R. v. Green, 2026 ONSC 2455

CITATION: R. v. Green, 2026 ONSC 2455

COURT FILE NO.: CR-25-30000364

DATE: 20260427

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

JETTA JAMIE GREEN

Applicant/Defendant

Jonathan Smith, for the Crown/Respondent

Bronagh Ryan, for the Applicant/Defendant

HEARD: April 7-8, 14, 2026

JUSTICE S. NAKATSURU

1The poor and the vulnerable have equal Charter rights as those more fortunate. A temporary room in a shelter is as much one’s castle as a gated mansion.

2Jetta Jamie Green was living in unit 305 at the Delta Hotel which since the COVID-19 pandemic had been temporarily converted into a shelter for the unhoused. In the morning of December 5, 2023, two uniformed police officers along with a staff member of the shelter knocked on his door. The officers were responding to a 911 call about a potential firearm within. The officers entered without a warrant, detained Mr. Green, and thoroughly searched the unit. A loaded firearm, drugs, money, a digital scale and identity documents were found.

3On this pretrial application, Mr. Green submits that the evidence should be excluded under s. 24(2) of the Charter due to violations of his rights under ss. 8, 9, and 10(b).

4I am excluding the evidence. These written reasons explain why.

5Before setting them out, I wish to note that throughout their dealings with Mr. Green, the police officers treated him with commendable politeness. But that is not the relevant issue on this application. The issue is whether they breached his constitutional rights.

A. FACTUAL OVERVIEW

6At approximately 11:21 a.m., two uniformed officers, Police Constable Lauren Johnson and Sergeant Robert Sanford received from dispatch a 911 call regarding a gun at unit 305 of the Delta Hotel located at 2035 Kennedy Road operating as a public shelter. The information received by the officers was that an anonymous caller reported that they had purchased drugs in the unit 10-15 minutes prior to making the 911 call, and there was a silver handgun on the bed as well as a lot of drugs. A black male in his thirties and a white female were present.

7The two officers drove separately to the shelter and met in the parking lot. They went to the front lobby and talked to shelter staff. They said that they had received information about a weapon and asked for the name of the resident in unit 305. They were told it was “Jamie”.

8Along with a staff member, the two officers went up to the third floor and knocked on unit 305. Mr. Green answered the door and identified himself. Ms. Laurel Flaska also came to the door when requested. Sgt. Sanford asked Mr. Green to step outside. Mr. Green, who was dressed only in boxer shorts, asked to get dressed. Sgt. Sanford immediately stepped into the unit uninvited, placed Mr. Green under investigative detention, handcuffed him to the rear, and sat him down inside the room. P.C. Johnson briefly frisked Ms. Flaska.

9P.C. Johnson decided to search the room for the safety of the officers and the shelter staff. She conducted a thorough search of the unit. This included moving items around and looking in the closet, the drawers of various furniture, and numerous bags and backpacks. After about ten minutes of searching, a handgun was found in a backpack in the bathroom. Mr. Green was arrested, given his right to counsel, and then taken down to the police cruiser and was transported to the 42 Division police station. Unit 305 was sealed by the police pending a search warrant.

10A telewarrant was obtained and unit 305 was searched. Evidence that is the subject of this application was seized.

B. ANALYSIS OF THE ALLEGED CHARTER VIOLATIONS

1. Violation of s. 8: No Exigent Circumstances

11A warrantless search is presumptively unreasonable, shifting the burden of persuasion to the Crown to establish, on a balance of probabilities, that the search was reasonable: R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, at p. 278. A search is reasonable under s. 8 of the Charter if it is authorized by a reasonable law and conducted in a reasonable manner: R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 12.

12The Crown seeks to establish the exigent category of public safety to justify this warrantless search of Mr. Green’s home.¹

13The warrantless search doctrine involving exigent circumstances is not designed to promote efficiency or expediency. Rather, its singular purpose is to accommodate those situations where the state can forgo obtaining prior judicial authorization because of the urgency of the matter at hand. More specifically, the common law permits the police to act without prior judicial authorization where there exists an imminent threat to police or public safety or in circumstances where there exists a risk of the imminent loss or destruction of evidence: [R. v. Paterson, ](https://nextcanada.westlaw.com/Link/Document/FullText?findType=Y&serNum=2041249620&pubNum=0006489&originatingDoc=I1d3d8cdad6ff0d1be0640010e03eefe2&refType=IC&originationContext=document&transitionType=DocumentItem&ppcid=d5dfc84d0ba34a19a287b074eb5e2815&contextData=(sc.Search))[2017] 1 S.C.R. 202, at paras. 32-33; [R. v. Feeney, ](https://nextcanada.westlaw.com/Link/Document/FullText?findType=Y&serNum=1997406235&pubNum=0005156&originatingDoc=I1d3d8cdad6ff0d1be0640010e03eefe2&refType=IC&originationContext=document&transitionType=DocumentItem&ppcid=d5dfc84d0ba34a19a287b074eb5e2815&contextData=(sc.Search))[1997] 2 S.C.R. 13, at para. 52; [R. v. McDonald ](https://nextcanada.westlaw.com/Link/Document/FullText?findType=Y&serNum=2032564071&pubNum=0006489&originatingDoc=I1d3d8cdad6ff0d1be0640010e03eefe2&refType=IC&originationContext=document&transitionType=DocumentItem&ppcid=d5dfc84d0ba34a19a287b074eb5e2815&contextData=(sc.Search))[2014] 1 S.C.R. 37, at para. 35; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 74; [R. v. Shomonov, ](https://nextcanada.westlaw.com/Link/Document/FullText?findType=Y&serNum=2049880579&pubNum=0007352&originatingDoc=I1d3d8cdad6ff0d1be0640010e03eefe2&refType=IC&originationContext=document&transitionType=DocumentItem&ppcid=d5dfc84d0ba34a19a287b074eb5e2815&contextData=(sc.Search))2019 ONCA 1008, at para. 16; R. v. Bakal, 2021 ONCA 584, 157 O.R. (3d) 401, at para. 19; R. v. Davidson, 2017 ONCA 257, 352 C.C.C. (3d) 420, at para. 26.

