R. v. Day, 2026 ONSC 2274

CITATION: R. v. Day, 2026 ONSC 2274

COURT FILE NO.: CR-24-3876

DATE: 20260415

Released orally and in writing

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

KEAGAN DAY

Applicant

COUNSEL:

Scott Kerwin, for the Crown

Gytis Pabedinskas, for the Applicant

HEARD: December 17, 2025

CHARTER RULING ON SECTIONS 8 and 24(2)

DUBÉ J.

A. INTRODUCTION

1The applicant, Keagan Day, stands charged that on June 30, 2023, he did commit an aggravated assault on Ethan Carron, contrary to s. 268(1) of the Criminal Code, R.S.C., 1985, c. C-46.

2On November 20, 2023, Police Constable Meredith Rota (PC Rota) of the Chatham-Kent Police Service (“CKPS”) applied for and was granted a search warrant pursuant to s. 487 of the Code, to search two items, an iPhone and Samsung Galaxy cell phone located in Locker #1, Digital Forensics Unit at the CKPS, and the data that was generated and/or stored therein from between June 30, 2023 and July 1, 2023 including:

• incoming/outgoing calls
• contact lists
• text based messages
• photographs and videos
• voice notes and audio recordings
• user information
• emails
• web history and searches
• any user created data

3The warrant was issued by Justice of the Peace Jenn Martin and granted access to the place to be searched between November 21 and 22, 2023, for the period between 8:00 a.m. and 8:59 p.m.

4The applicant brings an application pursuant to the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), c 11 (“Charter”) seeking to exclude evidence under s. 24(2) alleging an infringement of his s. 8 rights. The applicant attacks the facial validity of the warrant claiming that the Information to Obtain the Warrant (“ITO”) provided insufficient evidence to believe that searching the iPhone would afford evidence with respect to the commission of the aggravated assault being investigated.

5The applicant elected to have a trial by jury which is currently scheduled for May 11, 2026.

B. ALLEGED BACKGROUND

6On June 30, 2023, Keagan Day (Day) resided at 23-200 Westcourt Blvd, Wallaceburg (the “residence”). He lived there with his mother, Jennifer Day (Jennifer) , and her common-law spouse, Shawn Viggers (Viggers).

7The alleged victim, Ethan Carron (Carron), was a friend of Day’s.

8On June 30, 2023, shortly before 10:00 p.m., Day, Jennifer, Viggers, and Carron were inside the residence along with several of the applicant’s visiting friends.

9Carron was intoxicated and was asked to leave by multiple people, including Jennifer. Upon leaving, Carron stabbed Jennifer in the throat on the front porch of the residence.

10After having seen Carron stab Jennifer, Viggers and the applicant physically assaulted Carron.

11At 9:57 p.m., police were called by a neighbour who witnessed the disturbance from the porch. Upon arrival, officers located Carron in a chair on the front porch of the residence. He was breathing but unresponsive. Jennifer had sustained a stab wound to her neck. She was conscious and alert. Paramedics attended and subsequently transported both Carron and Jennifer to Chatham-Kent Health Alliance (Wallaceburg Campus) where they were assessed and treated by emergency room physicians.

12Carron’s injuries were determined to be extensive facial trauma. He was listed as being in critical, or in a life threatening, condition. He was transported by ground ambulance to the Neurosurgery Intensive Care Unit of Windsor Regional Hospital (Ouellette Campus) for further investigation and treatment. He did not regain consciousness prior to being transported.

13Jennifer’s injuries were determined to be a life-threatening stab wound to her neck. She was listed in stable condition. She was transported by air ambulance to the Intensive Care Unit at London Health Sciences Hospital (Victoria Campus).

14The applicant and Viggers were ultimately arrested for aggravated assault. An iPhone was subsequently seized from the applicant’s person.

15A search was conducted of the iPhone pursuant to the warrant and several allegedly incriminating text messages about the incident from the applicant were obtained (Exhibit #2).

C. POSITIONS OF THE PARTIES

1) The Applicant’s Position

16The applicant argues that the warrant fails to establish sufficient grounds to search the device, thereby infringing s. 8 of the Charter. Counsel submits that absent evidence showing that Day or any other individual used the seized iPhone, either before or after the incident, the affiant relied primarily on speculation that persons engaged in criminal activity typically use their phones in a manner that captures relevant evidence.

17The applicant submits that, for these reasons, the search warrant is neither valid nor lawful. He further submits that the evidence obtained from this unreasonable search should be excluded under s. 24(2) of the Charter.

2) The Respondent’s Position

18The respondent argues that an ITO need only establish reasonable grounds to believe that the search will afford evidence relating to an offence. Contrary to the applicant’s position, there is no requirement to demonstrate that an accused actually used a cell phone during the relevant period. An affiant is entitled to rely on their experience that cell phones are frequently used in the commission of offences and may contain relevant evidence, even absent direct evidence that the accused used the device during the offence.

