm is a valuable object and it is unlikely that a person would (whether intentionally or not) leave such a valuable object in a public park near an apartment complex, where it may be discovered.

The Applicant had outstanding drug trafficking charges at the time of his arrest on this matter. He was arrested in possession of a small quantity of suspected drugs, two cellular phones and a large quantity of cash. There is a reasonable inference relating to the Applicant’s ongoing involvement in the drug trade. As noted by the affiant of the ITO, individuals involved in the drug trade often carry weapons such as firearms. As noted by the affiant of the ITO, ammunition is sold in quantities greater than 10 per package. The affiant noted in the ITO that the Winchester 9mm Luger ammunition is sold in packages of 20 or 50. The magazine of the firearm was fully loaded, undermining the potential that its owner was short on ammunition. Prior to September 30, 2021, police had observed the Cadillac proximate to locations identified by the Tracking Warrant in operation on the Applicant’s phone. The Applicant was in possession of keys to the car on the date of his arrest. He was therefore associated to the motor vehicle and had control over it on the date of his arrest. Just prior to the Applicant’s arrest on September 30, 2021, he was seen approaching and interacting with the motor vehicle, thereby establishing a temporal connection between the Applicant’s possession of the motor vehicle and his possession of the firearm. I agree with the Crown that the experience of the justice system supports the contention that ammunition may reasonably be found in the motor vehicle of a person who possesses a firearm. For example: R. v. Sookram, 2007 ONCJ 370, para 3; R. v. Francis, 2020 ONSC 391, paras 14-16; and R. v. Tully, 2022 ONSC 1852, para 19. There was a reasonable, credibly based probability that ammunition would be found within the vehicle in these circumstances.

R. v. Phillips supports the contention that there was a credibly-based probability police would find ammunition in the Applicant’s motor vehicle. In that case, Molloy J. upheld a telewarrant to search the accused’s residence for ammunition. The accused Phillips was charged with offences on four occasions alleged to have been committed with a firearm. He was arrested following a flight and chase by police. A firearm was located nearby to the scene of the arrest, which police believed to be possessed by the accused. The firearm contained eight rounds in a ten-round magazine. The ammunition was identical and brand new. The information in the ITO indicated that the type of ammunition in this firearm was sold in boxes of 50, and the affiant believed the remaining ammunition would be found in the accused’s home. In Phillips, counsel for the accused argued that it was unreasonable to infer that the accused would have obtained ammunition in the same manner as if it was legally purchased, and that there was nothing connecting the gun to the residence. Justice Molloy upheld the warrant, noting that the issuing justice need not be convinced on a balance of probabilities. She noted there was considerable evidence connecting the accused to the gun and the residence.

Similar considerations obtain here. There is considerable evidence connecting the Applicant to the firearm and the vehicle. There is a temporal relation in the Applicant’s possession of the firearm and vehicle, which was not present in Phillips and which strengthens the inference that ammunition would be located in the vehicle. That there were different brands of ammunition in the firearm’s magazine in this case does not undermine the reasonable probability of there being more ammunition inside the vehicle. The strength of the inference flows from the fact that there is less ammunition in the magazine than is typically sold in a package, and the connection between the firearm’s owner and the location thought to contain the excess ammunition. That only some of the ammunition in the magazine was Winchester 9mm Luger simply suggests that there is a greater quantity of outstanding Winchester 9mm Luger ammunition to be located than if the entire magazine was filled with it.

Cellphone Search Warrant

The Cellular Phone Search Warrant is clearly valid on its face. There is ample information contained in the ITO to support its issuance.

Issue 3: Charter Section 24(2)

I have found a breach of the Applicant’s s.8 Charter rights with regard to the download of data from the cellphones. It is therefore necessary to engage in a Grant analysis.