14To illustrate, where the police were investigating a 911 emergency call under the reasonable belief that the life or safety of the person inside the home was in danger, they were entitled to override the resident’s objection and forcibly enter the home: R. v. Godoy, 1999 709 (SCC), [1999] 1 S.C.R. 311, at para. 18, 22. In R. v. Kelsy, 2011 ONCA 605, 280 C.C.C. (3d) 456, at para. 58, Rosenberg J.A. articulated that the jurisprudence related to safety searches has developed largely in relation to the common law ancillary powers doctrine.

15In this case, I find there was no exigency. The “common theme” emerging from the descriptions in the jurisprudence of exigent circumstances is that it “denotes not merely convenience, propitiousness or economy, but rather urgency, arising from circumstances calling for immediate police action to preserve evidence, officer safety or public safety”: Paterson, at para. 33. It is clear to me, that while Sgt. Sanford and P.C. Johnson were honestly concerned about the potential of a firearm being in the unit, as any reasonable person would be, they relied on “exigency” as a matter of convenience and a pretext to justify a warrantless search.

16I am mindful of Doherty J.A.’s caution that the interactions between the police and the citizenry sometimes occur without the luxury of time to critically assess the events that were occurring at the time: R. v. Golub, (1997) 1997 6316 (ON CA), 117 C.C.C. (3d) 193 (Ont. C.A.), at para. 18. See also R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at para. 33. But fundamental constitutional rights and freedoms are not a superfluous luxury in our society. They are an essential entitlement that must be respected by the police.

17The video of the body worn camera of P.C. Johnson supports my factual findings.

18When the officers arrived at the lobby of the shelter, absolutely no urgency was demonstrated. P.C. Johnson admitted in her testimony that it was not the type of dynamic call where they would bypass the front lobby. They checked in with shelter staff as required. As P.C. Johnson spoke to staff, Sgt. Sanford stood idly by along with other shelter staff members. P.C. Johnson advised a staff member behind the counter that they received a call that there was a weapon. She asked about the name of the resident in unit 305. Minutes go by. A regular staff member eventually walked with the officers to the elevator. Along the way, P.C. Johnson and Sgt. Sanford exchanged light-hearted social banter, including something about Christmas parties having been held in the hotel before.

19The conversation captured between Sgt. Sanford and P.C. Johnson as they stepped in and rode the elevator up is significant. I appreciate the officers were not questioned about this conversation. However, the inference to be drawn from it is obvious to me. As they step into the elevator with the staff member, P.C. Johnson mentions something about working on a warrant. The following exchange then took place:

Sgt. Sanford: “No....We’ll see.”

P.C. Johnson: “See what happens? Yes.”

Sgt. Sanford: “Anonymous complainant, it’s kinda tough to get a warrant.”

P.C. Johnson: “Yeah.” (in agreement).

P.C. Johnson: “I just figure like… exigency… I mean there’s no threats…if it’s right there and available. Yeah”

The three of them then walked to unit 305.²

20In my opinion, the officers were of the view they could not get a search warrant based on the little information they had. Thus, they did not take any steps to prepare one. When P.C. Johnson mentioned “exigency”, she was merely throwing the idea out there, but she was not of the belief at the time that there was exigency. She recognized the anonymous information which did not include any threats, did not amount to a reasonable possibility that any danger posed by the firearm was imminent. Finally, her last comment steered towards the hope that perhaps the firearm may be in “plain view” when they came to the unit.

21These officers were essentially going to play it by ear when they got to the unit. They were not operating under any belief that there were exigent circumstances based on public safety. Any testimony of the officers to the contrary on this application, I do not accept as credible or reliable. Such testimony is simply an ex post facto justification for what they did. Said differently, I do not accept their subjective belief in exigent circumstances. Even in their testimony, looked at holistically, only a vague suspicion there was a gun in the room was in their minds. The tip was anonymous and they questioned the truthfulness of the information they had received. Additionally, and equally importantly, I find what is missing is any belief in the urgency or imminence of the danger posed, calling for immediate police action: R. v. Campbell, 2024 SCC 42, 175 O.R. (3d) 639, at paras. 122-124; Paterson, at para. 33.

