COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Li, 2013 ONCA 81
DATE: 20130208
DOCKET: C53382
Doherty, Watt and Pepall JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Zhu Shi Li
Appellant
Peter Thorning and Ilana Raynai, for the appellant
Kevin Wilson, for the respondent
Heard: August 2, 2012
On appeal from the convictions entered by Justice Kenneth E. Pedlar of the Superior Court of Justice, sitting without a jury, on May 28, 2010.
Watt J.A.:
[1] For many who buy land, location and purpose are important.
[2] Residential purchasers may seek a quiet neighbourhood with convenient access to essential goods and services, like schools, transportation, recreation and health care facilities, and places to work, shop and worship.
[3] Commercial purchasers often prefer busy streets, high traffic areas, and visibility to attract customers and clients.
[4] During two months in the fall of 2004, four persons with similar interests bought some land. Each property was large, located in relatively isolated rural areas in eastern and northeastern Ontario, and remained unoccupied for several months after the purchase.
[5] The following summer, the purpose for which the properties were purchased began to emerge. Marijuana plants. Thousands of them. On each of the four properties. And along with the plants, a variety of other things, the tools of the grow operators’ trade, to help the plants grow to maturity, to be harvested, and to be prepared for distribution.
[6] Police arrested several people in connection with the grow operations found at each property. Among those arrested was Zhu Shi Li (the appellant). Several years later, a judge convicted Li of production, conspiracy to produce, and possession of marijuana for the purpose of trafficking in connection with the grow operations found at two of the four properties.
[7] The appellant says that his convictions are flawed because they are unreasonable and based on evidence that should not have been admitted at his trial.
[8] For reasons that I will develop, I would dismiss the appeal. I am satisfied that the appellant’s convictions are neither unreasonable nor grounded on evidence that should have been excluded at trial.
[9] It is helpful to begin with an overview of the allegations against the appellant and how Crown counsel sought to prove those allegations at trial. Greater detail can await consideration of the individual grounds of appeal.
[10] The case for the Crown was that the appellant and several others purchased four properties in less-travelled rural areas. On each property, they planted and cultivated thousands of marijuana plants for later sale, taking a variety of precautions to ensure that their enterprise was not detected. One of the properties, 61 Jessup Road, in Hastings County, was the centre of their operations.
[11] Central to the Crown’s case against the appellant was evidence that linked him to the properties at 61 Jessup Road and #14 Fire Route 5E Mackenzie Lake Road in the District of Nipissing, and to participation in the grow operations at both properties. Included in the case for the Crown was evidence that the appellant owned the Mackenzie Lake Road property, that he and his vehicle had been seen at Jessup Road, and that he had used the vehicle to transport things from Jessup Road to an address in Richmond Hill where documents showing ownership of the various properties and things associated with marijuana grow operations were found.
[12] The Crown relied on evidence gathered by execution of several general warrants that permitted police to enter upon the various properties and to use video cameras to record what they saw there. These observations, along with the results of some other investigations, led to issuance of search warrants for each of the rural properties and the residence of a former co-accused at 18 Damian Drive in Richmond Hill. Things seized during these searches constituted a large part of the Crown’s case.
The Procedure Followed at Trial
[13] The appellant’s trial proceeded as a blended voir dire and trial. The evidence adduced at trial, or made part of the trial record by the agreement of counsel and approval of the trial judge, included transcripts of proceedings taken against a former accused, Ng. These involved a challenge to the evidence gathered under the various warrants, and the viva voce testimony of several investigating officers describing their observations made under the general warrants and the results of their searches.
[14] The appellant did not testify nor was any evidence adduced on his behalf.
THE GROUND OF APPEAL
[15] The grounds of appeal advanced here reinvigorate several arguments advanced by Mr. Thorning at trial and add a claim that the convictions are unreasonable. I would paraphrase and re-order the grounds of appeal in these terms:
i. that the trial judge erred in relying on the evidence of the chief investigating officer, D/C Henderson, that linked the appellant to the Jessup Road property, because that evidence was based on inadmissible hearsay from records maintained by the Ministry of Transportation (MOT);
ii. that the trial judge erred in admitting and relying upon evidence of real estate documents found during a search of 18 Damian Drive that were subject to solicitor-client privilege;
iii. that the trial judge erred in admitting evidence obtained by execution of general warrants and search warrants that were issued without jurisdiction, or were otherwise constitutionally infirm, when the evidence should have been excluded under s. 24(1) or s. 24(2) of the Charter; and
iv. that the findings of guilt are unreasonable.
Ground #1: The MOT Database and the Hearsay Rule
[16] This ground of appeal has two components. The first has to do with D/C Henderson’s review of an MOT database on which he saw, but did not take a copy, of a photograph of the appellant on his driver’s licence. The second relates to D/C Henderson’s testimony that the appellant owned a motor vehicle seen at and near the Jessup Road property, a statement made on the basis of MOT records of vehicle ownership that is said to infringe the hearsay rule.
[17] Some additional background is essential to an understanding and assessment of this ground of appeal.
The Additional Background
[18] On August 11, 2005, during the execution of a general warrant, D/C Henderson saw a blue Ford F-150 pickup truck with Ontario plates, 9690RH, on the property. Later, he checked an MOT database that recorded the owner of the vehicle as Zhu Shi Li. The officer then viewed a driver’s licence in the same name that displayed a photograph of Zhu Shi Li. D/C Henderson did not keep a hard copy of either document.
[19] About a week after he had seen the photograph, D/C Henderson was conducting physical surveillance near the Jessup Road property. Advised that the pickup truck and two occupants were leaving that property, the officer saw the vehicle travelling along a nearby highway. With the photograph he had seen a week earlier in mind, D/C Henderson identified the appellant as the driver of the pickup truck as the vehicles passed going in opposite directions on the same highway. The passenger was the former accused, Ng.
