CITATION: R. v. Nguyen, 2011 ONCA 465 |
DATE: 20110621 |
DOCKET: C52057 |
COURT OF APPEAL FOR ONTARIO |
Weiler, Blair and Epstein JJ.A. |
BETWEEN: |
Her Majesty the Queen |
Appellant |
and |
Duc Van Nguyen and Mac Thi Nguyen |
Respondents |
Tom Andreopoulos and James Clark, for the appellant |
Phil Downes, for the respondent Duc Van Nguyen Ferhan Javed, for the respondent Mac Thi Nguyen |
Heard: April 21, 2011 |
On appeal from acquittals entered by Justice J. Ferguson of the Superior Court of Justice on April 7, 2010. |
R.A. Blair J.A.: |
[1] This appeal turns on the validity of a search conducted under the authority of a Controlled Drug and Substances Act[1] search warrant that led to the discovery of a significant marijuana grow operation in a residence described by the Crown as having been “converted into a marijuana factory.”
[2] The respondents were present at the property at the time of the search. As a result, they were charged with production of marijuana and possession for the purposes of trafficking in it. At trial, J. Ferguson J. struck down the warrant on the basis that it had been obtained in violation of the respondents’ s. 8 Charter rights because, she said, the Information to Obtain underpinning it (“the ITO”) was carelessly drafted, materially misleading and factually incomplete. She excluded the evidence obtained as a result of the search and – the Crown having no other evidence to present – acquitted the respondents on the charges they faced.
[3] The Crown appeals from the acquittals, arguing that the trial judge erred in law by applying the wrong test for a review of the granting of a search warrant, by finding that the affidavit supporting the ITO was misleading, and by concluding that there were no reasonable and probable grounds justifying the search. The Crown also argues that the trial judge erred by excluding the evidentiary product of the search under s. 24(2) of the Charter.
[4] For the reasons that follow, I agree with the Crown’s position and would allow the appeal.
Events Leading Up To The Application For The Warrant
[5] In November, 2007 Detective Constable Mason of the Durham Regional Police Service received a detailed tip from an anonymous tipster. The tipster indicated that the house at 304 Sheppard Ave. in Pickering had been used as a marijuana grow-op five or six years earlier and had been searched by the police. The source also indicated that the property at the time of the call did not appear to be regularly inhabited, and that the lawn was poorly maintained, the windows and doors were concealed with blinds and security bars, a light in the only uncovered window was on day and night, and there was rarely garbage or recycling put to the curb. The source further advised that a Mazda vehicle with the license plate BBDV252 had twice been seen at the residence.
[6] D.C. Mason had not had any prior dealings with the anonymous tipster. On November 9, 2007 he went to the premises at 304 Sheppard Ave. to make his own observations. They confirmed much of the information provided by the tipster: all the windows and doors, except one, were covered; in the one uncovered window, a single ceiling light could be seen; the grass was not well kept. D.C. Mason also observed moisture damage on the roof of the house that was not visible on any other roof in the neighbourhood. He was unable to smell marijuana, nor did he hear any fans or blowers.
[7] He later thought he had confirmed another detail provided by the tipster when he attended at the premises again on a Tuesday night and observed that no garbage or recycling had been placed at the curb.
[8] A license plate search determined that the license plate BBDV252 was registered to one of the respondents, Duc Van Nguyen. D.C. Mason also attempted to confirm that the house had previously been searched by conducting a Records Management Systems check. In preparing the ITO in support of the application for the search warrant, D.C. Mason indicated that the previous search had been conducted at 302 Sheppard Ave., not 304. He could not explain why he had listed the wrong property in the ITO, and suggested it may have been a typographical error. A glance at the context in which the reference to the address of the premises formerly searched in the ITO occurs lends credence to this suggestion.
[9] Another police officer, P.C. Bowers, conducted a “FLIR” test[2] by flying over the house in a helicopter, using a thermal imaging device to attempt to detect a heat pattern. Bowers is a trained operator of the “FLIR” device. He detected “an unusual amount of heat emitting from the chimney and vents on the roof of 304 Sheppard Ave.” The roof was “noticeably warmer” than those of all the neighbouring houses. This information was provided to D.C. Mason, who included it – and the images taken during the FLIR test showing the comparative heat sources – in the ITO.
