R. v. Collette, Davis and Michael, 2026 ONSC 2000

CITATION: R. v. Collette, Davis and Michael, 2026 ONSC 2000

COURT FILE NO.: 1811-998-24-1810047003

DATE: April 2, 2026

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

Respondent

– and –

PHOENIX COLLETTE

NICOLE DAVIES

RIDGE MICHAEL

Applicants

Kristen Mohr, for the Respondent

Michael Mavraganis, for the Applicant Pheonix Collette

Jeffrey Langevin, for the Applicant Nicole Davies

Kimberly Hyslop, for the Applicant Ridge Michael

REASONS FOR DECISION

ABRAMS, J

Introduction

[1] The applicant, Ridge Michael (“RM”), stands charged with two counts of possession for the purpose of trafficking in a Schedule I substance (cocaine and methamphetamine) and possession of an unauthorized weapon related to the search of his residence located at 41 Sunset Blvd, Unit 506, Perth, Ontario (the “residence”).

[2] The execution of the search warrant at the residence led to the seizure of approximately 33 grams of cocaine and two grams of crystal methamphetamine, brass knuckles, a digital scale, three cell phones, and one tablet. Further, RM was arrested with three grams of suspected methamphetamine, one cell phone, and $840 in Canadian Currency, all of which was found in the centre console of a red Ford truck (the “truck”) he was driving at the time of his arrest.

[3] RM challenges the search of the residence on the basis that there were insufficient reasonable and probable grounds such that the search warrant could not have issued. RM also asserts that there were insufficient grounds to arrest him and to search his person and the truck. The search of the truck was warrantless.

[4] The applicant, Phoenix Collette (“PC”), is jointly charged with RM in relation to the same offences.

[5] The third accused, Nicole Davies (“ND”), although represented by counsel at the hearing of the application, did not serve notice of her intention to challenge the issuance of the search warrant or her arrest. ND did, however, adopt the submissions of counsel for the other two accused at the hearing.

Facts

[6] There are no facts in dispute.

[7] In early 2024, Detective Constable Campbell (“officer Campbell”) spoke with a confidential informant (“CI”) and was advised that RM lives in Perth, Ontario with his girlfriend, ND, at the Sunset Towers apartment building (“41 Sunset Blvd”). Officer Campbell was further advised that RM is dealing cocaine in the Town of Perth.

[8] On February 22, 2024, Detective Constable Knapp (“officer Knapp”) reviewed notes made by Acting Detective Sgt. McKenna (“officer McKenna”) and learned that on February 6, 2024, officer McKenna conducted physical surveillance at 41 Sunset Blvd when he observed the truck parked at the rear of the apartment building in parking space #65. The truck was believed to be the primary mode of transportation for both RM and ND. Officer Knapp noted that an RMS Occurrence Report showed that RM had earlier been stopped in Perth and charged while driving the truck.

[9] Officer Knapp also learned that on February 7, 2024, officer McKenna conducted surveillance at 41 Sunset Blvd and observed the truck parked in the rear lot. Further, he observed ND exit the driver's side door of the truck and enter the passenger seat of a Honda Civic. The Honda Civic then left the area. Officer Knapp noted that the owner of the Honda Civic was Brandon Rous (“Rous”). Officer McKenna advised officer Knapp that he knew Rous to be involved in the use of cocaine and the local drug subculture. It was officer Knapp's opinion that these observations evidenced ND’s access to and control over the truck.

[10] On February 22, 2024, officer Knapp reviewed a surveillance report completed on February 21, 2024, by Detective Constable Hendershott (“officer Hendershott”). Based on the report, officer Knapp learned that:

• at 2:08 pm on February 21, the truck left #4 Lansdowne Street in Perth with RM driving and ND in the passenger’s seat;

• at 2:24 pm, the truck parked in space #65 at 41 Sunset Blvd [the time 2:24 pm may be an error given DC Knapp's next note];

• at 2:21 pm, ND entered the driver’s side door of the truck and drove directly to a parked grey Honda Civic. ND entered the passenger’s side door of the grey Honda Civic, and then exited the vehicle; and

• at 2:21 pm, the grey Honda Civic left 41 Sunset Blvd.

