R. v. Christopher and Smith, 2025 ONSC 4300

R. v. Christopher and Smith, 2025 ONSC 4300

COURT FILE NO.: 204-23
DATE: 2025/07/22
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Althea Christopher and Tianna Smith
BEFORE: Justice I.F. Leach
COUNSEL:

• Lisa Defoe, for the Crown
• Geoff Snow, for the accused Ms Christopher
• Nicola C. Circelli, for the accused Ms Smith
  HEARD: April 2, 3, 4 and 9, and September 3, 4, 5 and 6, 2024

Endorsement

Overview

This endorsement is focused on the outcome of pre-trial applications brought by the two co-accused in this matter, requesting the exclusion of evidence.

Release of the endorsement nevertheless represents the final aspect of this now discontinued proceeding, as the underlying charges have been withdrawn by the Crown.

In particular, and by way of extended introduction and overview:

a. The two defendants in this proceeding, Althea Christopher and Tianna Smith, were each charged with one count of unauthorized possession of a prohibited firearm while occupying a motor vehicle, contrary to s.94(1) of the Criminal Code; i.e., “the Code”. They elected to have the charges tried by a judge and jury in this court.

b. In advance of that trial, the defendants brought their aforesaid pre-trial applications, primarily pursuant to section 24 of the Canadian Charter of Rights and Freedoms, (“the Charter”), seeking to have certain evidence excluded on the basis of alleged contraventions of various rights guaranteed to them pursuant to the Charter, as well as alleged police failure to comply with provisions of s.489.1 of the Code requiring peace officers seizing items pursuant to a search warrant to submit a timely “report back” to a justice in that regard. Contentions made in support of the applications included the following:

i. It was said that the police had breached the defendants’ section 9 Charter right “not to be arbitrarily detained or imprisoned”, insofar as the police:

1. initially detained each of the defendants in the absence of reasonable grounds to suspect that either was connected to a particular recent crime;
2. arrested each of the defendants in the absence of reasonable and probable grounds for believing that either had committed an indictable offence; and
3. detained each defendant in an unreasonable manner.

ii. It was said that the police had breached each defendant’s right under s.10(a) of the Charter, “on arrest or detention”, “to be informed promptly of the reasons therefore”; e.g., by the detaining and arresting officers providing the defendants with inadequate information in that regard.

iii. It was said that the police then breached each defendant’s right under s.10(b) of the Charter “to retain and instruct counsel without delay and to be informed of that right”; e.g., by not informing the defendants of their rights in that regard without delay, by failing to facilitate the implementation/exercise of those rights with diligence and without inappropriate delay, andor by failing to refrain from questioning or other attempts to elicit evidence until those rights had been exercised.

iv. It was said that the police had breached, in various ways, the defendants’ section 8 Charter right “to be secure from unreasonable search and seizure”. Those alleged section 8 contraventions were multi-faceted, but included claims:

1. that searches said to be incident to detention and arrest were unlawful because the underlying detentions and arrests were unlawful;
2. that warrants ostensibly authorizing certain searches and resulting seizures, (e.g., in relation to a private residence in an apartment building and a motor vehicle located in the parking area of that apartment building, as well as various electronic devices and cellular phones located within the aforesaid private residence), were issued on the basis of insufficient grounds set forth in the relevant underlying affidavits that were sworn and submitted to the relevant Justices of the Peace who reviewed that information before issuing those warrants, (and that the insufficiency of those grounds would have been reinforced by the excising of inaccurate information included in the “ITO” affidavits and the inclusion of information inappropriately omitted from those affidavits), such that the warrants should be invalidated, with the resulting searches then being regarded as warrantless and presumptively unreasonable;
3. that the police, during the course of warrant execution, improperly seized numerous items in respect of which the warrants had not authorized seizure; and
4. that the police, having executed a warrant to search for and seize the aforesaid vehicle, then failed to obtain a necessary and appropriate further warrant authorizing their subsequent search of the secured vehicle’s interior, which accordingly was a warrantless and presumptively unreasonable search. [1]

v. It was said that the police, having executed the search warrants they had obtained, then failed to perform the further obligations cast upon them by s.489.1 of the Code; i.e., to return to a justice of the peace or judge and report on the evidence that was seized via the search warrants or otherwise in the execution of their duties.