[10] D.C. Mason also looked into hydro consumption at the house. He was told that hydro consumption at 304 Sheppard was lower than that of the neighbouring houses of similar size and that it was not sufficient to support a marijuana grow operation. This gave rise to an inconsistency in his mind: the FLIR and his own observations suggested that the premises were emitting more heat than neighbouring houses, yet at the same time it was recording less power use.
[11] On November 22, D.C. Mason spoke to a second anonymous source. This individual also believed that no one lived at the property and had observed an Asian male and female loading garbage bags into a van. This source also indicated that the occupants of the house came and went sporadically.
[12] As the lead investigator, D.C. Mason swore the affidavit underpinning the ITO. In paragraph 3 he said:
During my experience as a Police Officer I have been involved in many drug investigations involving numerous controlled substances. I have experience and training related to indoor and outdoor Marihuana growing operations. As a result of previous Marihuana growing operation investigations, I have become familiar with the signs and appearance of the buildings being used to house such operations.
[13] This statement became significant because the trial judge concluded that D.C. Mason had misled the issuing Justice of the Peace by indicating that he had “training” and by suggesting that he had more experience than he really had. I will return to this issue shortly.
[14] In the ITO D.C. Mason summarized the information obtained from the two informants and listed his own observations with respect to the property:
(a) All windows and doors were completely covered, except for the centre window on the second floor which had no window covering and through which a single ceiling light could be seen;
(b) The second story window on the east side appeared to be covered with a white sheet;
(c) The grass, particularly in the backyard, was not well kept;
(d) All windows and doors at the rear of the residence were completely covered with blinds;
(e) A view of the north side roof clearly showed areas of accumulated moisture damage. In this respect D.C. Mason added that “[i]mproper attic venting associated to marihuana grow house may lead to a build-up of moisture and damage to the roof and shingles.” The roof of 304 Sheppard Ave. was “the only roof in the neighbourhood where this type of roof damage [was] visible;”
(f) A window on the second floor was open. “[He] checked the weathernetwork.com and found the temperature on [that] date to have ranged from 2.8 degree Celsius to 13 degree Celsius.” He therefore “believe[d] this window was left open to vent the air from the house;”
(g) Two exterior timers were plugged in beside the backyard patio door; and
(h) The residence was located directly across the street from a hydro box.
[15] Having regard to the foregoing, D.C. Mason stated:
Based on my training, experience and participation in drug related investigations, it is a common practice for clandestine marihuana growers to choose a house in close proximity to a hydro box in order to monitor the box for known police investigative techniques. It is also common for marihuana growers to obstruct the view into the residence by covering all windows and doors with blinds and sheets to prevent the detection of the growing operation. I also know that persons using residences as marihuana growing operations do not normally occupy the residence on a permanent basis. Growers often utilize timers to control the lighting giving the impression the house is being inhabited.
[16] After reciting the information obtained from Constable Bowers as a result of the FLIR test and the information obtained with respect to the hydro consumption comparison, D.C. Mason concluded:
Based on my training, experience and participation in Marihuana grow investigations, there is not a significant difference between 304 Sheppard Avenue and the neighbouring homes used for the comparison. The electricity usage at 304 Sheppard Avenue could not support a marihuana growing operation. I believe theft of electricity is occurring at 304 Sheppard Avenue. I believe there is an electricity diversion at 304 Sheppard Avenue, which bypasses the meter, used by Veridian[3] to monitor electricity usage. The electricity meter, therefore does not reflect the actual electricity consumption at 304 Sheppard Ave.
[17] D.C. Mason also requested water usage readings at 304 Sheppard Ave. from the Region of Durham. He was advised that:
(a) There had not been an accurate water usage reading at the premises during the past year;
(b) The name on the billing account was Van Nguyen, the same name under which the Mazda vehicle seen by the first tipster at the premises was registered;
(c) The Region did not have a valid phone number for Mr. Nguyen and had been unable to gain access to the residence and read the water meter.
