CITATION: R. v. Bhatia, 2026 ONSC 3908
COURT FILE NO.: CR-23-1367
DATE: 2026-08-17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
Bidh Preet Singh Bhatia
Accused
M. Ansell, for the Crown
K. Schofield / M. Brar, for the accused
HEARD: February 24, 25, 26, 27;
March 9; and May 22, 2026
REASONS FOR JUDGMENT
C.J. P.J. BOUCHER
[1] The accused is charged on an indictment alleging weapons offences (8 counts), drug offences (3 counts), possession of property obtained by crime, failure to comply with a release order, and resist arrest.
[2] The trial was held along with a blended voir dire dealing with the accused’s Charter applications challenging search warrants and alleging a violation of his right to counsel.
Agreed facts
[3] On February 27, 2022 members of the Greater Sudbury Police Service (“GSPS”) arrested the accused in Room 315 of the Hampton Inn in Sudbury (the “hotel”) while executing a general warrant dated February 18, 2022 (the “general warrant”). After the arrest, police seized the following items from the accused:
a. 18.83 grams of fentanyl (street value $2,825);
b. 199.31 grams of cocaine (street value $19,931);
c. $5,500 in Canadian currency;
d. two cellphones; and
e. a Rolex Sky-Dweller watch (worth approximately $40,000), and two gold bracelets (worth approximately $5,000).
[4] On February 28, 2022 members of GSPS searched Room 315 at the hotel pursuant to a Controlled Drugs and Substances Act, S.C. 1996, c.19 warrant dated February 28, 2022 (the “CDSA warrant”) and located a green bag which contained the following items:
a. a loaded Glock 36-47 calibre handgun with approximately six rounds in the magazine;
b. a loaded Glock 17-9 handgun with approximately 16 rounds in the magazine;
c. 64.78 grams of fentanyl (street value $9,717);
d. 129.24 grams of cocaine (street value $12,924);
e. 53.64 grams of crystal methamphetamine (street value $1,073);
f. an Apple iPhone; and
g. packaging material and a functioning digital scale.
[5] Continuity of the evidence seized is admitted from the time the items were seized and logged into evidence by GSPS.
[6] The Glock 17 (the parties in the agreed facts call this a Glock 5) is in firing condition and is classified as a restricted firearm. The magazine in this Glock firearm has a capacity of 17 rounds making it a prohibited device.
[7] The Glock 36 is in firing condition and is classified as a prohibited firearm.
[8] At the time of the alleged offences the accused was not the holder of a valid Firearm Acquisition Certificate or licence.
[9] At the material time, the accused was bound by:
a. a valid amended release order dated May 22, 2020 that, among other things, prohibited the accused from being away from his residence in Kitchener, Ontario unless in the presence of his surety or for the purposes of going directly to or from or while at work; and
b. a 10-year firearms prohibition order made on April 13, 2017, pursuant to s. 109 of the Criminal Code of Canada, RSC 1985, c C-46 (the “Criminal Code”).
[10] Data was successfully extracted from two of the mobile phones seized by police. The report containing that data (Detective Constable Marshall Hutchinson’s report dated May 16, 2023) was admitted in evidence.
[11] Counsel Kim Schofield’s toll-free phone number is 1-888-611-9660. This phone number has not changed since prior to February 27, 2022.
[12] Upon dialing 1-888-611-9660, outside normal business hours, the caller hears an automated message: “You have reached the law office of Kim Schofield and associates. If this is an arrest call, please press “1”. To leave a message in our general mailbox, please press “2”, and we will return your call as soon as possible. Alternatively, you can email us at reception@kimschofield.com.” This automated message has remained unchanged since prior to February 27, 2022, up until the present day.
Issues
[13] The Charter applications and the trial evidence raise for resolution the following questions:
a. Could the general warrant have issued? In other words, did police have lawful authority to enter and seize evidence from Room 315 at the hotel on February 27, 2022?
b. Did the CDSA warrant grant lawful authority to police to search and seize evidence from Room 315 at the hotel on February 28, 2022?
c. Are the green bag and its contents as well as the evidence seized during the accused’s arrest admissible?
d. If the contents of the green bag are admissible, has the Crown established knowledge and control of the contents by the accused beyond a reasonable doubt?
Could the general warrant have issued?
[14] Section 8 of the Charter guarantees the right to be secure against unreasonable search and seizure: Canadian Charter of Rights and Freedoms, s. 2, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 (the “Charter”).