[11] Officer Knapp noted that parking space #65 was dedicated for residents of 41 Sunset Blvd and that visitor parking was located at the front of the building. It was officer Knapp's opinion that ND exercised control over the truck, and that it was being used to limit foot traffic directly to the apartment to avoid detection or neighbor complaints. Moreover, it was officer Knapp's opinion that the short duration of the interaction observed at 2:21 pm on February 21 was consistent with drug trafficking, given that the registered owner of the grey Honda Civic was Rous.

[12] Officer Knapp also learned from the report that:

• at 3:09 pm on February 21, RM entered the driver's seat of the truck and departed 41 Sunset Blvd;

• at 3:13 pm, the truck stopped on Harvey Street in Perth when an unknown male entered the passenger’s seat followed by the truck driving away with the passenger on-board;

• at 3:16 pm, the truck parked directly across the street from the RBC bank, when the unknown male got out and entered the bank;

• at 3:17 pm, RM appeared to be wrapping something in paper towel;

• at 3:18 pm, the unknown male exited the bank and got back into the truck;

• at 3:19 pm, the truck left the parking space across from the bank and by 3:20 pm had returned to the same general location on Harvey Street where the unknown male was picked up; and

• at 3:21 pm, the unknown male got out of the truck, the truck left and returned to the same parking spot at 41 Sunset Blvd.

[13] It was officer Knapp's opinion that these observations were consistent with drug trafficking given the short duration of the interaction, that people who sell drugs typically get paid in cash, and that RM wrapped something in paper towel, believed to be powder cocaine, which would not be handed over loosely.

[14] On March 15, 2024, officer Knapp reviewed a surveillance report completed on March 14, 2024, by Detective Constable Baker (“officer Baker”). Based on the report, officer Knapp learned that:

• at 12:31 pm on March 14, the truck was parked at 41 Sunset Blvd;

• at 12:37 pm, two males walked to the truck from the residence. The male wearing a red ball cap was RM, and he sat in the driver's seat. The other male sat in the passenger’s seat;

• at 12:48 pm, the truck stopped at #4 Landsdowne Street in Perth; and

• at 12:49 pm, a green Kia vehicle left #4 Landsdowne Street. It was later confirmed that RM was the driver of the Kia.

[15] It was officer Knapp's opinion that, although there could be many reasons to “swap” vehicles, this exchange of vehicles was done to avoid detection by the police. Officer Knapp noted that he saw RM turn his head to look behind him for any vehicles that might have been following, and that he did so after making a left turn onto a side street. It was officer Knapp's opinion that RM was, in effect, conducting counter surveillance.

[16] Officer Knapp also learned from reviewing the March 14 report that:

• at 12:51 pm, the Kia stopped at a Circle K convenience store in Perth, and moments later left Perth; and

• at 2:14 pm, the Kia arrived at 41 Sunset Blvd. RM was observed wearing a red ball cap. He exited the driver's seat and went to the rear of the vehicle. A male passenger got out and went to the driver's side rear door. Thereafter, both males were observed removing something from the rear of the vehicle. The item was put into the hoodie pocket of their sweaters. Both males were then observed entering 41 Sunset Blvd.

[17] It was officer Knapp's opinion that the behaviour of the two males was consistent with drug trafficking/transporting drugs because the items were kept out of site in the motor vehicle. This is typically done to avoid detection of the items in the event of a police traffic stop. Further, the items being placed into the hoodie pockets suggested that the males did not want others to see what they had in their possession.

[18] Officer Knapp goes on to note from his review of the March 14 report that:

• at 3:04 pm, RM and the other male sat in the Kia, with RM occupying the driver's seat;

• at 3:11 pm, the Kia was parked at the Shoppers Drug Mart in Perth when both males remained inside the vehicle;

• at 3:14 pm, a male wearing a white ball cap and a cream-coloured sweater ran to the Kia’s passenger’s side window and leaned inside. The male's head and arms were inside the vehicle. The male then quickly left the Kia and went to a parked Honda Civic.

• at 3:16 pm, the Kia left the Shoppers parking lot;

• at 3:33 pm, the Kia attended 77 Harvey Street in Perth; and

• at 3:57 pm, the Kia left 77 Harvey Street and later returned to 41 Sunset Blvd.

[19] It was officer Knapp's opinion that the short duration of the stop at Shoppers Drug Mart was consistent with drug trafficking. Specifically, drug dealers will often use locations away from their primary residence to avoid neighbor complaints about heavy traffic at a residence.

