CITATION: R. v. Ford, 2026 ONSC 4132

COURT FILE NO.: CR-25-30000316-0000

DATE: 20260720

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

His Majesty the King

– and –

Kamal Ford

Applicant

Nilam Lakhani, for the Crown

Allison Cormie-Bowins, for the Applicant

HEARD: July 6-8, 2026

RULING ON CHARTER APPLICATION

NISHIKAWA j.

Overview

1Shortly after midnight on October 25, 2023, shots were fired from a vehicle on Empringham Drive. The vehicle involved was identified as a white Honda CRV with licence plate CXSF 029 (the “Honda”). The vehicle was registered to a car rental company. The Toronto Police Service (“TPS”) investigation revealed that the Applicant, Kamal Ford, had rented the Honda during the relevant time.

2After further investigation, on February 2, 2024, police sought and obtained a search warrant for the Applicant’s residence at 1320 Danforth Road, Unit 306 (the “residence”). Police also obtained a search warrant for a 2015 Hyundai Sonata registered to the Applicant (the “Hyundai”).

3On February 3, 2024, the Applicant was arrested in the Hyundai at a Tim Horton’s drive-thru. A search incident to arrest of the Applicant revealed that he had small quantities of controlled substances in his pockets. A search of the passenger of the vehicle, Kamran Johnson, revealed that he had a firearm in the pouch of his sweatshirt. After the arrests, police executed the search warrant on the Hyundai and located quantities of cocaine, crack cocaine, and fentanyl, among other things, in the vehicle.

4The search warrant for the residence was also executed on February 3, 2024. It is undisputed that in a safe located in a bedroom of the residence, police located quantities of cocaine, fentanyl, and methamphetamine.

5The Applicant was charged with the following offences under the Criminal Code, R.S.C. 1985 c. C-46 (the “Code”) and the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the “CDSA”): discharging a firearm with intent to wound, maim, disfigure or endanger life; possession of a prohibited or restricted firearm without a licence; possession of a prohibited or restricted firearm; six counts of possession of a substance for the purpose of trafficking; and two counts of possession of property obtained by crime.

6The Applicant challenges the validity of the search warrants for his residence and the Hyundai. He further alleges that police breached his right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms (the “Charter”) by delaying in informing him of his right to counsel and in facilitating a call to his counsel. He seeks to have all the evidence located excluded pursuant to s. 24(2) of the Charter.

7A hearing of the application could not be scheduled before the trial dates. As a result, I heard the application at the outset of the trial. The parties agreed to a hearing on the paper record and requested that I provide a “bottom-line” ruling. On July 8, 2026, I ruled that the Charter application was granted in part, with reasons to follow. I ruled that the evidence located pursuant to the search warrant executed on the Hyundai was to be excluded. However, the evidence located pursuant to the search of the Applicant’s residence would not be excluded. These are the reasons for my ruling.

Issues

8The issues raised in this proceeding are as follows:

(a) Should portions of the Information to Obtain (“ITO”) be excised and/or amplified on the basis that they are misleading?

(b) Were there reasonable and probable grounds for the issuing justice to find that the Applicant committed an offence, and that evidence of the offence would be located at his residence and in the Hyundai?

(c) Did the police breach Mr. Ford’s right to counsel?

(d) If the Applicant’s Charter rights were breached, should the evidence seized from his residence and/or the Hyundai be excluded pursuant to s. 24(2) of the Charter?

Factual Background

9On October 25, 2023, at approximately 12:49 a.m., police received a call about a shooting in the area of 40-50 Empringham Drive. When police attended, witnesses advised that a white Honda SUV had been seen driving in the area. One witness told police she saw the passenger point a firearm. The passenger was described as wearing black clothing with a hoodie up and a black ski mask. The Honda then continued driving down Empringham Drive before stopping briefly in front of a unit at 50 Empringham Drive. A witness advised police that he was sitting in his vehicle on the street after visiting a friend. The witness stated that he realized that a vehicle had stopped next to him, looked up and heard shots. He then ducked and pulled his car forward. The witness could not provide a description of any of the vehicle’s occupants and could only say the vehicle in question was an SUV. The witness was not injured. Police located one spent shell casing on the ground and two strike marks on his vehicle.

10Based on CCTV video surveillance obtained from the area, the shooting occurred at 12:44 a.m. Police obtained the licence plate of the Honda, which they found was registered to a car rental agency. Police attended the rental agency and discovered that the Honda had been rented by Kamal Ford. Mr. Ford had provided his address and identification when he rented the vehicle. He returned the Honda on October 25, 2023, at approximately 1:20 p.m. In the Honda, police located the Applicant’s registration for a different vehicle, among other things. After the Applicant returned the Honda, the Applicant rented a Toyota Camry (“Toyota”), which he then abandoned on the highway.

11During the investigation, police obtained a search warrant for the infotainment system of the Honda. The information that was extracted included cell phone numbers of phones that had connected to the infotainment system. On November 30, 2023, police applied for a Transmission Data Recorder (TDR)/tracking warrant for a phone number believed to belong to the Applicant, as well as two other numbers believed to belong to two other suspects. The police eventually realized that there was an error in the phone number and obtained a new tracking warrant for the Applicant’s cell phone.

