The Defence Toolkit – July 5, 2025: A Flashback

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Charter s.9 | Circumstantial Identification Evidence | Witness Reliability

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Posted On 5 July 2025

This week’s top three summaries: R v Singh, 2025 ONCA 460: #omissions and #flashbacks, R v OW, 2025 ONSC 2922: #exclusive opportunity ID, R v Grant and Scott, 2025 ONSC 3513: s.9 #grounds for arrest

R v Singh, 2025 ONCA 460

[June 25, 2025] Reliability: Omissions to Police and Flashback Memories [Reasons by J. George J.A. with Janet Simmons and R. Pomerance J.A. concurring]

AUTHOR’S NOTE: Omissions and “Flashback” Memories in Sexual Assault Trials

This appellate judgment offers helpful guidance on assessing credibility and reliability in sexual offence cases:

Omissions as Inconsistencies:
Where a complainant omits significant details—such as the positions engaged in during a sexual assault—these omissions can amount to material inconsistencies that undermine the reliability of the account. The Court confirms that omissions aren’t always benign and may properly be treated as credibility concerns.
“Flashback” Memories:
A complainant’s description of recalling key events through flashbacks can be assessed critically. It is open to trial judges to view such memory reconstruction as negatively affecting reliability, particularly where core events are retrieved in this manner.

These statements help frame a principled basis for challenging the reliability of testimony in cases where memory formation and narrative gaps are at issue.

[1] The trial judge acquitted the respondent of sexual assault but convicted him of the included offence of common assault. The Crown appeals the acquittal on the basis that the trial judge relied on myths and stereotypes. If successful, the Crown seeks a new trial.

[3] The complainant testified that at one point during the evening she went upstairs to rest. According to her testimony, the respondent followed her, pushed her against the wall, and touched her breast under her blouse without her consent. In her police statement, however, she indicated that they “made out” during this encounter. The complainant subsequently went downstairs and told S.T. what had just occurred. S.T. did not seem too concerned.

[4] The complainant testified that after another hour or so, she was ready for bed. The plan was that the complainant and the respondent would sleep in the same room, and that S.T. and one of the respondent’s friends, Harman, would sleep together in an adjacent room….

[5] The complainant testified that the respondent forced her to perform oral sex and engage in vaginal intercourse – first in the missionary position, followed by the respondent penetrating her from behind, and lastly with her on top of him. In her statement to the police the complainant did not say that they had sex while the respondent was behind her. The complainant also testified that the respondent bit her on the neck and slapped her.

[6] The respondent testified that the two had consensual sexual intercourse and that he sought explicit consent at each stage of the sexual activity. According to the respondent, he and the complainant had sex in the missionary position and while the complainant was on top of him.

After the Sexual Intercourse

[7] The complainant testified that after the respondent fell asleep she texted S.T. to tell her that she was hurt. She asked to meet her in the bathroom. S.T. did as asked and when she entered the bathroom she noticed that the complainant had a swollen red face and bite marks on her neck. They took photos of the injuries. The complainant testified that while she and S.T. discussed what to do, including just leaving the residence, they decided not to as their valuables, including passports, jewellery, and laptops, were in the respondent’s car. They were also afraid of the men in the home doing them harm if they tried to leave.

[9] The complainant and S.T. spent the next day at the respondent’s home. Later that evening the respondent, Harman, another roommate, S.T., and the complainant went to get food and emergency contraception. The complainant and S.T. stayed at the respondent’s home for a second night. The complainant and S.T. slept together in the same bed.

Cross-Examination of the Complainant

[10] During cross-examination defence counsel asked the complainant why, given what she says the respondent had just done to her, she went back to sleep in the same bed with him. The complainant explained that she did so “because I didn’t want anyone else to understand what happened, I was feeling scared if they all know and if [the respondent] gets mad at me and if he does something bad to me with all his friends because I was afraid. So I just wanted to hide it as much as I can….”

The Trial Judge’s Error

[11] While the trial judge repeatedly cautioned against relying on myths and stereotypes, and reminded himself that one cannot expect a sexual assault victim to act in a particular way, he did not follow this advice…..

[12] The fact that the complainant returned to the respondent’s bed after she says he sexually assaulted her caused the trial judge “concern…especially so when [he] evaluate[d] the reliability and credibility of the rest of [the complainant’s] evidence”.

Discussion

Governing Principles

[19] Even when the Crown successfully argues that a trial judge committed an error in law, it bears the “heavy onus” of “establish[ing] that the [error] might reasonably have had a material bearing on the acquittal”: R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 14; R. v. Vaillancourt, 2019 ABCA 317, 93 Alta. L.R. (6th) 98, at para. 14.

Application of the Principles

[20] I agree with the Crown that the trial judge erred by reasoning that, as a matter of common sense, a sexual assault victim would take steps to avoid the person who sexually assaulted them, and by applying that standard to the complainant. In other words, he assessed her evidence based on a wrong legal principle, which is an error of law: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 24 and 29-30; Hodgson, at para. 35.

[23] The trial judge, at the very least, discounted the complainant’s evidence on the basis that a true victim of sexual assault would have taken steps to avoid the perpetrator.

[24] The question that remains is whether this error had a material bearing on the acquittal. In my view, it did not. For the other reasons given by the trial judge – which I address below – an acquittal would have been warranted.[Emphasis by PJM]

[25] Before explaining why I have arrived at that conclusion, it is important to note that the trial judge did not accept the respondent’s evidence that the sexual activity was consensual, and he therefore did not acquit him on the first prong of W.(D.). The trial judge said he “must transition to the second prong of W.(D.)” and then asked himself this question: “[d]oes [the respondent’s] evidence, in combination with the other evidence which I do accept, leave me in a state of reasonable doubt.” In the end, the trial judge found that while the respondent was “probably guilty” of sexual assault, “the totality of the evidence [left him] short of being sure of his guilt.”

[27] The trial judge had two concerns with the complainant’s account of the alleged sexual assault. First, he was concerned with her description of what occurred when the respondent followed her upstairs. The trial judge recounted the complainant’s allegation that the respondent touched her breast without consent and noted its inconsistency with her police statement:

Upon being confronted in cross-examination [the complainant] admitted that she did not tell the police in her statement about these details and had only indicated that they “made out”. She took the position that the inappropriate behavior was subsumed within that term and that English is her second language.

[28] These differing accounts – one which had the respondent making unwanted advances and touching the complainant without her consent, and the other which had them “making out” – were significant to the trial judge. He ultimately rejected the complainant’s explanation of what she meant by “making out”:

[The complainant’s] evidence is somewhat troubling, given her position that the term “making out” encompasses [the appellant] putting his hand under her shirt and feeling her breast. My assessment of her understanding of the term making out, having observed her testify in English at this trial, suggests to me that she would have known what the term meant when speaking to the police, and I do not accept the reason as to why she did not tell the police about the details of the first encounter, including the touching. She struck me as a detail-oriented person during her testimony.

[29] The trial judge essentially found that the complainant was untruthful about this incident. This finding was open to the trial judge, which was capable of casting the entirety of the complainant’s evidence into doubt.

[30] With respect to what occurred in the bedroom, the complainant testified that there were three different positions of intercourse: at first, the respondent had sex with her while he was on top; then he entered her from behind; and lastly the respondent pulled her on top of him. The trial judge took note of, and had serious concerns with, how this was different from what she had described to the police:

[The complainant] testified that after oral sex the two engaged in the missionary position, and that she was then flipped on her stomach and intercourse occurred, and then that she was forced to ride on top of him. It is somewhat troubling to this court that [the complainant] did not tell the police about the flipping, or the penetration from behind aspect of the sexual assault. [Emphasis added.]

[31] The trial judge recognized that memories fade over time and cautioned that: 1) “sexual assault victims react differently in different situations”; 2) one cannot be expected to act in a particular way; and 3) “peripheral details of a traumatic event can be difficult to recall and accurately described at a later date”. However, in the end the trial judge concluded that this was not a peripheral detail, but rather a significant part of the complainant’s narrative of the sexual assault. He found that the complainant did not just confuse the order of events but omitted a salient detail altogether. It was open to the trial judge to find that this omission in the police statement, taken when the events would have been fresh in the complainant’s memory, was “a significant inconstancy which cause[d] [him] to question the reliability of [her] evidence.”[Emphasis by PJM]

[32] Apart from the improper reliance on stereotypes, the trial judge, by noting the inconsistencies above, clearly found the complainant to be an unreliable witness which, in his view, was reinforced by her testimony that she had recalled events in “flashbacks”. It was open to the trial judge to find that the recounting of important details through flashbacks had at least some impact on the complainant’s reliability.[Emphasis by PJM]

[34] In my view, because these concerns operated independently from the trial judge’s reliance on stereotypes – concerns which, in and of themselves, could give rise to a reasonable doubt – I reject the Crown’s submission that we can be satisfied with reasonable certainty that the error had a “material bearing” on the acquittal.

