R. v. Wynter, 2026 ONSC 1061

CITATION: R. v. Wynter, 2026 ONSC 1061

COURT FILE NO.: CR-23-00000042-0000

DATE: 20260219

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

SHELDON WYNTER

Gina Igbokwe, for the Crown, Respondent

Will Caven, for the Accused, Applicant

HEARD: August 5-6, 2025

RULING ON VOIR DIRE – VALIDITY OF SEARCH WARRANT

CASULLO J.

Introduction

1On September 11, 2021, Sheldon Wynter was charged with two counts of trafficking in controlled substances and one count of fail to comply with probation.

2During the search incident to arrest, a key fob for a BMW was found in Mr. Wynter’s possession. The BMW was located a short distance away from the arrest site. When pressed, the fob locked and unlocked the car doors, and activated the front marker lights.

3The BMW was sealed at Barrie Police Service until a search warrant was obtained. Once received, a search of the BMW turned up a black iPhone and $3280 in cash. The iPhone was stored in Technical Crimes pending the issuance of a search warrant.

4On the basis of an information to obtain (“ITO”), the issuing justice executed the search warrant on December 18, 2021, authorizing a search of the iPhone.

5A search of the iPhone revealed what the Crown submits are drug-related conversations. These have been produced by way of three Extraction Reports. The Crown intends to rely on the evidence downloaded from the iPhone during the trial.

6Mr. Wynter applies to exclude the evidence obtained from that search under s. 24(2) of the Charter, alleging that the search was a breach of his rights to privacy under s. 8 of the Charter.

7The Crown conceded that certain information and/or statements in the ITO should be excised. The court was then provided with a revised ITO (Exhibit 3), with the as agreed-to information/statements redacted in black. The remaining information and/or statements which the Crown submits should not be excised are outlined in red.

8Thus, I am tasked with determining the following:

• Whether the impugned information and/or statements as delineated in Exhibit 3 should be excised; and
• Whether, in light of the excisions I make to the ITO, the contents were sufficient to justify the issuance of the warrant to search the iPhone. In other words, do the modifications to the ITO result in a warrant that was improperly issued.

9On August 6, 2025, I provided my decision on the voir dire orally with written reasons to follow. To wit, in this case there had been no section 8 Charter violation. Despite the modifications to the ITO, both on consent and judicially determined, when the totality of the information remaining in the ITO was considered, there was evidence upon which the issuing justice could have authorized the warrant. The evidence was not excluded and the trial continued. These are my reasons behind that decision.

Background

10On September 11, 2021, a concerned citizen, Ms. King, called police to report that she had seen a male concealing packages in a cedar hedge near to her home. The cedar hedges were adjacent to a catwalk, or laneway, between her home and her neighbour’s home.

11After the man left, Ms. King had waited a short period of time, then went to the cedar hedge and pulled the package out. In the safety of her garage, she opened the package and suspected it to be drugs. Ms. King then called the police.

12Attending officers confirmed the package contained a number of one-ounce plastic bags of cocaine.

13The officers then searched the cedar hedges and found three other packages of drugs:

• One bag contained a 1 kg brick shape of cocaine;
• One bag contained a 1 kg brick shape of cocaine; and
• One bag contained a number of one-ounce plastic bags of cocaine, similar to the bag found by Ms. King.

14DC Marshall was one of the attending officers. He repackaged the drugs with flour with small amounts of cocaine. The repackaged items were placed back into the cedar hedge, and surveillance of the area commenced.

15That same evening, Mr. Wynter was seen to return to the vicinity of Ms. King’s home. In addition to being observed traversing the catwalk, officers saw Mr. Wynter duck briefly into a set of shrubs located on St. Vincent Street. A later examination of this area revealed two bags of drugs, one containing 24.60 kg of packaged fentanyl and the other containing 19.38 kg of cocaine.