12Police also obtained CCTV surveillance from locations where the Honda had stopped on October 24-25, 2023, including at 1320 Danforth Road and 2030 Ellesmere Road. Based on the CCTV surveillance videos, the police formed the belief that on those dates, Mr. Ford was the driver, and Shafin Mollah was the passenger of the Honda. Mr. Ford was wearing the same clothing all day, a black hooded sweatshirt with the words “Whole Unit” on the front and a pair of rust-coloured plaid pyjama pants. Mr. Ford is seen on CCTV surveillance leaving 1320 Danforth Road at 12:27 a.m., 22 minutes before the shooting. He is seen returning at 2:54 a.m. wearing similar clothing.

13Police conducted surveillance on the Applicant on December 13, 2024; however, they did not observe anything noteworthy. Police also observed the Applicant in the Hyundai on January 23, 2024.

14On February 2, 2024, members of the TPS sought and obtained a warrant to search the residence and the Hyundai.

15On February 3, 2024, the Applicant was located driving the Hyundai at a Tim Horton’s drive-thru at 3288 Keele Street in Toronto. The Applicant was removed from his car and arrested shortly after 6:59 p.m. The front seat passenger, Mr. Johnson, was detained at the scene. Mr. Johnson had a firearm in his sweatshirt pouch, and he was arrested for possession of the firearm. The Applicant was also arrested and charged with the possession of various controlled substances located on his person when arrested.

16The search warrant for the Honda was executed on scene and resulted in police locating quantities of cocaine, fentanyl, packaging, cell phones, a digital scale, and Canadian currency. The Applicant and Mr. Johnson were jointly charged with possession for the purposes of trafficking. Mr. Johnson resolved the charges against him at an earlier date.

17Police then executed the search warrant at 306-1320 Danforth Road. In a safe located in what is believed to be the Applicant’s bedroom, police located quantities of fentanyl, crack cocaine, methamphetamine, a digital scale, and Canadian currency.

Analysis

Should Portions of the ITO be Excised?

The Applicable Principles

18The Applicant seeks to excise certain portions of the ITO, as identified below, on the basis that they are misleading.

19In R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 58, the Supreme Court of Canada held that “in looking for evidence that might reasonably be believed on the basis of which the authorization could have issued, the reviewing court must exclude erroneous information.” Where the erroneous information results from a simple error and not from a deliberate attempt to mislead the authorizing judge, however, amplification may be in order: Araujo, at para. 57.

20In R. v. Booth, 2019 ONCA 970, 386 C.C.C. (3d) 281, at para. 59, Paciocco J.A. explained amplification as follows:

Amplification entails adding information that should have been disclosed in order to give an accurate picture or replacing mistakenly inaccurate information with accurate information. When material information that would hinder a finding of reasonable and probable grounds has been improperly omitted, the ITO must be amplified to include it. However, amplification relating to information that could advance the warrant application is permissible only if the error in not making full and frank disclosure is: (i) a “minor, technical” error; and (ii) made in good faith: Araujo, at para. 59; Morelli, at para. 41.

21An error can be minor or technical even if it relates to an essential component of a search warrant application. The characterization of an error as minor or technical turns on the nature of the error and not on the importance of the topic the error relates to: R. v. Feizi, 2022 ONCA 517, at para. 9.

The Principles Applied

22Paragraph 34 of the ITO states as follows:

Detective Constable WONG #10249 then analysed the GPS results from the infotainment system of the Honda CRV with Ontario License plates CXFS 029. He was able to determine that the motor vehicle stopped several places on October 24, 2023, the day before the shooting. One of the places the Honda CRV stopped was the plaza at 2030 Ellesmere Road in Toronto. The GPS information also showed that immediately after the shooting, the Honda CRV was driven to Knob Hill Park, which is directly adjacent to 1320-1360 Danforth Road. I was advised of this on November 13, 2023.

23The defence submits that this paragraph is misleading in two respects: (i) the use of the word “immediately” to describe where the Honda was driven after the shooting, because the Honda did not stop at Knob Hill Park until 1 hour and 11 minutes after the shooting; and (ii) stating that Knob Hill Park is “directly adjacent to” 1320-1360 Danforth Road. The defence argues that, taken together, those statements would lead the issuing justice to infer that immediately after the firearm discharge, the Applicant went to his residence, creating a closer connection between the firearm and the residence than actually existed.

24The infotainment system in the Honda recorded the location of the vehicle solely at the start and end of a trip. On October 24, 2023, at 9:39 p.m., the system recorded the starting location as 2100 Ellesmere Road. No further location was recorded until 2:00 a.m., when the Honda stopped at Knob Hill Park. Because the Honda’s infotainment system did not record the GPS location of the vehicle when it was in motion, it did not provide information as to where the Honda was between those hours. The location of the Honda on Empringham Drive was based on video surveillance from that location.

25In my view, the word “immediately” is misleading and should be excised from the sentence. The Honda did not stop at Knob Hill Park until one hour and 11 minutes after the firearm discharge, which is far from immediate. In addition, based on the odometer readings generated from the infotainment system, the Honda travelled some distance, approximately 90 kilometres, before stopping at Knob Hill Park. I also find that “directly” should be excised from the paragraph. While the park is geographically adjacent to 1320 Danforth Road, the route to drive from the parking lot of the park to 1320 Danforth Road is more circuitous and would take a few minutes.

