Court File and Parties

Court File No.: CR 25-99 Date: 2026-02-23 Ontario Superior Court of Justice

B E T W E E N:

HIS MAJESTY THE KING

Mahdi Bayat for the Crown Respondent

-and- SHARMAKE HASSAN

James Miglin for the Applicant

Heard: January 14, 2026

Reasons on Charter Motion

D.E. HARRIS J.

[1] The Applicant was a suspect in a robbery and discharge firearm offence that occurred on June 16, 2021. The victim was robbed at gun point in a plaza in Mississauga. The suspect pointed a firearm at the victim before grabbing his duffle bag. The bag contained $9,500 in cash and a MacBook. The suspect then fled with a number of other individuals whom it is reasonable to conclude were his accomplices. The victim chased the suspect who fired the firearm in his direction. The bullet grazed the victim's right leg.

[2] The robbery was captured on video surveillance. The suspect with the firearm wore a GAP hoodie. Prior to the robbery, the suspect purchased a pop bottle from a Pizza Depot in the same plaza. The suspect took a sip from the pop bottle and placed it on the ground. The pop bottle was seized and then swabbed by police. Testing of the DNA from the pop bottle indicated that the Applicant was the likely donor.

[3] Nearly two years later, in April of 2023, after the Applicant was identified as a suspect, the police applied for and obtained a search warrant to search his residence for cellular devices and clothes. They located and seized a number of items including a firearm, ammunition, cocaine and fentanyl. Several cell phones were seized as well.

[4] The Applicant does not dispute that there were reasonable grounds to believe that he was the perpetrator of the June 16, 2021 robbery and that he was the person wearing the GAP hoodie. Rather, it is argued that almost two years later, grounds to believe that there would be evidence of the robbery offence in the Applicant's residence no longer existed. The main argument is that there was insufficient evidence constituting grounds to believe that the items sought—a cell phone and the GAP hoodie—would be found at the Applicant's residence. A secondary argument is that the affiant should not have included the Applicant's history of criminal charges in the Information to Obtain a Search Warrant (ITO) and that the Applicant was unfairly prejudiced as a result.

I. There Was Insufficient Evidence That the Items Sought Would Be Found at the Applicant's Residence

[5] It is true that the Applicant moved between the time of the alleged offence and the issuance of the search warrant. And the current address upon which the search warrant was executed could well have been a temporary one. Other charges had been laid against the Applicant after the alleged robbery and he was required to reside with his sureties at 1214-320 Dixon Road where the warrant was executed. His GPS bracelet required as part of his bail confirmed this address.

[6] But the predicate of the argument as it relates to the GAP hoodie is that it is unlikely that a person almost two years after the fact would still be in possession of a particular piece of clothing.

[7] I disagree with the Applicant's argument. It is completely reasonable that someone would have a piece of clothing for a period of at least two years. That is typical. There was some reference in oral argument to the lack of an averment in the ITO by the affiant to this effect. There need not be. A judicial officer does not leave their intelligence and deductive capacity at home when reviewing a search warrant application. The predicate that clothing is often kept for at least two years is well within the general experience and logic of an issuing justice: R. v. Kruk, 2024 SCC 7, 489 D.L.R. (4th) 385, at paras. 71-75.

[8] The other item particularized in the affidavit that the police were searching for was the Applicant's cell phone or phones. The ITO stated:

Cellular devices belonging to the suspect: - Seizing HASSAN's cell phone will assist police in identifying additional suspects involved in the robbery. The suspect, HASSAN, is observed arriving alone and meeting with three unknown suspects at the incident location. All four suspects are later observed fleeing in the same direction.

[9] The Applicant attacked several aspects of the request to search for a cell phone. The first point was that the evidence that the Applicant even owned or possessed a cell phone was insufficient. I agree that there was no direct evidence that the Applicant had a cell phone. But in my view, again employing general experience and logic, most people now own a cell phone. It is only in rare cases that a person does not own one. The point made by counsel that indigent people often do not own a cell phone is insufficient to blunt this inference. Furthermore, it is an available inference that those engaged in a robbery offence like this one—which the Applicant agrees there were reasonable grounds to support—often have cell phones to facilitate criminal activity: R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 48. That is particularly true when there are several accomplices. Ultimately, it was open to the issuing justice to find that there was sufficient reason to search for cell phones.

[10] It was also suggested that this was a fishing expedition and that to say there was enough evidence that a cell phone would yield evidence to assist with this robbery prosecution would mean that cell phones could routinely be sought for such a general purpose. That is an argument, albeit in terrorem, worthy of consideration but I ultimately reject it in the context of this case.

[11] I would agree with the Applicant's argument if there was nothing particular outlined that could conceivably have been found on a cell phone. But there was specific evidence sought based on the circumstances of the crime. The victim was likely targeted as shown by the evidence that he had large amounts of cash in his duffle bag. The robbery was planned. And there were several associates observed at the scene of the crime. It made sense that there could well have been communication between the conspirators before and potentially after the offence. This raised the value of the evidence above the generic to the point that a judicial officer could rely upon it to authorize a warrant to look for cell phones.

[12] It was also raised that two years after the alleged offence, the Applicant if he ever had a cell phone, would likely have obtained a new one. That again is a reasonable possibility. But people often have cell phones for more than two years. More importantly, people through the use of backup systems often have much of the same information on their new phone as they had on their old phone: see for a similar conclusion Fearon, at para. 130. Furthermore, information on the phone can often be used to discover other evidence, such as from the suspect's internet provider.

II. Including Bad Character Evidence in the ITO Was Improper

[13] The Applicant argues that bad character evidence should not have been included in the ITO. The ITO refers to a series of gas station robberies that occurred on November 16, 2019, stating the Applicant had been charged with three counts of robbery. The outcome of the charges is not stated.