Section 24(2) requires the Court to determine if the Applicant has demonstrated, on a balance of probabilities, that admission of the impugned evidence will bring the administration of justice into disrepute. The Applicant must show that the impugned evidence should be excluded having regard to all the circumstances. This analysis is objective and based on the perspective of a reasonable person. The focus of this analysis is the long-term protection and maintenance of the confidence of the public in the justice system.

The three-prong test in R. v. Grant, 2009 SCC 32, requires the Court to consider and balance the following: the seriousness of the Charter-infringing conduct; the impact of the breach on the Charter-protected interests of the Applicant; and, society’s interest in the adjudication of this case on its merits.

The first prong of the Grant analysis requires the Court to situate the Charter-infringing conduct on a scale of culpability. The more serious the state conduct, the greater the need for the Court to distance itself from it. This assessment considers factors such as whether the police were compelled to act quickly to preserve evidence, whether there were other Charter-compliant avenues available to the police and whether the conduct was an isolated incident or endemic of a more systemic issue. Deliberate and flagrant breaches are more serious than those done entirely or largely in good faith.

The second prong of Grant focuses on the degree to which the police conduct impacted on the Applicant’s privacy interests. The more serious the impact, the more this factor pulls towards exclusion of the evidence. An individual’s privacy interest in the contents of their cellphone is very high. If the police sequester the data on a separate server until a warrant is obtained, as was done in this case, this does mitigate the concern somewhat, but does not obviate it, as complete download of the phone trenches on protected privacy interests.

The third branch under Grant requires the Court to assess the impact of exclusion on society’s interest in determining the case on its merits. This concern must be balanced against potential negative impacts of admitting the evidence on the long-term reputation of the justice system. The Court should consider factors such as the reliability of the evidence, the importance of the evidence to the Crown’s case, and the seriousness of the alleged offence. While society has a significant interest in serious cases being tried on their merits, it also has an interest in ensuring that the most serious crimes will be tried by a system that is above reproach.

Balancing the factors is never a matter of simple arithmetic. The first two factors will often pull together, but they need not pull with identical degrees of force to compel exclusion of the evidence: R. v. McColman, 2003 SCC 8, para 59. The Court should consider the cumulative effect of the first two lines of inquiry and balance that against the third Grant factor.

I find that the first branch of the Grant test favours exclusion. While I do not find that the police conduct in this case was wilful or flagrant, there are elements which place it towards the more serious end of the spectrum. The police did ultimately obtain a warrant but were tardy in doing do. The determination of exigency appears to turn entirely on whether the phone has the potential to lock up. Once the police had what they wanted (the cellphone download), there was little priority placed on respect for the Applicant’s s.8 Charter rights.

I also find that the second branch of Grant favours exclusion. The scope of the seizure was a complete extraction of all the data on the phone. The complete harvesting of personal information is a significant intrusion on the Applicant’s privacy, although this is mitigated somewhat by the fact that Mr. Medeiros did not decode or share this information until a warrant was obtained.

The third prong of Grant pulls toward inclusion. The firearms and drug charges involved are very serious ones. The public has an interest in this case being heard on its merits. The cell phone evidence is reliable evidence, whose exclusion might bring an end to portions of the prosecution.

I note that in R. v. J.W., 2022 ONSC 4400, a case in which Conlan J. found that there had been a s.8 violation in broadly similar circumstances, the evidence was not ultimately excluded following a s. 24(2) Grant analysis.

I find on balance that the admission of the evidence would not bring the administration of justice into disrepute.

The Application to exclude the evidence from the warrantless download of data from the cellular phone, and the search warrants in relation to the motor vehicle and the cellular phone, is dismissed. This evidence is admitted for consideration on the main trial.

The Main Trial

Some of the evidence adduced in this case is direct and/or real evidence. This includes the observations of the police officers regarding what they saw Mr. Capehart do at the trunk of his Cadillac, the drugs and drug paraphernalia found in the bag which was located in the trunk, and the Glock 19 handgun and ammunition themselves. The keys found in Mr. Capehart’s possession unlocked the Cadillac vehicle. His ID documents were found in the car.