26In fact, the information obtained from the infotainment system does not reflect that the Honda ever returned to the Applicant’s residence at 1320 Danforth Road after the firearm discharge. Video surveillance of the 1320 Danforth Road shows that Mr. Ford did not return to his residence until 2:50 a.m., when he was dropped off by a different vehicle, a white Mercedes. In fairness, the ITO disclosed this information.

27The words “immediately” and “directly” emphasize the proximity of the park and the residence in both time and location, and would have led the issuing justice to believe that the Applicant could have gone to his residence right after the firearm discharge, potentially to leave the firearm. In my view, the combined effect of the two words was not only inaccurate but misleading because it created a closer link between the residence and the firearm than actually existed.

28After excision and amplification, the entire sentence should read as follows:

The GPS information also showed that one hour and 11 minutes after the shooting, the Honda CRV was driven to Knob Hill Park, which is adjacent to 1320-1360 Danforth Road. I was advised of this on November 13, 2023.

29The defence also objects to the following statement in paragraph 62 of the ITO:

Based on information gained through the tracking warrant on FORD’s cellular phone, no additional places of interest where a firearm, or firearms, may be kept could be confirmed through physical surveillance.

30The defence argues that the statement implies that police obtained information from tracking the Applicant and conducted physical surveillance on him, but that no other potential locations were identified. In fact, with the exception of one day when they did not observe anything of interest, police did not conduct surveillance on Mr. Ford. The defence argues that the tracking information shows that Mr. Ford went to multiple other locations but that police did not conduct surveillance on him in those locations.

31I agree that this statement should be excised. To begin with, the sentence is unclear and difficult to decipher. To the extent that it can be interpreted, it implies that physical surveillance was conducted at locations obtained through the tracking warrant, but police did not identify any further locations where the firearm might be located. There is no evidence to suggest that this took place. Physical surveillance was conducted on Mr. Ford on December 13, 2023, but police made no observations of interest. The statement is misleading in that it implies that further investigative steps took place to narrow down the locations where the firearm could be found, when this did not in fact take place.

32Moreover, the effect of this sentence is compounded because the paragraph begins with the officer’s statements that, “It is my experience that persons involved in a criminal lifestyle and firearms possession will keep their firearms and subsequent ammunition close at hand. I believe Ford and Mollah will likely have their firearm(s) in their personal possession, either at their residences or, in Ford’s case, his Hyundai motor vehicle.” Taken together, the two statements suggest that Mr. Ford was involved in a criminal lifestyle. However, there was no information in the ITO to support that Mr. Ford led a criminal lifestyle. He had no criminal record, which the ITO did disclose. Other than the offence that was being investigated, police had not observed him involved in any criminal activity.

33The Applicant did not seek to have the statement about persons involved in a criminal lifestyle excised but argued that the statement was speculative in respect of him. I will address this further when I consider whether the police had reasonable and probable grounds to search the residence and the Hyundai.

34Accordingly, paragraph 62 of the ITO, after excision, reads as follows:

It is my experience that persons involved in a criminal lifestyle and firearms possession will keep their firearms and subsequent ammunition close at hand. I believe FORD and Mollah will likely have their firearm(s) in their personal possession, either at their residences or, in FORD's case, his Hyundai motor vehicle. It is also my experience that persons in possession of firearms may have additional ammunition at an alternate location. It is not known how many firearm(s) were present in the Honda CRV at the time of the shooting, nor who took possession of them following the shooting. I believe that, based on the above investigation, MOLLAH was in possession of a firearm at the time of the shooting. This was witnessed by ATTYGALLE. I further believe that FORD was responsible for the discharge firearm, as video surveillance showed the driver of the Honda CRV was the shooter. Next, MOLLAH is required to reside at 7 Barrymore Road as part of his probation, and physical surveillance placed him there as well. I believe that the firearm, or firearms, involved in the shooting on October 25, 2023 are still in the possession of FORD and MOLLAH. I believe that the firearm(s) and related ammunition will be located at either 306-1320 Danforth Road, 7 Barrymore Road, or in the Hyundai motor vehicle with Ontario license plates CZZE 821, registered to FORD.

Were There Reasonable and Probable Grounds for the Issuing Justice to Find that the Applicant Committed an Offence and that Evidence of the Offence Would be Located at his Residence and in the Hyundai?

35In this case, the police were searching for the following items:

(a) Firearms, or any parts thereof, and ammunition;

(b) Cellular phones;

(c) Certain clothing worn by the Applicant on the night of the shooting; and

(d) Documents and identification in the name of the Applicant, including the rental agreement for the Honda.

36The Applicant takes the position that the police lacked reasonable and probable grounds to search the residence and Hyundai because the firearm discharge took place three months and eight days before the search warrant was executed. The Applicant submits that the information in the ITO was out of date and there was no reason to believe that the items that police sought would still be located in the residence or the Hyundai. The Applicant further argues that there was an absence of evidence that the Applicant was involved in criminal activity such that it would be reasonable to believe that he still had possession of the firearm.

37The Crown takes the position that the information contained in the ITO was sufficiently current to provide reasonable and probable grounds for the search warrants to be issued.

