R. v. Day, 2026 ONSC 2274
Background
Mr. Day was charged with aggravated assault in June 2023. On the night of the alleged offence, Mr. Carron, who was a friend of Mr. Day, was a visitor at his home along with several others. Mr. Carron was intoxicated and asked to leave by multiple people. Upon leaving, Mr. Carron stabbed Mr. Day’s mother in the throat in the front porch of the residence. Her common law-spouse and Mr. Day physically assaulted Mr. Carron after seeing the stabbing, leaving him in critical condition with extensive facial trauma.
Police were called by a neighbour who witnessed the disturbance. Officers located Mr. Carron, who was breathing but unresponsive, as well as Mr. Day’s mother, who had sustained a life-threatening stab wound to her neck. Both the common law-spouse and Mr. Day were arrested for aggravated assault. An iPhone was seized from Mr. Day approximately three hours after the alleged assault and a search was conducted. Several allegedly incriminating text messages about the incident were obtained.
The accused brought an application to exclude the evidence located on the cellphone on the basis that the evidence in support of the warrant was insufficient. Mr. Day argued that absent evidence showing he or any other individual used the seized iPhone, the affiant relied on speculation that persons engaged in criminal activity typically use their phones in a manner that captures relevant evidence.
Credibility Based Probability
A search warrant can only be granted if, on the basis of sworn evidence, the court is satisfied there are reasonable grounds to believe that, in the specified place, there is (a) evidence with respect to the commission of an offence, (b) information on the whereabouts of a person who is believed to have committed an offence, or (c) offence-related property.
Reasonable and probable grounds is assessed on the standard of “credibility-based probability” and requires the issuing justice to determine whether the Information to Obtain (“ITO”) sets out sufficient information to provide reasonable grounds to believe that an offence has been committed, and a reasonable probability that evidence of the offence will be located.
Common Sense Inferences
The Court agreed with the accused that there was no direct evidence that Mr. Day, or anyone else, used the seized iPhone before or after the Incident. Nevertheless, the Court was satisfied that the issuing justice was entitled to draw an inference from details in the ITO that the device was used at a time and in a manner such that it would contain evidence relevant to the offence, including that:
(a) Day was a 19-year-old teenager at the time;
(b) Carron, along with the others, remained inside the residence for a span of roughly 6-10 hours before the incident;
(c) During their time at the residence, Mr. Carron was intoxicated and belligerent, making threats of violence, including to stab individuals;
(d) After the incident, Mr. Day and his mother’s common law spouse were dispersed across the front porch and parking lot area before police arrived;
(e) The common law spouse was arrested approximately 2 hours after the incident;
(f) Day accompanied his mother to the hospital and was arrested there, approximately 3 hours after the incident; and
(g) Day spoke to an officer at the scene about the incident and then later provided a full videotaped statement.
Taking the above into account, the Court found it “difficult to accept” that Mr. Day did not use his iPhone in a way that created evidence relevant to the investigation in the entire 9-13 hours between Mr. Carron’s arrival at the residence and Mr. Day’s arrest. There were events (Mr. Carron’s ongoing and disruptive behaviour and the three hours between the incident and arrest) that would reasonably be expected to prompt data-generating activity by Mr. Day, including messages, photographs, videos, or calls.
In the result, the Court upheld the warrant, finding it lawful, reasonable, and valid.
R. v. Green, 2026 ONSC 2455
Background
Two officers responded to a report of a firearm in a unit of public shelter. An anonymous caller reported they had purchased drugs at the unit 10-15 minutes before making the call, and that there was a silver handgun on the bed, along with drugs. The caller stated that a black male in his thirties and a white female were present in the unit.
A staff member at the shelter, with the two officers to the side, knocked on the door of the reported unit and the accused, wearing only boxer shorts, answered the door, identifying himself as Mr. Green. Ms. Flaska, who was also in the unit, came to the door when requested. One officer asked the accused to step outside, to which he asked to get dressed. The officer immediately stepped into the unit, placed Mr. Green under investigative detention, handcuffed him to the rear, and sat him down inside the room. The other officer briefly frisked Ms. Flaska.
