This week’s top three summaries: R v Lye, 2026 ONCA 188: s.8 condo #garage, R v Griggs, 2026 ONCA 135: s.8 Jones standing, R v Martinez, 2026 ABCA 44: #self-defence

R v Lye, 2026 ONCA 188

[March 16, 2026] Charter s.8: Police Surveillance in Condo Garage and Garofoli Applications [Reasons by Pomerance J.A. with M. Tulloch and J. Dawe JJ.A. concurring]

AUTHOR’S NOTE: Justice Pomerance’s decision examines the implications of prior warrantless police entry into condominium premises—including garages and security systems—in the context of a Garofoli application to cross-examine an affiant on a search warrant.

As is often the case, the appellate posture is shaped by how the issue was framed at trial. Here, defence counsel focused on the prior warrantless entries only insofar as they informed the subsequent warrant(s) that ultimately led to the discovery of contraband. A more robust approach may have been to advance a free-standing s. 8 challenge to those earlier searches. The reason is straightforward: the burden for justifying a warrantless search rests squarely on the Crown, and that burden should not be diluted simply because the impugned conduct is later incorporated into an Information to Obtain. An affiant cannot, by inclusion, transform a Charter breach into a Garofoli issue and thereby elevate the defence burden—such an approach would risk insulating unconstitutional police conduct from meaningful scrutiny.

Even so, the decision is highly instructive. It confirms that where police have engaged in pre-warrant surveillance or access within condominium buildings, the threshold for cross-examination on a Garofoli application is readily met. The court must be able to assess the full context of that conduct, including:

• The specific areas accessed or surveilled;
• Whether any purported consent (e.g., from security personnel) was valid;
• The nature and scope of CCTV systems;
• Access controls such as FOB-restricted entry; and
• The degree of police involvement in obtaining or reviewing footage.

These are not matters that can be confined to what the affiant elects to include in the ITO. Prior warrantless entry—particularly in semi-private residential spaces—will, in most cases, justify the production of involved officers for cross-examination.

 

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I. OVERVIEW

[1] Cross-examination has been described as the engine of truth. However, the right to cross-examine is not absolute. When an accused challenges a search warrant at trial, she or he must apply for leave to cross-examine the police officer who prepared the underlying documents (the “affiant”). The accused must demonstrate that “cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization, as for example the existence of reasonable and probable grounds”: R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 1465; R. v. Dalia, 2025 ONCA 772, at paras. 11-12; R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 39. The test for leave is modest, but important. It guards against unmeritorious fishing expeditions, and improper expenditure of judicial resources.

[2] On the other hand, when the test for leave is met, it is critical that crossexamination be permitted. Denial of leave, when the test is met, can impede the accused’s ability to meaningfully advance a Charter claim. That is what happened here.

[4] The appellant challenged the validity of the warrants at trial. He sought leave to cross-examine the affiant and relevant sub-affiants on various matters, including the police surveillance of the appellant in the underground garage of his condominium building. The observations gleaned from this surveillance were used in the information to obtain (“the ITO”) to corroborate information received from confidential informants (the “CIs”).

[5] The appellant wanted to explore whether the surveillance, conducted without warrant, violated his rights under s. 8 of the Charter. He also wanted to explore why certain details about the surveillance were omitted from the description in the ITO….

[6] I agree with the appellant that he ought to have been permitted to crossexamine the affiant and relevant sub-affiants on issues relating to the garage surveillance, and the description of that surveillance in the ITO….

II. BACKGROUND AND EVIDENCE

1. The ITOs and the Search Warrants

[8] The police obtained two search warrants under s. 487 of the Criminal Code, R.S.C. 1985, c. C-46, based on two ITOs which were essentially identical. The ITO contained information from two CIs and information about steps the police took to verify that information.1 The first CI told the police that a man named Baba Lye lives in a condo at 31 Tippett Road (which is at Wilson and Allen Road), drives a white Ford with a plate ending in 114, and has a firearm. The second CI told the police that a man named Baba Lye lives in a new condo near Wilson and Allen Road, and drives a white Ford.

[10] A check of CPIC indicated that the appellant had many aliases, including Baba Lye. A PARIS check confirmed that licence plate CRJW 114 was registered to a white Ford.

[11] The ITO stated that, on April 8, 2021, police went to 31 Tippett and observed a white Ford with that plate number in the underground parking lot, and that a male matching the CIs’ description of Lye entered it. The ITO also reported that “[t]he driver of the vehicle, used the FOB registered to apartment 315, to exit the underground”.