The Applicable Principles

38Section 8 of the Charter states that “everyone has the right against unlawful search and seizure.” The purpose of s. 8 is to "protect individuals from unjustified state intrusions upon their privacy” which requires that unjustified searches be prevented before they happen through pre-authorization: Hunter v. Southam Inc., , [1984] 2 S.C.R. 145, at p. 160.

39A search will be reasonable if it is authorized by law, the law itself is reasonable, and the manner in which the search was carried out is reasonable: R. v. Collins, , [1987] 1 S.C.R. 265, at p. 278.

40A search warrant is presumptively valid: R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 30. The Applicant bears the burden of demonstrating that the warrant was not validly issued, that is, that the minimum standard required for authorizing the search was not established by the ITO: R. v. Crevier, 2015 ONCA 619, 339 O.A.C. 120, at para. 66.

41The standard for the issuance of a search warrant is that there are reasonable and probable grounds to believe that an offence has been committed and that there is evidence of that offence to be found at the place to be searched: Hunter v. Southam, , [1984] 2 S.C.R. 145, at p. 168.

42The reviewing judge must not substitute their view for that of the issuing justice. The question is not whether the reviewing court would have issued the warrant, but whether there is sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40. If, based on the record before the issuing justice, as amplified by the evidence adduced at the application hearing, the issuing justice could have issued the warrant, the reviewing judge should not interfere: R. v. Garofoli, , [1990] 2 S.C.R. 1421, at p. 1452.

43“Reasonable and probable grounds” means a “credibly-based probability” and does not mean proof beyond a reasonable doubt or even a prima facie case: Morelli, at paras. 127–28; R. v. Debot, , [1989] 2 S.C.R. 1140, at p. 1166. A credibly-based probability requires that the grounds provided demonstrate a probability, as opposed to a suspicion, that the relevant facts could be true, and assuming the information to be true, that there are reasonable grounds to believe that the information relied upon is credible enough to support a conclusion that there is a reasonable probability that the relevant facts exist: R. v. Floyd, 2012 ONCJ 417, 263 C.R.R. (2d) 122, at para. 9.

44As stated in Garofoli, the existence of fraud, nondisclosure, misleading evidence, and new evidence are all relevant, but their sole impact is to determine whether there continues to be any basis for the decision of the issuing justice. The issuing justice's decision will be upheld unless the Applicant establishes on a balance of probabilities that there was no basis for the warrant’s authorization: Morelli at para. 131.

45In addition, currency of information in an ITO assists in finding reasonable and probable grounds to believe that evidence of the offence will be found at the locations at the time of the searches. The currency of information, however, is one factor among a constellation of factors to be considered: R. v. Hibbert, 2019 ONSC 3219, at para. 71-72.

The Principles Applied

The Residence

46In this case, the ITO contained ample evidence that an offence had occurred, that is, the discharge of a firearm, and that the Applicant was involved. The main issue is whether the information was stale such that there was a lack of credible and reliable evidence to permit the issuing justice to find reasonable grounds to believe that the items sought would be found in the residence and the Hyundai.

47On January 23, 2024, police confirmed that the Applicant drove the Hyundai to the residence. As a result, on February 2, 2024, when the search warrants were executed, it was reasonable to believe that the Applicant continued to reside at 1320 Danforth Road and that he continued to drive the Hyundai.

48Taking into consideration the ITO as a whole, including the excisions and amplification, I find that there was sufficient credible and reliable evidence to permit the issuing justice to find reasonable grounds to believe that certain evidence of the offence would be found at the Applicant’s residence. Specifically, there were reasonable grounds to believe that the clothing, cell phones, and documents that police sought would be located in the residence.

49On the night of the firearm discharge, the Applicant had been captured on video surveillance wearing distinctive clothing, including a black hoodie with the words “Whole Unit” on the front, rust-coloured plaid pyjama pants, and black and white Nike running shows with a yellow heel. Police found the hoodie in the Toyota that the Applicant had rented after the Honda and had abandoned on the highway. In my view, despite the passage of time, it was reasonable to believe that the Applicant would still have the remaining items of clothing. The discovery of the hoodie in the Toyota does not lead to an inference that the Applicant would have discarded the other items of clothing. The Applicant did not have a reason to suspect that he was under suspicion for the shooting and, therefore, he had no reason to discard the clothing he wore that night. The Applicant and Mr. Mollah had also left behind documents with their names on them in the Honda and Toyota, suggesting carelessness as opposed to a deliberate attempt to dispose of their belongings.

50Given that police were tracking the Applicant’s cell phone, they also had reason to believe that it would be found either in his possession or in his residence.

51I reach a different conclusion about the firearm and ammunition. In my view, based on the passage of over three months from the date of the firearm discharge, there was a lack of credible and reliable evidence to permit the issuing justice to find reasonable grounds to believe that the firearm and ammunition would be in the residence. Because the firearm had been discharged on October 25, 2023, and police would have been looking for it, it was not reasonable to believe that the Applicant would still be in possession of it over three months later. See R. v. Hibbert, 2019 ONSC 3219.

