Court File and Parties
Court File No.: CR-24-310 Date: 2025-10-17
Ontario Superior Court of Justice
Between:
His Majesty the King R. Tremblay, for the Crown
- and -
Parth Patel A.M. Morphew, for the Applicant
Heard: August 6, 2025
Section 8 Charter Motion
Before: Mirza J.
Overview
[1] The Applicant stands charged with trafficking cocaine to an undercover police officer on March 14, 2022.
[2] He is also charged with possession of cocaine for the purpose of trafficking; possession of proceeds of crime under $5,000; unlawful possession of a 9mm Glock handgun (contrary to ss. 91, 92, 95); careless storage of a handgun; and unlawful possession of prohibited ammunition. These charges arise from the execution of the search warrants at the Applicant's residence. The firearm related offences are the result of a conceded warrantless search of a storage locker in the apartment building.
[3] The Applicant has brought a s. 8 Charter application challenging the issuance of search warrants for the residence and two vehicles.
[4] The Applicant also alleges that the search of the storage locker was warrantless and unauthorized. The search warrant for the residence did not specify that the storage locker was an authorized place to be searched. The Crown concedes this point.
[5] The parties did not call evidence on this motion.
[6] They argued their positions based on written applications and oral submissions. It was agreed that the court would rely on the submitted records to understand the background facts.
[7] This is a facial validity warrant challenge. The Applicant did not seek leave to cross-examine the affiant. There was no challenge to the information relied upon by the police from a carded confidential informant (CI), and no step 6 application was brought. The information to obtain (ITO) and the affiant's grounds are being challenged. However, the information contained in the ITO is not alleged to be misleading or false.
[8] For the reasons that follow, the Charter motion is granted in part and dismissed in part.
[9] It is granted in part because I find that the evidence obtained from the warrantless search of the storage locker was unlawfully obtained based on a s. 8 Charter breach and the evidence is excluded pursuant to s. 24(2).
[10] It is dismissed in part because I find that there is no s. 8 Charter breach in relation to the authorized searches at the residence and two vehicles and therefore the items seized at those places are admissible.
Summary of the Evidence
[11] The three search warrants under review were obtained on September 22, 2022. They authorized searches of three locations where it was believed that the items sought in relation to the March 14, 2022, cocaine trafficking would be located at: (1) 192-2001 Bonnymede Dr, Mississauga; (2) a 2017 white Honda Civic with Ontario license plate BWDB427; and (3) a 2017 black Mercedes-Benz with Ontario license plate CVWM858.
[12] All three warrants have a common ITO. Appendix A lists the following items to be searched for:
- Controlled drugs, namely cocaine;
- Electronic or weight calibrated scales;
- Packaging relating to sale/distribution of drugs;
- Money deemed to be proceeds of crime relating to sale of drugs;
- Records of bookkeeping notes or documents pertaining to the sale of drugs;
- Cellular telephones or electronic communication devices;
- Identification or documents related to the true identity of Parth Patel;
- Documents or written material relating to the control, possession, tenancy or ownership of:
- a. 192-2001 Bonnymede Dr. Mississauga and associated storage locker;
- b. 2017 Mercedes-Benz, black in colour, with Ontario plate CVWM858;
- c. 2017 Honda Civic, white in colour, with Ontario plate BWDB427.
[13] Below I will summarize the affiant's grounds as explained in the ITO.
[14] At the beginning of 2022, the police obtained information from a CI pertaining to a drug trafficker identified as the Applicant, Parth Patel.
[15] On March 14, 2022, a Toronto Police Service (TPS) undercover officer, later identified as PC Pinto, purchased cocaine from the Applicant for $240 at an address in Mississauga, while the Applicant was in a white Honda Civic with a license plate ending in 427. To arrange the deal, the undercover officer used a phone number provided by the CI.
[16] The Applicant instructed the undercover officer to meet later that evening at 4070 Living Arts Way, Mississauga. The undercover officer attended the mall where he was directed to meet the Applicant at his vehicle, a 2017 white Honda Civic with license plate BWDB427. The undercover officer approached the front window of the vehicle and purchased cocaine from the Applicant for $240. The Applicant told PC Pinto that he could supply him with additional quantities of cocaine in the future if he desired. As a result of this transaction, the Applicant is charged with trafficking cocaine on March 14, 2022 (count 1). However, the Applicant was not arrested at that time.
[17] The white Honda Civic was registered to Armando Moco, with an address in Fergus, Ontario. Ministry of Transportation records indicated that the Applicant resided at 7379 Davemark Court, Mississauga.
[18] On April 13, 2022, the undercover officer made a subsequent effort using the same phone number to arrange to buy more drugs from the Applicant. This attempt was unsuccessful because the Applicant stated to the undercover that he did not know him or who he was and refused to sell him more cocaine.
[19] In April 2022, on a date redacted in the ITO, police received another tip from a CI, which ultimately led them to believe that the Applicant was residing at 25 Webb Drive in Mississauga. They determined that address did not exist and it was likely 225 Webb Drive. The police attended that address and confirmed that the accused lived there but learned that he was in the process of moving out. At the time, the investigation did not reveal where he moved to.
[20] On April 26, 2022, police attended the building at Webb Drive and observed the white Honda Civic parked in the underground garage. During surveillance, they saw the Applicant driving the vehicle.
[21] The police secured an arrest warrant for the Applicant. He remained at large at the time the search warrants were obtained in September.