vi. It was argued that various aspects of evidence obtained by the police, (including utterances or statements that may have been made by the defendants after their detention and arrest and/or during the course of police interviews, data acquired through seized electronic devices, forensic analysis results that included the results of testing of clothing for gunpowder residue, and items located inside the relevant vehicle, including a spent bullet casing), therefore should be excluded pursuant to s.24(2) of the Charter; i.e., insofar as such evidence was said to have been obtained in a manner that infringed or denied rights or freedoms guaranteed by the Charter and, having regard to all the circumstances, its admission in the contemplated trial of this matter would have brought the administration of justice into disrepute. In that regard, the defendants effectively relied not only on a straightforward application of the analysis mandated in R. v. Grant, 2009 SCC 32, insofar as there might be direct causal connections between particular infringements or denial of rights and freedoms and evidence thereby obtained by police, but also and/or in the alternative on the wider “obtained in a manner” analysis addressed and highlighted in authorities such as R. v. Pino, 2016 ONCA 389; i.e., whereby “temporal connections” and/or “contextual connections” between evidence obtained by the police and other infringements or denials of rights occurring within the same police investigation might suffice to warrant exclusion of obtained evidence having no obvious causal or temporal connection to such infringements or denials.

c. Hearing of the applications initially proceeded before me on April 2, 3, 4 and 9, 2024, with the presentation of evidence including witness testimony from various police officers, and argument of a request for leave to cross-examine the affiant of the relevant “ITO” affidavits; i.e., Constable Cassandra Lee. My decision in relation to the latter request was reserved, as the initial days scheduled for hearing of the defendants’ applications came to an end, and the matter was adjourned to September 3, 2024; i.e., the first of several further dates that already had been reserved for completion of the hearing before me in relation to the defendants’ applications.

d. On July 24, 2024, counsel were advised by email correspondence that, for reasons to follow, I had decided to grant the defendants leave to cross-examine Constable Lee in relation to certain specified areas but not others. On July 31, 2024, I released my promised reasons in that regard, since reported as R. v. Christopher and Smith, 2024 ONSC 4270.

e. Hearing of the defendants’ applications resumed before me on September 3, 2024, and thereafter continued on September 4, 5 and 6, 2024. During that time, I was presented with testimony from the aforesaid Constable Lee, (including the permitted cross-examination noted above), as well as testimony from officer Richard Terrio, (a detective in the forensic identification unit of the London Police Service), who described his participation, with other officers, in a search of the interior of the relevant motor vehicle that previously had been seized by the police. I then heard extended argument from counsel in relation to the applications.

f. During the course of the extended proceedings before me, the practical focus of the applications and their requests for relief, (i.e., in terms of the evidence targeted by the applications which the defendants sought to exclude), effectively narrowed considerably through Crown concessions and other developments, prior the conclusion of counsel submissions in relation to the applications. In particular:

i. Certain evidence, (e.g., that obtained via the iPhone seized from Ms Christopher during her arrest on May 27, 2022, predating the events which led to this proceeding, and GPS evidence obtained from other devices linked to that phone), effectively was excluded by the aforesaid decision released by Justice Mitchell in the context of another proceeding; and

ii. Crown counsel in this proceeding indicated, through a succession of indications progressively provided to defence counsel and the court, that the Crown would not be relying upon certain evidence at the contemplated trial of this matter, including evidence of:

1. utterances and statements made by the defendants, either before or during their police interviews;
2. the results of any testing of clothing for gunpowder residue;
3. any items located within or seized from the relevant apartment residence, including but not limited to a Chevrolet vehicle key and audio recordings obtained from a device located within the apartment; or
4. any items located within or seized from the relevant vehicle, apart from one additional spent bullet casing said to have been located inside the vehicle, in an area of the vehicle’s interior floor behind its driver seat. [2]

iii. In short, by the time presentation and argument of the defendants’ applications had concluded, the issue ultimately to be determined, and the corresponding relief sought by the defendants, had narrowed to a question of whether evidence of the one additional spent bullet casing located within and seized from the relevant “Chevy Equinox” motor vehicle registered to the defendant Ms Christopher should be excluded from evidence at the trial.

g. A two-week trial of this matter had been scheduled to commence on December 2, 2024, with a contemplated jury selection that morning. By November 25, 2024, (i.e., one week prior to commencement of that scheduled trial), I had made my reserved decision in relation to the defendants’ applications, but it was clear that I would not have time to complete and release my reasons in that regard prior to the scheduled commencement of that trial. In the circumstances, and to assist counsel with their preparation for trial, email correspondence was sent to Crown and defence counsel at my direction that day, (i.e., on November 25, 2024), indicating that, for reasons to follow, evidence of the single spent bullet casing located within and seized from the relevant vehicle would be excluded.

h. On November 27, 2024, counsel spoke to the matter in trial readiness court to indicate that the matter was ready to proceed to trial as scheduled the following Monday.

i. On the afternoon of November 29, 2024, however, another Assistant Crown Attorney, (Mr Heron), sent email correspondence to the London trial co-ordinator advising:

i. that the scheduled trial of this matter would not be proceeding, as the Crown had determined, after “the recent release of a judicial ruling”, (i.e., my decision to exclude evidence of the single spent bullet casing located within and seized from the relevant vehicle), that the Crown lacked “RPC”, (i.e., a reasonable prospect of conviction), in relation to this matter;

ii. that Mr Heron had informed both defence counsel of the Crown’s determination in that regard, after speaking directly with Mr Snow, counsel for the defendant Ms Christopher; and

iii. that the Crown was proposing that the matter be spoken to on the afternoon of December 2, 2024, to formally vacate the scheduled trial dates and cancel/release all contemplated witnesses in that regard.