[15] A search will be reasonable if: (1) it is authorized by law; (2) the law itself is reasonable; and (3) the manner in which the search was carried out is reasonable: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 SCR 1421 at para. 52, citing with approval R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 SCR 265, at para. 278.
[16] A judge reviewing whether a warrant was authorized by a reasonable law cannot substitute their view for that of the judge that authorized the warrant. Rather, the reviewing judge must consider the record that was before the authorizing judge, as amplified on the review, and determine whether the warrant could have been granted, and if so, then the reviewing judge should not interfere: Garofoli, at para. 56. In other words, the question is “whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge, the application should have been granted at all by the authorizing judge:” R. v. Araujo, 2000 SCC 65 at para 54 (emphasis in original).
[17] The relevant Criminal Code provisions dealing with general warrants read as follows:
487.01 (1) A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 may issue a warrant in writing authorizing a peace officer to, subject to this section, use any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person’s property if
(a) the judge is satisfied by information on oath in writing that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the use of the technique, procedure or device or the doing of the thing;
(b) the judge is satisfied that it is in the best interests of the administration of justice to issue the warrant; and
(c) there is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done.
(2) Nothing in subsection (1) shall be construed as to permit interference with the bodily integrity of any person.
(3) A warrant issued under subsection (1) shall contain such terms and conditions as the judge considers advisable to ensure that any search or seizure authorized by the warrant is reasonable in the circumstances.
[18] Section 487.01 was created to make “search warrants available for techniques or procedures not specified in the Code:” R. v. Telus Communications Co., 2013 SCC 16 at para. 16. This is a residual power granted by Parliament, and “resort to it is precluded where judicial approval for the proposed technique, procedure or device or the “doing of the thing” is available under the Code or another federal statute:” Telus Communications Co., at para. 18 (emphasis in original). In other words, a general warrant can only be issued where the Crown can show “that no other provision would provide for a warrant, authorization or order permitting the technique, including…provisions that authorize techniques which are substantively equivalent to the technique proposed by the police in a given case:” Telus Communications Co., at para. 20.
[19] Section 487.01(3) permits the issuance of anticipatory warrants that may be executed upon the satisfaction of preconditions that are explicit, clear, and narrowly drawn within the warrant itself: R. v. Brooks, 2003 CanLII 57389 (ON CA), at para. 28. Limiting the execution of the warrant to circumstances where police “have gathered sufficient evidence to give rise to reasonable grounds that information related to the specified offences will be present” in the place to be searched is consistent with s. 8 of the Charter: R. v. Lucas, 2014 ONCA 561 at para 115.
[20] But delegating to police the determination of whether reasonable grounds exist to permit use of the authorized technique, in the absence of the issuing justice making such a determination, is an improper delegation of the judicial function and violates s. 8 of the Charter: Lucas, at paras. 181-183; R. v. Phan, 2021 ONSC 6312, at para. 70.
The general warrant
[21] Beginning in the summer of 2021 the GSPS received information from confidential human sources (“CIs”) with respect to an individual known as “Bandz” allegedly selling controlled substances (fentanyl and cocaine) in the City of Greater Sudbury. Through police investigation and information received from CIs, police came to believe the accused to be “Bandz.” Shafi Ahmed was identified as an alleged accomplice of the accused and was also the target of police investigation.
[22] As part of police investigation Detective Constable Ricciuto applied for and received the following warrants prior to applying for the general warrant:
a. December 20, 2021
i. Transmission data recorder warrants (mobile devices x2);
ii. Tracking warrant via mobile devices;
iii. Assistance orders (regarding the transmission data recorder warrants and tracking warrant);
b. January 18, 2022
i. Tracking warrant (motor vehicles x2)
c. January 27, 2022
i. Transmission data recorder warrants (mobile devices x3)
[23] As is customary in these investigations, the same judge considered all these applications, including the application for a general warrant.
[24] Reproduced below are DC Ricciuto’s reasons for seeking a general warrant as set out in the information to obtain:
I am seeking an “Anticipatory” General Warrant to enter and preserve any residence an/or vehicle associated to Bidh Bhatia and/or Shafi Ahmed when they attend the City of Greater Sudbury.
