ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-23-00016196

DATE: 2025/12/16

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – MORRIS EMIL Defendant

Ms. Egberts, for the Crown

Mr. Alawi, for the Defendant

HEARD: December 10, 11, 12 2025

RULING ON BLENDED CHARTER AND TRIAL

Justice Verner

[ 1 ] Morris Emil stands charged with possession of fentanyl for the purposes of trafficking and obstructing police by providing the police with a false name.

[ 2 ] Emil submits that his rights under ss. 8 and 9 of the Charter were violated, and accordingly, the fentanyl and the evidence that he gave the police a false name should be excluded under s. 24(2).

[ 3 ] If he is unsuccessful on the Charter application, he does not challenge the evidence that he possessed the fentanyl or that he provided the police with a false name. He argues, however, that the evidence does not support a finding that he possessed the fentanyl for the purposes of trafficking, and that although he provided a false name, it did not effectively obstruct the police officers from performing their duties.

[ 4 ] The Charter issue and the trial were heard as a blended voir dire. The Crown called four officers. The defence called no evidence.

[ 5 ] I find that Emil’s Charter rights were violated, and that the evidence should be excluded. There is accordingly no evidence for the Crown to present at trial. As a result, I find Emil not guilty of counts one and two.

THE EVIDENCE

[ 6 ] Officer Tillsley, the arresting officer in this case, testified that he was patrolling downtown Oshawa with Officer Marriott just after 9 am on Friday, August 5, 2022. They were tasked with asking trespassers on commercial properties to move along.

[ 7 ] As Marriott was talking to some individuals at 74 Simcoe Street South, Tillsley, at 9:39 am that morning, attended a parking lot behind 86 Simcoe Street South. He explained that there was an alleyway between 86 Simcoe Street and the neighbouring property, which was used as a driveway to get to the parking lot behind the buildings. The neighbouring building was a rooming house, while 86 Simcoe Street was an Oshawa Power building.

[ 8 ] Tillsley testified that after he came through the alleyway to the parking lot, he saw 18-year-old Emil and two other individuals in the parking lot under a second story deck behind the Oshawa Power building. Emil, who was not particularly tall and was of slight build, was dressed in all black. (Marriott testified that Emil was wearing a balaclava, however, Tillsley did not mention this detail in his evidence, which suggests it was not relevant to his grounds to arrest.) When Tillsley was initially asked how far away he was from the three individuals, he responded that he could not recall since these events happened so long ago. He left the impression that he could not even estimate how far away the three individuals were from him. After further questioning however, he suggested they may have been up to four or five parking spots away.

[ 9 ] Upon seeing Emil in the parking lot, Tillsley immediately concluded that he was trespassing. I asked how he knew Emil had not just parked his vehicle in the parking lot and was heading from his car to the buildings. This question seemed to catch Tillsley off guard, such that he initially responded that he did not know how to answer that. Tillsley “guessed…it is possible” that Emil had come from his parked car, but qualified his answer by saying he could not remember any cars being near Emil when he first spotted him.

[ 10 ] Tillsley testified that as he came into the parking lot he saw Emil unwrapping a grey bag and that he could see a red substance inside, which he believed to be fentanyl. According to Tillsley, Emil was showing the red substance to the other two individuals. Tillsley’s handwritten notes which were prepared the day of the incident, do not mention anything about Tillsley’s initial observations. Tillsley’s typed notes (or his “willsay”), which was similarly prepared that same day, states that Emil was “attempting” to unwrap the grey bag when he first saw him. There is no suggestion in Tillsley’s handwritten or typed notes that he could see the substance from his vantage point.

[ 11 ] The police photos show that the package of the red substance was no more than the size of a one inch cube. The red substance, which was not a bright red, but a greyish red, was wrapped in a small piece of a grey plastic bag and then there was a clear plastic wrap around the piece of grey bag.

[ 12 ] According to Tillsley, as he approached the three men, they separated from each other and Emil quickly put the grey package in the front pocket of his hoodie.

[ 13 ] When Tillsley was within arm’s distance of Emil, Emil tried to walk away. Tillsley immediately grabbed Emil’s bicep. According to Tillsley’s typed notes, he “grabbed on the individual’s bicep, advising them that they were trespassing and to take their hands out of their pocket”. His handwritten notes also suggest that Emil was initially detained for trespassing, without reference to any drug charges. However, according to his trial evidence, as he grabbed Emil’s bicep, he informed Emil that he was being arrested for both possession of a schedule one substance and for trespassing.

