R. V. Bhatti: Warranted Police Discretion Or Bound By The Warrant?

InR. v. Bhatti,¹the Court of Appeal for Ontario considered whether police execution of a search warrant infringed an accused's right to be free from unreasonable search and seizure under s. 8 of theCharter. On an appeal by the Crown, a majority of the Court of Appeal held that the police did not breach s. 8 and, even if they had, the evidence obtained should not be excluded from the accused's trial under s. 24(2). The dissenting Justice disagreed, finding the warrant was unambiguous and had been exceeded by the police in an manner that resulted in a serious breach of s. 8. The strong dissent by Pomerance J.A., along with the important issues raised (albeit in novel circumstances), suggests that the case may ultimately be decided by the Supreme Court of Canada.Bhattireflects how challenges to the execution of warrants depend heavily on context — particularly how closely police conduct fits with the plan and scope originally authorized by the court. The decision also reflects differing judicial views about how much latitude ought to be given to police in the execution of warrants.

Background

The Respondent's fiancé was murdered outside their home, and the police received confidential information that the Respondent — who was believed to be a high-level drug dealer — knew who the assailants were and intended to retaliate. While investigating the murder, the police obtained a warrant to detain the Respondent to search him and his immediate surroundings for a specific phone/device associated with a specific number. The Respondent was not a suspect in the murder investigation and was never accused of murdering his fiancé, but the police believed his cell phone contained evidence relevant to who killed her. Among other things, the warrant read as follows:

• "For the purpose of this warrant, "the device" is the one associated to the phone number XXX-XXX-XXXX."
• "Peace officers will search Ali Bhatti and his surrounding area, for his cellular device (if Ali is in possession of multiple cellular devices, these will be seized only to determine which device is associated to the phone number XXX-XXX-XXXX any further analysis of any device, other than the one which is the target of this warrant, will not be analyzed further without separate judicial authorization)."
• "Once the cellular device has been seized, Ali Bhatti will be released from this detention, unless he is subject to arrest or further detention unrelated to this General Warrant."²

The police executed the warrant during a roadside stop. They rejected the Respondent's offer to retrieve the phone once he got out the vehicle, and opened the driver's side door of his car. From the door's pocket, the police seized three cell phones and a plastic bag which contained a magazine from a handgun. The officer put the phones in Airplane Mode and removed their SIM cards to prevent any data from being remotely wiped. Another officer conducted an additional search of the locking mechanism inside the vehicle door panel, which appeared worn out and loose. The officer removed the panel and found two loaded handguns. The police arrested the Respondent, and he was prosecuted for firearms offences.³

The Application Judge's Ruling

The application judge concluded that the police violated the Respondent'sCharterright under s. 8.

First, the court observed that the warrant was ambiguous, sometimes referring to a singular cellular device and other times to the plural. However, the warrant contemplated that only one cellular device — whose number matched the number identified in the warrant — would be subject to a substantive or forensic search. More than one cellular device could be seized only for the purpose of determining which phone was associated with the phone number in question. The application judge found that the police should have immediately determined which phone was the one targeted by the warrant, and searched data on that phone only. Instead, the police searched data on all three phones.

Second, the application judge considered what constituted the "surrounding" area as provided in the warrant. The judge found that the three cell phones located in the driver door pocket were within the immediate or surrounding area given their accessibility to the driver. However, the void in the interior of the door, where the handguns were found, could not fall within the scope of the "surrounding" area. According to the application judge, the police were not permitted to search that area within the terms of the warrant.

The evidence of the handguns was excluded under s. 24(2) of theCharter, and the Crown appealed.

The Court of Appeal's Decisions

• The Majority Reasons

The majority of the Court of Appeal disagreed with the application judge and ordered a new trial. Writing for the majority, Miller J.A. first determined the application judge erred in two key ways with respect to the cellular devices. First, the warrant did not require the police to execute the search in the manner indicated by the application judge. Second, the application judge erred in concluding that, since the Respondent was not a suspect in the murder investigation, concerns usually present during an arrest were absent. As the majority highlighted, "[t]here were abundant concerns about both safety and destruction of evidence,"⁴such as the belief that the Respondent was a high-level drug dealer and had outstanding drug-trafficking charges.

For Miller J.A., the warrant contemplated three searches: (1) a search of the immediate or surrounding area to locate one or more phones; (2) a search of the phones to ascertain which phone was associated with the phone number in question; and (3) a search of the data within the target device, i.e. having the phone number in question.⁵However, the warrant was not specific about the details of execution, and police were not required to test each phone roadside to determine if it was the target phone before searching for other phones. Justice Miller accepted it was a mistake for the police to search data on the two non-target phones, but he diminished the significance of this mistake for the purpose of theCharteranalysis.⁶

Regarding the search of the void in the car door, Miller J.A. concluded that the police's conduct was justified in this context. The fact that the Respondent was not the suspect to the crime was not conclusive. The Respondent was known to police, and they believed he was not being forthcoming in connection with the murder investigation. It was therefore not unreasonable for the officers to believe that the target phone remained hidden, notwithstanding that others had been seized.