52Moreover, as observed earlier in these reasons, there was an absence of evidence that the Applicant was involved in a criminal lifestyle, such that he would maintain possession of the firearm. This case is unlike those in which a person is repeatedly observed with a firearm or engaging in drug trafficking over a period of time and would reasonably be expected to keep a firearm in their possession for protection or intimidation. The information in the ITO was that the Applicant, who was 20 years old at the time, had no criminal record. Despite having a tracking warrant and knowing where the Applicant was over the course of three months, police conducted minimal surveillance and had not observed him engage in any criminal activity. In my view, it was speculative to state that the Applicant would continue to possess the firearm.

53Based on the excisions and amplification to the ITO, the connection between the shooting and the Applicant’s residence is also attenuated. Accordingly, there was a lack of credible reliable evidence to support a belief that the firearm and ammunition would be found at the residence.

54At the hearing, I asked counsel for submissions on the impact of a finding that a search warrant could have been issued in respect of certain items but not in respect of others. The Crown took the position that if there were reasonable grounds to believe that any of the listed items could be found in the residence, then a finding that the search warrant could have been issued would follow. The defence argued that if a search could not have been issued in respect of certain items, the doctrine of severability would apply, and the invalid portion of the search warrant would be severed from the valid portion.

55Defence counsel directed me to the decision of Spies J. in R. v. Sonne, 2012 ONSC 584 and the cases cited therein. In Sonne, Spies J. found that the search warrants could have issued in respect of two offences but not in respect of two others, and held that the “bad parts” of the authorization could be severed from the “good parts”. The inclusion of offences unsupported by the ITO did not taint the seizure of evidence that was otherwise lawfully seized pursuant to the valid portions.

56In R. v. Donovan, 2025 BCCA 30, the British Columbia Court of Appeal stated as follows:

145The doctrine of severability provides that even if the reviewing court finds the grounds in the ITO are not capable of satisfying the issuing justice that certain items would be located in the place to be searched, it does not follow that the warrant is invalid with respect to the authorized seizure of other items: Whitaker, at para. 47; R. v. James, 2018 BCSC 405at paras. 40, 60. Where the invalid part of the warrant is clearly severable from “the good”, the warrant remains valid insofar as the ITO supports its issuance regarding the other items. This is plainly the case here.

146If then, in summarily dismissing the appellant’s sub-facial challenge, the trial judge erred by not disregarding the impugned cell phone information as suggested by the Crown, or by concluding the warrant still could have issued for cell phones in the absence of any evidence regarding this item, any such errors would be immaterial. This is because the search warrant still could have issued for the seizure of the butane torch and the security camera equipment. In other words, the ITO still contained sufficient information to provide reasonable grounds to believe the identified alleged crime(s) had been committed, evidence of that crime(s) would be contained in the remaining items and they might reasonably be located in the residence.

57Similarly, in this case, the search warrant could not have been issued in respect of the firearm and ammunition but could have been issued for the clothing, cell phones, and documents. In Donovan, the outcome was immaterial. In this case, however, the severing of the firearm and ammunition from the items to be located would affect the manner of execution of the search. It is undisputed that police broke into a safe in what police believed was the Applicant’s bedroom and found the controlled substances in it. Had the warrant been valid in respect of the firearm and ammunition, police would have been entitled to breach the safe. However, it was unlikely that the other items that police were seeking, clothing, cell phones, and identity documents, would have been found in the safe. In fact, it is undisputed that the pyjama pants and the Applicant’s identification were located in the bedroom. The rental agreement for the Honda was not located.

58In summary, there was sufficient credible reliable evidence for the issuing justice to find that the clothing, cell phones, and documents, including identification, would be found at the residence. However, there was insufficient credible reliable evidence to believe that the firearm and ammunition would be found in the residence. The items that the police were seeking would have been in plain view and would not have required the police to break into the safe. In my view, by breaking into the safe, police exceeded the scope of the authorization. To this extent, the Applicant’s rights under s. 8 of the Charter were breached.

The Hyundai

59The Applicant argues that the search warrant for the Hyundai could not have been issued because the ITO disclosed no connection between the alleged offences and the Hyundai, other than that the Applicant owned and had been seen driving it.

60The ITO does not have to establish a connection between the Hyundai and the offence. Rather, the question is whether there was sufficient credible reliable evidence for the issuing justice to find reasonable and probable grounds to believe that evidence relating to the offence would be located in the Hyundai.

61In my view, after excision and amplification, there was insufficient credible reliable evidence for the issuing justice to find reasonable and probable grounds to believe that the items they wished to locate would be found in the Hyundai. With the exception of one day, police did not conduct surveillance on the Applicant’s activities while he was driving the Hyundai. They did not observe him conduct any unlawful activity, in the Hyundai or otherwise.

62As noted earlier in these reasons, over three months had passed since the firearm was discharged. The ITO contained little evidence on which the issuing justice could rely beyond the officer’s conclusory statement that individuals involved in a criminal lifestyle or firearm possession would keep their firearm near them. “Evidence of a propensity of a general type of offender is a thin basis to justify the issue of a search warrant”: R. v. James, 2019 ONCA 288, at para. 22. It was speculative to suggest that the firearm, ammunition or other items police were seeking would be located in the Hyundai. In my view, the authorization of the search of the Hyundai turned Mr. Ford into “walking, ready-made grounds for belief”: R. v. Herta, 2018 ONCA 927, 143 O.R. (3d) 721.

