R. v. Ivey-David, 2026 ONSC 1948

CITATION: R. v. Ivey-David, 2026 ONSC 1948

OSHAWA COURT FILE NO.: CR-22-91105359-0000

DATE: 20260401

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

Respondent/Crown

– and –

Jordan Ivey-David

Applicant

David Levy, for the Crown

Noelle Sagher and Victoria Palermo, for the Defendant

Heard: March 5, 2026

APPLICATION UNDER SECTION 8 OF THE CHARTER

sutherland j.:

OVERVIEW

1Mr. Ivey-David is charged with possession of cocaine and fentanyl for the purpose of trafficking, use of a firearm and failing to comply with a condition of release.

2Mr. Ivey-David brings an application based on section 8 of the Charter of Rights and Freedoms¹ alleging that his right to be "secure against, unreasonable search or seizure" has been violated due to the conduct of York Regional Police ("YRP"), the search of the premises located at 5740 Yonge Street, Unit 1109, Toronto, Ontario ("the Premises") and further requests that the items found in this unauthorized search and seizure be excluded as evidence in his trial.

FACTS

3On June 29th, 2022, at 6:14 pm, YRP were called to 39 Crosby Avenue, Richmond Hill in relation to a robbery. Attending officers met with the victim, Sorena Shirazi, who resided at that address.

4Mr. Shirazi reported that shortly before the call to police, he met with a male in the lobby of his apartment building for the purposes of buying some jewelry. Mr. Shiraz allowed the suspect, a person previously known to him, into the lobby of the building, and the two walked into the stairwell to walk up to Mr. Shirazi's apartment.

5While in the stairwell, it is alleged that the applicant asked Mr. Shirazi if he had the money. Mr. Shirazi produced money from his pocket – $6,500, as previously agreed upon. The applicant allegedly took the money and then produced a handgun from a satchel. The suspect attempted to take the ring from Mr. Shirazi's finger. When he resisted, it is alleged that the applicant pointed the firearm at his face before striking him with it twice on the left side of the head. Mr. Shirazi allowed the suspect to remove his ring along with taking his cellphone from his pocket and a gold chain and pendant from around his neck.

6Surveillance video from the lobby of the apartment building captured the applicant entering the lobby and leaving shortly thereafter.

7Mr. Shirazi reported that he knows the applicant as Jordan with a street name of "Shyst" and that he drives an older model of a black Mercedes Benz. He also stated an area where Jordan previously resided. According to Mr. Shirazi, a few days prior, Jordan, who has the username of TerryFox, contacted Mr. Shirazi on SnapChat, and they began communications about a gold chain that Jordan was selling. The two also communicated by telephone.

8Based on the information provided, an investigation using police databases determined the identity of Jordan as being Jordan Ivey-David. An older model of a Mercedes Benz was registered to the applicant.

9A Criminal Code² search warrant was authorized for the Premises. The warrant was executed on June 30th, 2022. The applicant was arrested inside the apartment.

10A Theresa Bennett and her son were also in the apartment when the search warrant was executed.

11A search of the Premises resulted in the seizure of clothing and shoes worn during the robbery, Mr. Shirazi's ring, a large quantity of Canadian currency, and a large quantity of suspected scheduled substances. Two cell phones were also seized. The applicant's identification and mail addressed to him were also found in the apartment.

12Subsequent processing and testing of the suspected scheduled substances showed that officers seized a total of 260.94 grams of cocaine and 65.4 grams of fentanyl. Approximately $13,000 in cash was also seized.

The Information to Obtain Telewarrant to Search (ITO)

13An ITO dated June 30, 2022 was submitted by Detective Terry Hobor. The ITO was reviewed by Justice of the Peace C.J. Dube. On June 30, 2022 at 3:40 am, Justice of the Peace C.J. Dube issued a Telewarrant for the search of the premises for items to be searched for and seized as described in Appendix "A" attached to the Search Warrant.