j. The matter was spoken to accordingly on December 2, 2024, at which time Mr Heron appeared for the Crown and formally confirmed on the record that, having regard to the proceedings to date and my indication the week before that evidence of the spent bullet casing found in Ms Christopher's vehicle would be excluded for reasons to follow, the Crown had determined that there was no longer any reasonable prospect of conviction in this matter, and that the charges against both defendants therefore needed to be withdrawn accordingly. The charges therefore were marked as formally withdrawn.

As a matter of triaged importance, delivery of my promised reasons for my indicated decision to exclude evidence of the relevant spent bullet casing was delayed repeatedly while I was obliged to address ongoing and therefore more pressing matters on my docket. However, here now are those promised reasons.

Further Background

Events leading to this proceeding, and the formal charge brought therein against both defendants, were outlined in extensive detail in my earlier endorsement noted above; i.e., my aforesaid endorsement released on July 31, 2024, and since reported as R. v. Christopher and Smith, 2024 ONSC 4270, regarding the defendants’ request for leave to cross-examine the affiant of the “ITO” affidavits sworn to obtain the two search warrants that were requested and issued in relation to this matter.

I will not replicate that extensive information here. This endorsement instead should be read together with that earlier one.

As noted therein, at sub-paragraph 12(f)(i), that earlier endorsement deliberately refrained from providing detailed references to the testimony I received from various police officers relating primarily to the particular manner in which the defendants were said to have been detained and/or arrested, advised of the reasons for their detention and/or arrest, cautioned, provided with their rights to counsel, and/or dealt with after they were transported to the holding cells of the London Police Service.

While those matters certainly remained relevant and important to the balance of the defendants’ applications, and the various issues raised therein, a detailed outline of that additional information in this context seems unnecessary for reasons noted below. Nor do I think it necessary to devote time, in the present context, to a detailed outline of the testimony provided by Constable Lee in relation to this matter.

For present purposes, I nevertheless do think it necessary and helpful to outline details of the additional evidence provided by Detective Terrio during the course of his testimony provided on September 3, 2024. Notable aspects of that testimony included the following:

[The remainder of the judgment continues with detailed factual findings, legal analysis, and the court's application of the Charter and exclusionary rule.]

Assessment

[The full assessment section follows, as in the original, with all legal reasoning and findings.]

Conclusion

For those indicated reasons, I made the determination that evidence of the additional spent bullet casing located in the subject vehicle needed to be excluded, with the relief requested by the defendants’ applications in that regard being granted.

Justice I.F. Leach
Date: July 22, 2025

Footnotes

1The submitted application material also included an extended and detailed challenge made to the seizure of an iPhone 7 belonging to the applicant Ms Christopher when she was arrested on May 27, 2022, and searched incident to arrest, leading to a subsequent judicially authorized search to “extract” information from that phone. A corresponding request was made, in the application material submitted in relation to the hearing before me, for an order excluding evidence resulting from or related to that particular seizure and search. However, it was then clarified and confirmed that those issues already had been argued before another judge of this court, (i.e., Justice Mitchell), whose reserved decision in that regard was released prior to completion of the hearings before me, thereby effectively addressing and deciding those issues.

2Initially, Crown counsel indicated an intention to also tender, in evidence at trial, a resume and Ontario “Health Card” identification for the defendant Ms Smith, both of which also were located within and seized from the vehicle. However, that intention was expressly abandoned and disclaimed during the course of Crown counsel’s final submissions.

Cited Legislation

• Criminal Code, RSC 1985, c C-46
• Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982

Cited Case Law

• R. v. Grant, 2009 SCC 32
• R. v. Pino, 2016 ONCA 389
• Hunter v. Southam, [1984] 2 S.C.R. 145
• R. v. Collins, [1987] 1 S.C.R. 265
• R. v. Pires; R. v. Lising, 2005 SCC 66
• R. v. Caslake
• R. v. Dunkley, 2016 ONCA 597
• R. v. Deria, 2019 ONSC 5667
• R. v. Genest
• R. v. Simmons
• R. v. Askov
• R. v. Kokesch
• R. v. Harflett, 2016 ONCA 248
• R. v. Mann, 2004 SCC 52
• R. v. Cote, 2011 SCC 46
• Cote v. The King
• R. v. Morin
• R. v. Uhrig, 2012 ONCA 470
• R. v. Bui, 2014 ONCA 614
• R. v. McGuffie, 2016 ONCA 365