SUPERIOR COURT OF JUSTICE - ONTARIO
RE: U.S.A. v. Cunningham
BEFORE: C. Weiler J.
COUNSEL: K. Aird and A. Rice, for the Respondent (The Attorney General of Canada on Behalf of the United States of America)
J. Vamadevan, for the Applicant (Malik Cunningham)
HEARD: April 2, 2026
REASONS FOR DECISION ON APPLICATION
OVERVIEW
1The United States seeks to extradite the applicant, Malik Cunningham, to stand trial on a charge that he committed a killing for hire in Canada at the behest of an international drug trafficking organization operating in the United States and elsewhere run by Ryan Wedding (the “Wedding DTO”).
2The evidence gathered in the United States and Canada relating to the allegations against Mr. Cunningham and other persons sought for extradition is summarized in the Second Revised Record of the Case (“SRROC”). The SRROC alleges that Mr. Cunningham communicated with Andrew Clark, believed to be the second-in-command in the Wedding DTO, about hiring Mr. Cunningham to kill Randy Fader for money. On April 1, 2024, Mr. Fader was shot in the head in his driveway in Niagara Falls. The evidence alleged to link Mr. Cunningham to Mr. Fader’s murder was gathered by Canadian authorities. It includes messages and other data extracted from a white iPhone found on and seized from Mr. Cunningham after he was pulled over for a traffic stop and arrested for possession of property obtained by crime.
3In this application, Mr. Cunningham seeks an order for disclosure relating to the examination of the white iPhone by the Niagara Regional Police Service (“NRPS”). Although Mr. Cunningham’s application materials framed the disclosure sought more broadly, at the hearing he narrowed his request to an order for disclosure of:
- the search warrant authorizing the NRPS to examine the white iPhone;
- the information to obtain (“ITO”) sworn in support of the search warrant1 and all source material referred to in the ITO; and
- the results of the examination of the white iPhone.
4At issue in this application is whether, in the extradition context, Mr. Cunningham is entitled to an order for the disclosure he seeks.
FACTUAL BACKGROUND
5On October 16, 2024, Mr. Cunningham was arrested pursuant to a provisional warrant under s. 13 of the Extradition Act, S.C. 1999, C. 18 (the “Act”) and has been in custody since his arrest.
6On January 13, 2025, the Minister of Justice authorized the Attorney General of Canada (“AG Canada”) to proceed to seek an order for committal, identifying the corresponding Canadian offence as “Murder, contrary to s. 235 of the Criminal Code [R.S.C. 1985, c. C-46]”.
7A revised Record of the Case (“RROC”), was certified on January 10, 2025 and provided to Mr. Cunningham on January 14, 2025. On February 17, 2025, counsel for Mr. Cunningham requested disclosure of the Canadian-gathered evidence summarized in the RROC, among other things. Counsel for the respondent denied Mr. Cunningham’s disclosure request. On March 10, 2025 the certified Second Revised Record of the Case was disclosed to Mr. Cunningham.
8No date for Mr. Cunningham’s committal hearing has been set.
9The SRROC details the evidence gathered leading to the charge against Mr. Cunningham. What follows is a summary of the salient aspects of the SRROC relevant to Mr. Cunningham’s disclosure application.
10Mr. Fader was shot in the head in his driveway in Niagara Falls on April 1, 2024. Canadian police had known Mr. Fader to have been involved in international drug trafficking. A witness to the shooting saw a male dressed in black exit a white Audi Q7 (the “Audi”), shoot Mr. Fader, and return to the Audi, which sped away. CCTV footage of the Audi showed it leaving the scene and traveling to Toronto, before it stopped in North York behind a dark green Ford Explorer with an Alberta license plate CRN3881 (the “Ford Explorer”). The occupants of the Audi entered the Ford Explorer and drove away.
11Mr. Cunningham was driving the Ford Explorer on April 14, 2024, when DC Joseph Calia of the York Regional Police Service (“YRPS”) executed a traffic stop. The YRPS had been alerted to a vehicle described as a Ford Explorer with Alberta license plate CRN3881, which was parked near the funeral of a homicide victim, with an occupant inside. The stop was initiated because a license plate query showed that the vehicle was fraudulently registered.