[13] The ITO did not provide any details about the manner in which police conducted surveillance of the parking garage at 31 Tippet Road. It appeared from the description in the ITO that police had physically attended in the garage, observing events as they unfolded. The ITO did not specify who, if anyone, had granted authority to the police to access the garage and make the observations.

[14] After the appellant filed his Charter application, the Crown disclosed the notes of the officer who had conducted the garage surveillance. Those notes are summarized in the trial judge’s ruling as follows:

Officer Dhillon was the officer who conducted the investigation of 31 Tippett Road on April 8, 2021. His notes were summarized by the Crown as follows: On April 8, 2021 Officer Dhillon #10290 went to the location of 31 Tippett Road. Officer Dhillon attended this location and found a white Ford Taurus with Ontario license plate CRJW 114 parked in the underground garage P2 level spot B7. Officer Dhillon spoke to security and reviewed CCTV footage from P2 elevator lobby and observed on that footage that at 2:24 pm a male and female exited elevator at P2 level and walked to the white Ford Taurus CRJW 114. The motor vehicle was seen exiting P2 level. Security advised Officer Dhillon that driver of this vehicle used a fob to exit and this fob was registered to unit 315-31 Tippett Road. Officer Dhillon also noted a description of the male and female and was advised by security that there were no cameras in elevators and hallways.

[15] The notes revealed, among other things, that the police watched security surveillance video of the garage, a fact omitted in the ITO. In addition, the notes said that the officer was granted access by “security”. However, there was no identification of who “security” was; what position that person held; whether they were part of property management; or whether they had lawful authority to permit access.

2. The Appellant Seeks Leave to Cross-Examine

[16] The appellant sought leave to cross-examine the officer who swore the ITO (the affiant) and any sub-affiants on how it was that police were able to observe the activities in the underground garage of a secure building. The appellant wished to explore whether the entry into the parking garage resulted in a violation of s. 8 of the Charter, such that the information obtained should be excised from the ITO.[Emphasis by PJM]

[17] After the Crown disclosed the notes of the officer who attended at the building, the appellant had a further basis on which to cross-examine. The notes said that the officer “spoke to security” and that the observations were made during a review of “CCTV footage from P2 elevator lobby”. The notes also said that “security” advised the officer that the driver of the vehicle used a fob to exit the garage and that the fob was registered to unit 315 in the building. It was not clear who the “security” person was that gave the officer access to the video and the fob information. It was also unclear why the description of the surveillance in the ITO was as vague as it was, omitting details that were set out in the officer’s notes.

[18] The appellant sought to cross-examine on why the details in the notes were not included in the ITO. It was the defence theory that the affiant and sub-affiant were aware of case law governing police access to common areas of multi-unit buildings. The defence posited that the affiant intentionally omitted details from the ITO in order to conceal an infringement of the Charter.

[19] Finally, the defence wished to cross-examine on the fact that the surveillance video of the garage, viewed by police, was no longer available and could not be reviewed by the defence.

3. The First Ruling

[20] The trial judge denied the request for leave to cross-examine the affiants and sub-affiants. He found the appellant had “failed to demonstrate any reasonable likelihood that cross-examination would undermine the basis for the authorization”.

4. The Garofoli Hearing Continues

[22] The appellant advanced several arguments on the challenge. He made three arguments in respect of excision. First, he claimed that police were not entitled to enter the condominium building and perform a search without either prior judicial authorization or consent from property management. The appellant called an articling student to testify, who described the limited public right of access to 31 Tippet Road. The student attended at the property where he spoke to the property manager and assistant property manager. He asked for access to the underground parking lot, advising that he was not a resident of the building. Management denied him access. He asked whether he could see information linking parking spaces and unit numbers as well as information linking fobs with unit numbers. He was again denied access. He was also not permitted to look at any security camera footage.

5. The Second Ruling

[26] The trial judge found that there was no violation of s. 8 of the Charter. He found that the appellant did not have a subjective expectation of privacy in relation to either his municipal address or his use of a spot in the underground parking lot. Even if the appellant had a subjective expectation of privacy, the trial judge would have found that it was not objectively reasonable. He concluded that “the police were not acting unlawfully and they did not violate s. 8 by conducting the single entry into the underground parking garage and obtaining the associated fob data from security.”

[27] On the question of whether the ITO contained misleading or insufficient detail…

….he went on to find that the omission was not material, because the police were engaged in “acceptable investigative techniques”.

[30] The trial judge considered the content of the unredacted ITO, which was provided to him pursuant to step six of the Garofoli procedure. He found, relying on the unredacted ITO, that the nature of the information provided by the CIs was compelling, in that it was “detailed, has an appropriate degree of recency, and is largely based on information that is neither conclusory nor second-hand”. He also found that the unredacted ITO revealed “a basis upon which the issuing justice could have been satisfied of the CIs credibility”.

