ONTARIO SUPERIOR COURT OF JUSTICE

Court File and Parties

COURT FILE NO.: CRIMJ(P) 24/72

DATE: 20251212

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – Daniel DOWNEY Accused

J. Vlacic, for the Crown

G. Butler, for the Accused

HEARD: December 10, 2025

REASONS FOR JUDGMENT

The Honourable Justice Ranjan K. Agarwal

I. INTRODUCTION

[ 1 ] The accused Daniel Downey is charged with one count of possession of cocaine for the purpose of trafficking under the Controlled Drugs and Substances Act , SC 1996, c 19, s 5(2).

[ 2 ] Mr. Downey lived with his brother, Stanley Stewart, and nephew, Taverio Stewart. The police obtained a search warrant for their house because they believed Taverio was trafficking drugs. The police found cocaine in Mr. Downey’s basement bedroom.

[ 3 ] Mr. Downey argues that this search violated his constitutional rights. He submits that the police should’ve obtained a fresh warrant once they realized that he was living in a basement unit in the house. Mr. Downey asks the court to exclude the drug evidence, which would effectively terminate the Crown’s case against him.

[ 4 ] For the reasons discussed below, Mr. Downey’s application is dismissed. The police’s search of Mr. Downey’s room wasn’t unreasonable in the circumstances. Even if they had breached his rights, I wouldn’t exclude the evidence.

II. BACKGROUND

A. Facts

[ 5 ] In 2022, the police were investigating Taverio for trafficking drugs. Throughout January and February 2022, the police saw Taverio come and go from his house (64 Mossgrove Crescent, Brampton). On February 1 st , the police saw Mr. Downey leave the house, and then quickly exchange “something” with a driver parked outside. On February 11 th , the police saw Mr. Downey at a “known drug house”, and arrested him for possession of a controlled substance.

[ 6 ] On February 21, 2022, the police executed a search warrant of the house. The target of the search was Taverio. That said, before executing the search, the police saw Mr. Downey engaging in the same type of behaviour as before: leaving the house, engaging in exchanges with drivers, and then returning soon after. He wasn’t home when they searched the house.

[ 7 ] The house is owned by Stanley. It has two stories and a basement. The main floor includes a kitchen, a combined dining and living area, and a laundry room. The second floor has five bedrooms and two bathrooms. The basement has two bedrooms, a bathroom, a well-equipped gym, and sitting area. The basement can be accessed in two ways: through a side entrance leading directly to it, or by inside stairs connected to the laundry room.

[ 8 ] Stanley, Taverio, and Stanley’s partner lived on the second floor. Mr. Downey’s mother also had a room on the second floor. He lived in the basement.

[ 9 ] During the search, the police found 23.6g of cocaine on a dresser in Mr. Downey’s bedroom.

B. History of the Proceeding

[ 10 ] Mr. Downey’s trial started on May 26, 2025. After the Crown’s second witness, Mr. Downey requested leave to file a mid-trial application for exclusion of evidence. Despite many reasons to deny leave, I found that there was some basis in fact to Mr. Downey’s claim. The application hearing was scheduled for July 2025.

[ 11 ] In June 2025, the defence requested an adjournment—they hadn’t yet filed any materials. As defence counsel said the delay was his fault, I adjourned the application hearing. The first available date was in December 2025.

[ 12 ] Mr. Downey filed a brief affidavit, and gave oral evidence. He was cross-examined by the Crown. The Crown relied on the ITO and search warrant, and the trial evidence that had been adduced so far. The Crown also introduced several online photographs of the house as it had recently been listed for sale.

III. ANALYSIS AND DISPOSITION

[ 13 ] Mr. Stewart argues that the police shouldn’t have searched his bedroom without a further warrant specifically allowing them to search that part of the house. He claims that the search violated his rights under the Canadian Charter of Rights and Freedoms , s 8. He asks that the evidence obtained by the police be excluded under the Charter , s 24(2).

[ 14 ] I disagree. The police’s search of Mr. Downey’s bedroom was reasonable. In any event, I wouldn’t exclude the drug evidence even if the search was unreasonable.

A. Law

[ 15 ] Everyone has the right to be secure against unreasonable search or seizure. See Canadian Charter of Rights and Freedoms , s 8. The main purpose of section 8 is to protect the right to privacy from unjustified state intrusion. See R v Campbell , 2024 SCC 42 , at para 36 .

[ 16 ] A search is reasonable under section 8 if it is authorized by a reasonable law and conducted in a reasonable manner. See Campbell , at para 81 .

[ 17 ] The police can’t search additional rooms or units in a single dwelling or business of a target unless they have a reason to believe that either the target has access to those rooms, or that the occupants of those rooms are connected to the target’s criminality. The relevant factors include:

• the degree of access between the units

• the existence of any common areas within the units

• any evidence of common criminal activity in plain view in the separate room or unit

See R v Goorahoo , 2020 ONSC 6088 , at para 65 ; R v Stewart , 2024 ONSC 3864 , at para 22 .