One officer decided to search the room for the safety of the officers and shelter staff, including moving items around and looking through the closet, furniture, and numerous bags. After approximately 10 minutes of searching, a handgun was located and Mr. Green was arrested. The unit was sealed pending a search warrant, which was granted. The Court noted that throughout the encounter, the officers treated both individuals with commendable politeness. Mr. Green brought an application to exclude evidence for breaches of sections 8, 9, and 10(b) of the Charter.
Unreasonable Search and Seizure
A warrantless search is presumptively unreasonable. However, where there is an imminent threat to police or public safety, or the risk of imminent loss or destruction of evidence, a warrantless search can be justified.
In this case, the Crown sought to justify the warrantless search of Mr. Green’s home on the basis that it was conducted on exigent circumstances, for public safety reasons related to the firearm.
The Court rejected this argument, finding there was no true exigency in the circumstances, and that the search was conducted for expediency and convenience. While the officers were honestly concerned about the potential of a firearm in the unit, the body worn camera (“BWC”) video indicated that no urgency was demonstrated – the officers did not bypass the front lobby and exchanged lighthearted banter with the shelter staff. In addition, the video captured conversation between the officers indicating that they were of the view they could not obtain a search warrant based on the little information they had, did not take any steps to prepare one, and were going to “play it by ear” when they got to the unit.
In addition, the Court briefly considered the context of the building, where the danger posed by a firearm is heightened by the fact that the residents of the shelter were socio-economically vulnerable people and frequently exposed to violence and crime. The Court stated:
[29]…I am troubled that the subconscious biases may have entered the thinking of the officers that evening. It is hard to see this warrantless search happening at a statelier home in a wealthier neighbourhood of our city.
The Court also quashed the subsequent search warrant of the unit, finding that its issuance depended solely on the finding of the firearm, and once excised, could not be justified on the anonymous tip.
Unreasonable Manner of Detention
While Mr. Green accepted that the requirements for investigative detention were met, the Court took issue with the way in which Mr. Green was detained, finding a section 9 Charter breach.
The Court found that handcuffing Mr. Green was unnecessary for the police to perform their duty, turning the detention into an effective arrest. The Court did not accept that concerns related to a firearm in the unit justified handcuffing, as they had no right to be in the unit in the first place. Further, Mr. Green was nearly naked, polite and cooperative, and the anonymous tip did not allege any violence. While the time Mr. Green was handcuffed before arrest was only about 10 minutes, the Court found a breach of section 9.
In addition, while the Court made no findings on racial bias, it pointed out how Mr. Green, a young, muscular, Black man of short stature and build, was immediately handcuffed while Ms. Flaska, a white female, was left unbothered apart from a frisk.
In addition to the unreasonable detention, the Court also found that Mr. Green’s right to counsel was not appropriately accommodated given the form of detention and lack of urgency, finding breaches of section 10(b).
On the test for exclusion of evidence, the Court characterized the cumulative Charter breaches as a “pattern of abusive conduct” that was a significant adverse impact on Mr. Green’s Charter rights. Further, while crucial evidence was located, this does not tip the final balancing to inclusion, and the evidence was excluded. The Court went further to say that evidence would have been excluded solely based on the egregious nature of the warrantless search.
Conclusion
In Day, despite the lack of direct evidence as to the accused’s use of the iPhone, the evidence as a whole led the Court to find that the issuing justice was entitled to draw a “common-sense inference” to conclude there was a credibility-based probability that the seized iPhone would contain data relevant to the offence.
In Green, the Court strongly denounced the warrantless search and manner of detention, commenting that unconscious bias played a role. The manner in which the firearm was seized vitiated the search warrant and relevant evidence was excluded. Also notable in Green was the court’s reliance on the BWC evidence, which was found to undermine the officers’ position that the search was based in exigent circumstances. These two decisions are a reminder for officers to ensure they have sufficient grounds on which to seek a search warrant, or risk exclusion of evidence.
If you require additional information or further assistance, please contact David McKnight and Naomi Krueger.
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