[32] As a result of his findings, the trial judge did not find any deliberate nondisclosure, bad faith, deliberate deception or fraudulent misrepresentation by the affiant which would suggest subversion of the pre-authorization process.

IV. ANALYSIS

1. Leave to Cross-Examine

a. Standard of Review

[34] A trial judge’s decision to permit or deny leave to cross-examine an affiant is discretionary and is entitled to deference….

….The need for a deferential standard of appellate review was recognized in Garofoli, where Sopinka J. stated that “[t]he discretion of the trial judge should not be interfered with on appeal except in cases in which it has not been judicially exercised”: at p. 1465; see also R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 46.

b. General Principles

[35] The threshold for leave to cross-examine an affiant is not particularly demanding or onerous: Pires; Lising, at para. 40. The defence must establish a reasonable likelihood that cross-examination will elicit evidence that may assist in determining whether there was a basis upon which the authorizing judge could issue the warrant. The defence need not demonstrate that cross-examination will be successful in discrediting a pre-condition for authorization. It is enough to show that it is reasonably likely to assist the court in determining a material issue: Pires; Lising, at para. 40.

[36] Cross-examination may be directed at various issues, including but not restricted to: the level of detail in the ITO, the credibility of the affiant or sub-affiant or informant, and the question of whether the legal test for issuance has been made out: Pires; Lising, at paras. 41, 43-44. Cross-examination may also be appropriate where, as here, the accused alleges that an investigative step, relied upon in the ITO, gave rise to a Charter infringement.[Emphasis by PJM]

c. The Proposed Cross-Examination was Not Pointless

[38] The information derived from the garage surveillance was important to investigators. Among other things, it corroborated aspects of the information received from CIs….

….When police rely on CI information, they must provide the issuing judge with the necessary information to permit an independent assessment of reliability. This is done by addressing three questions: 1) whether the information from the CI is compelling; 2) whether the CI is credible; and 3) whether the tip has been confirmed or corroborated through independent investigation: R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1168….

[39] In this case, the police set out to confirm the information obtained from the CIs by attending the underground garage in the building linked to the appellant. Through this exercise, they confirmed that the appellant was staying at the address identified by the CIs, and that he drove a vehicle similar to that described by the CIs. The surveillance also gave police a critical piece of information that they did not have, namely, the unit number associated with the appellant’s fob. Without that information, police would not have known which of the many units in the building was occupied by the appellant.[Emphasis by PJM]

[40] The defence sought to explore whether the attendance in the underground garage implicated and infringed the appellant’s rights under s. 8 of the Charter.This line of inquiry was, by no means, pointless or an improvident use of judicial resources. To the contrary, were the appellant able to show that the surveillance was carried out in violation of the Charter, the information obtained by way of the surveillance would be excised from the ITO. It has long been understood that police cannot profit from unconstitutional conduct, and that evidence obtained by way of a Charter breach must be excised from the grounds sworn in support of a warrant: Garofoli; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 52; see also R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253; R. v. Zacharias, 2023 SCC 30, 431 C.C.C. (3d) 421, at paras. 2, 26, 30, 107.

[41] Excision of the garage surveillance details from the ITO would have removed what little corroboration of the CIs was in existence. It would also have impacted the ability of police to identify the unit number associated with the appellant’s residence.

d. There was a Foundation for the Charter Issues

[42] The trial judge found in his second ruling that the appellant did not have a reasonable expectation of privacy in the underground garage, or the information acquired by police. He further held that the police had engaged in an acceptable investigative technique. However, these conclusions begged the very questions that the appellant sought to explore in cross-examination. The evidence on the voir dire – the ITO and the notes of Officer Dhillon – raised, as a live issue, the question of whether the appellant’s Charter rights had been infringed.

i. Standing

[44] In this case, the Crown took no issue with the appellant’s standing to raise a claim relating to the residence or the motor vehicle. That served as an acknowledgement that the appellant could claim a reasonable expectation of privacy. The trial judge accepted this concession in his first ruling, finding that he was “satisfied that Mr. Lye has demonstrated a reasonable expectation of privacy based on the Crown theory that he was the occupant of the condominium unit and the operator of the motor vehicle in question”.

[45] However, in the second ruling, the trial judge came to a different view, finding that the appellant had neither a subjective, nor objectively reasonable expectation of privacy in either the use of a spot in the underground parking garage, or the information acquired by police (i.e. his municipal address)….