[20] On April 15, 2024, officer Knapp reviewed a surveillance report dated March 18, 2024, by officer Baker. Based on the report, officer Knapp learned that:

• at 6:18 pm on March 18, the Kia was observed at 41 Sunset Blvd in Perth;

• at 6:35 pm, RM and an unknown male got into the Kia;

• at 8:10 pm, the Kia left 41 Sunset Blvd with RM driving;

• at 8:12 pm, the Kia attended the apartment units at 77 Harvey Street in Perth;

• at 8:15 pm, the Kia left Harvey Street with RM driving;

• at 8:20 pm, RM was back at 41 Sunset Blvd;

• at 10:37 pm, the Kia left 41 Sunset Blvd;

• at 10:41 pm, the Kia was observed parked at a residence on Church Street in Perth. An unknown male was seen standing at the front passenger’s side door and leaned into the vehicle. The Kia left shortly after; and

• at 10:50 pm, the Kia returned to 41 Sunset Blvd.

[21] It was officer Knapp's opinion that these short-duration interactions were consistent with drug trafficking.

[22] On April 15, 2024, officer Knapp reviewed a surveillance report completed that same day by officer Hendershott. Based on the report, office Knapp learned that:

• at 1:40 pm on April 15, the truck left 41 Sunset Blvd being driven by RM;

• at 2:10 pm, a male wearing a red ball cap approached the truck and several people got into the truck;

• at 2:15 pm, the truck entered the parking lot of MacEwen’s Gas Bar on Wilson Street in Perth, when two people got out and left on foot;

• at 2:17 pm, the truck was at 16 Herriott Street in Perth. Kayla Kerr (“Kerr”) was observed standing at the driver's side window while RM was occupying the driver's seat;

• at 2:18 pm, Kerr walked away from the truck; and

• at 2:19 pm, the truck left the area.

[23] It was officer Knapp's opinion that Kerr’s association with RM demonstrated a stronger connection to the drug subculture, because she was present at #16 Herriott Street in Perth in October 2023 when a Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”) search warrant was executed. Kerr and others were arrested and charged with trafficking in cocaine; however, her charges were eventually stayed.

[24] Officer Knapp goes on to note from his review of the April 15 report that:

• at 2:24 pm on April 15, the truck attended at 75 Harvey Street in Perth when an unknown male approached the vehicle while it was still running. The unknown male went to the front passenger’s side window and leaned in. The truck’s brake lights were on; and

• at 2:26 pm, the truck left the area.

[25] It was officer Knapp's opinion that this short-duration stop is consistent with drug trafficking, in other words, hand-to-hand transactions at the side of the vehicle.

[26] On April 17, 2024, Justice of the Peace Borgford refused to authorize the search warrant.

[27] On April 18, 2024, Justice of the Peace Goffin authorized the search warrant pursuant to s. 11 of the CDSA on the strength of the Information to Obtain (“ITO”) prepared and submitted by officer Knapp. The search warrant authorized police to enter the residence from 10:46 am to 8:59 pm on April 18, 2024, and to seize the items set out in Appendix A of the ITO.

[28] On April 18, 2024, the search warrant was executed shortly after 1:58 pm.

[29] Based on the information set out in the investigative details in the ITO (Appendix C), it was officer Knapp's belief that the items listed in Appendix A were at the residence.

[30] Officer Knapp's belief was based on the following:

• in early 2024, police received information from a CI that RM is selling cocaine from a residence located at Sunset Blvd, Perth, Ontario (emphasis added). However, in paragraph 21 of the ITO, officer Knapp noted that in early 2024, officer Campbell received information from the CI that RM was dealing cocaine in Perth;

• in paragraph 27 (d) of the ITO, officer Knapp also noted that officer Campbell's information from the CI related to cocaine being sold in the community of Perth and not from a residence as paragraphs 21 and 27 (d) suggest;

• surveillance officers observed RM and another male remove small items from the rear of the Kia and place them into their hoodie pockets. Both men entered 41 Sunset Blvd. Officers also observed that prior to the short-duration stops, RM would depart from 41 Sunset Blvd and drive to the location of the meeting; and

• during surveillance at 41 Sunset Blvd, officers observed multiple meetings between RM and ND which were short in duration and consistent with drug trafficking.

[31] On February 22, 2024, officer Knapp conducted MTO/RMS searches on RM and ND. As a result, he determined that RM updated his address with MTO in the month of February 2024 to 41 Sunset Blvd, Apartment 506 (i.e. the residence).