16At about 8:30 p.m., while surveilling the cedar hedges, DC Marshall saw a hand reach in and grab the decoy package, drop it immediately, and start running. DC Marshall took chase, encountering Mr. Wynter running out of the Peregrine Road exit of the catwalk. Mr. Wynter was subsequently arrested.

17As noted in the introduction, Mr. Wynter was in control of a black BMW on September 11, 2021, a search of which produced a black iPhone, which was stored in a vault for safekeeping until a warrant was issued.

18On December 17, 2021, DC Marshall swore an affidavit in support of a search warrant for the iPhone. The warrant was granted, with a December 20, 2021 search date.

19According to Appendix C, DC Marshall has investigated several Controlled Drugs and Substances Act (“CDSA”) offences, interviewed many confidential informants in the drug trade, purchased drugs from criminals in an undercover capacity, and spoken with officers who have worked in an undercover capacity purchasing large quantities of drugs from criminals. DC Marshall relied on reports from other Barrie Police Service officers, OPP officers, as well as information from NICHE Records Management System and CPIC.

Law Governing Review of an ITO

20In R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, the Supreme Court set out the foundational basis for applications such as the one at bar:

[39] Under the Charter, before a search can be conducted, the police must provide “reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search” (Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, at p. 168). These distinct and cumulative requirements together form part of the “minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure” (p. 168).

[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 of the peace. 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. [Emphasis in original.]

21Warrants are presumptively valid. Here the onus is on Mr. Wynter to demonstrate that the information in the ITO was not sufficient to establish reasonable and probable grounds to search the iPhone.

22In R. v. Booth, 2019 ONCA 970, 386 C.C.C. (3d) 281, the Court of Appeal provided the following illustrative outline of the review process:

[54] Obviously, it is imperative that issuing judges or justices have an accurate understanding of the material, known facts available to the affiant officer. If the ITO contains erroneous, incomplete, or dishonest information relating to known information, an issuing judge or justice could be misled, and provide an authorization that should not have been provided. To ensure accuracy, anyone seeking an ex parte authorization, such as a search warrant, is required to make full and frank disclosure of material facts: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 46. This is because an ex parte warrant application is not adversarial. As a corollary of the privilege of being the only party permitted to present evidence in an ex parte application, a search warrant affiant bears the burden of presenting the facts accurately and fairly, from the perspectives of both sides.

[55] Therefore, a search warrant ITO should never try to trick its readers, or offer misleadingly incomplete recitations of known facts, and the affiant officer must not “pick and choose” among the relevant facts in order to achieve a desired outcome: Araujo, at para. 47; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 58. Nor should the affiant officer invite inferences that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed: Morelli, at para. 58.

[56] What, then, is the frame of material information that should be included to make full and frank disclosure? To answer that question, consider what is required to issue a “reasonable and probable grounds” search warrant. For such a search warrant to issue, the grounds for the warrant must be adjudged not only to be probable, but reasonable to rely upon. The ITO affidavit has to disclose what Dickson J. described in Hunter et al. v. Southam Inc. as a “credibly-based probability [that] replaces suspicion”: 1984 33 (SCC), [1984] 2 S.C.R 145, at p. 167; see also R. v. Floyd, 2012 ONCJ 417, 263 C.R.R. (2d) 122, at para. 9. As a result, the frame of material information required to achieve full and frank disclosure includes all material information that: (a) could undercut the probability that the alleged offence has been committed; (b) could undercut the probability that there is evidence to be found at the place of the search; and (c) that challenges the reliability and credibility of the information the affiant officer relies upon to establish grounds for the warrant.

[57] Where full and frank disclosure has not been made, a reviewing court will correct the warrant ITO to achieve full and frank disclosure, and then determine based on that corrected ITO whether the warrant could properly have issued if full and frank disclosure had been made. “What is involved is an analysis [of the corrected ITO] to determine whether there remains sufficient reliable information upon which the search authority could be grounded”: R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321, at para. 45.

[58] Sometimes erroneous information in an ITO will be corrected by simply removing it. Information that should not have been included in the warrant will always be “excised” in this way: Morelli, at para. 45.