[20] D/C Henderson maintained surveillance over the pickup truck and its occupants for over eight and one-half hours. The vehicle stopped at Ng’s home at 18 Damian Drive in Richmond Hill. Ng backed the pick up truck up to the garage door. Ng and Li entered the house. The garage door opened. Both men then carried a number of things from the pickup truck to the garage. A subsequent search of the garage revealed several things associated with marijuana grow operations.
[21] D/C Henderson did not produce a copy of any of the information he viewed on the MOT database: photo, ownership, or driver’s licence. Crown counsel did not seek to have copies of any of these documents admitted as evidence under statutory or common law authority.
The Positions of the Parties at Trial
[22] At trial, Mr. Thorning, for the appellant, argued that D/C Henderson’s testimony about the appellant’s ownership of the pickup truck was hearsay based on his repetition of information contained in the MOT database. The Crown failed to establish a statutory or common law basis for its reception. Likewise, Mr. Thorning contended, D/C Henderson’s identification of the appellant should not have been admitted because it was based on a single photograph in the database not produced at trial.
[23] At trial, counsel for the Crown (who was not Mr. Wilson) contended that the registration information was admissible under the common law business records exception and the use of the photograph contravened no admissibility rule. In the result, Crown counsel argued, the testimony of D/C Henderson identifying the appellant was properly admissible.
The Ruling of the Trial Judge
[24] The trial judge appears to have concluded that the registration information was hearsay, but sufficiently reliable to warrant its admission. He considered the necessity requirement under the principled exception to be less important because of the “extreme reliability” of the record.
The Arguments on Appeal
[25] On appeal, Mr. Thorning for the appellant repeats his trial objection that D/C Henderson’s testimony about ownership of the pickup truck was inadmissible hearsay. At trial, no statutory notice was provided to render the evidence admissible under the Canada Evidence Act, R.S.C. 1985, c. C-5, nor were the prerequisites to admissibility under the common law business records exception or the principled exception established.
[26] Mr. Thorning also repeats his objection to D/C Henderson’s reliance on the MOT database photograph as the basis for his identification of the appellant. He contends that the failure to file the photograph as an exhibit meant that the trial judge was left with no means by which to evaluate the reliability of D/C Henderson’s identification evidence.
[27] For the respondent, Mr. Wilson submits that reliance on the database photograph offends no rule of admissibility and did not leave the trial judge without means to evaluate the reliability of the identification by D/C Henderson. The trial judge was well aware of the frailties of eyewitness identification, both generally and in the circumstances of this case. The reasons, read as a whole, betray no misapprehension of the governing principles or any of the specific deficiencies advanced here.
[28] Mr. Wilson says that the trial judge was right to permit D/C Henderson to testify that the appellant was the owner of the pickup truck even though the officer was repeating under oath the contents of the MOT database. The database qualifies under the common law and principled exceptions to the hearsay rule.
The Governing Principles
[29] This ground of appeal challenges the admissibility of those parts of D/C Henderson’s evidence that tended to link the appellant to the grow operation at 61 Jessup Road: the appellant’s ownership of the pickup truck and his operation of the pickup truck during a trip from Jessup Road to Ng’s home in Richmond Hill. The complaint involves D/C Henderson’s use of an MOT database to access a photograph of the appellant as a basis for his identification and motor vehicle registration information to prove the appellant’s ownership of the pickup truck seen at Jessup Road.
[30] The principal complaint the appellant makes is that D/C Henderson’s testimony that the appellant owned the pickup truck seen at the Jessup Road grow operation is based upon MOT database entries which, when repeated to prove their truth, are inadmissible hearsay.
[31] The hearsay rule has four essential elements:
i. a declarant;
ii. a recipient;
iii. a statement; and
iv. a purpose.
The defining characteristics of hearsay are the purpose for which the evidence is introduced – to prove the truth of the contents of the statement – and the absence of a contemporaneous opportunity to cross-examine the declarant to test the reliability of the out-of-court statement: R. v Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 35.
[32] Where the hearsay rule is engaged, the evidence is prima facie inadmissible. The hearsay rule, like other rules of admissibility, is by nature exclusionary, but not unqualifiedly so. Hearsay evidence may be admitted under an established categorical exception or under the principled approach that had its genesis in R. v. Khan, [1990] 2 S.C.R. 531, over two decades ago.
[33] The common law made exceptions for public and business records. These exceptions retain their vitality today despite the enactment of statutory provisions that govern the same subject matter. The special trustworthiness of public records rests in the duty to maintain the records and the high probability that the duty to make an accurate report has been performed. It is all the more so where a party is required to provide accurate information to the record-keeper, and subject to penalty for failing to do so or lying about it. The common law exceptions contain no notice requirements.
[34] Government and business records may also be admissible under the Canada Evidence Act (“CEA”). Government records may be received under s. 24(a), provided notice is given under s. 28. Business records are governed by s. 30 and are also subject to a notice requirement in s. 30(7) unless the court orders otherwise. Section 40 of the CEA incorporates provincial rules of evidence subject to the provisions of the CEA and other federal legislation.
[35] It is also permissible for any witness to refresh his memory about a subject, such as the ownership of a motor vehicle, by any means that would rekindle the witness’ recollection of the subject. The stimulus used by the witness to refresh his or her recollection need not itself constitute admissible evidence: R. v. Fliss, 2002 SCC 16, [2002] 1 S.C.R. 535, at para. 45.