[22] On August 23, 2022, the United States Department of Homeland Security (DHS) advised TPS Officer Pinto that the Applicant unsuccessfully attempted to cross the border and was detained when DHS observed the warrant for his arrest. DHS conveyed to Officer Pinto that the Applicant was driving a 2017 black Mercedes-Benz with a license plate ending in 858. The Applicant stated that the car belonged to his girlfriend.
[23] While being detained, the Applicant agreed to a search of his cellphone. DHS located several photographs depicting pills, marijuana in vacuum sealed bags, Canadian currency in various denominations, several firearms including handguns and rifles, and text messages containing drug-related language between the Applicant and unknown individuals.
[24] The ITO did not specify the dates on which the photographs and text messages were taken or occurred.
[25] Police were unable to attend at the DHS location on that day to execute the arrest warrant and take custody of the Applicant. He was denied entry into the United States and was released. However, the information provided by DHS resulted in police resuming the investigation into drug trafficking against the Applicant.
[26] Using motor vehicle information provided by DHS, TPS identified the Applicant's current residential address as 192-2001 Bonnymede Drive, Mississauga.
[27] Police determined that the Mercedes-Benz vehicle used by the Applicant was registered to Sarah Moco, believed to be the Applicant's girlfriend, who resided at that same Mississauga address.
[28] On September 8, 2022, DHS emailed photographs of the cellphone contents to the TPS officer investigating the Applicant.
[29] On August 29, August 30, September 9, and September 20, 2022, the police conducted further surveillance on the Applicant: see paras. 51 to 54 of the ITO.
[30] On September 9 and 20, the Applicant was observed engaging in brief interactions with individuals, which were relied upon to advance a reasonable inference of his continued involvement in drug trafficking.
[31] For example, para. 53 of the ITO explains an incident on September 9 that is consistent with a drug transaction:
d. At approximately 3:57 pm, PATEL was seen entering the driver seat of the white Honda Civic (BWDB427). PATEL left the underground driving said vehicle. He was followed into the parking lot of a Canadian Tire located at 900 Southdown Road, Mississauga, ON. At this location, PATEL parked his vehicle. PATEL exited his vehicle and was seen greeting (hand shake) an unknown male who was driving a grey Jeep (CWRJ090). Said unknown male was described as light complexion, thin build, grey sweater, grey pants and sunglasses. Shortly after both PATEL and the unknown male returned to their respective vehicles and exited the parking lot.
e. At approximately 4:01 pm, PATEL driving the white Honda Civic (BWDB427) and the grey Jeep (CWRJ090) were seen entering the parking lot of a Royal Bank of Canada (RBC) located at 1730 Lakeshore Road West, Mississauga. PATEL parked his vehicle beside the grey Jeep (CWRJQ90). At this time the unknown male exited his Jeep and entered the RBC bank. PATEL remained in his vehicle.
f. At approximately 4:03 pm, the unknown male exited the RBC bank with his left hand in his sweater pocket and entered the front passenger seat of the white Honda Civic (BWDB427), PATEL was still sitting in the driver seat.
g. At approximately 4:07 pm, the unknown male exited PATEL's vehicle carrying a rectangular black package in his left hand. This male entered the driver seat of the grey Jeep. Both PATEL and the unknown male driving the grey jeep exited the parking lot.
h. PATEL was followed to the above parking lot at 2001 Bonnymede Dr. Mississauga where he remained for a few minutes before entering the underground parking lot of said building.
[32] Paragraph 54 of the ITO also explains a short-term meeting of about three minutes between the Applicant, while in the black Mercedes-Benz, with two individuals at a Burger King in Oakville on September 20. The Applicant parked next to a Toyota, and two individuals got into the Applicant's Mercedes-Benz, one in the driver's seat and one in the back seat.
[33] I pause to note that I acknowledge that there was no hand-to-hand transaction observed and that there may be other reasonable inferences. However, in the context of a warrant application, this surveillance forms part of the totality of information supporting reasonable grounds to believe the black Mercedes-Benz was being used by the Applicant for drug trafficking activity.
[34] I am satisfied that, factoring the combined surveillance, the police observed the Applicant and Sarah Moco at the Bonnymede building and also observed them accessing both the Honda and Mercedes-Benz vehicles in the parking lot.
[35] For example, on August 30, during the course of surveillance that day, the Applicant and his girlfriend were observed driving the black Mercedes-Benz. The police also noted a buzzer code of 300 associated with Sarah Moco.
[36] On September 9 and 20, the Applicant was seen driving both the white Honda and the black Mercedes-Benz.
[37] On September 9, the affiant met with the building superintendent, who authorized the police to be in the common area.
[38] The police explain their belief about the total activity in the ITO. At para. 68, the affiant stated:
- In order to operate a business, in this case illicit drug trafficking, dealers need to have a supply of product, in this case cocaine, available to them to keep with the demand, just as in a legitimate retail business. I believe PATEL keeps controlled substances on hand to meet the demands of customers. This is corroborated through police surveillance of PATEL and his very brief encounters with unknown persons, just as he did when he sold a quantity of cocaine to the undercover officer in March 2022.
[39] The affiant, Officer Diaz, sought the search warrant in respect of the criminal offences specific to March 14, 2022, of trafficking in a controlled substance contrary to s. 5(1) of the Controlled Drugs and Substances Act (CDSA), and possession of proceeds of crime contrary to s. 354(1) of the Criminal Code. In other words, the affiant did not state that the warrant was being sought to obtain evidence associated with the reasonable inference of continued drug trafficking in September. The affiant explained that conduct to support the grounds for the search for the March offences.
[40] The search warrants for the Mississauga Bonnymede address and two vehicles, in relation to the March 14 offence, were issued on September 22, 2022.