12Mr. Cunningham was placed under investigative detention for possession of property obtained by crime, and told that the vehicle would be seized and that he would be released unconditionally. At Mr. Cunningham’s request, DC Calia retrieved a green Dollarama bag from the Ford Explorer and observed that it was full of cash wrapped in elastic bands. DC Calia arrested Mr. Cunningham for possession of proceeds of crime. DC Calia then searched the Ford Explorer incident to arrest and found another large quantity of cash (for a total of more than $100,000) and 7 rounds of 9 mm ammunition. A 9 mm casing had been found in Mr. Fader’s driveway.
13While conducting a search of Mr. Cunningham incident to arrest, DC Mark Levangie located four cellphones on him, including the white iPhone. During booking, DC Calia saw Mr. Cunningham use the white iPhone to obtain contact information for sureties.
14On April 18, 2024, a report to justice was submitted for the items seized during the traffic stop, including the white iPhone. The continued detention of the items was ordered. On April 22, 2024, the YRPS transferred custody of the four seized cellphones to the NRPS. On April 24, 2022, Det. James Prinsen of the NRPS swore an ITO for a search warrant to examine the white iPhone. The warrant specified that the offence under investigation was first degree murder.
15The warrant authorized the search of the white iPhone for data from a specific date range – December 30, 2023 to April 14, 2024, including the following:
Incoming and outgoing text messages and social media messages such as WhatsApp, Snapchat, Facebook, Instagram, etc.; contact information; call history records; email; GPS locations; pictures and video; internet web history; wireless Internet records; health data; and any data relating to the ownership, access, use or control of the device and their data as well as any data relating to the configuration of the device’s systems and programs.
16The warrant was authorized under s. 487 of the Criminal Code and executed on April 25, 2024 by Det. Prinsen. The technological crimes unit provided a report to investigators to show that the data extracted was in compliance with the search warrant.
17Detective Sergeant Bryan Kennedy of the NRPS conducted an analysis of the white iPhone in compliance with the search warrant. He authored his own independent analytical report relating to the Fader homicide, which details the relevant items found on the white iPhone. DS Kennedy found hundreds of messages on Threema, a secure messaging platform, between an account YBWZYA9W and nickname “MrPerfect” and two Threema accounts (6YFRTV3P and 8ZEDZR2D and nicknames “Mero Wero” and “Mero guero”). DS Kennedy located data suggesting the Threema account YBWZYA9W and nickname “MrPerfect” was used by Mr. Cunningham.
18On July 18, 2024, NRPS homicide detectives contacted RCMP Staff Sergeant Stephen MacQueen and informed him that they believed Mr. Fader’s murder was possibly linked to the Wedding DTO. They asked him to review certain Threema messages found on the white iPhone to determine if they were communications with someone in the Wedding DTO. Staff Sergeant MacQueen recognized Threema accounts 6YFRTV3P and 8ZEDZR2D and nicknames “Mero Wero” and “Mero guero” as accounts attributed to Andrew Clark. Staff Sergeant MacQueen shared this information with Special Agent Hannah Monroe of the FBI, who also recognized the accounts as ones attributed to Clark. The FBI began a parallel investigation into Mr. Fader’s murder. As detailed in the SRROC, the NRPS voluntarily shared specific evidence collected in their investigation with the FBI but did not share the physical white iPhone, and it was not examined or searched by American authorities.
19The SRROC set out the details of 11 exchanges or conversations between January and April 2024 that were described in DS Kennedy’s report, which were attributed to Mr. Cunningham and Andrew Clark. Among other things, these messages discussed: a military training program Mr. Cunningham would attend in Mexico, providing Mr. Cunningham with two Glock handguns and a “re-vinned” 2023 green Ford Explorer, potential targets for murders for hire, including “maybe the Niagara falls ginger” (Mr. Fader was a redhead), the words “driveway job” and the amount of payment for the murder (“100”, referring to $100,000).
20DS Kennedy located a March 16, 2024 note on the phone that read “Epworth circle Niagara Falls” with no additional context; there are fewer than 50 homes on Epworth Circle, one of which was where Mr. Fader lived. Photographs of a white Audi Q7 were taken on March 27, 2024. Location data on the phone placed it within two kilometres of Mr. Fader’s residence on April 1, 2024.