The Principles Applied
[36] I would not give effect to this ground of appeal. My reasons are several.
[37] First, the photograph viewed by D/C Henderson on the MOT database, considered apart from the contents of the licence and ownership of the plate/vehicle, was not rendered inadmissible by the hearsay rule. The photograph was not a “statement”, an essential feature of the exclusionary rule, nor was it tendered to prove the truth of its contents.
[38] D/C Henderson was entitled to examine the photograph and compare the appearance of the person depicted there with the person he saw driving the vehicle seen at the grow operation away from that area to 18 Damian Drive. He was entitled further to compare the person in the photograph with the man he saw at 18 Damian Drive unloading the same vehicle that he had under surveillance for eight and one-half hours, and taking several things into the garage of Ng’s house. In essence, he was refreshing his memory.
[39] Second, the Crown did not tender any MOT documents, driver’s licence, or ownership permit, as part of its case-in-chief nor rely upon these documents to prove the truth of their contents. Ownership of the pickup truck was not an essential element of the case for the Crown. In a way, it was somewhat beside the point. What the Crown needed to prove was the appellant’s participation in the grow operations described in the indictment. It sought to do so by circumstantial evidence. The pickup truck was at the Jessup Road grow operation. The appellant drove the vehicle away from the grow operation. He helped unload the vehicle at 18 Damian Drive where a subsequent search of the area where the unloaded items were taken revealed things commonly used in grow operations. Documents found in the residence linked the appellant or a person by the same name, to Ng and another grow operation with characteristics similar to those at Jessup Road. The link was from photo to driver to unloader to appellant, a chain of reasoning not dependent on ownership of the pickup.
[40] Third, assuming the appellant’s objection properly invokes the hearsay rule, rather than the requirement that a witness have first-hand knowledge of the observations of which she or he gives evidence, it was open to the trial judge to conclude that the records relied upon satisfied the reliability and necessity requirements of the principled exception to the hearsay rule.
[41] The reliability requirement is satisfied because of the way in which the records came into existence. Driving a motor vehicle on this province’s highways is a privilege. Drivers require a licence to operate a motor vehicle. And motor vehicles require a permit to operate on the province’s highways. Drivers and owners of motor vehicles apply for licences and permits. They fill out forms and submit them to a licensing agency. False statements on the forms attract a penalty. Information provided on the form, some of it at least, is replicated on the permit. Common sense dictates that we can put sufficient trust in the truth and accuracy of the statements that appear on the face of the licence and permit. This is sufficient to satisfy the reliability requirement.
[42] The necessity requirement is also met.
[43] The necessity requirement has its genesis in society’s interest in getting at the truth. It is not always possible to meet the optimal test of contemporaneous cross-examination. Rather than simply losing entirely the value of the evidence, it becomes necessary in the interests of justice to consider whether the evidence should be admitted nonetheless in a second-hand form, as hearsay: Khelawon, at para. 49.
[44] The necessity requirement refers to the necessity of proving a fact in issue through the introduction of hearsay evidence, rather than other direct evidence that does not attract the operation of the exclusionary rule: R. v. Smith, [1992] 2 S.C.R. 915, at pp. 929 and 933. Thus, the availability of other means of introducing hearsay, for example, a listed exception or statutory provision, does not mean that the means chosen does not satisfy the necessity requirement under the principled approach. In this case, relevant direct evidence of vehicle ownership or that the appellant was the holder of the driver’s licence viewed by D/C Henderson was not available. Its source, the appellant, was not a competent witness for the Crown.
[45] I would not give effect to this ground of appeal.
Ground #2: Solicitor-Client Privilege
[46] Some additional background is essential to an appreciation of this ground of appeal and its determination.
The Search at 18 Damian Drive
[47] On August 25, 2005, police executed a search warrant at 18 Damian Drive in Richmond Hill, a home owned and occupied by Sut Jhing Ng, the appellant’s brother-in-law who was also charged in connection with the same grow operations as the appellant.
[48] In the Ng residence, investigators discovered several documents relating to the purchase of the four properties on which police found marijuana grow operations. Prior to the execution of this warrant and a review of the documents found there, police did not know about the Mackenzie Lake Road property in the District of Nipissing.
[49] Investigators seized real estate documents for the Mackenzie Lake Road property. These documents showed that the appellant held title to that property. At trial, the appellant contended that many of these documents were protected by solicitor-client privilege. Defence counsel conceded that the Agreement of Purchase and Sale for the property was not privileged, and appears to have acknowledged, as well, that the Transfer/Deed of Land was also not privileged.
[50] Investigators seized similar documents, solicitors’ reporting letters and enclosures, relating to the other properties on which grow operations were found. The letters were addressed to those on title for the other properties, none of whom was the appellant.
The Positions of the Parties at Trial
[51] At trial, Mr. Thorning for the appellant contended that all the documents relating to the purchase of the Mackenzie Lake Road property including the reporting letter and enclosures, were privileged and should not have been seized or used as a basis to obtain a search warrant for Mackenzie Lake Road. The seizure was unreasonable, a blatant breach of s. 8 of the Charter, and an invasion of solicitor-client privilege that warranted a stay of proceedings.
[52] The trial Crown contended that the seized documents were not protected by solicitor-client privilege. The communications were not made for the purpose of obtaining or providing legal advice, rather simply to report on a transaction that took place in the public domain and was documented in public records. In any event, any privilege that might have attached to the documents was defeated when the documents were found in the possession of a third party, Ng, and reflected a criminal purpose.