19The respondent notes that CKPS seized two phones in connection with this investigation. The evidence suggested the involvement of two perpetrators, and two individuals were charged. Further, one purpose of examining the phones was to determine ownership of the devices – another lawful basis for conducting the search.

20It is further submitted that it is not necessary to establish that the cell phone will contain evidence of the offence itself. It is sufficient that the device may contain relevant evidence to the investigation – for example, by shedding light on the movements of witnesses or suspects, corroborating or undermining witness accounts or alibis, confirming or eliminating suspects, or assisting in establishing a timeline of events.

21Accordingly, the respondent submits that the warrant is facially valid, as it establishes sufficient grounds to believe that a search of the iPhone would provide evidence relating to the aggravated assault, thereby rendering the search lawful. The respondent further argues that, even if the warrant were found invalid, the evidence should not be excluded under s. 24(2) of the Charter.

D. LEGAL PRINCIPLES

22Section 487 of the Code allows a justice to issue a search warrant authorizing the police to search a specified place, for a specified thing, and to seize the thing.

23A search warrant under s. 487(1)(b) may be granted if, on the basis of an information to obtain, the justice is satisfied that there are reasonable grounds to believe that, in the specified place, there is anything that will: 1) afford evidence with respect to the commission of an offence; 2) reveal the whereabouts of a person who is believed to have committed an offence; or 3) is offence-related property.

24Reasonable and probable grounds is assessed based on the standard of “credibility-based probability.” It requires the issuing justice to determine whether the ITO sets out sufficient information to provide reasonable grounds to believe that an offence has been committed. It further requires a reasonable probability that there will be evidence of that offence in the location to be searched: R. v. El-Azrak, 2023 ONCA 440, at para. 96.

25Credibility-based probability exceeds suspicion but falls short of a balance of probabilities: R. v. Herta, 2018 ONCA 927, at para. 20.

26A facial validity challenge of a search warrant does not attack the reliability of the evidence, but the sufficiency of the evidence upon which the ITO was based. The record examined on a facial review is fixed. It is the record before the issuing justice, not an amplified or enlarged record: R. v. Araujo, 2000 SCC 65, at para. 19; R. v. Sadikov, 2014 ONCA 72, at para. 37.

27A helpful summary of facial challenges was provided in R. v. Boussoulas, 2014 ONSC 5542, by Campbell J. at para. 9:

When the applicant attacks the facial validity of an ITO, the reviewing judge is required to examine the entire ITO and determine whether, on the face of the information disclosed within its four corners, the justice could have issued the search warrant. The record that is examined is the ITO – and only the ITO. The record is not enlarged or amplified by any additional evidence.

28The Court of Appeal summarized the standard of review of a search warrant in R. v. Sadikov, 2014 ONCA 72, at paras. 83-89. I have summarized these points here:

• Warrant review begins from a premise of presumed validity. The onus of demonstrating invalidity falls on the party who asserts it.
• 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.
• 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. Said in another way, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could – not would – have issued.
• Warrant review is an integral first part in an inquiry into admissibility of proposed evidence. It is not a trial.
• Warrant review requires a contextual analysis. Inaccuracies in the ITO, on their own, are not a sufficient basis on which to ground a finding of bad faith or an intent to mislead, much less to provide a basis on which to set aside the warrant. The existence of fraud, non-disclosure, misleading evidence, and new evidence are all relevant but are neither a prerequisite to, nor dispositive of, the review.

[Citations omitted.]

29As set out by Munroe J. in R. v. Dosen, (3 April 2018), Windsor, 17/4024, 2018 ONSC 2134, at para. 27:

In reviewing a search warrant and its predicating ITO, the following principles must be applied:

• Both the ITO and the warrant must be read as a whole.
• The ITO must be read in a common-sense manner having regard to its author; police officers are not legal draftsmen and should not be held to that standard.
• Issuing justices are entitled to draw reasonable inferences from the allegations in the ITO.

[Citations omitted.]