POSITIONS OF THE PARTIES
21Mr. Cunningham accepts that in the extradition context, he is not entitled to the same level of disclosure as he would be under R. v. Stinchcombe, [1991] 3 S.C.R. 326. However, he submits that the SRROC must contain sufficient information to allow him to determine how the evidence was obtained and whether it was obtained in a Charter-compliant manner or is otherwise admissible under Canadian law. He notes that s. 32(2) of the Extradition Act requires that evidence gathered in Canada satisfy Canadian rules of evidence to be admissible, and that Canadian rules of evidence include compliance with the Charter: United States of America v. Anekwu, 2009 SCC 41, [2009] 3 S.C.R. 3, at para. 21.
22Mr. Cunningham does not assert that he meets the test for whether additional disclosure should be ordered in extradition proceedings set out by the Court of Appeal for Ontario in R. v. Larosa (2002), 166 C.C.C. (3d) 449 (Ont. C.A.). The three-part air of reality test in Larosa essentially requires the person seeking the disclosure order to show some realistic possibility that allegations of state misconduct in the gathering of evidence can be substantiated if the order for additional disclosure is made. Here, Mr. Cunningham does not allege any specific police misconduct. He relies on the lower threshold set out in United States of America v. Fraser, 2017 BCCA 136 at para. 59, leave to appeal to S.C.C. refused, 37588 (September 21, 2017), which states that the person sought must show a “reasonable question or possibility that the Canadian-gathered evidence does not conform in substance with the rules of evidence”. In that case, the B.C. Court of Appeal found that the trial judge erred in denying a request for an order for additional disclosure when the record of the case (“ROC”) failed to include sufficient information to determine whether communications intercepted in Canada were admissible according to Canadian rules of evidence, including the Charter: Fraser, at paras. 59, 65-66.
23Mr. Cunningham argues that the SRROC does not disclose sufficient information to allow him to determine whether the evidence obtained from the white iPhone is admissible under s. 32(2) of the Extradition Act. Based on the absence of certain details, he asserts there is a realistic possibility that:
i) The police did not have reasonable and probable grounds to support the issuance of the warrant to search the white iPhone given the absence of information in the SRROC about the state of the Fader homicide investigation at the time the warrant was issued;
ii) The ITO sworn in support of the search warrant was not full, frank, and fair; and
iii) The examination of the white iPhone was not conducted reasonably pursuant to the warrant because the extraction reports and police notes regarding how the examination of the iPhone was conducted were not included in the SRROC, only assertions that the officers who conducted the examinations did so pursuant to the terms specified in the warrant.
24The respondent AG Canada argues that the SRROC satisfies the onus for Canadian-gathered evidence set out in the Supreme Court of Canada’s decision in Anekwu. That standard is “sufficient information” to allow the person sought and the court to ascertain whether any piece of evidence was gathered in Canada, and if so, “some information” about how it was obtained. In this case, the SRROC’s level of detail meets that standard. The SRROC details what evidence was gathered in Canada by Canadian authorities and explains how that evidence was gathered with sufficient specificity to allow the person sought and the court to scrutinize the admissibility of the evidence and reasonably infer that the Canadian-gathered evidence was properly obtained.
25The respondent submits that Fraser is distinguishable and of no assistance to Mr. Cunningham. In Fraser, the ROC contained scant information regarding the evidence the police had gathered prior to obtaining an authorization to intercept Fraser’s private communications. Although the ROC mentioned surveillance had been conducted before the authorization to wiretap Fraser had been obtained, the ROC contained no information about who conducted surveillance, when that surveillance was undertaken, or what information it yielded. Accordingly, there was not enough information in the ROC to determine whether one of the criteria for a wiretap authorization – “investigative necessity” had been satisfied. The Court could not infer that the Canadian-gathered evidence was properly obtained.
26By contrast, the SRROC in this case contains a detailed narrative and account of what the police investigation entailed and what information the police had obtained before the ITO was sworn and the search warrant permitting the examination of the white iPhone was issued. Further, the parameters for the examination of the white iPhone were set out in the SRROC as were assertions that the NRPS officers who performed the examination did so in accordance with the parameters set out in the warrant. Nothing about the SRROC’s summary of the evidence obtained from the examination of the white iPhone suggests otherwise.
27AG Canada argues that the application has “all the hallmarks of a fishing expedition” – a request for further information in the hope that it might reveal a Charter violation. Further, accepting the applicant’s position would result in a requirement that in any extradition case there must always be disclosure of any judicial authorizations obtained and the ITO and source material relied on to obtain them. That risks devolving extradition proceedings into domestic ones.