[35] Finally, I do not find helpful the Crown’s emphasis on the trial judge’s indication that deciding this case was “an agonizing exercise” nor his comment that the respondent is “probably guilty”. Neither the reasons nor the record makes clear what the trial judge was agonizing over, and I will not speculate; and his comment that the respondent was “probably guilty” does nothing more than reflect an understanding of the Crown’s burden of proof in a criminal trial.

Conclusion

[36] For these reasons, I would dismiss the appeal.

R v OW, 2025 ONSC 2922

[June 2, 2025] Circumstantial Identification Evidence: Exclusive Opportunity [McVey J.]

AUTHOR’S NOTE: Circumstantial Identification Requires Exclusive Opportunity

When the Crown’s case for identification relies primarily on circumstantial evidence of opportunity, it must establish that the accused had the exclusive opportunity to commit the offence.

In this case, the accused was seen in the company of two individuals later convicted in relation to the murder—before and after the killing—including appearing with them in a celebratory rap video. However, this was not sufficient to identify him as one of the individuals captured on CCTV leaving the scene of the homicide.

The Court held that the evidence did not meet the high bar for identification by circumstantial evidence, and exclusive opportunity was not established.

Introduction

[1] O.W. is charged with first-degree murder and attempt murder, contrary to sections 235(1) and 239(1) of the Criminal Code. At the time of the alleged offences, O.W. was a young person within the meaning of the Youth Criminal Justice Act, S.C. 2002, c. 1. The Crown alleges that O.W., along with another youth, J.A., with the assistance of two adult accomplices, Noel Perez and Hantel Hersi, followed through on a premeditated plan to shoot and kill the deceased in the early morning hours of December 6, 2021. The shooting occurred at approximately 3:14am. Thedeceased was shot in the face and torso repeatedly at close range. He died before paramedics arrived. He was sixteen years old.

[2] Another young person, X.R., who was sleeping in the same room as the deceased, was shot multiple times as well but fortunately survived.

[3] J.A. has already pleaded guilty to first-degree murder and attempt murder for his role in the shooting. The defence does not contest the obvious fact that there were two shooters involved. The identity of the second shooter is the primary issue in this trial. A third individual, Mr. Perez, pleaded guilty to manslaughter on December 6, 2024, for his role in driving J.A. and the unknown shooter to and from the homicide. Mr. Hersi also pleaded guilty on December 6, 2024, to accessory after the fact to manslaughter for his part in assisting Mr. Perez after the shooting. To be clear, the defence not only admitted that Mr. Hersi, Mr. Perez, and J.A. pleaded guilty to the above offences, but admitted in these proceedings the pertinent facts upon which their pleas were based.

[4] The Crown’s principal position is that O.W. was the second shooter. In the alternative, the Crown maintains that O.W. counselled the murder from afar and is therefore guilty of murder pursuant to principles of party liability. The defence concedes that the unknown shooter committed first-degree murder and attempt murder.

[5] The Crown’s primary theory is as follows. The deceased, O.W. and J.A. were at one time good friends. They had a falling out some weeks or months prior to the shooting. The exact timing of the rift is unclear, so too is its basis. There is no evidence before me regarding the precise nature of the conflict, but little dispute that the friendship between them had come to an end in the weeks or months leading up to the shooting.

[6] In the late evening hours of December 5, 2021, J.A. and O.W. were engaged in an intense argument with the deceased on Instagram Live, a forum viewable by other Instagram users….

[8] When Mr. Perez and the others returned to 1485 Caldwell Ave. with the truck, J.A. joined them. Mr. Perez then drove J.A. and the second shooter, who the Crown argues was O.W., to the area where the deceased was staying. After circling the neighbourhood numerous times, Mr. Perez parked the truck near the deceased’s residence. J.A. and the second shooter exited the truck and approached the deceased’s home on foot. J.A. and the second shooter entered the home through the front door seemingly with the assistance of an unknown third party inside the residence.

[9] J.A. and the second shooter went upstairs, kicked open the deceased’s bedroom door, and shot both the deceased and X.R. numerous times as they lay in bed. J.A. and the second shooter immediately fled the scene and ran back to the truck. Mr. Perez drove the two shooters back to 1485 Caldwell Ave. where they are seen on video footage entering the apartment complex through the backdoor. Mr. Perez and Mr. Hersi drove to Orleans to return the truck and then drove back to 1485 Caldwell Ave. Within 20 minutes of returning, Mr. Perez, Mr. Hersi, and O.W. made a rap video on Snapchat celebrating the murder.

[10] Most, if not all, of the above facts in terms of how the murder unfolded are not contested. The issue in this case is the identity of the second shooter….

[11] The Crown’s case is entirely circumstantial. There is no direct evidence linking O.W. to the shooting. The Crown relies on the fact that O.W. was with J.A. the day before the shooting on December 5, 2021, at 1485 Caldwell Ave. while J.A. was in possession of a handgun; O.W. was present at the same apartment complex at 1485 Caldwell Ave. with Mr. Perez both before and after the shooting; O.W. was observed on Instagram Live threatening the deceased with a firearm approximately four and a half hours before the shooting; and O.W. is seen celebrating with Mr. Perez and Mr. Hersi in a rap video made approximately two and a half hours after the shooting in the same apartment at 1485 Caldwell Ave. The Crown asserts that, when considered collectively, the above facts support no reasonable inference other than that O.W. was the second shooter.

[12] Effectively, the Crown rests its case on four main pillars: means, opportunity, motive, and post-offence celebratory conduct. I will address each in turn, though I appreciate that the evidentiary record must be viewed as a whole when determining whether the Crown has proven O.W.’s guilt beyond a reasonable doubt. The evidence cannot be assessed in a piecemeal fashion.

[14] There is no question that O.W. had both the means and the opportunity to commit the murder. Videos were tendered into evidence that show O.W. at 1485 Caldwell Ave. with Mr. Perez, Mr. Hersi, and J.A. both before and shortly after the shooting….

….Though not formally admitted, the defence did not seriously challenge that O.W. owned the phone on which the videos were found.

[18] O.W. is again depicted on video footage taken by cameras installed at 1485 Caldwell Ave. at 9:17pm on December 5, 2021. O.W. is seen leaving the building via the back entrance and returning not long after. Once again, though O.W.’s face is not visible in the footage, I am satisfied that it depicts O.W. because he is wearing the same clothing as described above. The video footage establishes that O.W. is still at the apartment complex heading into the late evening hours of December 5, 2021.

[19] O.W. is also seen at the same apartment at 1485 Caldwell Ave. after the shooting and with the individuals now confirmed to have been involved, J.A., Mr. Perez, and Mr. Hersi

[22] I have more to say on the celebratory nature of the video below when I discuss what it may add to the Crown’s case in terms of identifying O.W. as the second shooter. But, at minimum, the video is another piece of evidence demonstrating that O.W. was with those involved in the murder at the 1485 Caldwell Ave. apartment both before and shortly after the shooting. Further, it is another piece of evidence confirming that O.W. was in the same apartment complex from where the second shooter exited before the shooting and returned after the shooting.

[23] The evidentiary record before me clearly establishes that O.W. had both the means and opportunity to commit the murder and had a temporally close association with the other individuals known to be involved. With that said, the Crown fairly concedes that O.W. did not have exclusive opportunity. Put another way, there were other individuals inside the 1485 Caldwell Ave. apartment both before and after the shooting who were not involved in the deadly violence. However, the Crown still maintains, rightfully, that O.W.’s presence in the apartment and his association with J.A., Mr. Perez, and Mr. Hersi remains a piece of circumstantial evidence to be considered alongside the evidence as a whole.[Emphasis by PJM]

[26] At 11:50pm, Mr. Perez, Mr. Hersi, and a third male are seen via video footage leaving the apartment complex at 1485 Caldwell Ave. via the front lobby to go pick up the truck in Orleans. I am easily satisfied that the third male seen in the video footage leaving the apartment complex is the second shooter….

[27] The parties part ways, however, on whether this individual is O.W. Both agree that the quality of the video footage in the lobby and vestibule of 1485 Caldwell Ave. does not permit a Nikolovski identification….

[28]….The quality of the video footage from 1485 Caldwell Ave is simply too low to reveal anything reliable about the facial features of the second shooter.