The Ruling of the Trial Judge
[53] The trial judge ruled that the Statement of Account and Trust Ledger Statement, not addressed to the appellant, could not be the subject of a privilege claim. After pointing out that the balance of the documents were not in the appellant’s possession in his home, the trial judge continued:
[80] Based on the principles set out above I find the documents seized and objected to are not protected by solicitor/client privilege. They do not fit the criteria of privileged documents set out in R. v. Claus. They are distinguishable from Statements of Account related to criminal charges before the Court and do not pose the same risk to privilege protection. On the evidence the accused left them at the home of his brother-in-law where they were found pursuant to the execution of a search warrant.
[54] The trial judge did not rule on the criminal purpose exception.
The Arguments on Appeal
[55] On appeal, Mr. Thorning says that the trial judge, wrongly characterized the documents as not protected by the solicitor-client relationship. The relationship was established by the retainer agreement seized by police at 18 Damian Drive and put the documents out of the reach of the state. The solicitors’ accounts are also subject to the privilege. None of these documents should have been relied upon in the Information to Obtain (the ITO) for the search warrant at Mackenzie Lake Road as a basis for the finding of guilt in connection with that property.
[56] For the respondent, Mr. Wilson began by pointing out that the appellant conceded that the only two documents that matter in establishing the appellant’s connection to the Mackenzie Lake Road property, the Agreement of Purchase and Sale and the Transfer/Deed of Land, are beyond the scope of the privilege. The only seized document referred to in the ITO was the Agreement of Purchase and Sale. Further, Mr. Wilson says, any privilege that did attach was defeated when the documents were found in the possession of a third party, a stranger to the solicitor-client relationship.
[57] Mr. Wilson adds that even if the documents were privileged and wrongly seized by the police, the result in connection with the Mackenzie Lake Road count would be the same because there was ample evidence to support the appellant’s participation in that grow operation.
The Governing Principles
[58] The classic formulation of the solicitor-client communication privilege is this:
Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to the purpose made in confidence by the client are at his instance permanently protected from disclosures by himself or by the legal adviser, except the protection be waived.
See, Wigmore on Evidence (McNaughton Rev., 1961), Vol. 8, § 2292 as cited in Canada v. Solosky, [1980] 1 S.C.R. 821, at p. 835.
[59] Traditionally, a privilege is a rule of evidence, an exclusionary rule of admissibility that forecloses from forensic scrutiny evidence that is relevant and material in service of some interest of greater importance. But, at least in the last three decades, solicitor-client privilege has become more than merely a rule of evidence that acts as a shield to prevent privileged documents from making their way into evidence in a courtroom: Solosky, at pp. 836-837.
[60] Decisions of the Supreme Court of Canada have consistently strengthened solicitor-client privilege, elevating it from an evidentiary or procedural rule to a general principle of substantive law: Maranda v. Richer, 2003 SCC 67, [2003] 3 S.C.R. 193, at para. 12. In the criminal law context, the only exceptions to the principle of confidentiality established by solicitor-client privilege are limited, clearly defined, and strictly controlled: Maranda, at para. 12.
[61] The reference to “communication” in the classic formulation of the rule acknowledges that not everything that happens in the solicitor-client relationship qualifies as privileged. Some decisions have drawn a distinction between “facts”, on the one hand, and “communications” on the other, to avoid excluding facts that have an independent existence under the privilege. The distinction is often a difficult one to draw in practice and risks eroding the privilege that is inherent in it: Maranda, at para. 31.
[62] Issues relating to the calculation and payment of fees are important elements in the solicitor-client relationship. This information is presumptively privileged, but the presumption may be rebutted by evidence that disclosure would not violate the confidentiality of the solicitor-client relationship: Maranda, at paras. 32-34.
[63] The existence of solicitor-client privilege does not affect the admissibility of the same evidence available from other sources: Maranda, at para. 34. Sometimes, for example, solicitor-client communications may end up in the hands of a third party as in R. v. Tompkins (1978), 67 Cr. App. R. 181 (C.A. (Crim. Div.)). Whether the opposite party may use or introduce this secondary evidence may depend on the manner in which the otherwise privileged documents or things have been obtained. The orthodox rule would admit the secondary evidence, provided it was relevant and material, unconcerned with how the evidence was obtained: see R. v. Kuruma, [1955] A.C. 197 (P.C.); Calcraft v. Guest, [1898] 1 Q.B. 759 (C.A.). More recently, however, courts have recognized a common law, and now constitutionalized, discretion to exclude evidence the admission of which would render the trial unfair: R. v. Harrer, [1995] 3 S.C.R. 562, at para. 23; and R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, at para. 23.
The Principles Applied
[64] For several reasons I would not give effect to this ground of appeal.
[65] First, the purpose behind the introduction of the evidence of documents found during the warranted search of 18 Damian Drive was to link the appellant to the Mackenzie Lake Road property where a grow operation was located. Investigators had not seen the appellant on the property, probably because they didn’t know about the property until the search at Damian Drive had been completed and the documents found there reviewed. Documents found during the search included a reporting letter from the solicitor acting on the purchase.
[66] Counsel for the appellant conceded at trial that neither the Agreement of Purchase and Sale between Ng and a numbered company nor the Transfer/Deed of Land identifying someone with the same name as the appellant as the owner were privileged. On their own, and independently of any issue of solicitor-client privilege, these documents tended to link the appellant to the Mackenzie Lake Road property through ownership of it. It is not beside the point that a certified copy of the Transfer/Deed of Land lodged in the Registry Office was filed as an exhibit at trial.
[67] Second, other documents found on the search at 18 Damian Drive also tended to establish the appellant’s connection to the Mackenzie Lake Road property. These documents included a hydro bill and tax bill addressed to the appellant at or in respect of that property. No privilege attached to these documents.
