Dissent says intent to search three phones seriously risks significant privacy invasion
In an appeal of acquittals for firearm possession, the Ontario Court of Appeal’s majority found errors in an application judge’s finding of a violation of a man’s rights under s. 8 of the Canadian Charter of Rights and Freedoms.
In R. v. Bhatti, 2025 ONCA 697, the respondent’s fiancée pulled into the driveway of the residence she shared with him. Two masked assailants fired repeatedly at her vehicle and killed her.
The respondent, who witnessed the homicide, was not subject to the investigation. Police knew the respondent, who had a record for drug trafficking and firearms offences, outstanding drug trafficking charges, and a conviction for possessing a firearm in a motor vehicle.
A confidential informant told police that the respondent knew who was responsible for killing his fiancée and planned to do something about it.
Police believed that the respondent was a high-level drug dealer and the intended target of the homicide. Police obtained a general warrant to detain him and search his phone, which might have relevant information.
The warrant authorized police to seize and search one phone associated with a specific phone number, search the respondent and his immediate and surrounding area, and seize other devices, only to determine which one carried the phone number.
Police surveilled the respondent’s home, eventually pulled him over in the rented vehicle he was driving, and informed him about the warrant to search him and his vehicle.
Police opened the driver-side door, found three cell phones and a plastic bag in the door’s lower pocket, removed the phones’ SIM cards, felt something hard in the bag, opened it, and saw a magazine from a Glock 9mm handgun.
They popped off the cover of a hidden compartment or void inside the vehicle’s door and arrested the respondent for firearm possession after discovering two loaded Glock handguns.
In April 2024, Justice Spencer Nicholson of the Ontario Superior Court of Justice acquitted the respondent. The application judge ruled that the search inside the vehicle’s door exceeded the warrant’s scope and thus breached the right against unreasonable search or seizure under s. 8 of the Charter.
The judge held that the violation significantly impacted the respondent’s Charter-protected privacy interest, particularly as the respondent was a victim, not a suspect in the investigation. The judge excluded the firearms from admission into evidence under s. 24(2) of the Charter.
The Court of Appeal for Ontario’s majority allowed the appeal and ordered a new trial upon determining that the application judge erred in finding that the warrant did not authorize the search and excluding the firearms under s. 24(2), even if there had been a s. 8 breach.
The majority said the judge erroneously found a violation of the respondent’s s. 8 rights. The majority added that the judge misapprehended the nature of the interaction between police and the respondent, given the officers’ safety concerns from the outset.
The majority explained that the warrant, which did not specify the details of its execution, did not require police to proceed in the manner required by the judge and did not prevent officers from searching the door’s void immediately beside where the respondent had been sitting.
Next, regarding the s. 24(2) analysis, the majority addressed the factors in R. v. Grant, 2009 SCC 32. First, the majority did not consider the officers’ allegedly Charter-infringing conduct serious.
Second, regarding the alleged breach’s impact on the respondent’s interests, the majority deemed the impact light, given that police searched inside the door of a vehicle operating on a public road. The majority saw nothing intimate or personally invasive about the search.
Third, on the society’s interest in a judgment on the merits, the majority ruled that the judge inappropriately emphasized the respondent’s being a victim of the crime under investigation.
The dissenting judge agreed with the application judge’s determination that police went beyond the warrant’s scope and violated the respondent’s s. 8 rights in executing the warrant. The dissenter upheld the exclusion of the firearms found in the void under s. 24(2).
The dissenter ruled that the intention to forensically examine all three phones seriously risked a significant invasion of privacy, which directly affected the firearms’ admissibility.
The dissenter noted that police considered the respondent’s phone a receptacle of data, not an item of stand-alone property. The dissenter added that police could not undo the privacy invasion once they viewed the cellular device data, even if the respondent applied under s. 490 of the Criminal Code for the return of his phones.
Regarding the impact of the alleged infringement on the respondent’s interests, the dissenter decided that this factor of the Grant test favoured exclusion.
The dissenter noted that motorists generally enjoyed lower privacy expectations in vehicles, especially rental cars. According to the dissenter, while police were entitled to execute the warrant while the respondent was in his vehicle, this choice did not strip the respondent of the privacy he otherwise had in his phones.