[29]….the facial features of the third male as depicted in the footage do not render it more or less likely that O.W. was the second shooter.

[30] In addition, O.W. is not seen wearing any of the clothing worn by the second shooter in the videos taken of him both before and after the homicide, with one potential caveat that I discuss below regarding O.W.’s scarf. However, I find that the lack of connection between O.W. and the second shooter’s clothing does not undermine the Crown’s case. As a matter of common sense, I have no difficulty accepting that an individual planning to commit murder would change into darker, unrecognizable clothing, and then change back into their original clothing before taking numerous videos of themselves, with some being made available on social media.

[31]….I have watched the video footage repeatedly and at various speeds. In my view, the exact nature of the item covering the second shooter’s face is indiscernible. It could be the scarf. It could easily not be. I cannot tell with any degree of confidence.

[33] In summary, I find that the video footage of the second shooter leaving the apartment complex is neutral on the issue of identification other than establishing opportunity, i.e., that the second shooter left from and returned to the same apartment complex where O.W. was present both before and after the shooting.

Celebratory Video

[34] As noted above, at 6:09am on December 6, 2021, approximately three hours after the shooting, Mr. Perez, Mr. Hersi, O.W., and a fourth individual, “Shadow,” were depicted in a Snapchat rap video. Mr. Perez made the video within 20 minutes of arriving back at the 1485 Caldwell Ave. apartment. The Crown argues that O.W.’s participation in this video is further circumstantial evidence of his involvement in the homicide. I agree.

[37] I appreciate, however, that the video depicts a third party who was not involved in the murder. Shadow’s presence in the video drives home the point that O.W.’s participation is far from proof positive that he was the second shooter. At least one other person in the apartment who was not implicated in the murder also glorified and legitimized the violence. Nonetheless, O.W.’s apparent satisfaction following the killing remains relevant and serves as an additional piece in the Crown’s circumstantial case.

Motive and Animus

[38] This leads me to the related concepts of motive and animus, which together form the lynchpin and driving force of the Crown’s case. The Crown maintains that O.W. exhibited a fatal malice towards the deceased approximately four hours before the shooting, and that fact, when considered alongside the evidence of means, opportunity, and post-killing celebration, establishes O.W.’s guilt beyond a reasonable doubt. The Crown concedes that without the evidence regarding motive and animus, the remaining evidence in this case could not sustain a conviction. This was an imminently reasonable concession and one consistent with the Crown’s quasi-judicial role.

[39] The evidence of O.W.’s purported animus towards the deceased stems primarily from the evidence of Rebecca Guindon and to a much lesser extent the evidence of P.R. Ms. Guindon testified that while watching Instagram Live at approximately 11:00pm on December 5, 2021, she saw and heard O.W. threaten to harm the deceased while holding a handgun. The Crown contends that Ms. Guindon’s evidence establishes that O.W. was the “principal agitator” in the dispute, which renders his involvement as the second shooter the only reasonably available inference on the whole of the evidence

[40] For reasons given below, I find Ms. Guindon’s evidence unreliable. Overall, she was loose with her language, careless with details, and exhibited to some degree a bias against O.W. Though I appreciate that one would naturally hold a bias against the person they feel is responsible for taking the life of a loved one, and that this should not necessarily undermine their reliability or credibility as a witness, I am mindful of it in this case given other problems with Ms. Guindon’s evidence and memory. As a result, I approach her evidence with caution….

[41] Second, Ms. Guindon repeatedly made conclusory statements only for me to later discover that there was either little or no basis for them. For example, she testified that the Instagram Live argument was over “popularity and music.” This was an important question because the answer impacted the degree to which O.W. may have been driven to harm the deceased. But when asked moments later whether she was able to ascertain the subject matter of the argument from what the males were saying, she answered “no.” Therefore, Ms. Guindon was either conveying information about the argument that she received from someone else without so stating, or she was relying on unstated presumptions or assumptions.

[42] Further, when asked what she heard O.W. say on Instagram Live, she answered that O.W. said “he was going to shoot [the deceased]” and that “pretty much he would end [the deceased].” When asked if she could recall the specific words, she stated, “yes” but then was unable to recall them. The Crown initially sought to refresh Ms. Guindon’s memory but then abandoned that attempt. In cross-examination, Ms. Guindon, though in a moment of frustration, agreed that she may not have heard O.W. specifically threaten to shoot the deceased, and that she may have subconsciously added that detail to her narrative after learning that the deceased had been shot….

[43]….The problem is that Ms. Guindon did not disclose that she was paraphrasing or expressing her own interpretation of the words she heard or the conduct she observed. She was asked very specifically what she heard O.W. say to the deceased. Her response exemplifies either carelessness on her part regarding critical details of what happened or the susceptibility of her memory to tainting by other events that transpired after the shooting.

[44] The potential tainting of her memory is of particular concern because within hours of watching the Instagram Live session and before speaking with police, Ms. Guindon came into possession of an unrelated video depicting O.W. waving around what could have been a firearm. In her statement to the police, she describes O.W. as having possessed a firearm during the Instagram Live session. At the time of her interview, Ms. Guindon already knew that the deceased had been shot and she had spoken with at least three individuals regarding the shooting before she spoke with the police. Further, she conceded in cross examination that what she learned about the shooting after-the-fact may have influenced her memory of what O.W. said to the deceased during the Instagram Live session. This raises live concerns about whether her memory of O.W. possessing a firearm during the Instagram live session was similarly compromised by her having seen a different video that very morning of O.W. possessing a firearm.

[45]….The video was provided to the police by Ms. Guindon during her interview on December 6, 2021. The discreditable conduct application proceeded by way of a blended voir dire. The Crown asked Ms. Guindon when it was that she first received the video. She answered that she received it the evening befor the deceased’s death and that she gave it to the police after the shooting. The Crown then refreshed her memory with the statement she provided to the police on December 6, 2021. Ms. Guindon then testified that she received the video a week before the shooting. She then immediately contradicted herself and said that she received it on the night of the shooting and possessed it for about an hour before she gave it to the police.

[46] The Crown cross-examined Ms. Guindon pursuant to section 9(2) of the Canada Evidence Act. She agreed once again that she received the video a week before the shooting. However, for the second time she went on to contradict herself and state that she received the video right after she found out that the deceased had been killed.

[48] Fourth, Ms. Guindon contradicted herself on other occasions as well. She testified in crossexamination that she only followed the deceased on social media and did not follow the other males in the group. Later, in cross-examination, she stated that she followed many of the males on Instagram at the time. She offered no logical explanation for this obvious contradiction….

[51] Finally, Ms. Guindon appeared frustrated and exasperated at various times during what I found to be a relatively short, respectful, and fair cross examination. I appreciate that testifying can be a difficult experience for many, particularly in a serious case where emotions are running high. Just the same, I find that Ms. Guindon was not a focused witness who understood the seriousness of her role or the evidence she had to give. She answered questions quickly with little reflection and at times with evident irritation. To be clear, her manner of giving evidence is not dispositive of her credibility or reliability. But it is one additional factor that gives me pause among the other issues in her evidence.

[52] In summary, Ms. Guindon did not exhibit the hallmarks of a dependable witness. While none of the individual shortcomings in her evidence are, on their own, necessarily fatal to her reliability or credibility, their cumulative effect makes it, in my view, unsafe to rely on her account of O.W.’s conduct on Instagram Live without confirmatory evidence. This leads me to the evidence of X.R. and P.R. in relation to that issue.

[56] Notwithstanding the different narratives of P.R., Ms. Guindon and X.R. in relation to what occurred on Instagram Live, I accept that a heated exchange took place on Instagram Live between the deceased and O.W. and J.A. This is a commonality between the evidence of P.R. and Ms. Guindon, who had no opportunity to collude before speaking with the police. Further, the evidence of an Instagram Live argument having taken place is largely supported by J.A.’s later participation in the shooting. I find that X.R. spoke with the deceased before the argument with J.A. and O.W. unfolded which explains why he did not observe it.

[57] The difficulty for the Crown, however, is that neither X.R. nor P.R.’s evidence confirms or corroborates the evidence of Ms. Guindon in relation to O.W.’s conduct on Instagram Live; specifically, that he threatened the deceased with a firearm, or for that matter that he threatened him at all. Neither X.R. nor P.R. overheard O.W. threaten the deceased.