63Moreover, on the night the firearm was discharged, the Applicant was not driving the Hyundai, but a rental vehicle, the Honda. To the extent that the Applicant engaged in criminal activity, the evidence was that he did not use his own vehicle to do it. It was also speculative to believe that the other items would be found in the Applicant’s own vehicle. There would be no reason for the clothing, cell phones, or documents to be in the Hyundai.

64There was evidence that the Applicant and Mr. Mollah had left certain items behind in the rented Honda and Toyota. In my view, this was nothing more than carelessness and does not lead to an inference that the specific items of clothing or documents that the police sought would found be in the Hyundai.

65As a result, there was insufficient credible and reliable evidence to permit the issuing justice to find reasonable and probable grounds to believe that evidence of the offence would be found in the Hyundai over three months after the firearm discharge.

66Accordingly, because the search of the Hyundai was not authorized, Mr. Ford’s s. 8 rights were breached.

Did Police Breach the Applicant’s Rights to Counsel?

67The Applicant takes the position that he was not informed of his rights to counsel immediately upon arrest but admits this delay was minimal. The Applicant argues that the more serious breach was the failure of police to take steps to facilitate his rights to counsel resulting from a failure to transport him to the Division until almost 30 minutes after his arrest.

68The Crown submits that the delay is reasonable and is explained by an inadvertent error in sending only one vehicle to transport Mr. Ford and Mr. Johnson to the Division. Despite the information that arresting officers had conveyed, only one vehicle arrived on scene when TPS policy required that they be transported separately.

The Applicable Principles

69Section 10(b) of the Charter guarantees that any person arrested or detained has the right to retain and instruct counsel without delay and to be informed of that right. In R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 25, Doherty J.A. stated: “Section 10(b) obliges the police to advise a detained person of the right to speak with counsel without delay and, if the detained person exercises that right, the police must immediately provide the detainee with a reasonable opportunity to speak with counsel.”

70The purpose of the s. 10(b) right is to “allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights…”: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 21, quoting R. v. Manninen, , [1987] 1 S.C.R. 1233, at pp. 1242-43. In Taylor, the Supreme Court of Canada stated that the right is meant “to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination”: at para. 21, quoting R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 40.

71Where an accused person requests to speak to counsel, the arresting officer is “under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity”: Taylor, at para. 24. This includes providing access to a telephone: Taylor, at para. 28. The burden is on the Crown to show that a given delay was reasonable in the circumstances: Taylor, at para. 24.

72The Court of Appeal has held that that in specific circumstances, some delay is justifiable to ensure officer safety, public safety, the preservation of evidence, and the safety of others by securing the scene of an arrest or search: Rover, at para. 26. Such concerns must be case-specific as opposed to general: Rover, at para. 27. To fall within the exception to the requirement that an arrested person be allowed to speak to counsel without delay, the police must actually turn their mind to the specific circumstances of the case, and they must have reasonable grounds to justify the delay”: Rover, at para. 33. Even if such circumstances exist, the police must take reasonable steps to minimize the delay in granting access to counsel: Rover, at para. 27.

73A reasonable delay in the implementation of an accused person’s right to counsel based on justifiable case-specific concerns, as supported by the evidence, does not violate s. 10(b): R. v. Griffith, 2021 ONCA 302, 71 C.R. (7th) 239, at para. 41. In determining whether there has been a violation of s. 10(b), the court must consider the evidence of case-specific concerns to determine whether they justified delaying access to counsel.

74In R. v. Keshavarz, 2022 ONCA 312, 507 C.C.R. (2d) 222, at para. 67, the Court of Appeal found that police were under no obligation to implement rights to counsel until the appellant was in a safe and secure location where a private call with counsel could be facilitated.

The Principles Applied

75The takedown was called at 6:59 p.m. Both Mr. Ford and Mr. Johnson were removed from the vehicle. A firearm was located on Mr. Johnson, who was given his rights to counsel at 7:03 p.m. Mr. Ford was searched incident to arrest and then advised of his rights to counsel at 7:07 p.m. He provided the officers with the name of a specific lawyer. At 7:10 p.m., the Applicant was placed in a police vehicle.

76The defence admits that the delay in informing the Applicant of his rights to counsel, which was at most eight minutes and more likely five to seven minutes, was minimal and would constitute only a “technical” breach of s. 10(b).

77In the circumstances, where police were arresting both Mr. Ford and Mr. Johnson, and a firearm was located, I find that a delay of less than eight minutes in informing the Applicant of his rights to counsel does not amount to a delay that would constitute a breach of the informational component of s. 10(b).

78The arresting officers communicated to dispatch that they had “3 in custodywill [sic] need a car for transport…” Transport officers arrived at 7:20 p.m. and transported Mr. Johnson from the area 10 minutes later. At 7:24 p.m., the officers requested another vehicle, which was dispatched within five minutes.

79At 7:34 p.m., the search of the Hyundai was complete. At approximately 7:40 p.m., two other officers arrived on scene and took custody of the Applicant and departed for the station approximately 10 minutes later. After the Applicant arrived at the station, the booking process began at 8:11 p.m. and ended at 8:21 p.m. At 8:34 p.m., a call to his counsel of choice was made and a voicemail message was left. A call to duty counsel was placed a few minutes later. No attempt was made to elicit any statement from the Applicant.