LAW AND ANALYSIS
28The issues to be decided on this application are:
a. What standard must the applicant meet to be entitled to additional disclosure beyond the SRROC?
b. Has the applicant satisfied the standard for an order for additional disclosure?
What standard must the applicant meet to be entitled to additional disclosure beyond the SRROC?
Admissible evidence at a committal hearing
29Understanding the standard the applicant must meet to be entitled to further disclosure requires a brief explanation of the evidence admissible at committal hearings and the disclosure entitlement of persons sought for extradition.
30A committal hearing is not a trial and should not be treated as a domestic criminal proceeding. An extradition judge’s role at a committal hearing is to determine whether based on admissible evidence “there is a prima facie case that an extradition crime has been committed by the person sought for extradition”: Germany v. Schreiber, [2000] OJ. No. 2618 (S.C.) at paras. 68-71; Extradition Act, s. 29(1)(a). Committal hearings are meant to be simple, expedited proceedings designed to ensure that Canada complies with its international obligations to its treaty partners: M.M. v. United States of America, 2015 SCC 62, [2015] 3 S.C.R. 973at paras. 15, 38.
31Section 33 of the Extradition Act provides for evidence to be submitted at a committal hearing in the form of a record of the case. When a person such as Mr. Cunningham is sought for the purpose of prosecution, the ROC must include “a document summarizing the evidence available to the extradition partner for use in the prosecution”: s. 33(1)(a). The summary of the evidence in the ROC need not be comprehensive. The ROC must contain the evidence the requesting state needs to prove a prima facie case to justify committal, but it need not include all of the evidence known to authorities or exculpatory evidence: United States of America v. Dynar, [1997] 2 S.C.R. 462 at para. 132.
32There is a rebuttable presumption that the evidence summarized in the ROC meets the threshold of reliability for admission at the committal hearing. Reliability of the ROC is presumed because under s. 33(3) of the Extradition Act, the ROC must be certified by a judicial or prosecuting authority of the requesting state. Certification means that the requesting state “provides its good word” that the evidence is available and sufficient to justify prosecution: United States of America v. Ferras; United States of America v. Latty, 2006 SCC 33, [2006] 2 S.C.R. 77, at para. 30; Anekwu, at para. 15.
33Canadian-gathered evidence may be contained and summarized in the ROC. However, s. 32(2) of the Extradition Act requires that Canadian-gathered evidence “must satisfy the rules of evidence under Canadian law” to be admissible at the committal hearing. Accordingly, the ROC must demonstrate, to some extent, that the evidence would be admissible in Canada. In Anekwu, the Supreme Court of Canada outlined a two-step approach for an extradition judge to determine whether Canadian gathered evidence in an ROC is admissible:
i) The evidence may first be presented to the extradition judge as part of the ROC. If it is properly certified under s. 33 of the Act, it is presumptively admissible in the summary form pursuant to s. 32(1)(c) of the Act.
ii) Section 32(2) of the Act then requires the judge to scrutinize the Canadian-gathered evidence for compliance with Canadian rules of evidence, including the Charter: Anekwu, at para. 21.
34Scrutiny of Canadian-gathered evidence referred to in the ROC by an extradition judge, includes considering whether it should be excluded under s. 24(2) of the Charter when the evidence was obtained in a manner that violates the Charter. In Anekwu, the Supreme Court of Canada confirmed that the person sought bears the onus of establishing the Charter breach and that the evidence should be excluded under s. 24(2): para. 29. The Court also clarified what the ROC must contain to enable the person sought to bring such a challenge:
Since compliance with Canadian rules of evidence is mandatory in respect of Canadian-gathered evidence, it follows that the record of the case should contain sufficient information to enable the person sought and the extradition judge to ascertain whether any item of evidence has been gathered in Canada and, when that is the case, some information should also be provided on how it was obtained. [Emphasis added.]