[60] As stated, I am willing to accept that there was an argument between J.A., O.W., and the deceased on Instagram Live that was heated in nature. But in terms of what exactly was said and by whom, I am unsure. Similarly, I have no reliable evidence before me regarding what the males were arguing about. Ms. Guindon testified that they were arguing over “music and popularity,” but she testified that her belief was not based on the words spoken. Without knowing more about the nature of the conflict, in my view, little can be safely inferred from the “why” regarding the “who.” I have no idea what the argument was about or who was primarily or exclusively involved. None of the witnesses watched the entire Instagram Live exchange. I cannot determine with any degree of confidence who may have been primarily motivated to harm the deceased.

Totality of the Evidence

[61] Given that the Crown relies exclusively on circumstantial evidence to prove identification, I must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the evidence or lack thereof is that O.W. was the second shooter: R v Villaroman, [2016] 1 S.C.R. 1000, at para. 30. Plausible counternarratives do not have to arise from proven facts but may stem from a lack of evidence as a reasonable doubt is one logically connected to the evidence or absence thereof: Villaroman, at paras. 28, 35; R v Lifchus, [1997] 3 S.C.R. 320, at para. 36.

[63] Though motive is not an essential element of the offence, it is a critical piece of the puzzle in the circumstances of this case. The Crown’s theory hinges entirely on a finding that O.W. was the “principal agitator.” I simply cannot make that finding on this evidentiary record given that I do not accept Ms. Guindon’s evidence on this point.

[66] In the end, I am satisfied that O.W. and J.A. were both upset with the deceased. That much is clear. Evidently, J.A. harbored a lethal animus towards the deceased. I do not know why. I do not know who else at 1485 Caldwell Ave. may have been upset with the deceased. I do not know who else may have participated on the Instagram Live session. No witness watched the entire exchange. I know at least one other person was willing to assist the shooters from inside the home where the deceased was staying. I do not know why. The gaps in the evidence significantly undermine what circumstantial inferences can be drawn regarding the identity of the second shooter. On the evidence I am willing to accept, J.A. could just as easily have been the driving force behind the shooting. In those circumstances, I cannot possibly be satisfied beyond a reasonable doubt that O.W. was the only person at 1485 Caldwell Ave. that would have been willing to assist him.

[68] As noted by the Court in Villaroman, at para. 38, the line between a “plausible theory” and speculation is not always easy to draw. The ultimate question is “whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty”: Villaroman, at para. 38. Here, that question must be answered in the affirmative given the uncertainty regarding O.W.’s role in the Instagram Live argument; the unknown strength of any animus he may have harbored against the deceased; and the potential involvement of others. While O.W. had the opportunity to commit the offence given his proven presence at 1485 Caldwell Ave. at the relevant time, so, too, did others. O.W. shamelessly celebrated the murder after-the-fact. So, too, did others who were not involved. What sets O.W. apart from those individuals is his supposed conduct on Instagram Live. However, I am not satisfied that he threatened the deceased with a firearm, or that he threatened him at all. Without that finding, particularly given the many gaps in the evidence, I cannot be satisfied beyond a reasonable doubt that O.W. was the second shooter.

Party Liability

[74] I am satisfied that O.W. played some role in the Instagram Live dispute. Beyond that, I know nothing about what happened on Instagram Live, why it happened, who else may have participated, or why the relationship between O.W. and the deceased originally broke down. I cannot find from the little I know regarding the conflict that the only reasonable inference to be derived from the evidence or lack thereof isthat O.W. counselled the homicide from 1485 Caldwell Ave.

Conclusion

[75] Without question, the orchestrated violence inflicted on the deceased and X.R. is as tragic as it is infuriating. The facts of this case expose a harsh and chilling reality: that there are those among us who would so ruthlessly and heartlessly take a young life, then openly revel in a perverted sense of triumph. Indeed, the rap video made shortly after the murder reflects a depth of inhumanity and depravity that defies my comprehension. J.A. and the second shooter shot an unsuspecting, unarmed, and defenseless young man as he lay in his bed. That constitutes nothing but a shameful, evil act fueled by profound cowardice.

[76] But the standard of proof beyond a reasonable doubt lies as a safeguard against wrongful convictions and must never yield to anger, sadness, or frustration. Decisions about guilt or innocence must be based solely on evidence and reason—not on emotional reactions to senseless violence. If people come to believe that convictions can be secured on insufficient evidence, their trust in the justice system’s integrity and fairness will erode.

[77] My sole responsibility in this proceeding is to determine whether the evidence presented by the Crown meets the high standard of proof required of it. I am not satisfied that it does for the reasons given.

[78] I find O.W. not guilty of both counts.

R v Grant and Scott, 2025 ONSC 3513

[June 12, 2025] Charter s.9: Reasonable Grounds for an Arrest [J.T. Akbarali J. ]

AUTHOR’S NOTE: Incomplete Investigation Undermines Arrest Grounds and Charter Authorizations

This case turned on whether police had sufficient grounds to arrest the accused for possession of a firearm, after observing him enter and exit the women’s washroom in a bar during a visible police entry. A gun was later found in a toilet tank, and while police had a general race-based description of a suspect, there was no forensic link connecting the accused to the firearm.

The central issue became the uncertainty around how much CCTV footage police actually reviewed prior to arrest. The Court found that, without clarity on what was viewed and over what timeframe:

“the investigation cannot be described as credible and compelling; it can be described as incomplete, and at risk of being impacted by tunnel vision.”

This investigative flaw had a domino effect—leading to the exclusion of evidence in subsequent judicial authorizations under the Charter, which ultimately dismantled the Crown’s case and led to acquittal.

Overview

[1] The defendants are charged with numerous offences related to their alleged possession of prohibited firearms, ammunition, prohibited devices and controlled substances.

[2] The defendants bring a Garofoli application seeking an order pursuant to s. 24(2) of the Charter excluding all evidence seized during the search of a residence at 301-2460 Weston Road, Toronto, and during the arrest and search of the defendant Mr. Grant on March 10-11, 2023 due to alleged breaches of the defendants’ rights under ss. 8 and 9 of the Charter. The defendants bring a supplementary Garofoli application for an order excluding the results of a search of the defendant Mr. Grant’s phone pursuant to a warrant. The Crown brings a Step 6 cross-application.

[4] These reasons address the Crown’s Step 6 cross-application and the defendants’ application and supplementary application.

The Little Hut Investigation

[6] Mr. Grant was a person of interest into an investigation concerning possession of a prohibited firearm at the Little Hut Bar and Grill. On November 6, 2022, a female complainant telephoned police and reported that a number of people in the bar were doing drugs and there was a gun. The complainant was uncooperative when police arrived and would not identify the people she called about other than to indicate they were all Black.

[7] Officers subsequently located a firearm in a toilet tank in the women’s bathroom at the Little Hut bar. A review of video surveillance showed Mr. Grant, who is Black, entering the women’s bathroom with his hand in his pocket, and emerging about ten seconds later. There is no evidence before me about how many others may have entered the women’s bathroom or about the time period in respect of which the police reviewed the CCTV footage. No forensic evidence linking the gun to Mr. Grant was found.

The CI Investigation

[8] Mr. Grant was the target of an investigation into possession of a prohibited firearm based on information obtained from a CI. This information was included in the residence ITO. Based on that ITO, the search of 301-2460 Weston Road was authorized.

[9] 301-2460 Weston Road was the home of the defendant Ms. Scott, and her young son. Police believed that Mr. Grant and Ms. Scott were romantically involved, and that Mr. Grant was connected to Ms. Scott’s unit. Whether there were reasonable grounds to believe there was a nexus between Ms. Scott’s unit and Mr. Grant is in dispute on these applications.

[10] As part of the CI investigation, Mr. Grant was surveilled by police and observed on two occasions getting into a silver Dodge Charger that was damaged on the back right passenger side. Omar Matthews was the driver and owner of the Charger.

The Discharge Firearm Investigation

[11] Mr. Grant was a person of interest in an investigation into the discharge of a firearm on March 4, 2023 at 1003-682 Warden Avenue. Police received an anonymous call about the discharge of a firearm at 11:05 pm and attended the address in question. They found firearm cartridges in front of unit 1003 and three bullet-sized holes in the front door of the unit.

[12] Surveillance video revealed two persons of interest attending the 10th floor just prior to the shooting and leaving immediately after. The persons of interest were captured on video arriving in a car, parking across the street from 682 Warden Avenue, and then departing in the same car.

[13]….A member of the Gun & Gang Task Force suspected that the vehicle of interest matched a vehicle associated with the CI Investigation, that is, the silver Dodge Charger with damage to the rear passenger side….

The Arrest of Mr. Grant

[15] In a search incident to arrest, police located a cell phone on Mr. Grant, and a key and fob with no markings on them indicating where they came from.