Each time Bhatia and/or Ahmed attend the City of Greater Sudbury; they arrive in different vehicles and stay at different locations, generally short term rental properties being Airbnb rentals or hotels. A brief summary of this is as follows:
i. On December 1, 2021, BHATIA was operating a Grey Mercedes CSZF994 and staying at 383 Suffolk Lane (paragraph 33)
ii. On December 21, 2021 AHMED was operating a Mazda CX5 CFZN237 and staying at 38 St. Brendan Street (paragraph 38)
iii. On January 07, 2022, BHATIA was operating a Grey Mercedes CSZF994 and AHMED was operating the Mazda CX5 CFZN237 and both were staying at 471 McLeod Street (paragraph 41)
iv. On January 17, 2022, BHATIA was occupying a Honda sedan CVKL825 and was staying at the Super 8 hotel at 1956 Regent Street (paragraph 46)
v. On January 26, 2022, AHMED was operating a Volkswagen Jetta CPKV275 and staying at 1039 McAllister Ave (paragraph 52)
vi. On February 7, 2022, BHATIA was operating a Toyota Corolla CSZY911 and AHMED was operating a Nissan Rogue CTKB332 and both were staying at 38 St. Brendan Street (paragraph 59)
vii. On February 15, 2022, BHATIA was operating a Hyundai Sonata CMMV 880 and staying at the Hampton Inn 2280 Regent Street (paragraph 62)
The city of Greater Sudbury has over 200 rental properties listed on Airbnb and over 20 hotels making it very difficult to predict where BHATIA and AHMED will establish themselves.
Authorizing the “Anticipatory” General Warrant will allow the police the ability to prevent the destruction of evidence while Warrant(s) to search are being sought under section 11 of the Controlled Drugs and Substances Act.
I believe that the sought “Anticipatory” General Warrant is in the best interests of the administration of justice.
I am aware that there is no other provision within the Criminal Code or any other Act of parliament that would allow for such a technique.
The sought technique is not intended and will not permit any interference with the bodily integrity of any person(s).
As a result of the investigation into Bidh BHATIA, Shafi AHMED and their illicit drug trafficking network, it is believed that BHATIA and AHMED are bringing Cocaine and Fentanyl to the City of Greater Sudbury from Southern Ontario and are subsequently trafficking it to various locations within the city. The investigation, including physical surveillance, Location Based Services analysis as well as the corroboration of information from Confidential Human Sources has all culminated to this belief.
I am aware that there is no judicial authorization to seek an “anticipatory” search warrant; as a result I am seeking the use of an “anticipatory” general warrant with parameters to enter and secure any residence or hotel room that BHATIA and/or AHMED establish when attending the city of Greater Sudbury.
[25] Set out below are the terms and conditions recommended by DC Ricciutio in his information to obtain the general warrant:
- The following are the terms and conditions for the General Warrant for the address that will be associated to Bidh BHATIA and/or Shafi AHMED
i. Members of the investigative team will be conducting physical surveillance on both Bidh BHATIA and Shafi AHMED and/or other members of their criminal network;
ii. When a determination is made that either Bidh BHATIA and/or Shafi AHMED are in the City of Greater Sudbury and have established themselves in a rental property and/or hotel/motel room that has been determined by investigators that it is a rental property and/or hotel/motel room and when police believe on reasonable grounds that any or all of the subject(s) are committing the offences that are listed in Appendix “A”, officers will be permitted to enter the residence/rental property hotel/motel room to prevent the destruction of evidence;
iii. If as a result of any arrest(s) the reasonable grounds that existed for the arrest(s) are continued, police will be allowed to remain on the property of the rental property and/or hotel/motel room to preserve the location;
iv. Once the property has been deemed secure, person(s) located within will be detained as required only to ensure the property and contents remain secure. Officers will be permitted to remain on the property however, outside of the rental property and/or hotel/motel room until a Controlled Drugs and Substances Act warrant has been obtained. It should be noted that if the proposed CDSA warrant(s) are not granted, officers shall and will vacate the premises forthwith;
v. This warrant will be valid for a period of sixty (60) days from the date of issue until 11:59 p.m. on the sixtieth (60th) day. The warrant can be executed at any time when the warrant is valid.
[26] The issuing judge granted the application and issued the general warrant subject to the recommended terms and conditions.
Analysis
[27] The accused argues the warrant was constitutionally invalid because it delegated to the investigating officers the determination of whether reasonable and probable grounds existed that offences were occurring at the location identified in the general warrant.