[41] Based on the specific language in the three search warrant orders, none of them indicated that the storage locker was authorized to be searched. The locations to be searched did not state the storage locker associated to the residence.
[42] The ITO did not provide information establishing that the residential unit to be searched had a storage unit. The ITO does not explain at all the basis for any belief that there was a storage locker that existed at the building connected to the unit to be searched (or any other unit). This is despite the police indicating that they spoke to the superintendent to obtain consent to be in the common areas: see ITO at para. 53.
[43] However, in the ITO, the affiant indicates an intention to search the apartment and its associated storage locker. At para. 81, the request is explicit; see also paras. 69, 77, 79.
[44] The searches located 415 grams of cocaine, $3,775 CAD, a digital scale, 58 loose rounds of ammunition, a Glock 45 loaded with 15 rounds of ammunition, and documents in the Applicant's name, including his T4, T4E, insurance benefits plan, record of employment, and others.
[45] At the hearing, I was advised that the firearm and documents were located in the storage locker.
Positions
[46] While conceding for the purposes of the Charter motion that the accused was involved in the sale of drugs to an undercover officer in March 2022, the Applicant submits that the ITO sworn in support of the three search warrants was drafted in a negligent fashion that did not, on its face, provide sufficient reasonable and probable grounds to search the residence and two vehicles. By the time the warrant was obtained, the link between the Applicant and drug trafficking in March was dated and stale, such that it could not reasonably support an inference that the items authorized to be searched for were at the locations to be searched.
[47] The Applicant seeks to exclude the cocaine and currency seized from his residence during the execution of the search warrants. The Applicant submits that the conduct of the police in this case fell well below the expectations placed on the police. However, the Applicant does not submit that the police deliberately misled or were dishonest.
[48] The Applicant submits that the search of a storage locker associated to the Applicant's residence was warrantless and without authorization. The Applicant seeks the exclusion of the firearm and documents found in the storage locker, as they were located during a warrantless search that is not otherwise justified.
[49] The Applicant further submits that the admission of the evidence obtained from the searches would bring the administration of justice into disrepute. The breaches are serious and their impact on the Applicant's rights to privacy and to be free from unreasonable search are significant.
[50] The Crown Respondent submits that when drafting the search warrant, it is clear that the affiant either by mistake did not include the language "and or associated storage locker", or thought the locker was included by necessary implication. Further, the Applicant's recency argument cannot succeed. There was obvious information about recent drug dealing behaviour on the Applicant's phone, further supported by how he was interacting with others while observed under surveillance in September. Although the Applicant's s. 8 Charter rights were breached in relation to the storage locker, all of the evidence obtained should be admitted under s. 24(2).
The Law
CDSA Section Applicable at the Time of the Offence
[51] At the time the warrants were granted, the applicable CDSA section was as follows:
Information for search warrant
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.
Application of section 487.1 of the Criminal Code
(2) For the purposes of subsection (1), an information may be submitted by telephone or other means of telecommunication in accordance with section 487.1 of the Criminal Code, with such modifications as the circumstances require.
Execution in Canada
(3) A warrant issued under subsection (1) may be executed at any place in Canada. Any peace officer who executes the warrant must have authority to act as a peace officer in the place where it is executed.
(4) [Repealed, 2019, c. 25, s. 385]
Search of person and seizure
(5) Where a peace officer who executes a warrant issued under subsection (1) has reasonable grounds to believe that any person found in the place set out in the warrant has on their person any controlled substance, precursor, property or thing set out in the warrant, the peace officer may search the person for the controlled substance, precursor, property or thing and seize it.
Seizure of things not specified
(6) A peace officer who executes a warrant issued under subsection (1) may seize, in addition to the things mentioned in the warrant,
(a) any controlled substance or precursor in respect of which the peace officer believes on reasonable grounds that this Act has been contravened;
(b) any thing that the peace officer believes on reasonable grounds to contain or conceal a controlled substance or precursor referred to in paragraph (a);
(c) any thing that the peace officer believes on reasonable grounds is offence-related property; or
(d) any thing that the peace officer believes on reasonable grounds will afford evidence in respect of an offence under this Act.
Where warrant not necessary
(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.
Seizure of additional things
(8) A peace officer who executes a warrant issued under subsection (1) or exercises powers under subsection (5) or (7) may seize, in addition to the things mentioned in the warrant and in subsection (6), any thing that the peace officer believes on reasonable grounds has been obtained by or used in the commission of an offence or that will afford evidence in respect of an offence.
Section 8 of the Charter
[52] Section 8 of the Charter guarantees "the right to be secure against unreasonable search or seizure". Its principal object is the protection of privacy, or the individual's "right to be left alone": R. v. Edwards, [1996] 1 S.C.R. 128, at para. 67. Personal privacy is vital to individual dignity, autonomy, and personal growth: R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, at para. 38. Its protection is fundamental to a strong and free democracy.
[53] To establish a breach of section 8, a claimant must show there was a search or seizure, and that the search or seizure was unreasonable.
[54] A search occurs where the state intrudes on a reasonable expectation of privacy. An expectation of privacy is reasonable where the public's interest in being left alone by the government outweighs the government's interest in intruding on the individual's privacy to advance its goals, notably those of law enforcement. Courts analyze an expectation of privacy by considering many interrelated but often competing factors, which can be grouped together under four categories: (1) the subject matter of the search; (2) the claimant's interest in the subject matter; (3) the claimant's subjective expectation of privacy; and (4) whether the subjective expectation of privacy was objectively reasonable: R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 18, citing R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 32.
[55] In this case, the Crown accepts that the accused had a reasonable expectation of privacy of varying degrees over the locations, information, and private places searched.