[16] Police officers attended 2460 Weston Road, about a ten-minute drive from the scene of the arrest, to freeze unit 301 while they secured a search warrant. Detective Tavares put the key seized from Mr. Grant into the lock of unit 301 and confirmed it fit, although the defendants dispute whether he confirmed it would operate the lock….

[18] A telewarrant was obtained permitting nighttime execution of the warrant. Police commenced the search sometime after 2:20 a.m. As a result of the search, police located a loaded prohibited semi-automatic firearm, another prohibited semi-automatic handgun with readily accessible ammunition, three overcapacity cartridge magazines, 400 grams of fentanyl and 48 grams of cocaine.

[21] The search of Mr. Grant’s telephone revealed photographs linking Mr. Grant to the phone, to Ms. Scott, to 301-2460 Weston Road, and to the contraband found on the search of 301-2460 Weston Road.

Issue One: Step 6 – Is the redacted residence ITO and judicial summaries of the redactions sufficient to permit the defendants to challenge the warrant?

[28] In R. v. Garofoli, [1990] 2 S.C.R. 1421, 1990 CanLII 52 (SCC), at para. 79, Sopinka J., for the majority, outlined the procedure to be followed where an affidavit in support of a search warrant contains information from a CI. Among other things, it requires that, when an affidavit that has been edited to remove information that could identify a CI does not leave enough unredacted material on which the Crown can support the authorization to search, the Crown may apply to have the trial judge consider so much of the excised material as is necessary to support the authorization.

[29] “The trial judge should accede to such a request only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. In this regard, a judicial summary of the excised material should be provided if it will fulfill that function”: Garofoli, at para. 79.

[30] To challenge the issuance of the warrant where the reasonable grounds for its issuance originate, at least in part, from information provided by a CI, the defence must be able to address whether the CI’s information is “compelling, credible, and substantially corroborated by independent police investigation”: R. v. Debot, [1989] 2 S.C.R. 140, at p. 1168; see also R. v. Crevier, 2015 ONCA 619, at para. 84. Each of these factors is not a separate test; rather, the totality of the circumstances must meet the standard of reasonableness. To some extent, weakness in one area may be compensated by strengths in the other two: Debot, at p. 1168.

[31] The Court of Appeal for Ontario summarized the procedure to employ on a Garofoli step six procedure in Crevier, at paras. 89-90 as follows:

Step six of Garofoli is an exceptional procedure, in that the trial judge sees and relies on information that has not been disclosed to the accused because of the need to protect informer privilege. This procedure arises in the pre-trial process, which does not go directly to the accused’s guilt or innocence. Yet, in many cases, the outcome of the challenge to the warrant will dictate the outcome of the trial and the accused must still be able to mount a sub-facial challenge to the warrant, as part of his or her right to make full answer and defence. The need to strike a balance between the interest of law enforcement, informer privilege, and the accused’s right to full answer and defence will result in a challenge that is less direct than it otherwise could be.

Faced with this reality, trial judges must strike an appropriate balance so as to ensure the accused’s right to full answer and defence is adequately protected. This is done by preparing a carefully-crafted judicial summary and giving appropriate weight to the redacted details that were not directly challenged. With respect to the judicial summary, the trial judge must be satisfied that the summary, together with other information available to the accused, provides the accused with enough knowledge of the nature of the redactions to be able to challenge them in argument or by evidence. To the extent that the accused is not sufficiently equipped to challenge certain redactions, the trial judge must not consider them. For the redacted information the trial judge does consider, he or she will, when determining the weight to be given to that information in deciding whether the warrant could have issued, take into account that the accused could not see it and directly challenge it. In my view, step six of Garofoli must implicitly include these protections for a proper balance to be achieved.

[32] The procedure envisions the defendants using the judicial summaries, the redacted ITO, the disclosure received, and any cross-examination of the affiant and evidence tendered, to mount a facial or a sub-facial attack on the warrant, both in argument and by evidence: Crevier, at paras. 72, 73, 76, 77.

[33] The defendants need not be aware of the redacted details, but only of the nature of the redacted details: Crevier, at para. 72.

[35] The Court of Appeal, at para. 84 in Crevier, identified the following factors that may be relevant where CI information is involved:

a. The source of the CI’s information (first-hand or hearsay, and if hearsay, the source of the hearsay)

b. The CI’s relationship with or to the defendant and how they first came into contact;

c. The length of time the CI has known the defendant and the frequency of contact between them;

d. Whether the CI has previously provided information to police, and whether such information, if any, has led to arrests, seizures, or convictions;

e. Whether past information provided by the CI has been proven unreliable or false;

f. Whether the CI has a criminal record and if so, whether the unredacted ITO contains details of the convictions or charges or whether a copy of the criminal record was appended;

g. Whether the CI has convictions for offences of dishonesty or against the administration of justice;

h. The CI’s motive for speaking to police, including whether consideration was sought or arranged;

i. Whether the CI was instructed on the penalties for giving false information;

j. Whether descriptions provided by the CI match the accused or the target location;

k. The degree of detail of the information that the CI provided to police;

l. The recency or timing of the information that the informer provided to police;

m. Any discrepancies between the information of one CI and another;

n. Any aspects of the CI’s information that are contradicted by police investigation or otherwise detract from its credibility;

o. Any errors or inaccuracies that exist in the ITO and their nature.

[37] Whether the CI is credible may be considered having regard to the following factors, identified in R. v. Farrugia, 2012 ONCJ 830 at para. 107:

a. Has the CI previously given information to the police that proved to be reliable? How often and over what time period? In what types of cases? Have there been any instances where the CI’s information was shown to be unreliable?

b. Does the CI have a criminal record, and if so, are there entries for offences of dishonesty or against the administration of justice?

c. Does the CI have an interest in the outcome of the investigation? Is there any apparent motive to fabricate? Is the CI receiving any benefit in exchange for the information?

[38] In my view, the information in the possession of the defence is sufficient to allow them to challenge the credibility of the CI. They are aware from the redacted ITO and judicial summary of the following:

a. The motivation of the CI to provide information was disclosed to the issuing judicial official.

b. The CI has no personal vendetta against Mr. Grant.

c. The CI has previously provided information to the police, and has been proven reliable. Information previously provided by the CS was corroborated, and proven to be accurate.

d. Elsewhere in the ITO, information was disclosed to the issuing judicial official about previous information provided to police by the CI, whether that information was corroborated, and if so, the means by which it was corroborated, and the result of the information provided.

e. Whether the CI has a criminal record, and if so, the details of that record were disclosed to the issuing judicial official.

f. If the CI has a criminal record, none of the convictions are for crimes of deceit

[39] Whether the information is compelling may be informed by considering factors such as the following, described in R. v. Farrugia, 2012 ONCJ 830, at para. 105

a. Is the CI’s information based on first-hand knowledge or is it hearsay? If hearsay, has the CI identified the original source and to what extent can that source be independently assessed as reliable?

b. Is the information commonplace and thus widely known and easily ascertainable, or does the information by its nature suggest the CI has knowledge of criminal activity by the target?

c. Is the information specific and precise or is it limited to conclusory allegations of criminal conduct? Has the CI provided details of a type that, from a common sense perspective, lend confidence that the information is based on more than rumour, coincidence, error, or falsehood?

d. How often and over what period of time has the CI had the opportunity to acquire information about the target?

e. Is the information current?

[40] In my view, the defendants have sufficient information to challenge whether the information provided by the CI is compelling. They are aware of the following:

a. The date on which the handler was advised by the CI about information pertaining to a male identified as “Dirty” (later identified by the CI to be Mr. Grant from a photograph) who is armed with a firearm was disclosed to the issuing judicial official.

b. Firsthand information as to how the CI was aware that Dirty has a gun was disclosed to the issuing judicial official, and whether the information is specific, general or detailed was disclosed to the issuing judicial official. At least some of the information was specific.

c. Other information about Dirty’s possession of a firearm was disclosed to the issuing judicial official, but it is unclear whether the information is firsthand or secondhand information.

d. Details about Dirty’s community and how he engages with others in the community were disclosed to the issuing judicial official, but it is unclear whether the information is firsthand or secondhand.

e. Details about the defendant Ms. Scott, identified as Dirty’s girlfriend, was disclosed to the issuing judicial official, some of which it is not clear whether it is firsthand or secondhand. Some of the information is secondhand.

f. Subsequently, the CI identified Ms. Scott as Dirty’s girlfriend from a photograph.