[28] The accused relies on Phan in support of the improper delegation argument. In Phan, the target had been observed by undercover officers delivering cocaine as part of a drug transaction. Police also located a cocaine press inside the target’s prior dwelling, which the police believed the target had vacated. The police were unaware of the target’s new residential address within a multi-unit building, and they sought a general warrant to assist in locating it, to conduct a search within it, and to seize any evidence related to the investigation of the offences being investigated. The general warrant was granted with terms and conditions including a requirement that the police be satisfied of at least two of three listed indicia of the target’s connection to the unit (an entry fob, a parking space associated with the unit or a motor vehicle associated with the target).
[29] The court held that the determination of reasonable and probable grounds to believe whether information or evidence concerning a listed offence was located within the unit ought not to have been delegated to police. Importantly, the court held at para. 70 that considering the entirety of the general warrant, the issuing justice had not found reasonable and probable grounds existed to permit covert entry.
[30] In my view, the facts in Phan are distinguishable. In the circumstances of this case, the preconditions to entry include: (1) surveillance of the accused and Ahmed; (2) a determination they are in Sudbury and have established themselves in a rental unit/hotel/motel; and (3) reasonable grounds to believe one of them is committing a listed offence. These conditions are informed by the ongoing investigation and prior judicial authorizations, all of which are detailed in the ITO. Unlike in Phan, the evidentiary basis for the reasonable grounds regarding the listed offences is significant and includes information from three CIs that is corroborated by months of surveillance (including mobile phone tracking and location-based services tracking).
[31] The preconditions are crafted in accordance with this evidence. In Brooks, the Court of Appeal endorsed preconditions in a general warrant, in circumstances such as these, that require police to believe reasonable grounds exist that an offence is being committed (at para. 28). Applying Brooks here, I find no improper delegation took place. And I also accept DC Mussen’s reasonable grounds he formed in concluding that the accused and Ahmed were committing index offences. He testified that this included the intelligence gathered during the police investigation up to that point including: (1) mobile phone and location-based services tracking; (2) CI information; and (3) police surveillance of the accused’s and Ahmed’s visits with individuals known to police to be active in the drug trade in Sudbury.
[32] Further, the accused argues the general warrant was invalid because it failed to meet the necessity requirement. In short, the accused submits there was sufficient time to obtain a CDSA warrant on February 26, 2022 after the police determined that the accused and Ahmed had established themselves in the hotel.
[33] In the late evening of February 26, 2022, police observed two cell phones associated with the accused and one associated with Ahmed travelling north toward Sudbury. At approximately 12:30 a.m. the phones were observed near the hotel. Police attended the location and observed Ahmed driving a motor vehicle with the accused in the passenger seat. A second vehicle was driven by another individual, later identified by police as Karim Tariq. All three entered the hotel, and Ahmed was observed carrying a green reusable shopping bag. Police ceased visual surveillance about half an hour later, and Ahmed’s phone was observed heading south from Sudbury shortly thereafter.
[34] Detective Constable Mussen was the lead investigator on this case, though he was not the informant with respect to the multiple warrants obtained during the investigation. DC Mussen testified that he was reluctant to question the night clerk at the hotel about the number for the room being occupied by the accused and Tariq because in his experience individuals involved in the drug trade are often tipped off by night clerks when police make inquiries. He resolved to wait until the morning when he could contact a trusted hotel employee to obtain the room number. He contacted this person around 10 a.m. on February 27, 2022 and received the room number at noon, and police executed the general warrant at approximately 12:35 p.m.
[35] The defence argues a general warrant was not necessary in these circumstances because the police had from the time the accused established himself at the hotel about 12 hours earlier to apply for a CDSA warrant. But this argument encourages forbidden hindsight reasoning. As I have already reviewed, DC Ricciuto’s ITO sets out the justification for seeking the general warrant: (1) the accused and Ahmed attended frequently in Sudbury at different locations making it impossible to accurately identify the place to be searched in a request for a CDSA warrant; and (2) police were concerned about the potential destruction of evidence during the time that would be required to obtain a CDSA warrant after the accused had established himself in Sudbury.
[36] Here, it was entirely reasonable for DC Mussen to wait until his daytime contact could get him the room number, thus avoiding the possibility of a tip-off by the night clerk. The general warrant was executed within half an hour of obtaining the room number, which is precisely what the general warrant was meant to achieve and what a CDSA warrant could not. In these circumstances, the necessity requirement was met.