The Warrant - s. 8 of the Charter

i. The Legal Principles

[32] The applicable legal principles are well settled and not in dispute.

[33] The warrant is presumptively valid. The applicants bear the onus of establishing an infringement of their Charter protected rights: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 277.

[34] Since an application under s. 11 of the CDSA is brought without notice, the affiant is obliged to make full, frank, and fair disclosure of all material facts: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 58; R. v. Nguyen, 2011 ONCA 465, 273 C.C.C. (3d) 37, at para. 48.

[35] Where the affiant fails to discharge their duty to fully and frankly disclose material facts, evidence introduced during the review may be used by the reviewing judge “to fill gaps in the original ITO”: Morelli, at para. 60. The reviewing judge would then be in a position to determine the application based on the record that should have been before the issuing justice.

[36] A reviewing judge may consider amplification evidence. However, it may only be introduced for a limited purpose: Morelli, at paras. 42-43.

[37] Where the affiant relies on information received from a CI, its sufficiency is based on whether the tip is compelling, credible, and corroborated: R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1168. It is the totality of the assessment that governs. Strength in one area may compensate for weaknesses in another: R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 742, at para. 16.

[38] The ITO need not be unblemished. That standard is too high. Alleged defects such as non-disclosure or misstatements are relevant but not determinative: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1452.

[39] The question is whether the ITO, read as a whole and despite its imperfections, raises a credibly-based probability that the search will lead to the discovery of one or more of the items mentioned in s. 11 of the CDSA: Nguyen, at paras. 57-58; Garofoli, at p. 1452; R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 38; and R. v. Ngo, 2011 ONSC 6676, at para. 34.

[40] The reviewing judge should not interfere if the record presented to the authorizing justice, as amplified on review, leads to the conclusion that there was a basis for the issuance of the warrant: Garofoli, at p. 1452; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 65, at para. 51.

ii. Analysis and Conclusion

The CI

[41] On the return of the application, no amplification evidence was called to fill gaps in the original ITO or to explain its defects.

[42] To reiterate, the information provided by the CI to officer Campbell in early 2024 was as follows:

• RM lives in the Town of Perth, Ontario;

• RM lives with his girlfriend, ND, at Sunset Towers in Perth; and

• RM is dealing cocaine in Perth.

[43] When assessing whether the ITO disclosed sufficient reasonable and probable grounds, the court must consider the Supreme Court of Canada’s decision in Debot, at p. 1168. The three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search were stated as follows:

i. Was the information predicting the commission of a criminal offence compelling?

ii. Where that information was based on a “tip” originating from a source outside the police, was that source credible?

iii. Was the information corroborated by police investigation prior to making the decision to conduct the search?

[44] To reiterate, each factor is not a separate test but rather, the “‘totality of the circumstances’ must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two”: Debot, at p. 1168.

[45] There are several factors which affect the credibility of a tip provided by a confidential informer:

i. the background of the informant, including whether the informant has a criminal record for dishonesty;

ii. any track record of the informant for providing reliable information in the past;

iii. whether the informant has personal knowledge of the information or whether the informant is in turn relying upon apparently credible hearsay or whether the information is simply passing on what is sometimes referred to as gossip and rumour;

iv. whether the informant has any animus toward the targets of the tip;

v. whether the informant is being paid;

vi. the specificity of the information;

vii. whether the information is being provided contemporaneously. In other words, is the informant reporting what is happening at the time or what he/she observed or heard about hours or days ago;

viii. is there any known association between the informant and the targets so that it would be reasonable that the informant would have accurate information; and

ix. is there any known connection between the target and the criminal activity reported by the informant. For example, if the information relates to a drug deal, does the target have a criminal record related to drugs or a known association with drug dealers: R. v. Samaroo, [2010] O.J. No. 6185 (S.C.), at paras. 28-29.

[46] No information was provided about the CI’s background in the ITO; therefore, the court cannot apply the Debot factors in any meaningful way.

[47] As regards the information being compelling, there was no indication as to whether the CI’s observations and knowledge was first-hand or hearsay. Moreover, there were no details about the manner of the alleged drug trafficking. Rather, the information provided was of a conclusory nature of the barest kind: “Ridge Michael is dealing cocaine in the Town of Perth, Ontario.”