[59] Erroneous information that would have been appropriate for inclusion in the ITO if presented accurately will sometimes be corrected by “amplification” so that it can be considered during the sufficiency review. Amplification entails adding information that should have been disclosed in order to give an accurate picture or replacing mistakenly inaccurate information with accurate information. When material information that would hinder a finding of reasonable and probable grounds has been improperly omitted, the ITO must be amplified to include it. However, amplification relating to information that could advance the warrant application is permissible only if the error in not making full and frank disclosure is: (1) a “minor, technical error”; and (2) made in “good faith”: Araujo, at para. 59; Morelli, at para. 41.

[60] Whether the omission satisfies the first of these two amplification prerequisites – the “minor technical error” requirement – depends on the significance and nature of the error.

[61] Errors that have been corrected by amplification include: mistakenly attributing observations to the wrong observer (Araujo, at para. 61; R. v. Lewis, 2012 NBQB 312, 395 N.B.R. (2d) 201, at para. 24); mistaken dates and typographical errors (R. v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305, at para. 75; Lewis, at para. 15); and erroneous but unimportant errors in the description of the source of information (R. v. Plant, 1993 70 (SCC), [1993] 3 S.C.R. 281, at pp. 298-299; R. v. Lall, 2019 ONCA 317, 432 C.R.R. (2d) 195, at para. 39; R. v. Van Diep, 2015 BCCA 264, 373 B.C.A.C. 230, at para. 5.)

[62] In contrast, amplification was not available for errors that are too significant to qualify as “minor, technical” errors, including: the failure to identify properly the target unit in a plaza (R. v. Ting, 2016 ONCA 57, 333 C.C.C. (3d) 516, at para. 71); the failure to include information supporting the expertise of a police officer (Morelli, at para. 74); and the failure to provide evidence supporting the provenance and reliability of a document of disputed authenticity (R. v. Voong, 2013 BCCA 527, 304 C.C.C. (3d) 546, at para. 52.)

[63] Where the erroneous information cannot be corrected because the error is not a “minor, technical” one, it is obvious that it must be excised in its entirety. This is because the uncorrected, erroneous information simply cannot be permitted to remain in the ITO, thereby providing an inaccurate boost to the case for reasonable and probable grounds.

[64] The same is true where an officer has not acted in good faith when failing to make full and frank disclosure – the second amplification prerequisite. Given that amplification is confined to “good faith” error correction, it follows that by acting in bad faith, an affiant officer squanders the opportunity to have intentionally misleading information considered in its corrected form by the reviewing judge. The misleading information cannot remain.

[65] In some cases, bad faith on the part of an affiant officer can have an even more profound effect. Where an affiant officer’s failure to make full and frank disclosure is egregious enough to “[subvert] the pre-authorization process through deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like”, a court has the “residual discretion” to set aside the search warrant, even if there would have been reasonable and probable grounds, had there been full and frank presentation of the information: Paryniuk, at para. 69.

[66] To emphasize, “amplification” is to be used to correct “minor, technical” errors caused by a good faith failure to make full and frank disclosure. It is not an opportunity during the search warrant review for the Crown to retroactively add information that it could have included in support of the warrant but failed to do so: Morelli, at para. 42. To permit this would turn the authorization process into a sham: Araujo, at para. 59.

23To be clear, I am not being asked to amplify any errors contained in the ITO. I am only concerned with whether the excisions opposed by the Crown should remain.

Application of the Law to the Case at Bar

24Mr. Wynter initially took issue with twelve discrete sections of the ITO which he states are erroneous or misleading, all of which are set out in Exhibit 1 to the voir dire, “Table of Proposed Excisions.”

25Prior to the voir dire beginning in earnest, and at my request, court was stood down and counsel provided with an opportunity to discuss the proposed excisions. The Crown consented to seven excisions, some with an accompanying explanation. When the voir dire recommenced there remained five impugned sections. It is most convenient to review these challenged sections individually.

