Taser Use Justified In High Risk Scenario And Exclusion Of Evidence Due To Non-Compliance With Search And Seizure Provisions

Summaries of R v. Blyan, 2025 ABCA 213 and R v. Asantarajah, 2025 ONSC 3730

R v. Blyan, 2025 ABCA 213

Background

Sheldon Blyan was a suspect in a shooting death during a robbery and the subject of a planned arrest in November 2020. He was believed to have been in possession of firearms and had a history of violence.

During the first phase of the arrest, officers boxed-in Mr. Blyan's vehicle before deploying flash bangs to disorient him and the driver. Mr. Blyan complied with instructions to exit the vehicle and crawl towards the officers. He announced he had a gun in his possession.

Officer 1, unaware that Officer 2 was giving Mr. Blyan instructions, directed Mr. Blyan to lie on his stomach. Mr. Blyan did not hear and did not comply. Officer 1 then kicked Mr. Blyan in the abdomen, causing him to react in pain and pulling his hands away from his abdomen. Officer 2, losing sight of Mr. Blyan's hands, and knowing he had access to a gun, deployed his taser, cycling it for 39 seconds before Mr. Blyan was handcuffed.

Mr. Blyan was convicted of possession of a loaded firearm and being the occupant of a motor vehicle knowing it contained a firearm. He admitted to possessing a prohibited handgun but argued that his section 7 Charter rights were violated during his arrest due to the use of excessive force in two instances: being kicked by Officer 1 during his arrest and Officer 2's use of the taser. In determining whether unnecessary or excessive force is used, a court will assess whether the application of force is objectively reasonable in the circumstances.

Decisions

The Crown conceded that the kick violated s.7, resulting in a reduction of sentence at trial. For the second issue, the trial judge concluded that Officer 2 was justified in using the taser in the circumstances.

The Court of Appeal found that while Officer 1 did not act in good faith, the kick was not motivated by ill will. The Court reasoned that Officer 1 overreacted and misread the circumstances in the heat of the moment, but that his conduct otherwise did not constitute recklessness.

In dismissing the appeal, the Court of Appeal also agreed that Officer 2's use of the taser was objectively reasonable. The Court found that Officer 2 acted out of concern for public and officer safety once he lost sight of Mr. Blyan's hands, and that his sole objective was to restore safety by handcuffing Mr. Blyan.

Conclusion

Despite the court's finding that, on balance, the administration of justice was better served by admitting the gun into evidence, Officer 1 was rightly criticized for being hasty and unwarranted by kicking Mr. Blyan before confirming compliance with police directions. The decision in R v. Blyan is a reminder of the importance of proportional force during an arrest, even in high risk situations.

R v. Asantarajah, 2025 ONSC 3730

Background

In February 2022, a search warrant was executed by the Toronto Police Service Sex Crimes Unit at Mr. Asantarajah's residence, leading to charges related to child pornography. During the search warrant execution, evidence of possible fraud-related offenses was discovered, prompting involvement from the Financial Crimes Unit (FCU).

Two FCU officers attended to inspect the items and participated in a cursory search of electronic devices, which revealed further evidence of possible fraud-related offences. Key fobs to a Jaguar were located during the search, and the vehicle was promptly towed to be searched after a warrant was obtained. The FCU then applied for and obtained search warrants, which were executed later that day.

Decision

At trial, the Court found that:

• police had failed to obtain authorizations in relation to IP addresses, in breach of s.8 and tainting the search warrant for the residence;
• the towing of the vehicle constituted an unlawful seizure; and
• the Information to Obtain in support of the warrant to search the vehicle was not signed by the informant, resulting in a warrantless search.

489.1 of the Criminal Code has been described as the "gateway" to the regime under s.490, which protects privacy and property interests by requiring officers to record and report all items seized to a justice of the peace as soon as practicable following the seizure. Filing a Report to a Justice will trigger an initial 3-month detention period for the items seized, which can be extended by bringing applications pursuant to ss. 490(2) or 490(3) before the expiry of the detention period. Non-compliance with these mandatory sections of the Criminal Code respecting items seized in an investigation can result in Charter breaches under s.8.

In this case, the Court also found that both SCU and FCU failed to comply with s.489.1 in several ways, resulting in further s.8 breaches. including:

• writing on a Report to Justice that the items seized from the residence were required for the purpose of charges laid, even though no charges were laid at the time it was submitted, invalidating the original detention order;
• failing to obtain a section 490(2) extension for the FCU investigation after the initial detention order had lapsed;
• failing to file a Report to a Justice "as soon as practicable" with no explanation for the delay (the Reports to a Justice were filed March 15, 2022 and March 29, 2022 respectively, for items seized on February 24, 2022); and
• failing to obtain a 490(3) extension when the original charges laid (and written on the Report to a Justice) were withdrawn and new charges were laid (in May 2023) in relation to the same items seized.

While the Court did not find that SCU officers were acting in bad faith, it was critical of s.489.1 compliance within the TPS, finding the breach arising from non-compliance with s.489.1 to be moderately high. The Court found that FCU's non-compliance was greater, as they had obtained a warrant to search the contents of the device before obtaining lawful authorizations for those devices, leading the subsequent search to be highly intrusive. On balance, the Court excluded the items seized by the FCU on the fraud charges, and admitted the items seized by the SCU on the child pornography charges.

Conclusion

In R v. Asantarajah, significant evidence was excluded in a fraud investigation due to, in part, numerous issues with section 490 compliance. This case is another example of the importance of maintaining strict compliance with the search and seizure provisions of the Criminal Code, especially in complex investigations with varied charges and overlapping evidence.