R. v. Loder and Sherritt, 2025 ONSC 3618

CITATION: R. v. Loder and Sherritt, 2025 ONSC 3618

COURT FILE NO.: CR-24-90000315

DATE: 20250623

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

LUCHO LODER and

BRYAN SHERRITT

Elisa Mastrorillo and Amanda Webb, for the Crown

Julia Kushnir, for Lucho Loder

Harval Bassi and Jimmy Malhi, for Bryan Sherritt

HEARD: June 9, 10, 11, 12, 13 and 16, 2025

REASONS FOR JUDGMENT ON S.8 PRE-TRIAL MOTIONS

G. ROBERTS J.

1Lucho Loder and Bryan Sherritt, together with others, currently stand charged with drug trafficking offences arising out of an investigation called “Project Finito” conducted by the major projects section of the TPS drug squad in 2023. Mr. Loder currently faces the following charge:

Count 1 Traffic cocaine on August 21, 2023 (s.5(1) of the Controlled Drugs and Substances Act (CDSA)).

2Mr. Sherritt currently faces the following charges:

Count 5 Possess cocaine for the purpose of trafficking on August 23, 2023 (s.5(2) of the CDSA);

Count 6 Possess methamphetamine for the purpose of trafficking on August 23, 2023 (s.5(2) of the CDSA);

Count 7 Possess proceeds of crime on August 23, 2023 (s.354(1) Criminal Code).

3In addition, both Mr. Loder and Mr. Sherritt, together with Camron Longmore, stand charged with conspiring to traffic in a schedule I substance between August 3 and August 21, 2023 (s.465(1)(c) Criminal Code – count 8).

4Mr. Loder and Mr. Sherritt both brought pre-trial motions in relation to the admissibility of evidence. Although the charges each face arise from the same investigation, the Charter challenges are distinct, and I will deal with them separately. I will address them in the order they were argued before me.

BRYAN SHERRITT

5Bryan Sherritt seeks to exclude evidence (approximately 40 kg of cocaine and 10 kg crystal methamphetamine) obtained from a search of an Airbnb he was renting on August 23, 2023 (unit 1019 – 100 Mornelle Court). Mr. Sherritt argues that police breached his s.8 right to privacy in two significant ways, and the evidence found during the search should be excluded. The breaches include:

Obtaining information from Airbnb about a unit rented by Mr. Sherritt in the absence of prior judicial authorization;

Entering that unit (1019 – 100 Mornelle Court) without prior judicial authorization.

6The Crown argues that Mr. Sherritt did not have a reasonable expectation of privacy (REP) in the Airbnb unit he was renting and, in any event, exigent circumstances justified obtaining the information without prior judicial authorization.

7The Crown also argues that exigent circumstances justified the police entering and remaining inside unit 1019 of 100 Mornelle Court while they waited for a search warrant. Further, in the event of any breach or breaches, the evidence should be admitted under s.24(2). The Crown accepts that it bears the onus of justifying both the obtaining of information about the Airbnb unit rented by Mr. Sherritt, and entering and remaining inside the unit without a search warrant, as both steps were taken without prior judicial authorization.

Facts relating to the arrest of Bryan Sherritt and the search of his Airbnb

8Counsel for Bryan Sherritt filed the ITOs and search warrants relating to the August 21 searches of 37 Pergola Road and 120 Canon Jackson Drive and the August 23 search of 100 Mornelle Court. At the hearing, the Crown called Detectives Backus and Detective Teixeira. Det. Backus was in charge of Project Finito. Det. Teixeira was second in command. Mr. Sherritt did not testify or call any evidence at the hearing.

9On August 21, 2023, Project Finito investigators observed Mr. Loder receive several black bins with yellow lids from Abubakar Mohamed at 137 Queens Plate Dr (on August 15 Mr. Loder had been observed receiving six black bins with yellow lids from a U-Haul Driven by Mohamed; later on August 15 Mohamed was followed in the U-Haul to an Access Storage facility at 137 Queens Plate Drive). After receiving the bins from Mohamed on August 21, 2023, Mr. Loder was observed transferring three black bins with yellow lids to Camron Longmore. The team followed Mr. Longmore and watched him give one of the bins to Bryan Sherritt around 6:30 p.m. at the Kennedy Commons shopping plaza. The team did not follow Sherritt, as they did not have the resources to safely arrest him, and they believed they knew where he would take the cocaine. (From prior observations, the team believed the bins contained cocaine, and that Sherritt used unit 102 - 120 Canon Jackson Drive as a stash house. Det. Teixeira explained that the team had seen Sherritt take what they believed to be drugs to that location before – including in a black bin with a yellow lid; conduct a drug transaction after; and he also had his own registered address elsewhere.) The team focused on Longmore. They watched him meet Tenzen Paladen and hand over a black bin with a yellow lid. Around 6:50 p.m., both Longmore and Paladen were stopped in their respective vehicles, boxed in, and arrested.

10The take-down was not planned. Police were reacting to their observations. Longmore still had one of the black bins with a yellow lid in his car. It contained 34.36 kg of cocaine. Paladen had another in his car; it contained 34.76 kg of cocaine.

11After losing Sherritt, Det. Backus asked for the assistance of a street team to find him. The street team were instructed to go to unit 102 - 120 Canon Jackson Drive and watch to see if he arrived.

12After Longmore and Palden were arrested, the team moved to get search warrants for Longmore’s home, and Sherritt’s home at 37 Pergola Road (his MTO address) and what police believed was his stash house at unit 102 – 120 Canon Jackson Drive, and associated vehicles. Within about an hour of the arrest of Longmore and Palden, teams were in place outside all three locations while police waited for search warrants.

13Mr. Sherritt was arrested around 9:00 p.m. after leaving 37 Pergola Road, retrieving two black garbage bags from his Kia, and putting them into the hatch of a black Acura driven by a man he met with for about one minute. Police had planned to arrest Sherritt at home, when they executed the search warrant, but believed the garbage bags contained drugs. Turns out they contained used high-end sneakers.

14After arresting Sherritt, police were concerned about the destruction of evidence inside 37 Pergola. Sherritt’s parents and girlfriend were inside the home. Police entered the home pursuant to their exigent circumstances power, and secured the location from the inside while they waited for the search warrant.

15The ITO in support of the search warrants was submitted at 9:15 p.m. and granted at 10:22 p.m. for both addresses associated to Sherritt, plus another address and several vehicles, including a blue Kia associated to Mr. Sherritt. Det. Teixeira testified that they received the search warrant for 37 Pergola around 11:00 p.m. at which point they began to search. The only thing of significance found was what Det. Teixeira described as a drug trafficking “grab bag” – a kit containing knives, mixing bowls and tools, gloves, plastic bags. Det. Teixeira could not recall whether or not the kit contained a cutting agent (though presumably if it had a sample would have been sent for testing). In addition, police found a key and fob in the glove box of Mr. Sherritt’s blue Kia. Det. Teixeira believed the grab bag was significant because it indicated a transient drug trafficking operation.

16Nothing was found at 102 – 120 Canon Jackson Drive. Police learned it was an Airbnb and Mr. Sherritt was no longer renting it. Police did not make an exigent circumstances entry into the unit while they waited for the search warrant.

17Both Det. Backus and Det. Teixeira worked into the early hours of August 22. Both were back on shift first thing the next morning. There was much work to do relating to the arrests and searches, but top of mind for both detectives was finding the outstanding black bin with a yellow lid that they believed contained over 30 kg of cocaine. Det. Backus did not recall the specific investigative steps he took to find it, but believed they would have involved going through the information they had, and what they found in the searches, to try to find another address associated to Mr. Sherritt. Det. Backus testified that it was not until around 11:00 p.m. that he had the idea to call Airbnb to see if Mr. Sherritt was renting another Airbnb unit.