[18] Finally, D.C. Mason detailed his observations relating to the snow on the roof of 304 Sheppard Ave. on November 22. He noted that the roof was covered with snow, the weather was -3 degrees Celsius with snow flurries, but there was no snow accumulated by the vents on the north side of the roof and traces of water could be seen coming from the vents down to the eavestrough. Similar vents on neighbouring roofs were snow covered and no water could be seen running down the shingles. He attached photographs showing the melting off from the roof around the two vents on the north side of the roof.
[19] From this, D.C. Mason concluded:
Based on my experience and training with indoor grow operations, I believe the hot air generated by the high wattage lighting used for indoor growing operations is being vented out of the house through the vents on the roof. This is consistent with the observations of Constable Bowers using a thermal imaging device. The temperature of this air is much warmer than the air vented out of an average residence, hence the snow around the vents of 304 Sheppard Avenue is melting quickly and water is draining down the roof. The melted snow around the vents is inconstant [sic – “inconsistent”] with all the roofs of the neighbouring houses.
[20] The trial judge concluded that the search warrant should not have been issued and that the search therefore violated the respondents’ rights under s. 8 of the Charter. She found that the ITO was “carelessly drafted, materially misleading and factually incomplete”: R. v. Morelli, [2010] 1 S.C.R. 253, at para. 4. In this respect, she placed particular emphasis on five statements that she concluded were misleading and eleven omissions of fact that she felt should have been included in the ITO. I shall refer in detail to the alleged misstatements and omissions later. She also found that D.C. Mason had not taken sufficient steps to verify the information provided by the informants or their reliability and backgrounds.
[21] Having found a s. 8 breach, the trial judge proceeded to consider whether the fruits of that search should be excluded from evidence pursuant to s. 24(2) of the Charter. Applying the Grant analysis, and placing considerable emphasis on the fact that the premises searched were a home in which there is a very high expectation of privacy, she concluded that the evidence should be excluded. The Crown having no other proof, the charges were dismissed.
[22] The trial judge accurately summarized the legal principles relating to review of the sufficiency of a search warrant. Respectfully, however, she failed to apply those principles properly.
[23] The ultimate test is whether – after excising any offending portions of the ITO – there remains a sufficient basis on the record before the issuing justice, as amplified on the review, for issuance of the warrant: see R. v. Garofoli, [1990] 2 S.C.R. 1421; R. v. Araujo, [2000] 2 S.C.R. 992; R. v. Morelli, supra. Other factors may be taken into account when arriving at that assessment. For example, misleading statements made to obtain the warrant, or a failure to make full and fair disclosure in the ITO – depending on the nature and severity of these faults – may provide a basis for challenging the decision to grant the warrant: Araujo, at para. 51. Care must also be taken to confirm the reliability of information obtained from tipsters where that information forms a material basis for the application.
[24] Here, the trial judge based her conclusion that the warrant should not have issued on three factors: misleading statements contained in the ITO; inadequate examination of the reliability of the anonymous sources; and the failure to disclose certain facts that D.C. Mason did not observe. Having canvassed those issues, however, she did not ask herself whether, on the record before the issuing justice, as amplified on the review and minus any offending portions that needed to be excised, there remained a sufficient basis upon which the issuing justice could have issued the warrant. I agree with the Crown’s submission that this question appears to have been lost in the trial judge’s focus on the perceived misstatements and omissions. Moreover, in concluding that the impugned statements were misleading, the trial judge misapprehended and misconceived the evidence; the statements were not misleading in any material way. Finally, the purported omissions were not material in my view, or, for the most part, properly characterized as omissions in the circumstances.
[25] In addition, even if the statements and omissions could be said to be materially misleading, that was not the end of the matter. The trial judge still had to ask herself the foregoing question i.e., whether there remained a sufficient basis on which to issue the warrant. As Charron J. said in R. v. Pires, [2005] 3 S.C.R. 343, at para. 30:
Even if it is established that information contained within the affidavit is inaccurate, or that a material fact was not disclosed, this will not necessarily detract from the existence of the statutory pre-conditions. The likelihood that the proposed challenge will have an impact on the admissibility of the evidence will depend on the particular factual context. In the end analysis, the admissibility of the wiretap evidence will not be impacted under s. 8 if there remains a sufficient basis for issuance of the authorization. [Emphasis added.]