Position of the Applicant and the Crown

14It is the submission of the applicant that there is no evidentiary nexus that the applicant resided at the Premises. Given that there was no nexus linking the applicant to the Premises, there was no credible and reliable evidence to permit a finding of reasonable and probable grounds that evidence of the offence would be found at the Premises. As such, the ITO should not have been granted. The search breached the applicant's s. 8 rights. Further, the applicant argues that with the breach of his Charter right, the evidence obtained from the search should be excluded. An analysis under s. 24(2) of the Charter leads to the conclusion that the evidence obtained must be excluded.

15The Crown argues that there was an evidentiary nexus which the Justice of Peace correctly relied upon to grant the ITO. The Crown argues that the investigation of YRP found a nexus between the applicant and Ms. Bennett. The applicant's vehicle was identified and observed in a parking spot. There was urgency to act rather than waiting around to observe the applicant either entering or exiting the Premises. There was a belief by YRP that evidence of the robbery would be at the Premises. The ITO was justified. The warrant must be upheld. There is no breach of the applicant's s. 8 rights and if there is, the evidence seized should not be excluded. Admitting the evidence seized would not bring the administration of justice into disrepute.

ISSUES

16The applicant frames the issues for the Court to decide as follows:

(a) Did the ITO contain sufficient grounds that a search of the Property would afford evidence of the robbery being investigated?

(b) If not, were the applicant's s. 8 Charter right breached?

(c) If so, should the evidence obtained be excluded?

Did the ITO contain sufficient grounds that a search of the Property would afford evidence of the robbery being investigated?

Legal Principles

17There is no contest between the applicant and the Crown of the legal principles that apply.

18The issue on review of a search warrant's authorization is "whether there is sufficient credible and reliable evidence to permit a 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 specific time and place of search." Warrants are, in this way"place-specific." See: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 84 ["Sadikov"].

19Probable cause for a search warrant does not arise "from a purely conclusory narrative." There must be "a substantial basis for the existence of the affiant's belief" in the ITO. Moreover, there must be something in the ITO to sufficiently link an accused's alleged offence and the residence to be searched. See: R. v. Pedram Maleki, 2015 ONSC 2261, at paras. 12 and 13; R. v. Soares, 2013 ONCJ 672, at paras. 99-100; and R. v. Paxton, 2016 ONSC 2906, at paras 47-49.

20In reviewing the ITO for sufficiency, the question is "whether the issuing Justice could have found that the content of the ITO in its redacted form, and the reasonable inferences that could be taken from it, give rise to a credibly-based probability" that the Applicant had taken the items from the alleged robbery, and a firearm, into the Property by taking a common sense holistic approach. See: R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, at p.1446-1447; Sadikov, at para. 37; and R. v. Herta, 2018 ONCA 927, 143 O.R. (3d) 721, at paras. 21, 48 and 50 ["Herta"].

21The Ontario Court of Appeal in R. v. James, 2019 ONCA 288, 145 O.R. (3d) 321, summarized the principles as follows:

19I extract the following principles from Watt J.A.'s decision in R. v. Sadikov, [2014] O.J. No. 376, 2014 ONCA 72, 305 C.C.C. (3d) 421, at paras. 83-84 and 89:

(1) Warrant review begins from a premise of presumed validity. The onus of establishing invalidity falls on the person who asserts it.

(2) The scope of warrant review is narrow. The review is not a de novo hearing of the ex parte application. The reviewing judge does not substitute his or her view for that of the issuing judge.

(3) The standard is whether there is sufficient credible and reliable evidence to permit a 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 search. Was there reliable evidence that might reasonably be believed on the basis of which the warrant could have issued? [page329]

(4) An appellate court owes deference to the findings of the reviewing judge in his or her assessment of the record. Absent an error of law, a misapprehension of evidence, or a failure to consider relevant evidence, an appellate court should decline to interfere with the reviewing judge's decision.

Analysis

22The evidence was from Detective Constable Hobor ("DC Hobor"). There is no dispute that the identity of the applicant is the suspect for the robbery given the identification by Mr. Shirazi. The evidence indicated that there was a link of the applicant to Ms. Bennett but that information was dated from 2014 and 2019. The evidence also indicates that the applicant's current address is on Erskine Avenue in Toronto or that the applicant is also known to reside on Bayview Avenue in Richmond Hill.