18Around 11:00 p.m., after a Google search, Det. Backus called a number he found for Airbnb law enforcement. He reached someone in Ireland. He explained that he believed Mr. Sherritt was renting an Airbnb which contained dangerous drugs. (He elaborated on his safety concerns in his evidence in court.) Det. Backus provided the previous address of 120 Canon Jackson. He was then put through to someone in China and again explained his concern. He was directed to complete a form, setting out his concern, and submit the form to an on-line portal. He followed the direction. He initially testified that about half an hour later he received a telephone call and was told the following: the address of the unit Mr. Sherritt was renting (1019-100 Mornelle Court), the name of the owner, and her telephone number. After he was able to retrieve his email exchange with Airbnb, however, it was apparent that Airbnb provided the name and telephone number of the host and attached the rental details, which included: the name of the renter (Bryan Sherritt); the date the rental began (August 21, 2023); the duration (7 days); and the address (100 Mornelle Court). The attachment did not include the unit number (1019) so Det. Backus called back and within about 13 minutes received the unit number from Airbnb over the telephone (it was 13 minutes between the time Det. Backus noted he received information from Airbnb (at 11:37 p.m.) and the time he notified his team of the exact address (11:50 p.m.)).

19Det. Backus immediately provided the address to the affiant so that a search warrant could be obtained as soon as possible. Given the length and complexity of the project, the team was submitting their warrants to the same judge who did the original authorization (Heather Pringle), so that the history of the investigation did not need to be examined and assessed anew for each subsequent authorization. Det. Backus acknowledged that they could have used the telewarrant process, but given the length of the ITO, he did not agree that process would necessarily be faster. Justice Pringle noted receiving the search warrant material related to 100 Mornelle Court at 12:30 p.m. August 23; she signed the search warrant at 2:10 p.m.

20Det. Backus also called Det. Teixeira and they drove to the unit, arriving around 1 am. They were joined by three other members of team. While driving to the unit, Det. Backus and Det. Teixeira discussed whether they would use the exigent circumstances power to enter the unit and secure the drugs. When they arrived on scene, and saw the lay-out of the unit, they continued their discussion, and made a decision that they would use their exigent circumstances power to enter the unit and guard the drugs, if found, from inside the unit. Det. Teixeira testified that he was familiar with 100 Mornelle Court as low income housing in a neighbourhood with drug users and unsavoury characters. Both officers made contemporaneous notes documenting the factors they considered in making their decision to make an exigent circumstances entry. Both testified that they believed exigent circumstances existed when they decided to enter the unit, notwithstanding that Mr. Sherritt was arrested over 24 hours earlier. Det. Backus testified that, if anything, the delay heighted his concerns. The passage of time gave a person or persons time to get organized to try to take the drugs.

21The key police had found in Mr. Sherritt’s blue Kia worked. The officers entered the unit around 1 am. The black bin with the yellow lid was sitting on a dolly in plain view (police had previously observed Mr. Sherritt use a dolly to bring a black bin with a yellow lid into 120 Canon Jackson Drive). As was a duffle bag containing a bag of what appeared to be crystal meth. After ensuring no one was inside, the team sat and waited for the search warrant. At a certain point both Detectives went home while other officers waited. The search warrant was eventually executed at 3:21 p.m. on August 24, 2023, at which time the following was found:

• 36.67 kilograms of cocaine (divided into 33 bricks) in a black bin with a yellow lid sitting on a dolly in the dining room area;

• 4.05 kilograms of cocaine (divided into four bricks) in a black Air Canada luggage on the floor of the dining room area;

• 10.02 kilograms of methamphetamine (divided into 10 bags) in a large black duffle bag on the floor of the dining room area;

• Packaging and plastic gloves on top of the table in the dining area;

• Two additional duffle bags on the floor of the dining room area.

Did police violate s.8 by obtaining information from Airbnb without a warrant?

Did Mr. Sherritt have a reasonable expectation of privacy in his booking information with Airbnb?

22Whether Mr. Sherritt had a reasonable expectation of privacy (REP) in his Airbnb booking requires both a factual assessment of the totality of circumstances, and a normative inquiry into whether his claimed privacy interest is one he ought to expect to be protected in a free and democratic society. Courts have set out the following framework to guide the analysis:

• What was the subject matter of the search?

• Did the claimant have a direct interest in the subject matter?

• Did the claimant have a subjective expectation of privacy in the subject matter?

• If so, was the subjective expectation of privacy was objectively reasonable.

See eg. R. v. Spencer, 2014 SCC 43; R. v. Bykovets, 2024 SCC 6; R. v. El-Azrak, 2023 ONCA 440.

23When assessing the subject matter of the search in the context of informational privacy, it is necessary to take a broad functional approach considering both the information and what it reveals, considered at the time of the search: R. v. Ward, 2012 ONCA 660 at para. 67; R. v. Orlandis-Habsburgo, 2017 ONCA 649 at paras. 39-47; R. v. El-Azrak at para. 52. This is straight‑forward in this case. The police wanted to know if Mr. Sherritt was currently renting an Airbnb, and, if so, where it was. Detective Backus was able to find a law enforcement number for Airbnb and speak to a live person and explain he was concerned that dangerous drugs were currently being stored in an Airbnb. Within about half an hour he learned that Mr. Sherritt began renting an Airbnb at 1019 – 100 Mornelle Court on August 21, the day before, and had the booking for 7 days.

24Although Mr. Sherritt did not testify or call any evidence, there in no issue that he had a direct connection to, and interest in, his booking information with Airbnb. While the information was held by a third party, it was in his name, and related to the unit he was using. In the circumstances, I infer that he had a subjective expectation of privacy in his booking information.

25The real issue is whether Mr. Sherritt’s subjective expectation of privacy was objectively reasonable in the totality of circumstances, including consideration of all the facts, and a normative inquiry into whether Mr. Sherritt’s interest in being left alone should give way to the state’s interest in law enforcement in the circumstances.

26The Crown relies on Airbnb’s privacy policy at the time of the booking (made exhibit B) as an important circumstance bearing on the reasonableness of Mr. Sherritt’s expectation of privacy. Section 4.5 of the privacy police included the following (my emphasis added):

Complying with Law, Responding to Legal Requests, Preventing Harm and Protecting Our Rights.

We may disclose your information to courts, law enforcement, governmental or public authorities, tax authorities, authorized third parties, or other Members, if and to the extent we are required or permitted to do so by law or where disclosure is reasonably necessary to: (i) comply with our legal obligations; (ii) comply with a valid legal request (such as a subpoena or court order) or to respond to claims asserted against Airbnb, (iii) respond to a valid legal request relating to a criminal investigation to address alleged or suspected illegal activity, or to respond to or address any other activity that may expose us, you, or any other of our users to legal or regulatory liability…(v) protect the rights, property or personal safety of Airbnb, its employees, its Members, or members of the public.

27A street address does not generally attract a reasonable expectation of privacy. As the Court of Appeal explained in R. v. Saciragic, 2017 ONCA 91 at para. 32: “A physical address does not, of itself, reveal intimate details about one’s personal choices or way of life, and, ordinarily, it is publicly available information to which many people have access.” Similarly, in general, there is no reasonable expectation of privacy in relation to a name, phone number, or address provided to a third-party business when purchasing goods or services like car rental, taxis, or pizzas: see R. v. McPherson, 2023 ONSC 232 per Code J. at paras.88-96, and the cases he cites and discusses.