Other evidence is circumstantial: the Glock 19 was not in Mr. Capehart’s possession when he was arrested, and none of the police officers saw him discard it. But the gun was in a very clean state, indicating that it had not been in that location long. It was proximate to where Mr. Capehart was arrested, it was along his path of flight while being pursued by police, he had an opportunity to discard it, and he had a strong motive to discard it as his arrest was potentially imminent as the police were in hot pursuit and he was the subject of a firearms prohibition order. And there were three videos found on the cellular phones, which will be discussed in more detail below.

When the Crown’s case is based substantially on circumstantial evidence, the trier of fact must be satisfied beyond a reasonable doubt that the accused’s guilt is the only reasonable inference that can be drawn from the evidence as a whole: R. v. Villaroman, 2016 SCC 33. One is not required to exclude all possible inferences before relying on circumstantial evidence that Mr. Capehart committed the offences with which he is charged. Mr. Capehart can be found guilty based primarily on circumstantial evidence if one excludes all other reasonable inferences based on the totality of the evidence. Other “possible” inferences do not necessarily constitute reasonable doubt: such possible inferences must be reasonable. Reasonable in this context means fair, sensible or rational. They must rise above mere speculation. I must decide this case on all the evidence, seen in totality, and measured against the standard of proof beyond a reasonable doubt. In order to convict, I must be satisfied that the accused’s guilt is the only reasonable conclusion available on the totality of the evidence.

One of the salient pieces of evidence adduced by the Crown in this case is a 9 second video found on Mr. Capehart’s cellular phone. It depicts the use of a Glock 19 handgun as a sex toy. The handgun is inserted into the vagina of a woman and maneuvered in and out. Male and female voices are discernible. The faces of the two individuals involved are not shown. It is apparent that the dark coloured skin of the individual holding the gun is that of a Black man, while the woman being penetrated has lighter coloured skin. Mr. Capehart is a Black man.

The video and the still images extracted from it are highly probative in this case. It is apparent from scrutiny of the still image of the Glock 19 handgun in the video that it is strikingly similar to the weapon found by Police Service Dog Tracker in this case proximate to where Mr. Capehart was arrested. It has the same diagonal cut. It has the same stamping on the exterior of the gun. It has the marking “9 x 19”. The alignment of the two screws forward of the sight is the same. Moreover, the use to which the gun is being put in the video is consistent with the text message found on Mr. Capehart’s cellular phone, at 9/20/2021 6:11.38 p.m., in which he states “she likes when I fuck her with the glock.” This is very strong evidence that the Glock 19 handgun found by PSD Tracker is the same handgun which had earlier been in Mr. Capehart’s possession during the filming of the video.

The handgun was found in the bush proximate to where Mr. Capehart was arrested, and along the path which he must have taken through the bush in the few seconds when he was not directly visible to the pursuing police officers.

I conclude that the evident conclusion to be drawn from this evidence is that Mr. Capehart was in possession of the 9mm Glock 19 handgun found in the bush on September 30, 2021. I am satisfied that the accused’s guilt is the only reasonable conclusion available on the totality of the evidence.

It follows inevitably from this that Mr. Capehart is guilty of Counts 3, 4, 5, 6, 7, 8, 9, 10 and 11 on the Indictment. The Glock 19 is a prohibited or restricted firearm, which he had no certificate to possess, (indeed he was subject to a weapons prohibition at the time) which he had carried in a concealed and careless manner. The serial number of the Glock had been defaced or removed.

The evidence also clearly establishes that Mr. Capehart was in possession of cocaine for the purpose of trafficking, and of cannabis for the purpose of selling it. The evidence in regard to Count 15, cathinone, is unclear. Accordingly, there will be an acquittal on that count.

Conclusion

The Court finds Edwin Capehart guilty of Counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 16 on the Indictment.

The Court finds Edwin Capehart not guilty of Counts 14 and 15 on the Indictment.

Released: April 28, 2025

M. Gibson