23The evidence indicates that his vehicle was found in the parking area of the Premises at parking spot A18. But there is no evidence if parking spot A18 was for visitors parking or had any connection to the Premises. There was no evidence provided that indicated his entering or leaving the Premises or the condominium building.

24The evidence indicates that police attended the Erskine Avenue property but did not locate the applicant or his vehicle at that residence.

25Further, DC Hobor stated that he believed that the applicant lived at the Premises and believed that it is unlikely that the applicant would discard items obtained from the robbery and would still be in possession of the firearm.

26From a holistic view of the ITO, I am not satisfied that the Justice of the Peace could have found that the applicant was at the Premises and took the stolen property and firearm to the Premises. The statements by DC Hobor are conclusory from his belief. There was no substantial basis provided that gives a nexus of the applicant to the Property to provide existence to the conclusory beliefs of DC Hobor that the applicant resides at the Premises with Ms. Bennett. The statements by DC Hobor were speculative, at best. I agree with the applicant that the seeking of a warrant was premature. Further, investigation was necessary to connect the applicant to the Premises. There could have been a knock on the door of the Premises to investigate whether the applicant was at the Premises or communicate with the occupant for an investigative purpose. See: R. v. Le, 2019 SCC 34, 1029 SCC 34, [2019] 2 S.C.R. 692, at paras. 125, 210 and 212; and R. v. Singer, 2026 SCC 8, at para. 79 ["Singer"].

27Further, I am not satisfied that, as the Crown submitted, there is some immediacy that the stolen property and firearm would have been discarded given the statements of the Detective Constable. The stolen property and the handgun would not have been disposed of and would remain in the possession of the applicant.

28In my view, the ITO cannot be upheld, as suggested by the Crown, based on the evidence provided. There is no sufficient link that the applicant would be at the Property and that the stolen property and firearm could be at the Premises.

Have the applicant's s. 8 rights been breached?

29The Crown did not contest that the applicant has s. 8 rights in the circumstances and that if the Court determines that the ITO could not have been granted, his s. 8 rights have been breached.

30In the circumstances, I do find that the applicant's s. 8 rights have been breached.

Should the evidence obtained be excluded?

31In determining whether evidence obtained for a search that violates the defendant's s. 8 rights should be excluded, the court considers all of the circumstances and whether the admission of the evidence would bring the administration of justice into disrepute. To make such a determination, three lines of inquiry are to be examined. These lines of inquiry are: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the Applicant/accused; and (3) society's interest in adjudicating the case on its merits.³

32I will examine each of the three considerations separately.

Seriousness of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)-Infringing Conduct

33In assessing under the first test, the Supreme Court of Canada in Singer at para. 110 stated:

110The first line of inquiry under s. 24(2) considers whether the Charter-infringing state conduct is so serious that the court needs to dissociate itself from it. This line of inquiry requires a court to situate the seriousness of the state's Charter-infringing conduct on a spectrum of culpability. At one end of the spectrum are infringements that are technical, inadvertent, or otherwise minor, as well as those that reflect an understandable mistake. At the other end are infringements that constitute a wilful or reckless disregard for Charter rights, a major departure from Charter standards, or a systemic pattern of Charter-infringing state conduct (Grant, at para. 74; Fox, at para. 94; Tim, at para. 82; Beaver, at para. 120).

34The conduct of the police, I find resulted in a serious breach of the Charter protected right. This is not a case where the breach was inadvertent or minor. An ITO was sought and granted. However, I agree with the applicant's argument that no further investigative steps were taken by YRP to ascertain whether the applicant resided at the Premises. Whether Ms. Bennett still resided at the Premises. Whether anyone resided at the Premises, associated with the applicant or not. In effect, YRP took no steps to substantiate a nexus between the applicant and the Property. The ITO further, I find was not fully frank in the depiction of the applicant's nexus to the Property and to Ms. Bennett. There was no evidence that substantiated the conclusory statement that Ms. Bennett "is an associate" of the applicant and that she presently resided at the Premises.