28The Airbnb booking information strikes me as different than these examples. Police learned more than a street address, or customer information about a past transaction. They learned that Mr. Sherritt was currently renting an Airbnb at 1019 – 100 Mornelle Court, and he began renting the day before, and planned to continuing renting for a 7-day period. Given what police already knew about Mr. Sherritt, police inferred that Mr. Sherritt was using the Airbnb as a stash house. The Crown properly cautions me that the subject matter of the search is limited to the information and what can be directly inferred from the information alone (see eg Bykovets; El-Azrak at para. 38). In other words, the subject matter of the search is that Mr. Sherritt was renting an Airbnb at 100 Mornelle Court for 7 days beginning August 21. It does not include the inference that he was in the habit of using short-term Airbnb rentals as stash houses.

29In R. v. Neumann, 2023 ABCA 200 police watched a man engage in what they believed to be a drug transaction (based on surveillance and information provided by a confidential informant). They followed him to a motel and watched him enter suite 11. They then asked management the name and telephone number of the person staying in suite 11 (Jacob Neumann). The information disclosed by the motel was governed by the federal Personal Information Protection and Electronic Documents Act (PIPEDA). Section 7(3) provided for the disclosure of personal information without the knowledge and consent of the individual where requested by a “lawful authority…carrying out an investigation”. The Court of Appeal concluded that Mr. Neuman had no REP in his name and telephone number, identifying him as the person staying in unit 11, explaining it did not reveal intimate details about his lifestyle and personal choices, nor did its disclosure affect his dignity, integrity, and autonomy.

30While this case is not on all fours with Neumann, I believe the role of the Airbnb privacy policy is similar to the role of PIPEDA. Like PIPEDA in Neumann, the privacy policy in this case (s.4.5 of exhibit B) significantly limits Mr. Sherritt’s REP in his rental information with Airbnb. Airbnb had put Mr. Sherritt on notice that where police had a reasonable basis to suspect criminal activity connected to his use of an Airbnb rental, they may disclose his information to law enforcement. There is no issue that police met the low threshold in s.4.5 of the privacy policy at the time they requested booking information from Airbnb. As in Neuman, policy wanted the booking information to get judicial authorization for an investigative step, specifically a search warrant to find the cocaine that they had reasonable grounds to believe Mr. Sherritt was storing somewhere. In the circumstances of this case, I do not believe Mr. Sherritt had a REP in his information with Airbnb.

31In the event I am wrong in finding that Mr. Sherritt had no REP in the particular circumstances, I will also consider whether exigent circumstances existed.

In the alternative, did exigent circumstances exist permitting police to obtain booking information from Airbnb without prior judicial authorization?

32Section 11(1) of the CDSA authorizes a justice to issue a warrant to search a place for a controlled substance and to seize it. Section 11(7) authorizes a peace officer to search the place without a warrant, if the conditions for a warrant exist but “exigent circumstances” make it “impracticable” to obtain one. Section 11(1) and (7) provide:

11 (1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that,

(a) a controlled substance or precursor in respect of which this Act has been contravened,

(b) any thing in which a controlled substance or precursor referred to in paragraph (a) is contained or concealed,

(c) offence-related property, or

(d) any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in part in relation to a contravention of this Act, under section 354 or 462.31 of the Criminal Code,

is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance, precursor, property or thing and to seize it…..

(7) A peace officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one.

33The Supreme Court of Canada has explained that the section has two requirements:

(1) The existence of exigent circumstances; not mere “convenience, propitiousness or economy” but “urgency, arising from circumstances calling for immediate police action to preserve evidence, officer safety or public safety”.

(2) The conditions for obtaining a warrant existed, but the exigent circumstances made it “impracticable to obtain a warrant”, meaning that it was “impossible in practice or unmanageable to obtain a warrant”, i.e. the exigent circumstances cause impracticability.

R. v. Paterson, 2017 SCC 15 per Brown J. at paras.33-37; R. v. Campbell, 2024 SCC 42 per Jamal J. at paras.111‑112

34The police must have reasonable and probable grounds for the claimed exigency. As Justice Jamal explained at para. 114 of Campbell:

The standard of reasonable and probable grounds requires the Crown to establish the reasonable probability of the claimed exigency, based on the experience and expertise of the police and the relevant facts before them; it does not require the Crown to establish the exigency on the balance of probabilities…. The Crown must show that the officers’ reasonable belief in the exigency was “objectively grounded in the circumstances of the case”…. The subjective views of the police must have been objectively reasonable…. A vague, speculative, or general concern that delaying a search to obtain a warrant would risk the loss of evidence does not meet the exigency threshold….[citations omitted]

35At the time Det. Backus called the Airbnb law enforcement line and asked for the address for Mr. Sherritt’s Airbnb, the following circumstances existed:

• Approximately 29 hours earlier, around 6:00 p.m. on August 21, 2023, police watched Mr. Sherritt take custody of a black bin with a yellow lid which they believed contained at least 30 kg of cocaine. Shortly after watching Mr. Sherritt receive this bin, police recovered two other identical looking bins (upon arresting Longmore and Palden around 7:00 p.m. on August 21, 2023) which had come from the same source as Sherritt’s bin at the same time (Loder). Longmore and Palden’s bins each contained over 30 kg of what appeared to be very pure cocaine (subsequently confirmed on testing).

• Around 7:00 p.m. police began watching Mr. Sherritt’s home at 37 Pergola and the address they associated him to at 120 Canon Jackson Drive pending the arrival of search warrants. (Approximately ten days earlier, on August 11, police had watched Mr. Sherritt wheel an identical looking bin he got from Longmore (who appeared to get it from Loder) into a residential building 120 Canon Jackson Drive.) Police arrested Mr. Sherritt around 9:00 p.m. on August 21, 2023.

• When police searched 37 Pegola around 11:00 pm on August 21, 2023, they did not find anything of significance beyond the “grab bag” described above.

• When police searched unit 102 - 120 Canon Jackson Drive around 11:00 p.m. on August 21, 2023, they discovered the unit was an Airbnb, and Mr. Sherritt was no longer renting it.

• Through their investigation, police had come to believe Mr. Sherritt was a mid-level drug dealer. When they previously saw him with a black bin with a yellow lid, on August 11, he spent time with it. Police did not believe he got rid of the bin and the contents in the approximately 1 hour between watching him receive it and setting up outside his house pending the arrival of the search warrant.

• Throughout the day on August 22, 2023, Det. Backus was unable to find another address associated with Mr. Sherritt.

• Throughout August 22, 2023, Det. Backus and Det. Teixeira were becoming increasingly concerned about the outstanding bin which they believed contained over 30 kilograms of cocaine. Their anxiety was exacerbated by the fact that they did not know if the cocaine was pure or was cut with something, possibly fentanyl. In addition, they last saw the bin in the hands of someone they believed to be a mid‑level drug dealer. They knew mid-level drug dealers sought to maximize profit, using cutting agents, including fentanyl, and selling whatever drug was in demand. I can safely take judicial notice of the fact that by 2023, fentanyl had a strong grip on the community.

• Det. Backus believed the cocaine originated from a cartel. He did not know whether Mr. Sherritt paid for it upfront or obtained it on consignment. If the latter, Det. Backus was concerned the cartel would try to recover it. This would take some time – the cartel would have to learn of Mr. Sherritt’s arrest and arrange a recovery mission. Further, Det. Backus knew the cartel was prepared to take extreme steps, including murder, in recovering its drugs.

36By the evening of August 22, 2023 I am satisfied that Det. Backus had reasonable grounds to believe the cocaine still existed and was still in the constructive possession of Mr. Sherritt, but there was an imminent risk of it disappearing. Further, it posed a significant danger to anyone who might happen upon it. I am satisfied that exigent circumstances existed to justify a warrantless demand for information from Airbnb about any short-term rental in the possession of Mr. Sherritt.