[48] In terms of credibility, although the affiant concluded at paragraph 19 of the ITO that the CI is “proven reliable”, the court must assess credibility on an objective basis and not in a vacuum. There is no information about whether the CI has a criminal record; nor does the court know about the track record of the CI. Rather, the only information provided about the past performance of the CI is, again, of a conclusory nature, that “CI#1 is ‘proven reliable’”.

[49] In R. v. Perry So (13 June 2013), Ottawa (Ont. C.J.), at paras. 35-37, 41-42, Paciocco J. (as he then was) provided comments on assessing the credibility and reliability of a CI that are, in my view, informative:

i. The door is open for the defence to argue on a Charter application that because of the absence of the information, the reliability of the confidential informers could not reasonably have been assessed by the issuing justice, thereby requiring that this information be disregarded: see R. v. Floyd, 2012 ONCJ 417, at paras. 80-81. The Defence can contend, for example, that absent more biographical information and more detail about how the prior tips led to the seizure of drugs, no issuing judge could have reasonably relied on this confidential information.

ii. That the failure to disclose whether the information was firsthand or hearsay could be suspicious, and is a relevant consideration on a Charter application.

iii. That the criminal record of a CI, especially with regards to crimes of dishonesty, is a relevant consideration:

As section 12 of the Canada Evidence Act reveals, the law regards any conviction for any offence to be relevant to the credibility of a witness. The theory is that someone who has breached fundamental rules of social co-operation in the past may be less likely to feel bound by the obligation to tell the truth, whether or not the offences themselves are based on acts of dishonesty.

[50] As to whether the information was corroborated, there was nothing confirmed by the police beyond the fact that RM and ND resided at 41 Sunset Blvd. In effect, this was public information that would have been common knowledge to anyone who knew RM. Importantly, this corroboration did nothing to bolster the CI’s information regarding RM’s alleged criminal activities.

[51] The Crown concedes that the statement, “in early 2024, police received information from a confidential informant (C1) that RM is selling cocaine from a residence located at Sunset Blvd, Perth, Ontario” was a misstatement. While there is no evidence to conclude that the affiant attempted to mislead the authorizing justice, it is difficult to understand how this misstatement was the product of poor draftsmanship. At paragraph 21 of the ITO the affiant recites, based on information received from the CI, that: “Ridge Michael is dealing cocaine in the Town of Perth, Ontario.” However, at paragraph 30 the affiant proffers that “Ridge Michael is selling cocaine from a residence located at Sunset Blvd, Perth Ontario.” Query, how could the affiant have made the leap from “dealing cocaine in the Town of Perth” to “selling cocaine from a residence”? What is more, the investigation did nothing to corroborate the contention that RM was “selling cocaine from a residence”. Rather, the results of the investigation were, to that end, underwhelming.

The Police Investigation

[52] The Crown argues that the information received from the CI was never a critical aspect of the affiant’s grounds to believe that the items sought were present at the place to be searched. Rather, it was the police investigation that tended to substantiate the CI’s information and, in the context of other factors, was sufficient to meet the reasonable probability test. I disagree.

[53] The following merely summarizes certain information relied on by the affiant, gleaned through the investigation, that I consider problematic in terms of its corroborative value.

[54] The affiant relied on information from officer McKenna that “he knows Brandon Rous to be involved in the use of cocaine and involved in local drug subculture.” This information dates from 2022 and is therefore somewhat stale. Further, Rous was identified only as the driver of a vehicle from which another individual exited and was arrested. No drugs were found in the vehicle driven by Rous. Put another way, an individual was arrested after exiting Rous’ vehicle; therefore, Rous must be involved in criminal conduct. This is conclusory reasoning. Moreover, the reasoning error was compounded by the assertion that ND must be involved in criminal conduct because of her apparent association with Rous.

[55] The affiant recited that #4 Lansdowne Street was the address at which a vehicle swap was completed to evade the police. However, he did not disclose the fact that the address was the known residence of ND’s parents, a detail included in the surveillance report. Further, the affiant noted that ND is seen entering the driver’s side door of the truck, then goes directly to the grey Honda — which is registered to Rous — who then departs three minutes later. There is no mention that no items were seen to be exchanged.

[56] RM was observed driving an unknown person to RBC from Harvey Street, and then returning this person to the area of 77/75 Harvey Street. RM is then observed wrapping something in paper towel while alone and stationary in the vehicle across the street from the RBC. No explanation is given regarding the use of paper towel for wrapping drugs or the officer’s experience with persons wrapping drugs in paper towel, as opposed to, for example, plastic bags or tinfoil.