[37] Although the manner of execution of the general warrant was not specifically challenged, I find no error with how police conducted themselves. The accused was stopped in the threshold of the door to the room, as he was trying to exit. He was pushed back into the bathroom, which was next to the door, grounded and arrested. This was a dynamic situation in a hotel full of civilians, and the police response was appropriate. Tariq was found laying in a bed and police had reasonable grounds to believe the accused was engaged in the drug trade in Sudbury, which by its nature often involves firearms or other weapons for protection.
[38] The police arrested the accused and found him to be in possession of, among other things, controlled substances. They secured the room and applied for a CDSA warrant to conduct a lawful search of the room.
[39] For these reasons I conclude that the challenges to the general warrant must fail.
Did the CDSA warrant grant lawful authority to police to search and seize evidence from room 315 at the hotel on February 28, 2022?
[40] Although I have dismissed the challenge to the general warrant, I will address this issue in the alternative.
[41] In short, the accused argues that if the general warrant was invalid, the information obtained because of its execution should be excised from all subsequent judicial authorizations. This includes the CDSA warrant and the warrant to search cell phones. If this information is removed, the accused submits that what remains is insufficient to grant the authorizations.
[42] DC Ricciuto’s information to obtain the CDSA warrant contained the information that was gathered by police and was provided in previous informations to obtain submitted in this investigation. The details of the investigation including CI information, police surveillance and mobile phone and tracking data comprises about 15 pages of the affidavit. The details resulting from the execution of the general warrant add about a page and set out what was seized from the accused’s person upon his arrest in the hotel room: suspected fentanyl, cocaine, cannabis, bundled Canadian currency, jewellery and two cell phones. In my view, if this information is removed from the information to obtain the CDSA warrant, the balance of the information to obtain contains a robust record more than sufficient to grant the authorization. I accordingly conclude the CDSA warrant was lawfully authorized.
[43] The information to obtain the warrant to search the cell phones is understandably brief, but sufficient. The phones were already in the possession of the police, and they sought authorization to search them for evidence of the index offences. Two of the phones were found on the accused; the other two in the hotel room upon execution of the CDSA warrant.
[44] I have dismissed the challenge to the CDSA warrant and accordingly the seizure of the two phones was lawful, even assuming the general warrant was invalid. The other phones were found upon the lawful search of the accused after his arrest while leaving the hotel room. In my view, police had reasonable grounds to effect that arrest and the phones were lawfully seized.
[45] For these reasons, the application to exclude the evidence seized from the hotel room is dismissed.
Are the green bag and its contents as well as the evidence seized during the accused’s arrest admissible?
[46] The accused argues that his s. 10(b) Charter rights were infringed by the police and that the evidence seized during the search of the hotel room and his person ought to be excluded pursuant to s. 24(2) of the Charter, as a result of that breach.
[47] Section 10(b) of the Charter protects a detainee’s right to be provided with an opportunity to obtain legal advice relevant to their situation. It involves both an informational component (police must advise the detainee of their right to retain and instruct counsel without delay) and an implementational component (police must provide the accused the opportunity to consult with counsel and must refrain from questioning until the detainee has had a reasonable opportunity to do so). In most cases, an initial warning followed by a reasonable opportunity to consult counsel will satisfy s. 10(b): R. v. Sinclair, 2010 SCC 35 at paras. 27 and 2.
[48] A further duty to provide an additional opportunity to consult with counsel will arise where: (1) there are new procedures involving the detainee; (2) there is a change in jeopardy facing the detainee; or (3) the circumstances indicate the detainee may not have initially understood their s. 10(b) rights or the police have undermined the legal advice provided: Sinclair, at paras. 2, 52.
[49] In addition, where a detainee has already received legal advice, the duty to provide an additional opportunity to consult counsel will arise where “it becomes clear, as a result of changed circumstances or new developments, that the initial advice, viewed contextually, is no longer sufficient or correct:” Sinclair, at para. 57.
[50] The accused does not take issue with respect to the exercise of his s.10(b) rights after he was arrested at the hotel. The record establishes that he spoke with counsel from Ms. Schofield’s office when he was brought to the police detachment. Instead, the accused submits that police violated his right to speak with counsel after he was informed of the new charges and his change in jeopardy.
[51] The CDSA search warrant was authorized at 2:32 a.m. on February 28, 2022. Police attended at the hotel room and conducted a search under the authority of this warrant. At 5:10 a.m. that same morning, DC Mussen and DC Jessica Archer went to the accused’s cell and advised him of the original charges as well as the new more serious charges that arose because of the items that were found and seized in the hotel room during the execution of the CDSA warrant, including the handguns and drugs.