Requests for disclosure to challenge Canadian-gathered evidence in the ROC
35A person sought for extradition from Canada does not have the same disclosure rights as an accused charged with a domestic criminal offence. Disclosure rights in the extradition context are more limited because the nature and purpose of a committal hearing is different from a criminal trial. Committal hearings are not full trials. They are not concerned with the issue of guilt or innocence, and do not directly engage the right to make full answer and defence: United States of Amercia v. Kwok, 2001 SCC 18, [2001] 1 S.C.R. 532, at para. 99. Rather, they are intended to be expedited processes to ensure Canada’s prompt compliance with its international obligations under treaties. Accordingly, a person sought is not entitled to full disclosure based on the Crown’s obligations under Stinchcombe. Rather, “[a]ny requirement for disclosure that is read into the Act as a matter of fundamental justice under s. 7 of the Charter will therefore be constrained by the limited function of the extradition judge under the Act, and by the need to avoid imposing Canadian notions of procedural fairness on foreign authorities.”: Dynar, at para. 133.
36In extradition proceedings, the person sought is entitled to disclosure of the evidence on which the requesting state relies to establish a prima facie case for committal, and those materials relevant to Charter issues that are properly justiciable before the extradition judge and for which there is an air of reality: Kwok, at paras. 100-101. Charter issues that are justiciable before the extradition judge are limited to “breaches that pertain directly to the circumscribed issues relevant at the committal stage of the extradition process”, which includes Charter breaches committed while gathering evidence in Canada that is relied on in the ROC: Kwok, at para. 57; Anekwu, at para. 29. Allowing Charter challenges to Canadian-gathered evidence, “preserve[s] the integrity of our justice system by affording fugitives the protection of our laws and values while they remain in Canada”: United States of America v. McDowell (2004), 183 C.C.C. (3d) 149 (Ont. C.A.) at para. 22; Anekwu, at para. 30.
37The right to bring a Charter challenge relating to Canadian-gathered evidence during an extradition proceeding does not mean that disclosure beyond the ROC must be provided in order to ensure that a person sought can explore any and all possible Charter challenges that might be raised. Rather, in Larosa, at paras. 76, 78, Doherty J.A. set out an “air of reality” test, applicable to applications for disclosure beyond the ROC. Under the Larosa test, the applicant must satisfy the following three criteria:
- The allegations must be capable of supporting the remedy sought;
- There must be an air of reality to the allegations; and
- It must be likely that the documents sought and the testimony sought would be relevant to the allegations.
To have an “air of reality, there must be “some realistic possibility that the allegations can be substantiated if the orders requested are made”: Larosa, at para. 78.
38There have been exceptional occasions where persons sought have obtained orders for additional disclosure without meeting the Larosa test. In these cases, the person sought has shown that there is a “reasonable question or possibility” that Canadian-gathered evidence was not obtained in a Charter-compliant manner, due to a potential deficiency in the statutory criteria for a judicial authorization that is apparent on the face of the ROC, but that cannot be determined without further information. In these exceptional cases, courts have recognized that there is a right to further disclosure beyond what the ROC contains to determine if the evidence is admissible under s. 32(2) of the Act: Fraser, at paras. 59, 65; United States of America v. Ratte and Singh, 2025 ONSC 6502 at paras, 47-48, 50. Even in these cases, the person sought must point to some information “from which it could be plausibly inferred” that the Canadian-gathered evidence was obtained in a non-Charter-compliant manner: Fraser, at para. 69.
39Bald allegations are not enough to sustain a disclosure request. The person sought must “do more than simply assert that the documents requested and the testimony sought will assist in determining issues raised”: Larosa, at para. 74. Delays associated with “fishing expeditions” should be avoided when there is no articulated basis established for ordering production: United States of America v. Chu (2009), 196 C.R.R. (2d) 170 (Ont. S.C.) at para. 37. “An application for disclosure founded on a complete absence of information may be a fishing explanation”: Fraser, at para. 69.
Has the applicant satisfied the standard for an order for additional disclosure?
40Counsel for Mr. Cunningham appeared to concede at the hearing that the application did not satisfy the Larosa test. He does not point to any specific allegations of state misconduct that the disclosure sought would be relevant to or potentially substantiate.
41He argued, however, that this is one of those exceptional cases in which the Fraser test governs and justifies an order for further disclosure. He stated that without the disclosure sought, there is insufficient information from the SRROC alone to determine whether the Canadian-gathered evidence from the white iPhone was lawfully obtained pursuant to a valid search warrant. In his view, this raises “a reasonable question or possibility that the Canadian-gathered evidence” was obtained in breach of Mr. Cunningham’s s. 8 right.