[26] There were five examples of statements in the ITO that the trial judge found to be misleading:
(i) the statement that D.C. Mason had “training” in grow-ops;
(ii) the confusion with respect to the location of the prior execution of the search warrant (302 or 304 Sheppard Ave.);
(iii) the statement that the lawn was poorly maintained throughout the summer (when the reference to summer had not been contained in D.C. Mason’s notes);
(iv) the statement that D.C. Mason was experienced in the detection of heat from a roof (obtained during a fly-over);
(v) the statement of D.C. Mason’s belief of electrical theft occurring when there was no such evidence.
[27] The record does not support these conclusions.
[28] The trial judge was critical of the following statement contained in D.C. Mason’s affidavit in support of the ITO:
I have experience and training relating to indoor and outdoor Marihuana growing operations. As a result of previous Marihuana growing operation investigations, I have become familiar with the signs and appearance of the buildings being used to house such operations.
[29] She concluded the statement was misleading, particularly the reference to “training.”
[30] But, D.C. Mason did have training in the investigation of marijuana grow operations. The trial judge fastened on the fact that he had not had any “formal” training. By that I assume she meant he had not attended some sort of formal classroom course. D.C. Mason conceded he did not have “formal” training, but testified that he had had “on the job training” including training from other experienced officers. “Formal” training is one form of training, to be sure, but on the job practical training is valuable and counts as well. It ought not to be discounted out of hand. Although it was not extensive, D.C. Mason had experience too: he had been involved in between six and nine other marijuana grow operation investigations.
[31] Respectfully, I see nothing misleading and nothing inconsistent with his testimony, in the foregoing statement to which the trial judge took exception.
[32] In his affidavit in support of the ITO, D.C. Mason said:
The residence of 304 Sheppard Ave was used as an indoor Marihuana grow operation five or six years ago and was raided by Police at that time. An RMS check[4] confirmed a Controlled Drugs and Substances Act search warrant was executed at 302 Sheppard Ave in 2002. [Emphasis added. The paragraph continued by outlining the details of the information D.C. Mason had obtained from the anonymous source respecting 304 Sheppard Ave.]
[33] D.C. Mason could not explain how the reference to 302 Sheppard Ave. got into the affidavit, but he attributed it to typographical error. Having regard to the context in which the reference was made, and to the context of the ITO as a whole, it is difficult to attribute it to anything else. The error may have been the result of inadvertence or carelessness on the officer’s part, but it is relatively meaningless and it is difficult to believe that the Justice of the Peace reveiwing the affidavit could have been misled into thinking that the raid had actually taken place at 302 Sheppard Ave. All the other references to the address of the property are to 304 Sheppard Ave. The RMS check is said to have “confirmed” the source’s information; had the check revealed a search at a different address, the word “confirmed” would not likely have been used.
[34] In any event, even if the reference to a search at 302 Sheppard Ave. a few years before this incident is redacted, there remains more than ample basis in the record to support the issuance of the warrant.
[35] With respect to the information obtained from the first tipster, D.C. Mason stated that “the source advised that the lawn at 304 Sheppard Ave. is poorly maintained throughout the summer.” His notes only indicated that the lawn was not maintained; they made no reference to “throughout the summer.” D.C. Mason explained during his cross-examination that his notes only contained an abbreviated version of the information he was told but that his affidavit contained the complete information. The trial judge gave no explanation for preferring his notes (which were not in evidence) to his sworn affidavit and testimony.
[36] In any event, it is difficult to understand why this issue took on the significance it apparently did. D.C. Mason was conducting his investigation in November. He could not have verified the state of the lawn “throughout the summer” at that time. His evidence remained that the state of the lawn was “unkempt” – some indicia, at least, of non-residential use of the property.
[37] The trial judge found that D.C. Mason had misled the issuing justice by stating that he was experienced in the detection of heat from a roof (obtained during a flyover). Respectfully, she misapprehended the evidence in this regard.