[52] DC Archer testified that the accused asked to speak again with his counsel, Ms. Schofield, and she accordingly brought him to the booking-in area and made the call. The call was not answered, so DC Archer left a message for them to call back. She testified that she normally asks the accused what they would like to do when the call is not answered, and usually offers other options, though she could not specifically recall doing that with the accused in this case. DC Archer’s notes about this implementation of the accused’s s. 10(a) and (b) rights were late entries in her notebook, which were added at the end of that shift. She could not recall the exact reason her memory was jogged at the end of her shift but thought it likely that she noticed her omission when she was comparing times with DC Mussen at the end of her shift. The officers provided similar testimony about what happened during this interaction with the accused.
[53] She further testified that she did not know when the accused spoke with Kim Schofield’s office after that failed attempt, though she was aware that the accused was being brought to bail court that morning and that special constables are responsible for following up with calls to counsel or duty counsel for each prisoner brought to bail. Both DC Mussen and DC Archer testified that it was the end of their shift, and they expected other officers to complete the implementational component of the accused’s s. 10(b) rights. Neither party called any evidence about whether the accused spoke with Kim Schofield’s office.
[54] The accused argues that notwithstanding he bears the onus of establishing a Charter breach, the Crown had the obligation in this proceeding of tendering affirmative evidence of compliance with the implementational component of his right to counsel. In support of this position the accused relies on the Court of Appeal decision in R. v. Noel, 2019 ONCA 860 in which the court held at para. 20:
Second, there is no evidence that Mr. Noel ever succeeded in speaking to counsel. The evidence was that at 1:25 a.m., approximately three hours after his arrest, Officer Westcott left a message with duty counsel on Mr. Noel’s behalf, but there was no evidence that anyone followed up to ensure contact occurred. It is true that the onus is on Mr. Noel to establish the s. 10(b) breach, and that he did not lead affirmative evidence that he never managed to speak to counsel. That does not change the fact, though, that there is no affirmative proof that he did. It was not appropriate for the trial judge to proceed on the assumption that Mr. Noel did ultimately speak to counsel. It was also not appropriate for the trial judge to conclude that the seriousness of the breach was mitigated by that assumed consultation. (emphasis added)
[55] In my view, Noel does not upend the burden of proof when Charter breaches are alleged. The accused, not the Crown, must satisfy the court that a breach has occurred. The onus then shifts to the Crown to justify or explain the alleged breach, failing which the court must then embark on an analysis under s. 24(2) of the Charter to determine if the evidence ought to be excluded.
[56] In Noel, the accused satisfied their burden of establishing the breach because the police waited almost three hours from the time the accused was detained to implement their s.10(a) and (b) rights by placing a call to duty counsel and leaving a message. The Court of Appeal found this delay evidenced a “cavalier attitude [by police] about a fundamental, important, and long-settled Charter right to consult counsel without delay” and further held that “the impact of the breach was significant, not neutral. Mr. Noel remained in custody without the benefit of counsel for at least three hours, unable to receive the direction, reassurance, and advice that counsel could provide:” Noel, at paras. 32 and 33.
[57] The reference by the Court of Appeal to the Crown’s failure to call evidence about whether the accused ever spoke with counsel relates to the trial judge’s assumption, as part of the s. 24(2) analysis, that the call took place. The Court of Appeal held that this assumption was improperly used to buttress the trial judge’s finding that the breach was not serious. In other words, the reference to the Crown tendering affirmative evidence of the call had nothing to do with the accused’s burden of establishing a breach.
[58] The accused further relies on the Court of Appeal decision in R. v. Hobeika, 2020 ONCA 750 to support the notion that the Crown must establish whether and/or when a call with counsel of choice was implemented. The facts in Hobeika are more serious than in Noel. Hobeika was detained by police for five hours before police made a call to duty counsel. No evidence was tendered about whether the call was returned. The Court of Appeal granted Hobeika’s appeal because they found the trial judge to have reversed the burden of proof by requiring Hobeika to lead evidence to establish the delay was unreasonable (at para. 73).
[59] Like Noel, the ratio in Hobeika does not stand for the proposition that the Crown must in all cases tender evidence of whether and/or when the call to counsel was returned. In both cases the accused established there had been significant delays between the time of arrest and the implementation of the s. 10(b) rights (three and five hours).