[46] With respect, I am of the view that the trial judge erred in his assessment of the appellant’s reasonable expectation of privacy. There was a sufficient basis on which the appellant could claim a reduced, yet reasonable, expectation of privacy in the parking garage. More specifically, as I will explain, the appellant had a reasonable expectation that outsiders to the building, including police, would not gain entry or access without permission from an authorized building official.[Emphasis by PJM]

1. The Claimant’s Interest in the Subject Matter of the Search

[47] In this case, the surveillance implicated privacy in both the place of the search – the garage – and the content of the surveillance – the observations made by the police. Hence, it impinged on two zones of privacy: territorial and informational: see Spencer, at para. 35; Tessling, at para. 24….

2. Subjective Expectation of Privacy

3. Objectively Reasonable Expectation of Privacy

[50]…This turns on the place of the search, the content of the information acquired (whether it engages biographical core) and the level of control over the subject matter (which is no longer a determinative factor): Marakah, at para. 24.

a. The Place of the Search: Territorial Privacy

[51]….The question is whether the appellant had a reasonable expectation of privacy in a shared-use parking garage in the underground of his condominium building.

[52] Various cases have considered whether individuals can reasonably claim privacy in common areas of multi-unit buildings. There is no categorical answer to this question: R. v. White, 2015 ONCA 508, 127 O.R. (3d) 32, at para. 41; R. v. Yu, 2019 ONCA 942, 151 O.R. (3d) 244, leave to appeal refused, [2020] S.C.C.A. No. 38 at paras. 69, 81. As with many constitutional queries, it is fundamentally context and fact specific. Common areas, accessible by multiple tenants or occupants, attract less privacy than do residential units, but occupants do not lose all semblance of privacy the moment that they leave their residence. Locations such as garages, hallways, and other common areas outside of private units can attract constitutionally significant privacy interests: Yu, at para. 84…

….A host of factors are relevant to the determination.

[53]….White, at paras. 47-48, Huscroft J.A. observed the nuanced and highly contextual nature of this inquiry….

….From the stairwell, the police could overhear what was happening in the respondent’s unit. He offered that:

Although the respondent did not have absolute control over access to the building, it was reasonable for him to expect that the building’s security system would operate to exclude strangers, including the police, from entering the common areas of his building several times without permission or invitation and investigating at their leisure. It was reasonable for him to assume that although access to the building’s storage area was not regulated, it was not open to the general public. And it was reasonable for him to assume that people would not be hiding in stairwells to observe the comings and goings and overhear the conversations and actions within his unit.

[54] Since White, courts have applied various factors that bear on the question of privacy in common areas. These include: (1) degree of possession or control exercised by the claimant over the common area in question; (2) the size of the building; (3) security measures in place in the building; (4) ownership of the property; (5) whether the subject matter was in public view; (6) the intrusiveness of the police conduct; and (7) whether the information exposed intimate details of the claimant’s lifestyle or information of a biographic nature: see R. v. Unrau, 2025 ABCA 239, 449 C.C.C. (3d) 408, at para. 30; White, at para. 45; Yu, at para. 68; R. v. Boaheng, 2024 ONSC 781, 548 C.R.R. (2d) 329, at para. 96.[Emphasis by PJM]

[55] One important factor is the extent to which the area in question is generally accessible to the public. For example, some parking garages are above ground and publicly visible, such that persons on the street can observe the area. Other garages may be underground, but have visitor parking areas that are freely accessible to the public. Visitors may have free access to the entire garage, or they may be able to observe the garage from their vantage point. If a garage can be entered by any random member of the public, at will, it will be difficult for the accused to claim that he or she expected privacy in that location: see e.g. R. v. Nguyen, 2025 ONCA 609, 6 C.R. (8th) 164, at paras. 24, 26, 34; Yu, at para. 80.[Emphasis by PJM]

[56] The evidence in this case established that the public could not freely come and go from the underground garage as it pleased. The entrance to the building was nhanced by a fob-gated door, which also prevented general public access to the garage area. This was established through the testimony of Mr. Wickham, the defence articling student, who also testified that his requests for access to the garage, or to video surveillance of the garage, were denied because he was not a resident. This evidence was not dispositive of the privacy issue, but it did tend to rebut the notion of public access.

[57] In finding no reasonable expectation of privacy, the trial judge considered the fact that the appellant could be seen by others as he went about his business in the underground garage as it was a 12-storey building. This is a factor, but it is by no means dispositive of the privacy issue. First, privacy is not “all or nothing”. The fact that someone cannot expect complete privacy does not mean that they have lost all privacy. For constitutional purposes, the assessment depends on who is doing the looking, and why. The question is not whether an individual reasonably expected the subject matter of the search to remain private vis-à-vis the world, what matters is whether the individual reasonably expected it to remain private vis-à-vis state intrusion: R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488, at para. 57; R. v. Duarte, [1990] 1 S.C.R. 30, at p. 46; R. v. Wong, [1990] 3 S.C.R. 36, at pp. 43-44, 47-48; R. v. Plant, [1993] 3 S.C.R. 281, at p. 291-93; Tessling, at para. 18; Marakah, at paras. 40-45.[Emphasis by PJM]

[58]…. In any event, it remains the case that the risk of being seen by an uninterested stranger is very different than the risk of being watched by a very interested police investigator….