[57] No efforts are made to identify the unknown person or a potential connection to any addresses on Harvey Street. Notably, RM’s mother resides at 77 Harvey Street. Nonetheless, the affiant concludes that a short stop on Harvey Street is consistent with drug trafficking.

[58] The final date of surveillance was April 15, 2024, when RM was observed driving the truck with four other occupants. At one point, the truck stops at 16 Herriott Street, where police say a search warrant was previously executed and Kerr was arrested under the CDSA (her charges were later stayed). Kerr is observed approaching the driver’s side of the truck and then walks away one minute later. No observations were made of any items being exchanged. Based on these limited observations, the affiant concludes that this “further demonstrates Ridge Michael’s involvement in the drug subculture.” Yet another example of conclusory reasoning. Kerr was charged (but not convicted) under the CDSA. RM is associated with her, therefore, he must, by extension, be involved in the “drug subculture”.

[59] The ITO sought permission to search the residence. To that end, the ITO did not provide sufficient grounds. Suspecting someone of trafficking in a Schedule 1 drug does not automatically justify the issuance of a search warrant with respect to their home: Rocha, at para. 26.

[60] The CI disclosed illegal activity that neither occurred at nor was connected to the residence. The police investigation added nothing in terms of connecting the allegation of trafficking to the residence. Accordingly, the ITO did not establish a credibly-based probability that the residence contained anything mentioned in s. 11 of the CDSA. The totality of the circumstances did not support the issuance of the warrant.

[61] For all these reasons, it was not open to the authorizing justice to conclude that the warrant should have issued. Consequently, the subsequent search and seizure of the residence violated s. 8 of the Charter.

[62] Turning then to the arrest of RM and the warrantless search of the truck, the case is a veritable house of cards.

[63] An arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-251; R. v. Raphael, 2010 ONSC 5709, at para. 30.

[64] The grounds for RM’s arrest were the same as the grounds in the ITO, in a word: insufficient. The search of the truck was warrantless and thus falls to the Crown to justify the reasonableness of the search.

[65] The applicant bears the burden of proving a reasonable expectation of privacy in the area being searched. Vehicle searches are not exempt from Charter protection against unreasonable search and seizure. Although there is a lower expectation of privacy in a vehicle, a reasonable expectation of privacy still exists: R. v. Calderon (2004), 2004 CanLII 7569 (ON CA), 188 C.C.C. (3d) 481 (Ont. C.A.), at para. 98.

[66] In Raphael, Kelly J. held that the search of the accused’s vehicle, conducted incident to the accused’s arrest, derived its authority from that arrest. Since the arrest of the accused in Raphael was found to be unlawful, it followed that the subsequent search was also unlawful. In my view, the same reasoning applies to this case: Raphael, at para. 39.

[67] The search of the truck following RM’s unlawful arrest was also unlawful in that the search was not based on anything having been discovered on his person.

[68] The subsequent search of the phone seized upon RM’s arrest was based on an ITO that contained unconstitutionally obtained evidence, and thus should be excluded: R. v. Zacharias, 2023 SCC 30, at paras. 2, 26, 29-36, 38-41, 44-50, and 75-76.

The Implications – s. 24(2) of the Charter

[69] Section 24(2) of the Charter requires the exclusion of evidence obtained in a manner that infringed s. 8 if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[70] Three factors are to be considered: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the Charter-protected interests of the defendant; and (3) society’s interest in the adjudication of the charges on their merits: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71.

i. The Seriousness of the Charter-infringing state conduct

[71] Even if the affiant cannot be said to have acted in bad faith, the absence of bad faith does not equate to good faith.

[72] First, the ITO was misleading and over-reaching. To recall, the affiant chose to include information concerning identified persons and registered vehicles when it supported the police theory of RM’s drug trafficking, yet failed to include, or even inquire into other details, when those details would not support the police theory. In my view, those strategic decisions breach the affiant’s duty to be full, frank and fair.

[73] Second, there were insufficient grounds to search an area with a high degree or privacy, a residence and all electronic devices. In the result, this amounts to serious Charter-infringing state conduct.

ii. The impact of the breach on the Charter-protected interests of the accused

[74] If a place where the accused has a high expectation of privacy is searched, the impact of the s. 8 breach will favour exclusion of the evidence, “An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy […] is more serious than one that does not”: Grant, at para. 78.