[60] Here, police finished executing the CDSA warrant on the hotel room at 4:11 a.m. on the 28th of February 2022 and returned to headquarters. DC Archer testified that starting at 4:34 a.m. she worked on reports and spoke with the team about what had been seized and what new charges would be brought against the accused. At 5:10 a.m. both DC Mussen and DC Archer attended at the accused’s cell to advise him of the new charges and immediately brought him to the booking-in area and placed a call to Kim Schofield’s office. I am not persuaded in these circumstances that the delay in advising the accused about the new charges and his right to further consult and instruct counsel without delay, and the implementation of that right was unreasonable. In fact, it is difficult to imagine on these facts how it could have been done sooner.
[61] The onus in the circumstances of this case remained with the accused to produce evidence of a breach of the right to counsel or to point to evidence in the Crown’s case of a breach of the right to counsel and he has not done so. In the circumstances of this case, I would find any connection between the items seized and this alleged breach of the right to counsel is so tenuous that an analysis under section 24(2) would not result in the exclusion of any evidence.
[62] For these reasons, the application with respect to s.10(a) and (b) of the Charter is dismissed.
Has the Crown established knowledge and control of the contents by the accused beyond a reasonable doubt?
[63] To prove personal possession of a thing, the Crown must establish knowledge and control beyond a reasonable doubt. In other words, the accused must be aware they are in physical possession of the thing and what it is: R. v. Lights, 2020 ONCA 128 at para. 45, citing R. v. Morelli, 2010 SCC 8 at para 15 and R. v. Beaver, 1957 CanLII 14 (SCC), [1957] S.C.R. 531 at pp. 541-542.
[64] When someone is not personally in possession of a thing, but has it in a place for their or another’s benefit, the Crown may prove constructive possession by establishing beyond a reasonable doubt that the accused: (1) has knowledge of the character of the thing; (2) knowingly puts or keeps the thing in a particular place, irrespective of whether the place belongs to or is occupied by the accused; and (3) intends to have the thing in the place for the use or benefit of the accused or of another person: Lights, at para. 47, citing Morelli, at para. 17.
[65] No presumption of possession arises where an accused is found in proximity to the items: Lights, at para. 50, citing R. v. Watson, 2011 ONCA 437, at para. 13; R. v. Lincoln, 2012 ONCA 542, at para. 3.
[66] Knowledge includes actual knowledge and wilful blindness. The latter is established where a person “aware of the need for some inquiry, … declines to make that inquiry because they do not wish to know the truth:” Lights, at para. 52, citing R. v. Williams, 2003 SCC 41, [2003] 2 S.C.R. 134, at paras. 27-28; R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 22-24; Sansregret v. The Queen, 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570, at p. 584.
[67] Here, the totality of the evidence establishes constructive possession of the items in the green bag beyond a reasonable doubt. Consider:
a. The accused and Ahmed had been the targets of investigation for months in Sudbury regarding the distribution of controlled substances. This investigation was supported by various CIs that provided information that the accused was selling drugs in Sudbury and that he travelled back and forth to Sudbury from Southern Ontario where he resided, which was confirmed by police surveillance;
b. The accused travelled for hours to Sudbury in the car driven by Ahmed;
c. The accused and Ahmed exited the car, and Ahmed was in possession of the green bag which he brought to the hotel room that he rented;
d. Ahmed subsequently left the hotel room and the green bag and drove south, away from Sudbury;
e. When the accused was arrested the next afternoon attempting to leave the hotel room, he was in possession of significant quantities of the same drugs that were found in the green bag, including similar colour and description. Additionally, the accused had on his person $5,500 in bundled Canadian currency and a luxury watch worth approximately $40,000 in addition to jewellery;
f. The green bag was clearly visible sitting on the table in the hotel room. The bag contained two handguns as well as packaging material and a digital scale in addition to the controlled substances.
[68] The only reasonable inference to be drawn from this evidence is that the accused was aware of the contents of the green bag. It was the source of the drugs found on his person. It contained guns which are often part and parcel of the drug trade because of the protection they provide, particularly given the value of the drugs in the bag and on the accused’s person as well as the currency and the luxury watch. It contained packaging material and a scale. In short, it contained the tools of the trade for someone trafficking in controlled substances in a city away from their own residence. And it was located in a room controlled and occupied by the accused.
[69] The accused is also charged with possession of loaded firearms contrary to s. 95(1)(b) of the Criminal Code and with improper storage of loaded firearms contrary to s. 86(2) of the Criminal Code. To discharge its burden, the Crown must establish the accused had knowledge the guns were loaded with ammunition. This can include actual or imputed knowledge: Lights, at para. 75.