22The conduct at the door of the unit also supports my findings. The staff member knocked on the door with the two police officers to the side. This contradicts any sense of immediate danger. If such immediate danger existed, it would be foolish to allow an innocent and untrained employee to initially engage with the residents. Mr. Green opened the door. P.C. Johnson asked if his name was “Jamie”. Mr. Green agreed. When asked by the officer if there was anyone else in the room, Mr. Green opened the door further and Ms. Flaska entered the field of view with recycling in her hand. When asked, she responded it was just the two of them. At P.C. Johnson’s request, Mr. Green opened the door further. In short, both residents of the unit were polite and cooperative.

23Sgt. Sanford then asked Mr. Green if he could step into the hallway for their protection. Mr. Green asked to get dressed first as he was just in his boxer shorts. Immediately then, without invitation or further interaction, Sgt. Sanford walked into the unit and asked the semi-nude Mr. Green to stretch out his arms as he was going to cuff him for their protection, advising him they had received a complaint. Mr. Green meekly complied and extended his arms forward for a while as it took some time to cuff him as Sgt. Sanford had to borrow P.C. Johnson’s handcuffs. Mr. Green was handcuffed behind his back. Sgt. Sanford then advised that they received a complaint about a firearm and that the police were just going to check it out. Mr. Green was taken into the room and sat down.

24In my opinion, the whole conduct of the police shows no urgency and no conviction that the complaint they received had any compelling substance to it. It is noteworthy that P.C. Johnson asked Ms. Flaska if anyone would make a false complaint there was a gun, indicating her own doubts about the legitimacy of the complaint. Ms. Flaska immediately targeted an ex-partner of hers who lived down the hall and who had recently abused her. Moreover, if there was a concern about the danger posed by a gun within the unit, it is puzzling that Ms. Flaska was left unhandcuffed and permitted to roam freely around the room while the officers searched.

25The testimony of the two officers also supports my findings. P.C. Johnson’s own view of what defines “exigent circumstances” referred to the threat of harm or death; what is missing is any concept of imminence. Indeed, P.C. Johnson believed the urgency in this case was established from the lack of information provided by the vague complaint. Moreover, she re-iterated that her decision to conduct the search took into consideration her doubt that they could get a search warrant. I need not state how wrong this attitude is. This speaks volumes that the officers conducted the warrantless search for the sake of expediency and convenience.

26I conclude the same regarding Sgt. Sanford’s subjective belief. He testified that in his mind they could not just go away from the unit. They did not have enough information for a search warrant, so he went into the unit to further the investigation and for officer safety. He testified that in his mind, exigent circumstances meant if they did not enter, there was a “possibility” of that gun committing a crime. In my view, this falls far short of true exigent circumstances.

27Moreover, on an objective basis, there was slim foundation for this doctrine to justify the search. There were obvious frailties with the tip: it was anonymous and with little detail given. The information about the name “Jamie” received about the resident’s identity from shelter staff is unconnected to any information provided by the informer. The description of the two residents was consistent with the tip, but it was largely generic based mainly upon their race and sex. While the purported recency of the observation is a factor in support, it does not overcome the frailties. In terms of danger, as recognized by the officers themselves, the tip involved no dangerous use of the firearm. No threats of use or violence were reported. No information that it was loaded, or ammunition was seen accompanying it, or even that it was a real firearm.

28If this was considered sufficient to establish a basis for an exigent search, anytime an anonymous tip about a recent possession of a gun is received by the police, this would provide legal authority for the police to conduct a warrantless search of anyone’s home. That cannot be right: R. v. Feeney, 1997 342 (SCC), [1997] 2 S.C.R. 13, at paras. 52-53.

29The Crown rightfully submitted that the context of the building should be considered; that is the danger posed was heightened by the fact that all residents of the shelter were vulnerable and exposed to frequent incidents of violence and crime. That said, the socio-economically vulnerable of the shelter included the residents of unit 305. Considering the fact there was no cross-examination or submissions on this point I will not go further, but I am troubled that subconscious biases may have entered the thinking of the officers that evening. It is hard to see this warrantless search happening at a statelier home in a wealthier neighborhood of our city.

30While this finding suffices to resolve this issue, I would be remiss not to point the following out. While the officers did not believe they had the grounds for a search warrant, they could have undertaken additional investigation to confirm the anonymous tip including from collateral sources such as the shelter staff or other residents. Depending on what further investigation revealed, the police could have sought out a telewarrant to search the unit. By confronting Mr. Green, it could be reasonably contended that they created the “exigency” by their own actions. They cannot rely upon the doctrine of exigent circumstances in such an instance: Campbell, at para. 125.

31The last issue I wish to raise is s. 487.11 of the Criminal Code. The Crown did not specifically rely on it. However, it does provide a statutory exception to the search warrant requirement. Section 487.11 has three essentials: the existence of reasonable grounds for obtaining a warrant; the existence of exigent circumstances; and whether those exigent circumstances rendered it impracticable for the police to obtain a warrant.