42This argument reads too much into the B.C. Court of Appeal’s decision in Fraser. In that case, the court found that the ROC contained insufficient evidence to establish the statutory requirements for a wiretap authorization in the context of a cannabis smuggling investigation. Mr. Fraser pointed to only three facts that had changed in the investigation between the initial wiretap authorization that did not name him and a second wiretap authorization that did name him:
a. the FBI obtaining his phone number from the RCMP;
b. the RCMP obtaining a copy of his driver’s license; and
c. the RCMP conducting surveillance of him without providing the names of the officers, the dates the surveillance was conducted, or the information gleaned.
The Court found that the meagreness of the ROC about the basis for the second wiretap authorization could either be explained by poor drafting or the fact that the police were at an early stage of the investigation and did not have much information to support the authorization. Either way, there was a reasonable question about whether Fraser’s intercepted communications were obtained unlawfully. Accordingly, Fraser had shown there was “a reasonable inference that the [wiretap] authorization was inadequately supported and that further information was required to conduct a satisfactory assessment to see whether that is so”: Fraser, at paras. 34, 58-59, 66.
43Relying on Fraser, this Court recently ordered disclosure in Ratte and Singh, relating to two of the other alleged participants in the Ryan Wedding DTO. In that case, Morgan J. found that the applicants Hardeep Ratte and Gurpreet Singh had raised a “realistic possibility” that a wiretap authorization was not properly supported, and therefore evidence obtained from the wiretap might be inadmissible. The s. 184.2 wiretap authorization was based on the consent of a cooperating witness, and the status of that witness had changed – he was no longer available. That placed the basis for the witness’ consent to the authorization in question. The requesting state documented this change in the SRROC, which replaced the RROC that had relied heavily on the witness’ evidence. The disappearance of the witness created the need for more scrutiny of the information remaining in the SRROC for which the witness was the source. In Morgan J.’s view, that scrutiny required further disclosure: Ratte, at paras. 43-44, 46-50.
44Even under the less exacting Fraser standard, the applicant has not identified a reasonable question or possibility that the evidence gathered from the examination of the white iPhone pursuant to the search warrant was obtained in breach of s. 8 Charter.
45The SRROC indicates that the examination of the white iPhone occurred pursuant to and in accordance with a valid s. 487 search warrant issued by Justice Sproul. The search warrant is presumptively valid. The obligation rests on Mr. Cunningham, as the person who wishes to challenge the warrant to challenge the admissibility of the evidence obtained from the white iPhone by way of a Charter application. In a domestic proceeding, the applicable standard for reviewing whether a warrant should have issued 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 in the place to be searched”: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 84.
46The respondent submits that the SRROC is capable of satisfying this standard. Without making a determination on admissibility, I agree. The respondent notes that the SRROC sets out the specific information in the possession of the NRPS when Det. Prinsen’s ITO was sworn on April 24, 2024, including the following:
a. Mr. Fader was killed by a single gunshot to the head and a 9 mm casing was found on his driveway.
b. A witness to the shooting described the shooter speeding away in the white Audi afterwards.
c. Lawfully obtained CCTV footage of the Audi showed it parked at a school near the scene of the murder, then sped away from the scene in Niagara Falls and travelled to Toronto before its occupants parked behind the Ford Explorer, got into the Ford Explorer and drove away.
d. Mr. Cunningham was the driver and sole occupant of the Ford Explorer two weeks later on April 14, 2024. The vehicle was fraudulently registered and subject to seizure. Mr. Cunningham was lawfully detained for possession of property obtained by crime and given his right to counsel.
e. Mr. Cunningham asked DC Calia to retrieve the Dollarama bag full of bundles of cash from the Ford Explorer. The fraudulent registration of the Ford Explorer and DC Calia’s experience and training in identifying the proceeds of crime led him to arrest Mr. Cunningham for possession of proceeds obtained by crime.
f. Seven rounds of 9 mm ammunition were found pursuant to a search incident to arrest of the vehicle, as was more than $100,000 CAD in cash.
g. The white iPhone was seized from Mr. Cunningham’s person during a search incident to arrest. His connection to the device was shown when he used it to retrieve contact information for sureties during booking. Common sense suggests that data on the phone would afford evidence related to the offence.
h. Mr. Cunningham has a prior conviction for attempted murder.