[70] In my view, the Crown has met this burden. The green bag did not contain any ammunition that was not otherwise in a magazine attached to the guns (or in a chamber of the guns). Considering the quantity of the drugs in the bag and on the accused’s person, the Canadian currency and luxury watch and jewellery, and the packaging material and digital scale, the only reasonable inference that can be drawn is that the accused knew the guns were loaded with ammunition. Otherwise, they would provide little protection for this commercial enterprise being undertaken hundreds of kilometres away from the accused’s home.
[71] For these reasons, I conclude the Crown has proven beyond a reasonable doubt that the accused was in possession of the contents of the green bag. Given the admissions made, the charges with respect to the items contained in the green bag are accordingly made out.
The resist arrest charge
[72] A person commits the offence of resisting arrest contrary to s. 129(a) of the Criminal Code if the following elements of the offence are proven beyond a reasonable doubt: (1) the accused obstructs a police officer; (2) in the execution of their duty; and (3) the obstruction was done wilfully: R. v. Tortolano, 1975 CanLII 1248 (ON CA), at p. 565.
[73] Here, DC Mussen testified that when police were about to breach the door to Room 315 at the hotel (as they announced their presence), the accused opened the door and began to cross the threshold of the door in an attempt to leave the room. DC Mussen took hold of the accused and pushed him back into the room a few steps and into the bathroom, where they fell together on the floor. While the accused was on the floor, DC Mussen attempted to gain control of his hands to effect his arrest. DC Mussen testified that the accused clenched his fists and held his arms against his chest, despite being told he was under arrest.
[74] When police got the accused to his feet, there was a brief struggle and the accused continued to clench his fists and to pull his arms away. DC Mussen was eventually able to place handcuffs on the accused’s wrists to complete the arrest. According to DC Mussen, this all lasted less than a minute.
[75] There is no doubt DC Mussen was in the execution of his duty when he tried to arrest the accused. Police had announced their presence, and DC Mussen told the accused he was under arrest. The accused’s conduct in clenching his fists, holding his arms to his chest, and pulling his arms away from the police over a period of up to a minute despite direction from the police clearly constitutes the act of obstruction. And I am satisfied beyond a reasonable doubt that the accused acted wilfully. I infer from his behaviour that he intended to interfere with DC Mussen’s attempts to handcuff him and to place him under arrest. The initial shock of being unexpectedly taken down by police may lead to some initial resistance, but the accused’s behaviour was continuous including after he had been lifted from the floor of the bathroom, lasting a significant period of time.
The possession of proceeds of crime charge
[76] In order to obtain a conviction for this offence, the Crown must establish beyond a reasonable doubt that the accused was in possession of property that he knew, believed or was reckless as to whether it was obtained by crime. To prove the property was obtained by crime, the Crown must establish at least part of it was obtained directly or indirectly by the commission of an offence punishable by indictment.
[77] The accused was in actual possession of the Canadian currency, the luxury watch, and the jewellery (for a total approximate value of $50,000). It was in his possession along with substantial amounts of drugs, a scale and packaging materials and two cell phones. The drugs matched significant quantities of similar drugs in the green shopping bag (for a total value of approximately $45,000). The only reasonable inference that can be drawn in these circumstances is that the valuable property in the accused’s possession and the large amount of cash was obtained as a result of his trade in drugs, which obviously involves the commission of indictable offences. In that circumstance, I conclude as well that the accused, who was engaged in this trafficking, was aware of the source of the money and the valuable items in his possession.
Conclusion
[78] For these reasons, the accused’s applications are dismissed. I am otherwise satisfied that the Crown has proven the essential elements of the offences before the court beyond a reasonable doubt. No issue was taken with respect to the nature of the substances seized from the accused and the hotel room (and in fact certificates of analysis were filed on consent). And the agreed facts set out the elements of the offence of failure to comply with a release order. Findings of guilt shall accordingly be entered with respect to the charges upon which the accused was arraigned.
___________________________________________
The Honourable Chief Justice P.J. Boucher
Released: August 17, 2026
CITATION: R. v. Bhatia, 2026 ONSC 3908
COURT FILE NO.: CR-23-1367
DATE: 2026-08-17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
Bidh Preet Singh Bhatia
Accused
REASONS FOR JUDGMENT
RSJ P.J. Boucher
Released: August 17, 2026