Did police violate s.8 by entering and staying inside unit 1019 - 100 Mornelle Court pending the arrival of the search warrant?

37Police entered 1019-100 Mornelle Court without a warrant around 1:00 a.m. on August 23, 2023, and stayed there, guarding the drugs they found in plain view, until the search warrant arrived approximately 12 hours later, around 3:00 p.m. on August 23, 2023.

38The factors both detectives relied on in support of their decision to rely on their exigent circumstances power to enter and stay inside the unit included:

• They believed that they had grounds to get a CDSA search warrant (which they did).

• They were concerned about the safety of anyone who might enter the Airbnb and find the drugs (such as cleaning staff or the owner). They believed the unit contained cocaine but also believed it was possible other drugs were present, such as fentanyl, or that the cocaine was cut with fentanyl. They believed Sherritt was a mid-level trafficker. In their experience, mid-level traffickers often sold a variety of drugs and used cutting agents, including fentanyl, to maximize profit.

• They did not want to risk losing the drugs. The organization they were investigating had a history of clearing out stash houses in timely manner. Both officers testified that during a previous investigation in which Loder had been observed (Nivel), police had found the locks of a stash house drilled out. (I note Backus and Teixeira were inconsistent about whether this happened before or after the police searched (Teixeira testified it was after; Backus before). Either way, Loder and Smith‑Thomas were still at large. And there could have been other co-conspirators police did not know about.

• Sherritt had a history of firearms violence, and drugs and guns go hand in hand. The drugs were worth about 3 million dollars and anyone who knew about them would try to retrieve them. The officers believed they had been supplied by a drug cartel, but did not know if they had been paid for outright or supplied on consignment. Both officers knew drug cartels would take extreme measures, including murder, to “recover a lost load”.

• Both officers believed it was much safer to secure the location from the inside. The unit was two story, with ground floor access from an internal narrow hall, and an external patio sliding door. The team was relatively small (5 officers in total) and was operating covertly. If someone snuck up on them, they would have a considerable tactical advantage if situated inside the house. They would be exposed watching from the outside. Det. Backus was adamant that it was too risky to put his officers outside.

39Mr. Sherritt argues that both the warrantless entry, and staying inside the unit after verifying no one was inside, violated his s.8 right to privacy. More specifically, the police decision to enter, and to stay inside, was driven by operational convenience, not urgency. This cannot and did not justify a warrantless entry. Police saw and heard nothing inside the unit to suggest someone was inside and the drugs were at imminent risk of disappearing. There was nothing preventing police from setting up outside the home, and guarding it from outside, pending the arrival of the search warrant, as they did in the case of 120 Canon Jackson Drive. Even if an initial entry was permissible to verify no one was inside, and the drugs were safe, however, s.8 was breached by the police continuing to stay inside Mr. Sherritt’s private space: R. v. Harris, 2018 ONSC 4298, overturned on other grounds 2022 ONCA 739.

40As noted at the outset, the Crown acknowledges that it bears the burden of justifying the reasonableness of both the warrantless entry, and staying inside after the unit was cleared. In all the circumstances of this case, police concerns about the drugs disappearing, and safety, were reasonable, and justified both entering and staying inside the unit.

41The test for exigent circumstances is set out immediately above.

42There is no issue that, at the time police entered 1019 – 100 Mornelle Court around 1:00 a.m. on August 23, 2023, they had reasonable grounds to believe the missing bin of over 30 kg of cocaine was inside. This is not a case of a sneak peak at a time grounds were developing. The grounds existed in relation to any residence or location associated to Mr. Sherritt at the time he took and kept custody of the black bin with the yellow lid. The essential issue is whether it was urgent to enter to preserve evidence, officer safety or public safety. Further, whether it was reasonable to stay inside to guard the drugs once police ensured no one was inside the unit.

43I accept that the drugs were dangerous, and police believed they were in the constructive possession of a mid-level drug dealer, who could have cut them with fentanyl, or had them together with other dangerous drugs (he did – 10 kg of methamphetamine). However, there was nothing to suggest that a cleaner or the owner or an innocent third party could inadvertently come into contact with the drugs at 1:00 a.m. in the morning. Police heard no sounds and saw no lights to suggest cleaners, the owner, or an innocent third party were inside. In the circumstances, I do not believe police had reasonable grounds to believe entry into the home was necessary to prevent imminent bodily harm or death to any person.

44Given the hour, however, the fact that police did not see lights on, or hear sounds, did not mean no one was inside. Most residences are dark and quiet at that hour, even when occupied. The clock was ticking on word to get out that Mr. Sherritt had been arrested and the cocaine was at large. In the circumstances, I believe police had reasonable grounds to believe it was necessary to immediately enter to prevent the imminent loss or destruction of the drugs.

45I do not believe the fact that Det. Backus did not finalize his decision to enter until he arrived on scene, and saw the unit, and spoke to Det. Teixeira in person (they had been speaking on the telephone on their way to the unit) means the entry was not truly necessary to prevent the imminent loss or destruction of the drugs. Rather I believe this final step simply meant the decision was thoughtful and not rash.

46I do not believe the fact that police were able to guard unit 102 – 120 Canon Jackson Drive from the outside while they waited for a warrant means it was unreasonable to immediately enter unit 1019 – 100 Mornelle Court. There was no evidence of the lay-out of 120 Canon Jackson Drive. Det. Texeira simply testified they did not enter Canon Jackson Drive because they believed they could safely watch it from the exterior. Det. Backus could not comment because he was not involved in securing Canon Jackson Drive pending the arrival of the search warrant. More importantly, the timing of the searches was very different. I accept Det. Backus’ evidence that the delay in searching Mornelle Court heightened his security concerns because there was time for word to get out about Sherritt’s arrest, and for people to get organized to attempt to retrieve the cocaine.

47Once police were inside the unit, and satisfied themselves that no one was inside and the drugs were safe, I believe that it was necessary from an officer safety standpoint to remain inside to guard the drugs. The decision to guard the drugs from inside the unit was not a matter of mere operational convenience. The “tactical advantage” described by Det. Backus was primarily about safety. I am satisfied that the police had a reasonable belief of imminent bodily harm or death if they stationed themselves outside the unit while they waited for the search warrant to secure the drugs.

48I appreciate that other judges of this court have reached the opposite conclusion (Mr. Sherritt relies on R. v. Harris; the Crown brings R. v. Weeden, 2018 ONSC 5182 and R. v. McCalla, 2019 ONSC 3256 to my attention). But reasonableness is a highly fact specific inquiry. None of these cases involved a ground floor town house unit with an easily accessible sliding door (Harris involved a unit on the 14th floor; Weeden a unit on the 12th floor, and McCalla a unit on the 6th floor). Nor 30 kg of cocaine believed to have been supplied by a South American cartel, in the constructive possession of a mid-leveller dealer recently arrested by police. Det.Backus was an extremely experienced investigator. He was adamant it was too risky to guard the drugs from outside the unit. He provided compelling reasons for his decision, including:

• Det. Backus believed the cocaine had been supplied by a cartel. He did not know whether Mr. Sherritt had paid outright or obtained the cocaine on consignment. If the latter, Det. Backus was concerned that the cartel would come looking for the drugs. Based on his experience, he knew they were prepared to take extreme steps, including murder, to recover a “lost load”.

• Det. Backus knew some co-conspirators were still at large – Loder and Smith‑Thomas. He was concerned there may be other co-conspirators he did not know about. Although he knew Mr. Sherritt had been arrested the night before, he knew detainees are permitted use of the telephone, beyond calls to counsel, and did not know what calls Mr. Sherritt had made.