[38] D.C. Mason made no such claim. He relied on the information received from Cst. Bowers and on the experience of Cst. Bowers, and said so.
[39] Perhaps the most open to attack of the statements made by D.C. Mason in support of the ITO was his comment, cited above, that he:
believe[s] there is an electricity diversion at 304 Sheppard Avenue, which bypasses the meter, used by Veridian to monitor electricity usage. The electricity meter, therefore does not reflect the actual electricity consumption at 304 Sheppard Ave.
[40] D.C. Mason admitted in cross-examination that there was no evidence to support that statement, by which I take him to have meant there was no direct evidence. Two things may be said about this.
[41] First, the statement is not a statement of fact, but of belief. The issuing justice was fully capable of assessing the strength of that belief based on the record. D.C. Mason did not misstate any facts in this regard. Indeed, he was forthright in acknowledging that the hydro usage, as depicted by the comparative hydro readings, was not sufficient to support a marijuana grow operation.
[42] Secondly, there was evidence capable of supporting D.C. Mason’s belief. True, there was no direct evidence of any bypass switch. However, the facts as presented to the issuing justice disclosed a glaring, and unexplained, discrepancy: the readings showed the house was using less electricity than other neighbouring homes; yet the results of the FLIR exercise and the observations of snow on the roof of 304 Sheppard Ave., compared to its neighbours, indicated high levels of heat radiation – a hallmark of a marijuana grow operation. It may have been prudent for D.C. Mason to have attempted to verify his belief. Nonetheless, having regard to the circumstances and his general experience and training, it was not unreasonable for him to believe that an electricity bypass was occurring, in my opinion.
[43] The trial judge was also critical of the fact that the ITO did not set out whether the information obtained from the anonymous sources was more than rumour or gossip and that D.C. Mason had not investigated the two sources for reliability, criminal records or vindictive motives.
[44] There are undoubtedly cases where this type of verification of the source’s information, reliability and background will be called for. But this is not one of them, in my view. The core of the affidavit in support of the ITO was based on D.C. Mason’s own personal observations of the premises, buttressed by the FLIR information provided by Cst. Bowers. In all material respects, these observations confirmed the information that had been provided to him by the sources. D.C. Mason testified that “the information [he] received from those two sources was fairly consistent [with his] own observations.”
[45] In these particular circumstances, therefore, the tipsters’ information served more as a reasonable incentive to commence the investigation which, itself, generated the evidence underpinning the application for the ITO. The tipsters’ information provided background – albeit important background – but was not fundamental to the granting of the application.
[46] The eleven “omissions of fact” that the trial judge criticized D.C. Mason for not expressly negativing in the ITO were the following;
(i) there was no smell of marijuana;
(ii) no marijuana stocks were found;
(iii) no grow-op equipment was found;
(iv) no fans or blowers were heard;
(v) there was no evidence of electricity theft;
(vi) no suspicious activity was observed;
(vii) there was no evidence of actions of a grow-op aside from that provided by the anonymous sources;
(viii) the garbage/recycling did not offer any information;
(iv) the damage to the roof may have been the result of the prior search five or six years earlier;
(x) the water meter readings did not suggest a grow-op; and
(xi) there was no attempt to find the photographs taken during the previous search.
[47] In my view, these alleged failures to address things not seen or investigative steps not taken – considered individually or taken as a whole in the context of all “omissions of fact” – do not amount to material non-disclosure that would undermine the issuance of the warrant.
[48] It is trite law that an applicant for a search warrant has a duty to make full, frank and fair disclosure of all material facts in the ITO supporting the request: Araujo, at para. 46; Morelli, at paras. 44, 55 and 58-60; R. v. Shayesteh (1996), 31 O.R. (3d) 161 (C.A.), at p. 177. This duty includes the duty not to omit material facts. As LeBel J. said in Morelli, at para. 58:
In failing to provide these details, the informant failed to respect his obligation as a police officer to make full and frank disclosure to the justice. When seeking an ex parte authorization such as a search warrant, a police officer – indeed, any informant – must be particularly careful not to “pick and choose” among the relevant facts in order to achieve the desired outcome. The informant’s obligation is to present all material facts, favourable or not. [Italics in original.]