[59] Third, while the appellant was unable to control access to the garage, control is no longer a definitive factor in defining the scope of privacy….

[60]….Depending on the location and the information to be acquired it will usually suffice for police to obtain valid consent from an authorized building official: Yu, at paras. 70-75, 90, 94-96, 102; Salmon, at paras. 20-23….

[61] This also defines the nature of the reasonable expectation. Occupants in buildings with restricted access cannot expect that they will not be observed by others. What they can reasonably expect is that any strangers to the building – be they workmen, guests, or police investigators – will only enter if they are authorized to do so, if permission is granted by someone with the requisite authority: see e.g. Yu, at para. 87. Guests may enter with other occupants. Workmen may have to sign in and register their presence. When the strangers to the building are police, they will generally be required to obtain permission to enter by a property manager or other similarly situated official.

[62] Thus, in this case, the identity of the “security” person who granted Officer Dhillon access to the garage surveillance was directly relevant to the appellant’s Charter claim. The defence ought, at a minimum, have been entitled to crossexamine to discern how Officer Dhillon got access, and by whom he was authorized to do so.

b. The Subject Matter of the Search: Informational Privacy

[64] The trial judge found that no privacy attached to the information acquired by police through the garage surveillance, because it amounted to nothing more than the appellant’s municipal address. That is one way of looking at the information. However, it is a narrow approach and one that takes an impoverished view of the extent to which the surveillance in these circumstances was capable of impinging on the biographical core.

[65]….The question, rather, is “what the police were really after”: Marakah, at para. 15. This entails looking at what inferences can be drawn, ntial or tendency of the information to disclose intimate details and lifestyle choices of the individual….

[66]….The court endorsed the proposition, offered many times before, that privacy is to be viewed as “normative”, not descriptive: Bykovets, at para. 7. In accordance with this aspirational approach, the analysis under s. 8 of the Charter must address all the information this IP address “tends to reveal” and, therefore “by reference to the nature of the privacy interests potentially compromised by the state action”: Bykovets, at para. 42, citing Spencer, at para. 27, and Marakah, at para. 15. As the court put it at para. 53:

Thus, a reasonable expectation of privacy, as s. 8’s operative component, cannot be assessed according to only one particular use of the evidence. Nor can its reach be determined according to the police’s specific intention in seeking the information. Rather, the purpose of s. 8, appreciated normatively, requires that we ask what information the subject matter of the search tends to reveal. Because this analysis seeks to determine “whether people generally have a privacy interest” in the subject matter of the state’s search, we consider not only the information that police seek to uncover in a particular case, but all the information that the subject matter may tend to uncover. [Citations omitted.]

[67] In this case, the police reported that their intention in conducting the garage surveillance was to confirm information from the CIs about where the appellant lived and the car that he drove, and once that information was confirmed, the police sought to determine the particular unit the appellant was occupying. However, these statements neither defined the breadth of the appellant’s rights under s. 8 of the Charter, nor the gravity of the intrusion. The court must consider, not only what the police were after, but what they did in order to obtain it. To use an extreme example, if police enter a home, without a warrant, in order to find out who lives there, it is no answer for the Crown to say that the police were only interested in the person’s name and address. The entry of the home is a serious invasion of privacy, even if the police were only interested in so-called neutral information.[Emphasis by PJM]

[68] So too, in this case, there must be consideration of how the police obtained the “municipal address” of the appellant. They did not discover this information by scouring public websites or checking government records. Instead, the police obtained access to a video that depicted the appellant’s activities in the building in which he lives, albeit in a location shared with other occupants. The surveillance had the potential or tendency to reveal more invasive information than the appellant’s municipal address. He was seen to enter the area at a particular time of day, with a female companion, enter a particular vehicle, and leave the premises: see e.g. Yu, at para. 77….

[69]…as was held by George J.A. in Nguyen, at para. 28, observations of activities in an underground parking area will not generally disclose what is taking place inside a residential unit. However, observations of comings and goings may impinge on a reasonable expectation of privacy, depending on the circumstances: Yu, at paras. 76-77, Nguyen, at para. 28. The observations in this case went beyond mere disclosure of a municipal address.