[68] Third, solicitor-client privilege does not reach any of the evidence relied upon to establish the appellant’s ownership of the Mackenzie Lake Road property as an item of circumstantial evidence that tended to prove his participation in the offences arising out of the grow operation found there. Thus, it is not necessary to determine whether the reporting letter of the solicitor is privileged or whether, if privileged, the privilege was impliedly waived when the letter ended up in the hands of a third party, a stranger to the solicitor-client relationship.
[69] Fourth, to the extent this ground of appeal advances a claim that privileged information was improperly included in the ITO for the Mackenzie Lake Road property, the argument fails. The only references in the ITO were to the Agreement of Purchase and Sale in the name of Ng, which the appellant concedes is not privileged, and information obtained from records maintained in the Township Office to which no privilege attaches.
[70] Finally, I am not persuaded that even if the trial judge were wrong in his conclusion that the reporting letter and enclosures fall outside solicitor-client privilege, an issue about which I express no opinion, his conclusion on the count relating to the Mackenzie Road property would have been any different. The non-privileged documents amply demonstrated the appellant’s ownership of the property, as well as his connection with Ng.
Ground #3: The Admissibility of the Search Evidence
[71] This ground of appeal challenges the decision of the trial judge to admit evidence of observations made and things found on execution of general and search warrants at the Jessup Road and Mackenzie Lake Road properties. Some further background will provide the context essential for an understanding and determination of this ground of appeal.
The General Warrants
[72] A provincial court judge issued general warrants under s. 487.01 of the Criminal Code in connection with the Jessup Road property. The informant sought authority to make observations on the Jessup Road property and to use “vision enhancement equipment” including video cameras, binoculars, spotting scopes, and night vision. The warrants were granted on the terms sought on July 19 and August 9, 2005.
[73] On July 19, 2005, investigators saw several plots of marijuana plants growing on the Jessup Road property. Some brush concealed a trail that led to some of those plants. Police also noticed two vehicles, some irrigation pipe, German shepherd dogs, and an outbuilding on the property. They photographed various features of the property including Ms. Zhao driving a Honda motor vehicle. Another motor vehicle, registered to the former accused Ng, appeared later.
[74] On August 11, 2005, police saw a blue pickup truck owned by the appellant, parked between the barn and house on the Jessup Road property. Ms. Zhao was walking back and forth between the house and the outbuilding.
[75] On August 19, 2005, police surveilled Zhao, Ng, and the appellant as they drove from the Jessup Road property to 18 Damian Drive in Richmond Hill. Li and Ng got out of Li’s pickup truck and went into the house. Li was carrying an Adidas bag. After the garage door opened, Li and Ng unloaded several things from the back of the truck and put them in the garage.
[76] On August 24, 2005, police surveillance at the Jessup Road property was compromised after the appellant was seen apparently guarding the marijuana crop at that location. The next day police obtained warrants under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”) to search all four marijuana grow operations and the Damian Drive home of Ng.
The Search Warrants
[77] The ITO submitted as a basis for the CDSA warrants to be executed at the grow operations and Ng’s residence made substantial reference to observations made at Jessup Road under the general warrants issued in respect of that property, and investigations undertaken as a result of those operations.
The Arguments at Trial
[78] At trial, Mr. Thorning challenged the general warrants on the ground that they were issued by a judge who had no jurisdiction to do so. He submitted that only a judge of the superior court of criminal jurisdiction can issue a general warrant under s. 487.01 of the Criminal Code that permits the use of video surveillance. In the alternative, Mr. Thorning contended that if a general warrant authorizing video surveillance could be issued by a provincial court judge, the ITO failed to establish a case of investigative necessity as required under s. 186(1)(b) of the Criminal Code. It was his position that without the information obtained under the general warrants, the subsequent search warrants could not have been issued.
[79] The remedies the appellant sought at trial included a stay of proceedings or, in the alternative, an order excluding the evidence obtained under the warrants.
[80] The trial Crown took the position that a provincial court judge had authority to issue a general warrant that included video surveillance, at the very least where, as here, the warrant did not authorize the interception of private communications. The ITO afforded an adequate evidentiary basis upon which the general warrants could have issued, thus information obtained by their execution was properly included in the ITO on which the issuance of the search warrants was based.
[81] The trial Crown contended that, in the absence of any constitutional deficiency in the issuance of the general warrants and, as a consequence, the issuance of the search warrants, there was no basis upon which to exclude the evidence under s. 24(2) of the Charter. Even if there had been a constitutional misstep, the trial Crown argued the evidence was admissible under s. 24(2). Neither a stay of proceedings nor exclusion of evidence could be ordered under s. 24(1) in the circumstances of this case.
The Reasons of the Trial Judge
[82] The trial judge concluded that the general warrants were invalid because they had been issued by a judge who had no authority to do so. General warrants that include video surveillance or recording, the trial judge said, can only be issued by a judge of the superior court of criminal jurisdiction. The evidence obtained under these warrants was obtained in breach of s. 8 of the Charter. The trial judge did not consider any arguments based upon:
i. the alleged inadequacy of the ITO to support the issuance of the general warrants; or
ii. the alleged inadequacy of the ITO in support of the search warrants when information obtained by execution of the general warrants was excised and any amplification considered.
[83] The trial judge appears to have proceeded directly from his conclusion that the general warrants were issued without jurisdiction to his consideration of admissibility under s. 24(2). In admitting the evidence, he found, among other things, that the police had acted in good faith throughout.
The Arguments on Appeal
[84] For the appellant, Mr. Thorning says that the trial judge was right in his conclusion that the general warrants were issued without jurisdiction. General warrants that include video surveillance as an investigative procedure may only be issued by a judge of the superior court of criminal jurisdiction.