80The Applicant does not suggest that a call to counsel ought to have been facilitated at the location of the arrest. Nor does the Applicant argue that the time that elapsed between his arrival at the Division and when the call was placed to counsel at 8:34 p.m. constitutes unreasonable delay. The Applicant argues that the unreasonable delay was the approximately 30 minutes that passed between the time of his arrest and the arrival of officers to transport him to the Division.

81The Applicant argues that the delay in facilitating a call to his counsel was unreasonable because police ought to have, but failed to arrange for an appropriate number of vehicles to transport both Mr. Johnson and him to the Division. The Applicant relies on R. v. Khan, 2019 ONSC 2617 to argue that police must allocate appropriate resources to facilitate rights to counsel. In that case, however, only one officer was tasked with implementing the rights to counsel of multiple individuals, resulting in a six-hour delay in implementing the applicant’s right to counsel.

82In my view, the relevant delay was not the time that lapsed between the arrest and the arrival of a police vehicle to transport Mr. Ford to the Division. That is because even if two vehicles had been requested, Mr. Ford would inevitably have been waiting for some part of that time. The delay caused by the failure to dispatch two transport vehicles is the time that elapsed between the arrival of transport for Mr. Johnson at 7:20 p.m. and the arrival of transport for Mr. Ford at 7:40 p.m., or 20 minutes.

83In my view, the 20-minute delay arose because only one vehicle arrived to transport the two men to the Division. The information that had been conveyed was that there were in fact three individuals arrested. Based on TPS policy requiring that each arrested party be put in a separate vehicle, it ought to have been clear that more than one transport vehicle was required. However, the circumstances of the arrest, which took place in a public place, were fluid and intense. A firearm had been located on Mr. Johnson, as well as controlled substances on Mr. Ford. Police had also intended to execute the search warrant on site and proceeded to do so. The information that more than one individual was in custody had been communicated. The failure to dispatch more than one vehicle strikes me as an unfortunate but inadvertent mistake. Given that a second car was requested within four minutes of the first car’s arrival, the error was rectified as soon as practicable.

84Based on all of the foregoing, I find that the Crown has demonstrated that in the circumstances, the delay of 20 minutes in facilitating the applicant’s right to counsel was reasonable. As a result, I find that the Applicant’s rights to counsel were not breached.

Should the Evidence be Excluded?

85Section 24(2) of the Charter allows the court to exclude evidence obtained in a manner that violated an individual’s Charter rights, where admitting the evidence would bring the administration of justice into disrepute.

86The Applicant sought to exclude all of the evidence seized from the Hyundai and the residence, whether pursuant to the execution of the search warrants or as a result of the arrests. While the Applicant did not challenge the lawfulness of the arrests or the searches incident to arrest, he argued that in the event that a s. 8 or s. 10(b) Charter breach was found, all of the evidence seized ought to be excluded as evidence “obtained in a manner” that breached his Charter rights.

The Applicable Legal Principles

87The first issue to address under s. 24(2) is whether the evidence sought to be excluded was “obtained in a manner” that infringed on a right guaranteed by the Charter. For the purpose of s. 24(2) of the Charter, the Applicant need only establish a temporal, contextual or causal connection between the breach and the discovery of evidence that is not too remote to satisfy the requirement that the evidence was “obtained in a manner” that violates his Charter rights: R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 54. If the Charter breach and the discovery of evidence are part of the same transaction, the evidence will have been “obtained in a manner” that violates the accused’s Charter rights.

88The second issue is whether the admission of the evidence would bring the administration of justice into disrepute. In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71, the Supreme Court of Canada held that in determining whether the admission of evidence would bring the administration of justice into disrepute, the court must balance the following three factors:

(i) the seriousness of the Charter-infringing state conduct;

(ii) the impact of the breach on the Charter-protected interests of the accused; and

(iii) society’s interest in the adjudication of the case on its merits.

89In assessing the seriousness of the breach, the court is required to evaluate whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct: Grant, at para. 72. The overarching concern is to maintain public confidence in the rule of law and its processes.

Application to the Facts

Obtained in a manner

90Based on my finding that a warrant to search the Hyundai could not have been issued, the search of the vehicle was in breach of the Applicant’s rights under s. 8 of the Charter. There is a clear causal, temporal and contextual connection between the evidence and the breach. There is also a temporal and contextual connection between the s. 8 breach and the items seized pursuant to the lawful searches incident to arrest of Mr. Ford and Mr. Johnson.

91In respect of the residence, there is also a causal, temporal, and contextual connection between the Charter breach and the drugs located in the safe.

Seriousness of the Charter-infringing state conduct

92The first Grant factor involves an examination of the conduct of the police. The more severe or deliberate the state or police conduct leading to the Charter violation, the greater the need for the courts to disassociate themselves from the conduct so as to preserve public confidence in the rule of law.

93In this case, the portions of the ITO that were excised and/or amplified were limited to two words and one sentence that I found to be inaccurate and misleading. The Applicant conceded, and I agree, that there was no deliberate attempt to mislead the issuing justice. There is an absence of evidence of any institutional or systemic problem.