[ 14 ] According to Tillsley, Emil tried to break free from Tillsley’s grasp and told Tillsley that he had no right to speak or talk to him. As Tillsley repeated his commands to stop resisting, Emil continued to attempt to break free and continued to insist that Tillsley did not have the right to speak to him. By 9:40 am, Marriott had arrived. He observed Tillsley struggling to get Emil under control and he accordingly assisted Tillsley in taking Emil to the ground. Emil was handcuffed behind his back, and at 9:43, he was read his rights to counsel and cautioned.

[ 15 ] Tillsley searched Emil incident to arrest and found the package with the red substance in Emil’s front pocket, which contained 4 grams of red fentanyl. He also found $20, a knife, a scale, and a small clear resealable “dime bag” with 16 pieces of individually wrapped fentanyl inside, each weighing 0.1, 0.2 or 0.3 grams.

[ 16 ] In total, Emil had 6.1 grams of fentanyl on him. An expert in the sale and distribution of fentanyl testified that given the amount of fentanyl and the packaging, it was unlikely that Emil possessed the fentanyl for personal consumption.

[ 17 ] Once under arrest and things had settled, Tillsley asked Emil to identify himself. At the scene, Emil refused to give any name beyond “Tony”. He was brought to the station and held for a bail hearing. At the station, he identified himself as “Tony Tatum” with a date of birth of July 16, 2005. Still later at the station he identified himself as “Marcus Tatum” with another date of birth. Finally, he gave the police his proper name, Morris Emil.

[ 18 ] In the close of the cross-examination, defence counsel put a theory to Tillsley, which was that Emil was in fact on a bicycle with both his hands on the handlebars when Tillsley first spotted him. Although Tillsley denied that is how he remembered the events transpiring, he did not seem confident with his memory. It appeared to me from Tillsley’s demeanour, that the defence theory may have jogged a memory for Tillsley, as if Tillsley was questioning his own memory and, as a result, questioning whether Emil was in fact on a bicycle with his hands on the handlebars when he first saw him. Although defence counsel’s questions were not evidence, the manner in which Tillsley answered these questions was relevant to his reliability.

THE ISSUES FOR THE CHARTER APPLICATION

[ 19 ] The defence raises the following Charter issues in this case:

(i) Was Emil’s right against unreasonable search and seizure, as protected by s. 8 of the Charter, violated?

(ii) Was his right against arbitrary detention, as protected by s. 9 of the Charter, violated? and,

(iii) If his rights were violated in any way, should the evidence be excluded under s. 24(2) of the Charter ?

WAS THERE AN UNREASONABLE SEARCH OR SEIZURE CONTRARY TO S. 8?

[ 20 ] The Applicant submits that his rights under s. 8 of the Charter, which ensures that “everyone has the right to be secure against unreasonable search or seizure ”, were violated. Although the accused has the onus of proving Charter violations generally, where the search is not supported by a warrant, it is presumptively unreasonable, and the onus is on the Crown to prove no s. 8 rights were breached.

[ 21 ] To establish that the search was reasonable, the Crown must prove on a balance of probabilities: (1) that the search was authorized by law, (2) that the authorizing law was itself reasonable, and (3) that the authority to conduct the search was exercised in a reasonable manner: R. v. Cole, 2012 SCC 53 at para. 37 .

[ 22 ] The Crown’s position is that the search was authorized as being a search incident to arrest. The question then becomes whether the Crown has established that the arrest was lawful.

[ 23 ] In R. v. Beaver, 2022 SCC 54 , at para. 72 , Jamal J. outlined the principles for assessing whether a warrantless arrest is valid. In a nutshell, the arresting officer must subjectively believe the accused committed an offence, and that belief must be objectively justifiable with consideration of the officer’s experiences and training, and with consideration of the dynamic circumstances under which the decision to arrest was made.

[ 24 ] In the case at bar, Tillsley testified that he initially arrested Emil for both trespassing and for possession of a schedule one substance. I must therefore assess whether Tillsley subjectively believed that Emil committed these two offences and whether that belief was objectively justified.

(i) Were there grounds to arrest for possession of a schedule one substance?

[ 25 ] I will start with considering whether Tillsley had grounds to arrest Emil for possession of a schedule one substance, and in particular with whether he subjectively believed that he had grounds to arrest for drugs. To clarify, the issue is not whether he could have, at some point legally arrested Emil, but whether the arrest that he made was legal: R. v. Brown, 2012 ONCA 225 . The court must consider not only the content of the officer’s testimony, but also the officer’s credibility and reliability: see Beaver , at para 72 (2).