[41] When considering whether the information provided by the CI was corroborated, the following questions, set out in Farrugia, at para. 110, are relevant:

a. Have the police verified only commonplace details or innocent conduct of which almost anyone could be aware, or have they acquired information that tends to confirm behaviour with enough distinctive features to remove it from the realm of the ordinary or everyday?

b. Does the information gathered by the police conform sufficiently to what one would have anticipated based on the CI’s information, such that the possibility of coincidence, mistake, or falsity is reduced to a degree that is tolerable in the context of the reasonable grounds standard?

[42] The defendants point out that there are a number of redactions relating to police corroboration of information provided by the CI. They are aware of the following information:

a. Specific address(es) and name(s) in relation to location(s) information provided by the CI were disclosed to the issuing judicial officer.

b. Police located a female named Sade Scott, residing at 301-2460 Weston Road, and confirmed her birth date, her vehicle, and located a photograph and were able to confirm the photograph matched the description of Ms. Scott provided by the CI.

c. Police confirmed the vehicle they had linked to Ms. Scott was parked at 2460 Weston Road.

d. The affiant notes in the ITO that the address of 301-2460 Weston Road has no relation to Mr. Grant, and Mr. Grant and Ms. Scott have no occurrences on file together with the Toronto Police Service.

e. Detective Taylor attended 2460 Weston Road on February 14, 2023 to speak with property management, who advised him that Ms. Scott is the listed occupant of Unit 301.

f. Detective Taylor recorded that the property manager advised him that Ms. Scott lived in the unit with her son named Eric Terrance Grant. Detective Taylor did not see the lease for Unit 301 at that time. It appears the child’s name is actually Eric Terrance Graham Scott.

g. “Staff,” whose identities Detective Taylor did not record at the time of his visit on February 14, 2023, advised that they believed that Mr. Grant, Ms. Scott, and the child reside at the unit, and that Mr. Grant is the father of the young boy. The word “believe” was omitted in the ITO. Detective Taylor did not obtain information about “staff’s” positions, how long they held them, or why they would be in a position to know where Mr. Grant resides or whether he is the child’s father.

h. Detective Taylor obtained video access to CCTV footage and reviewed it for corresponding times that the fobs registered to unit 301 were used. A review of the footage between January 1 and February 7, 2023 did not reveal a single observation of Mr. Grant.

i. Police conducted database checks of Mr. Grant and learned through an MTO search that the home address on Mr. Grant’s driver’s licence is an address on John Deisman Blvd. in Maple, Ontario.

j. Mr. Grant was released on a then-current undertaking in connections with charges that were then-pending in Peel Region. The police were aware that the undertaking listed the same address on John Desiman Blvd. but that information was not included in the ITO.

k. No surveillance was done with respect to the John Deisman Blvd. address.

l. On the day of his arrest, Mr. Grant was seen leaving 2460 Weston Road, a highrise. He was not seen leaving from any particular unit. That was the only time Mr. Grant was observed at 2460 Weston Road during surveillance.

m. During the search incident to Mr. Grant’s arrest, police located a key and fob, unmarked. Detective Tavares testified that the fob opened the common door to 2460 Weston Road, and that the key fit into the lock of unit 301, and fit the lock. Detective Tavares testified he jiggled the key enough to confirm it worked the lock, but he did not unlock the door with the key.

n. The ITO seeks judicial authorization to search the “dwelling-house” of Mr. Grant, although the only police investigation done did not independently confirm that Mr. Grant resided at 301-2460 Weston Rd. At the time the police sought judicial authorization to search 301-2460 as Mr. Grant’s dwelling-house, they had an….

[43] I am cognizant that there are paragraphs that are entirely redacted that speak to the police’s efforts to corroborate the CI’s information. In my view, the information listed above is sufficient to enable the defendants to challenge the police’s corroboration of the CI’s information. In fact, they have done so ably

[44] In conclusion, I grant the Crown’s Step 6 cross-application because I am satisfied that considering all the information available to the defendants, they are able to challenge the residence warrant notwithstanding the redactions in the ITO.

Issue Two: Was the arrest of Mr. Grant a violation of s. 9 of the Charter?

[45] Mr. Grant was arrested without a warrant. The Crown argues that the arrest was justified based on the Little Hut investigation and, independently, based on the CI investigation.

[49] Reasonable and probable grounds is a higher standard than reasonable suspicion; it requires a reasonable probability of crime. It does not require a prima facie case for conviction before making an arrest. The standard requires an objective basis for the belief that an individual is connected to the offence which is based on compelling and credible investigation: Beaver, at para. 72.

[50] In R. v. Morelli, 2010 SCC 8, at para. 128, the Supreme Court of Canada described the standard as “the point where credibly-based probability replaces suspicion.”

Were there reasonable and probable grounds to arrest Mr. Grant in connection with the Little Hut investigation?

[59] Detective Taylor was aware that on November 6, 2022, Mr. Grant was observed at the Little Hut bar, where it was alleged that Mr. Grant had discarded a firearm in the toilet of a bathroom. Detective Taylor did not recall reviewing any documents pertaining to the Little Hut investigation, nor any occurrence reports. At the time he arrested Mr. Grant, he explained his information was that when officers entered the Little Hut bar, Mr. Grant was seen walking hurriedly to a bathroom that he thought was the women’s bathroom, and that he returned shortly thereafter. Subsequently, a searched yielded a firearm in a toilet tank in that bathroom.

[60] Detective Taylor did not review any surveillance video from the Little Hut himself. When asked if it was possible that Mr. Grant was not seen by police going into the bathroom, but that he was spoken to at the Little Hut bar and then released, and only after that was he seen on CCTV footage going into the bathroom, Detective Taylor agreed. He indicated Detective McEvoy knows Mr. Grant personally, and had made direct observations of him that night at Little Hut. He agreed the CCTV showed Mr. Grant going into the bathroom when the police entered the premises.

[62] The incident at the Little Hut bar was on November 6, 2022, over four months prior to Mr. Grant’s arrest. Detective Taylor indicated that he understood Mr. Grant had not been arrested in connection with the Little Hut investigation in the interim because Detective McEvoy’s team was investigating the matter and trying to track down witnesses. He indicated that Detective McEvoy got to the point where he had done all he could on his front and sought the assistance of Detective Taylor’s team to effect the arrest.

[63] Detective Taylor did not ask Detective McEvoy any questions about how much surveillance video his team had watched from the Little Hut incident, or how many people had gone into the bathroom where the gun was found. He was not aware of any forensic evidence associating the firearm to Mr. Grant. Detective Taylor indicated he thought Detective McEvoy was still trying to locate witnesses, but that did not cause him concern about the grounds for the arrest; he has known Detective McEvoy a long time, and is confident Detective McEvoy knows what he is doing.

[64] I accept that Detective Taylor honestly believed Mr. Grant had committed the firearms offence related to the Little Hut investigation, based on the information from Detective McEvoy that Mr. Grant was arrestable for the offence.

[65] The problem is that Detective McEvoy did not convey much to Detective Taylor in the way of facts (whether correct or not) to support a conclusion that Mr. Grant was arrestable for the offence. He conveyed the conclusion that Mr. Grant was arrestable for it.[Emphasis by PJM]

[66] When considering whether the objective branch of the test is met, I note the following:

a. A report came to police that there was a gun at the Little Hut bar, and the person who had it was Black;

b. Mr. Grant is Black. So are lots of other people.

c. No one identified Mr. Grant as the person who had the gun. The person who called to report the gun was not cooperative.

d. A gun was found in the women’s bathroom in a toilet tank.

e. The police saw Mr. Grant at the Little Hut bar when they arrived.

f. Mr. Grant was seen on video footage entering the women’s bathroom at the Little Hut bar with his hand in his pocket and then leaving about ten seconds later.

g. There is no evidence about how much video footage the police watched, or how many other people entered the bathroom.

h. Police were attempting to locate and interview witnesses after the incident, but there is no evidence that they ever succeeded in doing so.

i. No forensic evidence connected the gun to Mr. Grant[Emphasis by PJM]

[67] Considering the cumulative effect of all of the evidence, I find that while there may have been a reasonable suspicion that Mr. Grant was connected to the firearm found in the women’s bathroom at the Little Hut bar, that suspicion cannot be elevated to reasonable and probable grounds. Evidence about how much video footage was watched and what else it might have revealed would be key to determining whether the facts that were reasonably believed at that point in time could give rise to a reasonable probability that Mr. Grant was connected to the firearms offence.[Emphasis by PJM]

[68] Without having information about what else was observed on the video footage and over what period of time, the investigation cannot be described as credible and compelling; it can be described as incomplete, and at risk of being impacted by tunnel vision…. [Emphasis by PJM]

[69] I am also troubled by Detective Taylor’s lack of notes about his conversation(s) with Detective McEvoy. I have difficulty relying on his independent recollection of that conversation(s), given his evidence on cross-examination that Mr. Grant was seen walking hurriedly to a women’s bathroom when police entered the establishment. His recollection was wrong; Mr. Grant was observed entering the bathroom on CCTV footage.