47The applicant’s attempts to liken the surveillance conducted in Fraser to the gathering of CCTV footage of the Audi by the NRPS in this case are unpersuasive. Although the SRROC in this case does not specify the dates on which the CCTV footage was collected, it does specify the following:
a. how the footage was obtained – “on a voluntary basis through traditional canvassing (i.e., voluntarily provided to police by homeowner, business, etc. to assist the police in their investigation) along the route of the Audi Q7”;
b. what that footage showed – the Audi driving away from the scene of the murder, zig-zagging its way to highway 405 at Stanley Avenue, and proceeding to Jane and Wilson in Toronto, where it parked behind the Ford Explorer on Roding Street in North York. The occupants of the Audi entering the Ford Explorer and driving away; and
c. who from the investigative team reviewed the footage.
48The applicant argues that the failure of the SRROC to specify the dates on which the CCTV footage was obtained leaves open the possibility that the footage was not in police possession at the time the ITO was sworn, 23 days after the murder. I find this submission unlikely for two reasons. First, the SRROC notes that “Members of the YRPS had been alerted to a vehicle described as a Ford Explorer bearing Alberta markers CRN 3881” by April 14, 2024, the date of Mr. Cunningham’s traffic stop. This suggests that the Ford Explorer was already a suspect vehicle when Mr. Cunningham was arrested in the vehicle. Second, by the time the ITO for the search warrant was sworn on April 24, 2024, it specified the offence under investigation as “First degree murder contrary to section 235(1) of the Criminal Code”. This suggests that by the time the ITO was sworn, the police investigation had connected the Ford Explorer to the murder.
49The applicant’s remaining two arguments rest on the complete absence of information. In Fraser, at para. 69, the court noted that applications for disclosure that rest on the complete absence of information as opposed to a specific allegation or discrepancy about which more information is required, may be “fishing expeditions.” In this case, that is exactly what they appear to be.
50The applicant argues that without the source material on which Det. Prinsen’s ITO was based, it is impossible to tell whether the ITO contained full, frank, and fair disclosure of all material facts. He seeks this information to find out whether anything in the affidavit might have been inaccurate or misleading. He has advanced no basis to suggest that there was anything inaccurate or misleading based on the information disclosed in the SRROC that was in the hands of the NRPS at the time Det. Prinsen swore the ITO. In fact, he conceded that the SRROC showed no improprieties but submitted that doesn’t mean one can assume that there weren’t any.
51Similarly, the applicant argues that the SRROC lacks sufficient information to enable him to ascertain whether the examination of the white iPhone was conducted reasonably, in accordance with the terms of the search warrant. Not only is this argument based on a “complete absence of information”, it appears to be contradicted by three aspects of the SRROC. First, the SRROC describes the specific parameters for the NRPS examination of the white iPhone both in terms of the date range and the specific types of data that could be examined:
The warrant authorized the search of a white Apple iPhone for data from December 30, 2023 until April 14, 2024, including: incoming and outgoing text messages and social media messages such as WhatsApp, Snapchat, Facebook, Instagram, etc.; contact information; call history records; email; GPS locations; pictures and video; internet web history; wireless Internet records; health data; and any data relating to the ownership, access, use or control of the device and their data as well as any data relating to the configuration of the device’s systems and programs.
52Second, the SRROC refers to two reports which indicate that the NRPS complied with the terms of the search warrant in examining the white iPhone. It mentions that the technological crimes unit of the NRPS provided a report to investigators to demonstrate that the data extracted from the white iPhone was in compliance with the search warrant. Further, it states that DS Kennedy conducted an analysis of the white iPhone in compliance with the search warrant and authored his own analytical report. Finally, the data obtained from the white iPhone that is summarized in the SRROC – the evidence on which the requesting state intends to rely – appears to fall within the date range and search parameters identified in the search warrant. The applicant points to no instances where this is not the case.
53In conclusion, unlike Fraser and this court’s recent decision in Ratte and Singh, the applicant in this case has not pointed to any information “from which it could be plausibly inferred” that the Canadian-gathered evidence was obtained in a non-Charter-compliant manner. The application is dismissed.
C. Weiler J.
Date: April 29, 2026
Footnotes
- At the hearing, the parties advised me that there was an application before the Superior Court in St. Catharine’s brought by certain news organizations to unseal the ITO sworn in support of the search warrant authorizing the examination of the white iPhone. Pursuant to that application, Reid J. ordered a redacted version of the ITO to be unsealed; his decision on whether to unseal an unredacted version of the ITO is under reserve. The parties declined an opportunity to make further submissions on this application based on the unsealed redacted ITO.