In summary, the majority held that courts should exercise restraint in second-guessing operational decisions made during the execution of a warrant, recognizing the need for officers to ensure safety and preserve evidence. As Miller J.A. wrote, "[w]hile police must comply with the terms of a warrant, courts should also avoid interpreting warrants in a manner that 'place[s] police in a straitjacket'".⁷

• The Dissenting Reasons

In dissenting reasons, Pomerance J.A. agreed with the application judge's finding that the execution of the search warrant violated the Respondent'sCharterright. Her analysis was grounded in a contextual interpretation of the warrant's issuance, including that the warrant was not intended to target the Respondent's alleged criminal activity, but rather that of other individuals suspected of murdering his fiancé. She further emphasized that the terms of a warrant "are not suggestions or recommendations. They are directives."⁸Additionally, the need to limit terms and conditions becomes "particularly important when it comes to digital data."⁹

First, with respect to the cellular device in question, the police exceeded the scope of their lawful authority by searching three devices when the warrant authorized the examination of only one. Even assuming that the temporary possession of multiple phones was necessary, it was limited to the purpose of identifying which device was linked to the phone number specified in the warrant — an objective that could have been accomplished at roadside by calling the number, Pomerance J.A. reasoned. There was no evidence that there was a risk of the phone(s) being remotely wiped.

As Pomerance J.A. explained, while the police are permitted to have an operational plan with which courts should not interfere lightly, the plan "must itself be reasonable having regard to the nature of the search; it must respect the express limits on the face of the warrant; and it must reflect the principle of minimization that governs any state conduct amounting to a search or seizure."¹⁰

Second, the officers' search of the hidden compartment exceeded the spatial parameters of the warrant, which only authorized a search of immediate surroundings for a cellular device. Justice Pomerance took issue with this search for two reasons. First, it was not clear that the hidden compartment qualified as the "surrounding area" specified in the warrant, as it was unreasonable for the "police to believe that the phone to be seized – one that was in regular use by the respondent – would be found in a hidden compartment."¹¹Second, at the time the officers accessed the hidden compartment, they were already in possession of three phones, which should have concluded the search.

Conclusion

The majority and dissenting reasons inBhattiunderscore that interpreting the scope and terms of a search warrant is a contextual exercise, particularly in factually atypical cases such as this one where the target of the search was not a suspect in the murder investigation. Given that the Court of Appeal ordered a new trial on the firearms charges and the nature and importance of the issues at play,¹²it is likely that the Supreme Court of Canada will weigh in. Should it do so, the Court may provide further guidance on the s. 8 principles governing search warrant execution and their application in complex investigative contexts. The case would also be an opportunity for the Supreme Court to consider issues under s. 24(2) of theCharter. For instance, while the majority acknowledged that police were mistaken in their belief that the warrant authorized substantive searching of data within all seized phones (not only that with the target number), they concluded this error was immaterial in assessing whether evidence of the seizure of the firearms should be excluded under s. 24(2).¹³The dissent strongly disagreed.¹⁴

If you are, or your business is, subject to a search warrant or other judicial authorization, McCarthy Tétrault's White Collar Defence and Investigations Group assists companies and individuals in addressing to associated criminal and regulatory risks. See our recent article on search warrant fundaments –Business Under the Microscope: Navigating a Search Warrant.

Footnotes

1 R. v. Bhatti,2025 ONCA 697("Bhatti").

2 Bhatti, at para.5.

3 Bhatti, at paras.6-9.

4 Bhatti, at para.30.

5 Bhatti, at para.26.

6 Bhatti, at para.26.

7 Bhatti, at para.33, citingR. v. Lucas,2014 ONCA 561, at para.197.

8 Bhatti, at para.52.

9 Bhatti, at para.54, citing, among others,R. v. McGregor,2023 SCC 4;R. v. Campbell,2024 SCC 42.

10 Bhatti, at para.65, a finding which Pomerance J.A. suggests is entitled to deference.

11 Bhatti, at para.81.

12 In addition, it is noteworthy that, if the dissent is considered to be based on a question of law, the Supreme Court has said that "s. 691(2) [of theCriminal Code] gives a person whose acquittal is overturned at the court of appeal an automatic right to appeal to this Court on any question of law on which a judge of the court of appeal dissents, or on any question of law if the court of appeal enters a verdict of guilty against that person":R. v. C.P.,2021 SCC 19, at para.53; see generallyR. v. Magoon,2018 SCC 14.

13 Bhatti, at para.39.

14 Bhatti, at paras.71-73,75,96,107.

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