94In respect of both the Hyundai and the residence, the police understood the searches to have been properly authorized. Moreover, the search of the residence was conducted pursuant to a search warrant that I have found to be valid, except in relation to the firearm and ammunition. As the Court of Appeal held in R. v. Rocha, 2012 ONCA 707, at para. 28, “[a]pplying for and obtaining a search warrant is the antithesis of wilful disregard of Charter rights.” The obtaining of a warrant generally favours admission of the evidence, unless the defendant can show that the warrant was obtained through the use of false or deliberately misleading information or subversion of the warrant process: Rocha, at para. 28.

95In the circumstances, because the search of the Hyundai was unauthorized and the search of the residence exceeded the scope of that which ought to have been authorized, I find that the Charter-infringing conduct in this case was serious. However, for the reasons stated above, it weighs only moderately in favour of the exclusion of the evidence.

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

96The Applicant has not provided any evidence as to the impact of the Charter breaches on him.

97Given the heightened expectation of privacy in one’s home, the impact of an unlawful search of the home is generally viewed as very serious. In this case, however, police entered the Applicant’s residence under a valid search warrant and were entitled to search the residence for the clothing, cell phones, and documents. Police broke into the Applicant’s safe, despite the absence of reasonable and probable grounds to search the residence for a firearm. The breach at issue, therefore, was limited in that it related to the manner or scope of the search as opposed to whether police were entitled to enter and search the residence. In my view, the impact of the breach on the Applicant’s Charter-protected interests is less significant than if the search of the residence had not been authorized.

98While a person has a reduced expectation of privacy in their motor vehicle, the search of the Hyundai was unreasonable because the search warrant could not have been issued. I find that the impact of the unauthorized search on the Applicant’s Charter-protected interests is moderate and pulls in favour of exclusion of the evidence located pursuant to the search.

Society’s interest in an adjudication on the merits

99The third Grant inquiry is concerned with the long-term reputation of the administration of justice, which is jeopardized by judicial indifference to unacceptable police conduct: Morelli, at para. 102.

100Society’s interest in an adjudication on the merits almost always favours admission of the evidence: R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at paras. 62-63. In Grant, at para. 81, the Supreme Court held that the “exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective thus bringing the administration of justice into disrepute.”

101At the same time, the admission of evidence obtained in violation of a Charter right cannot be supported solely on the ground that the offence is serious and that the evidence reliable and central to the Crown's case: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494. The negative effects of the loss of reliable, important evidence must be considered, but cannot be allowed to overwhelm the other considerations: R. v. Omar, 2018 ONCA 975, 144 O.R. (3d) 1, at para. 53, rev’d 2019 SCC 32, [2019] 2 S.C.R. 576.

102The charges the Applicant faces relate to discharge and possession of a restricted firearm and possession of substances, including fentanyl, for the purposes of trafficking. There is a strong public interest in having the charges, which pose a serious danger to the public, adjudicated on their merits: R. v. Reid, 2019 ONCA 32. The police conduct at issue in this case was not in bad faith. Police sought and obtained the necessary authorizations and there was no deliberate attempt to mislead.

103In this case, the Crown takes the position that the exclusion of the seized evidence will effectively end the prosecution for the drug-related offences and would significantly undermine the Crown’s case in relation to the discharge firearm count.

104In my view, the third Grant factor strongly weighs in favour of admitting the evidence.

Balancing

105The overriding consideration in any s. 24(2) analysis is whether admitting the evidence would bring the administration of justice into disrepute: R. v. Whittaker, 2024 ONCA 182, at para. 60.

106In McGuffie, at para. 63, Doherty J.A. held that “if the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence.” (Internal citations omitted.)

107Because police were entitled to search the residence, the seriousness and impact of the breach were limited. By breaching the safe, police exceeded the scope of the authorization, but had understood the search to be authorized. The first two factors weigh only moderately in favour of exclusion. Based on my balancing of the Grant factors, the evidence seized from the residence is admissible.

108In respect of the evidence seized pursuant to the execution of the search warrant on the Hyundai, the first two factors weigh in favour of exclusion of the evidence. Based on my balancing of the Grant factors, my view is that the court should dissociate itself from evidence obtained in this manner. The evidence located as a result of the execution of the search warrant on the Hyundai must be excluded.

109As noted earlier, items including small quantities of controlled substances and the firearm were located on Mr. Ford and Mr. Johnson when they were arrested. The grounds for the arrests are unchallenged. I have found that the items were obtained in a manner that was in violation of the Applicant’s rights, based on the temporal and contextual connection between the unlawful search of the Hyundai and the discovery of the evidence. However, the drugs and firearm were located pursuant to the lawful searches incident to arrest of Mr. Ford and Mr. Johnson and would have been located in any event. In my view, in the circumstances of this case, a reasonable person informed of the relevant circumstances and familiar with Charter values would not conclude that the admission of this evidence would bring the long-term reputation of the administration of justice into disrepute. The evidence located pursuant to the lawful searches incident to arrest of Mr. Ford and Mr. Johnson is therefore admissible.

Conclusion

110For the foregoing reasons, the application is granted in part. The evidence seized from the residence is admissible. The evidence seized pursuant to the execution of the search warrant on the Hyundai is excluded. The evidence located on Mr. Ford and Mr. Johnson pursuant to lawful searches incident to arrest is admissible.

“Nishikawa J.”

Released: July 20, 2026

CITATION: R. v. Ford, 2026 ONSC 4132