[49] The “details” referred to in Morelli, however, were facts known to the police at the time, but not disclosed. What is complained of here is a series of “omissions of fact” not addressed in the ITO, i.e., facts that were not known, or matters that were not observed by D.C. Mason, and that the respondent submits should nonetheless have been put forward and countered in the ITO. The trial judge accepted this submission.
[50] I disagree. Although there may be circumstances in which the duty to provide full and fair disclosure will require an applicant for a search warrant to negative something unseen or not done, I would expect such circumstances to arise infrequently. In most cases, the absence of a reference to something not seen, not heard, or not done, will lead to the sensible inference that whatever it is was not seen, not heard or not done. As Doherty J.A. observed in R. v. Colbourne (2001), 149 O.A.C. 132 (C.A.), at para. 43:
Constable Henry described the indicia of impairment that he observed. It was implicit that he did not observe any other indicia of impairment. His failure to specifically enumerate the things he did not see does not constitute non-disclosure.
[51] The obligation on applicants for a search warrant is not to commit the error of material non-disclosure. “Materiality” is something that bears on the merits or substance of the application rather than on its form or some other inconsequential matter: R. v. Land (1990), 55 C.C.C. (3d) 382 (Ont. H.C.), per Watt J., at p. 417. There is no obligation on applicants to anticipate, and to explain away in advance, every conceivable indicia of crime they did not see or sense and every conceivable investigative step they did not take at the time in order to counter the creative arguments of able defence counsel on a review hearing many months or years after the event. Here, for the most part, the impugned “omissions of fact” relied upon by the trial judge fall into the latter type of category, or they are simply immaterial, or were not omissions at all.
[52] The failure by D.C. Mason to note that he had failed to smell the pungent odour of marijuana or to hear the sound of fans or blowers that are characteristic of marijuana grow operations warrants some consideration. He admitted in cross-examination that he had tried to smell marijuana, but had not, and that he had not heard the sound of fans or blowers. He also acknowledged that sometimes the smell of marijuana can be sensed and that, on such occasion, he is able to tell the issuing justice that he believes there is a grow operation in the home based on that. However, the trial judge failed to advert to D.C. Mason’s additional evidence that he had only been able to smell the odour of marijuana outdoors at two of the eight or nine grow operations he had previously attended, and to hear fans or blowers on one of those occasions. He testified that on most occasions “you cannot detect the odour of marijuana outside”, and “it’s not very often that you can [hear fans or blowers].”
[53] Thus, there is nothing on the record to indicate that the absence of the smell of marijuana or the sounds of fans outside a grow operation home is a common indicia of the absence of a marijuana grow operation inside. I see little need for the applicant to postulate such a possibility in the ITO and then explain it away. The record, as amplified, explained it away in any event. I agree with the observations of D.C. Mason in cross-examination that the issuing Justice would likely have assumed from the fact that he did not say he had smelled the odour of marijuana or heard the sounds of fans or blowers, that he had not: Colbourne, supra. These alleged omissions are insignificant.
[54] As are the others. Some are “omissions of fact” that simply could not have been known and therefore could not have been addressed: not surprisingly, no marijuana stocks or grow-op equipment were found, since no one ever had the opportunity to go inside the premises. Some of the alleged “omissions” do not conform to the record: I have already explained why there was, indeed, evidence of electricity theft – albeit indirect – and it is not accurate to say there was no evidence of a grow-op or suspicious activity aside from that provided by the anonymous sources, because the officer’s own observations and the FLIR information amply supported such inferences. Other alleged omissions amount to sheer speculation: that the damage to the roof may have been the result of the prior search six years earlier (particularly in view of the snow-melting evidence unique to the premises at 304 Sheppard Ave. among the neighbouring buildings), and that the evidence of photographs taken during the previous search may have revealed something relevant. And still others are simply argument: the garbage/ recycling did not offer any information (it was inconclusive, but it did offer some information, which the issuing justice could sort out); the water meter did not suggest a grow-op (in fact, the police were not able to obtain an up-to-date water meter reading).