Standard of Review
[56] A search warrant is presumptively valid: see R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 30; R. v. Campbell, 2010 ONCA 588, 261 C.C.C. (3d) 1, at para. 45, aff'd 2011 SCC 32, [2011] 2 S.C.R. 549.
[57] The party challenging the validity of a warrant has the onus of demonstrating it was not validly issued.
[58] The issue on a Garofoli hearing is whether the minimum standard required for authorizing a search and seizure was established in the ITO. The Garofoli procedure allows the accused to challenge whether the affiant has made full, frank disclosure.
[59] In R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, the Supreme Court summarized the review process at paragraphs 40-42:
[40] In reviewing the sufficiency of a warrant application, however, "the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued" (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54 (emphasis in original)). The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.
[41] The reviewing court does not undertake its review solely on the basis of the ITO as it was presented to the Justice. Rather, "the reviewing court must exclude erroneous information" included in the original ITO. Araujo, at para. 58. Furthermore, the reviewing court may have reference to "amplification" evidence — that is, additional evidence presented at the voir dire to correct minor errors in the ITO — so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberate attempts to mislead the authorizing justice.
[42] It is important to reiterate the limited scope of amplification evidence. Amplification evidence is not a means for the police to adduce additional information so as to retroactively authorize a search that was not initially supported by reasonable and probable grounds. The use of amplification evidence cannot in this way be used as "a means of circumventing a prior authorization requirement" (Araujo, at para. 59).
[60] The reviewing judge on a Charter motion considers the ITO as a whole. The review is not a de novo hearing of the ex parte application. The reviewing court does not substitute their own views as to whether they would have issued the warrant: Morelli, at para. 40; R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 1452; R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at para. 20, leave to appeal to SCC refused, [2010] S.C.C.A. No. 84.
[61] Rather they must determine, based on the record that was before the issuing Justice as amplified or edited on review, whether there was sufficient reliable information that could have permitted the issuance of the warrant: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54.
[62] For CDSA search warrants, the legal standard is reasonable and probable grounds to believe that an offence has been committed, and that there is evidence to be found at the place of the search: see Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145, at p. 168; CDSA, s. 11.
[63] In my role as reviewing Judge, the standard is whether there is sufficient credible and reliable evidence to permit the issuing Justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of the search: Morelli, at para. 40.
[64] Reasonable grounds must be based on objective criterion that passes the standard of reasonable or credibly based probability: Hunter, at pp. 167-168.
Facial and Sub-Facial Validity Challenges
[65] A facial validity challenge requires the reviewing judge to examine the ITO and to determine whether, on the face of the information disclosed there, the justice could have issued the warrant: Araujo, at para. 19. The record examined on a facial review is fixed: it is the ITO, not an amplified or enlarged record: Sadikov, at para. 37; Araujo, at paras. 19, 51-56; R. v. Wilson, 2011 BCCA 252, 272 C.C.C. (3d) 269, at para. 39.
[66] A sub-facial challenge goes behind the form of the ITO to attack or impeach the reliability of its content: Araujo, at para. 50; Wilson, at para. 40. Sub-facial challenges involve an amplified record, but do not expand the scope of review to permit the reviewing judge to substitute his or her view for that of the authorizing judicial officer. The task of the reviewing judge on a sub-facial challenge is to consider whether, on the record before the authorizing justice as amplified on the review, the authorizing justice could have issued the warrant. The analysis is contextual. The reviewing judge should carefully consider whether sufficient reliable information remains in the amplified record, in other words, information that might reasonably be believed, on the basis of which the enabling warrant could have been issued: Araujo, at paras. 51-52, 54; Garofoli, at p. 1452.
Analysis
[67] For this facial validity challenge, the inquiry focuses on an objective assessment of whether the ITO contains reliable evidence that might reasonably be believed, and on the basis of which the warrant or order could have been issued: Morelli, at para. 40; R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 88.
Storage Locker Warrantless Search
[68] At the Charter hearing, the Crown conceded that the search of the storage locker was unauthorized and is a warrantless search in violation of s. 8 of the Charter. To be constitutionally compliant, a search must be authorized by law, the law authorizing the search must be reasonable, and the search must be carried out in a reasonable manner: R. v. Stillman, [1997] 1 S.C.R. 607, at p. 634.
[69] Warrantless searches are prima facie unreasonable, and the burden shifts to the party seeking to uphold the search. This means, inter alia, the Crown must be able to point to a law which authorizes the search: R. v. Caslake, [1998] 1 S.C.R. 51, at para. 30. It is not argued that this is a case of exigent circumstances. Nor is this a case in which the police were responding to a complaint or request for assistance.
[70] The Crown acknowledged that in R. v. Ting, 2016 ONCA 57, 333 C.C.C. (3d) 516, the Court of Appeal held that a search warrant must precisely and accurately state the specific place(s) to be searched and when it does not, the explanation in the ITO will not repair the facial invalidity:
[58] That being said, the Crown submits that the second ITO made it clear that the warrant was intended for the basement residence. I agree that the application judge erred in finding the ITO to be ambiguous in that respect. There is only one residence in the basement of the building, and there is only one door that can be used to access it.
[59] It is not enough, however, for the ITO to accurately describe the premises to be searched. For a search warrant to fulfill its functions, those who are relying on it – including police officers who are executing it and third parties whose cooperation is sought – must not be required to look past the warrant to the ITO. The warrant itself must be clear and limited on its face with respect to the location to be searched: see Re Times Square Book Store and the Queen, 21 C.C.C. (3d) 503 (Ont. C.A.), at 513; and R. v. Parent, 47 C.C.C. (3d) 385 (Y.C.A.), at 396-97.