[ 26 ] I am not satisfied that at the time of the arrest Tillsley believed he had grounds to arrest for possession of a schedule one substance. In fact, I am not satisfied that he initially even arrested Emil for any drug offences. I say this partly because both his written and his typed notes, which were made on the same day as the events, suggest that Emil was initially detained for trespassing only, rather than for drugs. Moreover, it does not make sense that Tillsley arrested Emil for drug offences and then, in response, Emil indicated that Tillsley did not have the right to speak to him. If Emil was told he was being arrested for a drug offence, he almost certainly would have understood that Tillsley had the right to speak to him and that there would not have been any point in saying otherwise. I therefore do not accept Tillsley’s viva voce evidence that he told Emil prior to the search he was being arrested for possession of a schedule one substance, in addition to being arrested for trespassing.

[ 27 ] Furthermore, I do not accept that Tillsley had grounds to arrest for drugs. He testified that the basis for his belief that he had grounds to arrest was that he saw Emil holding a red substance, which appeared to be fentanyl. However, for the following reasons, I do not accept Tillsley’s evidence that he saw a red substance prior to arresting Emil:

(i) Tillsley testified that he may have been as far as four or five parking spots away from Emil when he momentarily saw the red substance inside the unwrapped grey bag. Notably, the substance was not bright in colour, but dull, and was no more than the size of a one inch cube.

(ii) Tillsley’s handwritten notes do not indicate that he saw any drugs or drug activity before the arrest, and his typed notes state that he saw Emil “attempting” to unwrap a package prior to the arrest, but do not suggest that he saw the substance until after.

(iii) It is particularly difficult to believe that Tillsley’s independent recollection is better than his notes, when he agreed at trial that his memory of these events was not great since the events were so long ago. In fact, he initially suggested that he could not give an estimate as to how far away Emil may have been from him, as a result of his lack of memory of the details.

(iv) The grey bag with the fentanyl in it was tied up when it was seized and photographed, and there was little to no opportunity in the seconds between Tillsley seeing the package in Emil’s hands and Emil’s bicep being grabbed, for Emil to have tied up the grey bag.

(v) When the defence theory that Emil was in fact on a bicycle was put to Tillsley, the suggestion appeared to possibly jog a memory for him. His reaction made me question his confidence with his memory of events.

[ 28 ] I therefore do not accept that Tillsley saw the red fentanyl or that he told Emil prior to the search that he was being charged with any drug offences.

[ 29 ] Instead, I accept the following sequence of events as being what transpired in this case:

(i) I accept Tillsley’s evidence that he saw Emil showing two other individuals a wrapped package, and that he started to unwrap it. I accept this evidence since it is supported by Tillsley’s notes that were made contemporaneously to the events, since it explains why Tillsley focused on Emil rather than the two other individuals, and since the outer wrapping of the package, that is the clear plastic wrap, was not tied up when it was photographed, which is consistent with Emil starting or “attempting” to unwrap the drug.

(ii) I accept Tillsley’s evidence that Emil quickly put the package in his pocket upon seeing Tillsley.

(iii) I accept Tillsley’s evidence that the three men dispersed as Tillsley approached.

(iv) I accept Tillsley’s evidence that he grabbed Emil’s arm immediately, told him that he was not allowed to go anywhere, and that he was being arrested for trespassing. Although, for reasons already given, I do not accept there was any mention of drugs at this point.

(v) I accept Tillsley’s evidence that Emil was resisting arrest, trying to walk away and indicating to Tillsley that Tillsley had no right to speak to him.

(vi) I accept Tillsley’s evidence that after Emil resisted arrest, he was taken to the ground and handcuffed.

(vii) I accept that at some point after the search, Emil was informed for the first time that he was being charged with possession of a schedule one substance for the purposes of trafficking, in addition to being charged with trespassing.

[ 30 ] Since I do not accept that Tillsley saw a red substance or accept that Tillsley initially told Emil he was being arrested for drugs, I do not accept his evidence that he subjectively believed that he had grounds to arrest Emil for the possession of a schedule one substance.