[70] Thus, the subject matter of the search, properly construed, also suggests that the appellant had a reasonable expectation of privacy in the information revealed by the garage surveillance.

ii. Description in the ITO

[71] The appellant was also entitled, in my view, to cross-examine the affiant on why the garage surveillance was described in a cursory and opaque fashion in the ITO. The description in the ITO was frugal, at best. It did not identify which officer attended at the garage; it did not disclose that there was a warrantless entry into an area with restricted access; and did not disclose that officer viewed a video rather than making firsthand personal observations.

[73]….. Such questioning might have cast doubt on the affiant’s discharge of his duty of full, fair and frank disclosure.

[76]The trial judge…

….He saw this as immaterial, given his finding that the police were engaged in “acceptable investigative techniques”. However, that finding begged the very question at the heart of the Charter voir dire. The acceptability of the investigative technique was the very issue the defence sought to explore in cross-examination.

2. Garofoli Step Six

[77] In this case, the Crown invoked Garofoli step six, whereby the Crown presented the trial judge with an unredacted copy of the ITO….

….It cannot be known whether the ITO could survive scrutiny in the complete absence of such corroboration. In the circumstances, the ruling on the validity of the warrants cannot stand and a new trial must be ordered.

V. DISPOSITION

[79] For the above reasons, I find that the appellant was improperly denied leave to cross-examine the affiant, and possibly, sub-affiants in connection with the warrant to search his vehicle and the condominium unit. The appellant asks this court to find that the police surveillance violated s. 8 of the Charter, and to conduct a s. 24(2) analysis to determine if the evidence should have been admitted. This is not something which this court can undertake. The fact remains that there simply is not enough information in the record to permit a full constitutional analysis. The appellant cannot on the one hand assert that he was deprived of the ability to make a constitutional case, while on the other hand, arguing that he did so and that this court should grant a remedy on that basis.

[80] For all of these reasons I would allow the appeal, quash the convictions and order a new trial.

R v Griggs, 2026 ONCA 135

[February 26, 2026] Charter s.8: R v Jones Standing [Reasons by van Rensburg J.A. with L.B. Roberts and S. Gomery JJ.A. concurring] 

AUTHOR’S NOTE: The Crown’s theory at trial—as distinct from its position on a Charter voir dire—can be relied upon by the defence to establish standing (i.e., a reasonable expectation of privacy) in relation to a search or seizure. This principle, established in R v Jones and reinforced in this decision, ensures that an accused is not forced to compromise their substantive defence in order to assert a Charter claim.

In Jones, the Court recognized a practical shortcut: where the Crown alleges at trial that an accused had knowledge and control over contraband or premises, it cannot simultaneously deny that same connection when resisting standing on a s. 8 application. To permit such inconsistency would place the accused in an untenable position—having to admit a connection to the impugned location or items to gain standing, while contesting that very connection at trial.

In this case, the trial judge erred by accepting the Crown’s recast theory on the voir dire (that the accused was merely a privileged guest), rather than grounding the analysis in the Crown’s trial theory. Jones guards against precisely this form of tactical inconsistency. It prevents the Crown from advancing mutually incompatible positions in an effort to defeat Charter scrutiny.

More broadly, the decision reinforces that the Crown is not an ordinary litigant. Its obligations, as articulated in Boucher, require fairness, consistency, and fidelity to the truth-seeking function of the trial. Courts must remain alert to attempts to dilute Charter protections through strategic recharacterization of the facts at the voir dire stage.

 

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[1] Michael Bennett and Dylan Griggs were charged and convicted of possession of drugs for the purpose of trafficking and possession of the proceeds of crime….

[2] The charges arose from the execution of search warrants for two residential addresses that were obtained under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the “CDSA”). 2 The first address was a house located on White Oak Avenue in Niagara Falls, Ontario (“White Oak”). The second was a house on Wilkerson Street in Thorold (“Wilkerson”). Drugs, money and other items were seized at both locations. The appellants were present and were arrested when the search of White Oak was carried out.

[3] The appellants brought a s. 8 Charter application to exclude the evidence seized in the execution of the warrants to search White Oak and Wilkerson.3 In a preliminary motion, the trial judge concluded that neither appellant had standing to challenge the search warrants….

[4] The appeal challenges the decision denying the appellants standing to bring the s. 8 application. The appellants argue that the trial judge erred in concluding they did not have standing, in part because of a misapplication of the law set out in R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696. They also appeal the guilty verdicts, submitting that the trial judge erred in concluding that the only reasonable inference on the evidence was that they were in possession of drugs seized at White Oak.

[5] For the reasons that follow, I conclude that the trial judge erred in finding that the appellants lacked standing to challenge the search warrants….