[75] A residence is such a place: Grant, at para. 113; Rocha, at paras. 37-38; R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, at para. 140; and R. v. Blake, 2010 ONCA 1, 251 C.C.C. (3d) 4, at para. 28. In this case, the seizure of approximately 33 grams of cocaine and two grams of crystal methamphetamine, brass knuckles, a digital scale, three cell phones, and one tablet, was all found in the residence. RM and ND have a reasonable expectation of privacy in their residence.

[76] Furthermore, although there is a lower expectation of privacy in a vehicle, a reasonable expectation of privacy still exists: Calderon, at para. 98.

[77] The impact of the breach was serious.

iii. Society’s interest in an adjudication on the merits

[78] The expectation that charges will be determined on their merits is real and important. As Doherty J.A. said in Blake, at para. 31:

Society’s interest in an adjudication on the merits is seriously undercut where highly reliable and important evidence is excluded. The evidence in issue here, particularly the crack cocaine, was entirely reliable and essential to the Crown’s case. The charge is also a serious one, although as the majority point out in Grant, at para. 84, the seriousness of the charge will “cut both ways” when assessing society’s interest in an adjudication on the merits.

[79] Those comments are relevant here. After weighing the Grant factors, Doherty J.A. held in Blake that the evidence was admissible notwithstanding the breach of s. 8 of the Charter: at para. 33.

[80] In my view, Rocha is factually closer to this case than Blake. In Rocha, a small amount of cocaine was seized as a result of the search of a restaurant. Prohibited weapons, cash, cocaine, oxycodone pills and a shotgun were seized at a residence. Writing for the Court of Appeal for Ontario, Rosenberg J.A. concluded that the ITO was insufficient to justify the granting of a warrant with respect to the latter. The evidence seized from the residence was excluded: at para. 43.

[81] Rosenberg J.A. noted that while the evidence had been admitted in Blake, a caution had been issued. At para. 33 of Blake, Doherty J.A. wrote:

If there were a taint of impropriety, or even inattention to constitutional standards, to be found in the police conduct, that might well be enough to tip the scales in favour of exclusion, given the very deleterious effect on the accused’s legitimate privacy interests.

[82] In Morelli, at para. 109, evidence was also excluded because of a breach of s. 8 of the Charter. The majority of the Supreme Court of Canada concluded the ITO contained information that was “misleading, inaccurate, and incomplete.”

[83] In this case, the metamorphosis of the CI’s information regarding RM dealing cocaine in the Town of Perth to dealing cocaine from a residence was inaccurate and misleading. Further, the affiant’s inclusion of details in the ITO that fit with the police theory of drug trafficking while excluding details that did not was misleading, inaccurate, and incomplete. Generalizations, propensity and conclusory reasoning on the part of the affiant served to exacerbate the errors. To that end, a desired result overcame the affiant’s duty to be full, frank, and fair in respecting Charter protected rights.

[84] The comments offered in Morelli, at paras. 110-111 are apt, where Fish J. wrote:

Justice is blind in the sense that it pays no heed to the social status or personal characteristics of the litigants. But justice receives a black eye when it turns a blind eye to unconstitutional searches and seizures as a result of unacceptable police conduct or practices.

The public must have confidence that invasions of privacy are justified, in advance, by a genuine showing of probable cause. To admit the evidence in this case and similar cases in the future would undermine that confidence in the long term.

[85] I agree.

[86] For the reasons given, I have concluded that the s. 11 CDSA warrant should not have issued for the residence. The subsequent search of the phone seized upon RM’s arrest was based on an ITO that contained unconstitutionally obtained evidence. The grounds to arrest RM, PC, and ND were the same as the grounds in the ITO: insufficient. The search of the truck was warrantless, and not justified by the respondent.

[87] After considering and balancing the Grant factors, I have concluded that all the evidence seized is hereby excluded.

_______________________________________

The Honourable Mr. Justice B. W. Abrams

Released: April 2, 2026

CITATION: R. v. Collette, Davis and Michael, 2026 ONSC 2000

COURT FILE NO.: 1811-998-24-1810047003

DATE: April 2, 2026

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Respondent

– and –

PHOENIX COLLETTE

NICOLE DAVIES

RIDGE MICHAEL

Applicants

REASONS FOR DECISION

Abrams, J.

Released: April 2, 2026