32None of the three essentials were met on the facts of this case.

2. Violation of s. 9: Manner of Detention was Unreasonable

33Mr. Green does not contend the requirements for investigative detention were not met. However, I find that the manner of detention violated s. 9 of the Charter: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 23. I have previously analyzed the legal approach to the issue of handcuffing persons who have been placed under investigative detention in the case of R. v. Campbell, 2016 ONCJ 236, 197 M.V.R. (6th) 137, at paras. 111-135 and adopt it here. Campbell has been cited in other cases since its release. See for example: R. v. Bailey, 2023 ONSC 6789, at para. 13; R. v. McNair, 2024 ONCJ 217, at para. 61; R. v. Ramnath, 2018 ONCJ 853, 424 C.R.R. (2d) 99, at para. 40.

34In my opinion, the handcuffing of Mr. Green based upon the information received and the circumstances confronting the police officers at the time, was unnecessary for the police to perform their duty and turned the detention into an effective arrest.

35Any necessity claimed for handcuffing Mr. Green because the police officers were concerned they were all going to be in the same premises as a potential gun while they searched for it, is fundamentally misplaced as the police had no right to be in unit 305. Indeed, the reason for handcuffing him was that the officers intended to conduct the illegal search.

36Moreover, the circumstances did not call for the handcuffing. I have already alluded to the problems with the anonymous tip and the uncertainty of the officers regarding its reliability. The officers knew nothing about “Jamie” and had no information to suggest he had a criminal background or one for violence. The tip itself alleged no violence. Mr. Green was nearly naked and no safety search of his person was required.³ Mr. Green was polite, quiet, and cooperative. He did not attempt to flee, hide, or evade police inquiry. Nothing would suggest he could become aggressive or belligerent. The same goes for the behavior of Ms. Flaska. Even if Mr. Green was somewhat reluctant to step outside into the hallway given his state of dress, the officers could have made their inquiries at the door.

37Mr. Green was handcuffed behind his back, made to sit down, dressed only in underwear for about ten minutes in total while the search was conducted. While the Crown emphasizes the brevity of the time he was cuffed before they had grounds to arrest him, in my view, Mr. Green was effectively arrested for those ten minutes. This was a breach of s. 9.

38Lastly, I am again troubled by something that I noted above. Mr. Green is a young, muscular, Black man albeit relatively short of stature and of smaller build. Much smaller than Sgt. Sanford. Yet he was immediately handcuffed to the rear and made to sit down while in a semi-nude state. On the other hand, Ms. Flaska, a white female, aside from a brief frisk search, was left unbothered. The Crown is correct that none of the Crown witnesses were asked questions regarding this situation or about racial bias. Given this, I make no findings based on these concerns and they have not affected my analysis of this application.

39But I feel that I have to say this. It is based upon the same question that I posed in Campbell at para. 129. It involves unconscious bias.

40The justice system has begun to take steps to address the pernicious effects of unconscious bias. We now regularly warn juries about it. Judges take training on it and alert themselves to it in adjudicating cases. Police officers, no matter how experienced and well-meaning, would also do well to be conscious of its dangers.

3. Violation of s. 10(b): Right to Counsel

41Mr. Green’s right to counsel was violated in two ways.

42First, Sgt. Sanford testified that upon detention he gave Mr. Green a short-hand form of his right to counsel and did not read the standard form from his memo book. I accept he did advise Mr. Green of his right to call a lawyer in a summary fashion, but the content of the right falls short. He did not advise him of his right to contact duty counsel: R. v. Brydges, 1990 123 (SCC), [1990] 1 S.C.R. 190, at para. 24. Notable is that there was no excuse why he did not read out the right to counsel properly. He had the time and opportunity to do so (i.e. he had his memo book with him, and he was mostly standing beside Mr. Green). I can only conclude that he did not do so out of carelessness or indifference.

43Second, except in cases of urgency or danger, the police must hold off from questioning or seeking to obtain incriminating evidence from the detainee, until a detainee is properly advised of their right to counsel and if one is desired, a reasonable opportunity to consult counsel is provided: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 38; R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 27 R. v. G.T.D., 2018 SCC 7, [2018] 1 S.C.R 220, at para. 2.

44In cross-examination, Sgt. Sanford agreed that Mr. Green said he wanted to call a lawyer after he was given his right to counsel upon detention when he was seated in the room. Yet, Sgt. Sanford did not hold-off questioning him. He asked how long Mr. Green had lived in the unit and whether there was a firearm within. P.C. Johnson also inquired of Mr. Green whether there was anything that looked like or could be interpreted as a firearm. The Crown concedes this breach.

45On the other hand, there was no breach of the duty to facilitate access to a lawyer which arises immediately upon the detainee’s request to speak to counsel. A constitutional obligation is placed on the police to facilitate the requested access to a lawyer at the first reasonably available opportunity with the burden on the Crown to show that a given delay was reasonable in the circumstances: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 24.