[ 31 ] I further find that Tillsley’s observations, as I have accepted them, do not support reasonable and probable grounds to find Emil had drugs on him. A momentary glimpse of seeing Emil show two other individuals a small package in a parking lot, combined with the evidence that upon seeing the police, Emil quickly put the small package into his pocket, supports a reasonable suspicion of drug activity, but does not provide reasonable and probable grounds that Emil had committed an offence.

[ 32 ] In short, Tillsley did not have grounds to arrest Emil for drugs prior to the search.

(ii) Were there grounds to arrest for trespassing?

[ 33 ] I further find that there was no basis to arrest Emil for trespassing. Tillsley did not have enough information to know whether or not Emil was trespassing, or whether he was legally on site. When Tillsley was asked how he knew that Emil was not coming from parking his car, he admittedly could not answer that question. He could not articulate grounds for believing that Emil was trespassing.

[ 34 ] Moreover, even if Emil did not have permission to enter the property, he would not be committing an offence against the Trespass to Property Act, unless there was notice prohibiting entry: see s. 3(1) of the Act. In fact, Tillsley agreed with defence counsel that he was not authorized to simply arrest Emil for trespassing but would have had to have given him a warning before arresting him. Therefore, although I accept that Tillsley subjectively believed that Emil was trespassing, he did not subjectively believe he had grounds to arrest for trespassing since he had not given Emil the necessary warning.

[ 35 ] Tillsley did not have subjective or objective grounds to support an arrest for trespassing.

[ 36 ] The arrest was unlawful and accordingly, the search incident to arrest was unlawful. Emil’s s. 8 rights were violated.

WAS EMIL ARBITRARILY DETAINED CONTRARY TO S. 9?

[ 37 ] Emil further submits his s. 9 rights were violated when he was unlawfully arrested. Pursuant to s. 9 of the Charter, “everyone has the right not to be arbitrarily detained or imprisoned”. Emil bears the burden of proving on a balance of probabilities that the arrest was invalid. For the reasons already provided, and even recognizing that the onus is on the accused to prove his rights were violated under s. 9, I find that Emil has met his onus.

[ 38 ] Emil’s s. 9 rights were violated

SHOULD THE EVIDENCE BE EXCLUDED PURUANT TO S. 24(2)?

[ 39 ] Emil argues that since his ss. 8 and 9 Charter rights were violated, the Crown’s evidence against him should be excluded under s. 24(2) . Pursuant to that section, evidence that is obtained in a manner that infringes the Charter must be excluded if its admission would bring the administration of justice into disrepute. As a result of the ss. 8 and 9 Charter violations in this case, the police located and seized fentanyl and, it was in the course of the unlawful arrest that the police sought Emil’s identity and he provided a false name. I find that both the drugs themselves and the evidence that Emil gave a false name to the police were “obtained in a manner that infringed the Charter ”.

[ 40 ] The issue for exclusion in this case turns on whether the admission of the evidence would bring the administration of justice into disrepute. In assessing the impact of the violations on the integrity of the justice system, I must consider three factors, known as the Grant factors: (i) the seriousness of the police conduct; (ii) the seriousness of the impact of the violation on Emil’s rights; and (iii) society’s interest in seeing the matter tried on its merits: R. v. Grant, 2009 SCC 32 . The analysis under each of these factors must be focused on the long-term public confidence in the administration of justice, and not focused on punishing the police misconduct or compensating the accused in this particular case.

(i) The First Grant Factor

[ 41 ] The first factor, the seriousness of the state conduct, focuses on whether and to what extent the court needs to disassociate itself from the police conduct. As stated by Doherty J.A. in R. v. Blake, 2010 ONCA 1 , at para. 23 , “the graver the state’s misconduct the stronger the need to preserve the long-term repute of the administration of justice by disassociating the court’s processes from that misconduct”.

[ 42 ] In the case at bar, I have found that Tillsley initially arrested Emil for trespassing only and searched him incident to that arrest. There were several issues with the arrest. Although Tillsley subjectively believed Emil was trespassing, he could not articulate a reason for that belief. Neither the owner of the property was asked if Emil could be there, nor was Emil given an opportunity to say whether he had the right to be there. When Tillsley was asked whether Emil could have been coming from his parked car, Tillsley’s demeanour suggested that he had never turned his mind to the possibility that Emil was not trespassing. I find this quite troubling.

[ 43 ] Moreover, Tillsley himself recognized that since he had not given Emil a warning, he did not even have grounds to arrest for trespassing. Yet, as I have found, that was the sole basis for the arrest.