[ 18 ] Anyone whose rights or freedoms, as guaranteed by the Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. See Charter , s 24(1). When a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter , the evidence shall be excluded if it’s established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. See Charter , s 24(2).

[ 19 ] A section 24(2) inquiry examines the effect of admitting evidence obtained in breach of the Charter on public confidence in the justice system over the long term. This is based on three lines of inquiry: (a) the seriousness of the Charter -infringing state conduct; (b) the effect of the breach on the accused’s Charter -protected interests; and (c) society’s interest in the adjudication of the case on the merits. A court’s task is to balance the assessments under these three lines of inquiry to determine whether, considering all the circumstances, “admission of the evidence would bring the administration of justice into disrepute”. See R v Tim , 2022 SCC 12 , at para 74 .

B. Application

[ 20 ] Mr. Downey didn’t press a challenge to the facial validity of the search warrant. That was a reasonable approach to take given the undisputed facts:

• the house is a detached, single-family dwelling

• nothing suggested that the basement was a separate sub-unit (such as a mailbox or a letter/number sign, or a kitchen in the basement)

• Mr. Downey is related to Taverio, the target of the search, and the homeowner, Stanley

[ 21 ] It was reasonable for the police to believe Mr. Downey and the Stewarts were living as one family in the house, and that everyone had access to all parts of the home. Mr. Downey’s evidence confirms the reasonableness of this conclusion:

• he used the laundry room on the main floor

• there was only one mailbox for them all

• Stanley had a key to the side door

• Taverio, who was a boxer, used the gym in the basement to train at least two times per week and didn’t need Mr. Downey’s permission

[ 22 ] Importantly, Mr. Downey repeatedly described all of the house as “Stanley’s house.”

[ 23 ] Mr. Downey submits that even if the search warrant was facially valid, the execution was unreasonable. He argues that it should have been obvious to the police that the basement was a sub-unit once they entered the house:

• the basement appeared to be a self-enclosed unit—it had bedrooms, a bathroom, a living area, and small appliances

• the bedroom door was locked

• on the dresser, there were pictures of Mr. Downey and his children

• the side door had a different lock/key from the main door

• the laundry room door to the basement could be locked

[ 24 ] These facts don’t prove, on a balance of probabilities, that it was unreasonable for the police to believe that Taverio had access to this room. Again, Taverio and Mr. Downey are family. The inside door to the basement wasn’t locked. The gym had three punching bags, and Taverio was a boxer. There are seven bedrooms in the house—given that Stanley and Mr. Downey are brothers, it wasn’t unreasonable for the police to believe that Mr. Downey had a room on the second floor, and the basement rooms were used for other purposes. There were no markings and signs that said that the basement was a sub-unit, or that it was off-limits to Taverio.

[ 25 ] When the police entered Mr. Downey’s room and saw the pictures of his children, they might have concluded that the room was his. It might be unusual for Taverio to have a picture of Mr. Downey and Mr. Downey’s children on their dressers. At the same time, they’re all family. It’s not unreasonable for a man to have pictures of his cousins or uncle on display. Also, at first glance, the room might have been used by another family member, such as Mr. Downey’s mother, which could’ve explained the pictures.

[ 26 ] But, regardless, the issue isn’t whether the room belonged to Mr. Downey. It’s whether the police had reason to believe that Taverio had access to the room, or that Mr. Downey was connected to Taverio’s criminality.

[ 27 ] On both points, the answer is yes. Again, the house belonged to Stanley. Taverio had access to all the other rooms in the house. It wasn’t unreasonable for the police to believe that Taverio had access to this room too, even if it was locked. He could have had a key. And the police’s surveillance evidence before and on the day of the search reasonably suggested that Mr. Downey either had or was selling drugs alongside Taverio.

[ 28 ] Even if there was a breach, I would not exclude the evidence under section 24(2). I acknowledge that the alleged breach would be significantly intrusive of Mr. Downey’s privacy rights. But, on balance, the admission of this evidence wouldn’t bring the administration of justice into disrepute. First, the breach is at the less serious end of the “scale of culpability”. As Code J observed in Goorahoo , at para 74 , there is little jurisprudence on this unique issue. The police are expected to know the law, but the law in this area is nascent and complex.

[ 29 ] Second, the evidence seized is at the heart of the Crown’s case. The “truth-seeking function” of the criminal trial process is better served by the admission of the evidence of the drugs. See Tim , at para 96 .

IV. CONCLUSION

[ 30 ] On this application, Mr. Downey had the burden of proving, on a balance of probabilities, that the police’s search of his bedroom exceeded their warrant. He hasn’t met that burden: objectively, it wasn’t unreasonable for the police to conclude that Taverio had access to Mr. Downey’s room, or that Mr. Downey was connected to Taverio’s alleged drug trafficking.

[ 31 ] As a result, Mr. Downey’s application is dismissed.

December 12, 2025

Agarwal J