[72] I thus conclude that there were no objective reasonable and probable grounds known to Detective Taylor on March 10, 2023 to permit the warrantless arrest of Mr. Grant in connection with the Little Hut investigation.

Were there reasonable and probable grounds to arrest Mr. Grant on March 10, 2023 in connection with the CI investigation?

[73] At the time Detective Taylor arrested Mr. Grant in connection with the CI investigation, he was aware of the following:

a. A CI with a history of providing reliable information had provided confidential information, some of which was first-hand, some of which was specific, indicating that Mr. Grant was in possession of a firearm. He was aware of information provided by the CI, and disclosed in the ITO, which I cannot record here to protect informer privilege.

b. The CI identified Mr. Grant as the person about whom he was giving information from a photograph.

c. The CI’s information was at least a month old.

d. Mr. Grant has a lengthy criminal record spanning from 1999 to 2018, including convictions for firearms offences. The most recent conviction related to firearms dates to 2005. Mr. Grant has a conviction for possession of a weapon from 2018.

e. Mr. Grant had then-pending charges in Peel relating to possession of schedule I substances and possession for the purposes of trafficking and distributing.

f. Detective Taylor was aware of the Little Hut investigation and the discharge firearm investigation.

[74] As I have noted, the information provided by a CI must be evaluated to determine if it is credible, compelling, and corroborated. The “three C’s” inform reasonable and probable grounds, not just for a search, but for a warrantless arrest. I addressed the content of the three C’s above in my discussion of the step 6 cross-application and do not repeat it here.

[75] I am satisfied that the CI is a credible source. As is clear from the vetted ITO and the judicial summaries, the CI has no criminal record in relation to crimes of deceit, and has no vendetta against Mr. Grant. The motivation of the CI to provide the information is set out in the unredacted ITO and in my view, does not detract from the CI’s credibility. Moreover, and importantly, the CI has a track record of providing information that has proven to be accurate and that has been corroborated by police.

[76] I am also satisfied that the information provided by the CI is compelling. It includes firsthand information about how the CI was aware that Mr. Grant had a gun, and when and where it was seen. At least some of the firsthand information about Mr. Grant’s possession of a firearm was specific. However, I agree with the defendants that it is clear that the information obtained from the CI about Mr. Grant’s possession of a firearm was at least a month old, which attenuates its compelling nature.

[77] Corroboration is the more difficult hurdle. Hearsay statements of a CI can provide reasonable and probable grounds to justify a search, but evidence of a tip from a CI, by itself, is insufficient to establish reasonable and probable grounds: Garofoli, at para. 59.

[78] The defendants argue, and I agree, that there is no corroboration of the suggestion that Mr. Grant may have been currently in possession of a firearm apart from any reliance on propensity reasoning. That propensity reasoning could arise from three separate bases.

[79] First, it could arise based on Mr. Grant’s past firearms offences, which, as I have noted, date most recently from 2005.

[80] Second, it could arise from what Detective Taylor testified that he knew (but did not record) about the Little Hut investigation. I have already determined that there were no objective reasonable and probable grounds to arrest Mr. Grant in connection with the Little Hut investigation….

[81] Third, it could have arisen from what Detective Taylor knew about the discharge firearm investigation. For reasons that I explain below in the context of the challenge to the warrant issued following the cell phone ITO, Mr. Grant’s connection to the discharge firearm offense was speculative at best.

[82] I thus conclude that to the extent police engaged in propensity-based reasoning, the information which led them to do so was not compelling; it was dated, and some of it was only tenuously connected to Mr. Grant. It does not corroborate the CI’s information.

[84] The defendants raised issues about the efforts undertaken by police to corroborate information the CI provided about Ms. Scott, and her connection to Mr. Grant. As I have noted, the police attempted to corroborate the connection between Ms. Scott and Mr. Grant, and their connection to unit 301-2460 Weston Road. Much evidence was led on this issue. Of note:

c. Detective Taylor recorded in his notes that “staff” (whose names, positions, or length of tenure he did not record) told him that they believed Mr. Grant resided with Ms. Scott and the child at unit 301 and that Mr. Grant was the father of the child.

[85] Thus, the only corroboration of the CI’s information linking Mr. Grant to Ms. Scott comes from the unnamed “staff.” According to Detective Taylor, after his visit to 2460 Weston Road, he left believing he had “hit a roadblock.” He testified that at this point in the investigation, he felt they were not close to having grounds, and he did not see a warrant being granted based on what police then had. Although he is an experienced detective, he did not attempt to record the contact details of “staff,” their positions, how long they had worked there, or make any effort to assess how reliable their belief about Mr. Grant residing at unit 301 would be having regard to their opportunity to know whether he lived there.

[87] That is not to say there is no corroboration of information provided by the CI. As the judicial summary explains, the affiant notes relating to corroboration of information received from the CI relating to Mr. Grant’s possession of a firearm and relating to Ms. Scott include redactions described as:

a. Disclosing specific address(s) by the affiant in relation to location(s) information provided by the CI;

b. Disclosing specific name(s) of a location by the affiant in relation to location(s) information provided by the CI; and

c. Disclosing specific name(s) of location(s) and address(s) by the affiant in relation to location(s) information provided by the CI. The affiant also describes the source of his knowledge of these location(s) and address(s).

[88] In addition, the police investigation corroborated Ms. Scott’s association with unit 301, and corroborated that Ms. Scott’s appearance matched that provided by the CI.

[89] I conclude that the CI’s information was only minimally corroborated, and in my view, corroboration was not exclusively, but mostly, limited to generic information that is widely known.

[90] As I have noted, it is the totality of the circumstances that must be evaluated, and weakness in one area (corroboration) may be compensated to a degree by strengths in the credibility of the CI, and the compelling nature of the CI’s evidence.

[91] While I accept that the CI’s information was credible and compelling, I find that it was incumbent upon the police to do more to corroborate it. I conclude that, with respect to the CI investigation, the police had grounds to suspect Mr. Grant was involved in firearms offenses, but they had not yet reached the point where “credibly-based probability” replaced their suspicions.

Conclusions regarding the Lawfulness of the Arrest of Mr. Grant and Search Incident to Arrest

[93] I thus conclude that the arrest of Mr. Grant on March 10, 2023 was done without reasonable and probable grounds, and a result was a violation of his s. 9 Charter rights.

Issue Three: Review of the Judicial Authorization to Search 301-2460 Weston Road

[103] I have already largely analyzed the CI’s information that was available to justify the issuance of a warrant to search 301-2460 Weston Road, because it is the same information on which the arrest of Mr. Grant in connection with the CI investigation was based. There are, however, two differences of note which I address below. And the challenge to the warrant must be undertaken within the parameters I have identified, according deference to the issuing judicial official. It must include consideration of whether there were reasonable and probable grounds to believe that a firearm would be found at the unit at the time of the search. As a result, my conclusion on the warrant need not mirror my conclusion on whether there were reasonable and probable grounds for Mr. Grant’s arrest.

[104] The first difference in considering the reasonable and probable grounds for the search of 301-2460 Weston Road is that the corroboration of the CI’s information linking Mr. Grant to the unit up to the point of his arrest was exceptionally weak. I note the following:

a. Police had confirmed that Ms. Scott resided in 301-2460 Weston Road.

b. Police had confirmed that Ms. Scott’s child resided in 301-2460 Weston Road. They believed his last name was “Grant,” although this turned out to be incorrect, and was not verified by viewing the documents the property manager referred to when advising Detective Taylor about who lived in the unit.

c. The police had confirmed that Mr. Grant was not listed as a tenant in unit 301.

d. Mr. Grant was not seen on over a month’s worth of CCTV footage even once using a fob registered to unit 301 to enter the building.

e. Mr. Grant was seen on only one occasion – the day of his arrest – at 2460 Weston Road.

f. 2460 Weston Road is a highrise with multiple units.

g. Although the ITO indicates that, on arrest, “members returned to the known address of 301-2460 Weston Road where Mr. Grant was observed exiting,” in fact officers never observed Mr. Grant exit from the unit, but only the building.

h. “Staff” told Detective Taylor they believed Mr. Grant resided in the unit and that the child was his son. The ITO included this information but omitted the word “believed,” instead presenting the information as if staff confirmed it.

i. After learning from “staff” of their belief, Detective Taylor, an experienced officer, concluded that police were at a roadblock and did not have the grounds to obtain a warrant to search the unit. He did not bother to record the names of staff who shared their belief with him.

j. No information was obtained from staff to allow police or the issuing judicial official to evaluate the reliability of staff’s belief, such as their positions at 2460 Weston Road, the length of time they had worked there, or why they would know about Mr. Grant’s residence or the child’s parentage.

