Ruling says impact on device owner’s privacy interests will not make his appeal moot
The Ontario Court of Appeal has dismissed an appellant’s motion for an order to prevent the Toronto Police Service from proceeding with an examination of his electronic devices that officers seized from his home and office, pending his appeal.
Police were investigating who uploaded a certain video via Dropbox on Jan. 19. The video depicted the sexual abuse of a child, which could meet the definition of child sexual abuse and exploitation material.
Police obtained search warrants for the investigation, executed the warrants in late January and February, and seized 10 electronic devices during a search of the appellant’s home and office.
The appellant applied for certiorari to quash three search warrants as facially invalid. On May 12, Judge Sean Dunphy of the Ontario Superior Court of Justice dismissed the application. The appellant appealed.
Motion referred to panel
Until the resolution of his appeal, the appellant moved to stay Dunphy’s order and to reinstate Judge Stephen Wojciechowski’s Mar. 20 interim order suspending the investigation and preventing police from examining the seized devices.
On June 8, in R. v. D.D., 2026 ONCA 400, Justice Sally Gomery of the Ontario Court of Appeal referred the motion to a panel, which could rule on the jurisdictional questions and merits, and requested that Crown counsel ask the police to refrain from searching the devices in the meantime.
In issuing this order, Gomery acknowledged the murky jurisdictional waters on this issue. Gomery cited R. v. D.W., 2023 ONCA 638, and R. v. Metro News Limited, 1985 CanLII 3639 (ON CA).
Stay denied
On June 10, in R. v. D.D., 2026 ONCA 415, a three-justice panel of the Ontario Court of Appeal dismissed the motion and referred the matter for case management. The panel found it inappropriate to issue the requested order.
The panel applied the legal framework for a stay pending appeal. First, the panel saw no serious issue relating to the appeal’s merits and no obvious error in Dunphy’s refusal to exercise his discretion to order certiorari. The panel also found no apparent merit in the appellant’s arguments that:
- The informations to obtain the search warrants lacked reasonable and probable grounds
- No reasonable and probable grounds existed to believe that a search for devices in his home would yield evidence of an offence
The panel acknowledged that the appeal proper would ultimately determine the merits. The panel also recognized certiorari’s exceptional nature in the context of an ongoing police investigation prior to the laying of charges.
Second, the appeal court accepted that the continuing police examination of the devices affected the appellant’s privacy interests. However, the appeal court ruled that this impact would not render his appeal moot.
If the appellant succeeded on appeal, the appeal court could grant a remedy regarding the warrants and the fruits of their execution. In the event of criminal charges, he could file a Charter challenge against the admissibility of such fruits.
Lastly, the appeal court held that the balance of convenience supported denying a stay upon weighing the lack of apparent merit of the appeal grounds, the limited impact of permitting police to keep examining the devices, and the public interest in letting the investigation continue based on the presumptively valid warrants.