• The passage of time heightened Det. Backus’ safety concerns in so far as it provided time for word to get out about Mr. Sherritt’s arrest, and the missing cocaine, and time for someone wanting to recover it to get organized.

• Both Det. Backus and Det. Teixeira testified that the town house unit was difficult to guard from the outside, particularly in a covert fashion. The parking lot was too far to be useful to guard the patio door. Going closer exposed the officers. The interior entrance was far down a long narrow hallway where an officer would be extremely exposed.

49Judicial oversight of police actions which would normally require prior judicial authorization is important. I must not simply defer to, or rubber stamp, a police decision to enter, and remain inside, a home for exigent circumstances. At the same time, I must perform my review with sensitivity to the circumstances in which the decision was made. As Justice Doherty noted in R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743 (C.A.) at p.750, “determining whether sufficient grounds exist to justify an exercise of police powers is not a ‘scientific or metaphysical exercise’, but one that calls for the application of ‘common sense, flexibility, and practical everyday experience.’”

50There was no challenge to the credibility of either Det. Backus or Det. Teixeira. Nor do I see any basis to question their credibility. While there were inconsistencies in Det. Backus’s evidence about exactly what Airbnb conveyed to him, the inconsistencies appear to be due to recovering his correspondence from Airbnb and refreshing his memory. I do not understand defence counsel to suggest Det. Backus was untruthful or unreliable.

51I am satisfied that, in the totality of circumstances known to Det. Backus at the time, it was objectively reasonable to enter unit 1019 of 100 Mornelle Court to make sure the missing cocaine was safe, and to remain inside to guard the drugs until a search warrant arrived.

52In sum, I find no breach of s.8.

53In the event I am wrong about there being no s.8 violation, I will address s.24(2).

In the alternative, should the evidence discovered inside unit 1019 – be excluded pursuant to s.24(2)?

54The first line of inquiry measures the state misconduct with a view to assessing where it falls on the continuum between inadvertent, reasonable mistakes, through negligence, deliberate or systemic misconduct, or a pattern of Charter infringing conduct. The closer to the latter, serious end, the more important it is for the Court to dissociate itself from the conduct.: R. v. Tim, 2022 SCC 12 at para. 82; R. v. Kitaitchik, 2002 CanLII 45000 (ON CA), 2002 166 C.C.C. 3d 14 at para. 14.

55As noted, defence counsel does not challenge the credibility of either Det. Teixeira or Det. Backus. Nor does he suggest either acted in bad faith or was misleading in any way. Rather he argues that they were badly mistaken about their exigent circumstances power; they could have and should have secured the unit from the outside. The depth of their misunderstanding is deeply concerning given how senior they were. The fact that they could have complied with the Charter, and chose not to, exacerbates their misconduct.

56I do not accept the defence position. If Det. Teixeira and Det. Backus were mistaken about their power to request information from Airbnb, or enter unit 1019-100 Mornelle Court and guard the drugs they found, they were not mistaken by much. They made contemporaneous notes of the factors informing their decision to make a warrantless entry, and stay inside, and provided compelling reasons for both decisions. This was a fast-paced, high stakes investigation. The take‑down was not planned and police had to scramble to react. I am satisfied that they honestly believed that they were acting lawfully out of concern for public safety and to prevent the imminent loss or destruction of evidence. To the extent they were mistaken, their mistake was reasonable in the circumstances, and falls at the least serious end of the continuum of Charter infringing conduct. I find this branch is neutral.

57The second line of inquiry under s. 24(2) considers the impact of the breach on the accused’s Charter-protected interests – in this case, Mr. Sherritt’s s.8 right to privacy. In the particular circumstances of this case, I do not believe either breach had a significant impact on Mr. Sherritt’s right to privacy.

58Beginning with the information obtained from Airbnb, given the privacy policy in place at the time, and the evidence that Mr. Sherritt was using Airbnbs as stash houses, I do not believe Mr. Sherritt had a significant privacy interest in his booking information. The privacy policy is clear that information held by Airbnb may be provided to police in such circumstances. Even if there was a breach, it had minimal impact given Mr. Sherritt’s greatly reduced expectation of privacy in the information. I find this breach pulls only mildly toward exclusion.

59For similar reasons, Mr. Sherritt’s expectation of privacy in unit 1019-100 Mornelle Court was diminished. Although I accept that the territorial privacy interest in a short-term Airbnb rental is generally very high –not as high as a home but nonetheless close to the core of territorial privacy. In this case, however, at the time police made their warrantless entry they had the grounds to search the unit, they just did not have the paperwork. They had watched Mr. Sherritt receive what they believed was over 30 kg of cocaine. They had been given search warrants for all the places they knew to be associated to Mr. Sherritt – his home, his car, the Airbnb at 120 Canon Jackson Drive they had seen him enter. They just did not know about the new Airbnb at Mornelle Court at the time those search warrants were requested. But as soon as police linked Mr. Sherritt to unit 1019 at 100 Mornelle Court during a time frame they continued to believe Mr. Sherritt was in construction possession of the drugs, the same bases to search applied. It follows that Mr. Sherritt’s expectation of privacy in the unit at the time of the warrantless entry was greatly diminished, and the effect of the breach correspondingly diminished. I find this breach pulls only mildly toward exclusion.

60In the circumstances, even when I consider the cumulative effect of the breaches, the impact on Mr. Sherritt’s right to privacy is limited, and the cumulative pull remains mild.

61The third line of inquiry considers factors such as the reliability of the impugned evidence and its importance to the Crown’s case. It asks “whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion”: R. v. Grant, 2009 SCC 32.

62There is no question that the approximately 40 kg of cocaine and 10 kg of methamphetamine seized by police is reliable evidence. While Mr. Sherritt also faces a conspiracy charge, the evidence is nonetheless central to the Crown’s case. The charges are unquestionably serious. This branch pulls strongly toward admission.

63When I consider all three branches cumulatively and in totality, I am satisfied that admission of the seized drugs would better serve the truth-seeking function of the criminal trial process and would not damage the long-term repute of the justice system. Exclusion, not admission, would bring the administration of justice into disrepute.

LUCHO LODER

64Lucho Loder challenges the constitutionality of a tracking warrant granted on August 14, 2023, in relation to his vehicle. He submits that the ITO in support of the warrant was not sufficient. The real focus of his attack, however, was that the affiant was intentionally misleading and the authorization must be set aside, even if sufficient, and any evidence derived as a result excluded.

65The Crown argues that ITO is more than sufficient to meet the test for obtaining a tracking warrant, and, read in context, as it must be, there is nothing misleading about it. More specifically, the Crown takes the position that the warrant can be upheld at step 5 of Garofoli. In the event I disagree, the Crown seeks to rely on step 6 of Garofoli.

66I am satisfied that the redacted ITO provides ample basis for the authorization of the tracking warrant. There is no need for the Crown to rely on step 6 Garofoli. Further, read in context and as a whole, I do not believe there is anything misleading about the ITO. I see no evidence whatsoever of an intent to mislead.

Background facts relating to the granting of the tracking warrant

67The tracking warrant was granted as part of an omnibus application for a variety of orders involving a variety of targets, including a general warrant to surreptitiously enter an address associated to Mr. Loder (9 Caseley Way, Markham-Unionville which police believed to be a stash house), a general warrant to surreptitiously enter a 2020 black Acura RDX, licence CTTP 908 used by Mr. Loder, related assistance orders, and tracking warrants for a series of vehicles associated with different targets, including the 2020 black Acura RDX, licence CTTP 908 used by Mr. Loder.

68Justice Pringle granted all the authorizations requested on August 14, 2023. However, I understand from counsel that only the tracking warrant in relation to the black Acura RDX, licence CTTP 908, used by Mr. Loder, was acted upon.