[85] Mr. Thorning contends that the trial judge erred in failing to find that, even if a provincial court judge had authority to issue a general warrant permitting video surveillance, the ITO could not support its issuance in this case. The ITO was replete with errors, omissions, speculative conclusions, and conclusory statements, thus afforded no evidentiary basis upon which the warrant could issue. He advanced the same argument in connection with the search warrants, when pruned of their contents obtained under the unlawfully issued general warrants.
[86] In any event, Mr. Thorning continues, the trial judge’s s. 24(2) analysis was seriously flawed and warrants no deference. His reasons are conclusory and reflect a consideration of irrelevant factors, a failure to consider relevant factors, and an erroneous finding of good faith. He should have excluded the evidence.
[87] For the respondent, Mr. Wilson says that this issue reduces to an argument about the correctness of the trial judge’s decision to admit what might be termed the “search evidence” under s. 24(2) of the Charter.
[88] In this case, Mr. Wilson does not challenge the trial judge’s decision holding that the general warrants were issued without jurisdiction because a general warrant authorizing video surveillance can only be granted by a judge of the superior court of criminal jurisdiction. In his factum, Mr. Wilson takes the position that it is only where private communications are to be intercepted through the use of video surveillance that the order must be granted by a judge of the superior court of criminal jurisdiction. Since nothing of the sort was contemplated or occurred here, he does not seek to relitigate the correctness of the trial judge’s ruling.
[89] Mr. Wilson also contends that no other issue of s. 8 Charter compliance arises here. The trial judge found a s. 8 breach because the general warrants had been issued without jurisdiction. The judge then proceeded directly to a s. 24(2) analysis on all the search evidence. That he did so implies that he must also have found a s. 8 breach in connection with the issuance or execution of the search warrants. Mr. Wilson says that it follows that relitigation of that issue should occupy none of our thoughts. Only the correctness of the s. 24(2) analysis is in issue. Section 24(1) can have no role in our decision because, on the appellant’s argument, the evidence was obtained by constitutional infringement, thus rendering s. 24(2) the sole exclusionary mechanism.
The Governing Principles
[90] Three areas of general principle require brief exposition in accordance with this ground of appeal. The first has to do with the authority to issue general warrants that authorize use of video surveillance. The second relates to the standard of review of judicial warrants authorizing searches or seizures, the results of which are offered in evidence at trial. And the third, involves the standard to be applied in determining admissibility under s. 24(2) of the Charter.
[91] Video surveillance constitutes a search where the person whose activities are observed has a reasonable expectation of privacy: R. v. Wong, [1990] 3 S.C.R. 36, at pp. 44 and 61. Absent prior judicial authorization, video surveillance of persons with reasonable expectations of privacy will offend s. 8 of the Charter: Wong, at pp. 60-61.
[92] Section 487.01 is Parliament’s response to the decision in Wong. In general terms, the section authorizes provincial court judges and judges of the superior court of criminal jurisdiction to issue a warrant in writing authorizing a peace officer to use any device, investigative technique, or procedure, or to do anything described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or the person’s property. A warrant may only be issued under s. 487.01(1) if the conditions precedent imposed by the subsection have been met. On its face, s. 487.01(1) would permit authorization of the use of video surveillance by state agents.
[93] Sections 487.01(4) and (5) make specific provision for warrants that authorize video surveillance. Those provisions are in these terms:
(4) Video surveillance – A warrant issued under subsection (1) that authorizes a peace officer to observe, by means of a television camera or other similar electronic device, any person who is engaged in activity in circumstances in which the person has a reasonable expectation of privacy shall contain such terms and conditions as the judge considers advisable to ensure that the privacy of the person or of any other person is respected as much as possible.
(5) Other provisions to apply – The definition “offence” in section 183 and sections 183.1, 184.2 184.3 and 185 to 188.2, subsection 189(5), and sections 190, 193 and 194 to 194 apply, with such modifications as the circumstances require, to a warrant referred to in subsection (4) as though references in those provisions to interceptions of private communications were read as references to observations by peace officers by means of television cameras or similar electronic devices of active peace officers by means of television cameras or similar electronic devices of activities in circumstances in which persons had reasonable expectations of privacy.
[94] Section 487.01(4) contains no language that expressly or by necessary implication limits the authority to grant a general warrant authorizing video surveillance to one or the other category of judicial official described in s. 487.01(1). A video surveillance warrant, as the introductory words of s. 487.01(4) make clear, is a species of general warrant, “a warrant issued under subsection (1)”. It follows that, on its face, s. 487.01(4) would permit either a provincial court judge or a judge of the superior court of criminal jurisdiction to issue a general warrant authorizing video surveillance, for our purposes, a “video surveillance warrant”.
[95] Section 487.01(5) incorporates by reference several provisions in Part VI and makes these provisions applicable to video surveillance warrants issued under s. 487.01(4), “with such modifications as the circumstances require”. Like s. 487.01(4), nothing in s. 487.01(5) expressly limits the authority to issue a video surveillance warrant to judges of the superior court of criminal jurisdiction. Some, but not all of the incorporated provisions, those related to conventional authorizations, refer only to judges of the superior court of criminal jurisdiction. But others, like the consent authorization provisions in ss. 184.2 and 184.3 permit the alternatives in issuing authorities for which s. 487.01(1) provides.
[96] In R. v. Ha, 2009 ONCA 340, 245 C.C.C. (3d) 546, a warrant issued by a judge of the Ontario Court of Justice, a “provincial court judge” for the purposes of s. 487.01(1), included the authority to conduct covert searches and videotaping. The warrant was upheld without reference to any argument that it had been issued by a judge who lacked the authority to do so.