[ 44 ] In addition to his ss. 8 and 9 Charter rights being violated, Emil’s s. 10(a) rights were also breached, in that based on my findings, Tillsley failed to inform him that he was being detained partially on suspicions for drug activity.

[ 45 ] It is furthermore problematic that 18-year-old Emil, of slight stature, was not only unlawfully arrested, but he was almost instantaneously physically handled by the police to facilitate that unlawful arrest.

[ 46 ] Finally, it is problematic that when Emil wanted to exercise his right to walk away from Tillsley– which Emil would have reasonably believed was his right at that time since he had only been detained for trespassing and there were no grounds for that detention - Emil was not only prohibited from walking away, but he was taken to the ground by two police officers and handcuffed behind his back.

[ 47 ] Instead of arresting Emil, Tillsley could have, and should have investigatively detained Emil based on his reasonable suspicion. It is likely, but not a certainty, that the fentanyl would have been located if Tillsley had lawfully detained Emil for investigation. The fact that Tillsley may not have seized the fentanyl without violating Emil’s Charter rights renders the breach somewhat more serious: R. v. McColman, 2023 SCC 8 , at para. 64 .

[ 48 ] Although I do not believe that Tillsley was intentionally violating Emil’s rights, his ignorance with respect to how he should have approached the situation cannot equate to good faith. I find that the conduct in this case is conduct that the court can not be seen as condoning. It is on the serious end of the spectrum and the first Grant factor strongly favours exclusion.

(ii) The Second Grant Factor

[ 49 ] With respect to the second Grant factor, the seriousness of the impact on the accused’s rights, it focuses on the concern that admitting the evidence would send a message to the public that “ Charter rights are of little actual avail to the citizen”: McColman , at para. 66 . The question for the court is where the violation falls on the scale that spans from “fleeting and technical” breaches to ones that are “profoundly intrusive”: Grant , at para. 76 .

[ 50 ] Emil’s perspective of the situation would have been, given my findings of fact, that Tillsley approached him and within seconds grabbed his bicep and told him he was trespassing. In other words, from Emil’s vantage point, without being asked if he had the right to be there and without giving him the opportunity to leave the property, he was immediately physically handled by the police for the provincial offence of trespassing.

[ 51 ] He was then prevented from walking away, which he believed – according to what he told Tillsley – was his constitutionally protected right and, as I have already found, it was reasonable for him to have formed that belief. Not only was he prevented from walking away, but he was physically handled by the police and at 18-years-old, despite his small stature, was taken to the ground by two police officers.

[ 52 ] This sequence of events sends quite a strong message that Charter rights are illusionary, or put another way, that “ Charter rights are of little actual avail to the citizen”. That message would only be reinforced if the evidence that was obtained as a result of Tillsley’s unconstitutional actions was admitted at Emil’s trial. The second Grant factor therefore also weighs strongly against the admissibility of the evidence.

(iii) The Third Grant Factor

[ 53 ] The cumulative effect of the first two Grant factors weighs heavily in favour of exclusion. The question becomes whether the third factor, society’s interest in seeing the case litigated on its merits, outweighs the cumulative weight of the first two: R. v. Lafrance, 2022 SCC 32 , at para. 90 . Key considerations on the third factor include the reliability of the evidence, the importance of the evidence to the Crown’s case, and the seriousness of the alleged offence. There is no question that with respect to the fentanyl, these factors all weigh heavily in favour of admission. It is reliable evidence, it is pivotal to the Crown’s case and trafficking fentanyl is unquestionably serious. As I informed the court, I unfortunately am personally aware of the seriousness of the offence, as I recently lost a cousin to a fentanyl overdose.

[ 54 ] However, when I consider the seriousness of the police conduct in this case and the fact that there is a “vital interest in maintaining a justice system that is above reproach” ( McColman , at para. 70 ), the interest in seeing the case tried on its merits does not outweigh the cumulative weight of the first two factors. The defence has met its onus in showing that the evidence must be excluded in order to maintain the public’s confidence in the administration of justice.

CONCLUSION

[ 55 ] The fentanyl and the evidence that Emil gave a false name are inadmissible on the trial proper. The Crown accordingly has no evidence to support either conviction. I find Emil not guilty on both counts.

___________________________ JUSTICE C. VERNER

COURT FILE NO.: CR-23-00016196

DATE: 2025/12/15

ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – MORRIS EMIL REASONS FOR JUDGMENT Justice C. Verner

Released: December 16, 2025