E. DETAILS OF THE INVESTIGATION CONTAINED IN THE ITO

30The following is a summary of the investigation as provided in the ITO that is relevant to my analysis in determining the facial validity of the warrant:

• At some point prior to 11:33 p.m.:
  • Viggers provided a statement to PC Dagenais. In that statement Viggers stated he punched Carron three times.
  • Officers were in the area of the incident, attempting to locate the applicant and Viggers to arrest them for aggravated assault.
• At 11:52 p.m., Viggers was arrested at the scene.
• At 1:01 a.m., Day was arrested at Wallaceburg Campus of Chatham-Kent Health Alliance.
• At 2:00 a.m., a neighbour, Sherri White, provided a statement to the police, which stated the following:
  • She heard someone being told to leave. A kid (Carron) was banging on the door asking for his stuff. Jennifer told him to go. She heard something smash and then saw Jennifer open the door and Carron made a stabbing motion before hearing Jennifer scream and grab her neck. When she looked again, White saw Day beating up Carron, punching him, saying “you hurt my mom, you fucked with my mom” – and then he went back inside. The kid was then observed hanging off a chair on the porch.
• The affiant reviewed a report from PC Biskey who had been dispatched to the scene:
  • Upon arrival PC Biskey observed a large number of people on the front porch of the residence and in the parking lot area.
  • He spoke to Day who said that Carron had attended the residence and was causing problems for the last few hours. Multiple people including Jennifer had tried to get Carron to leave, but he refused. After Carron slashed Jennifer in the throat, Day punched him several times, knocking him out.
• The affiant reviewed a report from PC Dagenais, who had been dispatched to the scene:
  • PC Dagenais spoke with Viggers who said that he hit Carron three times after his wife was stabbed.
• The affiant reviewed PC Brophy’s notes of Day’s interview from 3:05 a.m.:
  • Carron had attended the residence earlier in the day, between noon and 4:00 p.m. Carron had been drinking while in the basement with friends and became very drunk and was vomiting.
  • Day accidentally broke Carron’s bong. Carron became upset and told Day he owed him a bong and tried to stab him with the broken bong. A struggle ensued and then things calmed with Day giving Carron one of his bongs.
  • Carron began to get disruptive again and started vomiting. Jennifer arrived home and told Carron to leave. At one point, Carron appeared to be about to attack Jennifer with a broken bong, before Day took it from him. Later, after Carron left the residence, he threw the alcohol bottle on the porch and when Jennifer opened the door to investigate, Carron came towards her with the glass in his hand. Day, who did not notice that his mother was hurt, began to beat Carron.
• The affiant stated the following in relation to the cell phones:
  • She conducted an interview with Jennifer on July 4, 2023, who stated that she used Viggers’ cell phone to call her family after she was stabbed and before paramedics arrived. Jennifer did not take that phone with her from the scene.
  • From A/Sgt. Hendrie’s report – he observed a cell phone on the front porch of the residence, telling PC Roy to cover it because it was raining.
  • From PC Kraft’s report – Viggers did not have a cell phone on his person when he was arrested.
  • From PC Roy’s report – he covered the cell phone located on the porch. After Day was arrested at 1:01 a.m., a cell phone was located on Day’s person.
  • From PC Hamm’s report – he received a cell phone from PC Roy, describing it as a blue iPhone. PC Hamm placed the iPhone in the Digital Forensic Unit locker #1.
  • From PC Agar’s report – he seized what was later determined to be a black Samsung Galaxy cell phone from the scene, located on the steps of the residence. It was eventually placed in the Digital Forensic Unit locker #1.

31Respecting grounds to believe that the cell phones would afford evidence of the offence, the affiant stated the following:

• She learned from PC Fasullo, who had completed courses in the Cell Phone Search and Analysis Course at the Canadian Police College that data such as text messages, pictures, videos, emails, call logs etc. are stored and saved in the memory of the cell phone.
• It had been her experience that people commonly involved in criminal activity, or who have been involved in a specific criminal act, generally use their cell phones to discuss their activities (pre and/or post offence) via phone calls, texts, and instant messaging. They also commonly take videos and photographs, of themselves and others, associated with the offences.
• She believed that the Samsung is owned by Viggers and was used after the incident by at least Jennifer.
• She believed that the iPhone found on Day, is owned by Day.
• She believed that data contained on the cell phones would:
  • assist with providing additional evidence including but not limited to corroborating statements obtained by the police, and determining who the owner and/or primary user of the device;
  • when viewed as a whole, provide a more complete picture of the associations between individuals; and
  • provide further evidence in relation to Viggers and Day committing the offence of aggravated assault against Carron on June 30, 2023.

F. ANALYSIS

32I agree with the applicant’s counsel that there is no direct evidence that Day, or anyone else, used the seized iPhone either before or after the incident, as occurred in R. v. Skeete, 2012 ONSC 2633. Nonetheless, the police seized a cell phone from Day’s person at the time of his arrest, approximately three hours after the alleged assault.