46Mr. Green does not complain about any delay once he arrived at 42 Division and was paraded. Rather, Mr. Green submits that he should have been afforded the opportunity to consult counsel earlier while at the shelter or in the police cruiser.

47I do not agree. The Crown has adequately explained any delay in implementing Mr. Green’s right to counsel.

48First, both officers testified that privacy could not be given in unit 305. It is a small room. Basically, a hotel room with an adjoining bathroom. It was reasonable not to provide an opportunity to contact counsel in the room or bathroom given privacy and security concerns.

49Second, the police officers were not questioned about whether they had any telephones they could allow Mr. Green to use: R. v. Brunelle, 2024 SCC 3, 488 D.L.R. (4th) 581, at para. 84.

50Third, I appreciate that I have held that in some cases where privacy can be afforded in the rear of the cruiser, this is a relevant factor and may make the delay unreasonable: R. v. Griffiths, 2026 ONSC 485, at paras. 35-53. The facts of this case are distinguishable from Griffiths. Here the officers were not obliged to take Mr. Green down to the police cruiser during the time he was in investigative detention in the room. He was undressed and this detention lasted ten minutes at most. Once placed under arrest and dressed, he was taken down to the police cruiser without any undue delay and driven to 42 Division, a few kilometers away. It was reasonable for the police to decide he could call a lawyer at the station rather than in the rear of a cruiser situated in the parking lot of a busy shelter. Then, the delay while waiting to be paraded at 42 Division was adequately explained by the time needed for P.C. Johnson to input and upload the information required by protocol to enter the police station and to facilitate the booking process.

4. Violation of s. 8: the Invalidity of the Search Warrant

51Mr. Green challenges the search warrant issued. I grant that challenge.

52There is a presumption of validity on the judicial review of a search warrant. The onus is on the challenging party to show the warrant is invalid. The standard of review is whether the issuing justice could, acting judicially, have found that the legal thresholds were met; whether the Information to Obtain (ITO) contained sufficient credible and reliable evidence on which the authorizing justice could have found 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 the search: R. v. Garofoli 1990 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1452; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 51, 54; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40; R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at paras. 81, 83-84; R. v. Herta, 2018 ONCA 927, 143 O.R. (3d) 721, at para. 20.

53When information in the ITO is obtained in violation of the Charter, this information is excised and the determination of whether the warrant could have issued is based on what remains after the excision: R. v. Zacharias, 2023 SCC 30, 431 C.C.C. (3d) 421, at paras. 30-34; Araujo, at para. 52; R. v. Grant, 1993 68 (SCC), [1993] 3 S.C.R. 223, at p. 251.

54The test for the sufficiency of an ITO that is based on an informer's tip is dependent upon whether the tip is compelling, whether the informer is credible, and whether the tip has been confirmed by independent police investigation. Weaknesses in one area may be compensated by strengths in the other two areas: R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1168: R. v. Plant, [1993] 2 S.C.R. 281, at p. 297.

55When assessing the ITO for the search warrant for unit 305 based on those criteria, the credibility of the informer is non-existent. It is an anonymous tip to 911. The person refused to reveal their identity. When the police called back the number used to generate the call, an unknown male answered and provided an implausible account that he had just lent his phone to an unidentified stranger to make a brief call.

56Regarding the compelling nature of the tip. On the positive side, the informer is said to have made firsthand recent observations. On the other hand, there is almost no detail provided. It is said to be at a unit of a large shelter. The relationship the informer has with the occupants is cryptic and highly generic; a purchaser of drugs from a drug dealer. Nothing more. The gun is not described beyond its color. No further information about the interior of the unit is given that could support the assertion that the informer had been inside. The description of the residents is based broadly on an age range of the male, gender and race. And that is all. No further details were given.

57Corroboration of a criminal particular of the offence is not necessary: R. v. Caissey, 2008 SCC 65, [2008] 3 S.C.R. 451, at para. 2. That acknowledged, there is little overall confirmation of any information in this ITO. The police obtained the name “Jamie” as being the resident of unit 305 from collateral sources but this does not confirm the tip as the informer did not provide any name. Only race and gender of the occupants were confirmed by the police when they went to unit 305. However, the fact that the informer knew innocent details like a person’s race and gender does not suffice: R. v. Lewis, (1998) 1998 7116 (ON CA), 38 O.R. (3d) 540 (C.A.), at paras. 18-19; Herta, at paras. 38-40; Debot, at pp. 1168-1169

58By the time the affiant swore the ITO, Mr. Green’s identity was known. Nothing was disclosed in the ITO about any past criminal record or antecedents of Mr. Green. Therefore, nothing garnered by any further police investigation could confirm the information received.

59Bluntly, this ITO depended upon the finding of the firearm. Once excised, no issuing justice acting judicially could have issued this search warrant. I find that based on the corrected ITO, there no longer remains a reasonable basis upon which the authorizing justice, acting judicially, could find reasonable grounds to believe that evidence of a firearm offence would be found in unit 305: R. v. Phan, 2020 ONCA 298, 387 C.C.C. (3d) 383, at para. 53.

