Terms of warrant come into question in London, Ont., firearms case

Law360 Canada (December 16, 2025, 2:05 PM EST) --

John L. Hill

A nurse from London, Ont., Lynda Marques, was shot and killed on Sept.10, 2021, by two masked men believed to be rivals of her fiancé, Ali Bhatti, as she was parking in the driveway of the home she shared with Bhatti.

Bhatti was a witness, not a suspect, but the police suspected he was the intended target and a high-level drug dealer. A confidential informant suggested Bhatti might retaliate. Police obtained a general warrant under s. 487.01 of the Criminal Code to search for and seize a specific cellphone associated with a particular number.

Police stopped Bhatti while he drove a rental vehicle, handcuffed him and found three phones in the driver’s door pocket. A gun magazine and, later, two concealed handguns were found in the door void. Bhatti was arrested for firearm possession.

A trial judge found a violation of s. 8 of the Charter: the scope of the search of the door void exceeded what the warrant authorized. The warrant authorized the seizure of only one device; additional phones could be seized only to identify the target number. Seizing all three phones for forensic analysis violated Bhatti’s personal privacy. The hidden door compartment was not part of Bhatti’s “immediate or surrounding area” because it required manipulation to access. Under a s. 24(2) analysis, the firearms were excluded based on the seriousness of the Charter breach. Bhatti’s victim status and the intrusive nature of the search outweighed society’s interest in prosecution. The Crown appealed.

In a 2-1 decision written by Justice Bradley Miller, the Court of Appeal found error in the trial judge’s reasoning. It allowed the appeal and ordered a new trial (R. v. Bhatti, 2025 ONCA 697).

The Court of Appeal held that the trial judge had misinterpreted the warrant. It referred to the seizure of multiple devices to be returned to Bhatti after inspection. Additionally, the judge at trial unreasonably limited the scope by ignoring officer safety and the potential destruction of evidence because Bhatti was a victim. Bhatti faced outstanding charges for drug trafficking and had previous convictions for firearms offences. Police knew that Bhatti planned retaliation for Marques’ murder.

Although police must adhere to the terms of a warrant, they should not be overly restricted in executing it (R. v. Lucas, 2014 ONCA 561). Furthermore, courts should not “lightly interfere” with operational decisions made to ensure their safety and preserve evidence (R. v. Cornell, 2010 SCC 31). The trial court’s decision to exclude evidence also considered the context in which the search was conducted. The police were aware that Bhatti had previously used a sealed compartment of his car to store drugs and money. In R. v. Stairs, 2022 SCC 11, the Supreme Court emphasized the importance of context in interpreting how the warrant should be understood. It would be reasonable to conclude that Bhatti may have sought to hide a phone in a concealed compartment. The judge erred in finding that the warrant did not authorize the search for the phones.

With respect to the impact of the breach on Bhatti’s interests, the application judge erred in principle in finding that the firearms would not have been found absent what was characterized as a warrantless search. The Court of Appeal also considered the third factor set out in R. v. Grant, 2009 SCC 32, which looks at society’s interest in adjudication on the merits. It was an error to believe Bhatti deserved special treatment because he was a victim of a crime. Indeed, he was well known for defying societal norms.

In a very well-reasoned dissent, Justice Renee Pomerance would have dismissed the Crown appeal. The dissent focused on several areas in which Justice Pomerance differed from the majority.

The first concerned the seizure of multiple phones. The majority held that the seizure of numerous devices was permissible for later identification. Yet the warrant authorized the seizure and forensic examination of only one phone.

Secondly, the search of the hidden compartment on the driver’s-side door led to the discovery of firearms. This exceeded the spatial parameters of the warrant that authorized a search of the immediate surroundings of the cellphone Bhatti used.

The dissent also notes that the offence for which the warrant was issued is not the offence for which Bhatti is now being tried. Cellphone data relevant to the murder investigation has no relation to the weapons offence that brought Bhatti to court. Police must strictly comply with the terms of a search warrant. Where terms and conditions are imposed, they are directives, not suggestions or recommendations.

Failing to honour the terms of a warrant may lead to the entire search being invalidated (R. v. Church of Scientology Toronto, (1991), 9 C.R.R. (2d) 196 (Ont. Gen. Div.)). One of the officers executing the search knew that Bhatti had previously hidden items in the vehicle’s concealed compartment, but this fact was not disclosed to the issuing justice. That did not justify a search of the hidden area either. The officer was not permitted to add his own subjective knowledge to the ITO. Furthermore, based on the officer’s own testimony, he had never previously found a phone hidden in this manner.

Trial decisions applying s. 24(2) of the Charter are entitled to considerable deference. Appellate intervention should be limited to those cases in which the analysis discloses an error in principle. Justice Pomerance agreed with the application judge and found that the evidence was properly excluded. He would have deferred to that decision.

In a Nov. 13 media report of Postmedia, the following was written: “Because the decision was not unanimous, Bhatti has the option to take his case to the Supreme Court of Canada.”

“In the monthly Superior Court scheduling court in London last week, where the appealed case was back on the docket, Bhatti indicated he would likely take his case to the higher court.”

John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books), was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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