[55] Addressing the non-facts referred to above would not have changed anything. The non-facts, had they been mentioned, would not have undercut the reasonable grounds to believe that evidence of an offence having been committed was to be found in the house at 304 Sheppard Ave. Unlike in cases such as Morelli, the failure to advance and explain away the omitted facts here did not invite an inference or conclusion that would not have been drawn had the non-facts been disclosed.
[56] In Morelli, at para. 102, Fish J. aptly observed (albeit in the context of his s. 24(2) analysis) that:
The repute of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct. Police officers seeking search warrants are bound to act with diligence and integrity, taking care to discharge the special duties of candour and full disclosure that attach in ex parte proceedings. In discharging those duties responsibly, they must guard against making statements are likely to mislead the justice of the peace. They must refrain from concealing or omitting relevant facts. And they must take care not to otherwise exaggerate the information upon which they rely to establish reasonable and probable grounds for issuance of a search warrant.
[57] That said, the central consideration on the review of a search warrant is whether on the record as it existed before the issuing justice and as amplified at the hearing, with any offending portions of the ITO excised, there remains a sufficient basis upon which the warrant could be issued. Police conduct is clearly relevant to that consideration. However, the review is not an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence in support of the application. This is particularly so where, as here, the trial judge has specifically found that the applicant did not intend to mislead the issuing justice.
[58] There may have been some flaws in the ITO presented by D.C. Mason in support of the application – the confusing reference to both 304 and 302 Sheppard Ave. in the paragraph cited above, for example. Few applications are perfect. The flaws did not go to the heart of the application, however, and – for the reasons outlined above – the trial judge’s overall conclusion that the ITO “was carelessly drafted, materially misleading and factually incomplete” is simply not supported on the record.
[59] There was no section 8 violation in my view.
[60] Given the foregoing, it is unnecessary to address the s. 24(2) issue. However, even if there were a s. 8 breach I would set aside the trial judge’s determination that the evidence seized with respect to the marijuana grow operation should be excluded.
[61] I need not dwell at length on my reasons for coming to this conclusion. Suffice it to say that the trial judge significantly overemphasized the fact that the infringing state conduct (if it were infringing state conduct) was with respect to “the search of a home” and therefore involved a significant intrusion on the respondents’ reasonable expectations of privacy. This theme was central to all three stages of the trial judge’s Grant analysis.[5] The respondents were not the owners of the home, however, and there was no evidence to indicate that they used it as a home – as opposed to a factory for growing marijuana – or that they were even occupants or had any relationship to the premises apart from having been found in them at the time of the search. Any expectation of privacy they had in the home was therefore seriously diminished.
[62] If the police conduct in this case crossed the line and constituted a Charter breach, it was a breach on the relatively minor end of the spectrum of seriousness, in my opinion, and given the respondents’ reduced expectation of privacy in the premises, the impact of the breach on their Charter-protected rights is also reduced. On the other hand, the societal interest in having this matter adjudicated on its merits would be severely impacted by the exclusion of the evidence, because the Crown’s case depended on it. Balancing all of these factors, I am satisfied that the interests of justice would militate against the exclusion of the evidence in the circumstances of this case.
[63] For all of the foregoing reasons, I would allow the Crown’s appeal, set aside the order quashing the search warrant, and direct a new trial on the merits.
“R.A. Blair J.A.”
“I agree K.M. Weiler J.A.”
“I agree Gloria Epstein J.A.”
RELEASED: June 21, 2011
[1] Controlled Drugs and Substances Act, S.C. 1996, c. 19.
[2] A “FLIR” is a forward looking infrared device. Use of this device as an investigative technique by the police was sanctioned by the Supreme Court of Canada in R v. Tessling, [2004] 3 S.C.R. 432.
[3] Veridian Energy is the company responsible for supplying electricity to Pickering.
[4] “RMS” is an acronym for the Durham Regional Police Service Records Management System.
[5] R. v. Grant, [2009] 2 S.C.R. 353, at paras. 67-71. The Grant test requires the court to consider (1) the seriousness of the Charter breach, (2) the impact of that breach on the accused’s Charter-protected rights, and (3) the societal interest in having criminal matters adjudicated on their merits.