[97] The second general principle that warrants brief mention is the standard of review applicable when authorizations or warrants permit state agents to execute searches or effect seizures. The standard is whether, based on the evidence before the authorizing judge, as amplified by any evidence adduced on the review, there was reliable evidence, that might reasonably be believed, on the basis of which the warrant or authorization could have been issued: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 51 and 58. On the review, the reviewing judge must exclude erroneous information, as well as any information that has been obtained by Charter infringement. Amplification may correct erroneous information where investigators, in good faith, made minor, technical errors in drafting the supportive information or affidavit. No amplification is necessary where sufficient reliable material remains after excision of the erroneous or otherwise tainted parts: Araujo, at para. 57. These principles apply to warrants issued under s. 487.01: Ha, at para. 29.
[98] The analysis under s. 24(2) of the Charter involves three lines of inquiry that are long-term, prospective, and societal in their focus: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 68-70. Under s. 24(2), courts assess and balance the effect of admitting constitutionally-tainted evidence on society’s confidence in the justice system, having regard to three lines of inquiry:
i. the seriousness of the Charter-infringing state conduct;
ii. the impact of the breach on the accused’s Charter-protected interests; and
iii. society’s interest in the adjudication of the case on its merits.
Grant, at para. 71.
[99] The seriousness of Charter-infringing state conduct is a variable, one that moves along a spectrum or continuum that encompasses the inadvertent and minor at one end, and the reckless, flagrant, and deliberate at the other. Investigative good faith is a factor in an assessment of the seriousness of Charter-infringing state conduct, but ignorance and negligence or wilful blindness are not its surrogates: Grant, at para. 75.
[100] The impact of a constitutional infringement on an accused’s Charter-protected interest is likewise a variable. What is required is an examination of the interests engaged, here the security from unreasonable search or seizure, and the degree or extent to which the violation impacted on those interests: Grant, at para. 78.
[101] The third line of inquiry asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. The reliability of the evidence and its importance to the Crown’s case are significant factors: Grant, at paras. 81 and 83.
[102] Where a trial judge has considered the proper factors in his or her s. 24(2) analysis, appellate courts are to accord considerable deference to those findings: R. v. Beaulieu, 2010 SCC 7, [2010] 1 S.C.R. 248, at para. 5; Grant, at paras. 86 and 127.
The Principles Applied
[103] I would not give effect to this ground of appeal because, in the final analysis, I am satisfied that the trial judge’s decision to admit the search evidence does not reflect error.
[104] In this court the respondent did not challenge the conclusion of the trial judge that, because they authorized video surveillance, the general warrants could only have been granted by a judge of the superior court of criminal jurisdiction. It followed, according to the trial judge, that the warrants, granted by a provincial court judge, had been issued without jurisdiction. The search they authorized was conducted without lawful authority, thus was unreasonable in breach of s. 8 of the Charter.
[105] The position taken by the respondent and the absence of full argument on the issue render it unwise and unnecessary to finally determine the correctness of the trial judge’s conclusion about the authority to issue general warrants that include video surveillance. It is enough to say that the issue must await another day, another case, and full argument. Nothing said here should be taken, however, as an affirmation of the correctness of the trial judge’s determination that only judges of the superior court of criminal jurisdiction have the authority to issue general warrants permitting video surveillance.
[106] Second, as I read the reasons of the trial judge, he did not conduct a discrete Garofoli/Araujo review of the search warrants that were executed at the grow operations and at 18 Damian Drive. It would seem implicit in his analysis of the search evidence under s. 24(2), however, that he considered these searches offended s. 8. The respondent was content to proceed on that basis and I shall do likewise.
[107] The police conduct in this case infringed the appellant’s right to be secure against unreasonable search or seizure. The procedures used included police presence on property not used as a residence, video recording of various areas of the property and the activities of those present, and physical searches of the grow operations and the residence of another person charged with the same offences.
[108] The trial judge found the activities under the general warrants to be unreasonable searches because the warrants had been issued by a judge of a court that lacked the lawful authority to do so. The trial judge did not expressly find that any of the warrants had been issued on the basis of an inadequate evidentiary record. He did find that the police conduct reflected good faith. I see no reason to disturb that finding.
[109] The Charter-infringing state conduct was not part of a pattern of unconstitutional conduct, nor did it display a wilful or reckless disregard for the appellant’s constitutionally-protected right to be free from unreasonable search or seizure. The infringement tended towards the inadvertent or minor end of the spectrum of unconstitutional conduct.
[110] In a similar way, the impact of the unconstitutional conduct on the appellant’s Charter-protected interests was not significant, despite the fact that one of the searches involved a residence. The initial conduct consisted of observations of activities on property. Some of these activities could be seen from a public road. The residential search involved a home of which the appellant was neither the owner nor an occupant, thus one in respect of which he had, if any, a reduced expectation of privacy. The police conduct had no impact on the appellant’s bodily integrity or personal dignity. This line of inquiry favours admission of the search evidence.
[111] The search evidence is reliable evidence essential to the Crown’s proof of the appellant’s participation in the offences charged. Its reliability is not attenuated by any constitutional missteps that may have occurred.
[112] This ground of appeal fails.
Ground #4: Unreasonable Verdict
[113] The final ground of appeal draws upon earlier submissions relating to the admission of evidence that the appellant says should have been excluded as inadmissible hearsay or as a breach of solicitor-client privilege, and adds to the mélange the inherent weaknesses of eyewitness identification evidence. The sum total of these errors and frailties is a verdict that the appellant says is unreasonable.
[114] The argument advanced requires no additional reference to the evidence adduced at trial.