ITO – Page 11

26The first full sentence of page 11 reads as follows:

Considering the magnitude of events that had to occur prior and after September 11/2021 to facilitate the purchase and distribution of 3.2 kilograms of cocaine and the fact that Sheldon Wynter is well known to police as a drug dealer will justify [sic] a search of the Apple 1 cell phone between the time frame request as March 23, 2021 and Sept 18, 2021.

27Defence submits that this language invites the issuing justice to speculate and draw inferences about Mr. Wynter’s activity during this timeframe without any objective supporting evidence: factual claims made in the [ITO] affidavit that are without factual foundation of credibility should be disregarded. For this reason, bald unsupported conclusions and erroneous or false facts should notionally be excised from an [ITO] affidavit: R. v. Floyd, 2012 ONCJ 417, at para. 14.

28The Crown submits that DC Marshall provided his objective supporting evidence further on in the ITO, specifically at pages 26 to 27, where he wrote:

Based on my experience as a police officer who investigated several CDSA offences, who has interviewed many confidential informants involved in the drug trade, who has purchased drugs from criminals in an undercover capacity, who has spoken to other police officers that have worked in an undercover capacity purchasing large quantity of drugs from criminals, I believe, for someone to come in possession of this quantity of drugs, 3.2 kilograms, takes a considerable amount of communication between two or more persons and a considerable amount of planning. This may have happened over the course of more than one day, possibly days or weeks or even months, to orchestrate.

ITO – Pages 13-15

29This section of the ITO appears to contain the entirety of a report from NicheRMS, authored by Constable Breedon with Barrie Police Service. The date is not provided.

30In summary, Mr. Wynter and a Ms. Whittaker were identified as carrying out activities conducive to trafficking at a residence on Sanford Street. They were also seen leaving said residence and attending at a Quality Inn hotel where officers observed several transactions consistent with trafficking from room 138.

31Search warrants were obtained for both locations. After their execution, the items seized included 3 bundles of cash totalling $15,015 in Ms. Whittaker’s purse, a bundle of $9,250 cash in Mr. Wynter’s pants pocket, $250 of loose currency in Mr. Wynter’s pocket, 0.60 g of crack cocaine in Ms. Whittaker’s bra, and a digital scale with cocaine residue.

32Mr. Wynter and Ms. Whittaker were jointly charged with possession of cocaine for the purpose of trafficking, and possession of property obtained by crime over $5,000. Ms. Whittaker was solely charged with possession of cocaine.

33Constable Marshall concludes this particular section by noting that pursuant to CPIC, on April 1, 2019, Mr. Wynter was convicted of simple possession. In other words, a lesser charge than possession for the purpose of trafficking.

34Defence concedes that reputational evidence is permitted. However, the concern here is that the information is unclear and misleading. For example, while CPIC shows Mr. Wynter was convicted of simple possession, it is unclear what substance he possessed. Pursuant to Constable Breedon’s report, Ms. Whittaker was the only party charged with simple possession. Because he was only convicted of simple possession it is irrelevant to include this in the ITO.

35The Crown submits that reputation can establish probable cause. Mr. Wynter’s reputation as a trafficker and user is a relevant factor formulating reasonable belief that the iPhone may contain evidence of trafficking.

ITO – Pages 19 - 21

36These pages summarize Mr. Wynter’s criminal convictions. DC Marshall took care to include only Mr. Wynter’s drug convictions. He also included convictions that he believed were related to drug convictions, namely firearms and proceeds of crime offences. There was also reference to statutory release charges.

37The simple possession charges and firearms charges included in this section were excised on consent.

38The Crown consented to the excision of the statutory release charges, with the caveat that their inclusion did not fall into the category of fraudulent or misleading information, but rather giving context to the possession for the purposes of trafficking convictions that preceded it. In any event, these charges are not necessarily required to establish grounds for searching a phone. Instead of being subversive, the officer was trying to provide as much helpful information as possible.