[60] A function of a warrant is to guide and limit the actions of the police officers. A warrant that is ambiguous cannot perform that function. Neither can the subject of the warrant know whether the police are authorized to search the premises.
[71] To be valid, a search warrant must authorize a search of an identified place: A.G. (Nova Scotia) v. MacIntyre, [1982] 1 S.C.R. 175, at p. 179; Hunter, at p. 161.
[72] An accurate description of the premises to be searched is necessary to "avoid search warrants becoming an instrument of abuse": Ting, at para. 50; R. v. Pampena, 2022 ONCA 668, at para. 24.
[73] I find that there is a s. 8 breach because although the ITO in a cursory manner requests to search the "associated storage locker", the affiant failed to provide sufficient grounds to establish that it in fact exists. This fact cannot be assumed in the absence of any foundation.
[74] The Crown has not met their burden to demonstrate that there was sufficient credible and reliable evidence that might be reasonably believed on the basis of which the authorization to search the storage locker could have issued: Araujo, at para. 54. There was not sufficient credible and reliable evidence to permit a Justice of the Peace to find reasonable and probable grounds to believe that evidence of the March 14, 2022, offence would be found at the specified time and place – that is, the storage locker on September 22, 2022.
[75] The are simply no grounds advanced in the ITO to believe that there was a storage locker and that evidence of the offences under investigation would reasonably be located within. There is no evidence that there were storage lockers at this building. The locker was not known to be within the residence. The storage locker that was searched was outside of the unit, with its location identified during the execution of the search. There was no attempt to secure the unit and obtain a warrant.
[76] Paragraphs 59-78 of the ITO explain the grounds to believe the items are at the places to be searched. The focus on the search of the residence states there are "reasonable grounds to believe that PATEL resides at, and has control and access to unit #192-2001 Bonnymede Drive." The storage locker is a throw-in line in at paras. 77 and 81. There are no grounds explaining why the police believe the storage locker exists, and if it did, where it was, how it was accessed, and by whom it was accessed at any point in the past. This was the second apartment the Applicant was connected to during the course of the investigation. He was not observed going into a particular unit, but the police had obtained the unit address and confirmed that the accused was residing in the building.
[77] Similarly, the ITO provides no information indicating that a storage locker at the building was accessible to the Applicant or to anyone else for any purpose at any time. The affiant did not establish that there was any prior information from any source during the investigation that established that there was a storage unit associated with 192-2001 Bonnymede Drive that was accessible to the Applicant, or anyone else, and as such, that it was reasonable to believe that he stored evidence of the alleged crimes in that location.
[78] The police spoke with the superintendent and clearly had the ability to obtain and include that information in the ITO.
[79] I find that the search of the storage locker was not reasonably grounded and therefore not authorized. The ITO, in relation to the storage locker, is quite limited and amounts to speculation. It is discussed in a conclusory manner in a few spots without any foundation. It is not explained to the issuing justice that based on experience or knowledge, there was a reasonable belief that a storage locker existed and would contain the items listed to be examined.
[80] The court cannot take judicial notice that there was a storage locker at this building.
[81] This makes the total circumstances distinguishable from the decision in R. v. McNeill, 2020 ONCA 313, referenced by the Crown in oral argument. In McNeil the Court of Appeal upheld a warrant that authorized the search of a cellphone if found in the targeted garage to be searched, because it was established to the requisite standard to exist and used in the drug crimes. Multiple sources indicated that McNeil used a cellphone for drug trafficking, and therefore there were grounds to believe it existed and if present, would yield evidence therein.
[82] In McNeill, the Court held that:
[48] Here, whether or not any electronic device found in the garage belonged to Waechter, the ITO provided evidence supporting a credibly-based probability that any electronic device, if found in the garage – a suspected hub of drug trafficking – would afford evidence of the drug trafficking offences identified in the warrant.
[49] This evidence included, in particular, information from multiple confidential informants that Waechter used cellphones to do drug deals; that Waechter was suspected of trafficking drugs from the garage; that many suspected drug purchasers (at least 18 of them over just two days in late October 2015) were seen going into and out of the garage for what were believed to be drug transactions; and that a suspected female drug courier was believed to be transporting drugs or cash to and from the garage.
[50] It is a reasonable inference that, if Waechter used cellphones to do drug deals, the cellphones of those with whom he conducted drug deals would also contain evidence of drug trafficking. Because the garage was a suspected drug trafficking hub, and nothing else, it was similarly reasonable to infer from the information provided that anyone inside the garage (to whom any of the seized cellphones would belong) was also involved in drug trafficking, whether as seller, buyer, supplier, or courier.
Residential and Two Vehicle Searches
[83] First, the warrants authorized the searches of those places, unlike the storage unit.
[84] Second, I am satisfied that, based on the totality of the information in the ITO, there was sufficient reliable evidence that might reasonably be believed, on the basis of which the authorizing judge could have concluded that the probable cause requirement was met to search the identified residence and two vehicles: Garofoli, at p. 1452; Araujo, at paras. 51 and 54; Ebanks, at para. 20; Morelli, at para. 40; R. v. Beauchamp, 2015 ONCA 260, 326 C.C.C. (3d) 280, at para. 87.
[85] The ITO contains reasonable and probable grounds to believe that the Applicant trafficked cocaine, would possess cocaine and proceeds of crime, and that evidence of those offences would be found at the residence and in the two vehicles. In March after trafficking cocaine, he told the undercover officer that he could do more cocaine deals. Even though he later declined to another deal in April, he already made it clear that he had could supply more. In August, while there was a warrant for his arrest, the DHS search breathed life back into the investigation. The ensuing surveillance provided additional grounds to believe he was still trafficking.