[14] The affiant also references a November 14, 2019, attempted robbery of a Telus store in Milton and a DNA hit between DNA found on a cigarette in the vehicle used in the commission of that offence and the DNA on the bottle from the robbery which has been identified as the Applicant's DNA. The affiant concludes by stating that Mr. Hassan was listed as a "responsible party" but was not charged because it was decided to charge him with only more serious offences.

[15] Finally, there is reference in the ITO to a November 19, 2019 robbery of a Rogers store in Guelph. The affiant states that Mr. Hassan was a person of interest and notes a similarity between that robbery and the Milton robbery noted above. The outcome of the charges, if any were laid, is not mentioned. In this case, and in the others referred to above, it is a reasonable inference from the lack of information, that the Applicant was not charged. The duty to make frank and full disclosure would have, if it were otherwise, required some further information. The Applicant could have applied to cross-examine the affiant on the past criminal activity or called other evidence but declined to do so.

[16] It is much preferred if the police in search applications include the result of the investigation whatever it might be: R v Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321, at paras. 78-79, leave to appeal refused. But even if the conduct is uncharged, this kind of evidence may be of some weight. Although it would clearly not be admissible at trial, a search warrant application differs in fundamental ways from a trial. First, the adjudicator is a judicial officer and can guard him or herself against being contaminated by moral or reasoning prejudice: R. v. Tsigirlash, 2019 ONCA 650, at paras. 38-40; R. v. MacCormack, 2009 ONCA 72, 241 C.C.C. (3d) 516, at paras. 56, 68-69. Second, the evidence may well have relevance through propensity type reasoning: R. v. Debot (1986), 30 C.C.C. (3d) 207 (Ont. C.A.), at pp. 220-21.

[17] In affirming the Court of Appeal judgment in Debot, Wilson J. in the Supreme Court discussed this issue in some depth. She held that offences the accused has not been convicted of may be proper to include because the bad character policy excluding such evidence is "obviously not as cogent at the investigatory stage where the liberty of the subject is not directly at stake". She held, however, that the evidence must relate to the ostensible reasons for the search. A background of driving offences has little relevance to drug trafficking, for example: R. v. Debot, [1989] 2 S.C.R. 1140, at pp. 1169-70.

[18] I take this to simply require that the evidence must be relevant. Here it clearly was as the past offences were robberies and the current offence was a robbery offence as well. Most significantly, the Telus robbery was directly linked by DNA evidence to the Applicant. While more care should be taken not to load an ITO up with evidence of other criminal offences, particularly where there is no evidence the suspect was convicted, I see no significant harm being caused in the present situation. In this case, it was conceded that there were reasonable grounds to believe that the Applicant committed the robbery being investigated.

[19] In conclusion, there were sufficient grounds such that a judge could have issued the search warrant: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54. It has not been established that there was a calculated attempt to mislead the issuing justice as the Applicant has contended.

[20] Subsequent to the hearing, the ITO and warrant for the cell phone which was seized upon the execution of the warrant on Mr. Hassan's residence were unsealed. Nothing found on the phone was of evidentiary value and consequently nothing is being tendered at trial. Nonetheless, counsel for Hassan filed written submissions arguing that the warrant constituted an additional breach of the Charter. The Crown did not respond.

[21] The position of the Applicant is that the cell phone warrant was substantially overbroad and in effect allowed an unfettered search of everything on the phone. This argument is not without some merit.

[22] Looking at the purpose of the search, the ITO said, consistent with the first warrant, that the purpose was to search in order to identify the Applicant's confederates in the robbery. The other stated purpose was to attempt to determine the source of the fentanyl found in the search of the Applicant's residence. The ITO specified what areas of the phone were of investigative interest but, reasonably construed, the areas encompassed much if not all of the data on the phone.

[23] Without finally deciding the question, I tend to agree that there should have been some boundaries established in the warrant to confine the search. A cell phone is the functional equivalent of a computer. Computers and cell phones "have immense storage capacity, [and] may generate information about intimate details of the user's interests, habits and identity without the knowledge or intent of the user, may retain information even after the user thinks that it has been destroyed, and may provide access to information that is in no meaningful sense 'at' the location of the search.": Fearon, at para. 51; see also Fearon, at paras. 48-58. The capacious nature of a computer or cell phone containing all manner of deeply private information requires that precision and caution be exercised to protect Charter interests: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 1-4, 105.

[24] However, if there was a Charter breach, there was no evidence obtained as a result of it. No evidence from the cell phone is being tendered against the Applicant. The Applicant is correct that the evidence of a potential Charter breach subsequent to the discovery of evidence can nonetheless be significant in a s. 24(2) analysis: R v. Boutros, 2018 ONCA 375, 361 C.C.C. (3d) 240, at para 26; R v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 48.

[25] But in this case, not only was there no Charter breach shown based on the original warrant, but any potential Charter breach from the overbroad cell phone warrant could not be credibly argued to have been committed in bad faith. Indeed, there was no effort by the Applicant to cross-examine the affiant. Although an attack on the affiant is not required as a matter of law (R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at paras. 42-47), in the absence of such a challenge in the present circumstances I cannot find that the conduct of the affiant reflects negatively on the obtaining of the evidence: Hurd v. Hewitt (1994), 120 D.L.R. (4th) 105 (Ont. C.A.), at p. 117.

[26] The cell phone warrant imperfections, assuming they exist, do not generate any substance to advance the Applicant's argument. For these reasons, the application for Charter relief is dismissed.

D.E. HARRIS J.

Released: February 24, 2026