39The charges that remained are as follows:

• 1999 Possession for the purpose of trafficking Schedule I
• 2001 Possession for the purpose of trafficking Schedule I
• 2001 Possession for the purpose of trafficking Schedule I
• 2002 Possession for the purpose of trafficking Schedule 1
• 2003 Possession for the purpose of trafficking Schedule 1
• 2003 Possession for the purpose of trafficking Schedule 1
• 2008 Possession for the purpose of trafficking Schedule 1 x 3
• 2010 Possession for the purpose of trafficking Schedule 1 x 2
• 2010 Possession of proceeds of crime
• 2021 Possession for the purpose of trafficking Schedule 1

40The Crown opposed the excision of the proceeds of crime charge, as it is relevant to activities involved in drug trafficking. Particularly given that the ITO references the fact that over $3,000 was found in the BMW’s glovebox when searched.

41Defence submits that proceeds of crime is not necessarily related to drug trafficking offences.

ITO – Page 23

42This page summarizes Mr. Wynter’s adult convictions in a list.

43The Crown opposed the excision of the proceeds of crime charge for the same reasons as set out above.

44The defence sought excision for the same grounds as set out above.

ITO – Page 24

45The last sentence reads as follows:

In 2017 Sheldon Wynter was arrested and charged for possession for the purpose offences related to cocaine and fentanyl as summarized in the aforementioned report authored by Detective Constable Breedon – sourced through Niche RMS. Sheldon Wynter was convicted only for possession of a controlled substance schedule 1, but he served 229 presentenced custody for this conviction as the 5(2) possession for the purpose was withdrawn – source through CPIC.

46Defence takes issue with “was convicted only for possession of a controlled substance schedule 1, but he served 229 presentenced custody for his conviction.” To wit, this is a loaded statement, meant to infer that Mr. Wynter’s criminal conduct justified a lengthy presentence custody.

47Crown submits that this provides additional context to the content contained in pages 13-15 above. Thus, although the charge of possession for the purposes was withdrawn, Mr. Wynter served 229 days and was convicted of simple possession. This description of simple possession, following as it does after a period of significant custody, is relevant to DC Marshall’s subjective belief that Mr. Wynter was involved in drug activity and drug trafficking.

Discussion

48The primary issue here are the numerous references to Mr. Wynter’s criminal antecedents, and whether their inclusion led the viewing court into issuing the warrant on reputation.

49As Wilson J. held in R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140, reviewing the Ontario Court of Appeal’s position on this issue, at para. 27:

Citing the decision of this court in Eccles v. Bourque, 1974 191 (SCC), [1975] 2 S.C.R. 739, Martin J.A. pointed out that the fact that information Constable Birs received was hearsay from another officer did not preclude it from establishing probable cause. Martin J.A. also ruled, at p. 220, that the reputation of a person as a drug user and drug trafficker may be “a relevant factor constituting part of the total circumstances that induce a reasonable belief that the suspect has upon his person a prohibited drug” even although it would not by itself constitute reasonable grounds. The policy rule that excludes such evidence at trial has no application, he stated, in determining probable grounds for an arrest or search.

50Wilson J. went on to state, at para. 57:

I am sensitive to the argument advanced by counsel for the appellant that the reputation of a suspect should not be used to buttress an otherwise insubstantial care for searching a suspect. At the same time I find it difficult to accept the proposition that the past activities of a suspect are irrelevant.

51And at para. 58:

[…] Having said that, I add the following caveats to the use of reputation as germane to the issue of a reasonable search. First, the reputation of the suspect must be related to the ostensible reasons for the search. A background of driving offences, for example, has little relevance to drug trafficking. Second, if the reputation of the suspect is based on hearsay rather that police familiarity with the suspect, its veracity cannot be assumed. In the present case, it appears that the police relied on both direct experience and hearsay.