[86] I acknowledge the Defence position that the time gap between the offence date of March 14 and the search warrant of September 22 is a significant amount of time. The drug deal on March 14 involved cocaine and $240. I also acknowledge that the DHS-obtained evidence from the accused's phone of involvement in drug and gun offences was not particular to a date and time. That said, it is indicative of involvement in drug crimes.
[87] In general, relevant factors that could impact the determination of the test on the standard of review could include a significant passage of time between the offence and the search, any intervening events such as the accused moving residences, or the accused stating they are no longer involved in drug trafficking or the absence of evidence of their involvement.
[88] In this case, however, the totality of the information still supports that there were reasonable grounds to believe that items to be searched for in relation to the March 14 trafficking offence would be located at the residence and in the previously identified Honda and Mercedes-Benz vehicles.
[89] While I acknowledge the Defence arguments, I do not agree with the Applicant that in the total circumstances, the warrants to search the residence and two vehicles could not have been issued. In this case, the resumed police investigation supported that the Applicant was still involved in the same drug enterprise from March.
[90] The total reliable evidence includes the Applicant trafficking cocaine of March 14 for cash, with the Applicant's offer to sell more; the police contact with the Applicant on April 13; the further surveillance to confirm the Applicant's address in April; additional criminal conduct information obtained by DHS on August 23; and police surveillance of trafficking behaviour in September.
[91] The March trafficking offence is on a single date but the Applicant's offer to do more business is related to his involvement in the drug enterprise overall. Drug lists and identification assist to prove identity and that the Applicant is a cocaine drug trafficker.
[92] The undercover officer attempted to continue the investigation for a second buy on April 13, but the Applicant "told the undercover that he did not know him and refused to sell him drugs." Contrary to the Defence submission that this was evidence that the accused was not drug dealing in April, I find that this comment is reasonably supportive of a person still involved in drug dealing but who has decided not to sell to the undercover due to concerns about not knowing him.
[93] In addition, on April 26, the police obtained information from a CI that the Applicant lived at a similar but erroneous address in Mississauga. The police found the correct address and corroborated that the accused lived there. They also confirmed that he continued to use the same white Honda. However, the accused was moving out and police were unable to get his next address. An arrest warrant was obtained but not executed.
[94] On August 23, about four months after the last steps in April, the TPS received information from DHS indicating that the accused was in a different vehicle, the black Mercedes-Benz that he said his girlfriend owned. This vehicle was later corroborated by the police to be associated to the accused and his girlfriend. More importantly, the DHS supplied the TPS with information that the Applicant's cellphone contained photographs consistent with drugs and firearms offences, and text messages to possible customers. I am mindful that on the record before me, the marijuana photos alone may not have been enough.
[95] A paused trafficking investigation that resumes some months later and identifies the same individual involved in the same conduct does not mean that the earlier information is necessarily stale. The British Columbia Court of Appeal held in R. v. Ballendine, 2011 BCCA 221, 271 C.C.C. (3d) 418, at para. 54:
Merely because information is "dated" does not mean it is "stale". While the length of time that has passed is to be taken into account in a reasonable-grounds determination, it is but one factor.
[96] Evidence of continuing drug trafficking is capable of supporting that evidence will be found of the same past criminality. The Ontario Court of Appeal in R. v. Beauchamp, 2015 ONCA 260, 326 C.C.C. (3d) 280, agreed with this point at para. 113:
[I]t would have been open to the authorizing judge to infer current criminality from past criminality in the circumstances disclosed by the evidence in the affidavit. In considering the capacity of the evidentiary predicate to ground a finding of probable cause, it is important to keep in mind the investigative objective and the nature of the alleged criminality involved. Ongoing criminal enterprises do not come into existence, nor do they disappear overnight. Information that seems dated at first blush can retain its relevance.
[97] The affiant explains at paras. 68 to 79, that it is believed there will be evidence located of past and continuing drug offences to prove involvement in the March 14 offence. The DHS materials reasonably support the existence of evidence that could be used to prove the March offence: buy money; involvement with drugs; text message conversations; and use of the cellphone.
[98] The context of the criminality is that drugs are trafficked to customers for profit. Those drugs are logically from a supply that is stored. Drugs and cash are stored in vehicles and at home. Cash received from those deals may be kept or dispersed, but it is not uncommon for cash to also be accumulated over time. The DHS-obtained evidence, with the police investigation overall, provided some confirmation of the Applicant amassing cash and being involved with drugs, even if not shown to be cocaine. The drugs dealt in March and the cash obtained do not exist in isolation or a vacuum in a drug dealing enterprise. Beauchamp, at para. 113.
[99] The affiant's comment at para. 68 of the ITO is reasonable that in order to operate an illicit cocaine trafficking business, dealers need to have a supply of product available to them to keep up with the demand, just as in a legitimate retail business.
[100] Also, the affiant addresses, in part, the Defence concern about staleness at para. 76 by explaining that the police used pre-recorded money on March 14 to buy drugs from the Applicant. Although the passage of time could reduce the likelihood of the March 14 undercover buy money still being possessed by the Applicant, it was still plausible that he had kept part of that evidence at the places to be searched. This must be considered in combination with the evidence that the DHS review of the Applicant's cellphone revealed photos of cash. The continuing surveillance of the Applicant at his new residence also showed that the accused used both vehicles to engage in drug activity, including the one that he used on March 14.