69The Crown had to meet the “reasonable ground to believe” standard in order to obtain the general warrants requested and Granted. However, counsel agree that the lower standard of “reasonable grounds to suspect” applied to the tracking warrant, and it is this lower standard that I must be satisfied was met. Specifically, s. 492.2(1) of the Criminal Code provides:

A justice or judge who is satisfied by information on oath that there are reasonable grounds to suspect that an offence has been or will be committed against this or any other Act of Parliament and that transmission data will assist in the investigation of the offence may issue a warrant authorizing a peace officer or a public officer to obtain the transmission data by means of a transmission data recorder. [my emphasis added]

The test on review

70A justice reviewing an authorization for a tracking warrant (or any form of prior judicial authorization) does not substitute her view for that of the authorizing judge. Rather she asks only whether, based on the totality of circumstances before the authorizing judge, as amplified on review, the authorizing judge could have concluded that the prerequisites for issuing the authorization were met: R. v. Garofoli, [1990] 2 SCR 142 at p.1452.

71In conducting a review of an authorization, it is straight-forward that misleading and incorrect information must be excised from the ITO, and disregarded. But it is also necessary to consider the nature of any defect. A deliberate attempt to mislead may affect not only whether amplification is permissible, but also whether what remains in the ITO after excision and amplification is sufficiently reliable that it might reasonably be believed. In light of this reality, subsequent Supreme Court decisions described the Garofoli test as follows: was there “at least some evidence that might reasonably be believed on the basis of which the authorization could have issued”: R. v. Araujo, 2000 SCC 65, at paras. 51, 54; R. v. Morelli, 2010 SCC 8 at para. 40.

72Even where the evidence that remains after excision and amplification is sufficiently reliable that it might reasonably be believed and it provides a basis on which the authorization could have issued, a reviewing justice has a residual discretion to set the authorization aside “where police conduct has subverted the pre-authorization process through deliberate non‑disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like”. The standard required in order to exercise this discretion is “high”: R. v. Paryniuk, 2017 ONCA 87 at para. 69-70; R. v. Araujo, at para. 53; R. v. Kerr, 2022 ONCA 530. Where setting aside the authorization would effectively end the Crown’s case, the standard is tantamount to the residual category of abuse of process (“clearest of cases”): R. v. Paryniuk, at para. 80; R. v. Jageshur (2002), 2002 CanLII 45116 (ON CA), 169 C.C.C. (3d) 225 at para. 69.

73The review begins from the presumption that the authorization was valid, and the ITO “must be read as a whole and an issuing judge may draw common sense inferences from the information provided”: R v. Muddei, 2021 ONCA 200 at para. 37-38.

The sufficiency of the ITO

74The police investigation leading to the application for the tracking warrant began with information from a confidential human source (CHS). Police conducted extensive investigation to confirm the information received from the CHS; indeed the investigation spawned a project dubbed “Project Finito” which resulted in numerous arrests and the eventual seizure of 100s of kilograms of cocaine (Det. Backus testified the name came from the fact that it was the last project he worked on before retiring from the TPS).

75The information provided by the CHS is set out at outset of the ITO and includes the following:

• There is a male trafficking controlled substances at the multi-kilogram level.

• The male was white, 5’9” to 5’10” tall, bald with a beard.

• The male used a new black Acura RDX license plate CTTP 908 to deliver controlled substances.

• The male lived or had a stash house in the area of Fort York Blvd and Bathurst Street.

76In assessing whether it is reasonable to rely on information provided by a CHS, the totality of circumstances must be carefully analyzed in light of the "3Cs" described by Justice Wilson in Debot 1989 CanLII 13 (SCC), [1989] 2 SCR 1140. First, was the information provided by the CHS compelling? This concern focuses on the reliability of the information including considerations like the degree of detail provided and the informer’s means of knowledge (first-hand or second hand). Second, was the CHS credible? This concern focuses on issues such as whether the CHS has record of providing reliable information, the motive for providing the information, whether the CHS has a criminal record, in particular for offences of dishonesty, whether the CHS was warned about the consequences of providing false information. Finally, was the information from the CHS corroborated or confirmed? Confirmation of the criminal aspect of information provided by a CHS is not required. At the same time, confirmation of well known, innocuous, or general information is of limited value in the analysis. The crucial question is whether there was some independent information providing meaningful support for the credibility and reliability of the CHS.

77The "3 Cs" must be assessed in the totality of circumstances. All three need not be present in every case, and weaknesses in one can be compensated by strengths in the other two. The question is whether it was open to the authorizing justice to rely on the information provided by the CHS, considered in totality and together with the other information in the ITO.

Was the tip compelling?

78The information provided by the CHS in this case is detailed and specific on its face.

79The redacted warrant described the nature of the information provided by the CHS (and contained in Appendix X) including the recency/timing of the information, and whether it was first or second hand.

Was the CSH credible and reliable?

80The redacted warrant summarized the nature of the information provided in Appendix X, including noting that it contained the following:

• The CHS is registered to a police service in the Province of Ontario.

• Whether or not the CHS had been used in the past, specific details about the information supplied by the CHS, if any, and the results of that information.

• Whether or not the CHS has a criminal record and/or any outstanding charges, including the details thereof, if any.

• Any facts known to the affiant to detract from the reliability of the CHS.

• The reason the CHS was providing information.

Was the information provided by the CHS confirmed?

81Each piece of information provided by the CHS was confirmed through police investigation, in multiple ways, often on multiple occasions, including repeated surveillance of Mr. Loder and others, some of whom police came to believe were co-conspirators with Mr. Loder or otherwise involved in drug trafficking for reasons set out in the ITO; photographs; Mr. Loder’s criminal record; MTO records relating to Mr. Loder; and Toronto Community Housing Corporation records.

82The Crown provided a chart setting out the confirmation for each piece of information provided by the CHS and where it can be found in the ITO, and the page or paragraph number in the ITO. Defence counsel accepts that the chart is accurate, and I rely on it. It was made Exhibit C and I attach it to these reasons at Appendix A.

83In particular, police were able to obtain significant confirmation of the information that Mr. Loder was trafficking significant quantities of a controlled substance. This confirmation included the following:

• On December 1, 2010, Mr. Loder was convicted of a number of drug and firearm charges, including two counts of possession of a Schedule I substance for the purpose of trafficking. The convictions stemmed from the execution of a search warrant on November 14, 2009 on a stash house operated by Mr. Loder during which the following was found: 1.8 kg of marijuana; 30.93 g of powder cocaine; 68.74 g of crack cocaine; three loaded firearms, ammunition, and cash.

• In the spring of 2022, the “Project Nivel” investigation found drug traffickers, including a person police identified at Devante Moores, were delivering weighted bags/suitcases of cocaine and crystal methamphetamine at the multi-kilogram level to various people. Mr. Loder was observed to meet with Devante Moores on three occasions. On March 30, 2022, Mr. Loder was observed “delivering a weighted green bag to Moores which was consistent with bags used by drug traffickers to conceal and traffic controlled substances. Controlled Drugs and Substances Act search warrants were later executed at an address associated to Moores” and approximately 189 kilograms of cocaine, 97 kilograms of crystal methamphetamine and $49,370 in currency was seized. Loder was not arrested during the investigation.

• On May 24, 2023, police observed Mr. Loder meet with Camron Longmore and Shane Smith-Thomas for three minutes.

• On June 20, 2023, police observed Longmore and Smith-Thomas engage in activity police believed to be consistent with high-level drug trafficking, including engaging in “trunk to trunk” meets followed by quick stops. They had also watched Longmore provide an unknown man with two large black bins with yellow lids (too big for both bins to fit in the trunk of the unknown man’s Lexus). Based on other recent investigations, police had seen these same kind of bins being used to transfer large amounts of controlled substances (during a search executed on January 17, 2023 in a different investigation they were found to contain over 300 kg of crystal methamphetamine).