33Although the evidence does not establish whether the iPhone was used at any time proximate to the incident, I am satisfied that the issuing justice was entitled to draw an inference from the details set out in the ITO that the device was used at a time and in a manner such that it would contain evidence relevant to the offence. Those details include the following:

• Day was a 19-year-old teenager at the time.
• Carron, along with Day, Viggers, and Day’s friends, remained inside the residence from approximately 12:00 p.m. to 4:00 p.m., and continued there until shortly before the incident at around 10:00 p.m. – a span of roughly six to ten hours.
• During much of this period, Carron was intoxicated and belligerent, and he made threats of violence toward Day, Day’s friends, and later Jennifer, including threats to stab individuals. He eventually left the residence, but not before vomiting in multiple areas and spilling alcohol.
• After Day’s mother was stabbed in the neck and Day and Viggers allegedly beat Carron unconscious, Day retreated inside the residence. Those two individuals, along with several others, then dispersed across the front porch and parking lot area before police arrived.
• Viggers was arrested at the scene at 11:52 p.m.
• Day left the scene and accompanied his mother to the hospital, where she was treated for her injuries. He was ultimately arrested there, and his iPhone was seized from his person at 1:01 a.m. – which was between nine and thirteen hours after Carron first arrived at the residence, and approximately three hours after the alleged assault.
• Day spoke to PC Brisky at the scene about the incident and then later provided a full videotaped statement at CKPS.

34After considering the evidence as a whole, I find it difficult to accept that Day did not, at some point during the nine to thirteen hours between Carron’s arrival at the residence and Day’s arrest, use the iPhone found on his person in a way that created evidence relevant to the investigation. This is particularly so given (1) Carron’s ongoing disruptive and threatening behaviour inside the residence, and (2) the three-hour interval between the violent and potentially life‑threatening incidents involving Carron and his mother, Jennifer, and Day’s subsequent arrest at the hospital – all of which are events that would reasonably be expected to prompt data‑generating activity by Day.

35At a minimum, such data could include:

(1) messages between Day and various individuals – including friends, Viggers, Jennifer, and/or other family members – concerning Carron’s ongoing disruptive behaviour before the incident, the stabbing, the alleged assault, as well as details regarding other events leading up to Jennifer’s hospitalization and Day’s arrest;

(2) photographs or videos depicting events during the day or the aftermath of Carron’s disruptive behaviour – for example, the spilled alcohol, broken bong and bottle, or Jennifer’s injuries; and

(3) incoming and outgoing telephone calls, including tracking any calls or voice messages Day may have had with others regarding the events.

36With respect to this last point, Day did not remain silent about the incident. He spoke with police on at least two occasions, including providing a full videotaped statement. This makes it reasonable to infer that, in addition to his statements to police, he may also have used his cell phone to communicate with others about the incident. I note, for example, that Jennifer advised that she called family members after being stabbed – which is what one would expect her to do if she were able, as she apparently was.

37The comments of Watt J. in R. v. Mahmood, 2011 ONCA 693, 107 O.R. (3d) 641, are especially applicable to the facts of this case. He said this about cell phones, at para. 1:

Cell phone use is ubiquitous. Users and their phones become one, inseparable. Users talk to other users. Any time. Anywhere. Conversations - some brief, others lengthy - end. But something of them remains.

38I also disagree with the applicant’s submission that PC Rota was not entitled to rely on her experience in forming grounds to believe that the iPhone would contain evidence of an offence: see R. v. Prosser, 2016 ONCA 467, at para. 18; R. v. Skeete, at para. 3. According to the ITO, PC Rota has 16 years of policing experience and has participated in numerous criminal investigations, including the preparation and execution of multiple Criminal Code and CDSA search warrants. In these circumstances, she was entitled to draw on her own experience regarding the common practice of individuals involved in criminal activity to use their cell phones in a manner that generates evidence of that activity.

39Although there is no direct evidence that Day used the iPhone, I am satisfied that the issuing justice was entitled to draw a common‑sense inference from the circumstances and conclude that there was a credibility‑based probability that the seized iPhone would contain data, including communications, relevant to the offence: R. v. Baskaran, 2020 ONCA 25, 149 O.R. (3d) 409, at paras. 14–15; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 34. This conclusion is supported by several factors discussed above, including that the iPhone was seized from Day’s person after the incident, PC Rota’s experience regarding the use of cell phones by individuals involved in criminal activity, and the numerous troubling events that occurred during the several hours between Carron’s arrival at the residence and Day’s arrest – all or some of which one would reasonably expect Day to have captured in some form on his iPhone.

G. CONCLUSION

40I am satisfied in the circumstances that there is sufficient evidence that might reasonably be believed on the basis of which a warrant could have been issued for the iPhone.

41Accordingly, I find that the search warrant is lawful, reasonable, and valid, and the applicant’s application is therefore dismissed.

Brian D. Dubé

Justice

Released: Orally and in writing – April 15, 2026

CITATION: R. v. Day, 2026 ONSC 2274

COURT FILE NO.: CR-24-3876 (Chatham)

DATE: 20260415

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

KEAGEN DAY

Applicant

CHARTER RULING ON SECTIONS 8 AND 24(2)

Dubé J.