[101] I am satisfied based on the cumulative evidence that the searches are justified for: cocaine; scales; packaging relating to scale/distribution of drugs; money deemed to be proceeds of crime relating to sale of drugs; records of bookkeeping notes or documents pertaining to the sale of drugs; cellular telephones or electronic communication devices that have communications (the undercover officer spoke to the accused using a particular number); identification or documents related to the true identity of Parth Patel; and documents or written materials relating to the control, possession, tenancy or ownership of the places to be searched.
Section 24(2)
[102] Having found a s. 8 breach in relation to the search of the storage unit, section 24(2) of the Charter requires that evidence obtained in a manner that infringes the Charter rights of an accused be excluded from the trial if it is established that "having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute".
[103] The s. 24(2) analysis is an objective one, evaluated from the perspective of a reasonable person. The burden to persuade a court that admission of the evidence would bring the administration of justice into disrepute rests on the party seeking exclusion: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 68.
[104] Section 24(2) is focused on maintaining the long-term integrity of, and public confidence in, the justice system. Accordingly, the exclusion of evidence under s. 24(2) is directed not at punishing police misconduct or compensating the accused, but rather at systemic and institutional concerns: Grant, at para. 70.
[105] The s. 24(2) analysis engages three lines of inquiry followed by a final balancing assessment: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; (3) society's interest in the adjudication of the case on its merits; and then (4) balancing the assessments under each of these lines of inquiry. In Grant, the Supreme Court stated that "[t]he balancing mandated by s. 24(2) is qualitative in nature and therefore not capable of mathematical precision": at para. 140.
[106] Trial courts must evaluate each of the three lines of inquiry thoroughly: R. v. McColman, 2023 SCC 8, 478 D.L.R. (4th) 577, at para. 55.
[107] In Le, the Supreme Court clarified the interaction of the three s. 24(2) inquiries under the final balancing assessment. The majority noted that while the first two inquiries typically "both pull towards exclusion of the evidence, they need not pull with identical degrees of force in order to compel exclusion". The evidence can be excluded even if the first two inquiries do not both support exclusion, such as in a case of a serious Charter breach coupled with a weak impact on a Charter-protected interest. The third inquiry, while not automatically deeming all evidence reliable, typically points to admission. When, however, the first two inquiries taken together make a strong case for exclusion, the third inquiry "will seldom if ever tip the balance in favour of admissibility": R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at paras. 141-42; see also R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 56.
[108] The Crown did not call any evidence on the Charter motion to provide an explanation for this warrantless search of the storage unit.
i) Seriousness of the Breaches
[109] At this stage, the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 22. This first line of inquiry focuses on the extent to which the state conduct at issue deviates from the rule of law: McColman, at para. 57.
[110] I find that the s. 8 breach is serious. The failure to provide grounds was a deviation from the rule of law and the warrantless search was reckless, exhibiting an insufficient regard for Charter rights. The Supreme Court held in R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at paras. 59-60, that a casual attitude toward, or a deliberate flouting of, Charter rights will generally aggravate the seriousness of the Charter-infringing state conduct. Similarly, "good faith cannot be claimed if a Charter violation is committed on the basis of a police officer's unreasonable error or ignorance as to the scope of his or her authority".
[111] The affiant was involved in the execution of the warrant and knew that their conduct was not Charter-compliant by failing to identify grounds for the search of the storage unit in the ITO, and then failing to identify it as a place to be searched. This entirely undermines the purpose of a prior judicial authorization to search a private space.
[112] I find that the police knew that the search warrants did not authorize the search of the storage unit, since it is clearly not stated on the warrants.
[113] I do not accept the argument that this was merely a technical breach or the result of an understandable mistake that the locker was included by necessary implication, such that the court should be less concerned with dissociating itself from the police conduct.[1]
[114] After explaining in the ITO the basis for searching the residence for the items sought, a few cursory references to the "and or associated storage unit" was improper. Considering the extraordinary ex parte authorization process, grounds in an ITO ought not to present facts as conclusory opinions or statements without reference to factual foundation.
[115] The circumstances of the unit (existence, location, access, etc.) are never explained. The affiant does not subjectively state he is aware of a storage locker and that he expects items identified to be found in the storage locker.
[116] On one hand, I recognize that the affiant is partially transparent in the ITO that the police wanted to search the storage unit and search warrants were obtained for the other locations. However, on the other and more compelling side of the analysis, the affiant's failures to identify any grounds that the place existed, and to be clear that it was one of the areas to be searched on the face of the warrant, deliberately skirts the core constitutional duty of the police to properly justify the basis for the search to permit authorization: Buhay, at para. 63. This elevates the seriousness of the breach: R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 72-74.
[117] In totality, the affiant understood the obligation to explain how items could be stored inside the apartment but failed to establish sufficiently the existence or circumstances pertaining to a storage unit that would inform whether it was reasonable to include this additional private space in the warrant. This is not merely a drafting error made in good faith, as was the case in Pampena, even though I accept the warrant overall had some other lesser drafting errors.[2]
[118] The police were not compelled to act quickly in order to prevent the disappearance of evidence. The police could have obtained the evidence without infringing the Applicant's rights. The police could have secured the evidence by other means, by obtaining a search warrant and securing the locker in the interim.
[119] Since no one testified on the Charter motion, it is not established that the police would have inevitably located the evidence in the storage locker. It is clear that the police could have sought out the absent information to include in the ITO and to proceed without a Charter violation.
ii) The Impact of the Breach on the Charter-Protected Interests
[120] The second Grant factor focuses on the effect of the breach on the Applicant and whether admitting the evidence, factoring that impact, would bring the administration of justice into disrepute.