• On August 3, 2023, police observed Mr. Loder retrieve items, including a black bin with a yellow lid, from 9 Caseley Way in Unionville. He then met with Camron Longmore and Shane Smith‑Thomas for three minutes at the rear of a PetSmart at 12 William Kitchen Road in Scarborough. They all reverse parked in spots along a fence, Longmore and Shane-Smith in separate vehicles on either side of Mr. Loder. Mr. Loder was observed transferring a bin with yellow lid from the front passenger side of his black Acura RDX (CTTP 908) to the trunks of the other cars. Longmore and Shane-Smith were observed “moving heavily weighted items from the black Acura RDX to [Longmore’s vehicle].”

84Defence counsel observes that Mr. Loder’s criminal record is both significantly dated and related to significantly smaller amounts of controlled substances so was not able to provide much if any confirmation that Mr. Loder was trafficking large amounts of cocaine. The information about Mr. Loder’s related criminal record is a one piece of information to be considered in the totality of all the information put before the authorizing justice. In this context, it was able to provide some confirmation of the CHS, and it was open to the authorizing justice to consider it as such.

85When I consider the information contained in the redacted ITO as a whole, as I must, I am satisfied that the authorizing justice had the information required to carefully scrutinize the credibility of the CHS. While full information about the CHS was redacted (Appendix X), the nature of the information that had been provided was summarized to a significant degree. The redacted warrant noted that Appendix X included information about the CHS’s background and history (including criminal record if any, and specific history as a source if any); when and how the CHS learned the information they provided; and the motivation for providing it.

86More importantly, the ITO outlined significant police investigative steps, including a significant amount of surveillance, which provided confirmation of the information provided by the CHS, especially the essential information about trafficking in large quantities of a controlled substance. In short, there was ample basis on which the authorizing justice could issue all the authorizations requested on the higher standard of reasonable probable grounds. The reasonable suspicion standard for the tracking warrant was met in spades.

Did the affiant seek to intentionally mislead the authorizing justice such that the ITO should be set aside?

87Defence counsel skillfully argues that even if the ITO provided a sufficient basis for the authorization of the tracking warrant, the affiant intentionally mis-lead the authorizing justice about the strength of the grounds relating to Mr. Loder such that the authorization should be set aside as an abuse of process (by sub-verting the pre-authorization process). Defence counsel did not make a sub-facial challenge to the ITO, or call any evidence. The challenge is based on the way the ITO is written.

88Defence counsel acknowledges that the affiant accurately described the police surveillance he relied on. The complaint is that he deliberately over-stated its significance. Specifically, Mr. Loder was only ever observed transferring one black bin with a yellow lid – the August 3 surveillance where he met Longmore and Smith-Thomas at the back of a PetSmart and was seen taking such a bin from the front seat of his vehicle to the trunk area of the Longmore and Smith‑Thomas vehicles. Despite this, the affiant repeatedly describes his observations relating to Mr. Loder as involving “bags/bins” transfers, bins in plural (see pages 51 and 73). This is wrong and misleading, especially in the context of a lengthy ITO involving multiple suspects and multiple observations, only a relatively small number of which specifically relate to Mr. Loder.

89I do not accept that there is anything misleading about way the ITO was drafted. In the body of the ITO, the affiant distinguished his summary of police observations from the significance he placed on them. The observations or information obtained were described in regular font. Any particular significance the affiant placed on an observation or information was put in italics. There is no suggestion that the actual descriptions are anything but scrupulously accurate. They had to be extensive, and had to include other people, and other observations, so that the potential significance of Mr. Loder’s actions could be conveyed to the authorizing justice. At the end of the day, it was for the authorizing justice to consider all the information in its entirety and determine whether the inferences asserted by police were reasonable. The ITO put her in a position to do just that.

90In any event, when I read the impugned sections in context (pages 51 and 73) I do not think they are misleading. In this regard, it is important to remember Justice Doherty’s caution that an ITO must be read as a whole in a common sense manner and having regard to its author. Police officers are not wordsmiths and the ITO is not to be parsed as though produced by a meticulous solicitor: R. v. Green, 2015 ONCA 579 at para. 18

91In para. 70 e) at p.51, the affiant described his observations of Mr. Loder’s meeting with Longmore and Smith-Thomas on August 3 behind PetSmart. Again, there is no suggestion that the actual description of the meeting is anything but scrupulously accurate. The affiant then explained, in italics, “I believe the bags/bins transferred between the three vehicles contained controlled substances….TDS-MPS have seized similar bags in recent drug investigations that contained large quantities of controlled substances. These bags all appear to be heavily weighted.” While it is true that an “s” should not have been added to the word “bin”, this was clear from the accurately described observation. And multiple bags were seen transferred, which is what the affiant focuses on in his italicized comment.

92In para. 97 at p.73, in the context of summarizing his grounds relating to Mr. Loder, the affiant summarizes why he believes his observations of “meetings” during which “bags and/or bins” were transferred are significant, explaining that in his experience “mid-to-high level drug traffickers rely on bags and/or bins, such as the bags/bins mentioned in the following paragraphs, to move/traffic large amounts of illicit substances….often exchanging the bags and/or bins as a whole….often…trunk to trunk… ” The affiant uses identical language when summarizing his grounds relating to Smith-Thomas (at p.76) and Longmore (at p.80). While it is true that there was only one meeting in Mr. Loder’s case, where only one bin with yellow lid was observed, among other heavy items, read in context I do not believe the use of the plural tense is misleading. It is apparent that the affiant is describing in general terms why he thinks the police observations were significant. When he goes on to summarize what those observations were in relation to Mr. Loder, his description is scrupulously accurate, and repeatedly refers to seeing Mr. Loder with a single bin with a yellow lid. The affiant begins with the police observations of Mr. Loder after leaving 9 Caseley on August 3 for the PetSmart meeting, repeating what he summarized earlier:

The black Acura RDX (CTTP 908) now contained several large items that were above the window line including a storage bin with a yellow lid. Officers noted that the interior car was loaded with items obstructing the rear-view window. I believe the items including the bin with the yellow lid contained controlled substances….

93At PetSmart, the affiant repeats the accurate description of the meeting he gave earlier, which included:

Smith-Thomas and Longmore then exited their vehicles and began moving heavily weighted items from the black Acura RDX to the Chevrolet Tahoe [Longmore’s vehicle]. Loder removed a bin with yellow lid from the front passenger side of the black Acura RDX (CTTP 908) and took it over to the trunk area of the parked vehicles….

94In sum, when I read the ITO as a whole, as I must, I do not find anything misleading about the affiant’s use of the plural tense in relation to the observations of Mr. Loder with “bags/bins”.

95It follows that there is no merit to the argument that the affiant sub-verted the prior judicial authorization process by intentionally misleading the authorizing justice. There is simply no evidence to support this submission.

96The authorization for a tracking warrant is valid. I see no breach of s.8.

In the alternative, should the observations be excluded under s.24(2)?

97Notwithstanding Ms. Kushnir’s skilled argument, in the event I am wrong in finding no s.8 violation, I would not exclude the observations police made of Mr. Loder on August 21, 2023.

98There is no issue that the “obtained in a manner” threshold in s.24(2) is engaged in this case. There is a causal, temporal, and contextual connection between the tracking warrant, and any Charter breach involved in obtaining it, and the observations police made of Mr. Loder on August 21, 2023.