B. FACTS

[7] The appellants were charged as a result of a Niagara Region Police Service investigation that lasted about a year and culminated in the execution of search warrants at White Oak and Wilkerson on December 10, 2019. Messrs. Bennett, Griggs and Jamed, as well as Ms. Brennan, were inside White Oak at the time of the search of that address, while Mr. Austin was arrested as he entered Wilkerson. Large amounts of cocaine, crystal methamphetamine, and fentanyl were seized as a result of the searches.

[8] The ITO for the CDSA search warrants set out details of the police surveillance of “Black Kevin” (who was identified on arrest as Mr. Bennett), Mr. Griggs and Mr. Austin between November 19 and December 10, 2019. Based on their a prior investigation and information from confidential informants, the affiant stated that the police had information about the appellants and Mr. Austin selling drugs in Niagara. Among other things, the affiant referred to observations of the appellants conducting what were believed to be drug transactions at various locations before which they attended at White Oak or Wilkerson. The affiant offered his opinion that White Oak and Wilkerson were used by the appellants in selling drugs in the Niagara Falls area. The affiant deposed that he believed that White Oak was used as a stash house for drugs, cash and drug paraphernalia, that Mr. Bennett had been seen frequenting and staying at both houses, and that Mr. Griggs, who lived in Wasaga Beach, attended the Niagara Region to traffic drugs, while staying at White Oak.

E. DISCUSSION

1. The trial judge erred in not granting the appellants standing for their Charter motions

[28] I agree with the appellants that the appeal should be allowed on the issue of standing. As I will explain, in faulting the appellants for not having met their “significant” burden to establish standing, the trial judge erred in his approach to the evidence, as he did not give proper effect to the Crown’s theory.

[29] The point of departure is the Supreme Court’s decision in Jones. In that case the standing issue was whether the appellant had a reasonable expectation of privacy in text messages that he was alleged to have authored and sent. Côté J.9 noted that a relatively modest evidentiary foundation is required to establish a subjective expectation of privacy, which can be presumed or inferred in the circumstances absent a claimant’s testimony or admission at the voir dire: at paras. 19, 21. She concluded that “counsel for a s. 8 applicant may ask the court to assume as true for s. 8 purposes any fact that the Crown has alleged or will allege in the prosecution against him”: at para. 32. It is not necessary for the accused to “tender additional evidence probative of those facts in order to make out those same elements”: Jones, at para. 32. This is an exception to the rule that a Charter applicant bears the burden of persuading the court that his rights or freedoms have been infringed or denied: Jones, at para. 33.[Emphasis by PJM]

[30] Jones was discussed and explained by this court in R. v. Labelle, 2019 ONCA 557, 379 C.C.C. (3d) 270. Harvison Young J.A. identified as the “overriding point of Jones” that “an accused should not be placed in the position of being forced to compromise his or her substantive defence to criminal charges in order [to] assert standing to challenge the reasonableness of a search”: at para. 24, referring to Jones, at para. 26….

[31]….As I will explain, the trial judge erred when he failed to give proper effect to the Crown’s theory of the prosecution of the appellants, and instead, focusing on the Crown’s “privileged guest” theory, he concluded that the appellants had not provided sufficient evidence to establish standing. In this case, considering the “totality of the circumstances”, the appellants should have been granted standing.

i. The Crown’s theory relied on by the appellants in support of standing

[32] In this case, the appellants did not put forward their own evidence on the voir dire but relied on the Crown’s theory as disclosed in the ITO and the charges against them. They also relied on the Crown disclosure of the photographs of the items that were seized at the two addresses and their presence at White Oak when the search took place: the fact that Mr. Bennett was asleep in the small bedroom, and that Mr. Griggs was walking out of the principal bedroom as the police entered.

[34]….With respect to White Oak and Wilkerson, the affiant asserted that White Oak was used as a stash for drugs, cash and drug paraphernalia; that, based on the fact that the appellants were seen at either White Oak or Wilkerson before conducting drug transactions, they kept their drug supply within these houses; that “Black Kevin” (Mr. Bennett) kept his drugs, drug paraphernalia and other items on his person, at White Oak or Wilkerson or in his vehicle; that Mr. Griggs, who resided in Wasaga Beach, attended the Niagara Region to traffic drugs, while staying at White Oak; that Mr. Griggs kept his drugs, drug paraphernalia and other items to be sought on his person, at White Oak or in his vehicle; and that “Black Kevin” (Mr. Bennett) was observed frequenting and staying at Wilkerson and White Oak, and seemed to be at White Oak at the same time as Mr. Griggs, based on the presence of Mr. Griggs’s vehicle and mobile tracking data.