The Positions of the Parties at Trial
[115] At trial, Mr. Thorning characterized the core issue as the adequacy of Crown counsel’s proof of the appellant’s participation in the grow operations disclosed by the evidence. It was incumbent upon the Crown, Mr. Thorning said, to prove both the appellant’s identity and his knowledge of and control over these operations. The Crown proved neither.
[116] Mr. Thorning argued that D/C Henderson’s identification of the appellant as the person leaving the Jessup Road grow operation on August 19, 2005, was seriously flawed. It was based on a single photograph that was not produced for comparison purposes and reiterated as an in-dock identification four years later without any intervening refresher. It was, at bottom, a fleeting glimpse of a driver of a motor vehicle proceeding in the opposite direction at highway speed. The officer made no notes. As a cross-cultural identification, the evidence was subject to further, well-documented frailties.
[117] Mr. Thorning contended that the Crown’s proof of knowledge and control fell short of the standard required. The grow sites were hidden from view at Jessup Road and the appellant’s presence there established neither knowledge nor control. He was never seen at the Mackenzie Lake Road grow operation of which Ng was the true owner. Even if he were the owner, knowledge and control does not follow from proof of membership without more.
[118] The trial Crown submitted that the cumulative effect of several items of circumstantial evidence established the appellant’s culpable participation in the offences of which he was convicted. Each of the four properties housed a similar grow operation with Jessup Road serving as the main plant. The appellant was linked to Jessup Road by the presence of his truck on more than one occasion. He transported material to 18 Damian Drive with Ng and unloaded those things in the garage where a later search revealed several items used in marijuana grow operations.
[119] The trial Crown noted that the identification of the appellant was not the result of a fleeting glance at highway speed. D/C Henderson had the appellant under surveillance for eight and one-half hours and saw him, along with Ng, unloading items into the Damian Drive garage. The documents found there disclosed contemporaneous purchase of four rural properties by persons with no other connection to those areas. Each housed a grow operation. The similarities were remarkable. The evidence established the appellant’s connection to the two grow operations that were the subject of his convictions.
The Arguments on Appeal
[120] On appeal, Mr. Thorning reinvigorates the argument he made at trial, but recasts it as a submission that the convictions are unreasonable. He focuses on the “identification” component and characterizes the evidence of D/C Henderson as nothing more than a weightless dock identification tainted by the influence of a single photograph seen four years earlier.
[121] For the respondent, Mr. Wilson reminds us of the narrow scope of our authority to review convictions as unreasonable. He characterizes the case against the appellant as consisting of the cumulative effect of several items of circumstantial evidence, not inherently suspect eyewitness identification evidence. Considered as a whole, the uncontradicted case for the Crown demonstrated the appellant’s culpable participation in the two grow operations for which he was convicted. The conclusions of the trial judge were ones that a properly instructed trier of fact, acting judicially, could reasonably have rendered.
The Governing Principles
[122] A verdict may be unreasonable in either of two senses.
[123] A verdict may be unreasonable because it is a decision that no properly instructed jury, acting judicially, could reasonably have rendered: R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 4 and 44; R. v. Biniaris, 2000 SCC 15, [2001] S.C.R. 381, at para. 36; R. v. Jackson, 2007 SCC 52, [2007] 3 S.C.R. 514, at para. 2. Illogical or irrational reasoning can also render verdicts unreasonable. In this sense, a verdict is unreasonable where the trial judge draws an inference or makes a finding that is:
i. plainly contradicted by the very evidence from which it is drawn or upon which it has been made to rest; or
ii. demonstrably incompatible with evidence that is neither contradicted by other evidence nor rejected by the trial judge.
See Sinclair, at paras. 19 and 21; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at paras. 97-98.
The Principles Applied
[124] I would not accede to this ground of appeal.
[125] It is helpful to begin by clearing away some uncontroversial territory.
[126] Each of the four rural properties was a marijuana grow operation. The nature of the crop as a controlled substance was established by certificates of analysis. The size of the crop at each site, together with the presence there and elsewhere of materials commonly associated with growing, pruning, harvesting, and drying the crop, provided the factual predicate necessary for the offences charged – production and possession for the purposes of trafficking.
[127] The controversial ground at trial involved the adequacy of the Crown’s proof that the appellant participated in the offences that were otherwise plainly proven. To prove the appellant’s participation, the Crown did not have to but could rely on evidence of ownership of the property or vehicles associated with the property and activities carried on there.
[128] The appellant and his vehicle were observed at Jessup Road, an otherwise unoccupied property. His vehicle was parked near an outbuilding that, it was reasonable to infer, was being equipped for use in the grow operation. He and Ng used the appellant’s vehicle to transport things from Jessup Road to 18 Damian Drive, Ng’s residence. A warranted search of the garage at Damian Drive yielded several items frequently associated with marijuana grow operations. Documents found in the house recorded the near contemporaneous purchase of the four properties on which the grow operations, and little else, were found. The documents also established a link among the persons seen at or near Jessup Road, the appellant, Ng and Zhao, and the purchase of things found at Jessup Road. The appellant owned the Mackenzie Road property after its transfer to him by the purchaser, Ng. The property housed a grow operation remarkably similar to that found at Jessup Road, but for the processing area.
[129] The cumulative effect of the evidence on the single controversial issue of participation was such that a properly instructed trier of fact, acting judicially, could reasonably have found culpable participation on the appellant’s part. The convictions were not unreasonable in either sense described in the authorities.
[130] For these reasons, I would dismiss the appeal.
Released: February 8, 2013 “DD”
“David Watt J.A.”
“I agree Doherty J.A.”
“I agree S. E. Pepall J.A.”