[105] Another difference is that on Mr. Grant’s arrest, the search incident to arrest located a fob and key that were unmarked. Detective Taylor directed Detective Tavares to take other officers with him to unit 301-2460 Weston Road to freeze the unit. Detective Tavares testified that he used the fob to enter 2460 Weston Road, and that he fit the key into the lock of unit 301. He testified that he jiggled the key to make sure it would operate the lock without fully unlocking door, and then knocked on the door.

[106] Thus, by the time the affidavit was sworn, the police had information that Mr. Grant possessed keys to unit 301. The keys were found in a search incident to the arrest I have concluded was in breach of Mr. Grant’s Charter rights. An unlawful search cannot furnish the requisite grounds for a search warrant: R. v. Zacharias, 2023 SCC 30, at para. 30. The information about the keys and fob should thus be excised from the ITO.

[108] For there to have been a basis for the issuing judicial official to grant the warrant, there had to be a basis to conclude that there was a link between Mr. Grant and unit 301 sufficient that it is reasonable to believe that Mr. Grant might keep his firearm there, and it would be found there at the time of the search: Morelli, at para. 40. In my view, once we excise from the affidavit the assertions that 301-2460 is Mr. Grant’s dwelling-house, that he is the father of Ms. Scott’s child, that he was seen exiting unit 301, and that staff reported that Mr. Grant resided in unit 301, as opposed to reporting their belief that he did, and that he was arrested with keys to the unit, the link between Mr. Grant and unit 301 is too tenuous to support a reasonable belief that his firearms would be found at the search location at the time of the search. That he was seen exiting the highrise on one occasion is not sufficient to overcome a month’s worth of video footage in which he is not seen using the fob a single time, the failure to take any steps to confirm whether he resided at the address in Maple, and the gap of at least one month from the CI’s information reaching police to the time of the search.

[109] I thus grant the challenge to the warrant to search 301-2460 Weston Road, and find that the search of it was a violation of s. 8.

Issue Four: Was the warrantless entry into the unit to freeze it pending the issuance of a search warrant reasonable?

[116] Whether exigent circumstances exist is a case-specific enquiry; exigent circumstances do not arise from general concerns. As the British Columbia Court of Appeal held in R. v. Pawar, 2020 BCCA 251, at paras. 63-66, there is always a theoretical risk when a public arrest is made that evidence may be moved or destroyed. In Pawar, there was nothing that raised the risk from the general to the particular. The British Columbia Court of Appeal held that if exigent circumstances existed in that case, they would exist in every case of a similar kind, “and warrantless entries into private dwelling-houses to preserve the scene would become the rule, not the exception”: Pawar, at paras. 63-66.

[117] The evidence in this case is clear that the police entered 301-2460 Weston Road several times before the warrant was obtained, including one occasion where two officers followed Ms. Scott as she opened drawers and closets to remove things for herself and her son so they could go elsewhere for the night.

[123] The situation in this case is thus like that in Pawar: the police held general concerns about the loss of evidence that were not specific to this case. Anytime there is a public arrest, it is possible that someone who becomes aware of it and knows there is contraband in a given location may take steps to have the contraband destroyed or moved before the police can search the location. I agree with the court in Pawar that if general concerns were enough, warrantless searches would be the rule, not the exception. In my view, something more was required to justify a warrantless search in this case, even recognizing it was only for the purpose of securing the unit pending the issuance of a warrant.

Issue Six: The Review of the Judicial Authorization to Search Mr. Grant’s Phone

[142] Defendants’ counsel argued, and the Crown did not dispute, that if the discharge firearm ITO was successfully challenged, it follows that the cell phone ITO is also not based on reasonable and probable grounds. I agree.

[143] If the cell phone ITO is excised to remove the results of the search following the warrant issued based on the discharge firearm ITO, the substance of the grounds to believe the phone will have relevant information on it is significantly reduced. All that remains are the results of the search of unit 301-2460 Weston Road, which I have found to have been conducted in violation of s. 8 of the Charter.

[144] I thus conclude that the search of Mr. Grant’s cellphone was a violation of s. 8 of the Charter.

Issue Seven: What is the appropriate remedy for the Charter violations?

The Seriousness of the Breach

[154] In this case, when considering the seriousness of the state conduct, I note the following:

a. I accept that the police did not act in bad faith in arresting Mr. Grant in connection with the Little Hut investigation, and in seeking a warrant to search 301-2460 Weston Road and Mr. Grant’s cell phone.

b. However, the police were not sufficiently diligent in corroborating the information provided by the CI, and in particular as it relates to the nexus between Mr. Grant and 301-2460 Weston Road.

c. Nor was there sufficient investigation undertaken to justify the arrest of Mr. Grant for the Little Hut investigation. I am troubled by the fact that Detective Taylor has no notes of the grounds on which Mr. Grant was thought to be arrestable for the Little Hut investigation, which in my view reflects a casual attitude to a serious action by police – depriving Mr. Grant of his liberty through his arrest.

d. I am troubled by aspects of the residence ITO. Even allowing for the fact that police are lay-drafters and not expected to draft documents as a lawyer would, the ITO contained exaggeration and was misleading in certain aspects, including: (i) by identifying the location to be searched as Mr. Grant’s residence when that was not corroborated; and (ii) suggesting that police had seen Mr. Grant emerge from unit 301 when they had not.

e. I am very troubled by the discharge firearm ITO, which links Mr. Grant to the discharge firearm offence based on next-to-nothing.

f. I am thus not satisfied that the officers met their duties when seeking the warrants to search the phone in connection with the discharge firearm investigation or the search of 301-2460 Weston Road.

[155] Overall, I conclude that the police adopted a lackadaisical approach to the investigations involving Mr. Grant. They had compelling and credible information from a CI, but they did not do with it what they needed to do to conduct the investigation in a Charter-compliant manner. In the process, they cut corners, at the expense of Mr. Grant’s and Ms. Scott’s Charter rights.

[156] I conclude that the state conduct falls towards the serious end of the spectrum. The court should be concerned with dissociating itself from careless police work that casually breaches Charter rights. This branch militates in favour of exclusion of the evidence.

The Impact of the Breach on the Charter-protected interests of the defendants

[162] In this case, the Crown concedes that, if a breach is found in relation to the search of unit 301-2460 Weston Road, the impact of the breach would be significant. This is a fair concession, in view of the jurisprudence that clearly identifies an unwarranted search of a person’s home as a breach with a significant impact on a person’s Charter rights.

[164] The jurisprudence also supports the conclusion that the unwarranted search of Mr. Grant’s cell phone had a significant impact on Mr. Grant’s Charter rights.

[176] Given the seriousness of the state conduct, and the profound impact of the other breaches resulting in the search of 301-2460 Weston Road and Mr. Grant’s cell phone, I conclude that s. 24(2) requires the exclusion of the evidence located during the search of the unit and the cell phone.

[177] With respect to the search incident to the unwarranted arrest of Mr. Grant in particular, given its character as part of a pattern of Charter violations in this case, the cell phone (but not the search of its content) and the keys and fob to unit 301-2460 Weston Road must also be excluded, notwithstanding the arguably more minor impact of the unconstitutional search incident to arrest on Mr. Grant’s interests.

Summary

[178] I conclusion, I make the following findings:

g. The evidence obtained from the search of Mr. Grant incident to arrest, the search of 301-2460 Weston Road and the search of Mr. Grant’s cell phone must be excluded under s. 24(2) of the Charter.

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Pawel is a partner at Sitar & Milczarek. When he’s not litigating he writes the Defence Toolkit blog.

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Overview

Issue One: Step 6 – Is the redacted residence ITO and judicial summaries of the redactions sufficient to permit the defendants to challenge the warrant?

Issue Two: Was the arrest of Mr. Grant a violation of s. 9 of the Charter?

Issue Three: Review of the Judicial Authorization to Search 301-2460 Weston Road

Issue Four: Was the warrantless entry into the unit to freeze it pending the issuance of a search warrant reasonable?

Issue Six: The Review of the Judicial Authorization to Search Mr. Grant’s Phone

Issue Seven: What is the appropriate remedy for the Charter violations?

Summary

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