52Criminal history extracted from a criminal record may be properly included in an ITO. Its cogency will depend on the similarity to the criminal activity alleged and the age of the record: R. v. MacDonald, 2012 ONCA 244, at paras. 22-23.

Decision

53The impugned paragraph at page 11 of the ITO shall not be excised. I find that DC Marshall was simply conveying to the issuing judge that, in his experience, a drug dealer just doesn’t come into possession of such a large quantity of drugs overnight. There are steps that need to be taken, deals to be made, arrangements put into place.

54The impugned paragraphs on pages 13-15 shall be excised. They describe a police investigation which uncovered a large quantity of narcotics at a private residence. Mr. Wynter was arrested as part of this investigation, but only for simple possession, not a drug trafficking offence.

55The impugned words “proceeds of crime” on page 19 shall remain. This information is relevant to the September 11, 2021 charges, in that it shows Mr. Wynter was profiting from the distribution of drugs.

56The impugned words “proceeds of crime” on page 23 shall remain. This information is relevant to the September 11, 2021 charges, in that it shows Mr. Wynter was profiting from the distribution of drugs.

57The following portion of the impugned paragraph on page 24 shall be excised: “but he served 229 presentenced custody for this conviction as the 5(2) possession for the purpose was withdrawn – source through CPIC.” This information was irrelevant to the issuing judge’s determination on the warrant proper.

Conclusion

58With the excisions made, both on consent and judicially determined, I am satisfied that there was sufficient and credible evidence to permit the authorizing judge to find reasonable and probable grounds to believe that evidence of trafficking might be found in the iPhone. The search warrant would have issued with all impugned sections excised.

59The March 20, 2021 search warrant is valid, and the search of the iPhone lawful.

Exclusion of Evidence

60In the event I am incorrect, and the search warrant should not have issued, I turn to a discussion of whether the cell phone extraction evidence should be excluded.

61Mr. Wynter submits that his Charter rights were breached when the warrant was granted to search his iPhone. Thus, the admission of the cell phone extractions obtained following the search would bring the administration of justice into disrepute.

62In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the Supreme Court of Canada set out three factors to consider when determining whether admitting evidence will bring the administration of justice into disrepute:

a. The seriousness of the Charter-infringing conduct; b. The impact of the breach on the accused’s Charter-protected interests; and c. Society’s interest in the adjudication of the case on its merits.

63Here, the police conduct is nothing approaching serious misconduct. If there was any misconduct, it was DC Marshall’s erring on the side of drafting a fulsome affidavit. There was no overextension of the amount of background and criminal history included in the ITO, but rather an effort to give the reviewing court all of the information it needed to arrive at a reasoned decision on the application.

64However, information cannot simply be included for the sake of completeness, as an overabundance of information cannot assist in forming the objective grounds necessary to authorize a search: R. v. Pasian, 2015 ONSC 1557, at para. 51. In the case at bar, the entirety of what occurred on September 11, 2021, during the course of DC Marshall’s surveillance and investigation of Mr. Wynter, provided the factual basis for DC Marshall’s belief that evidence of trafficking would be found on the iPhone. This factor weighs in favour of inclusion.

65The search of Mr. Wynter’s cell phone did undermine Mr. Wynter’s Charter interests. Cell phones hold a great degree of privacy, containing a user’s private and personal information. This factor weighs in favour of exclusion, but not strongly so. The extractions included no personal information beyond a few pages referencing Mr. Wynter’s e-bike injury and visit to the hospital. Therefore, the impact on Mr. Wynter’s Charter-protected interests does not strongly weigh toward exclusion.

66There is a great societal interest in having a case such as this one tried on its merits. It bears noting that the exclusion of the extraction reports will not end the prosecution. The Crown will still be left with the evidence of Ms. King and her observations of Mr. Wynter, the drugs themselves, and the evidence of the officers who formed the investigation and surveillance team. This factor weighs in favour of inclusion.

67After careful consideration, I find that the balancing of the three s. 24(2) factors militates in favour of admitting the evidence.

CASULLO J.