60The search warrant is quashed and a further violation of s. 8 results.

C. SECTION 24(2): THE EXCLUSION OF EVIDENCE

61I have found several violations of Mr. Green’s Charter rights. To obtain the remedy of the exclusion of the evidence, the test under s. 24(2) of the Charter must be met.

1. The Grant Analysis

62Under s. 24(2), evidence obtained in breach of the Charter is excluded if its admission would, in all the circumstances, bring the administration of justice into disrepute. The focus of the inquiry is on the long-term impact of the admission of the evidence on the repute of the justice system: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 67-70.

63The test requires the consideration of three lines of inquiry into:

1. the seriousness of the Charter-infringing state conduct;

2. the impact of the breach on the Charter-protected interests of the accused; and

3. society's interest in the adjudication of the case on its merits.

Seriousness of the Charter-infringing state conduct

64The first line of inquiry under s. 24(2) asks whether the Charter-infringing state conduct is so serious that the court must dissociate itself from it. The spectrum of seriousness involves, at one end, "inadvertent or minor violations of the Charter" and, at the other, "wilful or reckless disregard of Charter rights": Grant, at para. 74.

65I find the Charter violations in this case are at the most serious end of the spectrum. Not just cumulatively, but some, like the warrantless entry into unit 305, standing alone. There is a strong need for the court to disassociate itself from this Charter-infringing state conduct.

66The Crown relies upon the good faith of the officers. I find no such good faith as the concept is understood under the s. 24(2) analysis.

67Regarding the s. 8 violation, the police relied on exigency for the warrantless search without a valid basis, rendering the Charter-infringing conduct more serious: Paterson, at para. 47.

68Warrantless searches on the basis of exigent circumstances is a well-established legal doctrine. Sgt. Sanford is a very experienced officer with decades of policing. Furthermore, both Sgt. Sanford and P.C. Johnson turned their minds to the need for a search warrant and determined they could not get one. So, they decided to conduct a warrantless search. They relied upon the exigency doctrine merely out of expediency.

69The police officers’ experience and familiarity with the law aggravates the seriousness of the Charter breach as the warrantless search did not take the police into “uncharted legal waters”: R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at paras. 149-150. The exclusion of evidence is warranted “for clear violations of well-established rules governing state conduct”: R. v. Tim, 2022 SCC 12, 412 C.C.C. (3d) 147, at para. 85, quoting Paterson, at para. 44.

70In addition, although I do not find these officers were dishonest, their testimony seemed to be motivated by an after-the-fact desire to justify unjustifiable actions by broadly resorting to exigent circumstances that they knew or should have known did not exist: [R. v. Pino, ](https://nextcanada.westlaw.com/Link/Document/FullText?findType=Y&serNum=2038917234&pubNum=0007352&originatingDoc=I1d3d8cdad6ff0d1be0640010e03eefe2&refType=IC&originationContext=document&transitionType=DocumentItem&ppcid=f072d0acfb7e4ce68d43b33186aadea5&contextData=(sc.Search))[130 O.R. (3d) 561, at para. 102; [R. v Mian, ](https://nextcanada.westlaw.com/Link/Document/FullText?findType=Y&serNum=2034320479&pubNum=0006489&originatingDoc=I1d3d8cdad6ff0d1be0640010e03eefe2&refType=IC&originationContext=document&transitionType=DocumentItem&ppcid=f072d0acfb7e4ce68d43b33186aadea5&contextData=(sc.Search))[2014] 2 S.C.R. 689, at para. 88. At best, they were highly negligent and reckless. At worst, they were either wilfully blind or deliberately indifferent to the need for a search warrant.

71Compounding the seriousness of the violation, is the second warrantless search given that the search warrant could not be upheld.

72Equally, the informational component of the right to counsel and the duty to hold off from questioning is a well-established legal doctrine. Both officers asked Mr. Green questions that were directly intended to obtain incriminating statements about the existence of a firearm. Questioning a detainee in breach of s. 10(b) is a serious violation: Taylor, at para. 39. These were flagrant violations.

73While Mr. Green was properly informed of his right to counsel when he was formally arrested and did speak later with a lawyer, this does not mitigate the seriousness of the initial s. 10(b) breaches: [R. v. Griffith, ](https://nextcanada.westlaw.com/Link/Document/FullText?findType=Y&serNum=2053599959&pubNum=0007352&originatingDoc=I1d3d8cdad6ff0d1be0640010e03eefe2&refType=IC&originationContext=document&transitionType=DocumentItem&ppcid=f072d0acfb7e4ce68d43b33186aadea5&contextData=(sc.Search))[408 C.C.C. (3d) 244, at para. 71; [R. v. Jarrett, ](https://nextcanada.westlaw.com/Link/Document/FullText?findType=Y&serNum=2054787356&pubNum=0007352&originatingDoc=I1d3d8cdad6ff0d1be0640010e03eefe2&refType=IC&originationContext=document&transitionType=DocumentItem&ppcid=f072d0acfb7e4ce68d43b33186aadea5&contextData=(sc.Search))[498 C.R.R. (2d) 38, at para. 53; R. v. Reilly, 2020 BCCA 369, 397 C.C.C. (3d) 219, at para. 102, aff’d 2021 SCC 38, [2021] 2 S.C.R. 1078.