[121] In Grant, the court explained at para. 76:
The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.
[122] As explained by the Supreme Court in McColman, this second line of inquiry is aimed at the concern that admitting evidence obtained in violation of the Charter may send a message to the public that Charter rights are of little actual avail to the citizen. Courts must evaluate the extent to which the breach "actually undermined the interests protected by the right infringed": Grant, at para. 76.
[123] I find that the impact of the warrantless search of the storage locker was a significant intrusion of privacy. The impact of the search on the accused's Charter-protected interests is greater because the search was warrantless and therefore not authorized.
[124] When a person owns or rents a storage locker associated with their house or apartment, it is a private space that they (and other people they live with) use to store their personal items and is therefore deserving of s. 8 protection: R. v. White, 2015 ONCA 508, 325 C.C.C. (3d) 171, at para. 51. A warrant is required to search a private locker.
[125] A storage locker may be relatively less private than the interior of a house or apartment, depending on the circumstances of where exactly it is situated (i.e., private area or common area), nature of the room (degree of security features designed to exclude outsiders, etc.), ability to see inside (visible or concealed from public view) etc., but in general, it is still a private personal place that is secured to protect items owned. The Crown did not call evidence to establish that the entry into the locker was inevitable in this case or that the items inside were visible to persons without access.
[126] I do not agree that sufficient grounds to search the residence necessarily equate to sufficient grounds to search a storage locker. It depends on the circumstances established by the Crown since it is their onus in the context of a warrantless search.
[127] People that live in apartment buildings generally have more limited space to store their personal belongings, and where available and obtained, a storage unit is a protected and separate part of their property. It can be a separate paid for space. Where appropriate, courts should avoid a two-tiered approach to reasonable expectations of privacy for personal private spaces that favours people that live in a house over people that live in an apartment.
[128] I find that the warrantless search of the Applicant's storage locker was significant, as the police knowingly searched the locker without a valid warrant and without reasonable and probable grounds.
iii) Society's Interest in the Adjudication of the Case on Its Merits
[129] This third line of inquiry asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry requires courts to consider both the negative impact of admission of the evidence on the repute of the administration of justice and the impact of failing to admit the evidence: Grant, at para. 79. In each case, "it is the long-term repute of the administration of justice that must be assessed": Harrison, at para. 36.
[130] The evidence of the firearm and documents to prove identity and possession are reliable. The gun is obviously important to the Crown's case on the firearm charges. The documents are arguably part of but not essential of the other charges. The alleged offences are very serious. The Crown's case overall would not be gutted by excluding the evidence, but the gun charge(s) would be.
[131] The public has a heightened interest in a determination on the merits where the offence is serious. The public also has a vital interest in maintaining a justice system that is above reproach: Grant, at para. 84.
[132] There is also an impact on the administration of justice in admitting evidence obtained in a s. 8 Charter breach that was the result of reckless behaviour.
[133] I find that, factoring the reliability and importance of the evidence as well as the seriousness of the alleged gun offences, the third Grant factor on balance pulls in favour of inclusion. Admission of the evidence in this case would better serve the truth-seeking function of the criminal trial process, even if it would cause some damage to the long-term repute of the justice system.
iv) Balancing the Grant Factors
[134] When balancing the three factors, the cumulative weight of the first two lines of inquiry must be balanced against the third line of inquiry: R. v. Lafrance, 2022 SCC 32, [2022] 2 S.C.R. 393, at para. 90; R. v. Beaver, 2022 SCC 54, 420 C.C.C. (3d) 421, at para. 134.
[135] I find that the first and second lines of inquiry strongly favour exclusion of the evidence.
[136] The third line of inquiry pulls in favours inclusion.
[137] It is the sum, and not the average, of those first two lines of inquiry that determines the pull towards exclusion: Le, at para. 141.
[138] There is clearly an important interest in the prosecution of persons that engage in drug and gun offences. In this case, if the evidence from the storage locker is excluded, the prosecution of the gun possession related charges would end. However, the drug and other charges could proceed.
[139] In conducting the final balancing, the seriousness of the offence cannot be the controlling consideration in the decision whether to exclude evidence: Harrison, at para. 40.
[140] In R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63, the Court of Appeal held that "if the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility".
[141] The significant factors here that weigh against the admission of the evidence are that the police showed a reckless disregard for the Applicant's Charter rights, the s. 8 breach was avoidable, and the breach had a serious impact on privacy rights.
[142] The admission of the evidence would vindicate the serious Charter breach of a warrantless search, and in this way harm the long-term repute of the administration of justice. Accordingly, the administration of justice would be better served by excluding the evidence.
Conclusion
[143] The Charter motion is granted in part in relation to the warrantless search of the storage locker; and dismissed in part in relation to the authorized searches of the residence and the two vehicles.
[144] The evidence derived from the search of the storage locker is excluded.
Mirza, J.
Released: October 17, 2025
Footnotes
[1] The Crown's factum submitted that the storage locker "was in the same building/structure, on the same floor, and under the same roof as the apartment, and therefore within the definition of "dwelling-house" as defined by s 2 of the Criminal Code." However, this was not explained in the ITO and the Crown called no evidence to establish these points. They did not press this argument in oral submissions.
[2] For example, in Appendix B, the offences are alleged to have occurred in the City of Toronto when the transaction was clearly conducted in Mississauga. At paragraph 56, it references April 14 instead of March 14. At paragraph 83, it references a 2018 Mercedes-Benz when the vehicle is a 2017 model. While these are not serious errors, they remain relevant to an understanding of the level of care and detail put into this investigation.