35Thus, looking at the ITO, its less than fully frank disclosure with its speculative conclusions as described above leans in favour of exclusion. See: R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 742, at paras. 28-32.

The Impact of the Breach

36The expectancy of privacy in one's residence is at the higher end of the spectrum. A home is where someone has an objectively reasonable high expectation of privacy. As such, a breach in these circumstances has a higher degree of intrusiveness and leads to a strong inclination for exclusion.

Society's Interest in Adjudicating

37The discovery of drugs and a loaded firearm would shift to accepting society's interest in adjudicating this case on its merits. The drugs, stolen merchandise and handgun found are inherently reliable and objective evidence. But the analysis does not end there.

38If the only concern of the Courts was the reliability of the evidence seized and the seriousness of the offences charged, then those with serious charges or with objectively strong evidence seized would not have the benefit of rights under the Charter. See: R. v. Cote, 2011 SCC 46, [2011] 3 S.C.R., at para. 48.

39Neither the quantity of the drugs seized, nor the seizure of a firearm amounts to an exception to the s. 24(2) analysis. See: R. v. Omar, 2018 ONCA 975, 144 O.R. (3d) 1, at para. 56; R. v. Liew, 2012 ONSC 2990, aff'd 2015 ONCA 734.).

40Hourigan J.A. in R. v. Dunkley, 2016 ONCA 597, 131 O.R. (3d) 721, dealt with the analysis of exclusion of reliable evidence such as a handgun and the degree of a Charter breach. At paragraph 60, Hourigan J.A. stated:

60With respect to serving the truth seeking function of the criminal trial process, society generally expects that criminal allegations will be adjudicated on its merits. The reliability of the evidence is a significant factor in this line of inquiry, but any suggestion that reliable evidence is admissible regardless of how it was obtained is inconsistent with the Charter.

41Hourigan J.A. further stated at paragraph 63:

63That said, as this court pointed out in Harlett, echoing many other decisions, the third Grant factor cannot be used to systematically require the admission of reliable evidence obtained in plain disregard of an accused's Charter rights.

42These principles were reiterated by the Supreme Court of Canada in R. v. LaFrance, 2022 SCC 32, [2002] 2 S.C.R. 393, at para. 90.

43The Court is obligated to objectively review the cumulative weight of the first two lines of inquiry when assessing should it exercise its discretion to exclude the evidence seized. As the Supreme Court of Canada stated in LaFrance at para. 90: "That is why the third line — which typically pulls towards a finding that admission would not bring the administration of justice into disrepute — will seldom tip the scale in favour of admissibility when the two first lines, taken together, make a strong case for exclusion." (citations omitted).

44Taking the cumulative effect, I find that the society's interest in adjudication does not overcome the first two lines of analysis that tip the scale to inclusion. Notwithstanding the seriousness of the offences and the reliability of the evidence seized, I am not persuaded that these facts overcome the seriousness of the conduct and the breach. The ITO, as I have found, could not have been given due to the lack of connection between the search requested and the applicant. There was no substantial nexus to the Premises or to Ms. Bennett. Moreso, the fact the search was conducted in a home where there is a high expectation of privacy lends to a strong inclination for exclusion. The cumulative effect of the lack of nexus, the lack of frankness in the ITO and the seriousness of the breach is not overcome by society's interest to adjudicate the offences charged on their merits.

45Thus, on the facts outlined above, I find that in balancing all of the factors, the admission of the evidence obtained by the search would bring the administration of justice into disrepute. I would therefore exclude the evidence seized.

DISPOSITION

46For the reasons given, I would find that the section 8 rights of the applicant were breached. The failure to exclude the evidence found from the search would bring the administration of justice into disrepute. I order that the evidence found from the search be excluded.

Justice P. Sutherland

Released: April 1, 2026

CITATION: R. v. Ivey-David, 2026 ONSC 1948

OSHAWA COURT FILE NO.: CR-22-91105359-0000

Footnotes

1. 1Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
2. 2RSC 1985, c C-46.
3. 3R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, and Singer, at para. 109.