74Then there is the s. 9 violation. While the brevity of the amount of time Mr. Green was handcuffed mitigates the seriousness of the violation, there was no objective basis for the police conduct.

75Multiple Charter breaches tend to aggravate the overall seriousness of the violations: [R. v. Calderon,](https://nextcanada.westlaw.com/Link/Document/FullText?findType=Y&serNum=2004882670&pubNum=0005255&originatingDoc=I1d3d8cdad6ff0d1be0640010e03eefe2&refType=IC&originationContext=document&transitionType=DocumentItem&ppcid=f072d0acfb7e4ce68d43b33186aadea5&contextData=(sc.Search))[(2004), ](https://nextcanada.westlaw.com/Link/Document/FullText?findType=Y&serNum=2004882670&pubNum=0005255&originatingDoc=I1d3d8cdad6ff0d1be0640010e03eefe2&refType=IC&originationContext=document&transitionType=DocumentItem&ppcid=f072d0acfb7e4ce68d43b33186aadea5&contextData=(sc.Search))[188 C.C.C. (3d) 481 (Ont. C.A.), at paras. 93-94; [R. v. Davidson](https://nextcanada.westlaw.com/Link/Document/FullText?findType=Y&serNum=2041350047&pubNum=0007352&originatingDoc=I1d3d8cdad6ff0d1be0640010e03eefe2&refType=IC&originationContext=document&transitionType=DocumentItem&ppcid=f072d0acfb7e4ce68d43b33186aadea5&contextData=(sc.Search))[, ](https://nextcanada.westlaw.com/Link/Document/FullText?findType=Y&serNum=2041350047&pubNum=0007352&originatingDoc=I1d3d8cdad6ff0d1be0640010e03eefe2&refType=IC&originationContext=document&transitionType=DocumentItem&ppcid=f072d0acfb7e4ce68d43b33186aadea5&contextData=(sc.Search))[352 C.C.C. (3d) 420, at para. 48. Police misconduct undermines public confidence in the rule of law where there are multiple “serious Charter breaches throughout the investigative process”: R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531, at para. 65. On the facts of this case, given that two primary officers were involved in all the breaches, it is fair to characterize this as a pattern of abusive conduct.

76I have no hesitation in concluding that this line of inquiry pulls extremely strongly for the exclusion of the evidence.

The impact on the Charter-protected interest

77The second line of inquiry is concerned with the message to the public by the admission of the evidence that Charter rights are of little avail to the citizen. Courts must evaluate the extent to which the breach undermined the interests protected by the right infringed: Grant, at para. 76; [Tim, at para. 90. Like the first line of inquiry, the second envisages a sliding scale of conduct, with fleeting and technical breaches at one end of the scale and profoundly intrusive breaches at the other: [R. v. McColman, ](https://nextcanada.westlaw.com/Link/Document/FullText?findType=Y&serNum=2073602390&pubNum=0006489&originatingDoc=I1d3d8cdad6ff0d1be0640010e03eefe2&refType=IC&originationContext=document&transitionType=DocumentItem&ppcid=f072d0acfb7e4ce68d43b33186aadea5&contextData=(sc.Search))[423 C.C.C. (3d) 423, at para. 66.

78The interest protected by s. 8 is privacy. Given that the police searched Mr. Green’s home, his “castle”, without a valid search warrant or justifiable exigent circumstance, the impact on his privacy interest was most serious: [R. v. Stairs, ](https://nextcanada.westlaw.com/Link/Document/FullText?findType=Y&serNum=2055906102&pubNum=0005255&originatingDoc=I1d3d8cdad6ff0d1be0640010e03eefe2&refType=IC&originationContext=document&transitionType=DocumentItem&ppcid=f072d0acfb7e4ce68d43b33186aadea5&contextData=(sc.Search))[412 C.C.C. (3d) 283, at para. 49. It is widely recognized under s. 24(2), a warrantless search has a significant impact on the privacy of one’s home: R. v. Blake, 2010 ONCA 1, 251 C.C.C. (3d) 4, at paras. 28, 33; R. v. Szilagyi, 2018 ONCA 695, 142 O.R. (3d) 700, at paras. 78, 80; R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 742, at para. 38; Morelli, at paras. 104-106. Moreover, this search was conducted in an intimate situation where Mr. Green was basically undressed. His home and his personal belongings were both searched thoroughly. It was very intrusive.

79There was also a strong causal connection between the Charter breach and the evidence obtained that amplifies the impact on Mr. Green: Tim, at para. 94.