[35] It is clear from the ITO that the affiant was asserting that the appellants were jointly involved in a drug-trafficking enterprise, that they kept their drugs at White Oak and Wilkerson and that White Oak was used as a part-time residence by Mr. Griggs. These essential facts, together with the surveillance on the appellants provided the basis for the affiant’s belief that drugs would be found in the locations to be searched to support the charge that the appellants committed the offence of possession of drugs for the purpose of trafficking.[Emphasis by PJM]

[36] The court may also infer the Crown theory from the nature of the charges themselves: Jones, at para. 32. Here, the appellants were charged with possession for the purpose of trafficking with respect to all of the drugs and money found at White Oak, where they were arrested, and Mr. Bennett was also charged in relation to the drugs and money found at Wilkerson, although he was not present when this location was searched.

[39]….The Crown’s theory on the standing issue was that the appellants were no more than “privileged guests” of White Oak and that there was no evidence as to their control of this location. The Crown’s theory with respect to the prosecution in relation to the drugs at White Oak, however, was that the appellants’ use of this address as a stash house in their drug trafficking operation meant that they had possession of the drugs at this address. The very point of Jones is that the appellants could rely on the facts that the Crown would allege in the prosecution. [Emphasis by PJM]

[40] The trial judge concluded there was no evidence that would allow the court to infer the appellants had control of the properties, relationships with the properties’ lessees, historical use of the properties, the ability to regulate access to the properties, or any other basis on which to assert privacy. I agree with the appellants that in arriving at this conclusion, the trial judge applied the Edwards factors in the context of the Crown’s “privileged guest” theory, failing to give effect to the Crown’s theory with respect to the prosecution, particularly in relation to the question of their control of White Oak.

[41] The trial judge stated, erroneously, that the record was “effectively silent” regarding the appellants’ control of the property, and that he had “no basis upon which to quantify [the appellants’] connection or control of the property other than a slim number of examples of their mere presence there.” However, the appellants’ connection to and use of White Oak, and by inference their control of this location, were evident in the Crown’s theory.

[43]….in considering the totality of the circumstances and applying the factors from Edwards, the trial judge focused on the lack of evidence that the appellants had keys to the properties on the date of the arrest, that they owned or leased the properties, that they had a relationship with the lessees, or of their long history of use of either property, thereby failing to give proper effect to the Crown’s theory of the prosecution.

[44] In Jones, the accused did not call evidence on the voir dire but sought to rely on the Crown’s theory that he was the author of inculpatory text messages on a phone registered in his spouse’s name: at paras. 3-6. In Labelle, Harvison Young J.A. confirmed that Jones applies, whether or not the accused calls evidence on the voir dire and even where such evidence would negate standing: at paras. 26- 27….

[46] In this case, unlike other cases respecting searches of residential properties where the issue was whether the accused was a privileged guest or the primary occupant, there was no question that the addresses were stash houses. They were sparsely furnished, and even if Ms. Brennan’s sister held the lease to White Oak, there was nothing to suggest that it was her residence.

[47]….the Crown’s theory with respect to the prosecution – that the appellants had possession and control of the contents of the two properties because they were being used by them as stash houses in their drug operation – stood uncontradicted, at least on the Charter motion. Moreover, the other evidence, including the observations referred to in the ITO of the appellants attending at White Oak and Wilkerson before conducting alleged drug transactions, the fact that the two locations were sparsely furnished, the appellants’ presence at White Oak when the search was executed, and the items seized that connected the appellants to that location, was consistent with, and did not contradict, the Crown’s theory. The “totality of the circumstances” in this case supported the appellants’ claim to a reasonable expectation of privacy based on their use of and control over White Oak in their drug trafficking operations.[Emphasis by PJM]

[49] The trial judge ought to have accepted the Crown’s theory as evident in the charges and the sworn statements in the ITO, and then weighed that theory together with the other evidence that was before him. The other evidence was consistent with the Crown’s theory and, in particular, specific assertions made in the ITO: that White Oak and Wilkerson were being used by the appellants as stash houses in their drug trafficking activities, and that Mr. Griggs was staying at White Oak when he trafficked drugs in the Niagara Region. The use of the addresses as stash houses was apparent. Both houses contained significant amounts of cash and valuable drugs and items associated with the appellants who were present at White Oak when that address was searched. Had the trial judge properly considered the “totality of the circumstances”, he would necessarily have concluded that the appellants had a reasonable expectation of privacy in both White Oak and Wilkerson sufficient for standing to challenge the warrants.[Emphasis by PJM]

[50] Accordingly, I would give effect to this ground of appeal.