99While the Crown conceded that the “obtained in a manner” threshold for s.24(2) was met, the Crown disagreed that the police would not have made their observations of Mr. Loder on August 21, 2023 “but for” the tracking data. Ms. Kushnir argued that the police begin surveillance of Mr. Loder on August 21 via the tracking data, and would not have made their crucial observations of what police assert was trafficking without reliance on the tracking data. The Crown does not dispute that police relied on the tracking data to find Mr. Loder on August 21, 2023, but does not agree that police would not have found him and made their crucial observations “but for” the tracking data. The Crown notes that the crucial observations of Mr. Loder providing three black bins with yellow lids to Mr. Longmore occurred at Kennedy Commons plaza, in public, during daylight. Police had previously observed Mr. Loder engaged in what they believed to be the same level of trafficking at this same location on August 3, 2023. Further, prior to getting the tracking warrant, police had been able to find Mr. Loder by going to places they associated him with, such as the addressed near Fort York Boulevard and 9 Caseley.

100I do not believe I need to solve the “but for” issue. As noted, there is no issue that s.24(2) is engaged. I also accept that there is a causal connection between the tracking data and the police observations. This is important in so far as the absence of a causal connection can diminish the effect of a breach on an accused’s Charter protected interests. However, given that the crucial observations occurred in a location which police believed Mr. Loder used on August 3 to traffic, I do not believe I can make a positive finding that the observations would not have occurred “but for” the tracking data.

101Even if I could, I do not believe I should try to solve the “but for” issue. I believe Grant came about at least in part to avoid both the complexity and “bright line” effect that a “but for” approach had introduced into the s.24(2) jurisprudence. In any event, I focus on the elements of the Grant test.

102Beginning with the seriousness of the state misconduct, regarding sufficiency, if the police missed it was not by much. Indeed, as I have explained above, I believe the information in support of a reasonable suspicion that tracking data in relation to Mr. Loder “will assist in the investigation” was overwhelming.

103Turning to the Paryniuk argument, if I am wrong about my analysis on s.8, and the affiant did subvert the warrant process, there is no suggestion that the police officers making the actual observations on August 21, 2025 were tainted in any way by any misconduct on the part of the affiant. At the time the surveillance team relied on data obtained from the tracking warrant, the tracking warrant was presumptively valid. The data was reliable. There is no evidence before me calling into question the reliability or credibility of the police observations. All the police conduct must be considered in assessing the seriousness of the state misconduct. While a deliberate subversion of the prior judicial authorization falls near the most serious end of the spectrum of misconduct, the absence of any misconduct on the part of the officers making the observations does not even register on the spectrum of misconduct. Considered in totality, I place the misconduct somewhere in the middle of the spectrum of misconduct.

104With respect to the effect of the state misconduct on Mr. Loder’s Charter protected interests, I agree with the Crown that, in the particular circumstances of this case, Mr. Loder’s REP in the movements of his car was diminished. It is well established that there is a reduced expectation of privacy in a car (see R. v. Tim, 2022 SCC 12 at para. 93 and the cases cited), and in the movements of a car in public (see R. v. Wise, 1992 CanLII 125 (SCC), [1992] 1 SCR 527). Further, there was information to suggest that this particular car was being expressly used for the purpose of drug trafficking. Mr. Loder had an identical make, model and colour car registered as the car associated with the parking spot of his unit near Fort York Boulevard. The identical looking car police tracked was registered in the name of a person police could not find in the MTO or Versadex databases. In the circumstances, there was a reasonable basis to believe Mr. Loder was using the car to traffic drugs. I accept the Crown analogy to a reduced expectation of privacy in a home used for a meth lab. I find that the second branch pulls only weakly toward exclusion.

105I accept the defence submission that the police observations at issue are different from real evidence like cocaine, but I am also mindful that the defence bears the onus to exclude evidence under s.24(2). There is nothing to suggest that the police observations are unreliable or suspect in any way. They were made by a team being overseen by Detectives Backus and Teixeira. Both detectives testified in response to Mr. Sherritt’s application, and I found both to be credible and reliable. Indeed, there was no challenge to their credibility or reliability. Mr. Loder did not testify or call any evidence on the application. In short, while I accept the potential in theory for a challenge to the police observations, there has been none, at least at this point in the proceedings. Nor has anything been put before me to question the reliability or credibility of the police observations.

106Exclusion of the police observations would gut the trafficking count. While in theory the conspiracy count would remain live, I accept the Crown submission that the trafficking count is an extremely important part of proving the conspiracy count. Huge amounts of drugs were involved – 90 kg of cocaine in relation to the observations on August 21 alone.

107In sum, I find the police observations reliable and essential to proving very serious offences. I find the third branch pulls strongly in favour of admission.

108When I consider all three branches cumulatively and as a whole, I am satisfied that the police observations should be admitted. More specifically, I find that the cumulative weight of the first two lines of inquiry is overwhelmed by a compelling public interest in admitting the police observations. The admission of justice will not be brought into disrepute by their admission.

G. Roberts J.

APPENDIX A – CORROBORTION CHART FOR AUGUST 14/23 TRACKING WARRANT

Source Information

Corroboration

Reference in ITO

Loder trafficking controlled substances at the multi kilogram level (p. 11, 71)

Loder conviction for P4P and firearms in 2010 – 1.8kg marihuana, 68g cocaine, three loaded firearms and $ (CPIC)

Loder observed in bag/bin exchanges during surveillance

Observed in prior drug investigation (Nivel) – meeting with target on three occasions incl. one where Loder delivered weighted bag. 189kg cocaine and 97kg meth seized.

p. 11-12, para 40a

p. 62-63

p. 12, para 40a

p. 15, para 41

Description as male, white, 5’9-5’10’’ tall, bald with a beard (p. 12, 71)

MTO database listed as 5’8, white male, bald with a beard

Loder identified by officers from this MTO photo

MTO info = 5’9

MTO photo

CPIC = 5’9

p. 12-13

p. 29

p.60

p. 61

p. 62

Utilizing new model black Acura RDX with license CTTP098 to deliver controlled substances (p. 13, 71)

Vehicle registered to person not found in MTO or Versadex database

Loder has registered 2020 Acura RDX with different license

Loder observed driving vehicle on multiple occasions

April 10, 11 CCTV

May 30

August 2

August 3

August 5 – attends 9 Caseley for 2 brief 1 min visits

Aug 3 surveillance – leave Queen Wharf- went to pick up items from 9 Caseley then deliver to Smith Thomas and Longmore then back to 9 Caseley (incl black/yellow bin – Cerro)

Smith-Thomas convicted drug trafficker

Smith-Thomas and Longmore multiple occasions

May 24 – meet with Loder for 3 minutes

June 19

June 20

Aug 3

p. 13, para 40c

p. 31, p. 61

P. 13, para 40c

p. 16-18, para 44

p. 29

p. 48-49

p. 49-49

p. 60

p. 49-56

p. 65-66

p. 27-28

p. 31-35

p. 35-44

p. 49-59

Lives or has a stash house in the area of Fort York Boulevard and Bathurst Street (p. 13, 71)

TCHC records list Loder as being the tenant of 406-125 Queens Wharf Road (proximate to intersection)

Loder observed attending parking garage of 406 – 125 Queens Wharf Road on May 30

Loder observed attending his vehicle parked in area of Housey St and Queens Wharf on:

August 2

August 3

Loder had a black Acura RDX (CXAK 674) registered to him that was assigned to 406 – 125 Queens Wharf Road

MTO records list Loder’s address as 406-125 Queens Wharf Road

p. 13-14

p. 30

p. 14

p. 48

p. 49

p. 31

p. 61

p. 60

CITATION: R. v. Loder and Sherritt, 2025 ONSC 3618