80The right to counsel is directed at assisting detainees with regaining their liberty and protecting them against the risk of involuntary self-incrimination: Brydges, at pp. 202-203. Additionally, the scope of the s. 10(b) protection extends to detainees' psychological security, because access to counsel gives them "the sense that they are not entirely at the mercy of the police" during detention: [R. v. Rover, ](https://nextcanada.westlaw.com/Link/Document/FullText?findType=Y&serNum=2045478880&pubNum=0007352&originatingDoc=I1d3d8cdad6ff0d1be0640010e03eefe2&refType=IC&originationContext=document&transitionType=DocumentItem&ppcid=f072d0acfb7e4ce68d43b33186aadea5&contextData=(sc.Search))[143 O.R. (3d) 135, at para. 45; Jarrett, at para. 52.

81On the other hand, the violation of s. 10(b) did not contribute to the discovery of the evidence in any meaningful way and this lessens the impact on the interest: R. v. Beaver, 2022 SCC 54, [2022] 3 S.C.R. 718, at para. 125, citing Grant, at para. 122; R. v. Fox, 2026 SCC 4, at para. 115; R. v. McGowan-Morris, 2025 ONCA 349, 177 O.R. (3d) 81, at para. 115. The Crown does not seek to tender any statements made by Mr. Green.

82For a violation of the informational component of s. 10(b), the lack of causation between the breach and the evidence is not per se a mitigating factor: [R. v. Davis, ](https://nextcanada.westlaw.com/Link/Document/FullText?findType=Y&serNum=1173776754&pubNum=0007352&originatingDoc=I1d3d8cdad6ff0d1be0640010e03eefe2&refType=IC&originationContext=document&transitionType=DocumentItem&ppcid=f072d0acfb7e4ce68d43b33186aadea5&contextData=(sc.Search))[166 O.R. (3d) 401, at para. 65.

83Section 9 protects liberty and dignity interests. Again, while the effect on Mr. Green’s liberty is somewhat limited by the relatively short time he was handcuffed, one should not lose sight of the saying that liberty once lost cannot be regained. The dignity component is further aggravated by Mr. Green’s state of undress and the fact he was wrongfully handcuffed, in the sanctity of his own home.

84Overall, this line of inquiry strongly favours exclusion of the evidence. Multiple Charter-protected interests were significantly adversely affected.

Society's interest in the adjudication of the case on the merits

85The third and final factor is society's interest in the adjudication of the case on its merits. The third line of inquiry asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry requires courts to consider both the negative impact of admission of the evidence on the repute of the administration of justice and the impact of failing to admit the evidence. At this stage, I consider factors such as the reliability of the evidence and its importance to the Crown's case: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 33. The underlying principle at play here is the truth-seeking function of the criminal trial process and whether the criminal justice system would be better served by admission or by exclusion, considering the seriousness of the offence. While these are important factors to be weighed in the balance, they cannot be skewed in such a way that they overwhelm the s. 24(2) analysis: Harrison, at para. 40.

86This factor greatly favours the admission of the evidence. The evidence is reliable, since it is physical evidence found in the home of the accused. The evidence is so central to the Crown’s case that excluding it will mean the prosecution will end. The offense is extremely serious as illegal handguns pose a severe threat to public safety. These factors collectively support that the public has a strong interest in the adjudication of these offences on the merits.

The final balancing

87The final balancing of these lines of inquiry must always keep its focus on the long-term effect of the admission or exclusion of the evidence.

88The final balancing is a qualitative exercise and not a mathematical one. When balancing the Grant factors, the cumulative weight of the first two lines of inquiry must be balanced against the third line of inquiry: Beaver, at para. 134. Where the first and second inquiries, taken together, make a strong case for exclusion, although not an inflexible rule, the third inquiry will seldom if ever tip the balance in favour of admissibility: Le, at para. 142; R. v. Reilly, 2020 BCCA 369, 397 C.C.C. (3d) 219, at paras. 148-149, aff'd, 2021 SCC 38, 75 C.R. (7th) 313; Paterson, at para. 56.

89Balancing in this instance does not prove to be difficult. The first two lines of inquiry cumulatively are immensely for exclusion. The third line of inquiry very plainly does not overcome this exclusionary effect. The proper balance in this case calls for the exclusion of the evidence. Admitting it would bring the administration of justice into disrepute. Of this, I have no uncertainty.

90To be clear, as a final comment, if I was tasked with the final balancing under s. 24(2) for only the s. 8 breach due to the warrantless search, the evidence would still be excluded given its egregious nature.

Justice S. Nakatsuru

Released: April 27, 2026

CITATION: R. v. Green, 2026 ONSC 2455

Footnotes

1. 1Although P.C. Johnson testified she believed she had exigent circumstances for public safety and the destruction of evidence, the Crown has only relied on public safety. In my opinion, any analysis involving the potential destruction of evidence leads to the same result, but even more so. There was no basis to believe if a warrantless search was not conducted, the firearm would be destroyed. I note that the police officers did not rely upon the information of drugs being present in the unit as a basis for their entry.
2. 2No transcript was provided. This transcription is what I have discerned from the audio and video.
3. 3Even during Mr. Green’s parade at booking at 42 Division, no frisk search was conducted as Sgt. Sanford explained to the booking sergeant that the clothing he was given